End of Life Decisions – A Fundamental Right?

Tara Silk – Albany Government Law Review

I. Introduction

            The cancer diagnoses of two young women recently debated in the media have shown a spotlight on the government’s control involving very personal medical decisions.[1] The two cases are different in that one involved the law actively making a teenage girl get treatment[2] and the other examined what limitations the law can place on choices that individuals can make when treatment is no longer effective.[3] While the medical decisions made by the women are inherently personal in nature, they are still controlled by law, and due to existing rules, both are unable to carry out their wishes exactly as they would want.[4] This may seem like an area in which the law should not be so restrictive—is not the right to die the most essential liberty interest that should be protected by the Fourteenth Amendment?

II. Two Women’s Decisions

A. Brittany Maynard

The young woman Brittany Maynard captured media attention in the fall of 2014 by her public decision to choose to end her life on her own terms.[5] Diagnosed with brain cancer on New Year’s Day 2014, the twenty-nine-year-old at first sought treatment.[6] She had a partial craniotomy and a partial resection of her temporal lobe.[7] Sadly, even after the radical surgery, her tumor came back, and she was diagnosed with stage four glioblastoma.[8] She was given a prognosis of six months to live.[9] Facing a reality that there was no treatment for her and that she potentially faced an excruciating debilitative and painful progression as a result of her tumor,[10] Maynard made a deliberative decision to pursue ‘death with dignity’, an option that allows a patient to get a prescription for life-ending medication that can be taken by the patient when he or she chooses.[11] Maynard took the medication and passed way on November 1, 2014.[12]

 B. Current Law

Maynard made her decision very public in an attempt to advocate for ‘death with dignity’ an option she was able to choose, but one that is not always available to others suffering in similar situations.[13] While it has been established that one of the liberties granted to Americans by the Fourteenth Amendment is the right for a competent adult to refuse life sustaining treatment,[14] affirmative action to ends one’s life is not.[15] Organizations fighting for physician assisted suicide have be around for over thirty years,[16] yet as of November 2014 only Oregon, Washington, Vermont, Montana, and New Mexico allow patients to get this assistance.[17] Maynard herself, originally not a resident of one of these five states, had to go through the ordeal of moving and establishing residency in Oregon, a process that required resources that she argued not everyone who need this option have.[18] In 1994, Oregon was the first state to allow ‘Death with Dignity’, an act voted in by its residents.[19] The Act contains very specific restrictions on who qualifies and how one is able to go about getting the medication prescription.[20] While there may be concerns of misuse, since 1997 1,173 patients in Oregon have received prescriptions with 752 dying after taking the medication,[21] these are not numbers that would suggest abuse.

Maynard’s advocacy is making a difference in galvanizing other states to allow for similar assistance in dying.[22] In early January 2015, Maynard’s original home state of California put forth a potential bill that would allow terminally ill patients with six months to live to get a lethal prescription from a physician.[23] While in previous years similar bills had been put forward in the state and failed, Maynard’s story may be the factor that makes a difference this time.[24] New York, in January 2015, also introduced a new bill that would allow for a similar legal right for a terminal patient to obtain medication to aid in the dying process.[25]

C. Cassandra C.

This January 2015, the story of another young woman with cancer was in the headlines, seventeen-year-old Cassandra C.[26] The Connecticut resident had been diagnosed with Hodgkin’s lymphoma in September and did not want to receive chemotherapy treatment. Cassandra’s mother was in agreement with her daughter’s decision stating that, “‘even years ago- [Cassandra] said that if ever she had cancer . . . she would not put poison into her body’”.[27] Cassandra and her mother missed appointments that resulted in the state Department of Children and Families to get involved.[28] While Cassandra’s mother stated in an interview that “‘[i]t’s her [Cassandra’s] body, and she should not be forced to do anything with her body”, that was not the way the law saw the issue.[29] The Connecticut Supreme Court on January 8th, 2015 ruled that the minor must continue to receive chemotherapy treatment, a treatment that would give the girl an eighty-five percent chance of survival, but without which she would likely die within two years.[30]

D. Current Law

At seventeen Cassandra is considered a minor in the eyes of the law. While competent adults are constitutionally allowed to refuse medical treatment,[31] that same choice for minors is not as clear.[32] Cassandra’s case was the first time Connecticut Supreme Court examined the “mature minor doctrine” according to Cassandra’s attorney.[33] The Court ruled that Cassandra at trial failed to show that she was mature to make her own medical decisions.[34]

The question remains, should a court get to dictate that one has to get treatment? In September 2015 Cassandra will be eighteen[35] and then she will be able to make her own decisions regarding any medical intervention. How much of a change in maturity will she undergo in seven months? The decision by the Court in this case may seem like the logical one given that Cassandra’s type of cancer is statistically very treatable,[36] but chemotherapy treatment is not without its risks.[37] While many of the side effects of chemotherapy discontinue when treatment ends, there can be some serious ones that may not occur until after treatment is over.[38]   These can include long lasting consequences like heart problems, kidney problems, infertility, or even the risk of a second cancer.[39] Should the government be able to make someone take treatment when that can result in the same outcome the individual already is suffering from?

III.            Conclusion

In Cassandra’s case, the law dictated that she must receive treatment even when she did not want it.[40] For Brittany Maynard, she had to leave California because the treatment she sought was illegal there.[41] Freedom is synonymous with the American life. Yet, when it comes to what some would say is the most basic of liberties, the right to control one’s own medical decisions, the law as it stands would not let these two women make the decision they wanted. The Supreme Court agrees to at least some extent that medical decisions are “deeply personal” and part of a “patient’s liberty,”[42] but that liberty is qualified. When given the opportunity to say the same for doctor assisted suicide, the argument was made that the government did not consider it a fundamental right.[43] Minors’ freedom to make their own medical decisions is also limited.[44] Given these two restrictions, what may seem, at its heart, a freedom issue, one’s potential end of life choices, can, under current laws, be not much of a personal decision.

[1] See Associated Press [AP], Brittany Maynard, 29, Kills Herself Under Oregon’s ‘Death with Dignity’ Law, The Guardian (Nov. 3, 2014), http://www.theguardian.com/us-news/2014/nov/03/terminally-ill-oregon-death-with-dignity-brittany-maynard; Dave Collins, Connecticut Court to Hear Case of Teen Refusing Chemotherapy, Yahoo.com (Jan. 6, 2015), http://news.yahoo.com/connecticut-court-hear-case-teen-refusing-chemotherapy-164746613.html.

[2] Collins, supra note 1.

[3] See AP, supra note 1.

[4] See id.; Collins, supra note 1.

[5] AP, supra note 1.

[6] Brittany Maynard, My Right to Death with Dignity at 29, CNN.com, http://www.cnn.com/2014/10/07/opinion/maynard-assisted-suicide-cancer-dignity/ (last updated Nov. 2, 2014).

[7] Id.           

[8] Lindsey Bever, Cancer Patient Brittany Maynard, 29, has Scheduled her Death for Nov. 1, Wash. Post (Oct. 8, 2014), http://www.washingtonpost.com/news/morning-mix/wp/2014/10/08/terminally-ill-brittany-maynard-29-has-scheduled-her-death-for-nov-1/.

[9] Id.

[10] Maynard, supra note 6 (“[D]octors prescribed full brain radiation. . . . [and] [m]y scalp would be left covered with first-degree burns. My quality of life, as I knew it, would be gone . . . . But even with palliative medication, I could develop potentially morphine-resistant pain and suffer personality changes and verbal, cognitive and motor loss of virtually any kind.”).

[11] Id.

[12] Catherine E. Shoichet, Brittany Maynard, Advocate for ‘Death with Dignity,’ Dies, CNN.com, http://www.cnn.com/2014/11/02/health/oregon-brittany-maynard/index.html (last updated Nov. 3, 2014) (emphasis added).

[13] See AP, supra note 1 (only five states allow assistance in dying).

[14] See Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 278, 279 (1990).

[15] See Washington v. Glucksberg, 521 U.S. 702, 728 (1997).

