Friday, March 4, 2016
The Court issued an Order today in June Medical Services v. Gee involving Louisiana's abortion statute "The Unsafe Abortion Protection Act, HB 388. The district judge had found the Louisiana's statute's admitting privilege provision was unconstitutional and issued a preliminary injunction. The Fifth Circuit in a 15 page opinion granted the state's emergency motion to stay the district judge's preliminary injunction. Thus, the Court's Order essential reinstates the injunction against the Louisiana statute.
The Louisiana statute is similar to Texas's HB 2 at issue in Whole Woman's Health v. Hellerstdet (previously Cole), argued before the Court on Wednesday. In today's Order regarding the Louisiana statute, the Court referenced Whole Woman's Health:
Consistent with the Court’s action granting a stay in Whole Woman’s Health v. Cole, No. 14A1288 (June 29, 2015), the application to vacate the stay entered by the United States Court of Appeals for the Fifth Circuit on February 24, 2016, presented to Justice Thomas and by him referred to the Court, is granted and the Fifth Circuit’s stay of the district court’s injunction is vacated.
Justice Thomas would deny the application.
In the Whole Woman's Health oral argument, Justice Alito mentioned the Louisiana litigation twice, both times in regarding to the evidence in the case about the precise number of abortions that were being performed. But on the constitutional issues, it does seem as if the decision in Whole Woman's Health will be determinative regarding the Louisiana statute's constitutionality.
Wednesday, March 2, 2016
The Court heard oral arguments today in Whole Woman's Health v. Hellerstdet (previously Cole), the case being touted as the most important abortion rights case in many years. Recall that the Court granted certiorari to the Fifth Circuit's decision essentially upholding the bulk of the controversial HB2 statute passed in 2013 (despite the famous filibuster by Wendy Davis). A divided Supreme Court previously vacated the Fifth Circuit stay of the district judge's injunction against portions of the law, thus reinstating the district judge's injunction at least in part.
The Fifth Circuit's most recent opinion, reversing the district judge, held that HB2's admitting privileges requirement and ambulatory surgical center (ASC) requirements, did not impose an "undue burden" on women and were thus constitutional under the Fourteenth Amendment's Due Process Clause. Importantly, this is the decision that would stand should the Court split 4-4. The most likely scenario of such a split would be Chief Justice Roberts, and Justices Alito, Thomas, and Kennedy on one side and Justices Ginsburg, Breyer, Kagan, and Sotomayor on the other. The most likely scenario of a reversal of the Fifth Circuit and a finding that HB2's provisions are unconstitutional is generally considered to be Justice Kennedy joining the Justice Ginsburg group. Not surprisingly then, Justice Kennedy will be the focus of most any analysis of today's argument.
And indeed, Justice Kennedy took an active role in today's argument in which each of the advocates was accorded extra time in part because of the procedural issues involved regarding the challenge to HB2 as applied and what contentions may have been precluded by the previous facial challenge. While this issue did occupy the beginning of Stephanie Toti's argument on behalf of Whole Woman's Health, and questions regarding remand were raised - - - including by Justice Kennedy - - - it is unclear whether there is sufficient enthusiasm for deciding the case on procedural issues.
Instead, as Solicitor General Donald Verrilli, arguing in support of Whole Woman's Health, phrased it, the question before the Court is whether the right to abortion "is going to retain real substance" and "whether the balance struck in Casey still holds." Justice Kennedy was in the majority in the 1992 decision in Planned Parenthood of Southeastern Pennsylvania v. Casey authored by Justice O'Connor and which upheld the essential core of Roe v. Wade. Scott Keller, the Attorney General of Texas, not only accepted Casey in his argument but argued that it was the petitioners - - - Whole Women's Health - - - that were "trying to upset the balance that was struck in Casey."
The "balance" of Casey could be said to reside in the "undue burden" standard that the Court articulated, but today's argument displayed some of the ambiguities with that standard. On one view, which seemed to be the one Chief Justice Roberts was articulating, the statute has to pass "rational basis" and then it is measured again as to whether there is an undue burden. On the other view, the "undue burden" is measured with regard not only to the exercise of the right to an abortion but measured against the level of the state interests. Justice Breyer articulated this understanding, but importantly, in a colloquy with the Texas Attorney General after a question by Justice Alito, Justice Kennedy also seemed to adhere to this view:
JUSTICE ALITO: Would it not be the case that - - - would it not be the case - - - that a State could increase the the standard of care as high as it wants so long as there's not an an undue burden on the women seeking abortion? So, you know, if they could if they could increase the standard of care up to the very highest anywhere in the country and it wouldn't be a burden on the women, well, that would be a benefit to them. Would there be anything unconstitutional about that?
MR. KELLER: No. Provided that women do are able to make the ultimate decision to elect the procedure.
JUSTICE KENNEDY: But doesn't that show that the undue burden test is weighed against what the State's interest is?
MR. KELLER: Justice Kennedy - - -
JUSTICE KENNEDY: I mean, are they are these two completely discrete analytical categories, undue burden, and we don't look at the State’s interest?
On the question of the state's interest, Texas Attorney General Keller had a difficult time responding to the questions from Justices Ginsburg, Breyer, Sotomayor, and Kagan. Comparisons to dental procedures and colonoscopies prevailed, and on the issue of nonsurgical abortions requiring the taking of two pills which Texas law required be done at an ambulatory surgical facility, some Justices pressed especially hard. The "abortion is different" argument of Texas Attorney General Keller seemed especially unconvincing here.
The actual effect of the HB2's admitting privileges requirement and ambulatory surgical center (ASC) requirements on the closing of clinics was raised at numerous times, with Justice Kennedy interestingly interjecting the precise percentage - - - 20% - - - of the capacity of licensed facilities after the passage of HB2. Justice Ginsburg found it "odd" that Attorney General Keller pointed to the ability of women to go across state lines to New Mexico - - - which does not have similar restrictions - - - to support his contention that women were not substantially burdened.
