Partial-birth abortion, Congress, and the Constitution.

No bioethics or health law issue in America has defied so many attempts to alter its contours as abortion. Abortion was a contentious issue in bioethics when American bioethics entered early adolesence in the late 1960s, and it remains intransigent today. The political and bioethics debates on abortion over the past 30 years have shifted among various dichotomous views of the world: life versus choice, fetus versus woman, fetus versus baby, constitutional rights versus state rights, government versus physician, and physician and patient versus state legislatures. Hundreds of statutes and almost two dozen U.S. Supreme Court decisions on abortion later, the essential aspects of Roe v. Wade, the most controversial health-related Court decision in history, remain substantially the same as they were in 1973. Both courtroom and legislative attempts to overturn Roe have failed. Pregnant women have a constitutional right to choose abortion. The fetus is not a person under the Constitution. States still cannot make abortion a crime (either for the woman or the physician) before fetal viability. States can outlaw abortion after fetal viability only if there is an exception that permits abortion to protect the life or health of the pregnant woman. And states can impose restrictions on abortion before fetal.

The scientific article considers issues related to the definition of the concept of "digital constitutional rights of citizens" and their inclusion in the categorical and conceptual apparatus of the science of constitutional law, in the norms of the constitutions of various states. The author offers an interpretation of this concept. Under "digital constitutional rights of citizens", in this scientific article, a set of universal equal opportunities for human behavior enshrined in the norms of the Constitution of the Russian Federation, is meant, and these opportunities determine the procedure for the implementation of individual and joint activities to use digital electronic services, information, digital technologies, digital products, the procedure for guaranteeing protection their rights in the information space. The article proposes ideas, initiatives and suggestions in terms of forecasting the development of digital constitutional human rights that a person currently possesses, using the new information and communication opportunities provided by the global Internet. Conclusions. An analysis of the practice of international legal documents led the author to the conclusion that despite the fact that international organizations are making attempts to regulate relations in this area, work on substantiating digital constitutional norms in some countries is limited to the development of state programs in which normative legal acts are adopted and introduced changes in the norms of sectoral legislation, in other countries the discussion of this problem is only from the perspective of scientific constitutionalists. It is necessary to start work on a comprehensive international program of international legal regulation of relations in the field of digital rights with the involvement of the international legal community, representatives of the science of constitutional law. This will contribute to the development of a categorical and conceptual apparatus in this area of knowledge.

This chapter discusses methodology problems arising in cases where similar federal and state constitutional rights claims are raised. Most federal constitutional rights have been incorporated into the federal Constitution's 14th Amendment so as to be applicable to the states. United States Supreme Court interpretations of federal constitutional rights are not binding on state court interpretation of identical or similar state constitutional rights, but state court divergence under these circumstances can raise questions about its legitimacy. A number of questions arise in this context, including for example the proper sequence of arguments, which constitution's rights guarantees should be argued first by counsel, and analyzed first by the state court. The most substantial methodology issue is whether state courts should develop criteria to guide them in deciding whether to interpret identical or similar state constitutional rights to be more protective than the federal analog. The criteria approach is analyzed in some depth, utilizing examples of the use of this methodology in a number of states. The chapter criticizes the use of the criteria approach based on a number of factors that make state court enforcement of state constitutional rights different from the United States Supreme Court's enforcement of the federal bill of rights. The United States Supreme Court's interpretation of federal constitutional rights guarantees is therefore not presumptively correct for the interpretation of state constitutions. The chapter also discusses briefly several other methodological problems, including the direct right of action for money damages under state constitutions, state action, and substantive due process and economic regulation.