[16] Sarah Childress, The Evolution of America’s Right-to-Die Movement, PBS.org (Nov. 13, 2012, 9:12 PM). http://www.pbs.org/wgbh/pages/frontline/social-issues/suicide-plan/the-evolution-of-americas-right-to-die-movement/ (the first right to die organization in the U.S. was the Hemlock Society founded in 1980 by Derek Humphry).

[17] AP, supra note 1.

[18] See Maynard, supra note 6 (“[E]stablishing residency in the state to make use of the law required a monumental number of changes. I had to find new physicians, establish residency in Portland, search for a new home, . . . my husband, Dan, had to take a leave of absence from his job. The vast majority of families do not have the flexibility, resources and time to make all these changes.”).

[19] Childress, supra note 16.

[20] See Oregon Death with Dignity Act, Or. Rev. Stat. § 127.800–127.897 (2015).

[21] Oregon’s Death with Dignity Act – 2013, Public.Health.Oregon.Gov (last visited Jan. 23, 2015), http://public.health.oregon.gov/ProviderPartnerResources/EvaluationResearch/DeathwithDignityAct/Documents/year16.pdf.

[22] See, e.g., The Times Editorial Board, Editorial Californians Deserve the Right to Die with Dignity, LA Times (Jan. 19, 2015), http://www.latimes.com/opinion/editorials/la-ed-right-to-die-legislation-california-20150120-story.html.

[23] Id.

[24] Id.

[25] H.R. 2129, 238th Gen. Assemb., Reg. Sess. (N.Y. 2015), available at http://assembly.state.ny.us/leg/?default­_fld=&bn=A02129&term=&Summary=Y&Actions=Y&Votes=Y&Memo=Y&Text=Y.

[26] Collins, supra note 1.

[27] Id. 

[28] Associated Press [AP], Conn. Supreme Court Rules Teen Can’t Refuse Chemo, NECN, http://www.necn.com/news/new-england/State-Supreme-Court-Hears-Arguments-in-Teen-Chemotherapy-Case-Cassandra-Connecticut-287933331.html (last updated Jan. 9, 2015)

[29] Elizabeth A. Harris, Connecticut Teenager with Cancer Loses Court Fight to Refuse Chemotherapy, N.Y. Times, Jan. 9, 2015, http://www.nytimes.com/2015/01/10/nyregion/connecticut-teenager-with-cancer-loses-court-fight-to-refuse-chemotherapy.html?_r=0.

[30] Id.

[31] See Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 278-79 (1990).

[32] Doriane Lambelet Coleman & Philip M. Rosoff, The Legal Authority of Mature Minors to Consent to General Medical Treatment, 131 Pediatrics 786, 790–91 (2013) (different states’ laws regulate what type of consent minors can give).

[33] Collins, supra note 1.

[34] Harris, supra note 29.

[35] AP, supra note 28.

[36] Id.

[37] Chemotherapy, Mayo Clinic, http://www.mayoclinic.org/tests-procedures/chemotherapy/basics/risks/prc-20023578 (last visited Jan. 23, 2015).

[38] Id.

[39] Id.

[40] Harris, supra note 29.

[41] See The Times Editorial Board, supra note 22.

[42] See Cruzan v. Dir., Mo. Dep’t of Health, 497 US 261, 289 (1990) (ruling that the Fourteenth Amendment allowed one to refuse medical intervention).

[43] See Washington v. Glucksberg, 521 US 702, 728 (1997).

[44] See Coleman & Rosoff, supra note 32.

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Reclassifying Internet Service Providers: A cursory review of the FCC’s role in regulating the internet

By: Brian Henchy, Albany Government Law Review

            It is axiomatic that the internet has become ingrained as an everyday part of society. It has become an invaluable and heavily relied upon tool in social interactions, the dissemination of information, and the development of ideas.[1] Over the last decade, with the numerous and frequent advances in technologies[2] that make use of internet connectivity, the proliferation of social networking,[3] exponential growth in demand for online video and gaming,[4] and infusion of technology into education and business[5] have “creat[ed] a lucrative market for delivering such services to consumers.”[6] This market caters to a group of impatient customers that have come to expect fast download speeds, even for bandwidth intensive tasks.[7]

Until January of 2014, the idea that various sources of content would be prioritized by service providers seemed absurd to a great many. Net Neutrality and Internet Openness both refer to the principle that service providers provide equal access to all data on the Internet.[8] For the purposes of this article, I will use the more common term net neutrality,[9] purely out of convenience and for the sake of clarity. Ultimately, net neutrality detractors rely on speculative concerns and offer promises of hypothetical product development to assuage fears.[10] A new scheme that effectively revives the underlying policies of the Open Internet Order should hardly be burdening future for internet service providers (hereinafter “ISP”). The assurances of ISPs, that such regulation is unnecessary should not prevent the establishment of basic prophylactic measures. After all, ISPs have existed in a reality void of regulation for barely over a year, before that consumers and content creators had mandated equal access.

The Open Internet Order

In December 2010, the Federal Communications Commission’s (FCC) Open Internet Order put into practice a form of Internet openness also known as “net neutrality.”[11] Prior to these codified regulations, the FCC had implemented general “Internet Policy Principles,” which established broad guidelines protecting the consumers’ unfettered access to the internet, principles that form the foundation of net neutrality.[12] Among the principles were customers’ entitlements: to “access the lawful [i]nternet content of their choice”; to “run applications and use services of their choice”; to “connect their choice of [lawful] devices that do not harm the network”; and to “competition among network providers, application and service providers, and content providers.”[13] Ultimately the internet policy principles were adapted to form the regulations in the Open Internet Statement.[14]

The FCC released the Open Internet order on December 23, 2010[15] after years of debate centered on whether the FCC should promulgate regulations of its kind.[16] The order was the result of a rushed and partisan political process; issued seven months after the D.C. Circuit Court of Appeals stifled an earlier attempt to codify the Internet Policy Principles.[17] This April 2010 decision, lead to the three democratic members of the FCC committee supporting the Open Internet Order in varying degrees, and the two republican members vigorously dissenting.[18] The collection of rules governed how a broadband ISP may treat “customer data traveling over their networks.”[19]

The order effected rules supporting transparency, and restricting blocking content and unreasonable discrimination of network traffic.[20] The transparency rule mandated that ISPs publicize information regarding “network management practices, performance characteristics, and terms and conditions of their broadband services.”[21] The restriction on blocking prohibited certain broadband providers from blocking “lawful content, applications, services, or non-harmful devices” from using their networks.[22] The restriction on discrimination of traffic prevented any unreasonable limitation on “lawful network traffic.”[23] Essentially the collection of restrictions maintained the internet as a tool equally available to all.

Proponents of net neutrality want to maintain the former status quo of the internet.[24] They advocate for “minimal ISP involvement in making decisions about how to route data traffic.”[25] There is great fear surrounding the power that ISPs would wield if they had an unregulated control over the content travelling over their networks.[26] Especially in a world where web traffic, which correlates with success for business with an online presence, suffers impairment as a result of delays as long as the blink of an eye.[27] A prominent fear revolves around what the Internet may look like without regulation. Exorbitant fees may prevent small competitors from competing with the likes of large companies, such as Facebook and Google.[28] Excess costs may turn the Internet into a system like cable television where consumers must select between tiers of service, each with more options than the previous.[29]

On the other hand argument, broadband ISPs, among other opponents of net neutrality, suggest these concerns have spawned regulations which “are based largely on unfounded theories.”[30] From their perspective these regulations “artificially increase the cost of maintaining the network and ultimately burden the consumer.”[31] Passing that potential allotment onto consumers may well be worth the cost to the public, given the security it offers. More importantly the “unfounded theories” have indeed been cognizable for a decade. A study conducted in 2002 found that service providers do in fact favor their short term interests through data discrimination.[32] This lends credence to the belief that ISPs care more about making a profit rather than taking part in creating a mutually beneficial long term arrangement.

