Gonzales v. Carhart and informed consent

I'm currently revising for publication an article (originally written last fall) on the constitutionality of abortion-specific informed consent laws -- a topic on which precious little clear-cut analysis has appeared in case law or commentary. Naturally, the challenge now is to figure out how Gonzales v. Carhart, and its strange language about informed consent -- strange because of the argument that banning a procedure somehow better informed women's choices.

Jack Balkin has suggested, quite rightly I think, that this language may spur state legislatures to be even bolder in passing requirements that ever-more specific -- and inevitably, more controversial -- statements be given to women seeking abortion about fetal development, supposed risks of abortion, et cetera. Be that as it may, it remains to be seen whether this new wave of requirements -- a wave that was already underway before the Supreme Court decision -- can themelves withstand constitutional scrutiny. Does Gonzales v. Carhart say anything new about the validity of informed consent statutes?

The argument I'm leaning towards, is, No, not really, and for a few reasons.

First, the state interests emphasized in Carhart II are the same ones identified in Planned Parenthood v. Casey: showing "respect for life," and ensuring that women's choices are fully informed, lest they regret them. Moreover, Casey had already established the informed-consent rubric could include not only information pertaining to the patient's health, but also to the fetus. Carhart II simply rephrased these principles, and implicitly accepted along with them that these interests are served only where the information is "truthful and not misleading."

Second, Carthart II did not strike a strong blow for the principle of deference to legislative factfinding. Rather, the Court seems to have bunted on this issue, as once stating that it used a "deferential standard" but that it would not give "uncritical deference" (thus muddling further its already muddled case law on this question). In fact, the Court pointed out that some of Congress's findings were wrong, and rested its conclusion on Congress's prerogative to assess the "balance of risks" in marginal cases, a classic policy judgment. This surprised me quite a bit, as I had guessed the Court would treat the deference issue, emphasized in Kennedy's Stenberg dissent, as decisive.

Now, don't get me wrong: what Kennedy actually does with these seemingly sensible puzzle pieces is incoherent and almost absurd, and promotes a deeply sexist conception of women's need to be protected from themselves in the bargain. And his reliance on an amicus brief touting the discredited "post-abortion syndrome" may be a sign that, under whatever doctrinal cloak, Kennedy may be all too sympathetic to antiabortion factual claims even if they are demonstrably bogus.

But whatever ill Carhart II may auger in other areas, the opinion, taken at its word, does not leave legislatures any freer than they were to force clinics to promulgate medical information that is dubious, outdated, or misleading. To go out on a limb just a bit, if the lower courts do engage in robust factual scrutiny of these requirements, stubborn legislators (or state health departments) could end up playing ping-pong with them, struggling to craft the most inflammatory assertions they can get away with in the face of unfavorable rulings.

Quick numbers on relationship recognition and discrimination laws

I promise I'll write some things that don't relate directly to LGBT rights soon; I have some ideas, but this whole finishing law school thing has been a bit of a distraction. For now, some interesting figures in light of recent legislation in Iowa, Washington, Oregon and New Hampshire:

States with full marriage recognition: 1
States with civil union or equivalent recognition: 6 (now incl. NH, OR)
States with modest partnership recognition: 3 + DC (now incl. WA)

States with sexual orientation-inclusive discrimination law: 20 +DC (now incl. IA, CO, OR)
States with gender identity-inclusive discrimination law: 12 +DC (now incl. IA, CO, OR)

For maps of the states, go here and here -- but not that the partnership recognition map designates by the term used rather than the extent of recognition conferred. This is an impotant distinction, since "domestic partnership" in Washington is more modest, whereas "domestic partnership" in California is basically equivalent to "civil union" in VT, CT, NJ & NH.

These numbers are impressive and, at the moment, expanding rapidly -- although we may soon hit the point where expansion slows again as all the states that are ready adopt these laws do so, and efforts in other states fall to gain momentum for the time being. In any event, the number of states in all these categories is now enough that we can start studying their effects across many states and very large populations, rather than relying on evidence from abroad (to which American policymakers, and indeed Americans in general, have always appeared inexplicably indifferent, regardless of the issue). An article from last year in the journal Pediatrics reads like a roadmap for such research, but we don't really seem to have good empirical work yet -- which we need.

Today's theme: trying to have it both ways

As you've probably heard, the House of Representatives just passed a bill expanding the federal hate crimes law. The law both provides for expanded federal assistance to local law enforcement in hate crimes cases, and expands the federal hate crimes statute to include crimes motivated by gender, sexual orientation and disability. The Bush administration opposes the bill, and may even veto it.

As Michael Dorf points out in a thoughtful column today, the White House's objections to this legislation are pretty flimsy. Not only are Commerce Clause and First Amendment objections here seemingly inconsistent with recent Supreme Court jurisprudence, but if valid, they would also apply to the existing federal hate crimes law, which covers crimes motivated by race, national origin, and religion. The White House statement gives nothing but ambiguous hints as to the administration's position on the existing law; it certainly doesn't call for its repeal.

