I. INTRODUCTION
Maia and Ajay are both immigrants from Puerto Rico, an American territory. Their rights have been violated in light of Maryland’s new laws that have been passed due to extenuating circumstances that the state is experiencing. With that being said these couples’ 14th Amendment rights have been violated. The goal of this memo is to outline specific issues the client is experiencing and how to approach this case for the desired outcome of restoring these rights and winning if the case is brought to court.
II. FACTS
The state has decided to introduce two new laws. The first being that all immigrant women must undergo purity testing, this being synonymous with virginity testing, and they must do this before they are to receive state IDs. The second law being that all Baltimore County residents must have a negative drug test before they deliver a child or adopt a child, if the person does not follow the law they will have a criminal offense.
Both Maia and her husband Ajay, who is transgender are immigrants, Maia from Puerto Rico which is a U.S. territory, and Ajay from Pakistan (making them both U.S. citizens). Maia and Ajay’s immigration status comes up later when their first lawyer, Dena Sanger, refuses to take the case arguing that it does not have standing.
For Ajay to receive his Driver’s License he was obligated to take a reproductive purity test, or a virginity test (violates 14th Amendment). Due to Ajay being transgender and identifying as male, he was refused service has reproductive purity tests are only viable for women. When going to another gynecologist who would perform the test Ajay was then subjected to a drug test because he disclosed that he was pregnant and intended to carry the child. Per the second new law introduced, Maia was also subjected to the implications of this law as she intended to adopt the child that Ajay was carrying.
Both Maia and Ajay came back as having positive drug tests for marijuana. Ajay’s test results were sent to law enforcement without consent from Ajay. Resulting in Ajay getting arrested and being charged with “drug distribution to a minor” the implications of the arrest led Ajay to miscarry. Maia was coerced by her gynecologist in getting her tubes tied, for her drug test to not be sent to law enforcement. While the procedure of getting her tubes tied was performed the gynecologist decided to cut her tubes instead, this meaning that the procedure was irreversible. Leaving Maia not be able to have children.
Both Maia and Ajay’s experience is a common occurrence within minority communities.
III. ISSUES/CLAIMS
DOES THE CLAIM HAVE STANDING?
When Maia and Ajay went to their first lawyer Dena Sanger, they were refused service under the guise that they had no standing to argue in court because they were not legal citizens of the United States. Further, the comment that followed after this statement was that Sanger believed that Ajay and Maia should not procreate. As both Ajay and Maia are legal citizens and have a right to argue for their rights in court, this implicates Sanger's eugenists’ comment. This is the true reason why Sanger refused their service has to do with their race and the fact that she believed that they should not procreate.
THE NEWLY INTRODUCED MARYLAND LAWS ARE UNCONSTITUTIONAL
Both laws introduced the first being that all immigrant women must undergo purity testing before they are to receive state IDs. The second law being that all Baltimore County residents must have a negative drug test before they deliver a child or adopt a child, if the person does not follow the law they will have a criminal offense. These laws infringe upon the commonwealths Fundamentals rights of privacy, familial relations, Procreation, Contraceptive, and Private Sexual Conduct. For the second law specifically, this infringes upon the 4th Amendment. As proven through Ferguson v Charleston.
DO HEALTH SERVICES HAVE A RIGHT TO REFUSE HEALTHCARE TO TRANSGENDER PEOPLE?
Per the new Maryland law introduced Ajay was required to take a reproductive purity test and was refused service because he is transgender. Though Ajay has a vagina he was refused the reproductivity test because he identifies as male. Thus violating the 14th Amendment Equal Protection Clause. Ajay was not granted his right to healthcare simply because of how he was identified. This being covered in Kantaras v. Kantaras, and Section 1557 of the Patient Protection and Affordable Care Act.
CAN YOU SUBJECT A PATENT TO A DRUG TEST WITH THE INTENT TO DISTRIBUTE THE RESULTS AMONG OTHER PARTIES, I.E. LAW ENFORCEMENT?
