Friday, October 26, 2012

Daily Read: Obama on Roe v. Wade's Future

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.

Obama also responds to questions about NFIB v. Sebelius, the Affordable Health Care Act opinion, including Justice Roberts' role.

October 26, 2012 in Abortion, Current Affairs, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 11, 2012

Ninth Circuit on the Unconstitutionality of Criminalizing Women's Self-Abortion

449px-The_PrisonerIn 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]

September 11, 2012 in Abortion, Due Process (Substantive), Gender, Medical Decisions, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)

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.

PPToday, 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.

[image via]

August 21, 2012 in Abortion, First Amendment, Gender, Speech | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 1, 2012

HB2036 Update: Ninth Circuit Enjoins Arizona Abortion Law

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.


August 1, 2012 in Abortion, Due Process (Substantive), Reproductive Rights, Sexuality | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 31, 2012

Arizona HB 2036: Federal Judge Upholds Restrictive Abortion Law

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.



July 31, 2012 in Abortion, Due Process (Substantive), Family, Fourteenth Amendment, Reproductive Rights, Sexuality | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 24, 2012

Eighth Circuit En Banc Upholds Compelled "Suicide Warning" for Abortion Procedures

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).

372px-Chassériau,_Théodore_-_Sappho_Leaping_into_the_Sea_from_the_Leucadian_Promontory_-_c._1840Planned 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]

July 24, 2012 in Abortion, Due Process (Substantive), First Amendment, Fourteenth Amendment, Gender, Medical Decisions, Opinion Analysis, Sexuality | Permalink | Comments (0) | TrackBack (0)

Thursday, May 31, 2012

PRENDA - The Sex Selection Anti-Abortion Bill Fails to Pass House of Representatives, But . . . .

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.


May 31, 2012 in Abortion, Due Process (Substantive), Equal Protection, Family, Gender, Medical Decisions, Race, Teaching Tips, Thirteenth Amendment | Permalink | Comments (0) | TrackBack (0)

Saturday, May 5, 2012

Update Redux: Fifth Circuit Panel Vacates Stay in Texas Planned Parenthood Case

6a00d8341bfae553ef0168eafc613d970c-320wiA 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.


May 5, 2012 in Abortion, Courts and Judging, Current Affairs, Federalism, Fourteenth Amendment, Fundamental Rights, Gender, Sexuality | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 1, 2012

Update: Fifth Circuit Grants Emergency Stay in Texas Planned Parenthood Case

TexasThe 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.




May 1, 2012 in Abortion, Recent Cases, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 25, 2012

Canadian Perspectives on Revisiting Roe v. Wade

Canadian Law Prof Sonia Lawrence (pictured right) starts her Jotwell post "Womb as Wedge" this way:

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?

LawrenceQuestions worth asking, certainly. 

    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.



April 25, 2012 in Abortion, Comparative Constitutionalism, Fundamental Rights, Gender, History, Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, March 25, 2012

District Judge Finds Establishment Clause Violation for Trafficking Funding to Catholic Bishops

The opinion in ACLU of Mass. v. Sebelius, by District Judge Richard Stearns of the District of Massachusetts grants summary judgment on behalf of the ACLU in the controversial Catholic Bishops funding case under the TVPA.

At issue is implementation of the TVPA, the Trafficking Victims Protection Act, 22 USC §7101-7112 (2000).  Congress appropriated funds and directed the Secretary of HHS to “expand benefits and services to victims of severe forms of trafficking in persons in the United States.”  HHS first accomplished this by making grants to nonprofit organizations that worked with trafficking victims, but in 2005 decided it would delegate this task to an independent contractor to administer the funds. 

Only two organizations bid for the role of “independent contractor,” both of which are religious organizations.  The winner of the independent contractor bid was United States Conference of Catholic Bishops (USCCB).  This was despite the USCCB’s frank statement in its proposal that “as we are a Catholic organization, we need to ensure that our victim services are not used to refer or fund activities that would be contrary to our moral convictions and religious beliefs,” and therefore “subcontractors could not provide or refer for abortion services or contraceptive materials for our clients pursuant to this contract.”  This statement did raise concerns, and although HHS asked whether USCCB could abide by a “don’t ask, don’t tell” policy with regard to the exception, the USCCB essentially rejected that possibility.  It stated it would require an assurance form all subcontractors regarding compliance.

