The Supreme Court of the United States describes a woman‘s constitutional right to an elective abortion as a right to terminate her pregnancy prior to viability. That description begs a question that may someday be as important in practice as it is in principle: whether the right to an elective abortion includes the right to “terminate” —that is, kill or otherwise ensure the death of—the pre-viable fetus. In today‘s world, the conduct that would squarely present this question—killing a pre-viable fetus although it could have survived an abortion and become a child—cannot occur in practice. The right to elective abortion applies only to fetuses that are not viable, which means, by definition, that they have been determined to have no realistic chance of surviving outside the uterus, even with the help of neonatal intensive care. Today‘s abortion methods almost invariably involve the violent killing of the fetus. But even if abortion providers used fetus-sparing methods rather than fetus-killing ones, aborted fetuses would die within minutes after being removed from their mothers‘ wombs. Consequently, whether or not the woman‘s right to terminate her pregnancy includes a legal entitlement to kill the pre-viable fetus, elective abortion inevitably results in fetal death in practice. For that very reason, the woman has no choice in the matter: should she elect to terminate her pregnancy, the fetus will die even if she wants it to survive.
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* © Copyright 2014. All Rights Reserved. Professor of Law, Quinnipiac University School of Law. B.A., St. Johns College, Maryland; J.D., The University of Chicago. Thanks to Deans Brad Saxton and Jennifer Brown for research support, to Choy-Shin Chan and Jonathan Jacobson for valuable research assistance, and to Laurie Feldman, Emmett Feldman Gilles, Nelson R. Lund, participants in faculty workshops at Quinnipiac, and participants in the 2012 University Faculty for Life Conference at Brigham Young Univer-sity Law School, for helpful comments.
John J. Infranca *
Less than one in four income-eligible households receives some form of rental assistance from the federal government.[1] In contrast with other prominent public benefit programs—including Temporary Aid to Needy Families (“TANF”) and unemployment insurance—no time limit is placed on the assistance provided through the Department of Housing and Urban Development’s (“HUD”) three major sources of rental assistance:[2] public housing, housing choice vouchers, and Section 8 project-based rental assistance.[3] Recipients of federal rental assistance can continue to receive benefits as long as they satisfy eligibility requirements.[4] Two of the most prominent forms of rental assistance—housing choice vouchers and public housing—typically have long waiting lists that are frequently closed to new applicants.[5]
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* Assistant Professor of Law, Suffolk University Law School. Thanks to Vicki Been, Erin Braatz, Nestor Davidson, Ingrid Gould Ellen, Tim Iglesias, and Patrick Shin for comments and suggestions at various stages. Earlier versions of this article were presented at the NYU Furman Center for Real Estate & Urban Policy’s Fellows Workshop, the 2013 Association for Law, Property and Society Annual Meeting, the Suffolk Law School Junior Faculty Workshop, and the Touro Law Center Faculty Workshop. Michael O’Brien provided helpful research assistance.
[1]. Joint Ctr. for Hous. Studies of Harvard Univ., America’s Rental Housing: Evolving Markets and Needs 7 (2013) [hereinafter America’s Rental Housing]; see also Robert C. Ellickson, The False Promise of the Mixed-Income Housing Project, 57 UCLA L. Rev. 983, 1003 (2010) (citing Edgar O. Olsen, Housing Programs for Low-Income Households, in Means-Tested Transfer Programs in the United States 365, 394 (Robert A. Moffitt ed., 2003)) [hereinafter Olsen, Housing Programs for Low-Income Households] (observing that only 30% of qualified renters with incomes below the poverty level receive any form of federal housing aid); Editorial, The Affordable Housing Crisis, N.Y. Times, Dec. 5, 2012, at A30.
[2]. This article uses the phrase “rental assistance” to refer only to assistance provided through these three programs. The phrase “housing assistance” is used to refer more broadly to all forms of federal support for housing. Of most importance for this article’s analysis, the latter term includes the three rental assistance programs as well as the Low-Income Housing Tax Credit (“LIHTC”) and the Home Mortgage Interest Deduction (“HMID”).