The oral argument did little to upset the pre-argument predictions. Justice Alito was most hostile to the petitioners, and although Justice Thomas asked no questions today unlike Monday, his views on abortion do not seem in flux. Justices Ginsburg, Breyer, Kagan, and Sotomayor did not seem to find the arguments on behalf of Texas credible. While the Chief Justice has known to be surprising and could possibly craft a narrow opinion, Justice Kennedy is occupying the center. It does seem, however, as if that center tilts slightly back toward Casey and away from HB2.
Tuesday, February 9, 2016
Federal District Judge Enters Preliminary Injunction Against Center for Medical Progress, Anti-Abortion Group
The Center for Medical Progress (CMP) - - - including its founder David Daleiden, others (and their aliases) associated with the nonprofit, as well as "fake" companies - - - has been in the news a great deal of late.
Daleiden and employee Merritt have recently been indicted in connection with an “investigation” of Planned Parenthood and the publication of a “heavily edited” video charging Planned Parenthood with unauthorized selling of fetal tissue. The video has prompted some lawmakers to urge defunding of Planned Parenthood and, interestingly, the grand jury indictment of Daleiden and Merritt in Texas sprung from an inquiry into whether Planned Parenthood had violated any criminal laws. Planned Parenthood has recently sued CMP under RICO and for various tort-like claims.
Judge William Orrick of the Northern District of California has issued a preliminary injunction that some might view as a prior restraint against CMP and its associates in an Order in National Abortion Federation v. Center for Medical Progress. In July, Judge Orrick issued a TRO. The discovery orders and motions were quite contentious, with CMP seeking relief from the Ninth Circuit, which was denied, and Justice Kennedy (in his role as Justice for the Ninth Circuit) refusing to intervene. The preliminary injunction prohibits:
(1) publishing or otherwise disclosing to any third party any video, audio, photographic, or other recordings taken, or any confidential information learned, at any NAF annual meetings;
(2) publishing or otherwise disclosing to any third party the dates or locations of any future NAF meetings; and
(3) publishing or otherwise disclosing to any third party the names or addresses of any NAF members learned at any NAF annual meetings.
This injunction relates primarily to the enforcement of a “confidentiality agreement” required by attendees of the NAF national conference, which Center for Medical Progress admitted violating, engaging in over 250 hours at each of two conferences (2014 and 2015), including of personal conversations, intended - - - as CMP founder Daleiden admits, to “trap people into saying something really messed up” and to say the words “fully intact baby.” Judge Orrick found that enforcement of the confidentiality agreement does not violate the First Amendment, citing Cohen v. Cowles Media (1991). Judge Orrick also found that this was not a “typical ‘newsgathering’ case” in which "prior restraints" would be disfavored, but instead had exceptional circumstances:
The context of how defendants came into possession of the NAF materials cannot be ignored and directly supports preliminarily preventing the disclosure of these materials. Defendants engaged in repeated instances of fraud, including the manufacture of fake documents, the creation and registration with the state of California of a fake company, and repeated false statements to a numerous NAF representatives and NAF members in order to infiltrate NAF and implement their Human Capital Project. The products of that Project – achieved in large part from the infiltration – thus far have not been pieces of journalistic integrity, but misleadingly edited videos and unfounded assertions (at least with respect to the NAF materials) of criminal misconduct. Defendants did not – as Daleiden repeatedly asserts – use widely accepted investigatory journalism techniques. Defendants provide no evidence to support that assertion and no cases on point.
One of the cases that Judge Orrick's footnote distinguishes is Judge Winmill's decision in Animal Defense League v. Otter, finding Oregon's ag-gag law unconstitutional as a violation of the First Amendment, which is presently on appeal to the Ninth Circuit. Undoubtedly, Center for Medical Progress will eventually follow the path to the Ninth Circuit. Taken together, these cases raise controversial issues about the First Amendment's protection for what some might name "investigative journalism" and what others view as "illegal actions."
Thursday, January 7, 2016
The amicus brief of Anice MacAvoy, Janie Schulman, and Over 110 Other Women in the Legal Profession Who Have Exercised their Constitutional Right to an Abortion filed in Whole Woman's Health v. Cole, the abortion case before the United States Supreme Court regarding Texas's controversial HB2 statute, puts the emotions and stories of legal professionals whose abortions have played a positive role in their lives and careers.
Although the amicus does not cite the Court's most recent abortion decision, Gonzales v. Carhart (Carhart II), the import of the amicus is a challenge to some of the reasoning in that case. Specifically, Justice Kennedy writing for the majority in Carhart II stated that:
Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision. Casey, supra, at 852–853 (opinion of the Court). While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. See Brief for Sandra Cano et al. as Amici Curiae in No. 05–380, pp. 22–24. Severe depression and loss of esteem can follow. See ibid.
The dissenting opinion of four Justices, authored by Justice Ginsburg, responded to this passage at length:
Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from “[s]evere depression and loss of esteem.” Ante, at 29. Because of women’s fragile emotional state and because of the “bond of love the mother has for her child,” the Court worries, doctors may withhold information about the nature of the intact D&E procedure. Ante, at 28–29. The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Cf. Casey, 505 U. S., at 873 (plurality opinion) (“States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning.”). Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.
This way of thinking reflects ancient notions about women’s place in the family and under the Constitution—ideas that have long since been discredited. Compare, e.g., Muller v. Oregon, 208 U. S. 412, 422–423 (1908) (“protective” legislation imposing hours-of-work limitations on women only held permissible in view of women’s “physical structure and a proper discharge of her maternal funct[ion]”); Bradwell v. State, 16Wall. 130, 141 (1873) (Bradley, J., concurring) (“Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. … The paramount destiny and mission of woman are to fulfil[l] the noble and benign offices of wife and mother.”), with United States v. Virginia, 518 U. S. 515 , n. 12 (1996) (State may not rely on “overbroad generalizations” about the “talents, capacities, or preferences” of women; “[s]uch judgments have … impeded … women’s progress toward full citizenship stature throughout our Nation’s history”); Califano v. Goldfarb, 430 U. S. 199, 207 (1977) (gender-based Social Security classification rejected because it rested on “archaic and overbroad generalizations” “such as assumptions as to [women’s] dependency” (internal quotation marks omitted)).
