August 01, 2011
Planned Parenthood of Kansas v. Brownback: Federal Judge Issues Preliminary Injunction
In a Memorandum and Order today, Judge J. Thomas Marten of the United States District of Kansas, enjoined the enforcement of the Kansas defunding of Planned Parenthood statute, Section 107(l) of H.B. 2014, 84th Leg. (Kan. 2011). The judge enjoined the Kansas state defendants from any further enforcement or reliance on athe state statute and directed them to allocate all Title X funding for State Fiscal Year 2012 without reference to Section 107(l), and to provide continuation grant funding to the Planned Parenthood.
The Kansas statute, Section 107(l) of H.B. 2014, which took effect on July 1, 2011, defunds Planned Parenthood by providing that Kansas subgrants of Title X funds are "exclusively prioritized" to public entities, or secondly, to hospitals or federally-qualified health centers (FQHCs). As Planned Parenthood is a private entity which is neither a hospital nor a FQHC, it cannot successfully apply to Kansas to receive Title X funds.
Planned Parenthood argued that the statute violated the Supremacy Clause, in that in conflicted with federal law under Title X, and that the statute violated its First Amendment rights. The judge found there was a substantial likelihood of success on both of these claims.
First, however, the judge considered the state's argument that any relief was barred by the Eleventh Amendment. The state defendants argued that the requested relief therefore must include an order for the State to sign a contract with and pay money to Planned Parenthood, thereby violating the State’s sovereign immunity. Rejecting this argument, the court stated that it found "the injunctive relief sought by Planned Parenthood will not violate the Eleventh Amendment, as it seeks an order which would simply preclude the defendants from any decision allocating Title X funding on the basis of the allegedly unconstitutional Section 107(l).”
As to Planned Parenthood's pre-emption claim, the judge noted that there were several cases holding that a state's imposition of additional eligibility requirements under Title X are invalid as creating an unconstitutional conflict. The state statute did not simply render uncertain whether or not Planned Parenthood could receive state funding; it made it impossible for the organization to be funded.
Regarding Planned Parenthood's First Amendment claim, the judge distinguished it from unconstitutional conditions cases such as Rust v. Sullivan. Here, it was not that there were conditions attached to the funding, but that an organization was deemed ineligible based entirely on "participation in unrelated political conduct. This punitive aspect of the statute, arising from the plaintiff’s protected association with abortion related services, renders the statute unconstitutional." Thus, the judge focused on the First Amendment right of association.
Discussed in both of the Planned Parenthood claims was the legislative intent of the statute. Was the intent of the statute directed at Planned Parenthood? The judge soundly rejected the state defendants "suggestion that the statute was simply designed to prioritize funding to entities who have a higher percentage of poor clients" as a post-hoc, “litigation-spawned” attempt to find some alternative, benign rationale for the statute. The judge also considered the statement of the amendment's sponsor, Lance Kinzer, including on the floor of the House and on his facebook page:
Delighted to announce that the KS House just approved my floor amendment to deny Title X funding to Planned Parenthood for the balance of FY2011. The vote was 91-26, a great victory on the first pro-life floor vote
of the session.
Similarly, Governor Brownback, who signed the statute into law, was quoted by The Lawrence, Kansas Journal-World as hailing the Kinzer amendment on the grounds that it would “zero out funding of Planned Parenthood.” The judge found these were not isolated statements, but indicative of legislative intent both to "punish" Planned Parenthood in contravention of its free association First Amendment rights and to contradict the direct mandate of the federal law.
August 1, 2011 in Abortion, Association, Cases and Case Materials, Current Affairs, Eleventh Amendment, Family, Federalism, First Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Opinion Analysis, Preemption, Privacy | Permalink | Comments (0) | TrackBack
June 29, 2011
Kansas Abortion Law (SB 36) Challenged in Federal Court
[Update: Judge Carlos Murguia issued a preliminary injunction from the bench on July 1, 2011].
The controversial law passed by the Kansas legislature, SB36 (or more precisely, the House Substitute for SB 36) and signed by Governor Sam Brownback, imposes stringent new regulations on health care facilities that perform abortions.
Some would categorize it as a TRAP law - - - a Targeted Regulation of Abortion Providers law - - - but almost everyone agrees that the law is part of a sustained effort in Kansas to eliminate abortion services in the state. The law mandates specific licensing requirements, including miles from hospital, gender of physician or observer, and medication to be taken in the presence of physician. The law provided for Temporary Regulations to be issued.
