Tag Archives: texas

Religion, privacy, and locator chips: Extralegal factors and decision-making

National Public Radio reported on a new federal lawsuit out of Texas on Monday, December 17, 2012.[1]  On the 17th, a federal judge will hear a case dealing with an experimental program that places locator chips into student IDs.  The motivation for the school is monetary.  Attendance equals dollars and the chips provide more accurate counts of how many students are on school grounds.  For money strapped school districts, this is a way to squeeze a few more dollars out of the federal government.  The school district in Texas estimates gaining 1.7 million dollars out of a program that cost between 260,000 to 500,000, according to the two NPR stories.

However, some students and parents are challenging the use of the locator chip.  One argument is that it violates the freedom of religion.  One evangelical student believes that the chip is analogous to the ‘mark of the beast’ discussed in Revelations.  The chip program is to this family of evangelicals the same as the flag salute or school prayer is to Jehovah’s Witnesses or a school prayer was to Engel (see Minersville v. Gobitas (1940); West Virginia State Board of Education v. Barnette (1943); Engel v. Vitale (1962)).  Other parents and students challenge the chip program as a violation of the right to privacy.

A classroom discussion of this case last week would probably be a good case to discuss the intent of the first amendment and the balancing approach that the courts tend to use when dealing with schools and their role as parens patriae.  The school claims that the chips will be used for attendance and not monitoring students whereabouts on a constant basis.  However, the motivation for the program is monetary and that definitely ranks below the preferred freedoms.

However, while the motivation may have been monetary, in the wake of the tragedy in Newtown, CT, the school district may have a more compelling rationale for keeping the chips—the ability to locate each and every student during a crisis and after a crisis.  Even if the attorneys for the school district did not prepare to argue the safety interest, the facts of the case surely will bring these events to mind and solidify the school district’s interest when balanced against the other fundamental rights.  The safety interest, even more so than a policy to protect students from drugs and the drug culture (Morse v. Frederick (2007), again would be hard to ignore.  This case may, in the end, be an excellent example of extra-judicial factors beyond personal preferences influencing judicial decision-making.

 

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What is an undue burden?

Recently in Texas[1], the Texas House of Representatives passed a bill that requires women to undergo a sonogram prior to an abortion.  This procedure must occur 1-3 days before the abortion.  After viewing the image and hearing an explanation of it, she then could have her procedure after waiting at least 24 hours.

At first blush, this bill seems like a fairly innocuous invasion of privacy rights similar to many of the regulations found constitutional in the Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) case, although it is doubtful these same regulations would have passed muster under the trimester framework.  Consideration of this bill reveals that while the majority did not overturn Roe v. Wade, 410 U.S. 113 (1973) in Casey, the newer precedent provides a great deal more leeway to the states to require various types of regulations including more stringent types of informed consent i.e. Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, (1976). (Recall, this case upheld the “core” of Roe and adopted O’Connor’s undue burden test in lieu of Blackmun’s trimester framework.)   After all, a sonogram provides a clinician with concrete information about the current level of embryonic growth.  There is no guesswork required, so this procedure avoids the problem of speculation noted by Powell in Akron v. Akron Center for Reproductive Health, Inc. 462 U.S. 416.  Again, prima facie, this requirement seems to place no undue burden on the woman, as an early sonogram can be performed in a doctor’s office or a clinic.

However, early sonograms are not the typical sonogram as noted by Representative Carol Alvarado during floor debate on the bill.[2]  An early ultrasound requires vaginal insertion of a medical probe.  The procedure is more invasive and uncomfortable, although not medically risky.  The larger question is whether this procedure would be an undue burden.  Since the undue burden test as written is vague, and the Court has rarely utilized the new standard, how do the lower courts apply it to this situation?  The context of this developing situation shows the wisdom of Scalia’s critique of the new standard, “I am certainly not in a good position to dispute that the Court has saved the “central holding” of Roe, since to do that effectively I would have to know what the Court has saved, which in turn would require me to understand (as I do not) what the “undue burden” test means.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)

Or if this bill passes, will it be challenged under a different variant of the right to privacy?  Is the state requiring a woman to undergo a medical procedure?  Does this violate the ancient right to refuse medical treatment?

Additionally, there is an issue of cost.  Who will foot the bill for the procedure?  If it is the woman or her insurance company, does this financial burden create an undue burden?  This question can easily seep into issues of federalism regarding the ACA and the role of Texas requiring a test that will affect a federal program.[3]

 

UPDATE: http://blogs.wsj.com/law/2011/10/26/court-blocks-ultrasound-requirement-in-nc-abortion-law/?mod=WSJBlog&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+wsj%2Flaw%2Ffeed+%28WSJ.com%3A+Law+Blog%29&utm_content=Google+Feedfetcher


[2] Her exact words were this is not your typical “jelly on the belly”.

[3] In July of 2011, the law was challenged by the Center for Reproductive Rights.  The CRR takes a different tack here and challenges based upon First Amendment rights of speech between a doctor and a patient.  http://www.ama-assn.org/amednews/2011/07/18/gvsc0718.htm accessed on August 5, 2011.

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