Tuesday, January 31, 2012

JURIST - Forum: Redefining Roe: Informed Consent and the Abortion Debate

Freedom of choice vis-a-vis abortion is not a human right of Filipinas in the Philippines. In fact, abortion per se is a crime under its Revised Penal Code and is forbidden by specific provisions of the 1987 Constitution on family life and the rights of the unborn child. This is not the state of the law and jurisprudence on the matter in the USA. Read the article below.

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Redefining Roe: Informed Consent and the Abortion Debate

JURIST Guest Columnist Mary Ziegler of Saint Louis University School of Law says that a recent decision by Fifth Circuit gives broad support for laws requiring physicians to provide certain information to patients requesting an abortion, and that this represents a shift in the debate over abortion rights from discussions of a "right to life" toward a "right to know"...

In the latest round of litigation in Texas Physicians Providing Abortion Services v. Lakey, a three-judge panel of the US Court of Appeals for the Fifth Circuit vacated an earlier decision enjoining enforcement ofTexas's Women's Right to Know Act [PDF]. The act requires that a physician make the fetal heartbeat audible and perform, explain and display a sonogram to a woman an abortion. After the physician provides the patient with an additional written consent form, she must wait 24 hours before receiving an abortion. Under the act, women may refuse to listen to the fetal heartbeat for any reason. By contrast, unless a woman can prove that she falls within one of three statutory exceptions, she has to view the sonogram presented to her.

The Fifth Circuit weighed and largely rejected two constitutional claims. First, the abortion providers challenging the law suggested that some of its language is impermissibly vague under the Due Process Clause of theFourteenth Amendment . The second and more substantial claim involves providers' First Amendment right against compelled speech. Requiring physicians to perform and describe the results of a sonogram, the argument goes, forces them to endorse an ideological message with which they might not agree. What was striking to me was not the fact that the three-judge panel vacated the injunction. Instead, Lakey is notable for its sweeping endorsement of informed consent abortion restrictions.

This apparent endorsement came in Chief Judge Edith Jones's summary of the supposed lessons of earlier constitutional decisions on informed consent. First, Jones explained, informed consent laws met constitutional muster if they did not constitute an undue burden on a woman's right to choose abortion and if the law required providers to make "truthful, non-misleading, and relevant disclosures." Second, such laws did not really regulate the speech of providers at all. Instead, these measures made up "part of the state's reasonable regulation of medical practice." Finally, Jones concluded, the state's interest in unborn life counted as one of the areas of discussion that the law could require.

Taken in context, Lakey suggests a rejection of most First Amendment challenges to informed consent laws. The most viable strategy for attacking such a law, Lakey implies, involves Roe v. Wade and a woman's right to choose abortion. What of a provider's right against compelled speech? Lakey tells us first that providers reciting the information required by such a law are not speaking at all. Instead, they are practicing medicine, an act that the state has an almost unfettered ability to restrict. As importantly, Lakey defines as relevant (and perhaps true and non-misleading) the state's interest in fetal life. The breadth of this decision impressed even one of the judges concurring with Jones's opinion, who cautioned that the Supreme Court's previous opinions opened "no unfettered pathway for states to suppress abortions through the medium of informed consent."

The potential sweep of Lakey matters partly because the decision comes during a time of renaissance for informed consent antiabortion restrictions. In 2011, 18 states had laws on the books requiring a woman to view a sonogram before an abortion was performed, and just last year, state legislatures introduced 27 additional informed consent bills.

What is behind the growing interest in informed consent laws? The embrace of "right to know" measures figures centrally in two trends that dominate mainstream antiabortion activism. First, informed consent laws reflect the priority that the movement assigns to woman-protective arguments. "Right to know" laws require women to consider much of the evidence and arguments for a right to life, but the rationale for these laws turns on the protection women supposedly require against the adverse consequences of an abortion decision.

Second, and perhaps more importantly, "right to know" laws signal the influence of incrementalism in the mainstream movement. Instead of challenging Roe head on, and instead of directly defending a constitutional right to live, incrementalists seek to chip away at Roe. As one incrementalist described the strategy to me, the movement publicly assumes the legitimacy Roe while working to litigate it slowly to death.

