Constitutional Law II

29 September

• Fort Worth School
  What substantive rights govern the treatment of institutionalized persons.

  When you're spending someone else's money, it's tempting to spend a lot (why we don't want federal courts involved). See CERCLA, e.g.

  Also (why we want federal courts) this situation in part derives from local prejudices, and they don't travel well.

  The courts are all talk, at least here: they don't have the practical resources to solve the problem. This will undermine faith in the judicial system. And meanwhile, the legislature has an excuse to walk away from the problem, because the court has taken up the cause.

• "New Property:" the rights granted under Goldberg v. Kelly. The term is from a MI Law Rev article, probably. Poor people have an entitlement to a basic decent standard of living of some sort, even though they don't have traditional property.
• Roe v. Wade
  Still the most controversial substantive due process case, even 37 years later. It was originally a void for vagueness case, but got re-worked into what it became. This came out of the blue-- in retrospect Griswold foreshadowed it, but nobody expected that the right to privacy would include the right to abortion.

  It had been a while since the court had found a fundamental right.

  Used to be there were no statutes prohibiting abortion: it was way more dangerous than childbirth, so it wasn't a popular option. In the late 1800s, nearly all states ban abortion (many have an exception to save the mother's life). It was still more dangerous than childbirth, but the main goal here was to professionalize medicine and keep out competitors (back-room abortion performers).

  Then in the 20th century, there were advances (most notably antibiotics) that made abortion much safer. And there was this new idea of womens' rights. And the sexual revolution, and reproductive rights. A few states legalized abortion (NY), and many of them reformed their statutes: it was OK to perform an abortion to protect the life or health of the mother (the decision most often made by a hospital committee). And some lower courts had struck down abortion statutes.

  This decision strongly politicized supreme court appointments.

  Blackmun had been counsel for the Mayo clinic before appointment to the 8^th circuit.

  Because the language here is fundamental rights: we're looking at strict scrutiny.

  Note that the "second trimester" timing was based on viability in 1973-- we can have more premature babies nowadays. Change that rule, then?

  The decision looks like legislation-- maybe the court shouldn't have been doing that.

  Rhenquist, dissenting. This doesn't look like privacy, and there's no reason to say that this right is inherent in the concept of ordered liberty: in fact, it's outlawed most places.

  White, dissenting. (he was one of two Catholics-- Brennan was the other-- at the time). The court just made this up.

  The current court has 5 catholics (now that Sotomayor is there) and one crypto-catholic (Thomas is Episcopalean, but was in Catholic seminary studies before law school).

• Griswold
  Douglas. A new fundamental right to privacy in the area of married people and their communications with physicians involving the marriage relationship. So you can't make a law blocking married people from getting contraceptives.

  Penumbras and emanations from amendments.

  Going beyond precedent to find a right that is more than an amalgam of the various textual areas that it cites.

  The cases that Douglas cites (rights of students to learn German in NE after WW I) are liberty cases, not privacy cases. So this is a privacy right, but it is grounded in liberty.

• Horne the 5 conservative justices criticize the lower court's failure to consider all the facts, and say the lower court came to the wrong factual conclusion. The dissenters say that we don't overturn factual conclusions if they are at all thoughtful. This foreshadows Cromartie, in which the conservatives will flip.

1 October

• Back with Roe v. Wade
  Remember that Lindsey v. Normet came down right about the same time (same term, even though a year apart). That was a downturn in the court's willingness to find new individual rights, but Roe seems to swim against that tide. But this was the start of the court's "womens' rights" trajectory, and therefore maybe it shouldn't be grouped in the general trends of the court.

  Anyway, no real textual support here. History also doesn't get us far. But what about precedent? We've got Griswwold, and the opinion mentions a couple of older cases, but there's not a great deal of precedent there.

  So we are left with policy. The liberty argument (womens' liberty rights) is probably the strongest one.

  Do anti-abortion statutes discriminate against women? They apply to all pregnant people. This is a crazy argument, but people did seriously advance it.

  There's also the problem of the danger of illegal abortion-- that's a big one too.