    Nevertheless, HHS awarded USCCB the contract, and it was renewed four times, for a total of almost $15 million. 

     The ACLU sued, arguing that the USCCB contract violated the Establishment Clause, because the government was allowing the USCCB to impose religious restrictions on taxpayer funds. The present secretary of HHS, Sebelius, contended that the ACLU lacked standing, that the case was moot, and that on the merits, there was no Establishment Clause violation.

    On standing, the judge rejected the government’s argument that standing was foreclosed by Arizona Christian School Tuition Organization v. Winn (2011), noting that this case involves an expenditure, and not a tax credit as in Winn.

     On the merits, the judge applied the well-known “Lemon test:” First, the statute must have a secular legislative purpose; Second, its principal or primary effect must be one that neither advances nor inhibits religion; Finally, the statute must not foster “an excessive government entanglement with religion.”  The judge also discussed the endorsement test, rejecting the argument that the endorsement inquiry is not relevant to funding, but only applicable in cases of religious displays. The judge noted that the reproductive limits in the contracting scheme were absolutely linked to religion: “there is no reason to question the sincerity of the USCCB’s position that the restriction it imposed on its subcontractors on the use of TVPA funds for abortion and contraceptive services was motivated by deeply held religious beliefs.”  Thus, the government’s delegation of authority to USCCB as an independent contractor provides a significant benefit to religion.

     Judge Stearns explicitly addressed the possibility that his opinion would be controversial, especially in light of rhetoric regarding hostility to religion: 

“I have no present allegiance to either side of the debate, only a firm conviction that the Establishment Clause is a vital part of the constitutional arrangement envisioned by the Framers, and perhaps a reason we have not been as riven by sectarian disputes as have many other societies.”  That conviction remains unshaken. To insist that the government respect the separation of church and state is not to discriminate against religion; indeed, it promotes a respect for religion by refusing to single out any creed for official favor at the expense of all others.

The case is sure to be appealed. 


March 25, 2012 in Abortion, Due Process (Substantive), Establishment Clause, First Amendment, Mootness, Opinion Analysis, Reproductive Rights, Standing | Permalink | Comments (0) | TrackBack (0)

Saturday, March 24, 2012

Saturday Evening Review: What Would Elizabeth Cady Stanton Say?

Elizabeth_Cady_StantonFeminist icon Elizabeth Cady Stanton (pictured right) is frequently portrayed as an anti-abortion.  For example, bills such as The Susan B. Anthony and Frederick Douglass Act of 2011, H.R. 3541, and The Elizabeth Cady Stanton Pregnant and Parenting Students Services Act of 2005, S.1966, H.R. 4265, co-sponsored by 2012 Republican Presidential candidate Rick Santorum, sought to limit abortion and other reproductive rights in the name of Stanton (as well as anti-slavery hero Frederick Douglas).   Stanton's supposed anti-abortion views are also frequently cited in Supreme Court briefs to defeat an argument that abortion is central to women's rights by noting that early feminists were against the practice.

But was Stanton actually anti-abortion?

Professor Tracy Thomas argues that Stanton is an unlikely - - - and inappropriate - - - poster woman for the contemporary anti-abortion movement in a new paper entitled Misappropriating Women’s History in the Law and Politics of Abortion.   According to Professor Thomas, Stanton "did not talk about abortion per se" and "did not respond to the public campaign for the criminalization of abortion led by the medical profession with attacks on the growing autonomy of women."   Instead,

Stanton turned this debate to her priority of women’s rights, framing the question as one of the “elevation of woman” through equal legal and social rights. Stanton’s theory of “enlightened motherhood” placed women as the “sovereign of her own person” with sole responsibility for deciding when and under what circumstances to bear children. She defended women accused of infanticide, exposing the gendered legal system of all-male juries, legislatures, and judges that condemned them. Stanton’s life work labored for radical change to the patriarchy of society seeking liberal legal reforms of equal rights for women. Her ideology was about the “self-sovereignty” of women and against the regulation of women by men or the law.