The digitalization of public services has positioned state auctions as an integral part of constitutionally guaranteed public service delivery. In Indonesia, the implementation of electronic auctions (e-auction) by the Directorate General of State Assets (DJKN) through the State Assets and Auction Service Office (KPKNL) represents the state’s obligation to provide transparent, accountable, and legally certain public services. This study examines the regulation of electronic auctions, particularly the implementation of Minister of Finance Regulation Number 86 of 2024, from the perspective of the constitutional right to public services as guaranteed under Article 28D paragraph (1) and Article 34 paragraph (3) of the 1945 Constitution and Law Number 25 of 2009 on Public Services. Using a legal research method that draws on statutory, conceptual, and case approaches, this study analyzes KPKNL's auction regulations, court decisions, and administrative practices. The findings indicate that PMK No. 86 of 2024 strengthens legal certainty, transparency, and accountability in electronic auction services by reinforcing the evidentiary status of auction minutes and standardizing procedural safeguards. However, empirical evidence shows that the fulfillment of constitutional public service rights remains constrained by administrative rigidity, information asymmetry, and limited access to legal remedies for service users. This study concludes that while electronic auction regulations improve public service quality, further alignment with constitutional principles of equality before the law, legal certainty, and accountable digital services is necessary to realize citizens’ constitutional right to public services fully.

Issuance of a State Administrative Decree by the Regional Secretariat of Central Java Province to people with disabilities on behalf of M. Baihaqi who was considered discriminatory during the 2019 Central Java National Civil Service Candidate selection who was declared not to have passed due to the requirements for the type of disability and educational qualifications being inappropriate. Administrative efforts have been taken to regain his rights but have been unsuccessful. Until finally resorting to litigation by filing a lawsuit with PTUN Semarang and an appeal to PT TUN Surabaya but it was declared not accepted. Then in the cassation the Supreme Court granted all the claims and asked the defendant to revoke the issued State Administrative Decree and process M. Baihaqi's in the Central Java National Civil Service Candidate selection 2019. The research method used is normative juridical with statutory, conceptual and case approaches. The research results show that the fulfillment of the constitutional rights of persons with disabilities in the 2019 Central Java Civil Servant Candidate Selection is considered not optimal because the solution provided by the defendant as an implementation of the Supreme Court's decision is not in accordance with the Supreme Court's decision.

The Constitutional Rights of Private Government

When fifteen-year-old Gerald Gault of Globe, Arizona, allegedly made an obscene phone call to a neighbour, he was arrested by the local police, who failed to inform his parents. After a hearing in which the neighbour didn't even testify, Gault was promptly sentenced to six years in a juvenile boot camp--for an offence that would have cost an adult only two months. Even in a nation fed up with juvenile delinquency, that sentence seemed over the top and inspired a spirited defence on Gault's behalf. Led by Norman Dorsen, the ACLU ultimately took Gault's case to the Supreme Court and in 1967 won a landmark decision authored by Justice Abe Fortas. Widely celebrated as the most important children's rights case of the twentieth century, In re Gault affirmed that children have some of the same rights as adults and formally incorporated the Fourteenth Amendment's due process protections into the administration of the nation's juvenile courts. Placing this case within the context of its changing times, David Tanenhaus shows how the ACLU litigated Gault by questioning the Progressive Era assumption that juvenile courts should not follow criminal procedure. He then takes readers to the Supreme Court to fully explore the oral arguments and examine how the Court came to decide Gault , focusing on Justice Fortas's majority opinion, concurring opinions, Justice Potter Stewart's lone dissent, and initial responses to the decision. The book explores the contested legacy of Gault , charting changes and continuity in juvenile justice within the contexts of the ascendancy of conservative constitutionalism and Americans' embrace of mass incarceration as a penal strategy. An epilogue about Redding v. Safford --a 2009 decision involving a thirteen-year-old schoolgirl, also from Arizona, who was forced to undress because she was suspected of hiding drugs in her underwear--reminds us why Gault is of lasting consequence. Gault is a story of revolutionary constitutionalism that also reveals the tenacity of localism in American legal history. Tanenhaus's meticulous explication raises troubling questions about how local communities treat their children as it confirms the importance of the Supreme Court's decisions about the constitutional rights of minors.

