Harvard Law & Policy Review

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Restoring the Right to Seek Asylum: The Case for Rescinding Removal Orders Issued Under the “Remain in Mexico” Policy

By Haiyun Damon-Feng*

In January 2019, the Department of Homeland Security (DHS) began implementing the inaptly named “Migrant Protection Protocols” (MPP), often referred to as the “Remain in Mexico” policy. MPP is a coercive, inhumane, and likely unlawful U.S. immigration policy that marked a stark departure from U.S. asylum law and procedure. Asylum is a humanitarian protection available to people fleeing persecution in their home countries, including people who have suffered severe violence and threats of death on account of their religion, sexual orientation, gender, or political beliefs. The right to seek asylum is enshrined in U.S. immigration law and in U.S. commitments under international law. As a general matter, any individual physically in the United States is entitled to seek asylum, regardless of how or where they entered the country, and may remain in the country while their asylum claim is pending.

MPP essentially turned the process of seeking asylum on its head. Under MPP, asylum seekers present in the United States were not allowed to remain in the country; instead, they were forcibly returned to Mexico, where many were kidnapped, assaulted, tortured, or killed. On Day One of his presidency, President Biden suspended new enrollments of asylum seekers in MPP. On February 11, 2021, DHS announced that it was taking long-awaited and highly anticipated steps toward unwinding and shutting down MPP. Although the rollout of the wind-down process has been confusing and far from smooth, the first group of asylum seekers was processed into the United States on February 19, 2021, and DHS has committed to continue to process people out of MPP and into the United States.

Over 68,000 asylum seekers, predominantly from Central America, were returned to Mexico under MPP. Some 25,000 MPP cases remain open. Of the cases that have been adjudicated, about 32,600 have resulted in removal orders, 10,600 in termination of removal proceedings (i.e., dismissal), and 500 in immigration relief. Some people were effectively coerced into accepting removal as a way to escape the horrors of MPP; some abandoned their claims because they could not sustain themselves in Mexico; and others were ordered removed in absentia because they were kidnapped and held captive during their scheduled hearings, and therefore could not appear in court. Of the total removal orders issued, more than 86 percent—more than 28,000 orders—were issued in absentia after an individual failed to appear for their immigration court hearing.

Removal orders attach permanent restrictions on a person’s ability to seek U.S. immigration relief in the future. This essay examines the issue of removal in the MPP context and argues that removal orders issued under MPP can, and should, be rescinded.

I. Removal Orders Issued in MPP Should Be Rescinded as the Result of a Coercive and Likely Unlawful Program

Since its inception, MPP has stood on questionable legal footing. A few months after it was announced, the U.S. District Court for the Northern District of California enjoined MPP, finding that the policy was inconsistent with the statutory framework set forth by the Immigration and Nationality Act. The injunction was stayed pending appeal before the U.S. Court of Appeals for the Ninth Circuit. During the stay, DHS continued MPP and expanded it along the southern border. The Ninth Circuit then affirmed the district court’s preliminary injunction on the merits, but the circuit court’s mandate was also stayed pending appeal to the U.S. Supreme Court. This case, Mayorkas v. Innovation Law Lab, is currently before the Supreme Court, but was removed from the Court’s February 2021 calendar and is being held in abeyance following a request from the U.S. Department of Justice.

Other federal courts that have considered MPP have also found the program to be unlawful as applied to individuals and groups of asylum seekers, and that the few procedural safeguards that applied to MPP were being either ignored or exercised in a way that unlawfully denied asylum seekers their right to counsel. Through MPP, the U.S. government placed an international border between asylum seekers and their ability to access counsel, making it nearly impossible for people in MPP to find representation in their immigration court proceedings—over 92 percent of people in MPP were never able to retain an attorney. The few who were able to secure counsel still faced additional barriers to adequately preparing for their asylum cases, including difficulty meeting with their attorneys and collecting the evidence necessary to support their claims.

The Ninth Circuit has further held that MPP likely violates the United States’ treaty- and statute-based non-refoulement obligations, which prohibit the United States from returning an individual to a territory where they are likely to be persecuted or tortured. The court found that people returned to Mexico pursuant to MPP “face targeted discrimination, physical violence, sexual assault, overwhelmed and corrupt law enforcement, lack of food and shelter, and practical obstacles to participation in court proceedings in the United States.”

