Monday, April 18, 2011
The sole footnote in Justice Scalia's opinion concurring in part and concurring in the judgment of Webster v. Reproductive Health Services, 492 U.S. 490 (1989) may not be worthwhile, at least according to Scalia's own assessment within the footnote. Continuing with our theme of the footnotes for Saturday and Sunday, it involves a disagreement between Justices Scalia and O'Connor.
In the text of his opinion in Webster, Scalia wrote that "It was an arguable question today whether [the section] of the Missouri law contravened this Court's understanding of Roe v. Wade, * and I would have examined Roe rather than examining the contravention."
Here is the * footnote:
That question, compared with the question whether we should reconsider and reverse Roe, is hardly worth a footnote, but I think Justice O'Connor answers that incorrectly as well. In Roe v. Wade, 410 U.S. 113, 165-166 (1973), we said that "the physician [has the right] to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention." We have subsequently made clear that it is also a matter of medical judgment when viability (one of those points) is reached. "The time when viability is achieved may vary with each pregnancy, and the determination of whether a particular fetus is viable is, and must be, a matter for the judgment of the responsible attending physician." Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 64 (1976). Section 188.029 conflicts with the purpose and hence the fair import of this principle because it will sometimes require a physician to perform tests that he would not otherwise have performed to determine whether a fetus is viable. It is therefore a legislative imposition on the judgment of the physician, and one that increases the cost of an abortion.
Justice O'Connor would nevertheless uphold the law because it "does not impose an undue burden on a woman's abortion decision." Ante, at 530. This conclusion is supported by the observation that the required tests impose only a marginal cost on the abortion procedure, far less of an increase than the cost-doubling hospitalization requirement invalidated in Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983). See ante, at 530-531. The fact that the challenged regulation is less costly than what we struck down in Akron tells us only that we cannot decide the present case on the basis of that earlier decision. It does not tell us whether the present requirement is an "undue burden," and I know of no basis for determining that this particular burden (or any other for that matter) is "due." One could with equal justification conclude that it is not. To avoid the question of Roe v. Wade's validity, with the attendant costs that this will have for the Court and for the principles of self-governance, on the basis of a standard that offers "no guide but the Court's own discretion," Baldwin v. Missouri, 281 U.S. 586, 595 (1930) (Holmes, J., dissenting), merely adds to the irrationality of what we do today.
Similarly irrational is the new concept that Justice O'Connor introduces into the law in order to achieve her result, the notion of a State's "interest in potential life when viability is possible." Ante, at 528. Since "viability" means the mere possibility (not the certainty) of survivability outside the womb, "possible viability" must mean the possibility of a possibility of survivability outside the womb. Perhaps our next opinion will expand the third trimester into the second even further, by approving state action designed to take account of "the chance of possible viability."
Wednesday, March 30, 2011
Race-selective and Sex-selection abortions are the subject of a new statute in Arizona. According to the Arizona legislature:
Evidence shows that minorities are targeted for abortion and that sex-selection abortion is also occurring in our country. There is no place for such discrimination and inequality in human society. Sex-selection and race-selection abortions are elective procedures that do not in any way implicate a woman's health. The purpose of this legislation is to protect unborn children from prenatal discrimination in the form of being subjected to abortion based on the child's sex or race by prohibiting sex-selection or race-selection abortions.
Arizona HB-2443 signed into law by Governor Jan Brewer (pictured)
today, requires an affidavit by the person performing the abortion stating "that the person making the affidavit is not aborting the child because of the child's sex or race and has no knowledge that the child to be aborted is being aborted because of the child's sex or race." The law criminalizes the abortion provider who knows that the "abortion is sought based on the sex or race of that child or the race of a parent of that child," immunizes the pregnant woman, and provides that a woman's husband or her parents if she is a minor, may file a suit for civil damages, including an award of attorneys fees.
Arizona is not the first state with a statute prohibiting so called sex-selective abortion. Oklahoma, Pennsylvania, and Illinois all have such statutes passed in 2010. For example, the Oklahoma statute provides:
No person shall knowingly or recklessly perform or attempt to perform an abortion with knowledge that the pregnant female is seeking the abortion solely on account of the sex of the unborn child. Nothing in this section shall be construed to proscribe the performance of an abortion because the unborn child has a genetic disorder that is sex-linked.
Okla. Stat. tit. 63, § 1-731.2.B (2010).
Professor April Cherry's article on this issue - - - A Feminist Understanding of Sex-Selective Abortion: Solely A Matter of Choice?, 10 WIS. WOMEN’S L.J. 161, 164 - - - published in 1995 is still one of the best pieces of scholarship on this issue.
[image: Jan Brewer via]
Thursday, March 10, 2011
Linda Greenhouse points out that Friday March 11 is Scalia's 75th birthday, but her wishes are not necessarily warm ones.
Instead, Greenhouse discusses Scalia's "bullying" of his junior colleagues, notably the female ones. She focuses on Scalia's dissenting opinion in Michigan v. Bryant, which the only other dissenter, Ginsburg, did not join, and which was aimed at a majority opinion written by Sotomayor. She also recounts Scalia's scathing reaction to O'Connor, when O'Connor was new and the first woman Justice, on the subject of abortion, noting that Scalia did not ultimately prevail.
Greenhouse sums up Scalia's almost 25 years on the Court as ones in which he "has cast a long shadow but has accomplished surprisingly little."
The notable exception - - - and some would say it is a rather large one - - - is District of Columbia v. Heller, revivifying the Second Amendment.
[image of Antonin Scalia, via]
Thursday, December 16, 2010
In a lengthy decision today, the European Court of Human Rights (the Grand Chamber) held Ireland's criminalization of abortion contravened the European Convention on Human Rights as to one of the three women litigants.
