Constitutional Law Prof Blog

Fourth Circuit Upholds Virginia "partial-birth" abortion ban

In an en banc decision, the Fourth Circuit vacates its earlier panel decision and a district court decision concluding the Virginia state law was unconstitutional.  In Richmond Medical Center for Women [and Dr. William Fitzhigh] v. Herring, decided today, full opinion available as pdf here, the en banc court stated:

We now conclude that insofar as Dr. Fitzhugh mounts a
facial challenge against the Virginia Act, the challenge fails
because
(1) Dr. Fitzhugh’s posited circumstance does not
present a sufficiently frequent circumstance to render the Vir-
ginia Act wholly unconstitutional for all circumstances;
(2)  the Virginia Act’s scienter language, although different from
the Federal Act, nonetheless provides sufficient notice to a
reasonable doctor of what conduct is prohibited by the statute;
and
(3) the provisions for a safe harbor and affirmative
defenses, as well as the requirement of "an overt act," ensure
that the Virginia Act will not create a barrier to, or have a
chilling effect on, a woman’s right to have a standard D&E
or her physician’s ability to undertake that procedure without
fear of criminal liability.

The court also rejected the as-applied challenge because Fitzhugh "has not presented sufficiently concrete circumstances in which the as- applied challenge can be resolved, recognizing that '[t]he Act is open to a proper as-applied challenge in a discrete case,' "  quoting Gonzales v. Carhart, 550 U.S. at 168.

The court's discussion of the facial challenge, citing Marbury v. Madison, is relevant far beyond the reproductive rights context.  Certainly, however, the limitation of facial challenges has been quite vigorous in the abortion context of late.  Note also that the Virginia statute here, entitled the "Partial Birth Infanticide" Act, Va. CodeAnn. § 18.2-71.1(A)-(C), applies "regardless of the duration of pregnancy."

The twenty-five page dissenting opinion by Judge M Blane Michael (pictured left)
argues that the court is departing from Gonzales v. Carhart, "and long- standing precedent explicitly reaffirmed in that case hold that the Constitution protects a woman’s right to choose the standard dilation and evacuation (D&E) procedure employed in the vast majority of pre-viability second trimester abortions. The Virginia Act violates the Constitution because it exposes all doctors who perform the standard D&E to prosecution, conviction, and punishment. The Act does this by imposing criminal liability on any doctor who sets out to perform a standard D&E that by accident becomes an intact D&E." (emphasis in original).



RR

Equal - Fred Strebeigh's History of Women and Law

Strebeigh's new book, Equal: Women Reshape American Law, published by WW Norton, might be a good book to recommend to students entering law school or students preparing for their first Constitutional Law course.   The book has been getting some good press, but this analysis from Michael O'Donnell's review in the April 27 issue of The Nation gives one pause:

Notably absent from the book is any significant discussion of abortion rights, which in this country have largely been won in courts rather than legislatures. Some readers, viewing reproductive freedom as the most fundamental of women's rights, may see the omission as a major oversight, although Strebeigh may simply have wanted to avoid retelling a familiar story. On the conceptual level, though, Strebeigh's decision makes sense: much of the constitutional discussion in the book centers around the Fourteenth Amendment's straightforward equal protection clause, whereas abortion rights are based on the murkier and more malleable due process clause--which, on its face, says nothing about abortion. Many important legal advances, including abortion rights but also, lately, protections for gays and lesbians, would wobble less today if they rested on the sturdier foundation of equal protection, with its relatively clear textual guarantee. Leaving aside abortion law allows Strebeigh to avoid having to untangle legally (as opposed to politically) knotty problems.

Certainly, whether or not the equal protection clause is "straightforward" is debatable.  Also debatable is the question whether equality or the reshaping of American law should be discussed in a book without some attention to abortion or other reproductive rights.