MPP is undeniably coercive. The program was lauded as a success by the Trump Administration, which boasted that under the conditions of MPP, “aliens without meritorious claims—which no longer constitute a free ticket into the United States—are beginning to voluntarily return home.” This Hobbesian premise effectively relies on human rights violations as an immigration adjudication and sorting mechanism, and rests on the flawed assumption that only those with meritorious asylum claims would self-select into, and continue to wait in, such harsh and inhumane conditions. It is inappropriate and inconsistent with the principles of due process, fundamental fairness and dignity that lie at the core of our legal and justice system, but MPP has been incredibly effective at reducing the number of asylum seekers able to gain humanitarian protection. One of my clients, like other parents in MPP, waived the right to seek asylum for himself and his child and accepted removal orders after an immigration judge told him that accepting removal was the only way for him to get his child out of the dangers of MPP. Removal orders issued as part of MPP should be void ab initio in recognition that the program itself deliberately and successfully denied asylum seekers of the fundamental due process protections necessary to a fair and functioning adjudicative process.

II. In Absentia Removal Orders Issued in MPP Further Illustrate the Need for Rescission of Removal Orders

The case for rescission of MPP removal orders is strong across the board, and it is particularly compelling with respect to removal orders issued in absentia. As a general rule, failure to appear for an immigration court hearing results in an order of removal in absentia. That general rule has been applied in the MPP context as well, without regard to the separate circumstances an asylum seeker faces by virtue of being in MPP. More than 28,000 in absentia removal orders have been issued to individuals in MPP—86 percent of the total removal orders issued—despite reports that many people in MPP failed to appear at their immigration court hearings due to the exceptional hardships and circumstances of MPP. For example, people have been ordered removed in absentia because they were kidnapped and held hostage during their hearing, and for that reason did not appear. Other people with open proceedings have left Mexico during the pendency of these proceedings because they were unable to sustain themselves or their families under MPP’s onerous conditions.

The problem of in absentia removal has been compounded by the convoluted posture of MPP cases, which made it difficult for individuals to withdraw applications for admission or seek voluntary departure. In non-MPP circumstances, applicants for admission or people seeking voluntary departure may be permitted to leave the United States prior to the conclusion of their immigration court cases if they can show an ability to leave the United States at their own expense and meet other statutory and regulatory requirements. See 8 U.S.C. §§ 1225(a)(4), 1229c(a)(1); 8 C.F.R. §§ 1235.4, 1240.26. However, people in MPP were not physically in the United States except to attend their immigration court hearings—they were “paroled” in only for the time necessary for them to attend hearings and then immediately returned to Mexico—and so could not voluntarily leave the United States. To further complicate matters, Mexico would allow individuals in MPP to return to Mexico only if they were in active immigration proceedings in the United States. Thus, because of the limitations thrust upon people in MPP, it has been virtually impossible for them to avoid removal by voluntarily withdrawing their applications or departing the United States. For people who needed to leave Mexico while their immigration court proceedings were pending, accepting a removal order in court or leaving without approval from the court and instead receiving an in absentia removal order were essentially their only options. Further, it is not known how many people with pending MPP cases have left Mexico in the time that MPP courts have been closed due to COVID-19, nor is it apparent what will happen to their cases when immigration court proceedings resume. Relief from removal should extend to this group as well.

III. Legal Authority Exists for Rescinding Removal Orders, Reopening Removal Proceedings, and Terminating Cases

The consequences of removal are severe and impose permanent barriers to an individual’s ability to seek future immigration relief. Removal orders, once issued, can be reinstated if an individual returns to the United States, such that the individual is summarily removed with little to no procedural protections. Removal also generally results in a multi-year bar on admissibility, heightened burdens of proof for seeking asylum and relief from persecution, and the inability to access most forms of immigration relief in the future.