Both Maia and Ajay were subjected to take a drug test as they both intended on welcoming a new child into their home, per the new Maryland law introduced. As they both came back with positive drug tests for marijuana, both of their tests were threatened to be shared with third-party law enforcement and being threatened with criminal offenses. This is a direct infringement per the 4th Amendment as proven through Ferguson v Charleston. As for the positive drug test received for marijuana, it has been decriminalized per Maryland law meaning neither party should be threatened with a criminal offense. Even if results were obtained legally.
CAN YOU COERCION SOMEONE INTO GETTING THEIR TUBES TIED AND THEN STERILIZE THEM INSTEAD?
As a result of Maia’s positive drug test, she was coerced by her gynecologist into getting her tubes tied, for her drug test to not be sent to law enforcement. While the procedure of getting her tubes tied was performed the gynecologist decided to cut her tubes instead, this meaning that the procedure was irreversible. Leaving Maia not be able to have children. Thus going against Maia’s 14th Amendment Fundamental rights under the Due Process and Equal Protection clauses as argued in Buck v. Bell.
IV. ANALYSIS
DOES THE CLAIM HAVE STANDING?
All immigrants legal and illegal have a right to argue for rights in court, this meaning that even if Ajay and Maia were not citizens of the United States they have legal rights. Per Sanger’s argument that Ajay and Maia have no standing in court this is simply untrue and ignorant. Sanger is simply just a eugenicist based on the statement that she stated she believed that both Maia and Ajay should not be allowed to procreate.
Per the Jones-Shafroth Act passed by congress in 1917, this granted legal citizenship to all the citizens of Puerto Rico. As this is written through law any claims to label both Maia and Ajay as immigrants are factually ignorant.
Gonzales v. Williams:
This case relates on the basis that both Gonzales as the case describes and Maia are natives to Puerto Rico, thus making them part of the commonwealth of Puerto Rico and The United States. Gonzales v. Williams has set precedent to cease labeling US territories as alien immigrants.
Issue: Are citizens of Puerto Rico alien immigrants as they have been naturalized to the land?
Analysis: Immigration Act of 1891- focused on enforcement mechanisms dealing with alien immigrants, this pertaining to Isabell Gonzales as she was detained at the port as it was feared she might become a public charge. Specified the standing for immigrants who arrived from countries other than China.
Decision: It was decided that Gonzales was herby a US citizen, as a result, Gonzales advocated for citizenship for all citizens of Puerto Rico.
ARE THE NEWLY INTRODUCED MARYLAND LAWS CONSTITUTIONAL?
Subjecting immigrants to purity testing before they receive state IDs infringes on people's rights to bodily autonomy which is synonymous with fundamental rights protected under the 14th Amendment. As the first Maryland law is specifically geared towards immigrants it might be argued that this is legal because they do not have the luxury of protection under the constitution. In all actuality, immigrants are granted rights under the Bill of Rights (first 10 amendments) and the 14th Amendments Due Process and Equal Protection clauses. This means that immigrants are granted fundamental rights under the 14th Amendment.
Specifically for the second newly introduced law, receiving a negative drug test before delivering or adopting a child directly infringes on the 4th Amendment as argued in Ferguson v. Charleston. Per the dissenting opinion of this case, Justice Anthony Scalia argued that once an individual gave up a bodily fluid, in this case, their urine, was seen as no longer being a part of them, this meaning that it was free to search and do with as someone pleased, this including handing the urine over to the cops.
Fundamental Rights Infringed Upon:
These rights are protected under the Fourteenth and Fourth Amendments as “fundamental rights of privacy” Written within the Fourteenth Amendment it is stated “nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”. The clauses highlighted here being the equal protection clause notably affording privacy as a right, and the equal protection clause which requires states to govern impartially.
Familial Relations- by subjecting people to take drug tests before they are to give birth to a child or adopt a child you, therefore, infringe on the rights of individuals to have familial relations. If the drug test comes back positive these people are threatened with drug charges that might affect the health of the child or whether they can adopt a child.
Procreation- As was seen in the facts both Maia and Ajay have lost their child due to the stress of the current circumstances. Due to the laws imposed against them, Maia was unknowingly sterilized because of her positive drug test.
Contraceptive- As the second law implicates the de facto reality of this law is that it causes Maia to be unlawfully sterilized. This meant that a contraceptive was forced upon her first through cohesion then through forced sterilization.
