Balkinization: October 2014

Balkinization
an unanticipated consequence of
Jack M. Balkin

E-mail:
Jack Balkin:
jackbalkin at yahoo.com
Bruce Ackerman
bruce.ackerman at yale.edu
Ian Ayres
ian.ayres at yale.edu
Corey Brettschneider
corey_brettschneider at brown.edu
Mary Dudziak
mary.l.dudziak at emory.edu
Joey Fishkin
joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber
mgraber at law.umaryland.edu
Stephen Griffin
sgriffin at tulane.edu
Jonathan Hafetz
jonathan.hafetz at shu.edu
Jeremy Kessler
jkessler at law.columbia.edu
Andrew Koppelman
akoppelman at law.northwestern.edu
Marty Lederman
msl46 at law.georgetown.edu
Sanford Levinson
slevinson at law.utexas.edu
David Luban
david.luban at gmail.com
Gerard Magliocca
gmaglioc at iupui.edu
Jason Mazzone
mazzonej at illinois.edu
Linda McClain
lmcclain at bu.edu
John Mikhail
mikhail at law.georgetown.edu
Frank Pasquale
pasquale.frank at gmail.com
Nate Persily
npersily at gmail.com
Michael Stokes Paulsen
michaelstokespaulsen at gmail.com
Deborah Pearlstein
dpearlst at yu.edu
Rick Pildes
rick.pildes at nyu.edu
David Pozen
dpozen at law.columbia.edu
Richard Primus
raprimus at umich.edu
K. Sabeel Rahman
sabeel.rahman at brooklaw.edu
Alice Ristroph
alice.ristroph at shu.edu
Neil Siegel
siegel at law.duke.edu
David Super
david.super at law.georgetown.edu
Brian Tamanaha
btamanaha at wulaw.wustl.edu
Nelson Tebbe
nelson.tebbe at brooklaw.edu
Mark Tushnet
mtushnet at law.harvard.edu
Adam Winkler
winkler at ucla.edu

Compendium of posts on Hobby Lobby and related cases

The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC

The Anti-Torture Memos (arranged by topic)

Recent Posts

Citizenship-Enhancing Family Law for All

Structuring Families, Structuring Race

Strengthening Families Close to Home

Benjamin Gregg on Human Rights

Families in the Legal Ecosystem: Thinking Globally, How Do We Act Locally?

Flourishing Fatherhood

Helping Families Flourish: Committing to Children, Mothers (and Fathers)

Framing Family Interventions

The Politics of Family Law Reform -- Getting from Here to There

Introduction: Book Symposium on Clare Huntington, Failure to Flourish

Not a Difficult Decision: Why the Court Shouldn’t Grant Cert. in King v. Burwell

“Same As It Ever Was”?: The Definition of Marriage in Puerto Rico

Keynote Address: Public Health in the Shadow of the First Amendment

Government By Wishful Thinking

When Pictures Are Worth A Thousand Words: An Empirical Approach

Ensuring Appropriate Use of Health Data Without Violating the First Amendment

Science and Democracy: The Shifting Role of Medical Expertise and Evidence in Abortion Jurisprudence

The Emotional Impact of Compelled Speech

Update on the Establishment Clause and Third Party Harms: One Ongoing Violation and One Constitutional Accommodation

Big Pharma: the Unseemly First Amendment Champion, Part Two

Big Pharma: the Unseemly First Amendment Champion, Part One

Conclusion to the Animus Symposium: Animus Going Forward

Physician Conduct? Or Speech? Or Both?

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Friday, October 31, 2014

Citizenship-Enhancing Family Law for All

Guest Blogger

Clare Huntington

For the book symposium on Clare Huntington, Failure to Flourish: How Family Law Undermines Family Relationships (Oxford University Press, 2014)

Robin Lenhardt’s critique—of my book and family law scholarship more generally—is spot on. In the book I explore the many ways that family law structures family life, often for the worse, but I do not apply these same tools to find the layer she identifies, where family law structures race. Her post is a reminder that when we talk about fundamental social phenomena like family and race, it is essential to be attentive not only to the constitutive process but also the intersections when these forces combine.

To take up Lenhardt’s challenge to imagine a citizenship-enhancing family law, a useful place to start is Maxine Eichner’s book, The Supportive State. Eichner contends that the state should protect and foster a broader array of goods than simply liberty and equality. She argues that liberal theory should incorporate caretaking and human development into the conception of the goods that the state should further and that the state and families have a shared responsibility to care for children. With this broader conception of liberal theory, Eichner concludes that the state must “actively support individuals in receiving the caretaking and conditions for human development necessary for them to become responsible, self-directing citizens.” (p. 52)

Drawing on this first principle and using Lenhardt’s analytical tools, we can see the many ways in which the state, acting through family law, does not further human development for all families and instead shapes inequality broadly and race particularly. Consider family law’s approach to unmarried, low-income, African American families.

Posted 7:38 PM by Guest Blogger [link]

Thursday, October 30, 2014

Structuring Families, Structuring Race

Guest Blogger

R.A. Lenhardt

For the book symposium on Clare Huntington, Failure to Flourish: How Family Law Undermines Family Relationships(Oxford University Press, 2014)

Several years ago, I invited a lawyer and social worker from the Bronx Defenders’ family defense unit to speak to my family law class. In outlining their work defending indigent parents accused of child neglect or abuse in New York City, the two women, both white, described their own, personal experiences with the child welfare system upon becoming new mothers. The speaker trained as a social worker -- who lived in a predominantly poor and minority neighborhood in the Bronx – described receiving an unscheduled, but under policies then pertaining to her neighborhood, apparently standard visit from a government social worker soon after she delivered her first child. The social worker inspected this woman’s apartment, checked the cabinets for food, and interrogated her about potential drug use and future plans for childcare, but offered little in the way of affirmative support. In contrast, the speaker trained as a lawyer -- who lived in an affluent, predominantly white area of Brooklyn – did not get so much as an email upon bringing her baby home from the hospital for the first time. She was relieved to escape the intense scrutiny leveled at her colleague, not to mention many of the clients she represented. At the same time, though, this woman observed that her odds of securing support in acclimating to motherhood were significantly decreased because the racial character and income profile of the neighborhood in which she lived marked her as a presumptively “good” parent.

