Right to Refrain: Do Abortion Providers Have a First Amendment Right to Free Speech Under Mandatory Narrated Ultrasound Laws?

Background

The First Amendment prohibits Congress or any other legislative body from enacting laws that abridge freedom of speech. The Supreme Court has distinguished between legislation that regulates the content of speech and legislation that regulates conduct associated with the speech. Content-based speech restrictions are generally presumed to be invalid and must face strict scrutiny before the courts. This requires the government to prove that the law is necessary to achieve a compelling state interest — a very high bar that often results in most content-based speech restrictions failing.

The First Amendment not only guarantees the right to speech, it also guarantees the right to refrain from speech. In Riley v. Nat’l Fed’n of the Blind (1988), the Supreme Court held that regulations that compel speech are inherently content-based restrictions, as they compel the speaker to speak when they would have otherwise remained silent. As such, regulations that compel speech must also generally face some form of strict or heightened scrutiny before the court.

In conjunction with the recent rise in abortion regulation, multiple states have passed legislation mandating that narrated ultrasounds be performed by physicians prior to abortion procedures. While specifics vary slightly between states, the laws have the same general premise: physicians are required to perform an ultrasound, display the sonogram, and describe the fetus to the patient. Under these laws, the physician must display and describe the ultrasound, even if the patient actively protests. Most states provide an exception only for emergency situations, although exceptions also vary by state. If a physician refuses to perform the ultrasound, he or she may be subject to multiple forms of punishment, including fines, referral to the state medical licensing board, and an inability to perform future abortions.

The Issue

Reproductive rights and other activist groups have recently joined forces to approach these regulations from a non-traditional vantage point. The groups are straying from the traditional approach of invalidating abortion legislation under Roe v. Wade (1973), where the Supreme Court found a Constitutional right to an abortion under the Fourteenth Amendment. Instead, the groups have turned their focus to the impact of these regulations on the physicians they are intended to regulate. These activist groups have argued that the mandatory narration laws are unconstitutional not because they prohibit access to abortion, but because they compel physicians to engage in speech from which they otherwise would refrain. This has ultimately led to a single question: what are abortion providers’ First Amendment rights under mandatory narrated ultrasound laws?

The Split

In Stuart v. Camnitz (2014), the Fourth Circuit held that North Carolina’s narrated ultrasound law violated physicians’ First Amendment right to refrain from speaking “beyond the extent permitted for reasonable regulation of the medical profession.” The Court noted that while “professionals may be subject to regulations by the state that restrict their First Amendment freedoms when acting in the course of their professions, professionals do not leave their speech rights at the office door.” The Court held that this regulation of speech and professional conduct warranted heightened intermediate scrutiny, under which the law failed. The Fourth Circuit stated that “while it is true that the words the state puts into the doctor’s mouth are factual, that does not divorce the speech from its moral or ideological implications,” emphasizing the fact that context matters. Because the speech that the state was attempting to compel in this case was so heavily content-specific and did not allow any room for physicians to exercise professional judgment, the Court held that the law unconstitutionally attempted to make physicians the “mouthpiece of the state” to promote their own “clear and conceded” pro-life position.

The Sixth Circuit recently reached the exact opposite conclusion in EMW Women’s Surgical Center P.S.C. v. Beshear (2019). The Court found that Kentucky’s mandatory narrated ultrasound law did not violate physicians’ First Amendment rights, noting that the law simply “requires the disclosure of truthful, non-misleading, and relevant information about an abortion.” Directly addressing the Fourth Circuit’s 2014 decision, the Court stated that “Stuart’s basis for applying heightened scrutiny is called into question by Supreme Court precedent.” The Court argued that the appropriate level of scrutiny was much lower than that called for by the Fourth Circuit and that, under this new lower level of scrutiny, the law survived. Further opposing the argument that the narrated ultrasound laws inappropriately interfere with the doctor-patient relationship, the Court found that the laws did not interfere “any more than other informed-consent laws,” despite the fact that they were regulating the controversial subject of abortion. Countering the Fourth Circuit’s opinion that the compelling of physicians to deliver the state’s message was unconstitutional, the Sixth Circuit held that “as a First Amendment matter, there is nothing suspect with a State’s requiring a doctor, before performing an abortion, to make truthful, non-misleading factual disclosures, relevant to informed consent, even if those disclosures relate to unborn life and have the effect of persuading the patient not to have an abortion.”

Looking Forward

 The future of this issue remains uncertain. The Court recently made headlines for accepting an admitting privileges case out of the Fifth Circuit, the first abortion-related case since the addition of conservative Justices Gorsuch and Kavanaugh. However, the Court has generally been hesitant to accept abortion-related cases and has already denied a previous appeal for this issue. In 2014, the Court denied North Carolina officials’ petition to appeal the Fourth Circuit’s decision. As of September 26, 2019, the American Civil Liberties Union has filed a petition for a writ of certiorari for the Supreme Court to hear its appeal from the Sixth Circuit’s decision. A response is due from the Secretary of the Kentucky Cabinet for Health and Family Services, Adam Meier, by the end of October before the Court will begin to consider the petition.

