Winter 2004

Section Proposes Policies on Civil Marriage, Universal Jurisdiction, Native American Health Care, and HIV/AIDS

At the ABA 2004 Midyear Meeting in San Antonio, Tex., the ABA House of Delegates will consider Section-sponsored Reports with Recommendations addressing civil marriage, universal jurisdiction, health care for Native Americans, and the HIV/AIDS pandemic.

The civil marriage recommendation opposes any federal enactment that would restrict a state's ability to prescribe the qualifications for civil marriage within its jurisdiction or restrict a state from giving effect to a validly contracted civil marriage under the laws of another jurisdiction.

The Section's proposal was drafted in response to stepped-up efforts to prevent states from prescribing definitions of marriage. A bill was introduced in the U. S. House of Representatives last May to amend the U. S. Constitution to restrict the definition of marriage to the union of a man and a woman. A companion bill introduced in the Senate in November has four co-sponsors.

Although the Section's Recommendation is not intended to place the ABA on record as either for or against allowing same-sex couples to enter into civil marriage, it seeks to preserve states' authority to decide the terms under which couples may do so.

The Section of Family Law is co-sponsoring the Report with Recommendation.

The proposal originated with the Section's Committee on Sexual Orientation and Gender Identity. Lead drafters include Committee Co-chair Courtney Joslin and Committee Vice Chair Mary Bonauto.

The Recommendation on universal jurisdiction proposes that the ABA recognize the principle of universal criminal jurisdiction as an important tool in the worldwide effort to strengthen the rule of law by providing the means for the prosecution of persons who have committed serious international crimes, regardless of where they are committed or by whom or against whom, and supports the principle when it is exercised consistent with international human rights standards.

The proposal also calls for policy for the proper exercise of universal criminal jurisdiction by nations and the courts of those nations and urges the United States to work with governments of other nations to take all reasonable steps to ensure that the application of universal criminal jurisdiction is uniform and consistent.

The Standing Committee on Law and National Security, the Section of International Law and Practice, the Center for Human Rights, and the Criminal Justice Section all are co-sponsors of this Report with Recommendation. Lead drafters of the proposal include International Human Rights Committee Co-chair Douglass W. Cassel, Jr., Council Member Steven T. Walther, and Immediate Past Section Chair Mark D. Agrast, as well as representatives of other entities.

The Native American Health Care proposal supports the efforts of the National Tribal Steering Committee to address the inadequacy of health care for many American Indians and Alaska Natives through the reauthorization of the Indian Health Care Improvement Act (IHCIA). It also urges Congress and the Executive Branch to address areas where available health care is deficient and calls for federal policy that encourages the administration of health care to Indian and Alaska Natives by Indian tribes and tribal organizations.

The accompanying report explains that the American Bar Association has played a leading role in addressing legal issues supporting adequate health care. However, provisions for American Indians and Alaska Natives remain inadequate to control the increasing disparities between health care for these populations and other Americans.

The proposed resolution would build upon the existing ABA policy by urging the federal government to continue to fulfill its treaty obligation to improve the health care of American Indians and Alaska Natives.

The proposal originated with the Native American Concerns Committee. The lead drafters of the proposal were Committee Co-chair Elizabeth Bell and Vice Chair Bobo Dean.

The fourth policy proposal urges the United States to implement legislation, policies, programs, and international agreements that address or are relevant to the HIV/AIDS pandemic in a manner consistent with international human rights law and science-based prevention, care, support, and treatment objectives.

The accompanying report stresses that the role of law in addressing HIV/AIDS has become increasingly important as the disease has spread throughout the world. In particular, as a diverse range of science-based public health approaches has been implemented globally to reduce HIV transmission rates and to mitigate the consequences of HIV/AIDS on individuals and communities, the fulfillment and protection of fundamental human rights also has come to be recognized as indispensable to an effective response to the pandemic.

The ABA AIDS Coordinating Committee developed this Report with Recommendation.

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