By James Esseks, Director, ACLU Lesbian Gay Bisexual Transgender & AIDS Project
This morning the Supreme Court denied certiorari in all five freedom to marry cases pending before it. The ACLU was co-counsel in three of the five cases.
The Supreme Court had previously granted a stay of the decisions by the 4th, 7th and 10th Circuits, which had all ruled in favor of marriage for same-sex couples, but those decisions had been stayed. The Supreme Court’s action this morning means that it will not hear the cases, the Circuit court decisions are affirmed, the stays will be lifted in those cases, and marriages will go forward immediately in Virginia, Wisconsin, Indiana, Oklahoma, and Utah.
This is an amazing victory for loving and committed same-sex couples in these states who now have the freedom and recognition that they deserve.
The Supreme Court’s denial also means that all the other states in the 4th, 7th, and 10th Circuits are now bound by circuit decisions recognizing marriage for same-sex couples. Within those circuits, some states – Illinois, New Mexico, and Maryland – already had marriage equality. But now, North Carolina, South Carolina, West Virginia, Kansas, Colorado, and Wyoming are all bound by these final federal appeals court decisions that hold that it is unconstitutional to exclude same-sex couples from the protections of marriage.
These states are now also constitutionally obligated to respect the marriages of same-sex couples from out of state. That means that in short order, marriages will be happening in those states, and it will bring the number of states with marriage for same-sex couples to 30.
Ultimately, it means that we will soon see marriage in a lot more states. The Supreme Court’s action this morning sends an unmistakable signal that the nine justices are comfortable with the lower court decisions in favor of marriage, and we think that lower courts will read that loud and clear.
The United States has made incredible progress toward embracing full equality for same-sex couples. We’re more than halfway up the mountain, and now the peak is coming into view. At its summit, there’s a flag that reads, “50.” And we won’t stop climbing until marriage equality is achieved in every great state of this union.
With the cost of tuition skyrocketing, you may be wondering why universities are getting mine-resistant ambush-protected vehicles – or MRAPs – which are designed for the battlefield and cost $700,000.
The answer is simple: They don't pay for them. We do.
Through a federal program, Ohio State University received a 19-ton armored truck called a "MaxxPro" last year. It's built to withstand ballistic arms fire and mine fields. And, unfortunately, it isn't the only campus Uncle Sam is helping to militarize. The University of Central Florida got a modified grenade launcher. And the University of Michigan's campus police are attempting to use federal funds to buy military-grade body armor.
Like other police departments, campus security can purchase military equipment through grants from the Department of Homeland Security or Department of Justice, or they simply get the equipment for free straight from the Department of Defense. These federal agencies provide the wartime weaponry and equipment with no training and little oversight, while federal taxpayers pick up the tab worth billions of dollars.
Not surprisingly, the results of this excessive militarization are both tragic and absurd: militarized police aiming rifles at peaceful protestors on the streets of Ferguson, Missouri; a paramilitary SWAT team raiding a house in the middle of the night just to search for drugs; campus police armed with M-14 rifles and full riot gear. Incidents such as these demonstrate that arming police like soldiers makes us less safe by encouraging a policing culture in which law enforcement treats people like the enemy – rather than like those they are supposed to serve and protect.
A militarized campus police at your local college, however, is not inevitable. Under public pressure, some police departments have begun to review the practice of seeking out these federal grants, and some have even opted to return equipment.
But we need to remember that most of the battles militarized police are waging aren't in the dorms or fraternity row. They're happening in communities of color.
The ACLU has already documented the vast disparities by race in the use of militarized police more generally, as police departments across the country have used SWAT teams and no-knock raids to invade homes, often in the middle of the night, just to search for small amounts of drugs. We need reform that goes beyond campus police — we need to reform these programs so that the police aren’t using assault rifles and grenade launchers in our streets and schools.
Students across the country should contact their administrations and tell them they don't need a militarized police force. Getting MRAPs off our campuses would be a great start. But building a movement that gets them off our streets entirely would be better still.
By Brigitte Amiri, ACLU Reproductive Freedom Project
"I'm obviously devastated, and I quite honestly feel physically ill."
