Constitutional Law Prof Blog

The Constitutional Issues Facing Sheriff Joe Arpaio

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.

RR
[Photo of Joe Arpaio of Maricopa County, Arizona speaking at the Tea Party Patriots American Policy Summit in Phoenix, Arizona, by Gage Skidmore, via]

North Carolina "Speech and Display" Ultrasound Requirement for Abortion Preliminarily Enjoined

United States District Judge Catherine Eagles has preliminarily enjoined N.C. Gen. Stat. § 90-21.85 on the basis of the First Amendment in a 19 page Opinion and Order  The statute was passed last summer, over the Governor's veto, and scheduled to become effective today.

The  statutory provision at issue, known as "speech and display," required:

• that a woman undergo an ultrasound at least four hours before an abortion
• that the physician or qualified technician working with the physician display the images produced from the ultrasound “so that the [patient] may view them,” 
• that the providers give “a simultaneous explanation of what the display is depicting, which shall include the presence, location, and dimensions of the unborn child within the uterus,” and
• that the providers give “a medical description of the images, which shall include the dimensions of the embryo or fetus and the presence of external members and internal organs, if present and viewable.”

Judge Eagles noted that it was undisputed that these provisions compelled content-based speech, that the State mandated regardless of the provider's medical opinion, whether or not the provider wanted to deliver the message, and whether or not the patient wanted to receive the message.

The State argued against the usual standard of strict scrutiny to evaluate such compelled content speech by claiming that the speech should be evaluated under an undue burden standard, or that the speech evaluated under the lesser standard for commercial speech.  Judge Eagles rejected both of these arguments because they had little, if any, support in precedent.

Judge Eagles thus found that the "speech-and-display requirements of the Act are subject to strict scrutiny under traditional and longstanding First Amendment principles" and that the State "must establish that the compelled speech required of the providers furthers a compelling state interest and that the requirements are narrowly tailored to achieve that interest."  She quickly added that the State had "not established either element."

Yet in her analysis, Judge Eagles tended to rely on the "narrowly tailored" prong of the strict scrutiny test.  As to the State's first asserted interest, "protecting abortion patients from psychological and emotional distress," Judge Eagles concluded that even if this was a compelling interest, the evidence in the record tended not to support a claim of protection, and indeed, tended to support a claim of the harm to "the psychological health of the very group the state purports to protect."  Similarly, as to the State's second asserted interest, "preventing women from being coerced into having abortions," Judge Eagles noted that the State did not articulate the relationship between the speech and display requirements and the interest, and that "none is immediately apparent." 

Judge Eagle did squarely address the "compelling" quality of the State's third and final interest - - - added at oral argument - - - of "promoting life and discouraging abortion," with contradictory language from Casey.  But again, Judge Eagles stressed the relationship prong: "In any event, even if the state has a compelling interest, the state has provided no evidence that alternatives more in proportion to the resulting burdens placed on speech would not suffice."

North Carolina is not alone is passing these restrictive and controversial mandates regarding ultrasounds, although as Judge Eagles' decision demonstrates, they are deeply problematical under First Amendment doctrine.

RR

Federal Judge Enjoins Portions of Texas Abortion Statute

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.

RR
[image: Exterior Sculpture from The Women's Museum of Texas, via]

Revisiting Flores-Villar: Collins and Kerber

As we contemplate the Court's last term, one of the more cryptic cases is Flores-Villar.  The Court's per curiam decision is one of those unsatisfying conclusions: "The judgment is affirmed by an equally divided Court. JUSTICE KAGAN took no part in the consideration or decision of this case."

The Ninth Circuit opinion had upheld the federal statutory scheme which requires a citizen father to have resided in the United States for at least five years after his fourteenth birthday to confer citizenship on his child, while a citizen mother had to reside in the United States for a continuous period of only one year prior to the child’s birth to pass on citizenship. In the case of Flores-Villar, INS denied a petition for citizenship on the basis that because the citizen father was 16 years old at the time of the child’s birth and it was “physically impossible” for the father to have the required physical presence after the age of 14 in order to comply with the statute.

In a recent speech, Justice Ginsburg alluded to Flores-Villar as one "only two of the 78 argued cases" last term that "ended in an even division" possible because of Kagan's recusal. (The other case, also resulting an affirmance of the Ninth Circuit, was Costco v. Omega, involving a copyright issue).

Kristin Collins and  Linda K. Kerber (pictured right and the author of the wonderful book, No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship), have an interesting discussion of Flores-Villar in Dissent Magazine.

Collins and Kerber observe:

In our own political moment, these words—citizenship, naturalization, alien—are highly charged and often misused. That they were so slippery in the Court’s deliberations in Flores-Villar may be a sign of how slippery they have become in public conversation. No one in the courtroom that day could have been unaware that the birthright citizenship clause of the Fourteenth Amendment—one of the key bulwarks of American liberty, enacted following the Civil War to make sure that southern states recognized African Americans as citizens—is being energetically attacked in legislatures throughout the nation. The attack is linked to suspicion of undocumented migrants, stereotypically visualized as pregnant women entering from Mexico to take advantage of the fact that their “anchor babies” would be citizens. In Flores-Villar, another gender-based stereotype survived: the unmarried father who plays no role in his child’s upbringing. But, in reality, neither of these stereotypical parents was present. Instead, we had an American father who brought his newborn son home to the United States to raise him there. The important differences between stereotypes and real people, and between immigration and citizenship, seem to have blurred for half of the Court.

