Balkinization: June 2016

Balkinization
an unanticipated consequence of
Jack M. Balkin

Balkinization Symposiums: A Continuing List

E-mail:
Jack Balkin:
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Bruce Ackerman
bruce.ackerman at yale.edu
Ian Ayres
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Corey Brettschneider
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Mary Dudziak
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Joey Fishkin
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Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber
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Stephen Griffin
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Jonathan Hafetz
jonathan.hafetz at shu.edu
Jeremy Kessler
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Andrew Koppelman
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Marty Lederman
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Sanford Levinson
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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

Barnett and Koppelman on the Commerce Clause

Alito (Religion) v. Alito (Abortion)

How War Lost Its Politics

Significant Line from a Dissent From Denial of Cert.?

Whole Woman's Health, Gonzales v. Carhart, and Medical Uncertainty

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Wednesday, June 29, 2016

Barnett and Koppelman on the Commerce Clause

Andrew Koppelman

Randy Barnett is a constitutional scholar of the first rank. He and I have had some arguments about the scope of the Commerce power, so I’m very happy to have had the chance to collaborate with him on a statement, for the general reader, of our areas of agreement and disagreement.

It’s part of a monumental undertaking by the National Constitution Center to provide an interactive website with a similar set of debates on every provision of the Constitution.

Posted 4:23 PM by Andrew Koppelman [link]

Alito (Religion) v. Alito (Abortion)

Mark Graber

Justice Samuel Alito’s dissent from a denial of certiorari in Storman’s Inc. v. Wiesman (2016) undermines his opposition to abortion and is a devastating rebuttal to the conservative dissents in Whole Woman’s Health v. Hellerstedt (2016). His accusation that Washington engaged in a religious gerrymander implicitly acknowledges that no secular reason exists for opposing birth control and abortion. Alito’s concern for the plight of those who might have to travel an extra mile or so for needed medications highlights the enormous burden of the significant number of woman Texas would require travel more than 150 miles for an abortion. Good reasons exist for finding constitutionally problematic the state regulations at issue in Storman’s. They are not, however, the reasons Alito and the other conservatives give.

Storman’s concerns the constitutionality of a Washington regulation declaring that a pharmacist may not “refuse to deliver a drug or a device to a patient because the owner objects to delivery on religious, moral or other personal grounds” as applied to a Christian pharmacist who does not wish to stock or deliver emergency contraception. A fair case can be made under recent precedents that if a state provides exemptions for business reasons (Washington permits pharmacists not to deliver drugs because they do not accept certain forms of insurance) then states must provide exemptions for religious reasons. A better case might be made for overruling existing precedents, most notably Employment Division v. Smith (1990), and mandating exemptions when, as appears to be the case in Washington, no strong reason exists for not giving religious pharmacists an exemption from the stocking and delivery rules. Alito, joined by Roberts and Thomas, did not take either of these routes. Instead, the conservatives accused Washington of a religious gerrymander that would deprive state citizens of needed medications by putting religious pharmacists out of business. These claims, as noted below, are startling given conservative opposition to reproductive rights and their willingness to tolerate much stronger regulations on access to abortion.

Alito’s claim that Washington has engaged in a religious gerrymander by allowing business justifications for refusing to stock emergency contraception creates a constitutional dilemma for conservatives. The regulation explicitly forbids religious, moral and personal justifications for not delivering drugs. Pharmacists cannot refuse to provide customers contraception that may cause very, very early abortions because they believe the Bible forbids the use of birth control and abortion, because they think birth control and abortion inconsistent with Kantian moral philosophy, or because they just do not like people who use birth control or abortion. Alito’s repeated insistence that Washington has nevertheless engaged in a religious gerrymander can be true only if as a matter of practice or theory, all objections to abortion or birth control are grounded in religious belief, rather than secular moral philosophy or personal taste. If as Alito seems to indicate (wrongly in my judgment, but that is another story), no one in Washington opposes birth control or abortion (and probably same-sex marriage) for secular moral reasons, then states, which may constitutionally legislate only for secular objectives cannot constitutionally ban birth control or abortion. The dilemma is this: If secular reasons exist for opposing birth control and abortion, then Washington has not engaged in a religious gerrymander. If no secular reasons exist for opposing birth control and abortion, then Washington and other states cannot restrict or regulate birth control or abortion.