Though today’s majority may regard women’s feelings on the matter as “self-evident,” ante, at 29, this Court has repeatedly confirmed that “[t]he destiny of the woman must be shaped … on her own conception of her spiritual imperatives and her place in society.” Casey, 505 U. S., at 852. See also id., at 877 (plurality opinion) (“[M]eans chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it.”); supra, at 3–4.
The brief of the attorneys who have had abortions and are legal professionals clearly supports the view that women must be able to exercise reproductive free choice. The stories of the women attorneys gathered in the amicus brief is a testament to the positive aspects of abortions - - - rather than the regrets - - - that women attorneys have experienced.
January 7, 2016 in Abortion, Courts and Judging, Current Affairs, Equal Protection, Family, Fourteenth Amendment, Gender, Medical Decisions, Privacy, Recent Cases, Reproductive Rights, Scholarship | Permalink | Comments (0)
Tuesday, September 1, 2015
District Judge Finds "Obamacare" Contraception Mandate Unconstitutional as applied to "March for Life"
In an opinion that essentially extends religious protections to a nonreligious organization, Judge Richard Leon has ruled in March for Life v. Burwell that the so-called contraceptive mandate in the Patient Protection and Affordable Care Act (ACA or "Obamacare") cannot constitutionally be applied to a nonprofit anti-abortion employer. While portions of Judge Leon's opinion predictably relied upon the Supreme Court's closely divided 2014 decision in Burwell v. Hobby Lobby, Inc. under the Religious Freedom Restoration Act (RFRA), Judge Leon notably found that the contraception mandate's exclusion of religious organizations - - - but not other organizations - - - violated the equal protection component of the Fifth Amendment.
Judge Leon applied rational basis review, but declared that
Were defendants to have their way here, rational basis review would have all the bite of a rubber stamp!
Defendants contend that March for Life is not “similarly situated” to the exempted organizations because it “is not religious and is not a church.” Rational basis review is met, they argue, because the purpose served, “accommodating religious exercise by religious institutions,” is “permissible and legitimate.” This not only oversimpliﬁes the issue—it misses the point entirely! The threshold question is not whether March for Life is “generally” similar to churches and their integrated auxiliaries. It is whether March for Life is similarly situated with regard to the precise attribute selected for accommodation. For the following reasons, I conclude that it most assuredly is.
In short, Judge Leon found that "March for Life" was similarly situated to religious organizations given the HHS rationale for excluding religious organizations from the contraception mandate:
HHS has chosen to protect a class of individuals that, it believes, are less likely than other individuals to avail themselves of contraceptives. It has consequently moored this accommodation not in the language of conscientious objection, but in the vernacular of religious protection. This, of course, is puzzling. In HHS’s own view, it is not the belief or non-belief in God that warrants safe harbor from the Mandate. The characteristic that warrants protection——an employment relationship based in part on a shared objection to abortifacients—is altogether separate from theism. Stated differently, what HHS claims to be protecting is religious beliefs, when it actually is protecting a moral philosophy about the sanctity of human life. HHS may be correct that this objection is common among religiously-affiliated employers. Where HHS has erred, however, is in assuming that this trait is unique to such organizations. It is not.
In other words, the HHS's rationale - - - the government interest - - - was not specifically religious and thus should not be limited to religious organizations in keeping with principles of equal protection. Some of this reasoning is reminiscent of Hobby Lobby, of course, but there the level of scrutiny under RFRA was strict (or perhaps even stricter than strict) scrutiny, while Judge Leon is applying rational basis scrutiny.
Interestingly, Judge Leon states that "'religion' is not a talisman that sweeps aside all constitutional concerns," and quotes the classic conscientious objector case of Welsh v. United States (1970) for the "long recognized" principle that “[i]f an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content . . . those beliefs certainly occupy in the life of that individual a place parallel to that filled by God in traditionally religious persons.” Taken to its logical conclusion, this reasoning has the potential to eliminate - - - or at least ameliorate - - - the "special" protection of religious freedom.
In his application of RFRA, Judge Leon's opinion is on more well-plowed ground. He notes that while "March for Life is avowedly non—religious, the employee plaintiffs do oppose the Mandate on religious grounds." This brings the case within the purview of Hobby Lobby. As Judge Leon phrases it:
The ﬁnal question the Court must ask under RFRA is whether the current Mandate is the least restrictive means of serving this governmental interest. Assuredly, it is not!
While Judge Leon dismissed the free exercise claim, based upon the DC Circuit's opinion and denial of en banc review in Priests for Life v HHS, the judge granted summary judgment in favor of plaintiffs on the Equal Protection and RFRA claims (as well as a claim under the Administrative Procedure Act).
When this case reaches the DC Circuit, it will be interesting to see how the court - - - as well as religious organizations and scholars - - - views Judge Leon's potentially destabilizing equal protection analysis.
September 1, 2015 in Abortion, Courts and Judging, Current Affairs, Equal Protection, First Amendment, Free Exercise Clause, Medical Decisions, Opinion Analysis, Privacy, Religion, Reproductive Rights | Permalink | Comments (0)
Thursday, January 8, 2015
In a relatively brief per curiam opinion in Phillips v. City of New York the Second Circuit has upheld New York's vaccination requirement to attend public school, N.Y. Pub. Health Law § 2164(7)(a), against constitutional challenges.
The court rejected arguments that the statutory vaccination requirement and its enforcement by exclusion of students from school violates substantive due process, the Free Exercise Clause of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Ninth Amendment, as well as state and municipal law. Important to the court's rationale, and which the opinion took care to mention even in its description of the statute, the law includes medical and religious exemptions.
The religious exemption is most interesting in the context of this litigation. For one plaintiff, the court affirmed the rejection of the religious basis for her sought-for exemption, agreeing with previous determinations that "her views on vaccination were primarily health‐related and did not constitute a genuine and sincere religious belief." For another plaintiff, who had a religious exemption, the court found that the exclusion of her children from school during a vaccine-preventable outbreak of chicken pox was constitutional: "The right to practice religion freely does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death.” quoting and citing Prince v. Massachusetts, 321 U.S. 158, 166‐67 (1944).
