Wednesday, July 3, 2013
The Fourth Circuit en banc today issued its opinion in Greater Baltimore Center for Pregnancy Concerns, Incorporated v. Mayor and City Council of Baltimore reversing the district court's granting of a preliminary injunction against the ordinance requiring a limited-service pregnancy center "provide its clients and potential clients with a disclaimer substantially to the effect that the center does not provide or make referral for abortion or birth-control services." Essentially, the city's concern is that certain pregnancy centers can be mistaken (or even masquerade as) reproductive medical centers but only offer specific counseling that women not terminate their pregnancies.
The challengers argued that the ordinance was facially unconstitutional under the First Amendment and the district judge granted summary judgment in their favor. For the en banc majority, however, "the summary judgment decision was laden with error, in that the court denied the defendants essential discovery and otherwise disregarded basic rules of civil procedure."
The majority opinion, authored by Judge King, in which Chief Judge Traxler and Judges Motz, Duncan, Keenan, Wynn, Floyd, and Thacker joined, stressed that its conclusion was procedural and that it did not express a view on the ultimate merits. Nevertheless, as in most cases, the merits and procedural issues are intertwined. For example, one of the crucial issues here is whether the speech being regulated is commercial or not. As the majority stated,
The district court’s denial of discovery and failure to adhere to the summary judgment standard marred its assessment of, inter alia, the City’s contention that the Ordinance targets misleading commercial speech and thus is subject to rational basis (rather than strict) scrutiny. While the strict scrutiny standard generally applies to content-based regulations, including compelled speech, see Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641-42 (1994), less-demanding standards apply where the speech at issue is commercial. Disclosure requirements aimed at misleading commercial speech need only survive rational basis scrutiny, by being “reasonably related to the State’s interest in preventing deception of consumers.” Zauderer v. Office of Disciplinary Counsel of the Supreme Court, 471 U.S. 626, 651 (1985) (explaining that, “because disclosure requirements trench much more narrowly on an advertiser’s interests than do flat prohibitions on speech, warnings or disclaimers might be appropriately required in order to dissipate the possibility of consumer confusion or deception” (alterations and internal quotation marks omitted)); accord Milavetz, Gallop & Milavetz, P.A. v. United States, 130 S. Ct. 1324, 1339-40 (2010).
There are two dissenting opinions. The first, by Judge Wilkinson, derides the majority for failing to acknowledge "the dangers of state-compelled speech." He notes that the Supreme Court "only recently reiterated" the importance of the doctrine in Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., the prostitution pledge case. Wilkinson accuses the majority of being enchanted with "extended procedures" and argues that it only authorizes a "fishing expedition" against the plaintiffs. The second dissent, authored by Judge Niemeyer, and joined by Judges Shedd, and Agee, as well as Wilkinson, contends that the ordinance governs noncommercial speech, mandates specific speech, and should be subject to strict scrutiny.
The judges did agree - - - amongst themselves and with the district judge - - - that St. Brigid’s Roman Catholic Congregation Incorporated and Archbishop William E. Lori lacked standing to be co-plaintiffs, but this issue is a divisive one. Indeed, there is an overdue Second Circuit panel opinion in the appeal of a district judge's conclusion that NYC's similar Local Law 17 was unconstitutional.
Moreover, the First Amendment challenges to pregnancy center "disclosures" as compelled speech mirror the First Amendment challenges to abortion provider "disclosures" as compelled speech, as in statutes from Kansas and South Dakota. The government's interest in preventing "misleading" speech or in providing full disclosure is exceedingly similar in both situations.
For scholars (including student scholars) looking for a terrific topic combining the First Amendment and reproductive rights, theses cases offer much.
Kansas' new abortion law that took effect July 1 - - - running 70 pages and known as Kansas HB 2253 - - - has already been the subject of a constitutional challenge. HB 2253 seeks to restrict abortion and other reproductive services in numerous ways in accord with the legislative finding that "the life of each human being begins at fertilization." The Complaint filed by the local Planned Parenthood organization, Comprehensive Health of Planned Parenthood of Kansas and Mid- Missouri, Inc. (CHPPKM) specifically challenges two provisions of the law on First Amendment grounds.
Planned Parenthood v. Rounds. Even though there was some "uncertainty" as to the reliability of the studies purporting to show a link between abortion and suicide ideation - - - including the very meaning of the word "risk" - - - the majority in Rounds found that the provision survived by giving great deference to South Dakota. One question will be whether the Tenth Circuit will be as deferential as the majority in its sister circuit or be as rigorous as the dissenting judges in Rounds.