This piece was originally published on Cosmopolitan.com
After the Texas legislature passed H.B. 2, a set of anti-abortion regulations so restrictive they were destined to close nearly every clinic in the state, lawyers like Brigitte Amiri, an attorney from the ACLU Reproductive Freedom Project, entered the arena. Amiri represented Routh Street Women's Clinic in Dallas and Houston Women's Clinic in litigation against the first portion of H.B. 2, the medically unnecessary requirement that all doctors performing abortions have admitting privileges to a nearby hospital.
Now, the Fifth Circuit has ruled that the last portion of H.B. 2 – the requirement that all abortion clinics must be built to the same medical standards as an ambulatory surgical center – will go into effect. Only seven or eight clinics are expected to remain open.
Amiri tells Cosmopolitan.com why she fought so hard to keep abortion accessible in Texas, and what happens now that the clinics she's been representing in trial are being told they must shut their doors.
I have been an attorney at the ACLU in the Reproductive Freedom Project for almost a decade. I started my legal career at the Center for Reproductive Rights, so I have been doing reproductive rights litigation for about 13 years. I decided to go into reproductive rights litigation because I wanted to use law as a tool to try to help people and I really felt that the ability of women to decide whether and when to become parents is crucial for women to be equal in society.
I am based in New York, and Texas has been one of my cases. We have been involved in the HB2 litigation, and I was on the trial team for the first challenge to the admitting privileges case. We represent three clinics in Texas, but two of the clinics will be forced to close now that this next provision of HB2, the ambulatory surgical center provision, is allowed to take effect.
I came back from parental leave in July 2013, and these admitting privileges laws had completely taken over the office. We had challenges pending in Texas and Alabama and Wisconsin, so I jumped in where I was needed. Texas is where I was needed.
There is no question that being a parent is one of the hardest things in the world, and everyone should have the ability to make the determination about what is best for themselves and their families in terms of whether to have children. And there is no question that becoming a parent has made me even more committed to doing the work that I do. It is interesting to have had essentially a newborn and be on trial in Texas, fighting for these rights. I was literally pumping breast milk in the courthouse bathroom during trial.
The two clinics that I represent that will be forced to close their doors — they are devastated and outraged. I was hoping I would never have to make a phone call to tell them that the court has ruled and they are being forced to close their doors. Both of these independent clients that I represent have been in operation for more than 30 years. I think they are completely unsung heroes. Nobody really knows about these little clinics, and they have done so much for so many women in Texas. It is absolutely heartbreaking and infuriating that they will have to close their doors because of a politically driven law.
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By Brigitte Amiri, ACLU Reproductive Freedom Project
I had to make a phone call today that I have been dreading my entire career. I had to call amazing abortion clinics to tell them that they must to close their doors after serving Texas women for more than 30 years.
An appeals court just allowed a Texas law to take effect that requires abortion clinics to make medically unnecessary and prohibitively costly renovations. As a result, only eight abortion clinics will remain in the state of Texas, home to more than 5.5 million women of childbearing age. Eight clinics, that’s right, for a population of women greater than the entire population of Colorado or Minnesota.
All other clinics have been forced to immediately shut down, including two of our clients, Routh Street Women’s Clinic in Dallas and Houston Women’s Clinic. These two institutions have valiantly provided the exceptional care to Texas women in the face of never-ending obstacles.
After the first part of Texas’s notorious House Bill 2 took effect after an intense court battle, these clinics managed to stay open when others were forced to close.
In order to see the increasing number of women who called them seeking medical care as other clinics closed, they opened early, stayed late, and did everything they could to care for women who had nowhere else to go. For example, one of the clinic’s owners postponed a vacation to open the office on a Sunday – and called in all the staff on their day off - so they could treat a single woman who had travelled from a far-flung part of the state.
It’s a tragedy for the women of Texas that such dedicated providers have to close their doors.
The clinics and their staff, who have become like family to each other, are truly inspiring. Few people in this country would risk so much personally, enduring routine threats of violence and extreme protests day after day to help other people. How many of us would sign up for a job knowing that we would face constant hostility, and then stay at that job for more than three decades?
These providers have endured this for one reason: their deep dedication to helping women. They understand how important abortion access is to women and their families. We live in a crazy, mixed up world where dedicated providers like these are forced to close their doors.
And for what? I’ll tell you what. Because politicians think they know better than major medical organizations, like the American Congress of Obstetricians and Gynecologists, who oppose such ridiculous requirements because they do not make patients safer.