The centerpiece of the court's analysis was predictably and correctly the Supreme Court's 1905 decision in Jacobson v. Commonwealth of Massachusetts, rejecting a constitutional challenge to a state vaccination mandate.
The issue of vaccinations and constitutional challenges has received renewed attention in light of outbreaks of childhood illnesses thought to be essentially eradicated. For example, as the LA Times reported yesterday, a recent outbreak of measles in California could be connected to vaccine-resistance:
"The current pertussis and measles outbreaks in the state are perfect examples of the consequences and costs to individuals and communities when parents choose not to vaccinate their children," [Gil] Chavez [epidemiologist with the California Department of Public Health] said.
Ther have also been widespread reports of illness outbreaks in Michigan, arguably attributable to its liberal opt-out allowance for school children.
January 8, 2015 in Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, First Amendment, Fourteenth Amendment, Medical Decisions, News, Religion, Science | Permalink | Comments (0) | TrackBack (0)
Monday, December 22, 2014
Fourth Circuit Finds North Carolina's Anti-Abortion "Right to Know" Statute Violates First Amendment
In the unanimous panel opinion today in Stuart v. Camnitz, authored by Judge J. Harvie Wilkinson, the court agreed with the district judge that North Carolina's "Woman's Right to Know Act" violates the First Amendment. The Act required a physician "to perform an ultrasound, display the sonogram, and describe the fetus to women seeking abortions."
The Fourth Circuit ruled that the statute is
quintessential compelled speech. It forces physicians to say things they otherwise would not say. Moreover, the statement compelled here is ideological; it conveys a particular opinion. The state freely admits that the purpose and anticipated effect of the Display of Real-Time View Requirement is to convince women seeking abortions to change their minds or reassess their decisions.
The court rejected the state's contention that the statute was merely a regulation of professional speech that should be subject to the low standard of rational basis review. Instead, the court reasoned that because the statute was a content-based regulation of speech, it should be evaluated under an intermediate scrutiny standard akin to that of commercial speech.
Importantly, the court also acknowledged its specific disagreement with the Eighth Circuit's en banc opinion in Planned Parenthood v. Rounds (2012) and the Fifth Circuit's opinion in Tex. Med. Providers Performing Abortion Servs. v. Lakey (5th Cir. 2012). The Fourth Circuit states that its sister circuits were incorrect to reply on a single paragraph in Planned Parenthood of Southeastern Pa. v. Casey, and "read too much into Casey and Gonzales [v. Carhart]," neither of which, the court points out, were First Amendment cases.
As the court stated,
In sum, though the State would have us view this provision as simply a reasonable regulation of the medical profession, these requirements look nothing like traditional informed consent, or even the versions provided for in Casey and in N.C. Gen. Stat. § 90-21.82. As such, they impose an extraordinary burden on expressive rights. The three elements discussed so far -- requiring the physician to speak to a patient who is not listening, rendering the physician the mouthpiece of the state’s message, and omitting a therapeutic privilege to protect the health of the patient -- markedly depart from standard medical practice.
Abortion may well be a special case because of the undeniable gravity of all that is involved, but it cannot be so special a case that all other professional rights and medical norms go out the window. While the state itself may promote through various means childbirth over abortion, it may not coerce doctors into voicing that message on behalf of the state in the particular manner and setting attempted here.
Most likely North Carolina will seek en banc review or petition for certiorari based on the conflicting opinions in the Fifth and Eighth Circuits.
UPDATE: On June 15, 2015, the United States Supreme Court's Order denied certiorari in the case now styled Walker-McGill v. Stuart, with a notation "justice Scalia dissents," but with no accompanying opinion.
Wednesday, October 15, 2014
The controversial Texas law limiting abortion access known as HB 2, which began law despite a well-publicized filibuster by state senator Wendy Davis, is now effectively enjoined - - - in part - - -by the United States Supreme Court in its Order in Whole Woman's Health Center v. Lakey.
Here's the entire text:
The application to vacate stay of final judgment pending appeal presented to Justice Scalia and by him referred to the court is granted in part and denied in part. The Court of Appeals’ stay order with reference to the district court’s order enjoining the admitting-privileges requirement as applied to the McAllen and El Paso clinics is vacated. The Court of Appeals’ stay order with reference to the district court’s order enjoining the ambulatory surgical center requirement is vacated. The application is denied in all other respects.
Justice Scalia, Justice Thomas, and Justice Alito would deny the application in its entirety.
To recap: the United States Supreme Court is vacating the Fifth Circuit stay of the district judge's injunction against portions of the law, thus reinstating the district judge's injunction at least in part.Recall also that this is an as-applied challenge. A panel of the Fifth Circuit in March upheld the admitting privileges provision after it had issued a stay of Judge Yeakel's decision enjoining the provision as unconstitutional.
Thursday, October 2, 2014
In Whole Woman's Health Center v. Lakey, the Fifth Circuit today issued a stay of the majority of the district judge's injunction against portions of Texas HB 2 passed despite a well-publicized filibuster by state senator Wendy Davis. A panel of the Fifth Circuit in March upheld the admitting privileges provision after it had issued a stay of Judge Yeakel's decision enjoining the provision as unconstitutional.
This newest round of opinions consider the as-applied challenge to the admitting privileges provision combined with the the ambultory-surgical-center requirement.
In the stay opinion, authored by Judge Jennifer Elrod (pictured below) the majority states that there is some confusion concerning whether the district judge's opinion is actually limited to the as-applied challenge or whether it goes further.
The majority interjects some confusion of its own with its statement that the district judge was wrong to conclude that "the severity of the burden imposed by both requirements is not balanced by the weight of the interests underlying them" because
In our circuit, we do not balance the wisdom or effectiveness of a law against the burdens the law imposes.
The Fifth Circuit's majority opinion states that
the district court’s approach ratchets up rational basis review into a pseudo-strict-scrutiny approach by examining whether the law advances the State’s asserted purpose. Under our precedent, we have no authority by which to turn rational basis into strict scrutiny under the guise of the undue burden inquiry.
