Constitutional Law Class Notes 4/7/04


We’re in 344 at 3 PM.  Foley will stick around after the second session.  What about the final exam?  It will be take-home.  It hasn’t been written yet.  There’s not much to tell at this point.  It will likely be a 24, 48, or 72 hour period.  The start time of the Constitutional Law exam could be as early as the moment that the Legislation exam is finished, or maybe a little later.  It will be completely open books and open notes.  We’ll turn in a typed, word-processed product at the time that would have been the end time of an in-class Constitutional Law exam.  So instead of studying for a long time then cramming your knowledge into 3-4 hours, we’ll studying and write the exam at the same time.  There will be word limits on all questions.  It will be 100% essays based on fact patterns.


Make sure to staple each answer separately because they will be read separately!  Start each answer to a question on a new page separately stapled.  Foley emphasizes our reasoning and analysis as well as our writing skills.  We also won’t need to memorize stuff as much.  That’s much more like the real world!  Keep outlining, try to understand the material, and try to phrase the constitutional question in each case.


Stenberg v. Carhart


Why is this case important?  This is a case that could actually come up in practice.  It’s also a hard case to read.  It’s the most recent abortion decision from the Supreme Court.  This is a hot issue.  There’s also a new statute that Congress has enacted that purportedly bans “partial birth abortion”.  Some see this as a direct challenge to Stenberg.  This statute is in trial in three different districts, including Nebraska.  Does Congress have the power to take a second look at Stenberg?  It’s likely that this current litigation will work its way back to the Supreme Court.  It’s sort of a Marbury v. Madison issue, too!


So why did the Nebraska law fail?  It didn’t contain a health exception, but only a life exception.  Also, the Court believed it might affect two different abortion procedures and not just one.  There’s D & E and D & X.  D & E is much more common.  D & X involves taking the fetus out and then destroying it.  D & E basically involves destroying it then taking it out.


The Nebraska law applied both pre- and post-viability.  But you can’t ban all post-viability abortions unless you have a life and health exception.  To the extent that D & X is necessary to protect the health of the mother, it can’t be banned.  To the extent that it’s not necessary to protect the health of the mother, it can be constitutionally regulated or banned.


Basically, if anybody thinks that D & X is ever medically necessary, then you can’t ban it.  The dissent says that most reputable doctors say that D & X is never really necessary, and so states should be able to outlaw it if they want, especially because D & E is another choice.


O’Connor sided with the liberals in this case.  In Casey, she upheld significant provisions of the Pennsylvania law that the liberals wanted out.


What do we make of all of this?  How do we know, under constitutional law, whether the majority or the dissent is right?  Is there an answer on the face of the Constitution?  No way!  The Constitution is silent.  What about the Court’s precedents?  Kennedy and O’Connor part company and both claim that they are the “true follower” of Casey.  Both O’Connor and Kennedy also claimed to be the true adherents to Powell’s opinion in Bakke.  The two middle-of-the-road justices in the current Court both claim the authority to be the moderate “voice of reason” here.  Is it possible for us as lawyers to make a judgment on that debate in terms of which side is being more faithful to the precedent?  Does the precedent provide an answer to the question, or is it sufficiently indeterminate so that both sides can claim to be right?


What is the “undue burden” in Stenberg?  It’s an undue burden on reproductive rights.  One of Scalia’s criticisms is the vague nature of the undue burden test.  Some of the more liberal members don’t like the undue burden test, but made the compromise to get the votes in Casey.  They would prefer the strict scrutiny test.


Washington v. Glucksberg


This is an assisted suicide case.  It’s another sensitive, difficult issue.  Here’s a trick question: what does terminal sedation mean?  If a patient is terminally ill and suffering a lot of pain and needs painkillers, one medical practice is to give increasing doses of painkillers to try to alleviate the pain.  But if the pain is really, really bad and there’s no other form of treatment, in order to give adequate pain medication needed to relieve the pain actually causes the patient to go into a coma (to be sedated).  The only way to take the patient out of the coma would be to withdraw the level of painkiller.  That puts the doctor in a bind.  Addressing pain means the patient must go into a coma.  What doctors will sometimes do in those situations, if it’s according to the patient’s wishes, is that they’ll administer the degree of pain killers necessary to avoid the pain and then cause the coma.  Since that’s irreversible in the sense that the only way to reverse it would be to bring back the pain, then the patient may authorize the doctor to withdraw life support after the coma has been entered into.  So it’s kind of a roundabout way to euthanasia.  Is this the same or different from physician-assisted suicide?  How does that factual question relate to the legal question of the right to physician-assisted suicide and whether there’s no right to terminal sedation?  Can states outlaw terminal sedation if they can outlaw physician-assisted suicide?


With terminal sedation, the patient dies of the original illness (or dehydration) while in physician-assisted suicide death is caused by a drug overdose.  Suicide is not considered acceptable, but refusing treatment is considered acceptable.


It’s hard to read this decision and figure out what the state of the law is in light of this verdict.  This is a 9-0 decision!  But there are lots of different concurrences.  Rehnquist gets five votes, but if you take O’Connor’s concurrence and add it to Breyer’s separate concurrence and the other separate opinions, you’ll see that there are five votes scattered about that go out of their way to address the pain killing and terminal sedation idea.  If you add them up, they seem to say that they are sympathetic to the notion that there would be a constitutional right to receive as much pain medication as you need to avoid pain even if the consequence is that it causes sedation and thus the withdrawal of life support.  However, they would only acknowledge that this right exists for competent patients.


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