For further reading, see: Sex, Lies, and Ultrasound (2018) by Case Western University School of Law Associate Dean and Professor B. Jessie Hill and Professional Rights Speech (2016) by William & Mary Law School Professor Timothy Zick.

Competing Branches: Judicial Scrutiny and Presidential Commutation of Prison Sentences

Background

Presidential commutation, or reduction, of prison sentences is a well-established power of the executive branch. Article II of the United States Constitution gives the President the “power to grant Reprieves and Pardons” for criminal offenses against the United States. U.S. Const. art. II, §2. However, the implications of such an action on the judiciary’s subsequent ability to grant a writ of habeas corpus are yet to be determined.

A writ of habeas corpus permits an inmate to have his or her case reviewed by a court to determine whether the imprisonment is lawful. If there have been changes in law relevant to the case, or if for any number of reasons, the inmate believes the original sentence may no longer hold, he or she may ask that a court hear the claim. Relatedly, Article III of the Constitution provides an important constraint on the authority of the judiciary, declaring that courts cannot hear a moot issue. In other words, the conflict before the court has to be one that is “live,” or where the parties still have a “cognizable interest in the outcome.”

The Issue

The question, then, is what happens once a prisoner’s sentence has been reduced by presidential commutation?

1.         Does any appeal by the affected inmate for review become moot, divesting the judiciary of its power to grant writs of habeas corpus?

2.         Does the judiciary still have the authority to review that case, or has it been transformed from a judicial sentence to an executive one?

The Split

In recent years, cases before the Fourth and Sixth Circuits have raised these exact questions. The circuit courts are split, with the Fourth Circuit taking a seemingly narrow view of its jurisdictional scope, while the Sixth Circuit applies its authority more broadly.

In United States v. Surratt (2017), the Fourth Circuit held that presidential commutation — in this case, shortening a sentence for crack cocaine possession from life to 20 years — divested the court entirely of its power to review the case. Though the ruling features only a two-sentence opinion, the concurring opinion explains the logical merits. It states, “absent some constitutional infirmity in the commutation order, which is not present here, we may not readjust or rescind what the President, in the exercise of his pardon power, has done.” It asserts that the nature of the sentence has been transformed by the action, and that the prisoner is no longer serving a judicially imposed sentence, but a presidentially commuted one — to interfere with that would be to act outside of the court’s jurisdictional purview. In the court’s view, the inmate had accepted the offer made by the President, which created finality in the decision, thus precluding the court from further intervention.

Deviating from this opinion, in Dennis v. Terris (2019), the Sixth Circuit found that such an exercise of presidential power does not take away from the judiciary’s authority to grant a writ of habeas corpus. The court acknowledged the executive’s power, but refused to accept the position that the “altered sentence becomes an executive sentence in full, free from judicial scrutiny with respect to mistakes the courts may have made.” In this view, there is no overlap between the power exercised by the executive and the authority the court is asked to assert. Here, the question is not whether the commutation should be amended, but rather whether the original sentence itself would hold up under scrutiny and application of modern law. The argument made by this court is that a commutation or pardon by the President does not change the nature of or eliminate the original sentence. Say, for example, an inmate’s sentence is commuted with the added condition that the inmate maintain good behavior. If that condition is not met, the commutation is revoked and the original sentence takes effect once again. The original sentence remains in place all along, “ready to kick into full effect if the recipient violates the conditional cap.” Likewise, the sentence is, all along, subject to be amended by the court system that imposed it. Moreover, the court argues that a commuted sentence is, on principle, not rendered moot. Commutation does not take away any interest the inmate has in seeking relief for the remainder of his or her sentence. If a court were to find the inmate’s sentence unlawful, then the original sentence would simply go away. In other words, the conflict is still “live,” giving the court jurisdiction to revise and reevaluate the legality of its own past decisions.

Looking Forward

The power of a President to shorten or forgive the sentences of prisoners is an exercise in fairness that dates back to the creation of the U.S. Constitution, and has played a role in the criminal justice system ever since. This current split reveals a fundamental difference in how the courts view their roles as part of the judiciary. Whether or not an overlap between branches of government is formed by an executive action is a question of constitutional interpretation that carries serious consequences for how justice will be carried out across the United States in the future.

