Monday, April 22, 2013
The Court heard oral arguments today, sans Justice Kagan, in United States Agency for International Development v. Alliance for Open Society International, Inc., involving a First Amendment challenge to a provision of federal funding statute requiring some (but not other) organizations to have an explicit policy opposing sex work.
In other words, a NGO must have a "prostitution pledge" - - - actually, an anti-prostitution pledge - - - as a condition of receiving funds, unless it is one of the "grandfathered" NGOs. The question is whether this pledge is compelled speech and whether any compelled speech is sufficient to distinguish the situation from Rust v. Sullivan. The Second Circuit had held the provision unconstitutional.
Arguing as Deputy Solicitor General in support of the provision's constitutionality, Sri Srinivasan stressed that the Congressional requirement was "germane" to the government's goal in "partnering" with private organizations. Justice Scalia, in addition to finding the term "partnering" a "terrible verb," seemed to voice sentiments consistent with his previous conclusions in funding cases that the government can choose to spend its money as it wished. Interestingly, Justice Alito was more troubled, as he expressed in his first comment and question to the Deputy Solicitor General:
JUSTICE ALITO: I'm not aware of any case in which this Court has held that it is permissible for Congress to condition Federal funding on the recipient's expression of agreement with ideas with which the recipient disagrees. I'm not aware of any case in which that kind of compelled speech has been permitted. And I would be interested in -- and it seems to me like quite a -- a dangerous proposition. I would be interested in whatever limitations you think there might be on that rule, which seems to be the general rule that you're advocating. Other than the requirement of germaneness, is there anything else.
Alito soon thereafter posed an example mentioned in an amicus brief about the ability of government funding schools, and again, Srinivasan repeated the requirement of "germaneness." Later, Alito mentioned another example, mixing advocacy of guns and receiving health care, and Srinivasan again answered similarly.
Justice Ginsburg's concerns were similar, with an addition of the question of the recipients as foreign NGOs as a distinguishing feature from precedent as well as a practical issue.
David Bowker, arguing for Alliance for Open Society and other organizations, attempted to distinguish a funding criteria from mandated speech once the fnding decision had been made, although this led into a discussion of viewpoint discrimination rather than compelled speech. Later, Bowker brought it back to the distinction based upon Rust v. Sullivan, in a colloquy with Justice Sotomayor:
MR. BOWKER: And what Rust says, and I – I think we fall back on Rust, which we think is just on all fours with where we are here, and that is what the government cannot do -- and I think this answers your question -- is outside the government program the government cannot control private speech. And it was critical in that case -- Justice Rehnquist, at pages 196 and 197, said, "The doctors there and the public health organizations there are free to engage in their own private speech and their own activities, and they are not required to endorse any viewpoint they don't, in fact, hold." And here -
It was not until the Government's rebutal that one of the oddest features of the statute was raised, when Sotomayor stated,
JUSTICE SOTOMAYOR: I would have less problem accepting your message if there weren't four major organizations who were exempted from the policy requirement . . .
There seems to be a bit of selection on the government in terms of who it wants to work with. It would seem to me that if you really wanted to protect the U.S., you wouldn't exempt anybody from this.
In his last moments of argument, Srinivasan, responding to Justice Ginsburg, argued that the exemptions made "good sense" given that three of the four have members that are sovereign entities. Unfortunately, the rationale supporting that fourth entity was not explored.
The hypotheticals and examples raised by the Justices in oral argument showed some concern about just how far Congress could extend a provision similar to the one about prostitution in the Leadership Act. The distinction between funding and compelled speech doctrines was often obscured, making the outcome uncertain. More certain is that Justice Kagan's perspective will be sorely missed.
Thursday, March 7, 2013
In the latest chapter of McCormack v. Hiedeman, District Judge Lynn Winmill issued a 42 page opinion (Memorandum Decision and Order) yesterday holding various provisions in Idaho's abortion law unconstitutional, including the 20 week pregnancy ban unconstitutional.
Recall that the Ninth Circuit last year found that Idaho's prosecution of McCormack for "self-abortion" constituted an undue burden and was unconstitutional. McCormack, who purchased abortion "medications" over the internet, was the subject of an excellent indepth article which we discussed here. At that time, it seemed as if the case was concluded.
However, Judge Winmill rejected the prosecutor's argument that the case was moot, noting that a party "cannot conjure up mootness by ceasing the challenged conduct only for practical or strategic reasons - - - such as avoiding litigation." The judge further held that the prosecutor's promise not to prosecute would not bind his successors and that his subsequent offer of transactional immunity to McCormack was not timely or binding. Further, the judge noted that pregnancy is "capable of repetition yet evading review."
Judge Winmill also held that the physician in the case had standing, including to assert his patients' constitutional claims.
On the merits, Judge Winmill held that the self-abortion provision is a substantial obstacle and therefore unconstitutional, adopting the Ninth Circuit's reasoning.
Judge Winmill also held unconstitutional the provisions imposing criminal liability on abortion providers who perform first trimester abortions outside a hospital or a properly staffed and equipped office or a clinic and requires that “physicians have made satisfactory arrangements” for emergency hospital care. The judge accepted the physician's argument that the terms “properly” and “satisfactory” are unconstitutionally vague therefore placing an undue burden on women seeking first trimester abortions. There is some confusion in the judge's reliance on Gonzales v. Carhart in this passage, but the judge finds that the Idaho statute is not sufficiently specific.
Additionally, the judge found unconstitutional the Idaho provisions banning abortions at twenty weeks in PUCPA, the Pain-Capable Unborn Child Protection Act. He reasoned that PUCPA does not contain mention the health or safety of the pregnant woman, that its only purpose was to limit the available options for the woman, and that the legislature cannot place viability at a set point.
Given this opinion, it is likely that McCormack v. Heidman will be returning to the Ninth Circuit.
Friday, January 11, 2013
In a 93 page Memorandum and Order in Central Rabbinical Congress v. NYC Department of Health & Mental Hygiene, Judge Naomi Reice Buchwald has denied a preliminary injunction against NYC's regulation requiring notice and consent for a specific circumcision practice known as MBP, involving oral suction of the wound. We previously discussed the regulation and the complaint.
Much of Judge Buchwald's opinion is devoted to the empirical basis supporting the NYC regulation. As she states, there is a "strong scientific consensus that direct oral suction puts infants at a serious risk of HSV-1 infection," yet there is some dispute whether such has actually occured during a Jewish ritual. Given this dispute, Judge Buchwald ultimately sidelines the scientific studies and focuses on the legal standards.
