Constitutional Law Prof Blog

Update: Pregancy Policy for Army, Comments by Major General Cucolo

UPDATE: For a comment posted by Task Force Marne PAO from Cucolo see comments to previous post  here.

The "anti-pregnancy" policy announced by Major General Cucolo (pictured) previously discussed here, has caused quite a stir.  

A Department Defense briefing, December 22, 2009, available from the Federal News Service (and on Lexis), is headlined:

Defense Department Conference Call With Major General Tony Cucolo, U.S. Army, Commander, 3rd Infantry Division Via Teleconference From Iraq;

Subject: Pregnancy Provision In His Recent General Order

Cucolo specifically addressed the matter of court-martial for pregnancy:

Now, I regret that the term court-martial was bandied about or mentioned by one of the earliest written reports on this.  I think what they did was, they probably read the general order number one and saw the words there.
This is -- this aspect of general order number one is a good order and discipline issue.  And I believe that I can handle violations of this aspect with lesser degrees of punishment.
So no, I do not -- I have not ever considered court-martial for this.  I do not ever see myself putting a soldier in jail for this.  I have had four soldiers.  I have had to deal with four cases.  In each case, they received a written reprimand, a letter of reprimand.
Now, I had two choices with that written letter of reprimand.  I could have put it in their official file, which may or may not have impacted their career.  But it would stay in their file, be seen at promotion boards, things like that.
Or I could put it in their local file, which is local disciplinary action, stays in the unit for a finite period of time and does not follow them when they're transferred.
In the four cases I had, they got local letters of reprimand. The obviously you say -- you know, I mean, I hold the men accountable too.
So there should have been four males punished.  There were three males punished.  And the reason there weren't four is because one female soldier did not want to say the name of the father, and I dropped it.  I did not pursue it.

Responding to criticisms that the policy treats men and women differently, Cucolo had this to say:

The men stay in combat, and the women are sent home because they're pregnant, but both receive the same punishment, unless there are other circumstances.  Both receive the same punishment.
. . . .

I am the one responsible and accountable for these 22,000 soldiers.  The National Organization for Women is not.  Critics are not.  I appreciate -- I will listen to critics, and they add thought. But they actually don't have to do anything.  I have to accomplish a very complex mission, very complex.

We are on the Kurd-Arab faultline up here.  We are -- we are moving units, relocating things.  It's a very dynamic atmosphere.  And I am most concerned about the health, welfare, morale, well-being and fighting ability of every single one of my soldiers.  And I'm going to do what it takes to maintain our strength and bring as many home as I can.

I owe that to the American -- I believe the American people expect me to do everything I can to keep every one of the soldiers -- that their money, their taxpayer dollars, trained and got ready for this -- in the fight.

RR

Don't Ask, Don't Get Pregnant?: Military Policy for Iraq Bans Pregnancy or Impregnanting

Stars and Stripes, The Independent News Source for the U.S. Military Community, is reporting that a policy which went into effect in early November, and just reported, restricts the reproductive rights of military and civilian personnel:

The rule governs all those serving under Maj. Gen. Anthony Cucolo III, who commands Multi-National Division-North, including Balad, Kirkuk, Tikrit, Mosul and Samarra. According to the order, it is “applicable to all United States military personnel, and to all civilians, serving with, employed by, or accompanying” the military in northern Iraq, with few exceptions.

Someone would violate the policy by “becoming pregnant, or impregnating a soldier, while assigned to the Task Force Marne (Area of Operations), resulting in the redeployment of the pregnant soldier,” according to the order.

The General Order, Number 1 applicable to Iraq (download here) already prohibits, in subsection q “sexual contact of any kind with Iraqi nationals, foreign nationals, or local nationals who are not members of collation forces,” and in subsection r “cohabitation, residing, or spending the night in living quarters of any kind with a member of the opposite sex,” although excepting “lawfully married spouses” and “situations of military exigency.”

The pregnancy policy seems to have no exceptions.

RR

Reproductive Rights Roundup

There are a number of reproductive rights issues in the news this week.  Here is a summary of the relevant stories.

ARIZONA

The ACLU is once again battling Joe Arpaio, the Sheriff of Maricopa County, Arizona, in court.  Previous litigation between the parties resulting in the termination of Arpaio's policy of requiring female inmates to secure a court order before accessing abortion care.  However, Arpaio has now begun charging the inmates for transportation to the abortion providers.  The ACLU maintains that abortion is the only transportion for which a fee is assessed.  Representatives of the Sheriff's Deparment responds that inmates are charged for transportation for all off-site medical services.

OKLAHOMA

As we have previously discussed on the blog, Oklahoma recently passed a law requiring women seeking abortions to disclose information including age, race, and the reason for the abortion.  The law was slated to go into effect on November 1.  However, litigation has resulted in a TRO which will suspend the law until a hearing can be held.  The hearing is currently scheduled for December 4, 2009.  Opponents of the law fear that upon meeting this additional hurdle of disclosing private information, women will be reluctant to seek abortion services.  More information on the litigation can be found here, here, and here.

