Saturday, July 21, 2012
Judge James E. Boasberg (D.D.C.) ruled in Belmont Abbey College v. Sebelius that a Catholic college lacked standing to sue HHS over its regulations under the Affordable Care Act that require health insurance plans to cover contraceptives. The problem: HHS said that it would reconsider the regs and look for other alternatives to provide contraceptive coverage, and so the case sounds more than a little like a pre-enforcement challenge. In other words, the government's working on it, and Belmont's suit will have to wait.
The ruling comes just two months after forty-three Catholic institutions filed 12 separate suits in a high-profile, coordinated move challenging the regulations. (Belmont filed its suit much earlier, in November 2011, arguing that the regs violated the First Amendment, the Administrative Procedures Act, and the Religious Freedom Restoration Act.) The ruling here will certainly influence the direction of those cases, even if it won't necessarily dictate the direction of those cases.
Current HHS regs, enacted under the ACA, require health insurance plans to provide contraceptive services starting August 1, 2012. But the regs exempt religious organizations who meet these four criteria:
(1) The inculcation of religious values is the purpose of the organization.
(2) The organization primarily employs persons who share the religious tenets of the organization.
(3) The organization serves primarily persons who share the religious tenets of the organization.
(4) The organization is a nonprofit organization as described in section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii) of the Internal Revenue Code.
In response to criticism, HHS added a "safe harbor" period through February 10, 2012, for "certain non-exempted, non-profit organizations with religious objections to covering contraceptive services." Moreover, HHS issued an Advance Notice of Proposed Rulemaking (ANPRM) on March 21, 2012, indicating that it would seek ways to "accommodat[e] non-exempt, non-profit religious organizations' religious objections to covering contraceptive services," while "assuring that participants and beneficiaries covered under such organizations' plans receive contraceptive coverage without cost sharing."
Belmont argued that it didn't qualify for an exemption, that the safe harbor provision only delayed the implementation of the contraceptive requirement, and that the new Rulemaking provided no certain exemption and, in any event, would lead to a similar harm.
Judge Boasberg agreed that Belmont didn't qualify for an exemption (as did the government) and that the safe harbor provision only delayed the harm (and therefore didn't deny Belmont standing). But he concluded that HHS's ANPRM provided enough certainty that HHS was seriously examining a solution to the problem so as to deny Belmont standing. From the ruling:
Plaintiff argues that non-binding promises of future rulemaking cannot defeat standing. Contrary to the Plaintiff's assertions, however, Defendants have done more than simply "open another docket to propose addressing related matters." They have published their plan to amend the rule to address the exact concerns Plaintiff raises in this action and have stated clearly and repeatedly in the Federal Register that they intend to finalize the changes before the enforcement safe harbor ends. Not only that, but Defendants have already initiated the amendment process by issuing an ANPRM. The government, moreover, has done nothing to suggest that it might abandon its efforts to modify the rule--indeed, it has steadily pursued that course--and it is entitled to a presumption that it acts in good faith.
Op. at 15.
Judge Boasberg also ruled that the case was not ripe, for similar reasons.
July 21, 2012 in Cases and Case Materials, Courts and Judging, First Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Religion, Reproductive Rights, Standing | Permalink | Comments (0) | TrackBack (0)
Wednesday, May 16, 2012
In a relatively brief and unanimous opinion in Hamilton v. Southland Christian School, the Eleventh Circuit reversed the district court's grant of a summary judgment in favor of the school.
"A woman of childbearing age was hired as a teacher at a small Christian school. Then she got pregnant, married, and fired. In that order. Then she filed a lawsuit. She lost on summary judgment. This is her appeal."