On the speech claim, Judge Buchwald concludes that "the interpretation of section 181.21 begins and ends with the regulation’s text. The text of section 181.21 does not compel speech, thus plaintiffs are unlikely to prevail on their claim that the regulation violates" the Free Speech Clause.
On the free exercise claim, Judge Buchwald distinguished Church of Lukumi Babalu Aye v. City of Hialeah (1993), the case involving the ritual slaughtering of animals as a practice of the Santeria religion in which the Court applied strict scrutiny. The judge concluded that the NYC regulation has "several valid secular objects" and "there is also no indication in the record that it has a discriminatory object against religion in general or Judaism in particular." Instead, the judge noted that the Department had been involved in extensive education outreach since 2005 to combat the risk of HSV-1 transmission: "Viewed in the context of this educational outreach, the present regulation appears to be one component of a long-term, multifaceted strategy to reduce the incidence of neonatal herpes and promote informed parental decisionmaking," rather than any targeted hostility to a particular religious practice.
In an interesting construction, Judge Buchwald reframed the free exercise rights of the plaintiffs:
[the] mohels’ free exercise interest is inherently circumscribed by parents’ right to decide whether MBP is performed on their child or not. When mohels’ free exercise interest is framed thusly, one can see how limited the regulation really is: it ensures that a prerequisite to a mohel’s legitimate performance of MBP is in fact met. In light of these considerations, it is clear that the regulation is rationally related to the government’s interest in fostering informed parental decisionmaking.
Thus, the judge terminated her previous stay of the enforcement of the regulation.
Friday, January 4, 2013
In September, the Ninth Circuit rendered its opinion in McCormack v. Hiedeman regarding the constitutionality of Idaho's "unlawful abortion" statutes that makes it a felony for any woman to undergo an abortion in a manner not authorized by statute. McCormack had been charged by the prosecutor Mark Hiedeman based on her procurement of abortion "medications" over the internet. The court held that imposing a criminal sanction on a woman poses an undue burden under Casey, but the decision was restricted to McCormack given the absence of class certification.
But who is Jennie Linn McCormack? And how common is procuring abortion "medications" via the internet?
Journalist Ada Calhoun's cover article in this month's The New Republic, "The Rise of DIY Abortions," paints a vivid portrait of Jennie Linn McCormack, as well as her attorney ("an avid fan of The Girl with the Dragon Tattoo books. He saw the character of dogged reporter Mikael Blomkvist as a good role model for a lawyer. . . ").
Calhoun also contextualizes McCormack's situation:
Determining how many American women have had home abortions is
exceedingly difficult: The Centers for Disease Control and Prevention
does not track illegal abortions. There is no blood test for drugs like
Cytotec, and so such an abortion is indistinguishable from a natural
miscarriage, even to a doctor. However, the proliferation of online
dispensers suggests a rising demand. There are thousands of websites
selling Cytotec for as little as $45 to $75 (compared with $300 to $800
for a legal medicated abortion in a clinic). Some claim to offer the
harder-to-come-by Mifeprex, but may in fact be peddling Cytotec, or
aspirin, or nothing at all. (Possible sources for the drugs include
Mexico, where Cytotec is available over the counter, or even the United
States, since it’s also prescribed here as an ulcer medication.)
The question of how drugs like Mifeprex and Cytotec are sold and administered is emerging as the next major front in the abortion debate.
Calhoun's article is a must-read for anyone teaching, writing, or thinking about abortion and is sure to be discussed at the many conferences devoted to Roe v. Wade's 40th anniversary, such as this one at the NYC Bar.
January 4, 2013 in Abortion, Current Affairs, Due Process (Substantive), Family, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Recent Cases, Teaching Tips | Permalink | Comments (0) | TrackBack (0)
Monday, January 14, 2013 6:30 pm-8:00 pm
2013 marks the 40th anniversary of Roe v. Wade, establishing the constitutionally-protected right to abortion. This program will discuss the evolution of the right to abortion in the courts, public opinion, and political discourse since then and will address the current status of reproductive rights in the United States, including its role in the 2012 presidential election.
Moderator: PRISCILLA SMITH, Senior Fellow at the Information Society Project at the Yale Law School
LOUISE MELLING, Director, ACLU Center for Liberty
RUTHANN ROBSON, Professor of Law & University Distinguished Professor, CUNY School of Law
KATHLEEN MORRELL, MD, Physicians for Reproductive Choice and Health
JESSICA GONZALEZ-ROJAS, Executive Director, National Latina Institute for Reproductive Health
BEBE ANDERSON, Director, U.S. Legal Program, Center for Reproductive Rights
Sponsors: Sex and Law Committee, Pamela Zimmerman, Chair
More information here.
Monday, December 3, 2012
Second Circuit On First Amendment Right to Promote Drug for Off-Label Use Without Criminal Consequences
In a sharply divided and long overdue opinion in United States v. Caronia issued today, a panel of the Second Circuit reversed a conviction relying primarily on the Supreme Court's 2011 decision in Sorrell v. IMS Health, Inc.
The conviction, according to the jury verdict, was for "Conspiracy to introduce a misbranded drug into interstate commerce in violation of 21 U.S.C. §§ 331(a) and 333(a)(2)." However, Judge Denny Chin, writing for the majority, emphasized that Caronia's statements - - - promoting the off-label use of the drug while he was as a pharmaceutical marketer - - - were the basis of the conviction: "Caronia was, in fact, prosecuted and convicted for promoting Xyrem off-label." Thus, because the majority rejected the government's argument that the statements were (merely) evidence of intent, the conviction raised a First Amendment issue. The panel then extensively discussed Sorrell, beginning with an explication of its two-step analysis:
First, the Court considered whether the government regulation restricting speech was content- and speaker-based. The Court held that it was; the regulation was therefore subject to heightened scrutiny and was "presumptively invalid." Second, the Court considered whether the government had shown that the restriction on speech was consistent with the First Amendment under the applicable level of heightened scrutiny. The Court did not decide the level of heightened scrutiny to be applied, that is, strict, intermediate, or some other form of heightened scrutiny.
[citations omitted]. The panel concluded "that the government's construction of the FDCA's misbranding provisions imposes content- and speaker-based restrictions on speech subject to heightened scrutiny," and then that "the government cannot justify a criminal prohibition of off-label promotion even under Central Hudson's less rigorous intermediate test." The majority seems especially troubled that the crime, at least as the court has constructed it, is "speaker-based because it targets one kind of speaker -- pharmaceutical manufacturers -- while allowing others to speak without restriction."
In a vigorous dissent, Judge Debra Ann Livingston stressed that speech acts are often evidence of intent and that "the majority calls into question the very foundations of our century-old system of drug regulation." She provides a literary analogy to refute Caronia's argument that he "merely discussed “a perfectly lawful practice: the use of a lawful drug, Xyrem, for off-label purposes.”