Alito's claim about the consequences of Washington’s regulations on pharmacies for consumers demolishes previous conservative claims that common regulations on abortion do not create undue burdens for women. Observing that some pharmacies may close because of new state regulations, he writes, “shuttering pharmacies would make all of these pharmacies customers find other sources for all of their medications,” because “it cannot reasonably be supposed that new pharmacies will appear overnight.” An earlier passage in the opinion waxes eloquent on the plight of very poor people, who “are particularly likely to lack ready means of traveling to another pharmacy.” Alito sneers “Washington would rather have no pharmacy than one that doesn’t toe the line on abortifacient emergency contraceptives.” Sound familiar. Texas would rather have no abortion clinics than ones that do not toe the line on admitting privileges and surgical centers. And unlike antibiotics, anti-depressants, and powerful antacids, women have a constitutional right to an abortion. If, as Alito, Roberts and Thomas think in Storman, travelling several extra miles to get needed medication is a constitutionally relevant burden, then claiming that state laws create undue burdens by requiring a significant percentage of women to travel more than 150 miles for an abortion is the greatest understatement in American constitutional law.

When excerpting this year’s decisions for the new edition of Gillman, Graber and Whittington, American Constitutionalism (as always, on sale in the lobby), I was struck by how often Alito misreads liberal opinions. Apparently, however, Alito does not bother reading conservative opinions either, even ones he writes. Perhaps he s might begin by rereading his conclusion in Whole Woman’s Health, that, “When we decide cases on particularly controversial issues, we should take special care to apply [law] in a neutral manner.”

Posted 8:23 AM by Mark Graber [link]

Tuesday, June 28, 2016

How War Lost Its Politics

Mary L. Dudziak

When it comes to the war powers, there is an underlying question of the structure of politics that has produced our profound contemporary apathy on issues of war and peace -- so that members of Congress avoid having to vote on authorizing the use of force. A common argument is that the absence of a draft lessens the stake American civilians have in war, and so the military/civilian divide is dated from the post-Vietnam era.

My current work rolls the clock back to the Civil War, arguing that the structure of American war politics changes much earlier. Its origins are in the loss of what Drew Gilpin Faust (quoting Frederick Law Olmsted) calls "this republic of suffering." I am attempting to write a history of what happens to American war politics when the battlefield and the polity do not share the same geographic space, and most American civilians are protected from direct engagement with death and suffering in war (with, of course, exceptions and caveats). It is a story, in essence, of how war lost its politics and became instead a policy option in the hands of American presidents.

An overview of just part of the argument is in the Summer issue of Dissent Magazine -- How War Lost Its Politics. The essay places in a broader context the recent lawsuit against the Obama administration brought by Captain Nathan Michael Smith arguing that the war against ISIS is illegal because Congress has not authorized it. I argue that:

The reason the president has been unable to get Congress to pass a new war authorization isn’t because Congress opposes military action against ISIS, and it isn’t a simple matter of partisan stalemate. It is because there is no real political constituency for military matters. Faraway conflicts upend lives on the battlefield. As long as someone else’s family does the fighting, U.S. military operations have little impact on Americans at home. Most Americans are protected from the costs of armed conflict. There is no required military service since Congress eliminated the draft in 1973. Other changes in the way the country wages war—relying on contractors to reduce the number of troops, and on technologies that make war appear more precise and less destructive—contribute to a buffer between American civilians and the wars their country is fighting. Without voters paying attention, neither the president nor Congress is held accountable.

How this has come about -- and how even WWI and WWII are part of the story of the way distant war affects American civilian engagement -- is taken up in the rest of the essay.

Posted 12:27 PM by Mary L. Dudziak [link]

Significant Line from a Dissent From Denial of Cert.?

Mark Tushnet

In his dissent from the denial of certiorari in Storman's v. Wiesman, Justice Alito ends his introductory paragraph (technically, his second paragraph) with this: "If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern." I've added the emphasis. Does Justice Alito foresee an extended period ("years ahead") in which conservatives won't be able to set the court's agenda?

Even if Justice Kennedy's "defection" in Fisher and Whole Woman's Health is as temporary as was (the first) Justice Roberts's in the 1936 Term, the agenda-setting point may still hold. If Justice Alito foresees the confirmation of Merrick Garland or a different nominee from a Democratic President, the conservatives might be able to count only to four in any "agenda"-type case, and might refrain from granting review without some confidence that there's a fifth vote somewhere to be found. (I think the point holds even if, as I think extraordinarily unlikely [contrary to views expressed by some bloggers], the Court's membership is permanently reduced by refusals to confirm nominees of a Democratic President.)

I've expressed my views about what a new majority with the power to set the agenda should do. We'll see whether Justice Alito's right, and if so what a new agenda will look like.

[I also like Justice Alito's use of Google maps to calculate driving distances.]

