From Ware v. South Texas Family Planning & Health Corp. (S.D. Tex. Jan. 26), a case in which a father sued a clinic for giving a “morning-after” contraceptive pill to his 14-year-old daughter without the parents’ permission:
Plaintiff contends that Defendants are a public nuisance because the “activity” that Defendants engage in interferes with a “parent’s right to guide his child in a moral fashion” and interferes with “the moral standards of the community.” Under Texas law, a public nuisance “is maintained by act, or by failure to perform a legal duty, intentionally causing or permitting a condition to exist which injures or endangers the public health, safety or welfare.” Neither in his complaint nor during the initial pretrial conference was Plaintiff’s counsel able to allege the factual basis on which Defendants’ activities could be said to constitute a public nuisance. In fact, Plaintiff’s counsel, when asked during the initial pretrial conference to explain his public nuisance claim, was unable to name the elements of a public nuisance....Plaintiff bases his third cause of action, his parental rights claim, on the grounds that Defendants failed to obtain parental consent before allegedly providing the morning-after pill to Plaintiff’s daughter. Plaintiff offers no other factual basis for this claim. Further, Plaintiff provides no legal basis for this claim. Indeed, when Plaintiff’s counsel was asked at the initial pretrial conference to provide authority for this cause of action, he stated, “I thought it was so basic I didn’t bother to do research.” Plaintiff has thus failed to state a claim for which relief can be granted for each of the three causes of action asserted, pursuant to Federal Rule of Civil Procedure 12(b)(6).
Not good.
Hary Schell says:
I guess this would be called a Grade One Owie for the plaintiff’s attorney, with oak leaf cluster “for egregious failure to conduct ‘homework’ in an even cursory fashion”. Hary Schell(Quote)
kdackson says:
I surely hope that Plaintiff’s counsel was not one of your ex-students, Professor. kdackson(Quote)
Gulf Coast Bandit says:
Hope this guy isn’t doing criminal cases... Gulf Coast Bandit(Quote)
1040 says:
So, where’s the lawyer from? UCLA or GMU? :) 1040(Quote)
wlpeak says:
Ah good ole Corpus Christi. Excellent beaches...did I mention the beaches? wlpeak(Quote)
Steve says:
It sounds like the case probably belonged in state court and plaintiff’s counsel was simply incompetent in pursuing remand. The idea that there’s federal jurisdiction because the clinic has a defense to the frivolous “parental rights claim” under a federal statute strikes me as a classic example of the well-pleaded complaint rule. But speaking as a practitioner, this is a perfect illustration of why it’s so important to get a case like this into federal court from the defendant’s perspective! You could be wasting the client’s money for a year litigating this case before the typical state court judge. Steve(Quote)
zuch says:
Could have been worse. Could have gotten the law so bollixed that they got slapped with Rule 11 sanctions....
Cheers, zuch(Quote)
~aardvark says:
Steve, this would have been enough. The rest is simply battery on an expired equine. ~aardvark(Quote)
Nobody Really says:
My kid’s school needs a permission form to give them Tylenol, but the morning after pill requires no parental consent. What is wrong with this picture? Nobody Really(Quote)
josh bornstein says:
Nobody Really,
If your point is that your kid’s school should be able to give out a Tylenol w/o your permission; I’d agree with you. josh bornstein(Quote)
Mike S. says:
Forget the lawyer stuff. Do I understand correctly that the right the father wanted to assert was the right to make sure his 14 year-old daughter stayed pregnant? Even on a law professor blog that seems more outrageous than a plaintiffs lawyer filing a poor pleading. Mike S.(Quote)
ShelbyC says:
Look, if kids are really capable of making these adult decisions without parental involvement, why am I paying taxes to support them? Let ‘em get jobs. ShelbyC(Quote)
Steve says:
Do I understand correctly that the right the father wanted to assert was the right to make sure his 14 year-old daughter stayed pregnant?
