Laxalt and the law

In February 2014, Republican Adam Laxalt was campaigning for the job of Nevada attorney general. The incumbent in that job, Democrat Catherine Cortez Masto, was facing a policy decision.

In 2000-2002 Nevada voters had approved ballot Question Two, a ban on marriage equality. Nevadans started having second thoughts almost immediately—the winning majority of the ballot measure dropped from 69.62 percent in first round voting in 2000 to 67.20 percent in second round voting two years later. Within a decade, opinion surveys showed a sharp change in public sentiment, so the 2013 Nevada Legislature voted to put the issue back on the ballot.

Also in 2013, the U.S. Supreme Court in Windsor vs. United States had overturned federal legislation exempting the states from recognizing each other’s marriages. That was followed by SmithKline Beecham v. Abbott Laboratories, a U.S. Court of Appeals for the Ninth Circuit ruling in January 2014. It dealt with jury selection in a drug company case, but its reasoning was broad and gave notice, as the legal website Verdict put it, that the Ninth Circuit had found “Windsor is not limited by the facts or context of that case, and instead stands for the legal proposition that heightened [Fourteenth Amendment] scrutiny now applies to all government actions that discriminate on the basis of sexual orientation.”

If that was true—and Cortez Masto’s analysis agreed that it was—it meant that Nevada stood virtually no chance of prevailing in a challenge that was pending in the Ninth Circuit to its marriage equality ban. She had been preparing to go to the Ninth Circuit to defend the state law, but now she said, “The decision in SmithKline is controlling and sets a new standard of review for cases in the Ninth Circuit.” She dropped the case.

Adam Laxalt chose this moment to pick a fight with her.

“In consecutive elections, the voters defined marriage as they saw fit, and it is now part of our Constitution,” he said in a prepared statement given to the Las Vegas Sun. “I believe if the voters want to amend that marriage definition within our Constitution, they have the ability and the right to do so.”

That wasn’t the issue in the litigation, but, then, candidate Laxalt was fighting a political battle, not a legal one. However, Republican Gov. Brian Sandoval—also a former state attorney general and federal judge—said he agreed that, given the SmithKline decision, Nevada’s case was “no longer defensible.” (The Ninth Circuit later ruled against Nevada.)

As it happened, on marriage equality, Laxalt left a long trail of evidence for the view that he is anti-gay, and it goes beyond marriage. In 2010 in the American Spectator, Laxalt had written, “Intellectual essayists and pundits alike all profess from a high perch that the current military policy on homosexuality in the military is out of date and must be changed. … Of course, the brain trust doesn’t understand that the military is one of the truest cross sections of America in terms of families, hometowns and communities, and that they are not a THEY. For most, THEY are US. The pundits are THEY—they who have not served.”

The questions were heightened by the fact that he picked the fight with someone who was not even in the attorney general’s race.

“I cringed when I heard he was engaging with Cortez Masto,” said one leading Republican lawyer. “One of the first rules of politics is run your own race. She was stepping down. She wasn’t his opponent.”

It was the first of a long line of disputes that have made Nevada’s legal community wonder where the attorney general’s loyalties lie—with the law or with his personal views. The American Civil Liberties Union of Nevada—which has become influential at the Nevada Legislature by avoiding litigation and seeking change through legislation—is suspicious of him. “Nevadans need to be aware that some of the decisions of voters in Nevada face a perilous future because Laxalt either does not know or does not care about them,” said ACLU exec Tod Story.

Nevadans occasionally write laws for themselves. Laxalt sometimes does not agree with them. That’s fine—many state attorneys general vigorously carry out laws they do not support. But Laxalt has raised questions about whether he is one of them.

In the case of the marriage equality measure, he enthusiastically supported it and was anxious to defend it. But other voter-approved measures on abortion, marijuana and background checks he opposed—and was either lukewarm about making sure they were carried out or took actions that could have undercut them.

What does that mean for all the legislature-enacted laws he would have to carry out if he were elected governor?