NEVADA

A conservative group in Nevada is attempting to add a "personhood" amendment to ballots in that state in the 2010 and 2012 election cycles.  We have previously written about such amendment here and here.  Many of the same arguments apply.

We will be certain to update you on these stories as events develop.

NLS

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.

(at 1098).

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).

RR

Delhi High Court Invalidates India's Sodomy Law: Analysis

Section 377 of the India Penal Code criminalizing sodomy has been declared unconstitutional by the Delhi High Court. 

 In a lengthy 105 page opinion, available as download here, authored by Chief Justice Muralidhar, the Court reasoned that the "underlying theme of the Indian Constitution" is that of "inclusiveness":

The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognizing a role for everyone.  Those perceived by the majority as "deviants" pr "different" are not on that score excluded or ostracized. . . . In our view, Indian Constitutional law does not permit  the statutory criminal law to be held captive by the popular misconceptions of who LGBT are.  It cannot be forgotten that discrimination is anti-thesis of equality and that it is the recognition of equality which will foster the dignity of every individual.

Opinion at paragraphs 130-131.

The Court's examination of Indian constitutional law stresses the Indian Constitution as "first and foremost a social document," noting that the fundamental rights provisions are the "conscience of the Constitution." (paragraph 80).   The Court considered principles of dignity, privacy, and equality in the context of the Indian and other constitutions.  On the issue of whether the criminalization of sodomy furthered a governmental interest or was related to that interest,  the Court discussed specific cases from other nations including Lawrence v. Texas (US), Dudgeon v. UK, Toonen v. Australia, Norris v. Republic of Ireland, National Coalition for Gay and Lesbian Equality v. Minister of Justice (South Africa), and Vriend v. Alberta (Canada).

The Court also quoted Justice Michael Kirby's recent speech, Homosexual Law Reform: An Ongoing Blind Spot of the Commonwealth of Nations, for rationales supporting the conclusion that the anti-sodomy laws derived from the imperial rules of the British crown are "wrong."  (paragraph 85).

In terms of judicial power, the Court stressed that in a democratic society it is the role of the judiciary to protect fundamental rights (paragraph 125), but noted that Parliament could choose to amend the law to be consistent with the recommendation of the Law Commission (and presumably the Court's Judgment) (paragraph 132).  The Court clarified that the judgment was not retroactive.

The Times of India and the BBC have reports on the court's judgment and reactions to it, including videos.

RR

Ohio Supreme Court Abortion ruling

Yesterday, the Ohio Supreme Court ruled in an interesting case - Roe v. Planned Parenthood of Southwest Ohio.  The facts of this most intriguing case are these: Thirteen year-old Jane Roe and her 21-year old soccer ccoach John Haller began a sexual relationship resulting in Jane's pregnancy.  Haller encouraged Jane to terminate the pregnancy.  Upon arriving at the clinic, she was asked to fill out a consent form.  Per Haller's instructions, she listed her father's name and address correctly, but provided Haller's phone number.  The clinic called Haller to request parental consent.  When Jane's real parents discovered the chicanery, they called the police.  Haller was arrested for sexual battery.  Planned Parenthood was also investigated, but no criminal charges were filed.  Therefore, the Roes sued Planned Parenthood for violating various Ohio statutes, including, inter alia, failing to obtain parental consent, failing to obtain Jane's properly informed consent, and failing report to report suspected sexual abuse of a minor. 

The last count really is key to the importance of the case.  In discovery, the Roes sought to obtain not only Jane's medical records (which Planned Parenthood provided) but also the redacted medical records of all Planned Parenthood clients going back ten years.  The Roes asserted the information was necessary to prove that Planned Parenthood had engaged in a "pattern and practice" of ignoring possible sexual abuse.  Based on state precedents, the Ohio Supreme Court ruled that there is no such right to the information of third parties, even if redacted.

While the claims were primarily resolved on state law grounds, the ramifications for federal and state law are many.  The majority of states require some form of parental notification or consent.  But the facts of this case highlight just how tenuous those laws can be.  A brief search of the legal literature reveals but a few articles,* but there are enough articles and cases to prove that this is not the first time this has happened, and it will likely not be the last. 

So, what are the options on the consent issue?  The burden could be placed firmly on the doctor to be certain that the consent is legitimate.  However, the question is where does one draw the line in such situations.  Haller engaged in a very manipulative scheme.  It's not impossible to see some clinic being duped in the future on similar facts.  If a clinic truly does act in good faith, should it be penalized?  Moreover, at least one article argues that such a high burden might be an unconstitutional violation of Casey's "undue burden" standard.**  Another option is to follow the lead of states likeTexas and Louisiana which require parental consent forms to be notarized.  However, even this might not entirely eliminate the fraud issue.  At present, it seems the most important thing to do is to recognize the issue and close any legislative loopholes (hopefully without creating new ones).