Incrementalism divides the antiabortion movement. Some activists, like those who have sponsored personhood amendments to state constitutions, reject some incrementalist strategies as unprincipled and counterproductive. Nonetheless, as the success of "right to know" laws suggests, incrementalism seems to be on the rise. One of the best ways to chip away at Roe, as Lakey suggests, is to redefine it.

Consider the kind of redefinition involved in "right to know" laws. Statutes like the one at issue in Lakey draw on and rework the constitutional values of choice and autonomy set out in Roe v. Wade andPlaned Parenthood v. Casey . Both decisions suggest that the momentous consequences of an abortion decision for a woman partly justify the constitutional protections the decision receives. If women rear the children they bear, they may lose out on important life opportunities. "Right to know" laws turn this argument on its head. The important consequences of an abortion decision become a justification for restrictions on abortion. The right to choose becomes a right to know.

What lessons can each side draw from Lakey and the informed consent renaissance? For abortion opponents, Lakey signals that some federal courts will be receptive to the new consent laws they champion. For the pro-choice movement, Lakey highlights some of the perils linked to the choice-based framework advocates have advanced. "Right to know" laws partly reflect anxiety and ignorance about how abortion care really works. Supporters of the laws assert that, in order to secure a profit, some providers do not fully inform a woman about what an abortion is. Simply relying on the concepts of rights to choice or equal treatment does not always provide an effective counterargument to these assertions. As importantly, "right to know" laws should remind the pro-choice movement of the ease with which the other side can benefit from the idea of decisional autonomy. Proponents of legal abortion are not the only ones who benefit by claiming to be pro-choice.

Mary Ziegler is an Assistant Professor of Law at Saint Louis University School of Law. Her publications include articles on the same-sex marriage debate, reproductive rights and the history of the American eugenic legal reform movement. Prior to her position at Saint Louis University, she served as the Oscar M. Ruebhausen Fellow in Law at Yale Law School, and as a clerk for Justice John Dooley of the Vermont Supreme Court.

Suggested citation: Mary Ziegler, Redefining Roe: Informed Consent and the Abortion Debate, JURIST - Forum, Jan. 24, 2012, http://jurist.org/forum/2012/01/mary-ziegler-informed-consent.php."

UNHRC: Philippine criminal libel law violates freedom of expression - InterAksyon.com

As far as I know, as a former professor of public international law at FEU, Manila, this is the first time that the UN Committee on Human Rights implementing the provisions of the 1966 International Covenant on Civil and Political Rights has formed a formal opinion urging the Philippine Government to decriminalize its libel law, invoking "freedom of expression" and "freedom of the press". I think there is a pending bill in the Philippine Senate along that line but it is rotting in its archives.

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MANILA, Philippines - In a landmark decision just recently released, the United Nation Human Rights Commission says Philippine laws criminalizing libel is "incompatible with Article 19, paragraph three of the International Covenant on Civil Political Rights (ICCPR)", or freedom of expression.

This UNHRC's view, adopted on October 26, 2011, was expressed in line with a complaint filed by Davao based broadcaster Alex Adonis. Adonis was jailed for more than two years pursuant to a conviction for libel in a complaint filed by former Speaker Prospero Nograles. In a radio broadcast in 2001, Adonis read and dramatized a newspaper report that then Congressman Nograles was seen running naked in a hotel when caught in bed by the husband of the woman with whom he was said to have spent the night with.

In a decision rendered by the Regional Trial Court of Davao, Adonis was sentenced to imprisonment from 5 months and one day to four years, six days and one day imprisonment. In the said decision, the local court concluded: "the evidence was sufficient to prove the authors guilt beyond a reasonable doubt for a malicious, arbitrary, abusive, irresponsible act of maligning the honor, reputation and good name of Congressman Nograles”.

