Wednesday, December 17, 2014
Lynn Paltrow (Nat'l Advocates for Pregnant Women) and Jeanne Flavin (Fordham Law) have uploaded "Arrests of and Forced Interventions on Pregnant Women in the United States, 1973-2005: Implications for Women's Legal Status and Public Health." The abstract reads:
In November 2011, the citizens of Mississippi voted down Proposition 26, a “personhood” measure that sought to establish separate constitutional rights for fertilized eggs, embryos, and fetuses. This proposition raised the question of whether such measures could be used as the basis for depriving pregnant women of their liberty through arrests or forced medical interventions. Over the past four decades, descriptions of selected subsets of arrests and forced interventions on pregnant women have been published. Such cases, however, have never been systematically identified and documented, nor has the basis for their deprivations of liberty been comprehensively examined. In this article we report on 413 cases from 1973 to 2005 in which a woman’s pregnancy was a necessary factor leading to attempted and actual deprivations of a woman’s physical liberty. First, we describe key characteristics of the women and the cases, including socioeconomic status and race. Second, we investigate the legal claims made to justify the arrests, detentions, and forced interventions. Third, we explore the role played by health care providers. We conclude by discussing the implications of our findings and the likely impact of personhood measures on pregnant women's liberty and on maternal, fetal, and child health.
Tuesday, December 16, 2014
WaPo, What's Fair Treatment for Pregnant Workers? The US Isn't Sure. Other Countries Are. Other countries provide better work accommodations. But its more complicated than that, as there is still prevalent pregnancy discrimiination and ambivalence about accommodating work and family for women.
In the United States, pregnancy discrimination claims grew by 31 percent between 2005 and 2010, the ILO report said, faster than all other job bias claims. Though pregnant workers are supposed to be treated fairly, the same as other “similarly situated” workers, under the 1978 Pregnancy Discrimination Act, U.S. courts have paid out $150 million in pregnancy- discrimination-related damages since 2001.
The U.S. District Judge presiding over all federal Yaz lawsuits and Yasmin lawsuits has identified 33 cases that will be prepared for trials to begin by the middle of next year, involving claims for injuries that the manufacturer of the popular birth control pills has refused to settle.
Since 2009, all product liability lawsuits filed throughout the federal court system involving side effects of Yaz, Yasmin or other related birth control pills have been consolidated for pretrial proceedings before U.S. District Judge David R. Herndon in the Southern District of Illinois, as part of an MDL or Multidistrict Litigation.
At one time, the litigation included around 12,000 cases filed on behalf of women who suffered various different injuries. However, Bayer has reached Yasmin and Yaz settlements to resolve the majority of all cases involving gallbladder problems and venous clot injuries, such as a deep vein thrombosis or pulmonary embolism.
Thursday, December 11, 2014
Legal History Blog, Ziegler on Young v. UPS in Historical Context
Mary Ziegler, Florida State University College of Law, has posted Choice at Work: Young v. United Parcel Service, Pregnancy Discrimination, and Reproductive Liberty. Here is the abstract:
In granting cert in Young v. United Postal Service, the Supreme Court has intervened in ongoing struggles about when and whether the Pregnancy Discrimination Act of 1978 requires the accommodation of pregnant workers. Drawing on original archival research, this Article historicizes Young, arguing that the PDA embodied a limited principle of what the Article calls meaningful reproductive choice. Feminist litigators first forged such an idea in the early 1970s, arguing that heightened judicial scrutiny should apply whenever state actors placed special burdens on women who chose childbirth or abortion. More ambitiously, some feminists suggested that the State may have to act to affirmatively support some fundamental rights.
A line of Supreme Court decisions completely rejected this understanding of reproductive liberty. However, choice arguments rejected in the juridical arena flourished in Congress, during debate about the federal Pregnancy Discrimination Act (PDA). For a variety of strategic and ideological reasons, legal feminists and antiabortion activists turned to legislative constitutionalism to give meaning to the idea of reproductive liberty. While not requiring employers to provide any accommodations, the PDA prohibited employers from placing special burdens on women’s procreative decisions.
