Proposed Nebraska Student Speech Law

LB 898

"Battle on Late-Term Abortions Shifts to a Clinic in Nebraska "

NYT has an article today. Here is an excerpt:

BELLEVUE, Neb. — The national battle over abortion, for decades firmly planted outside the Kansas clinic of Dr. George R. Tiller, has erupted here in suburban Omaha, where a longtime colleague has taken up the cause of late-term abortions....

Dr. Carhart declined to provide specifics on how late in a pregnancy he would be willing to perform an abortion. Dr. Tiller performed them, in some cases, as late as in the third trimester of pregnancy. Dr. Carhart’s fee schedule lists prices for abortions up to 22 weeks and 6 days (at that point, $2,100 in cash or $2,163 on a credit card), but notes that abortions after 23 weeks are available “after consultation with our doctor,” and that abortions after the 27th week may take four days.

At his clinic in the past, Dr. Carhart said, he had performed abortions up to about 22 weeks into gestation — considered by some to be near the earliest point at which a fetus can survive outside the womb, a notion known as viability and one that is cited in many laws related to abortion.

"How Many Votes To Overrule The Slaughterhouse Cases?"

Here is an excerpt from Orin Kerr's post at the Volokh blog:

As I mentioned yesterday, the petitioner’s brief in McDonald v. City of Chicago written by Alan Gura asks the Supreme Court to overrule The Slaughterhouse Cases and adopt a very different interpretation of the Fouteenth Amendment’s Privileges or Immunities Clause. The obvious question is, how many Justices will agree? My guess: only one. In this post, I want to peer into my crystal ball and see how each of the Justices (or group of Justices) will react to Gura’s argument.

1) Justice Thomas. I suspect Justice Thomas is Gura’s only vote. Justice Thomas more or less took Gura’s position in his dissent in Saenz v. Roe a decade ago. He’s likely on board today.

2) Justice Scalia. In contrast to Justice Thomas, Justice Scalia probably won’t agree with the Gura brief in light of stare decisis. In speeches about originalism and stare decisis, Scalia often uses the 14th Amendment incorporation doctrine as an example of a line of cases that he thinks was wrong but that he won’t overrule because of all the reliance interests built up around it over the years. If Scalia won’t overturn the 50-year old incorporation doctrine even though he thinks it was wrong, I doubt he’ll want to overturn the 116-year old Slaughterhouse Cases even if the brief convinces him they were incorrect. That’s particularly true because the Gura brief advocates a version of privileges or immunities that is so vague it would vest tremendous new discretion in judges (more on that below). I just don’t think Scalia is going to want to do that.

3) Chief Justice Roberts and Justice Alito. Chief Justice Roberts and Justice Alito are also sympathetic to originalism, and may harbor the sense that Slaughterhouse and the incorporation cases were both wrong as an original matter. But I don’t think they’re revolutionaries, and the brief calls for a revolution.

You can read the whole post here.

Philip K. Dick Story On reserve

I have placed copies of Philip K. Dick's short story, The Pre-Persons, on reserve in the library. I know some of you are interested in this sci-fi (law and literature) take on the abortion issue, so it is there if you are interested.

I am not assigning it. It is just there for those who would like to read a fictional take on the abortion issue.

Nebraska Ultrasound Bill

Here is the Nebraska Statute.

Here is a news report:

Nebraska will soon require those performing abortions to display ultrasound images of fetuses in a way that the women can easily view them.

Lawmakers passed the bill (LB675) Friday afternoon on a 40-5 vote, and Gov. Dave Heineman signed it a short time later. Four senators did not vote.

Supporters of the bill introduced by Sen. Tony Fulton of Lincoln argued it would give women more information to consider before making decisions.

Others criticized the bill, saying it's government forcing itself into a private procedure that should be between a doctor and a patient.

But there was no debate Friday before final approval, as is the Legislature's practice.

The bill also would require the state to compile a list of clinics that offer free ultrasounds to women.

Nebraska will become the 14th state to require that abortion providers offer patients chances to see ultrasound images. The bill will take effect Aug. 29.

Mary Spaulding Balch with the National Right to Life Committee said Nebraska's proposed law is worded more strongly than that of most other states with similar measures. She says Nebraska's law requires the ultrasound image to be displayed instead of just requiring that the woman be asked if she wants to see the image, as the other states do.