They also predict that Flores-Villar is not the last the Court will see of this issue:

Three times in thirteen years the Supreme Court has heard arguments on the question of whether mothers and fathers may be treated differently in determining whether their children are American citizens. Given the equivocal result in Flores-Villar and the importance of what is at stake, there will no doubt be a fourth time. We must now wait patiently to see what a full Court—one on which Justice Kagan need not recuse herself—might do.

RR

Parental Fourteenth Amendment Right Overrides Claims of CoParent's Child Custody

Relying on the "constitutionally protected due process right" of parents to "make decisions concerning the care, custody, and control of their children" and the principle that the "parents’ right to custody of their children is paramount to any custodial interest in the children asserted by nonparents," citing Troxel v. Granville, 530 U.S. 57, 66 (2000), as well as Ohio cases, the Ohio Supreme Court grappled witha lesbian co-parenting issue in its opinion in In re Mullen, decided July 12. (h/t How Appealing).

In a closely divided 4-3 opinion, the majority nevertheless recognized that "a parent may voluntarily share with a nonparent the care, custody, and control of his or her child through a valid shared-custody agreement."  Yet proving the existence of the terms of such an agreement, even when there are written documents, seems execeedingly difficult.  There was contradictory evidence, but the court affirmed the lower courts' conclusions that there was no agreement for shared custody.  The court rejected the argument that “coparent," as used in documents, equaled “shared legal custody” and rejceted the claim "that because the parties’ statements and various documents used the “coparent” terminology, the parties therefore clearly agreed to “shared legal custody.”

“Coparenting” is not synonymous with an agreement by the biological parent to permanently relinquish sole custody in favor of shared legal parenting. “Coparenting” can have many different meanings and can refer to many different arrangements and degrees of permanency. The parties’ use ofthe term, together with other evidence, however, may indicate that the parties shared the same understanding of its meaning and may be considered by the trial court in weighing all the  evidence.

 

The dissent cited In re Custody of H.S.K.-H.  (Holtzman v.  Knott), 533 N.W.2d 419 (WI. 1995).  The court in Holtzman had articulated the influential four part functional coparenting test sufficient to overcome an absolutist version of the biological parent's Fourteenth Amendment right:  1) the legal parent fostered and consented to development of a parent-like relationship between the petitioner and the child; 2) the petitioner and child lived together in the same household; 3) the petitioner assumed the obligations of parenthood by taking responsibility for the child’s care, education, and development, including but not limited to financial contribution, and did not expect financial compensation; 4) the petitioner has been in a parent-like relationship a sufficient amount of time to have a bonded relationship.

In New York, the court in Alison D.  v.  Virginia M., 572 N.E.2d 27, 29 (N.Y. 1991), held that a co-parent is a non-legal “parent” and no “parent” with any claim to visitation or shared custody under state law: the biological parent's Fourteenth Amendment right is inviolate.  New York's same-sex marriage statute, which goes into effect later this month, will certainly have an effect on Alison D.

RR
[image: The Cholmondeley sisters and their swaddled babies, circa 1600, via]

Is The Roberts Court Really a Court? Eric Segall's Answer

In an article with the provocative title Is The Roberts Court Really a Court?, 40 Stetson Law Review 1 (2011), available on ssrn, Professor Eric Segall defines the judicial function as the resolution of "legal disputes by examining prior positive law, such as text and precedent, and then providing transparent explanations" for the decisions.  On this definotion, Segall concludes that the Roberts Court is not "really" a judicial body based upon an examination of three controversial cases:  Gonzales v. Carhart (Carhart II), 550 U.S. 124 (2007); District of Columbia v. Heller, 554 U.S. 570 (2008); and Citizens United v. Federal Election Commission, __ U.S. ___, 130 S. Ct. 876 (2010). 

Here's Segall's conclusion:

In Carhart II, the Roberts Court implicitly overturned an important decision without any discussion of stare decisis. In Heller, the Court created a brand new constitutional right, displacing centuries of caselaw, based on a controversial (at best) historical account that raised serious questions about how the Court actually reached its decision. And, in Citizens United, the Court reached out to decide an important and settled issue of constitutional law not raised by the parties, and it did so without any meaningful discussion of history or stare decisis concerns. In all three cases, the only persuasive descriptive account of why the Court veered from prior positive law is that the people on the Court changed (Justice Alito for Justice O’Connor). This is not judging according to the Rule of Law but judging according to the Rule of Five Justices, and it seriously calls into question whether the Roberts “Court” is, in fact, a court at all.

Segall's brief article provides execellent support for this conclusion, which is widely - - - although certainly not universally - - - shared. 