Central to the decision in Case of A, B, and C v. Ireland, is Article 8 of the European Convention on Human Rights:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The challengers, A, B, and C, all residents of Ireland who traveled to the United Kingdom to obtain an abortion because of the criminalization of abortion in Ireland, argued that their rights under Article 8 were violated.
Each of the women has sympathetic circumstances. Challenger A was impoverished, suffering from depression and recovering from alcoholism, has four children in foster care with whom she is struggling to be reunited. Challenger B was single and feared an ectopic pregnancy. Challenger C was in remission from cancer, and feared both a relapse and that certain treatments may have caused damage to the fetus.
The Court found Article 8 was contravened only with regard to Challenger C. Ireland's violation was a failure to implement its existing constitutional right to an abortion when the pregnant woman's life was at stake.
The decision is thus a narrow one and certainly does not invalidate Ireland's abortion ban.
Wednesday, July 14, 2010
Judge Laurie Smith Camp has enjoined the enforcement of portions of the controversial abortion Nebraska bill, LB 594. In her 35 page opinion, Judge Camp provides the text of the bill, explaining it various provisions, including the extensive mental health screening and documentation.
Judge Camp explained that portions of the Bill express "the Nebraska Legislature’s concern that “the existing standard of care for preabortion screening and counseling is not always adequate to protect the health needs of women,”and “[t]hat clarifying the minimum standard of care for pre-abortion screening and
counseling in statute is a practical means of protecting the well-being of women.” and re-state the "Legislature’s earlier language to the effect that the Supreme Court of the United States over-stepped its authority when issuing its decision in Roe v.Wade, and that the Nebraska Legislature intends to protect the life of unborn children whenever possible." She reasoned:
No such legislative concern for the health of women, or of men, has given rise to any remotely similar informed-consent statutes applicable to other medical procedures, regardless of whether such procedures are elective or non-elective, and regardless of whether such procedures pose an equal or greater threat to the physical, mental, and emotional health of the patient. From a plain reading of the language of the bill,8 and the absence of any similar statutory “protections” for the health of patients in other contexts, this Court infers that the objective underlying LB 594 is the protection of unborn human life.
Opinion at 24-25. She concluded that the Bill "places certain obstacles in the path of women seeking abortions" by
- requiring medical providers to make risk assessments and disclosures that, if the bill is
read literally, would be impossible or nearly impossible to perform,
- requiring medical providers to speculate about what conduct is mandated under the bill, if it is not to be read literally, but instead given some reasonable interpretation, and
- placing physicians who perform abortions in immediate jeopardy of crippling civil litigation, thereby placing women in immediate jeopardy of losing access to physicians who are willing to perform abortions.
Opinion at 25-26. She also found that the medical providers demonstrated a likelihood of success on the merits on the First Amendment claim that "the disclosures mandated by LB 594, if applied literally, will require medical providers to give untruthful, misleading and irrelevant information to patients." Opinion at 31.
Given the Judge's ruling, unless Nebraska can produce other evidence, it seems likely that the court will declare the statute unconstitutional.
Monday, April 26, 2010
Linda Greenhouse's Justice John Paul Stevens as Abortion-Rights Strategist is a terrific article in the latest issue of the UC Davis Law Review's excellent symposium on soon-to-be-retired Justice Stevens. Greenhouse seeks "to give Justice Stevens his due as a major contributor to the contours of the right to abortion that exists today. Indeed, he has served as an indispensable strategist in the preservation of that right at its moment of greatest need." She notes that her supporting evidence is "hiding in plain sight in the pages of the United States Reports." But, for the "backstory to the cases in which Justice Stevens participated," she relies on the collected papers of Justice Harry A. Blackmun in the Library of Congress. Greenhouse is certainly an expert in Blackmun's papers, using them extensively in her biography Becoming Justice Blackmun. Here, her impressive reportorial skills and her incisive analytic skills combine to produce engaging scholarship.
For example, Greenhouse discusses Webster v. Reproductive Health Services., 492 U.S. 490 (1989), considering the statutory preamble that “life of each human being begins at conception.” Chief Justice Rehnquist's plurality opinion said this statement was without operative force, simply a “value judgment” that the state could make without a need for judicial scrutiny:
Justice Stevens saw the matter otherwise: “I am persuaded that the absence of any secular purpose for the legislative declarations that life begins at conception and that conception occurs at fertilization makes the relevant portion of the preamble invalid under the Establishment Clause of the First Amendment to the Federal Constitution,” he wrote in his separate opinion, concurring in part and dissenting in part.
Stevens was “deeply concerned about the future of the right to abortion. He sent an acerbic response to Chief Justice Rehnquist upon receiving his draft majority opinion (which did not turn out to be a majority opinion because Justice O'Connor, adopting a more cautious stance, declined to join it). Chief Justice Rehnquist did not explicitly call for overruling Roe. Rather, he wanted to replace the strict scrutiny analysis of Roe with a new standard under which a regulation would be upheld if it “reasonably furthers the state's interest in protecting potential human life.”
“A tax on abortions, a requirement that the pregnant woman must be able to stand on her head for fifteen minutes before she can have an abortion, or a criminal prohibition would each satisfy your test,” Justice Stevens objected in a letter to Chief Justice Rehnquist, with copies to the other Justices. The letter ended: “As you know, I am not in favor of overruling Roe v. Wade, but if the deed is to be done I would rather see the Court give the case a decent burial instead of tossing it out the window of a fast-moving caboose.”
How Roe v. Wade will be tossed about in future years depends, in part, on the Justice who will take Stevens' place. Greenhouse reminds us that Stevens was the first Justice to be appointed after Roe v. Wade was decided. Stevens was also the last of his kind: "the last Republican-appointed Supreme Court Justice who was not vetted in light of the party's official opposition to Roe" and the last Justice to join the Court "before abortion became an essentially partisan issue."