A complaint has been filed on behalf of two physicians represented by the Center for Reproductive Rights in federal court. The complaint alleges the law and the regulations are unconstitutional as
- violating the patients' right of privacy because the law has the purpose and the effect of imposing an undue burden on Plaintiffs’ patients who seek abortions presently or in the future, in violation of the Fourteenth Amendment to the United States Constitution;
- violating Plaintiffs’ right to procedural due process under the Fourteenth Amendment to the United States Constitution because they deprive Plaintiffs of protected property and liberty interests without providing Plaintiffs with any form of pre-deprivation hearing, including any opportunity to comment on theregulations or request waivers;
- violating Plaintiffs’ right to due process of law under the Fourteenth Amendment to the United States Constitution by: depriving them of property (including lost income and future patients) and liberty (including their ability to practice their profession) without serving any compelling, substantial, or legitimate state interest;
- violating Plaintiffs’ right to due process of law under the Fourteenth Amendment to the United States Constitution by failing to give Plaintiffs fair notice of the requirements they must meet under the Temporary Regulations and encouraging arbitrary and discriminatory enforcement of those regulations;
- depriving Plaintiffs of equal protection of the laws, as guaranteed by the Fourteenth Amendment to the United States Constitution, by subjecting them to unique burdens not imposed on medical practices that provide comparable services, with no basis for the differential treatment other than animus.
The complaint seeks a preliminary injunction; no date has been set for the hearing.
November 23, 2010
Second Circuit Declares Vermont Pharma Anti-Datamining and Detailing Statute Unconstitutional
Reversing the district judge, a divided panel of the Second Circuit has declared unconstitutional Vermont's prohibition of the sale and use of prescriber-identifiable data. In its opinion in IMS v. Sorrell today, the panel majority found that the Vermont statute, Act 80, section 17, codified at title 18 section 4631, violates the First Amendment. The decision essentially disagrees (although attempts to distinguish) two First Circuit decisions: an opinion upholding a similar statute from Maine and an opinion upholding a similar statute from New Hampshire.
The court described the statute as prohibiting pharmaceutical manufacturers from using prescriber-identified (PI) data regarding prescriptions written and dispensed in Vermont in their marketing efforts and thus interfering with the manufacturers’ ability to promote brand-name drugs to doctors through detailing, for example, by making it harder to identify those physicians for whom the message will be most relevant and to tailor the detailing messages based on individual physicians’ prescribing histories. As to the other type of plaintiffs, data mining companies, the court described the statute as prohibiting data miners from selling or transmitting PI data regarding prescriptions written and dispensed in Vermont if that PI data will later be used for marketing purposes. The court noted that data miners "do not themselves use PI data in their own marketing efforts. Rather, data miners are in the business of aggregating and selling the data to pharmaceutical manufacturers, among other entities, so that pharmaceutical manufacturers can use the data in their marketing strategies."
The majority found that Vermont statute regulates speech, and that the speech is commercial speech, and therefore articulated and applied the well-established (if often maligned) test from the 1980 case of Central Hudson Gas & Electric Corp. v. Public Service Commission of New York:
Under Central Hudson, the government may regulate commercial speech when (1) “the communication is neither misleading nor related to unlawful activity;” (2) the government “assert[s] a substantial interest to be achieved” by the regulation; (3) the restriction “must directly advance the state interest;” and finally (4) “if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive.
The majority concludes that the statute fails three of the prongs of Central Hudson, including the assertion of a substantial government interest. In a relatively rare occurrence under Central Hudson applications, the majority concludes that "the state’s asserted interest in medical privacy is too speculative to qualify as a substantial state interest" under the second prong of Central Hudson:
Vermont has not shown any effect on the integrity of the prescribing process or the trust patients have in their doctors from the use of PI data in marketing. Vermont’s own expert was unaware of any instance in which a detailing interaction caused a doctor to prescribe an inappropriate medication. To the extent that the record might suggest PI data has damaged the relationship between doctors and patients, the evidence is either speculative or merely indicates that some doctors do not approve of detailing or the use of PI data in detailing.
Given this conclusion, it is not surprising that the majority finds that the restriction does not advance the state interest or could be served by a more limited restriction.
In a robust dissent, Second Circuit Judge Livingston first emphasizes that the restriction is on access to otherwise private information rather than commercial speech: : "I have some difficulty comparing the data they sell to “discourse” or the “exchange of ideas,"" and noting that the First Circuit concluded that PI was "just a product, not distinguishable from the data miners’ perspective to widgets, or, as the First Circuit suggested, “beef jerky.”" The dissenting judge did, however, also apply Central Hudson and reached a different conclusion on each of the three prongs at issue. Most trenchantly, Judge Livingston compares the majority's discussion of the indirect route traveled between the state's interest and its effects, to the indirect route traveled by the majority's own reasoning. Additionally, she discussed the dormant commerce clause argument, an issue the majority did not reach in light of its holding that the statute was unconstitutional on First Amendment grounds.
November 12, 2010
Senator Rockefeller, Health Care, and the West Virginia Law Review
The just-published issue of West Virginia Law Review is a Symposium on "Health Care in America" and is one of the first law review issues to substantively address the Patient Protection and Affordable Care Act.
The journal includes discussion of a few of the constitutional issues raised by the Act, including an article by Professor Dayna Bowen Matthew of University of Colorado that non-disparate health care should be conceptualized as a property interest and an article by Professor Eleanor D. Kinney of the Indiana University School of Law considering health care as an international human right. Additionally, Professor Sidney D. Watson of St. Louis University School of Law contributes an article focused on health care in rural communities.