RR

Global Gag Rule Scholarship - Saturday Evening Review

President Obama's decision in his first days to reverse the so-called "global gag rule" or "Mexico City policy" barring international aid connected to abortion led me back to some of the excellent scholarship that has occurred in this area.  For ConLawProfs, the issue has always been a problematic one in terms of pure doctrine.  Roe v. Wade does not apply to foreign aid or women outside the United States, but does that mean the issue is not a constitutional one?  And what exactly is this "global gag rule" anyway?

Nina J. Crimm of St John’s Law School, in her article, The Global Gag Rule: Undermining National Interests By Doing Unto Foreign Women And NGOs What Cannot Be Done At Home, 40 Cornell Int'l L.J. 587 (2007), is a great place to start to look for an answer to these questions.   

Professor Crimm does an excellent job of providing the history of the global gag rule starting in the 1960s, discussing the national interests supporting it, and elucidating the harms to NGOs.   She briefly argues that the global gag rule could be unconstitutional under equal protection principles if it applied to US women.   Her main argument concerns the First Amendment and “unconstitutional conditions” doctrines based on funding, but again with the caveat if the “restrictions that are imposed on foreign NGOs were imposed on domestically formed NGOs.”   Thus, despite her carefully crafted constitutional arguments, her ultimate point is a non-constitutional one:

The United States holds itself up to the world as a model democracy based on fundamental and equal rights for individuals and organizations. Accompanying this role is the responsibility to permit abroad what must be permitted at home.

Id. at 618.

Crimm is not alone in her conclusions.  The UC-Davis Journal of International Law and Policy devoted a Symposium to “Family Planning and AIDS Policy in the International Community” in 2006. Berta Esperanza Hernández-Truyol of University of Florida College of Law has a particularly compelling piece, On Disposable People And Human Well-Being: Health, Money And Power, 13 U.C. Davis J. Int'l L. & Pol'y 35 (2006).  She argues:

An analysis of the gag rule reveals that it can be interpreted as an imperial power move that contributes to the deterioration of health. It deploys economic power to ignore sovereignty and subtract from human well-being. The policy purposely denies access to funds that enable the provision of health education, supplies, and services simply to implement political ideology. Ironically, while claiming a policy of preventing loss of life through prohibition of abortion, the gag rule policy actually costs more lives by not engaging in programs that can reduce maternal and infant mortality. Significantly, the policy also deleteriously results in more orphans (who are usually left in very vulnerable and unstable situations) and in the failure to provide certain services and supplies necessary for HIV/AIDS victims. This reveals a direct link between economic power (quantity of aid) and availability of service.

Id. at 64.

Again, this is not a “constitutional law” argument, but an international law and policy one.   A host of other articles on the subject, most of them reaching similar conclusions as these articles by Berta Esperanza Hernández-Truyol and Nina J. Crimm, also might at first seem rather “tangential” to ConLawProfs, except as we discuss Executive and Legislative powers in “foreign affairs.”

But our students (at least mine) often raise issues of "rights" in international contexts.  An interesting – and quite lengthy – article by Scott L. Cummings of UCLA published last year, The Internationalization Of Public Interest Law, 57 Duke L.J. 891 (2008), implicitly contends that “rights” may be shifting away from the Constitution.  Here’s the abstract:

This Article describes and explains the influence of global change on American public interest law over the past quarter-century. It suggests that contemporary public interest lawyers, unlike their civil rights-era predecessors, operate in a professional environment integrated into the global political economy in ways that have profound implications for whom they represent, where they advocate, and what sources of law they invoke. The Article provides a preliminary map of this professional environment by tracing the impact of three defining transnational processes on the development of the modern public interest law system: the increasing magnitude and changing composition of immigration, the development and expansion of free market policies and institutions, and the rise of the international human rights movement. It then suggests how each of these processes has contributed to institutional revisions within the U.S. public interest system: the rise of immigrant rights as a distinctive category of public interest practice, the emergence of transnational advocacy as a response to the impact of free market policies abroad, and the movement to promote domestic human rights both as a way to resist free market policies at home and to defend civil rights and civil liberties in the face of domestic conservatism and antiterrorism. After mapping the institutional scope and texture of these trends, the Article appraises their influence on the goals public interest lawyers pursue, the tactics they deploy, and the professional roles they assume in the modern era.

