Undue Burdens

This week, Kentucky will defend state regulations designed to make it more difficult to open and operate abortion clinics. Known as "TRAP laws," these regulations target abortion providers with medically unnecessary hurdles to operation. Two Louisville abortion providers, Planned Parenthood and the private EMW Women's Surgical Center, are suing, arguing that the state is using unconstitutional regulations to either keep them out of business (PP) or shut them down (EMW).

The key regulation at issue in Kentucky is one that requires abortion clinics to acquire "written agreements" with a "licensed acute-care hospital" and a "local ambulance service" to care for clinic patients who may need emergency treatment beyond what the clinic itself can provide. The regulation does not specify what content is required in these written agreements, nor does it specify how close a hospital must be to the clinic for an agreement to be valid.

There are several problems with this regulation. First, hospitals and ambulance services are required by law to treat and transport emergency patients no matter where they come from. If a patient at the downtown Louisville location of EMW were to face a serious emergency, the clinic need only call 911 and a Louisville Metro EMS ambulance would arrive to take her to the nearest hospital, which is just a few blocks away. This would happen automatically, no "written agreements" necessary. So the written agreement regulation is medically unnecessary.

Second, if a hospital and ambulance service would be available anyway, what's the problem with getting a written agreement that confirms this? It should be simple, right? Well, Governor Matt Bevin has allegedly used his power to pressure Louisville hospitals not to enter into written agreements with abortion providers. For example, Planned Parenthood and the University of Louisville Hospital claim that that hospital rescinded a written agreement with the PP clinic after Bevin and his underlings directly threatened the hospital's various funding sources. PP then reached out to hospitals in southern Indiana (less than a mile away, just across the Ohio River) and in Lexington (50 minutes away) but the state has rejected those as too remote (even though the regulation specifies no geographical limits).

So PP is left without the paperwork necessary to get a license. And now EMW is trying to renew its license and is facing the same problems.

Regulations like these are specifically designed to interfere with a woman's right and access to abortion. Similar regs have been struck down by the U.S. Supreme Court because they create an "undue burden" on the autonomy of women without providing any legitimate medical benefit. Just last year, the Court struck down Texas regulations (and similar ones in other states) that required abortion providers to have hospital admitting privileges and required the clinics to be equipped as if they are "ambulatory surgical centers," even though they are not.

All of these schemes are part of a desperate flanking effort by conservative politicians to ban abortion without actually banning it, which they cannot do outright under current Supreme Court case law dating all the way back to 1974's Roe v. Wade decision.

Speaking of Roe, immediately after that decision, Kentucky passed new laws allowing and regulating abortion, but very begrudgingly. It set strict rules on who could perform abortions, where they could perform them, and what hoops women had to jump through to get them.

These laws are of varying coherence. One of the more head-scratching examples comes from KRS 311.710, the "Legislative Findings" section, first passed just after Roe. Subsection 1 reads:

How, exactly, the Commonwealth can ensure that an unborn child continues its "life after its abortion" is not explained in the law. Nor is it explained in Nebraska law, which passed a nearly identical statute around the same time. The Nebraska legislature uses stronger language to denounce abortion than Kentucky does, and it identifies Roe v. Wade by the date it was decided. Kentucky is more subtle, but does conclude the statute with a promise - if the Supreme Court changes its mind about this silly "woman's right to privacy" thing, you can bet the Commonwealth will ban abortion again.

It is the present intention of the General Assembly to protect the valid and compelling interests of the Commonwealth and its inhabitants without unduly burdening a woman's constitutional privacy rights as delineated by the courts. If, however, the United States Constitution is amended or relevant judicial decisions are reversed or modified, the declared policy of this Commonwealth to recognize and to protect the lives of all human beings regardless of their degree of biological development shall be fully restored.

So far that hasn't happened (if not without trying), and, presuming that the federal courts maintain their current position on TRAP schemes, Kentucky's attempted end run around Roe and its progeny via unnecessary and burdensome regulations will soon be eliminated, frustrating once again the "declared policy" of the Commonwealth.