Regulating the Internet

In Verizon v. FCC, the Circuit Court of the District of Columbia determined that the FCC does have the authority to regulate broadband, but vacated the anti-discrimination and anti-blocking rules, leaving the disclosure requirements as the only surviving regulations.[33] The Court ultimately decided in favor of Verizon because of the manner in which the FCC elected to classify different broadband providers.[34] The decision “affirm[ed] the FCC’s authority in principle to regulate broadband Internet service,” which suggests a reclassification of ISPs could survive future challenges.[35] In fact, it appears that the Court provided the FCC with “a roadmap to reconstitute and even improve on its original decision.”[36]

The regulatory system put in place by the Open Internet Order was far from perfect; aside from ultimately being outside the authority of the FCC.[37] The flaws in the regulations are likely a result of the rushed fashion in which the regulations were formed. The FCC balked at the chance to establish a more secure long term solution in favor of an ill-advised and partisan measure.[38] After four years of implementing the Open Internet Order, and now with the clarified scope of the FCC’s authority to regulate ISPs and the internet, the FCC may now craft a truly viable system of regulations. Despite the initial appearance that the FCC would give ISPs the option “to enter into individual negotiations with content providers[,]”[39] it now seems that the FCC is on the verge of creating a thorough policy to forward an open internet.[40]

It is difficult to predict the manner which ISPs may throttle internet traffic, but imprudent to entrust ISPs with the unencumbered ability to reshape internet access as we know and expect it. With broadband internet connections, when a fast lane is created it necessarily degrades other traffic.[41] Many theories of what the internet would look like, without regulations enforcing net neutrality, revolve around a world where large corporation backed entities can throw money at ISPs to dominate access speeds. In this scenario, websites and other content creators unaffiliated with corporations with deep pockets will be relegated to the bottom of the proverbial queue.[42]

ISPs, such as Verizon have suggested that customers’ access and use of the Internet will not be impacted negatively without FCC mandated net neutrality.[43] To the contrary, in the absence of controls, they suggest that “the internet will be a richer experience.”[44] As cable television has experienced a “boom in content” using similar business models, so would the internet.[45] Additionally, those opposed to an open internet suggest this is an opportunity to encourage improvement on the ability to provide internet to customers.[46] In broad terms these arguments suggest the aim of policy should be to create an abundance, not to manage a scarcity.[47] In other words:

Telecommunications is a means, not an end. The aim of telecom[unications] policy should not be figuring out regulatory contortions to artificially create a competitive market for Internet access where one does not exist. Rather, it should be to assure everyone a cheap and ubiquitous Internet access in order to create a robust and competitive Internet economy.

However, it seems difficult to trust ISPs when, on average, they charge sixty dollars for a product that costs them five dollars to provide.[48]

Advocates of net neutrality proposed various solutions to fill the void created by the D.C. Circuit court decision in Verizon v. FCC.[49] Those in favor of maintaining net neutrality generally support a reclassification of the internet under Title II of the Telecommunications Act.[50] Putting aside the policy reasons[51] that add weight to the classification, ultimately a reclassification, which is within the authority of the FCC, is a sure and simple method to maintain net neutrality. Few, other than those who stand to benefit financially from legal data discrimination based on source, oppose a reclassification of broadband as a “communications service” as opposed to a purely “information service.”[52] Such a switch should enable the FCC to implement a considered system of regulations, which that would maintain the status quo the public and content creators have come to expect, and to improve upon the rules previously in place.

 

[1] See Fed. Commc’ns Comm’n, Connecting America: The Nat’l Broadband Plan 16 (2010), available at http://www.broadband.gov/download-plan.

[2] See Top 10 Internet Advancements of the Decade from 2000–2009, The Juice from Blue Tangerine Solutions (Dec. 19, 2009), http://thejuice.bluetangerinesolutions.com/2009/12/top-10-internet-advancements-of-the-decade-from-2000-2009/ (hereinafter Internet Advancements); Rahul Chowdhury, Evolution of Mobile Phones: 1995–2012, HongKiat.com, http://www.hongkiat.com/blog/evolution-of-mobile-phones/ (last visited Nov. 15, 2014).

[3] Internet Advancements, supra note 2; Arnaud de Borchgrave, The Global Proliferation of Social Media, News Max (May 16, 2011, 2:32 PM), http://www.newsmax.com/deBorchgrave/socialnetworks-Twitter-Facebook-MySpace/2011/05/16/id/396543.

[4] Internet Advancements, supra note 2; Samuel L. Feder & Luke C. Platzer, FCC Open Internet Order: Is Net Neutrality Itself Problematic for Free Speech?, 28 A.B.A. Comm. Law. 20, 20 (2011).

[5] See Emmarie Huetteman, Obama Announces Pledges of $750 Million for Student Technology, N.Y. Times, Feb. 4, 2014, http://www.nytimes.com/2014/02/05/us/politics/obama-announces-pledges-of-750-million-for-student-technology.html?_r=0; Chris Riedel, 10 Major Technology Trends in Education, The Journal (Feb. 3, 2014), http://thejournal.com/articles/2014/02/03/10-major-technology-trends-in-education.aspx.

[6] Feder & Platzer, supra note 4; Tim Wu, Network Neutrality Broadband Discrimination, 2 J. on Telecomm. & High Tech. L. 141 (2003) (predicting that “the private interests of broadband providers and the public’s interest in a competitive innovation environment” will come into conflict in the decade following the 2003 publication of the article).

[7] Steve Lohr, For Impatient Web Users, an Eye Blink is Just Too Long to Wait, N.Y. Times (Feb. 29, 2012), http://www.nytimes.com/2012/03/01/technology/impatient-web-users-flee-slow-loading-sites.html?pagewanted=all; see also Feder & Platzer, supra note 4 (discussing the reasons why internet speed is important based on services).

[8] James O’Toole, Court Strikes Down Net Neutrality Rules, CNN (Jan. 14, 2014), http://money.cnn.com/2014/01/14/technology/fcc-net-neutrality/index.html; Jennifer A. Manner & Alejandro Hernandez, An Overlooked Basis of Jurisdiction for Net Neutrality: The World Trade Organization Agreement on Basic Telecommunications Services, 22 CommLaw Conspectus 57, 57 (2014).

[9] The term was coined by Tim Wu, a professor at Columbia Law School who has been very vocal in defending net neutrality. Nancy Scola, Q&A: What Exactly is Obama Signaling He Wants to Do with His Net Neutrality Support?, Wash. Post, Nov. 15, 2014, http://news.nationalpost.com/2014/11/15/qa-what-exactly-is-obama-signally-he-wants-to-do-with-his-net-neutrality-support. See generally Wu, supra note 6, at 144 (the article where Wu first used the phrase “network neutrality”).

[10] FCC Commissioner Ajit Pai, Press Statement: On President Obama’s Plan to Regulate the Internet, Feb. 10, 2015, (an unofficial statement from one of the commissioners who would be determining future policy, which highlights the positions of those who oppose net neutrality. Among the assertions is that net neutrality will discourage development of technology which would increase internet speeds, that ISPs will start to charge more as a response to additional burdens created by a net neutral system.) available at http://www.fcc.gov/document/fact-sheet-president-obamas-plan-regulate-internet.

[11] Reynolds, Comment, Enforcing Transparency: A Data-Driven Alternative For Open Internet Regulation, 19 CommLaw Conspectus 517, 517 (2011).

[12] Feder & Platzer, supra note 4, at 21. See generally In the Matters of Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, 20 FCC Rcd. 14,986 (2005) [hereinafter Internet Policy Principles].

[13] Internet Policy Principles, supra note 12, at 14,988.

[14] In re Preserving the Open Internet, Report and Order, 25 FCC Rcd. 17,905, 17,908 (2010) [hereinafter Open Internet Order]; Feder & Platzer, supra note 4.

[15] Reynolds, supra note 11.

[16] Larry Downes, Unscrambling the FCC’s Net Neutrality Order: Preserving the Open Internet–But Which One?, 20 CommLaw Conspectus 83, 84–86 (2011); Declan McCullah, Ten Things That Finally Killed Net Neutrality, CNET News(Sept. 6, 2007), http://www.cnet.com/news/ten-things-that-finally-killed-net-neutrality/.

