Tuesday, November 12, 2013

Daily Read: "Interest Creep" by Dov Fox

What is the government interest?

This simple query, even before one evaluates the interest (is it compelling? or even merely legitimate?), can be a vexing one for students, professors, litigators, and courts.   Legislative listing of such interests - - - whether in preambles, legislative history, or litigation - - - provides language but not necessarily meaning.

02c5688cd9ab2daa13288b5b3a4c43b5In his terrific article, "Interest Creep," (available on ssrn), Professor Dov Fox (pictured left) analyzes government interests in an array of constitutional cases.  His argument that the way that courts characterize government interests often shapes how cases are decided will hardly be surprising.  His contribution, however, is in his own characterizations and categorizations of the types of interests and their deployment.  His specific discussion of the government's interest in "potential life," expressed by the Court in Roe v. Wade, in contemporary abortion regulations about "fetal pain" and "sex/race selection" is stellar.

Ultimately, he argues that

Casual reliance on underspecified interests like potential life, national security, or child protection frustrates a constructive struggle about how best to make sense of the various plausible but distinct concerns that those shibboleths are invoked to capture over time and across contexts  Interest creep erodes adjudicative norms by impeding the capacity of litigants, judges, advocates, lawmakers, and citizens “to debate and to criticize the true reasons for [judicial] decisions."

Especially worth a read for anyone teaching or writing in the areas of reproductive rights.

November 12, 2013 in Abortion, Due Process (Substantive), Fourteenth Amendment, Medical Decisions, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

United States Supreme Court Refuses to Hear Oklahoma Abortion Case

The United States Supreme Court routinely rejects petitions for writs of certiorari, so today's denial in Pruitt v. Nova Health Systems is not especially noteworthy.  Nevertheless, given the Oklahoma Supreme Court's decision in 2012, which we discussed here, holding that Oklahoma's abortion law requiring an ultrasound was unconstitutional because of Planned Parenthood v. Casey, 505 U.S. 833 (1992), does seem meaningful. 

Its meaning is compounded by the Court's dismissal of the writ as improvidentally granted in Pruitt's companion case, Cline v. Oklahoma Coalition for Reproductive Justice, in which the Court certified a question to the Oklahoma Supreme Court regarding the interpretation of the abortion statute.

Thus, it seems as if the Court presently has no inclination to reconsider Casey.

800px-Panorama_of_United_States_Supreme_Court_Building_at_Dusk
 

 

 

November 12, 2013 in Abortion, Due Process (Substantive), Fourteenth Amendment, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Saturday, November 9, 2013

Federal Judge Upholds New Jersey's Prohibition of Sexual Conversion Therapy

Federal district judge Freda Wolfson has upheld the constitutionality of  New Jersey A3371 banning "sexual orientation change efforts" (SOCE), also known as sexual conversion therapy, on minors in her extensive opinion in King v. Christie. 

Brain painting

Recall that Chris Christie - - - now the recently re-elected Governor of New Jersey - - - signed the bill into law last August, accompanied by a signing statement, and that the plaintiffs, including Tara King, a licensed professional counselor, as well as National Association for Research and Therapy of Homosexuality (“NARTH”) and American Association of Christian Counselors (“AACC”), argued that the statute violates their First Amendment rights of free speech, rights of their clients to "receive information," and free exercise of religion, as well as clients' parental due process rights under the Fourteenth Amendment, in addition to concomitant rights under the New Jersey state constitution.

The district judge found that the First Amendment challenges raised by the plaintiffs were the most serious ones, but also found that the statute restricts neither speech nor religious expression,  and that the statute survived rational basis scrutiny.

Regarding speech, Judge Wolfson concluded that on its face, the statute plainly regulates conduct, quoting the statutory language:

  “shall not engage in sexual orientation change efforts,” and further defines “‘sexual orientation change efforts” as “the practice of seeking to change a person’s sexual orientation.”

(emphasis in opinion).  She extensively discussed the Ninth Circuit's opinion in Pickup v. Brown, upholding a smiliar California statute prohibiting SOCE.  She briefly distinguished the federal district judge's opinion in Wollschlaeger v. Farmer declaring unconstitutional Florida's prohibition of physicians asking patients about gun ownership, noting that unlike the Florida law, the NJ statute "does not seek to regulate the conveying of information, only the application of a particular therapeutic method." She also confronted the implications of the plaintiffs' arguments:

there is a more fundamental problem with Plaintiffs’ argument, because taken to its logical end, it would mean that any regulation of professional counseling necessarily implicates fundamental First Amendment free speech rights, and therefore would need to withstand heightened scrutiny to be permissible. Such a result runs counter to the longstanding principle that a state generally may enact laws rationally regulating professionals, including those providing medicine and mental health services.

She likewise rejected the argument that there was sufficient expressive conduct to merit an analysis under the intermediate scrutiny standard of O'Brien, finding instead that rational basis was the appropriate standard and switching to a due process analysis, having "rejected Plaintiffs' First Amendment free speech challenge."  (footnote 22).  Not surprisingly, she finds this standard easily satisfied.  Relatedly, she easily concludes that the challenge to the term "sexual orientation" as vague and the challenge to the statute as overbroad are both without merit.

As to the free exercise of religion challenge, Judge Wolfson concludes that the statute is a neutral one of general applicability and rejects the argument that the statute's exceptions create a disproportionate impact on religious expression.  Again, she concludes that rational basis applies and for the same rationales discussed in the free speech analysis, the statute easily satisfies the standard.

In other matters, the judge found that the plaintiffs did not have sufficient Article III standing to raise the injuries to their minor clients and their parents.  On the other hand, the judge granted intervernor status to Garden State Equality.

The judge's opinion is a well reasoned one, and is certainly buoyed by the Ninth Circuit's similar conclusion. 

The plaintiffs filed a Notice of Appeal  immediately, so the matter is already on its way to the Third Circuit.