The next paragraphs, one would assume, would be devoted to discussing the ministerial exception. And they are. Except the discussion is devoted to the procedural status of the ministerial exception in this litigation. While the school did raise it as an affirmative defense, the district judge rejected it, but granted summary judgment on the ground that the teacher had not established a prima facie case that her pregnancy was the reason the school terminated her. On appeal, the school did not raise the ministerial exception defense as an alternativeground for affirmance; its "brief mentions the ministerial exception only once, and that is when describing the district court’s rulings: 'The Court determined that the ministerial exception did not apply in this case.' ” The school's attorneys did file a notice of Supplemental Authority several months later, citing Hosanna-Tabor Evangelical Lutheran Church & Sch. v. Equal Emp’t Opportunity Comm’n. But that, the Eleventh Circuit held, was not sufficient.
The court then found there remained material issues of disputed fact as to the reason the teacher was fired. The remand, for proceedings consistent with the opinion, presuambly leaves the "ministerial exception" door open for the district court.
[image: Woodcut from The Scarlet Letter, 1878, via]
Saturday, May 12, 2012
Saturday Evening Review: Julie Nice on the "Responsible Procreation" Argument in Same-Sex Marriage Constitutional Litigation
With President Obama making news this week proclaiming his personal support for same-sex marriage, after an extensive "evolution," it's a good time to take a look at scholarship on the constitutional arguments.
Obama specifically mentioned same-sex couples "raising kids together." But one of the more odd - - - at least on first review - - - arguments in support of state marriage being limited to opposite sex couples is that this is acceptable, but that opposite sex couples need more "encouragement" to marry. This is the so-called "responsible procreation" state interest. Perhaps it reached its most interesting articulation in the pronouncement of New York's highest court, an opinion subject to a skewering analysis - - - and fun read - - - in John Mitchell's Chatting with the Lady in the Grocery Store about Hernandez V. Robles, the New York Same-Sex Marriage Case, available on ssrn.
ConLawProf Julie Nice (pictured below) has now elaborated this odd notion in The Descent of Responsible Procreation: A Genealogy of an Ideology, forthcoming in Loyola Los Angeles Law Review, draft available on ssrn. With her usual scholarly integrity matched by innovative analysis, Nice "traces the genealogy of responsible procreation."
She notes that same sex constitutional litigation has changed remarkably during the past several decades, with the amount of such litigation increasing substantially. With state justifications eroding, especially since blatant discrimination has become more disfavored, defenders of state bans on same-sex marriage have primarily leaned on the responsible-procreation defense, which surmises that same-sex couples already procreate responsibly and that the rights and responsibilities of marriage should be limited to furthering the goal of encouraging more responsible procreation by heterosexuals.
Nice explains that the justification is rooted in religion. It appeared as a justification of the federal Defense of Marriage Act. State courts split on its constitutionality: the high court of Massachusetts found it to be “unpersuasive” while the New York court used it as a justification for a rejection of constitutional challenge to same-sex-marriage bans.
While the saga of Perry v. Brown is far from over, Nice predicts that the "responsible procreation" state interest is "on the wane." She ultimately argues the emerging trend is that both executive officials and courts are rejecting the "responsible procreation" rationale and concluding that the same-sex-marriage ban is drawn, not to further a proper legislative end but to make same-sex couples and their children unequal to everyone else. She contents that even conservative commentators defending the same-sex-marriage ban openly concede that it is drawn to disadvantage same-sex couples and to favor opposite-sex couples.
Thus, she concludes regardless of which level of scrutiny is applied, contemporary constitutional jurisprudence is quite clear that such an invidious ideology is not a legitimate basis for law.
An article worth reading that not only puts the same-sex marriage constitutional issues into perspective but also provides an excellent primer on equal protection and constitutional litigation.
May 12, 2012 in Equal Protection, Establishment Clause, Family, Federalism, Fourteenth Amendment, Religion, Reproductive Rights, Scholarship, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)
Tuesday, May 1, 2012
The Fifth Circuit, in a brief order from Judge Jerry Smith, has issued a stay of Judge Yeakel's preliminary injunction in Planned Parenthood Ass'n of Hidalgo Cty. v. Seuhs.
As we discussed yesterday, Judge Lee Yeakel issued a preliminary injunction against a 2012 Texas regulation that expanded the Texas Women's Health Program prohibition of funding for health care not merely to abortions, but to any organization affiliated with abortion.