There are a number of ways that MPP removal orders can be rescinded and immigration proceedings reopened. As a preliminary matter, it should be noted that the immigration courts are administrative courts within the Department of Justice and the prosecuting agency for immigration court proceedings is Immigration and Customs Enforcement (ICE), which is housed within the Department of Homeland Security. Immigration law and adjudication, as a matter of structure and by design, is highly sensitive to policy directives and mandates from the executive branch. The Biden Administration, through executive and agency action, could provide guidance directing DHS and DOJ to adopt a liberal practice and standard for reopening removal proceedings for people previously ordered removed under MPP, so that their future immigration status and standing is not prejudiced by what happened in MPP. The agencies could also promulgate regulations providing a framework for reopening MPP removal orders in recognition that such orders were the result of a fundamentally unfair process, similar to what happened following the Supreme Court’s decision in INS v. St. Cyr. See 8 C.F.R. § 1003.44.

Congress could also act to resolve the issue, and legislative action would not be without precedent. The Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA) as amended by the Legal Immigration Family Equity Act Amendments of 2000 (the LIFE Act Amendments) allows eligible individuals with final removal orders to reopen their immigration proceedings. Regulations were later promulgated laying out procedures for filing and adjudicating such motions to reopen. See 8 C.F.R. § 1003.43.

Conclusion

The Biden Administration has taken necessary and welcome steps to restore fundamental fairness and dignity to our asylum system through its early actions to wind down and terminate MPP, but such restoration will not be complete without addressing the immigration consequences stemming from removal orders issued pursuant to MPP. This essay points to some additional actions that can and should be taken in furtherance of that goal, such that asylum seekers subject to the aberrant process of MPP are not forever prejudiced with respect to their asylum and U.S. immigration matters.

 

* Haiyun Damon-Feng is Director of the Adelante Pro Bono Project and Assistant Director of the William H. Gates Public Service Law Program at the University of Washington School of Law. She is grateful to Kurt Walters and the editors of the Harvard Law & Policy Review for their thoughtful comments and feedback.

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Reproductive Chattel: The New Jane Crow

By Michele Goodwin*

In 2000, nations throughout the world agreed to participate in the United Nations Millennium Development Goals (MDGs). One of the key objectives specifically targeted reducing pregnancy-related deaths. Nearly two dozen international organizations and 191 member state nations publicly committed to achieve eight goals, among them reducing maternal mortality. All but a few nations showed demonstrable progress. The United States was among the few nations to fail and dramatically regress.

Maternal mortality rates actually increased in the United States at a rate of nearly 140 percent since 1990. As one reporter noted, “Just as the world turned its attention to this matter with marked success, the United States stopped offering data and began moving backward.”

What accounts for this? Texas holds some clues. Texas has the regrettable distinction of the deadliest state in the developed world in which to birth a child. As one commentator explained, “the Texas maternal mortality rate ‘now exceeds that of anywhere else in the developed world.’” It is also a state with an overwhelmingly male legislature, which prides itself on enacting the most restrictive abortion laws in the nation. As the Texas Tribune reported in 2017, “Once again, the Texas Legislature is mostly white, male, middle-aged.” At that time, men held nearly “80 percent of the Legislature’s seats.” Members of the Texas legislature filed nearly twenty antiabortion bills in 2017 alone.

Perhaps this shouldn’t be surprising, because Texas lawmakers pride themselves on efforts to criminalize and suppress reproductive rights. This is exemplified by the Texas targeted regulation of abortion providers (TRAP) laws the U.S. Supreme Court struck down in Whole Woman’s Health v. Hellerstedt. Even with such a victory, many abortion clinics had already shuttered. What Texas legislators failed to account for is that Texas abortion clinics also provided contraceptive and maternal care for the overlooked and underserved poor women in their state.

However, Texas is not alone. Alabama, Kentucky, Georgia, and other states similarly engage in efforts to eviscerate reproductive rights. Behind their antiabortion legislating are staggering rates of maternal mortality. A common thread in these abusive practices is the impact they have on Black women. For example, Louisiana, which enacted the TRAP law at issue in June Medical Services, exceeds the nation’s maternal mortality rate by a dramatic proportion. While maternal mortality is dire among Black women in the United States generally, in Louisiana the incidences of death are far greater. The average maternal mortality for white women is 18.1 deaths per 100,000 live births in the United States and 27.3 in Louisiana. For Black women, the U.S. incidence of maternal mortality is 47.2 and in Louisiana 72.6.