[image: Diagram of the Brain circa 1300 via]

November 9, 2013 in Due Process (Substantive), Family, First Amendment, Free Exercise Clause, Medical Decisions, Opinion Analysis, Religion, Sexual Orientation, Speech, Standing | Permalink | Comments (0) | TrackBack (0)

Thursday, October 31, 2013

Fifth Circuit Stays Injunction Against Texas HB 2 Abortion Restrictions

A few days ago, federal District Judge Lee Yeakel enjoined portions of Texas HB 2 in Planned Parenthood of Greater Texas v. Abbott.

A Fifth Circuit panel has entered its opinion staying the injunction pending a full consideration of the merits, concluding that there is  "a substantial likelihood that the State will prevail in itsargument that Planned Parenthood failed to establish an undue burden on women seeking abortions or that the hospital-admitting-privileges requirement creates a substantial obstacle in the path of a woman seeking an abortion."  The panel also concluded that "the State has made a strong showing of likelihood of success on the merits" on its appeal on the partial injunction pertaining to medication abortions.

As to mandated hospital admitting provisions, the panel observed that the district judge's finding that the requirement failed a rational basis standard "overlooks substantial interests of the State in regulating the medical profession and the State’s interest in “‘protecting the integrity and ethics of the medical profession." Further, the panel held that the district judge's finding of an undue burden did not apply to "a large fraction" of the women seeking abortions in Texas.

Regarding the partial injunction on medical abortions, the Fifth Circuit panel found it is was overbroad, except in a single respect in which the injunction will remain in effect:

the district court’s injunction continues to apply pending appeal with respect to a mother who is 50 to 63 days from her last menstrual period if the physician who is to perform an abortion procedure on the mother has exercised appropriate medical judgment and determined that, due to a physical abnormality or preexisting condition of the mother, a surgical abortion is not a safe and medically sound option for her.

Otherwise, HB 2, the subject of the well-publicized filibuster by state senator Wendy Davis in now in effect.

 

October 31, 2013 in Abortion, Courts and Judging, Due Process (Substantive), Gender, Opinion Analysis, Reproductive Rights, Sexuality | Permalink | Comments (0) | TrackBack (0)

Monday, October 28, 2013

Texas District Judge Declares Portions of HB 2 Restricting Abortion Unconstitutional

WDTexas banner
In his opinion in Planned Parenthood of Greater Texas v. Abbott, Judge Lee Yeakel has enjoined portions of Texas HB 2, passed in July (despite a well-publicized filibuster by state senator Wendy Davis) and slated to become effective October 29, 2013.

 The judge found unconstitutional the "admitting privileges provision" that provided:

A physician performing or inducing an abortion:
(1) must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that:
(A) is located not further than 30 miles from the location at which the abortion is performed or induced; and
(B) provides obstetrical or gynecological health care services

He concluded that the provision placed a substantial obstacle in the path of a woman seeking an abortion and failed the rational basis test.  As to the substantial obstacle, the judge noted that hospital admitting privileges for physicians performing abortions can be difficult to obtain; for example a physician performing low-risk abortions may simply not have sufficient surgeries to qualify.  Moreover, many physicians are not within the 30 mile limit.  Regarding a rational relationship, the judge found that hospital emergency rooms admitting a patient and hospitals subsequently treating her do not disfavor a patient whose physician does not have admitting privileges.

Judge Yeakel did not declare unconstitutional HB 2's revision of physician prescription of abortion-inducing medications such as RU-486.  HB 2 essentially mandates following the FDA protocol, a protocol that is not usually followed and about which there is substantial disagreement.  Judge Yeakel, however, found that HB 2 did not impose an undue burden because the physician could perform a surgical abortion.  An exception, however, must be added if the physician determines that the health or life of the woman is at stake.

Texas is reportedly already appealing the decision.  It is not the first time that Judge Lee (Earl Leroy) Yeakel has rendered an opinion declaring portions of a Texas statute restricting abortion unconstitutional and been appealed.  Last year in Planned Parenthood Ass'n of Hidalgo Cty. v. Seuhs, a panel of the Fifth Circuit reversed Judge Yeakel's preliminary injunction involving a 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.

 UPDATE: FIFTH CIRCUIT STAY

October 28, 2013 in Abortion, Courts and Judging, Due Process (Substantive), Fourteenth Amendment, Medical Decisions, Opinion Analysis, Reproductive Rights, Standing | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 22, 2013

Georgia Supreme Court Upholds Constitutionality of Solicitation for Sodomy Statute - As "Narrowly Construed"

The Supreme Court of Georgia has upheld the constitutionality of the state statute criminalizing the solicitation of sodomy, even as it narrowly construed it, and even as it reversed the conviction based upon insufficiency of the evidence.

HunsteinIn its 12 page opinion in Watson v. State, Justice Carol Hunstein (pictured right) writing for a unanimous court, reaffirmed two of the court's previous decisions:

  • Powell v. State (1998), limiting the construction of the sodomy statute pursuant to the "fundamental privacy rights under the Georgia Constitution" and
  • Howard v. State (2000), upholding the sodomy solicitation statute against a free speech challenge by  narrowly construing "the solitication of sodomy statute to only punish speech soliciting sodomy that is not protected by the Georgia Constitution's right to privacy."

 Thus, the rule the court articulates is that

an individual violates the solicitation of sodomy statute if he (1) solicits another individual (2) to perform or submit to a sexual act involving the sex organs of one and the mouth or anus of the other and (3) such sexual act is to be performed (a) in public; (b) in exchange for money or anything of commercial value; (c) by force; or (d) by or with an individual who is incapable of giving legal consent to sexual activity.

Under this redefined "scope of the statute," the court then finds that Watson's actions did not satisfy any of the possibilities required by the third element: it was not to take place in public, it was not commercial, was not by force (although Watson was a police officer) and was not to a person incapable of giving consent (although solicited person was 17, the age of consent in the state is 16).  In addition to reversing the conviction for solicitation of sodomy, the court reversed the conviction for violation of oath of office (of a police officer) that rested on the solicitation conviction.

While the Georgia Supreme Court's opinion is correct, redrafting a statute that remains "on the books" for prosecutors, defense counsel, and perhaps even judges who are less than diligent can result in a denial of justice.