The history of the meaningful choice principle calls into doubt contemporary judicial interpretations of the PDA, including the Fourth Circuit opinion in Young. When employers accommodate non-pregnant workers, as Young suggests, courts often find no violation of the PDA so long as a policy is “pregnancy-blind” — that is, so long as an employer does not explicitly categorize employees on the basis of pregnancy. This history strengthens the argument against pregnancy-blind policies made in Young by petitioners and amici under a variety of legal theories, including disparate treatment, disparate impact, and disability accommodation under the Americans with Disabilities Act. Ultimately, however, the history studied here counsels that legislation, rather than litigation, may be the most promising path for expanding protections for pregnant women.
Wednesday, December 10, 2014
Disturbing story from the New Republic:
The most stirring art has the ability to make us stop, think, and even act, but a new interactive documentary made in Peru may just help decide the political future of the whole country. Created as a result of collaboration between the University of Bristol and London-based Chaka Studio, the Quipu project relays the story of a recent and very dark moment in Peruvian history. As many as 300,000 women in rural areas of Peru were possibly hoodwinked into being sterilized during the mid-to-late 1990s, all in the name of bringing an end to poverty.
The scale of the heinous medical campaign remained buried until recently, as the village areas most affected did not know that both neighboring and far-flung areas had also been hit. Various legal cases on the issue brought against right-wing former-president Alberto Fujimori have hit the buffers and the local headlines, but the story has largely remained unknown outside the urban centers of Peru.
Tuesday, December 9, 2014
I was cited recently by the Second Circuit in Central States SE & SW Areas Health & Welfare Fund v. Gerber Life Ins., 771 F.3d 150 (2d Cir. Nov. 14, 2014), for my prior work criticizing the Supreme Court for its interpretation of statutory remedies and restitution under ERISA. It reminded me of of the Supreme Court's current consternation in interpreting the Pregnancy Discrimination Act in the Young case and the great risk of reading meaning out of congressionally-intended relief through the guise of statutory interpretation.
III. In the Circumstances Presented by This Case, ERISA Plans May Have No Remedy
The line of cases culminating in Great–West has been heavily criticized for unnecessarily reviving the historical division between law and equity, ignoring the background principles of trust remedy law against which Congress enacted ERISA, and adopting an unnecessarily narrow interpretation of § 502(a)(3) that excludes forms of relief Congress intended to make available under ERISA.Commentators have repeatedly noted that as a result of this case law ERISA plans and beneficiaries are, in some circumstances, deprived of remedies. See, e.g., Aetna Health, Inc. v. Davila, 542 U.S. 200, 222–23, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004)(Ginsburg, J., concurring) (collecting cases); John H. Langbein, What ERISA Means by “Equitable”: The Supreme Court's Trail of Error in Russell, Mertens, and Great–West, 103 Colum. L.Rev. 1317 (2003); Judith Resnik, Constricting Remedies: The Rehnquist Judiciary, Congress, and Federal Power, 78 Ind. L.J. 223, 256–71 (2003); Tracy A. Thomas, Justice Scalia Reinvents Restitution,36 Loy. L.A. L.Rev. 1063, 1081 (2003).
Thursday, December 4, 2014
The Supreme Court heard oral argument yesterday in Young v. UPS. The commentators have noted that some justices questioned the appropriateness of summary judgment here especially as to the question of what instances in fact were other workers given temporary light duties, and whether pregnant employees were asking for too many favors, granting them "most favored nation status" in the snarky words of the Fourth Circuit. As Justice Ginsburg retorted, it seems UPS was arguing for the converse, "least favored nation status."
See Dahlia Lithwick, Slate, Heavy Lifting: The Supreme Court is Flummoxed by Pregnancy Discrimination and Semi-colons. The so-called "after the semi-colon" debate seems to discount the legal issue as one of mere statutory interpretation. But it's much more than semantics. What's at issue is the second clause of the operative Pregnancy Discrimination law that imposes affirmative duties on an employer. The first clause, before the semi-colon, is a prohibition: do not discriminate on the basis of pregnancy. The second clause, after the semi-colon, says "women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work."