Monday, April 30, 2012
In an opinion today in Planned Parenthood Ass'n of Hidalgo Cty. v. Seuhs, Judge Lee Yeakel issued a preliminary injunction against a 2012 Texas regulation that expanded the Texas Women's Health Program prohibition of funding for health care not merely to abortions, but to any organization affiliated with abortion. Before moving to the preliminary injunction standard, Judge Yeakel quickly rejected the state's Eleventh Amendment immunity argument.
The bulk of Judge Yeakel's 25 page opinion is devoted to the unconstitutional conditions argument. He concluded that the "affiliate" regulation was so broad that it infringed on plaintiffs First Amendment speech and associational rights. Any state interest in "respect for fetal life after viability" was not adequately served by the extensive prohibition. The argument that state funding "frees up" other money to provide abortions "extends too far."
The judge also found the equal protection argument had merit. By exempting hospitals, but applying the regulation to the 49 health centers, the regulation created a classification. The classification itself only implicated rational basis scrutiny, but it did infringe upon a fundamental right, thereby meriting strict scrutiny. In a very brief analysis, the judge expressed doubts whether the Texas regulation could satisfy even the lowest standard.
Finding the other factors for granting a preliminary injunction also weighed in favor of the plaintiffs, the judge enjoined the regulation and set a hearing for May 18.
[image: from PLanned Parenthood Ass'n of Hidalgo County via]
Sunday, March 25, 2012
The opinion in ACLU of Mass. v. Sebelius, by District Judge Richard Stearns of the District of Massachusetts grants summary judgment on behalf of the ACLU in the controversial Catholic Bishops funding case under the TVPA.
At issue is implementation of the TVPA, the Trafficking Victims Protection Act, 22 USC §7101-7112 (2000). Congress appropriated funds and directed the Secretary of HHS to “expand benefits and services to victims of severe forms of trafficking in persons in the United States.” HHS first accomplished this by making grants to nonprofit organizations that worked with trafficking victims, but in 2005 decided it would delegate this task to an independent contractor to administer the funds.
Only two organizations bid for the role of “independent contractor,” both of which are religious organizations. The winner of the independent contractor bid was United States Conference of Catholic Bishops (USCCB). This was despite the USCCB’s frank statement in its proposal that “as we are a Catholic organization, we need to ensure that our victim services are not used to refer or fund activities that would be contrary to our moral convictions and religious beliefs,” and therefore “subcontractors could not provide or refer for abortion services or contraceptive materials for our clients pursuant to this contract.” This statement did raise concerns, and although HHS asked whether USCCB could abide by a “don’t ask, don’t tell” policy with regard to the exception, the USCCB essentially rejected that possibility. It stated it would require an assurance form all subcontractors regarding compliance.
Nevertheless, HHS awarded USCCB the contract, and it was renewed four times, for a total of almost $15 million.
The ACLU sued, arguing that the USCCB contract violated the Establishment Clause, because the government was allowing the USCCB to impose religious restrictions on taxpayer funds. The present secretary of HHS, Sebelius, contended that the ACLU lacked standing, that the case was moot, and that on the merits, there was no Establishment Clause violation.
On standing, the judge rejected the government’s argument that standing was foreclosed by Arizona Christian School Tuition Organization v. Winn (2011), noting that this case involves an expenditure, and not a tax credit as in Winn.
On the merits, the judge applied the well-known “Lemon test:” First, the statute must have a secular legislative purpose; Second, its principal or primary effect must be one that neither advances nor inhibits religion; Finally, the statute must not foster “an excessive government entanglement with religion.” The judge also discussed the endorsement test, rejecting the argument that the endorsement inquiry is not relevant to funding, but only applicable in cases of religious displays. The judge noted that the reproductive limits in the contracting scheme were absolutely linked to religion: “there is no reason to question the sincerity of the USCCB’s position that the restriction it imposed on its subcontractors on the use of TVPA funds for abortion and contraceptive services was motivated by deeply held religious beliefs.” Thus, the government’s delegation of authority to USCCB as an independent contractor provides a significant benefit to religion.