The better course would have been to declare the solicitation of sodomy statute unconstitutional, requiring the legislature to do its job and pass a constitutional statute.  This was the option followed by the New York Court of Appeals - - - New York's highest court - - - when presented by a similar issue in 1983.  Having previously declared the state's sodomy statute unconstitutional in People v. Onofre (1980),  when the court was presented with a challenge to a prosecution under the solicitation of sodomy statute, the court in People v. Uplinger stated:

The object of the loitering statute is to punish conduct anticipatory to the act of consensual sodomy. Inasmuch as the conduct ultimately contemplated by the loitering statute may not be deemed criminal, we perceive no basis upon which the State may continue to punish loitering for that purpose. This statute, therefore, suffers the same deficiencies as did the consensual sodomy statute.

The United States Supreme Court granted certiorari in Uplinger, and then dismissed certiorari as improvidently granted, in part because of the intertwining of state and federal constitutional issues and in part because there was not a challenge to the underlying decision that held sodomy unconstitutional, six years before Bowers v. Hardwick, the case in which the United States Supreme Court upheld Georgia's sodomy statute.

October 22, 2013 in Criminal Procedure, Due Process (Substantive), Opinion Analysis, Sexual Orientation, Sexuality, State Constitutional Law, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 8, 2013

Ninth Circuit Holds Haboring and Transporting Provision of SB1070 Unconstitutional

800px-Immigration_Reform_Leaders_Arrested_4Passed in 2010, Arizona's SB 1070 has been controversial since the beginning.  Recall that some portions of Arizona's attempt to control immigration and immigrants in SB 1070 reached the United States Supreme Court in Arizona v. United States, with a majority holding major portions of the state law were preempted by the federal statutory immigration law and thus invalid under the Constitution's Supremacy Clause, Article VI.  The Court, however, upheld section 2(B), perhaps the most controversial aspect, often known as the "show me your papers" provision.  

But preemption was not the only constitutional attack on SB1070; and these challenges are slowly but surely making their way to the Ninth Circuit.  In March, a panel of the Ninth Circuit rendered its opinion in Valle Del Sol v. Whiting and upheld District Judge Susan Bolton's preliminary injunction against enforcement of the day labor regulations of SB 1070 as violative of  the First Amendment. 

Today, the Ninth Circuit again rendered an opinion upholding Judge Bolton's preliminary injunction; and although the case is again styled Valle Del Sol v. Whiting, the provisions of SB 1070 at issue, codified as Arizona Revised Statutes §13-2929, are the ones that attempted to "criminalize the harboring and transporting of unauthorized aliens" within Arizona.

Authored for the panel by Judge Richard Paez, and joined by John T. Noonan, with a concurring opinion and minimal dissent by Judge Carlos Bea, the opinion devoted about 10 of its 45 pages to the issue of standing, concluding that there was both individual and organizational standing.

On the merits, the panel found a due process violation:

Section 13-2929 states that “[i]t is unlawful for a person who is in violation of a criminal offense” to knowingly or recklessly transport, conceal, harbor, or shield an unauthorized alien. We conclude that the phrase “in violation of a criminal offense” is unintelligible and therefore the statute is void for vagueness.

Interestingly, the footnote to this passage explains:

The plaintiffs did not originally raise this issue. But in order to address the plaintiffs’ preemption claim, we must first interpret the statute’s provisions. In attempting to do so, we are confronted with this incomprehensible element of § 13-2929. Thus, we resolve the vagueness issue because it is both “antecedent to . . . and ultimately dispositive of” the appeal before us.

The court stated that "Arizona makes no claim that 'in violation of a criminal offense' makes any sense as written." The panel rejected Arizona's arguments to "save" the statute's wording, stating that Arizona would have the court "replace a nonsensical statutory element with a different element" rather than engage in the more permissible approach of adopting a limiting construction.

The court then engaged with the preemption challenge, stating that even if it were to accept Arizona's proposed interpretation of the statute, the statute is also preempted by federal law, under the doctrines of field preemption and conflict preemption.  It was from this analysis that Judge Bea dissented, saying that because the case is "resolved  on other grounds, namely vagueness, I believe the court should not reach the preemption issue."

The mistake - - - carelessness? - - - in the drafting of this provision was a fatal flaw.  While the legislature could redraft legislation, as the court notes, perhaps the political will in Arizona for bills such as SB1070 has diminished.

October 8, 2013 in Due Process (Substantive), Federalism, Fourteenth Amendment, Interpretation, Preemption, Race, Standing | Permalink | Comments (0) | TrackBack (0)

Monday, September 30, 2013

Daily Read: Constitutional Rights and the Domestic War on Terror

Jeanne Theoharis (pictured right) Faculty_picturea Political Science Professor at Brooklyn College (CUNY) has an interesting article over at The Nation, as the first in a series of pieces in collaboration with Educators for Civil Liberties about the "domestic war on terror."  Theoharis discusses the well-known situation of Syed Fahad Hashmi, one of her former students.

She observes that "researchers and human rights advocates, focused on the horrors abroad in the “war on terror” (Guantánamo, Abu Ghraib, extraordinary rendition), had largely overlooked the civil rights abuses happening right here at home."

She argues

Just because something is legal does not make it just. Many of the most egregious rights violations in American history—slavery, the seizure of Indian land, segregation and the expansion of the penal system, the internment of Japanese-Americans, the firing of gay and communist-sympathizing federal employees during the McCarthy era—were accomplished and legitimated through the law. Most of these historical instances were undertaken as necessary security measures. It took public dissent and a sustained outcry, long and arduous struggles, to reveal the rights abuses embodied in the law.

This would be a great short "think piece" to stimulate conversation in a Constitutional Law class.

 

September 30, 2013 in Courts and Judging, Criminal Procedure, Current Affairs, Due Process (Substantive) | Permalink | Comments (0) | TrackBack (0)

Thursday, September 12, 2013

Illinois Supreme Court Strikes (Old) Ban on Aggravated Use of Weapons

The Illinois Supreme Court ruled today in Illinois v. Aguilar that a state law banning the aggravated unlawful use of weapons, or AUUW, violated the Second Amendment.  At the same time, the court upheld state law banning possession of a firearm, or UPF, by a person under 18 years of age.  