Of course, Stanton was not one of the framers of the Fourteenth Amendment and indeed, she refused to support the Amendment given its exclusion of women.  Nevertheless, Stanton's "originalist" views on the rights of women are often invoked and Tracy Thomas has provided vital historical sources, analysis, and arguments regarding Stanton's position. 

Thomas' article is sure to provoke its own analysis and arguments, and equally sure to be an important contribution in contemporary debates regarding the legal regulation of abortion.  It's a must-read for any scholar working on this controversial constitutional area.

[image of Elizabeth Cady Stanton circa 1880 via]

March 24, 2012 in Abortion, Due Process (Substantive), Family, Fourteenth Amendment, Fundamental Rights, Gender, History, Medical Decisions, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 11, 2012

Fifth Circuit Vacates Preliminary Injunction of Texas Abortion Statute

Chief Judge of the Fifth Circuit Edith Jones, well known for her conservative affiliations, authored the panel opinion for the Fifth Circuit vacating a preliminary injunction of Texas HB 15, an Act “relating to informed consent to an abortion.”   The district judge had issued a preliminary injunction against seven subsections for violating the First Amendment or Fourteenth Amendment's due process clause encompassing vagueness principles. 

Judge Jones rejected the argument that the panel should defer ruling on the preliminary injunction given that the "district court has, notwithstanding this appeal, proceeded apace toward consideration of summary judgment" and therefore a "ruling on this interlocutory matter would become moot if the district court enters final judgment first."  In declining to defer, Jones wrote that "this ruling will offer guidance to the district court, which is particularly important given our different view of the case."   Should the district judge not hew to the Fifth Circuit's interpretation, a reversal is certain:  Jones also made clear that for "the sake of judicial efficiency, any further appeals in this matter will be heard by this panel."

Texas HB 15 requires a sonogram, a display of the sonogram to the pregnant woman, make audible the heart auscultation of the fetus for the woman to hear, and explain to her the results of each procedure and to wait 24 hours, in most cases, between these disclosures and performing the abortion.  A woman may only decline the explanation if her pregnancy is a result of a sexual assault or incest, she is a minor who has received a judicial bypass, or the fetus is abnormal. 

The district judge found sections of HB 15 unconstitutional as compelled speech, but the Fifth Circuit's review of abortion cases led it to three conclusions:

First, informed consent laws that do not impose an undue burden on the woman’s right to have an abortion are permissible if they require truthful, nonmisleading, and relevant disclosures. Second, such laws are part of the state’s reasonable regulation of medical practice and do not fall under the rubric of compelling “ideological” speech that triggers First Amendment strict scrutiny. Third, “relevant” informed consent  may entail not only the physical and psychological risks to the expectant mother facing this “difficult moral decision,” but also the state’s legitimate interests in “protecting the potential life within her.”

Applying these principles, the panel found that the sections of HB 15 "requiring disclosures and written consent are sustainable under Casey, are within the State’s power to regulate the practice of medicine, and therefore do not violate the First Amendment."

As to the three vagueness arguments under the Due Process Clause, Judge Jones found the first "novel" and "novelty suggests its weakness;" the second as not meriting the district judge's "skeptical interpretation"  and that the "legislature had every right to maintain the integrity" of its statutory scheme; and the third,   "at bottom, trivial." 

Judge Patrick Higginbottom's brief concurring opinion is worth reading in full, both for what it says and for what it does not say.  While it expresses some misgivings, it leaves little doubt of the result unless the case reaches the United States Supreme Court.

[image: Judge Edith Jones, via]

January 11, 2012 in Abortion, Cases and Case Materials, Courts and Judging, Due Process (Substantive), First Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Opinion Analysis, Privacy, Reproductive Rights, Sexuality, Speech | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 26, 2011

North Carolina "Speech and Display" Ultrasound Requirement for Abortion Preliminarily Enjoined

United States District Judge Catherine Eagles has preliminarily enjoined N.C. Gen. Stat. § 90-21.85 on the basis of the First Amendment in a 19 page Opinion and Order  The statute was passed last summer, over the Governor's veto, and scheduled to become effective today.