[17] Comcast Corp. v. FCC, 600 F.3d 642, 644 (D.C. Cir. 2010); Larry Downes, supra note 16.

[18] Open Internet Order, supra note 14, at 17,907–08; Larry Downes, supra note 16, at 84–87. See generally Darrell Etherington, Circuit Court of Appeals Strikes Down FCC’s Open Internet Order, Net Neutrality Threatened, Tech Crunch (Jan. 14, 2014), http://techcrunch.com/2014/01/14/fcc-open-internet-order-struck-down/ (net neutrality advocate, Free Press, acknowledged that, despite being a step in the right direction, the regulations enacted under the Open Internet Order left much to be desired and were based on faulty grounds from the start); Brian Fung, A FEMA-Level Fail: The Law Professor Who Coined Net Neutrality Lashes Out at the FCC’s Legal Strategy, article in The Switch, The Wash. Post (Jan. 14, 2014), http://www.washingtonpost.com/blogs/the-switch/wp/2014/01/14/a-fema-level-fail-the-law-professor-who-coined-net-neutrality-lashes-out-at-the-fccs-legal-strategy/ (characterizing both the arguments employed by the FCC in Verizon v FCC and aspects of the regulations in the Open Internet Order as ill-advised, in the format of an interview with Tim Wu).

[19] Alexander Reynolds, supra note 11.

[20] Open Internet Order, supra note 14, at 17,908; Feder & Platzer, supra note 4.

[21] Feder & Platzer, supra note 4 (quoting Open Internet Order, supra note 14, at 17,906).

[22] Id.

[23] Id.

[24] James O’Toole, supra note 8 (Advocates of net neutrality want regulations in place so “providers . . . can’t auction off priority traffic rights to one site over another, or impose tolls for high-bandwidth sites such as video streamers Netflix and Hulu.”)

[25] Alexander Reynolds, supra note 11, at 518.

[26] Feder & Platzer, supra note 4; James O’Toole, supra note 8; Darrell Etherington, supra note 18.

[27] Steve Lohr, supra note 7. See generally James O’Toole, supra note 8; Darrell Etherington, supra note 18 (additional fears include ISPs setting targeted fees for those who make content which doesn’t conform with their own goals or beliefs, stifling creative innovation with fees that only large companies can afford); see also Brad Reed, This is What the Internet Will be Like Without Net Neutrality, BGR, Jan. 20, 2014, http://bgr.com/2014/01/20/net-neutrality-verdict-analysis/ (hereinafter “Reed, Jan 2014”).

[28] Reed, Jan 2014, supra note 27; Brad Reed, Is Google About to Stab Net Neutrality Right in the Back?, BGR, Feb 13, 2015, http://bgr.com/2015/02/13/google-android-one-net-neutrality/. /; Neil Irwin, A Super-Simple Way to Understand the Net Neutrality Debate, The New York Times (November 10, 2014) available at http://www.nytimes.com/2014/11/11/upshot/a-super-simple-way-to-understand-the-net-neutrality-debate.html?abt=0002&abg=0.

[29] James O’Toole, supra note 8.

[30] Alexander Reynolds, supra note 11 at 519.

[31] Id.

[32] Tim Wu, supra note 6, at 152-53.

[33] Verizon v. FCC, 740 F. 3d 623, 628 (D.C. Cir. 2014); Kevin Webach, The Court’s net-Neutrality Ruling Isn’t Actually That Bad, The Atlantic, Jan 15, 2014, http://www.theatlantic.com/technology/archive/2014/01/the-courts-net-neutrality-ruling-isnt-actually-that-bad/283094/.

[34] Verizon v. FCC, 740 F. 3d 623, 628, (D.C. Cir. 2014).

[35] James O’Toole, supra note 8.

[36] Kevin Webach, supra note 33.

[37] Verizon, 740 F. 3d at 628.

[38] Larry Downes, supra note 16; see Brian Fung, supra note 17; Darrell Etherington, supra note 18.

[39] Tim Wu, Goodbye Net Neutraliy Hello Net Discrimination, The New Yorker (Apr. 24, 2014), http://www.newyorker.com/tech/elements/goodbye-net-neutrality-hello-net-discrimination.

[40] FCC, Fact Sheet: Chairman Wheeler Proposes New Rules for Protecting the Open Internet, Feb. 4, 2015 available at http://www.fcc.gov/document/chairman-wheeler-proposes-new-rules-protecting-open-internet.

[41] Id.; Tim Wu, Goodbye Net Neutrality, supra note 39.

[42] See generally Alexander Owens, Protecting Free Speech in the Digital Age: Does the FCC’s Net Neutrality Order violate the First Amendment?, 23 Temp. Pol. & Civ. Rts. L. Rev. 209, 248 (2013).

[43] James O’Toole, supra note 8, Zach Epstein, ISPs Try To Convince Us Net Neutrality’s Death Won’t Sting, BRG (Jan. 15, 2014), http://bgr.com/2014/01/15/net-neutrality-isp-responses/.

[44] Neil Irwin, supra note 28.

[45] Id.

[46] Steven Pearlstein, Shades of Complexity Dominate the Debate Over ‘Net Neutrality’, Washington Post (November 28, 2014), available at http://www.washingtonpost.com/business/shades-of-complexity-dominate-the-debate-over-net-neutrality/2014/11/27/bde4f2de-74ef-11e4-9d9b-86d397daad27_story.html.

[47] Id.

[48] Tim Wu, Goodbye Net Neutrality, supra note 39.

[49] See Steven Pearlstein, supra note 46. See generally, Verizon v. FCC, 740 F. 3d 623 (D.C. Cir. 2014).

[50] Alexander Owens, supra note 42.

[51] See Neil Irwin, supra note 28. The policy considerations surrounding how to view the internet’s place in the context of both society and the FCC’s regulatory powers have seemingly been secondary to a results based discussion.

[52] See generally Alexander Owens, supra note 42.

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Exploring Whether Hobby Lobby Will Protect Christians and Satanists Alike

Whither Thou Goest, I Will Go:[1]

by Kimberly Waldin, Albany Government Law Review

I. Introduction

The Federal Health Resources and Services Administration through the Patient Protection and Affordable Care Act of 2010 (ACA) requires that employers provide to their employees insurance coverage that includes “[a]ll Food and Drug Administration (FDA) approved contraceptive methods [and] sterilization procedures.”[2] In June 2014, the Supreme Court ruled in Burwell v. Hobby Lobby Stores, Inc. that for-profit corporations may use the same opt-out provision of contraceptive coverage as religious employers pursuant to the Religious Freedom Restoration Act of 1993 (RFRA)[3] where the for-profit corporation is closely held and has a religious objection.[4] A month later, The Satanic Temple (hereinafter Temple) released a press statement announcing that the Temple would begin an initiative to support women’s health issues, starting with the availability on the Temple’s website of a “Political Information Opt-Out” letter to contest State-mandated acceptance of pre-abortion “Informed Consent” materials.[5] While the Temple believes its initiative would be legally viable under First Amendment protections, the Temple also believes the Hobby Lobby decision has created further support for the Temple’s position, and the Temple is willing to go to court to prove it.[6]

II. The Temple’s Position

Thirty-five states require women seeking an abortion, at minimum, to be counseled by their health care provider, and of those states, twenty-seven states require their respective state health departments to create written materials for distribution to those women.[7] The Temple’s believers are seeking to refuse mandatory acceptance of state-issued “Informed Consent”[8] materials regarding non-abortive options for an unwanted pregnancy because the Temple has found that a significant amount of the information regarding health issues surrounding abortions is scientifically inaccurate or politically biased.[9] This belief of the material’s inaccuracy or bias[10] is supported by outside organizations.[11] The Temple believes that all health-related decisions made by the individual must be “based on the best scientific understanding of the world, regardless of the religious or political beliefs of others.”[12] To receive and make health decisions based upon scientifically unfounded or inaccurate and biased information would violate the Temple’s belief that the individual’s body is “inviolable and subject to [that individual’s] will alone,”[13] presumably because the will of the State and its political stance on abortion would be impermissibly forced upon the female patient. As such, the Temple argues a believer has the right to abstain from receiving State-created, inaccurate information regarding health issues[14] under the First Amendment protection of Freedom of Religion and the Supreme Court ruling in Hobby Lobby.[15]

