On May 4, 2020 the U.S. Senate reconvened amid the coronavirus pandemic. Its discussion was not about the more than 60,000 people in the United States who had died of COVID-19 by this date, or the millions who continued to find themselves out of work, or about issues of racial injustice including the nonstop drumbeat of police brutality against Black people or the surge in anti-Asian hate and violence nationwide. Instead, the U.S. Senate met to confirm federal judges.
On June 24, the Senate confirmed President Trump’s 200th judicial nominee, marking a record number second only to President Jimmy Carter.¹ What’s more, Trump’s nominees are often severely inexperienced and chosen specifically for their extreme ideology, which calls into question their ability to be objective in matters fundamental to reproductive justice, such as reproductive rights and health, immigrant rights, and worker rights.
Trump’s determination to pack judicial benches with ideological allies has a direct cost to the Asian American and Pacific Islander (AAPI) community, especially women, trans, nonbinary, intersex, and gender nonconforming people. Once confirmed, these 200 judges actively shape the laws that impact our day to day lives, from access to abortion care to our ability to vote. Here, we highlight how Trump’s judges have ruled on cases concerning immigration, access to health care, including abortion care, voting rights, and economic justice in ways that perpetuate harm against our communities.
Why Courts Matter
In April 2020, President Trump issued an executive order severely restricting the provision of new green cards, exploiting the pandemic to further his agenda to end family-based immigration.² He was able to issue this order, and others like it, knowing that the courts are now packed with judges who will sanction his harmful policies. Right now, vital issues such as the “public charge” rule and access to birth control are on the courts’ dockets, including at the Supreme Court. We need judges who understand the impact of their decisions and the rights of the AAPI community in order for us to thrive.
The term reproductive justice was first coined in 1994 by a group of Black women called Women of African Descent for Reproductive Justice,³ who believed the mainstream feminist and reproductive rights movements did not meet their needs. For Asian American and Pacific Islanders (AAPIs), using the reproductive justice framework acknowledges the diversity within our community and ensures that different aspects of our identity, such as ethnicity, immigration status, education, sexual orientation, and gender identity are collectively considered and not ignored when addressing our social, economic, and health needs.
These issues must be considered in tandem because they affect our ability to self-determine our lives, our families, and our communities. For example, immigration status hinders our ability to form or unite with families, while voting rights affect our ability to translate our autonomy and decision-making to tangible benefits and workplace harassment interferes with our ability to provide for ourselves.
While these judges claim to uphold the Constitution, they’ve refused to uphold some of our most basic rights. Their words and actions all evince efforts to undermine the rights of our community. Trump’s judges claim to hold true to the law in their work while willfully ignoring lived experiences and intentions of the law written to protect individuals.
Judges Harming Our Community
AAPI immigrant communities are vast and make up a large portion of the overall AAPI population and 27 percent of the entire foreign-born population.⁵ Immigrants in the United States face discrimination and injustice, often live in fear of deportation, lack access to health care, and experience other forms of harm such as wage theft and xenophobic rhetoric in their day to day lives. Families are separated or stranded across continents because of immigration laws and judges who refuse to recognize immigrant rights in their rulings. The inability to self-determine where one lives and whether they can unite with their families is contrary to reproductive justice values.
A number of judges nominated under the Trump administration built their careers on opposing immigrant rights.
Before his confirmation to the Fifth Circuit, Kyle Duncan authored an amicus brief arguing against the Deferred Action for Childhood Arrivals (“DACA”).⁶ He also filed an amicus brief against Deferred Action for Parents of Americans (“DAPA”), stating that “[m]any violent criminals would likely be eligible to receive deferred action under DAPA’s inadequate standards,”⁷ despite the fact that DAPA recipients would have had to undergo a background check and certain felonies and misdemeanors would have disqualified them from the program.⁸
Supreme Court Justice Brett Kavanaugh voted to allow the implementation of a revised “public charge” rule that would deny permanent residency to a petitioner if they have applied for public benefits while advocates continued to challenge the rule in courts.⁹ Justice Kavanaugh further refused to recognize immigrant rights by dissenting with the majority in allowing people to seek asylum in places other than a port of entry.¹⁰ If Justice Kavanaugh had his way, individuals seeking asylum would have faced bigger barriers to entering the United States.