Clare Huntington’s excellent new book, Failure to Flourish: How Law Undermines Family Relationships directly addresses one of the key criticisms of family law implied in the story just conveyed. After cogently charting the multiple ways in which government involves itself in the lives of families, the book makes a compelling case that, inter alia, the structures and systems of family law – broad policies and practices stretching from matters of adoption to zoning that Huntington calls “structural family law” -- are too often punitive and do too little to support the effective functioning of families. In doing so, however, Huntington’s analysis overlooks equally important criticism communicated in my guest speakers’ presentation: that family law also structures conceptions, norms, and even the experience of race, and does so in ways that disadvantages racial minorities. The surprise visits to residences in low-income, predominantly minority areas of New York City, but not to affluent white neighborhoods, described lay bare the troubling ways in which race and poverty intersect in the lives of families.

Posted 10:38 PM by Guest Blogger [link]

Strengthening Families Close to Home

Guest Blogger

Clare Huntington

For the book symposium on Clare Huntington, Failure to Flourish: How Family Law Undermines Family Relationships (Oxford University Press, 2014)

I love Robert Emery’s challenge. These issues can feel overwhelming, and it is easy to think there is little that we can do as individuals, acting in our corner of the world.

The first step is grasping the problem. We had to understand the dynamics and causes of climate change before we could begin to convince people that they needed to alter their behavior (an ongoing project). So we should be optimistic about the potential for reform in family law—more so than with climate change—given the broad consensus that strong families matter, even if we disagree about how to achieve that goal.

Emery’s own work has been foundational in our understanding of the need for family law reform. Among the many aspects of positive family law, Emery’s work focuses on marriage and divorce, and he has made a brilliant career out of advancing our understanding of the importance of marriage and the possibilities for healthy divorce. His work on the lasting impact of mediated as opposed to litigated divorce, for example, has supported a sea change in family law. So, Emery has already changed the world and inspired others by the clarity of his thinking and the depth of his research. That’s a whole lot more than changing a light bulb.

There are equivalents for all of us, academics or not, and we can each find our own corner to tend.

Posted 2:02 PM by Guest Blogger [link]

Benjamin Gregg on Human Rights

Andrew Koppelman

Benjamin Gregg’s book, Human Rights as Social Construction, propounds an understanding of human rights that is based upon ‘a wholly naturalistic conception’ of humanity, one ‘that takes human nature as biologically understood and eschews supernatural explanations, whether theological or metaphysical’ (p. 185). He oscillates between two conceptions of this project: an abstemious, neo-Rawlsian political liberalism, and a comprehensive view that rejects religious and metaphysical claims.

I review the book, with a response from Prof. Gregg, in the current issue of Contemporary Political Theory, here.

Posted 10:54 AM by Andrew Koppelman [link]

Wednesday, October 29, 2014

Families in the Legal Ecosystem: Thinking Globally, How Do We Act Locally?

Guest Blogger

Robert Emery

For the book symposium on Clare Huntington, Failure to Flourish: How Family Law Undermines Family Relationships (Oxford University Press, 2014)

I am awed by Clare Huntington’s sweeping and impressively detailed analysis of how the legal ecosystem, especially “negative family law,” pollutes contemporary family life. Huntington argues that the law shapes family forms and family relationships in ways far beyond the obvious. Of course, she highlights essential influences like education, childcare, marriage, and divorce policy. But Huntington argues that families also are affected by a myriad of other factors such as job opportunities and demands, neighborhoods, health care, and taxes.

In one sense, Huntington’s systemic perspective is not new. Sociologists, economists, and historians often argue that families are shaped by the broad forces of society, making a living, and history. Yet, no one has focused a lens more sharply than Huntington in identifying how the contemporary network of laws not only shapes but undermines stable, loving relationships across a diversity of family forms.

I am convinced by Huntington’s arguments, which she buffers with careful, detailed analysis of evidence from at least a dozen fields of study. Like her, I have been captivated by the positive psychology movement, and I want to join Huntington in her quest to promote a new, positive family law.

And yet, I am daunted in my awe. As I sometimes feel when reading about global warming – or the myriad of peer and media influences on my children, I wonder: What can I do? It’s all so much. Where do I begin?

Posted 7:10 PM by Guest Blogger [link]

Flourishing Fatherhood

Guest Blogger

Clare Huntington

For the book symposium on Clare Huntington, Failure to Flourish: How Family Law Undermines Family Relationships (Oxford University Press, 2014)

Solangel Maldonado is right that family law is too quick to devalue low-income, unmarried fathers, especially those who do not live with their children and who have a history of incarceration. In the book, I talk a lot about low-income, unmarried “parents” but do not separate out fathers. After I finished the book, I felt this deficit and so starting exploring the place of unmarried fathers in family law.

The resulting article, which will be published this winter, argues that there is a fundamental mismatch between family law, which is still based on marriage, and family life, which increasingly is not. Unmarried fathers bear the brunt of this mismatch. I had not realized until I started researching the article that fifteen states grant sole custody to a mother when a child is born to unmarried parents. And no state has a default rule awarding custody to both parents upon birth. Instead, family law assumes either that parents are living together and so do not need to divide custody or that the child is living with the mother. These kinds of rules foster what sociologists term “maternal gatekeeping,” where mothers control fathers’ access to shared children.

Fathers could go to court to protect their right to visitation or even gain a portion of custody, but most low-income fathers do not, for a combination of financial, cultural, and practical reasons. This means that unmarried parents are left without an effective institution to help them transition from a family based on a romantic relationship to a family based on co-parenting. Thus, the parents do not have the benefit of clearly established expectations for their rights and responsibilities following a breakup.