It is this point on which Judge Stephen Higginson, concurring in part and dissenting in part, disagrees. He states that he does not read the earlier HB 2 case, Abbott, "to preclude consideration of the relationship between the severity of the obstacle imposed and the weight of the State’s interest in determining if the burden is 'undue.'" And that consistent with the correct analysis, "the district court considered the weight of the State’s interest in its undue-burden review."
With one small exception - - -the district court’s injunction of the physical plant requirements of the ambulatory surgical provision remaining in force for El Paso - - - the Fifth Circuit stayed the district judge's injunction. While the court states that the merits panel is not bound by its determination, it will certainly be persuasive when the Fifth Circuit considers the next round in the saga of the constitutionality of HB2.
Monday, August 18, 2014
Reversing the district judge's decision rendered more than 18 months ago which we discussed here, the Second Circuit's opinion in Central Rabbinical Congress v. NYC Department of Health & Mental Hygiene holds that the NYC regulation targeted at a certain circumcision practice is essentially one that as targeted at a certain religion and thus merits strict scrutiny under the First Amendment's Free Exercise Clause.
The NYC regulation, §181.21, amended the NYC Health Code, by requiring specific consent and a warning for "oral suction" circumcision. The Second Circuit's unanimous panel, in an opinion authored by Judge Debra Ann Livingston, disagreed with the district judge and found that the regulation was not a neutral and generally applicable law. [*]
The opening of the court's opinion is telling:
In Judaism, the “bris milah,” or ritual circumcision of infants, which has been practiced for millennia, celebrates a covenant with God and“derives explicitly from a commandment . . . in the Hebrew Bible.” 11 Encyclopedia of Religion, “Rites of Passage: Jewish Rites,” at 7818 (2d ed. 2005). As part of this ritual circumcision, some Orthodox Jews, particularly Satmar, Bobov, Lubavitch, and other Hasidic groups, perform direct oral suction of the circumcision wound in a ritual act known as metzitzah b’peh (“metzitzah b’peh” or “MBP”).
Relying on Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), the court reaches the conclusion that the
Regulation is not neutral because it purposefully and exclusively targets a religious practice for special burdens. And at least at this preliminary stage, the Regulation is not generally applicable either, because it is underinclusive in relation to its asserted secular goals: the Regulation pertains to religious conduct associated with a small percentage of HSV infection cases among infants, while leaving secular conduct associated with a larger percentage of such infection unaddressed.
Indeed, the court held that the question of whether the NYC Regulation singles out a specific religious practice is "simpler to address" than was true in Lukumi "in light of the Department’s own admission that metzitzah b’peh 'prompted' § 181.21 and that metzitzah b’peh is 'the only presently known conduct' covered by the Regulation."
The court notes that "the conclusion that the Regulation is subject to strict scrutiny does not mean that § 181.21 is constitutionally deficient, for strict scrutiny is not invariably fatal in the context of free exercise claims."
The Department has asserted interests that are substantial and may prove, on analysis, to be compelling. And the means it has chosen to address these interests (means that fall short of outright prohibition of MBP and that may further the goal of informed parental consent) may be appropriately tailored, albeit intrusive on a longstanding religious ritual. Mindful of the serious interests at stake on both sides, we express no view as to whether the plaintiffs have borne their burden of establishing a likelihood of success on the merits.
The court remanded, but denied the request for a stay of the enforcement of the regulation. The district judge's original 93 page order and opinion was largely devoted to the empirical evidence regarding the health effects of the practice; it looks as if she will be hearing the evidence on those very issues, but applying a heightened standard.
[*] updated: The Second Circuit did not reach the compelled speech argument; h/t Josh Blackman.
Tuesday, July 29, 2014
Divided Fifth Circuit Upholds Preliminary Injunction Against Mississippi's Restrictive Abortion Law HB 1390
A panel of the Fifth Circuit in its opinion today in Jackson Women's Health Organization v. Currier upheld the district judge's injunction against the enforcement of a restrictive abortion statute known as Mississippi HB 1390.
The statute required physicians performing abortions to have admitting privileges to a nearby hospital. As the court noted, a similar provision in Texas (HB 2) was recently upheld by the Fifth Circuit in Planned Parenthood of Texas Surgical Providers v. Abbott. As to the rational basis of such a law, the panel stated it was "bound" by Abbott as precedent to accept that the Mississippi statute survives a constitutional challenge.
Regarding undue burden, however, the panel majority, in an opinion by Judge E. Grady Jolly (who interestingly hails from Mississippi) and joined by Judge Stephen Higginson, the effects of HB 1390 were relevant in this as-applied challenge. In assessing the undue burden, the court found it highly relevant that “if enforced, the admitting privileges requirement would likely require JWHO, the only currently licensed abortion facility in Mississippi, to lose its license.” The panel rejected the State's attempt to "walk back" this statement - - - which is actually a quote from the State's opening brief - - - as "too little, too late." Additionally, the majority found it important that the hospitals had rejected the physicians' applications for admitting privileges based on the fact that the physicians performed abortions.
The central - - - and exceedingly interesting - - - question of the undue burden analysis is the relevance of the clinic's status as the only abortion clinic remaining in Mississippi. The State argued that there is no undue burden because women could travel to another state and many of these distances would not be unduly burdensome in and of themselves. Recall that in Planned Parenthood of S.E. Penn. v. Casey, 505 U.S. 833 (1992) the plurality opinion rejected the contention that traveling long distances constituted an undue burden. But, as Judge Jolly notes, there was no suggestion that women should have to go to neighboring states in Casey or in any other opinion, and there is at least one circuit court opinion that finds it "dispositive" that women had to leave the state to exercise their constitutional right.
Additionally - - - and this is the interesting part - - - the court relies upon State of Missouri ex rel. Gaines v. Canada, 305 U.S. 337 (1938) in the United States Supreme Court rejected Missouri's argument that its failure to admit an African-American man to its law school was essentially cured by its offer of a tuition stipend to allow Mr. Gaines to attend law school in another state. Here's the passage from Gaines that Judge Jolly finds worthy of quoting at length:
[T]he obligation of the State to give the protection of equal laws can be performed only where its laws operate, that is, within its own jurisdiction. . . . That obligation is imposed by the Constitution upon the States severally as governmental entities, —each responsible for its own laws establishing the rights and duties of persons within its borders. It is an obligation the burden of which cannot be cast by one State upon another, and no State can be excused from performance by what another State may do or fail to do. That separate responsibility of each State within its own sphere is of the essence of statehood maintained under our dual system.
