Wednesday, January 11, 2012
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
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.
The 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.
Wednesday, August 31, 2011
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.
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.
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
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 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.
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
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)
Wednesday, June 29, 2011
[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.
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.
Thursday, May 12, 2011
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
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.