Private Sexual Conduct- Virginity tests, or reproductive purity tests infringe upon the fundamental right to private sexual conduct. What people do with their bodies, whether they have or do not have sex it is private. By requiring someone to undergo a virginity test it is a direct violation of this right.
Decriminalization of Mariguana:
As marijuana has been decriminalized the maximum fee for someone who has been found with marijuana on their person is subjected to a 100$ fine. As both Maia and Ajay have only tested positive for marijuana in their system this fine does not apply.
Ferguson v. Charleston:
The second newly introduced law mirrors that of the practice of Policy M-7 which was practiced within state hospitals as outlined by Ferguson v. Charleston. This being the case it is pertinent to see how the case played out.
Issue: Can state hospitals perform diagnostics tests to obtain evidence of a patient’s criminal conduct for law enforcement purposes? Is it an unreasonable search if there is no consent given by the patient? Does this violate the Fourth Amendment?
Analysis: POLICY M-7 made it so a patient should be tested for cocaine through a urine drug test, this fell in line with the hospital’s “identify/assist” policy.
Fourth Amendment: the searches were stated to have not been done by the medical university, if that was the case the searches would have not impeded against Fourth Amendment rights of prohibited unreasonable searches and seizures. The only reason as to why the Fourth Amendment was deemed to be implicated is because the police came in and because positive drug tests were being shared with law enforcement. These actions are interpreted as an infringement upon the Fourth Amendment.
Decision: The court decided in a 6-3 opinion delivered by Justice John Paul Stevens, that the diagnostic tests constituted an unreasonable search if no consent was present. If no consent was present the only way to get around this would be through a valid warrant.
DO HEALTH SERVICES HAVE A RIGHT TO REFUSE HEALTHCARE TO TRANSGENDER PEOPLE?
14th Amendment Equal Protection Clause:
The Equal Protection clause dictates that no state shall… “deny to any person within its jurisdiction the equal protection of the laws.” This means that anyone with similar circumstances must be subjected to the same treatment. Anyone who desires access to healthcare is or requires it should therefore be granted the same service exclusive of their gender identity or their sex that was assigned at birth.
A common argument against this might entail a similar result found from the state in Loving v Virginia. A concurring argument would be that transgender people are all subjected to the same treatment. An argument to counter this would be to argue that all people regardless of gender identity or sex assignment should be subjected to the same treatment regardless of race, sex, or socioeconomic status. Within Loving V Virginia it was found
Loving v. Virginia:
Though transgender healthcare and interracial marriage do not overlap, they both mirror lingering implications of societal ideology present at their respective times. What can be taken from Loving v. Virginia is how the 14th Amendment’s Equal Protection clause has been interpreted to provide a standard that all are rewarded equally not punished equally. Providing this logic to Ajay’s case is not receiving healthcare this can then be interpreted for argument’s sake that he is entitled to healthcare as cis-gendered people are.
Issue: Is it constitutional that the State of Virginia prevents interracial marriages through the classifications that are outlined within the 14th Amendment Due Process and Equal Protection clauses?
Analysis: The 14th Amendment was used, particularly the first section describing the Due Process of Law, and Equal Protection under the law. The couple’s marriage was seen as null due to Virginia state laws banning interracial marriage, but federal law overrides state law. The Equal Protection clause in past cases was used to punish all races equally, in this case affording privileges such as marriage to all equally. The previous court saw the equal protection clause to mean that all are punished equally, but as this has been reversed it has no standing. Equal Protection now meaning, punished equally and rewarded equally.
§ 258; The Lovings were convicted of breaking this code under the circumstance of which they married being out of state to avoid the states marriage laws; this itself is used as a deterrent from performing the union in the first place.
§ 20-59 states that couples living together are evidence of their union, this was applied in proving that the Lovings have gotten married.
§ 20-57 is the state law stating that marriage between a person of color and a white person is deemed illegitimate in the state of Virginia, as soon as the Lovings stepped on to Virginia soil their marriage was no longer. Furthermore, this didn’t allow for interracial couples to have the benefits of marriage under the law.
§259 states that any interracial couple who participates in the union of marriage can be sentenced to five years, given that the Lovings were living together, were married out of state, it is this law that makes it that they have to serve time.