But the fact that a physician or a patient could legally use Xyrem for an off-label purpose is not enough to make out Caronia’s First Amendment claim. There might be no law forbidding the consumption of arsenic. But this would not endow Abby and Martha with a First Amendment right to offer arsenic-laced wine to lonely old bachelors with the intent that they drink it. See Arsenic and Old Lace (Warner Bros. Pictures 1944). And any statements Abby or Martha made suggesting their intent—even if all of the statements were truthful and not misleading—would not be barred from evidence by the First Amendment simply because arsenic might legally be consumed.
While Judge Chin's opinion could - - - taken to its logical conclusion - - - have a dramatic effect, it seems limited to the pharmaceutical arena.
Tuesday, November 20, 2012
District Judge to Hobby Lobby: No Substantial Burden on Religious Beliefs re: ACA Contraception Compliance
The contraception provision requirement of the ACA continues to foment litigation. However, unlike last week's decision by a federal district judge granting the preliminary injunction in favor of Tyndale House Publishers, a small Christian publishing house, yesterday a federal district judge denied a preliminary injunction sought by Hobby Lobby, a privately held corporation operating 514 arts and crafts stores in 41 states regarding the so-called "morning after" or "Plan B" contraceptive pill.
In a 28 page opinion, Judge Joe Heaton of the Western District of Oklahoma, denied Hobby Lobby's claims, as well as the claims by Mardel, a Christian supply and bookstore chain; both corporations are owned by the Green family through a management trust. Interestingly, much of the judge's analysis revolves around the identity of the plaintiffs as it relates to whether their First Amendment and RFRA are being violated.
Denying the preliminary injunction, Judge Heaton concluded:
Plaintiffs have not demonstrated a probability of success on their First Amendment claims. Hobby Lobby and Mardel, secular, for- profit corporations, do not have free exercise rights. The Greens do have such rights, but are unlikely to prevail as to their constitutional claims because the preventive care coverage regulations they challenge are neutral laws of general applicability which are rationally related to a legitimate governmental objective.
Plaintiffs also have failed to demonstrate a probability of success on their Religious Freedom Restoration Act claims. Hobby Lobby and Mardel are not “persons” for purposes of the RFRA and the Greens have not established that compliance with the preventive care coverage regulations would “substantially burden” their religious exercise, as the term “substantially burdened” is used in the statute. Therefore, plaintiffs have not met their prima facie burden under RFRA and have not demonstrated a probability of success as to their RFRA claims.
The applicability of free exercise rights and RFRA rights to corporations is resoundingly rejected by Judge Heaton. His analysis as to the persons involved does, in part, depend upon their attentuated relationship to the entities subjected to the ACA requirements.
Tuesday, September 11, 2012
In its opinion in McCormack v. Hiedeman today, a panel of the Ninth Circuit considered the constitutionality of Idaho's "unlawful abortion" statutes, making it a felony for any woman to undergo an abortion in a manner not authorized by statute. McCormack had been charged with a felony by the prosecutor Mark Hiedeman based on her procurement of abortion "medications" over the internet. While a state magistrate had dismissed the charge without prejudice, the prosecutor had not determined whether or not to re-file a criminal complaint. McCormack brought an action in the federal district court challenging the constitutionality of the Idaho statutes. The district judge granted a preliminary injunction against the statutes' enforcement.
At the heart of the constitutional inquiry was whether or not a pregnant woman could be constitutionally held criminally liable under an abortion statute. The prosecutor essentially argued that criminalizing nonphysicians performing abortions is consistent with Roe v. Wade and Planned Parenthood v. Casey.
The Ninth Circuit, however, agreed with the district judge that imposing criminal sanctions on a pregnant woman imposes an "undue burden" under Casey. The "undue burden" resulted because the statute required the woman to police the abortion providers' actions or risk criminal sanctions herself:
If a woman terminates her pregnancy during the first trimester but fails to ask the physician whether the office has made “satisfactory arrangements with one or more acute care hospitals within reasonable proximity thereof providing for the prompt availability of hospital care as may be required due to complications or emergencies that might arise,” she would be subject to a felony charge if the physician has not made such arrangements. Idaho Code § 18-608(1). If a woman finds a doctor who provides abor- tions during the second trimester of a woman’s pregnancy, but the doctor fails to tell the pregnant woman that the abortion will be performed in a clinic as opposed to a hospital, the pregnant woman would be subject to felony charges. Idaho Code § 18-608(2). Or, as is the case here, if a woman elects to take physician prescribed pills obtained over the internet to end her pregnancy, which is not authorized by statute, she is subject to felony charges. Idaho Code §§18-608(1)-18- 608(3).
The court also found McCormack's economic situation and the lack of abortion providers in her area to contribute to the "undue burden."
The Ninth Circuit panel found McCormack had standing, but narrowed the district court's injunctive relief to apply only to McCormack since there had been no class certification.
For pregnant women facing prosecutions under abortion statutes, the Ninth Circuit's opinion is an important and persuasive statement on the unconstitutionality of criminal sanctions.
[image: The Prisoner, artist unknown, circa 1907, via]
Tuesday, July 24, 2012
In a 7-4 en banc opinion today in Planned Parenthood v. Rounds, the Eighth Circuit disagreed with the panel opinion and the district judge and upheld the constitutionality of a South Dakota statutory provision requiring the disclosure to patients seeking abortions of an “[i]ncreased risk of suicide ideation and suicide,” S.D.C.L. § 34-23A- 10.1(1)(e)(ii).
Planned Parenthood contended that requiring a physician to present the suicide advisory imposes an undue burden on abortion rights and violates the free speech rights of the physician. The court conflated the undue burden (due process) claim and the physician First Amendment claim: "In short, to succeed on either its undue burden or compelled speech claims, Planned Parenthood must show that the disclosure at issue “is either untruthful, misleading or not relevant to the patient’s decision to have an abortion.”
Judge Gruender's opinion for the majority seemingly acknowledged that there was no evidence that abortion caused suicidal ideation. Instead, the issue was the "accepted usage of the term 'increased risk' in the relevant medical field." The opinion found that based on the medical usage, the statutory requirement "does not imply a disclosure of a causal relationship," instead it is merely a disclosure that "the risk of suicide and suicide ideation is higher among women who abort compared to women in other relevant groups, such as women who give birth or do not become pregnant."