The  statutory provision at issue, known as "speech and display," required:

  • that a woman undergo an ultrasound at least four hours before an abortion
  • that the physician or qualified technician working with the physician display the images produced from the ultrasound “so that the [patient] may view them,” 
  • that the providers give “a simultaneous explanation of what the display is depicting, which shall include the presence, location, and dimensions of the unborn child within the uterus,” and
  • that the providers give “a medical description of the images, which shall include the dimensions of the embryo or fetus and the presence of external members and internal organs, if present and viewable.”

Judge Eagles noted that it was undisputed that these provisions compelled content-based speech, that the State mandated regardless of the provider's medical opinion, whether or not the provider wanted to deliver the message, and whether or not the patient wanted to receive the message.

600px-Seal_of_North_Carolina.svgThe State argued against the usual standard of strict scrutiny to evaluate such compelled content speech by claiming that the speech should be evaluated under an undue burden standard, or that the speech evaluated under the lesser standard for commercial speech.  Judge Eagles rejected both of these arguments because they had little, if any, support in precedent.

Judge Eagles thus found that the "speech-and-display requirements of the Act are subject to strict scrutiny under traditional and longstanding First Amendment principles" and that the State "must establish that the compelled speech required of the providers furthers a compelling state interest and that the requirements are narrowly tailored to achieve that interest."  She quickly added that the State had "not established either element."

Yet in her analysis, Judge Eagles tended to rely on the "narrowly tailored" prong of the strict scrutiny test.  As to the State's first asserted interest, "protecting abortion patients from psychological and emotional distress," Judge Eagles concluded that even if this was a compelling interest, the evidence in the record tended not to support a claim of protection, and indeed, tended to support a claim of the harm to "the psychological health of the very group the state purports to protect."  Similarly, as to the State's second asserted interest, "preventing women from being coerced into having abortions," Judge Eagles noted that the State did not articulate the relationship between the speech and display requirements and the interest, and that "none is immediately apparent." 

Judge Eagle did squarely address the "compelling" quality of the State's third and final interest - - - added at oral argument - - - of "promoting life and discouraging abortion," with contradictory language from Casey.  But again, Judge Eagles stressed the relationship prong: "In any event, even if the state has a compelling interest, the state has provided no evidence that alternatives more in proportion to the resulting burdens placed on speech would not suffice."

North Carolina is not alone is passing these restrictive and controversial mandates regarding ultrasounds, although as Judge Eagles' decision demonstrates, they are deeply problematical under First Amendment doctrine.


October 26, 2011 in Abortion, Current Affairs, Federalism, First Amendment, Opinion Analysis, Reproductive Rights, Speech | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 31, 2011

Federal Judge Enjoins Portions of Texas Abortion Statute

Federal District Judge Sam Sparks has enjoined portions of HB 15, an Act “relating to informed consent to an abortion.” H.B. 15, 82nd Leg., Reg. Sess. (Tex. 2011) in his Order in Texas Medical Providers Performing Abortion Services v. Lakey.

Judge Sparks certified both a plaintiff class of medical providers and a defendant class of state actors, then proceeded to consider the plaintiffs' constitutional objections one by one.  In his 55 page opinion, Judge Sparks had little complimentary to say about the lawyering on both sides; indeed, he leveled sharp criticisms. 

Texas Womens_Museum_exterior_sculpture Judge Sparks also made clear his disapproval of the intent behind the Act that amended Texas' already restrictive abortion laws, stating in footnote 2:  "It is ironic that many of the same people who zealously defend the state’s righteous duty to become intimately involved in a woman’s decision to get an abortion are also positively scandalized at the government’s gross overreaching in the area of health care."  Yet this footnote was in the context of his rejection of Plaintiffs' equal protection arguments, which he found meritless: "In short, if the Texas Legislature wishes to prioritize an ideological agenda over the health and safety of women, the Equal Protection Clause does not prevent it from doing so under these circumstances."

Criticizing the "litany" of vagueness challenges by Plaintiffs and agreeing with the "Defendants’ characterization that 'plaintiffs have chosen to throw everything at the wall and hope something sticks,' ” Judge Sparks nevertheless found that three provisions of the Act were unconstitutionally vague:

  • First, the phrase “the physician who is to perform the abortion,” a phrase used in section 171.012(a)(4), is unclear as it relates to both multi-physician procedures and unplanned physician substitutions.
  • Second, the conflict between sections 171.012(a)(4) and 171.0122 creates unconstitutionally impermissible uncertainty regarding what will, and what will not, subject a physician or a pregnant woman to liability.
  • Finally, section 171.0123 is unconstitutionally vague regarding the scope of a physician’s duty to provide paternity and child support information to women who choose not to get abortions.