In 2016, Nevadans approved two ballot measures, both opposed by Laxalt. Ballot Question One required background checks on some weapons purchases or transfers where they were not already required. Ballot Question Two made marijuana use legal under state law.

Background checks

Laxalt has been harshly criticized for interpreting Question One to mean that the checks must be conducted by the federal government instead of through the federal process. However, it is apparent that the sponsors of the measure blundered by requiring exactly that. The measure itself says checks must be conducted by “the National Instant Criminal Background check system … and not the Central Repository.” The NICB is the federal system. The Central Repository is the state system. The sponsors were apparently suspicious that state government might not diligently conduct the checks, although—paradoxically—the FBI later said Nevada’s system is more thorough than the federal system, covering additional databases and catching more domestic violence records.

But while Laxalt’s legal opinion was sound, it was what he did next that raised questions. He did nothing. Most attorneys general would have said something akin to, “While the ballot measure is unworkable, the public has made its feelings known, and we are going to get the job done. I will work with the legislature and advise on ways to accomplish the same thing through different language.”

Laxalt didn’t do that. Rather, he gleefully gave a National Rifle Association convention speech gloating that he had won on the issue.

Laxalt and Sandoval were in sync on this one. In 2013, Sandoval had vetoed a measure providing for universal background checks. But both men were brought up short when, in 2017, a shooter in a Las Vegas hotel room killed 58 people at a concert below, injuring 546. As Newspapers around the world reported that Nevada had an unenforced background check law, Sandoval—in what had to be the late-barn-door-closing of all time—asked Laxalt to find a way to implement the checks called for in Question One. Laxalt, after a brief survey, sent out an opinion written by a deputy that offered little.

Laxalt’s campaign website now carries a statement under a headline that does nothing to suggest Nevadans are all in this together: “Background check supporters should blame themselves.”

Laxalt likes to point out that Question One passed narrowly, as though this makes it illegitimate. As it happens, it passed by a slightly wider margin than Laxalt received in his only race for public office.

Marijuana

That wasn’t the case with ballot Question Two, providing for legal marijuana. It won easily. Laxalt has said, in one of his many written statements (he seldom appears in public, takes questions, or is responsive if he does):

“Although I opposed the Question Two ballot initiative proposing the legalization of recreational marijuana in Nevada, I also pledged to defend the measure were it approved by the voters. Since Question Two’s enactment, my office has vigorously defended it against two related lawsuits that threatened to slow or even halt the implementation of the law, and has further assisted with the formulation and adoption of regulations to allow dispensaries to commence sales of recreational marijuana within just six months of the law’s enactment. My office has expeditiously facilitated the implementation of the law in the face of considerable uncertainty about the status of federal enforcement activity.”

Others disagree. He is the only attorney general from a state with legal marijuana who has not asked Congress to make banking easier for the pot industry. When the Department of Taxation asked for a legal opinion on whether public sites for smoking marijuana were permitted, he declined to provide one.

Nevada Democratic Party: “Laxalt has repeatedly dodged questions on whether he supports allowing marijuana businesses to bank by saying he was waiting to meet with Nevada’s new U.S. Attorney, but when he finally met with her, he refused to comment on their discussion.”

This all came to a head on primary election night last month, when—after winning the Republican nomination for governor and declaring victory in a hotel ballroom—Laxalt was surrounded by news crews, and he was asked about abortion.

Anomaly

Decades ago, when the fact of legal abortion became difficult to ignore, some abortion opponents changed strategies. Instead of trying to repeal legal abortion outright, they decided to try some new approaches.

One was to propose new laws that made the abortion procedure seem ugly to the public, such as death certificate requirements or bans on late-term abortion or bans on commercial use of aborted fetuses.

In her memoir, Through the Glass Ceiling, former Nevada lieutenant governor Sue Wagner—an abortion supporter—discussed a bill in the 1983 Nevada Legislature that would have required cremation of a fetus: “That, again, goes back to the whole idea that you make this uglier and uglier, if you will, to make people say that it is just getting to be so awful.”

