History Is Not Merely For Conservatives

I'm not a big fan of "originalism," though the term is plastic enough to be possibly harmless, but history can promote progressive causes. ACS and other organizations advance this approach. This is so even when history is selectively cited and further study (here as to the 13A-15A) can be fruitful. The latter thread includes various comments from me.

The Senator Next Door: A Memoir from the Heartland

Good autobiography, but after a while, I honestly wanted to move on. But, for those who stick with it, well written with a good "voice" from the daughter of a newspaperman and teacher from middle America that made good. Nice sense of humor and plenty of end notes!

Reed v. Reed

Philosophically it can be argued with some degree of logic that the provisions of I.C. § 15-314 do discriminate against women on the basis of sex. However nature itself has established the distinction and this statute is not designed to discriminate, but is only designed to alleviate the problem of holding hearings by the court to determine eligibility to administer. This is one of those areas where a choice must be made, and the legislature by enacting I.C. § 15-314 made the determination.

Reed v. Reed (1971) began the path in which sex/gender was deemed a "suspect" (if somewhat less so than race) classification. by the U.S. Supreme Court.  Ruth Bader Ginsburg was involved in this case and it was one of many times when the principle stood out (it was a small estate but the mother of the child -- who committed suicide -- had an obvious emotional involvement, especially given an earlier divorce made favoring the father that much more complicated). Equality has big and small applications as seen in the Notorious RBG book with citations of her work including the type of caps postal workers were allowed to use. 

The lower court opinion as well as the argument by the state here showed the assumptions involved -- it was in effect obviously assumed acceptable to favor men in certain cases, here in administration of estates. The Supreme Court simply -- the opinion was rather thin for the can of worms clearly being opened here (the possible reach was seen by various hypos raised near the end of the first half of oral argument, hypos later subject to various later cases) -- noted that "[r]egardless of their sex, persons within any one of the enumerated classes of that section are similarly situated with respect to that objective." 

At times, reference is made at how brief the opinion was, but it seems to receive less criticism than Roe v. Wade in respect to alleged ipse dixit. Anyway, it goes to show what happens when previously assumed things no longer hold up to scrutiny -- basic principles of equal protection required some decent reason be offered to classify among persons. The general assumption here is that women in general are less able to administer estates given men's abilities.  There would be exceptions, such as women with more education, but classifications need not be exact.  The fact that this was merely a tiebreaker probably is a step up from various cases where men only were allowed to be involved (e.g., serving liquor in various cases). And, in time, the "decent reason" had to be done with a certain amount of finesse, especially when certain types of personal classifications were made.

We can compare this with a case from the 1950s out of Oregon, cited by the lower court here, involving "participating in wrestling competition and exhibition" that had this passage:

Obviously it intended that there should be at least one island on the sea of life reserved for man that would be impregnable to the assault of woman. It had watched her emerge from long tresses and demure ways to bobbed hair and almost complete sophistication; from a creature needing and depending upon the protection and chivalry of man to one asserting complete independence. She had already invaded practically every activity formerly considered suitable and appropriate for men only. In the field of sports she had taken up, among other games, baseball, basketball, golf, bowling, hockey, long distance swimming, and racing, in all of which she had become more or less proficient, and in some had excelled. In the business and industrial fields as an employee or as an executive, in the professions, in politics, as well as in almost every other line of human endeavor, she had matched her wits and prowess with those of mere man, and, we are frank to concede, in many instances had outdone him. In these circumstances, is it any wonder that the legislative assembly took advantage of the police power of the state in its decision to halt this ever-increasing feminine encroachment upon what for ages had been considered strictly as manly arts and privileges? Was the Act an unjust and unconstitutional discrimination against woman? Have her civil or political rights been unconstitutionally denied her? Under the circumstances, we think not.

A tad long, but such things really deserve to be read. Reed v. Reed provided a fairly blatant case, where a simple administrative hearing could be held, one which would probably in most cases determine one person is better qualified without such a blatantly arbitrary qualifier.  It would take a few years to determine that sometimes sex/gender could be acceptable as a classification at some point such as statutory rape, military service and proof of parenthood.  In each case, there was a dissent, but change usually happens first by dealing with blatant cases and not going all the way.  The hard cases, as here, might even be mostly avoided since we are dealing with a pretty easy case. 

But, as here, that might be significant; eventually, the principle applied to sexual orientation and now gender identity is developing as the next frontier.  And, at some point, there is a likely need to address the details. For instance, it is somewhat striking that after Bowers v. Hardwick in one direction deemed it "facetious" to bring same sex couples within the privacy cases ambit, Lawrence v. Texas went the other way with a similar degree of assumed obviousness.  Laws against homosexuals were invalid morals regulation as applied; the mindset behind such laws -- which include sex/gender stereotyping, was left to others. 

The changing societal and legal mindset involved was cited by the opinion and is a basic theme in Justice Kennedy's jurisprudence -- constitutional principles' contours develop over time as our knowledge and experiences changes. This clearly motivated Reed v. Reed too as the woman's movement was in full bloom and various state and federal legislation addressing sex/gender discrimination. Such things, implicitly and explicitly, affects the judgment of courts and provides a sort of democratic gloss to their activities.  Not just in this context.

Carey v. Population Services International

In Carey v. Population Services Int’l, the Court confronted a New York law forbidding sale or distribution of contraceptive devices to persons under 16 years of age. Although there was no single opinion for the Court, the law was invalidated. Both Eisenstadt and Carey, as well as the holding and rationale in Roe, confirmed that the reasoning of Griswold could not be confined to the protection of rights of married adults. This was the state of the law with respect to some of the most relevant cases when the Court considered Bowers v. Hardwick.

Lawrence v. Texas discussed the broadening protections of intimate association and conduct from married couples to individual women having the right to choose an abortion to that of minors to obtain contraceptives (and even to some degree an abortion, each parental consent/notification law requiring a "judicial bypass").  Carey is sort of the outer limit here before a temporary halt as to same sex sodomy (and perhaps other non-marital behavior) in Bowers whose author drew the line there in a separate opinion here as well.

The ruling was handed down in 1977 and split the Court though the basics were agreed upon by at least five justices except as to the particular details of the reasons why the particular law was unconstitutional as to minors.  I should add a case seven years later, before Bowers, which was also written by Justice Brennan.  This is an important case that seems to get not enough attention. It upheld a law involving requiring women at the Jaycees, a business organization deemed not intimate enough to be protected from such a requirement while women did not violate the expressive ends of the organization. This gave Brennan a chance to discuss both the right to expressive and intimate association. 

The Court has long recognized that, because the Bill of Rights is designed to secure individual liberty, it must afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State.

Without precisely identifying every consideration that may underlie this type of constitutional protection, we have noted that certain kinds of personal bonds have played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs; they thereby foster diversity and act as critical buffers between the individual and the power of the State.

Moreover, the constitutional shelter afforded such relationships reflects the realization that individuals draw much of their emotional enrichment from close ties with others. Protecting these relationships from unwarranted state interference therefore safeguards the ability independently to define one's identity that is central to any concept of liberty.

(Case citations omitted.)  As Justice O'Connor noted separately, the core of such rights entailed "marriage, procreation, contraception, family relationships, and child rearing and education,"  while it would take a while before the Supreme Court explicitly recognized sexual relationships outside of marriage.  Anyway, Carey also cited another recent case, which upheld a record-keeping law involving prescription drugs, but in the process usefully summarized what the "right to privacy" entailed:

The first is the right of the individual to be free in his private affairs from governmental surveillance and intrusion. The second is the right of an individual not to have his private affairs made public by the government. The third is the right of an individual to be free in action, thought, experience, and belief from governmental compulsion.

The right of privacy, particularly in the home was discussed as well in Stanley v. Ohio, which secured the right to possess obscene materials, materials later found to be legitimately banned in public places.  The "sanctuary" concept, including the need to have a zone of privacy to truly freely formulate ideas and have the personal space for true "liberty" (protected by the Due Process Clause) was also discussed separately by Justice Douglas in his dissent for Poe v. Ullman, even if Justice Harlan's dissent is more often cited as expressing the liberty interest involved here.  Thus, the right to privacy or however one wishes to express it ("liberty" is favored now) is both an aspect of express constitutional provisions but also a general aspect of liberty that is important to fulfill them generally. This is the Griswold principle without the funny words ("penumbra" / "emanations"). 