In 1985, state courts of last resort issued more decisions than in any year since 1950 in which they extended rights protections to individuals beyond those recognized by the U.S. Supreme Court by basing rights protections solely or independently upon state constitutional grounds. A survey of state high court judges and justices reported here indicates that there has been a nationwide increase in the number of individual rights cases litigated under state constitutions since 1980. Significant-to-moderate increases, however, were more likely to be reported by justices from the Northeast and West, from states having a moralistic political culture, andfrom courts whose members are appointed by the governor and/or legislature. State constitutional rights claims are more likely to be raised in criminal than noncriminal cases, though in both types of cases and in most states, state constitutional rights claims are raised less frequently than federal constitutional rights claims. Majorities of judges and justices favor the ideas of teaching state constitutional law in law schools and of testing for knowledge of state constitutional law on bar examinations.

In his concurring opinion to the 2007 U.S. Supreme Court decision, Morse v. Frederick, Justice Clarence Thomas argues that the Tinker decision, which granted students constitutional rights in public schools, should be overturned on originalist grounds. In this essay, Bryan Warnick, Bradley Rowe, and Sang Hyun Kim make the case that Thomas’s originalist analysis is inconclusive. Instead of looking at court decisions relating to public education starting in the middle of the nineteenth century to establish original meaning, as Thomas does, they argue that a better strategy involves an analysis of educational ideas circulating closer to the time of constitutional ratification. Using this strategy, the authors show that many prominent educational writers (a) believed that it was important for students to learn to act independently and to value their constitutional rights, and (b) believed that students learn best by imitating civic examples. These two ideas work together in early American educational thought to imply that schools should exemplify the sort of respect for self‐governance and individual rights that is present in the larger constitutional order. Thus, Warnick, Rowe, and Kim argue that there are originalist reasons for supporting student rights that Thomas ignores. In the end, this analysis not only highlights the limitations of originalist interpretative strategies, it also reminds us, more broadly, of a way to reconcile liberty and order in civic education.

A student started to grab and push around another student in a school hallway. Spotting the apparent aggression, a teacher hurried toward the two students, shouting, Stop. Blatantly ignoring the directive and seeing the teacher approach them to intervene, the bully confidently exclaimed, You can't touch me. Students aren't alone in their belief that the law protects them from teachers touching them. School personnel often have the same perception, attributing it to the student's constitutional or other legal rights and consequently concerned about liability. What's myth, and what's fact? Constitutional Rights Students do have constitutional protections from physical contact by public school officials through two amendments: the Fourth Amendment's seizure language and the Fourteenth Amendment's substantive due process based on the student's liberty interest in bodily integrity. But let's probe these rights further. First, would the teacher's intervention amount to a seizure? The answer depends on more factual information, but touching doesn't necessarily equate to seizing. Second, the Fourth Amendment applies only to unreasonable governmental seizures. The prevailing standard in public schools is whether the teacher has a reasonable suspicion that student conduct is illegal or violates school policy. The teacher in this scenario clearly seems to have a reason to suspect that the physical interaction between the students constituted bullying or other offensive contact, which is contrary to most school conduct codes. Similarly, a reasonableness test, which includes the age and gender of the students and the nature and severity of the infraction, would be relevant. Courts have recognized that public school officials should have ample discretion in applying this multifactor test. Indeed, I can't find a court decision where a student sued, much less succeeded, under the Fourth Amendment in such circumstances. For the Fourteenth Amendment, precedents clearly establish that, in the public school context, the plaintiff student would have to prove that the teacher's intervention was so extreme as to shock the conscience of society, which the judge represents. It's hard to imagine that a teacher's conduct in such a case would be so extreme that it would reach this rarefied level. Once again, the odds are overwhelmingly against a court ruling in favor of the student. If the scenario were in a private school, these constitutional rights would be inapplicable. These rights require action, and though a private school receives federal financial assistance, that does not make the school or its teachers agents of the state. Other Federal Civil Rights The federal civil rights laws, which extend beyond the public schools, protect students from discrimination based on race, ethnicity, or national origin (Title VI), gender (Title IX), and disability (Section 504 and the ADA). However, even if the aggressor is a member of one or more of these protected groups, it's hard to conceive how the teacher's intervention would constitute discrimination. Quite the contrary, the teacher would be expected to intervene promptly and effectively on behalf of the victim if the aggression amounted to race -, gender -, or disability - based harassment. State Law State civil rights laws are also likely to support the teacher's intervention. Anti - bullying laws at the state level would also be relevant, and they would be likely to support rather than stop the teacher's action. Forty - one states already have such laws, and their number and scope is on the rise. Tort liability is another aspect of state law to consider. As long as the teacher's use of force is deemed reasonable, a student is not likely to be successful when he claims that he's been assaulted or battered. …