However, Segall also contends that the question of whether the Roberts Court is really a court "could just as easily be asked of the Rehnquist, Burger, and Warren Courts, as well as all of the other previous Supreme Courts."  Indeed, the conclusion that the Supreme Court is merely the "Rule of Five" is one that might even be more widely - - - although again not universally - - - shared than conclusions about any particular Court.  It is what can make Constitutional Law courses so challenging. 

Segall quickly retreats from the more comprehensive argument: "A comparative analysis of the various Supreme Courts’ reliance on prior law is well beyond the scope of this Article."   Yet he contends that regardless "of whether prior Courts can be accused of similar attitudes, the general indifference of the Roberts Court to these rule-of-law values is troubling."   With three controversial cases, Segall mounts an argument that many will find persuasive.

RR

Footnote of the Day: Disagreements over Tradition in Substantive Due Process

In Michael H. v. Gerald D., 491 U.S. 110 (1989), the Court upheld a statutory presumption that a man married to a woman was the father of any child to which she gave birth.  Justice Scalia wrote the plurality opinion, joined by Justices Rehnquist, O'Connor, and Kennedy.  However, only Justice Rehnquist joined the footnote in which Scalia argued that in order to determine whether a right is fundamental (and thus protected), courts should focus on the most specific level of tradition that can be identified.  In footnote 6, Scalia wrote:

Justice Brennan [dissenting] criticizes our methodology in using historical traditions specifically relating to the rights of an adulterous natural father, rather than inquiring more generally “whether parenthood is an interest that historically has received our attention and protection.” Post, at 2350. There seems to us no basis for the contention that this methodology is “nove[l],” post, at 2351. For example, in Bowers v. Hardwick, 478 U.S. 186 (1986), we noted that at the time the Fourteenth Amendment was ratified all but 5 of the 37 States had criminal sodomy laws, that all 50 of the States had such laws prior to 1961, and that 24 States and the District of Columbia continued to have them; and we concluded from that record, regarding that very specific aspect of sexual conduct, that “to claim that a right to engage in such conduct is ‘deeply rooted in this Nation's history and tradition’ or ‘implicit in the concept of ordered liberty’ is, at best, facetious.” Id., at 194. In Roe v. Wade, 410 U.S. 113 (1973), we spent about a fifth of our opinion negating the proposition that there was a longstanding tradition of laws proscribing abortion. Id. at 129-141.

We do not understand why, having rejected our focus upon the societal tradition regarding the natural father's rights vis-à-vis a child whose mother is married to another man, Justice Brennan would choose to focus instead upon “parenthood.” Why should the relevant category not be even more general-perhaps “family relationships”; or “personal relationships”; or even “emotional attachments in general”? Though the dissent has no basis for the level of generality it would select, we do: We refer to the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified. If, for example, there were no societal tradition, either way, regarding the rights of the natural father of a child adulterously conceived, we would have to consult, and (if possible) reason from, the traditions regarding natural fathers in general. But there is such a more specific tradition, and it unqualifiedly denies protection to such a parent.

One would think that Justice Brennan would appreciate the value of consulting the most specific tradition available, since he acknowledges that “[e]ven if we can agree ... that ‘family’ and ‘parenthood’ are part of the good life, it is absurd to assume that we can agree on the content of those terms and destructive to pretend that we do.” Post, at 2351. Because such general traditions provide such imprecise guidance, they permit judges to dictate rather than discern the society's views. The need, if arbitrary decisionmaking is to be avoided, to adopt the most specific tradition as the point of reference-or at least to announce, as Justice Brennan declines to do, some other criterion for selecting among the innumerable relevant traditions that could be consulted-is well enough exemplified by the fact that in the present case Justice Brennan's opinion and Justice O'Connor's opinion, post, p. 2346, which disapproves this footnote, both appeal to tradition, but on the basis of the tradition they select reach opposite results. Although assuredly having the virtue (if it be that) of leaving judges free to decide as they think best when the unanticipated occurs, a rule of law that binds neither by text nor by any particular, identifiable tradition is no rule of law at all.

 Finally, we may note that this analysis is not inconsistent with the result in cases such as Griswold v. Connecticut, 381 U.S. 479 (1965), or Eisenstadt v. Baird, 405 U.S. 438 (1972). None of those cases acknowledged a longstanding and still extant societal tradition withholding the very right pronounced to be the subject of a liberty interest and then rejected it. Justice Brennan must do so here. In this case, the existence of such a tradition, continuing to the present day, refutes any possible contention that the alleged right is “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934), or “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325 (1937).

For her part, Justice O'Connor, joined by Justice Kennedy, wrote:

I concur in all but footnote 6 of Justice Scalia's opinion. This footnote sketches a mode of historical analysis to be used when identifying liberty interests protected by the Due Process Clause of the Fourteenth Amendment that may be somewhat inconsistent with our past decisions in this area. See Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972). On occasion the Court has characterized relevant traditions protecting asserted rights at levels of generality that might not be “the most specific level” available. Ante, at 2344, n. 6. See Loving v. Virginia, 388 U.S. 1, 12 (1967); Turner v. Safley, 482 U.S. 78, 94 (1987); cf. United States v. Stanley, 483 U.S. 669, 709 (1987) (O'Connor, J., concurring in part and dissenting in part). I would not foreclose the unanticipated by the prior imposition of a single mode of historical analysis. Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting).