No, the morning-after pill is a contraceptive, it’s not an abortion pill. Steve(Quote)
Anonsters says:
Yeah, whether you have a headache and need acetaminophen to mitigate that headache is clearly not a decision a teenager can make without parental involvemet.
Whether teenagers can responsibly make decisions regarding their sexuality without parental involvement or not, the fact is that they do. Grow up. You did too when you were 14. Anonsters(Quote)
ShelbyC says:
I drank and smoked cigarettes when I was 14, too. ShelbyC(Quote)
tvk says:
OK, the plaintiff’s lawyer is outrageously incompetent, no doubt about that. But the court is pretty outrageous here, too (whether incompentent or biased is hard to say). Like Steve pointed out before the court’s jurisdictional analysis seems a textbook mistake under the well-pleaded complaint rule, so the court shouldn’t even be able to adjudicate this dispute. And did nobody in the judge’s chambers notice the contradiction between finding (1) a cause of action for “violating parental rights” to be non-existent and frivolous, and (2) basing federal question jurisdiction on said cause of action?
What the plaintiff’s lawyer probably should have done is file a state court case for trespass to the person–his daughter. While there might be a perfectly good Title X defense, I think it fair to say that in common law England the courts would have recognized a cause of action for the events here; so the court’s apparent disdain is not really justified. tvk(Quote)
Cornellian says:
“I thought it was so basic I didn’t bother to do research.”
Wow Cornellian(Quote)
tvk says:
Oh, and the clinic’s behavior can potentially also be prosecuted as being an accessory after-the-fact to statutory rape; so the father may be able to find a civil cause of action there, too. tvk(Quote)
wm13 says:
Me too. I hate the liberal nanny-staters who have taken away those simple pleasures from teens and adults alike, but act like having sex is some sort of holy and essential right, more important than voting (which is not allowed to 14-year-olds). wm13(Quote)
eyesay says:
To paraphrase a bumper sticker, if the father doesn’t trust his 14-year-old daughter to make the right decision about obtaining a “morning-after” contraceptive pill, how can he trust her to complete a pregnancy and raise the child? eyesay(Quote)
Swan Trumpet says:
The father should make a formal complaint alleging misconduct against his attorney to the Texas State Bar and he should do so even if the attorney agrees to refund all the money paid. If no disciplinary action results, the father still has the option of taking his legitimate grievance to a private legal malpractice attorney.
Of course, if SCOTUS should agree to hear a case involving abortion, we may finally be rid of this horrific legalized infanticide and such problems as the one described above will no longer exist. Swan Trumpet(Quote)
ShelbyC says:
I’m not sure how anybody would trust her to make either without parental guidance. But if she can, she’s old enough to stop sponging of the state and get a job. ShelbyC(Quote)
vic says:
This is a problem with the legal profession (to whioh I presume Cornellian belongs): you start with a set of assumptions ( ? a-priory)and build a framework upon those, and then you build another framework upon the first framework... carry this forward ad infinitum and you eventually get to complete illogic.
In short from the common law standpoint of non lawyer– what is so problematic about that assertation. It is a rather basic common man presumtion, is it not ?- that this guy as a parent of a 14 year old has certain rights and responsibilities.
Not being a lawyer I am not well versed in the niceties of legal procedure and jargon, so I may be using words which have a particular meaning to a lawyer, in an ” incorrect manner”, but the rights and responsibilities of parents wrt their kids– is pretty basic and perhaps one of the foundations of ” natural law”.
I honestly do not have any strong positions on this matter and frankly dont really give s**t, but Cornellian with his combination of completely unreasoned arguments and attitude of smug superciliousness really gets my goat sometimes. vic(Quote)
gwinje says:
Swan Trumpet,
As Steve pointed out in response to a previous comment, the morning after pill prevents pregnancy, it doesn’t terminate pregnancy. No SCOTUS decision regarding abortion would have any bearing on a case like this. gwinje(Quote)
Anthony says:
That’s a matter of definitions and situation — while the morning after pill can function by preventing ovulation (which is certainly contraception), it can also function by preventing implantation of the fertilized egg (which can be considered abortion, though in that case an IUD also counts as abortion). Personally, I’m pretty much unconcerned about abortions before the third trimester, but it’s at least a justifiable belief that a morning after pill can represent abortion.