There is great confusion among scholars and courts about whether and when appellate courts may, or must, defer to trial courts' findings of social fact in constitutional rights cases. The Supreme Court has never directly decided the question and indeed has addressed it only once, in passing. A common assumption, promoted by scholars and adopted as binding by some circuits, is that the deferential, "clearly erroneous" standard of Federal Rule of Civil Procedure 52(a)(6) does not apply to social facts. This Article challenges that assumption. There is nothing in the text of the rule that supports this conclusion. Moreover, except in certain readily identifiable circumstances, it makes sense for appellate courts to defer to trial courts' findings of social fact. Federal bench trials are better suited than the appellate process to vetting social facts when laws are challenged as violating constitutional rights. When key social facts are missing from the trial record, a remand for further factfinding at the trial level will often be workable and appropriate. Since a court's findings of social fact can determine whether constitutional rights claims succeed or fail, it is crucial to achieve a clearer understanding of the roles and respective authority of appellate and trial courts in factfinding in constitutional rights cases. This Article sorts out the tangle of rules and precedents concerning appellate review of trial court factfinding in the constitutional rights context. It then proposes a framework for assessing whether and when appellate courts should defer to trial courts' findings of social fact in constitutional rights cases.

' H.R. 1122, 105th Cong. ? 2 (1997). Congress has invoked the Commerce Clause power to justify its authority to regulate partial-birth abortions. See id. ? 2(a). For an interesting discussion of whether Congress has the power to regulate partial-birth abortions under the Commerce Clause in light of the Supreme Court's decision to curtail the scope of the Commerce Clause in United States v. Lopez, see David B. Kopel & Glenn H. Reynolds, Taking Federalism Seriously: Lopez and the Partial-Birth Abortion Ban Act, 30 CONN. L. REV. 59 (1997) (discussing United States v. Lopez, 514 U.S. 549 (1995)). 2 See H.R. 1122, ? 2(a). All of the partial-birth abortion bans, except the Missouri ban, contain a provision that the pregnant woman upon whom the procedure is performed may not be prosecuted for conspiracy to violate the statute. See infra note 3. See also H.R. 1122, ? 2(a). 3 The following states have enacted bans: Alabama (ALA. CODE ? 26-23-2 to -4 (Supp. 1998)); Alaska (ALASKA STAT. ? 18.16.050 (Michie 1998)); Arizona (ARIZ. REV. STAT. ANN. ? 13-3603.01 (West Supp. 1998)); Arkansas (ARK. CODE ANN. ? 5-61-202 to -203 (Michie 1997)); Florida (FLA. STAT. ANN. ? 390.011, -.0111 (West Supp. 1999)); Georgia (GA. CODE ANN. ? 16-12-144 (1999)); Idaho (IDAHO CODE ? 18-613 (Supp. 1999)); Illinois (720 ILL. COMP. STAT. 513/5-5, -10, -20 (West 1998)); Indiana (IND. CODE ANN. ?? 16-18-2-267.5, 16-34-2-1(b) (West Supp. 1998)); Iowa (IOWA CODE ANN. ? 707.8A (West Supp. 1999)); Kansas (1998 Kan. Sess. Laws 142); Kentucky (KY. REV. STAT. ANN. ? 311.720, -.765, -.990 (Michie Supp. 1998)); Louisiana (LA. REV. STAT. ANN ? 14:32.9 (West Supp. 1999)); Michigan (MICH. COMP. LAws ? 333.17016 (West Supp. 1999)); Mississippi (MISS. CODE ANN. ? 41-41-71, -73 (1999)); Missouri (1999 Mo. Legis. Serv. 427 (West)); Montana (MONT. CODE ANN. ? 50-20-401 (1997)); Nebraska (NEB. REV. STAT. ? 28326, -328 (Supp. 1998)); NewJersey (N.J. STAT. ANN. ? 2A:65A-6 (West Supp. 1999)); North Dakota (N.D. CENT. CODE ? 14-02.6-01 to -03 (1999)); Ohio (OHIO REV. CODE ANN. ? 2919.15

