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Abortion and Informed Consent: How Biased Counseling Laws Mandate Violations of Medical Ethics
If we slightly change the facts of the story about the discouraging doctor, it becomes a story that happens every day. Abortion patients face attempts to discourage them from terminating their pregnancies like those the imaginary doctor used, as well as others-and state laws mandate these attempts. While the law of every state requires health care professionals to secure the informed consent of the patient before any medical intervention, over half of the states place additional requirements on legally effective informed consent for abortion. These laws sometimes include features that have ethical problems, such as giving patients deceptive information. Unique informed consent requirements for abortion are depicted by their supporters as necessary for fully informed and voluntary consent to abortion. They are purported to protect health by regulating the practice of medicine. But their worst features are detrimental both to the goals of the doctrine of informed consent and to women's health. I refer to these laws as "biased counseling laws" because they are not intended to ensure that patients give their informed consent to abortion, but rather are intended to make women less likely to terminate their pregnancy. I employ a broad definition of biased counseling laws; for my purposes, any law that is intended to discourage women from deciding to obtain abortions is a biased counseling law. However, not all abortion- specific consent laws are equally ethically problematic. Thus, my argument will focus on certain features of biased counseling laws. This Article contributes to the literature by examining in detail the most problematic features of biased counseling laws, collecting and explaining some of the most influential ethical accounts of informed consent, and demonstrating the deep ethical problems with biased counseling laws. Legal scholars have previously argued that biased counseling laws are unconstitutional because they impose an undue burden on the right to terminate a pregnancy, they violate the First Amendment, and they constitute sex discrimination. This Article shows that, in addition to their shortcomings when judged by the standards of the Constitution, biased counseling laws have serious problems when judged by the standards of medical ethics. The Article provides an innovative, interdisciplinary analysis of statutory provisions in an area in which legislatures have been highly active in recent years and will likely continue to be.Pain, Love, and Voice: The Role of Domestic Violence Victims in Sentencing
Criminal law systems throughout the world have evolved to a stage where they no longer ask, "What is the appropriate role of the victim in a criminal trial?" The questions now relate to the scope of the victim's rights, in which procedures she has independent standing, and at what stage she should be heard. The process of the "prosecution stepping into the victim's shoes," whereby the state controls the entire criminal process, seemingly on behalf of the victim, has been replaced by the recognition that the interests of the prosecution (the State) are not always consistent with those of the victim. The view that will be developed here as the main thesis of this Article, that victims should be heard at the sentencing stage, irrespective of their views, is far from common. This Article will first establish the theoretical basis for this view by drawing on an expressive theory, discussed in Part I, and will take this theory a step further, into the sphere of the particular victim who asks for leniency.No Contact Parole Restrictions: Unconstitutional and Counterproductive
Although what Jesse Timmendequas did was abhorrent, the legislation enacted in the wake of his crime went far beyond making sure we know the pedophiles or pedophile-murderers living in our neighborhoods. Megan's name now lends itself to a host of state laws requiring the state to notify neighbors when a sex offender moves into the neighborhood. The term "sex offender" is intentionally broad, covering everyone from voyeurs and exhibitionists to rapists and child molesters. Yet, Megan's Laws treat them the same way, ignoring some crucial questions: Are all sex offenders alike? Are they all monsters? In reality, the majority of sex crimes are not the sort of violent rapes that are highlighted in news stories. Furthermore, the categorical treatment of sex offenders-despite significant differences in their crimes-has led to impulsive and overreaching new restrictions once they are paroled. States continue to look for new ways to control this population once they are released from prison. The most alarming of these new techniques are "no contact" restrictions, which prevent paroled sex offenders from having any interaction with persons under the age of seventeen, including their own children. These "no contact" conditions represent a drastic new step towards more restrictive parole that cannot be justified on public safety grounds. "No contact" parole restrictions test the constitutional limits of society's willingness to continue punishing sex offenders long after their release from confinement. The problem of states moving towards more restrictive conditions is a problem of categorical over-inclusion. Highly restrictive parole conditions may be necessary for some offenders (certainly for the Jesse Timmendequas of the world), but they are not necessary for all. This Article aims to expand current sex offender scholarship, focusing on the new "no contact" restrictions and the way in which the application of such restrictions to all sex offenders without individual review is not only unconstitutional, but also poor public policy.Sex Equality’s Unnamed Nemesis