§§ 20-54 and 1-14 which define who is and is not considered a person of color, detrimental in deeming who is and who is not married.
Decision: Laws banning interracial marriage are unconstitutional under the Equal Protection and Due Process clauses within the 14th Amendment.
Kantaras v. Kantaras:
This case remains relevant based on the type of people who are involved within the case and how this decision has affected the trans community. As Ajay is a trans person he is affected by the outcome of this case as it argues for his parental rights. As this relates to healthcare this begs the question in a similar fight, of whether or not trans people are entitled to the same rights as cis-gendered people. Kantaras v. Kantaras argues for parental rights while this specific case has the ability to argue for fair treatment and access to healthcare.
Issue: Can a trans person have a valid marriage with someone who is of the same sex assigned at birth?
Analysis: § 741.04(1), Fla. Stat. (1987) Flordia Law that Bans Same-Sex Marriage- This argument became invalid as Michale was legally seen as a male of the time of the marriage thus meaning that his adoption of Linda’s son was valid under Flordia state law.
§ 741.212, Fla. Stat. (Supp.1998)- in general, no matter where you are to participate in same-sex marriage as long as you live or are in Flordia you are legally not married.
Michale was perceived as a male by family, friends, and Linda for the most part. And underwent hormone therapy as well as a full sexual reassignment surgery.
Decision: Michale was legally male at the time he married Linda, this meaning that their marriage was legal.
Section 1557 of the Patient Protection and Affordable Care Act
A part of the Affordable Care Act, Section 1557 is intended to protect all people from discrimination based on race, color, national origin, sex, age, or disability in certain health programs or activities. This extension to the previous laws enacted to protect against discrimination includes an added protection pertaining to funded healthcare through HHS programs, as well as discrimination as it has to do with affordable access to healthcare. Other anti-discriminatory laws that the government has in place include; Title IX of the Education Amendments of 1972, Title VI of the Civil Rights Act, Section 504 of the Rehabilitation Act of 1973, and the Age Discrimination Act of 1975.
CAN YOU SUBJECT A PATENT TO A DRUG TEST WITH THE INTENT TO DISTRIBUTE THE RESULTS AMONG OTHER PARTIES, I.E. LAW ENFORCEMENT?
Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy:
The article takes more of an intersectional approach on how women of color have been subjected to being drug tested while being pregnant and from here being threatened with the implications of law enforcement. While Ajay is not a woman he has still been subjected to the same implications that this article outlines. As he is an immigrant man who is pregnant and considered a person of color. Though this does not cross the same facets of intersectionality the implications are similar because of what he lacks with gender identity being the same, he is not cis-gendered. This is in itself another facet of oppression along with the oppressors that come along with being an immigrant/ person of color.
4th Amendment:
Makes it so that no person is subjected to unreasonable searches and seizures and requires any search warrant to be administered by a judge and supported by probable cause. Because no warrant was present at the time that Ajay’s drug tests were shared with law enforcement this means that Ajay’s 4th Amendment rights were infringed upon.
Decriminalization of Marijuana:
Both Maia and Ajay were found to have marijuana in their systems, as this is decriminalized in the state of Maryland this makes the law to be moot.
Ferguson v Charleston:
The case as briefed above in Analysis Section II mirrors similar circumstances that Ajay has been subjected to. Here the case outlined (Ferguson v. Charleston) argued whether or not it was viable for state hospitals to perform diagnostics tests to obtain evidence of a patient’s criminal conduct for law enforcement purposes. Is it an unreasonable search if there is no consent given by the patient? Within Ajay’s circumstances, he was subjected to take a drug test that resulted in hospital staff sharing his positive drug status amongst law enforcement which resulted in Ajay being criminally charged with “distribution of drugs among minors” as Ajay was pregnant. As the arguing issue and the circumstances among the two cases are eerily similar Ferguson v. Charleston should be the main case looked at, as it sets a precedent for the issue at hand.
Within the arguments of the Ferguson case, it was argued that the sharing of drug test results with law enforcement is a direct infringement on Fourth Amendment rights as it is to be considered an unwarranted search and seizure of a person’s bodily fluid. Ajay was not expecting his urine to be seized by law enforcement and was unaware of the implications that would arise from it. This further implies that because no consent was present within the search or sharing of information this would mean that there is no valid warrant.