Second, the complaint challenges the provision that compels CHPPKM "to place on the homepage of its public website both a hyperlink to a government website that contains the government’s viewpoint on abortion, and a scripted message of endorsement of the content on the government’s website, even where CHPPKM disagrees with the message." In light of last month's decision by the United States Supreme Court in United States Agency for International Development v. Alliance for Open Society International, Inc., - - - the prostitution pledge case - - - invalidating a requirement that organizations that received direct funding could not be compelled to espouse views that were not their own, this claim seems on firm First Amendment footing. The distinction is a factual one - - - the hyperlink - - - although interestingly CHPPKM contends in its complaint this further complicates the matter because it cannot be expected to constantly monitor the government site. Certainly, however, much of the language and reasoning in Chief Justice Roberts' majority opinion for the Court solidifies compelled speech doctrine. And interestingly, compelled speech doctrine is being argued by anti-abortion organizations to challenge laws requiring "pregnancy crisis centers" to disclose the fact that they are not medical facilities. ( For example, a district judge held NYC's Local Law 17 unconstitutional in 2011; an opinion from the Second Circuit has been anticipated since oral argument over a year ago). UPDATE: The Fourth Circuit's en banc opinion July 3 on a Baltimore ordinance.
A popular discussion of the controversy, including some of my own thoughts, is available on "KC Currents" broadcast by KCUR, a local NPR station.
Thursday, March 7, 2013
In the latest chapter of McCormack v. Hiedeman, District Judge Lynn Winmill issued a 42 page opinion (Memorandum Decision and Order) yesterday holding various provisions in Idaho's abortion law unconstitutional, including the 20 week pregnancy ban unconstitutional.
Recall that the Ninth Circuit last year found that Idaho's prosecution of McCormack for "self-abortion" constituted an undue burden and was unconstitutional. McCormack, who purchased abortion "medications" over the internet, was the subject of an excellent indepth article which we discussed here. At that time, it seemed as if the case was concluded.
However, Judge Winmill rejected the prosecutor's argument that the case was moot, noting that a party "cannot conjure up mootness by ceasing the challenged conduct only for practical or strategic reasons - - - such as avoiding litigation." The judge further held that the prosecutor's promise not to prosecute would not bind his successors and that his subsequent offer of transactional immunity to McCormack was not timely or binding. Further, the judge noted that pregnancy is "capable of repetition yet evading review."
Judge Winmill also held that the physician in the case had standing, including to assert his patients' constitutional claims.
On the merits, Judge Winmill held that the self-abortion provision is a substantial obstacle and therefore unconstitutional, adopting the Ninth Circuit's reasoning.
Judge Winmill also held unconstitutional the provisions imposing criminal liability on abortion providers who perform first trimester abortions outside a hospital or a properly staffed and equipped office or a clinic and requires that “physicians have made satisfactory arrangements” for emergency hospital care. The judge accepted the physician's argument that the terms “properly” and “satisfactory” are unconstitutionally vague therefore placing an undue burden on women seeking first trimester abortions. There is some confusion in the judge's reliance on Gonzales v. Carhart in this passage, but the judge finds that the Idaho statute is not sufficiently specific.
Additionally, the judge found unconstitutional the Idaho provisions banning abortions at twenty weeks in PUCPA, the Pain-Capable Unborn Child Protection Act. He reasoned that PUCPA does not contain mention the health or safety of the pregnant woman, that its only purpose was to limit the available options for the woman, and that the legislature cannot place viability at a set point.
Given this opinion, it is likely that McCormack v. Heidman will be returning to the Ninth Circuit.
Thursday, January 10, 2013
In its opinion in McCullen v. Coakley, the First Circuit rejected a First Amendment challenge to a Massachusetts statute creating a fixed thirty-five-foot buffer zone around the entrances, exits, and driveways of abortion clinics. The court had previously upheld a facial challenge. In this as-applied challenge, the First Circuit again rejected the challenge, affirming the district court.
The 32 page opinion, written by Judge Bruce Seyla, a Reagan appointee recognized for his "linguistic talent," is noteworthy for its vocabulary. For example, Seyla writes that the plaintiffs "advance a salmagundi of arguments, old and new, some of which are couched in a creative recalibration of First Amendment principles."
The major argument, however, is that First Amendment has shifted after the Supreme Court's decisions in Sorrell v. IMS Health Inc. (2011); Snyder v. Phelps (2011); and Citizens United v. FEC (2010). Judge Seyla concluded that the plaintiffs'
impressionistic argument, though ingenious, elevates hope over reason. The propositions for which the plaintiffs cite those cases are no more than conventional First Amendment principles recited by the Supreme Court in the context of factual scenarios far different than the scenario at issue here.