In finding these sections unconstitutionally vague, Judge Sparks emphasized that the lack of clarity was balanced against the serious penalities, so that neither physicians nor women should have to trust Defendants’ representations about the meaning of the provisions or otherwise guess.

Most seriously, Judge Sparks found several provisions of the Act constitutionally infirm under the compelled speech doctrine of the First Amendment.  Sparks distinguished Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992), on which the Defendants largely relied, by noting that

the Pennsylvania statute in Casey simply required physicians to inform pregnant women about the risks of an abortion, the potential alternatives thereto, and the availability of additional informational materials related to those alternatives. By contrast, the Act under consideration here requires physicians to provide, in addition to those legitimate disclosures, additional information such as descriptions of “the presence of cardiac activity,” and “the presence of external members and internal organs” in the fetus or embryo. The Court does not think the disclosures required by the Act are particularly relevant to any compelling government interest, but whatever relevance they may have is greatly diminished by the disclosures already required under Texas law, which are more directly pertinent to those interests.

Judge Sparks also found troubling under compelled speech doctrine Section 171.012(a)(5) that requires a pregnant woman to complete and sign a specified election form that certifies her understanding of many of the Act’s various requirements.  "The Court need not belabor the obvious by explaining why, for instance, women who are pregnant as a result of sexual assault or incest may not wish to certify that fact in writing, particularly if they are too afraid of retaliation to even report the matter to police. There is no sufficiently powerful government interest to justify compelling speech of this sort, nor is the Act sufficiently tailored to advance such an interest."  Compounding this compelled speech was the section that required the patient's certification be placed in the woman's medical records and maintained by the facility for seven years - - - making it "difficult to avoid the troubling conclusion   the Texas Legislature either wants to permanently brand women who choose to get abortions, or views these certifications as potential evidence to be used against physicians and women."

The Judge gave the severability clause of the Act effect, although he also enjoined "enforcement of any portion of the Act that conflicts with any of the above relief. This includes, but is not limited to, any penalty provision of the Act or any other statute that would impose a penalty for a person acting in compliance with this opinion." 

"The Court is bound to respect legislative intent, but not at the expense of the Constitution," Judge Sparks concluded.  Presumably, the preliminary injunction order will be appealed to the Fifth Circuit.

[image: Exterior Sculpture from The Women's Museum of Texas, via]

August 31, 2011 in Abortion, Cases and Case Materials, Due Process (Substantive), Equal Protection, First Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Opinion Analysis, Reproductive Rights, Speech | Permalink | Comments (3) | TrackBack (0)

Monday, August 1, 2011

Planned Parenthood of Kansas v. Brownback: Federal Judge Issues Preliminary Injunction

 In a Memorandum and Order today, Judge J. Thomas Marten of the United States District of Kansas, enjoined the enforcement of the Kansas defunding of Planned Parenthood statute, Section 107(l) of H.B. 2014, 84th Leg. (Kan. 2011).  The judge enjoined the Kansas state defendants from any further enforcement or reliance on  athe state statute and directed them to allocate all Title X funding for State Fiscal Year 2012 without reference to Section 107(l), and to provide continuation grant funding to the Planned Parenthood.

The Kansas statute, Section 107(l) of H.B. 2014, which took effect on July 1, 2011, defunds Planned Parenthood by providing that Kansas subgrants of Title X funds are "exclusively prioritized" to public entities, or secondly, to hospitals or federally-qualified health centers (FQHCs). As Planned Parenthood is a private entity which is neither a hospital nor a FQHC, it cannot successfully apply to Kansas to receive Title X funds.

Planned Parenthood Planned Parenthood argued that the statute violated the Supremacy Clause, in that in conflicted with federal law under Title X, and that the statute violated its First Amendment rights.  The judge found there was a substantial likelihood of success on both of these claims.