Abortion is already extremely safe. 99 percent safe, according to the Centers for Disease Control. No other type of clinic is required by law to meet these hospital-like requirements, which have little to do with patient safety and dictate the smallest detail, such as the size of the storage room and janitor closets.
Making that call today broke my heart. But as upset as I am, I know that those dedicated abortion providers are hurting even more.
This is their passion, their family, their life’s work. They are devastated and enraged that they are forced to stop helping women. I salute them for providing compassionate care to women for decades. They are unsung heroes, who I am honored to have had the chance to work with them. And I can only hope that justice will prevail eventually and that they will be able to go back to providing high quality care that women need and deserve.
By Michael Tan, Staff Attorney, Immigrants' Rights Project, ACLU
This week, the United States sent a clear message to the state of Arizona: Let the Dreamers drive.
In a friend-of-the-court brief filed in the U.S. Court of Appeals for the Ninth Circuit, the United States urged the Court to affirm its decision from this summer invalidating Arizona’s ban on granting driver’s licenses to young immigrants who came to the county as children as unconstitutional.
To recap how we got here: Arizona’s driver’s license ban reflects state officials’ rejection of the Obama administration’s decision two years ago to authorize Dreamers to live in the country and grant them work permits under the Deferred Action for Childhood Arrivals (DACA) program. In August 2012 – the first day the federal government began accepting DACA applications – Arizona Governor Jan Brewer issued an executive order announcing that the state would continue to view Dreamers as illegal immigrants and deny them driver’s licenses on this basis.
The ACLU and its allies filed suit on behalf of the Arizona Dream Act Coalition and individual Dreamers challenging Arizona’s policy as unconstitutional. In May 2013, district court judge found that the policy likely violated the Equal Protection Clause because it singled out Dreamers for discrimination. But rather than abandon its policy, Arizona doubled-down on discrimination by denying even more immigrants licenses, including the survivors of domestic violence and victims of serious crimes.
The effects of this ban have been devastating. In a state with average highs of over 100 degrees in the summer and limited public transit, Arizonans have to drive to live their daily lives. Indeed, more than 87 percent of Arizonans commute to work by car. And yet as a result of Arizona’s policy, about 21,000 Dreamers have been banned from the roads.
This past July, the Ninth Circuit finally held that Arizona’s policy violated the Equal Protection Clause. And yet even now, Arizona has refused to abide by the ruling, instead asking the court to reconsider its decision, while making Arizona taxpayers foot the bill for their lawyers.
The United States’ brief filed this week, urged the court to affirm its decision. It’s reasoning was simple: Arizona may have decided for itself that Dreamers are “illegal” immigrants and thus ineligible to drive. But under federal law, Dreamers have been authorized to live and work in the country through the federal DACA program. Because Arizona has no authority to decide who is and isn’t allowed to live in the country, its policy must be struck down.
Fortunately, unlike Arizona, most of the country has gotten with the program. Forty-eight states have decided to let the Dreamers drive; only two – Arizona and Nebraska, where the ACLU has also filed suit – have opted to exclude them. The United States’ brief is an important reminder to the minority of states that have not welcomed Dreamers that they have no place discriminating against people in the face of federal action.
As the Obama administration looks toward new executive action on immigration before the end of the year, we hope that all states reject Arizona’s path of discrimination and welcome the immigrants who already are a part their communities.
By Eric Balaban, ACLU National Prison Project
It took a nurse observing a man “eating chunks [taken out of his cell wall]” before he was moved out of solitary confinement.
The man was schizophrenic, and in the time leading up to this incident, the jail threw him in solitary and denied him the treatment he had been given by the county’s own community mental health system.
Corrections officers opted to deal with another woman, who was pregnant and suffering from a psychotic episode, by shooting her with a Taser. The voltage endangered her life and her pregnancy.
For the people of Maricopa County, simply being arrested and put in one of the county’s jails means risking lasting injury or even death. Close to 5,000 people trapped in the jails are all being held pre-trial, meaning none of them have even been found guilty of a crime. And yet they are all at grave risk because of the culture of cruelty and life-threatening lapses in medical care that have characterized the jail for at least the last 20 years.
Watch the trailer at JoeShowDoc.com.