The law review issue, the first in Volume 113, is dedicated to Senator John D. Rockefeller, IV, the senior senator from West Virginia and longtime advocate for health care reform. In a ceremony today, Senator Rockefeller addressed criticisms of the Affordable Care Act, including those who question the constitutionality of the individual mandate, a topic we've covered here, here, and here. Rockefeller reminded his audience that a federal court recently rejected such a challenge to the Act. Rockefeller had few positive words for the for-profit health insurance industry, discussing his support for the ultimately unsuccessful public option. Rockefeller suggested that the constitutionality of the Act - - - as well as its importance - - - does not rest on the Act itself but on its forthcoming implementation by the Department of Health and Human Services. Rockefeller urged the law students to actively engage with the constitutional issues as well as the specifics of the future of health care reform.
(with J. Zak Ritchie, WVU College of Law, Class of 2011)
October 14, 2010
Florida District Judge Rules on Motion to Dismiss Health Care Reform Challenge
In a 65 page opinion issued today, Senior United States District Judge Roger Vinson of the Northern District of Florida has granted in part and denied in part the morion to dismiss the complaint.
The Complaint alleges that the Health Care Reform Act is unconstitutional on various grounds in six counts and the Motion to Dismiss was directed at all the counts.
Here is the bottom line:
(1) the individual mandate and concomitant penalty exceed Congressional authority under the Commerce Clause and violate the Ninth and Tenth Amendments; NOT DISMISSED
(2) the individual mandate and penalty violate substantive due process under the Fifth Amendment; DISMISSED
(3) if the penalty imposed for failing to comply with the individual mandate is found to be a tax, it is an unconstitutional unapportioned capitation or direct tax in violation of U.S. Const. art. I, § 9, cl. 4, and the Ninth and Tenth Amendments; DISMISSED AS MOOT
(4) the Act coerces and commandeers the states with respect to Medicaid by altering and expanding the program in violation of Article I and the Ninth and Tenth Amendments; NOT DISMISSED
(5) it coerces and commandeers with respect to the health benefit exchanges in violation of Article I and the Ninth and Tenth Amendments; DISMISSED
(6) the employer mandate interferes with the states' sovereignty as large employers and in the performance of government functions in violation of Article I and the Ninth and Tenth Amendments; DISMISSED
Thus, the case will proceed on the issue of whether the individual mandate is in excess of Congress' commerce power in contravention of the Tenth Amendment and on the issue of whether the Medicaid changes are in excess of Congress' Article I power and in contravention of the Tenth Amendment.
September 18, 2010
Marijuana Legalization as a Civil Rights Issue
Editorializing about the "war on drugs" as a war not on the "drug lords and violent cartels" but a war " that disproportionately impacts young men and women and is the latest tool for imposing Jim Crow on poor African Americans," Alice Huffman, president of the California NAACP, supports California's Proposition 19 in the San Francisco Chronicle here.
Huffman has joined other voices in favor of legalizing marijuana, including arguments regarding an extension of Lawrence v. Texas to include marijuana legalization, which we discussed here.
Marijuana legalization by California (or any state) raises a potential federalism or Tenth Amendment issue since marijuana remains a controlled substance under federal law.
July 14, 2010
Nebraska Abortion Bill: Federal Judge Issues Temporary Restraining Order
Judge Laurie Smith Camp has enjoined the enforcement of portions of the controversial abortion Nebraska bill, LB 594. In her 35 page opinion, Judge Camp provides the text of the bill, explaining it various provisions, including the extensive mental health screening and documentation.
Judge Camp explained that portions of the Bill express "the Nebraska Legislature’s concern that “the existing standard of care for preabortion screening and counseling is not always adequate to protect the health needs of women,”and “[t]hat clarifying the minimum standard of care for pre-abortion screening and
counseling in statute is a practical means of protecting the well-being of women.” and re-state the "Legislature’s earlier language to the effect that the Supreme Court of the United States over-stepped its authority when issuing its decision in Roe v.Wade, and that the Nebraska Legislature intends to protect the life of unborn children whenever possible." She reasoned:
No such legislative concern for the health of women, or of men, has given rise to any remotely similar informed-consent statutes applicable to other medical procedures, regardless of whether such procedures are elective or non-elective, and regardless of whether such procedures pose an equal or greater threat to the physical, mental, and emotional health of the patient. From a plain reading of the language of the bill,8 and the absence of any similar statutory “protections” for the health of patients in other contexts, this Court infers that the objective underlying LB 594 is the protection of unborn human life.
Opinion at 24-25. She concluded that the Bill "places certain obstacles in the path of women seeking abortions" by
- requiring medical providers to make risk assessments and disclosures that, if the bill is
read literally, would be impossible or nearly impossible to perform,
- requiring medical providers to speculate about what conduct is mandated under the bill, if it is not to be read literally, but instead given some reasonable interpretation, and
- placing physicians who perform abortions in immediate jeopardy of crippling civil litigation, thereby placing women in immediate jeopardy of losing access to physicians who are willing to perform abortions.