Kagan, who has been a one-justice Tasmanian devil all morning, concludes by informing Halligan [UPS attorney]: “What we know about the PDA is that it was supposed to be about removing stereotypes of pregnant women as marginal workers. It was supposed to be about ensuring that they wouldn’t be unfairly excluded from the workplace. And what you are saying is that there’s a policy that accommodates some workers, but puts all pregnant women on one side of the line.” This is why pro-life and pro-choice groups and most women’s groups have crossed the ideological divide to support Young in this case: The PDA was intended to prevent women workers from being forced to choose between their jobs and their babies.
Underlying the debate seems to be the old public v. private sphere divide. Some of the arguments and questions from the justices seem to make much of the fact that pregnancy is a private choice, something that happens to a woman outside of work, like an injury to a male worker playing on his all terrain vehicle (ATV) on the weekend. (Facepalm to Alito's analogy here: idiosyncratic extreme sports v. commplace, fact of life and constitutionally-protected status). As a private choice, an employer in the public sphere has no obligation regarding that private choice.
For more debriefing, see
Tuesday, December 2, 2014
For the history and legal briefing, see Young v. UPS at SCOTUSblog.
For UPS's voluntary actions that effectively implement the desired accommodations, see our prior post, Pregnant Workers Win Without Winning
Saturday, November 29, 2014
Different and arguably greater obligations on businesses are imposed under the Illinois law than under federal laws, such as the Pregnancy Discrimination Act (“PDA”) and the Americans with Disabilities Act (“ADA”), even after passage of the ADA Amendments Act (“ADAAA”).
The new law requires employers to provide reasonable accommodations to employees (and job applicants) for any medical or common condition related to pregnancy or childbirth and makes it unlawful to fail to hire or otherwise retaliate against an employee or applicant for requesting such accommodations.
If an employer demonstrates the accommodation would impose an undue hardship on the “ordinary operation of the business of the employer,” however, the employer need not provide the requested accommodation. “Undue hardship” is an action that is “prohibitively expensive or disruptive.”
Tuesday, November 25, 2014
Mary Ziegler, (Florida State), Abortion and the Constitutional Right (Not) to Procreate, 8 U. Richmond L. Rev. 1263 (2014). From the abstract:
With the growing use of assisted reproductive technology (“ART”), courts have to reconcile competing rights to seek and avoid procreation. Often, in imagining the boundaries of these rights, judges turn to abortion jurisprudence for guidance.This move sparks controversy. On the one hand, abortion case law may provide the strongest constitutional foundation for scholars and advocates seeking rights to access ART or avoid unwanted parenthood. On the other hand, abortion jurisprudence carries normative and political baggage: a privacy framework that disadvantages poor women and a history of intense polarization.This article uses the legal history of struggle over spousal consent abortion restrictions as a new way into the debate about the relationship between ART and existing reproductive rights. Such laws would require women to notify or obtain consent from their husbands before a doctor can perform an abortion. Scholars use spousal-consultation laws to illustrate the sex stereotypes supposedly underlying all abortion restrictions. This article tells a far more complex story. When feminists and pro-lifers battled about spousal consent in the 1970s, they wrestled with many of the questions motivating current battles about ART: Do women enjoy a unique role in child-rearing and childbearing? Does gestation, caretaking, or a genetic connection explain the decision-making power conferred on women in the context of reproduction? How could feminists reconcile demands that men perform a greater share of child-rearing with arguments that women should have the final decision on reproductive matters? By reexamining the history of the consent wars, we can gain valuable perspective on what can go right -- and wrong -- when we forge a jurisprudence based on the relationship between genetic, gestational, and functional parenthood.
Saturday, November 22, 2014
An Ohio House committee on Thursday voted 11-6 along party lines to advance a bill (HB 248) that would ban abortion once a fetal heartbeat is detectable, which can be as early as six weeks of pregnancy, the Columbus Dispatch reports.
The measure would not apply when a woman's life is in danger, but it would not allow exemptions for pregnancies resulting from rape or incest (Siegel/Candisky, Columbus Dispatch, 11/21). Under the bill, performing an abortion when a fetal heartbeat is detectable would be a fifth-degree felony (Bassett, Huffington Post, 11/20).
Saturday, November 15, 2014
The decision is the first since the U.S. Supreme Court last June ruled that some for-profit companies may, like religious nonprofits, opt out of providing birth control coverage in their insurance plans. In the cases that have followed, various religious nonprofits have maintained, as they did in the Washington case, that the opt-out provision itself is a "substantial burden" on religion, and thus, that it violates the Religious Freedom Restoration Act, a federal law enacted to enhance religious rights.