Not surprisingly, the opinion rejected the plaintiffs' "Rumpelstiltskin-like effort to turn straw into gold." The court concluded that the "Massachusetts statute at issue here is a content-neutral, narrowly tailored time- place-manner regulation that protects the rights of prospective patients and clinic employees without offending the First Amendment rights of others."
Friday, January 4, 2013
In September, the Ninth Circuit rendered its opinion in McCormack v. Hiedeman regarding the constitutionality of Idaho's "unlawful abortion" statutes that makes it a felony for any woman to undergo an abortion in a manner not authorized by statute. McCormack had been charged by the prosecutor Mark Hiedeman based on her procurement of abortion "medications" over the internet. The court held that imposing a criminal sanction on a woman poses an undue burden under Casey, but the decision was restricted to McCormack given the absence of class certification.
But who is Jennie Linn McCormack? And how common is procuring abortion "medications" via the internet?
Journalist Ada Calhoun's cover article in this month's The New Republic, "The Rise of DIY Abortions," paints a vivid portrait of Jennie Linn McCormack, as well as her attorney ("an avid fan of The Girl with the Dragon Tattoo books. He saw the character of dogged reporter Mikael Blomkvist as a good role model for a lawyer. . . ").
Calhoun also contextualizes McCormack's situation:
Determining how many American women have had home abortions is
exceedingly difficult: The Centers for Disease Control and Prevention
does not track illegal abortions. There is no blood test for drugs like
Cytotec, and so such an abortion is indistinguishable from a natural
miscarriage, even to a doctor. However, the proliferation of online
dispensers suggests a rising demand. There are thousands of websites
selling Cytotec for as little as $45 to $75 (compared with $300 to $800
for a legal medicated abortion in a clinic). Some claim to offer the
harder-to-come-by Mifeprex, but may in fact be peddling Cytotec, or
aspirin, or nothing at all. (Possible sources for the drugs include
Mexico, where Cytotec is available over the counter, or even the United
States, since it’s also prescribed here as an ulcer medication.)
The question of how drugs like Mifeprex and Cytotec are sold and administered is emerging as the next major front in the abortion debate.
Calhoun's article is a must-read for anyone teaching, writing, or thinking about abortion and is sure to be discussed at the many conferences devoted to Roe v. Wade's 40th anniversary, such as this one at the NYC Bar.
January 4, 2013 in Abortion, Current Affairs, Due Process (Substantive), Family, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Recent Cases, Teaching Tips | Permalink | Comments (0) | TrackBack (0)
Monday, January 14, 2013 6:30 pm-8:00 pm
2013 marks the 40th anniversary of Roe v. Wade, establishing the constitutionally-protected right to abortion. This program will discuss the evolution of the right to abortion in the courts, public opinion, and political discourse since then and will address the current status of reproductive rights in the United States, including its role in the 2012 presidential election.
Moderator: PRISCILLA SMITH, Senior Fellow at the Information Society Project at the Yale Law School
LOUISE MELLING, Director, ACLU Center for Liberty
RUTHANN ROBSON, Professor of Law & University Distinguished Professor, CUNY School of Law
KATHLEEN MORRELL, MD, Physicians for Reproductive Choice and Health
JESSICA GONZALEZ-ROJAS, Executive Director, National Latina Institute for Reproductive Health
BEBE ANDERSON, Director, U.S. Legal Program, Center for Reproductive Rights
Sponsors: Sex and Law Committee, Pamela Zimmerman, Chair
More information here.
Tuesday, December 11, 2012
Is a specialty license plate government speech permissible under the First Amendment? In a 21 page opinion and order in ACLU of North Carolina v. Conti, Senior United States District Judge James Fox held that North Carolina's "choose life" specialty license plate scheme was not protected government speech and therefore enjoined the issuance of such license plates.
Judge Fox described the North Carolina scheme as unique in comparison to other state statutory schemes and likewise noted that the legislature rejected offering other specialty plates that would have expressed an opposing view, such as "respect choice."
The central issue in the case, however, was whether the "choose life" specialty license plate could be described as "government speech" and thus protected under First Amendment doctrine as articulated in Rust v. Sullivan and most recently in the Court's unanimous 2009 opinion in Pleasant Grove City v. Summum.
Judge Fox rejected the state's argument that the degree of government control was "the" single factor test. Instead, Judge Fox relied upon the Fourth Circuit's four factor test:
- the central purpose of the program in which the speech in question occurs
- the degree of editorial control exercised by the government and private parties
- the identity of the literal speaker
- whether the government or private entity bears the ultimate responsibility for the speech
Judge Fox noted that these factors were consistent with Supreme Court precedent and that the Fourth Circuit had employed them recently.
Applying these factors, Judge Fox found that although the state exercised editorial control (despite the fact that the design and idea originated with a national organization outside the control of the state), the other factors weighed in favor of private, or hybrid private-state speech.