[3]. See infra Part I.D. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, which replaced the Aid to Families with Dependent Children program with TANF, imposed a lifetime maximum of sixty months assistance for families receiving TANF. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104–193, § 408(a)(7), 110 Stat. 2105, 2137 (1996) (codified as amended at 42 U.S.C. §§ 608(a)(7)(A) (2012)). States may, however, exempt a family from the time limit in cases of hardship, so long as no more than 20% of recipient families receive an exemption. 42 U.S.C. §§ 608(a)(7)(C)(i)–(ii). The unemployment insurance system provides a combination of federal and state benefits that differ by state, but in all states there is some limit on the maximum period of time one is eligible to receive unemployment compensation. See Policy Basics: How Many Weeks of Unemployment Compensation are Available?, Center on Budget & Pol’y Priorities, http://www.cbpp.org/files/PolicyBasics_UI_Weeks.pdf (last updated Mar. 2, 2015). In contrast with these programs, the federal Supplemental Security Income Program provides an entitlement benefit—targeted to individuals who are elderly, blind, or disabled and have little income and few assets—to all individuals who qualify and does not impose time limits on receipt. See Ctr. on Budget & Policy Priorities, Introduction to the Supplemental Security Income (SSI) Program 1 (2014), available at http://www.cbpp.org/files/1-10-11socsec.pdf (“SSI has guaranteed a minimum level of income to those who qualify.”). Finally, the largest federal anti-poverty program, the Earned Income Tax Credit (“EITC”), operates quite distinctly from these benefit programs. Like many tax credits, there is no limit on how many years an individual may receive the EITC. See 26 U.S.C. § 32 (2014).
[4]. Public housing, housing choice vouchers, and Section 8 project-based rental assistance account for approximately 90% of the five million households who receive federal rental assistance. See Ctr. on Budget & Policy Priorities, Policy Basics: Federal Rental Assistance 1–3 (2013) [hereinafter Federal Rental Assistance], available at http://www.cbpp.org/files/Policy Basics-housing-1-25-13RA.pdf.
[5]. See, e.g., Olsen, Housing Programs for Low-Income Households, supra note 1, at 394 (“There are long waiting lists to get into subsidized housing in all localities, and the length of the waiting list understates excess demand in many localities because housing authorities often close their waiting lists when they get sufficiently long.”); Mid-Am. Inst. on Poverty of Heartland Alliance for Human Needs & Human Rights, Not Even a Place in Line 2007: Public Housing & Housing Choice Voucher Capacity and Waiting Lists in Illinois 2 (2007), available at http://www.wowonline.org/ourprograms /fess/stateresources/documents/NotEvenaPlaceinLineIL.pdf (reporting that, as of 2006, the waiting lists at forty-two of seventy-five Public Housing Authorities (“PHAs”) in Illinois that provided housing vouchers were closed to new applications); Lolly Bowean, As CHA Saved, Residents Waited; Report: Millions in Housing Funds Stashed in Bank, Chi. Trib., July 30, 2014, at C1 (discussing report that the Chicago Housing Authority held reserve funds of over $400 million while voucher and public housing waiting list of more than 40,000 families remained closed for over five years); Mireya Navarro, On Public Housing Wait List, Position Unknown, N.Y. Times, July 24, 2013, at A1 (reporting that although 227,000 households are on waiting list for public housing in New York City, only 5400 to 5800 units become available each year); Housing Authority Officials Overloaded with Applications, Fort-Wayne J. Gazette (Mar. 30, 2014), http://www.fortwayne.com/apps/ pbcs.dll/article?AID=/20140330/NEWS/320142140 (reporting that when the Fort Wayne, Indiana Housing Authority, which provides 200 to 300 new vouchers each year, opened its Housing Choice Voucher waiting list for the first time in four years it received more than 8000 applications in three days). Lengthy waiting lists for housing assistance are not a recent phenomenon. See U.S. Dep’t of Hous. & Urban Dev., Waiting in Vain: An Update on America’s Rental Housing Crisis ii–vi (1999) (discussing lengthening waiting times for public housing, particularly in larger PHAs and major cities); William C. Nussbaum, Comment, Public Housing: Choosing Among Families in Need of Housing, 77 Nw. U. L. Rev. 700, 700 (1983) (“Throughout the country, the number of families seeking public housing vastly exceeds the number of available units.”). However, waiting lists may slightly overstate demand for housing assistance because a household may be on the waiting lists of multiple PHAs. Nat’l Low Income Hous. Coal. Res. Note #04-03, A Look at Waiting Lists: What Can We Learn From the HUD Approved Annual Plans? (2004), available at http://nlihc.org/sites/default/files/04-03WaitingLists.pdf.