The proper role and analysis of "tradition" in substantive due process analysis continues to provoke disagreement more than two decades later.

RR
with J. Zak Ritchie
(and suggested by several ConLawProfs)

Abstinence Sex Education Scholarship: West Virginia Weekend

Abstinence sexual education is again being debated.  

Bristol Palin's planned appearance at the University of Washington in St. Louis on February 7  "to speak on abstinence as part of Washington University’s student Sexual Responsibility Week" has been canceled because "of the growing controversy among undergraduates over the decision to pay for her talk with student-generated funds."  Moreover, Senator Orrin Hatch (R-UT) successfully added an amendment to the Patient Protection and Affordable Care Act (eventually signed into law by the president) that restored a $50 million annual federal outlay to states (through 2014) for abstinence sex education.  The provisions appear at sections 2953 et seq., entitled "Personal responsibility education." 

John E. Taylor's lively and readable work, Family Values, Courts, and Culture War: The Case of Abstinence-Only Sex Education, 18 Wm. & Mary Bill Rts. J. 1053 (2010), seeks to chart a middle course between what he terms the "sexual right" and the "sexual left."  Taylor situates his analysis in the Establishment Clause, even as he rejects the formulation that the sex education debate is a clash between science and (religious) values.   His intriguing thought experiment involves dental education and requires readers to examine our own flossing habits!

In the article, Taylor, Associate Dean for Academic Affairs and Professor of Law at the West Virginia University College of Law, then turns to three further claims, noting that “the value-laden character of sex education generates interesting conclusions about the proper roles of the federal government, the courts, and the public schools in sex education policy.” Id. at 1095.  First, Taylor claims that the federal government “should not attempt to dictate how state and local governments approach sex education.” Id. at 1056.  Second, Taylor argues that “courts should be reluctant to use the Establishment Clause to settle sex education controversies."  Id.  Finally, Taylor draws a broader conclusion that “we should recognize some limits on the degree to which the public schools can be enlisted as soldiers in the culture wars.” Id.

In the end, Taylor

cast[s] doubt on whether the federal government or the courts have useful roles to play in resolving cultural struggles about sex education. . . . These government institutions should allow space for the value conflicts at stake in sex education to work themselves out in a decentralized fashion. The core of truth in constitutional critiques of abstinence only-until-marriage sex education is the recognition that it involves the use of the public schools to promote a highly contested set of cultural norms.  Legislators and school officials have duties to refrain from using the public schools as tools in the cultural struggle between red and blue family values. In practical terms, they should seek to forge policies that appeal to the “sexual middle” by stressing abstinence for school-age children while also providing basic information about contraception. These obligations have roots in constitutional values, but do not give rise to judicially enforceable constitutional rights.

Id. at 1095.

Despite Taylor's plea for the "sexual middle" to prevail, it seems likely that the value conflicts will continue and litigation will have a constitutional cast.

RR

with J. Zak Ritchie

 

Ireland's Abortion Criminalization at the European Court of Human Rights

In a lengthy decision today, the European Court of Human Rights (the Grand Chamber) held Ireland's criminalization of abortion contravened the European Convention on Human Rights as to one of the three women litigants.

Central to the decision in Case of A, B, and C v. Ireland, is Article 8 of the European Convention on Human Rights:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The challengers, A, B, and C, all residents of Ireland who traveled to the United Kingdom to obtain an abortion because of the criminalization of abortion in Ireland, argued that their rights under Article 8 were violated.

Each of the women has sympathetic circumstances.  Challenger A was impoverished, suffering from depression and recovering from alcoholism, has four children in foster care with whom she is struggling to be reunited.  Challenger B was single and feared an ectopic pregnancy.  Challenger C was in remission from cancer, and feared both a relapse and that certain treatments may have caused damage to the fetus.

The Court found Article 8 was contravened only with regard to Challenger C.  Ireland's violation was a failure to implement its existing constitutional right to an abortion when the pregnant woman's life was at stake.

The decision is thus a narrow one and certainly does not invalidate Ireland's abortion ban.

A good resource on the case is a Q&A from the BBC.  The Court's own press release is also excellent.

RR

Stevens on Abortion

Linda Greenhouse's Justice John Paul Stevens as Abortion-Rights Strategist is a terrific article in the latest issue of the UC Davis Law Review's excellent symposium on soon-to-be-retired Justice Stevens.  Greenhouse seeks "to give Justice Stevens his due as a major contributor to the contours of the right to abortion that exists today. Indeed, he has served as an indispensable strategist in the preservation of that right at its moment of greatest need."  She notes that her supporting evidence is "hiding in plain sight in the pages of the United States Reports."   But, for the "backstory to the cases in which Justice Stevens participated," she relies on the collected papers of Justice Harry A. Blackmun in the Library of Congress.  Greenhouse is certainly an expert in Blackmun's papers, using them extensively in her biography Becoming Justice Blackmun.  Here, her impressive reportorial skills and her incisive analytic skills combine to produce engaging scholarship.  