Obergefell Grows Equal Protection Teeth on its Second Birthday

In Obergefell v. Hodges, Justice Anthony Kennedy focused primarily upon marriage as a "fundamental right" protected by the Due Process Clause of the Fourteenth Amendment. As such, the states were required to come up with a strong argument why they could deny it to anyone, let alone gay couples. They couldn't, at least not in the eyes of five of the justices, and the gay marriage bans were struck down.

Justice Kennedy didn't totally limit his reasoning to the due process question of rights, however. He did specifically reference the doctrine of equal protection - also required by the Fourteenth Amendment - and said that it and due process are tied together, based on similar principles of liberty and freedom and both protective of dignity and autonomy.

But many observers have criticized Obergefell for focusing too heavily on fundamental rights and not enough on equal protection. 

That's where Arkansas comes in. There, as in most states that I'm aware of, it is customary for the male spouse of a mother to appear on her child's birth certificate. It happens automatically, regardless of whether the husband is really the biological father of the child. There is no distinction for cases of adultery or artificial insemination. If you're a husband and your wife has a child, your name goes on the birth certificate. End of story.

But that wasn't the case for same-sex spouses in Arkansas. If a woman gives birth there and is married to a woman, her spouse's name didn't go on the birth certificate. Her spouse was not automatically considered the parent of the child - at least when it comes to documenting the birth.

Two couples challenged this rule. They won at the trial court level, but the Arkansas Supreme Court, considering the scope of Obergefell, found that the birth certificate rule "pass[es] constitutional muster" and upheld it.

Today, the U.S. Supreme Court summarily reversed that conclusion in Pavan v. Smith, an anonymous "per curiam" opinion. Why? Because Obergefell held that same-sex couples are entitled to "the constellation of benefits that the State has linked to marriage" on "the same terms and conditions" as different-sex couples. In other words, those couples are entitled to equal protection.

"Disparate treatment" is an equal protection term for discrimination. It doesn't get any clearer than that: Obergefell prohibits treating same-sex couples differently than different-sex couples when the state is doling out various "rights, benefits, and responsibilities" of marriage, including the presumption of parentage to the spouse of the birth mother. If husbands who are not biological fathers are entitled to be listed, then wives who are non-biological mothers must be listed. Simple enough.

But it apparently isn't that simple to Justices Gorsuch, Thomas, and Alito. Gorsuch, writing for them all, argued in dissent that summary reversals such as Pavan are only allowed when "the law is settled and stable...and the decision below is clearly in error," and this is not such a case.

Why? Well, first because there is no "constitutional problem with a biology based birth registration regime" standing alone (an overly simplistic conclusion based primarily on the sharply divided plurality decision of Michael H. v. Gerald D.). Second, the plaintiffs didn't directly challenge the artificial insemination provision of the law, just the general rule about "husbands" that excluded same-sex wives, so there was no reason for the Court to cite it as a reason for reversal. And third, the wife who is left off the birth certificate initially can simply adopt the child later and get added that way. 

Finally, Gorsuch says that Arkansas conceded before them that the artificial insemination rule, 9-10-201, would apply equally to same-sex spouses and thus there was not really a controversy for the court to resolve:

Thus, Gorsuch says, "it is not even clear what the Court expects to happen on remand that hasn't happened already." After all, Arkansas was going to list the mothers on the birth certificates anyway. This is much ado about nothing, or at least much ado about the wrong statute.*

But to me, the majority's view is more compelling. The rule that the plaintiffs challenged - the general requirement that a male spouse's name should appear on the birth certificate regardless of actual paternity, but not a female spouse's name, is discriminatory on its face. It treats same-sex and different-sex married couples differently. Under Obergefell, that's not allowed.