Carey specifically connects the general principles to contraceptives: "in a field that, by definition, concerns the most intimate of human activities and relationships, decisions whether to accomplish or to prevent conception are among the most private and sensitive." The "decision" here is not just about private use (Griswold) but involves obtaining them, thus limits to distribution of nonprescription contraceptives to licensed pharmacists and barriers to mail order (useful for privacy; one might add online retailers) are problematic. As with abortion regulations, at some point, the intricacies of this judicial oversight might be problematic, but the general principles are valid.  Later on lower courts had to deal with public sale of sex toys, another means of sexual expression.

Carey also protected the First Amendment right to advertise contraceptives, something that once (even involving clear and honest promotion of advocacy) was deemed obscene. The last issue was blockage of distribution and sale to minors, argued to be legitimate to deter underage sexual practices.  Four justices was wary to bluntly say the latter was not protected but a majority at least agreed that denial of contraceptives was an illicit way to go about that.  Basically, the cure was worse than the disease.  And, it is doubtful is was very productive in the long run at any rate.

This overall collection of rights was later expressed in the same sex marriage cases as part of the right "to define and express identity."  A final thing to remember here is that the means used can at times be illicit to address a legitimate end.  An easy example of this principle would be that punishment is acceptable but it must not be "cruel and unusual."  Sometimes, people are confused -- not using a certain technique then is deemed "pro-criminal" or blocking the end of punishment when other means are possible, in practice (as with deterring minors from having sex here) often as good or better at the end of the day. 

Thus, we can debate just what teens should be allowed to do regarding "sexting" while determining prosecutions tend not to be a productive way to deal with the situation. 

NFL Update

The Giants, without one of their only offensive weapons, didn't have a chance to blow it late. Blew it early and never came back. KC and MN in, Falcons out and a few slots/seeding left open. Tonight's game notable there [Denver in]. Seattle lost and it might cost them: if they slip a slot, they don't face the Redskins in the first round. Note: back-up city in AFC.

Jets Control Destiny

Well, playoff-wise -- Jets didn't hold Pats late (aggravating) in regulation but after winning toss, Pats player elected to kick-off. [Really? Okay.] Jets had chance to win with a TD and did! Meanwhile, back-up QB beat Steelers, so only need to beat the struggling Bills to get in. Since Jets didn't do that the first time, no gimme, but I'll take it. Falcons ended Panthers no-loss season, so they are still alive and rooting for the Giants. Good luck with that.

Cleveland Board of of Education v. LaFleur

This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. As we noted in Eisenstadt, there is a right "to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." By acting to penalize the pregnant teacher for deciding to bear a child, overly restrictive maternity leave regulations can constitute a heavy burden on the exercise of these protected freedoms. Because public school maternity leave rules directly affect "one of the basic civil rights of man," the Due Process Clause of the 14A requires that such rules must not needlessly, arbitrarily, or capriciously impinge upon this vital area of a teacher's constitutional liberty.

To continue my recent discussion of cases related to Roe v. Wade, the subject case -- involving challenging the constitutionality of mandatory maternity leave rules -- was cited in my Landmark Cases analysis.  Not that I need an excuse to expound on legal matters, but perhaps this holiday season (saw a cite on Twitter or Facebook that there were over twenty holidays in this general time period, making that term fitting) has a special connection to family/children to make it germane. Okay, reaching.

What stood out for me in a way to lead me to discuss this here is the concern that Roe did not properly connect the general principles of its precedents to the specific issue at hand. A criticism that to me has some bite and is avoided by the two substantive concurrences and various lower courts opinions such as YWCA v. Kugler did do a much better job here.  See also, the fashion the opinion explains the viability line, which even the author did better job in later opinions, which Abele v. Markle (which more than one justice various accounts note found very helpful) to me more helpfully expresses. And, to be fully fair, some opinions/dissents did a better job (if to me, not convincingly) than the dissents to fit the cases toward upholding the laws.

But, my general argument is that (1) Roe is not uniquely bad here and (2) it isn't as bad as all that. Take this very case. I noted it to suggest the range of cases the general principles involved would cover -- the timing of children, decisions regarding childbirth itself (including working while pregnant), questions having to do with child-rearing (which shows affecting third parties isn't as much of a game changer as some suggest here, especially when the "party" is directly interfering with a person's body and is not a constitutional person)  and so on. The collection of cases even goes back further -- marriage, e.g., is protected for various reasons, but children clearly has an important role in the mix. And, intimate association itself is protected as part of the long arc of the process that might eventually result in the formation of family including children. Abortion is again only one part of the whole web, including (cf. China) the right not to have one.

It seems fairly obvious -- and even those courts that upheld the regulations didn't disagree -- abortion at least fits into the ambit of the cases.  The issue then turns on balancing the rights with the state interests involved and seeing if the regulations do not unjustly abridge the rights, especially if the state interests are compelling.  As Roe v. Wade noted:

Although the results are divided, most of these courts have agreed that the right of privacy, however based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant. We agree with this approach.

The argument again is that the opinion should have done more to explain how abortion specifically fit into past cases beyond a string citations that summarized the positions of the cases involved.  The maternity leave cases here, however, did basically the same thing -- provided a summary of past cases and say that the policy here interfered with the rights involved.  (I merely removed the case citations and inserted the abbreviation "14A") Then, it dealt with the details of the program and argued how it was arbitrarily deprived here. Roe also noted the "heavy burden" forced pregnancy entailed, adding a bit of detail in fact. The opinion might be praised for not applying a so-called "legislative" test akin to the trimester scheme, but I'm concerned with another criticism here.

Again, I think some criticism of the opinion is fair, especially if it is done with some degree of nuance.  The issue at hand -- the right to have an abortion in a broad fashion -- might have generally seen obvious to the justices  (note they were generally older white men over sixty, the two of three under sixty dissenting) but it still was not something blindly obvious to the people at large.  The opinion needed some more analysis specifically tied to the constitutional right at issue.  The long history section was useful in this respect but was probably overdone while the constitutional analysis was underdone.  Justice Douglas was encouraged to add a bit more detail in Griswold and that involved something even the Catholic Church accepted as appropriate.  Maternity leave was less serious as well.

Breadth of fault, however, is important. And, when the problem amounts to something that could have been handled with a page or two more analysis -- to me fairly easily inferrable from what was included -- the fault is acceptable. More so, when concurring opinions -- as with Griswold, which also was appealed to by lower courts for clarity -- fleshed things out in a way perfectly in harmony with the main opinion.  The cheap shot nature of some criticisms is a major concern of mine though at the end of the day it is up to the people in charge to deal with the nature of things there. It might be tiresome at times to have to factor in people who are on the merits wrong and/or flaying about.  But, feeling superior only gets you so far.

===

I'll end with a case in point that continues to bother me. Town of Greece v. Galloway involved the use of prayers before town meetings. The complaint specifically was not that no such prayers are allowable, even if one or more of the litigants wanted that given their druthers (see my comments here).  It was that the specific program as applied was illegitimately sectarian.* But, the advocate for the litigants fell in a pit right at the beginning of his argument, an advocate who as a leading scholar in this area should really have known better.  He argued the prayers themselves were the problem, leading to Alito et. al. to pounce and ultimately for advocate to in effect throw at least one of his clients (an atheist) off the bus by noting that no prayer under the system allowed would satisfy such people.

The whole thing is depressing. The advocate for the town was asked to provide an example of a non-religious substitute for a prayer, something the justices (and the liberals didn't help here by their silence on the point) seemed to think impossible.  He eventually cited a case involving such a thing and there are quite a number examples of humanists and so forth giving just that sort of invocation. Why was it so hard for Douglas Laycock to cite such things here?  The confusion was partially of his own doing, but went further in a way to underline the very problem -- mild as compared to other places it might be, but our system continues to favor certain faiths over others in certain respects.  And, it is done so in a way to make it seem so mundane that another approach seems downright strange.