Posted 11:59 AM by Mark Tushnet [link] (39) comments

Monday, June 27, 2016

Whole Woman's Health, Gonzales v. Carhart, and Medical Uncertainty

Priscilla Smith

Just a quick note here, in response to Mark Graber's post below, to say that Whole Woman's Health's understanding of Gonzales v. Carhart is in fact right on. The Fifth Circuit tried to use Carhart in a number of ways to support the application of rational basis review to Texas' abortion regulations. Here is the section of our YLS Information Society Project amicus brief explaining the Fifth Circuit's distortions, including its claims about "medical uncertainty." Glad to see that Court, including the author of Gonzales, agreed. (Full disclosure, I was the (losing) attorney in Carhart.):

A. Carhart Does Not Support the Fifth Circuit’s Rational Speculation Review.

To justify its use of hyper-deferential rational basis review,[1] the Fifth Circuit invokes Gonzales v. Carhart, the Supreme Court’s 2007 decision that upheld the federal Partial Birth Abortion Ban Act. But the Fifth Circuit’s hyper-deferential rational basis review is inconsistent with the Court’s decision in Carhart, and eliminates the crucial distinction between the state’s interests in protecting potential life and its interest in women’s health, thereby permitting Texas to violate the limitations Casey imposes on the means by which the state may protect unborn life.

In the Supreme Court’s opinion in Gonzales v. Carhart,[2] issued fifteen years after Casey, the Court accepted the continuing authority of Casey’s undue burden framework[3] and the protection it provides for a woman’s choice in obtaining previability abortions.[4] In addition, the Court declined the government’s call to defer categorically to claims supporting the legislation made in Congressional Findings of Fact. Instead, in upholding the Partial Birth Abortion Ban Act, the Court observed, “The Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake. . . . Uncritical deference to Congress’ factual findings in these cases is inappropriate.”[5] The Carhart Court probed and, in two instances, rejected congressional findings invoked by the government as reasons for enacting the Partial Birth Abortion Ban Act.[6] Probing Congress’s reasons behind enacting the challenged statute is not minimal rational basis review of the kind that the Fifth Circuit mandates.[7]

Moreover, Carhart did not concern a health-justified abortion regulation. Instead, that case concerned a potential life-justified law that the Court held furthered the interest in protecting the “integrity and ethics of the medical profession.”[8] The law as construed by the Court concerned a rarely employed method of performing abortions late in the second-trimester of pregnancy. The Court held that due to the availability of alternative safe abortion procedures, the law did not restrict any woman’s access to abortion before viability.[9] Both references to “rational basis” and regulation being within “legislative competence” in Carhart[10] are carefully limited to the specific context at issue there, a law involving the substitution of one procedure for another where only “marginal safety” considerations separated the two.[11] Carhart’s statements about a potential life-justified regulation simply do not apply to the health-justified regulations here that would shut down three quarters of the clinics in the state of Texas.

Nor does the language in Carhart discussing the “wide discretion” that state and federal legislatures have to pass legislation in areas where there is medical and scientific uncertainty,”[12] support the Fifth Circuit’s call for judicial deference in this case.[13] The condition of medical uncertainty in Carhart is unrelated to the question of whether the law promoted women’s health. It related to the question of whether health was endangered enough by the law in certain circumstance to require an exception to the ban where the woman’s health was at risk. Moreover, the fact of medical uncertainty was itself established through extensive and detailed judicial review, through the fact finding of the District Courts. By contrast, the Fifth Circuit finds uncertainty by ignoring the fact-finding of the District Court.[14] If appellate courts can justify deference to the legislature by invoking medical uncertainty that is untethered to facts found and credibility determinations made by the trial court,[15] they can easily erode protections for constitutional rights. Whatever deference Carhart might be read to warrant on the issue of promotion of the interest in potential life, it cannot be the extravagant deference to the legislature that the Fifth Circuit practices here.[16]

[1] The Fifth Circuit’s claims about rational basis are not entirely clear. See Greenhouse and Siegel, Clinic Closings, at Part II.C.1. (discussing Judge Jones’ opinion in Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott (Abbott II), 748 F.3d 583 (5th Cir. 2014), Judge Elrod’s opinion in Whole Woman’s Health v. Lakey, 769 F.3d 285, 304–05 (5th Cir. 2014) (overturning District Court injunction against Texas ambulatory-surgical-center requirement), vacated in part, 135 S. Ct. 399 (2014), and the per curiam opinion in Whole Woman’s Health v. Cole, 790 F.3d 563, 587 (5th Cir. 2015), mandate stayed pending judgment by 135 S. Ct. 2923, and cert. granted, 2015 WL 5176368 (U.S. Nov. 13, 2015) (No. 15-274), which goes out of its way to reaffirm Abbott II’s rational basis reasoning. Whichever account the Circuit embraces, its rational-basis claims flout both Casey and Carhart).

[2] 550 U.S. 124 (2007).

[3] See id. at 146 (observing that Casey’s undue burden standard “struck a balance” between protecting “the woman’s exercise of the right to choose” and the ability of the state to “express profound respect for the life of the unborn” (quoting Casey, 505 U.S. at 877)); see also id. (“Casey, in short, struck a balance. The balance was central to its holding. We now apply its standard to the case at bar”).

