Thursday, March 10, 2011

Ultrasound Legislation

The Burnt Orange report illustrates that some sponsors of legislation requiring ultrasounds for all pregnant women considering abortion don't know about the intrusive nature of the transvaginal ultrasound procedure.

Justice Sotomayor Describes Sexism

In a speech at Northwestern University School of Law, Justice Sonia Sotomayor confirms that women lawyers continue to face a double standard--even when they are nominated to the highest Court in the land. Sotomayor complained about the focus on her private and dating life:

"You know, and I don't mean to be graphic, but one day after I'd been questioned endlessly, for weeks at a time, I was so frustrated by the minutiae of what I was being asked about and said to a friend, 'I think they already know the color of my underwear,'" the justice said.

"There were private questions I was offended by. I was convinced they were not asking those questions of the male applicants," Sotomayor said, alluding to questions about her dating habits. It was unclear if she was referring to private sessions, prior to her formal nomination hearing, with individual senators.

Continuing the conversational thread about dating questions posed to her, she declared, "I wondered if they ever asked those questions of the male candidates. But the society has a double standard."

Sotomayor,who is single, then cited her "many single male colleagues who are judges who date often, bring dates to court affairs and nobody ever talks about them. I knew if I did the same thing, my morals would be questioned. So I'm very careful about whom I date and how public it is." It was unclear but presumably she was harkening to her experiences as a district court, appellate court and, now, Supreme Court judge.

"I don't like people talking about my private life," she said, suggesting that there is a double standard in how single women and men are treated and portrayed. "There are expectations of how men and women should behave." She added, "I'm probably a bit more aggressive than many like in a woman."

Women of Courage

Secretary of State Hillary Clinton honors women of courage and urges more participation by women in the new Egyptian government here.

Tuesday, March 8, 2011

A Victory for Justice Brennan and the Westboro Baptist Church

The Supreme Court ruled 8-1 in favor of the Westboro Baptist Church's right to picket with offensive signs at Matthew Snyder's military funeral. Chief Justice Roberts wrote the opinion for the Court concluding that the church's offensive speech involved a matter of public concern on public property and was protected by the First Amendment. Snyder’s father Albert was thus unable to collect a jury verdict for his emotional distress and privacy invasion. 

Although Matthew Snyder’s father sued the church for the torts of intentional infliction of emotional distress and invasion of privacy, it was another tort, the tort of defamation, that provided the legal context for the opinion. Over a series of cases since 1964, the Court developed a law of defamation that involves four categories: matters of public concern, matters of private concern, public figures and private figures. The Court then matched those categories—matters of public concern involving public figures, matters of public concern involving private figures, matters of private concern involving public figures, and matters of private concern involving private figures. 

Although the Court never filled in the law for all those categories, in the precedent most relevant to Snyder's case Jerry Falwell was not allowed to sue Hustler Magazine for intentional infliction of emotional distress because he was a public figure. Before Snyder was issued, everyone wondered if the Court would allow Albert Snyder’s lawsuit to proceed because Snyder was a private, not a public, figure.

Tuesday, March 1, 2011

Too Much Medical Conscience

Conscience clause laws allow medical professionals to refuse medical care to patients without suffering any employment penalty. The first conscience clauses were enacted in response to Roe v. Wade. Their number increased over the last thirty years as religious opposition to reproductive health care increased.

The Obama administration recently issued new regulations about medical professionals’ consciences that replace the rules hurriedly enacted at the end of the Bush administration. Obama’s rules are an improvement over Bush’s. The Bush rules were read to expand conscience clauses to include more procedures, more medical personnel, and more conscientious reasons not to treat patients. According to HHS Secretary Kathleen Sebelius, the Bush rules upset the balance between patients’ rights to obtain health care and the conscience rights of health care providers

Obama's regulations are less expansive. Nonetheless, the Obama administration remains deeply committed to conscience clause legislation. Obama's rules authorize a Civil Rights office to hear complaints from medical workers who believe they faced employment discrimination because they followed their conscience. Bush pushed his rules through precisely because he believed that conscience was in danger in the workplace.

Both presidents were mistaken to favor medical conscience over patients’ rights and to support and encourage special rules to allow people to practice medicine only insofar as their religion allows. Women’s medical care is under assault on all fronts. The House of Representatives recently voted to ban Planned Parenthood funding. The South Dakota  and Nebraska legislatures considered bills making it a justifiable homicide to kill an abortion provider. Dozens of states are considering new curbs on abortion. Members of the House tried to eliminate all funding for abortion, even supporting a bill to limit federal dollars available to rape victims to those who have been “forcibly raped.” Another House bill would allow doctors to refuse abortion services even if the pregnancy threatens the woman’s health

At a Catholic hospital in Phoenix, a 27-year-old woman's life was threatened by a pregnancy. She had life-threatening symptoms at 7 1/2 weeks and was worse at 11 weeks, when the hospital's ethics committee voted to allow an abortion to save her life. The local bishop immediately excommunicated a nun on that ethics committee and then declared that the hospital was no longer Catholic. Catholic teaching does not permit an abortion to save the mother's life. 

This is what conscience clauses and the Bush and Obama administrations promote: religious freedom to deny life-saving medical treatment to others. If medicine and religion are inconsistent, then professionals should choose between them rather than practice religion with a medical license.