Sunday, March 21, 2010
President Obama's "pending" EO on abortion, just released by The White House, provides:
ENSURING ENFORCEMENT AND IMPLEMENTATION OF ABORTION RESTRICTIONS IN THE PATIENT PROTECTION AND AFFORDABLE CARE ACT
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the “Patient Protection and Affordable Care Act” (approved March __, 2010), I hereby order as follows:
Section 1. Policy. Following the recent passage of the Patient Protection and Affordable Care Act (“the Act”), it is necessary to establish an adequate enforcement mechanism to ensure that Federal funds are not used for abortion services (except in cases of rape or incest, or when the life of the woman would be endangered), consistent with a longstanding Federal statutory restriction that is commonly known as the Hyde Amendment. The purpose of this Executive Order is to establish a comprehensive, government-wide set of policies and procedures to achieve this goal and to make certain that all relevant actors—Federal officials, state officials (including insurance regulators) and health care providers—are aware of their responsibilities, new and old.
The Act maintains current Hyde Amendment restrictions governing abortion policy and extends those restrictions to the newly-created health insurance exchanges. Under the Act, longstanding Federal laws to protect conscience (such as the Church Amendment, 42 U.S.C. §300a-7, and the Weldon Amendment, Pub. L. No. 111-8, §508(d)(1) (2009)) remain intact and new protections prohibit discrimination against health care facilities and health care providers because of an unwillingness to provide, pay for, provide coverage of, or refer for abortions.
Numerous executive agencies have a role in ensuring that these restrictions are enforced, including the Department of Health and Human Services (HHS), the Office of Management and Budget (OMB), and the Office of Personnel Management (OPM).
Section 2. Strict Compliance with Prohibitions on Abortion Funding in Health Insurance Exchanges. The Act specifically prohibits the use of tax credits and cost-sharing reduction payments to pay for abortion services (except in cases of rape or incest, or when the life of the woman would be endangered) in the health insurance exchanges that will be operational in 2014. The Act also imposes strict payment and accounting requirements to ensure that Federal funds are not used for abortion services in exchange plans (except in cases of rape or incest, or when the life of the woman would be endangered) and requires state health insurance commissioners to ensure that exchange plan funds are segregated by insurance companies in accordance with generally accepted accounting principles, OMB funds management circulars, and accounting guidance provided by the Government Accountability Office.
I hereby direct the Director of OMB and the Secretary of HHS to develop, within 180 days of the date of this Executive Order, a model set of segregation guidelines for state health insurance commissioners to use when determining whether exchange plans are complying with the Act’s segregation requirements, established in Section 1303 of the Act, for enrollees receiving Federal financial assistance. The guidelines shall also offer technical information that states should follow to conduct independent regular audits of insurance companies that participate in the health insurance exchanges. In developing these model guidelines, the Director of OMB and the Secretary of HHS shall consult with executive agencies and offices that have relevant expertise in accounting principles, including, but not limited to, the Department of the Treasury, and with the Government Accountability Office. Upon completion of those model guidelines, the Secretary of HHS should promptly initiate a rulemaking to issue regulations, which will have the force of law, to interpret the Act’s segregation requirements, and shall provide guidance to state health insurance commissioners on how to comply with the model guidelines.
Section 3. Community Health Center Program. The Act establishes a new Community Health Center (CHC) Fund within HHS, which provides additional Federal funds for the community health center program. Existing law prohibits these centers from using federal funds to provide abortion services (except in cases of rape or incest, or when the life of the woman would be endangered), as a result of both the Hyde Amendment and longstanding regulations containing the Hyde language. Under the Act, the Hyde language shall apply to the authorization and appropriations of funds for Community Health Centers under section 10503 and all other relevant provisions. I hereby direct the Secretary of HHS to ensure that program administrators and recipients of Federal funds are aware of and comply with the limitations on abortion services imposed on CHCs by existing law. Such actions should include, but are not limited to, updating Grant Policy Statements that accompany CHC grants and issuing new interpretive rules.
Section 4. General Provisions. (a) Nothing in this Executive Order shall be construed to impair or otherwise affect: (i) authority granted by law or presidential directive to an agency, or the head thereof; or (ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This Executive Order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This Executive Order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity against the United States, its departments, agencies, entities, officers, employees or agents, or any other person.
Saturday, November 21, 2009
The volatile link between abortion and heath care reform is being hotly debated. The Stupak Amendment to the proposed Affordable Health Care for America Act, which passed in the House of Representatives, provides that "no funds authorized or appropriated by this Act . . . may be used to pay for any abortion or to cover the costs of any health plan that includes coverage of abortion . . . ." with some exceptions. As the focus on health care reform moves to the Senate, the Stupak Amendment continues to be a prominent issue, with NY's junior Senator vowing to defeat it.
In her article Reproductive Rights and Health Care Rights, forthcoming in Columbia Journal of Gender and Law, available on ssrn here, Professor Jessie Hill of Case Western University, compellingly argues that the "right to abortion is also a health care right."
She contends that the right to abortion
is a right to access a particular medical procedure and a right to use that medical procedure to protect one’s health from significant harm, even if that procedure terminates a potential life. In fact . . . reproductive rights, including the right to contraception, have long been conceived in this way. The understanding of reproductive rights as health care rights, which has long been present in reproductive rights jurisprudence, has been downplayed by both courts and reproductive rights advocates in favor of a rhetoric centered on personal autonomy, equality, and dignity.
She explicitly - - - and seemingly enthusiastically - - - theorizes the right to health as only a "negative right to health—that is, a right to make medical treatment decisions without government interference," even as she insists that this negative right to health can serve as an important guarantor of reproductive rights, at least for those who can afford them.