Id. at 350. Judge Jolly admits that Gaines can be distinguished, but finds Gaines nevertheless determinative: " a state cannot lean on its sovereign neighbors to provide protection of its citizens’ federal constitutional rights."
In a lengthy and somewhat vehement dissent - - - complete with quotations from Albert Camus - - - Senior Judge Emilio Garza finds many things to criticize in the majority's opinion, including the majority's failure to recognize there is not sufficient state action for a constitutional claim (it is the hospitals denying admitting privileges rather than the statute that are the cause); the majority's failure to honor the distinction between equal protection (as in Gaines) and due process (in the abortion context); the majority's belief that there is relevance to crossing state lines (given the constitutional right to travel across state lines articulated in Saenz v. Roe); the majority's failure to recognize that Casey is nothing more than a "verbal shell game" (quoting Justice Scalia's dissent in Casey); the majority's recognition of the "liberty" interest (quotes in original) in the Due Process Clause; and the majority's participation in "aggrandizement of judicial power."
But the central issue of federalism including not only states' rights but states' responsibilities raised by this opinion and litigation is one that merits close consideration.
July 29, 2014 in Abortion, Courts and Judging, Due Process (Substantive), Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Opinion Analysis, Race, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Monday, June 30, 2014
Divided Supreme Court Recognizes Right of Closely Held Corporations Hobby Lobby and Conestoga Wood Specialties under RFRA to Avoid "Contraceptive Mandate"
On this last day of the 2013-2014 Term, the Court delivered its long-awaited opinion in "Hobby Lobby" - - now Burwell v. Hobby Lobby, Inc. consolidated with Conestoga Woods Specialties Corp. v. Burwell - - - on the question of whether corporations (or their owner/shareholders) be able to interpose a religious objection under RFRA (the Religious Freedom Restoration Act) to a federal requirement that employers provide health insurance to employees that includes contraceptive coverage? Here's our primer on the issues for more detail. Recall that the Tenth Circuit en banc in Hobby Lobby ruled for the corporation, while the Third Circuit panel in Conestoga Woods ruled for the government, and several other courts entered the fray with disparate results.
The oral arguments in March were contentious and so too are the opinions in this 5-4 decision.
The majority opinion, authored by Justice Alito, holds that closely-held corporations such as Hobby Lobby and Conestoga Wood Specialties are "persons" within the meaning of RFRA and thus are entitled to raise a claim. The Court looks at Congressional intent in RFRA, its own precedent allowing RFRA claims by nonprofit corporations, and policy issues about the difficulty of determining the "beliefs" of a corporation, and held that closely held corporation that make a profit are "persons" within RFRA.
The Court then held that the challenged HHS regulations ("the contraceptive mandate") did substantially burden the business owners religious beliefs because they believe if they comply with the mandate they will be "facilitating abortions" and if they do not comply, they will face substantial fines. The Court rejected the argument that the link between the insurance coverage paid by an employer and an employee being reimbursed by the insurance company for obtaining contraception was too attenuated.
Given this finding, under RFRA, the Court applies "strict scrutiny," but interestingly assumes that the government satisfies the "compelling government interest" prong. However, the Court finds that the HHS mandate is not the "least restrictive means" to accomplish its goal: the system already in place for accommodating the religious beliefs of nonprofit entities granted exemptions under the regulations and statute.
Justice Kennedy writes a brief concurring opinion. As we discussed, Kennedy was focused on as the "Justice to watch" and he stresses that the existence of government accommodation already in existence.
The "principal dissent" (as the Court's opinion often characterizes it) is by Justice Ginsburg, joined by Sotomayor in full, and by Breyer and Kagan (except to a section regarding the construction of RFRA as applying to corporate persons). The dissent begins by labeling the majority's decision as one of "startling breadth" that allows corporations to "opt out" of "any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs." Justice Ginsburg argues there is a slippery slope in the majority's least restrictive means analysis, despite the majority's attempt to cabin it:
And where is the stopping point to the “let the government pay” alternative? Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, or according women equal pay for substantially similar work? Does it rank as a less restrictive alternative to require the government to provide the money or benefit to which the employer has a religion-based objection? Because the Court cannot easily answer that question, it proposes something else: Extension to commercial enterprises of the accommodation already afforded to nonprofit religion-based organizations. “At a minimum,” according to the Court, such an approach would not “impinge on [Hobby Lobby’s and Conestoga’s] religious belief.” I have already discussed the “special solicitude” generally accorded nonprofit religion-based organizations that exist to serve a community of believers, solicitude never before accorded to commercial enterprises comprising employees of diverse faiths.
Ultimately, the Court hedges on its proposal to align for- profit enterprises with nonprofit religion-based organizations. “We do not decide today whether [the] approach [the opinion advances] complies with RFRA for purposes of all religious claims.” Counsel for Hobby Lobby was similarly noncommittal.
[citations and footnotes omitted].
Whether or not the Court's opinion is narrow or broad might depend more on one's political outlook and one's view of the Court as "chipping away" or as "careful crafting."
However, recall that RFRA - - - the Religious Freedom Restoration Act - - - is a statute passed by Congress that changed the standard of review the Court had announced be accorded religious claims; many now believe that Congress will be called upon to change RFRA, including perhaps the definition of "person" to exclude for-profit corporations, or to repeal RFRA in its entirety.
June 30, 2014 in Abortion, Congressional Authority, Courts and Judging, Executive Authority, Family, First Amendment, Gender, Medical Decisions, Opinion Analysis, Religion, Reproductive Rights, Sexuality, Supreme Court (US) | Permalink | Comments (2) | TrackBack (0)
Tuesday, April 15, 2014
In a very brief order in Zogenix v. Patrick, federal district judge Rya Zobel enjoined the Massachusetts Emergency Order prohibiting prescriptions of "hydrocodone bitartrate product in hydrocodone only extended release formulation," i.e., the controversial opiate Zohydro ER.