In rejecting that claim, the U.S. Court of Appeals for the District of Columbia said that "Religious objectors do not suffer substantial burdens ... where the only harm to them is that they sincerely feel aggrieved by their inability to prevent what other people would do ... "
These religious objectors have no right, the court said, "to be free from the unease, or even anguish" of knowing that others are legally entitled to receive or provide birth control. The court noted that birth control coverage was added to the Affordable Care Act because it accounts for a large part of women's preventive health care costs.
Writing for the 3-0 court panel, Judge Cornelia Pillard said the challengers' argument that the opt out harms them by triggering substitute coverage makes little sense in light of the government's need to carry out a duly enacted program.
Read the full decision here Priests for Life v. US Dep't of Human Services
Thursday, October 30, 2014
The North Dakota Supreme Court on Tuesday reversed a Fargo-based district judge’s ruling that had blocked a 2011 state law limiting drug-induced abortions, letting the law stand despite three of the court’s five justices saying it violates the U.S. Constitution.
Justices were split on whether the law was unconstitutional under both the state and federal constitutions.
The Supreme Court was evenly split on whether the law violated the state constitution, with Justices Mary Muehlen Maring and Carol Ronning Kapsner finding it did and Chief Justice Gerald VandeWalle and Justice Dale Sandstrom finding it didn’t. Justice Daniel Crothers concluded the state constitutional issue didn’t need to be decided.
Maring, Kapsner and Crothers found the law violated the U.S. Constitution, while VandeWalle found that it wasn’t unconstitutional at the federal level. Sandstrom opined that the federal question didn’t belong before the state Supreme Court.
Tuesday’s opinion hinged on the North Dakota Constitution’s requirement that at least four members of the Supreme Court be in agreement to declare a statute unconstitutional.
For those brave enough to tackle a 103-page opinion and double pluralities, the opinion MKB Management v. Burdick is here.
She The People, WaPo, With Supreme Court Case Pending, UPS Reverses Policy on Pregnant Workers
This week United Parcel Service sent a memo to employees announcing a change in policy for pregnant workers: starting January 1, the company will offer temporary light duty positions not just to workers injured on the job, which is current policy, but to pregnant workers who need it as well.
“UPS takes pride in attaining and maintaining best practices in the area of equal opportunity and employment, and has elected to change our approach to pregnancy accommodations,” a memo sent to workers reads.
Hang on a minute. Isn’t this is the very stance that UPS is arguing against in the upcoming, high-profile Supreme Court case, Young v UPS?
Indeed it is.
UPS’ change of policy was not only announced to its workers on Monday, it was announced to the world in the brief they filed at the Supreme Court just days ago.
The change of policy, UPS attorneys argue in the brief, doesn’t mean they were wrong when they denied temporary light duty to one-time UPS driver Peggy Young, of Landover, Md., when she became pregnant and her doctor recommended she take a hiatus from lifting heavy boxes until after giving birth.
In the brief, UPS attorneys explain it this way: “While UPS’s denial of [Young’s] accommodation request was lawful at the time it was made (and thus cannot give rise to a claim for damages), pregnant UPS employees will prospectively be eligible for light-duty assignments.”
The UPS move came as a surprise to many workers’ rights advocates and to Young’s attorneys.
“UPS is highlighting the injustice of its own position,” said Sam Bagenstos, one of Young’s attorneys. “In the future, they want to give people like her fair treatment. But they’re still denying her recompense for the unfair treatment that they gave her.”
The move, he said, “shows that what Peggy Young has been asking for all along is common sense.”
Thursday, October 23, 2014
I wrote an article, related to my current book project, on feminist icon Elizabeth Cady Stanton’s views on abortion. Misappropriating Women's History in the Law and Politics of Abortion, 36 Seattle L. Rev. 1 (2012). The article was triggered by a political misuse of Stanton for modern feminist-for-life anti-abortion advocacy, which claims she was a strong pro-life advocate. My research showed that Stanton said little about abortion per se. And what she did say about reproductive rights – women’s unilateral right to self-sovereignty in reproductive decisionmaking and justice and forgiveness for women’s crimes of infanticide—suggests the opposite. That to the contrary, her work provides historical support for a woman’s right to personal choice.