The ruling overturns the conviction of the criminal defendant in the case under the AUUW, but upholds the conviction under the UPF.  

But the ruling is limited to the state's old (and defunct) AUUW and doesn't affect current law.  That's because Aguilar was convicted under the state's old AUUW.  The Seventh Circuit already struck that law as violating the Second Amendment (and later denied en banc review) in Moore v. Madigan.  The state has since amended the law to allow for concealed carry of firearms with a permit and with certain restrictions.  Thus today's ruling only affects Aguilar; it doesn't say anything about the state's current law.

Illinois's old AUUW--the one Aguilar was convicted under--says:

(a) A person commits the offense of aggravated unlawful use of a weapon when he or she knowingly:

(1) Carries on or about his or her person or in any vehicle or concealed on or about his or her person except when on his or her land or in his or her abode or fixed place of business any pistol, revolver, stun gun or taser or other firearm; [and]

(3) One of the following factors is present:

(A) the firearm possessed was uncased, loaded and immediately accessible at the time of the offense . . . .

The court, following the Seventh Circuit in Moore, held that the Second Amendment includes a right to keep and bear arms outside the home for individual self-defense, and that the "comprehensive," "categorical[]" ban in the old AUUW law "amounts to a wholesale statutory ban on the exercise of a personal right that is specifically named in and guaranteed by the United States Constitution, as construed by the United States Supreme Court."  The court said, "In no other context would we permit this, and we will not permit it here either.

At the same time, the court upheld the state's UPF law.  (That law was not changed in the wake of Moore.)  It says:

A person commits the offense of unlawful possession of firearms or firearm ammunition when:

(a) He is under 18 years of age and has in his possession any firearm of a size which may be concealed upon the person . . . .

The court said that the Second Amendment doesn't protect a juvenile's right to possess a firearm--that the UPF restriction falls into the category of allowable "longstanding prohibitions on the possession of firearms" that the Supreme Court carved out in Heller.  The court said that laws banning possession of firearms by minors have been around for a long time (even if many colonies permitted or even required minors to own and possess firearms for purposes of militia service, as Aguilar argued).

September 12, 2013 in Cases and Case Materials, Due Process (Substantive), News, Opinion Analysis, Second Amendment | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 10, 2013

Tenth Circuit Upholds Utah's Sexual Solicitation Statute

Sexual solicitation statutes suffer from challenges based upon overbreadth and vagueness.  In its opinion in Bushco, Inc. v. Shurtleff, a panel of the Tenth Circuit upheld amendments to Utah's statute, reversing the district judge on the unconstitutionality of one of the provisions.

 

Kaufmann Solicitations of Folly
"Beauty Directed by Prudence Rejects with Scorn the Solicitations of Folly" circa 1780
The “Sex Solicitation Amendments,”  House Bill 121 amended Utah Code Ann. § 76-10-1313 by adding two new provisions: § 1313(1)(c) and § 1313(2):

 

1. A person is guilty of sexual solicitation when the person: ... .

c. with intent to engage in sexual activity for a fee or to pay another person to commit any sexual activity for a fee engages in, offers or agrees to engage in, or requests or directs another to engage in any of the following acts:
    i. exposure of a person’s genitals, the buttocks, the anus, the pubic area, or the female breast below the top of the areola;
    ii. masturbation;
    iii. touching of a person’s genitals, the buttocks, the anus, the pubic area, or the female breast; or
    iv. any act of lewdness.

2. An intent to engage in sexual activity for a fee may be inferred from a person’s engaging in, offering or agreeing to engage in, or requesting or directing another to engage in any of the acts described in Subsection (1)(c) under the totality of the existing circumstances.

The Tenth Circuit, like the trial judge, rejected the First Amendment challenges, applied the test for expressive conduct from the 1968 case of United States v. O'Brien, and found that all the O'Brien prongs were satisfied.  It did note, however, an as-applied challenge to overbreadth was possible.

On the vagueness claim, the panel found that § 1313(1)(c) was not unconstitutionally vague, again affirming the district judge.  However, the Tenth Circuit panel disagreed with the trial judge's conclusion that the subsequent provision - - - § 1313(2) - - - was unconstitutionally vague.  Instead, the Tenth Circuit panel found that the language "under the totality of the existing circumstances" would constrain a police officer's discretion rather than encouraging arbitrary and discriminatory enforcement as the district judge had reasoned.

The Tenth Circuit's opinion demonstrates how difficult it is to prevail on a challenge to a sex solicitation challenge.  Interestingly, it was Bushco, Inc, an escort service company, that appealed from its partial victory in the district court, with the State Attorney filing a cross-appeal.

 [image via]

September 10, 2013 in Due Process (Substantive), First Amendment, Opinion Analysis, Sexuality | Permalink | Comments (0) | TrackBack (0)

Sunday, September 1, 2013

Federal Judge Allows Lawsuit for Unconstitutional Sex Assignment Surgery to Proceed

In the closely watched case of M.C. v. Aaronson,  a minor claims a violation of both substantive and procedural due process under the Fourteenth Amendment by South Carolina doctors who performed genital surgery on a child in state custody (foster care).    We discussed the case when the complaint was filed in May.

IntersexualflagIn a 15 page order United States District Judge David Norton denied the motions to dismiss by the various defendants.  With regard to the substantive due process right, the judge found that "M.C. has articulated that defendants violated his clearly established constitutional right to procreation.," and as a "result, defendants’ assertion of qualified immunity must fail at this stage in the litigation."  Given this conclusion, the judge stated he "need not consider M.C.’s arguments that defendants also violated his rights to privacy and bodily integrity."

As for the procedural due process rights, the judge again found that M.C. stated a claim, and that further analysis of the Matthews v. Eldridge factors was not appropriate at this stage.