So it seems that Obama's reversal of the "global gag rule" has a solid foundation in legal scholarship.

RR

Challenge to Oklahoma Abortion Law

The Center for Reproductive Rights is challenging an Oklahoma Law designed to place more stringent requirements on doctors performing abortion procedures. 

Prior to the current law, Oklahoma required that all abortion patients be required to provide their "voluntary and informed" consent to the procedure.  Additionally, women were required to be notified, twenty-four hours in advance of the procedure, that an ultrasound could be made available, as well as print and internet materials detailing the development of the fetus at a particular point.

Oklahoma Senate Bill No. 1878 changes the existing law regarding ultrasounds in several ways.  First, it would require an ultrasound at least one hour prior to the abortion procedure.  Second, it would require that ultrasound to be performed by the physician who is to perform the abortion or "a certified technician."  Third, the doctor or technician must "display the ultrasound images so that the pregnant woman may view them" and explain to the patient in detail what is being shown on the ultrasound, including "the presence of cardiac activity" and "the presence of external members and organs."

What are the legal ramifications?  There are several.  First, the clinic challenging the provision states that it already performs an ultrasound on each pregnant woman for the purpose of determining the gestational age of the fetus.  The difference here is that the ultrasound would be required to be made available for viewing.  Only three other states have such a requirement at this time.  However, the New York Times quotes Elizabeth Nash, public policy associate with the Guttmacher Institute, as stating that Oklahoma law is "unique"  in its apparent intent that the pregnant woman actually view the ultrasound images. 

Second, the statute imposes the ultrasound requirement with no exceptions for rape, incest, or the health of the mother.  In fact, Governor Brad Henry (Dem.), vetoed the bill for this reason.  However, his veto was overridden by the legislature. 

Third, only doctors may perform the ultrasound under the new law.  The clinics state that normally, the nursing staff will perform this function, leaving the doctors to attend to other matters.  They state that it will be very difficult to comply with this law, unless the term "certified technician" is interpreted to include nurses.

This law is scheduled to take effect on Nov. 1.  We'll keep you posted on the developments.  In the meantime, a few teaching points:

1.  Students should note that the case is brought solely under state law, and alleges violations of the Oklahoma state consitution, but not the federal constitution.  In my experience, I have found that students frequently underestimate how relevant state constitutions are in "real life" practice settings.  This case should serve as a useful reminder of that reality.

2. If the challenge were brought under the federal constitution, how would Casey apply?  Arguably, proving a woman with more information is not such a bad thing.  Moreover, the Court's support of waiting periods and other actions giving the state the opportunity to influence women would seem to indicate that they might not have a problem with ultrasounds being offered.  However, what about requiring the woman to view the material?  The statute does say that a woman can "avert her eyes" during the prodecure, but if a woman knows beforehand that she does not want a child, is this a case of mere information, or severe overreaching?  Emily Bazelon of Slate has an interesting discussion of how a woman in such a position might feel.

3.  My initial thoughts are that the fact there is no exception for rape, incest, or health, could be problematic.  However, how would the recent decision in Gonzales v. Carhart affect this analysis?  Arguably, Gonzales attempted to distinguish Steinberg rather than overrule it, and as such does not stand for the proposition that health exceptions are no longer required.  But the question remains: Has Gonzales opened the door to laws such as Senate Bill 1878?

4.  Finally, if the clinics are truly unable to provide a doctor-performed ultrasound for each patient, would that be an undue burden?  The answer there, I think, is not as clear, as most of the cases focus on an undue burden to the patient, rather than whether regulations on doctors would make it more difficult to provide the services.  It should be noted that in the state of Oklahoma, there are only three abortion providers.  That's three for the entire state.  Should practicality enter the analysis?

NLS