I am glad that six members of the Court took the opportunity to give Obergefell some equal protection teeth, especially as states and cities continue to try creative (and hateful) end runs around it. For example, the Texas Supreme Court is still considering whether Houston can deny marital benefits to municipal employees based on the sex of their spouse. Hopefully they will seriously consider Pavan and rule consistently with it.

*Update: As Mark Stern at Slate documents, Justice Gorsuch's recitation of the facts in the case is totally incorrect. Arkansas never conceded that it would list the birth mother's female spouse on the birth certificates. And it made no sense for the plaintiffs to challenge the artificial insemination rule because they didn't want to overturn it, they referenced it in support of their argument that the rule they did challenge - the rule limiting the naming of spouses to "husband" - was pointlessly discriminatory in violation of Obergefell. All of this suggests Gorsuch's opinion is fraught with errors that should be corrected.

Good Faith and the Rule of Law

Sixty-three years ago today, the U.S. Supreme Court struck down racial segregation in the case of Brown v. Board of Education. In doing so, it completely reversed an interpretation of the Equal Protection Clause of the Fourteenth Amendment that had held constitutional sway for more than a half century. In the 1896 case of Plessy v. Ferguson, the Court had ruled that "separate but equal" segregation of the races was consistent with equal protection.

In its Brown decision, the Court not only overruled Plessy as a general interpretive guide to the meaning of the Fourteenth Amendment, but it also ordered every public school district in the country to desegregate "with all deliberate speed:"

[T]he [school desegregation] cases are remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.

Despite this order, school desegregation in many places around the country did not occur with much speed at all - deliberate or otherwise. With lower courts guided only by this vague command, an organized resistance quickly manifested across the South, with governors and other state officials refusing to desegregate, some even going so far as to physically stand in the way of students themselves.

Many school districts resisted for a decade or more before desegregating. One district in Mississippi finally conceded that Brown v. Board of Education is the settled law of the land just this year.

Chief Justice Earl Warren and his colleagues on the Court in 1954 made a critical mistake in Brown. They assumed, or perhaps just hoped, quite naively, that state and local officials around the country would operate in good faith and dutifully adhere to the rule of law as they swore to do when they took their oaths of office.

The federal Constitution is the highest law in the land, and the federal Supreme Court is the final word on what the Constitution means, thus all other courts and jurisdictions must follow its commands. When state and local officials vow, in various forms, to defend and follow the constitution, that's what they're supposed to do.

But what if they don't? What if they refuse?

That's the tricky thing about the rule of law: it only works if people play along. The aftermath of Brown made this abundantly clear, but recent events are driving the point home once again.

What happens when government officials have a duty to enforce the law but decide not to? What happens, say, when an elected official violates the law, but nobody responsible for holding him or her accountable has any interest in doing so?

The rule of law simply ceases to have meaning.

Article 2, Section 4 of the Constitution says that an elected official, such as the President, can be removed from office through a process called impeachment:

The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Article 1, Sections 2 and 3, put the process of impeachment in the hands of the House of Representatives and the Senate. The House impeaches, and the Senate tries and convicts (or acquits).

So there is a constitutional method of enforcing the law against elected officials. Those who break the law can be removed from office by both houses of Congress working together, one to impeach and the other to convict.

The problem, of course, is that Congress is a political body, and the presidency is a political office. There are only two viable political parties in American politics, and control of the houses of Congress and the presidency each lies in the hands of only one party at a time. So, like in the past, there are times when Congress is controlled by one party and the presidency controlled by the other. Or, like today, Congress and the presidency are controlled by just one party.

When Congress and the presidency are controlled by one party, the weakness of the impeachment clauses reveals itself. A law-breaking president can only be held accountable by Congress. But if Congress and the president are members of the same party, impeachment only happens if Congress rejects its party loyalty in favor of upholding the law in good faith.

That seems like a pipe dream these days. The controlling party is now unwilling to hold its members accountable for anything. Even such serious crimes as obstruction of justice are committed with no fear of impeachment.