The confusion very well might be seen as stupid to some people given what to some should be an obvious point.  Tough luck with that -- you have to deal with the situation at hand and try to do the best you can given the "Overton Window" of current society. You won't win everyone over, obviously, but you need to put your best argument forward.

---

* Douglas Laycock appeared to try to put forth a narrow argument to attract Justice Kennedy's vote here, including the use of the coercion test. Also, the town meeting nature of the proceeding was seen as a harder question than a purely legislative prayer.  First, Kennedy flagged during orals that he was unconvinced with the latter line.  The primary dissent largely relied on just that.  Second, as suggested, he fell into a sort of trap -- concern for sectarian prayers was seen by Justice Kennedy as overly intrusive though his opinion put in some limits that made things a tad confused there. As noted by the dissent, the very program at issue did not fully meet the tests set forth. 

To be fair, the one legislative prayer precedent implies non-sectarian prayers are appropriate, if not specifically requiring that.  A non-sectarian program -- that is, a priest, rabbi, Wiccan, humanist all individually can have sectarian invocations but as a whole a wide breadth of views are present -- still raises line drawing issues, but arguably not as much.

So, there was a point to the approach taken, but still think it was misguided and confusingly set forth. And, given Justice Kennedy's previous expressed views in non-school cases, the overall strategy seemed questionable. Would it not have been more useful to honor a comprehensive inclusion of invocations of all types in this context and in effect argue an equal protection violation as applied?  You need to make your argument the best way given the overall audience.  Such is my overall theme.

Giants Eliminated

The Giants’ star defensive end, Jason Pierre-Paul, blew off part of his hand in a Fourth of July fireworks accident, and the team’s season has been defined by the creative manner in which it has squandered late leads.

Eh. Giants so annoying by now, not really upset. Hard to root for the Eagles even to extend Giants season. Redskins least annoying rival (basically only their name at this point). Eagles had an upset in them (vs. Pats); maybe Redskins have one to win a playoff game.

Update of the Gay Donor Policy

A 2010 study by the University of California at Los Angeles found that lifting the long-standing ban could increase the total annual supply of donated blood by between 2 and 4 percent, adding as many as 615,000 pints per year. A shift from the full ban to a 12-month deferral that FDA opted for on Monday could add about 317,000 pints a year, the study found.

I regularly give blood and we take a questionnaire with about thirty (maybe more like fifty though a few of them might not be asked) questions that is used to winnow out those with risk factors of some blood problem though the blood is still tested.  People who give blood might generally be nice and honest sorts, but they are not totally so and might also make errors and/or be confused by some of the questions.  Few probably don't think much of it.

Some do.  For instance, I once did not give blood for a year because of a tattoo (N.Y. underregulates by their standards), a rule that in fact applies to ear piercing. People who have traveled to certain countries (someone I know) or lived in the U.K. for a few months or more (from 1980-1996) are not allowed to donate.  There are rules for those in prison, pregnant, who had sex with a prostitute in the last year and so on.  But, a particularly striking one was for gay men -- have sex even once since 1977? BANNED! Given the level of care given -- ear piercing? -- this was understandable in the early days.  This is so even though it burdens gays in particular. Some of the other rules burden certain groups, but the breadth of the ban here is still notable. 

Much less so now.  As noted in the article linked at the top, the antiquated standard has been subject to dissent for years by now. Note, e.g., that Australia put such a standard in place in 2000.  The old policy was seen as rank discrimination, a sort of mark of Cain, by gay men and those who support them. When Andy Humm on Facebook, e.g., referenced the new policy, there was some vitriol even now. One person felt it sent a message that gay men were subhuman and had to be eunuchs to give blood. Personally, given the other rules in place, find that a tad excessive. Change happens in installments and this one was rational:

Peter Marks, deputy director of FDA’s Center for Biologics Evaluation and Research, told reporters Monday that the agency considered a range of approaches, but ultimately settled on the 12-month deferral window because it was backed by the most scientific evidence, and other large countries had adopted a similar approach. But he also called the change a "first step," saying the FDA will continue to conduct research and evaluate new data that emerges after the new approach goes into effect.

Put aside the reality of the situation -- as seen by other comments on Facebook that thought this move (again, blood is tested anyway and to be quite honest, some gay men who had sex since 1977 have already give blood) was dangerous. It would have been more appropriate to do this a long time ago, to over time decrease the ban period.  The article notes some think at best the ban should be a month given testing protocols in place. I guess that's possible -- if people actually take the test before giving blood. Perhaps, that would move up all the other things too. But, the rules are purposely REAL careful.  Just a case of two that falls between the cracks will be a gigantic black mark, a public relations nightmare and endanger people.  Can't stop everything, but that's the mentality.

Some point out that a monogamous gay man is safer than a promiscuous person though we aren't talking about VD alone here.  I don't know really if that is true (a "monogamous" person of any sexuality might not have a "monogamous" partner ... something gay men tragically discovered and many non-gay people too) specifically in regards to blood issues here.  Finally, there is a general sentiment this change is meaningless -- who doesn't have sex for a year?  The study cited at the top suggests the change is far from meaningless even on the basic level of the amount of blood that can be obtained.  Overall, pushing up the ban date THIRTY SEVEN years to me is far from trivial. 

The old policy originally probably made sense but lingered on out of inertia and some degree of homophobia. (How much of the latter, however, is unclear to me, to be honest, but unnecessary disparate impact here does matter a lot too.)  Objectively, in a basic scientific way, it makes perfect sense to me to phase it out.  Better late than never here.  I would be far from surprised that -- once the die was cast and with so much improved concerns about gay rights -- the ban will be decreased even further in a few years.  This is so even if a year is too long -- we have to deal with the long term practices in place and the fact there isn't a "gay question" and nothing else involved here.  There are a range of risk factors that for many people will be very small but still are applied to ban blood donation.  This should be underlined.

The change is a big step even if only a first one.

The Big Short

The traditional movie and dinner was altered because of crowds -- new place (fine) and movie (later show). This one is sure to get a look at Oscar time and the special cameos from the likes of Selena Gomez to explain technical banking points was appreciated. Overall, the detail did overwhelm a bit, but very well acted and put together. Seemed a bit too long.

The Nationals got a Daniel Murphy for Christmas

Deal is pending, but it still was an early Christmas "fu" to Mets fans like myself who don't join the Murphy-bashing brigade (he is HORRIBLE defensively -- exaggeration -- and you know that carrying the team to the World Series thing? eh. quirk -- years of offensive consistency aside; a few make him out as some sort of bigot, which is also a tad ridiculous). The deal can be spun more than one way but to me Murph was a fun MET player that fills a rival's need for a reasonable price. The Mets need a big bat to take this bad taste out of my mouth.

Twas the Night ...

Twas the night before Christmas, when all through the apartment
Not a creature was stirring, so out I went.
The stockings were hung by the window with care,
In hopes that they would soon be dry ... they were my best pair.

The cat was nestled all snug in his spot,
While visions of Fancy Feast danced in his head ... lots.
And I in my 'kerchief (really my cap),
Had soon had just settled my brain for a short winter's nap.

When out on the fire escape there arose such a clatter,
Yogee sprang from his bed to see what was the matter.
Away to the window he flew like a flash,
And pushed open the blinds (sorry, no sash!).

The moon on the breast of the new-fallen snow
Was quite a sight, even with the mundane urban view below.
When, what to his wondering eyes should appear,
But a miniature sleigh, and eight tiny reindeer.

With a little old driver, so lively and quick,
He knew in a moment it must be good old Nick.
To feed him ... it was about time he came!
But, instead he whistled, shouted ... it was so lame!

"Now Dasher! now, Dancer! now, Prancer and Vixen!
On, Comet! On, Cupid! on, on Donner and Blitzen!
To the top of the roof! To the top of the wall!
Now dash away! Dash away! Dash away all!"

As dry leaves that before the wild hurricane fly,
[That's a weird simile, I cannot lie.]
So up to the building the coursers they flew,
With the sleigh full of Stuff, and St Nicholas too.