Policing the Womb shows history and power matter to any contemporary discourse regarding reproductive health, rights, and justice, including the legacies of slavery and Jim Crow in making complex, enduring chattel of Black women and girls. As DNA evidence confirms, during the antebellum period Black girls and women endured forced sexual bondage and well as physical labor imposed by people who claimed power over them. Simply put, American capitalism relied not only on their physical labor, but also literally their reproductive capacities. Yet, the cruelties of slavery also rendered Black women and girls expendable, making fungible, vulnerable chattel of them. In the past, self-described (private) masters claimed dominion over Black women’s reproductive capacities. Today, the state does so.

In other words, robust legislating that chips away at reproductive rights and encroaches on women’s reproductive healthcare is about more than abortion. It is about a fundamental lack of respect for the humanity, dignity, and citizenship of girls and women. It shows how conservative movements, combined with the rise and influence of a religious orthodoxy, successfully express themselves at the legislative level, particularly in the realms of reproductive autonomy and privacy. The book sharpens its gaze on the sex and gender asymmetries in legislatures, which more likely than not lead to the enactment of TRAP laws.

Policing the Womb considers how these strategic moves undermine fundamental constitutional rights. The book issues a cautionary tale to highlight the weaknesses in current Supreme Court’s jurisprudence, particularly the framework articulated in Casey, which revived paternalistic ideologies associated with women’s capacity to reason, consent, and make autonomous reproductive healthcare decisions, because historically the state and courts have been complicit in undermining women’s economic capacities and liberty interests.

Given what is at stake, it is critical to bring attention to how the recent robust lawmaking that restricts when and under what circumstances people may access reproductive healthcare rights not only functions to undermine constitutional rights, but also leads to the surveillance of reproduction, criminalization of conduct during pregnancy, and ultimately the burdening of health. In the abortion context, antiabortion lawmaking purposefully and strategically operates in the shadow of Supreme Court decision-making to intentionally thwart the spirit of the Court’s guidance in Roe v. Wade and Planned Parenthood v. Casey, which articulated that “a provision of law is invalid, if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability.”

As scholars, we should commit ourselves to reflecting on the personal costs associated with states policing women’s pregnancies and bodies. In doing so, our task must be to highlight how states’ selective interest in and punishment related to reproductive rights often targets women of color and the poor. As states enact measures to prosecute women for drug dependence during pregnancy or any conduct that endangers their pregnancies, what becomes clear is that such rules are not intended to be universalized and applied to all women, but rather to profiled, vulnerable subgroups.

The intergenerational suffering of Black women in former slave states remains visceral and part of the horrific legacies of institutionalized chattel bondage. For Black women in Texas, Louisiana, Alabama, Georgia, West Virginia, and elsewhere, not only is their reproductive freedom illusory, but staying alive during pregnancy is not a guaranteed, foregone conclusion. Private reproductive bondage in these former slave states is now public. That is, where planters once controlled Black women’s reproduction on their plantations and elsewhere, now the state controls what Black women (and others) may do with their bodies during pregnancy. In neither case has the regard for Black women resulted in the autonomy, independence, or privacy deserved.

Policing the Womb provides an important intervention, elevating the concerns of women too frequently ignored, disregarded, and overlooked in an ongoing domestic reproductive chattel system, which has outlasted the Antebellum period and morphed into present-day state surveillance of pregnancy. And, just as with slavery, states impose their reproductive interests and demands on poor women who are left to bear the weight of those legislative decisions lest they experience cruel civil or criminal punishment.

 

*Michele Bratcher Goodwin is a Chancellor’s Professor at the University of California, Irvine and founding director of the Center for Biotechnology and Global Health Policy. She is renowned nationally and internationally for her work in health policy, constitutional law, reproductive health, rights and justice, and cultural politics. She is the author/editor of six books, including Policing the Womb: Invisible Women and the Criminalization of Motherhood. Her commentaries appear in Ms. Magazine, the New York Times, Washington Post, Forbes, Salon, and the Chicago Sun Times, among others.