"We think it's an important distinction, because we feel that when women are in a crisis -- such as trying to decide whether or not they will have an abortion or not have the abortion -- they're probably just thinking that they don't want to be pregnant, and they're not really asking too many questions," she said.

But Bobbie Kierstead, a spokeswoman for Planned Parenthood of Nebraska and Council Bluffs (Iowa), said she doesn't believe the bill will change her organization's longtime practice of offering women the choice of whether to view an ultrasound.

"It should be their choice," Kierstead said.

Planned Parenthood had objected to this measure as an improper intrusion into the practice of medicine.

"This is basically telling doctors what information and what care is best for their patients," Kierstead said.

The Nebraska bill was based on a model proposal the National Right to Life group offered to lawmakers.

Spaulding Balch said some women have said that seeing the ultrasound images influenced them against getting abortions. But there is no hard evidence or statistics, because states don't track how often women request to see the images.

Racial Classifications and Strict Scrutiny

Racial classifications are considered highly suspect, because race has often been employed by the law for invidious purposes. See, e.g., Plessy.

But suppose the pupose is not invidious. Here are two hypos once posed by Prof. Brest:

1. He posed the case of a public school principal who seats blacks on one side of the stage at graduation and whites on the other side for aesthetic reasons.

2. He also posed the case of a prison warden who temporarily separates black and white prisoners in order to quell an outbreak of racially motivated violence. Cf. Johnson v. California, casebook p. 789.

Apply strict scrutiny in each of these cases.

Montana Enacts a 9th & 10th Amendment Law

Travis Kavulla has an interesting article in National Review which he summarizes at his blog:

Gun Nuts

October 16th, 2009 by Travis Kavulla

Well, I have managed to get some work done this week, mostly in between fulminating about City Government…

The new National Review is out and includes my piece about the unprecedented Montana Firearms Freedom Act, our state’s rejection of federal regulation for arms made and staying within the state.

Gun Nuts
Montana sends a shot across the bow of federal regulation

Travis Kavulla

Great Falls, Mont.
Long has Montana been enthusiastic on the subject of guns, but the Montana Firearms Freedom Act takes the cake.

Passed this spring by the state legislature, a group of folks who meet for 90 days every other year, the law declares that any weapon or round of ammunition made in Montana and remaining within state borders “is not subject to federal law or federal regulation, including registration, under the authority of Congress to regulate interstate commerce.” This bold declaration of independence became law October 1, though even before then the Bureau of Alcohol, Tobacco, and Firearms had sent out a memorandum to gun dealers, the summary of which was: Don’t even think about it. A lawsuit is pending. [...]

The piece includes a first-person description of the Great Falls Gun & Antique Show and also an interview with freshman Rep. Wendy Warburton, a Republican who took a seat in Havre and has a lot of conservative verve. I am sure many Beltway readers will be stunned to learn there is a Great Falls other than the one in Virginia.

Does A's Right of Choice

trump B's right of conscience? Here is an excerpt from a post from the ReligionClause blog:

9th Circuit Denies En Banc Rehearing On Washington State Pharmacy Board Regs

In Stormans Inc. v. Selecky, (9th Cir., Oct. 28, 2009), the U.S. 9th Circuit Court of Appeals refused to grant an en banc rehearing. In July, a 3-judge panel in the case refused to preliminarily enjoin enforcement of Washington State Pharmacy Board regulations that require pharmacists to fill all prescriptions (including Plan B, the "morning after" contraceptive) even if doing so violates their religious beliefs. (See prior posting.)

Apply Glucksberg

To the argument that the right to same-sex marriage is a fundamental right under SDP analysis.

D&E vs. D&X Abortion Procedures

After Casey: 3D & 4D Ultrasound Requirement?

Following the Court's adoption of the "undue burden" test in Casey, would an informed consent law requiring that a woman have a 3D ultrasound before having an abortion impose an "undue burden" on the right to choose?

Technological advances in ultrasound are amazing. Here is a link that shows how this works. By the way, this site is not a "pro-life" advocacy site. It is a commercial site offering ultrasound service to expecting mothers.

Here is another link to some first trimester 3D images.

And here is an interesting article by Star Parker--Abortion and the politics of ultrasound--that discusses this issue.

Sixth Circuit Says No reproductive Autonomy For Men

Interestingly, the courts are totally unsympathetic toward men who wish the same right as women to become parents only by choice.

