The Supreme Court’s decision in Whole Woman’s Health is sure to be dissected in the coming days, weeks, and months. In the meantime, I wanted to quickly reengage the discussion about the status of the “purpose prong” of Casey and what, if anything, Whole Woman’s Health tells us about it. While Justice Breyer’s analysis in the majority opinion does not seem to be couched expressly in terms of Casey’s purpose prong, the majority’s willingness to assess the applicable laws’ benefits may ultimately be purpose dressed in different clothing. If there is not sufficient evidence of a law’s benefit, there could be a problem.
As a quick refresher, recall that Casey prohibits laws that have either the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. While most folks can readily associate Casey’s “undue burden” test in terms of abortion restrictions that have the effect of placing obstacles, Priscilla Smith and Caitlin Borgmann, have written about courts seemingly ignoring Casey’s other mandate that laws should not have the purpose of even trying to place such obstacles (regardless of whether they succeed in creating that effect). This avoidance of the purpose prong coupled with great deference to the asserted justifications of the legislature (without the kind of benefits inquiry seen in Whole Woman’s Health) has historically led to many TRAP (targeted regulation of abortion provider) laws being upheld.
By Jonathan F. Will
On Monday Cassandra C. was sent home from the hospital. Her cancer is in remission after responding well to treatments. Many will recall that those treatments were forced on Cassandra against her wishes and those of her mother. Back in January, the Connecticut Supreme Court issued a two-page order agreeing with state officials that Cassandra, at seventeen years three months, should be compelled to undergo chemotherapy to treat her Hodgkin’s Lymphoma.
The success of this medical treatment may be viewed by some to vindicate the comments of those like bioethicist Art Caplan and Fox News legal analyst Peter Johnson, Jr., who agreed with the decision. Indeed, Mr. Johnson, after giving a personal anecdote of his own history with Hodgkin’s Disease, declared this decision to be right on the law, right on the ethics, and right on humanity.
Mr. Johnson gave the impression that a minor should never be permitted to make such a medical decision, while Dr. Caplan at least implied that his conclusion might be different if the refusal was based on religious beliefs. Then you have a commentator in The Economist who came to the exact opposite conclusion. He expressed concerns about Cassandra’s liberty and the rights of her mother to make decisions on her behalf.
I’m not so easily convinced by their arguments.
By Jonathan F. Will
[Cross-posted at The Conversation]
Citizens of three states had the opportunity to vote on measures considered by many to be adverse to abortion rights during the November 2014 election cycle. While the personhood efforts in Colorado and North Dakota failed, the Tennessee electorate approved an amendment making clear that their state constitution does not protect a right to abortion, and expressly authorizing the state legislature to regulate abortion services.
Unlike the amendment that passed in Tennessee, the state constitutional amendments proposed in Colorado and North Dakota said nothing explicitly about abortion. Instead, the measures sought to extend the protections associated with a “right to life” to human beings at all stages of development. Of course, by extending this aspect of legal personhood to the preborn, abortion necessarily becomes problematic. But these types of personhood measures have failed in every state to attempt them, including Mississippi, which is considered by many to be the most conservative (and anti-abortion rights) state in the country. So why are personhood measures failing even while the Tennessee amendment passed? Continue reading
By Jonathan F. Will
[Cross-posted at Hamilton and Griffin on Rights.]
This November citizens of Colorado will have an opportunity to vote on a proposed amendment (Amendment 67) to their state constitution that would define the words “person” and “child” in the Colorado Criminal Code and Colorado Wrongful Death Act to include “unborn human beings.” Similar personhood measures were rejected by a margin of 3-to-1 by Colorado citizens in 2008 and 2010, and a proposal in 2012 failed to receive the requisite signatures to get on the ballot. Is this version 4.0 all that different?
A New Strategy
In short, the language is different, but not in ways that ought to matter for those concerned about the implications for reproductive rights. I was initially surprised that a fourth personhood proposal was able to secure enough signatures to get on the ballot when the third measure was not. After speaking with a reporter from Colorado, it became clear that the strategy this time around was very different.
This most recent personhood effort rode the wave of momentum generated by the 2012 story of a Colorado woman, hit by a drunk driver, who lost her pregnancy in the eighth month of gestation (a boy she had named Brady). At that time, Colorado did not have a law on the books that permitted the drunk driver to be prosecuted for the death of the fetus. Amendment 67, advertised as “The Brady Amendment” was offered as a solution, and there was no trouble generating over 100,000 signatures. Even without Amendment 67, Colorado has since passed a Crimes Against Pregnant Women Act, which criminalizes (with varying degrees of punishment) the termination of a woman’s pregnancy without her consent. This new law does not define the fetus as a person, expressly permits women to choose to have abortions, and certainly is not considered to go far enough for those in favor of sweeping personhood measures. Amendment 67 was thus still viewed to be necessary by some. Continue reading
By Jonathan Will
In the wake of the Hobby Lobby decision, the US Department of Health and Human Services announced on Friday proposed rules regarding exemptions for those objecting to the contraceptive mandate. Whenever I read about conscientious objections to health care services made by providers, patients, or indeed, employers, I am reminded that all objections are not equal.
As Mark Wicclair, and others, have written, studies show that medical professionals may object to services based on clinically false information. For instance, certain pharmacists reported that they objected to emergency contraception on the mistaken belief that Plan B was the same thing as RU-486 (mifepristone, or the “abortion pill”). Similarly, a prominent general practitioner admitted to making decisions regarding the prescription of oral contraception without fully understanding the mechanisms of operation that prevent pregnancy. If medical professionals make decisions based on ignorance, one can suspect that lay employers and patients do as well.
This suggests that individuals often lack the information necessary to truly assess their stance on morally controversial services. While the law does (and should) play a role in protecting conscience, it seems unsatisfying when such protection is granted to those holding underdeveloped views, and at the expense of (and detriment to) those seeking legal medical services.
We are excited to introduce Jonathan F. Will as a regular contributor to Bill of Health.
Jonathan is an Associate Professor of Law and is the founding director of the Bioethics & Health Law Center at Mississippi College School of Law. He is also on the affiliate faculty of the Center for Bioethics and Medical Humanities at the University of Mississippi Medical Center. Jonathan teaches upper level courses in Health Law and Bioethics, and has been voted 1L Professor of the Year for his section of Civil Procedure five times since joining MC Law’s faculty in 2009. In addition to commenting for the American Journal of Bioethics, his recent work focuses on reproductive rights and the implications of the nationwide personhood movement.