The Federal Employees Liability Reform and Tort Compensation Act - better known as the Westfall Act - was rushed into law in 1988 to avoid what was expected to be a crisis in exposing federal workers to court suits. The law was intended to overturn the Supreme Court's January 1988 decision in Westfall v. Erwin, which greatly expanded the potential liability of legislative and judicial employees as well as employees of the executive branch. Once faced by such a threat - and perhaps especially because the decision threatened congressional workers - Congress acted promptly. By November, Congress had held hearings, the House and Senate had agreed on language of a new bill, and President Reagan had signed the bill into law. Any gridlock that existed on this matter between the executive and legislative branches simply evaporated when the Court handed down its ruling. The law's purpose is ...to protect federal employees from personal liability for common law torts committed within the scope of their employment, while providing persons injured by the common law torts of federal employees with an appropriate remedy against the United States (sec. 2[b]). The intention was to overturn the Westfall decision and thereby restore protections to executive-branch workers, extend those protections to legislative and judicial workers, and reinstitute the procedures by which persons who were harmed could bring suit against the government rather than against individual workers. Seldom is anything as easy as it seems. The law may have achieved its key purposes, but numerous other problems arose in the process. An Overview of Torts A tort is a civil wrong independent of contract, meaning that the harm did not stem from a breach of the contract. Constitutional torts involve harm stemming from violation of one's constitutional rights. Since the Supreme Court's landmark decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971), federal employees can be held personally liable for violating someone's constitutional rights. In the Bivens case, narcotics officers made a warrantless search of a residence in the early morning. Cases commonly arise in which constitutional torts are alleged (see the Blohm; Krueger, Lutz; Rauccio; and Saul cases).(1) The Supreme Court ruled in 1994 that the Bivens remedy can only be used in suits against individuals and not in suits against the government (Federal Deposit Insurance Corporation v. Meyer). A second type of tort and the one of concern in this article is the common law tort. These torts involve such behavior as negligence, defamation, harassment, and emotional distress. The third type is the federal statutory tort, in which a person's rights under a federal law are abridged (Anderson and Pellett, 1990). It is common for people to file suits that allege both constitutional and common law torts have been committed (Pelletier and Rallis). A single action or event, as in the case of assault, can be both a tort and a crime. The key mechanism for common law tort cases against the federal government is the Federal Tort Claims Act (FTCA) of 1946. The federal government has partially waived its sovereign immunity to allow suits against itself. Under this law, suits are filed in district courts which apply state tort law to the federal government as though it was an individual in the state where the alleged event occurred. As will be seen below, exceptions contained in the FTCA bar several types of suits against the government. Westfall v. Erwin All of the furor in Congress to write the Westfall Act and much of the legal maneuvering since its passage stem from William Erwin receiving soda ash burns in his eyes and throat while working as a civilian warehouseman at an army depot in Alabama. He and his wife sued Rodney Westfall, Erwin's superior, and other workers at the depot for negligence in the handling and storage of this toxic substance. Erwin contended the bags of soda ash should never have been stored in the warehouse, that the soda ash had been allowed to spill from bags, and that he had not been warned of their presence in the warehouse. …