Posted 6:05 PM by Guest Blogger [link]

Tuesday, October 28, 2014

Helping Families Flourish: Committing to Children, Mothers (and Fathers)

Guest Blogger

Solangel Maldonado

For the book symposium on Clare Huntington, Failure to Flourish: How Family Law Undermines Family Relationships (Oxford University Press, 2014)

When I tell people I teach family law, I brace myself for the negative reaction. Everyone knows someone who has been treated unfairly in a divorce, has been ordered to pay more child support than he could afford, or has a child in foster care due to poor housing or inadequate child care arrangements. Individuals who have had contact with the family courts often say that “the system made things worse.” In Failure to Flourish, Clare Huntington demonstrates how the law’s adversarial approach has failed to help families resolve disputes without aggravating conflict and recommends numerous legal reforms to help individuals repair family relationships that the law deems broken. These proposed reforms are comprehensive, ambitious, and far-reaching. They range from changing the rules that govern how parental responsibility for children and parenting time is allocated after parental separation to adopting alternatives to litigation such as collaborative divorce and family group conferencing. Importantly, Huntington demonstrates how lawyers often exacerbate family conflicts and challenges law schools to teach future lawyers to help their clients focus on the need to repair family relationships.

While tackling the law’s tendencies to exacerbate family conflicts would be a daunting undertaking for most scholars, Huntington does not stop there.

Posted 6:16 PM by Guest Blogger [link]

Framing Family Interventions

Guest Blogger

Clare Huntington

For the book symposium on Clare Huntington, Failure to Flourish: How Law Undermines Family Relationships (Oxford University Press, 2014)

Thanks so much to Linda McClain for organizing this symposium and Jack Balkin for hosting it. I am delighted to engage in a week-long conversation about family law, which is, as I argue in my book, an under-appreciated factor contributing to inequality in the United States.

Elizabeth Scott has provided a terrific start to the symposium, raising a host of important issues. Scott has already given a brief overview of the central argument of the book—that families are essential to human flourishing but that too often family law undermines family relationships—so I will jump right into her arguments. Scott contends that although the U.S. should adopt my proposals, it is unlikely that the country will do so, at least to the extent I recommend. Scott identifies both political and pragmatic reasons for resistance. She notes the unwillingness to re-think the current distribution of wealth as well as a preference for programs that focus on tangible harms and produce positive outcomes in the near-term rather than programs that focus on diffuse harms and have either a remote or unclear payoff. She thus distinguishes teen pregnancy prevention programs (more likely to win support) from efforts to encourage co-parenting by low-income, unmarried fathers (more likely to face opposition). I agree with this view as a predictive matter, but much of what I call for in the book, even those programs that might seem to address diffuse harms with remote payoffs, can be re-framed in the way Scott suggests.

Posted 1:29 PM by Guest Blogger [link]

Monday, October 27, 2014

The Politics of Family Law Reform -- Getting from Here to There

Guest Blogger

Elizabeth Scott

For the book symposium on Clare Huntington, Failure to Flourish: How Law Undermines Family Relationships (Oxford University Press, 2014)

Many scholars and advocates have argued that American law does little to support families, and that our society would benefit greatly from reforms that aim to assist parents in raising their children to become healthy and productive adults. What Clare Huntington has done in her wonderful book, Failure to Flourish, is to describe in remarkable detail the ways in which the law undermines families across a range of policy domains—and then to offer a comprehensive reform agenda for strengthening positive family relationships. Her proposals range from the surprising (highway design) to the more predictable (early childhood education, child care programs and custody law reform). In combination, they provide a blueprint for a policy regime that would go far to correct the legal deficiencies that cause harm to families across the socio-economic spectrum, but particularly to poor families. The book is meticulously researched and her arguments are supported by sound social science evidence and particularly by outcome research on a broad range of programs. Huntington is persuasive (to me at least); I have little doubt that, if lawmakers were to embrace her regulatory vision, substantial benefits would follow for American families, and social welfare would be enhanced greatly. The book provides an extraordinary guide to assist family advocates in the pursuit of law reform.

Posted 5:23 PM by Guest Blogger [link]

Introduction: Book Symposium on Clare Huntington, Failure to Flourish

Guest Blogger

Linda McClain
Introduction to book symposium on Clare Huntington, Failure to Flourish: How Law Undermines Family Relationships (Oxford University Press, 2014)

It is my pleasure to introduce a symposium this week on Professor Clare Huntington’s recent book, Failure to Flourish: How Law Undermines Family Relationships (Oxford University Press, 2014). A staple in political rhetoric, particularly in presidential election cycles, is the premise that there is an important relationship between strong families and a strong nation. As 2016 draws closer, we can also expect to hear rhetoric about the need to close the gap between talking about “family values” and adopting policies that value families. Even now, the future of marriage is a matter of intense discussion: even as marriage becomes available, in a growing number of states, to same-sex couples formerly excluded from it, policy analysts worry about the implications of the growing class-based marriage divide for child well-being and family stability. Thus, it is a propitious time to consider a new book that argues that “strong, stable, and positive” relationships matter for child well-being, for adults, and for society, and insists that a "flourishing" family law and policy can do much more to support those relationships. This week’s book symposium will feature several commentaries on Failure to Flourish, as well as responses by Professor Huntington.

Linda C. McClain is a Professor of Law at Boston University School of Law and may be reached at lmcclainatbu.edu

Posted 5:11 PM by Guest Blogger [link]

Not a Difficult Decision: Why the Court Shouldn’t Grant Cert. in King v. Burwell

Guest Blogger

Brianne Gorod

On October 31, the Supreme Court will consider whether to grant cert. in King v. Burwell, a case out of the Fourth Circuit Court of Appeals that is part of the latest round of challenges to the Affordable Care Act. People following these challenges will no doubt be waiting for the Court’s decision with bated breath, but there shouldn’t be much suspense. If the Court follows its usual practices and procedures, it won’t grant review in King.

As Supreme Court practitioners all know, the most important factor the Court considers in deciding to hear a case is whether there’s a division of authority among the courts below. As then-Judge Roberts explained at his confirmation hearing, “The job of the Supreme Court is to ensure the uniformity and consistency of Federal law . . . .” This principle is expressly reflected in Supreme Court Rule 10, which identifies the factors the Court considers when deciding whether to grant cert. The first factor Rule 10 lists is whether “a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter.”