This isn’t constitutional. And over five years ago, federal judge Neil Wake placed the jail under federal oversight and ordered the county and Sheriff Joe to fix their dangerously substandard system. But that order fell on deaf ears, as men, women, and children at Sheriff Joe’s jail have continued to suffer and die. A female detainee who reported a history of cardiac problems and who said she was suffering chest pain was not examined by a physician despite her complaints. Instead of receiving legally mandated care, she died hours later. Two other prisoners died of complications from inadequate treatment for alcohol withdrawal.
This continuous neglect is unacceptable. And it’s time for those in charge of the Maricopa County jails to stop skirting their constitutional responsibilities.
Last year, the county tried to get out from under the federal oversight Judge Wake ordered in 2008, claiming that it had done what is necessary to care for detainees’ mental and physical health. Not so fast. We opposed this move, and this week Judge Wake issued a scathing 66-page decision finding that the jails continue to provide detainees with inadequate medical and mental health care. He ordered the jail to remain under federal oversight until it can meet constitutional standards.
Sheriff Joe and Maricopa County shouldn’t be able to get away with this abuse and neglect any longer. Our legal victory moves us toward that goal. You can help keep the pressure on by watching The Joe Show, which opens today. It’s a documentary eight years in the making and exposes the sheriff and his reign of cruelty.
Enough preventable suffering. Enough unnecessary death.
By Matthew Cagle, Volunteer Attorney, ACLU of Northern California
Wednesday the ACLU, along with a coalition of partner organizations, went to Facebook to urge it to fix a flawed policy that requires users to speak in a voice other than the one they prefer.
Facebook’s current “real name” policy requires users to display the name featured on a formal piece of identification when they speak to the world on the platform. By conditioning user speech on the use of an identity preferred by Facebook, this policy raises free speech concerns. These concerns are particularly acute for some users, including transgender people with government IDs not matching their preferred name and domestic violence survivors who choose a pseudonym to protect themselves and their privacy.
More than a billion people rely on Facebook to communicate and connect with friends, family and their communities. And too often, people find themselves silenced for allegedly breaking a company rule and left without meaningful recourse. That’s what happened this past month when enforcement of the name policy had the effect of blocking many in the LGBTQ community from using the social network.
During Wednesday’s meeting, Facebook apologized for the harm that the current policy has caused users, especially those in the LGBTQ community, and promised to improve its reporting, enforcement, and appeals processes. This is an important first step, but there have not been any policy changes yet. We will be watching Facebook to ensure the company puts its resources where its mouth is and follows through with real policy changes.
Yet this discussion is about more than “real names.” It’s about Facebook’s responsibility to take the necessary steps to ensure all users are treated in a fair and transparent manner. Previously, the inconsistent application of Facebook’s “community standards” has taken down other content including photos of two men kissing, a nursing mother, and even a cancer survivor. In another more ironic example of how these standards were enforced, the ACLU even had its own content improperly censored by Facebook.
In that case, the ACLU had the means to reach out to Facebook and quickly get the content restored. But for the many users whose profiles are suspended for allegedly violating the names policy or community standards, the lack of a meaningful appeals process means they often end up silenced. That’s why the coalition reminded Facebook that policies and processes that reduce discriminatory targeting and improper silencing of user voices are essential.
For many Facebook users, a real name is the one they prefer to speak with – even if that does not match a formal ID. Facebook is beginning to recognize this reality. Unfortunately, many users still remain locked out of their accounts or are being forced to display a name other than the one they prefer and that may raise safety risks. It’s time for Facebook to change its policy and procedures to give users meaningful free speech and due process rights on the platform.
A version of this post originally ran on the blog of the ACLU of Northern California
By Hugh Handeyside, Staff Attorney, ACLU National Security Project
Update (10/3/14): The federal judge decided in court today that our clients will be notified by January whether they are on the No Fly List or not. Those who are still on the list will also be told why, so they can challenge their placement.
The procedure for challenging bans on air travel was deemed unconstitutional three months ago by a federal judge – but it's still in place.
Although the government has committed, in a lawsuit brought by the ACLU, to revamping the process for challenging inclusion on the No-Fly List, critical questions remain unanswered. We still don't know whether the new system will satisfy due process requirements, why the government has barred our clients from flying, and when they will have their long-awaited opportunity to clear their names and see their rights restored. We will be in court tomorrow seeking answers to these and other questions.