After serving two years in prison, Adonis questioned the compatibility of criminal libel with freedom of expression under Article 19 of the ICCPR. Adonis, through his lawyer, Harry Roque of the UP College of Law and the Center for International Law (CenterLaw), argued that "the sanction of imprisonment for libel fails to meet the standard of necessity and reasonableness. Imprisonment is unnecessary since there are other effective means available for protection for the rights of others."

Adonis also questioned his conviction becasue he was tried absentia when his counsel of record at the RTC withdrew from the case without informing him accordingly.

In ruling in favor of Adonis, the UN body ruled that Adonis rights were violated when he was tried in absentia. Moreover, in ruling that Philippine criminal libel law was inconsistent with freedom of expression, the Committee recalled its General Comment No. 34 which reads: "Defamations laws should not ... stifle freedom of expression. … Penal defamation laws should include defense of truth," adding that "in comments about public figures, consideration should be given to avoiding penalties or otherwise rendering unlawful untrue statements that have been published in error but without malice. In any event, a public interest in the subject matter of the criticism should be recognized as a defense."

"State parties should consider the decriminalization of libel," the UNHRC added.

Adonis' lawyer, Harry Roque, said, "This a very big win for freedom of expression. We expect the Philippine government under President Aquino to comply with the Committee's view and proceed to decriminalize libel and to provide reparations to Adonis for time he spent in prison. No one should be imprisoned for expressing his or her views, full stop."

The Committee ordered the Philippine government to “provide (Adonis) with an effective remedy, including adequate compensation for time served in prison, The State is also under obligation to take steps to prevent similar violations occurring in the future”.

Two Committee members dissented only insofar as the Committee did not expressly order the Philippine government to decriminalize libel. Fabian Omar Salvioli argued that pursuant to Art 2.2 of the Covenant, the "State party undertakes to take all necessary steps, in accordance with constitutional processes, to give effect to right recognized in the Convention." By not ordering the repeal of Philippine libel laws, Salvioli said, "the Committee has missed a clear opportunity expressly and unambiguously to indicate to the State party that it must change its criminal law."

"The Adonis View is the first view of the UN Committee on Human Rights that criminal liable infringes on freedom of expression," Roque said.

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Monday, January 30, 2012

Simple Justice: The Liars' Economy

In the Philippines, lawyer advertising is prohibited. Not so in the highly commercialized culture of the USA and other Western capitalist countries. Shameless is the new bold, so to speak. Read the article below.

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The Liars' Economy

When a person follows me on twitter, I get an email informing me because twitter believes it's important that I know. Rather than insult twitter, I recently decided to open the email and look at their bio. More than half of the time, it informs me that the person is either an "expert" or a "consultant" who is "passionate" about whatever makes them money. I have no clue who the person is, but they want to let others know they're special.

We used to call this sort of conduct "shameless."

A legal marketer whose name eludes me recently wrote that we have a duty to be shameless; "if you don't tell them, how will they know?" Another marketer posted what appears to be a missive under the title, "my meeting with the secretary of state." After some routine puffery, it turns out that the "headline" was a lie, that he tried to meet the secretary of state, but was turned away. His point was about boldness. He shows "chutzpah."

The New York Times ran a story about retailers paying kickbacks to consumers if they wrote positive reviews of their wares.

Some exalt themselves by anonymously posting their own laudatory reviews. Now there is an even simpler approach: offering a refund to customers in exchange for a write-up.
By the time VIP Deals ended its rebate on Amazon.com late last month, its leather case for the Kindle Fire was receiving the sort of acclaim once reserved for the likes of Kim Jong-il. Hundreds of reviewers proclaimed the case a marvel, a delight, exactly what they needed to achieve bliss. And definitely worth five stars.

In Ottawa, Rogers Communications seeks to strike a law, requiring companies to perform "adequate and proper" tests in advance of advertising claims about the performance of a product, as a violation of free expression. It argues that the marketing claims may be absolutely true, but the requirement that they be tested in advance so that they are proven accurate before being disseminated, rather than tested only after being challenged, inhibits freedom.

Walter Olson at Cato writes about New York City Mayor Michael Bloomberg's war against the things he believes to be unhealthy.