Judge Michael Park of the Second Circuit stands out for the dozens of asylum petitions he denied. During his nomination to the Second Circuit, he defended the administration’s recent attempt to insert a citizenship question on the 2020 Census, which would have led to communities of color being undercounted and fewer resources allocated to them.¹¹ Once confirmed to the bench, he refused a Chinese woman’s asylum petition because she was “inconsistent about how many people came to take her to get a forced abortion, and she did not offer a compelling explanation for this inconsistency, which goes to the heart of her claim.”¹² His opinion demonstrates a cold refusal to understand trauma or the lived experiences of petitioners seeking refuge in this country. Read here for our opposition letter against Michael Park, submitted to the U.S. Senate.
Access to Health Care
Access to a full range of reproductive health services is a necessary part of reproductive justice and fits within a broader context of health and wellness for the AAPI community. We require access to health care in order to ensure our families and community are safe.
To this end, the Affordable Care Act (ACA) has been hugely instrumental in enrolling millions of individuals previously without affordable health insurance.¹³ Enactment of the ACA in 2010 expanded health insurance coverage to an estimated 20 million Americans, including more than two million AAPIs. The ACA also provided millions of AAPIs with access to preventive services at no cost to the patient, such as Pap smears and mammograms.
President Trump’s newly confirmed judges have been outspoken opponents of the ACA and often it is that opposition that led to their nominations.
Prior to being confirmed to the bench, Kyle Duncan was lead counsel in Burwell v. Hobby Lobby,¹⁴ a Supreme Court case that ultimately exempted certain employers from providing health plans that covered contraceptives. Judge Michael Park also represented Kansas in the state’s attempts to ban Planned Parenthood from providing care through Medicaid.¹⁵ Cory Wilson called the ACA “illegitimate” and “perverse.”¹⁶
On the bench, these judges actively disregard our community’s right to access affordable health care. President Trump’s Fifth Circuit nominee, Kurt Engelhardt, cast the deciding vote against the individual mandate of the ACA.¹⁷ The issue is waiting to be heard by the Supreme Court. If the Supreme Court agrees with the Fifth Circuit, it could have deep negative impacts on the future of the ACA and health care access in this country.
Access to Abortion Care
Everyone should be able to get the health care they need, including abortion—no matter where they live, where they came from or how much money they make. True access to abortion care, not simply the legal right to abortion, is critical to ensuring our communities can exercise their bodily autonomy and make choices about their bodies and their families.
Members of the AAPI community face barriers at the intersections of our identities. Immigrants may struggle with language barriers when navigating the health care system and women with low incomes may be unable to afford care. “Sex-selective” abortion bans are a type of anti-abortion legislation born out of racist stereotypes that AAPI women end their pregnancies based on son preference. Research has found these stereotypes to be inaccurate; foreign born Asian Americans have more girls than white women.¹⁸ Yet these laws force doctors to racially profile AAPI women and stigmatize their abortion decisions.
During his presidential campaign, Trump committed to nominating Supreme Court justices who would overturn Roe v. Wade¹⁹ and indeed, his judicial nominees have built their careers on dismantling access to abortion. These judges continue to demonstrate their hostility towards our bodily autonomy and agency on the bench.
Trump judges Eric Miller and Kenneth Lee cast key votes to allow the Trump administration to continue with its “gag rule” to punish health care providers who provide abortion or refer patients to abortion care by withholding funding.²⁰ And Trump judge John Bush wrote the decision that upheld Kentucky’s “informed consent” law designed to discourage individuals from seeking an abortion.²¹
As an attorney for the Thomas More Society, an anti-abortion group, Sarah Pitlyk built her career championing “sex-selective” abortion bans. For example, she wrote an amicus brief arguing in favor of sex and race selective abortion bans, based on a damaging, erroneous, and xenophobic assumption that AAPI women prefer sons over daughters.²²
Prior to his confirmation, Justice Kavanaugh was a judge at the influential District of Columbia Circuit. The District of Columbia Circuit is known as the “Second Highest Court in the Land” because suits aimed at U.S. Congress and federal agencies are often brought into this court.²³ As a judge in the D.C. Circuit, he revealed his anti-abortion stance by voting to further postpone an unaccompanied minor’s abortion while she was in immigrant detention.²⁴ Read our letter opposing Justice Kavanaugh here. Once confirmed to the Supreme Court, Justice Kavanaugh dissented with the majority ruling that stopped a Louisiana abortion restriction from going into effect while the law was being challenged in the courts.²⁵
Kyle Duncan, a judge on the Fifth Circuit Court of Appeals, ruled to ban abortion clinics from providing services during the coronavirus pandemic.²⁶ NAPAWF opposed his nomination based on his career of actively barring access to abortion.
