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Abstract:
State governments have devised a new means to evade the Constitution. Their new means is to enact tort statutes that, in effect, ban constitutionally protected conduct. In particular, some states have made the provision of an abortion a tort for which there can be no defense and no cap on the amount of liability. These states have made performing an abortion essentially illegal. Yet, because tort statutes are enforced through private litigation, rather than public prosecution, a number of courts have held that they lack jurisdiction to review these laws. Federal courts have concluded that standing doctrine and state sovereign immunity bar judicial review of any privately enforced tort legislation. These courts have refused to recognize that this new breed of tort statute attempts to "privatize" the government's restriction of constitutional rights. States have taken a law that would clearly be unconstitutional were it properly treated as "public" law, and immunized it as "private" tort law. Courts have refused to disallow this manipulation of the public/private distinction embedded in our system of law. This Article proposes a novel method for analyzing tort legislation that violates fundamental rights. It provides a framework for understanding how state legislatures are attempting to privatize governmental regulation. It then proposes a new solution that satisfies the requirements for federal court jurisdiction, but also ensures that state legislatures do not cloak deprivations of fundamental rights under the veil of private rights of action.

abortion, constitutional rights, tort laws, federal courts, standing, sovereign immunity, gender, women

Abstract:
In Gonzales v. Carhart, the Supreme Court upheld a federal ban on a type of second-trimester abortion that many physicians believe is safer for their patients. Carhart presented a watershed moment in abortion law, because it marks the Supreme Court’s first use of the anti-abortion movement’s “woman-protective” rationale to uphold a ban on abortion and the first time since Roe v. Wade that the Court denied women a health exception to an abortion restriction. The woman-protective rationale asserts that banning abortion promotes women’s mental health. According to Carhart, the State should make the final decisions about pregnant women’s healthcare, because the State knows better than the woman herself that her “ultimate” role is as a mother. Carhart’s woman-protective reasoning has pernicious and far reaching implications for gender equity in healthcare. This Article critiques the woman-protective anti-abortion argument from the perspective of healthcare law. It compares women’s healthcare decision-making under abortion law to patient decision-making under more general law. This Article is the first to demonstrate that the woman-protective argument against abortion is an anomaly in the law’s treatment of patient healthcare decision-making. It argues that the denial of pregnant women’s decision-making capacity in abortion law unjustifiably diverges from the law’s respect for patient decision-making capacity in both the tort law doctrine of informed consent and in constitutional law cases governing medical decision-making. In contrast to both private and public law on patient decision-making, abortion law treats competent adult women as incompetent to make decisions about their own healthcare. That abortion law treats women as poorer decision-makers bolsters the claim that sex discrimination underlies abortion regulations.

abortion, gender equality, health law, public health, informed consent, constitutional law, women, sexuality, reproductive rights

Abstract:
This brief comment extends upon a key point raised by Caitlin Borgmann’s article, Holding Legislatures Constitutionally Accountable Through Facial Challenges, which argues in part that the Roberts Court takes an outcome-driven approach to facial challenges. Building on Borgmann’s analysis, this comment further suggests that the Court not only manipulates the law in an outcome determinative manner, but also exploits the rules regarding the use of as-applied and facial challenges as a means to rewrite substantive law without having to openly overrule prior precedent. This comment focuses on Gonzales v. Carhart as an illustration of the Roberts Courts’ manipulation of procedural rules regarding as-applied and facial challenges to cloak its overruling of substantive precedent. This comment also suggests that, given an environment of hostility towards facial challenges, civil rights litigants might better succeed in preserving constitutional rights by seeking narrower injunctive remedies against unconstitutional regulations rather than seeking total invalidation of such regulations.

constitution, constitutional law, constitutional litigation, facial challenges, as-applied challenges, abortion, health, Gonzales v Carhart, Roberts Court