Sex inequality still exists. However, its manifestations have evolved since the early sex inequality cases were heard in courts and legislatures first began structuring statutory regimes to combat it. In particular, so-called "facial" discrimination against men and women on the basis of sex has no doubt decreased since the advent of this legal assault on sex inequality. Yet the gendered assumptions that structure our institutions and interactions have proven resilient. With sex discrimination now operating more covertly, the problem of sex inequality looks considerably different than it once did. Courts, however, have failed to successfully respond to the changing contours of sex inequality, allowing the problem to manifest itself in ways that are becoming increasingly difficult to identify and root out. This Article proposes that courts formulate an alternative legal framework within which to understand the problem of sex inequality such that they are better equipped to address its evolving nature-a framework which unambiguously names bad ideology, not simply bad actors and differential treatment, as sex equality's nemesis. Through such a renaming and reframing, U.S. law might become a more effective arena for negotiating the gendered assumptions that underlie the problem of sex inequality, should space be made within its discourse for such a conversation to take place.The Failure of Consent: Re-Conceptualizing Rape as Sexual Abuse of Power
This Article argues that while rape law reform has accomplished significant changes in the past decades, the reform has since stalled. The contemporary focus on the element of consent might account for this stagnation. This move has both failed to effect instrumental change in the courts as well as in social norms, and is conceptually flawed and normatively misguided. The practical result of these deficiencies is that rape, as defined by our criminal justice system, bears little resemblance to the various forms of sexual abuses that are inflicted on victims. While rape law typically criminalizes only the physically violent sexual attack, it refuses to criminalize an array of abuses, effectively disregarding prevalent forms of sexual violence and misconceiving the crime of rape. Statutory definitions of rape are inept and require an overhaul to better capture the harm and wrongdoing of sexual abuses that many victims still experience.Tango or More – From California’s Lesson 9 to the Constitutionality of a Gay-Friendly Curriculum in Public Elementary Schools
In August 2009, a group of parents in California filed a lawsuit, Balde v. Alameda Unified School District, in the Superior Court of California, County of Alameda. They alleged that the Alameda Unified School District refused them the right to excuse their children from a new curriculum, Lesson 9, that would teach public elementary school children about gay, lesbian, bisexual and transgender (GLBT) families. The proposed curriculum included short sessions about GLBT people, incorporated into more general lessons about family and health, once a year from kindergarten through fifth grade. Kindergarteners would learn the harms of teasing, while fifth graders would study sexual orientation stereotypes. One parent alleged that, although an overwhelming majority of parents spoke out against CLBT instruction at numerous school board meetings, the board chairman repeatedly told the public that the curriculum was evenly supported and opposed. Parents suspected the board had a preconceived political agenda behind the proposal. Other parents expressed their full support for the proposed curriculum because, noting that the school is a reflection of the community and the world, children from a very early age should see what the world is like. The parents' petition for a writ of mandamus to require the school district to excuse their children from Lesson 9 was denied by the Court on December 1, 2009, and the pleadings filed do not claim any violation of the children's rights under the Constitution. This Article studies the constitutionality of Lesson 9 in California public elementary schools.Removing Categorical Constraints on Equal Employment Opportunities and Anti-Discrimination Protections
It has been the "historical tendency of anti-discrimination law to use categories to define protected classes of people." This Article challenges the categorical approach and seeks to change that limited framework. This Article focuses on the flaws with Title VII's categorical approach and discusses why there is a desperate need for change to combat the different types and targets of workplace discrimination today, focusing on the transgender community as one example. After discussing the current framework and operation of Title VII, this Article analyzes the insurmountable flaws inherent in the categorical approach to anti-discrimination law, and specifically considers Title VII's failures to the transgender community as exhibited by case precedents. Then, this Article refutes the categorical approach and proposes a de-categorized reformulation of Title VII, a concept that, to the Author's knowledge, has never before been proposed. This new category-less approach would replace relevant parts of Title VII's text with language focusing on an individual's objective qualifications for employment. Under this new proposal, the determination of whether that individual is the "most qualified" for the job is the key question, and employment decisions based on factors other than job qualifications are strictly prohibited. The culmination is the "Employment Qualifications Approach" ("EQA"). Penultimately, this Article addresses the possible benefits and drawbacks that might attend implementation of the EQA. Finally, this Article asserts that the EQA is the best hope and means by which to afford currently unprotected employees, including transgender persons, equal employment opportunities and non-discrimination protections through the law.When Sixteen ain’t So Sweet: Rethinking the Regulation of Adolescent Sexuality
