The Obama Administration Rescinds Old Regulations Affecting Provider Conscience Laws

By Melissa Dizon, Albany Government Law Review Class of 2011

Introduction

On February 18, 2011 the United States Department of Health and Human Services announced its new rule regarding health care and conscience clauses.[1]  The new rule replaces a controversial rule that the Bush Administration issued in 2008, during George W. Bush’s  last days in office.[2]  The new rule ensures that the law protects health care providers who object to performing or assisting an abortion, while eliminating confusion of the previous rule that the definition of abortion also included contraception.[3]  This is undoubtedly a point for the pro-choice faction, but one can imagine it will spark the conscience clause debate anew.

Continue reading “The Obama Administration Rescinds Old Regulations Affecting Provider Conscience Laws”

Burdened by Life: A Brief Comment on Wrongful Birth and Wrongful Life

Written by Brady Begeal, Topics Chair, Albany Government Law Review Member

Introduction

In Roe v. Wade, the United States Supreme Court held that “the right to privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”[1] Over the past several decades, prenatal torts like wrongful birth and wrongful life have developed from the judicially recognized right to have an abortion.  Nearly all of the states recognize wrongful birth claims, and four accept wrongful life claims.[2] What do these two actions entail?  Although there are many permutations of how either action can arise, and sometimes they carry a different label, a typical fact pattern for both actions goes as follows.

A woman becomes pregnant and begins the typical process for pre-natal care.  She goes to the doctor for check-ups and the doctor monitors the pregnancy and guides the expecting mother through each stage.  Then, during the pregnancy, a risk that the unborn child will be born with birth defects becomes apparent to the doctor.  At some point, the doctor acts negligently in some way, perhaps by a failed diagnosis, failing to proscribe the proper course for the woman to take, proscribing an improper method, or simply failing to warn the mother of the risks of which the doctor is aware.  Finally, the woman gives birth, but the baby is born with some kind of severe birth defect or impairment.  This is where the two actions diverge.

An action for wrongful birth is brought by the mother.  Essentially, she argues that but for the negligence of the doctor, she would have decided to have abortion and terminated the pregnancy.[3] The mother argues that she has lost a right to which she is entitled to; the right to make an informed decision as to whether or not to have a child with birth defects.  Now, since the child has been born, and born with birth defects, the parent or parents demand damages associated with having to raise a disabled child.

Continue reading “Burdened by Life: A Brief Comment on Wrongful Birth and Wrongful Life”

How Necessary Is the Necessity Defense? A Look at the Scott Roeder Trial and the Misuse of Mitigating Justifications

Valerie Lubanko, Government Law Review member          

            On Friday, January 29, 2010, it took jurors only thirty-seven minutes to convict Scott Roeder of first-degree murder for the death of George Tiller, a doctor who performed late term abortions.[1]  Roeder, a vehement pro-life abortion opponent, admitted during trial to planning the murder of Dr. Tiller for several years, and that he had brought a gun to the church Dr. Tiller attended on Sundays until he finally succeeded in shooting the Doctor in the head on May 31, 2009.[2]  Roeder was his only witness in his defense,[3] so it would seem that this was an open-in-shut case for the jurors to decide whether Roeder’s premeditated shooting met the elements of the crime.  However, this case has not only fueled the debate in the political and religious worlds between pro-life and pro-choice supporters, but it has also raised eyebrows in the legal world as well.  This is because Roeder tried to invoke the necessity defense to have the charges mitigated from first-degree murder down to voluntary manslaughter.[4]

            Under the Model Penal Code, the necessity defense is categorized as a “Choice of Evils” justification, in which the defendant commits a crime in order to avoid a “harm or evil” that is greater than the one being committed.[5]  Many states follow the Model Penal Code in its treatment of the necessity defense, while other states, such as New York, do not recognize the offense if the defendant is “in any way at fault for ‘occasion[ing]’ or ‘develop[ing]’ the necessity.”[6]  (The Model Penal Code presents a lower bar for the defendant, as it only denies the defense if the defendant was “reckless” or “negligent” in creating the situation that requires the defense.)[7]  Kansas[8], like many other states, has not adopted the necessity defense in any respect.[9]   