Standardizing the Standard: Determination of “Habitual Residence” Under the Hague Convention

BACKGROUND

In 1980, the United States and the member states of the Hague Conference on Private International Law unanimously adopted the Convention on the Civil Aspects of International Child Abduction. In 1988, Congress passed the Hague Convention’s enabling statute, the International Child Abduction Remedies Act. 22 U.S.C. §§ 9001–9011. In doing so, Congress reiterated the Convention’s purpose “to help resolve the problem of international abduction and retention of children” and to “deter such wrongful removals and retentions.” 22 U.S.C. § 9001(a)(4). Accordingly, Congress empowered “courts in the United States to determine only rights under the Convention and not the merits of any underlying child custody claim.” 22 U.S.C. § 9001(b)(4). As a result, the determination of a child’s “habitual residence” is the fundamental question in any case under the Hague Convention. The answer controls whether the Convention applies, which nation’s laws determine custodial or access rights, and whether a child must be sent across international borders to another country for adjudication of those rights.

THE ISSUE

Whether a district court’s determination of “habitual residence” under the Hague Convention should be reviewed:

  1. De novo, as seven circuits have held;
  2. Under clear-error review, as the U.S. Courts of Appeals for the 4th and 6th Circuits have held; or
  3. Under a deferential version of de novo review, as the U.S. Court of Appeals for the 1st Circuit has held.

THE SPLIT

Among the ten circuits that have addressed the issue, three different standards have emerged for reviewing a district court’s habitual-residence determination.

Seven circuits apply de novo review to a district court’s determination of habitual residence, thus reviewing the district court’s underlying findings of historical fact for clear error. The Second Circuit explained that the habitual residence determination is heavily fact-dependent, but the question of whether the pertinent facts satisfy the legal standard is a question of law to be reviewed de novo. Guzzo v. Cristofano (2013). Similarly, the Third Circuit held that the “determination of habitual residence is not purely factual, but requires the application of a legal standard, which defines the concept of habitual residence, to historical and narrative facts.” Feder v. Evans-Feder (1995). Keeping in line with this approach, the Third Circuit applies “a mixed standard of review, accepting the district court’s historical or narrative facts unless they are clearly erroneous, but exercising plenary review of the court’s choice of and interpretation of legal precepts and its application of those precepts to the facts.” The Fifth Circuit agrees, explaining that such a determination presents a mixed question of law and fact subject to de novo review. Larbie v. Larbie (2012). The Seventh, Eighth, Ninth, and Eleventh Circuits also apply the same approach — reviewing the underlying historical facts for clear error, but reviewing the ultimate determination of habitual residence de novo. Koch v. Koch (7th Cir. 2006); Silverman v. Silverman (8th Cir. 2003); Mozes v. Mozes (9th Cir. 2001); Ruiz v. Tenorio (11thCir. 2004).

In contrast, the Fourth Circuit found that the crux of the habitual residence determination is whether the district court’s finding is clearly erroneous. Maxwell v. Maxwell (2009). Almost a decade later, the Sixth Circuit joined the Fourth Circuit in applying that deferential standard. The Sixth Circuit held in Taglieri v. Monasky (2018) that it would “treat the habitual residence of a child as a question of fact.” Emphasizing the comparative advantages of trial and appellate courts and the highly deferential nature of clear-error review, the court uniquely articulated that it would affirm the district court’s habitual-residence determination “unless the fact findings ‘strike us as wrong with the force of a five week-old, unrefrigerated dead fish.’” The court then deferred not only to the district court’s findings of historical fact but also to its determination that those facts were legally sufficient to establish a child’s habitual residence.

The First Circuit adopted a hybrid approach. Although it applies clear-error review to historical facts underlying the habitual-residence determination and de novo review to the district court’s resolution of that question, the First Circuit gives some deference to the district court’s determination. According to the First Circuit, it is fairly difficult in Hague Convention litigation “to attach an abstract label to a complex of discrete facts, some of which push each way.” Nicolson v. Pappalardo (2010). With this approach, the court will reverse a “district court’s raw fact findings . . . only for clear error,” giving some form of deference to the district court’s application of the standard in determining habitual residence.

LOOKING FORWARD

When Congress adopted legislation implementing the Convention, it emphasized “the need for uniform international interpretation of the Convention.” 22 U.S.C. § 9001(b)(3)(B). Ten circuits applying three approaches is not the uniformity Congress intended. Fortunately, the Supreme Court found a proper vehicle to address the lack of uniformity in Monasky v. Taglieri. Set for oral argument on December 11, 2019, the Supreme Court will shed light on which standard of review a Court of Appeals should apply to a district court’s determination of habitual residence under the Hague Convention. In deciding Monasky, the Sixth Circuit created an additional split that the Supreme Court will also examine later this year. That issue will be discussed in another Sunday Split.

Deliberate Indifference: Does the Eighth Amendment Guarantee Access to Gender Confirmation Surgery For Transgender Prisoners?