Link. Excerpt:

"A federal appeals court has upheld a lower court's decision making a Michigan man pay child support for his ex-girlfriend's baby. Matthew Dubay, a 26 year-old computer programmer, says men should have the same rights as women do under Roe v. Wade to exempt themselves from responsibilities for a child they don't want.

The 6th Circuit U.S. Court of Appeals issued its decision on Tuesday and sided with U.S. District Judge David Lawson, who rejected the lawsuit as frivolous.
The appeals court gave Dubay a limited victory by also rejected the state's bid to have him pay the cost of attorneys fees for their work in the appeal. Judge Lawson had ordered Dubay to pay the fees.

Dubay says that if women have the right to have an abortion and end their responsibility for an unborn child, men should have the same right.
He says his former girlfriend, Lauren Wells, did not want have children and told him during their relationship that she couldn't get pregnant.

Dubay attorney Jeffery Cojocar previously said he would take the case to the Supreme Court if the appeals court sided with the lower court's decision.
Lawson disagreed with Dubay's argument that Michigan's paternity laws violate the Constitution's equal protection clause. He said the law is unconstitutional because it requires fathers to pay child support "even if he did not want the child to be born."

"The fundamental flaw in Dubay's claim is that he fails to see that the state played no role in the conception or birth of the child in this case, or in the decisions that resulted in the birth of the child," Lawson wrote."

Hmmm. Life begins at "conception" for fathers and, although they have no part in the decision about whether a potential life is allowed to become an actual life or whether a live birth of a new person takes place, they should not look to the courts for protection.

Is this a kind of gender stereotype that is being imposed by the courts on men? Are the courts saying to fathers you should "man up" and "be strong" and "take personal responsibility" for the consequences of your sexual choices?

Lochner Query?

Why would a baker want to work more than 10 hours a day or 60 hours a week?

Hmmm. Maybe he kneads the dough!

Hattip: Prof. David Mann

Second Amendment Case: Cert Granted

From ScotusBlog:

Docket: 08-1521
Title: McDonald, et al. v. City of Chicago
Issue: Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home.

• Opinion below (7^th Circuit)
• Petition for certiorari (08-1521)
• Brief in opposition
• Petitioner’s reply (08-1521)
• Brief amicus curiae of Arms Keepers
• Brief amici curiae of Texas, et al
• Brief amicus curiae of National Shooting Sports Foundation, Inc.
• Brief amicus curiae of American Civil Rights Union
• Brief amici curiae of Institute for Justice, and Cato Institute
• Brief amicus curiae of California
• Brief amici curiae of Gun Owners of America, Inc.,et al.
• Brief amici curiae of Constitutional Law Professors

• 
  

Incorporation of the Second Amendment

Circuit Courts are split. See here and here.

Justice Thomas and "Partial Incorporation" of the EC

Here

"Ten Tips for Excellence in Appellate Advocacy"

You might find this article by appellate lawyer and blogger Howard Bashman of interest.

Class Cancelled Friday Sept. 25

The Young Lawyers Seminar-- next Friday, Sept. 25-- will be held in Rm. 113. We have been evicted from our classroom to make room for this program.

So, as I announced in class today, we will not meet on Friday Sept. 25.

Instead, we will extend each class by roughly 7-10 minutes until we have made up 75 minutes.

I figure we have already made up about 20 minutes (including today's minutes), so we should be able to get this done in about 3 weeks.

Blogging From the Beach: Some Thoughts About Summum and Buono

Here is a post from Prawfsblawg:

Four of us are preparing short pieces on Summum for Northwestern Law Review’s Colloquy. The other contributors are Joseph Blocher (Duke) and Prawfs alums Christopher Lund (Wayne State) and Bernadette Meyler (Cornell). We are still working through the editing process, but I thought I’d preview my thoughts here. A draft of Chris Lund’s piece is already available on SSRN. I’ll post links to the others when they appear.

The two cases present the question in different ways. On the one hand, the Court recently handed down Summum, which involved a Ten Commandments monument that a private religious organization donated to a city. The Court concluded that the permanent monument became government speech when the city accepted the gift, displayed it in a municipal park, and formally took title to the monument itself. It therefore turned away a free speech challenge brought by Summum, a minority faith that wanted the city to display its monument⎯The Seven Aphorisms of Summum⎯alongside the Ten Commandments. Finding the existing monument constituted government speech allowed the Court to dismiss Summum’s claim that municipal officials selectively opened the parkland to only certain types of private sectarian speech in violation of the First Amendment. The Court reasoned that Pleasant Grove could exclude Summum’s monument because when the government itself speaks, it can select its message without giving equal airtime to other perspectives. (Of course government adoption of the Ten Commandments raised obvious antiestablishment questions, which the Court did not consider because of the way the case was litigated: Summum wanted its monument included, and did not want to risk the exclusion of both. Moreover, an antiestablishment challenge probably would not have been successful under Van Orden, as Chris Lund has pointed out.) You can think of the city’s decision to accept, display, and acquire the Ten Commandments monument as the opposite of privatization—it “publicized” a sectarian symbol, both in the sense that it formally took title to the display and in that it used public property to broadcast the message.