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Abortion After June Medical

By Mary Ziegler*

The Supreme Court’s decision in June Medical Services v. Russo was more than a little ironic. Chief Justice Roberts’s controlling concurrence read as a celebration of stare decisis, the principle that the Court should usually defer to its past decisions. And yet Roberts upended precedent. If Roberts’s concurrence becomes the standard for testing the constitutionality of abortion regulations, the courts will not have to consider whether abortion restrictions have any benefit for patients, as Whole Woman’s Health v. Hellerstedt required. In short, Roberts’s proposed rule will make it easier for states to regulate abortion. Although the Chief Justice made a point of noting that no one had asked the Court to reconsider Roe v. Wade or Planned Parenthood v. Casey, he may well be game if that invitation eventually arrives.

June Medical could be bad news for anyone committed to abortion rights. Nevertheless, it is not easy to figure out where the anti-abortion movement goes next. At first, the Court’s decision might seem to discourage patient-protective anti-abortion laws. These statutes—which claim to prevent the psychological and physical harm done by abortion—have a poor win-loss record in the Supreme Court. The Court has used patient-protective reasoning in upholding laws focused on fetal life, such as the federal Partial-Birth Abortion Ban Act. But before 2016, the Court had struck down only one restriction, a husband-notification measure, under the undue burden test. Since then, the Court has rejected every patient-protective measure it has considered. The anti-abortion movement has no shortage of options if patient-protective restrictions have backfired. Sweeping bans, like so-called heartbeat laws, focus on fetal life rather than patients. So do several restrictions that focus on procedures later in pregnancy.

As I show in my new book, Abortion and the Law in America, patient-centered arguments against abortion may be here to stay. The dissents in June Medical foreshadow some of the arguments that will likely be key to efforts to reverse Roe, many of which suggest that abortion hurts patients. The dissenters accepted Louisiana’s argument that doctors should not have third-party standing to challenge abortion restrictions on their patients’ behalf. Justice Alito agreed that there was “a blatant conflict of interest between an abortion provider and its patients.” Justices Alito, Thomas, Gorsuch, and Kavanaugh also concluded that Louisiana’s law should stand precisely because it protected pregnant people against real dangers tied to abortion. Had the dissenters prevailed, their opinion would have made it much harder to challenge any abortion restrictions.

The dissenters’ views tell us as much about what at least four members of the Court think about the reality of abortion care in the United States—and how those views may lay the groundwork for reversing Roe. Justice Alito described abortion providers as profit-driven businesspeople who barely know their patients. He invoked Kermit Gosnell, a provider convicted of killing one patient and three infants who were born alive, in detailing the risks of abortion to all pregnant people.

These descriptions reflect an anti-abortion argument that has been decades in the making. Since the 1970s, abortion opponents have tried to undermine abortion rights not by advocating for fetal rights but by contesting what abortion in the United States is really like. This approach made considerable strategic sense. The Court had not been receptive to arguments seeking to establish constitutional rights for fetuses, but incremental restrictions have fared much better. To defend these laws, abortion foes detailed the supposed benefits of abortion restrictions (and condemned the purported dangers of abortion).

Since Casey, anti-abortion leaders have focused particularly on the consequences of abortion on patients’ health and wellbeing. The Casey Court declined an invitation to unravel abortion rights. The plurality reasoned that Roe was not only a workable decision but also one that had created substantial reliance interests. “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives,” Casey reasoned. In the years after Casey, leaders of the anti-abortion movement concluded that the Court would never reverse Roe unless the public and the Justices believed that pregnant people should not rely on abortion to lead more equal lives. Anti-abortion lawmakers introduced laws intended to show that abortion made patients sick. Targeted regulations of abortion providers, like the one struck down in June Medical, relied on this patient-protective justification. So did laws claiming that medication abortions could be reversed, that abortion caused breast cancer, or that specific abortion techniques could be banned without a health exception. These arguments have played a key role in anti-abortion advocacy for nearly thirty years. June Medical is unlikely to change that.

If anything, anti-abortion leaders increasingly emphasize claims that abortion access undermines racial justice as well as equality for women and pregnant people. This summer, new states, including Mississippi and Tennessee, have joined the list banning abortion for reasons of race, sex, or disability.

These laws, like the patient-protective statutes at issue in June Medical, thrive because of growing distrust of public-health authorities, medical experts, and even the media. A focus on the reality of abortion in the United States has undermined any consensus about the basic facts and deepened polarization. Now, the courts are asked to decide whether pregnant people often have abortions for racist, sexist, or ableist reasons, whether abortion providers are irresponsible, or whether abortion has serious side effects.