Judge Stearns explicitly addressed the possibility that his opinion would be controversial, especially in light of rhetoric regarding hostility to religion:
“I have no present allegiance to either side of the debate, only a firm conviction that the Establishment Clause is a vital part of the constitutional arrangement envisioned by the Framers, and perhaps a reason we have not been as riven by sectarian disputes as have many other societies.” That conviction remains unshaken. To insist that the government respect the separation of church and state is not to discriminate against religion; indeed, it promotes a respect for religion by refusing to single out any creed for official favor at the expense of all others.
The case is sure to be appealed.
Wednesday, January 11, 2012
Chief Judge of the Fifth Circuit Edith Jones, well known for her conservative affiliations, authored the panel opinion for the Fifth Circuit vacating a preliminary injunction of Texas HB 15, an Act “relating to informed consent to an abortion.” The district judge had issued a preliminary injunction against seven subsections for violating the First Amendment or Fourteenth Amendment's due process clause encompassing vagueness principles.
Judge Jones rejected the argument that the panel should defer ruling on the preliminary injunction given that the "district court has, notwithstanding this appeal, proceeded apace toward consideration of summary judgment" and therefore a "ruling on this interlocutory matter would become moot if the district court enters final judgment first." In declining to defer, Jones wrote that "this ruling will offer guidance to the district court, which is particularly important given our different view of the case." Should the district judge not hew to the Fifth Circuit's interpretation, a reversal is certain: Jones also made clear that for "the sake of judicial efficiency, any further appeals in this matter will be heard by this panel."
Texas HB 15 requires a sonogram, a display of the sonogram to the pregnant woman, make audible the heart auscultation of the fetus for the woman to hear, and explain to her the results of each procedure and to wait 24 hours, in most cases, between these disclosures and performing the abortion. A woman may only decline the explanation if her pregnancy is a result of a sexual assault or incest, she is a minor who has received a judicial bypass, or the fetus is abnormal.
The district judge found sections of HB 15 unconstitutional as compelled speech, but the Fifth Circuit's review of abortion cases led it to three conclusions:
First, informed consent laws that do not impose an undue burden on the woman’s right to have an abortion are permissible if they require truthful, nonmisleading, and relevant disclosures. Second, such laws are part of the state’s reasonable regulation of medical practice and do not fall under the rubric of compelling “ideological” speech that triggers First Amendment strict scrutiny. Third, “relevant” informed consent may entail not only the physical and psychological risks to the expectant mother facing this “difficult moral decision,” but also the state’s legitimate interests in “protecting the potential life within her.”
Applying these principles, the panel found that the sections of HB 15 "requiring disclosures and written consent are sustainable under Casey, are within the State’s power to regulate the practice of medicine, and therefore do not violate the First Amendment."
As to the three vagueness arguments under the Due Process Clause, Judge Jones found the first "novel" and "novelty suggests its weakness;" the second as not meriting the district judge's "skeptical interpretation" and that the "legislature had every right to maintain the integrity" of its statutory scheme; and the third, "at bottom, trivial."
Judge Patrick Higginbottom's brief concurring opinion is worth reading in full, both for what it says and for what it does not say. While it expresses some misgivings, it leaves little doubt of the result unless the case reaches the United States Supreme Court.
[image: Judge Edith Jones, via]
January 11, 2012 in Abortion, Cases and Case Materials, Courts and Judging, Due Process (Substantive), First Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Opinion Analysis, Privacy, Reproductive Rights, Sexuality, Speech | Permalink | Comments (0) | TrackBack (0)
Wednesday, December 21, 2011
Joe Arpaio, who styled himself as "America's toughest sheriff" in his 1997 book and the 2008 sequel is facing some tough constitutional times. As elected sheriff of Maricopa County, Arizona, Arpaio has long been controversial for his immigration and prison "get tough" stances.
The death yesterday of a Latino veteran who had been tased while in custody of the Maricopa County jails - - - informally called Arpaio's jails - - - might well result in a lawsuit.
