Last year, then-President Trump imposed unprecedented sanctions against the world’s only permanent international criminal court and my work to support justice for the victims and survivors of human rights atrocities ground to a halt. Since 2012, I have served as the special adviser on crimes against humanity to the prosecutor of the International Criminal Court (ICC), Fatou Bensouda. In this role, I provide Bensouda and her staff with legal advice and assistance in their investigation and prosecution of crimes against humanity around the world.

In June 2020, Trump issued an executive order authorizing the imposition of sanctions against ICC officials involved in investigations and prosecutions of U.S. personnel (and those of certain allies) for genocide, war crimes, and crimes against humanity. It also punishes anyone, including experts like me, who supports these ICC officials, regardless of whether that support is related to investigations and prosecutions of U.S. and allied personnel. Last September, then-Secretary of State Pompeo designated Bensouda and another senior court official under the order, and the U.S. government implemented sanctions against them. As a professor of international criminal law and special adviser to Bensouda, I can no longer continue my work without risking prosecution and punishment by my own government.

That’s why, with two other law faculty and an ACLU human rights attorney, I challenged the Trump administration’s order in a lawsuit filed January 15. The order violates our First Amendment rights and those of other academics, lawyers, and human rights advocates by punishing our provision of legal and technical advice to the court. We can no longer share our human rights expertise, provide evidence of human rights atrocities to the court, or represent victims in proceedings before the court.

I had hoped that the Biden administration would quickly rescind the executive order. After all, the administration has promised that “America is back” and ready to work closely with its allies to meet shared challenges. The ICC is a critical part of the international legal order — the 123 states parties to the court include many close allies of the United States. Unfortunately, although the Biden administration has rejoined the Paris Agreement, the World Health Organization, and the U.N. Human Rights Council, it has not yet rescinded Trump’s order and my co-plaintiffs and I continue to experience harm. Last night, we asked the court in our case to issue a preliminary injunction against the effects of the sanctions regime so our constitutional rights are protected while our lawsuit is pending. We must be allowed to continue our work to support justice for victims of atrocity crimes.

The ICC was created in 1998 to investigate and prosecute genocide, war crimes, and crimes against humanity when national systems fail to, or are incapable of doing so. The court began operating in 2002, filling a critical void in enforcement of international human rights and establishing a path to justice for victims of grave human rights violations when national legal systems have failed them. It is the direct successor of the Nuremberg Tribunal, which the U.S. and its allies established after World War II to try members of the Nazi regime for the atrocities of that war, including the Holocaust. Its establishment is a tribute to American ideals and commitments to justice and the rule of law.

Before the Trump administration’s order, I worked closely with Bensouda and her staff by providing pro bono legal advice and conducting trainings for the Office of the Prosecutor (OTP). Because of the order, I am no longer free to do this work. I have also been unable to contribute to important conversations about the ICC, including on recent judgments for fear of punishment. My students have paid the price as well; I had to cancel one of my annual research seminars in which students would have conducted ICC-related legal research in support of my work for the OTP.

The work of my co-plaintiff K. Alexa Koenig was also abruptly stopped by the executive order. Koenig specializes in the use of emerging technologies to help map and document human rights abuses and mass atrocities in conflict zones. With her law students, she regularly worked with OTP staff, consulting on how scientific and technological evidence and tools might be employed to aid the office’s work. Koenig’s work resulted in the creation of a Technology Advisory Board at the OTP. All of this work — including that of students and other human rights lawyers who collaborated with her — is now on hold.

My co-plaintiff Naomi Roht-Arriaza, who is also a law professor in our suit, was also forced to abandon her critical research and advocacy. Professor Roht-Arriaza has worked alongside Latin American civil society groups investigating the role of “grand corruption” — corruption occurring at the highest levels of government — in human rights atrocities. Her pioneering work on grand corruption shows, for example, patterns of murders tied to illicit mining and natural resource extraction operations in Venezuela. Prior to Trump’s executive order, she was meeting with OTP officials and urging them to expand the scope of their investigation into Venezuela to incorporate the issue of grand corruption. In the face of civil and criminal penalties under the U.S. sanctions order, Professor Roht-Arriaza had to cease all communication and engagement with the ICC.