  Other things lurking in the background: nobody gets pregnant in order to get an abortion-- the person in this position is faced with only bad choices. It's better to let the affected individual make this decision than an inflexible statute.

  Of course, if you don't allow abortions you could argue that there would be more children available for adoption, but it turns out that studies indicate that women who sought abortions but wound up carrying the child to term turned out to tend to keep the children. And (according to a study of twins--cited in Freakonomics-- in which one was adopted and the other stayed with natural parents) so-called "unwanted" children are at more risk for crime and other problems.

  Remember Holmes: whenever we draw a line, the boundary case will seem arbitrary.

  Note also that about 25% of conceptions and implantations end in spontaneous abortions. Not clear that this is a strong argument, but you might argue that saying life begins at conception might lead to some confusing consequences.

  And if you buy the (basically religious) proposition that life begins at conception, do you have an establishment clause problem (i.e., would laws enforcing this be an establishment of religion)?

  The big argument on the other side: this is murder, there's no historical precedent for it, many states are against it and so we've got both federalism and separation of powers issues here.

  Maybe the court just stepped in and helped out democratic interests here, since there was a passionate minority of single-issue voters dominating this one issue. On the other hand, maybe a passionate minority should have a major influence. And, as Scalia says, this has had a polarizing and crazy effect on politics and SCOTUS selection in particular. It realigned the political parties along social-issue lines: this makes it harder to resolve social issues through the political parties, because the parties are monolithically locked into one position.

  WI has never repealed its anti-abortion statutes, which conflict with Roe; they are waiting to spring right back into action in case it gets overturned.

  Setting the line at viability is a compromise between the two polar positions (birth and conception). Of course, working out a compromise is for the political branches, so maybe the court shouldn't be doing this. And the "trimester" language is a mistake on Blackmun's part: it fails to take account of the fact that medicine changes, and that's a little awkward.

• Planned Parenthood v. Casey
  A major backing off from Roe.

  The case says it's sustaining the precedent, and it introduces this idea of "super-precedent:" a precedent that the court can't afford to reverse because it would be too damaging: Brown v. Board of Education and Roe v. Wade. So OK, they're not overruling the case, but the do kind of re-write it.

  It's no longer a fundamental right grounded in strict scrutiny, but now it's a balancing test: is there an "undue burden?"

• Gonzales c. Carhart
  "Partial birth abortion" is not a medical term-- its a political one. But a lot of states banned it in the 1990s. In 2000 (Stenberg), the court struck down one of these bans.

  Late 2^nd-term abortions are generally performed after amnio (or other procedures) to determine whether there's a serious problem with the fetus. The problem is that the head is now too big to be removed without inducing labor, which is dangerous.

  So, the question here: can Congress prohibit this technique? Yes, says the court, but an as-applied challenge might prevail (i.e., on the health of the mother, because the statute only has an exception for the life of the mother).

• Un Re Storar
  Medical experts all agree that he can't make a reasoned choice, that the cancer is irreversible, that the transfusions are unpleasant. A ghastly scene, in other words.

  Judge Wachtler had a moral issue of his own later on: stalking an attractive female in his office, and winding up in jail and off the bench.

  Two somewhat distint factual scenarios that we need to worry about:

  1. Patient declines heroic measures; just a passive action
  2. Physician-assisted suicide: active measures
  So the mother intends her son to die (she knows witholding the transfusion will cause his death, and it's an intentional decision). Is she intentionally causing his death? Statutes try to deal with this.

  WI has pretty harsh statutes about this. The medical profession isn't pleased with this, because they have to face this issue all the time.

  Textual support for the mother? Liberty is a personal power delegated by the framers to the individual. On the other hand, life is an inviolable interest: we can't have people making choices to end it.

  On a policy level, nobody has the son's best interests at heart as much as the mother. This isn't much of a life-- at some point, can the quality get so bad (analogous to the finding of a horrible defect in a fetus) that it's worth ending? And we have Gregg, also: we'll allow the government to kill people some of the time. So the life-is-inviolate argument comes up a little short.

  So who should decide this?