The second issue is the privacy ruling.  The striking part of the ruling is that the parents were not entitled to even the redacted medical information.  While the case was decided on state law grounds, and tort law as opposed to constitutional law, the right to informational privacy - especially about health information - seems to be gaining traction in this nation (see HIPAA).  While the Court has yet to fully constitutionalize the right (see Whalen), in this context - where another right of privacy is implicated - there might be a stronger argument.*** 

I hope you find this case interesting in teaching these concepts. 

NLS

* Katheryn D. Katz, The Pregnant Child's Right To Self-Determination, 62 Alb. L. Rev. 1119 (1999).

** Pammela S. Quinn, Note, Preserving Minors' Rights After Casey: The “New Battlefield” of Negligence and Strict Liability Statutes, 49 Duke L.J. 297 (1999).

*** Ingrid Schüpbach Martin,  The Right To Stay In The Closet: Information Disclosures By Government Officials, 32 Seton Hall L. Rev. 407 (2002).

Legalization of Marijuana: A Matter of Substantive Due Process?

The San Francisco Chronicle editorialized about the California Governor's comments:

With a rhetorical shoulder-shrug, Gov. Arnold Schwarzenegger said it's time to consider legalizing marijuana. His thoughts were the loose-fit variety: "I think it's time for a debate" and free of any specifics. Still, the idea is worth a serious study to assess the advantages and risks of trying to tax, regulate and control the drug.

The Stanford Progressive has a brief piece in its May issue by Ross Raffin expressing disappointment in Obama's "public hesitation towards marijuana legalization," but contending:

At the heart of the marijuana debate is federalism, the separation of state and national governmental power. For most of America's history, marijuana was treated as a crop subject to state regulation. However, the national government justified regulating marijuana through a variety of means, mainly the Commerce Clause of the Constitution which gives Congress power to regulate inter-state trade.

Now two law professors, Eric Blumenson (Suffolk University Law School) and Eva Nilsen (Boston University Law School), have authored an essay, Liberty Lost: The Moral Case for Marijuana Law Reform, available on ssrn here, seeking to make a

civil libertarian case for repealing marijuana possession crimes. We put forward two arguments, corresponding to the two distinct liberty concerns implicated by laws that both ban marijuana use and punish its users. The first argument opposes criminalization, demonstrating that marijuana use does not constitute the kind of wrongful conduct that is a prerequisite for just punishment. The second argument demonstrates that even in the absence of criminal penalties, prohibition of marijuana use violates a moral right to exercise autonomy in personal matters – a corollary to Mill's harm principle in the utilitarian tradition, or, in the non-consequentialist tradition, to the respect for personhood that was well described by the Supreme Court in its recent Lawrence v. Texas opinion. Both arguments are based on principles of justice that are uncontroversial in other contexts.

Lawrence's famous "caveat" paragraph - - - in which the Court excluded possible extensions of its judgment to same-sex marriage, commercial sex, or controversies involving minors - - - did not mention marijuana (or other drug laws).   Yet the applicability of Lawrence's problematizing of a state interest in "morality" is easily applied by Blumenson and Nilsen to laws criminalizing marijuana.  As for a "right to smoke marijuana," they observe that "the Supreme Court‘s found no right to engage in sodomy in Bowers v. Hardwick but later [in Lawrence] reversed itself in finding a right to autonomy in intimate relations."   Likewise, they argue, the right to use marijuana invokes "the rights to control one‘s body, to freedom of thought, to privacy in one‘s home, and to the pursuit of happiness."

Policy, legal, constitutional, and philosophical arguments about the (de)criminalization of marijuana have been around for at least three decades.  But new or not, prospects of reform are being seriously discussed.

RR

More Abortion Cases in the News

Just last week, I wrote about a challenge to an Oklahoma abortion law.  Abortion remains in the forefront this week in two states.

Richmond Medical Center v. Herring - In 2003, the State of Virginia passed a law called the "Partial Birth Infanticide Act."  Professor Sherry Colb of Findlaw explains that at the time the law was passed, Steinberg v. Carhart had been decided, so "the prospects for such laws . . . were not good."  The law was enjoined, and the Fourth Circuit upheld the injunction.  Virginia filed a petition for certiorari.  However, after the Court's decision in Gonzalez v. Carhart, the Court directed the Fourth Circuit to reconsider the case. 

