"Human life" informed consent law upheld

The en banc Eighth Circuit today vacated a preliminary injunction against South Dakota's peculiar law requiring that women seeking an abortion be told the procedure will end the life of a "whole, separate, unique, living human being." The law was originally enjoined in mid-2005, and that injunction was upheld 2-1 by an Eighth Circuit panel. Planned Parenthood's challenge alleged that the law violated the free speech rights of doctors and patients as well as the right to choose an abortion, and was unconstitutionally vague.


The district and panel decisions agreed that the plaintiffs' had a good change of proving the law invalid, on the basis that it forced physicians to express a particular viewpoint on the beginning of human life. Viewing the "whole, separate, unique, living human being" language as "ideological" rather than scientific in content, these judges concluded that the state's message was not susceptible to being proven accurate or misleading.

The en banc majority disagreed, based on the statutory definition of "human being" as a member of the species Homo sapiens. In light of that definition, the majority concluded that the law simply required the provision of biological facts. Since the plaintiff's hadn't made a showing that this statement, so construed, was false or misleading, the injunction was in error.

Prof. Caitlin E. Borgmann at Reproductive Rights Profs Blog sums the decision up this way:

Eighth Circuit to Pregnant Women: You're Not Carrying a Dolphin!

The injunction was solely on the doctors' compelled-speech claim, and the 7-4 en banc ruling is also "based solely" on that argument. Technically, the district court on remand can consider reinstating the preliminary injunction on the basis of the other claims, and/or enter a permanent injunction after trial. But the en banc court's reasoning makes such outcomes unlikely; the right-to-choose claim would also hinge on characterizing the mandated statement as ideological or scientific in nature.

As a commenter and Prof. Borgmann note, the decision quotes Gonzales v. Carhart at length -- yes, that quote:

Respect for human life finds an ultimate expression in the bond of love the mother has for her child. The Act recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision. Casey, supra, at 852–853 (opinion of the Court). While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. See Brief for Sandra Cano et al. as Amici Curiae in No. 05–380, pp. 22–24. Severe depression and loss of esteem can follow. See ibid.

In a decision so fraught with emotional consequence some doctors may prefer not to disclose precise details of the means that will be used, confining themselves to the required statement of risks the procedure entails. From one standpoint this ought not to be surprising. Any number of patients facing imminent surgical procedures would prefer not to hear all details, lest the usual anxiety preceding invasive medical procedures become the more intense. This is likely the case with the abortion procedures here in issue. See, e.g.,Nat. Abortion Federation, 330 F. Supp. 2d, at 466, n. 22 (“Most of [the plaintiffs’] experts acknowledged that they do not describe to their patients what [the D&E and intact D&E] procedures entail in clear and precise terms”); see also id., at 479.

It is, however, precisely this lack of information concerning the way in which the fetus will be killed that is of legitimate concern to the State. Casey, supra, at 873 (plurality opinion) (“States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning”). The State has an interest in ensuring so grave a choice is well informed. It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form.

As Borgmann also notes, this passage was a non-sequitir in Carhart, but seems tailor-made for this case. This seems to confirm the expectation that the main consequence of that decision in the near term will be to encourage and support ideological and misleading "informed consent" requirements.

So what now? If the statute must be construed in light of the definition and only requires factual statements, this would seem to raise the question of what constitutes compliance with the law. If the patient is informed that her body contains an organism that, if the pregnancy were continued, would developed into a baby - but the term "human being" is never used - is that compliance? What if the patient is informed that the pregnancy contains all the genetic information necessary to grow into a self-sufficient person - but the words "whole," "separate," "unique," and "living" are never used? Perhaps there are teeth to the vagueness argument yet. At the least, certification to the state supreme court to clarify the terms of the statute would have been appropriate, and may still be appropriate as the case continues on remand.

I've watched this case carefully since the panel decision. In light of the foregoing I'm not yet sure if this decision sets a truly scary precedent about the kind of tendentious messages states can require, or whether it renders the statute much less troublesome in order to save it.

Legalese alert: The court today also held that the judges below misconstrued the standard for a preliminary injunction; it said that showing you will likely prevail on the merits is a "threshold" inquiry, and can't be "balanced" with the likelihood of irreparable harm and the public interest.