Regardless of this, Roeder still invoked the defense, stating that the he shot Dr. Tiller “[b]ecause of the fact preborn children’s lives were in imminent danger.”[10]  Sedgwick County Judge Warren Wilbert, who was the presiding judge in this case, ruled that Roeder’s necessity defense could not be used because “the harm the defendant claims to be avoiding through his . . . actions is a constitutional and legal activity, and the defendant broke the law.”[11]  However, Judge Wilbert did “leave the door open” regarding Roeder’s self-defense argument, in which claimed he was justified in his actions because he shot Dr. Tiller in defense of another (the “preborn children”).[12]  Judge Wilbert stated that he needed more evidence to rule on the matter.[13]  As it played out, the only evidence that was presented was Roeder’s own testimony that he planned and shot Dr. Tiller.  Because of this, Judge Wilber shut the evidentiary door he opened by denying Roeder’s request to give the jury an instruction to take into account Roeder’s motives in shooting Dr. Tiller, and only instructed them on the elements of first-degree murder.[14]   

            Even though Judge Wilbert eventually ruled against Roeder’s justification defense, the door he allowed open may have invited a host of arguments that will distort and pervert the law of justification as a mitigating doctrine. In fact, Harvard Law Professor Alan Dershowitz states that Roeder’s defense is “an absurd approach to the law that would open the door to the most dangerous extension of the defense of imperfect necessity.”[15]  More generally, it has been written that “[n]ecessity inherently privileges any legal violation that provides an individual or social benefit without imposing corresponding harm on another person.”[16]  If this is the case, it would seem that our legal system should not offer such an option as a defense, as the Scott Roeder’s of the world may continue to try and abuse it.    

Continue reading “How Necessary Is the Necessity Defense? A Look at the Scott Roeder Trial and the Misuse of Mitigating Justifications”

Super Bowl Commercial Raises First Amendment Concerns

Fatin Haddad, Government Law Review member

            According to FOX News, a commercial that is approved to air during the Super Bowl is stirring up quite a controversy.[1]  College football phenomenon, Tim Tebow, and his mother are scheduled to appear in a pro-life commercial during the Super Bowl.[2]  The commercial is being funded by a conservative, Christian group—known to the public as Focus on the Family—and the message is a recounting of Mrs. Tebow’s decision between her life and the life of her unborn child, which turned out to be her Heisman Trophy winning, star quarterback and heartthrob son Tim Tebow, despite doctors’ suggestions to abort the pregnancy due to the serious risk of death she faced in carrying the child to term.[3] 

          While Mrs. Tebow was pregnant with her son Tim she went on a mission trip to the Phillippines and contracted a serious infection which doctors feared would kill her if she did not abort the pregnancy.[4]  She made the choice to carry the child to term, despite the risk of her own death, but yet her son was born and grew to be one of the most talented college football quarterbacks of his time.  This true story will be the content of the commercial, and the underlying message is said to be—by Focus on the Family—focused on “celebrating families.”[5]  Pro-choice women’s groups, such as Women’s Media Center, however, seem to think differently as they have voiced concerns that this commercial may lead to anti-abortion retaliation in the form of violence towards “reproductive health providers and their patients,” and should therefore be banned.[6]  Several groups have joined the cause, rallying together to petition CBS to ban the commercial as well.[7]  

         The argument made by the women’s groups, who are protesting against the commercial, is primarily based on the fact that CBS has had a “long history” of banning political advertisements; however, CBS replied that it has changed its policies recently and thus the commercial is consistent with its current standards.[8]  In light of the current dilemma regarding the highly controversial topic of abortion—which has historically divided Courts, politicians, and even every day citizens—there are Constitutional considerations that make for an interesting perspective on which way the scale of freedom of speech should tip between the women’s rights groups and the Tebows.

Continue reading “Super Bowl Commercial Raises First Amendment Concerns”