I’ve turned up a few more pieces of historical evidence since the publication of the article. Here’s an excerpt from the book chapter draft:
Stanton elaborated on this concern with enlightened motherhood, growing more melodramatic and emphatic. Writing to the Seventh Convention on Woman’s Rights, Stanton said polluted marital relations [with abuse, alcoholism, and misery] produced “the shocking monstrosities of . . . deformed and crippled offspring,” “miserable progeny conceived in disgust and brought forth in agony,” and often confined to asylums. Letter from Mrs. Stanton to Seventh National Woman’s Rights Convention, Nov. 24, 1856. Another consequence of the perversions of marriage was abortion, “What all these advertisements in our public prints, these family guides, these female medicines, these Madame Restells?” Abortion, asylums, and disabled children, Stanton argued, showed “what a depth of degradation the women of this Republic have fallen, how false they have been to the holy instincts of their nature, to the sacred trust given them by God as the mothers of the race?” Women, Stanton argued, had a higher duty to control and deliberate in reproduction, not simply propagate. Her solution was to “let Christians and moralists pause in their efforts at reform and let some scholar teach them how to apply the laws of science to human life.” To her readers in the Revolution, she emphasized the need to base the fundamentals of social and family life “on science and philosophy by educating women into the idea that to bear noble children to noble men with sound bodies and sound minds, is a worthy work and one that brings its own happiness and reward.” But, she continued, “to fill the world with idiots, lunatics, criminals, the blind, the deaf, the dumb,” and to “spend one’s days nursing muling, puling, limp-backed, hydrocephalic abortions of humanity, is not a work worth a Christian woman, but a sin against herself, the state, and a gross violation of the immutable laws of God.” ECS, Mrs. Stanton and the Chicago Tribune, Rev., Feb. 8, 1871.
The eugenic context, then considered an emerging science, is stocking to us today. And that is a story in and of itself. But what can we make of this from a feminist perspective? That Stanton endorsed women’s right, indeed moral duty to control reproduction. That she supported science to control birth. That she argued for a consideration of the health consequences to the child, as women do today when making difficult decisions about severe health defects shown in prenatal testing. And that she condemned religious moralists for their mandates to women on motherhood.
Tuesday, October 14, 2014
Thus reads the article title from the NYT's on Tuesday. The story:
The Supreme Court’s order, which was five sentences long, will allow the clinics to remain open while appeals proceed.
On Oct. 2, the United States Court of Appeals for the Fifth Circuit, in New Orleans, provisionally let stand a Texas law that requires all abortion clinics in the state to meet the standards for “ambulatory surgical centers,” including regulations concerning buildings, equipment and staffing.
State officials said the law’s requirements were needed to protect women’s health. Abortion providers said the regulations were expensive, unnecessary and a ruse meant to put many of them out of business.
The Supreme Court vacated the part of the Fifth Circuit’s ruling that had let the surgical-center requirement go into effect. It also vacated a second part of the Fifth Circuit’s ruling, concerning the law’s requirement that doctors performing abortions have admitting privileges at a nearby hospital, as it applied to clinics in McAllen, Tex., and El Paso.
Saturday, October 11, 2014
New Republic, How the Pill Overcame Impossible Odds and Found a Place in Million of Women's Purses. Purses?? Well... whatever.
In The Birth of the Pill: How Four Crusaders Reinvented Sex and Launched a Revolution, Jonathan Eig chronicles the decades-long effort to make that fantasy a reality. In his telling, this transformation is thanks to a unique alliance between feminists and scientists: the spotlight-seeking activist Margaret Sanger, the rebel researcher Goody Pincus, the single-minded heiress Katherine McCormick, and the photogenic family doctor John Rock. These four people provide a formula for what it takes to create scientific breakthroughs that are ahead of their time politically: an incredible amount of drive and little concern for traditional values, a willingness to flout powerful institutions and their rewards, a tremendous amount of money, and, eventually, a way to appeal to the mainstream. It’s no wonder that, despite lots of modern talk about disruption and innovation, truly world-changing breakthroughs are so rare.