The second strategy was to try load the abortion procedure down with peripheral administrative requirements. Former Nevada assemblymember Robert Sader, a parent, voted for parental notification in 1985. In the next two years, he saw opponents of abortion in various states enacting a wall of many small restrictions around abortion, effectively preventing the procedure from happening.

“So it seemed to me at the time that in the balance that the rights of the parents were fundamental enough and important enough to suggest that these court procedures ought to be required for minors,” he told us in 2006. “Now, after that occurred, there was this continuing group of provisions, or let’s say new proposals, consistently proposed by the right-to-life groups that chip away at abortion laws, or a woman’s right to choose.”

These developments complicated the job of journalists covering the abortion issue. Unfortunately, many journalists who reported on politics never really grasped these approaches. They tended to ask candidates, “What is your position on abortion?” and stop there.

In Adam Laxalt’s case, that happened in his only run for public office. But it continued to happen during his one term in the office, most recently in December after he had pushed other GOP candidates out of the race and was the apparent Republican nominee. The Nevada Independent asked, “What is your stance on abortion? Should it be outlawed at all stages or just some? Should there be more restrictions on it, such as a waiting period, parental notification for minors, or an ultrasound requirement?”

Laxalt replied, “I’m pro-life.”

No follow-up questions were asked. That is how he has preferred to be portrayed, without providing specifics. Vote Smart, a website that tracks the positions of politicians across the country, posted this on its Laxalt abortion page: “We do not seem to have anything yet for this candidate.”

On the night of the primary election last month, KOLO News reporter Terri Russell tried to get more, questioning him in depth.

Russell: “So, you have filed two amicus briefs in the last five months. One … outlawing second trimester abortions protections. And the other one, you asked the Supreme Court to overturn certain rules that California has on pregnancy centers. … Are you familiar with the voter referendum, Question Seven in 1990, passed three to one, that freezes the abortion laws here in Nevada? So my question is, what dog—you filed it on behalf of Nevada, but Nevada, really, doesn’t have a dog in the fight, does it?”

Laxalt: “We’re going to have many months to talk about this. The bottom line is my opponent has been very clear in the last many months. They’re incredibly extreme on abortion. We’re going to have plenty of time to have that debate. But, you know, I’m going to err on the side of life, and I’m somebody that was fortunate, brought into this world by that choice. But, you know, we’re going to look for common sense things, if we do anything.”

Russell: “You can’t change it without a vote of the people.”

Laxalt: “We’re happy to talk about that in the coming months.”

Russell: “Are you planning on doing that as governor? Would you propose a referendum for voters to vote on that? ’Cause that’s how it has to change in Nevada.”

Laxalt: “We’re going to look into it.”

Nevada has a history with the abortion issue that no other state has. As the result of a campaign launched in 1992 by women’s rights leaders, Nevada’s Roe-style law—Nevada Revised Statute NRS 442.250—was placed on the ballot by petition. This was a referendum vote, which differs from an initiative petition vote in that it does not provide for new law. Rather, it provides for a public vote of approval or disapproval of an existing law. If the law is approved, the legislature thereafter cannot change it without another public vote.

Question Seven

Laxalt’s closed mouth on the topic of abortion is designed to let him walk a tricky tightrope. He cannot attack the Roe-style state law itself without appearing to attack the voters’ judgment. (He has described Democratic nominee for governor Steve Sisolak’s stance of supporting the voter-approved law as a view that is “incredibly extreme on abortion,” which seems to criticize Nevadans for approving it.) So he tries to avoid talking about its provisions at all. But he uses the office of attorney general to get involved in other abortion issues that allow him to communicate his anti-abortion stance to that constituency. It is a judgment call for voters whether, in taking those stances, he is also undercutting Nevadans’ action in approving Roe.

• On July 14, 2015, the Center for Medical Progress posted a video supposedly showing a Planned Parenthood physician telling two buyers with a biologics firm that Planned Parenthood sells organs from aborted fetuses.

