scholarly journals Reclaiming Access to Truth in Reproductive Healthcare After National Institute of Family & Life Advocates v. Becerra

2020 ◽  
pp. 175 ◽  
Author(s):  
Diane Kee
Keyword(s):  
Informed Consent ◽  
First Amendment ◽  
The State ◽  
Medical Professionals ◽  
Inaccurate Information ◽  
Unintended Pregnancies ◽  
Disclosure Requirements ◽  
The Supreme Court ◽  
Reproductive Healthcare ◽  
Pro Choice

Crisis Pregnancy Centers (CPCs) are antiabortion organizations that seek to “intercept” people with unintended pregnancies to convince them to forego abortion. It is well documented that CPCs intentionally present themselves as medical professionals even when they lack licensure, while also providing medically inaccurate information on abortion. To combat the blatant deception committed by CPCs, California passed the Reproductive FACT Act in 2015. The Act required CPCs to post notices that disclosed their licensure status and informed potential clients that the state provided subsidized abortion and contraceptives. Soon after, CPCs brought First Amendment challenges to these disclosure requirements, claiming that the state could not compel them to speak a message against their will. In 2018, the Supreme Court decided National Institute of Family and Life Advocates (NIFLA) v. Becerra and constitutionalized CPCs’ efforts to evade regulation from state-mandated compelled disclosures—disclosures not dissimilar to those regularly imposed on other businesses and medical professionals. Although CPCs use the guise of professionalism to increase their credibility, they are not held to the same standards as actual medical professionals. States can force abortion providers to violate ethical codes by requiring them to give patients medically inaccurate information as “informed consent,” yet CPCs cannot be compelled to say anything because they are not real professionals. This Note argues that while there are striking parallels between abortion-related informed consent laws and compelled informational disclosures like the CPC disclosures at issue in NIFLA, the Court has refused to treat pro-choice speech in a manner similar to antiabortion speech. Moreover, though NIFLA has drastically limited the types of CPC regulations that pro-choice governments can implement, there are still ways in which these states can and should curb CPCs’ deceptive practices.

The Constitution and Campaign Finance Regulation after Buckley v. Valeo

1976 ◽  
Vol 425 (1) ◽  
pp. 124-133 ◽  
Author(s):  
Albert J. Rosenthal
Keyword(s):  
Supreme Court ◽  
First Amendment ◽  
Campaign Finance ◽  
Public Financing ◽  
Finance Reform ◽  
Campaign Finance Reform ◽  
Legislative Action ◽  
Disclosure Requirements ◽  
Wide Range ◽  
The Supreme Court

In a decision virtually unprecedented in scope, the Supreme Court, in Buckley v. Valeo, decided January 30, 1976, has ruled on a wide range of constitutional questions generated by federal campaign finance reform legis lation. In brief, limitations on contributions, reporting and disclosure requirements, and public financing of campaigns have been upheld as at least constitutional on their face, although the door is still open to attacks based on specific evidentiary showings of unconstitutional effects in particular situations. Limitations on expenditures—independently made on behalf of candidates, by candidates themselves out of their own funds, or in the course of the candidates' campaigns—have all been held unconstitutional, as infring ing upon rights under the First Amendment. The choices available for future legislative action, both federal and state, are henceforth likely to be limited in the light of the con straints to be found in the holdings and implications of this case.

The First Amendment and Physician Speech in Reproductive Decision Making

2015 ◽  
Vol 43 (1) ◽  
pp. 22-34 ◽  
Author(s):  
Sonia M. Suter
Keyword(s):  
Decision Making ◽  
Informed Consent ◽  
First Amendment ◽  
State Legislatures ◽  
Reproductive Decisions ◽  
Planned Parenthood ◽  
Police Powers ◽  
Reproductive Decision ◽  
Reproductive Decision Making ◽  
The Supreme Court

The regulation of medicine has long been recognized as within the state’s police powers. Yet when the state regulates physicians’ professional speech, it potentially raises First Amendment concerns. Nowhere is this truer than in the abortion context, where state legislatures have attempted to influence women’s reproductive decisions with informed consent requirements. Although the Supreme Court, in Planned Parenthood of Se. Pa. v. Casey, found a mandated disclosure provision constitutional some 20 years ago, it offered little to clarify the scope and reach of the First Amendment issues that arise with abortion informed consent laws.Since Casey was decided, legislatures have enacted a range of informed consent laws that impose even more stringent abortion informed consent regulations than the provisions at issue in Casey.

scholarly journals Abortion and Compelled Physician Speech

2015 ◽  
Vol 43 (1) ◽  
pp. 9-21
Author(s):  
David Orentlicher
Keyword(s):  
Informed Consent ◽  
Supreme Court ◽  
First Amendment ◽  
Freedom Of Speech ◽  
The Supreme Court ◽  
The Right ◽  
Required Disclosures

As states increasingly impose informed consent mandates on abortion providers, the required disclosures bring two well-established legal doctrines into conflict — the First Amendment’s freedom of speech and the physician’s duty to obtain informed consent.On one hand, the First Amendment provides for a broad freedom of speech, under which government may neither prevent people from voicing their own views, nor compel individuals to voice the government’s views. As the Supreme Court observed in Wooley v. Maynard, the First Amendment protects “both the right to speak freely and the right to refrain from speaking at all.” When legislatures tell physicians what they must disclose to their patients, the physicians lose their right not to speak.