Judge Zobel wrote:
The FDA endorsed Zohydro ER’s safety and effectiveness when it approved the drug. When the Commonwealth interposed its own conclusion about Zohydro ER’s safety and effectiveness by virtue of DPH’s emergency order, did it obstruct the FDA’s Congressionally-given charge?
I conclude that it did. The FDA has the authority to approve for sale to the public a range of safe and effective prescription drugs—here, opioid analgesics. If the Commonwealth were able to countermand the FDA’s determinations and substitute its own requirements, it would undermine the FDA’s ability to make drugs available to promote and protect the public health.
Thus, the judge found that it was preempted. Judge Zobel issued a preliminary injunction prohibiting the state from enforcing its emergency order, although it stayed its injunction until April 22, 2014.
Does this mean that no state can further regulate any FDA approved drug? Even in the contraception area?
Tuesday, April 1, 2014
In a divided opinion in Korab v. Fink, a Ninth Circuit panel upheld the constitutionality of Hawai'i's health benefits for a certain class of "nonimmigrant aliens" against an equal protection challenge. The court reversed the preliminary injunction entered by the district judge.
There are several layers of complexity in the case. There is the immigration scheme, including a particular one involving specific nations; the health benefits schemes of both the federal government and the state; and the equal protection doctrine applicable to immigrant status fluctuating depending upon whether the government regulation is federal or state.
Judge Margaret McKeown's relatively brief majority opinion does an excellent job of unweaving and weaving these various strands of complexities in 22 pages. As she explains, in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Congress classified "aliens" into three categories for the purpose of federal benefits, including Medicaid: eligible aliens, ineligible aliens, and a third category which allowed state option. The "aliens" at issue are citizens of the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau who, under the Compact of Free Association (“COFA”) with the United States, may enter the United States and establish residence as a “nonimmigrant. The "COFA aliens" are in the third category of state option. At one point, Hawai'i included coverage for the COFA "nonimmigrants," but with the advent of Basic Health Hawai'i, its 2010 program, the COFA "nonimmigrants" were excluded. It is the COFA "nonimmigrants" who challenge their exclusion from Basic Health Hawai'i on the basis of equal protection.
Given the federal and state interrelationships, the question of the level of scrutiny that should apply is pertinent. As Judge McKeown explains, "states must generally treat lawfully present aliens the same as citizens, and state classifications based on alienage are subject to strict scrutiny review." In contrast, she states, "federal statutes regulating alien classifications are subject to the easier-to-satisfy rational-basis review." What standard should apply to a "hybrid case" such as Basic Health Hawai‘i, in which a state is following a federal direction? Judge McKeown's majority concludes that rational-basis review applies to Basic Health Hawai'i "because Hawai‘i is merely following the federal direction set forth by Congress under the Welfare Reform Act."
Judge Bybee's concurring opinion, slightly longer than the majority opinion he joined, is an extended argument against equal protection doctrine's applicability in favor of a preemption doctrine.
Judge Richard Clifton, who was appointed to the bench from a private practice in Honolulu, argued that the higher level of scrutiny should be applied essentially because it is Hawai'i that is exercising its state power when in makes the choice.
I acknowledge there is something paradoxical and more than a little unfair in my conclusion that the State of Hawai‘i has discriminated against COFA Residents. The state responded to an option given to it by Congress, albeit an option that I don’t think Congress had the power to give. Hawai‘i provided full Medicaid benefits to COFA Residents for many years, entirely out of its own treasury, because the federal government declined to bear any part of that cost. Rather than terminate benefits completely in 2010, Hawai‘i offered the BHH program to COFA Residents, again from its own pocket. The right of COFA Residents to come to Hawai‘i in the first place derives from the Compacts of Free Association that were negotiated and entered into by the federal government. That a disproportionate share of COFA Residents, from Pacific island nations, come to Hawai‘i as compared to the other forty-nine states is hardly a surprise, given basic geography. The decision by the state not to keep paying the full expense of Medicaid benefits for those aliens is not really a surprise, either. In a larger sense, it is the federal government, not the State of Hawai‘i, that should be deemed responsible.
While Judge Clifton's remarks concluding his dissent focus on the paradox in his opinion, his observations also implicitly point to the paradox at the heart of the majority's decision given that the federal scheme gives the state choices - - - and it was the state that chose to exclude certain "nonimmigrants" from the South Pacific.
April 1, 2014 in Congressional Authority, Disability, Equal Protection, Federalism, Fourteenth Amendment, Interpretation, Medical Decisions, Opinion Analysis, Preemption, Spending Clause | Permalink | Comments (1) | TrackBack (0)
Thursday, March 13, 2014
Florida Supreme Court Finds Statutory Wrongful Death Damages Cap Violates State Constitution's Equal Protection Clause
Responding to a certified question from the Eleventh Circuit, the Florida Supreme Court's opinion in Estate of McCall v. United States held that the statutory cap on wrongful death noneconomic damages, Fla. Stat. § 766.118, violates the right to equal protection under Article I, Section 2 of the Florida Constitution.
The statute put a cap in medical malpractice cases, providing that
- Noneconomic damages shall not exceed $500,000 per claimant;
- No practitioner shall be liable for more than $500,000 in noneconomic damages, regardless of the number of claimants; and
- The total noneconomic damages recoverable by all claimants from all practitioner defendants under this subsection shall not exceed $1 million in the aggregate.
The Florida Supreme Court's plurality opinion applied the rational basis test to this statutory scheme (given that there were no suspect or quasi-suspect classes or fundamental rights involved). But it nevertheless found that the
statutory cap on wrongful death noneconomic damages fails because it imposes unfair and illogical burdens on injured parties when an act of medical negligence gives rise to multiple claimants. In such circumstances, medical malpractice claimants do not receive the same.
The plurality found that the damages cap "bears no rational relationship to a legitimate state objective."