Was this inevitable? And if so, how could the Framers of the Constitution make such an egregious oversight when they drafted Articles 1 and 2?

At the time of the Framing, the tribalism of partisan politics in America had not yet entrenched itself. The Framers did not have the benefit of hindsight that we enjoy. But is it true that the Framers simply could not have foreseen our current political reality where party loyalty so totally trumps the rule of law?

Perhaps that was true for some of them, but not for all. One of the Framers was George Washington, and he, a member of no political party, became the country's first president. In his farewell address of 1796, he saw the writing on the wall, and issued this warning:

All obstructions to the execution of the laws, all combinations and associations, under whatever plausible character, with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle, and of fatal tendency. They serve to organize faction, to give it an artificial and extraordinary force; to put, in the place of the delegated will of the nation the will of a party, often a small but artful and enterprising minority of the community; and, according to the alternate triumphs of different parties, to make the public administration the mirror of the ill-concerted and incongruous projects of faction, rather than the organ of consistent and wholesome plans digested by common counsels and modified by mutual interests.

Nobody listened.

And now, today, the only effective method to remove law-breakers from the office of the presidency relies entirely on a good faith adherence to the rule of law by partisans who, in the periodic event that they control all of Congress and the Oval Office, may have no political will or even incentive to so adhere.

Like the aftermath of Brown v. Board, our current political reality shows us very clearly that the rule of law depends almost entirely on the good faith of our political leaders. God help us.

Brandeis Impact Litigation Practicum

This semester, I had the honor to help launch the Brandeis Impact Litigation Practicum at the University of Louisville Brandeis School of Law.

Through the practicum, law students are connected to clients who want to influence important legal cases through amicus curiae (friend of the court) briefs.

Amicus briefs, especially at the U.S. Supreme Court, can play a very influential role. They can provide diverse and detailed perspectives beyond the often narrow focus of the parties themselves and help judges reach better decisions in cases that could have a major social impact.

This semester, three very smart UofL Law students wrote a brief on behalf of the National Association For Public Defense and the Kentucky Association of Criminal Defense Lawyers, encouraging the U.S. Supreme Court to review a decision by the Kentucky Supreme Court. In its decision, the Kentucky court put serious limits on the ability of criminal defense attorneys to question the credibility of accusing witnesses. Many criminal cases are "he-said, she-said" situations and witness credibility is the key issue.

The case implicates rights under both the Sixth Amendment and the Fourteenth Amendment and could have a negative impact on criminal defendants across the country. The way our clients see it, a criminal defendant unable to attack the credibility of his or her accuser will often be left with no other defense.

Students Abby Braune, Evan Comer, and Taylor Richard all worked tirelessly on the brief with guidance from me and my fellow professors Dan Canon and Sam Marcosson. The end result is a brief that both they and their clients should be proud of.

The brief can be read here.

Gun Rights Could Survive the Repeal of the Second Amendment

The biggest hurdle to comprehensive restrictions on private gun ownership is the Second Amendment. It has been interpreted to protect an individual right to self defense, and local bans on handguns have been struck down under that interpretation. Other gun limitations have survived (so far), but at a minimum, the Second Amendment preserves a base level of individual armament.

But what would happen if both the Second Amendment and its state constitution counterparts were repealed? Would the government, either federal or state, be able to fully ban private gun ownership? The answer could very well be no for another reason than the one I discussed in my last post.

The Bill of Rights identifies specific individual rights, such as the right to free exercise of religion and the right to a jury trial. These rights are called "enumerated rights" and are entitled to strong protection from government interference. The right to self defense is an enumerated right.

But the Supreme Court has interpreted the due process clauses of the Fifth and Fourteenth Amendments to protect other rights beyond those specifically spelled out by the other Amendments. This process is called "substantive due process," and through it the Court has identified and protected certain "fundamental rights" that are not enumerated but are no less entitled to to strong protection.