And then, in a twinkling, Yogee heard on the roof,
The prancing and pawing of each little hoof.
As Yogee rose from his slumber,
Down he came ... that St. Nick is a bit of a bumbler.

He was dressed all in fur, from his head to his foot,
And his clothes were all tarnished with dust and soot.
A bundle of Stuff he had flung on his back,
And he looked like a peddler, just opening his pack.

His eyes ... oh to be truthful, the cat cared not very!
Only one thing likely to make him merry!
Not his droll little mouth drawn up like a bow,
And the beard of his chin as white as snow.

He wanted some Fancy Feast,
chicken, turkey, seafood, anything to satisfy the little beast.
When would he come in to fill his little belly?
He shook and meowed, it was louder than a telly.

Yogee ... not very jolly was he,
He was annoyed, wanting to eat ... yes, he.
With a wink of his eye and a push of the door,
Soon St. Nick gave him to know he need not wait any more.

He spoke not a word, but went straight to his work,
And filled all his bowls, then turned with a jerk.
And laying his finger aside of his nose,
Giving a nod, cleaned the litter box so it smelled like a rose!

All done, all cleaned up ... he sprang out back to his sleigh,
to his team and gave a whistle ... all was okay.
But, he also texted me a message, 'ere he drove out of sight,
"Happy Christmas to all, and to all a good-night!"

Doe v. Bolton

As noted, this is the companion case to Roe v. Wade, which will be of special concern in 2016. The case is useful in that it dealt not with merely a nearly absolute ban but various restrictive regulations. Today, e.g., the biggest abortion case since Planned Parenthood v. Casey was set for oral argument in early March (Women's History Month). One overlap here was that both women eventually came strong against women, "Doe" (Sandra Cano) actually cited in a later opinion (as noted by the pro-choice guest in a nice bit of evenhandeness):

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.

Both women had troubled lives and have every right to decide for themselves, changing their views as they deem fit (Cano has since died), just as those might the other way.  It is not really "exceptionable" that a woman might come to regret choices here. Some regret having a child or getting married and so forth.  The problem with Justice Kennedy's citation here, aside from the specific evidence cited, was that the answer was not to take what might be the safest procedure away. It was fully to inform.

Some against abortion challenge people with the apparently unanswerable rejoinder "what if your mother had an abortion?!"  But, that is trite. Sandra Cano's own daughter, for instance, came out as pro-choice some years back.  Her birth mother accused the lawyers involved in her case of using her.  Don't know the details but the issue at hand was her right to decide; she didn't have to choose to have an abortion.  The gospel account even has Mary agreeing to being the mother of Jesus.  Now if some teenage girl gets a visit from an angel (or even Angel) and such, she might feel compelled to go along, but think that is still pretty notable. 

As noted, the Georgia law was a "reform" measure with the following exceptions if the abortion was done by a licensed physician:

(1) A continuation of the pregnancy would endanger the life of the pregnant woman or would seriously and permanently injure her health; or

(2) The fetus would very likely be born with a grave, permanent, and irremediable mental or physical defect; or

(3) The pregnancy resulted from forcible or statutory rape.

 There is also a limited self-abortion criminal provision:

woman whose pregnancy has continued beyond the twenty-sixth week commits a felony of the third degree if she purposely terminates her own pregnancy otherwise than by a live birth.

Note this would not bring into its ambit the Tennessee woman who is currently being prosecuted for an abortion performed at twenty-four weeks though the exact details are not clear.  As noted, the Supreme Court gave a broad definition of "health," one that honestly is broader than intended by the words since it is unclear what abortions would not be covered here.  This is not the same as Justice White's "whim" comment, since the fact is that in any given case a woman will have a serious reason with health implications coming from a forced pregnancy.

The first specific regulation addressed was in effect a TRAP law -- for no particular neutral reason, JCAH accreditation was required for abortion procedures. This was struck down using rational basis scrutiny. The opinion then made a more questionable ruling about licensing rules as a whole, drawing the line at the first trimester -- this "trimester scheme" application would probably have been better left to another day.  Likewise, singling out abortions for necessary committee approval and two doctor involvement was struck down. This too was a limited holding applying the right to privacy consistently.  And, the opinion leaves open neutral licensing rules for physicians, even those that perform abortions. 

Next, a residency requirement was struck down, again using neutral rules arising from the Privileges and Immunities Clause. The dissents said absolutely nothing about these issues. If a person thinks Georgia can narrowly allow abortions to balance "fetal life" and the interests of the woman, as one can deny killing a dog even to practice First Amendment rights (though few would wish to and the balance of rights are far from the same, to cite just one of many problems with John Hart Ely's law review article), they still at least have to justify discriminating against out of state residents and so forth.  This is not an all or nothing affair.

The final point, which rose more bluntly in Medicaid funding cases, was the argument the laws discriminated against the poor (some litigation also noted de facto racial discrimination). Let it be noted that Ely, who on policy and later precedent grounds supported a right to choose (though at times sounding conflicted about it), deemed the funding bans to be blatantly discriminatory in an invidious sense. Some states deemed it so or a violation of the right to choose generally under state law. Anyway, in this case, the Court found the claim addressed by overturning the provisions (or applying "health" broadly) on other grounds. 

[On a technical level, injunctive relief was denied in both cases, but this was assumed to be moot now that the Supreme Court itself declared what the Constitution demanded.  This issue arose again in respect to same sex marriage -- the reach of lower court rulings was a continual controversy but (with a bit of dissent) the Supreme Court opinion decided the question.]

So, the formulation of complicated doctrinal rules (the trimester scheme) probably could have been avoided in these two cases. However, the matter would have arose soon enough as more and more abortion regulations arose. A 1976 case, e.g., addressed standing, abortion methods, consent provisions and so forth. General principles could address some of these things, including the vagueness of certain "viability" laws, but in time some more specific doctrine would have developed. This would include just where to draw the line and what fairly mundane medical procedures might be acceptable (e.g., an abortion related procedure might be truly neutral but take place in the first trimester).  But, more time could have been useful there, including a full briefing on the viability line itself. 

There was going to be split opinions on such questions but this is normal regarding constitutional matters.  It's quite possible, e.g., to note a forced ultrasound (especially if a probe has to be inserted inside the body) is unconstitutional especially if a slanted pro-life text has to be provided while perhaps a specific regulation of facilities early in the pregnancy was allowed.  There would have to be a reasonable purpose to such a regulation and it might be a bad idea as a policy matter.  Likewise, something like a waiting period might split reasonable minds, even if I think Justice Stevens' discussion on the point in Casey is convincing. 

As with speech and guns, how broad the rights in question reach is a reasonable debate.  But, at some point, even those wary about the subject can admit there is a problem.  Banning people even to keep their legal in their home state "assault weapon" in a locked box / unarmed while traveling through the state, e.g., should be a problem even to someone who hates guns.  And, I hope eventually at least one of the liberals understands the point in some opinion just like ideally Kennedy can figure out some race conscious educational program he thinks is okay, since after all he claims to do so in theory.  A middle ground is possible.

Perhaps, that sounds naive, but it actually is.

Eisenstadt v. Baird

If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.

A word on this case that played a minor role in the process of deciding Roe v. Wade. The case involved a person giving a lecture that involved exhibiting and handing out contraceptive foam by a non-physician to an unmarried woman. The exhibiting conviction was struck down below on First Amendment grounds and Justice Douglas here would have also used that approach to deal with handing it out in the promotion of giving a lecture.  This would in part turn on the safe nature of the item, which (along with no evidence being submitted an unmarried person was actually involved here) was the approach of Justice White (with Blackmun; White to remind concurred in Griswold, which was relied upon). 

To see just what was involved this summary is useful:

The statutory scheme distinguishes among three distinct classes of distributees -- first, married persons may obtain contraceptives to prevent pregnancy, but only from doctors or druggists on prescription; second, single persons may not obtain contraceptives from anyone to prevent pregnancy; and, third, married or single persons may obtain contraceptives from anyone to prevent not pregnancy, but the spread of disease.