For example, Greenhouse discusses Webster v. Reproductive Health Services., 492 U.S. 490 (1989), considering the statutory preamble that “life of each human being begins at conception.” Chief Justice Rehnquist's plurality opinion said this statement was without operative force, simply a “value judgment” that the state could make without a need for judicial scrutiny:

Justice Stevens saw the matter otherwise: “I am persuaded that the absence of any secular purpose for the legislative declarations that life begins at conception and that conception occurs at fertilization makes the relevant portion of the preamble invalid under the Establishment Clause of the First Amendment to the Federal Constitution,” he wrote in his separate opinion, concurring in part and dissenting in part.
Stevens was “deeply concerned about the future of the right to abortion. He sent an acerbic response to Chief Justice Rehnquist upon receiving his draft majority opinion (which did not turn out to be a majority opinion because Justice O'Connor, adopting a more cautious stance, declined to join it). Chief Justice Rehnquist did not explicitly call for overruling Roe. Rather, he wanted to replace the strict scrutiny analysis of Roe with a new standard under which a regulation would be upheld if it “reasonably furthers the state's interest in protecting potential human life.”

“A tax on abortions, a requirement that the pregnant woman must be able to stand on her head for fifteen minutes before she can have an abortion, or a criminal prohibition would each satisfy your test,” Justice Stevens objected in a letter to Chief Justice Rehnquist, with copies to the other Justices. The letter ended: “As you know, I am not in favor of overruling Roe v. Wade, but if the deed is to be done I would rather see the Court give the case a decent burial instead of tossing it out the window of a fast-moving caboose.”

How Roe v. Wade will be tossed about in future years depends, in part, on the Justice who will take Stevens' place.  Greenhouse reminds us that Stevens was the first Justice to be appointed after Roe v. Wade was decided.  Stevens was also the last of his kind:  "the last Republican-appointed Supreme Court Justice who was not vetted in light of the party's official opposition to Roe" and the last Justice to join the Court "before abortion became an essentially partisan issue."

RR

Hospital Visitation and Decision-making

The Presidential Memorandum on Hospital Visitation seeks to insure that hospitals not deny visitation privileges on the basis of race, color, national origin, religion, sex, sexual orientation, gender identity, or disability, and guarantee that all patients' advance directives, such as durable powers of attorney and health care proxies, are respected.  Obama noted that these problems have "uniquely affected"  "gay and lesbian Americans." 

The President and federal government have the power to accomplish such objectives, at least for hospitals that participate in Medicare or Medicaid programs, as a condition for receiving such funding. 

Establishing conditions for receiving federal funds is nothing new, of course.  

Recall Rust v. Sullivan, 500 U.S. 173 (1991), in which the Court upheld restrictions on projects receiving federal funds from providing or discussing abortions. 

Also recall Rumsfeld v. Forum for Academic and Institutional Rights (FAIR) Inc., 547 U.S. 47 (2006), in which a unanimous Court upheld the Solomon Amendment that applied to universities, including law schools.  The law conditioned the receipt of federal funds such as grants and student aide, on allowing the military to recruit on campus notwithstanding any university or law school policies barring discrimination on the basis of sexual orientation by potential employers.

RR

Taxation and Privacy

"Surrogate birth mothers" often have income from the "service" they have provided, but must they report that income as income?   Or, as Bridget Crawford (pictured left) asks, does an income tax reporting requirement infringe upon a surrogate’s constitutional right to privacy, as envisioned by Griswold, Eisenstadt  and Lawrence?

Crawford's newest article, Taxation, Pregnancy, and Privacy, 16 William & Mary Journal of Women and the Law 327-368 (2010) (available on ssrn here), argues that surrogacy payments should be taxed, despite any constitutional (or other) claims of privacy.  She reaches the same conclusion about the sale of body parts, virginity (as auctioned to the highest bidder), and the proceeds from prostitution. 

It seems that substantive due process under the Fourteenth Amendment is no shield against the power of the Sixteenth Amendment.  Our most recent discussion of the Sixteenth Amendment, including efforts to repeal it is here.

RR

Gender, Equal Protection & Immigration SCOTUS grants cert in Flores-Villar: Analysis

The question is a narrow one: : whether the court's decision in Nguyen v. INS, 533 U.S. 53 (2001), permits gender discrimination that has no biological basis?