Indeed, the justices themselves have repeatedly recognized the important role that circuit splits play in their decisions about cert. A few years ago, Justice Scalia told the Senate Judiciary Committee that his colleagues on the Court “all have standards: Is there a circuit conflict? Is this a significant issue on which the lower courts are divided?” He stated that “if there’s no disagreement below, we don’t get involved.” And much more recently, Justice Ginsburg pointed to the same factor in explaining the Court’s decision not to hear any of the same-sex marriage cases. As she explained, “[W]hen there’s no disagreement among the courts of appeals we don’t step in. The major job of the court is to keep the law of the United States more or less uniform.”

And there is no disagreement here. Yes, on the same day in July that the Fourth Circuit in King upheld the IRS rule confirming that tax credits and subsidies should be available to individuals who purchase insurance on federally-facilitated Exchanges, the D.C. Circuit came out the other way in a 2-1 decision in Halbig v. Burwell. But the D.C. Circuit Court of Appeals subsequently decided to rehear Halbig v. Burwell en banc, vacating the panel’s judgment, and thus eliminating any division among the circuits. The law’s challengers continue to argue that there’s a circuit split because the order granting en banc review only vacated the panel’s judgment, not its opinion, but that’s a distinction without a difference. What matters for present purposes is that there’s no division in the way the law is being applied in different parts of the country, and so no need for the Supreme Court to intervene now. Indeed, the full D.C. Circuit could well end up agreeing with the Fourth Circuit, and thus there will be no need for the Court to intervene at all (assuming subsequent courts of appeals also agree).

And that is why if the Court follows its normal practice, it will either deny the petition in King or wait to decide whether to grant cert. until the full D.C. Circuit issues its decision. Indeed, an additional reason the Court often waits for circuit splits before granting cert. is to let issues percolate in the lower courts and to get the wisdom of lower court judges on contentious legal issues before the Court steps in. Here, waiting would not only give the Court the benefit of hearing what the full D.C. Circuit has to say on the issue, but possibly the Tenth Circuit, as well, which is expediting its review of another case that raises the same issue.

To be sure, there is one additional Rule 10 factor that could play a role in the Court’s cert. grant determination in King: whether “a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court.” But it would be astonishing for the Court to decide that the question posed in King rises to this level given the Court’s recent decision that the questions posed by the same-sex marriage cases did not. The marriage cases posed major constitutional questions affecting the rights of millions of Americans. In contrast, the legal question King poses is a narrow and straightforward question of statutory interpretation. Further, the marriage cases involved dozens of state laws and constitutional provisions being set aside on federal grounds. Again, in contrast, there is no judgment from a court of appeals setting aside the federal regulation at issue in King. Thus, whatever the merits of the Court’s decision not to hear the marriage cases, it makes far less sense for the Court to hear King.

When the Supreme Court meets on Friday, the Justices will no doubt have a lot of difficult decisions to make about which cases merit the Court’s attention. But the decision about whether to hear King shouldn’t be one of them.

---

Brianne Gorod is appellate counsel at Constitutional Accountability Center. She served as an attorney-advisor in the Office of Legal Counsel and law clerk to Justice Stephen Breyer. You can reach her by e-mail at Brianne at theusconstitution.org

Posted 1:13 PM by Guest Blogger [link]

Thursday, October 23, 2014

“Same As It Ever Was”?: The Definition of Marriage in Puerto Rico

Linda McClain

On October 21, Judge Juan M. Pérez-Giménez, a federal district court judge in the District of Puerto Rico, made headlines by granting the Commonwealth of Puerto Rico’s motion to dismiss in Conde-Vidal v. Garcia-Padilla, a federal constitutional challenge brought by four same-sex couples to Article 68 of Puerto Rico’s Civil Code, which defines marriage as “originating in a civil contract whereby a man and woman mutually agree to become husband and wife. . . ” Understandably, news stories and legal commentary about this case highlight the court’s consciously departing from other post-Windsor federal courts to rule that Baker v. Nelson (1972) required it to dismiss plaintiffs’ case, given that, in 2012, the First Circuit observed, in striking down DOMA on Equal Protection grounds, that it was neither “empowered” to imply that the Supreme Court’s precedents since Baker implied Baker’s overruling nor “willing to predict” the Court would overrule Baker. Nonetheless, another feature that warrants comment is the district court’s appeal to the Civil Code’s “long-standing definition of marriage, stretching against two legal traditions” – Spanish and United States – to rule out “animus” and show a clear, coherent, and consistent policy that marriage is between one man and one woman. The law of marriage, however, has been far from “consistent,” as the changing versions of the Civil Code illustrate. Instead, that evolution well illustrates marriage’s trajectory from (as Ninth Circuit Judge Marsha Berzon put it in her recent concurrence in Latta v. Otter ) “a profoundly unequal institution [that] imposed distinctively different rights and obligations on men and women” to a more “genderless” relationship of mutuality and equality.
Read more »

Posted 10:36 PM by Linda McClain [link]

Saturday, October 18, 2014

Keynote Address: Public Health in the Shadow of the First Amendment

Guest Blogger

Joshua M. Sharfstein

For the conference on Public Health in the Shadow of the First Amendment

[The following is the text of the Keynote Address for the Conference on Public Health in the Shadow of the First Amendment, delivered at Yale Law School on October 18, 2014, by Joshua M. Sharfstein, M.D., Secretary, Maryland Department of Health and Mental Hygiene]

Thank you for inviting me to speak at this important and timely conference. As a pediatrician and state public health official, I especially appreciate the chance to talk with you today.

I’d like to start by setting expectations.

My legal training is limited to two courses in health law and an introductory class in administrative law…which I audited.

So I am not angling for an honorary degree ... as much as I might like to show it to my brother, who did graduate from here and now teaches at Vanderbilt Law School.

Instead, I will speak from my judgment and experience.

Before I get into the substance of the topic, however, and as the only public health doctor speaking at this conference, I would like to clear the air of a misconception about people who work in my field ... specifically, that we are dour and humorless killjoys.

I recently spoke to public health graduates who had just earned their degrees in one of the many diverse fields, including epidemiology, environmental health science, laboratory investigation and immunology.

I had to remind them that each had passed the core curriculum.