First, however, the judge considered the state's argument that any relief was barred by the Eleventh Amendment.  The state defendants argued that the requested relief therefore must include an order for the State to sign a contract with and pay money to Planned Parenthood, thereby violating the State’s sovereign immunity.  Rejecting this argument, the court stated that it found "the injunctive relief sought by Planned Parenthood will not violate the Eleventh Amendment, as it seeks an order which would simply preclude the defendants from any decision allocating Title X funding on the basis of the allegedly unconstitutional Section 107(l).”

As to Planned Parenthood's pre-emption claim, the judge noted that there were several cases holding that a state's imposition of additional eligibility requirements under Title X are invalid as creating an unconstitutional conflict.  The state statute did not simply render uncertain whether or not Planned Parenthood could receive state funding; it made it impossible for the organization to be funded. 

Regarding Planned Parenthood's First Amendment claim, the judge distinguished it from unconstitutional conditions cases such as Rust v. Sullivan.  Here, it was not that there were conditions attached to the funding, but that an organization was deemed ineligible based entirely on "participation in unrelated political conduct. This punitive aspect of the statute, arising from the plaintiff’s protected association with abortion related services, renders the statute unconstitutional."  Thus, the judge focused on the First Amendment right of association.

Ks_sunflower_state_all Discussed in both of the Planned Parenthood claims was the legislative intent of the statute.  Was the intent of the statute directed at Planned Parenthood?  The judge soundly rejected the state defendants "suggestion that the statute was simply designed to prioritize funding to entities who have a higher percentage of poor clients" as a post-hoc, “litigation-spawned” attempt to find some alternative, benign rationale for the statute.  The judge also considered the statement of the amendment's sponsor, Lance Kinzer, including on the floor of the House and on his facebook page:

Delighted to announce that the KS House just approved my floor amendment to deny Title X funding to Planned Parenthood for the balance of FY2011. The vote was 91-26, a great victory on the first pro-life floor vote
of the session.

Similarly, Governor Brownback, who signed the statute into law, was quoted by The Lawrence, Kansas Journal-World as hailing the Kinzer amendment on the grounds that it would “zero out funding of Planned Parenthood.”  The judge found these were not isolated statements, but indicative of legislative intent both to "punish" Planned Parenthood in contravention of its free association First Amendment rights and to contradict the direct mandate of the federal law.


August 1, 2011 in Abortion, Association, Cases and Case Materials, Current Affairs, Eleventh Amendment, Family, Federalism, First Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Opinion Analysis, Preemption, Privacy | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 13, 2011

Federal Judge Enjoins NYC Local Law 17 Regulating Deceptive "Pregnancy Service Centers"

New York City passed Local Law 17 earlier this year, set to become effective tomorrow, July 14, 2011, based on its finding that some so-called

pregnancy services centers in New York City engage in deceptive practices, which include misleading consumers about the types of goods and services they provide on-site, misleading consumers about the types of goods and services for which they will provide referrals to third parties, and misleading consumers about the availability of licensed medical providers that provide or oversee services on-site. Such deceptive practices are used in advertisements for pregnancy services centers, which are misleading as to the services the centers do or do not provide.

Plaintiffs, a group of pregnancy services center that oppose abortion and emergency contraception, sought a preliminary injunction based upon Local Law 17's infringement of their First Amendment rights.  In a 32 page opinion today, District Judge William Pauley enjoined Local Law 17 in Evergreen Association (d/b/a EMC Frontline Pregnancy Centers) v. City of New York. 

There was disagreement over the type of speech regulated by Local Law 17, and thus the level of scrutiny the court should apply.  The City argued that Local Law 17 regulated commercial speech, and moreover the law was aimed only at preventing deception and requiring purely factual disclosures.  The City characterized the pregnancy centers speech as commercial because (1) they advertise goods and services—e.g., diapers, clothing, counseling, pregnancy testing, and ultrasounds—that have commercial value; and (2) they receive something of value in return for those goods and services, namely, “the opportunity to advocate against abortion and either delay or prevent the decision to terminate a pregnancy.” 


The judge found neither argument persuasive.  The judge reasoned that the pregnancy services centers do not act out of commercial motives, instead, their "missions and by extension their charitable work—are grounded in their opposition to abortion and emergency contraception," and while it may be true that increase their “fundraising prowess” by attracting clients, as the City suggested, they do not advertise “solely” for that purpose.  Rather, their "speech on reproductive rights concerns an issue prevalent in the public discourse," citing  Snyder v. Phelps, 131 S. Ct. 1207, 1215 (2011).