The majority rejected the relevancy of Planned Parenthood's argument that certain underlying factors, such as pre-existing mental health problems, predispose some women both to have unwanted pregnancies and to have suicidal tendencies, resulting in a misleading correlation between abortion and suicide that has no direct causal component. Planned Parenthood argued that the required disclosure would be misleading or irrelevant to the decision to have an abortion because the patient’s decision would not alter the underlying factors that actually cause the observed increased risk of suicide. But the majority found that a correlation - - - seemingly for any reason - - - was sufficient: "the truthful disclosure regarding increased risk cannot be unconstitutionally misleading or irrelevant simply because of some degree of 'medical and scientific uncertainty,' as to whether abortion plays a causal role in the observed correlation between abortion and suicide."
In contrast, the four dissenting judges, in an opinion by Judge Murphy, stated that the "record clearly demonstrates" that "suicide is not a known medical risk of abortion and that suicide is caused instead by factors preexisting an abortion such as a history of mental illness, domestic violence, and young age at the time of pregnancy." The dissenting opinion read the statutory provision to require doctors to tell a pregnant woman that a greater likelihood of suicide and suicide ideation is a "known medical risk" to which she "would be subjected" by having an abortion. S.D.C.L. § 34-23A-10.1(1)(e) (2005) (emphasis added). This causal language troubled the dissenting judges, who concluded that the suicide advisory places an undue burden on a pregnant woman's due process rights and violates a doctor's First Amendment right against compelled speech.
Both opinions rehearse and discuss the social science and psychological studies before the court and both opinions admit the studies are flawed. However, by rejecting the necessity for causation in a warning about a medical procedure given for informed consent, the majority rests its opinion on correlation even if there is "some degree of 'medical and scientific uncertainty" as to the reasons for any correlation.
[image:Sappho Leaping into the Sea from the Leucadian Promontory, circa 1840, via]
Thursday, May 31, 2012
As the Washington Post reports, members of the House of Representatives "voted 246 to 168" on PRENDA, HR 3541, the Prenatal Non-Discrimination Act, that bans sex-selective and race-selective abortions. While the 246 majority voted for PRENDA, it "failed to pass as House Republicans brought it up under a suspension of normal rules that required it to earn a two-thirds majority vote."
PRENDA defines "‘‘sex-selection abortion’’ as an "abortion undertaken for purposes of eliminating an unborn child of an undesired sex," and ‘‘race-selection abortion’’ is "an abortion performed for purposes of eliminating an unborn child because the child or a parent of the child is of an undesired race." The bill is similar to one in Arizona that did become law; the few other states that do have statutes focus on sex-selection.
As I've written elsewhere:
The specter of sex-selection prohibitions in abortion statutes is said to pose a political dilemma for feminists,who can be “torn” between “support for reproductive autonomy” and “distaste for sex-‐selection practices driven by a gendered and patriarchal society.” It also provokes opposing logical constructions. On one account, if there is right to an abortion for any or no reason, this includes a right to an abortion even for a problematical reason.165 On an opposing account, “[t]he right to not have a child for any reason does not logically encompass the right not to have a child for any specific reason.” Whatever the logic, however, an interrogation of a woman’s “reason” for having an abortion demonstrates a distrust of women similar to the distrust apparent in other abortion restrictions that treat women have abortions quite differently than ungendered patients providing informed consent for other medical procedures. However, unlike other abortion restrictions such as mandatory ultrasounds or waiting periods, sex-‐selective prohibitions are not cast as being beneficial to women or assisting decision-‐ making; rather, they clearly seek to remove the power of a woman’s choice to terminate a pregnancy in service to a larger societal and state interest.
Indeed, PRENDA's findings on sex include:
(subsection L) Sex-selection abortion results in an unnatural sex-ratio imbalance. An unnatural sex- ratio imbalance is undesirable, due to the inability of the numerically predominant sex to find mates. Experts worldwide document that a significant sex-ratio imbalance in which males numerically predominate can be a cause of increased violence and militancy within a society. Likewise, an unnatural sex-ratio imbalance gives rise to the commoditization of humans in the form of human trafficking, and a consequent increase in kidnapping and other violent crime.
PRENDA bases this finding on the experience of nations such as China, mentioning "son preference" but not China's accompanying one-child policy. For some, the interest in prohibiting sex-selective abortion is a "manufactured controversy." For others, PRENDA may be part of an election year strategy.
For those teaching a summer course in ConLaw, this could be the basis of an excellent problem. ConLawProfs might want to also consider the constitutional provisions on which Congress grounds its power, including the Thirteenth Amendment.
Friday, April 6, 2012
The Second Circuit's opinion today in Disability Advocates, Inc. v. New York Coalition for Quality Assisted Living, Inc. denies Article III standing to the nonprofit Disability Advocates, Inc (DIA) in its suit against various state agencies and the governor of New York pursuant to the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.
The panel found that because DAI was a contractor to supply services, it did not meet the requirement for associational standing. Although in a footnote, the panel clarified that this was not necessarily true in all cases:
Our holding does not stand for the proposition that all organizations contracted to provide protection and advocacy within a P&A system [under the Protection and Advocacy for Individuals with Mental Illness Act] necessarily lack standing. We do not reach the question of whether some such contractors can fulfill the statutory requirements under § 10805 and meet the constitutional threshold established under Hunt [ v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977)]. We hold simply that, in the circumstances presented here, DAI has not met its burden to establish constitutional standing.
We reject the argument that merely because DAI lacks standing to assert this claim on its own, it cannot fulfill its legislative responsibility to “pursue . . . legal . . . remedies to ensure the protection of individuals with mental illness.” 28 U.S.C. § 10805(a)(1)(B); see United States Br. 66. In circumstances where P&A contractors cannot bring suits “in their own right” because of constitutional standing requirements, they may provide representation to individuals with mental illness and litigate those cases in the names of those individuals. That contractors such as DAI must satisfy the minimum requirements of constitutional standing does not foreclose access to the federal courts for those organizations or the individuals whose interests they are intended to serve.
In addition to holding that DAI lacked standing, the Second Circuit held that "the intervention of the United States after the liability phase of the litigation had concluded was insufficient to cure the jurisdictional defect created by DAI’s lack of standing." The panel relied upon civil procedure rules regarding jurisdiction, even as it noted that precedent established "a district court’s discretion to treat the pleading of an intervenor as a separate action in order to adjudicate the claims raised by the intervenor even if the underlying claim was jurisdictionally deficient." The panel found that discretion was not warranted here because the United States intervened too late: "the District Court decided important questions of fact and law based entirely on the presentation of a plaintiff who lacked standing. The fact that the United States later “adopted” those findings and conclusions cannot remedy the absence of jurisdiction at trial and in pretrial proceedings."