Recall that the Court in Nguyen upheld 8 U. S. C. § 1409 which imposed different requirements for a child’s acquisition of citizenship depending upon whether the citizen parent is the mother or the father. Writing for the Court, Kennedy found that the statutory gender-based distinction – applicable when the parents were unmarried, when only parent was a citizen, and when the child was born outside of the United States - - -  survived a constitutional challenge based on the “equal protection guarantee embedded in the Due Process Clause of the Fifth Amendment.”  The Majority found that the statute served two important governmental interests:  the importance of assuring that a biological parent-child relationship exists and the importance of assuring that the child and the citizen parent have a demonstrated opportunity or potential to develop the “real, everyday ties that provide a connection between child and citizen parent and, in turn, the United States.”   The Court in Nguyen relied on biological reasoning: women give birth and men may not even realize their paternity, concluding:

Given the 9-month interval between conception and birth, it is not always certain that a father will know that a child was conceived, nor is it always clear that even the mother will be sure of the father’s identity. This fact takes on particular significance in the case of a child born overseas and out of wedlock. One concern in this context has always been with young people, men for the most part, who are on duty with the Armed Forces in foreign countries.

The Court then provided statistics about the number of military men in foreign countries in 1969, the year Nguyen was born in Viet Nam.  Although, as the dissenting opinion noted, after Nguyen's parents split up, he lived with the family of his father’s new girlfriend and in 1975, before his sixth birthday, Nguyen came to the United States, where he was raised by his father. A DNA test showed a 99.98% probability of paternity and the father obtained an order of parentage from a state court. 

The Court's grant of certiorari  in Flores-Villar will involve a reconsideration of Nguyen.  Flores-Villar was born in Tijuana, Mexico 1974 to a non-citizen mother and a United States citizen father who, importantly,  was sixteen at the time.   His father and grandmother, also a citizen, brought Flores-Villar to the United States for medical treatment when he was two months old.  He grew up in San Diego with his grandmother and father, who acknowledged paternity with the Civil Registry in Mexico on June 2, 1985.  Apparently, Flores-Villar was not in touch with his mother, who remained in Mexico.

The gendered differential imposed by the statute at issue in Flores-Villar was the requirement that a citizen father must have resided in the United States for at least five years after his fourteenth birthday to confer citizenship on his child, while a citizen mother had to reside in the United States for a continuous period of only one year prior to the child’s birth to pass on citizenship.  Moreover, in the case of Flores-Villar, INS denied a petition for citizenship on the basis that because the citizen father was 16 years old at the time of the child’s birth, it was “physically impossible” for the father to have the required physical presence after the age of 14 in order to comply with the statute.

The Ninth Circuit upheld the statutory scheme, holding that avoiding statelessness, and assuring a link between an unwed citizen father, and this country, to a child born out of wedlock abroad who is to be a citizen, are important interests, and that the means chosen substantially further the objectives.  The Court stated: "Though the fit is not perfect, it is sufficiently persuasive in light of the virtually plenary power that Congress has to legislate in the area of immigration and citizenship.”

This “fit” will certainly be at issue before the United States Supreme Court.  Justice O’Connor’s dissenting opinion in Nguyen, joined by Souter, Ginsburg, and Breyer,  stressed the heightened scrutiny required by Virginia v. US (VMI) with its requirement of a closer fit between the “discriminatory” means chosen and gender stereotypes.   The dissenting Justices reasoned that the statute was “paradigmatic of a historic regime that left women with responsibility, and freed men from responsibility, for nonmarital children” and could easily be rendered sex-neutral.

In Flores-Villar, because the gender differential is a residency requirement - - - and not, as in Nguyen, a relationship with child requirement - - - the “fit” may not be sufficiently tight.  If the Court applies VMI, the question will be whether or not there is something unique about men that requires them to have a longer residency than women before men are truly “citizens.”   However, the Court will also certainly rely on the plenary power of Congress in the area of citizenship.  Balancing gender equality and citizenship will be the task for the Court - - - a task which the newest Justice will certainly undertake.

RR

 

Pending Executive Order on Abortion - Text

President Obama's "pending" EO on abortion, just released by The White House, provides:

ENSURING ENFORCEMENT AND IMPLEMENTATION OF ABORTION RESTRICTIONS IN THE PATIENT PROTECTION AND AFFORDABLE CARE ACT

 
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the “Patient Protection and Affordable Care Act” (approved March __, 2010), I hereby order as follows:
 
Section 1.  Policy. Following the recent passage of the Patient Protection and Affordable Care Act (“the Act”), it is necessary to establish an adequate enforcement mechanism to ensure that Federal funds are not used for abortion services (except in cases of rape or incest, or when the life of the woman would be endangered), consistent with a longstanding Federal statutory restriction that is commonly known as the Hyde Amendment.   The purpose of this Executive Order is to establish a comprehensive, government-wide set of policies and procedures to achieve this goal and to make certain that all relevant actors—Federal officials, state officials (including insurance regulators) and health care providers—are aware of their responsibilities, new and old.
 
The Act maintains current Hyde Amendment restrictions governing abortion policy and extends those restrictions to the newly-created health insurance exchanges.  Under the Act, longstanding Federal laws to protect conscience (such as the Church Amendment, 42 U.S.C. §300a-7, and the Weldon Amendment, Pub. L. No. 111-8, §508(d)(1) (2009)) remain intact and new protections prohibit discrimination against health care facilities and health care providers because of an unwillingness to provide, pay for, provide coverage of, or refer for abortions.
 