But as the judge's opinion made clear, the hurdle of summary judgment looms:

Underlying this case’s complex legal questions is a series of medical and administrative decisions that had an enormous impact on one child’s life. Details of how those decisions were made, when they were made, and by whom are as yet unknown to the court. Whether M.C.’s claims can withstand summary judgment challenges, or even the assertion of qualified immunity at the summary judgment stage, is not for the court to hazard a guess at this time. It is plain that M.C. has sufficiently alleged that defendants violated at least one clearly established constitutional right – the right to procreate – when they recommended, authorized, and/or performed the sex assignment surgery in April 2006.

Indeed, this same order included a grant of M.C.'s request for expedited discovery.

RR
[image via]

September 1, 2013 in Due Process (Substantive), Fourteenth Amendment, Gender, Medical Decisions, Opinion Analysis, Privacy, Procedural Due Process | Permalink | Comments (0) | TrackBack (0)

Monday, August 26, 2013

New Jersey's Prohibition of Sexual Orientation Conversion Challenged

New Jersey's Republican Governor Chris Christie (pictured) signed New Jersey A3371 banning so-called sexual conversion or reparative therapy on minors into law earlier this month. 

DSC_3546_smallIn his signing statement, Christie said:

At the outset of this debate, I expressed my concerns about government limiting parental choice on the care and treatment of their own children. I still have those concerns. Government should tread carefully into this area and I do so here reluctantly. I have scrutinized this piece of legislation with that concern in mind.

However, I also believe that on issues of medical treatment for children we must look to experts in the field to determine the relative risks and rewards. The American Psychological Association has found that efforts to change sexual orientation can pose critical health risks including, but not limited to, depression, substance abuse, social withdrawal, decreased self-esteem and suicidal thoughts.

I believe that exposing children to these health risks without clear evidence of benefits that outweigh these serious risks is not appropriate. Based upon this analysis, I sign this bill into law.

 

 Despite Christie's careful articulation of  his support for the bill, it was criticized and quickly challenged in a complaint filed in federal court in King v. Christie.  The plaintiffs include Tara King, a licensed professional counselor, as well as National Association for Research and Therapy of Homosexuality (“NARTH”) and American Association of Christian Counselors (“AACC”).  They argue that the law violates their First Amendment rights of free speech, rights of their clients to "receive information," and free exercise of religion, as well as clients' parental due process rights under the Fourteenth Amendment, in addition to concomitant rights under the New Jersey state constitution.

RR

UPDATE: In Pickup v. Brown, the Ninth Circuit has upheld California's similar law banning sexual conversion therapy.

 

August 26, 2013 in Current Affairs, Due Process (Substantive), First Amendment, Fourteenth Amendment, Fundamental Rights, Medical Decisions, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 23, 2013

North Dakota Federal Judge Enjoins North Dakota's Abortion Restrictions

 

300px-2009-0521-ND-StateCapitol
North Dakota State Capitol Building
Judge Daniel Hovland's opinion in MKB Management, Inc. v. Burdick grants a preliminary injunction against North Dakota House Bill 1456 passed by the legislature and signed by the Governor, which would make it a criminal offense to perform an abortion if a “heartbeat” has been detected, thereby banning abortions beginning at approximately six weeks of pregnancy, with limited exceptions.  As the plaintiffs, who run the only abortion clinic in North Dakota, argued, abortions before six weeks are exceedingly rare, in part because a woman rarely knows she is pregnant before that time. 

 

A woman’s constitutional right to terminate a pregnancy before viability has consistently been upheld by the United States Supreme Court in the forty years since Roe v. Wade. See e.g., City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 420 (1983) (a woman has a constitutional right to terminate her pregnancy) (overruled on other grounds); Casey, 505 U.S. at 846 (a woman has a right to an abortion before viability without undue interference from the state); Stenberg, 530 U.S. at 921 (a woman has the right to choose an abortion before viability); Gonzales, 550 U.S. 124 (the state may not prevent “any woman from making the ultimate decision to terminate her pregnancy”).

Indeed, Judge Hovland stated:

It is crystal clear from United States Supreme Court precedent that viability, although not a fixed point, is the critical point.

(emphasis in original).  He characterized the Defendants’ arguments as "necessarily rest[ing] on the premise that every Court of Appeals to strike a ban on pre-viability abortion care has misread United States Supreme Court precedent."  He stated that "until" Roe v. Wade and Casey are "overturned by the United States Supreme Court, this Court is bound to follow that precedent under the rule of stare decisis."

After briefly assessing the traditional standards for a preliminary injunction, Judge Hovland enjoined North Dakota House Bill 1456 which was to become effective August 1. 

Where and on what basis the "viability" line can be drawn remains uncertain in the continuing abortion debates, but six weeks is certainly too early.

RR

July 23, 2013 in Abortion, Due Process (Substantive), Fourteenth Amendment, Fundamental Rights, Medical Decisions, Opinion Analysis, Privacy, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 16, 2013

More on the Aftermath of Windsor (DOMA) and Perry (Prop 8) decisions: California, Pennsylvania, Arkansas, North Carolina Litigation

The Court's decisions in United States v. Windsor, declaring section 3 of DOMA unconstitutional, and Perry v. Hollingsworth, holding that the "proponents" of Proposition 8 lacked standing to appeal a federal judge's declaration of Prop 8's unconstitutionality, have not settled the matter of the unconstitutionality of same-sex marriage restrictions. 

In what promises to be a continuing series, here are a few highlights:

494px-Flag-map_of_California.svg
In California, the home of Proposition 8, the litigation centers on Prop 8's constitutional status given that the Supreme Court held that the proponents did not have standing to appeal the federal district judge's holding that Prop 8 made a sexual orientation classification that does not satisfy the rational basis standard and thus violates the Equal Protection Clause.  The original injunction was stayed, and again stayed by the Ninth Circuit even as it affirmed the district judge, but after Perry, the Ninth Circuit dissolved the stay amid questions about the effect of Perry which we discussed here.

The proponents of Prop 8 have moved (back) to the state courts, filing Hollingsworth v. O'Connell on July 12 seeking a stay from the California Supreme Court.  Their basic argument is that a single federal judge should not have the power to declare a law unconstitutional for the entire state and they seek a mandate forbidding county clerks from issuing same-sex marriage licenses.  On July 16, the California Supreme Court declared - - - as a docket entry and without opinion - - - "The request for an immediate stay or injunctive relief is denied." It also granted the motions for counsel to proceed pro hac vice, so the case will presumably be moving forward. 