Judge Fox's order closed the case; it is sure to be appealed. Meanwhile, North Carolina car owners are not relegated to the standard license plate: Judge Fox's opinion states that there are 150 types of specialty license plates available in the state. More information is available here.
Wednesday, December 5, 2012
The Oklahoma Supreme Court has held its restrictive abortion statute, HB 2780, unconstitutional in two opinions yesterday, affirming lower courts: Nova Health Systems v. Pruit and Oklahoma Coalition for Reproductive Justice v. Cline.
The nine supreme court justices, "representing" each of the nine judicial districts of the state,
issued the terse (and nearly identical) opinions, the only difference being a recusal of one of the Justices in Pruit. The opinion(s) provided in full:
¶1 This is an appeal of the trial court's summary judgment which held House Bill 1970, 2011 Okla. Sess. Laws 1276, unconstitutional. Upon review of the record and the briefs of the parties, this Court determines this matter is controlled by the United States Supreme Court decision in Planned Parenthood v. Casey, 505 U.S. 833 (1992), which was applied in this Court's recent decision of In re Initiative No. 395, State Question No. 761, 2012 OK 42, cert. den. sub nom. Personhood Okla. v. Barber et al., 81 U.S.L.W. 3065 (U.S. October 29, 2012) (No. 12-145).
¶2 Because the United States Supreme Court has previously determined the dispositive issue presented in this matter, this Court is not free to impose its own view of the law. The Supremacy Clause of the United States Constitution provides:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
U.S. Const. Art. VI, cl. 2. The Oklahoma Constitution reaffirms the effect of the Supremacy Clause on Oklahoma law by providing: "The State of Oklahoma is an inseparable part of the Federal Union, and the Constitution of the United States is the supreme law of the land." Okla. Const. art. 1, § 1. Thus, this Court is duty bound by the United States and the Oklahoma Constitutions to "follow the mandate of the United States Supreme Court on matters of federal constitutional law" In re Initiative Petition No. 349, State Question No. 642, 1992 OK 122, ¶ 1, 838 P.2d 1, 2; In re Petition No. 395, 2012 OK 42, ¶ 2.
¶3 The challenged measure is facially unconstitutional pursuant to Casey, 505 U.S. 833. The mandate of Casey remains binding on this Court until and unless the United States Supreme Court holds to the contrary. The judgment of the trial court holding the enactment unconstitutional is affirmed and the measure is stricken in its entirety.
Thus, the court rests its decision on the Supreme Court's holding in Casey, and not, as some reports have suggested, state constitutional law. The matter is thus suitable for a petition for writ of certiorari to the United States Supreme Court.
Monday, November 26, 2012
The Supreme Court today reopened one of the cases challenging the federal Affordable Care Act and sent it back for further proceedings at the Fourth Circuit. The move means that the lower court, and possibly the Supreme Court, will have another crack at certain issues that the Supreme Court dodged this summer in its ruling in NFIB v. Sebelius.
Recall that the Fourth Circuit rejected a challenge to the ACA by several individuals and Liberty University in September 2011, holding that the Anti-Injunction Act barred the claim. The Supreme Court declined to review that case, Liberty University v. Geithner. But today the Court reopened the case, vacated the Fourth Circuit ruling, and sent the case back for further proceedings in light of the Court's ruling in NFIB.
The plaintiffs in the case originally challenged the universal coverage provision (the so-called "individual mandate," requiring individuals to acquire health insurance or to pay a tax penalty) and the employer mandate (requiring employers with more than 50 employees to provide health insurance coverage for their employees), arguing that they exceeded Congress's taxing and commerce powers and violated the Tenth Amendment, Article I, Section 9's prohibition against unapportioned capitation or direct taxes (the Direct Tax Clause), and the Religion Clauses and the Religious Freedom Restoration Act (among others). (As to the Religion Clauses, the plaintiffs argued that the requirements would cause them to support insurance companies that paid for abortions, a practice that they claimed ran against their religions.)
The district court ruled against the plaintiffs on all counts and dismissed the case. The Fourth Circuit dismissed the case under the AIA and didn't reach the merits.
The Supreme Court ruled in NFIB that the AIA did not bar the Court from ruling on the tax question, that Congress validly enacted the universal coverage provision under its Article I, Section 8 power "to lay and collect Taxes," and that it didn't violate the Direct Tax Clause. Thus after NFIB these issues appear to remain open on remand:
- Whether the mandates violate the Religion Clauses or the RFRA;
- Whether the employer mandate violates the taxing authority or the Direct Tax Clause;
- Whether the mandates violate equal protection;
- Whether the mandate violates free speech and associational rights.