A panel heard the case in May 2008.  (Its decision can be found here.)  Two of the judges again held that the law was unconstitutional.  The primary reason was that the law placed "an undue burden on a woman's constitutional right to choose an abortion in the second trimester, because the Act effectively prohibits the standard D&E procedure.   The panel majority distinguished the federal statute at issue in Gonzales v. Carhart.  While both acts required anatomical landmarks, the Virginia statute had no scienter requirement.  Moreover, while the federal statute distinguished the act of delivery from the act causing fetal demise, the Virginia act did not.

Professor Colb reports that last week, the Fourth Circuit sat en banc to hear arguments in the case.  Professor Colb's analysis of the case is worth reading for many reasons.  First, she provides an excellent overview of the legal framework governing the abortion issue.  Second, she explains in great detail why later term abortions are necessary in some cases, and explains and rebuts some of the compelling arguments against the practice.  You may want to use the piece to supplement your discussion of either of the Carhart cases.

South Dakota Iniative 11 - Controversial proposals aimed at limiting - or even outlawing - abortion are not new in South Dakota.  However, an initiative on the ballot tomorrow states that a woman will only be able to obtain an abortion when rape or incest is alleged if she: identifies the rapist (or incestous party), submits to a DNA test (ostensibly to prove it is the rapist's child), and the procedure takes place in the first twenty weeks of the pregnancy.

There is so much that is troubling about this law, one hardly knows where to begin.  The law, as proposed, seems to be premised on the assumption that the rapist is the proverbial "stranger in  the bushes."  But what if the rapist is a family member, a friend, an ex-boyfriend, or even a husband?  Of course, in a perfect world, all sexual assaults would be reported, but that is not the case.  The Rape, Abuse, and Incest National Network states that only sixty percent of all sexual assaults are reported.    Moreover, according to RAINN, only six percent of rapists are ever incarcerated.  With statistics like these, it is difficult to understand why placing such an onerous requirement on an innocent party is necessary.  As the South Dakota section of the American College of Obstetricians and Gynegologists states in opposition to the ban:

Uncaring, unrealistic treatment of sexual assault victims.

This ban cruelly puts too many obstacles on women who are victims of rape or incest. It mandates a lengthy, cumbersome process that is unworkable, especially for sexual assault victims who choose to undergo a medical rather than a surgical abortion. In fact, it mandates that the medical community take on a law enforcement role by forcing doctors to report rape or incest to authorities – even against an adult patient’s wishes.

This brings me to my second point.  The proponents of the law seem to believe that this measure will result in the "demise of Roe v. Wade."  They may be overestimating their position.  As written, for the reasons stated above, not to mention the incredible affront to personal dignity that such a law would entail, I believe the Court would have little trouble applying Casey to find that this law is a "substantial obstacle" and an undue burden on a woman seeking an abortion in these circumstances.  The law requires identification of the rapist, as well as a DNA test.  What happens if the rapist flees and is never caught?  The law is unclear in this respect as well as others, as noted by its major opponent.  In light of the uncertainty, it seems that women are unreasonably and unduly prevented from exercising a right unless they acquiese to increasingly intrusive demands.  Moreover, what if a woman wants a medical abortion?  Would the law force her to wait until she has to undergo a surgicial procedure.  If so, unduly forcing a woman to wait without good medical reason would likely seem to violate Casey as well.   

While the proponents may be hoping that the Court will find there is no exception to the Roe rule for rape and incest, that is unlikely.  While Roe only mentions the health of the mother, a woman's psychological health would surely be important.  Moreover, even if the Court were to rule that states could create limitations on abortion even in cases of rape or incest, based on Casey's statements regarding the decision to have an abortion in difficult circumstances, such as domestic violence, the limitations here likely go too far.  The Supreme Court recognized the impact of violence on women's lives in Casey, and it is therefore likely that they will follow that path in any future challenges. In fact, the facts here are arguably stronger than those in Casey in that Casey pre-supposed consenual sex.  In the end, the proponents of the bill could be on precipitous legal footing.

I'll try to report back on this after the election results come in.

NLS

Colorado's "Personhood" Amendment

NPR reported yesterday that Colorado's ballot includes a measure that would amend the state constitution to define "personhood" as beginning at the moment of conception.  The ballot language is here.  (Colorado is the only one of several states where similar measures were proposed to gain enough signatures to put this on the ballot.)

If this should pass, the state constitutional amendment would raise serious federal constitutional questions, to say nothing of the many practical questions.  From NPR's report:

Jessica Berg, a professor of law and bioethics at Case Western Reserve University, says the amendment could lead to some bizarre situations--such as counting fertilized eggs in the state census and pregnant drivers using the HOV lanes.

The measure has received some surprise opposition.  The Colorado Catholic Conference opposes it, because it fears a backlash from the courts:  Courts would strike down the measure and, in the process, reaffirm current abortion laws.  Perhaps the Conference remembers the result of Colorado's last effort to curtail federal constitutional rights by state constitutional amendment: Romer v. Evans.

SDS