If the White House is serious about these arguments, it should say, "The hate crimes law is a bad law and we should not expand it," even if it isn't willing to expend its now-scarce political capital pushing such a repeal. Moreover, with regard to the First Amendment, the White House should make the case that the protections inserted in the bill in its 2005 iteration to quell the longstanding concerns of the ACLU -- namely, barring the use of a defendant's unrelated speech or associations to establish motivation for a crime -- are not enough.

Like Dorf, I suspect that these objections are just a transparent pretext for homophobia. It's pretty apparent at this point that, for both opponents and supporters, the hate crimes bill doubles as a rehearsal for the recently-reintroduced Employment Non-Discrimination Act. Expanding the hate crimes law, both sides believe, will set a precedent easing the way to expand the Civil Rights Act. And judging from the White House statement on the former, it looks like the White House is cautiously groping for a viable position on the latter.

Our second topic for today is the military's increasing disregard for "Don't Ask, Don't Tell" in light of its increasingly strained human resources, exemplified by the case of a Navy linguist called back to service, even though he had concluded his prior service in the midst of being discharged for being openly gay. They could do this because, technically, his "DADT" discharge never went through, and he left because his time was up; they've apparently just decided to ignore his sexual orientation this time around. When you've squandered mountains of cash on recruiting, training and discharging queer servicemembers with specialized skills like this fellow, "What? Gay? We didn't hear nothin'" starts to sound like wise personnel policy.

Ironically, this particular story hits the news just weeks after the Joint Chiefs Chairman turned heads by declaring he supports DADT because homosexuality is "immoral." (You'll recall that General Pace later "regretted" his remarks, not because he didn't mean them, but because his own "moral views" are beside the point when it comes to military policy.) Fortunately, General Pace now gets to enjoy both the moral superiority of hanging onto DADT and the practical advantage of conveniently ignoring it now and again.

Now, perhaps it's unfair to compare the military's fudging of DADT to the White Houses's dubious arguments on the hate crimes bill. At the end of the day, DADT isn't actually the military's policy -- it's Congress's -- and lots of folks within the military would just as soon see it go, General Pace notwithstanding. Nevertheless, I do see a bit of a parallel here: the White House appears to want to please social conservatives by opposing a pro-gay bill, without displeasing pretty much everyone else by attacking the existing law, even though the two are essentially the same. And some Pentagon leaders want to stick to an anti-gay policy ostensibly based on the erosion of unite cohesion and morale by out troops, but at the same time is at least willing to tolerate the occasional, highly skilled out troop, even though, well, you get the idea.

Ohio courts just don't get transgender issues

There's been a fair amount of media attention of late (including a New York Times piece last December and a 20/20 special last week) on the question of how parents should deal with their young transgender children -- most particularly, should they permit them to present as the "opposite" gender at home and at school? This coverage has been, on the whole, surprisingly sympathetic to parents who answer "yes."

Although litigation on this issue between warring parents was inevitable, it had not arisen in this country until now. The Family Court of Australia has delivered the most thorough treatment of the issue, in holding that a 13-year-old ward of the state should receive hormone therapy to delay puberty an, in the long term, to facilitate gender transition.

Now, the latest Lesbian/Gay Law Notes reports an Ohio appellate decision affirming the denial of custody to a previously custodial mother because she brought her child to transgender support groups and registered her at school as a child (in contrast to her birth sex). I don't think I can add much to the discussion of the case in Arthur Leonard's lengthy blog post, but this decision -- which stands in contradiction to the balance of expert psychological opinion -- looks like a cry for judicial education. Ohio is, after all, one of the few states that persists in the just-because position that gender is immutable.

Addendum on abortion and federalism

Neal Devins of William & Mary was way ahead of me with his new article on the subject:

My claim is simple: The Rehnquist Court was able to revive federalism, in part, because there was no reason for the Court to fear political retaliation for its federalism decisions. Congress, interest groups, and the American people do not care about federalism. On abortionrelated issues, pro-choice interests care about the pro-choice agenda; pro-life interests care about the pro-life agenda. Federalism does not figure into these agendas and, as such, it is politically irrelevant to the debate over abortion. The political fight over partial birth abortion exemplifies Congress’s uninterest in federalism.

Moreover, Lynne Deniston at SCOTUSblog is probably right that, while still-pending PBABA case in the Second Circuit presents the opportunity to raise the federalism issue, reproductive rights advocates probably won't, because they (a) don't care about federalism on its own merits and (b) know very well that any further shoring up of Rehnquist federalism could bite them in the ass on future legislation they favor.

Abortion and federalism

There is, of course, currently an impressive flurry of online discussion about Gonzales v. Carhart -- to which I am paying close attention, it bears very much upon my forthcoming article on informed consent and abortion. I have many thoughts about this decision and its ultimate import, but for now I'll settle for noting the latent federalism question. As Justice Thomas noted in his concurrence, the parties and the lower courts did not raise whether the Partial-Birth Abortion Ban Act was valid Commerce Clause legislation, and so the Supreme Court didn't either.