Generally speaking, the liberal position isn’t that 14 year olds should be having sex, it’s that we have no practical method of stopping 14 year olds from having sex, and we do have at least a realistic option of cutting down on the number of those 14 year olds who get pregnant or come down with STDs. Anthony(Quote)
Swan Trumpet says:
The scientific evidence shows that fertilization of an ovum can take place anytime between several hours to 3 days. It all depends upon what stage the woman is in of her monthly cycle. It’s also very likely that many morning after doses are actually administered 2 or 3 mornings after. This is especially true when the woman who fears pregnancy had been drinking
alcohol. The morning after pill does NOT prevent pregnancy; it prevents a fertilized ovum from attaching to the uterine wall and growing. Swan Trumpet(Quote)
bearing says:
Look, the morning-after pill is a drug. Some would call this a medical treatment (and it’s not an emergency either). There is nothing unreasonable or prudish about the position that parents ought to be able to sign off consent on drugs and/or medical treatments given to their minor children, or at least be notified of it, for the child’s own safety (who will watch for side effects, reactions, etc.?) I don’t see why a child who’s legally incompetent to ask for a Tylenol or get a tattoo becomes magically competent when the drug has to do with his or her sex life.
All of which is irrelevant to the point of the post, of course, re: the attorney’s incompetence. bearing(Quote)
Brett Bellmore says:
Morning after pills are not among the options for preventing 14 year olds from coming down with STDs. In fact, if you need one, you clearly weren’t using one of those options.
The problem here is, in fact, that by giving a minor contraceptives without informing the parents, the clinic most assuredly is facilitating statutory rape, and preventing the parents from having information necessary for them to carry out their parental responsibilities. They might have gotten the terms of the complaint wrong, but they certainly did have something to complain about. Brett Bellmore(Quote)
second history says:
Of course, if SCOTUS should agree to hear a case involving abortion, we may finally be rid of this horrific legalized infanticide and such problems as the one described above will no longer exist.
What, teenagers will stop having sex? Who knew! second history(Quote)
daftpunkydavid says:
brett bellmore said:
“The problem here is, in fact, that by giving a minor contraceptives without informing the parents, the clinic most assuredly is facilitating statutory rape, and preventing the parents from having information necessary for them to carry out their parental responsibilities. They might have gotten the terms of the complaint wrong, but they certainly did have something to complain about”
this in interesting. in med school they teach us that physicians can provide counsel and contraceptives to minors without a parent’s knowledge or consent... unless of course you think this might actually constitute an abortion, then this should have been dismissed anyway. daftpunkydavid(Quote)
Brett Bellmore says:
Sex by minors is a special case for providing medical care to minors without telling their parents, because it facilitates statutory rape.
Statutory rapists are a political constituency, too, you know. Brett Bellmore(Quote)
Huh says:
In my EMT class, they taught us that we are required to obtain parental consent to even put a band-aid on an injured minor, unless the parent is unreachable and the minor’s injuries are so significant that a reasonable parent would consent to treatment.
There are also some special exceptions, however, including when the minor is emancipated, etc. One of the exceptions to parental consent was if the minor is himself/herself a parent–in other words, a 16-year-old mother can accept treatment for herself at the scene from EMS despite her parents’ wishes, but a childless 16-year-old cannot. Huh(Quote)
head damage says:
and it shows. head damage(Quote)
head damage says:
never has there been a funnier sentence involving the words “statutory rape”. head damage(Quote)
Bama 1L says:
I thought that to plead artfully, you had to know you had a federal claim and then hide it. This plaintiff filed a complaint that probably would have sufficed in state court, got removed on pretty shady grounds (Title X gives the federal courts exclusive jurisdiction!), botched his remand motion for apparently technical faults (did not include a satisfactory proposed order and adequate contact information), and has now been dismissed and precluded from refiling. Artful pleading this was not. Bama 1L(Quote)
Anthony says:
Granted, but in practice the liberal/conservative debate is broader than just morning after pills.