On the other hand, consider Buono, which the Court will hear on October 7. It concerns a white cross that has long stood in the Mojave National Preserve. (Photos and a description appear on the NPS's website.) After a lower court ruled that the cross was an unconstitutional establishment, Congress intervened and conveyed the small parcel of land containing the cross to a private organization. Privatizing the speech was meant to quell antiestablishment concerns by disassociating the federal government from the sectarian message. Yet Congress retained ties to the land, including a property interest and certain regulatory power. The transaction’s highly structured nature left the federal government open to charges of ventriloquism—using a private party to convey what essentially remained a government message.

Moreover, to the extent that Congress succeeded in privatizing the cross, it became vulnerable to just the sort of free speech objection that the government in Summum successfully evaded by publicizing the sectarian monument. It is not totally inconceivable to imagine a minority sect arguing today that once Congress has agreed to privatize one form of sectarian speech, it has a constitutional obligation to offer such deals to all private speakers on equal terms. As things turned out, however, only one constitutional issue is before the Court in Buono—the antiestablishment request to undo the privatizing transaction—and the government’s evasion of that claim is likely to succeed, at least in the short term.

One of these cases, then, asks whether government can avoid a constitutional difficulty by publicizing private sectarian speech, while the other asks whether government can evade a different constitutional problem by privatizing such expression. Both of them present their issues in the context of government stewardship over its property, specifically real property that it has opened up to the public as parkland. Both involve government evasion of one constitutional question in a way that may raise a countervailing constitutional difficulty. And both will probably be resolved in favor of the government on the ground that it has successfully insulated itself from a constitutional challenge through actions involving a property transfer. (Summum already has been decided that way). Generally, then, both cases concern the interrelationship between private law arrangements and public law obligations.

Differences separate the cases, of course. Most obviously, Summum was litigated exclusively as a speech case, while Buono presents only an antiestablishment question. Moreover, one concerns a locality, while the other challenges the federal government. Nevertheless, they can profitably be thought through together. Juxtaposing them may teach us something about government use of private law transactions to avoid public law obligations, especially constitutional duties.

One question is whether the outcome of each case is correct (assuming I have accurately predicted the result in Buono). What people think about that will depend on their underlying theories of antiestablishment and freedom of speech. Some may focus on citizens’ autonomy around matters of conscience and expression, while others may prioritize evenhandedness toward sects or viewpoints. Yet apart from the outcome question, there is the matter of whether straightforward application of property rules to these cases adequately serves the constitutional values at play. Does saying that a city’s acquisition of a sectarian monument effectively renders its message government speech, thereby putting it beyond the reach of the Speech Clause, capture everything the First Amendment either permits or requires? Does it satisfy public principles to say that Congress can manage its Establishment Clause obligations by means of a sophisticated land transaction that formally privatizes the religious symbol? In short, are courts asking the right questions?

State Website With Links to "Affirming Churches"

From the Religion Clause blog:

State Agency Removes Website Links To "Open and Affirming" Churches

Connecticut's Department of Children and Families has removed from its website links to "open and affirming" churches-- i.e. churches that welcome gays, lesbians and persons who are bisexual and transgender. Yesterday's Hartford Courant reports that the links were removed after the Family Institute of Connecticut (FIC), a group that opposes same-sex marriage, threatened to sue. It claimed that placing the links on the state agency's website violates the Establishment Clause as well as parental rights. FIC also asked the Department to make sure that the organization training social workers on issues faced by GLBT youth does not provide information on "open and affirming" churches in its training sessions.

Do you agree that these links violate the EC? If not, would you also allow the state to selectively post links to churches with "morally uplifting" views concerning the sinfulness of homosexual conduct? Would it be okay for the state to provide links to churches with Biblically sound doctrines of salvation? Or does neutrality require the state to refrain from endorsing all religious positions on homosexuality?