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In Pennsylvania, a complaint in Whitewood v. Corbett was filed July 9, as a new constitutional challenge to the state's "little DOMA" provisions passed the same year as the federal DOMA, 1996  - - - 23 Pa. Consolidated Statute §1102 (defining marriage as between one man and one woman) and 23 Pa. Consolidated Statutes §1704 (declaring one man-one woman marriage as the strong public policy of state and refusing to recognizing same-sex out of state marriages).  The Complaint interestingly quotes and cites language from Windsor several times. For example:

¶10. The exclusion from marriage undermines the plaintiff couples' ability to achieve their life goals and dreams, threatens their mutual economic stability, and denies them "a dignity and status of immense import." United States v.Windsor, No.12-307, Slip Op., at 18 (U.S. June 26, 2013).  Moreover, they and their children are stigmatized and relegated to a second class status by being barred from marriage. The exclusion "tells[same-sex couples and all the world- that their relationships are unworthy" of recognition. Id. at 22-23.  And it "humiliates the ...children now being raised by same-sex couples" and "makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives." Id. at 23.

The Attorney General for Pennsylvania, Kathleen Kane, has reportedly declared she will not defend the constitutionality of the state statutes barring same-sex marriage. The Pennsylvania Governor, Tom Corbett, the named defendant and a Republican, as well as the state legislature, are presumably studying the holding regarding BLAG's standing in Windsor.

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In Arkansas, the complaint in Wright v. Arkansas was filed in state court on July 2.  Arkansas has both a statute and constitutional amendment DOMA (the belt and suspenders approach).  The 29 page complaint does not quote or cite Windsor, but does claim that the Arkansas prohibition of same-sex marriage violates the Due Process and Equal Protection Clauses of both the state and federal constitution, as well as violating the Full Faith and Credit Clause.  First reports are that the state will defend the lawsuit.

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In addition to new complaints filed post-Windsor (Perry), ongoing litigation will certainly be changed.  For example, the North Carolina federal court complaint in Fisher-Borne v. Smith challenging North Carolina's failure to provide so-called second-parent adoption is being amended - - - reportedly with agreement of the state - - - to include a claim challenging the state's prohibition of same-sex marriage. 

While one message of Windsor and even Perry could be understood as being that marriage, same-sex or otherwise, is a matter of state law, another message of Windsor is certainly that there are constitutional problems prohibiting same-sex marriage. 

 

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With a patchwork of state laws, this is a fertile landscape for continuing litigation.

RR
[all images Wikimedia; final image here]

July 16, 2013 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fifth Amendment, Fourteenth Amendment, Interpretation, News, Recent Cases, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Thursday, May 16, 2013

Federal Complaint for Unconstitutional Sex Assignment Surgery on Infant

400px-3D_gender_symbol.svgThe surgical "assignment" of sex/gender to an infant born with "ambiguous" genitals is a problem that has garnered much attention.

The Constitutional Court of Colombia issued a series of opinions beginning in 1995, analyzed in a 2004 law review article by Kate Haas, Who Will Make Room for the Intersexed?, that recognize a constitutional right of children, albeit limited, with regard to the surgery.  A ground-breaking symposium issue of Cardozo Journal of Law & Gender in 2005 engages with many of the legal issues and proposed solutions, often recognizing the limits of constitutional remedies in the United States given that the surgeries are usually the result of private action.

But a complaint filed this week, M.C. v. Aaronson, by the Southern Poverty Center claims a violation of both substantive and procedural due process under the Fourteenth Amendment by South Carolina doctors who performed genital surgery on a child in state custody (foster care).  M.C., now 8 years old, brings the case through his adoptive parents. 

The substantive due process claim is a relatively obvious one, building on established United States Supreme Court cases finding a right to be free of coerced medical procedures including Cruzan v. Director, Missouri Department of Health (1990).  The right is a bit muddled, however, given that the highly discredited 1927 case of Buck v. Bell has never been actually overruled; the declaration that castration was as unconstitutional penalty for a crime in Skinner v. Oklahoma rested on equal protection grounds. 

The procedural due process claim is more novel, contending that the minor was entitled to a pre-deprivation hearing before the surgery.  Such a hearing would presumably be of the type that Erin Lloyd recommended for all minors (whether in state custody or not) in her article From the Hospital to the Courtroom: A Statutory Proposal for Recognizing and Protecting the Legal Rights of Intersex Children in the Cardozo Journal of Gender and Law Symposium issue. 

An accompanying lawsuit filed in state court alleges medical malpractice and failure to obtain informed consent, raising the same underlying facts and many of the same issues, but under state law.

Southern Poverty Center has produced a video featuring the parents and outlining the facts of the case:

 

 This is definitely a case to watch.

RR
[image via]

May 16, 2013 in Cases and Case Materials, Comparative Constitutionalism, Due Process (Substantive), Fourteenth Amendment, Gender, Medical Decisions, Procedural Due Process, Sexuality, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Monday, May 6, 2013

Daily Read: New Book "The Price of Justice" Discusses the Caperton Case

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The 2009 sharply divided Supreme Court opinion in Caperton v. Massey Coal is the centerpiece of the new book, The Price of Justice: A True Story of Greed and Corruption by Laurence Leamer.  Recall that the Court in Caperton ruled that due process required judicial recusal of a West Virginia Supreme Court of Appeals judge, Justice Brent Benjamin, in a case involving Massey Coal because of the contributions by Massey Coal to Justice Benjamin's campaign.