Numerous executive agencies have a role in ensuring that these restrictions are enforced, including the Department of Health and Human Services (HHS), the Office of Management and Budget (OMB), and the Office of Personnel Management (OPM). 
 
Section 2.  Strict Compliance with Prohibitions on Abortion Funding in Health Insurance Exchanges.  The Act specifically prohibits the use of tax credits and cost-sharing reduction payments to pay for abortion services (except in cases of rape or incest, or when the life of the woman would be endangered) in the health insurance exchanges that will be operational in 2014.  The Act also imposes strict payment and accounting requirements to ensure that Federal funds are not used for abortion services in exchange plans (except in cases of rape or incest, or when the life of the woman would be endangered) and requires state health insurance commissioners to ensure that exchange plan funds are segregated by insurance companies in accordance with generally accepted accounting principles, OMB funds management circulars, and accounting guidance provided by the Government Accountability Office. 
I hereby direct the Director of OMB and the Secretary of HHS to develop, within 180 days of the date of this Executive Order, a model set of segregation guidelines for state health insurance commissioners to use when determining whether exchange plans are complying with the Act’s segregation requirements, established in Section 1303 of the Act, for enrollees receiving Federal financial assistance.  The guidelines shall also offer technical information that states should follow to conduct independent regular audits of insurance companies that participate in the health insurance exchanges.  In developing these model guidelines, the Director of OMB and the Secretary of HHS shall consult with executive agencies and offices that have relevant expertise in accounting principles, including, but not limited to, the Department of the Treasury, and with the Government Accountability Office.  Upon completion of those model guidelines, the Secretary of HHS should promptly initiate a rulemaking to issue regulations, which will have the force of law, to interpret the Act’s segregation requirements, and shall provide guidance to state health insurance commissioners on how to comply with the model guidelines.
 
Section 3.  Community Health Center Program.  The Act establishes a new Community Health Center (CHC) Fund within HHS, which provides additional Federal funds for the community health center program.  Existing law prohibits these centers from using federal funds to provide abortion services (except in cases of rape or incest, or when the life of the woman would be endangered), as a result of both the Hyde Amendment and longstanding regulations containing the Hyde language.  Under the Act, the Hyde language shall apply to the authorization and appropriations of funds for Community Health Centers under section 10503 and all other relevant provisions.  I hereby direct the Secretary of HHS to ensure that program administrators and recipients of Federal funds are aware of and comply with the limitations on abortion services imposed on CHCs by existing law.  Such actions should include, but are not limited to, updating Grant Policy Statements that accompany CHC grants and issuing new interpretive rules.
 
Section 4.  General Provisions.  (a) Nothing in this Executive Order shall be construed to impair or otherwise affect:  (i) authority granted by law or presidential directive to an agency, or the head thereof; or (ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This Executive Order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This Executive Order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity against the United States, its departments, agencies, entities, officers, employees or agents, or any other person.

RR

Reproductive and Sexual Rights Conference: NYU February 12

A one-day Symposium gathering scholars and practitioners involved in reproductive and sexual rights will be held by the NYU Review of Law and Social Change on February 12, 2010.  

Registration and other information here.

 

RR

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

Abortion and Health Care as Rights: Saturday Evening Review

The volatile link between abortion and heath care reform is being hotly debated.  The Stupak Amendment to the proposed Affordable Health Care for America Act, which passed in the House of Representatives,  provides that "no funds authorized or appropriated by this Act . . . may be used to pay for any abortion or to cover the costs of any health plan that includes coverage of abortion . . . ." with some exceptions.  As the focus on health care reform moves to the Senate, the Stupak Amendment continues to be a prominent issue, with NY's junior Senator vowing to defeat it. 

In her article Reproductive Rights and Health Care Rights, forthcoming in Columbia Journal of Gender and Law, available on ssrn here, Professor Jessie Hill of Case Western University, compellingly argues that the "right to abortion is also a health care right."

She contends that the right to abortion

is  a right to access  a particular medical procedure and a right to use that medical procedure to protect one’s health from significant harm, even if that procedure terminates a potential life. In fact . . . reproductive rights, including the right to contraception, have long been conceived in this way. The understanding of reproductive rights as health care rights, which has long been present in reproductive rights jurisprudence, has been downplayed by both courts and reproductive rights advocates in favor of a rhetoric centered on personal autonomy, equality, and dignity.

She explicitly - - - and seemingly enthusiastically - - - theorizes the right to health as only a "negative right to health—that is, a right to make medical treatment decisions without government interference,"  even as she insists that this negative right to health can serve as an important guarantor of reproductive rights, at least for those who can afford them.  

She notes that both "South Africa and Canada have recognized in some form a “right to health” in ways that bear partly, though not exclusively, on the abortion right."  Discussing  the well-known Minister of Health v. Treatment Action Campaign (TAC), 2002 (10) BCLR 1033 (CC) (S. Afr.), regarding the availability of an HIV antiretroviral drug,  she concludes that "South Africa has explicitly guaranteed a constitutional right to health that is understood, at least in part, as a positive entitlement to health care, including reproductive health services."   She contrasts Chaoulli v. Québec, [2005] 1 S.C.R. 791 (Can.), and concludes that " Canada, on the other hand, has not gone so far as to recognize a positive constitutional right to health care."  Yet both of her discussions are illuminating, and do, as she argues, indicate what might be trends in judicial recognition of health as a right.