Until PBABA the Congress, though monkeying with federal funding provisions, had otherwise stayed out of the abortion issue, and it's far from clear whether this kind of law could survive recent federalism precedents. But liberal Democrats have decided to jump into the game, too, reintroducing a a bill from the 109th Congress that would attempt to codify Roe, in all its pre-Casey, strict-scrutiny glory, in the U.S. Code. This bill didn't go anywhere before, and its still might not now, even with the fresh Carhart II furor. After all, the PBABA had significant support from Democrats. It may be that this new bill, if passed, would not pass federalism muster, and neither would the PBABA. Yet public opinion appears to favor uniform, national rule-making on these hot-button issues.

Now, that opinion might change with the new Congressional majority, or new Supreme Court decisions, or whathaveyou. It seems to me that, outside that intellectual arena, when we talk about federalism and "leaving things to the states," the argument is typically a cipher for substantive policy preferences -- i.e., those supporting abortion restrictions favor "leaving it to the states" because the trend in the states was toward restricting abortion; those supporting recognition for same-sex couples favor "leaving it to the states" because there is a long-term liberalizing trend there, in contrast to the proposed Federal Marriage Amendment.

Alternatively, appeals to federalism might be a reflection of our ambivalence about the substantive issue (i.e., we want to have it both ways, for now). But it's hard for most of us to care about federalism for its own sake; instead we argue it because it sounds eminently reasonable, and because it may appeal to the ambivalent.

Having lost on the substantive issues, reproductive rights groups might now launch a federalism challenge to PBABA, and might win. But they'll have a hard time selling the federalism line to their constituents or to anyone else. Perhaps federalism is most important when it comes to controversial social issues (as opposed to true economic regulation) -- but today, do many of us really care?

Alternative sexuality in the news

Since I've recently written about BDSM and the criminal law, it seems worthwhile to point out one of the few regular sources for information about BDSM and other alternative sexualities in the news, including legal news. The National Coalition for Sexual Freedom is a public education and advocacy group dedicated to promoting "sexual freedom and privacy rights for all adults who engage in safe, sane and consensual behavior." Their primary focus is on issues related to BDSM, swinging and polyamory (a curious grouping, but one based on some common concerns). In addition to filing amicus briefs in a few high-profile cases, NCSF posts regular "Media Updates" collecting news reports from around the country. Though NCSF is very much an agenda-driven organization, the fact that their news roundups are commentary-free (save for a general exhortation to write letters-to-the-editor) makes them valuable for anyone interested in these issues or in current social debates over sexuality generally.

An intriguing article on "the right to be hurt"

In late 2004 I penned a column discussing what I perceived to be the rather ham-handed approach of some courts to the use of consent as a defense to criminal assault. The troubling implication of this is the possibility that people could be prosecuted for harmless, private and fully consensual sadomasochistic activities. However, the out-of-hand treatment of the consent issue in these cases could be explained by the troubling particulars of each case, and one could reasonably hope that future decisions would consider the issue more deeply.

Rugters professor Vera Bergelson's new article, "The Right to be Hurt: Testing the Boundaries of Consent," presents just the sort of thorough consideration of the issue I'd been hoping to see. Alas, along the way she points to larger collection of English and American cases -- stretching from 1934 to 2004 -- consistently rejecting any consent defense for purported sadomasochistic activities. The reported facts of these cases underscore that the factual problem of consent here is similar to that in rape cases, to wit, there exists the possibility both of false accusation by a willing "victim" and (perhaps more likely) false assertions of consent by the accused. Courts dodge these difficult determinations by rejecting the consent defense wholesale.

Bergelson's own analysis begins from the premise that issue of consensual "harms" must be treated comprehensively, considering a range of truly disparate phenomena ranging from sadomasochism, to elective amputation, to various kinds of consensual killing. (Doubtless, various readers are going to feel offended at the very idea of comparing x with y.) Examining the way these diverse issues have been previously dealt with in case law and commentary, Bergelson attempts to systematically demonstrate the inadequacy of various principles relied upon in resolving them.

Ultimately Bergelson proposes a "balance of evils" approach to consent defenses, quite similar to other justifications in criminal law. With the respect to the issue I originally was interested in -- consensual sadomasochism -- this approach has the virtue of providing an alternative result to the case law to date without the specter of a slippery slope. While courts have strained to bring sadomasochism within the ambit of "serious injury," it's clear that typically the physical harms involved will be so trivial (or nonexistent) as to "be justified by the mere fact that its participants desired it." The more troubling cases, involving lasting bodily harm or loss or death, will require much greater justification, and some will never be justifiable.

I suspect that Professor Bergelson's approach will not soon be wholeheartedly embraced by judges, particularly in cases where consent itself is disputed. But her thoughtful discussion of the issue is valuable indeed.