The starred review from Publisher's Weekly describes the book as

the riveting and compulsively readable tale of the epic battle between Don Blankenship, the man who essentially ran the West Virginia coal industry through his company Massey Energy, and two seemingly ordinary attorneys: Bruce Stanley and David Fawcett. The centerpiece of the story is a West Virginia mine owner whom Blankenship purposefully bankrupted, and on whose behalf Stanley and Fawcett won (in 2002) a $50 million dollar verdict that is still unpaid. In hopes of having the ruling overturned by the West Virginia Supreme Court, Blankenship sought to “buy” a seat on the court by contributing over $3 million to the successful campaign of a conservative judicial candidate. However, the U.S. Supreme Court eventually found that Blankenship’s contributions were too much to allow the new West Virginia justice to hear the case. Leamer has produced a Shakespearean tale of greed, corporate irresponsibility, and personal hubris on the one hand, and idealism, commitment to justice, and personal sacrifice on the other. Blankenship is a villain for all time, and Stanley and Fawcett are lawyers who bring honor to their profession.

A good addition to that summer reading list for anyone interested in constitutional law and anyone who might like a reminder that lawyers can, indeed, be heroic.

RR

May 6, 2013 in Books, Campaign Finance, Cases and Case Materials, Courts and Judging, Due Process (Substantive), Elections and Voting, Fourteenth Amendment | Permalink | Comments (0) | TrackBack (0)

Friday, May 3, 2013

New York's Highest Court on the Constitutionality of Force-Feeding Hunger Striking Prisoners

The hunger strike amongst prisoners at Guantanamo Bay has led to force-feeding, a situation prompting the Office of the High Commissioner for Human Rights at the UN to issue a statement reiterating the disapproval of Guantanamo and remind the United States that:

in cases involving people on hunger strikes, the duty of medical personnel to act ethically and the principle of respect for individuals’ autonomy, among other principles, must be respected. Under these principles, it is unjustifiable to engage in forced feeding of individuals contrary to their informed and voluntary refusal of such a measure. Moreover, hunger strikers should be protected from all forms of coercion, even more so when this is done through force and in some cases through physical violence. Health care personnel may not apply undue pressure of any sort on individuals who have opted for the extreme recourse of a hunger strike. Nor is it acceptable to use threats of forced feeding or other types of physical or psychological coercion against individuals who have voluntarily decided to go on a hunger strike.

New York's highest court, in its opinion in Bezio v. Dorsey regarding a state prisoner on a hunger strike reached an opposite conclusion.  The court's majority stated:

The issue before us is whether Dorsey's rights were violated by a judicial order permitting the State to feed him by nasogastric tube after his health devolved to the point that his condition became life-threatening. We answer that question in the negative.

450px-Galler,_Hornsgatan_2012aYet the question of Dorsey's "rights" that were properly before the court occupied the bulk of the majority and dissenting opinions.  The state Department of Corrections and Correctional Services (DOCCS) had originally sought the judicial order relating to Dorsey, a "serial hunger striker," which Dorsey resisted with pragmatic rather than constitutional arguments.  But the state relied heavily on previous New York law - - - including a case involving Mark Chapman, the man convicted of murdering John Lennon - - - to support the constitutionality of forced-feeding. 

Chief Judge Lippman, dissenting (and joined by Judge Rivera) argued that there were too many factual distinctions, including any finding that the prisoner or the institution was actually in danger.

As noted, DOCCS's own consulting psychiatrist stated flatly in his assessment that Mr. Dorsey was not suicidal. He was undoubtedly manipulative [as the doctor had stated], but all civil disobedience is manipulative. Manipulativeness, obviously, is not a sufficient predicate for forced feeding by the State.

While concluding that the issues are not properly before the court, and that the case is moot under state constitutional doctrine, the dissenting judges nevertheless concluded

The right to refuse treatment, we have held, is a kind of liberty interest within the protective ambit of the Due Process Clause of the State Constitution. While the right may be overcome in compelling circumstances justifying the state's resort to its police power and the state may thus intervene to prevent suicide, the individual's basic prerogative to make decisions affecting his or her own personal health and right to be left alone, i.e. to personal privacy, ordinarily will trump even the best intended state intervention.  

For the majority of the court, however, the balance articulated in Turner v. Safley (1987) was easily resolved in favor of the legitimate penological interests of the prison, including the risk of a "significant destabilizing impact on the institution" by an inmate hunger strike, to allow force feeding an inmate.

RR
[image via]

May 3, 2013 in Due Process (Substantive), First Amendment, Fourteenth Amendment, International, Medical Decisions, News, Opinion Analysis, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Monday, April 22, 2013

Daily Read: The Terrorism Exception to the Constitution?

Should there really be a "terrorism" exception to the criminal procedure protections in the Bill of Rights?

ConLawProfs looking for an extended treatment of this question might do well to turn to Norman Abrams' article, Terrorism Prosecutions in U.S. Federal Court: Exceptions to Constitutional Evidence Rules and the Development of a Cabined Exception for Coerced Confessions, available at 4 Harv. Nat’l Sec. J. 58 (2012).

Abrams argues for a something less than a wholesale exception:

The expression, “cabined,”  is  meant to signify not extending  all the way up the ladder of police  interrogation  methods, but only applying to a limited, non  -  extreme set of interrogation  methods, albeit methods that under current law might lead to a  determination of involuntariness.  A cabined exception is one that would, under the appropriate circumstances, authorize the FBI, or other police agencies, to use interrogation methods that exceed existing constitutional limits as  established by the Supreme Court, but only up to a point, and not to the  point where the methods used are extreme.

For some, allowing law enforcement the discretion to determine the "appropriate circumstances" and the methods that are not "extreme" is exceedingly troubling.  But Abrams extended argument seeking to support his conclusion is worth a read, even as the immediate issue of the possibility of a "terrorism exception" applied to Tsarnaev has receded.  

RR


April 22, 2013 in Criminal Procedure, Due Process (Substantive), Scholarship, State Secrets, Theory | Permalink | Comments (0) | TrackBack (0)

Thursday, April 18, 2013

Daily Read: Spindelman on Carpenter on Lawrence

Integral to the same-sex marriage cases of Perry and Windsor argued before the Court last month is the 2003 case of Lawrence v. Texas.  Although the Court's opinion specifically excluded marriage in its caveat paragraph, the declaration that sodomy laws were unconstitutional under the Due Process Clause is generally considered a linchpin of recognizing any constitutional right to same-sex marriage under the Equal Protection Clause. 