Polarization of this kind has serious costs. During the COVID-19 pandemic, the kind of distrust of medical authorities that has long defined the abortion struggle has sparked conflict about everything from mask mandates to the safety of a possible vaccine. In the context of reproductive justice, polarization has made it all but impossible for those with clashing views on abortion to work together on any reproductive justice issue, including maternal mortality to pregnancy discrimination at work.

Despite the damage they have done, we should not expect anti-abortion leaders to give up on arguments about the reality of abortion. After all, these claims just might be working. June Medical is proof of that.

 

*Mary Ziegler is the Stearns Weaver Miller Professor at Florida State University College of Law and the author of Abortion and the Law in America: Roe v. Wade to the Present (Cambridge University Press, 2020).

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HLPR Student Note Competition Open

**The deadline for submissions has been extended to Friday, August 21**

The Harvard Law & Policy Review’s Winter 2020 Student Note Competition is now open. The competition provides a unique opportunity for law students to publish their work in HLPR, which has had a recent distribution to more than 6,000 lawyers nationwide, as well as congressional offices, judges, and other progressive decision-makers. We seek policy-oriented pieces that are 4,000–13,000 words, shorter in length than a typical journal article. We welcome articles that you may have worked on as part of a law school class or on your own.

Please email your submissions to harvardlprsubmissions@gmail.com—not to the main HLPR email address—or submit through Scholastica to preserve anonymity. For more information, check out the submission rules or the published notes in our archive.

The deadline for student note submission is 11:59 pm ET on Friday, August 21, 2020.

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Bill Barr Unwittingly Makes the Case for Banning Major Corporate Mergers

By Sandeep Vaheesan*

Attorney General Bill Barr inadvertently showed the fundamental problems with federal policy on corporate mergers. In testimony to Congress last month, a Department of Justice (DOJ) career employee revealed that Barr had directed the Antitrust Division to closely scrutinize mergers in the highly fragmented cannabis industry (operating in states that have legalized the substance) due to Barr’s personal animus toward the industry. Even as the Antitrust Division cleared large mergers in food processing, agriculture, telecom, and other industries, it devoted substantial resources to advancing Barr’s agenda against the cannabis industry, despite no apparent threat to fair competition from mergers among cannabis firms. Barr’s conduct and the Antitrust Division’s record show that the present approach to mergers—open-ended and subjective—is long overdue for root-and-branch overhaul.

What might an alternative system look like? Representative Alexandria Ocasio-Cortez and Senator Elizabeth Warren offered a preview with their Pandemic Anti-Monopoly Act, which would prohibit all mergers and acquisitions by corporations and investment funds worth more than $100 million for the duration of the COVID-19 crisis and its aftermath. A clear, rules-based system tied to firm size and market share would stop potentially problematic mergers and allow tie-ups that fall below both the size and the share thresholds. This merger regime would protect the public from concentrated corporate power and small businesses from officials like Attorney General Barr, while entailing little or no economic loss for society.

Present merger policy is an exercise in prediction. Under their shared merger evaluation framework, the Antitrust Division and its sister agency, the Federal Trade Commission (FTC), generally try to forecast the effects of a merger on prices, product quality, innovation, and other consumer-oriented criteria. Relying on this clairvoyance, they only seek to stop a merger in court when they are confident that the combination would likely harm consumers and that these adverse effects cannot be “remedied” through the sale of business assets or duties of fair conduct.

The open-ended, predictive character of merger analysis grants enforcers substantial discretion. The subjectivity of merger analysis is compounded by a review process that is shrouded in extraordinary secrecy. Under this system, the DOJ and FTC can easily clear harmful mergers: consider Antitrust Division chief Makan Delrahim guiding T-Mobile’s acquisition of Sprint and the Obama Administration’s decision to drop its challenge to the merger between American Airlines and US Airways in 2013 following intense lobbying by the airlines’ political allies. That same latitude also allows the agencies to investigate and bog down innocuous deals, as the Antitrust Division did with the cannabis mergers.