But as the New York Times reports, city officials “did not let on that the man shown — whose photo came from a company that supplies stock images to advertising firms and others — was not an amputee and may not have had diabetes.” Instead, they just Photoshopped his leg off, which certainly got the effect they were looking for, albeit at the cost of photographic reality. At an agency developing an ad campaign for a private company, someone might have advised adding a little fine print taking note that the picture was of a model and had been altered, lest the manipulation turn into the story itself, or even attract the interest of federal truth-in-advertising regulators. But the Bloomberg crew probably isn’t worried about the latter, given that their constant stream of hectic propaganda is fueled by generous grants from the federal government itself. Such grants also helped enable a contemplated booze crackdown exposed by the New York Post this month—quickly backed off from after a public outcry—that would have sought to reduce the number of establishments selling alcohol in New York City.

People seem to believe the advertisements without much thought, assuming that the correlation/causation problem must be proven somewhere or they wouldn't say it.

Inexplicably, people still believe that if it's in writing, if it's put out publicly, it must be true. Surely, if it was false, there is some back office somewhere filled with busy elves who would squash it immediately. People aren't allowed to lie, right? It would be scandalous if anyone could say anything to deceive others without recourse.

But there is no back office somewhere filled with busy elves overseeing the accuracy of claims. The mechanism that prevented an economy built on rampant falsehoods and puffery was the fear of being outed as a shameless liar. The mechanism existed within us, as the chance of anyone else calling us out was slim, and only the slightest possibility of being held up for ridicule as a liar was more than sufficient to push the reluctant liar over the edge of truthfulness.

No longer. Shameless is the new Bold. Freed of the constraints of honesty, we rationalize our conduct to justify doing anything it takes to achieve our goals.

One of the premier justifications for the ubiquitous consumer reviews on the internet, whether of lawyers on Avvo or a tchotchke on Amazon, is that it enlightens others. This is only true if they are accurate and honest, but this naive claim was swiftly undermined by those who game the system. We are simultaneously gullible in believing that the information we receive about others is at least reasonably accurate, while pumping out as much puffery as possible about ourselves. All without the slightest bit of shame.

We buy from the best liar, whether it's a gadget case, a refrigerator or a lawyer. It's not really that hard to distinguish the self-aggrandizing liar, yet we can't seem to help ourselves from being attracted to shiny objects and important people.

As despicable as it may be to learn that we've been lied to after buying as thing based on sham reviews, that this same shamelessness has permeated the legal profession is different. Integrity is all we've got, the only justification for our monopoly on the trust given us by clients.

But, you say, everyone else is puffing, lying, scheming and scamming, while you sit there waiting for the phone to ring, with bills to pay and hungry children at home. You say that it takes too long to establish a reputation as a skilled and respected advocate, so you have to create it yourself. You say that creating a few "facts" and omitting a few others can turn you into a rock star. You say the other lawyers are liars, so why should you suffer.

Everyone is a liar today. That's the nature of our economy. That's the nature of our profession.

Not everyone. Granted, it seems that way. Granted, it seems as if the liars are winning the battle, and leaving the honest in the dust. It seems as if no one is terribly bothered by an economy built on lying to each other, as long as we get a piece of the pie for ourselves. There are some of us who won't play this game, and you quietly watch as others studiously ignore us, circumvent us, lies about us and put on their play as if we didn't exist.

But we see you. We see what you are saying and doing. We see that you proclaim yourself an "expert" when you're not. We see that you puff your greatness and have your cousin write a false review to bolster your lie. So what if everyone else is lying through their teeth to make a buck? We're lawyers, and our duty is different than the purveyor of shiny toys or government intent on death to sugary drinks and second hand smoke. What you are selling is your integrity, and you are selling it cheap.

Have you no shame?"

In the GPS Case, Issues of Privacy and Technology - NYTimes.com

In the Philippines, which is known as the texting capital of the world and whose citizens are Facebook and social media addicts, so to speak, very few 4th amendment cases involving modern technology can be found in its jurisprudence books. Thus, I wish to share this latest opinion piece which appeared in the New York Times dwelling on the topic.

