when pigs fly … expect the unbelievable

Archive for March 2016

Our understandings and feelings about birth and death are pretty fundamental and pretty private, let’s face it.  they are sensitive issues that we may or may not want to share our feelings on.  That is why the opinion of Washington v. Glucksberg, a 1997 case out of the US Supreme Court is so important.

Currently all states prohibit assisted suicide, save Oregon and Vermont.  Yet most of us know terminally ill individuals who retain little quality of life and seek to die with dignity.  How you feel about this may certainly be a private matter.  But for Dr. Harold Glucksberg and others it was clear that assisted suicide should be an option for the terminally ill.  At the time, Washington state had a state statute which made “promoting a suicide” a felony.  (Currently Washington has a Death With Dignity Act which was approved in 2008 by 57.82% of those voting  It requires self-administration of lethal medication but the medication can be prescribed by a physician without legal jeopardy.)  Glucksberg sought the right to honor the wishes of a terminal patient who sought his assistance and challenged Washington state’s assisted suicide ban.  The legal theory raised by Glucksberg was that a state cannot prohibit or deprive persons of “life, liberty, or property without due process of law.”   Glucksberg argued that the right of liberty must include the right of a competent adult to choose to die, and to seek assistance in implementing that decision.

The US Supreme Court found that the Due Process Clause does not prevent a government from regulating all conceivable liberties, only certain fundamental liberties rooted in the nation’s history and traditions.  The Court argued that Anglo-American law and English tradition had prohibited assisted suicide since 1400; thus there was no reason to believe that the framers of the Constitution intended to contravene this tradition and establish a right to die.  Therefore, the Court held that it was not unconstitutional for a state to criminalize assisted suicide.

States may, however, allow assisted suicides if they wish.

Oregon passed a Death with Dignity Act, the first state to do so, in 1997.  The Bush administration challenged the legislation in Gonzales v. Oregon,  but the  US Supreme Court ruled, in January of 2006, that it would not overturn the statute (6 to 3 vote).  Therefore, for the foreseeable future, whether you can exercise your right to death with dignity may depend on where you live.


A month ago I told you that I wanted to discuss some big issues with you, based on books by Michael Trachtman and James W. Ely, Jr.  And I do.  I started with the right to privacy which is an incredibly important issue for me.  But I diverted to “comfort women” and now I am going to divert again.

We could very well have a female secretary-general of the United Nations in January 1917.  Seven (7) individuals have officially declared for the position, and three (3) of those are women:  Irina Bokova of Bulgaria, Vesna Pusic’ of Croatia, and Natalia Gherman of Moldova.  You can check out their bios by going to the following websites:



The candidates, as you may have noticed, are all from countries that we, here in the West, seldom think about:  Bulgaria, Croatia, Moldova.  There is a reason for that.  The UN has an unwritten rule of regional rotation for secretary-general and it is now Eastern Europe’s turn to produce a secretary-general.

How do you get elected secretary-general?  From the little I have read, it sounds like a “brokered convention” to me — a concept that few under 50 may even comprehend.  But in short, one of the nominees will be acceptable to the five (5) permanent member states with veto power (China, France, Russia, the UK and the US), who will send that name to the UN General Assembly, which historically has rubber stamped the Security Council’s selection.

Back to “important issues” in the next post.

So for most of the late ’70s and early ’80s, and even into the ’90s somewhat, courts and legislatures allowed women to be “let alone” on the very private issue of abortion.  For example, the US Supreme Court struck down a legislative restriction requiring a woman to obtain the consent of her husband to have an abortion before it could be performed.  In 1992, in Planned Parenthood v. Casey, the Court reaffirmed its commitment to Roe and said that it would invalidate restrictions, legislative or common law, that placed an “undue burden” on the right of a woman to obtain an abortion before the fetus attains viability.

While jurists and us common folk alike wonder who the replacement for Justice Scalia, recently deceased, will be, and how the new appointment may shift the balance of power at the Court, a reversal of Roe v. Wade would not be the death knell of abortions in America.  Essentially, Roe declared that a state statute prohibiting abortion is unconstitutional.  A reversal would leave the states in the status quo ante before the decision.  States could outlaw abortions, or not.  While your familiarity with your jurisdiction can give you a solid understanding of whether you can obtain an abortion there if Roe is reversed, the fact is that somewhere in America there will be a state that will allow an American woman the right to be “let alone” on the issue of abortion.

 The Fifth Circuit Court of Appeals, sitting as a 3-judge panel, just gave Louisiana the go ahead to enforce Act 620 of the 2014 legislative session, which requires physicians who perform abortions to have admitting privileges at hospitals within 30 miles of the abortion clinic.  The enforcement of this act has a chilling effect on the efficacy of Row v. Wade for the women of Louisiana, resulting in the anticipated closing of all but one (1) of the state’s facilities.  United States District Judge John deGravelles had struck down the law as unconstitutional and blocked its implementation during the period of appeal.