[4] Id. at 153–54 (construing the statute to avoid constitutional questions and protect ordinary second-trimester abortions). See Smith, Priscilla J., Is the Glass Half-Full?: Gonzales v. Carhart and the Future of Abortion Jurisprudence, 2 Harv. L. & Pol’y Rev. (Online), (2008), available at http://ssrn.com/abstract=1357506 (noting that decision upholding statute preserved viability of Casey’s framework while rejecting plaintiffs’ claim that there was a significant medical distinction between banned procedures and allowable procedures).

[5] 550 U.S. at 165–66 (2007) (“In cases brought to enforce constitutional rights, the judicial power of the United States necessarily extends to the independent determination of all questions, both of fact and law, necessary to the performance of that supreme function.”) (quoting Crowell v. Benson, 285 U.S. 22, 60 (1932)); see also Planned Parenthood Ariz., Inc. v. Humble, 753 F.3d 905, 913 (9th Cir. 2014) (discussing Carhart).

[6] Carhart, 550 U.S. at 165-66 (drawing on evidence presented in the district courts to reject the claim that no medical schools provided training in the abortion method the statute banned, and the claim that “the prohibited procedure is never medically necessary.”). Moreover, despite the legislative finding that “partial-birth abortion remains a disfavored procedure that is not only unnecessary to preserve the health of the mother, but in fact poses serious risks to the long-term health of women and in some circumstances, their lives,” Partial Birth Abortion Ban Act of 2003, Pub. L. 108–105, at § 2(2) (Nov. 5, 2003), the Court did not consider that the statute might be health-justified.

[7] Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott (Abbott II), 748 F.3d 583, 594 (5th Cir. 2014) (citations omitted) ((“[a] law ‘based on rational speculation unsupported by evidence or empirical data’ satisfies rational basis review.”).

[8] 550 U.S. at 157. By banning a procedure that had a “disturbing similarity to the killing of a new born infant,” and which “implicate[d] additional ethical and moral concerns that justif[ied] a special prohibition,” the Court held that the law furthered the government’s “legitimate interest in regulating the medical profession in order to promote respect for life, including life of the unborn.” Id. at 158 (law “‘draw[s] a bright line that clearly distinguishes abortion and infanticide.’”) (internal citations omitted).

[9] Carhart, 550 U.S. at 154-56.

[10] Id. at 158; cf. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott (Abbott II), 748 F.3d 583, 590 (5th Cir. 2014) (characterizing Carhart as “holding that the State may ban certain abortion procedures and substitute others provided that ‘it has a rational basis to act, and it does not impose an undue burden’” (quoting Carhart, 550 U.S. at 158)).

[11] See Carhart, 550 U.S. at 158, 166.

[12] Id. at 163.

[13] Whole Woman’s Health v. Cole, 790 F.3d 563, 587 (5th Cir. 2015) (chastising the trial court for “substituting its own judgment for that of the legislature” and asserting “medical uncertainty underlying a statute is for resolution by legislatures, not the courts”), mandate stayed pending judgment by 135 S. Ct. 2923, and cert. granted, 2015 WL 5176368 (U.S. Nov. 13, 2015) (No. 15-274).

[14] See Cole, 790 F.3d at 587 (explaining why Abbott II “disavowed the inquiry employed by the district court” to evaluate admitting privileges requirement); see id. at 584–86 (same with reference to ASC requirement).

[15] The District Court found that the testimony of the state’s key expert witnesses lacked “the appearance of objectivity and reliability” because a non-physician third party exerted “considerable editorial . . . control” over the contents. Lakey, 46 F. Supp.3d at 680 n.3. In finding “medical uncertainty,” the Fifth Circuit rejected the findings of the District Court and endorsed the state’s evidence without ever mentioning adverse credibility findings made by Judge Yeakel. See Cole, 790 F.3d at 585 (5th Cir. 2015).

[16] Nor does Mazurek v. Armstrong, 520 U.S. 968 (1997), support the Fifth Circuit’s position. In a brief per curiam opinion, that case upheld a Montana law providing that only a doctor could perform an abortion. The Court noted that physician-only requirements of various kinds had been sustained in its prior cases, including both Roe and Casey. Id. at 973–74 (emphasizing that “[o]ur cases reflect the fact that the Constitution gives the States broad latitude to decide that particular functions may be performed only by licensed professionals, even if an objective assessment might suggest that those same tasks could be performed by others” (emphasis omitted) (quoting Casey, 505 U.S. at 885)). As the regulation at issue in Mazurek would not force any woman to travel to a different facility, the Court judged its effects minimal. Id. The Court declined to find Montana’s physician-only requirement unconstitutional in purpose in light of: the Supreme Court’s several cases sanctioning physician-only requirements, the requirement’s minimal effects on abortion access, and the fact that similar rules existed in forty other states. Id. at 973.

Posted 4:52 PM by Priscilla Smith [link]

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