There’s little reason to believe that the availability of the morning after pill increases the odds of children having sex and there is a reasonable (if debatable) argument for keeping silent: children, if they know their parents will be told, may choose to avoid treatment or choose a risky option. Anthony(Quote)
Mike McDougal says:
Wouldn’t that equally apply to adults on all sorts of welfare? Mike McDougal(Quote)
Mike McDougal says:
That’s complete nonsense. A child is competent to not only ask for but purchase Tylenol. Did that obvious fact escape your notice? Mike McDougal(Quote)
kumquat says:
In what state are children “legally incompetent” to have Tylenol without a parent’s permission? Where I live, a 14-year-old can walk into any drugstore or supermarket and buy any kind of OTC pain pill on the shelf.
Legal competence has nothing to do with public school rules that prevent kids carrying their own medications and making their own decisions when to take them. Hell, some schools require asthmatics to leave their inhalers with the school nurse. It’s all about “zero tolerance” of drugs and fear of being sued. kumquat(Quote)
Brett Bellmore says:
There is every reason to believe that a minor obtaining birth control, especially the morning after pill, is involved in statutory rape. Denying them birth control may not reduce the likelihood of them having sex, but giving them birth control secretly certainly makes sure the statutory rape won’t be reported to the authorities.
Perhaps, (I’d say more than perhaps.) our statutory rape laws need reform. But I find it hard to buy the idea that the policy of not telling parents about only THIS class of medical care, and no other, has nothing to do with facilitating this crime. Brett Bellmore(Quote)
Steve says:
That’s a matter of definitions and situation — while the morning after pill can function by preventing ovulation (which is certainly contraception), it can also function by preventing implantation of the fertilized egg (which can be considered abortion, though in that case an IUD also counts as abortion).
That’s just a myth. People say the same thing about the birth control pill, but there’s no actual evidence for it. Steve(Quote)
ArthurKirkland says:
Unless the Supreme Court were to declare that the constitution forbids abortion and requires employment of the most extreme, dogmatic definition of that term, the most a Supreme Court decision would do to restrict early-term abortions would be to enable states to choose their path.
The likelihood that more than a handful of the most remote backwaters in the United States would criminalize IUDs and morning-after pills appears to resemble the likelihood that Sarah Palin will abandon a presidential campaign to accept the deanship of Harvard Law (succeeding Glenn Beck). ArthurKirkland(Quote)
bearing says:
Sorry, I meant to reference the context of “in a school.” my bad, w.r.t. the Tylenol.
Prescription drugs, and receiving medical treatment, however.... bearing(Quote)
Smallholder says:
I’m sure all of Volokh’s commenters who remained virgins post-prom did so only because the Morning After Pill had not been invented.
The Morning After pill inaguarated a brave new world of teenage sex (er, I mean, statuatory rape). If only we could keep kids from taking the pill, conversations in he back seat of Dad’s Buick would go like this:
“Let’s do it!”
“No, I’m afraid that if the condom breaks the clinic will call your Dad to get permission to dispense the morning after pill and we’ll get a stern lecture. In fact, thinking about that putative lecture makes me realize that sex is wrong. Let’s pray instead.”
Anyone who argues that teens are disuaded from sex based on availability of abortion/contraception/day care/welfare has never gotten a chearleader to climb into the back seat. Kids just don’t think like that. Smallholder(Quote)
Laura(southernxyl) says:
I looked up “morning after pill side effects” and found this.