In the dissenting opinion, the main argument outlined being that since a person’s urine is not directly a part of someone it is not protected under the 4th Amendment.
CAN YOU COERCION SOMEONE INTO GETTING THEIR TUBES TIED AND THEN STERILIZE THEM INSTEAD?
The main argument that the defense will try to prove is that coercion is subjective, as everything is seen through shades of grey. This will be your biggest challenge in getting the court to accept the first piece of this sterilization being; how Maia was convinced to get her tubes tied in the first place. With this, your best bet would be to directly outline the definition of coercion and give a detailed analysis as to how Maia was coerced. With this, it will be important to highlight how this is a common occurrence as stated by Maia and Ajay’s neighbor.
Coercion- “Coercion is compelling a party to act in an involuntary manner by use of threats, including propaganda or force.” Maia was threatened by the law with a criminal offense, for her to not have her test sent to law enforcement she had to agree to the procedure of getting her tubes tied, while this procedure was ongoing it was decided for her to just fully sterilize her.
Buck v. Bell:
Issue: Is the sexual sterilization of inmates a violation of the Fourteenth Amendment under equal protection and due process clauses?
Analysis: The 14th Amendment allows for the protection of fundamental rights under the due process and equal protection clause. As the plaintiff was perceived as feeble-minded her rights were being stripped from her. It was interpreted that because there was a hearing before the sterilization of Buck no Due Process was violated in the process, and because these sterilization practices were only limited to people housed in state institutions the equal protection clause was interpreted to not have been breached.
Decision: The state supreme court’s ruling was upheld by the United States Supreme court, meaning that these practices were constitutional and did not violate both the equal protection and due process clauses.
Fundamental Rights:
These rights are protected under the Fourteenth and Fourth Amendments as “fundamental rights of privacy” Written within the Fourteenth Amendment it is stated “nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (Fourteenth Amendment Section 1) The clauses highlighted here being the equal protection clause notably affording privacy as a right, and the equal protection clause which requires states to govern impartially.
Contraceptive- Everyone has the right to take or not to take contraceptives because both the contraceptives the process of “getting tubes tied” and the complete sterilization was forced upon Maia this infringes on Maia’s right to choose and own her body. Specifically, in relation to contraceptives, contraception was being forced.
Procreation- As the sterilization was forced upon Maia through coercion and then forced sterilization, this resulted in Maia unknowingly becoming sterile, resulting in Maia not being able to procreate as a result.
Reorienting the South Asia Body:
In the guise of forced sterilization, Southeast Asian women have been subjected to virginity tests, as both the virginity tests and forced sterilizations are invasive this causes trauma as well as in this case, the stealing of these women’s “virginities''. Forced virginity testing resulted in The Contagious Diseases Act in the late 1800s. Within the US today there are no laws banning virginity testing as it still goes on as seen through this case. The implications that these women were subjected to are concurrent with and are what are to be considered human rights abuses. Within the article, the focus takes an intersectional approach on how virginity testing crosses the facets of gender and race much like this case.
V. CONCLUSION
This case crosses multiple facets from the umbrella of eugenics-based legislation to discriminatory actions based on healthcare in the United States healthcare system, and implications arising with law enforcement. Further research into similar cases surrounding reproductive justice as it relates to virginity testing, sharing drug tests, and sterilization needs to be further investigated as these are major implications and experiences that these people have been subjected to. This means investigating the 14th Amendment, the 4th Amendment, the Affordable Care Act, The Civil Rights Act, and other anti-discriminatory laws.
The case covers the binary of de facto-de jure law, as the main argument is based around the two newly introduced Maryland laws, the reality is that people have acted upon this at their own will as well, through eugenic comments and refusal to serve our client by Dena Sanger, and the forced sterilization and coercion by Maia’s gynecologist (de facto law). These actions are a direct result of the two Maryland laws that were introduced (de jure law). The best bet with this case, in particular, is to focus on the two newly introduced laws as this will likely limit the power that individuals have to act off of Maryland's new laws. For how individuals have treated Maia and Ajay this should still be focused on but should be the main argument of another suit.