Public Health 101 -- How to take all the pleasure out of eating and drinking.

Public Health 201 -- How to turn a conversation on any topic into a discussion of antibiotic resistant sexually transmitted disease.

And Public.Health 301 -- How to take all the pleasure out of eating and drinking … by talking about antibiotic resistant sexually transmitted disease.

The truth is that public health is a field full of people who enjoy life. Our premise is that the well-being of individuals, families, and communities has fundamental moral value. When people are healthy, they are productive, creative, and caring. They spend time with their friends and families, they strengthen their neighborhoods, and they help others in need.

In short, they get to live their lives.

When I think of who works in public health, I do not picture nanny-like functionaries sitting in cubicles.

Rather, I have in mind Dr. Albert Sommer, the ophthalmologist from my neighborhood in Baltimore who recognized that Vitamin A deficiency causes not only blindness but also early death among children in the developing world. This insight was proven through extensive clinical investigation in the field. Dr. Sommer’s work has saved millions of lives.

As a public health official in this country, my job has operated at a different scale. But the premise is the same -- to use tools of science to identify ways to reduce suffering and improve health.

In Baltimore, for example, after we identified a large number of babies dying in unsafe sleeping conditions … we designed and implemented a campaign to address the problem.

Working with experts in behavior change and communications at the Johns Hopkins Bloomberg School of Public Health, the city developed hard-hitting advertisements in which parents who lost babies to unsafe sleep told their stories. We showed these videos across the city, including in jury rooms, and in social services offices.

Safe sleeping increased, unsafe sleep deaths declined, and now more children in our city get to live their lives.

In this context, I would like to share my concern that recent court decisions involving the First Amendment are undermining the health and well-being of the American people.

The issues under discussion at this conference are not abstract questions of law; they are matters of life and death.

About 25 years ago, the Institute of Medicine defined public health as “what we, as a society, do collectively to assure the conditions for people to be healthy.”

I would like to discuss several “conditions for people to be healthy” that recent court decisions have put at risk … as a result of an ideology that gives tremendous weight to commercial speech but provides little deference to professional speech and public health expertise.

Posted 5:30 PM by Guest Blogger [link]

Friday, October 17, 2014

Government By Wishful Thinking

Guest Blogger

Ted Mermin

For the conference on Public Health in the Shadow of the First Amendment

Public health and government have what supermarket tabloids refer to as a “complicated relationship.” One of the reasons for the complexity is that government has a habit of governing idealized persons, while the people being governed have an equally strong tendency to behave in ways that are not ideal. It does not take Dr. Phil – or, to advert to a greater sage of an earlier era – Dr. Ruth to figure out that this is not a recipe for a successful partnership.

To illustrate: The story of HIV/AIDS prevention in this country is a morality tale. That is, government efforts to reduce new infections have from the outset involved considerations other than the basic public health directive of saving lives. For years, abstinence and monogamy – and avoiding intravenous drug use – were the primary preventive measures that the federal government would advocate. Even in Africa at the height of the AIDS crisis a decade ago, the US government assistance program insisted on “ABC” – Abstinence, Be faithful, and (only then, if you must have sex) use a Condom. Domestically, federal agencies were specifically prevented from funding needle-exchange programs – despite stark evidence of their effectiveness at preventing infection – until 2009, and the prohibition was reinstated two years later. For more than a quarter century, then, U.S. policy in response to the HIV epidemic was driven by something other than simply preventing disease.

We can call it “morality,” or squeamishness, or perhaps simply a fervent wish that people would just behave better – more in the image of an ideal citizen. At least since the transmission pathways were established, the federal government has been happy and effective in helping ideal citizens avoid HIV – hemophiliac children who receive blood products, for example. But it took much longer for the government to get around to recognizing gay men and IV drug users as victims. If these people hadn't done what they did, none of this – well, you know. They brought it on themselves. This was not at all the way the citizenry was supposed to behave. The government found it difficult to officially recognize that it was treating fallible people, not idealized people – those who behaved as they were, not as the government and many others thought they should be. These actual humans posed, as they always have, a real problem.

The landscape where government and public health meet is dotted with illustrations of the real human/idealized human dilemma.

Posted 9:30 AM by Guest Blogger [link]

When Pictures Are Worth A Thousand Words: An Empirical Approach

Guest Blogger

Christine Jolls

For the conference on Public Health in the Shadow of the First Amendment

Law, both within and beyond the domain of public health, is pervasively concerned with the availability of information. A question of the first order is then what it means for an individual to “have” a given piece of information. Consider someone who hears the following commercial: “I admit it. I thought of skimping. Could you look into those big blue eyes and skimp on her? So I buy KRAFT Singles. Imitation slices use hardly any milk. But KRAFT has five ounces per slice. Five ounces. So her little bones get calcium they need to grow.” (The example, from a Federal Trade Commission decision, comes from an article by Professor Richard Craswell.) Upon hearing this commercial, does the listener “have” the information that KRAFT slices contain more calcium than “imitation” slices?

One can imagine at least three ways of answering this sort of question. The literal approach concludes, in the KRAFT case, that the listener does not “have” the information that KRAFT slices contain more calcium because the literal terms of the commercial are not logically inconsistent with KRAFT and “imitation” slices containing comparable amounts of calcium (which in fact they did; the “imitation” slices got their calcium from sources other than milk). The legal-pragmatic approach asserts that the listener “has” the information that KRAFT slices contain more calcium because an authoritative legal decisionmaker – in this case, the Federal Trade Commission (FTC) – determined that a reasonable consumer would view the commercial as having this meaning. Finally, the empirical approach suggests that the listener “has” the information that KRAFT slices contain more calcium to the extent that empirical evidence of the effects of KRAFT’s language, or “comparable” language in a related context, suggests that listeners often will in fact conclude from the commercial that KRAFT slices contain more calcium. In the words of the FTC – which employs the empirical approach if it interprets a commercial to be ambiguous under its reasonable-consumer standard, as it found was not the case in In re KRAFT – relevant empirical evidence includes “reliable results from methodologically sound consumer surveys” and “generally accepted principles drawn from market research showing that consumers generally respond in a certain manner to advertisements that are presented in a particular way.” (In re KRAFT (FTC 1991).)