First ever Congressional hearing on anti-transgender discrimination

While the legal world was abuzz today with the release of the 5-4 DC v. Heller decision, the House Subcommittee on Health, Employment, Labor and Pensions held the first ever Congressional hearing on discrimination against transgender people, entitled : "An Examination of Discrimination Against Trangender Americans in the Workplace."

Information about the hearing and witnesses is at the National Center for Transgender Equality website, or the Subcommittee's website. I'm very busy now, but I hope to provide a summary and analysis of the testimony and questioning early next week.

Transgender woman, husband could be prosecuted

One common riposte to constitutional analogies between bans on same-sex marriage and the anti-miscegenation laws of old is that the latter were far harsher by virtue of being criminal laws. Since bans on same-sex marriage don't make it a crime, the argument goes, they're simply not the same as Loving v. Virginia.

This argument ignores the fact that the criminal sanctions for interracial marriage were focused on one thing: the ability of a couple to pass as members of the same race. The threat of imprisonment served to deter folks who might not be turned away by the clerk simply based on their appearance. If it was later discovered that you had committed "racial fraud," that was when the law descended on you.

And the same turned out to be true with regard to sex. Virginia authorities are currently mulling criminal charges against a newlywed man and woman after it came to light that the bride was a transgender woman - and was regarded by the state as male. This is not the first time criminal sanctions have been threatened for "gender fraud" in marriage.

Virginia law permits a change in birth certificates for trans individuals who have had reassignment surgery (the precise medical standard is not clear). It's not clear from the media coverage whether the woman in this case had not obtained such surgery -- for medical or financial reasons, perhaps -- or whether the authorities believed that gender transition is not recognized for the purpose of marriage regardless of what the law says in other areas. Several state courts have reached that conclusion, e.g., Florida, Texas and Ohio.

As I have argued elsewhere, surgical requirements for legal recognition of gender transition are uninformed, unnecessary and fundamentally unfair. See Against the Surgical Requirement for Change of Legal Sex, 38 Case W. Res. J. Int’l L. 393 (2007).

At any event, this story underscores a number of points. First, it demonstrates that criminal law does come into play as a result of bans on same sex marriage. Second, as noted at Feministing, it serves as a reminder that: "The debate around gay marriage doesn't always factor in the relationship between transgender citizens and the legal apparatus of marriage." Third, it serves as an appalling illustration of the readiness of institutional players from government to media - see the appalling AP story -- to characterize trans people's very existence as fraudulent.

Dale Carpenter on Marriage, Religion

Prof. Dale Carpenter has written any number of very interesting and readable posts lately on marriage equality and related issues at the Volokh Conspiracy; I highly recommend wandering over there and browsing them (among all the many other things, readable, interesting and otherwise, to be found at that blog). His latest post is about religious conservatives' misleading attempts to paint civil marriage equality as creating a conflict with religious liberty. Carpenter correctly points out that:

• This is essentially a red herring, as the "conflicts" being pointed to largely arise from nondiscrimination statutes and predate marriage equality.
• A recent NPR story nevertheless bought into this storyline of a "coming storm" created by marriage licenses for same-sex couples.
• What these critics are really objecting to is prohiting discriminationg based on sexual orientation in general.
• Inasmuch as these conflicts do exist, they present complex, fact-sensitive constitutional issues that have been debated for years and have little to do with marriage.
• These arguments are essentially another chapter in social conservatives' failed attempts to prove that marriage equality is "harmful."
• On a related note, a potent example of different religious and civil approaches to marriage can coexist is the question of divorce: Catholicism and Orthodoxy refuse to recognize divorce, but it is now generally accepted that permitting civil divorce does not trample the beliefs of Catholics or Orthodox Jews.

AMA Opposes Home Birth

I just posted about the American Medical Association's newly-adopted public stance against public and private insurance exclusion for gender transition therapies. In a move likely to anger many of the same people hailing the transgender resolution, the AMA has also adopted a new resolution on "Home Deliveries."