Opinion at 25-26. She also found that the medical providers demonstrated a likelihood of success on the merits on the First Amendment claim that "the disclosures mandated by LB 594, if applied literally, will require medical providers to give untruthful, misleading and irrelevant information to patients." Opinion at 31.
Given the Judge's ruling, unless Nebraska can produce other evidence, it seems likely that the court will declare the statute unconstitutional.
April 16, 2010
Hospital Visitation and Decision-making
The Presidential Memorandum on Hospital Visitation seeks to insure that hospitals not deny visitation privileges on the basis of race, color, national origin, religion, sex, sexual orientation, gender identity, or disability, and guarantee that all patients' advance directives, such as durable powers of attorney and health care proxies, are respected. Obama noted that these problems have "uniquely affected" "gay and lesbian Americans."The President and federal government have the power to accomplish such objectives, at least for hospitals that participate in Medicare or Medicaid programs, as a condition for receiving such funding.
Establishing conditions for receiving federal funds is nothing new, of course.
Recall Rust v. Sullivan, 500 U.S. 173 (1991), in which the Court upheld restrictions on projects receiving federal funds from providing or discussing abortions.
Also recall Rumsfeld v. Forum for Academic and Institutional Rights (FAIR) Inc., 547 U.S. 47 (2006), in which a unanimous Court upheld the Solomon Amendment that applied to universities, including law schools. The law conditioned the receipt of federal funds such as grants and student aide, on allowing the military to recruit on campus notwithstanding any university or law school policies barring discrimination on the basis of sexual orientation by potential employers.
April 16, 2010 in Current Affairs, Disability, Executive Authority, Family, Federalism, Medical Decisions, Reproductive Rights, Sexual Orientation, Sexuality, Spending Clause | Permalink | Comments (0) | TrackBack
March 23, 2010
Constitutional Challenge to Health Care Mandate: Complaint
Within ten minutes of President Obama’s signing of the Patient Protection and Affordable Care Act, available as large download here, thirteen states through their state attorney generals filed a complaint in the Northern District of Florida, Pensacola Division, challenging the constitutionality of the statute.
The states - - - Florida, South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Michigan, Colorado, Pennsylvania, Washington, Idaho, and South Dakota - - - contend that the Act “greatly alters the federal-state relationship, to the detriment of the states, with respect to Medicaid programs specifically and healthcare coverage generally” (para 39).
Count One, entitled “Unconstitutional Exercise of Federal Power and Violation of The Tenth Amendment (Const. Art. I & Amend. X)” alleges both that the Act exceeds Congressional power under Art I sec 8; the “taxing and Spending Clause”; or “any other provision of the Constitution” (para 56), and that the Act violates the Tenth Amendment.Count Two, entitled “Violation of Constitutional Prohibition of Unapportioned Capitation or Direct Tax
(Const. Art. I, §§ 2, 9)” alleges that the tax penalty on uninsured persons “constitutes a capitation and a direct tax that is not apportioned among the states.”
Count Three, entitled “Unconstitutional Mandate That All Individuals Have Health Insurance Coverage Or Pay Tax Penalty (Const. Art. I & Amend. X)” alleges:
The Act is directed to a lack of or failure to engage in activity that is driven by the choices of individual Americans. Such inactivity by its nature cannot be deemed to be in commerce or to have any substantial effect on commerce, whether interstate or otherwise. As a result, the Act cannot be upheld under the Commerce Clause, Const. art. I, § 8. The Act infringes upon Plaintiffs’ interests in protecting the freedom, public health, and welfare of their citizens and their state fiscs, by coercing many persons to enroll in Medicaid at a substantial cost to Plaintiffs; and denies Plaintiffs their sovereign ability to confer rights upon their citizens and residents to make healthcare decisions without government interference, including the decision not to participate in any healthcare insurance program or scheme, in violation of the Tenth Amendment (para 65).
The fourth and final count seeks declaratory judgment based on the previous allegations.
For pedagogical purposes, the Complaint could be used as an in class exercise in a Constitutional Law course, perhaps using some of the materials available from the Federalist Society here to write a memo in support of the complaint, as well our previous discussions here and here. It might also be useful for a Constitutional Litigation seminar to engage in a redrafting of the Complaint or a drafting of an Answer.
March 23, 2010 in Commerce Clause, Congressional Authority, Current Affairs, Federalism, Medical Decisions, News, Supremacy Clause, Teaching Tips, Tenth Amendment | Permalink | Comments (3) | TrackBack
January 23, 2010
Reproductive and Sexual Rights Conference: NYU February 12
A one-day Symposium gathering scholars and practitioners involved in reproductive and sexual rights will be held by the NYU Review of Law and Social Change on February 12, 2010.
Registration and other information here.