The panel concluded with its observations about judicial economy - - - as well as its opinion on the merits, or, at least the remedy:
In reaching this conclusion, we are mindful of the possibility that this litigation will continue, inasmuch as the United States—whose standing is not disputed—has represented that, in the event of a dismissal on the basis of standing, it would re-file the action and submit the same evidence at a subsequent trial. Individual plaintiffs with standing could, of course, pursue further litigation as well, either in conjunction DAI or on their own. We are not unsympathetic to the concern that our disposition will delay the resolution of this controversy and impose substantial burdens and transaction costs on the parties, their counsel, and the courts. Should that situation arise, we are confident that the experienced and able district judge, as a consequence of his familiarity with prior proceedings, can devise ways to lessen those burdens and facilitate an appropriate, efficient resolution.
Although we are not presently required to consider the issue of remedy, we do have concerns about the scope of the proposed remedy. If this controversy continues, and if the renewed litigation reaches the remedial phase, the parties and the District Court will have another opportunity to consider an appropriate remedy.
The court's "concerns" send a clear message about the merits of the case, which have for the present been expressed as dicta and otherwise collapsed into discretionary judgements regarding standing and procedural rules.
[image: Vincent Can Gogh, Corridor in the Asylum, circa 1889 via]
Saturday, March 24, 2012
Feminist icon Elizabeth Cady Stanton (pictured right) is frequently portrayed as an anti-abortion. For example, bills such as The Susan B. Anthony and Frederick Douglass Act of 2011, H.R. 3541, and The Elizabeth Cady Stanton Pregnant and Parenting Students Services Act of 2005, S.1966, H.R. 4265, co-sponsored by 2012 Republican Presidential candidate Rick Santorum, sought to limit abortion and other reproductive rights in the name of Stanton (as well as anti-slavery hero Frederick Douglas). Stanton's supposed anti-abortion views are also frequently cited in Supreme Court briefs to defeat an argument that abortion is central to women's rights by noting that early feminists were against the practice.
But was Stanton actually anti-abortion?
Professor Tracy Thomas argues that Stanton is an unlikely - - - and inappropriate - - - poster woman for the contemporary anti-abortion movement in a new paper entitled Misappropriating Women’s History in the Law and Politics of Abortion. According to Professor Thomas, Stanton "did not talk about abortion per se" and "did not respond to the public campaign for the criminalization of abortion led by the medical profession with attacks on the growing autonomy of women." Instead,
Stanton turned this debate to her priority of women’s rights, framing the question as one of the “elevation of woman” through equal legal and social rights. Stanton’s theory of “enlightened motherhood” placed women as the “sovereign of her own person” with sole responsibility for deciding when and under what circumstances to bear children. She defended women accused of infanticide, exposing the gendered legal system of all-male juries, legislatures, and judges that condemned them. Stanton’s life work labored for radical change to the patriarchy of society seeking liberal legal reforms of equal rights for women. Her ideology was about the “self-sovereignty” of women and against the regulation of women by men or the law.
Of course, Stanton was not one of the framers of the Fourteenth Amendment and indeed, she refused to support the Amendment given its exclusion of women. Nevertheless, Stanton's "originalist" views on the rights of women are often invoked and Tracy Thomas has provided vital historical sources, analysis, and arguments regarding Stanton's position.
Thomas' article is sure to provoke its own analysis and arguments, and equally sure to be an important contribution in contemporary debates regarding the legal regulation of abortion. It's a must-read for any scholar working on this controversial constitutional area.
[image of Elizabeth Cady Stanton circa 1880 via]
Wednesday, January 11, 2012
Chief Judge of the Fifth Circuit Edith Jones, well known for her conservative affiliations, authored the panel opinion for the Fifth Circuit vacating a preliminary injunction of Texas HB 15, an Act “relating to informed consent to an abortion.” The district judge had issued a preliminary injunction against seven subsections for violating the First Amendment or Fourteenth Amendment's due process clause encompassing vagueness principles.
Judge Jones rejected the argument that the panel should defer ruling on the preliminary injunction given that the "district court has, notwithstanding this appeal, proceeded apace toward consideration of summary judgment" and therefore a "ruling on this interlocutory matter would become moot if the district court enters final judgment first." In declining to defer, Jones wrote that "this ruling will offer guidance to the district court, which is particularly important given our different view of the case." Should the district judge not hew to the Fifth Circuit's interpretation, a reversal is certain: Jones also made clear that for "the sake of judicial efficiency, any further appeals in this matter will be heard by this panel."
Texas HB 15 requires a sonogram, a display of the sonogram to the pregnant woman, make audible the heart auscultation of the fetus for the woman to hear, and explain to her the results of each procedure and to wait 24 hours, in most cases, between these disclosures and performing the abortion. A woman may only decline the explanation if her pregnancy is a result of a sexual assault or incest, she is a minor who has received a judicial bypass, or the fetus is abnormal.
The district judge found sections of HB 15 unconstitutional as compelled speech, but the Fifth Circuit's review of abortion cases led it to three conclusions:
First, informed consent laws that do not impose an undue burden on the woman’s right to have an abortion are permissible if they require truthful, nonmisleading, and relevant disclosures. Second, such laws are part of the state’s reasonable regulation of medical practice and do not fall under the rubric of compelling “ideological” speech that triggers First Amendment strict scrutiny. Third, “relevant” informed consent may entail not only the physical and psychological risks to the expectant mother facing this “difficult moral decision,” but also the state’s legitimate interests in “protecting the potential life within her.”
Applying these principles, the panel found that the sections of HB 15 "requiring disclosures and written consent are sustainable under Casey, are within the State’s power to regulate the practice of medicine, and therefore do not violate the First Amendment."
As to the three vagueness arguments under the Due Process Clause, Judge Jones found the first "novel" and "novelty suggests its weakness;" the second as not meriting the district judge's "skeptical interpretation" and that the "legislature had every right to maintain the integrity" of its statutory scheme; and the third, "at bottom, trivial."
Judge Patrick Higginbottom's brief concurring opinion is worth reading in full, both for what it says and for what it does not say. While it expresses some misgivings, it leaves little doubt of the result unless the case reaches the United States Supreme Court.
[image: Judge Edith Jones, via]
January 11, 2012 in Abortion, Cases and Case Materials, Courts and Judging, Due Process (Substantive), First Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Opinion Analysis, Privacy, Reproductive Rights, Sexuality, Speech | Permalink | Comments (0) | TrackBack (0)
Wednesday, December 21, 2011
Joe Arpaio, who styled himself as "America's toughest sheriff" in his 1997 book and the 2008 sequel is facing some tough constitutional times. As elected sheriff of Maricopa County, Arizona, Arpaio has long been controversial for his immigration and prison "get tough" stances.