The resolution calls for developing

model legislation in support of the concept that the safest setting for labor, delivery, and the immediate post-partum period is in the hospital, or a birthing center within a hospital complex, that meets standards jointly outlined by the AAP and ACOG, or in a freestanding birthing center that meets the standards of the Accreditation Association for Ambulatory Health Care, The Joint Commission, or the American Association of Birth Centers.

This amounts, of course, to a call to restrict -- and, potentially, criminalize -- home birth. While the transgender resolution articulates clear support for bodily autonomy, the home birth resolution conflicts with that autonomy. What do the two positions have in common? The AMA would say that they're both in the best interest of patient safety and well-being. Indisputably, both positions mean more money for doctors and hospitals.

AMA Opposes Transgender Health Care Exclusions

RESOLVED, That our American Medical Association support public and private health insurance coverage for treatment of gender identity disorder (GID) ; and be it further

RESOLVED, That our AMA oppose categorical exclusions of coverage for treatment of GID when prescribed by a physician.

So states a May 5 resolution of the AMA's House of Delegates, entitled "Removing Financial Barriers to Care for Transgender Patients." The AMA has supported transition therapies and opposed anti-trans discrimination in the past, but now it is on record squarely against the exclusion of transition-related counseling, hormone therapy and reassignment surgery from private or public insurance plans.

The impact of this statement remains to be seen, but it could prove significant in a number of legal arenas. While exclusions in private insurance are nearly impossible to challenge, litigants could draw support from the AMA's position in a number of other areas:

Medicaid coverage. States make their own rules for Medicaid coverage -- within reason. Challenges to the exclusion of transition therapies have been a mixed bag to date, and no doubt there will be more in the future.

Prisoner health care. In 2005, Wisconsin passed a law (the "Inmate Sex Change Prevention Act") that bars prison doctors from providing any kind of transition-related treatment to inmates, no matter how medically necessary. The law is currently being challenged (under the Eighth Amendment, which forbids denials of medically necessary care to prisoners) in a case called Sundstrom v. Frank. The federal district court temporarily enjoined the law, and the case went to trial last fall. If the law is upheld, similar measures will no doubt be considered elsewhere.

Tax deductions. The U.S. Tax Court is expected soon to release a decision (In re Rhiannon O'Donnabhain) on whether sex reassignment surgery is a medically necessary, and therefore tax-deductible, expense.

In all these areas, the legal question boils down to whether transition therapies are appropriate, necessary medical care.

Off-topic: Boudmediene and the "sliding scale"

Plenty of people (for example, here) have plenty of interesting thoughts about Boumediene v. Bush. There's one aspect of the case, however, that has nagged at me ever since the detainee cases first started wending their way through the courts. And that is the argument over whether due process rights, and the writ of habeas corpus, extend to non-citizens held abroad - or, in the case of Guantanamo, "abroad."

I realize that this argument is based on the "sliding scale of rights" analysis found in Johnson v. Eisentrager, which states; "The alien, to whom the United States has been traditionally hospitable, has been accorded a generous and ascending scale of rights as he increases his identity with our society." The argument that constitutional rights stop at our shores is, therefore, not new to the Bush Administration.

It nevertheless strikes me as wrong as a matter of constitutional structure and text. Those who label themselves "federalists" should appreciate that "constitutional rights" are not merely grants of rights to individuals but limitations on the power of government. The Constitution defines the powers that government does and does not have. I see no reason, based on that arrangement and the text that describes it, to construe those powers as shorn of those limitations simply because they are exercised outside the country and against non-citizens. If the government lacks the power to detain people without certain procedural safeguards, it lacks that power. There are pragmatic arguments as to why this should not be the case, but I can't see how those arguments are tied to the Constitution. "No person" in the Fifth Amendment seems plain to me.

I appreciate, however, that there is a possible textual and historical argument with regard to the Suspension Clause. The clause speaks of "the writ of habeas corpus," clearly invoking the common law tradition associated with that writ. To the extent that the writ was, at common law, understood as extending only to the subjects of the Crown and/or to actions taken within the boundaries of the Realm, the Constitution may be read as incorporating similar limitations. But this argument, it appears, applies to the writ but not the Fifth Amendment Due Process Clause.