In her concluding sections, she trenchantly notes several of the benefits of theorizing abortion as a medical right rather than a privacy or equality right.   Perhaps optimistically, she argues that

The right to health, as a right to medical decision– making autonomy, is an inclusive concept that touches on areas that are of concern or likely to one day be of concern to most people. As people age, they begin to worry more about their future interactions with the medical establishment in the context of end–of–life decision making, access to appropriate palliative care, and possibly to experimental drugs; in particular, they may reasonably fear that intrusive government regulators will attempt to control those interactions. There may be substantial political support for the idea that the government should not dictate health care decisions, whether they are decisions about experimental treatments for cancer or reproductive health care.

She also astutely contends that

emphasizing the medical side of abortion rights may engage non–obstetrician physicians more in reproductive rights issues.  After all, many of the legal restrictions that apply to abortion providers would probably strike other physicians as outrageous if applied to them.

As the health care debate's obsession with abortion continues, this is an article worth reading.

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

Proposed Amendment to Florida Constitution May Hinder Access to Contraception

Last year, we wrote about Colorado's proposed "personhood" amendment.  The proposed Colorado law would have defined "personhood" as beginning at the moment of conception.   The measure ultimately failed.   Nevertheless, a similar initiative in Florida has garnered national attention, and a California group is also preparing a ballot iniative.

The proposed Florida amendment states that one is a person "from the beginning of the biological development of that human being."  According to the Tampa Bay Tribune, advocates for the proposed constitutional amendment have clarified that "the beginning of biological development" means the fertilization of an egg.  Opponents of the bill responded, "By their definition, anything that you might do to interfere with the implantation of a fertilized egg would be tantamount to murder."  The actions interefering with the egg would obviously include abortion, but less obviously, would include both emergency and regular methods of contraception. Proponents respond that in light of the science behind contraception - which generally prohibits fertilization - the bill might not affect contraception.  

Assuming the proposals garner the requisite number of signatures and are approved by voters, a host of intertwined scientific, political, and constitutional problems would arise.   If we assume that not all birth control prevents implantation of the fertilized ovum (and this is apparently the case), and that such an amendment would not criminalize such activities, the question remains:  would it be constitutional to permit only those forms of contraception that do not interfere with a fertilized ovum?  

Legally, it is likely that the proponents will lose even if some forms of contraception are permitted.  First, to truly outlaw any form of contraception based on the notion that life begins at conception, the Supreme Court would arguably have to do something that it has been reluctant to do thus far - decide when life begins.  If contraceptives are outlawed based on their interference with life, the Court would be hard-pressed to resolve the issue of which contraceptives are allowable and which are not without either implicitly or explicitly ruling that life begins at conception. The Court explained why it felt it could not decide that issue in Roe, and it subsequently dodged the issue entirely in Webster.  Determining the constitutionality of such laws would push the Court ever closer to weighing in on that issue.  However, if past is prolouge, indications are that the Court will again politely decline the invitation to do so.  

The second obstacle is Roe itself.  If Roe (and subsequently, Casey) would permit a non-viable fetus to be aborted, one could surmise that the Court would permit the destruction of a fertizlized egg.  If the greater includes the lesser, then surely a form of contraception which would prevent implementation of a fertilized egg would pass muster under our current scheme. Of course, this is likely the goal of these measures - to test Roe.  However, with the current formulation of the Court and Roe's status as a "super-precedent" of sorts, the sea change that it would take to abandon Roe seems unlikely to come in the near future. 

The final obstacles are Griswold and Eisenstadt.  Even if the Roe/Casey diad is discounted, the principles of reproductive freedom that are embodied in Griswold and Eisenstadt  would still remain.  Those cases stand strongly for the principle that all persons have the right to use contraceptives.  If read narrowly, one could say that the right is limited to "legal" contraceptives only, and thus the principle remains intact even if some contraceptives are banned.   But the larger idea in those cases - especially Griswold - is that there is a zone of privacy possessed by each individual that the government is not permitted to monitor or occupy.  Declaring that certain contraceptive methods are allowed while others are not does significant damage to this core principle by implicitly dictating what a person may or may not use in the privacy of her or his home or doctor's office.   Once the Court starts down that path, where will it end?  Will all forms of contraception be banned?  And if the Griswold privacy principle is undermined, will all of the rights built on that foundation - such as the right to live with one's family (Moore v. City of East Cleveland) or engage in private, consensual sexual conduct (Lawrence v. Texas) - fall next?  Perhaps they will, perhaps they will not, but those advocating the demise of Roe and Griswold would do well to examine the implications of such advocacy.

Of course, at this time these proposals are quite nascent, and any analysis of these proposals is a purely academic exercise.  However, it would not be surprising to see one or both of these proposals appear on a ballot in the not too distant future.  We will keep you informed of any ciritical developments.

NLS