The portion about married people was a result of updating the laws in the face of Griswold v. Connecticut, which involved usage by by married couples.  The opinion leaves open a requirement that married couples need to get a prescription, which could have damned the person here in some fashion.  So, a state can require a prescription for an "abortion pill" as much as a "kidney stone pill."  On this point, the concurring opinion is somewhat more broad since it sets forth a limit though did note that the state didn't even offer evidence on the point.

This opinion turned on the second factor -- it was an equal protection ruling that the classification was irrational, only more so on the length of the punishment (up to five years but Baird actually received three months, rather ridiculous given his "crime").  This was flagged last night by the dissenting guest as well as others. But, we see again the way equal protection and liberty work together -- there was a special concern here because fundamental rights were not being applied equally. So, both matters are quite relevant though the breadth of protection of unmarried individuals here would be more fully secured only in time (particularly Lawrence v. Texas in 2003). The length of the criminal sentence as compared to things like fornication was used to argue this was not a "health" measure as such but one to burden the rights of individuals to privacy choose to use contraceptives. And, the exception for spreading disease and broad one for marriage [even if the person used it to aid and abet affairs, which arguably would not violate the letter of Griswold]  shows the statute was not just concerned with extramarital sex.

The opinion was important to show how the right to privacy, particularly in respect to birth control and related matters, was not just a "marital" right but broader in scope.  There was some intent, bound to be a lost cause given the true reach of Griswold  (at the very least, consider the right to not have a child to avoid starting a family, including the then often assumed need to be married to do so), to limit its reach. The right to privacy, however, arose from a range of cases, including those involving individuals being protected from unreasonable searches and seizures -- see, e.g., the language in Mapp v. Ohio.

It was noted by the dissenting voice that the "bear and beget a child" was crafted with Roe v. Wade in mind, as if this was a major reveal.  Others have pointed out the approach here, including The Brethren book.  It is true that Justice Brennan knew what he was doing there, but such "Easter eggs" that are crafted with later opinions in mind is not that novel.  Somewhat less so then as now, the Supreme Court has the power to take only a limited number of cases (they can take more, they choose not to do so) and are often concerned with dealing with broad questions. The case here could have been decided narrowly in another fashion but did touch upon wider issues.  And, the choice to "bear" or "beget" is at the core of the contraceptive decision.

The opinion turned out not to be that important in the immediate case while being more so as part of a series of cases showing the true breadth of the rights at issue. The opinion noted that "whatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike."  A significant point, especially for the other guest on the episode last night given her concerns in her writings about the right not to be married.  The possible reach of this statement is therefore broad and was not truly applied by the justices in question; e.g., they did not ultimately protect unmarried sexual relationships from all punishments.  The opinion however had a narrower reach as seen by the discussion on how this specific crime was different from the minor penalty for fornication:

If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.

On this point, single or married, there was a broad liberty including to use contraceptives and soon have an abortion. And, in time, the difference between married (and the range of marriages allowed overall) and unmarried would decrease further. 

Roe v. Wade

The final Landmark Cases episode concerns a subject that I have long been interested in since even before the days of Webster (1989), which some people in that day or now might remember as one of the shows about a small cute black kid cared for by white people. Like in the case of Miranda, a critic is on board, the author of Abuse of Discretion: The Inside Story of Roe v. Wade,* though any number of people could be chosen here. The other guest is a local gal who has written on various family law matters.  The episode is about Roe v. Wade, but also involves a companion case -- Doe v. Bolton, the first application of its terms. 

What interests me about the matter is that it covers so much ground, ridiculed at one point by Judge Richard Posner as suggesting abortion is the "Wandering Jew of constitutional law." [Ronald Dworkin discusses abortion particularly in a couple of his books, including Freedom's Law, and references this.]  A comment, taken as a criticism, by a justice during Sarah Weddington's (listening to it again at Oyez.com, I think she did  a pretty good job, especially for an under thirty novice)  oral argument that she was resting on many constitutional provisions to me only underlines this.  We are dealing with a lot of stuff, basic "liberties" liable to do that. Justice Scalia and others argue the Constitution "says" nothing about abortion, but it really says a lot of things that apply to the subject. The fact the word "abortion" isn't cited is no less damning than that "school" isn't mentioned is a barrier to Brown v. Board of Education.

A click of one of the topic hyperlinks can take you to various extended analyses of mine on this subject so unlike some of the other cases this is well trodden ground here by now. The specific context (Liberty and Sexuality covers the overall history well) here involved the sexual revolution and the women's movement, even if these things were not always expressly the basis of decisions -- e.g., not allowing women control over their bodies violated basic principles of bodily anatomy based on assumptions that in practice was invidious sex discrimination. Many involved knew this, but it took some time before the courts were as fully on board.  The complexities were seen even then though including the role of liberal churches in Texas and elsewhere in the abortion rights area.  The two lead lawyers involved in Roe also had a religious background.

Roe v. Wade itself as a constitutional matter grew out of Griswold v. Connecticut, which  dealt directly with marital use of contraceptives, but generally with a right to privacy. The principles of the opinions -- the concurrences involving the 9th Amendment and substantive due process in time having much influence here -- soon grew in their reach. Thus, usage of contraceptives by the unmarried was protected. The application to abortion was a logical next step and the extreme nature of the law -- if not quite the practice -- at the time encouraged this. If there was a general right to privacy over important choices about whether or not to have children, e.g., abortion fits in, more so given the burdens on the woman specifically. And, since abortion was allowed in certain cases, the balance would seem to favor the born woman as compared to the unborn entity in question.

We agree with the District Court that the medical judgment may be exercised in the light of all factors --physical, emotional, psychological, familial, and the woman's age -- relevant to the wellbeing of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman.

The Texas law provided a good test case for those who wanted to liberalize laws in this area given its extreme nature. There was only a life exception, which made it more complicated even than the law upheld in U.S. v. Vuitch that had a "health" exception which the Supreme Court interpreted broadly.  The lower court, which rested its substantive rights holding on the 9A, held the law was unconstitutionally vague since doctors could not clearly know when a woman's condition was so dire that it was a threat to "life," but not so serious, so that only "health" was at risk. This was also a concern for other lower courts interrupting abortion regulations including such things as determining when it might be "necessary" or even the more open-ended usage of "health" in the context of the specific statute. And, in Texas, unlike various states (rarely prosecuted but sometimes used to pressure women to help prosecutions), only the person who performed the abortion was penalized. This arguably can be defended as a matter of pragmatic policy though it threw the state advocate during oral argument. 

The woman state advocate (a force of nature herself, a repeat advocate, including in defense of the death penalty law; ironically, her boss was not a big fan of the restrictive law here as a matter of policy) in the companion case, Doe v. Bolton, had an easier time of it because Georgia had a "reform" law that contained various exceptions including for rape and certain fetal abnormalities. (This last matter influenced abortion reform laws in the 1960s and is an exception that in various cases has broad support, but is a tricky matter, especially since it arguably is not directly "health" related.)  Dorothy T. Beasley (a better advocate than the clowns Texas used) could argue the law balanced competing interests though this underlined we did not have two equal "persons" in the balance since Georgia didn't allow newborns the product of rape to be killed and so forth.  This was the sort of "liberal" abortion laws some states had at the time, only four generally allowing abortions in the same fashion as Roe v. Wade ultimately protected. The "go it slow" brigade at times downplay this sort of thing (even one of the four barely was upheld, requiring Gov. Rockefeller's veto) along with how the matter was already politically divisive as spelled out in the book co-written by Linda Greenhouse.

The procedure - and now I'm telling the Court something that's outside the record - as I understand, the procedure when a woman is brought in after a rape, is to try to stop whatever has occurred, immediately, by the proper procedure in the hospital.

Sarah Weddington explained how the interests of the women (it being a class action made it less important no single woman was pregnant at the time of the litigation, though "Roe" herself did not immediately benefit) were not being protected by the state courts. The lower federal court declared women to have the right to choose but for technical reasons did not block the state law directly.  This technical issue does not get much play, but as noted in The Brethren, was an important factor in the Supreme Court first taking the case. This too made this a good vehicle.  The fact, added by the state advocate, they unofficially allowed rape victims early on to have abortions also did not help. And, it wouldn't have helped "Roe," who wasn't raped though she at one point suggested it if it would help. 