The death yesterday of a Latino veteran who had been tased while in custody of the Maricopa County jails - - - informally called Arpaio's jails - - - might well result in a lawsuit.
A complaint filed yesterday on behalf of a woman who was shackled while she giving birth also addresses problems at the jails. In Mendiola-Martinez v. Arpaio, the plaintiff, a non-citizen, alleges she was imprisoned without bail for forgery when she was six months pregnant. During her labor, she was transferred to the medical center, gave birth by Cesarean section, was shackled before and after the surgery, was discharged while bleeding, shackled hands and feet, and walking through the hospital only in her hospital gown, and was taken back to jail. The complaint claims violations of the Eighth Amendment and Fourteenth Amendment regarding deliberate indifference to medical needs, cruel and unusual punishment, and a denial of Equal Protection under the Fifth, Fourteenth, and Fifteenth Amendments. The last claim alleges liability under Monell v. New York City Dept. of Social Svcs., 436 U.S. 658 (1978), including a failure to train, supervise, and discipline employees. All these claims are buoyed by disapproval of the shackling of women in labor. As a press release from Mendiola-Martinez's attorneys summarizes the law:
The American College of Obstetricians and Gynecologists and the American Medical Association oppose the shackling of women in labor or recuperating from delivery. In 2008, in Nelson v. Norris, the Eighth Circuit Court of Appeals found the shackling of women prisoners during labor to constitute cruel and unusual punishment, in violation of the Eighth Amendment. The Arizona Department of Corrections eliminated the practice of shackling women in labor or in postpartum recovery in 2003. In 2007, the United States Marshal’s Service eliminated the practice of shackling women in labor. In 2008, the Federal Bureau of Prisons eliminated the practice of shackling women in labor.
The immunity of Joe Arpaio will surely be raised by his attorneys. The extent to which Arpaio is immune was also a question before the en banc Ninth Circuit last week in the unrelated case of Lacey v. Arpaio, in which reporters for the Phoenix New Times claim a violation of their First Amendment rights based in part on their midnight arrests. The en banc hearing vacated the previous Ninth Circuit panel opinion, causing some consternation and confusion in the oral argument, available for viewing here. Here's a synposis of the problem, via the Phoenix New Times, and verifiable by the video:
24:50 -- Sheriff Arpaio's lawyer Eileen GilBride gets her turn. At about 27 minutes, she begins to be hit with questions and hypothetical situations about the possibility of a conspiracy by the county officials. This stays interesting for several minutes.
38:30 -- GilBride's blunder: She doesn't realize that New Times has alleged a conspiracy because she apparently isn't familiar enough with the case. And she forgot the document that contains the part about the conspiracy allegation.
"You come to court without briefs?" Kozinski chides, waving some papers in the air.
GilBride plunges ahead on her bad recollection until called on it by Kozinski, who informs her that the conspiracy allegation is in the suit's opening brief.
40:15 -- The dress-down: "Coming to court without the briefs is poor lawyering in itself, but not knowing what's in the briefs is even worse," Kozinski says.
This could be a useful bit for ConLawProfs mentoring or judging moot court teams.
In addition to litigation woes, Sheriff Arpaio and the Maricopa County Sheriff's Office (MCSO) is again the subject of negative Department of Justice findings. The December 15 letter concludes that the office has violated the First, Fourth, and Fourteenth Amendments to the United States Constitution, and has 60 days to take "clear steps" toward reaching an agreement with the Department of Civil Rights to remedy these violations, or there will be a civil suit seeking remedies. This letter states it is unrelated to a previous investigation that it specifically references: an investigation concluding that unconstitutional conditions existed at the jails with respect to (1) the use of excessive force against inmates and (2) deliberate indifference to inmates' serious medical needs. An agreement between the United States and MCSO was reached in October 1997. In this letter, police practices aimed at perceived immigrants are highlighted, with the letter concluding the practices " "are unconstitutional and are harming innocent Latinos."
The December 15 letter specifically focuses on Arpaio's role:
Sheriff Arpaio's own actions have helped nurture MCSO's culture of bias. For example, Sheriff Arpaio has frequently distributed racially charged constituent letters, annotating the letters with handwritten notes that appear to endorse the content of the letter, circulating the letters to others on the command staff, and/or saving the letters in his personal file. Many of these letters contain no meaningful descriptions of criminal activity-just crude, ethnically derogatory language about Latinos.
There is speculation that Arpaio will not run for relection as sheriff, as well as speculation he will run for the United States Senate.
[Photo of Joe Arpaio of Maricopa County, Arizona speaking at the Tea Party Patriots American Policy Summit in Phoenix, Arizona, by Gage Skidmore, via]
December 21, 2011 in Criminal Procedure, Current Affairs, Due Process (Substantive), Equal Protection, Federalism, First Amendment, Fourteenth Amendment, Fourth Amendment, Fundamental Rights, Gender, Medical Decisions, News, Oral Argument Analysis, Privacy, Race, Reproductive Rights, Speech, Teaching Tips | Permalink | Comments (1) | TrackBack (0)
Thursday, December 15, 2011
White House Proposes Rules on Domestic Workers to "Overrule" Long Island Health Care at Home v. Coke
Today, President Obama announced proposed rulemaking to revise the companionship and live-in worker regulations under the Fair Labor Standards Act "to more clearly define the tasks that may be performed by an exempt companion" and " to limit the companionship exemption to companions employed only by the family or household using the services. Third party employers, such as in-home care staffing agencies, could not claim the exemption, even if the employee is jointly employed by the third party and the family or household."
This latter provision regarding home health care workers employed by contractors would change the result of Long Island Care at Home v. Coke, decided by the Court in 2007. As the President's announcement notes, the issue of FLSA coverage
gained national attention when, in 2007, the Supreme Court ruled that Evelyn Coke, a home care worker who worked as much as 70 hours a week, was not entitled to overtime pay under existing regulations. Thus, any change to these rules requires action by Congress or the Department of Labor. There have been bills introduced in numerous Congresses to address this issue (including legislation that then-Senator Obama co-sponsored in the 110th Congress) but these bills have not moved forward. The Department of Labor is therefore now proposing regulations to change these rules and ensure that home care workers like Evelyn Coke will have basic wage protections.
Interestingly, Coke was a unanimous opinion that provoked little controversy when it was rendered.
I've elsewhere discussed Evelyn Coke in the context of legal theory regarding "servants." At the oral argument in Coke, which Evelyn Coke attended in a wheelchair, Justice Scalia joked regarding the meaning of "footmen" and Justice Brennan expressed concern for the families who needed home health care workers, but not for the workers themselves. Evelyn Coke died in 2009.