As to the Religion Clauses, the district court ruled that the ACA's religious exemptions to universal coverage were permissible accommodations (and thus didn't violate the Establishment Clause) and that the ACA didn't require the plaintiffs to pay for abortions (and thus didn't violate the Free Exercise Clause or the RFRA).
As to the employer mandate: It's hard to see how the Supreme Court's tax analysis of the individual mandate in NFIB wouldn't apply with equal force to the employer mandate.
If the district court was right on the First Amendment and equal protection claims (as it seems), and if the Supreme Court's tax analysis applies with equal force to the employer mandate, this case doesn't seem to have much of a future.
But then again, that's what many of us said about NFIB.
November 26, 2012 in Abortion, Association, Cases and Case Materials, Commerce Clause, Congressional Authority, Equal Protection, Establishment Clause, First Amendment, Free Exercise Clause, Fundamental Rights, Jurisdiction of Federal Courts, News, Religion, Taxing Clause, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)
Friday, October 26, 2012
In its opinion in Planned Parenthood of Indiana v. Commissioner of Indiana Department of Health, the Seventh Circuit this week affirmed a district judge's injunction against the state's defunding of Planned Parenthood.
However, the Seventh Circuit upheld the district court on the statutory claim under the Medicaid Act's "free choice of provider" provision, and rejected the constitutional claims of preemption and unconstitutional conditions.
On the preemption claim, the Seventh Circuit panel reversed the district judge's finding that the federal block-grant program for the diagnosis and monitoring of sexually transmitted diseases conflicted with Indiana's defunding of Planned Parenthood in contravention of the Supremacy Clause. The panel applied a presumption in favor of a lack of preemption and found no conflicts, even as implied.
While the district judge had not reached the unconstitutional conditions claim - - - having granted relief on the other claims - - - the Seventh Circuit stated that "it makes sense" to address it. The panel focused on the constitutional right at stake, reasoning that it is a "right against coercive government burdens," but this "implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion." Thus, the panel concluded that the unconstitutional conditions claim was not likely to succeed on the merits: given that "the government’s refusal to subsidize abortion does not unduly burden a woman’s right to obtain an abortion, then Indiana’s ban on public funding of abortion providers—even for unrelated services—cannot indirectly burden a woman’s right to obtain an abortion."
Thus, although the Seventh Circuit opinion's result requires the funding of Planned Parenthood, the court foreclosed constitutional claims.
In an interview in Rolling Stone, President Obama responds to a query about the future of the constitutional right to abortion.
Do you have any fear that Roe v. Wade could be overturned if the Republicans win the presidency and appoint another Supreme Court justice?
I don't think there's any doubt. Governor Romney has made clear that's his position. His running mate has made this one of the central principles of his public life. Typically, a president is going to have one or two Supreme Court nominees during the course of his presidency, and we know that the current Supreme Court has at least four members who would overturn Roe v. Wade. All it takes is one more for that to happen.
Tuesday, September 11, 2012
In its opinion in McCormack v. Hiedeman today, a panel of the Ninth Circuit considered the constitutionality of Idaho's "unlawful abortion" statutes, making it a felony for any woman to undergo an abortion in a manner not authorized by statute. McCormack had been charged with a felony by the prosecutor Mark Hiedeman based on her procurement of abortion "medications" over the internet. While a state magistrate had dismissed the charge without prejudice, the prosecutor had not determined whether or not to re-file a criminal complaint. McCormack brought an action in the federal district court challenging the constitutionality of the Idaho statutes. The district judge granted a preliminary injunction against the statutes' enforcement.
At the heart of the constitutional inquiry was whether or not a pregnant woman could be constitutionally held criminally liable under an abortion statute. The prosecutor essentially argued that criminalizing nonphysicians performing abortions is consistent with Roe v. Wade and Planned Parenthood v. Casey.
The Ninth Circuit, however, agreed with the district judge that imposing criminal sanctions on a pregnant woman imposes an "undue burden" under Casey. The "undue burden" resulted because the statute required the woman to police the abortion providers' actions or risk criminal sanctions herself:
If a woman terminates her pregnancy during the first trimester but fails to ask the physician whether the office has made “satisfactory arrangements with one or more acute care hospitals within reasonable proximity thereof providing for the prompt availability of hospital care as may be required due to complications or emergencies that might arise,” she would be subject to a felony charge if the physician has not made such arrangements. Idaho Code § 18-608(1). If a woman finds a doctor who provides abor- tions during the second trimester of a woman’s pregnancy, but the doctor fails to tell the pregnant woman that the abortion will be performed in a clinic as opposed to a hospital, the pregnant woman would be subject to felony charges. Idaho Code § 18-608(2). Or, as is the case here, if a woman elects to take physician prescribed pills obtained over the internet to end her pregnancy, which is not authorized by statute, she is subject to felony charges. Idaho Code §§18-608(1)-18- 608(3).