But, the overall issue of abortion was going to have to be decided by the Supreme Court sooner than later. The federal government avoided a possible minefield as the case was being decided involving a pregnant servicewoman who was given the choice of getting an abortion or resigning from the military. RBG has noted she was disappointed because it seemed to her such a prime opportunity and her connection of religious liberty (the woman being Catholic didn't want to have an abortion), equality (unlike men, she couldn't use leave to deal with the matter) and privacy (the privacy/equality synergy not an invention of Kennedy in the SSM cases) is an impressive trifecta.  

Meanwhile, around twenty cases, with various decisions, were being decided in the lower federal courts involving more usual abortion cases. We can debate the breadth of Roe v. Wade, but the specific subject matter was ripe for decision. There is also the approach.  RBG has argued equal protection, but sex discrimination cases were just starting to develop there.  Privacy was a settled approach and it made perfect sense to use that. The specific burdens of a woman was referenced in the opinion and by advocates.  And, Planned Parenthood v. Casey later emphasized this was a special matter of private conscience. That later case arguably does a better overall job but it also was aided by working off existing precedent.

As noted, the lower court in Roe v. Wade relied on the Ninth Amendment, used as a supporting reason in Griswold. The Supreme Court used substantive due process -- the "penumbra" approach did not have much staying power with even Justice Douglas' concurring opinion here more in the spirit of his broader "liberty" approach in Poe v. Ullman.  The two approaches are basically the same -- an overall argument that there are fundamental rights not expressly enumerated. Roe v. Wade could have provided more connective tissue here, but a range of cases did protect privacy, in particular involving personal family choices and control of one's own body.  The opinion also goes into the history of abortion and how embryos and fetuses are not constitutional persons.  No justice then or now has argued that abortion cannot be allowed to protect the unborn though this was a major tactic of Texas and to some extend Georgia as well.

The long history section could have been shorter and various people have disputed some of its details. But, it serves an important purpose in discussing the various aspects of the question and how the facts on the ground changed over time.  For instance, a major complaint here -- cited by Rehnquist's dissent -- is that abortion was broadly criminalized. So how could it be a fundamental right to choose one?  Abortion actually was broadly allowed into the 19th Century.  Then, it was regulated for a range of reasons. The medical reasons had much less force by the mid-20th Century leading to reform movements. Abortion was not totally banned even here -- there tended to be a "life" or "health" exception, Texas' law here extreme and in practice not applied as strictly as its text might suggest.

So, there remained some "liberty" to choices in this area including over overall personal health.  Another reason for regulation was, in the words of the opinion: "the product of a Victorian social concern to discourage illicit sexual conduct," but the state did not rely on such grounds. The opinion noted that this interest was not taken seriously (citing lower court opinions), but realistically, this is not quite so. Perhaps, it is not illicit sexual conduct as such, but their were moralistic and value choices at issue here that Griswold and other cases as a matter of constitutional principle held were personal ones to make.  Also, there were assumptions about women's roles at issue here. A telling case here was decided shortly after Roe involving maternity leaves for teachers shows this touched various matters.  A comprehensive picture is often best seen at a distance.

These two factors alone suggest what is happening here -- broad principles are applied to a specific matter where the facts on the ground changed and the underlining justifications at times had an illegitimate cast.  So, the right to have an abortion in some sense was always there, the restrictions justifications changed over time and other restrictions were constitutionally problematic including by applying by then long term principles.  The final concern here is the "life" of the embryo and fetus ("fetus" is usually cited but most abortions occur before there is one).  Some belittle this concern, arguing 19th Century regulations were more concerned with health, professional controls or gender norms etc. This is unfair: changing knowledge did make the quickening line (when movement could be felt) artificial though opposition to abortion (as cited in the opinion) was long held by various philosophical and religious movements.

The lower courts that decided this issue in the years before Roe were somewhat vague on the proper line here, especially since they were dealing with broadly restrictive laws.  The general sentiment from my study of the cases was that abortion should be allowed in the first few months of the pregnancy with the exact lines not yet subject to clarity.  Various reasons were offered here -- some time was warranted to balance the interests here, medical norms (also a major thing relied by Roe v. Wade, authored by a former advocate of the Mayo Clinic and recognizing doctors are the ones doing the abortions; cf. how courts have given discretion to educators) and how there are a range of beliefs on the question early in the pregnancy.  Finally, the Constitution gives rights to "persons" (no justice, e.g., has argued abortion cannot be allowed and exceptions to bans that would not apply to infants are telling)nd viability is the point where a fetus can survive outside the womb. Later, people argued some sort of consciousness or pain test would overlap with viability to some degree.  Again, the proper line would be a balance of changing understandings (e.g., when viability exists) and various constitutional interests.

I personally think the opinion stands up fairly well though appreciate how the concurring opinions of Stewart and Douglas providing more analysis on the particulars of how past cases can lead us to this one.  I think that would have helped the opinion. Doe v. Bolton has some good touches too including how discrimination against out of state residents here is unconstitutional. Also, the problems with singling out abortion for special hospital committees over all other medical procedures. The other issue regards the infamous trimester approach. Logically, this makes sense, especially the viability line (where a fetus can survive outside) but think it probably tried to draw too clean lines too fast.  Originally, the first trimester was going to be the line, but then it was noted various women (particularly the poor and/or minority groups in general) had them later. The best approach there would probably have been to let the exact line develop over time though the ultimate result might have been the same more or less.  As surely would have a good deal of controversy.

Roe v. Wade is a favored target; I'm not sure really how worse it is compared to many other cases. Justice Blackmun was not a judicial craftsman but the criticism constantly is an exercise of overkill that often seems to involve people who have not read the opinions very well.  Also, Blackmun was just starting out on the Court and over time developed more nuanced thoughts about the right to privacy and wrote opinions that did a better job connecting the dots -- see, his Bowers dissent and separate opinion in Planned Parenthood v. Casey.  OTOH, any complaints over the courts micromanaging here will have to answer for constant blatantly slanted laws that single out abortion, not being neutral health laws. And, the opinion leaves open plenty of such regulations, especially if a state treated abortion like other medical procedures.

And, in time, abortion was allowed (too much imho) to be treated differently including in respect to funding or parental involvement.  There is no "abortion on demand" -- it is regulated as a health procedure and those morally against abortion has no duty to perform them unless it is directly necessary for the health of the patient.  I say "directly" since broadly speaking abortion is a health matter and pregnancy is generally a threat to one's health and well being.  And, to add it, forced pregnancy is a form of involuntary servitude though many do not view it in that frame.

The opinion was 7-2 with three Nixon appointees joining in and received broad support regarding the basics, even the Southern Baptist Convention. Opposition, as with other cultural criticisms of the era, occurred before the opinion was decided and occurred generally speaking. If abortion is "murder," it is passing strange if the real problem is that the Supreme Court allowed it too broadly or decided things too fast.  Details are important here, but the wide contours of the ruling hold up here.  The final concern there would be if it was so popular, why not just let legislatures do it.  The problems there include the difficulties of change given the inertia encouraged by the political processes and the reality that there was opposition from certain quarters.  National constitutional rights especially those that are particularly important for disfavored groups (as RBG notes, poor women are particularly at risk here; teens too) cannot merely be left to normal political processes.  Thus, the "Roe problem" is limited to scope.

At the heart of the controversy in these cases are those recurring pregnancies that pose no danger whatsoever to the life or health of the mother but are, nevertheless, unwanted for any one or more of a variety of reasons -- convenience, family planning, economics, dislike of children, the embarrassment of illegitimacy, etc. The common claim before us is that, for any one of such reasons, or for no reason at all, and without asserting or claiming any threat to life or health, any woman is entitled to an abortion at her request if she is able to find a medical advisor willing to undertake the procedure.