The connection to Hobby Lobby, as made by the Temple, is that the Justice Alito majority opinion described the four challenged contraceptive means as being “abortifacients.”[16] Specifically, the petitioners at trial challenged the ACA requirement that corporations fund insurance coverage of two types of morning-after pills and two forms of intrauterine devices[17] because, Hobby Lobby claimed, those forms of contraception prevent an embryo from implanting into the uterine wall, thus acting in an Christian-denounced, abortive manner.[18]

The Temple’s claim that since the Supreme Court wrongly accepted Hobby Lobby’s characterization of the four contraceptives as abortifacients in its decision, [19] the Court demonstrated that “religious beliefs are so sacrosanct that they can even trump scientific fact.”[20] The Temple argues that their followers are, therefore, exempt from having to receive State informed consent materials because the Court has granted religious deference over scientifically accurate, or even inaccurate, materials.[21] Thus, the Temple’s scientifically-based belief that the State materials are inaccurate and contradictory to the Temple’s religious beliefs should control, permitting refusal over a State’s mandate.[22]

While the Hobby Lobby Court expressly stated that its decision was specific to that case and would not permit for-profit corporations, for example, to forego other legal requirements in the name of corporate-expressed religion,[23] at least one reporter has described the Temple’s position as being “the polar opposite” of Christians.[24] Since the common-denominator in both Hobby Lobby and the Temple’s claims are the Christian-supported Pro-Life views versus the Temple’s Pro-Choice views, it makes sense to proceed under that characterization of the issue while examining the Temple’s claimed religious beliefs surrounding the topic of abortion.[25]

III. Qualifying as a Religious Belief

The Hobby Lobby Court said that: “[T]he exercise of religion involves not only belief and profession but the performance of (or abstention from) physical acts that are engaged in for religious reasons.”[26] The Temple is seeking to abstain from the physical act of receiving[27] State-issued materials for religious reasons.[28] At least one law professor has argued (prior to the Hobby Lobby decision) that to deny challenges to abortion-related laws that are brought under RFRA’s protection would violate the Establishment Clause of the First Amendment because of the favoritism it would show to one religion over another.[29] This would seem to be true, since the Hobby Lobby Court looked to the amendment of RFRA, as seen through Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA),[30] that expanded protection of religious freedom such that the “exercise of religion ‘shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by terms of this chapter and the Constitution.'”[31] Therefore, a RFRA challenge would enjoy a broad umbrella under which the proponent might classify their objection as being tied to religion.

The challenge then will be demonstrating that the Temple, which reportedly only has twenty active members connected by the Temple’s email listserv, actually does hold religious-based beliefs and not beliefs based solely on politics.[32] The Temple’s beliefs have been described as a “mystery” to those outside its circle,[33] but RFRA legal expert Marci A. Hamilton has stated that “[t]hese beliefs were not concocted recently, and there is no evidence of hypocrisy.”[34] Yet, the Temple’s spokesperson, Lucien Greaves, has been quoted as saying that he thinks Satanic worship is “silly.”[35] Greaves has even been questioned in an interview as to whether the Temple was really a satirical group instead of a Satanic Temple, to which Greaves responded, “I say why can’t it be both?”[36] Nonetheless, Greaves does believe that the Temple’s political beliefs are inseparable from its religious beliefs.[37] The Temple’s website states that: “As an organized religion, we feel it is our function to actively provide outreach, to lead by example, and to participate in public affairs wheresoever the issues might benefit from rational, Satanic insights.”[38]

But a mixture of political and religious belief may not matter. The Hobby Lobby decision held that the protection of RFRA was not limited to a corporation based on whether it was non-profit or for-profit.[39] In fact, the Court stated that “organizations with religious and charitable aims might organize as for-profit corporations because of the potential advantages of that corporate form, such as the freedom to participate in lobbying for legislation or campaigning for political candidates who promote their religious or charitable goals.”[40] As the Court reminded the reader: “A corporation is simply a form of organization used by human beings to achieve desired ends.”[41]

If a religious organizations can maintain RFRA protection while incorporating so as to engage in political and social lobbying activities, the Temple should receive equal protection under RFRA because it is also a religious organization engaging in political and social lobbying activities. It would not be fair to say that the Temple loses its identity as a religious organization or is less than sincere in its beliefs simply because it engages in political and social debate. Were that the case, the Catholic Church would equally lose its identity and legally-recognized sincerity of belief due to the Church’s media statements and involvement in political issues and governmental action, which have included the issue of abortion.[42] The question the Temple (and the woman who has standing to file the claim and argue that her beliefs have been violated) will need to answer in court is whether their respective beliefs are actually sincerely-held beliefs that are tenets of their faith.[43]

IV. Individually Held Belief

Questions have been raised through media discussion of the Temple’s press release about the sincerity of the individual bringing the lawsuit, specifically whether a woman could join the Temple for the purpose of using the Political Information Opt-Out letter and filing a lawsuit.[44] But, under the Hobby Lobby analogy, the question of sincerity appears to belong to that of the religious organization, and not that of the actual individual.[45] As critics and analysts of Hobby Lobby’s position have pointed out: “There were and are many reasons to question the sincerity of the [Hobby Lobby owners], who covered contraception before the Affordable Care Act mandated it and whose company is heavily invested in companies that make the contraceptives to which they object. . . .”[46]

In cases that have examined the sincerely-held beliefs of the actual individual, the individual was seeking and was granted First Amendment protection for religiously-based practices that were not attributable to the doctrine of the religion to which the individual followed but were personal practices that the individual related to their religious beliefs.[47] The Court instead looked at the sincerity of belief by the plaintiff.[48] The conclusion to be drawn, then, is that the Supreme Court will grant protection to sincerely-held religious beliefs whether they are attributed directly to the individual claiming the beliefs or to the religion to which the beliefs at issue are tied.

V. Sincerity of Belief

The court would have to look at the “religiously-based” objection to determine if it is based on a sincerely-held religious belief and not a secular belief; however, the problem with challenging the Temple’s beliefs as being actually “religious” is that it is impermissible under the First Amendment for a court of law to make such a determination.[49] That is because the Supreme Court stated decades earlier that the question of the “truth or verity of [the proclaimer’s] religious doctrines or beliefs” should not be submitted to fact-finding.[50] The reason being that the First Amendment is based on two separate theories of religious freedom—the right to believe and the right to act in accordance with belief.[51] In making that distinction, the Supreme Court stated that: “Freedom of thought, which includes freedom of religious belief . . . embraces the right to maintain theories of life and of death and of the hereafter which are rank heresy to followers of the orthodox faiths.”[52]

This ban on judicial findings of sincerity of religious tenets should also impact the third element of an RFRA challenge—a showing that the challenged law places a substantial burden on the religious challenger.[53] While the Hobby Lobby Court did evaluate the financial burden on the corporations for non-compliance with the ACA mandate of providing the challenged health-care coverage,[54] the burden that would be argued by the Temple would not be financially or business-related—the burden is related to the direct imposition of politically-biased medical decisions (such as the decision to have an ultrasound or to revisit family-planning alternatives) on the individual by the government.[55] That burden is directly placed on the private choice of the individual which is based on that individual’s religious belief (their right to believe), unlike Hobby Lobby whose religiously based decision was not burdened, just the consequences of that decision (their right to act based on belief).[56]

VI. Conclusion

While Christians and the world may cringe, the Temple has nonetheless presented a religiously-based objection to the imposition of government mandated pre-abortion requirements, and thanks to broad interpretation of RFRA by the Hobby Lobby Court, the Temple may now have the teeth to fight. Anything less than fair consideration of a religious argument would violate the Establishment Clause, and a court’s consideration as to whether the Temple truly has objections that are religiously based would require analysis of the Temple’s religious doctrine that could equally violate the First Amendment. Thus, a challenge could legitimately be brought, and all that remains now is time until the trial begins.