The court also found McCormack's economic situation and the lack of abortion providers in her area to contribute to the "undue burden."
The Ninth Circuit panel found McCormack had standing, but narrowed the district court's injunctive relief to apply only to McCormack since there had been no class certification.
For pregnant women facing prosecutions under abortion statutes, the Ninth Circuit's opinion is an important and persuasive statement on the unconstitutionality of criminal sanctions.
[image: The Prisoner, artist unknown, circa 1907, via]
Tuesday, August 21, 2012
Fifth Circuit on Texas Planned Parenthood Regulation: No First Amendment Unconstitutional Conditions Problem
In its brief opinion today in Planned Parenthood Ass'n of Hidalgo Cty. v. Seuhs, a panel of the Fifth Circuit has reversed the preliminary injunction issued by Judge Lee Yeakel against a 2012 Texas regulation that expanded the Texas Women's Health Program prohibition of funding for health care not merely to abortions, but to any organization affiliated with abortion. Recall that last April Fifth Circuit Judge Jerry Smith quickly issued an emergency stay of that preliminary injunction, and a panel of the Fifth Circuit vacated that emergency stay almost as quickly.
Today, however, a different panel reversed and remanded Judge Yeakel's decision. The panel disagreed with Judge Yeakel's conclusions regarding unconstitutional conditions doctrine, noting that "Courts often struggle with when to apply the unconstitutional conditions doctrine, and the doctrine’s contours remain unclear despite its long history." Yet the panel's opinion adds to this lack of clarity. The panel opinion correctly notes that the unconstitutional conditions doctrine includes a "clear threshold premise;" A "funding condition cannot be unconstitutional if it could be constitutionally imposed directly.” Thus, "if the government could directly achieve the result in question, then it is unnecessary to assess the result within the unclear framework of the unconstitutional conditions doctrine."
Yet the panel then adds that although the Texas "restriction functions as a speech-based funding condition, it also functions as a direct regulation of the content of a state program," and is "therefore constitutional under the reasoning of Rust v. Sullivan." Rust v. Sullivan, of course, is an unconstitutional conditions case involving Title X funding, and the "state programs" to which the panel refers are in fact state-funded programs with arguably unconstitutional conditions. Instead, the panel concludes that "Texas’s restriction on promoting elective abortions directly regulates the content of the WHP [Women’s Health Program] as a state program. The policy expressed in the WHP is for public funds to subsidize non-abortion family planning speech to the exclusion of abortion speech" (emphasis added). The court held that "Texas may deny WHP funds from organizations that promote elective abortions" because it is "a direct regulation of the definitional content of a state program, and it is therefore unnecessary to examine it within the framework of the unconstitutional conditions doctrine."
On the expansion to all affiliated organizations, the panel decided that the "Planned Parenthood mark" was "associated with the pro-abortion point of view." "Using a pro-abortion mark is, after all, a way of promoting abortion." Therefore, "Texas’s choice to disfavor abortion is eviscerated, just as it would be if the organizations promoted abortion through pamphlets or video presentations." Again, the panel decided this was a "direct regulation of the content of a state program" and there was "no reason to examine it within the framework of the unconstitutional conditions doctrine" despite the fact that it involved funding.
The panel remanded the case, however, including for analysis of the equal protection claim, which Judge Yeakel found resolved by the First Amendment claim.
Despite its odd doctrinal analysis, the Fifth Circuit's panel conclusion is clear: Texas can constitutionally target Planned Parenthood for defunding under the Women's Health Program subsidies.
Wednesday, August 1, 2012
In a brief Order today, a panel of the Ninth Circuit has issued an emergency stay of Arizona's restrictive abortion law, despite a federal district judge's holding yesterday that the law was constitutional.
In the Isaacson v. Horne order, the Ninth Circuit stated:
The court enjoins enforcement of the provisions of Arizona House Bill 2036 that place restrictions upon and criminalize the performance of abortions from 20 weeks gestational age, pending appeal. 2012 Ariz. Legis. Serv. 250 (H.B. 2036) (West) (to be codified as Ariz. Rev. Stat. § 36-2159);
The Ninth Circuit also expedited the briefing and oral argument schedule.
Tuesday, July 31, 2012
In a relatively brief opinion in Isaacson v. Horne, federal judge James Teilborg rejected constitutional challenges to Arizona House Bill 2036 (“H.B. 2036”), signed into law by the Governor in April 2012, restricting all abortions at 20 weeks of pregnancy or later, except in "medical emergency." The judge evaluated the legislative findings of "the documented risks to women’s health and the strong medical evidence that unborn children feel pain during an abortion at [20 weeks] gestational age."