She notes that both "South Africa and Canada have recognized in some form a “right to health” in ways that bear partly, though not exclusively, on the abortion right." Discussing the well-known Minister of Health v. Treatment Action Campaign (TAC), 2002 (10) BCLR 1033 (CC) (S. Afr.), regarding the availability of an HIV antiretroviral drug, she concludes that "South Africa has explicitly guaranteed a constitutional right to health that is understood, at least in part, as a positive entitlement to health care, including reproductive health services." She contrasts Chaoulli v. Québec,  1 S.C.R. 791 (Can.), and concludes that " Canada, on the other hand, has not gone so far as to recognize a positive constitutional right to health care." Yet both of her discussions are illuminating, and do, as she argues, indicate what might be trends in judicial recognition of health as a right.
In her concluding sections, she trenchantly notes several of the benefits of theorizing abortion as a medical right rather than a privacy or equality right. Perhaps optimistically, she argues that
The right to health, as a right to medical decision– making autonomy, is an inclusive concept that touches on areas that are of concern or likely to one day be of concern to most people. As people age, they begin to worry more about their future interactions with the medical establishment in the context of end–of–life decision making, access to appropriate palliative care, and possibly to experimental drugs; in particular, they may reasonably fear that intrusive government regulators will attempt to control those interactions. There may be substantial political support for the idea that the government should not dictate health care decisions, whether they are decisions about experimental treatments for cancer or reproductive health care.
She also astutely contends that
emphasizing the medical side of abortion rights may engage non–obstetrician physicians more in reproductive rights issues. After all, many of the legal restrictions that apply to abortion providers would probably strike other physicians as outrageous if applied to them.
As the health care debate's obsession with abortion continues, this is an article worth reading.
November 21, 2009 in Abortion, Comparative Constitutionalism, Current Affairs, Family, Fundamental Rights, Gender, Medical Decisions, Reproductive Rights, Theory | Permalink | Comments (1) | TrackBack (0)
Thursday, October 8, 2009
A new Oklahoma statute regulating abortion, formerly OK HB 1595, goes into effect November 1
The law requires publication of an "Annual Abortion Report" and forces doctors to give details about their patients under threat of criminal sanctions and loss of their medical license. The details include:
Date of abortion
County in which abortion performed
Age of mother
Marital status of mother (married, divorced, separated, widowed, or never married)
Race of mother
Years of education of mother (specify highest year completed)
State or foreign country of residence of mother
Total number of previous pregnancies of the mother - - - Live Births; Miscarriages; Induced Abortions.
The law also changed several statutory definitions and banned abortions sought "solely on account of the sex of the unborn child."
Tuesday, July 21, 2009
Judge Sotomayor was predictably reticent in her responses to Senate Judiciary Republicans' written questions. But several exchanges are worthy of note. Here's one, with Senator Cornyn:
2. In your view, did Brown v. Board of Education make law or did it merely interpret law? Please explain.
Response: As explained in my response to question 2, I believe that the Supreme Court "interprets" law. Brown v. Board of Education . . . is widely regarded as a correct interpretation of the constitutional command for equal protection of the laws.
3. In your view, did Roe v. Wade make law or did it merely interpret law? Please explain.
Response: As explained in my response to question 1, I believe that the Supreme Court "interprets" law. Cases subsequent to Roe v. Wade . . . have re-affirmed the core holding of Roe. Cases related to termination of pregnancies continue to come before the Court, and therefore it would be inappropriate for me to comment further.
4. In your view, did Lochner v. New York make law or did it merely interpret law? Please explain.
Response: As explained in my response to question 1, I believe that the Supreme Court "interprets" law. The reasoning in Lochner v. New York . . . has been criticized by the Supreme Court, and that case is now widely regarded as wrongly decided.
5. In your view, did Dred Scott v. Sanford make law or did it merely interpret law? Please explain.
Response: As explained in my response to question 1, I believe that the Supreme Court "interprets" law, but Dred Scott v. Sandford . . . is widely regarded as wrongly decided.
6. In your view, did Bush v. Gore make law or did it merely interpret law? Please explain.
Response: As explained in my response to question 1, I believe that the Supreme Court "interprets" law. I would not comment on the merits of a recent Supreme Court decision.
Note Judge Sotomayor's different responses to the question on Roe and to the question on Brown. These answers didn't need to be different. She simply could have written that the core of both Roe and Brown have been affirmed and reaffirmed by the Court. And she had the same good reason not to comment further on Brown that she had on Roe: Brown continues to come before the Court, most recently in the 2006 Term in Parents Involved v. Seattle School District No. 1.
It's dangerous to read too much into responses like these, especially when the questions are so obviously political (and not strictly legal, if there's a difference between the two). But given that Judge Sotomayor could have safely answered these questions in different ways, I wonder whether her response to the question about Roe says anything about her views on its "core holding."
Wednesday, July 1, 2009
Yesterday, the Ohio Supreme Court ruled in an interesting case - Roe v. Planned Parenthood of Southwest Ohio. The facts of this most intriguing case are these: Thirteen year-old Jane Roe and her 21-year old soccer ccoach John Haller began a sexual relationship resulting in Jane's pregnancy. Haller encouraged Jane to terminate the pregnancy. Upon arriving at the clinic, she was asked to fill out a consent form. Per Haller's instructions, she listed her father's name and address correctly, but provided Haller's phone number. The clinic called Haller to request parental consent. When Jane's real parents discovered the chicanery, they called the police. Haller was arrested for sexual battery. Planned Parenthood was also investigated, but no criminal charges were filed. Therefore, the Roes sued Planned Parenthood for violating various Ohio statutes, including, inter alia, failing to obtain parental consent, failing to obtain Jane's properly informed consent, and failing report to report suspected sexual abuse of a minor.
The last count really is key to the importance of the case. In discovery, the Roes sought to obtain not only Jane's medical records (which Planned Parenthood provided) but also the redacted medical records of all Planned Parenthood clients going back ten years. The Roes asserted the information was necessary to prove that Planned Parenthood had engaged in a "pattern and practice" of ignoring possible sexual abuse. Based on state precedents, the Ohio Supreme Court ruled that there is no such right to the information of third parties, even if redacted.
