R.I.P. Ronald Dworkin (Dec. 11, 1931–Feb. 14, 2013)

By Michelle Meyer

I woke this morning to the very sad news that legal philosopher and NYU law professor Ronald Dworkin died in London early this morning of leukemia, at the age of 81.

I’m not sure whether his illness was well known to those within the legal academy, but it came as news to me, so I confess I’m slightly shocked by news of his death. Others, of course, are much better positioned to give thoughts about his life and career, and no doubt will, here and elsewhere. I’ll share just one brief remembrance. I was the founding co-editor of the Harvard Law Review Forum, and for our very first issue, I solicited a response from Professor Dworkin to Fred Schauer’s (Re)Taking Hart. These were the days when online supplements to law reviews were new, and we didn’t really know how scholars would view these opportunities. When he readily agreed to provide a response, I recall emailing the news around Gannett, to much rejoicing. This was an especially meaningful “get” for me, as in addition to his work in legal philosophy, I had read and appreciated Life’s Dominion as an undergraduate studying bioethics. I was terribly nervous about interacting with him, but he was incredibly kind and gracious and unassuming throughout the process.

Professor Dworkin leaves behind his wife, two children, and two grandchildren. They and his friends and colleagues are in my thoughts.

Update: Brian Leiter is aggregating memorial notices here.

More on Contraceptives Coverage

For an excellent perspective on the legal challenges to the contraceptives coverage mandate being brought by for-profit, secular companies with religious owners, check out Bill Keller’s recent NYT op-ed.  A brief snippet:

“Also, courts tend to distinguish between laws that make you do something and laws that merely require a financial payment. In the days of the draft, conscientious objectors were exempted from conscription. A sincere pacifist could not be obliged to kill. But a pacifist is not excused from paying taxes just because he or she objects to the money being spent on war. Doctors who find abortions morally abhorrent are not obliged to perform them. But you cannot withhold taxes because some of the money goes to Medicaid-financed abortion.”

These analogies are helpful, but I’m not sure I’m totally convinced that the employers here are only being asked to make a financial payment equivalent to a tax.  Certainly they don’t have to take contraceptives themselves, but they aren’t being asked to just pay money to the government – they are being asked to directly arrange coverage for something they find morally objectionable.  So I’m really on the fence here.

Ultimately, I don’t want to be too quick to dismiss the complicity objections raised by these employers as just the same as tax objections that are easily waived off as completely unworkable.  We can’t have every Tom, Dick, and Harry refusing to pay taxes for things they find objectionable – but we could come up with a system for accommodating the religious objections of secular business owners: namely the accommodation being offered to religious employers.  If insurers can bear the burden of handling contraceptives coverage completely on their own for religious employers like hospitals and universities, why couldn’t they do the same across the board?

And let me reiterate once again that all of this just demonstrates that employers really have no place whatsoever in our healthcare system.

Did Matt Lauer Err by Calling a Negative Test for Down Syndrome “Good News” on the Today Show?

A new non-invasive genetic test (using blood draw), MaterniT21 Plus, claims it can detect Down Syndrome at 10 weeks of pregnancy. Matt Lauer, inadvertantly no doubt, stepped into the controversy of genetic testing and abortion during a Today Show segment with two parents who had undergone the testing and had a live reveal of the sex and also the Down Syndrome status of their baby. Lauer referred to the negative Down Syndrome result as “good news” (his exact phrase “Let’s get right to the good news,”) with the mother-to-be saying “[w]e are safe. The baby does not have Down syndrome,” giving rise to controversy among the disability rights community. To be fair, later in the segment there is a discussion of the fact that the couple had stated that should they find out the child had Down Syndrome they would not abort but instead see “specialists” and “get more information.”

A couple of reactions: While I do not think it per se unethical and certainly not illegal (wait did Matt Lauer just make a HIPAA joke on TODAY, that’s a first?!!!) there is certainly something unsavory about having a “Down Syndrome reveal” on live television. I wonder if TODAY would have broadcast the segment if the test was positive and the emotional reaction of the parents had been less warm? Second, I think the dust-up over the “good news” language points to a deeper set of issues. On the one hand, disability rights advocates reasonably chafe on America’s heavily watched morning program hammering home the message that it is “bad news” to have a child with Down Syndrome. On the other hand, this may be an accurate reflection of where we, as a country, currently are on the issue, rightly or wrongly.

Read More

Prosecuting Rape Victims, What Next?

Representative Cathrynn Brown (Arizona)

By Michele Goodwin

In the wake of an election season peppered with references to rape by legislators vying for reelection or elevation to more prominent political positions: Representative Todd Akin’s woefully unscientific claim that “legitimate” rapes rarely result in pregnancy because women can “shut that whole thing down” or Richard Mourdock, Indiana state treasurer, reminding voters that when pregnancies result from rape “that it is something God intended to happen,” the deeply political intersections of criminal and health law became more visible.  Representative Joe Walsh (Ill), for example, claimed that “with modern technology and science, you can’t find one instance” where a woman’s life can be saved with an abortion.   Problematically, such comments to unwitting constituents parade as fact and stand contrary to vetted medical studies.   For example, a recent study found that “women were about 14 times more likely to die during or after giving birth to a live baby than to die from complications of an abortion.” An abstract of the study can be found here.