If someone had given this to my daughter at age 14 without my knowledge and consent, there would have been hell to pay. Laura(southernxyl)(Quote)
Steve says:
The side effects of not taking it can be difficult on the parent and child alike, too. Steve(Quote)
Laura(southernxyl) says:
Smallholder, let me hasten to assure you that I have NEVER gotten a cheerleader to climb into the back seat. Laura(southernxyl)(Quote)
Laura(southernxyl) says:
Steve, the point is that the parent needs to be in the loop as to whether the kid takes the pill or not. Or at the very least, informed that the kid has taken it. What’s the kid supposed to do if she has scary side effects, and can’t go to her mama because she was told it was her secret? Laura(southernxyl)(Quote)
Laura(southernxyl) says:
Also, did the kid get checked for STDs? If the parent is deliberately kept in the dark about the kid having sex, by another adult who has taken it on himself to give her meds, then that adult is getting all of that checked out, right? Right? Laura(southernxyl)(Quote)
Aaron says:
It’s a thoroughly unjustified belief that is very handy for people to have to justify certain positions.
There is no evidence whatsoever that it can work this way. People continuously suggest that it can do this, and there haven’t been studies ruling it out, but given the ingredients, there’s no reason to expect them to have this effect. Aaron(Quote)
Eric Rasmusen says:
Isn’t this exactly the kind of situation that Rule 11 sanctions are designed for— pleadings based neither on facts nor law?
I continue to be amazed at what judges let lawyers get away with. I guess judges don’t have enough incentive to enforce the rules. Is it that they don’t like getting lawyers mad at them? Eric Rasmusen(Quote)
Edward A. Hoffman says:
Call me a cynic, but somehow I don’t expect any Republicans who rail against the supposed epidemic of frivolous lawsuits to use this case as an example. Edward A. Hoffman(Quote)
Today's Tom Sawyer says:
Sad thing is that it looks like the claims could have been made if the Plaintiff’s attorney would have bothered to do something more than just show up.....even if the claims themselves were questionable, at least the court could have discussed the relevant law and whether the facts fit or not. Today’s Tom Sawyer(Quote)
What No Client or Lawyer Wants to See in a Court Decision | Liberal Whoppers says:
Frater Plotter says:
By that argument, if your house gets burgled and you hire me to clean up the broken glass the burglar left when he broke through your window, I’m an accessory after-the-fact to the burglary. Mitigating the damage done by a crime, upon specific request by the victim, doesn’t constitute accessory. Frater Plotter(Quote)
Chris Travers says:
I was BREWING beer when I was 14.
Turns out it was legal..... Chris Travers(Quote)
Chris Travers says:
Hmmm... I still think you are pushing definitions. It seems that every time a fertilized ovum simply fails to attach to the uterine wall we have an abortion in that case (spontaneous or not), so every time one has a lot of sex and fails to get pregnant, one might as well assert that one miscarried....
I think abortion, to be a useful definition, would have to be defined as post-implantation.
Otherwise miscarriage becomes so darned common place that there is no reason to care about abortion at all..... Chris Travers(Quote)
Chris Travers says:
And I thought Carey v. Population Services International was decisive on this issue.
In that case the court ruled that the state could NOT ban sale of contraceptive devices directly to minors (in that case under the age of 16) and held such laws to strict scrutiny. Chris Travers(Quote)
Steve P. says:
(I am not the original “Steve” you’re responding to, I apologize for egregious name-sharing)
If a young girl is considering her options, they might be limited if she believes that her father will beat the shit out of her for asking to take the morning-after pill. I don’t believe it’s a common occurrence, but I’m guessing that it’s still non-zero.
There’s also the possibility that the “father” may the father. I’m not sure what that does to motivations re: the morning-after pill, though. Steve P.(Quote)
readery says:
Given that the standard tort for a medical procedure without permission is battery, it’s surprising, whether or not acually available in this case, that this wasn’t one of the claims. readery(Quote)
1040 says:
Some of the comments here are hilarious. Given how poor the knowledge of some of the commenters here about contraceptive techniques is, it is quite funny to see those selfsame commenters wanting to “educate” their “clueless” children about their appropriateness (or otherwise).*
* Note that I am not advocating that it be illegal for misinformed parents to advice their children (as I am sure some will rush to interpret my comment), just that it is ironic. 1040(Quote)
LarryA says:
AFAIK in Texas if there’s less than two years difference between the teen’s ages consensual sex isn’t sexual assault.