In the landmark ruling striking down the government's system for challenging inclusion on the No-Fly List, the court didn't pull any punches. The system, the federal court in Oregon concluded, "falls far short of satisfying the requirements of due process" and is "wholly ineffective." Without proper notice of the reasons for inclusion on the list and an opportunity to contest those reasons, the court said, "an individual could be doomed to indefinite placement on the No-Fly List."
That's precisely our clients' experience.
The court set out the basic requirements for remedying these constitutional violations, and it asked for input from us and the government on the specific steps that should now be taken. In two court filings (here and here), the government said it wanted to devise new procedures on its own, adding that it would "endeavor to increase transparency" for people who are denied boarding on flights and believe they are on the No-Fly List. It asked the court to send our clients' cases back to the government for reconsideration under the yet-to-be devised new procedures.
There are several problems with this proposal. As we argued to the court, the government shouldn't be given a free hand to replace a process that the court has found so grossly deficient. It makes little sense for our clients to go through a time-consuming new redress process if that process doesn't meet the requirements of the Constitution. It's also not enough for the government to simply "increase transparency"; it must stop violating our clients' rights and fully and quickly comply with the court's order.
We have good reason to think that the government won't adequately fix these problems on its own. Since the court issued its order in June, we've learned more about the government's broken watchlisting system. The National Counterterrorism Center's leaked Watchlisting Guidance shows that the government's standards for placing people on various watchlists are ambiguous, overbroad, and shot through with exceptions. It's no surprise that the number of people the government watchlists has sky-rocketed, or that the rate at which the government targets members of religious and other minority groups is disproportionate in the extreme.
Our clients filed their case over four years ago, and they're still waiting for a chance to clear their names and get off the No-Fly List. As the court stated in its June ruling, "Due to the major burden imposed by inclusion on the No-Fly List, Plaintiffs have suffered significantly."
We'll be pressing for them to receive soon what the Constitution requires: notice of the basis for their placement on a blacklist that has had devastating consequences for their personal and professional lives, and a meaningful opportunity to challenge it.
By Jennifer Dalven, Reproductive Freedom Project
Picture this: You are 17 years old, in your senior year of high school, and you've just learned you're pregnant. You'd like to be able to turn to your parents for support but you know you can't. After all, they kicked your older sister out of the house when she got pregnant. But you have discussed your options with your aunt and a trusted counselor and decided to have an abortion.
You call a women's health center to make an appointment and are told that unless you get your parent's consent, you will have to go to court and essentially be put on trial in order to get the care you need.
That's right. Instead of a doctor, you get a trial.
Thanks to a new Alabama law, a teen who can't get a parent's consent has to undergo a gauntlet of questioning to get the abortion she needs. Because of this law, a prosecutor and a representative for the fetus, both of whom are charged with protecting the "state's interest in fetal life," (a.k.a. making sure the teen doesn't get an abortion), will cross-examine her.
That isn't even the half of it. In their quest to ensure that the teen can't get an abortion, the new law allows the prosecutor and fetus's representative to tell other people in the young woman's life -- including her teachers, pastor, employer, relatives, and friends – that she is pregnant. And to haul them in to court to testify against her.
No, I am not kidding.
Now, we all want our daughters to come to us if they get pregnant, and thankfully most do. But we all know that, unfortunately, some just can't. Some teens don't come from good families, and some teens don't come from safe homes. Putting these teens on trial is not the answer. The cruel irony of this law is that it means teens from troubled families, those who need our help and support the most, will struggle the most to get it.
I have been working for almost two decades to ensure that teens like these are able to get the medical care they need. In all that time, I don't think I have ever seen a law aimed at young people as misguided and mean spirited as this one. That's why I am proud to say that this week the ACLU went to court to challenge it. We did it because not only is it wrongheaded and dangerous, the new law is also flat-out unconstitutional.
The Supreme Court has made clear that if a state decides to require teens to get a parent's consent to get an abortion, it must also have a confidential and expeditious alternative for those teens who can't turn to a parent. In passing this law – which allows the prosecutor and a representative for the fetus to tell anyone they want about the minor's pregnancy – Alabama politicians snubbed their nose at this long-standing constitutional requirement and thoroughly eliminated any expectation of privacy.