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OPINION

Privacy, Technology And Law

By BARRY FRIEDMAN

Published: January 28, 2012

REPRINTS

EVERY day, those of us who live in the digital world give little bits of ourselves away. On Facebook and LinkedIn. To servers that store our e-mail, Google searches, online banking and shopping records. Does the fact that so many of us live our lives online mean we have given the government wide-open access to all that information?

Enlarge This Image

Mark Pernice

The Supreme Court’s decision last week in United States v. Jones presents the disturbing possibility that the answer is yes. In Jones, the court held that long-term GPS surveillance of a suspect’s car violated the Fourth Amendment. The justices’ 9-to-0 decision to protect constitutional liberty from invasive police use of technology was celebrated across the ideological spectrum.

Perhaps too quickly. Jones, along with other recent decisions, may turn the Fourth Amendment into a ticking time bomb, set to self-destruct — and soon — in the face of rapidly emerging technology.

Dog sniffs. Heat sensors. Helicopter flyovers. Are these “searches” within the meaning of the Fourth Amendment? The court has struggled with these questions over the years.

Writing for the court in Jones, Justice Antonin Scalia looked to the 18th century for guidance. In his view, attaching the GPS was the sort of physical invasion of property the framers had in mind when they wrote the Bill of Rights.

Though Justice Samuel A. Alito Jr. agreed that GPS tracking was a search, he ridiculed Justice Scalia for focusing on “conduct that might have provided grounds in 1791 for a suit for trespass to chattels.” For Justice Alito, the risk the GPS posed was loss of privacy, not property. Instead the question was whether long-term GPS tracking violatedtoday’s “reasonable expectations of privacy,” not those of another era. As a matter of existing doctrine, he asked the right question, but when applied to the government, the standard he used could turn our lives into the proverbial open book, and soon.

Focusing on public expectations of privacy means that our rights change when technology does. As Justice Alito blithely said: “New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile.”

But aren’t constitutional rights intended to protect our liberty even when the public accepts “increased convenience or security at the expense of privacy”? Fundamental rights remain fundamental in the face of time and new inventions.

Paradoxically, Justice Scalia’s approach will better protect privacy rights over the long term. (He didn’t deny the importance of today’s expectations; he simply stressed that at the very least, the Fourth Amendment protects rights we had when the framers drafted the Constitution.) Still, his approach is problematic. There isn’t always an available 18th-century analog for current government conduct, like GPS tracking. Justice Alito facetiously suggested that the only 18th-century analog would have been a constable hiding in the back of someone’s carriage. (When Justice Scalia agreed, Justice Alito wryly remarked that “this would have required either a gigantic coach, a very tiny constable, or both.”) And when 18th-century analogs run out, the court is left with its reasonable expectation test.

In a related case, Kyllo v. United States, even Justice Scalia held that police use of a thermal imager to detect marijuana “grow lamps” within a home was a search — but only so long as such technology was “not in general public use.” There’s that time bomb: expanding use of technology narrows rights.

Among the justices in the Jones case, only Sonia Sotomayor insisted that fundamental rights not be hostage to technological change. She called into question the court’s longstanding reliance on expectations of privacy, which she deemed “ill-suited to the digital age.” She suggested reconsidering the rule that the police can, without a warrant, get the vast amounts of information about ourselves that we give to third parties. To her, sharing our secrets — including e-mail and banking histories — with someone else does not necessarily mean the government gets access, too. It is too bad her separate opinion mustered no other votes.

Barry Friedman is a professor at the New York University School of Law and the author of “The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution.”"

Political but fair | Inquirer Opinion

Prof. Randy David on the true essence of IMPEACHMENT. -

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t is obvious to anyone who has been watching the impeachment trial at the Senate that this is not an event non-lawyers would find easy to comprehend or, even less, feel confident to wade into. Despite the laudable effort of the presiding officer, Senate President Juan Ponce Enrile, to make them less rigid and technical, the proceedings have not been easy to follow. The whole discursive field remains inhospitable to those without any training in courtroom procedure—including, I imagine, a good number of the senatorsthemselves.