The judge therefore aplied strict scrutiny.  As to a compelling governmental interest, the judge essentially found this prong of the analysis unneccesary because of his conclusion regarding the lack of narrow tailoring.  However, the judge did write that he

recognizes that the prevention of deception related to reproductive health care is of paramount importance. Lack of transparency and delay in prenatal care can gravely impact a woman’s health. [citation omitted].  Unlicensed ultrasound technicians operating in pseudo-medical settings can spawn significant harms to pregnant, at-risk women who believe they are receiving medical care. Plaintiffs’ categorical denial of the existence of any such deception—and refusal to acknowledge the potential misleading nature of certain conduct—feigns ignorance of the obvious.

The judge found that the disclosure requirements were "over-inclusive": the advertisement need not be deceptive for Local Law 17 to apply, any advertisement offering pregnancy related services had to include disclosures regarding the (non)availaibility of medical personnel.  The judge also noted that the City had other avenues to achieve its purpose other than mandating disclosure by the pregnancy centers themselves: the City controls the right-of-way and could erect a sign on public property outside each pregnancy service center encouraging pregnant women to consult with a licensed medical provider; the  City is also perfectly capable of conveying its message through a public service advertising campaign; the City could prosecute those centers that have engaged in deceptive practices.  Additionally,

this Court notes that the City could impose licensing  requirements on ultrasound technicians (or lobby the New York State legislature to impose state licensing requirements). Of all of the services provided by Plaintiffs, ultrasounds are the most potentially deceptive: a woman visiting a facility that perfonns and/or interprets ultrasounds could reasonably form the impression that she has received medical treatment. However, by permitting ultrasound examinations to be performed only by licensed professionals, the City could regulate the manner in which those examinations are conducted and curb any manipulative use. Such licensing schemes are not unprecedented; two states already require ultrasounds to be performed by a licensed professional. N.M. Stat, Anno. §S 61-14E-l to 14E-12; Or. Rev. Stat. § 688.405, 688.415.

Indeed, the fact that the persons who staff the pregnancy service centers are not "professionals," led the judge to conclude that their speech is not "professional speech" that could be more easily regulated.

Finally, Local Law 17's definition of a “pregnancy services center” that has the “appearance of a licensed medical facility” (and would therefore have to disclose it was not),  was unconstitutionally vague.  While Local Law enumerates factors, the "fundamental flaw is that its enumerated factors are only “among” those to be considered by the Commissioner in determining whether a facility has the appearanceof a licensed medical center."  This is especially problematic for the judge given "the fact that Local Law 17 relates to the provision of emergency contraception and abortion—among the most controversial issues in our public discourse—the risk of discriminatory enforcement is high."

(H/T Jen Hogg)
(image: ultasound machine via)

July 13, 2011 in Abortion, Due Process (Substantive), First Amendment, Fourteenth Amendment, Gender, Sexuality | Permalink | Comments (1) | TrackBack (0)

Wednesday, June 29, 2011

Kansas Abortion Law (SB 36) Challenged in Federal Court

[Update: Judge Carlos Murguia issued a preliminary injunction from the bench on July 1, 2011].

The controversial law passed by the Kansas legislature, SB36 (or more precisely, the House Substitute for SB 36) and signed by Governor Sam Brownback, imposes stringent new regulations on health care facilities that perform abortions. 

KANSAS Some would categorize it as a TRAP law - - - a Targeted Regulation of Abortion Providers law - - - but almost everyone agrees that the law is part of a sustained effort in Kansas to eliminate abortion services in the state.  The law mandates specific licensing requirements, including miles from hospital, gender of physician or observer, and medication to be taken in the presence of physician.  The law provided for Temporary Regulations to be issued.

