Attorney general joins series of multistate efforts

Over the last several weeks, Michigan Attorney General Dana Nessel joined attorneys general from across the nation in the following multistate actions:

• Amicus Brief Supporting a Group of Tennessee Abortion Providers:

On April 8, Nessel joined a coalition of 19 attorneys general in filing an amicus brief in the U.S. Court of Appeals for the 6th Circuit, supporting a group of Tennessee abortion providers. The providers are challenging a law requiring women seeking abortions to attend two in-person appointments with physicians no fewer than 48 hours apart. 

The plaintiffs in Bristol Regional Women’s Center v. Slatery argue that Tennessee’s waiting-period law subjects women to an unnecessary and onerous requirement that will, in practice, delay abortions and increase the risks for women who seek to obtain them. The coalition explains that waiting period laws are not necessary to ensure informed consent – Tennessee’s stated aim – and impose substantial burdens on women and abortion rights.

“Delaying abortions is not reasonably related to the supposed intention of ensuring informed consent,” Nessel said. “Delays will only burden women and create the potential for risk of medical complications.”
In 1992, the U.S. Supreme Court ruled in Planned Parenthood v. Casey that a state may impose restrictions on a woman’s right to terminate her pregnancy only if those restrictions are reasonably related to a legitimate state interest, such as protecting women’s health. Following a four-day trial challenging Tennessee’s waiting period law in September 2019, the district court issued a thorough and comprehensive opinion, finding, among other things, that the law “provides no appreciable benefit” to women’s health and instead “imposes numerous burdens that, taken together, place women’s physical and physiological health and well-being at risk.”

In the brief, the coalition urges the 6th Circuit to uphold the district court’s ruling. The coalition explains that many states do not subject women seeking abortion care to lengthy and onerous waiting periods, and instead treat abortion as one medical service among many, governed by standard ethical and legal obligations to secure patients’ informed consent. The attorneys general argue that because there is no evidence that women in these states fail to make informed decisions about their medical needs, Tennessee’s waiting-period law is not reasonably related to the aim of ensuring informed consent. 

The coalition also argues that Tennessee’s waiting-period law imposes a serious burden on women seeking medical care by delaying abortions and thereby increases associated medical risks, as well as adding financial and logistical costs. 

Joining Nessel in filing this brief are the attorneys general of California, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Nevada, New Jersey, New York, Oregon, Rhode Island, Vermont, Virginia, and Washington. 

• Amicus Brief Pushing Back on Tyson Foods’ Attempt to Sidestep Court Review of Facility COVID-19 Outbreak:

On April 12, Nessel joined a multistate coalition of 19 attorneys general in an amicus brief pushing back on Tyson Foods’ efforts to circumvent state court review of its handling of a COVID-19 outbreak at one of its pork-processing facilities in Waterloo, Iowa. The outbreak at the facility reportedly infected more than one-third of the company’s workers. In an amicus brief supporting the families of deceased employees who are suing the company over the outbreak, the coalition urges the appellate court to affirm the district court’s decision to have the cases heard in state court.

“Workers at Tyson were asked to work throughout the pandemic to ensure sufficient food supply,” Nessel said. “Tyson Foods is attempting to avoid accountability in state court by hiding behind a federal law that was never meant to protect it.”

In Buljic v. Tyson Foods, Tyson Foods incorrectly asserts that it is exempt from state court review because it was acting on behalf of the federal government. However, the company’s claim is fundamentally flawed and ignores “strict guidance and control” requirements set forth in the law to establish such a claim. Under Tyson Foods’ legal theory, an enormous number of companies could potentially avoid state court jurisdiction for COVID-related violations. For instance, should Tyson Foods succeed, an estimated 2.1 million farms, 935,000 restaurants, and more than 200,000 registered food manufacturing, processing, and storage facilities would suddenly face an extremely low bar for moving state law cases to federal courts. Taken to its logical conclusion, Tyson Foods’ interpretation of the law could allow any private industry actor to argue that it has been acting under federal direction since the pandemic began if it operates in a critical infrastructure sector and has been mentioned by or communicated with federal officials in connection with COVID-19. Ultimately, the argument put forward by Tyson Foods threatens the ability of states to carry out one of their core missions: protecting the health and safety of their residents and workers.

Although the entire American workforce has been affected by the COVID-19 pandemic in some way, the health and safety risks have been particularly acute for frontline workers employed in the meatpacking and processing industry. Within the first six months of the pandemic, more than 16,000 meat and poultry processing facility workers across 23 states were infected with COVID-19, and 86 died. Outbreaks at meatpacking and processing plants have also contributed to the spread of COVID-19 within the surrounding communities, with employees exposed in the workplace bringing the disease home to their families and loved ones.

In the amicus brief, the coalition pushes back on Tyson Foods’ assertions and argues, among other things, that:

—The federal officer removal statute is limited to cases where a state-law claim would interfere with the actions of the federal government;

—Contrary to its purpose, Tyson Foods’ interpretation of the federal officer removal statute could allow removal of state-law claims by a broad array of private entities acting without genuine federal direction; and

—Tyson Foods’ assertion that it has colorable federal defenses under the Defense Production Act and the Federal Meat Inspection Act would impair states’ ability to protect workers and public health.

• Letter Pushing for Passage of the Jabara-Heyer No Hate Act:

On April 13, Nessel joined a coalition of 35 attorneys general urging Congress to pass the bipartisan Jabara-Heyer No Hate Act, which would provide state and local governments and law enforcement agencies with the tools and resources to understand, identify, and report hate crimes and, as a result, help prevent them.

The legislation specifically aims to help rectify inaccurate and incomplete data by providing federal grants to improve hate crimes reporting. The grants would be used to train employees on identifying, classifying, and reporting hate crimes in the FBI’s national database; assist with states’ development of programs to prevent hate crimes; increase community education around hate crimes; and create state-run hate crime hotlines.

“For more than two decades, thousands of city, county, college and university, state, tribal, and federal law enforcement agencies have voluntarily submitted hate crimes data to the FBI,” wrote the attorneys general. “However, based on the FBI’s 2019 report, most law enforcement agencies did not participate or reported zero incidents. Exacerbating this gap, less than 25% of law enforcement agencies are using the FBI’s current reporting system, which took effect this year. This lack of data creates critical gaps that inhibit our understanding of the hate problem. As the chief legal officers of our respective jurisdictions and states, improving hate crimes reporting is a priority. Without reliable statistics, the government cannot properly understand, investigate, and prosecute hate crimes or provide necessary resources to survivors.”