A complaint filed yesterday on behalf of a woman who was shackled while she giving birth also addresses problems at the jails. In Mendiola-Martinez v. Arpaio, the plaintiff, a non-citizen, alleges she was imprisoned without bail for forgery when she was six months pregnant. During her labor, she was transferred to the medical center, gave birth by Cesarean section, was shackled before and after the surgery, was discharged while bleeding, shackled hands and feet, and walking through the hospital only in her hospital gown, and was taken back to jail. The complaint claims violations of the Eighth Amendment and Fourteenth Amendment regarding deliberate indifference to medical needs, cruel and unusual punishment, and a denial of Equal Protection under the Fifth, Fourteenth, and Fifteenth Amendments. The last claim alleges liability under Monell v. New York City Dept. of Social Svcs., 436 U.S. 658 (1978), including a failure to train, supervise, and discipline employees. All these claims are buoyed by disapproval of the shackling of women in labor. As a press release from Mendiola-Martinez's attorneys summarizes the law:
The American College of Obstetricians and Gynecologists and the American Medical Association oppose the shackling of women in labor or recuperating from delivery. In 2008, in Nelson v. Norris, the Eighth Circuit Court of Appeals found the shackling of women prisoners during labor to constitute cruel and unusual punishment, in violation of the Eighth Amendment. The Arizona Department of Corrections eliminated the practice of shackling women in labor or in postpartum recovery in 2003. In 2007, the United States Marshal’s Service eliminated the practice of shackling women in labor. In 2008, the Federal Bureau of Prisons eliminated the practice of shackling women in labor.
The immunity of Joe Arpaio will surely be raised by his attorneys. The extent to which Arpaio is immune was also a question before the en banc Ninth Circuit last week in the unrelated case of Lacey v. Arpaio, in which reporters for the Phoenix New Times claim a violation of their First Amendment rights based in part on their midnight arrests. The en banc hearing vacated the previous Ninth Circuit panel opinion, causing some consternation and confusion in the oral argument, available for viewing here. Here's a synposis of the problem, via the Phoenix New Times, and verifiable by the video:
24:50 -- Sheriff Arpaio's lawyer Eileen GilBride gets her turn. At about 27 minutes, she begins to be hit with questions and hypothetical situations about the possibility of a conspiracy by the county officials. This stays interesting for several minutes.
38:30 -- GilBride's blunder: She doesn't realize that New Times has alleged a conspiracy because she apparently isn't familiar enough with the case. And she forgot the document that contains the part about the conspiracy allegation.
"You come to court without briefs?" Kozinski chides, waving some papers in the air.
GilBride plunges ahead on her bad recollection until called on it by Kozinski, who informs her that the conspiracy allegation is in the suit's opening brief.
40:15 -- The dress-down: "Coming to court without the briefs is poor lawyering in itself, but not knowing what's in the briefs is even worse," Kozinski says.
This could be a useful bit for ConLawProfs mentoring or judging moot court teams.
In addition to litigation woes, Sheriff Arpaio and the Maricopa County Sheriff's Office (MCSO) is again the subject of negative Department of Justice findings. The December 15 letter concludes that the office has violated the First, Fourth, and Fourteenth Amendments to the United States Constitution, and has 60 days to take "clear steps" toward reaching an agreement with the Department of Civil Rights to remedy these violations, or there will be a civil suit seeking remedies. This letter states it is unrelated to a previous investigation that it specifically references: an investigation concluding that unconstitutional conditions existed at the jails with respect to (1) the use of excessive force against inmates and (2) deliberate indifference to inmates' serious medical needs. An agreement between the United States and MCSO was reached in October 1997. In this letter, police practices aimed at perceived immigrants are highlighted, with the letter concluding the practices " "are unconstitutional and are harming innocent Latinos."
The December 15 letter specifically focuses on Arpaio's role:
Sheriff Arpaio's own actions have helped nurture MCSO's culture of bias. For example, Sheriff Arpaio has frequently distributed racially charged constituent letters, annotating the letters with handwritten notes that appear to endorse the content of the letter, circulating the letters to others on the command staff, and/or saving the letters in his personal file. Many of these letters contain no meaningful descriptions of criminal activity-just crude, ethnically derogatory language about Latinos.