These are, of course, off-the-cuff comments on a subject I'm not at all versed in -- but then so is most of the discussion about the detainee cases.

Marriage equality: Norway is Number Six

The Norwegien parliament today adopted a law granted same-sex couples the right to marry. Dale Carpenter at the Volokh Conspiracy provides the details. In essence, same sex couples can now:

• Marry (until now they could have registered partnerships)
• Have their registered partnerships "upgraded" to marriage
• If they wish, retain their registered partnership
  
• Adopt as a couple
• Access assisted reproductive technologies
  

Cook v. Gates: First, Ninth Circuit divide on DADT

It was only a few weeks ago that the Ninth Circuit Court of Appeals permitted a challenge to "Don't Ask, Don't Tell" to go forward, saying the lower court applied a too-lenient standard in dismissing the case.

But yesterday, the First Circuit rejected a similar challenge (PDF), saying the policy does not violate Due Process, Equal Protection or the First Amendment. This apparent circuit split provides more reason to think the Supreme Court will eventually consider the matter -- unless the political branches change the policy first.

As Paul Segunda at Workplace Prof Blog notes, there is an interesting similarity between these opposing decisions. The First Circuit opinion in Cook v. Gates states: "We agree with much of the reasoning set forth in [Witt v. Secretary of the Air Force] but also part ways with the 9th Circuit's approach in some significant respects." The panels' most significant agreement was "Lawrence [v. Texas] did indeed recognize a protected liberty interest for adults to engage in private, consensual sexual intimacy and applied a balancing of constitutional interests that defies either the strict scrutiny or rational basis label."

But unlike the CA9 panel, the court saw no need to send the case back to the district court to apply this heightened standard; instead, it simply held that DADT meets this standard. There are, I think, two reasons for this:

First, the CA9's version of "intermediate" Due Process review is tougher than the CA1's version. Whereas the the CA9's standard require some evidence that the government's rationale is actually served in the case at hand, the CA1's standard requires only that the government's "animating concern" be "brought into play." Accordingly, DADT is okay under the CA1 standard because all those to whom it applies could end up deployed to a combat area, where concerns about morale and cohesion are relevant.

Second, the CA1 gave great deference to the government's judgments about military necessity -- deference that won't apply, of course, in other sexual-privacy cases.

Cook also involves a claim not presented in Witt: a First Amendment claim. The court rejected this claim as well, but Judge Saris dissented on this point. Saris reasoned this way: Even for "content-neutral" regulation of speech, the test includes whether the regulation actually furthers the government's goals. DADT is clearly a regulation of speech - statements about one's sexual orientation or relationships are treated as an essentially irrebuttable presumption that one is unfit to serve. And under any standard that asks whether DADT actually serves its supposed purposes, the policy loses.

All of this reinforces the point that in constitutional cases such as these, the standard of review accounts for nearly everything -- and particularly, whether the government is required to back up its policies with actual proof that they serve their supposed purposes, rather than mere conjecture.

San Francisco redux on a Greek isle?

The mayor of the Greek island of Tilos has performed civil marriage ceremonies for a lesbian (but not, apparently, Lesbian) couple and a male couple, despite a senior prosecutor's warnings that he did so in violation of Greek law. The mayor was not exactly pulling a Gavin Newsom; unlike California in 2004, Greece has no specific ban on marrying people of the same sex.

The press is calling these"the first same-sex marriages in the country." Well, certainly the first in several centuries.

Challenging a constitutional amendment?

A commenter asks:

I saw something on SFgate.com about the possibility of the California Supreme Court declaring this new amendment unconstitutional if it passes. Is that legally possible in California? Can the state supreme court do that to a new amendment?

This argument has been raised with respect to the proposed constitutional amendments in both California and Massachusetts . There are really two very different arguments suggested here:

1) The state constitution would then violate the federal constitution.

This is pretty straightforward, since the Supremacy Clause says the U.S. Constitution trumps state constitutions. Don't expect to this sort of claim pursued, however; litigating marriage in the conservative-dominated federal courts in the foreseeable future is probably not a wise strategic move for the LGBT equality movement.

2) The new state amendment would be so inconsistent with the existing provisions of the state constitution that it would be invalid.