That is not how it is meant to be. Impeachment is supposed to be more of a political procedure than a strictly judicial one. That is the reason the power to impeach is lodged in the political branches of government, rather than in the courts. If impeachment were intended to be judicial, then the Constitution would have assigned the task of impeaching a chief justice of the Supreme Court to another court, like the Sandiganbayan. Similarly, the impeachment of a president would be tried not by the Senate but perhaps by the Supreme Court itself.

Part of the confusion may stem from the title that the senators have assumed for the duration of the trial—that of “senator-judges.” I don’t know why they should be called that. (At the impeachment of former USPresident Bill Clinton in 1999, an American senator objected to being referred to by the lawyers as a “juror.” Chief Justice William Rehnquist, who was presiding, sustained him. The word was never used again during the trial.) They are senators, neither jurors nor judges. That being the case, they are not bound by courtroom procedures and standards. The Senate is empowered to draw its own rules to guide the trial, in addition to the parliamentary rules of order they use in their usual deliberations and hearings. The rules of court are meant to be only supplementary.

In what way then is impeachment a political exercise? It is political in the sense that, as a form of discourse (or as a way of seeing and communicating), its goal is to arrive at a policy decision that binds the whole society. In this it is governed by a separate code. Whereas Law is guided by the distinction between legal and illegal, Politics is steered principally by the distinction between majority and minority, and between government and opposition. These two sides of the political divide are supposed to represent competing conceptions of what is good for the nation. That is the essence of politics. Thus, with regard to the on-going impeachment, the political question is: Will the removal from office of Chief Justice Renato Corona be good for the country or not?

The basic mechanism of politics is the vote – the division of the house into majority and minority. If the Senate impeachment court were just another courtroom, then clearly what it should be looking for is proof of guilt beyond reasonable doubt – regardless of what the public may believe. Indeed, there is an explicit norm inside the courtroom to shut out public opinion from the decision-making process. In contrast, the Senate cannot avoid taking into account the public pulse. As representatives of the people, the senators have no choice but to be mindful of what the people need to know so they may form valid opinions on the issues affecting them.

Because impeachment is mainly political, it is understandable that its final outcome tends to be heavily shaped by party affiliation. But, as the American experience shows, senators freely crossed party lines in at least half of the celebrated impeachment trials in which presidents and justices were on the dock. We should expect this even more in a political system like ours where party affiliation is only lightly embraced.

Can a political process, such as an impeachment trial, be conducted in a fair, orderly and sensible way without having to resort to the restrictive conventions of the courtroom? Obviously, the answer is yes. Imagine what would happen if the countless hearings called by the House or Representatives and the Senate were to be conducted strictly in accordance with the rules of court. They would get nowhere. And yet, such hearings need not be chaotic, nor do they need to trample on anyone’s individual rights to get to the facts.

The basic ethic that is supposed to govern parliamentary deliberations is known to every parliamentarian. Courtesy must override passion. Decorum must rein in impulse. Mutual respect must temper arrogance. Above all, the natural advantage enjoyed by parliamentarians as they sit in their chamber must be balanced by the courtesy they extend to non-members who have been invited or allowed to participate in parliamentary proceedings.

It is true that guests must observe proper decorum; they should not argue with their hosts. But, in whatever setting, it is equally bad form to attack or scream at any guest. In this regard, I thought Sen. Miriam Defensor-Santiago, whose interventions have been otherwise useful and sensible, went completely out of bounds when she pounced on Arthur Lim, one of the private prosecutors. Her outburst was unwarranted and did not speak well of her as a senator or as a judge-elect of the International Criminal Court.

Perhaps, it is because politics has been so demeaned in our country that it comes naturally to us to privilege law over politics, judges over politicians, and courts over parliaments. But, politics can redeem itself not by mimicking the courts but by taking its distinct deliberative functions seriously.

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public.lives@gmail.com."