Months ago, I wrote that it would be a mistake to isolate these politically-charged comments to republicans or even male legislators; on inspection, recent personhood amendments and the passage of fetal protection laws expose bipartisan collaboration on laws that may be unconstitutional, undermine women’s reproductive health, and prioritize criminal law interventions over healthcare and rehabilitation. More of that work can be found here, here, and here.

Most recently, Representative Cathrynn Brown of New Mexico stepped into the political fray on rape, exposing once more the ways in which women’s reproduction can become hostage to political pandering.  Last week, Brown proposed House Bill 206, a law that would criminally punish rape victims who seek abortions.  According to Brown, obtaining an abortion after sexual victimization amounts to “tampering with evidence.” Rape victims could face felony charges and up to three years in prison for violating the law.

Likely, Brown’s rape bill will not gain sufficient political support for passage.  Nevertheless, recent political efforts to redefine rape, blame victims, and use the criminal law as a sword to regulate victims’ responses to rape deserve serious scrutiny and sustained critical engagement.

Defending Roe v. Wade, Defending Human Rights

By Elizabeth Sepper

Dr. Willie Parker is one of the few doctors in the United States who perform later-term abortions, up to 24 weeks.  He is one of three who provide abortions at Mississippi’s sole abortion clinic.  A Christian from the Deep South, Dr. Parker didn’t provide abortions for the first dozen years of his career.  But again and again he encountered women whose pregnancies endangered their lives, girls who had suffered rape or incest, and mothers who were too poor to raise another child.  He came to wrestle with the morality of abortion—torn between his religious tradition’s teaching against abortion and his moral commitment to his patients.  He listened to Dr. Martin Luther King’s sermon on the Good Samaritan.  According to Dr. King, the Good Samaritan was “good” because he did not consider himself but instead asked “What will happen to this person if I don’t stop to help him?”  Dr. Parker was moved to examine his own conscience and to ask, “What happens to women who seek abortion if I don’t serve them?”  From that day, he began to perform abortions. (This interview is well worth a read.)

Choosing to provide abortions is an act of bravery. Abortion providers face threats to their safety and families, targeted and expensive regulations, and professional and community stigma.  They share much in common with human rights lawyers, union organizers, and women’s rights advocates around the globe who are harassed by their governments and the majority.  This makes sense if we recognize abortion providers for what they are: human rights defenders, who work to ensure reproductive rights (the Center for Reproductive Rights has argued effectively for this framework under international law).

As we mark the fortieth anniversary of Roe v. Wade tomorrow, we should acknowledge the courage and commitment of these human rights defenders.  In the past two years, state legislatures passed more, and more novel, restrictions on women’s access to abortion and abortion providers’ practices than ever before.  The “graying” of current  providers represents a further challenge.  In the words of Justice Blackmun, “I fear for the future.  I fear for the liberty and equality of the millions of women who have lived and come of age in the . . . years since Roe was decided.”  But tomorrow I simply offer thanks to those who defend our rights on the front lines.

Another Contraceptives Mandate Case

Following up on Chris Robertson’s and Kevin Outterson’s posts below (here and here), I just wanted to draw your attention to another federal district court opinion on the contraceptives coverage mandate.  This one is from Nov. 19 and involves the owners of Hobby Lobby.  The court denied their motion for a preliminary injunction on the following grounds:

Plaintiffs have not demonstrated a probability of success on their First Amendment claims. Hobby Lobby and Mardel, secular, for-profit corporations, do not have free exercise rights. The Greens [the individual owners] do have such rights, but are unlikely to prevail as to their constitutional claims because the preventive care coverage regulations they challenge are neutral laws of general applicability which are rationally related to a legitimate governmental objective.

Plaintiffs also have failed to demonstrate a probability of success on their Religious Freedom Restoration Act claims. Hobby Lobby and Mardel are not “persons” for purposes of the RFRA and the Greens have not established that compliance with the preventive care coverage regulations would “substantially burden” their religious exercise, as the term “substantially burdened” is used in the statute. Therefore, plaintiffs have not met their prima facie burden under RFRA and have not demonstrated a probability of success as to their RFRA claims.

There are tens of cases challenging the contraceptives mandate pending at the moment, and several have already been dismissed on procedural grounds.  But my current count of the substantive cases is 3 preliminary injunctions granted (Newland, Weingartz Supply, and Tyndale House Publishers), 1 denied (Hobby Lobby), and 1 case holding outright that the mandate violates neither the First Amendment nor RFRA (O’Brien).  Have I missed any?

Opinion granting preliminary injunction on contraceptive coverage mandate

By Christopher Robertson

Yesterday (Friday Nov 16), U.S. District Judge Reggie Walton granted a preliminary injunction barring enforcement of the contraceptive coverage mandate that was part of the regulations implementing the Affordable Care Act (ACA).  There is lots of news coverage (e.g., HuffPo and WaPo), but as usual, the news organizations do not link to the opinion.  For your convenience, I’ve linked to it in the prior sentence, and provide some very preliminary observations below the fold.

Read More