January 23, 2010 in Conferences, Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Privacy, Race, Reconstruction Era Amendments, Reproductive Rights, Scholarship, Sexual Orientation, Sexuality, Theory | Permalink | Comments (0) | TrackBack
November 21, 2009
Abortion and Health Care as Rights: Saturday Evening Review
The volatile link between abortion and heath care reform is being hotly debated. The Stupak Amendment to the proposed Affordable Health Care for America Act, which passed in the House of Representatives, provides that "no funds authorized or appropriated by this Act . . . may be used to pay for any abortion or to cover the costs of any health plan that includes coverage of abortion . . . ." with some exceptions. As the focus on health care reform moves to the Senate, the Stupak Amendment continues to be a prominent issue, with NY's junior Senator vowing to defeat it.
In her article Reproductive Rights and Health Care Rights, forthcoming in Columbia Journal of Gender and Law, available on ssrn here, Professor Jessie Hill of Case Western University, compellingly argues that the "right to abortion is also a health care right."
She contends that the right to abortion
is a right to access a particular medical procedure and a right to use that medical procedure to protect one’s health from significant harm, even if that procedure terminates a potential life. In fact . . . reproductive rights, including the right to contraception, have long been conceived in this way. The understanding of reproductive rights as health care rights, which has long been present in reproductive rights jurisprudence, has been downplayed by both courts and reproductive rights advocates in favor of a rhetoric centered on personal autonomy, equality, and dignity.
She explicitly - - - and seemingly enthusiastically - - - theorizes the right to health as only a "negative right to health—that is, a right to make medical treatment decisions without government interference," even as she insists that this negative right to health can serve as an important guarantor of reproductive rights, at least for those who can afford them.
She notes that both "South Africa and Canada have recognized in some form a “right to health” in ways that bear partly, though not exclusively, on the abortion right." Discussing the well-known Minister of Health v. Treatment Action Campaign (TAC), 2002 (10) BCLR 1033 (CC) (S. Afr.), regarding the availability of an HIV antiretroviral drug, she concludes that "South Africa has explicitly guaranteed a constitutional right to health that is understood, at least in part, as a positive entitlement to health care, including reproductive health services." She contrasts Chaoulli v. Québec,  1 S.C.R. 791 (Can.), and concludes that " Canada, on the other hand, has not gone so far as to recognize a positive constitutional right to health care." Yet both of her discussions are illuminating, and do, as she argues, indicate what might be trends in judicial recognition of health as a right.
In her concluding sections, she trenchantly notes several of the benefits of theorizing abortion as a medical right rather than a privacy or equality right. Perhaps optimistically, she argues that
The right to health, as a right to medical decision– making autonomy, is an inclusive concept that touches on areas that are of concern or likely to one day be of concern to most people. As people age, they begin to worry more about their future interactions with the medical establishment in the context of end–of–life decision making, access to appropriate palliative care, and possibly to experimental drugs; in particular, they may reasonably fear that intrusive government regulators will attempt to control those interactions. There may be substantial political support for the idea that the government should not dictate health care decisions, whether they are decisions about experimental treatments for cancer or reproductive health care.
She also astutely contends that
emphasizing the medical side of abortion rights may engage non–obstetrician physicians more in reproductive rights issues. After all, many of the legal restrictions that apply to abortion providers would probably strike other physicians as outrageous if applied to them.
As the health care debate's obsession with abortion continues, this is an article worth reading.
November 21, 2009 in Abortion, Comparative Constitutionalism, Current Affairs, Family, Fundamental Rights, Gender, Medical Decisions, Reproductive Rights, Theory | Permalink | Comments (1) | TrackBack
October 19, 2009
The Department of Justice has announced a new policy regarding federal prosecutions of the use of marijuana permitted under state law for medical reasons.
In a memo released today to federal prosecutors, David W. Ogden, Deputy Attorney General, states:
The prosecution of significant traffickers of illegal drugs, including marijuana, and the disruption of illegal drug manufacturing and trafficking networks continues to be a core priority in the Department’s efforts against narcotics and dangerous drugs, and the Department’s investigative and prosecutorial resources should be directed towards these objectives. As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources.
This memo solidifies Attorney General Holder's statements we discussed last February that prosecutions of the use of medical marijuana would not be a priority in the new Administration.
There is also a continuing discussion - - - although apparently not in the current DOJ - - - regarding the decriminalization of marijuana, including substantive due process arguments.
September 26, 2009
The Constitutional Rights of the Elderly: Saturday Evening Review
A person's constitutional rights may be curtailed simply because she or he attains the age of sixty-five.
This is the startling conclusion of Outliving Civil Rights, 86 Washington University Law Review 1053 (2009), by Professor Nina Kohn (pictured below) of Syracuse University College of Law.
Kohn argues that although well-intentioned, state statues meant to protect the elderly have "serious —and potentially unjustifiable—civil rights implications for the seniors they are designed to protect." She contends that some state actions
limit older adults’ substantive due process rights by criminalizing certain forms of consensual sexual behavior; others undermine older adults’ informational privacy rights by requiring the doctors, attorneys, priests, or other confidants to report suspected abuse or neglect to the state.