And worse than that, they have put young women in harm's way, creating a situation that might force them to take matters into their own hands. Given what we have seen the last few years, I suppose I shouldn't be surprised. In state after state, from Texas to Ohio to Wisconsin and so many others , we have seen extremist politicians who are willing put women's health in jeopardy all to score political points. This is one more example of that.
We all want teens to be safe, but this law is cruel, dangerous, and unnecessary. To protect the young women of Alabama, we can't let it stand.
By Lee Rowland, Staff Attorney, ACLU Speech, Privacy & Technology Project
It's a dark day for Oklahoma. That metaphor is particularly apt this week, as the Sooner State just redoubled its commitment to keeping capital punishment in the shadows by hiding its lethal injection process from public view and oversight.
Five months after Clayton Lockett's horrifically botched execution and the state's promise to investigate and improve its execution process, the government responded yesterday with a brand-new "execution policy" that only makes it more difficult for the public to know anything about how the government is carrying out the ultimate punishment. No need to read between the lines – the state has listed explicit measures to deepen the mystery surrounding lethal injection and keep the public at bay.
The policy slashes the number of media witnesses allowed to attend an execution from 12 to 5, and it expressly reserves the right to regulate their access on the fly. Even crazier, the policy gives the state the power to close the execution viewing curtain on a whim, and to remove witnesses – as state officials see fit.
"The government took a process already corrupted by secrecy and made it even more difficult for the public to know anything about it," said my colleague Ryan Kiesel at the ACLU of Oklahoma. That's exactly right – and it's a shameful truth that gives the lie to the state's continual references to the ideals of transparency.
We remember how the state responded to Lockett's botched execution on April 29 – with more secrecy. The new execution policy, and its reduction of public oversight, will only increase the likelihood of more cruel and unusual deaths at the hands of the state.
That day, state employees began the execution by repeatedly attempting to insert intravenous lines into Lockett's body. According to the state-commissioned autopsy report, they punctured Lockett in his arms, legs, feet, and neck more than 15 times before settling on a vein in his groin. On its own, that qualifies as barbaric and cruel.
But it got worse.
The physician supervising the process announced that Lockett was unconscious and ready to be injected with the two lethal drugs that would actually kill him. Unfortunately, these drugs cause excruciating pain if the recipient is conscious – and Lockett was. Witnesses reported that he began displaying obvious distress: twitching and mumbling. Prison staff reacted by immediately shutting out the press by closing the shade that provided witnesses with a view of Lockett. Twenty minutes later, the execution was "called off," and 10 minutes thereafter Lockett died, his last moments seen by no one except state officials.
It is sad and wrong that in response to evidence that Lockett's lethal injection was cruel and unusual, Oklahoma literally cloaked its execution process in secrecy. Unfortunately, it's now clear that response wasn't an aberration.
Joining with the ACLU of Oklahoma, we filed a lawsuit on behalf of reporter Katie Fretland and two news organizations, The Guardian and The Oklahoma Observer. We argued that under the First Amendment, the state of Oklahoma was prohibited from providing only this form of censored access to executions, showing just the noncontroversial parts. The Constitution, and Oklahomans, deserve better.
In September, the state filed a brief in our case, fiercely defending its right to shroud the death penalty in total secrecy. The state (really) made the following breathtaking statement in its filing with the court: "press or public access to executions does not play any particularly positive role." Wow.
Well, we can think of some good that came out of the Lockett witnesses' presence. For example, how about the fact that the state's official timeline of the execution makes no mention of Lockett's consciousness during the lethal injection procedure? That inconvenient truth emerged only from reporters – who were, fortunately, able to share what they observed before the state scrambled to lock down the botched process. But according to the state, we should just trust that it's telling the truth – and killing people humanely – based solely on its own reports.
The state's brief attracted the media's attention, and for a moment it seemed that the state attorney general was backing away from his own office's filing in the case. He told reporters: "Media involvement [in executions] is important for many reasons, not just constitutional, but to make sure the public is fully informed."
But that nod to transparency was short-lived, and it certainly didn't make it into any official documents or legal filings. On the contrary: Yesterday the state, unbelievably, doubled down.
It is shocking that the state would respond to a seriously flawed execution by making future executions less transparent and less accessible. But Oklahoma has made it perfectly clear it would like to exercise its greatest power – ending a human life – without the pesky oversight of the taxpaying public.