[1] Ruth 1:16.

[2] Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2762 (2014) (alteration in original); 77 Fed. Reg. 8724, 8725 (Feb. 15, 2012) (codified at 45 C.F.R. pt. 147); see also Health Resources & Services Administration, Women’s Preventative Services Guidelines, U.S. Dep’t of Health & Human Servs., http://www.hrsa.gov/womensguidelines (last visited Nov. 30, 2014).

[3] Pub. L. No. 103-141, 107 Stat. 1488 (1993).

[4] Hobby Lobby, 134 S. Ct. at 2759.

[5] Press Release, The Satanic Temple, Satanists Leverages Hobby Lobby Ruling to Claim Exemption From State-Mandated Pro-Life Materials as First Initiative in Ambitious Women’s Health Campaign (July 28, 2014) (on file with author) [hereinafter Press Release].

[6] Meghan Keneally, Satanists Use Hobby Lobby Decision to Play Devil’s Advocate, ABC News (July 30, 2014, 12:34 PM), http://abcnews.go.com/Politics/satanists-hobby-lobby-decision-play-devils-advocate/story?id=24772548.

[7] Guttmacher Inst., State Policies in Belief, Counseling and Waiting Periods for Abortion 1, 3 (2014).

[8] The legal definition of “informed consent” is: “A patient’s knowing choice about a medical treatment or procedure, made after a physician or other healthcare provider discloses whatever information a reasonably prudent provider in the medical community would give to a patient regarding the risks involved in the proposed treatment or procedure.” Black’s Law Dictionary 149 (4th Pocket ed. 2011).

[9] Press Release, supra note 5. As an example of political bias — on September 10, 2014, Missouri passed an amendment to its abortion-related law, expanding the state’s waiting period from twenty-four hours to seventy-two hours and requiring women to undergo an ultrasound before a woman can receive an abortion. David A. Lieb, Missouri Lawmakers Enacts 72-Hour Abortion Wait, Associated Press (Sept. 11, 2014, 1:01 AM), http://bigstory.ap.org/article/missouri-lawmakers-enact-72-hour-abortion-wait. The purpose of the expanded time-frame is to provide women with a “reflection period,” in the hopes that the woman will change her mind. Id. This extended reflective period will also be enforced on women who are victims of rape and incest. Id. A prayer vigil was held prior to the legislators convening that day, seeking God’s provision of courage to the lawmakers to pass the bill. Id. On the other hand, and in a truly ironic turn of events of which the Temple would probably approve, the photograph that accompanies this story in the media shows a group of pro-choice protestors standing under a portion of the capital building’s ceiling which reads: “opinion should be enlightened.” See id.

[10] The information is considered biased because the materials favor non-abortive alternatives and do not equally discuss the benefits of electing to undergo an abortion. See Terry Nicole Steinberg, Note, Abortion Counseling: To Benefit Maternal Health, 15 Am. J.L. & Med. 483, 501 (1989) (“Unbiased content would include not only [“risks of abortion” and the “benefits of continuing the pregnancy”], but also the negative aspects of birth and adoption and the positive aspects of abortion.”).

[11] See, e.g., Guttmacher Inst., supra note 7; Waiting Periods and Counseling Requirements, Nat’l Women’s Law Ctr., http://hrc.nwlc.org/policy-indicators/waiting-periods-and-counseling-requirements (last visited Sept. 13, 2014); Mandatory Delays and Biased Counseling for Women Seeking Abortions, Ctr. for Reproductive Rights (Sept. 30, 2010), http://reproductiverights.org/en/project/mandatory-delays-and-biased-counseling-for-women-seeking-abortions. See also Steinberg, supra note 10 at 485 (stating that “inadequate or inaccurate counseling harms women, increasing the risk of post-abortion trauma”); Ashley Portero, Abortion Waiting Periods, Counseling Do Not Sway Women: Study, Int’l Bus. Times (May 9, 2012, 5:58 PM), http://www.ibtimes.com/abortion-waiting-periods-counseling-do-not-sway-women-study-697688; Tara Culp-Ressler, Study: Abortion Waiting Periods Cause “Excessive” Emotional and Financial Hardships for Women, Think Progress (Mar. 6, 2013, 3:00 PM), http://thinkprogress.org/health/2013/03/06/1682671/abortion-waiting-excessive-hardships .

[12] Press Release, supra note 5 (internal quotations removed); Right to Accurate Medical Info — Letter to Doctor 1, available at http://thesatanictemple.com/campaigns/medical-info (follow “Right to Accurate Medical Info — Letter to Doctor” hyperlink) (last visited Jan 20, 2015) [hereinafter Letter].

[13] Press Release, supra note 5; Letter, supra note 12, at 1.

[14] “We should only have to review medical or scientific information based solely on fact and not politicized. Some of that state-drafted information is medical in nature [but] it’s just written in a very biased format.” Keneally, supra note 6 (quoting Jex Blackmore, Head of the Detroit chapter of The Satanic Temple) (alteration in original).

[15] Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2759 (2014); Press Release, supra note 5.

[16] Press Release, supra note 5; 134 S. Ct. at 2759.

[17] The parties did not object to the “other 16 FDA-approved methods of birth control.” Hobby Lobby, 134 S. Ct. at 2765, 2766. As a point of interest — Catholics, unlike all other Christian sects, still object to all forms of contraception based on tenets of doctrinal belief. Birth Control, Catholic Answers, http://www.catholic.com/tracts/birth-control (last visited Dec. 1, 2014); Church Teaching on Contraceptives, ChurchAuthorities.org, http://www.churchauthority.org/living/contraception.asp (last visited Dec. 1, 2014).

[18] Hobby Lobby, 134 S. Ct. at 2762-63, 2764-65, 2766. Simply as a point for intellectual debate, some states would seemingly support the Temple’s statement that these forms of contraception are not abortifacients based on the respective states’ Probate Laws which find that an embryo having been created through in vitro fertilization is not yet “conceived” until the embryo has been implanted into the mother’s womb. See, e.g., Finley v. Commissioner, Soc. Sec. Admin., 270 S.W.3d 849, 850, 854–55 (Ark. 2008) (declining to expressly define the term “conceived,” but deciding that an embryo created during the life of the decedent yet later implanted in the mother’s womb after the death of her decedent spouse did not meet the definition of posthumously conceived.) Having not been “conceived” within the meaning of the law, those forms of contraception therefore do not “abort” a pregnancy, and as such, cannot fairly be labeled “abortifacients.”

[19] Intrauterine devices are not abortifacients. Intrauterine Devices (IUDs), Merck Manuals, http://www.merckmanuals.com/professional/gynecology_and_obstetrics/family_planning/intrauterine_devices_iuds.html?qt=abortifacients&alt=sh (last modified Aug. 2013). A copper IUD can be used as an emergency contraceptive, which might disrupt implantation; however, findings seem to indicate that an already established pregnancy will not be affected. Emergency Contraception, Merck Manuals, http://www.merckmanuals.com/professional/gynecology_and_obstetrics/family_planning/emergency_contraception_ec.html (last modified Aug. 2013). Similarly, oral contraceptives work by introducing hormones that either prevent ovulation or cause a thickening of the cervical mucus which prevents sperm from being able to pass through the cervical canal and endometrial cavity so as to reach the egg and fertilize it. Oral Contraceptives, Merck Manuals, http://www.merckmanuals.com/professional/gynecology_and_obstetrics/family_planning/oral_contraceptives.html (last modified Aug. 2013). An egg is never fertilized, and thereby a fertilized egg is never aborted. See id. Oral contraceptives that are used as emergency contraception, which are the forms opposed by Hobby Lobby, work by delaying ovulation, avoiding fertilization by preventing an egg being exposed to sperm. Emergency Contraception, Merck Manuals, http://www.merckmanuals.com/professional/gynecology_and_obstetrics/family_planning/emergency_contraception_ec.html (last updated Aug. 2013).

[20] Press Release, supra note 5.

[21] Id.

[22] Id.

[23]Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2760 (2014).