The videos caused a sensation and became an issue in the presidential campaign, prompting widespread actions against Planned Parenthood until investigations showed the buyers were actors, the videos had been held for a year before release, the audio had been edited, and two anti-abortion activists were charged with felonies. One of those taken in by the videos was Adam Laxalt, who—using his powers as attorney general—launched an investigation of Planned Parenthood in Nevada.

In a Sept. 15, 2015 letter to offices of the group in Las Vegas and Reno, Laxalt wrote, “Please confirm in writing that the Nevada facilities do not perform surgical abortions. Moreover, please also confirm that the Nevada facilities do not have or participate in tissue donation programs and confirm to this office that PP’s assertions are true in regards to the PP Nevada facilities.”

The probe came to little and was halted 11 weeks later.

• On March 14, 2018, Laxalt signed onto a friend of the court brief written by Louisiana’s attorney general supporting a Texas law that prohibits physicians from using the most common abortion procedure—dilation and evacuation—in the second trimester. A district court judge overturned the law, ruling that there was no medical basis for it.

• On March 27, Laxalt signed a letter written by Texas Attorney General Ken Paxton to the civil rights office of the cabinet-level federal Department of Health and Human Services. The letter supports federal regulations that provide for conscience protections for health care workers.

The U.S. Supreme Court on June 4 ruled that a Colorado baker who refused to make a wedding cake for a gay couple was within his rights. It’s quite a leap, however, from bakers and wedding cakes to allowing health care workers to pick and choose which medical procedures they will participate in. Indeed, in the Colorado case, the majority opinion by Justice Anthony Kennedy said later cases may present “a context that may well be different going forward.”

Abortion, including late term abortions, is sometimes a life-saving medical procedure. In addition, some religions such as Laxalt’s Catholicism take a broad policy of opposition to abortion in all or nearly all cases, but that is not true of faiths like Episcopal, Evangelical Lutheran, Judaism or some branches of Islam, nor does it reflect the view of some of those who are not church members.

The letter Laxalt signed also makes reference to employers who “coerced health care professionals into participating in abortions, dispensing drugs that end human life, and providing health insurance coverage for abortions.” Laxalt has not, in other contexts, referenced instructions or directions given to employees as “coercion.”

• On Jan. 16, 2018, 20 state attorneys general—Laxalt among them—signed onto a friend of the court brief in a case before the U.S. Supreme Court in NIFLA v. Becerra. The brief, again drafted by Texas Attorney General Paxton, argued against a California law requiring anti-abortion clinics to post signs giving information about the availability of tax-funded abortions.

Crisis pregnancy centers (CPCs) were created in 1968—before Roe—to give pregnant women support and alternatives to abortion. Over the years, some CPCs have been accused of providing misleading or inaccurate information to women in order to avert their going ahead with abortions, and also to dissuade birth control use. The California Legislature—using a technique originally employed against abortion, of requiring physicians to give women information intended to persuade them not to go ahead with abortions—enacted a law requiring CPCs to post a notice saying the state has programs to subsidize family planning, including abortion. CPCs that lack physicians are also required to disclose that fact.

The brief Laxalt signed said this is not genuine informed consent: “In contrast, a state’s desire to compel clinics to disseminate information about the availability of state funding for procedures those clinics do not perform has nothing to do with allowing a patient to assess the risks and consequences of a medical procedure about to be performed.” It also compels CPSs to promote exactly the procedure they exist to prevent, the brief argued.

Whether such actions by Laxalt can or would in the future undercut the state law approved by Nevadans is a subjective call. But his unwillingness to discuss the matter on election night is puzzling.

What is clear is that Laxalt came to Nevada with a fully formed ideological agenda, much of which he picked up from his grandfather and those around them when he was growing up. Some of it, such as his stances on public lands, are not supported by most Nevadans. He often seems out of tune with Nevada sentiments. The legislature, not the governor, sets state policies. If he is elected, who will govern—the chief executive or the ideologue?

“I will not pick and choose which laws I think are good or bad,” he once said.

Then why the disparate handling of ballot measures, some of which he backs, others of which he opposes?

“Is he going to implement his own position or is he going to respect the will of the public?” the ACLU’s Story asked.