Limitation and amendment of rights A fundamental distinction exists between the amendment of a constitutional right and its limitation. The amendment of a constitutional right requires an amendment of the constitution, while a limitation of the right is possible with no constitutional change. The distinction stems from the more basic distinction between the right’s scope and the extent of its protection. An amendment of a right entails a change – a narrowing or expansion – of its scope; such a change, in turn, affects the persons and institutions governed by the right, its content, or its application in terms of time and place. Thus, for example, a constitutional amendment would be a change in a constitutional provision – which currently applies to any person – according to which the provision would, from now on, apply only to citizens. Such a change is possible only through the mechanism of a constitutional amendment. Here, the proportionality of the constitutional change does not play a role. A statutory provision which intends to lead to such a change in the constitution is unconstitutional regardless of its proportionality. Conversely, a limitation of a constitutional right only narrows the ability to realize the right without changing the right’s actual boundaries. These limitations are constitutional only if they are proportional, as required by the limitation clause. The distinction between a constitutional change (which requires a constitutional amendment) and the limitation of a constitutional right (through a proportional sub-constitutional law) is not always self-evident. The proper criterion to distinguish between the two should be objective in nature and not require an inquiry into the subjective intent of the law’s creators. Naturally, the application of such an objective test may lead to substantial difficulties. Take, for example, the Canadian Supreme Court case of Quebec Protestant School Boards . There, the court was asked to examine the constitutionality of a Quebec statute that limited the acceptance of English-speaking students who studied English outside Quebec into English-speaking schools in Quebec, in an alleged violation of the Canadian Charter of Rights and Freedoms. The Canadian Supreme Court held that the proposed change – through a statute – to the constitutional right cannot be considered a mere limitation whose constitutionality need be determined by the provisions of the limitation clause. Rather, the change should be seen as a complete denial of the constitutional right without following the rules required by the Charter for a constitutional amendment. Therefore, the court invalidated the statute and declared it unconstitutional; importantly, it did so without even examining whether the proposed change was as per the limitation clause. The court then added the following clarification: An Act of Parliament or of a legislature which, for example, purported to impose the belief of a state religion would be in direct conflict with Section 2(a) of the Charter, which guarantees freedom of conscience and religion, and would have to be ruled of no force or effect without the necessity of even considering whether such legislation could be legitimized by Section 1. The same applies to [the Quebec provision] in respect to Section 23 of the Charter. A more recent ruling by the Canadian Supreme Court emphasized that only a “complete denial” of the constitutional right would not be considered a mere “limitation” and therefore not examined through the lens of the limitation clause. The decision was heavily criticized. Hogg argued that there is no rational basis to differentiate between a right’s “denial” – whether partial or complete – and a right’s limitation. In his opinion, any denial (partial or complete) should be considered a limitation whose constitutionality should be determined by the limitation clause. It is hard to support such an approach. With all the difficulties arising from the distinction between a constitutional change of a right and its limitation, these difficulties should not deter us from using this analytically sound, constitutionally vital, distinction.

This book provides complete coverage of American State Constitutional Law. It contrasts the more familiar federal Constitution and explains the importance of the differences. The book then surveys the state constitutions put in place before the adoption of the federal Constitution, together with their influences on the development of the federal Constitution. Next, it describes the broad outlines of state constitutions' evolution over the centuries, as well as the limits placed on state constitutions by federal law. Next, the book covers the growth of the New Judicial Federalism (state constitutions providing, or being interpreted to provide, more protective rights than the federal Constitution). This includes a variety of methodology issues arising in cases raising both federal and state constitutional rights arguments, such as the sequencing of arguments and development of criteria for recognizing rights beyond the federal minimum standards. The technique of interpreting state constitutional rights in “lockstep” with federal rights is analyzed and criticized. State constitutional separation or distribution of powers is discussed and contrasted with the federal doctrines. The book then explains and illustrates the unique features of each of the three branches of state governments. The book analyzes the specialized techniques of judicial interpretation applied to state constitutions. Finally, it surveys the mechanisms of state constitutional amendment and revision, together with the extensive judicial involvement in these processes.