A word on the dissents. John Hart Ely Jr., a progressive critic, wrote in his famous law article that one reason he felt obligated to respond was the thinness of the dissenters here. Rehnquist which would cover a lot more ground than many opponents would support.  First, though this was a class action, he challenged broadly deciding the question as applied to various factual situations.  Second, he confuses "privacy" to mean "secrecy" or such, wondering how a medical procedure in a public hospital room applies.  But, the word as applied in the cases has a broader meaning to cover various private choices such as "who I marry is my own choice, it is private."  Third, he has a restrictive approach to substantive due process generally and given his druthers clearly would overrule Griswold. Finally, as noted, the broad criminal laws on the books are cited without taken everything into consideration to put that in a proper context. 

White did support various substantive due process opinions, including protecting contraceptives, but saw abortion as different.  Why?  Well, a human life was affected though he only spelled this out in some detail in a later opinion that Justice Stevens responded to as seen here.  His sentiments was apparent though: "a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it." Did this apply at fertilization or implantation or at some later point?  Why did not contraceptive bans protect this interest as the Catholic Church and others argue in various respects?  Why can we pick and choose -- to the degree of forced pregnancy -- among greatly differing moral views that if not always (see Ronald Dworkin) at least very often have a clear religious aspect?  Why didn't the analysis of the various opinions here and below provide proper reasoning?  How about if a woman's life or health was at risk or rape?** Unclear, since his dissent here was about two pages long and focused on the breadth of the opinion, including allegedly how it would allow women with no reason but whim to have an abortion.

Rather poor effort though his concern for restraint, including on determining proper medical procedures (as the case was applied to particulars later on), had some merit. Unfortunately, the blunderbuss approach left a lot to be desired.  Justice O'Connor ultimately won the day here by use of a weaker "undue burden" standard that in Planned Parenthood v. Casey probably was applied somewhat more strictly than as suggested by her earlier opinions, but did amount to a somewhat lower level of scrutiny while (if fairly applied) having some bite. The trimester framework also was replaced with a new general standard while the viability line (with exceptions for the life or health of the woman, here defined more strictly than the "health" cited before) so there is now more room for states to express an interest for the life of the unborn. This amounts to more allowance of things like state authorized cant, waiting periods and ultrasound laws though the last has received some pushback.

The basic right to choose is widely accepted with the concern over proper limits.  This too is a big part of the criticism of Roe v. Wade -- some would never accept it, even if it was legislatively applied, but many argued there should be more discretion.  We can debate the details there though I think on the merits they generally come out on the side of pro-choice.  So, a general consensus might set the line at the first trimester, but probably would allow various exceptions.  This would cover nearly all abortions with the remainder some vague and debatable set (at least before viability, those at the margins there usually tragic cases that should be allowed and if examined, again, a majority probably would agree) that should be left to individuals to decide using basic constitutional principles.  The very heat here comes from differences over religious/moral beliefs and roles that are constitutionally generally left to the individuals.

The dissents in the original cases left something to be desired though there was and is some room for debate along the margins. The series itself was appreciated and as a whole makes me want more. There used to be a weekly "America and the Courts" segment on C-SPAN.  Not sure why they stopped it.  Oh, and thanks again for taking a couple of my tweets!

---

* The Amazon reviews of his book are fill with the usual suspects and the same can be said about the lead reviews that pop up when I did a Google search. A more balanced approach can be seen in this Daily Beast feature.

One general concern is all the factual questions involving abortion, which might have warranted more development in the lower courts. All the same, judicial restraint is rarely consistent.  D.C. v. Heller didn't send back the case to the lower court after deciding a broader constitutional point, determining handguns are protecting and assuming a range of regulations are acceptable.  Also, abortion was allowed for various reasons with a lot of discretion given to doctors, discretion applied in an arguably arbitrary way.  Plus, ultimately, lower courts did hold fact-finding hearings and so forth. And so on -- there are various answers to the book, one written by the Senior Counsel at Americans United for Life.

**  Justice White noted:

I have no occasion, and the District Court had none, to consider the constitutionality of the procedural requirements of the Georgia statute as applied to those pregnancies posing substantial hazards to either life or health.

But, Roe v. Wade surely did, right? The law there banned abortion except for "life," even if he thought the argument against the law was woefully overbroad.  Rehnquist and others (e.g., the federal government in the Casey argument) accepts it would be irrational to ban abortions for "life" though in some countries the laws often do not even protect that interest very well. What if the woman had triplets or her own life was severely at risk? Would that matter? Why "life" and not "health," and why a very narrow definition if that was allowed?  Ireland blocked travel to other countries. Would that be irrational, since "human life" was at stake?  One can go on.

NY Football Update

The Jets struggled but manage to eliminate the Romo-less Cowboys, who ultimately used their third/fourth stringer in this game. Nonetheless, the Broncos didn't help their cause by losing to one of the Jets' rivals for a Wild Card slot. The Giants came back from 35-7 against the no-loss Panthers only to do their usual blow it in the last two minutes. Both N.Y. teams are still alive for the playoffs, but need some help given tiebreakers and so on.

Update: Looking into it, if Jets manage to win two games, they are somewhat more likely than not to get in, but Giants need to win two and have Redskins lose two. GL with that.

Blood That Cries Out From the Earth: The Psychology of Religious Terrorism

I first read this book around six years ago, but events brought it to mind when someone in a blog comment cited this discussion. The book is a quick read though it is a bit academic at times. Basically, the two analyses overlap some, this one ending with a hopeful message that religion can be used for good. I agree and anyways it will be around in some form for a long time. So, abuses cannot really be replaced by fully secular things.

And Also: Interesting analysis that shows a bit more than Islamophobia was involved in a recent bit of excitement concerning a class project. Knowing all the facts in these cases often informative and blogs can help there.

Scalia's Comment: "Racist" or Not, It was Bad

In Sweatt v. Painter [University of Texas] in finding that a segregated law school for Negroes could not provide them equal educational opportunities, this Court relied in large part on "those qualities which are incapable of objective measurement but which make for greatness in a law school." In McLaurin v. Oklahoma State Regents, supra, the Court, in requiring that a Negro admitted to a white graduate school be treated like all other students, again resorted to intangible considerations: ". . . his ability to study, to engage in discussions and exchange views with other students, and, in general, to learn his profession."

-- Brown v. Bd of Ed.

Various blogs (etc.) are discussing Justice Scalia's questions/comments during the Fisher II oral argument concerning the "mismatch theory," which even those who defend him (such as Stuart Taylor, a critic of affirmative action) deemed "dreadfully worded."  Various people who disagree with him went out of their way to assure us that the comments were not "racist," which got some pushback (thread as a whole interesting).

As noted there, the defenses at times are a tad exaggerated as are the criticisms of the critics.  The best approach there is to take everything into consideration. Seems fitting given current law regarding how to treat college admissions.  I have little sympathy for Scalia and find "this is why we don't have Supreme Court televised" discussion inane on some level.  THIS?  What a bunch of babies.  CJ Roberts' benefits of more blacks in physics class question wasn't great either. But, at the end of the day focusing on how they are "racists" or whatever, is not as useful as addressing the merits of their arguments. Which in the process helps show they are tools. It's a win win.

One reason that the mismatch case against affirmative action is a hard one to make is the difficulty in measuring the intangible benefits of attending one of the country’s most selective institutions—such as access to powerful peer networks, the long-term prestige of a diploma, and the increased likelihood that one’s children will aspire to and be able to attain the highest levels of educational accomplishment.

The essay should be read in full but this portion is especially notable since there is a throwback feel to it.  The Supreme Court sixty-five years ago by this point realized that merely going to some school, including out of state, wasn't enough to make something "equal."  There are a range of things that education provide, something the "new" To Kill a Mockingbird "sequel" notes at one point -- Atticus' protege went to law school, but the narrator says the main value was networking.  This is part of the "qualifications" of the school, shall we say, which is as complicated as that of the student.

Anyway, I know the first case was involved a law school, but come on -- Sweatt v. Painter involved keeping people out of the University of Texas Law School.  The connection to Fisher v. UT is just too easy. And, let's not let personality and "racism" (like calling those against same sex marriage "bigots" was seen as horrible since surely denying basic equality could be mistaken, but it cannot be mean or something) cloud that the comments as a whole were wrong, however you want to phrase it.