To paraphrase a famous job evaluation comment, “This attorney failed to meet the inadequate standards he set for himself.” LarryA(Quote)
ChrisIowa says:
Actually, on reading this, the frivolous lawsuit aspect was my first response. But then, I am a pro-choice Republican, struggling more with the noun than the adjective.
Though the caucuses two weeks ago are giving me encouragement. ChrisIowa(Quote)
Anthony says:
Even if you limit yourself to post-implantation, miscarriage is pretty common, but who says definitions have to be sensible? The Catholic Church objects to both UIDs and morning-after pills. Anthony(Quote)
Shane says:
First of all, you seem to be making all sorts of assumptions about the likelihood of statutory rape happening. A lot of states have exceptions in place for instances where the consenting teens are less than 3 years apart. Secondly, in what way does parental notification address your concerns regarding statutory rape? If it’s nonconsensual rape or incest, should the doctor still have to notify, or should his primary responsibility be treating his patient?
I feel like your ideal policy would lead to a greater number of abortions, both the professional and the coat hanger variety. Shane(Quote)
Tweets that mention The Volokh Conspiracy » Blog Archive » What No Client or Lawyer Wants to See in a Court Decision -- Topsy.com says:
markm says:
Brett: Is your claim that two 14 year olds having sex are raping each other, or that 14 year olds would only have sex with a much older person? #2 is definitely counterfactual. #1 is just twisted. markm(Quote)
markm says:
Could the judge order the lawyer, not his client, to pay Rule 11 sanctions? If not, imposing them on the plaintiff is quite unfair. But I believe the judge could have and should have referred the lawyer to the bar disciplinary committee, and that the plaintiff has a good case for a malpractice suit. markm(Quote)
Eric Rasmusen says:
“Could the judge order the lawyer, not his client, to pay Rule 11 sanctions? If not, imposing them on the plaintiff is quite unfair.”
Yes, the sanction is on the lawyer, not the client, tho maybe the client could be made to pay too if it were shown that he urged the lawyer to do it. See
http://www.law.cornell.edu/rules/frcp/Rule11.htm Eric Rasmusen(Quote)
ShelbyC says:
I’m not sure what Brett’s claim is, but isn’t #1 in fact the law in most states? You may agree or disagree, but it’s the law, no? ShelbyC(Quote)
SeaDrive says:
Definition problem here. From a medical point of view, there isn’t a pregnancy until the ovum attaches. A fertilized ovum, in itself, is not a pregnancy. SeaDrive(Quote)
Floridan says:
Where all all the calls for tort reform and complaints about frivolous lawsuits driving up medical costs? Floridan(Quote)
egd says:
In Texas, it is an affirmative defense to statutory rape that the defendant was less than 3 years older than the victim. There is still a victim and a crime, and presumably the office didn’t inquire as to the age of the father (most clinics don’t take mandatory reporting seriously in cases of statutory rape).
In Texas, the facility may have committed a Class B misdemeanor by failing to report a possible statutory rape. But I don’t think that gives the father any recourse if the state refuses to prosecute (and it probably will so refuse). egd(Quote)
CJColucci says:
Anyone who argues that teens are disuaded from sex based on availability of abortion/contraception/day care/welfare has never gotten a chearleader to climb into the back seat.
Smallholder, let me hasten to assure you that I have NEVER gotten a cheerleader to climb into the back seat.
Another fantasy shot to hell. CJColucci(Quote)
S says:
egd: If there is an ironclad defense, there is no crime, no victim and no ethical prosecutor could bring charges, given that the fact, here, is easily established. S(Quote)
Chris Travers says:
So if a 14-year-old girl walks into a pharmacy and buys condoms, the sale would be in violation of the law? Is that in line with existing Supreme Court precedent? Chris Travers(Quote)
Chris Travers says:
The Catholic Church objects to normal birth control pills and condoms too..... Chris Travers(Quote)
ShelbyC says:
If the 14yo consents, I wonder if she’s an accessory? ShelbyC(Quote)
Whadonna More says:
The state forces your daughter to spend her days at Planned Parenthood? Weird.