A Note on Mandela v Executors, Estate Nelson Mandela 2018 (4) SA 86 (SCA) and the Conundrum around the Customary Marriage between Nelson and Winnie Mandela

2019 ◽  
Vol 34 (2) ◽  
Author(s):  
Sipho Stephen Nkosi
Keyword(s):  
Supreme Court ◽  
The State ◽  
The Other ◽  
Customary Law ◽  
Eastern Cape ◽  
High Court ◽  
Nelson Mandela ◽  
The Supreme Court ◽  
Court Of Appeal

The note is about the appeal lodged by the late Mrs Winnie Madikizela-Mandela to the SCA against the decision of the Eastern Cape High Court, Mthatha, dismissing her application for review in 2014. In that application, she sought to have reviewed the decision of the Minister of Land Affairs, to transfer the now extended and renovated Qunu property to Mr Mandela and to register it in his name. Because her application was out of time, she also applied for condonation of her delay in making the application. The court a quo dismissed both applications with costs, holding that there had been an undue delay on her part. Mrs Mandela then approached the Supreme Court of Appeal, for special leave to appeal the decision of the court a quo. Two questions fell for decision by the SCA: whether there was an unreasonable and undue delay on Mrs Mandela’s part in instituting review proceedings; and whether the order for costs was appropriate in the circumstances of the case. The SCA held that there was indeed an unreasonable delay (of seventeen years). Shongwe AP (with Swain, Mathopo JJA, Mokgothloa and Rodgers AJJA concurring) held that the fact that there had been an undue delay does not necessarily mean that an order for costs should, of necessity, particularly where, as in this case, the other litigant is the state. It is the writer’s view that two other ancillary points needed to be raised by counsel and pronounced on by the Court: (a) the lawfulness and regularity of the transfer of the Qunu property to Mr Mandela; and (b) Mrs Mandela’s status as a customary-law widow—in relation to Mr Mandela.

The Right to Housing: Challenges Associated with the ‘Waiting List System’ Ekurhuleni Metropolitan Municipality V Various Occupiers, Eden Park Extension 5 2014 3 SA 23 (SCA)

2017 ◽  
Vol 30 (1) ◽  
pp. 112-121
Author(s):  
Shamier Ebrahim
Keyword(s):  
Supreme Court ◽  
Waiting Lists ◽  
The State ◽  
Waiting List ◽  
Allocation Process ◽  
The Supreme Court ◽  
The Right ◽  
The Impact ◽  
Court Of Appeal

The right to adequate housing is a constitutional imperative which is contained in section 26 of the Constitution. The state is tasked with the progressive realisation of this right. The allocation of housing has been plagued with challenges which impact negatively on the allocation process. This note analyses Ekurhuleni Metropolitan Municipality v Various Occupiers, Eden Park Extension 51 which dealt with a situation where one of the main reasons provided by the Supreme Court of Appeal for refusing the eviction order was because the appellants subjected the unlawful occupiers to defective waiting lists and failed to engage with the community regarding the compilation of the lists and the criteria used to identify beneficiaries. This case brings to the fore the importance of a coherent (reasonable) waiting list in eviction proceedings. This note further analyses the impact of the waiting list system in eviction proceedings and makes recommendations regarding what would constitute a coherent (reasonable) waiting list for the purpose of section 26(2) of the Constitution.

PERSINGGUNGAN KEWENANGAN MENGADILI PENYALAHGUNAAN DISKRESI ANTARA PENGADILAN TUN DAN PENGADILAN TIPIKOR / INTERCEPTION OF JUSTICE AUTHORITY OF DISCRETION ABUSE BETWEEN ADMINISTRATION COURT AND CORRUPTION COURTS

2018 ◽  
Vol 7 (2) ◽  
pp. 213
Author(s):  
Budi Suhariyanto
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Administrative Law ◽  
The State ◽  
Government Officials ◽  
Criminal Process ◽  
The Supreme Court ◽  
State Finance ◽  
The Law ◽  
To Receive