The antitrust agencies closely review fewer than five percent of all reported mergers in a typical year, and usually confines these reviews to mergers involving firms in concentrated markets. At Attorney General Barr’s behest, the DOJ has focused its attention on cannabis mergers: Of the thirty-one combinations it closely scrutinized in 2019, nine were in this industry. Some of these mergers involved firms with miniscule market shares—0.35% in one instance. And yet the Antitrust Division enlisted “staff from other offices [in the Division] . . . including telecommunications, technology, and media” to assist, and the Division compelled the merger parties to produce hundreds of thousands or millions of documents.

A simple rules-based system would reduce the discretion of executive branch officials like Barr. Representative Ocasio-Cortez and Senator Warren proposed banning mergers and acquisitions by medium-sized and large firms and investment funds during the COVID-19 pandemic and recovery period. They highlighted how the crisis-triggered distress of thousands of businesses could lead to another wave of consolidation and produce a post-crisis economy even more concentrated than the present one. Their proposed ban on acquisitions by firms and funds worth more than $100 million should be made a permanent part of merger law, and not be confined to the current and future crises.

In addition to limits tied to acquirer size, merger law should also prohibit mergers that unduly concentrate specific markets or extend firm power into adjacent markets, much like the Antitrust Division did through the early 1980s. For example, mergers that combined firms each with a share of 4% or more in a highly concentrated market were illegal under this system, and a firm with more than 10% share in one market could not acquire a firm with 6% share with whom it had or could have a buyer-seller relationship. Under a system of clear rules on mergers, firms that fell below both the size and the market share thresholds would be free to combine and have greater assurance that enforcers hostile to their business could not use antitrust as a weapon.

Would this broad ban on large and medium-sized mergers hurt consumers? On the contrary, it would help them and the public. Mergers frequently lead to higher prices and other harms to consumers. They also often lead to large-scale layoffs, and corporate concentration generally depresses workers’ wages. Consolidations also eliminate vital social redundancies that, for instance, left the United States without enough spare hospital beds or a sufficient emergency stockpile of ventilators. At the same time, even with a strict anti-merger regime, firms of all sizes would still be free to improve their products, invest in new plants and facilities, and hire more workers. As the Supreme Court wrote in 1963, “one premise of an anti-merger statute . . . is that corporate growth by internal expansion is socially preferable to growth by acquisition.”

While the present tolerance of mergers rests on an assumption that mergers “generate significant efficiencies and . . . may result in lower prices, improved quality, enhanced service, or new products,” this theory lacks factual support. Offering a bleak assessment of the social benefits of mergers, Professor Melissa Schilling, of the NYU Stern School of Business, wrote, “A considerable body of research concludes that most mergers do not create value for anyone, except perhaps the investment bankers that negotiated the deal.”

What about distressed firms? The present crisis has shown that mergers are not necessary to help struggling firms. Congress has appropriated hundreds of billions of dollars to support businesses and their workers during the COVID-19 pandemic. Direct, efficiently administered public support for firms and workers should be the default during crises that depress macroeconomic activity and threaten even the best-managed enterprises.

Outside of recessions, reorganization through bankruptcy (with the replacement of management and the allocation of losses to shareholders and creditors) is the appropriate path for troubled businesses that have suffered due to mismanagement and unsustainable debt burdens. Acquisitions by powerful corporations should be a true last resort, permitted only for an acquiree that faces near-term liquidation and has no other prospective buyer or lifeline.

Through his misuse of anti-merger law against an industry he personally disfavors, Attorney General Bill Barr unintentionally made the case for root-and-branch reform of our merger policy. The present framework is open-ended, subjective, and ripe for abuse. Even as the DOJ permitted mega-mergers across the economy, it targeted the cannabis industry for special scrutiny. A rules-based system governing mergers and acquisitions would protect the public from the harms of corporate power and small businesses from the misuse of executive power.

 

* Sandeep Vaheesan is legal director at the Open Markets Institute and leads their legal research and advocacy work. He has published articles and essays on a variety of topics in antitrust law, including merger policy and the political content of antitrust.