Legally speaking, sexual maturity poses a significant enough liberty interest for a minor to make medical decisions regarding contraceptive medicine or to choose motherhood without parental involvement, but not quite enough for her to obtain an abortion independently. The law incentivizes teenage motherhood by only granting decisional autonomy to those minors who choose to have a child; the minor female's right to procreate vests regardless of her individual maturity. The law discourages teenage abortions by using the choice to terminate a pregnancy to trigger a presumption of immaturity; the minor female's abortion right is pitted against personal autonomy via parental rights. Ultimately, this Article argues that sexually active minors, their children, and their parents all suffer in this reproductive catch-22. This Article contends that the conflict between age of consent laws and minor abortion restrictions is just one illustration of state legislatures' struggles within the greater protecnionist-versus-enablement paradigm. Specifically, this Article argues that laws regulating adolescent sexuality can generally be categorized into one of two types: (1) protectionist, enacting restrictions and protections designed to compensate for minors' categorical immaturity; or (2) enabling, recognizing adult-like capacity and rights in minors as they progress in their overall development. The result of this polarized statutory landscape can only adequately be described as "legislative schizophrenia"-although devoid of invidious intent, these statutes ultimately hurt minors because they are premised on a flawed paradigm that is unable to coordinate the different political and social goals of state legislatures. This Article argues that by recognizing consensual maturity for intercourse and pregnancy but then rescinding that presumptive maturity only for abortion, states both violate the Constitution and create dangerous public policy. Specifically, states violate legally-consenting minors' substantive due process rights by imposing undue burdens on their abortion access without any legitimate, countervailing immaturity interest. While parental notification and consent laws have been upheld on the grounds of minor immaturity, this Article argues that the recognition of sexual maturity through age of consent laws should also trigger a presumption of maturity for minor abortion rights. This Article further highlights five key policy concerns created by the inconsistent regulation of adolescent sexuality: (1) the encouragement of impulsive adolescent sexual behaviors; (2) the binding of decisional autonomy to pregnancy outcome; (3) the reinforcement of paternalistic gender stereotypes; (4) the punitive, rather than protective, natre of parental involvement and judicial bypass; and (5) the continued hystericization of adolescent sexuality.Confrontation and Domestic Violence Post-Davis: Is There and Should There Be a Doctrinal Exception
Close to five million intimate partner rapes and physical assaults are perpetrated against women in the United States annually. Domestic violence accounts for twenty percent of all non-fatal crime experienced by women in this county. Despite these statistics, many have argued that in the past six years the Supreme Court has "put a target on [the] back" of the domestic violence victim, has "significantly eroded offender accountability in domestic violence prosecutions," and has directly instigated a substantial decline in domestic violence prosecutions. The asserted cause is the Court's complete and groundbreaking re-conceptualization of the Sixth Amendment right of a criminal defendant to confront his accusers, beginning with the historic decision Crawford v. Washington in 2004, through Davis v. Washington two years later, and then Giles v. California two years after that. This Article will evaluate the Sixth Amendment right of confrontation in the context of domestic violence cases, both to assess certain consequences of this major constitutional shift and to suggest a change to confrontation doctrine in order to address some of the negative consequences that have apparently resulted. This Article engages in this consideration by way of an assessment of all state domestic violence cases that have examined the Confrontation Clause after Davis v. Washington.Parenting and Pregnant Students: An Evaluation of the Implementation of the Other Title IX
Title IX of the Education Amendments of 1972 prohibits gender discrimination. Although pregnancy has been described as the "quintessential sex difference," Title IX's prohibition of gender discrimination in the context of parenting and pregnant students has often been left out of the discussion, and therefore the understanding, of the implementation of Title IX Regulations. The scholarship discussing the topic shows general agreement that the language and spirit of Title IX has not been given effect thus far by our schools or by some courts. This Article begins by looking to the Title IX regulations themselves and then to the research indicating that this aspect of Title IX has yet to be fulfilled. With that understanding, it turns to the litigation landscape to identify trends in the case law, including strengths, weaknesses, and gaps. Next, this Article looks to societal impacts, specifically lack of awareness, discourses and legal mobilization, in order to garner an understanding of why the Title IX Regulations for pregnant and parenting teens have not been more strongly implemented in schools or litigated in courts.