Or did you mean that you should be king and both private actors and government schools should just bow to your will? Whadonna More(Quote)
RealistLiberal says:
No, it’s not in fact the law in most states. Most states have a requirement that the victim be a minor AND that there be a preset difference in age whereby the victim is X years younger than the defendant. In California the age difference is 4 years so this 14 year old could have had sex with anyone from the age of 14 through 18. My understanding is that Texas has a 2 year age difference requirement meaning that she could have legally had sex with anyone from the age of 14 through 16. Also, note that the requirement is that the victim is younger than the defendant. So no, they are not assaulting each other. If she had sex with a 19 year old, under California law, he is assaulting her. RealistLiberal(Quote)
Oren__ says:
State law requires him to do both. Notification is not antithetical to treatment — it is in fact entirely orthogonal.
No, only medical professionals are mandatory reporters, not sales clerks. If you read the statutes, you’d know that. Oren__(Quote)
Christopher Cooke says:
Let us play Devil’s Advocate here and see if we can’t come up with some non-frivolous basis for the father to have brought a suit in federal court.
Why can’t the father argue, ala Meyer v Nebraska, etc., that he has a right to raise his children in accordance with his own religious and moral beliefs and that Title X of the federal program discussed in the opinion, which requires the clinic to provide services without parental consent, is unconstitutional and substantially interferes with that right? I would imagine this could be a First Amendment claim (free exercise clause), and/or (gasp, all of you rightwingers) a claim based on the rights preserved to him by the Ninth Amendment and his substantive due process rights based on the Fourteenth Amendment. I am not familiar with federal challenges to the program in question so this may have been decided already, but the way I see this issue, there is a nice conflict between the parental rights of the father and the reproductive rights of the minor daughter and I would venture that there could be a non-frivolous argument to be made on the side of the father. Nuisance, however, is not it (I agree with the judge on that). Christopher Cooke(Quote)
Bored Lawyer says:
Whoa Nelly! I thought it was a universal rule that the requirement of subject matter jurisdiction cannot be waived, and that federal courts have an independent duty to scrutinize every case for subject matter jurisdiction. Furthermore, the Supreme Court has instructed (I forgot the citation) that a federal cannot may not examine the merits until it has determined that it has subject matter jurisdiction — even if the motion to dismiss can more easily be decided on “does not state a claim” grounds than on “no subject matter jurisdiction” grounds.
Even if the remand motion was defective, the district judge should first have determined that he had subject matter jurisdiction. Without that determination, the opinion as to the merits is worthless. Sounds like a good ground for appeal. Bored Lawyer(Quote)
Bored Lawyer says:
Further to my last post, I see the opinion does address subject matter jurisdiction. Not very convincingly — Title X seems like an affirmative defense here. Bored Lawyer(Quote)
Chris Travers says:
In Michael M (upholding gender-based definitions for statutory rape), one thing the concurrence pointed out was that although the law made it a much more severe crime for the male on the surface, indeed it wasn’t the case because the female could be tried as an accessory (and also that California at the time provided other penalties that were gender-agnostic as well).
In essence what the concurrence said was that the equal protection issues there didn’t really occur in part because the girl could have been charged as an accomplice anyway, and that if the roles were reversed, she would still have been committing a crime (just one which was not as severe). This difference was justified (in both the majority and concurring opinions) by the concerns over teenage pregnancy. Chris Travers(Quote)
Chris Travers says:
Ooooh. Orthogonal..... Chris Travers(Quote)
Chris Travers says:
The ShelbyC quote above was supposed to be this one:
Also I would point out that the Supreme Court has stated that the state MAY NOT restrict sales of contraceptives to minors. So this more or less blows away Brett’s theory. Chris Travers(Quote)
egd says:
How would the age of the offender be “easily established?” Do you think a 14 year old girl might lie to protect her older boyfriend?