Kohn compelling argues that Lawrence v. Texas should be applicable to statutes which prohibit elder sexual "abuse." (at 1094). She is arguing, of course, that the definition of "abuse" is overbroad and includes much consensual activity. "Criminalizing consensual sexual conduct by the aged or frail is also [as in Lawrence] demeaning and stigma-creating. Already, older persons find themselves stereotyped as sexless. Indeed, sexual activity by older adults is apt to be perceived as abnormal or even pathological." She continues:
Laws that criminalize sexual activity with older adults—laws that deem their sexual partners to be felons— further entrench this stereotype of sexuality on the part of older people as perverse.Elder sexual protection statutes also create collateral consequences that are analogous to those that burdened the liberty interests of Texas homosexuals in Lawrence. Persons convicted under the Texas anti- homosexual conduct statute faced collateral consequences, including inclusion in criminal registries and negative consequences for future employment. Collateral consequences are also significant in elder abuse cases, although somewhat less direct. Persons convicted of sexual abuse of older adults are increasingly likely to be barred from working with or caring for the elderly. The “abused” adult may face unwanted protective action such as involuntary isolation from the “abuser” or involuntary removal from a shared accommodation with the “abuser.” In addition, as discussed earlier, persons investigated as victims of elder abuse are highly likely to be institutionalized as a result and are also at disproportionate risk of having their right to make personal choices eliminated through the imposition of a guardianship.
Kohn makes clear that her ultimate objective is less a blueprint for constitutional challenges to elder-protection laws than a rethinking of the paternalistic approach of such laws. She notes that elder abuse laws have most often been modeled on child-abuse laws (at 1108). (And while the courts have been explicit about the lesser constitutional rights of minors, they have not been willing to generalize substandard constitutional status for the elderly). She suggests that a better model is domestic violence. Id. (Although it might be argued that violence against women policies have not always accorded women full constitutional status).
September 26, 2009 in Disability, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Medical Decisions, Privacy, Scholarship, Sexuality | Permalink | Comments (0) | TrackBack
August 15, 2009
State Constitutions and Health Care: Saturday Evening Review
Close to a third of state constitutions include a reference to health, yet as Professor Elizabeth Weeks Leonard of University of Kansas observes, there is little scholarly attention paid to health and health care under state constitutions. In her article, State Constitutionalism and the Right to Health Care, posted on ssrn available here, Leonard first situates her subject in the federal constitutional landscape; she concludes that the "U.S. Constitution, in text, purpose, structure, and policy provides little support for a federal health care right" (at 21), but also concludes that federalism allows states much leeway with regard to health rights. She focuses on seven states: Michigan, New York, North Carolina, Mississippi, South Carolina, Montana, and New Jersey. In addition, she considers what she calls "trends" focusing on both vulnerable groups (mentally ill, indigent, and imprisoned populations), as well as specific types of health (including environmental health and abortions). Her two appendices are a great source of information on state constitutional provisions and provide a quick overview.
Leonard does not conclude that state constitutions are necessarily the source of rights to health and health care. In her "prescription" section, she is very pessimistic about the possibility of "universal" health care under either state or federal models, even as she notes that the Massachusetts health insurance reform "now serves as a comprehensive model for federal reform" (at 69). She contends that
Health is central to state governance, whether it is explicitly recognized in the constitution or inextricably intertwined with other state laws and values. Therefore, ardent advocates of health care rights should not be troubled by the absence of constitutional guarantees of health in the U.S. or separate state constitutions. The multiple deficiencies in the country’s health care system to provide essential health care to individuals inevitably will, and already are, receiving attention. Exactly how those concerns will be addressed can only benefit from the views of the public, expressed through their state constitutions.
(at 71). As an overview of the right of health and health care under the federal and state constitutions, Leonard's article makes a timely contribution. ConLawProfs could certainly use this article as the basis for a teaching unit or problem (or even exam question) in a constitutional law or state constitutional law course.
March 09, 2009
Obama's E.O. on Stem Cell Research
The press from the White House, with photo is from here:
(Caption to Photo from whitehouse.gov: "The President shakes hands with Rep. Jim Langevin of Rhode Island, who was paralyzed at the age of 16").
January 31, 2009
Colombia Constitutional Court, Same-Sex Marriage, and Intersex Children: Saturday Evening Review
This week, Colombia's Constitutional Court ruled that same-sex couples are constitutionally entitled to the same status as opposite-sex couples under Colombia's common law marriage scheme.
The case was
brought by the organization Colombia Diversa, and the opinion (in Spanish) is available from the organization's website and as a pdf here. An English press release on the website describes the ruling (available here) and also notes that "Uruguay and Colombia are the only countries in the Western Hemisphere that
recognize same-sex civil unions."