There is speculation that Arpaio will not run for relection as sheriff, as well as speculation he will run for the United States Senate.
[Photo of Joe Arpaio of Maricopa County, Arizona speaking at the Tea Party Patriots American Policy Summit in Phoenix, Arizona, by Gage Skidmore, via]
December 21, 2011 in Criminal Procedure, Current Affairs, Due Process (Substantive), Equal Protection, Federalism, First Amendment, Fourteenth Amendment, Fourth Amendment, Fundamental Rights, Gender, Medical Decisions, News, Oral Argument Analysis, Privacy, Race, Reproductive Rights, Speech, Teaching Tips | Permalink | Comments (1) | TrackBack (0)
Wednesday, October 26, 2011
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.
Wednesday, August 31, 2011
Federal District Judge Sam Sparks has enjoined portions of HB 15, an Act “relating to informed consent to an abortion.” H.B. 15, 82nd Leg., Reg. Sess. (Tex. 2011) in his Order in Texas Medical Providers Performing Abortion Services v. Lakey.
Judge Sparks certified both a plaintiff class of medical providers and a defendant class of state actors, then proceeded to consider the plaintiffs' constitutional objections one by one. In his 55 page opinion, Judge Sparks had little complimentary to say about the lawyering on both sides; indeed, he leveled sharp criticisms.
Judge Sparks also made clear his disapproval of the intent behind the Act that amended Texas' already restrictive abortion laws, stating in footnote 2: "It is ironic that many of the same people who zealously defend the state’s righteous duty to become intimately involved in a woman’s decision to get an abortion are also positively scandalized at the government’s gross overreaching in the area of health care." Yet this footnote was in the context of his rejection of Plaintiffs' equal protection arguments, which he found meritless: "In short, if the Texas Legislature wishes to prioritize an ideological agenda over the health and safety of women, the Equal Protection Clause does not prevent it from doing so under these circumstances."
Criticizing the "litany" of vagueness challenges by Plaintiffs and agreeing with the "Defendants’ characterization that 'plaintiffs have chosen to throw everything at the wall and hope something sticks,' ” Judge Sparks nevertheless found that three provisions of the Act were unconstitutionally vague:
- First, the phrase “the physician who is to perform the abortion,” a phrase used in section 171.012(a)(4), is unclear as it relates to both multi-physician procedures and unplanned physician substitutions.
- Second, the conflict between sections 171.012(a)(4) and 171.0122 creates unconstitutionally impermissible uncertainty regarding what will, and what will not, subject a physician or a pregnant woman to liability.
- Finally, section 171.0123 is unconstitutionally vague regarding the scope of a physician’s duty to provide paternity and child support information to women who choose not to get abortions.
In finding these sections unconstitutionally vague, Judge Sparks emphasized that the lack of clarity was balanced against the serious penalities, so that neither physicians nor women should have to trust Defendants’ representations about the meaning of the provisions or otherwise guess.
Most seriously, Judge Sparks found several provisions of the Act constitutionally infirm under the compelled speech doctrine of the First Amendment. Sparks distinguished Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992), on which the Defendants largely relied, by noting that
the Pennsylvania statute in Casey simply required physicians to inform pregnant women about the risks of an abortion, the potential alternatives thereto, and the availability of additional informational materials related to those alternatives. By contrast, the Act under consideration here requires physicians to provide, in addition to those legitimate disclosures, additional information such as descriptions of “the presence of cardiac activity,” and “the presence of external members and internal organs” in the fetus or embryo. The Court does not think the disclosures required by the Act are particularly relevant to any compelling government interest, but whatever relevance they may have is greatly diminished by the disclosures already required under Texas law, which are more directly pertinent to those interests.