While the claims were primarily resolved on state law grounds, the ramifications for federal and state law are many. The majority of states require some form of parental notification or consent. But the facts of this case highlight just how tenuous those laws can be. A brief search of the legal literature reveals but a few articles,* but there are enough articles and cases to prove that this is not the first time this has happened, and it will likely not be the last.
So, what are the options on the consent issue? The burden could be placed firmly on the doctor to be certain that the consent is legitimate. However, the question is where does one draw the line in such situations. Haller engaged in a very manipulative scheme. It's not impossible to see some clinic being duped in the future on similar facts. If a clinic truly does act in good faith, should it be penalized? Moreover, at least one article argues that such a high burden might be an unconstitutional violation of Casey's "undue burden" standard.** Another option is to follow the lead of states likeTexas and Louisiana which require parental consent forms to be notarized. However, even this might not entirely eliminate the fraud issue. At present, it seems the most important thing to do is to recognize the issue and close any legislative loopholes (hopefully without creating new ones).
The second issue is the privacy ruling. The striking part of the ruling is that the parents were not entitled to even the redacted medical information. While the case was decided on state law grounds, and tort law as opposed to constitutional law, the right to informational privacy - especially about health information - seems to be gaining traction in this nation (see HIPAA). While the Court has yet to fully constitutionalize the right (see Whalen), in this context - where another right of privacy is implicated - there might be a stronger argument.***
I hope you find this case interesting in teaching these concepts.
* Katheryn D. Katz, The Pregnant Child's Right To Self-Determination, 62 Alb. L. Rev. 1119 (1999).
** Pammela S. Quinn, Note, Preserving Minors' Rights After Casey: The “New Battlefield” of Negligence and Strict Liability Statutes, 49 Duke L.J. 297 (1999).
*** Ingrid Schüpbach Martin, The Right To Stay In The Closet: Information Disclosures By Government Officials, 32 Seton Hall L. Rev. 407 (2002).
Wednesday, June 24, 2009
In an en banc decision, the Fourth Circuit vacates its earlier panel decision and a district court decision concluding the Virginia state law was unconstitutional. In Richmond Medical Center for Women [and Dr. William Fitzhigh] v. Herring, decided today, full opinion available as pdf here, the en banc court stated:
facial challenge against the Virginia Act, the challenge fails
(1) Dr. Fitzhugh’s posited circumstance does not
present a sufficiently frequent circumstance to render the Vir-
ginia Act wholly unconstitutional for all circumstances;
(2) the Virginia Act’s scienter language, although different from
the Federal Act, nonetheless provides sufficient notice to a
reasonable doctor of what conduct is prohibited by the statute;
(3) the provisions for a safe harbor and affirmative
defenses, as well as the requirement of "an overt act," ensure
that the Virginia Act will not create a barrier to, or have a
chilling effect on, a woman’s right to have a standard D&E
or her physician’s ability to undertake that procedure without
fear of criminal liability.
The court's discussion of the facial challenge, citing Marbury v. Madison, is relevant far beyond the reproductive rights context. Certainly, however, the limitation of facial challenges has been quite vigorous in the abortion context of late. Note also that the Virginia statute here, entitled the "Partial Birth Infanticide" Act, Va. CodeAnn. § 18.2-71.1(A)-(C), applies "regardless of the duration of pregnancy."
The twenty-five page dissenting opinion by Judge M Blane Michael (pictured left)
argues that the court is departing from Gonzales v. Carhart, "and long- standing precedent explicitly reaffirmed in that case hold that the Constitution protects a woman’s right to choose the standard dilation and evacuation (D&E) procedure employed in the vast majority of pre-viability second trimester abortions. The Virginia Act violates the Constitution because it exposes all doctors who perform the standard D&E to prosecution, conviction, and punishment. The Act does this by imposing criminal liability on any doctor who sets out to perform a standard D&E that by accident becomes an intact D&E." (emphasis in original).
Friday, June 5, 2009
What will health care reform mean for women? If spending clause jurisprudence remains the same, the net result might be (further) infringement on women's constitutional rights.
Currently, underlying doctrines such as the greater includes the lesser theory and the positive/negative rights theory tend to ignore the reality of the modern government, which wields influence through benefits. . . . . for now at least, the Dole test can facilitate drawing such boundaries if all of its elements are actively analyzed by the Court. The current focus on the federal-state relationship does not protect individuals in federal healthcare programs, nor does it particularly protect states. Though individual rights have not appeared to be particularly important to the majority of the Roberts Court, protecting the states through active federalism doctrine may be. . . . . Congress can change this trend, in a microcosm, by eliminating the Hyde Amendment and other pure funding statutes as well as by balancing conscience clause funding statutes. Conscience clause funding statutes in particular would become potentially unconstitutional under a revitalized Dole regime, as the ability to affect private-pay patients through federal spending truly pushes the envelope of the spending power.
Huberfeld's analysis of Dole is especially compelling; it would be helpful to students looking at applications of Dole. Her conclusion that the Roberts Court would be less friendly to constitutional challenges than Congress will be to eliminating limits on funding statutes remains to be seen.
Tuesday, April 28, 2009
Strebeigh's new book, Equal: Women Reshape American Law, published by WW Norton, might be a good book to recommend to students entering law school or students preparing for their first Constitutional Law course. The book has been getting some good press, but this analysis from Michael O'Donnell's review in the April 27 issue of The Nation gives one pause:
Notably absent from the book is any significant discussion of abortion
rights, which in this country have largely been won in courts rather
than legislatures. Some readers, viewing reproductive freedom as the
most fundamental of women's rights, may see the omission as a major
oversight, although Strebeigh may simply have wanted to avoid retelling
a familiar story. On the conceptual level, though, Strebeigh's decision
makes sense: much of the constitutional discussion in the book centers
around the Fourteenth Amendment's straightforward equal protection
clause, whereas abortion rights are based on the murkier and more
malleable due process clause--which, on its face, says nothing about
abortion. Many important legal advances, including abortion rights but
also, lately, protections for gays and lesbians, would wobble less today
if they rested on the sturdier foundation of equal protection, with its
relatively clear textual guarantee. Leaving aside abortion law allows
Strebeigh to avoid having to untangle legally (as opposed to
politically) knotty problems.