The 3-judge panel included Judge Jennifer Walker Elrod, Judge Edith Brown Clement and Judge Leslie Southwick, a Mississippian.

Opponents warned that this would result in 90% of Louisiana women being further away than at least 150 miles from an abortion provider.

The legislation is similar to Texas legislation that is before the US Supreme Court right now.  The 5th Circuit has issued two admitting privileges decisions — making this the third.  In the Texas case, the 3-judge panel voted similarly to this one, with Judge Elrod being on both panels.  In the Mississippi case, which is on appeal via a writ of certiorari which has not been granted yet, a similar law was struck down as being unconstitutional by another 5th Circuit 3-judge panel which included Mississippian, Judge E. Grady Jolly.

The differences in reasoning are fundamental.  Those who would call these types of admitting privileges legislations unconstitutional  believe that Roe v. Wade allows American women to seek and obtain abortions under certain conditions and that a state cannot deprive a woman of that right by making it more difficult for her.  The reasoning in the Mississippi case was that a state could not foist its responsibility for allowing a woman to exercise her rights under Roe v. Wade onto another state by precluding her from those rights in her own state of residence.

Those who believe this type of legislation is constitutional hark paternalistic — ensuring the health and safety of the woman that the admitting privilege legislation should protect — the woman seeking an abortion.  It is seen by many as just another method to deprive women of the rights granted under Row.

Judge Posner of the 7th Circuit Court of Appeals, a much respected jurist, in striking down a Wisconsin admitting privilege law as unconstitutional, wrote as follows in the majority opinion in Planned Parenthood of Wisconsin v. Shimel:

“Until and unless Roe v. Wade is overruled by the Supreme Court, a statute likely to restrict access to abortion with no offsetting medical benefit cannot be held to be within the enacting state’s constitutional authority.  The courts have ‘an independent constitutional duty to review [a legislature’s] factual findings where constitutional rights are at stake.  Gonzales v. Carhart, 550 US 124, 163-65 (2007).  The Wisconsin statute does not “further the legitimate interest” of the state in advancing women’s health, and it was not he ‘reasonable for [the legislature] to think’ that it would.  Id. at 146, 160.”

The factual findings that the 7th Circuit reviewed were similar to those provided in the Mississippi and Louisiana cases by those who oppose the admitting privilege legislation:  that complications from an abortion are both rare and rarely dangerous, scholarly literature demonstrate that the rate of complications is well below one-twenthieth of 1%.

I can’t help but think that I am entitled to take a risk if I choose to do so.  Do not try to protect me from myself.

You know I am in the middle of blogging about important US Supreme Court cases that affect your life everyday, and specifically, about Roe v. Wade, but I have to stop.  For today.

You see, I do not worry much about how women in other countries are treated.  It’s not that I don’t care.  It’s just that I think we need to get our own USA ducks in a row first.

But I couldn’t let this pass:  Last month Philippine President Benigno Aquino was visited by Japanese Emperor Akihito.  As the Emperor was welcomed into the Malacanang Palace, there were a group of protesters there to object.  Most of these protesters were women…old women…in their eighties.

The visit from the Emperor was less than one month after the Japanese government agreed to provide $8.3 million in government funds to support a South Korean foundation that aids comfort women.

If you don’t know what comfort women are, they are unfortunate women in countries occupied by the Japanese military in World War II, including women from Korea, China and the Philippines, who were forced to provide sexual services to personnel in the Japanese Imperial Army.  Estimates of the number of comfort women range from 80,000 upward to as many as 250,000, including some 1,000 young girls (13-15 years) who were sold into sexual slavery.  While the Japanese government denied any responsibility for the centers that housed these women, in 1992 documents were located that show direct links between the military.  The first response:  these centers were created by patriotic “middlemen” — not the army itself.

Hiding behind middle men was effective for only so long.  n 1993 the Japanese acknowledged the system of comfort women, but did not apologize.  Later, the Japanese funded the foundation to aid the South Korean women, but did not apologize.  The South Korean women agreed that both sides would refrain from criticizing the other in the international community.

The 80 year old protesters don’t want the same deal.  They want an apology.  They want to be heard.  They want their ordeal to be recognized by the Japanese government, the Japanese nations, the world.

According to Filipino historian Ricardo Jose, a professor at the University of the Philippines, “Violence against one woman is violence against all women…the Philippine case [of comfort women] is just as significant [as South Korean comfort women].

While the Emperor was visiting, he did not mention the comfort women or sexual slavery, but he did express remorse for the actions of the Japanese military during WWII.

To late, and much too little.


March 2016
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