This theory was floated in a concurring opinion by two Massachusetts high court justices in Schulman v. Attorney General (PDF). In Schulman the court held that the state constitution did not forbid a proposed constitutional amendment that would reverse Goodridge v. Dept. of Public Health and ban same-sex marriages. The court held that, although the constitution forbids amendments designed to "reverse a judicial decision," that provision applies only attempts to reverse the application of law in a particular case, not amendments seeking to change the applicable legal standard.

The court was unanimous on this point, but two justices wrote a concurring opinion that raised the possibility of a different challenge to the amendment if it were enacted. Justice Greaney wrote that:

There is no Massachusetts precedent discussing, or deciding, whether the initiative procedure may be used to add a constitutional provision that purposefully discriminates against an oppressed and disfavored minority of our citizens in direct contravention of the principles of liberty and equality protected by art. 1 of the Massachusetts Declaration of Rights. ... Put more directly, the Goodridge decision may be irreversible because of its holding that no rational basis exists, or can be advanced, to support the definition of marriage proposed by the initiative and the fact that the Goodridge holding has become part of the fabric of the equality and liberty guarantees of our Constitution. If the initiative is approved by the Legislature and ultimately adopted, there will be time enough, if an appropriate lawsuit is brought, for this court to resolve the question whether our Constitution can be home to provisions that are apparently mutually inconsistent and irreconcilable.

This is, as far as I'm aware, a completely novel argument. It has a certain logic to it, and deserve careful thought, but my initial impression is that this theory is not a winner. Democratic constitutions can be amended by the people, even if they reverse the effects of existing provisions. The Reconstruction Amendments, for example, fundamentally altered the relationship between federal and state government, in a way that flew in the face of then-established understandings of federalism and enumerated congressional powers. That was the point!

The difference here is that an amendment would not expand but limit the established rights of individuals as against the government. This is, I think, the distinction Justice Greaney would draw, but I am not sure it is a compelling one. If the California or Massachusetts constitution are amended, we shall see.

(There's a third possible argument under some other state constitutions: that a new amendment is invalid because it is addresses multiple, distinct subjects. But this argument a) has failed in other states so far, b) is as far as I know based on language absent from the CA or MA constitutions, and c) would not apply to the CA ballot measure in any case, because it addresses only marriage and not civil unions, domestic partnerships or anything else.)

Virginia lets Vermont visitation ruling stand

Those of who hoping for a dramatic clash of states-beginning-with-V in the U.S. Supreme Court will no doubt be disappointed: Virginia's Supreme Court (PDF) today apparently closed a long-running dispute between feuding same-sex parents, leaving untouched a Vermont court's award of visitation rights to the non-biological mother. No doubt even more disappointing for those in the bleachers, the high court didn't address whether the state's anti-marriage constitutional amendment stood in the way of enforcing the Vermont court order.

Instead, the court resolved the appeal on the basis of the "law of the case doctrine": because Lisa Miller-Jenkins failed to file a timely appeal from an earlier Virginia Court of Appeals decision in a separate, but essentially identical, lawsuit, she was barred from raising the same issues before the state's highest court now.

The earlier Virginia appeals decision, in accord with the Vermont Supreme Court's decision in the same case, held that under the federal Parental Kidnapping Prevention Act, Vermont had exclusive jurisdiction over custody of the child. The point of the PKPA is to prevent parents who get a court decision they don't like from making off with the child to another jurisdiction to re-litigate the issue there. Under the PKPA, whether a Vermont civil union -- which the two women in the case formerly had -- would be recognized by Virginia courts is beside the point.

How Appealing sums up early press coverage.

Equality Virginia (which represented non-biological mother Janet Miller-Jenkins) provides a FAQ on the case.

While this appears to resolve the Miller-Jenkins case, it also means the Virginia Supreme Court could consider similar arguments -- that its anti-marriage law and amendment preclude recognizing other states' family court orders, notwithstanding the PKPA -- in a later case.