[24] Keneally, supra note 6.

[25] Id.

[26] Hobby Lobby, 134 S. Ct. at 2770 (explaining why corporations, as persons, can exercise a religion; quoting Employment Div. Dep’t of Human Resources of Ore. v. Smith, 494 U.S. 872, 877 (1990)) (internal quotations omitted).

[27] One law professor has argued that the Temple’s argument is flawed because the “Informed Consent” laws place legal obligations on the medical provider to supply the woman with the state-issued materials; the laws do not place a legal obligation on the woman to read the materials. Emma Green, Satanists Troll Hobby Lobby, The Atlantic (July 30, 2014, 12:01 AM ET), http://www.theatlantic.com/politics/archive/2014/07/satanists-troll-the-hobby-lobby-decision/375268. However, the crux of the Temple’s argument seems to be that, due to the Temple’s religiously-based belief that an individual must make health-related decisions based upon “the best scientific understanding of the world,” a State is interfering with a believer’s ability to make an informed decision and find “the best scientific understanding” when the State forces inaccurate or biased information on the believer under the representation that the information is scientific accurate and politically (and religiously) unbiased. See Letter, supra note 12, at 1–2. In other words, the fact that the State is mandating a medical provider to act as the State’s proxy is immaterial.

[28] Press Release, supra note 5; Letter, supra note 12.

[29] Irin Carmon, Satanists Aren’t the Only Ones Following Hobby Lobby’s Lead, MSNBC (July 29, 2014, 9:32 PM), http://www.msnbc.com/msnbc/satanists-hobby-lobby-when-religious-exemptions-are-prochoice (quoting Yale Law School professor Pricilla Smith).

[30] 42 U.S.C.S. § 2000cc et seq.

[31] Hobby Lobby, 134 S. Ct. at 2772; see also 42 U.S.C.S. § 2000bb-2(4).

[32] Green, supra note 27. The natural fear tied to this argument is that political parties and opinion would then be permissible if it were cloaked under the auspices of a “religious organization.”

[33] Keneally, supra note 6.

[34] Marci A. Hamilton, The Circle States to Close: The Religious Freedom Restoration Act, Abortion, Catholic Bishops, and the Satanic Circle, The Verdict (Aug. 7, 2014), http://verdict.justia.com/2014/08/07/circle-starts-close.

[35] Green, supra note 27.

[36] Debra Cassens Weiss, Satanists Assert a Hobby Lobby Exemption from Abortion Informed-Consent Laws, A.B.A. J. (July 29, 2014, 5:18 PM), http://www.abajournal.com/news/article/satanists_assert_a_hobby_lobby_exemption_from_abortion_informed-consent_law.

[37] Green, supra note 27.

[38] Our Mission, TheSatanticTemple.com, http://thesatanictemple.com/about-us/our-mission/ (last visited Dec. 2, 2014); see also Cassens Weiss, supra note 36.

[39] Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2771 (2014). “[Congress] included corporations within RFRA’s definition of ‘persons.'” Id. at 2768.

[40] Id. at 2771.

[41] Id. at 2768.

[42] See, e.g., Stefano Gennarini, Vatican Turns the Table on the UN: It’s Abortion that’s Torture, Not Our Pro-Life Views, LifeNews.com (May 9, 2014, 9:27 AM), http://www.lifenews.com/2014/05/09/vatican-turns-the-table-on-the-un-its-abortion-thats-torture-not-our-pro-life-views (reporting on the presence of Vatican delegates at the United Nations in Geneva to debate whether abortion constitutes “torture”); Associated Press, Vatican Criticizes Obama on Abortion Issue, TimesNews.net (Jan. 24, 2009, 12:00 AM), http://www.timesnews.net/article/9011291/vatican-criticizes-obama-on-abortion-issue (reporting on Vatican criticism of President Obama for lifting a ban on federal funding of international organizations that provide abortions); Carmon, supra note 29 (stating that RFRA was embraced by the United States Conference of Catholic Bishops, who had originally spoken out against RFRA because the Bishops feared RFRA would open the door to abortion law challenges).

[43] The first element — is the Temple a protected party under the RFRA — will likely be met because it is a religious organization. Hamilton, supra note 34.   The question would then turn on the second issue — is the Temple sincere in its beliefs. Id.

[44] Green, supra note 27 (quoting University of Cornell University Law School Dean Eduardo Peñalver).

[45] See Hamilton, supra note 34.

[46] Id.

[47] See, e.g., Thomas v. Review Bd. of the Ind. Emp’t Sec. Div., 450 U.S. 707, 715-16 (1981) (“Intrafaith differences. . . [1431]  are not uncommon among followers of a particular creed, and the judicial process is singularly ill equipped to resolve such differences in relation to the Religion Clauses. . . . [T]he guarantee of free exercise is not limited to beliefs which are shared by all of the members of a religious sect.”); Frazee v. Ill. Emp’t Sec. Dep’t., 489 U.S. 829, 834 (1989) (rejecting the argument that “one must be responding to the commands of a particular religious organization in order to receive First Amendment protection,” focusing instead on sincerity of belief).

[48] Frazee, 489 U.S. at 833.

[49] United States v. Ballard, 322 U.S. 78, 87 (1944) (stating that triers of fact “enter a forbidden domain” when they attempt to subject doctrines of any faith to trial for veracity).

[50] Id. at 86.

[51] Id.

[52] Id.

[53] Pricilla Smith, Whose Faith Does RFRA Protect? Everyone’s, No One’s, or Not Mine?, Balkinization (Mar. 24, 2014), http://balkin.blogspot.com/2014/03/whose-faith-does-rfra-protect-everyones.html.

[54] 134 S. Ct. 2751, 2770 (2014).

[55] See Keneally, supra note 6 (quoting Hamilton as saying that the Temple’s argument “is following exactly on that line of thinking that a regulation that impedes the ability of the believer to practice that religion is going to be challenged.”).

[56] Hamilton described Hobby Lobby’s burden as being “attenuated,” saying: “In other words, the burden arose from their fungible funds entering a stream of fungible healthcare funds and then being used by some of their female employees in ways they will never know.” Hamilton, supra note 34.

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MOOCs Shake Up Intellectual Property Rights for Professors

By: Gregory T. Myers, Albany Government Law Review

A MOOC—a massive open online course—is a free or near-free, credit-less, online course[1] that is creating substantial buzz in the academic and technical communities.  The New York Times dubbed 2012 the “Year of the MOOC,” as MOOC companies and providers like Coursera, edX, and Udacity teamed up with top-tier schools like Stanford, Harvard, and M.I.T. to offer high-quality classes online.[2]  The democratization of formerly exclusive “brick and mortar” coursework has ushered in the enrollment of over four million students to some of these new and revolutionary courses.[3]  Never mind the most salient problems MOOCs face regarding their actual functionality and success,[4] an equally significant problem is faced by university and college professors collaborating to create the online courses: intellectual property rights.[5]

MOOCs flip the traditional college lecture on its ear because the course is being accessed by tens of thousands of students at a time, making it impossible for the instructor to tend to the needs of all the students.[6]  But it also flips the professor’s relationship with his or her employer.  Professors are part of an educational legion in universities that partner with MOOC providers (like Coursera).  As such, they are being asked to create new and interactive ways to engage their students using a brand-new internet medium. So it becomes important to ask who owns the intellectual property at the core of the course.[7]

Answering this question is difficult.  After all, faculty professors are now designers and creators of online courses.[8]  It has long been argued that principles of academic freedom prevail in favor of the professors—giving intellectual property rights to the professors when it comes to scholarly works.[9]  At the same time, the university contracting with the MOOC provider is the brand name that attracts and ultimately retains students.[10]  The scant case law on the subject only speaks to creations such as scholarly articles, not the new MOOC concept.[11]

Coursera, edX, and Udacity all state in their terms of service that they are the respective owners of the content that they provide on the MOOC platform and such content is subject to change at the will of the provider.[12]  This bumps elbows with the fair use standard.[13]  Under the fair use standard, copyrighted material can be freely used for educational purposes with the caveat that it is not of a commercial nature or has too substantial of an effect on the market value of the copyrighted work.[14] The disconnect is that teachers have traditionally held the exception to copyrighted work under the fair use standard because they are using the material in a limited capacity to a small number of people for educational purposes.  MOOCs change the rules on traditional education and the potential application of the fair use standard.