In a subsection tellingly entitled "The Alleged Medical Malpractice Crisis," the plurality rejected the legitimacy of the government interest. It essentially rejected the Report of Governor’s Select Task Force on Healthcare Professional Liability Insurance (Task Force Report), issued in January 2003, on which the Legislation relied. The opinion dismantles specifics of the Report, ultimately concluding that "the finding by the Legislature and the Task Force that Florida was in the midst of a bona fide medical malpractice crisis, threatening the access of Floridians to health care, is dubious and questionable at the very best."
As to the rational relationship of the means chosen to address the government interest, the plurality reasoned that
Even if these conclusions by the Legislature are assumed to be true, and Florida was facing a dangerous risk of physician shortage due to malpractice premiums, we conclude that section 766.118 still violates Florida’s Equal Protection Clause because the available evidence fails to establish a rational relationship between a cap on noneconomic damages and alleviation of the purported crisis.
Finally, the plurality reasoned that
even if a “crisis” existed when section 766.118 was enacted, a crisis is not a permanent condition. Conditions can change, which remove or negate the justification for a law, transforming what may have once been reasonable into arbitrary and irrational legislation.
The disagreement in the concurring opinion found fault with the court's power to "engage in the type of expansive review of the Legislature’s factual and policy findings" although not questioning the "plurality’s excellent scholarship regarding the flaws in the Legislature’s conclusions as to the existence of a medical malpractice crisis." However, the concurring Justices agreed that if there were a crisi, there was not one any longer, and emphasized that "the arbitrary reduction of survivors’ noneconomic damages in wrongful death cases based on the number of survivors lacks a rational relationship to the goal of reducing medical malpractice premiums."
The dissenting opinion stressed the deference due to the legislature in the rational basis test.
As the plurality noted, other courts have similarly found damages caps in medical malpractice cases unconstitutional. Such cases demonstrate that equality claims under state constitutions can prove a potent limit on legislation.
[image: Henri Geoffroy, "Visit day at the Hospital" via]
Saturday, January 18, 2014
In her opinion in Stuart v. Loomis, United States District Judge Catherine Eagles held the "speech and display" provisions of North Carolina's "The Woman‟s Right to Know Act" unconstitutional under the First Amendment. Recall that Judge Eagles entered a preliminary injunction against the statute's enforcement in October 2011.
The speech and display provision, North Carolina statute §90-21.85, passed by the legislature over the governor's veto, generally provided
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.”
In a nutshell, Judge Eagles ruled:
The Supreme Court has never held that a state has the power to compel a health care provider to speak, in his or her own voice, the state‟s ideological message in favor of carrying a pregnancy to term, and this Court declines to do so today. To the extent the Act is an effort by the state to require health care providers to deliver information in support of the state‟s philosophic and social position discouraging abortion and encouraging childbirth, it is content- based, and it is not sufficiently narrowly tailored to survive strict scrutiny. Otherwise, the state has not established that the speech-and-display provision directly advances a substantial state interest in regulating health care, especially when the state does not require the patient to receive the message and the patient takes steps to avoid receipt of the message. Thus, it does not survive heightened scrutiny.
One interesting aspect of Judge Eagles' opinion is her discussion of the Ninth Circuit's 2013 opinion in Pickup v. Brown, holding constitutional California's prohibition of sexual orientation change efforts (also known as sexual conversion or reparative therapy). Judge Eagles uses Pickup's analysis of medical speech, although noting that the court in Pickup ultimately concluded that the therapy in Pickup was conduct rather than speech. Here, North Carolina was "seeking to compel “doctor- patient communications about medical treatment,” in distinction to Pickup.
Judge Eagles also discusses the other claims, including due process and the state's request to sever the statute (which she finds untimely). It's a well-reasoned opinion that should survive if it is appealed.
Sunday, November 17, 2013
The issue of religious freedom for secular for-profit corporations, whether under the statutory scheme of Religious Freedom Restoration Act or the First Amendment, in the context of the ACA's so-called contraceptive mandate is a contentious and complicated one. Here's an overview of (and reaction to) the issue and cases; after which the Seventh Circuit (again) rendered an opinion.
For those teaching, writing, or thinking about the issues, Judge Ilana Rovner (pictured), dissenting in the Seventh Circuit's opinion in the consolidated cases of Korte v. Sebelius and Grote v. Sebelius, offers three provocative hypotheticals. [For those interested in more about Judge Rovner, there's an interesting interview from the Illinois Supreme Court Commission on Professionalism in a brief video available here].
Rovner's hypotheticals draw on the ACA as well as other federal laws and are especially helpful because they provide the statutory schemes as well as the facts.
In the first, an employee has ALS, commonly known as Lou Gehrig’s Disease, and has been accepted into a clinical trial testing the effectiveness of an embryonic stem-cell therapy on ALS. The employer software company/owner's plan would cover only the costs of the employee's routine care associated with the stem cell therapy, and not the costs of the stem cell therapy itself, but the employer nevertheless believes that by covering routine care, the company plan would be facilitating his participation in a practice to which he objects on religious grounds.
In the second, the employer corporation's sole owner is "a life-long member of the Church of Christ, Scientist. Christian Science dogma postulates that illness is an illusion or false belief that can only be addressed through prayer which realigns one’s soul with God." The owner believes that "his company’s compliance with the ACA’s mandate to cover traditional medical care would be a violation of his religious principles."
In the third hypothetical, the employer corporation's owners condemn same-sex marriage and homosexuality as part of their religious views. One of their employees seeks time off under the Family and Medical Leave Act to attend, with his husband, the birth of their child through a surrogate arrangement. The employers not only refuse the unpaid leave under the FLMA, they terminate him, because neither the owners nor their company can in any way recognize or facilitate such an immoral arrangement against their religious beliefs.
These hypotheticals would make a terrific in class discussion. They appear on pages 68 - 76 of the opinion; and for convenience, without accompanying footnotes, below.
November 17, 2013 in Cases and Case Materials, First Amendment, Interpretation, Medical Decisions, Opinion Analysis, Recent Cases, Religion, Reproductive Rights, Teaching Tips | Permalink | Comments (0) | TrackBack (0)
Tuesday, November 12, 2013
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.
In 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.
Saturday, November 9, 2013
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.
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)
Monday, October 28, 2013
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.
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)