Witt v. Secretary of the Air Force: What Lawrence Did, Not What It Said

Professor Vikram David Amar has an interesting piece at FindLaw about the Witt decision (previously blogged here), wherein he notes that central to the reasoning of Witt was a functional rather than textual approach to the seemingly perennial question of the level of review in Lawrence v. Texas:

Lawrence is notoriously inscrutable in this regard, and has thus been a vexing case for constitutional law professors to teach. [One suspects Amar has been one of those vexed professors!] The Ninth Circuit panel argued, interestingly, that this linguistic inscrutability should lead us to focus on the Court’s result in Lawrence, rather than just on what the Court said in reaching that result. As the Ninth Circuit put the point, “[i]n these ambiguous circumstances, we analyze Lawrence by considering what the Court actually did, rather than by dissecting isolated pieces of text. In so doing, we conclude that the Supreme Court applied a heightened level of scrutiny in Lawrence.”

While the inscrutability of Lawrence is perhaps an unusually pointed example, courts often puzzle over just what the holding of a decision is, sifting through sometimes seemingly inconsistent bits of an opinion. The Witt panel's function approach seems to me to be a faithful application of the distinction between ration decidendi and obiter dicta: when the text of a binding opinion is ambiguous as to its rationale, look to the holding the court reached and how it got there. In Lawrence, the Court got there by criticizing Bowers v. Hardwick for misunderstanding the nature of the privacy right involved, and citing decisions that applied heightened scrutiny. In fact, most of the Court's reasoning would have been dicta if it were applying rational-basis review. This is not a self-evident, unassailable approach, but it makes more sense - simply as a matter of how to apply a confusing precedent - than anything else I've seen on Lawrence.

Amar also correctly notes that the Supreme Court is likely to ultimately decide the DADT issue -- if, and it's a big if -- the political branches don't chuck the policy first.

Marriage ban will be on ballot; no stay from high court

As has now been widely reported, the anti-marriage constitutional amendment will be on the California ballot in November. And today, the state's Supreme Court announced that it will not stay its decision in the Marriage Cases pending the vote (PDF). Marriage equality supporters should take comfort in this, and in the new Field Poll showing a majority of Californians opposing the amendment (PDF). One suspects these numbers will only get better for the Equality for All campaign. Nevertheless, it's no doubt going to be a hard and expensive fight.

Miscellany: News on Abortion Rights, Discrimination, Parenting

Law.com report: "3rd Circuit: Woman Cannot Be Fired for Having Abortion." The plaintiff was an office manager for a company that insured used cars. In the second trimester, she learned of severe deformities in her pregnancy and had an abortion. Her employer claimed her firing was because she mishandled the scheduling and use of leave time for the procedure and after, but plaintiff sought to prove it was really because of the procedure itself. The Sixth Circuit held in 1996 that the Pregnancy Discrimination Act protects employees' right to terminate their pregnancies, and the EEOC endorses this view, but other circuits had not addressed it. The Third Circuit now agrees that the term "related medical conditions" includes abortion. Opinion here (PDF)

The AP reports : "A federal appeals court says Virginia's law banning a type of late-term abortion is still unconstitutional, even though a similar federal ban has been upheld by the U.S. Supreme Court. The 2-1 decision Tuesday by the 4th U.S. Circuit Court of Appeals affirms the same court's 2005 ruling striking down the law. The Supreme Court had ordered the appeals court to take another look at the law after the ruling on the federal ban." Opinion here (PDF).

The Baltimore Sun reports: "Court denies visitation to gay ex-partner; Md. ruling has broad impact for nontraditional families": "In a decision with broad ramifications for nontraditional families, Maryland's highest court ruled Monday in favor of an adoptive mother who is seeking to deny her former partner visitation rights to a child that both had cared for during their relationship." You can read the decision at this link (PDF), and the Sexual Orientation and the Law Blog discusses the decision here.

Also at Law.com: Circuit Courts Address Discrimination Based on Interracial Association - I've discussed this topic recently, and this article gives a cogent discussion, including the parallel to discrimination based on same-sex relationships.

From Feministing (a couple weeks late!): UK won't lower abortion limit from 24 weeks - Conservatives in Parliament had advocated restricting abortions after 20 or 22 weeks instead of the current 24 weeks. Both measures failed, by 332-190 and 304-233 respectively. Hat tip to Reproductive Rights Profs Blog.