If the regulations are adopted, they would essentially "overrule" the Court's opinion, based as it was on regulatory and statutory construction. Thus, the issue is of general interest regarding separation of powers. The development is also of interest to ConLawProfs working on social change and poverty issues.
[image Library of Congress via]
Thursday, September 15, 2011
The name of the Florida Law is "An act relating to the privacy of firearm owners": it prohibits medical care providers from asking their patients about gun ownership and recording such information. The Act, passed in 2011 and signed by controversial Florida Governor Rick Scott, was touted as preventing doctors from asking questions about a constitutional right and therefore protecting that right.
Judge Cooke rejected the relevancy of the Second Amendment argument of the State of Florida: "The State has attempted to inveigle this Court to cast this matter as a Second Amendment case. Despite the State's insistence that the right to "keep arms" is the primary constitutional right at issue in this litigation, a plain reading of the statute reveals that this law in no way affects such rights."
Instead, Judge Cooke analyzed the law under the First Amendment. The statute, Judge Cooke observed, curtails medical practitioners' ability to inquire about whether patients own firearms and burdens their ability to deliver a firearm safety message to patients, under certain circumstances, and thus implicates practitioners' First Amendment rights of free speech. She also observed that the statute also implicates patients' freedom to receive information about firearm safety, which the First Amendment protects."
Judge Cooke analyzed the standing issues, quickly and accurately determining the plaintiffs had standing, rejecting the State's argument that the statute was merely horatory. She then discussed the First Amendment arguments, situated within the discussion of the likelihood of success on the merits in the preliminary injunction standard.
At the center of Cooke's analysis was the Court's decision last term in Sorrell v. IMS, in which the Court held unconstitutional a state statute seeking to regulate datamining of prescription information. However, Cooke clearly viewed the Florida statute as meriting strict scrutiny, holding that it directly targets speech based on its content. Judge Cooke also analogized to the "hate speech" case of R.A.V. v. City of St. Paul (1992), noting that Florida has prohibited "harassment and discrimination" by doctors only on the subject of firearm ownership.
As for satisfying the compelling interest prong of the strict scrutiny test, Judge Cooke wrote that the State "provides no case law indicating that preventing practitioners from harassing or discriminating against a patient based on firearm ownership constitutes a compelling government interest. Further, the State "fails to provide any specific evidence, beyond anecdotal information, that such "harassment" and "discrimination" is widespread or pervasive. It is unlikely that a concern for some patients who may be offended or uncomfortable by questions regarding firearm ownership could justify this law."
As for the "least restrictive means" prong, the Judge held that the State does not explain why the extant state and federal laws protecting patient privacy are insufficient to protect the privacy interests, and discussed various other suggestions by the health practitioners.
Judge Cooke explicitly refused to "speak to the wisdom of the legislation now before me," given her judicial role. And indeed, her opinion is a fine exemplar of judicial craft. At 22 pages, it is succinct yet sufficient, well-written and well-organized. Sure to be appealed, it is likely to be upheld, if the Eleventh Circuit Judges exercise good judgment.
[image: The Doctor's Visit by Jane Steen, circa 1714, via, with antique gun overlay].
Wednesday, August 31, 2011
Federal District Judge Sam Sparks has enjoined portions of HB 15, an Act “relating to informed consent to an abortion.” H.B. 15, 82nd Leg., Reg. Sess. (Tex. 2011) in his Order in Texas Medical Providers Performing Abortion Services v. Lakey.
Judge Sparks certified both a plaintiff class of medical providers and a defendant class of state actors, then proceeded to consider the plaintiffs' constitutional objections one by one. In his 55 page opinion, Judge Sparks had little complimentary to say about the lawyering on both sides; indeed, he leveled sharp criticisms.
Judge Sparks also made clear his disapproval of the intent behind the Act that amended Texas' already restrictive abortion laws, stating in footnote 2: "It is ironic that many of the same people who zealously defend the state’s righteous duty to become intimately involved in a woman’s decision to get an abortion are also positively scandalized at the government’s gross overreaching in the area of health care." Yet this footnote was in the context of his rejection of Plaintiffs' equal protection arguments, which he found meritless: "In short, if the Texas Legislature wishes to prioritize an ideological agenda over the health and safety of women, the Equal Protection Clause does not prevent it from doing so under these circumstances."
Criticizing the "litany" of vagueness challenges by Plaintiffs and agreeing with the "Defendants’ characterization that 'plaintiffs have chosen to throw everything at the wall and hope something sticks,' ” Judge Sparks nevertheless found that three provisions of the Act were unconstitutionally vague:
- First, the phrase “the physician who is to perform the abortion,” a phrase used in section 171.012(a)(4), is unclear as it relates to both multi-physician procedures and unplanned physician substitutions.
- Second, the conflict between sections 171.012(a)(4) and 171.0122 creates unconstitutionally impermissible uncertainty regarding what will, and what will not, subject a physician or a pregnant woman to liability.
- Finally, section 171.0123 is unconstitutionally vague regarding the scope of a physician’s duty to provide paternity and child support information to women who choose not to get abortions.
In finding these sections unconstitutionally vague, Judge Sparks emphasized that the lack of clarity was balanced against the serious penalities, so that neither physicians nor women should have to trust Defendants’ representations about the meaning of the provisions or otherwise guess.
Most seriously, Judge Sparks found several provisions of the Act constitutionally infirm under the compelled speech doctrine of the First Amendment. Sparks distinguished Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992), on which the Defendants largely relied, by noting that
the Pennsylvania statute in Casey simply required physicians to inform pregnant women about the risks of an abortion, the potential alternatives thereto, and the availability of additional informational materials related to those alternatives. By contrast, the Act under consideration here requires physicians to provide, in addition to those legitimate disclosures, additional information such as descriptions of “the presence of cardiac activity,” and “the presence of external members and internal organs” in the fetus or embryo. The Court does not think the disclosures required by the Act are particularly relevant to any compelling government interest, but whatever relevance they may have is greatly diminished by the disclosures already required under Texas law, which are more directly pertinent to those interests.
Judge Sparks also found troubling under compelled speech doctrine Section 171.012(a)(5) that requires a pregnant woman to complete and sign a specified election form that certifies her understanding of many of the Act’s various requirements. "The Court need not belabor the obvious by explaining why, for instance, women who are pregnant as a result of sexual assault or incest may not wish to certify that fact in writing, particularly if they are too afraid of retaliation to even report the matter to police. There is no sufficiently powerful government interest to justify compelling speech of this sort, nor is the Act sufficiently tailored to advance such an interest." Compounding this compelled speech was the section that required the patient's certification be placed in the woman's medical records and maintained by the facility for seven years - - - making it "difficult to avoid the troubling conclusion the Texas Legislature either wants to permanently brand women who choose to get abortions, or views these certifications as potential evidence to be used against physicians and women."