Brian M. Murray *
Jason Lawson[1] is a twenty-five-year-old African American male with a criminal record.[2] He is currently unemployed despite possessing a high school diploma and an associate’s degree from a local, urban community college, which is more higher education than the vast majority of his neighbors.[3] He plans to earn his bachelor’s degree in the evening once he finds steady employment.
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* Abraham Freedman Fellow and Lecturer-in-Law, Temple University, Beasley School of Law; J.D., 2011, magna cum laude, Notre Dame Law School; B.A., 2008, Philosophy and Political Science, summa cum laude, Villanova University. I would like to express my gratitude for the comments of Professor Rick Greenstein and Professor Jennifer Mason McAward while drafting this article. I also would like to extend a heartfelt thank you to my wife, Katherine, for her unyielding support, my daughter Elizabeth, for her inspiring wonder and curiosity in all things, and my entire family, for their unconditional love, continuous patience, and enduring encouragement.
[1]. The following account is a fictional scenario based on the author’s experience as a practicing attorney in both the criminal defense and employment law contexts.
[2]. Mr. Lawson, as an African American male, is sadly somewhat average when it comes to his criminal record. Statistics indicate that disproportionate shares of African American males have some type of criminal record, whether that means a conviction or an arrest record. See Thomas P. Bonczar, Bureau of Just. Stats., U.S. Dep’t of Just., NCJ 197976, Prevalence of Imprisonment in the U.S. Population, 1974–2001, 5–6 (Aug. 2003), available at http://www.bjs.gov/content/pub/pdf/piusp01.pdf. See generally Erica Goode, Many in U.S. Are Arrested by Age 23, Study Finds, N.Y. Times, Dec. 19, 2011, at A16 (noting 30.2% of twenty-three-year-olds surveyed reported having been arrested for “an offense other than a minor traffic violation,” compared to 22% who made a similar report in a 1965 study). This has caused the Equal Employment Opportunity Commission (“EEOC”) to conclude that some employment practices may have a disparate impact on African Americans and Latinos. EEOC Guidance No. 915.002, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964 (Apr. 25, 2012) [hereinafter EEOC, Guidance], available at http: //www.eeoc.gov/laws/guidance/arrest_conviction.cfm.
[3]. Only roughly 20% of African Americans over twenty-five possessed a college degree as of 2010. U.S. Census Bureau, Statistical Abstract of the United States: 2012 151 tbl.229 (2012), available at http://www.census.gov/compendia/statab/2012/tables /12s0229.pdf (statistic under the table titled, “Educational Attainment by Race and Hispanic Origin: 1970 to 2010”).
Carl Tobias *
Marriage equality is sweeping the United States. Across 2014, numerous federal circuit and district court judges throughout America invalidated state constitutional bans or legislative restrictions which proscribe same-sex marriage. Accordingly, it was predictable that Judge Wright Allen of the United States District Court for the Eastern District of Virginia would rule that Virginia’s prohibitions were unconstitutional and enjoin their enforcement on February 13,[1] even as the jurist stayed her decision.[2] Marriage equality in Virginia comprises a significant legal issue and has telling effects on numerous people, but its status remained less than clear until recently. Marriage equality in the jurisdiction deserves analysis, which this piece undertakes.
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* Williams Chair in Law, University of Richmond School of Law. I wish to thank Peggy Sanner for exceptional ideas, Thomas DiStanislao and Katie Lehnen for valuable research, Leslee Stone for excellent processing, and Russell Williams and the Hunton Williams Summer Endowment Fund for generous, continuing support. Remaining errors are mine.
[1]. Bostic v. Rainey, 970 F. Supp. 2d 456, 483–85 (E.D. Va. 2014); see Robert Barnes, Federal Judge Strikes Down Va. Ban on Gay Marriage, Wash. Post (Feb. 14, 2014), http:// www.washingtonpost.com/politics/federal-judge-strikes-down-va-ban-on-gay-marriage/201 4/02/13/c65b7674-9528-11e3-83b9-1f024193bb84_story.html?hpid=z1.
[2]. Bostic v. Rainey, 970 F. Supp. 2d 456, 484 (E.D. Va. 2014).