The literal, legal-pragmatic, and empirical approaches to “informedness” are no less likely (and perhaps are more likely) to produce different conclusions when a communication combines words with graphics, as in the below example from Ontario of a sign warning about ticks carrying Lyme Disease:

In many areas of public health today, there is great interest in warnings that incorporate graphic elements of various types.

The literal approach in such cases may face difficulty in determining what a “literal” interpretation of a particular graphic element is. In a prominent legal challenge to the Food and Drug Administration’s proposed tobacco warnings, for instance, the United States District Court for the District of Columbia displayed a form of literalism in responding to these warnings. Speaking of the communication below, the court complained that the communication’s inclusion of autopsy staples on a deceased man’s chest suggested – notwithstanding the textual message “WARNING: Smoking can kill you” – that “smoking leads to autopsies” (p. 273 of the court’s opinion), and yet, the court remonstrated, “the government provides no support to show that autopsies are a common consequence of smoking.” (R.J. Reynolds Tobacco Co. v. Food and Drug Administration (D.D.C. 2012).)

Neither the legal-pragmatic nor the empirical approach would succumb to this sort of interpretive strategy, but in the case of the former, pictorial material would tend to be downplayed, while text would often exert an outsize influence. As Rebecca Tushnet has remarked in connection with the blank spaces Google Books substituted for books’ printed images, the blank spaces provide “a perfect if unintentional demonstration of how copyright, like much of law, thinks about images, which is to say it doesn’t think much about them at all, privileging the text….” (Harvard Law Review, 2012.)

With respect to the empirical approach, the effect of graphic material would remain a firmly data-driven question. Consider, for instance, another pictorial health warning (below) challenged in the tobacco litigation. Results from a large-scale experimental study compared the likelihood of factually inaccurate perceptions of the risk of smoking among respondents who viewed this warning to the likelihood of factually inaccurate perceptions among respondents who viewed a warning containing only the textual component (“WARNING: Tobacco smoke can harm your children”). Respondents’ level of agreement with the factually inaccurate statement “If I have smoked a pack of cigarettes a day for more than 20 years, there is little health benefit to me quitting smoking” was significantly lower among those who viewed the graphic-and-text warning than among those who viewed the text-only warning. (Experimental Study of Graphic Cigarette Warning Labels: Final Results Report, Prepared for Center for Tobacco Products, Food and Drug Administration, available at http://www.regulations.gov/#!documentDetail;D=FDA-2010-N-0568-0008; Christine Jolls, 30th International Seminar on the New Institutional Economics-Behavioral Theory of Institutions, Journal of Theoretical and Institutional Economics, 2013.)

The empirical approach thus suggests that “informedness” in the tobacco context is higher with pictorial warnings than with text-only counterparts to such warnings. This and similar empirical findings on the factual accuracy of people’s risk perceptions under alternate communication forms have an important yet under-recognized role to play in First Amendment litigation over such communication forms.

Christine Jolls is Gordon Bradford Tweedy Professor of Law and Organization at Yale Law School. You can reach her by e-mail at christine.jolls at yale.edu

Posted 9:00 AM by Guest Blogger [link]

Ensuring Appropriate Use of Health Data Without Violating the First Amendment

Frank Pasquale

For the conference Public Health in the Shadow of the First Amendment.

Back in 2002, Dan Solove made the following observation on data brokers:

Consolidating various bits of information, each itself relatively unrevealing, can, in the aggregate, begin to paint a portrait of a person's life ... a ‘digital biography.’ A growing number of private sector organizations are using public records to construct digital biographies on millions of individuals .... These uses are resulting in a growing dehumanization, powerlessness, and vulnerability for individuals.

Twelve years later, these profiles have become even more invasive. Health data, in particular, has become ubiquitous. Brokers have lists of thousands of people with sexually transmitted diseases, diabetes, cancer, Alzheimer’s, dementia and AIDS. They don't need access to medical records to get this information. As Nicolas Terry has shown, patient-curated and medically-inflected data can be used as proxies for health status. When a firm has a sufficient quantity of customers and loyalty programs, it can even predict whether women are pregnant. Consumer health websites and online surveys are also analyzed for clues as to health status.

But not all the resulting lists are accurate. For example, reporters have documented mixups on "diabetes interest" lists and MS lists. I believe we deserve some rights to review, correct, and annotate this data. Some say that regulation along those lines will impede innovation. But in an era of big bad data, we need to encourage processes that verify and improve information sources.
Read more »

Posted 12:16 AM by Frank Pasquale [link]

Thursday, October 16, 2014

Science and Democracy: The Shifting Role of Medical Expertise and Evidence in Abortion Jurisprudence

Guest Blogger

Aziza Ahmed

For the conference on Public Health in the Shadow of the First Amendment

In Roe v. Wade, the Supreme Court utilized medical evidence and expertise to protect liberalizing abortion. In doing so, the Court insulated progressive medical expertise and evidence and delegitimized conservative claims. In contemporary abortion jurisprudence, however, the courts frequently treat conservative medical science, evidence, and expertise claims as objective and neutral. Understanding this transformation requires an examination of the court’s shifting position towards a growing “conservative” literature on abortion.

In Carhart v. Gonzales, the Supreme Court case that found that there was no need for a health exception for a late term abortion procedure. In the opinion, Kenned stated:

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. Severe depression and loss of esteem can follow.

This statement did not go without notice. In her dissent, Justice Ginsberg criticized Kennedy’s assertion by citing to numerous studies that disprove the assertion of a link between mental health consequences and abortion. Towards the end her long citation, however, are two key words: “but see.” At this pivot point the citation shifts to an acknowledgement of a growing literature claiming that there are negative mental health consequences for women who choose abortion.

The citation should concern reproductive justice advocates and lawyers. It differs significantly from Blackmun’s implicit dismissal of a similar claim presented to the Roe court in an Amicus Brief submitted in 1971 by “Certain Physicians, Professors, and Fellows of the American College of Obstetrics and Gynecology.” Instead, Ginsberg’s “but see” cite demonstrates that a new “fact” is taking hold: that abortion causes negative mental health consequences.