Certainly, whether or not the equal protection clause is "straightforward" is debatable. Also debatable is the question whether equality or the reshaping of American law should be discussed in a book without some attention to abortion or other reproductive rights.
Saturday, April 11, 2009
Both sides of the abortion debate invoke analogies to slavery. Recently, in the National Review Online, Michael Novak's article "Notre Dame Disgrace" criticizes the university for inviting Barak Obama, arguing that "I doubt very much whether the University of Notre Dame would ever give an honorary degree to a slave owner or a propagandist for slavery." One of the presentations scheduled for the upcoming conference on the Thirteenth Amendment, previously blogged here, is “Forced Labor, Revisited: The Thirteenth Amendment and Abortion” by Andrew Koppelman, of Northwestern University, School of Law. In Koppleman's previously published article, Forced Labor: A Thirteenth Amendment Defense of Abortion, 84 NW. U. L. Rev. 480 (1990), he argues:
Abortion prohibitions violate the amendment's guarantee of personal liberty, because forced pregnancy and childbirth, by compelling the woman to serve the fetus, creates “that control by which the personal service of one man sic is disposed of or coerced for another's benefit which is the essence of involuntary servitude.”' Such laws violate the amendment's guarantee of equality, because forcing women to be mothers makes them into a servant caste, a group which, by virtue of a status of birth, is held subject to a special duty to serve others and not themselves.
Outside the abortion context, doctrines and theoretical perspective of slavery and involuntary servitude continue to have valence. For example, in an extensive essay-review I've authored and just published in Berkeley Journal of Gender, Law and Justice, available on ssrn, I discuss a recent high profile prosecution on Long Island regarding wage slavery. (The essay springs from a book considering the writer Virginia Woolf's life and work).
In the context of domestic violence, Joyce McConnell, now Dean of West Virginia University College of Law, argued the applicability of the Thirteenth Amendment to the situation of domestic violence.
In her article, Beyond Metaphor: Battered Women, Involuntary Servitude and the Thirteenth Amendment, 4 Yale J.L. & Feminism 207 (1992), McConnell opened with a rejection of slavery as metaphor:
When Congress debated the Thirteenth Amendment and its prohibitions against slavery and involuntary servitude, anxious members inquired whether it would alter the traditional relationship of husband and wife. The concern materialized out of a political context in which those who sought abolition of African American chat-tel slavery and the establishment of women's rights were applying the norm of individual freedom beyond the nar-row scope of landed white men. At that time, the metaphor “women are slaves” had rhetorical currency and suggested that white women shared with African American men and women a similar legal and social status of non-identity and disability. No matter how rhetorically useful this metaphor may have seemed then or may seem now, it was and remains grossly inaccurate and inherently racist. It obscured the fact that white women were slaveholders or beneficiaries of the slave system. It failed to recognize that even though there were significant legal, political and social restraints on white women, they did not as a class suffer in the way that African Americans did under slavery. Finally, it ignored the fact that African American women were slaves and that other women were not, no matter what their subordinate legal or socio-economic status. So, the metaphor was and is fundamentally flawed both by its generality and its exclusion.
Id. at 207-8 (footnotes omitted). Instead, McConnell argued, the term "involuntary servitude" is applicable. Indeed, she discussed the fear of certain Congressmen that the prohibition of "involuntary servitude" would reshape their domestic lives and homes:
Senator Howard worried that if the Amendment was to be enacted “a woman would be equal to a man ... [a] wife would be equal to her husband and as free ... before the law.” Representative Cox was concerned that if Congress had the power to regulate “domestic slavery” then perhaps it could exercise this power to “change the relation of ... husband and wife.” To allay his colleagues' fears, Senator Sumner the chief proponent of the Thirteenth Amendment in the Senate, argued that the right to contract and the right to maintain a family were natural rights essential to the concept of freedom. In this he implied that to regard the Thirteenth Amendment as interfering with the traditional legal relationship between husband and wife would be reductio ad absurdum. His narrow interpretation of the Thirteenth Amendment assured its opponents that the Amendment would not in any way alter the family under the law, but rather was to give everyone, regardless of their race, the right to create and maintain a family under the laws then applicable to only whites and freed slaves. Such a family presumed the traditional authority of the husband over the wife.
Id. at 216 (footnotes omitted). This is a passage I return to again and again, using it to provoke class discussions.
In her article, McConnell goes on to mount a compelling argument regarding battered women as subject to involuntary servitude. Although not explicitly based on the Thirteenth Amendment, Congressional actions addressing domestic violence such as the Violence Against Women Act and immigration remedies for battered women, fit within some of the solutions McConnell proposed seventeen years ago. Yet McConnell's article still raises fresh perspectives.
Saturday, January 24, 2009
President Obama's decision in his first days to reverse the so-called "global gag rule" or "Mexico City policy" barring international aid connected to abortion led me back to some of the excellent scholarship that has occurred in this area. For ConLawProfs, the issue has always been a problematic one in terms of pure doctrine. Roe v. Wade does not apply to foreign aid or women outside the United States, but does that mean the issue is not a constitutional one? And what exactly is this "global gag rule" anyway?