Voting is a fundamental right as well as a tool to ensure our interests are represented in the way our government is run. In recent years, voting rights have been subject to attacks and limitations, making it more difficult for communities to exercise their rights.
President Trump’s nominees have long been against voter rights, often leading efforts to further disenfranchise historically marginalized communities.
Andrew Brasher, now a judge for the Middle District of Alabama, systematically worked to strike down voting rights for Black communities and other communities of color. Read our opposition letter here. Most notably, as an attorney in the Alabama Attorney General’s office, Judge Brasher filed an amicus brief in Shelby County v. Holder in support of gutting the Voting Rights Act (VRA), claiming that the need for the law had “faded away.”²⁷
Supreme Court Justices Kavanaugh and Gorsuch were part of the majority in the decision to prevent Wisconsin voters from participating in April’s primary election by mandating that absentee ballots be postmarked by April 7, 2020 and received by April 13, 2020,²⁸ rather than extending the date and expanding options for avoiding in-person voting during the pandemic.
In another case, they joined the anti-voting rights majority in barring issues of political gerrymandering from being decided on by courts.²⁹ They also argued that the U.S. Department of Commerce had authority to include the citizenship question on the 2020 Census.³⁰
Together, racial and gender discrimination combine to produce economic injustice for many AAPI women. Many immigrant AAPI women occupy low-wage and isolated jobs such as nannies, caretakers, and other types of domestic service and are especially vulnerable to harassment.³¹ AAPI women make $0.90 to as low as $0.50 per dollar that white non-Hispanic men take home. Several AAPI ethnic subgroups experience some of the widest wage gaps among all women: Hmong and Cambodian women earn on average only 61 and 57 cents, respectively, for every dollar white, non-Hispanic men make.³² Often, a failure to advance the economic justice of AAPI women, especially AAPI immigrant women, is borne out in our ability to form, provide for, and support our families, which is why judges’ failure to uphold economic protections harms our communities.
Trump judges have shown consistent hostility towards workers and their rights.
Prior to his nomination to the Supreme Court, Judge Kavanaugh’s rulings consistently disregarded workers’ rights and he found for discriminatory employers.³³
Trump judge Amul Thapar was a deciding vote in a case that ruled against a woman who was fired after bringing a complaint of sexual harassment in her workplace.³⁴ Trump judges also consistently ruled against workers seeking payment for overtime worked or for discrimination claims. Judge Andrew Brasher struck down numbers of employment discrimination claims. In one case, he found the employer’s acts of sexual harassment were “exceedingly weird” yet found it did not rise to the level of severe or pervasive harassment based on sex.³⁵
While President Trump and his Senate allies are working to nominate and confirm dangerous judges, we are not helpless. Federal judges are vetted and voted on by the Senate. In turn, Senators are sensitive to constituents, who can help sway their decisions through calls and emails. Next time a judicial nominee has a record of pushing harmful laws or policies, you have the power to stop it by reaching out to your Senators. We share this guide to equip people with the knowledge to advocate for fair and equitable judges. Courts matter and it is up to us to hold our elected officials accountable for how they will safeguard them.
NAPAWF is committed to speaking up against judicial nominees that hinder our path to reproductive justice and to uplifting voices from our community who experience the impact of these rulings on a day to day basis. For more of our work on opposing judicial nominations, visit our website www.napawf.org/the-courts.
Who is NAPAWF?
The National Asian Pacific American Women’s Forum (NAPAWF) is the only national, multi-issue Asian American and Pacific Islander (AAPI) women’s organization in the country. NAPAWF is the only organization focused on building power with AAPI to influence critical decisions that affect our lives, our families and our communities. More about us →
- Yuan Lan Shi v. Barr, 2020 U.S. App. LEXIS 12230
- Brian Citro et al., “Replacing Myths with Facts: Sex-Selective Abortion Laws in the United States.” Cornell Law Faculty Publications. (2014) http://scholarship.law.cornell.edu/facpub/1399 (last visited June 17, 2020).
- Lindsey v. Ala. Dep’t of Labor, 2020 U.S. Dist. LEXIS 23309