To understand the production of new facts about abortion requires, first, an understanding about how courts aid in the production and legitimation of knowledge about abortion, and second, how this knowledge has an impact on access to abortion. With a new fact about women’s negative mental health consequences to abortion taken as a given, the courts have been able to roll out a host of other speech requirements for physicians to protect a woman’s mental health. The 2011 Fifth Circuit decision on the Texas Women’s Right to Know Act (WRKA) is a case in point. Texas House Bill 15 requires that a physician performing an abortion display “a sonogram of the fetus, make audible the heart auscultation of the fetus for the woman to hear, and explain to her the results of each procedure and to wait 24 hours, in most cases, between these disclosures and performing the abortion.”

Reproducing the entirety of the Carhart passage on regret, the Fifth Circuit takes Carhart’s assertion that abortion causes negative mental health consequences as a truth. Purported concern for the “life within a woman” and the mental health risk for the patient, propels the Fifth Circuit to determine that the requirements of the WRKA do not constitute a First Amendment violation: physicians can be compelled to provide this information to women seeking abortions because the WRKA mandates disclosures that are truthful, non-misleading, and relevant as part of the reasonable regulation of medical practice. According to the court, this is simply factual information.

Can “facts” be ideological? This is the hard question that progressive advocates must take into consideration in making legal claims. Taking note of the court’s role in legitimating assertions about abortion, while paying attention to the social and political environment from which evidence emerges, demonstrates the contingent nature of “facts.” The production and ordering of these facts has material consequences, as the current environment for abortion access demonstrates all too clearly.

Aziza Ahmed is Associate Professor of Law at Northeastern University School of Law. You can reach her at Az.Ahmed@neu.edu

Posted 10:00 AM by Guest Blogger [link]

The Emotional Impact of Compelled Speech

Guest Blogger

Nadia N. Sawicki

For the conference on Public Health in the Shadow of the First Amendment

The fundamental reason why First Amendment restricts the government’s ability to compel speech is because compelling a person to communicate against her will violates her autonomy. This harm to personal integrity is even more injurious where the speaker disagrees with the message she is being forced to communicate. For this reason, little attention has been paid to the harms that some forms of compelled speech inflict on listeners.

My recent research deals with the First Amendment implications of the FDA’s recently withdrawn graphic tobacco labeling requirements, as well as state “display and describe” ultrasound laws as part of the abortion informed consent process. Both sets of laws have been criticized for relying on emotionally-triggering graphic imagery to persuade audiences that may not wish to receive these messages, and who (in the case of pre-abortion ultrasounds) may suffer psychological harm as a result of viewing them. In my symposium remarks, I argue that concerns about the emotional impact of the tobacco and ultrasound images on viewers may indeed be relevant to the First Amendment claims against compelled speech.

PICTURE ONE

PICTURE TWO

Posted 9:30 AM by Guest Blogger [link]

Update on the Establishment Clause and Third Party Harms: One Ongoing Violation and One Constitutional Accommodation

Guest Blogger

Nelson Tebbe, Richard Schragger, and Micah Schwartzman

It is well known that the Obama Administration has taken up the Supreme Court’s invitation to ensure full contraception coverage without cost sharing for the employees of Hobby Lobby and similar companies with religious objections. What is less commonly appreciated is that Hobby Lobby’s own employees almost certainly are not receiving that coverage—right now. Consequentially, federal law is accommodating religious objectors to the contraception mandate by shifting that burden to third-party employees in violation of the Establishment Clause, at least at the moment. But not every religious accommodation shifts significant costs to third parties. A second case before the Court proves that point: Holt v. Hobbs involves an accommodation of belief that is perfectly constitutional, as we will explain.

Posted 8:30 AM by Guest Blogger [link]

Big Pharma: the Unseemly First Amendment Champion, Part Two

Jane Bambauer

Jane Bambauer

For the conference on Public Health in the Shadow of the First Amendment

This is Part Two of a two-part post on the First Amendment issues raised in United States v. Caronia

Commercial Speech Protection Is Not That Dumb

First Amendment protection of commercial speech generally is not at odds with consumer protection. To the contrary, restrictions on advertising often favor incumbent firms, and the development of these restrictions is often the product of self-interested lobbying.

Legal scholars sometimes obscure the fact that the commercial speech doctrine was developed to promote a right to receive information by consumer listeners, and not to strengthen the power of corporations. Since the only dissenter in the seminal commercial speech case Virginia State Board of Pharmacy was then-Justice Rehnquist, it’s difficult to argue that the doctrine developed as mere obeisance to corporate America. Rather, the Court believed regulators were interfering with information exchanges that were desirable for consumers.

The Court was correct. A few years before Virginia State Board of Pharmacy, several studies showed that well-meaning advertising bans punished consumers instead of producers. For example, a 1972 study comparing states that either permitted or banned advertising by optometrists found that the prices for prescription eyeglasses were 25% higher in the states with advertising bans. The FTC itself found that the product quality was indistinguishable, and that the gap in prices was attributable to the information asymmetries in the ad ban states. Other studies found the same effects from advertising restrictions on legal services and prescription drugs.

Even cigarette advertising restrictions have ambiguous effects, sometimes negative. Notwithstanding the Supreme Court’s findings in Lorillard, empirical evidence is mixed on whether tobacco advertising mostly affects market share among brands or if it raises overall demand for tobacco products. There was at least one period when cigarette advertising had the effect of decreasing demand for cigarettes. 1950 marked the first time that doctors were making an explicit connection between smoking and cancer. But while the federal government, the American Medical Association, and the American Cancer Institute reassured consumers that the evidence was preliminary and that there was no reason to drastically alter smoking habits, the tobacco industry lost sales every year for several years in a row.

One plausible explanation, as explained by John Calfee, is that the industry was engaged in a “less worse” campaign. The brands were encouraging smokers to pick their slightly less-unhealthy brand over other more dangerous ones. So consumers were bombarded with the message that these things are NOT healthy.