Even assuming the Defendant has an ironclad defense, is the girl still a “victim” of statutory rape?
I’d be inclined to say no, but the mandatory reporting law doesn’t answer the question.
Well, if that 14-year-old girl got the condoms from someone who “is licensed or certified by the state or who is an employee of a facility licensed, certified, or operated by the state and who, in the normal course of official duties or duties for which a license or certification is required, has direct contact with children,” then the individual would have a duty to report the potential crime to authorities. egd(Quote)
Sarcastro says:
[wouldn’t there be a mens rea for the 14-year-old girl scenario? In other words, you’d have to prove the employee knew the girl was 14?] Sarcastro(Quote)
Chris Travers says:
How does that square up with the Supreme court’s decision in Carey v. Population Services and the strict scrutiny articulated there?
It seems to me the easiest thing to do is to remove sales or offering of contraceptives generally from what the law requires one to report.... Chris Travers(Quote)
Roger the Shrubber says:
Perhaps, but to just about any lawyer, this one is worth a “wow.” Not doing legal research is bad enough, but admitting it to a judge..... Roger the Shrubber(Quote)
~aardvark says:
If you believe that, I very much hope that you are not a lawyer licensed to practice anywhere in the US. Even if there was an issue of statutory rape, you have absolutely no idea what an “accessory after the fact” is. ~aardvark(Quote)
~aardvark says:
“Morning after” pills do not abort fetuses. There is no “father” in this case since there was no pregnancy (even if you believe in a fetus being an unborn child). In fact, we have no idea if there was even a potential pregnancy. The point of the pill is to prevent pregnancy even if the woman is ovulating and has unprotected sex. In all other cases it does absolutely nothing.
And if affirmative defense applied here, there is no crime and no victim–affirmative defense implies admission to the facts but disclaiming that there was any criminal conduct, not that there was a crime committed, but the actors are excused. ~aardvark(Quote)
~aardvark says:
They are ignorant of the law, ignorant of physiology and ignorant of the respective technology, not to mention the options that accompany it. The only thing that they do know is that they are right–a classic case of “open your mouth and remove all doubt”. And when they get tired of making up facts, they resort to attacking “relativism”. ~aardvark(Quote)
Chris Travers says:
I am not a lawyer and that one raised all sorts of alarms in my head.
I have been on the edges of some legal problems in the past and have done my own cursory research to try to get a handle on what I needed to do to avoid trouble. Call me paranoid, but if I can’t look things up myself, I won’t follow a lawyer’s advice (after all it’s my neck on the line not his). Chris Travers(Quote)
markm says:
If you believe, as “Raving Atheist” and many religious people do, that a single-celled organism with a unique set of human DNA is already a “person”, then there is an appreciable chance that the morning after pill will kill such a person. If you’ve got to go out and buy that pill the morning after, it will generally be 8 to 12 hours after intercourse before you take it, and even longer for the hormones to get into your bloodstream. There’s a pretty good chance that if you were going to get pregnant in the first place, ovulation and fertilization has already happened by then.
But because the m-a pill is a high dose of female hormones, there’s a second chance at preventing a recognizable pregnancy. All the hormones from the m-a pill will swamp the hormones that the tiny little blastocyst is emitting to prepare the uterus for implantation. And then, as the artificial hormones are cleared from the body, the uterus reacts by going into menstruation, shedding it’s surface cells and bleeding. It’s an amazingly tough and lucky blastocyst that manages to grab a stable spot and hang on through this.
So, a few percent of m-a pills will cause a microscopic being with a unique set of human chromosomes to be flushed down the toilet. For those who are unable to see anything more important about humanity than the germ line (such as, say, a nervous system), this is a “baby” getting flushed away. You don’t know when it happens, but it’s certain that it does happen many times every week. markm(Quote)