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Symposium: Regulating Reproduction After June Medical and During COVID-19

By Rachel Rebouché*

I am delighted to introduce this online symposium on current issues related to the regulation of reproductive health. This month, the Harvard Law & Policy Review will showcase four essays that explore racial disparities in reproductive health care, criminal prosecution of prenatal behavior, and the future of constitutional abortion rights. The symposium follows a webinar on June 30, After June Medical Services: The Past, Present, and Future of Regulating Reproduction, at which the authors of four important books explored an array of reproductive justice subjects—from the pernicious legacies of slavery to the Supreme Court’s latest case on abortion.

That case, June Medical Services v. Russo, is the Court’s highly anticipated pronouncement on the constitutionality of abortion restrictions. At issue was a Louisiana law requiring abortion providers to obtain admitting privileges to a hospital within thirty miles, an Act that was almost an exact replica of a law the Court struck down in 2016 (in Whole Woman’s Health v. Hellerstedt). The Supreme Court, in a five-to-four decision, held that the Louisiana law similarly was unconstitutional because the admitting-privileges requirement erected significant obstacles in the path of people seeking abortions.

Much will be written about the plurality opinion in June Medical Services. Justice Breyer, writing for himself and Justices Ginsburg, Sotomayor, and Kagan, concluded that the Louisiana law provided not one health benefit to patients and imposed only burdens, by forcing clinics to close. Chief Justice Roberts wrote a concurrence, upholding the law on the basis of stare decisis but rejecting Breyer’s interpretation of the undue burden test. Rather than weighing the benefits against the burdens of the law in question, as Justice Breyer did in the judgment for the Court and in Whole Woman’s Health, Chief Justice Roberts focused on the barriers to care that the law imposed. Justices Alito, Gorsuch, Thomas, and Kavanaugh dissented.

The webinar took place the day after the Court released June Medical Services with a discussion among Professors David S. Cohen, co-author of Obstacle Course: The Everyday Struggle to Get an Abortion in America (University of California Press, 2020); Michele Goodwin, author of Policing the Womb: Invisible Women and the Criminalization of Motherhood (Cambridge University Press, 2020); Carol Sanger, Barbara Aronstein Black Professor of Law, Columbia Law School, author of About Abortion: Terminating Pregnancy in 21st Century America (Harvard University Press, 2017); and Mary Ziegler, Stearns Weaver Miller Professor of Law, Florida State University College of Law, author of Abortion and the Law in America: Roe v. Wade to the Present (Cambridge University Press, 2020).

The authors’ conversation set the stage for a timely discussion of reproductive justice in the wake of the June Medical Services and COVID-19. This symposium’s essays explain how recent federal and state legislation impede access to contraception and abortion care, disproportionately burdening low-income people and people of color; exacerbate health disparities, as evidenced by high maternal morbidity and mortality rates; and strain support for caregivers under financial stress, particularly among the population of essential workers without adequate childcare assistance. Today, Professor Seema Mohapatra focuses on disparities in reproductive health care. In the three weeks that follow, Professor Aziza Ahmed will highlight how current law polices and punishes pregnant people, Professor Maya Manian will consider legislative restrictions on abortion and contraception that is pending court review, and the concluding post, co-authored by the webinar speakers, will discuss future directions for reproductive regulation after June Medical Services. Tying together these contributions is an exploration of the deepened inequities that characterize sexual and reproductive healthcare in the United States.

 

Regulating Reproduction After June Medical and During COVID-19:

Week One: Professor Seema Mohapatra, Reproductive Injustice and COVID-19

Week Two: Professor Aziza Ahmed, Scientific and Medical Expertise in the Prosecution of Pregnant Women

Week Three: Professor Maya Manian, Winning by Losing: Chief Justice Roberts’s Strategy to Eviscerate Reproductive Rights and Justice

Week Four: Professor Mary Ziegler, Abortion After June Medical

Week Five: Professor David S. Cohen, Why Whole Woman’s Health’s Balancing Test Still Applies After June Medical

Week Six: Professor Michele Goodwin, Reproductive Chattel: The New Jane Crow

 

* Rachel Rebouché is the James E. Beasley Professor of Law and Associate Dean for Research at Temple University School of Law, where she teaches Family Law, Health Care Law, and Contracts. She publishes on topics related to reproductive health and regulation, and she is a co-investigator on research projects supported by the World Health Organization and the Center for Reproductive Health Research in the Southeast.