The opinion's reasoning largely rests on two extensive quotations. First, the judge quotes from Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 879-80 (1992), regarding the definition of “medical emergency,” concluding that the Arizona statute is within the broad definition. Second, the judge relied on Gonzales v. Carhart, 550 U.S. 124 (2007) and its description of one type of procedure. The judge then credited the legislature's fetal pain rationale, finding that "by 7 weeks gestational age, pain sensors develop in the face of the unborn child and, by 20 weeks, sensory receptors develop all over the child’s body and the children have a full complement of pain receptors." The judge did add that as an additional legitimate interest, the "instance of complications is highest after twenty weeks of 20 gestation" supported the interest in the pregnant woman's health.
The Center for Reproductive Rights will undoubtedly appeal.
Tuesday, July 24, 2012
In a 7-4 en banc opinion today in Planned Parenthood v. Rounds, the Eighth Circuit disagreed with the panel opinion and the district judge and upheld the constitutionality of a South Dakota statutory provision requiring the disclosure to patients seeking abortions of an “[i]ncreased risk of suicide ideation and suicide,” S.D.C.L. § 34-23A- 10.1(1)(e)(ii).
Planned Parenthood contended that requiring a physician to present the suicide advisory imposes an undue burden on abortion rights and violates the free speech rights of the physician. The court conflated the undue burden (due process) claim and the physician First Amendment claim: "In short, to succeed on either its undue burden or compelled speech claims, Planned Parenthood must show that the disclosure at issue “is either untruthful, misleading or not relevant to the patient’s decision to have an abortion.”
Judge Gruender's opinion for the majority seemingly acknowledged that there was no evidence that abortion caused suicidal ideation. Instead, the issue was the "accepted usage of the term 'increased risk' in the relevant medical field." The opinion found that based on the medical usage, the statutory requirement "does not imply a disclosure of a causal relationship," instead it is merely a disclosure that "the risk of suicide and suicide ideation is higher among women who abort compared to women in other relevant groups, such as women who give birth or do not become pregnant."
The majority rejected the relevancy of Planned Parenthood's argument that certain underlying factors, such as pre-existing mental health problems, predispose some women both to have unwanted pregnancies and to have suicidal tendencies, resulting in a misleading correlation between abortion and suicide that has no direct causal component. Planned Parenthood argued that the required disclosure would be misleading or irrelevant to the decision to have an abortion because the patient’s decision would not alter the underlying factors that actually cause the observed increased risk of suicide. But the majority found that a correlation - - - seemingly for any reason - - - was sufficient: "the truthful disclosure regarding increased risk cannot be unconstitutionally misleading or irrelevant simply because of some degree of 'medical and scientific uncertainty,' as to whether abortion plays a causal role in the observed correlation between abortion and suicide."
In contrast, the four dissenting judges, in an opinion by Judge Murphy, stated that the "record clearly demonstrates" that "suicide is not a known medical risk of abortion and that suicide is caused instead by factors preexisting an abortion such as a history of mental illness, domestic violence, and young age at the time of pregnancy." The dissenting opinion read the statutory provision to require doctors to tell a pregnant woman that a greater likelihood of suicide and suicide ideation is a "known medical risk" to which she "would be subjected" by having an abortion. S.D.C.L. § 34-23A-10.1(1)(e) (2005) (emphasis added). This causal language troubled the dissenting judges, who concluded that the suicide advisory places an undue burden on a pregnant woman's due process rights and violates a doctor's First Amendment right against compelled speech.
Both opinions rehearse and discuss the social science and psychological studies before the court and both opinions admit the studies are flawed. However, by rejecting the necessity for causation in a warning about a medical procedure given for informed consent, the majority rests its opinion on correlation even if there is "some degree of 'medical and scientific uncertainty" as to the reasons for any correlation.
[image:Sappho Leaping into the Sea from the Leucadian Promontory, circa 1840, via]
Thursday, May 31, 2012
As the Washington Post reports, members of the House of Representatives "voted 246 to 168" on PRENDA, HR 3541, the Prenatal Non-Discrimination Act, that bans sex-selective and race-selective abortions. While the 246 majority voted for PRENDA, it "failed to pass as House Republicans brought it up under a suspension of normal rules that required it to earn a two-thirds majority vote."
PRENDA defines "‘‘sex-selection abortion’’ as an "abortion undertaken for purposes of eliminating an unborn child of an undesired sex," and ‘‘race-selection abortion’’ is "an abortion performed for purposes of eliminating an unborn child because the child or a parent of the child is of an undesired race." The bill is similar to one in Arizona that did become law; the few other states that do have statutes focus on sex-selection.