(Image from Euro-Cig.com)

Posted 8:30 AM by Jane Bambauer [link]

Wednesday, October 15, 2014

Big Pharma: the Unseemly First Amendment Champion, Part One

Jane Bambauer

Jane Bambauer

For the conference on Public Health in the Shadow of the First Amendment

Big Pharma: the Unseemly First Amendment Champion

The pharmaceutical industry is enjoying the sort of influence over First Amendment jurisprudence once reserved for the likes of Hustler Magazine. In Sorrell v. IMS, the Supreme Court protected the transfer and use of prescription data for pharmaceutical detailing (that is, the in-person sales pitches that pharmaceutical reps make to doctors.) A more significant free speech victory for Big Pharma was delivered by the Second Circuit in United States v. Caronia, which overturned the conviction of a pharmaceutical detailer for off-label marketing of a drug. Public health experts and constitutional law scholars are intensely critical of these developments, arguing that they are perversions of the First Amendment to favor large corporations at the expense of consumer protection. For reasons I sketch here, their reactions overstate the conflict between Big Pharma and public health and underestimate the First Amendment interests at stake.

Posted 9:30 PM by Jane Bambauer [link]

Conclusion to the Animus Symposium: Animus Going Forward

Guest Blogger

Susannah W. Pollvogt

This is the final post in the Symposium on Unconstitutional Animus.

While the constitutional concept of animus was born in a case about discrimination against hippies, and was significantly elaborated in a case about persons with cognitive disabilities, since the Court’s 1996 decision in Romer v. Evans, animus has come to be strongly associated with protecting the rights of sexual minorities. (See Bill Araiza’s post in this symposium: “[A]nimus has become a central organizing principle of the Court’s sexual orientation discrimination jurisprudence.” And Russell Robinson’s: “The modern Court has refused to extend those precedents [Moreno and Cleburne] in every context except gay rights.”)

This reliance on animus in the sexual orientation cases may represent, as Neil Siegel has used the term in other contexts, a “way station” to application of traditional equal protection doctrines (suspect classification analysis and explicit application of heightened scrutiny) to sexual minorities. Alternatively, it may represent a non-transitory commitment to approaching the sexual orientation cases in this manner.

In either case, now that the Court has tabled the issue of same-sex marriage—perhaps temporarily, perhaps permanently—the question becomes whether the doctrine of animus has significance outside of the same-sex marriage context.

Posted 8:45 AM by Guest Blogger [link]

Physician Conduct? Or Speech? Or Both?

Guest Blogger

Jennifer Keighley

For the conference on Public Health in the Shadow of the First Amendment

What qualifies as state regulation of physician “conduct” as opposed to physician “speech”? In Wollschlaeger v. Governor of Florida, 760 F.3d 1195 (11th Cir. 2014), the Eleventh Circuit determined that a Florida statute prohibiting physicians from inquiring about firearm ownership (among other things) posed no First Amendment concerns because the statute just regulated physician “conduct” that had only an incidental effect on physician speech. According to the Eleventh Circuit, Florida could define “good medical practice” as not including questions about firearm ownership.

Imagine if Florida had instead required physicians to inform patients that firearm ownership poses little risk to their families’ safety and health as long as the firearms are properly secured? Under the majority decision in Wollschlaeger, the state would just be “defining the practice of good medicine” as including giving patients information about firearm ownership, and the First Amendment would be inapplicable to this regulation of physicians’ “conduct.” As the Eleventh Circuit held, “[t]o define the standards of good medical practice and provide for administrative enforcement of those standards is well within the State’s long-established authority to regulate the professions.” But many physicians would undoubtedly disagree with the compelled statement about firearm ownership, and would view it as the state’s attempt to interject its ideological position into the patient-physician dialogue.

Wollschlaeger demonstrates the dangers of the speech versus conduct distinction as applied to the regulation of medical professionals: if states are given free reign to define what qualifies as the practice of “good medicine,” the First Amendment will provide little protection against the imposition of the state’s ideological, biased, and medically dubious opinions upon physicians, and by extension, their patients. Consider state ‘informed consent laws’ in the abortion context: when a state requires physicians to give patients certain ‘information’ prior to a medical procedure, the state is regulating what qualifies as “good medicine” as part of the “conduct” of performing that medical procedure. Under this logic, requiring a physician to tell her abortion patient that the abortion will terminate the life of a whole, separate, unique, living human being, and that a known risk of abortion is an increased risk of suicide and suicide ideation is just regulation of physician “conduct” that has an incidental effect on speech. As is a state law requiring physicians to display and describe the results of an ultrasound examination to the abortion patient, even if she does not want to see or hear the results. In fact, there would be few limits (except for rational basis review) on what a state could require physicians to say before any given medical procedure: the state’s general power to regulate medical professionals would be extended into an unfettered power to control physician speech.

Speech in the context of a patient-physician relationship will often be intertwined with the physicians’ “conduct.” Certainly there are some types of state statutes that regulate pure “conduct” that necessarily involves speech—a statute prohibiting a physician from prescribing a certain drug, for example, also prohibits him from stating to a patient that he is going to prescribe that drug. Such a statute regulates pure conduct, not speech, and does not raise First Amendment concerns. A more complicated example is the California statute prohibiting licensed therapists from engaging in “sexual orientation change efforts” with minors, which was upheld by the Ninth Circuit as a mere regulation of licensed therapists’ “conduct” by banning a certain type of “treatment” effectuated through speech. Pickup v. Brown, 740 F.3d 1208 (9^th Cir. 2014). But if “conduct” is extended to mean whatever occurs during a physician appointment that is part of “the practice of medicine,” states could control any aspect of physician speech. Placing heavy reliance on the speech versus conduct distinction in the context of regulation of the speech of medical professionals is unworkable. While the First Amendment may not apply with equal force to all aspects of physician speech, the “conduct” distinction dodges the free-speech issues raised by these laws, and would give states too much leeway to regulate medicine based on ideological motivations.

Jennifer Keighley is an associate at Emery Celli Brinckerhoff & Abady, LLP, in New York City, and formerly a Resident Fellow at Yale's Information Society Project. You can reach her by e-mail at jennifer.keighley at gmail.com

Posted 8:30 AM by Guest Blogger [link]

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