Nina J. Crimm of St John’s Law School, in her article, The Global Gag Rule: Undermining National Interests By Doing Unto Foreign Women And NGOs What Cannot Be Done At Home, 40 Cornell Int'l L.J. 587 (2007), is a great place to start to look for an answer to these questions.
Professor Crimm does an excellent job of providing the history of the global gag rule starting in the 1960s, discussing the national interests supporting it, and elucidating the harms to NGOs. She briefly argues that the global gag rule could be unconstitutional under equal protection principles if it applied to US women. Her main argument concerns the First Amendment and “unconstitutional conditions” doctrines based on funding, but again with the caveat if the “restrictions that are imposed on foreign NGOs were imposed on domestically formed NGOs.” Thus, despite her carefully crafted constitutional arguments, her ultimate point is a non-constitutional one:
The United States holds itself up to the world as a model democracy based on fundamental and equal rights for individuals and organizations. Accompanying this role is the responsibility to permit abroad what must be permitted at home.
Id. at 618.
Crimm is not alone in her conclusions. The UC-Davis Journal of International Law and Policy devoted a Symposium to “Family Planning and AIDS Policy in the International Community” in 2006. Berta Esperanza Hernández-Truyol of University of Florida College of Law has a particularly compelling piece, On Disposable People And Human Well-Being: Health, Money And Power, 13 U.C. Davis J. Int'l L. & Pol'y 35 (2006). She argues:
An analysis of the gag rule reveals that it can be interpreted as an imperial power move that contributes to the deterioration of health. It deploys economic power to ignore sovereignty and subtract from human well-being. The policy purposely denies access to funds that enable the provision of health education, supplies, and services simply to implement political ideology. Ironically, while claiming a policy of preventing loss of life through prohibition of abortion, the gag rule policy actually costs more lives by not engaging in programs that can reduce maternal and infant mortality. Significantly, the policy also deleteriously results in more orphans (who are usually left in very vulnerable and unstable situations) and in the failure to provide certain services and supplies necessary for HIV/AIDS victims. This reveals a direct link between economic power (quantity of aid) and availability of service.
Id. at 64.
Again, this is not a “constitutional law” argument, but an international law and policy one. A host of other articles on the subject, most of them reaching similar conclusions as these articles by Berta Esperanza Hernández-Truyol and Nina J. Crimm, also might at first seem rather “tangential” to ConLawProfs, except as we discuss Executive and Legislative powers in “foreign affairs.”
But our students (at least mine) often raise issues of "rights" in international contexts. An interesting – and quite lengthy – article by Scott L. Cummings of UCLA published last year, The Internationalization Of Public Interest Law, 57 Duke L.J. 891 (2008), implicitly contends that “rights” may be shifting away from the Constitution. Here’s the abstract:
This Article describes and explains the influence of global change on American public interest law over the past quarter-century. It suggests that contemporary public interest lawyers, unlike their civil rights-era predecessors, operate in a professional environment integrated into the global political economy in ways that have profound implications for whom they represent, where they advocate, and what sources of law they invoke. The Article provides a preliminary map of this professional environment by tracing the impact of three defining transnational processes on the development of the modern public interest law system: the increasing magnitude and changing composition of immigration, the development and expansion of free market policies and institutions, and the rise of the international human rights movement. It then suggests how each of these processes has contributed to institutional revisions within the U.S. public interest system: the rise of immigrant rights as a distinctive category of public interest practice, the emergence of transnational advocacy as a response to the impact of free market policies abroad, and the movement to promote domestic human rights both as a way to resist free market policies at home and to defend civil rights and civil liberties in the face of domestic conservatism and antiterrorism. After mapping the institutional scope and texture of these trends, the Article appraises their influence on the goals public interest lawyers pursue, the tactics they deploy, and the professional roles they assume in the modern era.
So it seems that Obama's reversal of the "global gag rule" has a solid foundation in legal scholarship.
January 24, 2009 in Abortion, Due Process (Substantive), Executive Authority, Family, Foreign Affairs, Fundamental Rights, Gender, Medical Decisions, Reproductive Rights, Scholarship | Permalink | Comments (0) | TrackBack (0)
Thursday, January 22, 2009
Many many websites and news outlets reporting on Obama's press statement, which does not (yet?) appear on www. whitehouse.gov, but reads as follows:
On the 36th anniversary of Roe v. Wade, we are reminded that this decision not only protects women’s health and reproductive freedom, but stands for a broader principle: that government should not intrude on our most private family matters. I remain committed to protecting a woman’s right to choose.
While this is a sensitive and often divisive issue, no matter what our views, we are united in our determination to prevent unintended pregnancies, reduce the need for abortion, and support women and families in the choices they make. To accomplish these goals, we must work to find common ground to expand access to affordable contraception, accurate health information, and preventative services.
On this anniversary, we must also recommit ourselves more broadly to ensuring that our daughters have the same rights and opportunities as our sons: the chance to attain a world-class education; to have fulfilling careers in any industry; to be treated fairly and paid equally for their work; and to have no limits on their dreams. That is what I want for women everywhere.
Wednesday, December 31, 2008
The PBS News Hour with Jim Leher had an interesting discussion today with Con Law profs Pam Karlan of Stanford University (oft-mentioned as a possible Obama judicial appointment) and Paul Cassell of University of Utah (a federal district judge from 2002-2007) predicting the impact of an Obama Administration on the federal judiciary.
Paul Cassell has this to say in part:
And I think the real concern is whether President Obama will bring back something like the Warren Court years, where it seemed like every few months there would be a new constitutional right that was discovered in the Constitution, a constitutional right that struck down acts of Congress or the views of the state legislatures, the views of the American people.
Cassell predicted that Obama appointees would have "more of an activist bent than you would have seen under a President McCain or you have seen in the last eight years from President Bush."
activism is one of those words that's a little complicated, because I think a lot of President Bush's appointments to the bench have been far more activist than the appointments of Democratic presidents.