BACKGROUND

The Eighth Amendment explicitly prohibits cruel and unusual punishment, but what are the parameters of this protection? In Estelle v. Gamble, the Supreme Court expanded the definition to include “deliberate indifference to serious medical needs of prisoners.” This 1976 decision proscribes a form of inhumane treatment that extends beyond physical punishment:

“(D)enial of medical care may result in pain and suffering which no one suggests would serve any penological purpose… The infliction of such unnecessary suffering is inconsistent with contemporary standards of decency as manifested in modern legislation codifying the common law view that “it is but just that the public be required to care for the prisoner, who cannot, by reason of the deprivation of his liberty, care for himself.”

However, it is not the case that every prisoner’s claim for inadequate medical treatment necessarily involves an Eighth Amendment violation. Under Kolisek v. Spencer, to prevail on such a claim, a plaintiff must prove that: (1) a serious medical need exists, and (2) prison administrators’ acted with deliberate indifference to that need.

THE ISSUE

The aforementioned two-prong test comes into play when deciding whether an inmate can receive treatment for gender dysphoria. According to the World Professional Association for Transgender Health, gender dysphoria is defined as “distress that is caused by discrepancy between a person’s gender identity and that person’s sex assigned at birth.” In the recently decided case, Edmo v. Corizon, the Ninth Circuit went on to recognize that, if left untreated, gender dysphoria can lead to “debilitating distress, depression, impairment of function, substance use, self-surgery to alter one’s genitals or secondary sex characteristics, self-injurious behaviors, and even suicide.” Despite this, the question of whether gender dysphoria is a serious medical issue for inmates is not at issue here.

With regard to gender dysphoria, treatment ranges from changes in gender expression to gender confirmation surgery (GCS). The latter is politically controversial, but a growing body of evidence demonstrates that it is an effective treatment for gender dysphoria. The Fifth Circuit, in Gibson v. Collier, expressed concern that transgender prisoners are not guaranteed “the best treatment for gender dysphoria, only that which prevents their medical well-being from dropping below ‘society’s minimum standards of decency.’”

The legal controversy at issue here involves the definition of “adequate treatment,” specifically the standard for “deliberate indifference” to an inmate’s medical need in the context of transgender prisoners. The question becomes whether a transgender inmate’s Eighth Amendment right against cruel and unusual punishment is violated when GCS is denied and substituted with less invasive treatment.

THE SPLIT

The Fifth and Ninth Circuits diverge in their interpretation of the First Circuit’s opinion in Kosilek v. Spencer, which held that Michelle Kosilek, an anatomically male prisoner who identified as female, was not entitled to GCS. The Court reasoned that, although her gender dysphoria was severe, it was unclear whether GCS would provide significantly greater relief than the non-surgical treatment she was already receiving. The prison was found not deliberately indifferent, and the claim was denied.

The Fifth Circuit has interpreted Kosilek as creating a de facto, blanket ban on GCS on the grounds that there exists controversy about whether the procedure is ever medically necessary. In Gibson v. Collier, Vanessa Gibson (who the Fifth Circuit insists on calling Scott Gibson), is a male-to-female transgender inmate who has been presenting as female since the age of fifteen. Despite receiving hormonal therapy from the prison, Vanessa showed signs of depression, attempted to castrate herself, and even attempted suicide three times. The Court, however, held that withholding GCS from her is not “deliberate indifference” because there exists controversy about the efficacy of the procedure, finding that an Eighth Amendment violation did not occur. The Court granted summary judgment against Gibson for failing to provide sufficient evidence of medical indifference, and reaffirmed the prison policy that denied the inmate’s right to be evaluated as a candidate for GCS in the first place.

In contrast, in Edmo v. Corizon, the Ninth Circuit has interpreted the Kosilek decision by holding that the medical necessity of GCS must be determined on a case-by-case basis. In this case, Adree Edmo had received non-invasive treatment for her gender dysphoria as an inmate in Idaho. Despite these efforts, Edmo continued to suffer from suicidal ideations, depression, and attempts to self-castrate. Citing the district court’s lengthy discussion of the latest research on gender dysphoria and the efficacy of GCS, the Court determined that it was medically necessary for Edmo to receive the surgery. Due to the increased social awareness of transgender healthcare and significant advancement in treatment, the Ninth Circuit held: where an inmate’s health record shows medical necessity in treating gender dysphoria, and prison officials deny such treatment, those officials are in violation of the Eighth Amendment.

LOOKING FORWARD

In concluding his opinion in Gibson, Judge Ho argued that “it cannot be deliberately indifferent to deny in Texas what is controversial in every other state.” It is, however, this exact controversy that highlights the need for certiorari. It is clear that the lack of access to ever evolving and effective treatment causes severe medical harm, as was the case with Michelle, Vanessa, Adree, and several other transgender inmates. This predictable and preventable harm falls well below the “minimum standards of decency” the Eighth Amendment aims to preserve.