Colombia's Constitutional Court is also a pioneer in another, less well-known, aspect of constitutional rights on the basis of gender and sexuality. An article by Kate Haas, Who Will Make Room For The Intersexed?, 30 American Journal of Law & Medicine, 41 (2004), confronts the issue of the constitutional rights of children born with so-called "intersex" conditions, which are sometimes referred to as "ambiguous" or even "nonconforming" genitalia. As Haas explains:
In 1995, Colombia's highest court, the Constitutional Court, addressed the legality of performing gender reconstruction surgery on children. The Constitutional Court has issued three decisions on the constitutionality of genital reconstruction surgery . . . . The first case that the court considered was brought by a teenage boy who had been raised as a girl . . . . Several years after this first case, the court decided two other cases involving children born with intersex conditions. These three cases have limited parents' rights to choose genital reconstruction surgery for their children in Colombia.
The Colombia Constitutional Court balanced the constitutional rights of parents "over" their children (a concept familiar to US ConLawProfs from cases such as Pierce v. Society of Sisters and Yoder v. Wisconsin) with the constitutional rights of individuals, including minors, to bodily autonomy. Haas' article discusses the Colombia Constitutional Court's three cases in depth and provides a context for understanding the issue of intersexuality, especially in the constitutional and human rights framework. I think it is an excellent article, but I'll admit to some bias because Kate Haas wrote the piece while a student at CUNY School of Law. And while it is not the only article now available on intersexuality - - -the Intersex Symposium issue, 12 Cardozo Journal of Law & Gender 1-366 (2005), is especially noteworthy - - - it contains an unparalleled discussion of the Colombia Constitutional Court's cases on intersexuality.
(with special thanks to Ricard Pla for the Colombia Diversa materials).
January 24, 2009
Global Gag Rule Scholarship - Saturday Evening Review
President Obama's decision in his first days to reverse the so-called "global gag rule" or "Mexico City policy" barring international aid connected to abortion led me back to some of the excellent scholarship that has occurred in this area. For ConLawProfs, the issue has always been a problematic one in terms of pure doctrine. Roe v. Wade does not apply to foreign aid or women outside the United States, but does that mean the issue is not a constitutional one? And what exactly is this "global gag rule" anyway?
Nina J. Crimm of St John’s Law School, in her article, The Global Gag Rule: Undermining National Interests By Doing Unto Foreign Women And NGOs What Cannot Be Done At Home, 40 Cornell Int'l L.J. 587 (2007), is a great place to start to look for an answer to these questions.
Professor Crimm does an excellent job of providing the history of the global gag rule starting in the 1960s, discussing the national interests supporting it, and elucidating the harms to NGOs. She briefly argues that the global gag rule could be unconstitutional under equal protection principles if it applied to US women. Her main argument concerns the First Amendment and “unconstitutional conditions” doctrines based on funding, but again with the caveat if the “restrictions that are imposed on foreign NGOs were imposed on domestically formed NGOs.” Thus, despite her carefully crafted constitutional arguments, her ultimate point is a non-constitutional one:
The United States holds itself up to the world as a model democracy based on fundamental and equal rights for individuals and organizations. Accompanying this role is the responsibility to permit abroad what must be permitted at home.
Id. at 618.
Crimm is not alone in her conclusions. The UC-Davis Journal of International Law and Policy devoted a Symposium to “Family Planning and AIDS Policy in the International Community” in 2006. Berta Esperanza Hernández-Truyol of University of Florida College of Law has a particularly compelling piece, On Disposable People And Human Well-Being: Health, Money And Power, 13 U.C. Davis J. Int'l L. & Pol'y 35 (2006). She argues:
An analysis of the gag rule reveals that it can be interpreted as an imperial power move that contributes to the deterioration of health. It deploys economic power to ignore sovereignty and subtract from human well-being. The policy purposely denies access to funds that enable the provision of health education, supplies, and services simply to implement political ideology. Ironically, while claiming a policy of preventing loss of life through prohibition of abortion, the gag rule policy actually costs more lives by not engaging in programs that can reduce maternal and infant mortality. Significantly, the policy also deleteriously results in more orphans (who are usually left in very vulnerable and unstable situations) and in the failure to provide certain services and supplies necessary for HIV/AIDS victims. This reveals a direct link between economic power (quantity of aid) and availability of service.
Id. at 64.
Again, this is not a “constitutional law” argument, but an international law and policy one. A host of other articles on the subject, most of them reaching similar conclusions as these articles by Berta Esperanza Hernández-Truyol and Nina J. Crimm, also might at first seem rather “tangential” to ConLawProfs, except as we discuss Executive and Legislative powers in “foreign affairs.”
But our students (at least mine) often raise issues of "rights" in international contexts. An interesting – and quite lengthy – article by Scott L. Cummings of UCLA published last year, The Internationalization Of Public Interest Law, 57 Duke L.J. 891 (2008), implicitly contends that “rights” may be shifting away from the Constitution. Here’s the abstract:
This Article describes and explains the influence of global change on American public interest law over the past quarter-century. It suggests that contemporary public interest lawyers, unlike their civil rights-era predecessors, operate in a professional environment integrated into the global political economy in ways that have profound implications for whom they represent, where they advocate, and what sources of law they invoke. The Article provides a preliminary map of this professional environment by tracing the impact of three defining transnational processes on the development of the modern public interest law system: the increasing magnitude and changing composition of immigration, the development and expansion of free market policies and institutions, and the rise of the international human rights movement. It then suggests how each of these processes has contributed to institutional revisions within the U.S. public interest system: the rise of immigrant rights as a distinctive category of public interest practice, the emergence of transnational advocacy as a response to the impact of free market policies abroad, and the movement to promote domestic human rights both as a way to resist free market policies at home and to defend civil rights and civil liberties in the face of domestic conservatism and antiterrorism. After mapping the institutional scope and texture of these trends, the Article appraises their influence on the goals public interest lawyers pursue, the tactics they deploy, and the professional roles they assume in the modern era.