One of these fundamental rights is marriage. The Bill of Rights contains no Amendment identifying marriage as an individual right, but the Supreme Court has long recognized that its importance to the exercise of personal autonomy is critical to citizenship and should be protected from unnecessary interference. The most recent case on this topic was Obergefell v. Hodges, which recognized a fundamental right to marry to which all people, regardless of sexual orientation, are entitled. Government therefore needs a very good reason to stop people from getting married.

Obergefell is very expansive in its language, and does not provide any clear test to determine if a claimed right is in fact fundamental. That wasn't really necessary in Obergefell, because the Court held that the marriage right sought by the plaintiffs in that case wasn't something novel but a very old right that had been repeatedly recognized as fundamental for decades. Gay and lesbian couples simply sought equal access to it.

By contrast, in the case of Washington v. Glucksberg, the plaintiffs asked the Court to recognize a fundamental right to determine the terms of one's own death, or, more crudely put, a right to die (through assisted suicide). The Supreme Court unanimously rejected this claim under a two-part test designed to ascertain whether a claimed right can really be considered "fundamental" enough to be protected by the Constitution (despite not being mentioned by it).

The first question is to determine a "careful description" of the asserted liberty interest. For a right to be fundamental it cannot be vague or nebulous. The second question to answer is whether the carefully described liberty interest is "deeply rooted in the Nation's history and tradition."

The Court in Glucksberg rejected the idea that there is a general fundamental right to "self sovereignty" or personal autonomy and that there is a right to end one's own life on one's own terms included in that. "That many of the rights and liberties protected by the Due Process Clause sound in personal autonomy does not warrant the sweeping conclusion that any and all important, intimate, and personal decisions are so protected." Thus it narrowly defined the liberty interest sought by the plaintiffs as a separate "right to commit suicide" and be assisted while doing so.

Then the Court asked whether a right to commit suicide was deeply rooted in the Nation's history and tradition. Unanimously, the justices answered no. In fact, suicide and assisted suicide had been uniformly prohibited all across the country with nearly no exceptions. Thus, the right sought in Glucksberg was not fundamental and therefore not entitled to special constitutional protection.

There is an argument that Glucksberg has been displaced by Obergefell as the prevailing case on substantive due process, but I'm not convinced for the reason I stated above. Obergefell dealt with a right long previously recognized by the Supreme Court as fundamental. It simply struck down a form of interference with that right. Glucksberg, on the other hand, dealt with a fairly novel asserted liberty interest that had not been allowed or recognized almost anywhere before.

But I digress. The point I'm getting to is that even if you apply the more conservative test and holding of Glucksberg to the question of arms, the likely result is that a right to self defense, or, in the alternative, a right to privately own guns, must be considered a "fundamental right" even if it is someday no longer an enumerated one.

The right to bear arms, or the right to defend oneself, is clearly defined. In fact, it's much easier to define this right if you do so independently from the muddled, confusing language of the Second Amendment itself. A basic right to be armed for self defense is simple and clear cut. Perhaps a right to own private nuclear weapons would not be considered fundamental, but a right to own handguns and rifles certainly would be (since those weapons have always coexisted with the United States).

And a right to private gun ownership is most certainly "deeply rooted" in the national tradition. Private gun ownership predated the Second Amendment and has been allowed - in most states with very few regulations irrespective of the Militia Clause - from the Founding until today. Guns are as American as apple pie (tragically, perhaps).

Under the Glucksberg test, it is difficult to see how a right to bear arms would not be considered fundamental, and therefore retain its protected status despite a repeal of the Second Amendment and all other state constitutional analogs. Granted, a federal amendment explicitly prohibiting gun ownership (similar to the now-repealed Eighteenth Amendment's prohibition of alcohol distribution) would likely cancel out a substantive due process argument.

But if the Constitution were to go silent on the matter, it would be difficult to see how states or the federal government could use the repeal of the Second Amendment to enact total bans on ownership as long as substantive due process remained a viable line of constitutional attack. The Fifth and the Fourteenth Amendments would become the new sources of American gun rights.