Judge Sparks also found troubling under compelled speech doctrine Section 171.012(a)(5) that requires a pregnant woman to complete and sign a specified election form that certifies her understanding of many of the Act’s various requirements. "The Court need not belabor the obvious by explaining why, for instance, women who are pregnant as a result of sexual assault or incest may not wish to certify that fact in writing, particularly if they are too afraid of retaliation to even report the matter to police. There is no sufficiently powerful government interest to justify compelling speech of this sort, nor is the Act sufficiently tailored to advance such an interest." Compounding this compelled speech was the section that required the patient's certification be placed in the woman's medical records and maintained by the facility for seven years - - - making it "difficult to avoid the troubling conclusion the Texas Legislature either wants to permanently brand women who choose to get abortions, or views these certifications as potential evidence to be used against physicians and women."
The Judge gave the severability clause of the Act effect, although he also enjoined "enforcement of any portion of the Act that conflicts with any of the above relief. This includes, but is not limited to, any penalty provision of the Act or any other statute that would impose a penalty for a person acting in compliance with this opinion."
"The Court is bound to respect legislative intent, but not at the expense of the Constitution," Judge Sparks concluded. Presumably, the preliminary injunction order will be appealed to the Fifth Circuit.
August 31, 2011 in Abortion, Cases and Case Materials, Due Process (Substantive), Equal Protection, First Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Medical Decisions, Opinion Analysis, Reproductive Rights, Speech | Permalink | Comments (3) | TrackBack (0)
Monday, July 25, 2011
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.
Wednesday, July 13, 2011
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.
[image: The Cholmondeley sisters and their swaddled babies, circa 1600, via]
Thursday, May 12, 2011
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.
May 12, 2011 in Abortion, Campaign Finance, Cases and Case Materials, Courts and Judging, Due Process (Substantive), First Amendment, Interpretation, Recent Cases, Reproductive Rights, Scholarship, Second Amendment | Permalink | Comments (1) | TrackBack (0)
Sunday, April 17, 2011
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).
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.
with J. Zak Ritchie
(and suggested by several ConLawProfs)
Sunday, February 6, 2011
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.
with J. Zak Ritchie
February 6, 2011 in Establishment Clause, Family, Federalism, First Amendment, Fourteenth Amendment, Fundamental Rights, Religion, Reproductive Rights, Scholarship, Sexuality | Permalink | Comments (2) | TrackBack (0)
Thursday, December 16, 2010
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.
Monday, April 26, 2010
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."
Friday, April 16, 2010
The Presidential Memorandum on Hospital Visitation seeks to insure that hospitals not deny visitation privileges on the basis of race, color, national origin, religion, sex, sexual orientation, gender identity, or disability, and guarantee that all patients' advance directives, such as durable powers of attorney and health care proxies, are respected. Obama noted that these problems have "uniquely affected" "gay and lesbian Americans."The President and federal government have the power to accomplish such objectives, at least for hospitals that participate in Medicare or Medicaid programs, as a condition for receiving such funding.
Establishing conditions for receiving federal funds is nothing new, of course.
Recall Rust v. Sullivan, 500 U.S. 173 (1991), in which the Court upheld restrictions on projects receiving federal funds from providing or discussing abortions.
Also recall Rumsfeld v. Forum for Academic and Institutional Rights (FAIR) Inc., 547 U.S. 47 (2006), in which a unanimous Court upheld the Solomon Amendment that applied to universities, including law schools. The law conditioned the receipt of federal funds such as grants and student aide, on allowing the military to recruit on campus notwithstanding any university or law school policies barring discrimination on the basis of sexual orientation by potential employers.
April 16, 2010 in Current Affairs, Disability, Executive Authority, Family, Federalism, Medical Decisions, Reproductive Rights, Sexual Orientation, Sexuality, Spending Clause | Permalink | Comments (0) | TrackBack (0)
Thursday, April 15, 2010
"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.
April 15, 2010 in Current Affairs, Due Process (Substantive), Family, Fourteenth Amendment, Fundamental Rights, Gender, Privacy, Reproductive Rights, Scholarship, Taxing Clause | Permalink | Comments (0) | TrackBack (0)
Monday, March 22, 2010
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.