So it seems that Obama's reversal of the "global gag rule" has a solid foundation in legal scholarship.
January 24, 2009 in Abortion, Due Process (Substantive), Executive Authority, Family, Foreign Affairs, Fundamental Rights, Gender, Medical Decisions, Reproductive Rights, Scholarship | Permalink | Comments (0) | TrackBack
October 09, 2008
Health, Health Care & Con Law Teaching
Health Care as a possible “right” was one of the subjects broached in Tuesday evening’s Presidential debate.
Here’s part of that “quick discussion:”
Brokaw: Quick discussion. Is health care in America a privilege, a right, or a responsibility? Sen. McCain?
McCain: I think it's a responsibility, in this respect, in that we should have available and affordable health care to every American citizen, to every family member. And with the plan that -- that I have, that will do that.
But government mandates I -- I'm always a little nervous about. But it is certainly my responsibility. It is certainly small-business people and others, and they understand that responsibility. American citizens understand that. Employers understand that.
But they certainly are a little nervous when Sen. Obama says, if you don't get the health care policy that I think you should have, then you're going to get fined. And, by the way, Sen. Obama has never mentioned how much that fine might be. Perhaps we might find that out tonight.
Obama: Well, why don't -- why don't -- let's talk about this, Tom, because there was just a lot of stuff out there.
Brokaw: Privilege, right or responsibility. Let's start with that.
Obama: Well, I think it should be a right for every American. In a country as wealthy as ours, for us to have people who are going bankrupt because they can't pay their medical bills -- for my mother to die of cancer at the age of 53 and have to spend the last months of her life in the hospital room arguing with insurance companies because they're saying that this may be a pre-existing condition and they don't have to pay her treatment, there's something fundamentally wrong about that.
(excerpted from the CNN transcript, available here).
This was especially interesting to me because of an upcoming event in my constitutional law class scheduled for November 7. As part of a larger project, I have inaugurated a series of interdisciplinary “conversations” featuring one of our university’s distinguished professors and one of our law school professors. It is structured as a “public conversation” with the Con Law students and others in attendance. Last year, our subject was economic justice and the discussants were Frances Fox Piven and Steven Loffredo. This year, our subject is health and the discussants are Nicholas Freudenberg and Janet Calvo.
I see this question of “health” relating to the constitutional law rights course I am teaching in three ways:
First, there is the question of health care as a “right” that was broached in the Presidential debate. This is a good opportunity to discuss the intersections of the equal protection and due process clauses. It is also a good opportunity to surface comparative perspectives with constitutions that do provide for so-called “socio-economic rights” as well as international law documents.
Second, there is the question of government health interests as warranting curtailment of individual rights in either an equal protection or due process context. The public health perspectives and the individual rights perspectives are often in stark conflict in situations in which “quarantine” is seen as an option, including AIDS in the 1980s, and more recently TB and SARS, as well as threats of future diseases.
Third, there is the question of corporations as “persons” under the Fourteenth Amendment claiming equal protection and due process rights, as well as First Amendment rights. For health campaigns that include government action as a goal, corporations can challenge the government action. Again, this illustrates a conflict between public health and constitutional rights perspectives, but also surfaces a fissure between individual rights and corporate rights perspectives within the legal community. The “tobacco case” presently before the United States Supreme Court, Philip Morris, USA v. Williams, illustrates this issue, albeit obliquely.
In terms of pedagogy, I am just beginning to raise these issues in class. Before the November 7 event, students will have the “opportunity” (I do make it required), to post specific questions that they would like the discussants to address. As moderator, I review and categorize these questions and use them to direct the conversation, as well as making sure I mention specific cases we have studied or will study. I also make it clear that the conversation will be integrated into the final exam.
In addition to the ConLaw class, I use this opportunity to make links with other classes and faculty members. So, Distinguished Public Health Professor Nicholas Freudenberg will also participate in a round table discussion with community activists arranged by my colleague Jenny Rivera, Director of the law school’s Center for Latino and Latina Rights and Equality (CLORE), a teaching experience in our law school’s Health Law externship clinic facilitated by my colleague Paula Berg, and a lunch with all faculty members to talk about further collaboration between the law school and the university’s new School of Public Health.
If you are interested in attending any of these events and will be in the NYC area on November 7, please contact me: firstname.lastname@example.org. I know it will be a day of lively discussion - - - especially given the election a few days before.