A complaint has been filed on behalf of two physicians represented by the Center for Reproductive Rights in federal court.  The complaint alleges the law and the regulations are unconstitutional as


  • violating the patients' right of privacy because the law has the purpose and the effect of imposing an undue burden on Plaintiffs’ patients who seek abortions presently or in the future, in violation of the Fourteenth Amendment to the United States Constitution;
  • violating Plaintiffs’ right to procedural due process under the Fourteenth Amendment to the United States Constitution because they deprive Plaintiffs of protected property and liberty interests without providing Plaintiffs with any form of pre-deprivation hearing, including any opportunity to comment on theregulations or request waivers;
  • violating Plaintiffs’ right to due process of law under the Fourteenth Amendment to the United States Constitution by: depriving them of property (including lost income and future patients) and liberty (including their ability to practice their profession) without serving any compelling, substantial, or legitimate state interest;
  • violating Plaintiffs’ right to due process of law under the Fourteenth Amendment to the United States Constitution by failing to give Plaintiffs fair notice of the requirements they must meet under the Temporary Regulations and encouraging arbitrary and discriminatory enforcement of those regulations;
  • depriving Plaintiffs of equal protection of the laws, as guaranteed by the Fourteenth Amendment to the United States Constitution, by subjecting them to unique burdens not imposed on medical practices that provide comparable services, with no basis for the differential treatment other than animus.

The complaint seeks a preliminary injunction; no date has been set for the hearing.



June 29, 2011 in Abortion, Due Process (Substantive), Equal Protection, Family, Fundamental Rights, Gender, Medical Decisions, News | Permalink | Comments (0) | TrackBack (0)

Thursday, May 12, 2011

Is The Roberts Court Really a Court? Eric Segall's Answer

In an article with the provocative title Is The Roberts Court Really a Court?, 40 Stetson Law Review 1 (2011), available on ssrn, Professor Eric Segall defines the judicial function as the resolution of "legal disputes by examining prior positive law, such as text and precedent, and then providing transparent explanations" for the decisions.  On this definotion, Segall concludes that the Roberts Court is not "really" a judicial body based upon an examination of three controversial cases:  Gonzales v. Carhart (Carhart II), 550 U.S. 124 (2007); District of Columbia v. Heller, 554 U.S. 570 (2008); and Citizens United v. Federal Election Commission, __ U.S. ___, 130 S. Ct. 876 (2010). 

Here's Segall's conclusion:

In Carhart II, the Roberts Court implicitly overturned an important decision without any discussion of stare decisis. In Heller, the Court created a brand new constitutional right, displacing centuries of caselaw, based on a controversial (at best) historical account that raised serious questions about how the Court actually reached its decision. And, in Citizens United, the Court reached out to decide an important and settled issue of constitutional law not raised by the parties, and it did so without any meaningful discussion of history or stare decisis concerns. In all three cases, the only persuasive descriptive account of why the Court veered from prior positive law is that the people on the Court changed (Justice Alito for Justice O’Connor). This is not judging according to the Rule of Law but judging according to the Rule of Five Justices, and it seriously calls into question whether the Roberts “Court” is, in fact, a court at all.

Segall's brief article provides execellent support for this conclusion, which is widely - - - although certainly not universally - - - shared. 

However, Segall also contends that the question of whether the Roberts Court is really a court "could just as easily be asked of the Rehnquist, Burger, and Warren Courts, as well as all of the other previous Supreme Courts."  Indeed, the conclusion that the Supreme Court is merely the "Rule of Five" is one that might even be more widely - - - although again not universally - - - shared than conclusions about any particular Court.  It is what can make Constitutional Law courses so challenging. 

Segall quickly retreats from the more comprehensive argument: "A comparative analysis of the various Supreme Courts’ reliance on prior law is well beyond the scope of this Article."   Yet he contends that regardless "of whether prior Courts can be accused of similar attitudes, the general indifference of the Roberts Court to these rule-of-law values is troubling."   With three controversial cases, Segall mounts an argument that many will find persuasive.


May 12, 2011 in Abortion, Campaign Finance, Cases and Case Materials, Courts and Judging, Due Process (Substantive), First Amendment, Interpretation, Recent Cases, Reproductive Rights, Scholarship, Second Amendment | Permalink | Comments (1) | TrackBack (0)

Monday, April 18, 2011

Footnote of the Day: Not Worth a Footnote?

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.  

O'Connor Scalia 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."



April 18, 2011 in Abortion, Due Process (Substantive), Family, Federalism, Fourteenth Amendment, Games, Gender, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)