The executive order has also interrupted crucial efforts to bring relief to survivors and victims of U.S. human rights violations. Steven Watt, a senior staff attorney with the ACLU’s Human Rights Program and the final named plaintiff, represents six survivors and victims of forced disappearance, torture, and other war crimes and crimes against humanity committed by U.S. military and CIA personnel in Afghanistan. The ACLU sought justice on behalf of these clients in U.S. courts, but the U.S. government intervened to have all but one of the cases dismissed. Until the sanctions regime stopped him, Watt was providing documented evidence of torture to Bensouda’s office to support its investigation in Afghanistan. He had also applied to represent his clients as official victims in the ICC proceedings, but can no longer proceed. For these six men and hundreds more survivors and victims of U.S. war crimes and crimes against humanity in Afghanistan, the ICC is their last hope for accountability. The sanctions regime extinguishes that hope.

As it stands, the regime bars me and my co-plaintiffs, under threat of severe civil and criminal penalties, from engaging in activity clearly protected by the First Amendment. The sanctions regime has not only chilled our constitutionally protected speech, but also that of many other human rights advocates, lawyers, and others whose work supports the ICC’s pursuit of justice.

One federal court has already ruled, in a separate lawsuit filed by the Open Society Justice Initiative (OSJI), that the Trump sanctions regime punishes those who speak directly in support of the OTP and its work. That ruling temporarily blocked the U.S government from enforcing its ICC sanctions regime against OSJI and four academics and human rights lawyers. Our lawsuit seeks to invalidate the executive order and block its enforcement against any individual seeking to assist the ICC.

President Trump’s unprecedented executive order harms international and U.S. efforts to provide accountability for gross human rights violations. It is actively preventing us from providing our knowledge and expertise to our students, colleagues, and the American public more broadly. The Biden administration should rescind the executive order immediately and demonstrate to the world that America really is back and ready to stand up for the rule of law and human rights. Our work — and the work of so many others who are supporting the pursuit of justice for human rights atrocities — depends on it.

The 2020 election was a historic year for lawmakers who identify as transgender: Voters across the country elected six trans lawmakers to state office. Sarah McBride was one of those lawmakers. Elected as a State Senator for Delaware’s first district, Sen. McBride is now the highest ranking trans lawmaker in the U.S. Her candidacy and her voice in trans advocacy have shown how trans people can become powerful leaders in public life.

Sen. McBride joined our podcast this week to discuss her journey into politics and trans advocacy and to let us know what we can all do to build a more inclusive world.

“It shouldn’t be a privilege to be able to keep your job or to be able to stay in school, to be able to be welcomed by your community,” said Sen. McBride of her journey into advocacy. “Those should be rights guaranteed to everyone, not a privilege for the few.”

State Senator Sarah McBride on Making History and Affirming Trans Lives

State Senator Sarah McBride on Making History and Affirming Trans Lives

The 2020 election was a historic year for lawmakers who identify as transgender; voters across the country elected six trans lawmakers to state office. Sarah McBride, was one of those lawmakers. Elected as a State Senator for Delaware’s first dist...

The 2020 election was a historic year for lawmakers who identify as transgender; voters across the country elected six trans lawmakers to state office. Sarah McBride, was one of those lawmakers. Elected as a State Senator for Delaware’s first dist...

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Update: On June 24, 2022, the U.S. Supreme Court issued a shameful ruling overturning Roe v. Wade. Learn more about how the ACLU continues to fight for abortion access and what steps you can take here.

Despite being a year into a global pandemic that has caused a staggering half a million deaths in the U.S, many state legislatures still have their sights trained on a favorite target: decimating access to abortion care.

In 2020, most states — with some notable exceptions — shifted their attention to addressing the pressing needs created by COVID-19. But now, anti-abortion politicians are returning to their prior obsession: interfering with people’s personal medical decisions. By the end of February, states had already introduced 384 anti-abortion measures and enacted eight abortion laws.