[Not that the "racist" critics have nothing and that can very well be part of the discussion.  Just don't let it be singled out as the only thing. The result is very tedious and unproductive. And, ultimately, the issue here is not the justices -- useful as that might be to focus on as a factor [ha!], but the value of the program and diversity/affirmative action programs as a whole.]

Republican Debate

I had no desire to watch it though getting updates via various Twitter people I following along with Talking Points Memo was amusing (less so when you remember the Republicans control Congress and are one of the two major parties or are sane) and even somewhat useful. Apparently, Trump/Cruz/Bush (but he's a lost cause, suggesting his "sanity" approach was desperation) did pretty well while Rubio did okay if a bit weak. Fiorina likes dogs. Darn facts.

Higher Expectations Game: Jets Edition

After a quick start, some looked past an average season as enough after a lousy '15 effort and their presumptive starter out after a teammate punched him in the jaw. Jets fell back to earth but then won a key game versus the Giants. But, reading a NY Daily News analysis, a 10-6 record (which is all things considered a success) is likely (losing the easiest game and winning the hardest best shot) not enough. In fact, 11-5 is not a gimmee. Sigh.

Miranda v. Arizona

"No person . . . shall be compelled in any criminal case to be a witness against himself," and that "the accused shall . . . have the Assistance of Counsel" 

This penultimate episode of Landmark Cases started with a clip of Miranda warnings t.v./movie clips.  The cultural effects of the ruling was a factor when the Rehnquist Court years later (contrary to one of the guests' efforts) rejected an attempt by federal law to overrule Miranda.  This might be a mixture of Rehnquist's concern about the power of the Supreme Court as well as -- contra to various comments by Mr. Cassell (including in response to a question taken from one "Joe Paulson" off Twitter regarding current FBI rules at the time) -- how the opinion was not quite as extreme (especially with the loopholes found) as all that.

The opening excerpt cites two constitutional provisions that was at issue. It is useful to note that though some think of this as a "right to remain silent" case, more is involved.  The right to a lawyer is key here since such an advocate is that protective all rights of the accused (brings to mind how voting was seen as protective of all rights as well).  Both being informed of your right to remain silent and to obtain a lawyer also was seen as a matter of equal protection, both given rich people already in effect had it and the FBI and certain foreign analogues were present:

The presence of a lawyer can also help to guarantee that the accused gives a fully accurate statement to the police, and that the statement is rightly reported by the prosecution at trial...

Finally, we must recognize that the imposition of the requirement for the request would discriminate against the defendant who does not know his rights. The defendant who does not ask for counsel is the very defendant who most needs counsel. We cannot penalize a defendant who, not understanding his constitutional rights, does not make the formal request, and, by such failure, demonstrates his helplessness. 

One thing Prof. Cassell argued was that the Miranda rule was extreme, including in cutting off interrogation once the defendant asked for a lawyer and giving a right at the time of the interrogation.  The opinion provides a discussion of just what current FBI policy (admittedly optional) around Footnote 53 for those interested to compare and contrast.  It also cites a federal appellate ruling that included this summary of the current federal warnings:

Appellant was informed that he need not talk to them; that he had a right to talk to an attorney or any other person he might choose; that the court would appoint him counsel; that anything he might say could be used against him.

Also, applying a rule to the interrogation was put in place a few years before, this time when a defendant asked for a lawyer.  The rule was applied per Miranda before indictment: "law enforcement officials took the defendant into custody and interrogated him in a police station for the purpose of obtaining a confession." The realization was that, especially given current practice (originally, there often weren't even police forces, no less pre-court interrogations*), that for the right to remain silent to have true meaning, it needed to be applied at that point.

The right (yes; we often here talk of a "privilege," but the text doesn't say that) to remain silent is present for various purposes. A core reason is to prevent torture and "third degree" tactics.  There is a problem here of false confessions, but that isn't the only reason -- there is a threat there, but sorry, sometimes "torture works."  But, it is a question of if it works as a whole given our system of justice.  Current news shows that we are not free from illicit physical tactics during interrogations.

Still, the opinion here was more concerned about psychological tactics, including various means of trickery to in effect trick the often unwary to give up their rights. The Closer, etc., shows that such tricky is deemed acceptable up to some point and also appealing as a way to get a confession and/or solve crimes generally. The justices showed a wariness of the process.  First, as noted, a right to a lawyer protected rights and overall the our adversary system, even to the extent of helping to ease confessions in a way deemed legitimate. Second, the right to remain silent had an overall dignity (not just a word used by Justice Kennedy) and privacy interest that people should only waive knowingly. Finally, the opinion at one point questioned just how important confessions are in many cases.

One concern of critics is that the opinion set forth an artificial rule when the previous "totality of circumstances" voluntariness rule was appropriate.  As the other guest noted, such a rule is complex to apply in practice. This is the usual debate over set rules and balancing tests.  The Fourth Amendment (which applies to blood tests and the like here) speaks of reasonableness. The Fifth and Sixth Amendment is more blanket.  Also, the interrogation generally takes place in a "black box" where it is hard to determine just what happened. And, it should be noted that various exceptions and loopholes were found at any rate. 

The overall story of the case at issue (not noted in the episode, Miranda was really a handful of cases, Miranda being the lead) shows the limits of these things. As is repeatedly the case, in cases where confessions are important (and in many cases they are not), a way around the loss was found by the government.  His common-in-law wife, deemed not to be privileged, added important testimony along with the victim.  Miranda remained in prison and later was killed in a knife fight.  A suspect was given the warnings, in English and Spanish, but was never prosecuted.

These cases often bring complaints that victims of crime are unjustly burdened by excessive rights of criminals. But, where is the stopping point there?  Each and every right of the accused can be cited in some sense in that context -- it is ultimately a matter of line drawing. The accused can be respected as can the needs of public safety.   Our system of liberty includes protecting of rights, sometimes making it harder to prosecute, here helping the overall adversary system that in various ways oils the joints.

And, Miranda v. Arizona and related cases of a series to reform the system to better enforce constitutional rights were not the end. The concerns continue and we can adapt as we learn more and times change.  It was suggested that videotaping would advance ends here. I think it isn't an Utopian solution, here or in respect to policing arrests, but surely.  On that front, for instance, a right of privacy here is not promoted simply by making sure a confession is not involuntarily obtained. A continual relentless interrogation can burden that too.  Ditto not protecting a right to a lawyer at a key moment.  And, videotapes won't even show everything, including what might have happened off camera

No one opinion or set of magic words will fully honor the multiple principles the case here intended to advance.  As with Brown v. Board and how simply ending state mandated segregation did not address many inequalities, a literal application will not protect the rights at hand.  In various cases, the Supreme Court largely dealt with some technical issue and just how far the spirit of the rights were protected is questionable.  But, nothing special there; it's a concern that will pop up in a variety of contexts.

Basic rights, an obligation to inform people of them and truly honoring the spirit of both is key here.

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* One federal rule in place pre-Miranda was that a suspect had to be taken in front of a magistrate "without unnecessary delay" ("was readily accessible"), here only a matter of hours (in fact, even under an hour was a a concern).  It was noted:

He was not told of his rights to counsel or to a preliminary examination before a magistrate, nor was he warned that he might keep silent and "that any statement made by him may be used against him." 

Yes, it was a rule not a constitutional demand, but the principles behind the rule sound like constitutional principles and applicable here.  The old rule that disfavored confessions outside of court is suggested by Art. III of the Constitution, setting this rule for treason convictions:

No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

Not "a confession in a squad room that can be used if the defendant later denies doing it." Citing the rule here in particular does argue for it not being in place in other cases, but constitutional rights protections repeatedly cite the most blatant concerns and if treason, why not other capital or even infamous crimes like murder and rape?

At the very least, if we do allow confessions outside of court, why not require special protections that include informed waiver opt outs? And, with additional context, the "problem" with this rule seems more a matter of degree.