I mean, if activism means striking down laws that were enacted by democratically elected, popularly elected legislators, then what do we say about conservatives on the Supreme Court, for example, who strike down the D.C. gun control act or conservative judges who refuse to enforce disability laws that Congress passed against state governments?
The full transcript is available here (but note that the pull quote under Cassell's photo is actually Karlan's statement).
Monday, November 3, 2008
Just last week, I wrote about a challenge to an Oklahoma abortion law. Abortion remains in the forefront this week in two states.
Richmond Medical Center v. Herring - In 2003, the State of Virginia passed a law called the "Partial Birth Infanticide Act." Professor Sherry Colb of Findlaw explains that at the time the law was passed, Steinberg v. Carhart had been decided, so "the prospects for such laws . . . were not good." The law was enjoined, and the Fourth Circuit upheld the injunction. Virginia filed a petition for certiorari. However, after the Court's decision in Gonzalez v. Carhart, the Court directed the Fourth Circuit to reconsider the case.
A panel heard the case in May 2008. (Its decision can be found here.) Two of the judges again held that the law was unconstitutional. The primary reason was that the law placed "an undue burden on a woman's constitutional right to choose an abortion in the second trimester, because the Act effectively prohibits the standard D&E procedure. The panel majority distinguished the federal statute at issue in Gonzales v. Carhart. While both acts required anatomical landmarks, the Virginia statute had no scienter requirement. Moreover, while the federal statute distinguished the act of delivery from the act causing fetal demise, the Virginia act did not.
Professor Colb reports that last week, the Fourth Circuit sat en banc to hear arguments in the case. Professor Colb's analysis of the case is worth reading for many reasons. First, she provides an excellent overview of the legal framework governing the abortion issue. Second, she explains in great detail why later term abortions are necessary in some cases, and explains and rebuts some of the compelling arguments against the practice. You may want to use the piece to supplement your discussion of either of the Carhart cases.
South Dakota Iniative 11 - Controversial proposals aimed at limiting - or even outlawing - abortion are not new in South Dakota. However, an initiative on the ballot tomorrow states that a woman will only be able to obtain an abortion when rape or incest is alleged if she: identifies the rapist (or incestous party), submits to a DNA test (ostensibly to prove it is the rapist's child), and the procedure takes place in the first twenty weeks of the pregnancy.
There is so much that is troubling about this law, one hardly knows where to begin. The law, as proposed, seems to be premised on the assumption that the rapist is the proverbial "stranger in the bushes." But what if the rapist is a family member, a friend, an ex-boyfriend, or even a husband? Of course, in a perfect world, all sexual assaults would be reported, but that is not the case. The Rape, Abuse, and Incest National Network states that only sixty percent of all sexual assaults are reported. Moreover, according to RAINN, only six percent of rapists are ever incarcerated. With statistics like these, it is difficult to understand why placing such an onerous requirement on an innocent party is necessary. As the South Dakota section of the American College of Obstetricians and Gynegologists states in opposition to the ban:
Uncaring, unrealistic treatment of sexual assault victims.
This ban cruelly puts too many obstacles on women who are victims of rape or incest. It mandates a lengthy, cumbersome process that is unworkable, especially for sexual assault victims who choose to undergo a medical rather than a surgical abortion. In fact, it mandates that the medical community take on a law enforcement role by forcing doctors to report rape or incest to authorities – even against an adult patient’s wishes.
This brings me to my second point. The proponents of the law seem to believe that this measure will result in the "demise of Roe v. Wade." They may be overestimating their position. As written, for the reasons stated above, not to mention the incredible affront to personal dignity that such a law would entail, I believe the Court would have little trouble applying Casey to find that this law is a "substantial obstacle" and an undue burden on a woman seeking an abortion in these circumstances. The law requires identification of the rapist, as well as a DNA test. What happens if the rapist flees and is never caught? The law is unclear in this respect as well as others, as noted by its major opponent. In light of the uncertainty, it seems that women are unreasonably and unduly prevented from exercising a right unless they acquiese to increasingly intrusive demands. Moreover, what if a woman wants a medical abortion? Would the law force her to wait until she has to undergo a surgicial procedure. If so, unduly forcing a woman to wait without good medical reason would likely seem to violate Casey as well.
While the proponents may be hoping that the Court will find there is no exception to the Roe rule for rape and incest, that is unlikely. While Roe only mentions the health of the mother, a woman's psychological health would surely be important. Moreover, even if the Court were to rule that states could create limitations on abortion even in cases of rape or incest, based on Casey's statements regarding the decision to have an abortion in difficult circumstances, such as domestic violence, the limitations here likely go too far. The Supreme Court recognized the impact of violence on women's lives in Casey, and it is therefore likely that they will follow that path in any future challenges. In fact, the facts here are arguably stronger than those in Casey in that Casey pre-supposed consenual sex. In the end, the proponents of the bill could be on precipitous legal footing.
I'll try to report back on this after the election results come in.
Thursday, October 30, 2008
NPR reported yesterday that Colorado's ballot includes a measure that would amend the state constitution to define "personhood" as beginning at the moment of conception. The ballot language is here. (Colorado is the only one of several states where similar measures were proposed to gain enough signatures to put this on the ballot.)
If this should pass, the state constitutional amendment would raise serious federal constitutional questions, to say nothing of the many practical questions. From NPR's report:
Jessica Berg, a professor of law and bioethics at Case Western Reserve University, says the amendment could lead to some bizarre situations--such as counting fertilized eggs in the state census and pregnant drivers using the HOV lanes.
The measure has received some surprise opposition. The Colorado Catholic Conference opposes it, because it fears a backlash from the courts: Courts would strike down the measure and, in the process, reaffirm current abortion laws. Perhaps the Conference remembers the result of Colorado's last effort to curtail federal constitutional rights by state constitutional amendment: Romer v. Evans.