In many ways, this year will feel like a re-play of 2019, when 8 states passed bans on abortion from the earliest days of pregnancy. Thus far, South Carolina has passed a 6-week ban (already blocked in court) and Arkansas’s governor just signed a total ban. Other states could soon follow suit.

Beyond the bans, however, are more subtle and nefarious restrictions on the horizon — bills that will push abortion out of reach without explicitly banning it.

This has long been the strategy of anti-abortion extremists: chip away at abortion access while leaving the legal right in place, even if in name only. That strategy shifted, however, in 2019 when abortion opponents began to hope the Supreme Court would use a near-total ban to overturn Roe v. Wade. Now, they are pursuing both strategies simultaneously.

While we’ve seen many of these restrictions before, this year has brought new variations. Already, several trends are emerging.

The first is related to medication abortion. Anti-abortion politicians already promote the dangerous myth of “abortion reversal,” forcing providers to tell patients they can stop a medication abortion mid-course and continue their pregnancy. But now, in Alabama, Arizona, Arkansas, Kentucky, Montana, and Oklahoma, they are considering bills that could prevent people from getting medication abortion at all.

Mifepristone, medication used for early abortion and miscarriage care, is safe and effective, demonstrating a stellar safety record in the 20-plus years since it was approved by the Food and Drug Administration. But it is still subject to medically unnecessary federal regulations — regulations that we are trying to get lifted — that make it far harder to access than it should be. State restrictions compound these barriers and abortion opponents are now seeking to make them even worse.

The second trend involves bans on abortion if even part of a patient’s reason might be based on the sex or race of the fetus or a fetal diagnosis. Previously, some states had singled out Down syndrome, making it illegal for doctors to perform an abortion if they have reason to know that diagnosis was a factor the patient’s decision — and we’ve challenged such laws in Tennessee and Ohio. But this year, states are increasingly looking to ban abortion whenever any kind of fetal diagnosis may be involved, as Arizona, Arkansas, Florida, South Carolina, West Virginia, and Wyoming may do.

These measures cynically attempt to exploit the fight for disability and other civil rights, pitting them against the fight for reproductive freedom. Let’s be clear: these laws do nothing to address the ableism people with disabilities face — or the discrimination against any marginalized group — in education, housing, and health care. They are simply a ploy to block access to abortion care.

Lastly, Arizona, Kentucky, Missouri, and Tennessee currently have bills that would require fetal tissue from an abortion to be buried or cremated, and in some cases receive a death certificate. We just filed suit against a law like this in Ohio. Such laws are cruel and entirely unnecessary, searching for a solution to a problem that doesn’t exist. They do nothing to respect or support a patient’s decision; instead, they impose intrusive mandates on abortion patients, regardless of their own wishes.

Because of racism and structural inequality, these types of restrictions — along with the hundreds of other medically-unnecessary restrictions that have been introduced — will fall hardest on people of color, low-income people, youth, immigrants, LGBTQ people, people in rural areas, and other marginalized communities.

And yet, some states are fighting back, acting to ensure the right to abortion remains protected within their borders, no matter what happens to Roe. Just last month, New Mexico passed legislation to repeal a 1969 abortion ban, removing the threat that it could go back into effect — an essential safeguard for a state that already provides a haven to those who cannot access care in their home state. It’s the second state, after Massachusetts, to move to protect reproductive freedom since Justice Ginsburg passed away last year.

Hoping to build on this momentum, in New Jersey, activists are pushing forward a comprehensive Reproductive Freedom Act to protect and expand access to a wide range of reproductive health care. And Delaware just introduced a bill to decriminalize abortion and ensure that no one can be prosecuted for ending a pregnancy.

In these uncertain times, one thing is certain: states will continue to be at the center of the fight over abortion. But the right to abortion — just like any other right — shouldn’t depend on where you live. This pandemic has both laid bare and exacerbated the health and economic disparities that are rampant in this county. Together, we will keep working to ensure everyone can access the health care they need, build the families they want, and make their own decisions about their lives — without stigma, shame or political interference.