It can be argued that the MOOC platforms, especially the for-profit platforms, are of a commercial nature and flood the market to an extent that depreciates the value of copyrighted materials.  They are taking what was formerly used in a limited capacity fully within the scope of the fair use standard and injecting it into a market with ubiquitous connections via the Internet, and thus endless access.  Therefore, educational fair-use claims may be less likely to hold up when courses are as vast and open as those provided by the MOOC platforms.[15]  Essentially, the universities are bargaining with the MOOCs regarding intellectual property rights that neither may be entitled to—they are the professor’s intellectual property.[16]  The former president of the American Association of University Professors (AAUP), Cary Nelson, argues that “[i]f we lose the battle over intellectual property, it’s over” because a professor will be a service industry position rather than a professional teaching position.[17]  Nelson further prophesied a parade of horribles: that the future interests professors have in other scholarly works may be compromised if ownership rights reside solely with the employer university.[18]

The TEACH Act could become a factor in the future but it “is meticulous and detailed” which explains why few universities use it.[19]  The Act seeks “to balance the needs of distance learners and educators with the rights of copyright holders” by facilitating the display of copyrighted material for distance learners by accredited and non-profit institutions.[20] While some MOOC providers are non-profit, others are not, and they too still levy over the intellectual property rights of the universities and their professors.

Another concern is an internal one. Faculty union officials in California are concerned that professors will erode faculty intellectual property rights when they voluntarily teach free online classes.[21]  The voluntary nature of this issue also precludes certain collective bargaining powers that unions would otherwise have over their universities.[22]  If the professors hold out and do not voluntarily “teach” these MOOC courses, then that is a power they retain at the collective bargaining table.[23]  With that power, professors can work to secure their future interests by preventing employer universities from negotiating away potential intellectual property rights before there is even a discussion on the issue.

The benefits of taking a proactive approach to securing intellectual property rights at the collective bargaining table are clear. They forgo a marginalization of rights by all three parties—the professors, the universities, and the MOOC providers. Strong solidarity can help prevent otherwise vulnerable professors, like those being offered their first tenure-track positions, from being pressured into signing away their invention and intellectual property rights that could span their entire careers.[24]

Some universities take a “work for hire” approach wherein works created in the scope of employment belong to the employer and are, in this case, intellectual property rights belonging to the university.[25]  However, other universities have taken the opposite approach and granted intellectual property rights to their professors while courts seem to be split almost as similarly as the universities.[26]  In particular, Stanford asserts intellectual property ownership rights over its employees and that includes MOOC material but that is also because Stanford is not transferring ownership to the MOOC providers.[27]

With all the uncertainty circling the MOOC phenomenon and its inherent tri-level of content ownership, the most prudent way to handle it will be via proactive engagement of the parties.  This can be accomplished at the collective bargaining table between the professors and the universities and at the course development table between the universities and the MOOC providers.  The Economist stated that the MOOC could be the fall of the ivory tower.[28]  If so, are our professors tied to the same fate?

[1] Laura Pappano, The Year of the MOOC, N.Y. Times, Nov. 2, 2012, http://www.nytimes.com/2012/11/04/education/edlife/massive-open-online-courses-are-multiplying-at-a-rapid-pace.html?pagewanted=all&_r=0.

[2] Id.; Jon Marcus, MOOCs Keep Getting Bigger. But Do They Work?, Hechinger Rep. (Sept. 12, 2013, 7:31 AM), http://hechingerreport.org/content/moocs-keep-getting-bigger-but-do-they-work_12960/.

[3] Marcus, supra note 2.

[4] Id. Roughly ninety percent of people who sign up for a MOOC fail to complete them for one reason or another. Id.

[5] Ada Meloy, Legal Watch: Who Owns Your MOOCs? Updating Intellectual Property for the Modern Era, Am. Council on Educ. (May 1, 2013), http://www.acenet.edu/the-presidency/columns-and-features/Pages/Legal-Watch-Who-Owns-Your-MOOCs.aspx.

[6] Pappano, supra note 1.

[7] Meloy, supra note 5.

[8] Id.

[9] Id. However, this may be subject to some level of alteration when it comes to university, state, or federal grants for the purposes of research and discovery. See id. (discussing the educational institution’s interest in a MOOC based on the level of resources provided by the institution to the professor for its development).

[10] Id.

[11] See, e.g., Weinstein v. Univ. of Ill., 811 F.2d 1091 (1987) (holding that faculty members own a copyright interest in their scholarly articles). Id.

[12] See Terms of Use, Coursera (Jan. 2, 2014), https://www.coursera.org/about/terms (last visited Sept. 26, 2014); Terms of Service, Udacity (Nov. 14, 2013), https://www.udacity.com/legal/tos (last updated June 18, 2014); Terms of Service, edX (Sept. 17, 2013), https://www.edx.org/edx-terms-service (last updated Apr. 30, 2014).

[13] 17 U.S.C. § 107 (2014) (providing an exception for use of copyrighted material for “educational” purposes, amongst others).

[14] See id.

[15] What Campus Leaders Need to Know About MOOCs, Educause (2012), available at http://net.educause.edu/ir/library/pdf/PUB4005.pdf.

[16] Depending on the level of funding given to the professor, of course.

[17] Peter Schmidt, AAUP Sees MOOCs as Spawning New Threats to Professors’ Intellectual Property, Chronicle of Higher Educ. (June 12, 2013), http://chronicle.com/article/AAUP-Sees-MOOCs-as-Spawning/139743/.

[18] Id.

[19] Kenneth Crews, MOOCs, Distance Education, and Copyright: Two Wrong Questions to Ask, Columbia U. (Nov. 9, 2012), http://copyright.columbia.edu/copyright/2012/11/09/moocs-distance-education-and-copyright-two-wrong-questions-to-ask/.

[20] The TEACH Act: New Roles, Rules and Responsibilities for Academic Institutions, Copyright Clearance Ctr., http://www.copyright.com/media/pdfs/CR-Teach-Act.pdf (last visited Sept. 29, 2014).

[21] Ry Rivard, Who Owns a MOOC?, Inside Higher Ed (March 19, 2013), http://www.insidehighered.com/news/2013/03/19/u-california-faculty-union-says-moocs-undermine-professors-intellectual-property.

[22] See id.

[23] Id.

[24] See generally Schmidt, supra note 17.

[25] Megan W. Pierson, Robert R. Terrell & Madelyn F. Wessel, Massive Open Online Courses (MOOCs): Intellectual Property and Related Issues, Nat’l Ass’n of Coll. and Univ. Attorneys 1–2 (June 19, 2013), available at http://www.higheredcompliance.org/wp-content/uploads/2013/09/AC2013_5G_MOOCsPartI1.pdf (citing Copyright Act of 1976, 17 U.S.C. Sections 201(b); “University of Virginia Policy: Ownership Rights in Copyrightable Material” (2004) (asserts university ownership interest under work for hire doctrine and cedes ownership of scholarly works “such as journal articles, books and papers” but does not include course materials) “Stanford University Research Policy Handbook” Section 9.2 (includes work for hire doctrine and provides that courses taught and courseware developed for teaching at Stanford belong to the university); University of Chicago, Copyright Policy for Faculty and Other Academic Appointees (2012) (concerning copyrightable works involving new information technologies, the university owns the intellectual property the faculty create at the University).

[26] Id. at 2-3.

[27] Clarisse Peralta, Online Courses Raise Intellectual Property Concerns, The Stanford Daily (Nov. 1, 2012), http://www.stanforddaily.com/2012/11/01/intellectual-property-concerns-for-moocs-persist/.

[28] MOOCs: The Fall of the Ivory Tower?, Economist (Aug. 1, 2013), http://www.economist.com/blogs/schumpeter/2013/08/moocs-fall-ivory-tower.

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