Spindelman_marcProfessor Marc Spindelman (pictured) reviews Professor Dale Carpenter's book Flagrant Conduct: The Story of Lawrence v. Texas in a trenchant essay entitled Tyrone Gardner's Lawrence v. Texas appearing in Michigan Law Review.  Spindelman acknowledges the contribution of the book even as he uses it as a springboard to reach different conclusions about the potential of the case to achieve equality or civil rights.  Spindelman focuses on Tyrone Gardner, who along with John Geddes Lawrence was arrested for sodomy, as a lens for exploring the reach of Lawrence v. Texas.  

Refering to Gardner, Spindeleman asks, "How could Lawrence v. Texas, this great victory for lesbian and gay civil rights, have done and meant so very little to the life of one of the two men most central to it?"  Spindelman's answers explore the status-quo bias and moral conservatism of Lawrence, connecting the case to affirmative action decisions as well as to the "Obamacare" case, Nat’l Fed’n of Indep. Bus. v. Sebelius.

Every ConLawProf teaching Lawrence v. Texas would do well to read Spindelman's essay. 

RR

April 18, 2013 in Books, Due Process (Substantive), Equal Protection, Gender, History, Race, Scholarship, Sexual Orientation, Sexuality, Supreme Court (US), Teaching Tips, Theory | Permalink | Comments (0) | TrackBack (0)

Monday, April 15, 2013

Oral Argument Preview: Adoptive Couple v. Baby Girl and the Constitutional Issues

The oral arguments in Adoptive Couple v. Baby Girl, on certiorari to the South Carolina Supreme Court will be held on April 16.  The case, also known as “Baby Veronica,” is an emotional struggle over custody of a small child.

On one view, the Court’s task is a relatively simple one of statutory interpretation, including the definition of “parent” in the Indian Child Welfare Act, ICWA.  The petitioners, the adoptive couple, articulate the questions presented as:

(1) Whether a non-custodial parent can invoke the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-63, to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law.

(2) Whether ICWA defines “parent” in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent.

The questions presented by the respondent birth father, a registered member of the Cherokee Nation, and by the respondent Cherokee Nation, and by the United States as amicus curiae supporting the respondent, all likewise focus on ICWA, albeit with a different persuasive cadence.   These articulations stress the positive acts of the biological father.  For example, as the biological father phrases the parenting definition question:

Whether an Indian child’s biological father who has expressly acknowledged that he is the child’s father and has established that he is the father through DNA testing is the child’s “parent” within the meaning [of ICWA].

The Brief of the United States as amicus curiae, supporting the respondent father and tribe has a similar issue statement, asking whether the state courts properly applied ICWA

 to award custody of an Indian child to her biological father over an adoptive couple, where the father acknowledged and established his paternity and no remedial measures had been taken to avoid termination of his parental rights.

However, the case is not merely one of statutory interpretation, but raises important, if not always obvious, constitutional issues.

First, Congressional intervention in child welfare must rely on a particularly enumerated power of Congress, the usual one being the Spending Clause.  For Native Americans, however, Congressional power is often labeled “plenary,” although it is grounded most specifically in the Indian Commerce Clause, Art. I §3 cl. 8.   ICWA was intended to prevent the removal of Native children from their parents - - - as well as their tribes - - - a history that many of the amicus briefs discuss in depth. 

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Second, and relatedly, this Congressional power over Native children raises federalism issues, especially given that child custody and adoption are generally within the state’s police powers.  In the case of Baby Veronica, the South Carolina Supreme Court affirmed the trial judge’s application of ICWA to deny the adoption and award custody to the Native father. Yet the very existence of ICWA arguably intrudes upon state police powers.

Third, and most stealthily, the case may present issues of due process and equal protection.  In the brief on behalf of Baby Veronica through her Guardian ad Litem authored by Paul Clement, the arguably “erroneous interpretation” of ICWA “raises serious constitutional issues.”  In this argument, the best interests of the child standard - - - the usual touchstone in child adoption and custody - - - aspires to a constitutional right of the child.  Moreover, the state court’s decision violated the baby’s equal protection and due process rights.

For example, the brief analogizes to the equal protection case of Palmore v. Sidoti:

In Palmore, this Court struck down the use of racial classifications to remove a child from an appropriate custody placement. This case is no different. Baby Girl’s Indian blood quantum was the sole reason the lower court ordered her removed from the loving, stable home she had lived in since birth and placed with a biological father whose failure to timely care for her extinguished any parental rights he might otherwise have had under state law or the Constitution.

Less successfully, the brief attempts to articulate a liberty interest of the child:

And “to the extent parents and families have fundamental liberty interests in preserving such intimate relationships, so, too, do children have these interests, and so, too, must their interests be balanced in the equation.” Troxel v. Granville, 530 U.S. 57, 88 (2000) (Stevens, J., dissenting).

Yet ultimately, the brief argues that there is an (unconstitutional) racial classification if ICWA is applied too broadly.  Clement argues that ICWA should be interpreted to limit "its application to adoption and custody proceedings involving children who are either domiciled on a reservation or have some other tribal connection beyond biology."  

These limitations are crucial to preserving the Act’s constitutionality, ensuring that the Act’s differential treatment of Indians operates only to promote tribal sovereignty and the unique interests of Indians as tribal citizens, and not as invidious racial discrimination that arbitrarily trumps Baby Girl’s liberty interests.  [ICWA's] definition of parent, properly interpreted, avoids these difficulties by declining to give an unwed Indian father rights based on biology alone that no non-Indian unwed father enjoys. 

Moreover, ICWA's constitutional interpretation rests upon limiting its "application to children in the pre-existing custody of an Indian parent or other circumstances in which there is a distinct connection to tribal interests."

Clement - -  who so recently represented BLAG supporting the constitutionality of DOMA in United States v. Windsor - - - here has quite a different view of equality and federal power.  

While it is unlikely that these constitutional arguments assume center stage, they may infuse the statutory interpretation of ICWA so squarely before the Court.

RR
[image circa 1890 via]

April 15, 2013 in Congressional Authority, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fundamental Rights, History, Interpretation, Race, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)