The Judge gave the severability clause of the Act effect, although he also enjoined "enforcement of any portion of the Act that conflicts with any of the above relief. This includes, but is not limited to, any penalty provision of the Act or any other statute that would impose a penalty for a person acting in compliance with this opinion."
"The Court is bound to respect legislative intent, but not at the expense of the Constitution," Judge Sparks concluded. Presumably, the preliminary injunction order will be appealed to the Fifth Circuit.
August 31, 2011 in Abortion, Cases and Case Materials, Due Process (Substantive), Equal Protection, First Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Opinion Analysis, Reproductive Rights, Speech | Permalink | Comments (3) | TrackBack (0)
Monday, August 1, 2011
In a Memorandum and Order today, Judge J. Thomas Marten of the United States District of Kansas, enjoined the enforcement of the Kansas defunding of Planned Parenthood statute, Section 107(l) of H.B. 2014, 84th Leg. (Kan. 2011). The judge enjoined the Kansas state defendants from any further enforcement or reliance on athe state statute and directed them to allocate all Title X funding for State Fiscal Year 2012 without reference to Section 107(l), and to provide continuation grant funding to the Planned Parenthood.
The Kansas statute, Section 107(l) of H.B. 2014, which took effect on July 1, 2011, defunds Planned Parenthood by providing that Kansas subgrants of Title X funds are "exclusively prioritized" to public entities, or secondly, to hospitals or federally-qualified health centers (FQHCs). As Planned Parenthood is a private entity which is neither a hospital nor a FQHC, it cannot successfully apply to Kansas to receive Title X funds.
Planned Parenthood argued that the statute violated the Supremacy Clause, in that in conflicted with federal law under Title X, and that the statute violated its First Amendment rights. The judge found there was a substantial likelihood of success on both of these claims.
First, however, the judge considered the state's argument that any relief was barred by the Eleventh Amendment. The state defendants argued that the requested relief therefore must include an order for the State to sign a contract with and pay money to Planned Parenthood, thereby violating the State’s sovereign immunity. Rejecting this argument, the court stated that it found "the injunctive relief sought by Planned Parenthood will not violate the Eleventh Amendment, as it seeks an order which would simply preclude the defendants from any decision allocating Title X funding on the basis of the allegedly unconstitutional Section 107(l).”
As to Planned Parenthood's pre-emption claim, the judge noted that there were several cases holding that a state's imposition of additional eligibility requirements under Title X are invalid as creating an unconstitutional conflict. The state statute did not simply render uncertain whether or not Planned Parenthood could receive state funding; it made it impossible for the organization to be funded.
Regarding Planned Parenthood's First Amendment claim, the judge distinguished it from unconstitutional conditions cases such as Rust v. Sullivan. Here, it was not that there were conditions attached to the funding, but that an organization was deemed ineligible based entirely on "participation in unrelated political conduct. This punitive aspect of the statute, arising from the plaintiff’s protected association with abortion related services, renders the statute unconstitutional." Thus, the judge focused on the First Amendment right of association.
Discussed in both of the Planned Parenthood claims was the legislative intent of the statute. Was the intent of the statute directed at Planned Parenthood? The judge soundly rejected the state defendants "suggestion that the statute was simply designed to prioritize funding to entities who have a higher percentage of poor clients" as a post-hoc, “litigation-spawned” attempt to find some alternative, benign rationale for the statute. The judge also considered the statement of the amendment's sponsor, Lance Kinzer, including on the floor of the House and on his facebook page:
Delighted to announce that the KS House just approved my floor amendment to deny Title X funding to Planned Parenthood for the balance of FY2011. The vote was 91-26, a great victory on the first pro-life floor vote
of the session.
Similarly, Governor Brownback, who signed the statute into law, was quoted by The Lawrence, Kansas Journal-World as hailing the Kinzer amendment on the grounds that it would “zero out funding of Planned Parenthood.” The judge found these were not isolated statements, but indicative of legislative intent both to "punish" Planned Parenthood in contravention of its free association First Amendment rights and to contradict the direct mandate of the federal law.
August 1, 2011 in Abortion, Association, Cases and Case Materials, Current Affairs, Eleventh Amendment, Family, Federalism, First Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Opinion Analysis, Preemption, Privacy | Permalink | Comments (0) | TrackBack (0)
Wednesday, June 29, 2011
[Update: Judge Carlos Murguia issued a preliminary injunction from the bench on July 1, 2011].
The controversial law passed by the Kansas legislature, SB36 (or more precisely, the House Substitute for SB 36) and signed by Governor Sam Brownback, imposes stringent new regulations on health care facilities that perform abortions.
Some would categorize it as a TRAP law - - - a Targeted Regulation of Abortion Providers law - - - but almost everyone agrees that the law is part of a sustained effort in Kansas to eliminate abortion services in the state. The law mandates specific licensing requirements, including miles from hospital, gender of physician or observer, and medication to be taken in the presence of physician. The law provided for Temporary Regulations to be issued.
A complaint has been filed on behalf of two physicians represented by the Center for Reproductive Rights in federal court. The complaint alleges the law and the regulations are unconstitutional as
- violating the patients' right of privacy because the law has the purpose and the effect of imposing an undue burden on Plaintiffs’ patients who seek abortions presently or in the future, in violation of the Fourteenth Amendment to the United States Constitution;
- violating Plaintiffs’ right to procedural due process under the Fourteenth Amendment to the United States Constitution because they deprive Plaintiffs of protected property and liberty interests without providing Plaintiffs with any form of pre-deprivation hearing, including any opportunity to comment on theregulations or request waivers;
- violating Plaintiffs’ right to due process of law under the Fourteenth Amendment to the United States Constitution by: depriving them of property (including lost income and future patients) and liberty (including their ability to practice their profession) without serving any compelling, substantial, or legitimate state interest;
- violating Plaintiffs’ right to due process of law under the Fourteenth Amendment to the United States Constitution by failing to give Plaintiffs fair notice of the requirements they must meet under the Temporary Regulations and encouraging arbitrary and discriminatory enforcement of those regulations;
- depriving Plaintiffs of equal protection of the laws, as guaranteed by the Fourteenth Amendment to the United States Constitution, by subjecting them to unique burdens not imposed on medical practices that provide comparable services, with no basis for the differential treatment other than animus.
The complaint seeks a preliminary injunction; no date has been set for the hearing.
Tuesday, November 23, 2010
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.