Volume 57, Issue 1

4 posts

Making It Right: Preserving Wrongful Birth After Dobbs

By Natasha Statz-Geary

In overturning Roe v. Wade, the U.S. Supreme Court opened the floodgates for anti-abortion laws to sweep the country, radically transforming the legal landscape surrounding prenatal care. On the criminal side, centuries-old abortion bans have been given new life following Dobbs. On the civil side, statutes have empowered private citizens to sue anyone who “aids and abets” an abortion. These concerns have dominated much of the legal discourse following Dobbs, but another civil cause of action implicated in the decision has received little attention: wrongful birth.

Wrongful birth is a medical malpractice claim brought by parents who assert that but for a doctor’s negligent failure to detect a fetal abnormality, they would have terminated the pregnancy. Despite criticisms from disability activists and anti-abortion groups alike, the tort has served its dual aims of compensating victims and deterring negligent care for over fifty years. Scholars have long believed that the cause of action was made possible by Roe; following Roe’s reversal, the tort’s future is unclear. Wrongful birth is in jeopardy at the precise moment when women need it most. Deterrence and financial compensation are more important than ever in a world with more pregnancies and ambiguous legal standards.

This Note examines wrongful birth’s viability post-Roe and argues that the cause of action can remain available. After reviewing the tort’s history and arguing that it is not dependent on Roe, this Note proposes three novel theories plaintiffs can utilize to recover for wrongful birth: (i) an expanded “loss of deliberation and preparation” theory that encapsulates the harm flowing from delayed diagnosis and the lost chance to travel for a legal abortion; (ii) a statutory interpretation analysis through which plaintiffs can argue that their child’s condition would have fallen under an abortion-ban exception for fetal anomalies; and (iii) a choice of law analysis for plaintiffs whose prenatal care crossed state borders.

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He/She/They “Say Gay”: A First Amendment Framework for Regulating Classroom Speech on Gender and Sexuality

By Zachary A. Kayal

In an era of profound polarization over the nature of gender and sexuality, and children’s exposure to discussions thereof, states and school boards of all political inclinations are moving swiftly to regulate educators’ speech about such topics in public classrooms. Liberal authorities enact “pronoun policies” requiring teachers to use transgender and non-binary students’ gender-affirming names and pronouns. Conservative authorities, meanwhile, largely prohibit teachers from talking about gender and sexuality through anti-queer curriculum (or “Don’t Say Gay”) laws. Despite their opposing goals, these policies seem constitutionally indistinguishable on their face—both are regulations of educators’ classroom speech, subject to the same First Amendment standards.

This Note argues that constitutional lines can and should be drawn between these policies based on the effect of the regulated speech on third parties. Part I reviews the First Amendment standards that could apply to pronoun policies and anti-queer curriculum laws. Part II argues that these types of policies regulating educators’ classroom speech can be distinguished from one another using an egalitarian framework, which accounts for the impact of the regulated speech on students’ expression and the overall expressive environment of the classroom. Though First Amendment jurisprudence usually forecloses such arguments about third-party expressive interests, the standards governing classroom speech uniquely allow for their consideration. Part III applies that egalitarian framework to the two kinds of policies at issue. It posits that the negative effects of misgendering—chilling the protected expression of transgender students and poisoning the classroom speech environment—justify pronoun policies. But anti-queer curriculum laws regulate speech that poses no such risks, so they violate the First Amendment.

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Keeping Ferris Out of Foster Care: Reforming the JJDPA to Prevent Home Removals Based on Truancy

By Rose Wehrman

Truancy is directly correlated with negative educational and life outcomes for students.  The state exacerbates these negative effects when it removes students from their homes for truancy.  Far from addressing the underlying causes of truancy, home removals—whether into secure or non-secure placements—cause devastating harm.

The Juvenile Justice Delinquency and Prevention Act (JJDPA) allows, with some restriction, for children to be incarcerated for truancy.  Additionally, the JJDPA has never regulated the civil removal of juvenile status offenders to non-secure yet prison-like placements.  JJDPA reform has so far focused on the harms of incarceration—a worthy cause, but one that must not overshadow the overlapping harms of non-secure removals.

This Note argues that truancy should not be handled by removing children from their homes and proposes revisions to the JJDPA that would bring the Act closer to its purpose: preventing delinquency and providing necessary services.  To achieve the intended purpose of the JJDPA, Congress must implement further reform.  This Note offers an analysis of how non-secure home removals intersect with the JJDPA and extends existing discourse through its analysis of post-2018 valid court order (VCO) exceptions.  Ultimately, this Note demonstrates how non-secure civil removals and VCO incarcerations frustrate the intended purpose of the JJDPA.

Part I discusses the scope of the truancy problem and the JJDPA’s background and context.  Part II offers insight into the unique harms of home removals, and Part III demonstrates how current loopholes frustrate the purpose of the JJDPA.  Part IV suggests revisions to strengthen the JJDPA’s protections and more closely align the bill with its purpose.

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Lethal Paralytics and the Censorship of Suffering

By Drew S. Brazer

Approximately two dozen states utilize a three-drug lethal injection method to execute condemned persons.  This protocol consists of (i) an anesthetic or sedative; (ii) a paralytic; and (iii) potassium chloride (which stops the heart).  The purpose of the paralytic is purely cosmetic: it prevents witnesses from having to watch the condemned person convulse as they die.

This Note argues that when a condemned person chooses to refuse a lethal paralytic, they are engaging in First Amendment-protected expressive speech.  State regulations requiring the use of a paralytic warrant strict scrutiny because they (i) restrict speech based on subject matter; (ii) are a form of prior restraint; (iii) discriminate based on viewpoint; and (iv) compel speech.  The state’s interest in requiring the paralytic—to censor the violence of the condemned person’s death—is neither legitimate nor compelling.  As such, lethal paralytic requirements fail strict scrutiny and violate the First Amendment.

Part I of this Note outlines the history of capital punishment and the advent of lethal injection in the United States.  It details the various constitutional challenges that have been brought to bear against lethal injection protocols generally, and the use of paralytics specifically.  Part II examines the constitutional rights of incarcerated persons and considers whether an individual’s decision to refuse a paralytic can be considered expressive speech under the Spence-Johnson test.  Next, it contemplates the appropriate standard of review for regulations requiring the use of a paralytic.  Finally, it examines whether lethal paralytic requirements can survive strict scrutiny or any lesser standard of review.  Part III explores the policy implications of recognizing a condemned person’s right to refuse lethal paralytics.  Not only would acknowledging such a right advance the fundamental values of the First Amendment, it would also help to prevent needless pain and suffering.

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