As I've written elsewhere:
The specter of sex-selection prohibitions in abortion statutes is said to pose a political dilemma for feminists,who can be “torn” between “support for reproductive autonomy” and “distaste for sex-‐selection practices driven by a gendered and patriarchal society.” It also provokes opposing logical constructions. On one account, if there is right to an abortion for any or no reason, this includes a right to an abortion even for a problematical reason.165 On an opposing account, “[t]he right to not have a child for any reason does not logically encompass the right not to have a child for any specific reason.” Whatever the logic, however, an interrogation of a woman’s “reason” for having an abortion demonstrates a distrust of women similar to the distrust apparent in other abortion restrictions that treat women have abortions quite differently than ungendered patients providing informed consent for other medical procedures. However, unlike other abortion restrictions such as mandatory ultrasounds or waiting periods, sex-‐selective prohibitions are not cast as being beneficial to women or assisting decision-‐ making; rather, they clearly seek to remove the power of a woman’s choice to terminate a pregnancy in service to a larger societal and state interest.
Indeed, PRENDA's findings on sex include:
(subsection L) Sex-selection abortion results in an unnatural sex-ratio imbalance. An unnatural sex- ratio imbalance is undesirable, due to the inability of the numerically predominant sex to find mates. Experts worldwide document that a significant sex-ratio imbalance in which males numerically predominate can be a cause of increased violence and militancy within a society. Likewise, an unnatural sex-ratio imbalance gives rise to the commoditization of humans in the form of human trafficking, and a consequent increase in kidnapping and other violent crime.
PRENDA bases this finding on the experience of nations such as China, mentioning "son preference" but not China's accompanying one-child policy. For some, the interest in prohibiting sex-selective abortion is a "manufactured controversy." For others, PRENDA may be part of an election year strategy.
For those teaching a summer course in ConLaw, this could be the basis of an excellent problem. ConLawProfs might want to also consider the constitutional provisions on which Congress grounds its power, including the Thirteenth Amendment.
Saturday, May 5, 2012
A panel of the Fifth Circuit has vacated Judge Smith's emergency stay of District Judge Lee Yeakel's preliminary injunction against a 2012 Texas regulation that expanded the Texas Women's Health Program prohibition of funding for health care not merely to abortions, but to any organization affiliated with abortion.
As the panel in Planned Parenthood Ass'n of Hidalgo Cty. v. Seuhs stated:
Language in that affidavit reasonably calls into question the State’s declaration of an emergency need for a stay, because it states that any injunction will have the effect of requiring the State to cease operating the program at issue “upon termination of federal funding.” Evidence in the record indicates that such funding is continuing until November 2012.
This supplemental filing undermines the State’s assertion of irreparable harm if the injunction is not stayed pending appeal. Regarding the balance of the merits, we cannot conclude, on the present state of the record, that the State has shown a great likelihood, approaching a near certainty, that the district court abused its discretion in entering the injunction.
Thus, there is no "emergency" and the district judge's injunction stands, as presumably does the district judge's hearing for May 18.
Tuesday, May 1, 2012
The Fifth Circuit, in a brief order from Judge Jerry Smith, has issued a stay of Judge Yeakel's preliminary injunction in Planned Parenthood Ass'n of Hidalgo Cty. v. Seuhs.
As we discussed yesterday, Judge Lee Yeakel issued a preliminary injunction against a 2012 Texas regulation that expanded the Texas Women's Health Program prohibition of funding for health care not merely to abortions, but to any organization affiliated with abortion.
Wednesday, April 25, 2012
Sitting in Toronto or maybe Bristol, we have a tendency to watch American politics with both fear and amusement, rather like (or so I hear) some people watch Jersey Shore or Keeping up with the Kardashians: Who are these people? Why do they behave this way?
But Lawrence quickly dismisses this view as smug and self-satisfied. In her review of Linda Greenhouse and Reva Siegel, Before (and After) Roe v. Wade: New Questions about Backlash, 120 Yale L.J. 2028 (2011), available on ssrn, Lawrence confirms the Greenhouse and Siegel view that "the focus on Roe is not just a faulty conclusion – it is a rhetorical strategy in and of itself." And increasingly, it is not a strategy confined to the United States.
Indeed, Lawrence argues that abortion law and politics in both Canada and the UK have become "Americanized," discussing Carol Sanger's recent lecture, as well as a motion to reconsider Canada's criminal code defining human being to be debated April 26.
Thus, in a relatively short piece, Lawrence offers more "new questions" about "backlash" and Roe v. Wade," providing essential comparative constitutional law perspectives.