Diskresi sebagai wewenang bebas, keberadaannya rentan akan disalahgunakan. Penyalahgunaan diskresi yang berimplikasi merugikan keuangan negara dapat dituntutkan pertanggungjawabannya secara hukum administrasi maupun hukum pidana. Mengingat selama ini peraturan perundang-undangan tentang pemberantasan tindak pidana korupsi tidak merumuskan secara rinci yang dimaksudkan unsur menyalahgunakan kewenangan maka para hakim menggunakan konsep penyalahgunaan wewenang dari hukum administrasi. Problema muncul saat diberlakukannya Undang-Undang Nomor 30 Tahun 2014 dimana telah memicu persinggungan dalam hal kewenangan mengadili penyalahgunaan wewenang (termasuk diskresi) antara Pengadilan Tata Usaha Negara dengan Pengadilan Tindak Pidana Korupsi. Pada perkembangannya, persinggungan kewenangan mengadili tersebut ditegaskan oleh Peraturan Mahkamah Agung Nomor 4 Tahun 2015 bahwa PTUN berwenang menerima, memeriksa, dan memutus permohonan penilaian ada atau tidak ada penyalahgunaan wewenang (termasuk diskresi) dalam Keputusan dan/atau Tindakan Pejabat Pemerintahan sebelum adanya proses pidana. Sehubungan tidak dijelaskan tentang definisi dan batasan proses pidana yang dimaksud, maka timbul penafsiran yang berbeda. Perlu diadakan kesepakatan bersama dan dituangkan dalam regulasi tentang tapal batas persinggungan yang jelas tanpa meniadakan kewenangan pengujian penyalahgunaan wewenang diskresi pada Pengadilan TUN.Discretion as free authority is vulnerable to being misused. The abuse of discretion implicating the state finance may be prosecuted by both administrative and criminal law. In view of the fact that the law on corruption eradication does not formulate in detail the intended element of authority abuse, the judges use the concept of authority abuse from administrative law. Problems arise when the enactment of Law No. 30 of 2014 triggered an interception in terms of justice/ adjudicate authority on authority abuse (including discretion) between the Administrative Court and Corruption Court. In its development, the interception of justice authority is affirmed by Regulation of the Supreme Court Number 4 of 2015 that the Administrative Court has the authority to receive, examine and decide upon the appeal there is or there is no misuse of authority in the Decision and / or Action of Government Officials prior to the criminal process. That is, shortly before the commencement of the criminal process then that's when the authority of PTUN decides to judge the misuse of authority over the case. In this context, Perma No. 4 of 2015 has imposed restrictions on the authority of the TUN Court in prosecuting the abuse of discretionary authority.

James Kraig Kahler v. State of Kansas: On Writ of Certiorari to the Supreme Court of the State of Kansas

2019 ◽  
Author(s):  
Steven J. Twist ◽  
Paul G. Cassell ◽  
Allyson N. Ho ◽  
Bradley Hubbard ◽  
John Ehrett
Keyword(s):  
Supreme Court ◽  
The State ◽  
The Supreme Court

Kansas V. Johnson: On Petition for a Writ of Certiorari to the Supreme Court of the State of Kansas

2020 ◽  
Author(s):  
Paul G. Cassell ◽  
John Ehrett ◽  
Allyson N. Ho ◽  
Bradley Hubbard ◽  
Matthew Scorcio ◽  
...  
Keyword(s):  
Supreme Court ◽  
The State ◽  
The Supreme Court

scholarly journals Special Solicitude: Religious Freedom at America’s Public Universities

Laws ◽  
2021 ◽  
Vol 10 (2) ◽  
pp. 30
Author(s):  
William E. Thro
Keyword(s):  
First Amendment ◽  
Religious Freedom ◽  
Public Universities ◽  
Religious Organizations ◽  
Equal Rights ◽  
Religious Groups ◽  
Religious Expression ◽  
University Campuses ◽  
The Supreme Court ◽  
The Government

Rejecting the Obama Administration’s argument that the First Amendment requires identical treatment for religious organizations and secular organizations, the Supreme Court held such a “result is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations.” (Hosanna-Tabor, 565 U.S. at 189). This “special solicitude” guarantees religious freedom from the government in all aspects of society, but particularly on public university campuses. At a minimum, religious expression and religious organizations must have equal rights with secular expression and secular organizations. In some instances, religious expression and religious expression may have greater rights. The Court’s 2020 decisions in Espinoza v. Montana Department of Revenue, and Our Lady of Guadalupe School v. Morrissey-Berru, reinforce and expand the “special solicitude” of religion. Indeed, Espinoza and Our Lady have profound implications for student religious groups at America’s public campuses. This article examines religious freedom at America’s public universities. This article has three parts. First, it offers an overview of religious freedom prior to Espinoza and Our Lady. Second, it briefly discusses those two cases. Third, it explores the implications of those decisions on America’s public campuses.

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