Saturday, October 4, 2014
Jeffrey Toobin, New Yorker, On Hobby Lobby, Justice Ginsburg was Right
In Hobby Lobby, a narrow five-to-four majority of the Court held that the Religious Freedom Restoration Act of 1993 gave the proprietors of a chain of retail craft stores the right to exempt themselves from certain provisions of the Affordable Care Act. Specifically, the A.C.A. requires firms with more than fifty employees to provide insurance that includes birth-control coverage, or else pay a fine. There was an exemption already for religious institutions. Hobby Lobby, a closely held corporation, is a secular, for-profit business, but the Court held that because the owners of Hobby Lobby held a sincere religious belief that certain forms of birth control caused abortions, they could deny employer-paid insurance coverage for them. Justice Samuel Alito insisted, in his opinion for the Court, that his decision would be very limited in its effect. Responding to the dissenting opinion by Justice Ruth Bader Ginsburg, who called it “a decision of startling breadth,” Alito wrote, “Our holding is very specific. We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises can ‘opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.’ ” Ginsburg, though, wondered where the guidance was for the lower courts when faced with similar claims from employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others).
The exchange between the two Justices gets to the heart of the issue in Hobby Lobby. When do religious convictions allow individuals (or corporations) to excuse themselves from obligations that are binding on everyone else?
A sampling of court actions since Hobby Lobby suggests that Ginsburg has the better of the argument. She was right: the decision is opening the door for the religiously observant to claim privileges that are not available to anyone else.
Friday, September 19, 2014
ACTIVISTS on warring sides of the abortion debate rarely take the same position when it comes to Supreme Court cases involving women’s rights. But pro-choicers and pro-lifers have found common cause in Young v United Parcel Service, a pregnancy discrimination case the justices will take up on December 3rd. Yet the ideological overlap, while intriguing, is no guarantee that justices will reach consensus.
And the case facts:
Peggy Young was working part-time as the driver of a delivery truck for UPS when she became pregnant in 2006. Ms Young’s midwife, frowning on the requirement in her job description that she haul 70lb boxes, wrote a note to UPS recommending that “she not lift more than 20 pounds." On this basis, Ms Young requested a few months of a lightened load. Other UPS employees were eligible for such an accommodation, she reasoned, so she wasn’t asking for anything out of the ordinary. Workers who were injured on the job, who were disabled under the terms of the Americans With Disabilities Act, or who lost their driving credentials were all eligible (under the collective-bargaining agreement) for “light duty” assignments. But Carolyn Martin, the company’s occupational health manager, rejected Ms Young’s request. Since pregnancy did not fall into any of the three categories of workers eligible for alternate assignments, UPS would not switch her to a less physically onerous job. Ms Martin "empathise[d] with [Ms Young's] situation and would have loved to help her," but sent her packing on an unpaid leave.
Monday, September 15, 2014
Caitlin Borgmann, CUNY Law, has uploaded on SSRN "Abortion Exceptionalism and Undue Burden Preemption." The abstract:
This Article discusses the tendency of some lower federal courts to interpret the undue burden standard of Planned Parenthood of Southeastern Pennsylvania v. Casey as essentially occupying the field of potential constitutional claims whenever abortion is involved. Thus, where litigants have alleged constitutional claims other than, or in addition to, undue burden violations, courts have either changed how they normally analyze these constitutional claims or they have even completely foreclosed the application of other doctrines on the grounds that the undue burden standard subsumes or displaces these claims. This Article illustrates this phenomenon in the context of three types of non-undue-burden claims that have been asserted against some abortion restrictions: bodily integrity, equal protection, and the right against compelled speech. Undue burden preemption, I argue, flies in the face of the Court’s recognition that “[c]ertain wrongs...can implicate more than one of the Constitution’s commands.” Where multiple constitutional violations are alleged, the Court’s normal approach is to examine each constitutional provision in turn. There is one well-established exception to this general rule, the “Graham doctrine.” This doctrine provides that, when a litigant asserts a substantive due process claim, and where the Court finds that another more specific constitutional provision applies, the Court analyzes the claim under the more specific provision to the exclusion of substantive due process. This Article argues that undue burden preemption, far from being justified by the Graham doctrine, turns that doctrine on its head.