Susan G. Komen Foundation Marches Into Rightwing Camp

The Susan G. Komen For the Cure Foundation has cut funding to Planned Parenthood. Komen previously provided grants to fund breast cancer screenings by Planned Parenthood medical professionals.

Recently, however, Komen hired an anti-choice Vice President, Karen Handel, who was recently an unsuccessful candidate in the Georgia gubernatorial election. Handel actively campaigned on an anti-choice and anti-Planned Parenthood platform. She also received an endorsement from Sarah Palin.

Komen defends its decision by citing to a "new" rule it adopted that denies funding to groups under Congressional "investigation." Last year, House Republicans launched a partisan investigation to determine whether Congress should continue funding Planned Parenthood's non-abortion family planning and health services. That investigation, however, has not proceeded, due to opposition by Democrats. Because of this context, Komen's new rule seems plainly designed to target and justify the defunding of Planned Parenthood.  Furthermore, because liberals tend to support women's health issues and abortion rights, this decision could prove harmful to Komen.

Planned Parenthood has released a statement that criticizes Komen.  Planned Parenthood has also started a campaign to raise funds in order to continue providing breast cancer screenings for its indigent patients. Komen's decision is not based on good healthcare practices. Instead, it rests on partisan political ideology. Shame.

Kentucky Lawyer Faces 6-Month Contempt Sentence For Obeying The Law

Amelia Mikki Adams, a Louisville, Kentucky, lawyer, received a 6-month contempt sentence for refusing to reveal the name of her minor client to a judge. Adams represented "J.J.," a 17-year-old female, who sought judicial approval of her decision to have an abortion.

According to Supreme Court precedent, states can require minors to obtain parental consent prior to having abortions. These states, however, must provide a "judicial bypass" option for mature minors to seek an abortion without parental consent.

During the bypass hearing, J.J "testified that her parents drink to the point of intoxication every day, leaving her and a younger sister to make their own meals and take care of themselves. . . ." The judge ruled that she was mature enough to have an abortion without parental consent.

Later the judge demanded that Adams reveal J.J's name, saying that she wanted to report the parents for child neglect. Adams refused because Kentucky law allows for anonymous bypass hearings and because ethical rules for attorneys prohibit attorneys from disclosing confidential client information. Although state law requires persons to report suspected incidents of child neglect or abuse, the law contains an exception for abuse learned of through an attorney-client relationship.

After the judge continued pressing for the information, Adams told the judge that she only knew her client's first name. Adams, however, immediately withdrew this comment, stating that she misspoke. The judge, however, later sentenced Adams to 6 months of incarceration for misleading the court and for failing to reveal J.J.'s name. The contempt ruling is currently under appeal, and the judge has stayed the contempt ruling pending appeal.

My Take

While Adams was wrong if she intentionally mislead the judge, the judge's request seems to violate Kentucky's bypass statute and its attorney ethical rules (which are similar across the nation). This alone would probably provide a basis for the appeals court to reverse the contempt ruling.

Improper Procedure Finding Contempt?

There is another possible angle that the appeals court could consider, but which media accounts have ignored. There a several kinds of contempt -- coercive and compensatory civil contempt and criminal contempt. Furthermore, contempt can be direct, or in the presence of the court, or indirect, taking place outside of court.

If a court imposes imprisonment or a fine under circumstances where the individual has no way to avoid the penalty, this constitutes criminal contempt. Contrast this with the situation where the court imposes a daily fine or jail term in order to coerce compliance with its orders (coercive civil contempt).

Supreme Court precedent requires courts to extend more due process to persons charged with criminal contempt. Although Kentucky law and the Federal Rules of Criminal Procedure permit summary proceedings for direct criminal contempt, these rules exist to prevent disruption to the legal proceeding. Although the facts of this case are unclear, it seems that the proceeding was virtually over and the court had already rendered its decision when the judge found Adams in contempt.

Under circumstances such as these, it is unclear whether a summary proceeding without notice or a hearing is permissible. As the Supreme Court held in UAW v. Bagwell, the leading case on this issue:

Summary adjudication becomes less justifiable once a court leaves the realm of immediately sanctioned, petty direct contempts. If a court delays punishing a direct contempt until the completion of trial, for example, due process requires that the contemnor's rights to notice and a hearing be respected. There "it is much more difficult to argue that action without notice or hearing of any kind is necessary to preserve order and enable [the court] to proceed with its business. . . ." Direct contempts also cannot be punished with serious criminal penalties absent the full protections of a criminal jury trial (italics added).

Because the facts surrounding the contempt ruling are not thoroughly reported in press accounts, it is unclear at this point whether the Kentucky judge complied with Supreme Court doctrine. Adams could also argue that the 6-month sentence constitutes a serious penalty under the circumstances. Regardless, Adams has a great basis for an appeal, given the weight of law that leans to her side.

UPDATE: This article was edited for clarity.

Charlie Crist Vetoes Abortion Bill

Florida Governor Charlie Crist vetoed a Republican-sponsored abortion bill that would have required a woman seeking an abortion to pay for an ultrasound and receive a description of the fetus from her medical provider. Women would not have to comply with this requirement if they could substantiate that they were the victims of rape, incest, domestic violence or sexual trafficking.

Earlier this year, Crist left the Republican Party and is running in the US Senate election as an independent. Most polls show him leading his challengers Republican Marco Rubio and Democrat Kendrick Meek.

The Kagan Memos: How Will Progressives React?

Politico has reviewed several policy memos that Elena Kagan wrote in her capacity as an adviser to President Clinton. The memos are held at Clinton Presidential Library in Arkansas.

It is difficult to use the memos to predict how Kagan would decide cases as a judge, because she was advising Clinton to do things largely as a part of political strategy. Nonetheless, because Kagan has not expressed a wide range of ideas in her legal scholarship, the memos, along with other materials and the confirmation hearings, will inevitably serve as a rough method for trying to understand her stance on social and political questions.

Politico's analysis will certainly raise concerns among many progressives. Here are some highlights.

* Kagan advised Clinton to reject a proposal to expand Medicare coverage of abortions. At the time, the health plan covered abortion when the life of the mother was at risk, but pro-choice advocates wanted to loosen the restriction. The expanded coverage would have included cases of rape or incest. Kagan advised Clinton to reject this option.

* Kagan also advised Clinton to support an amendment to a "partial-birth" bill that would allow the procedure only when not doing so would "risk grievous injury" to the mother's health. Congress eventually passed a bill without a health exception, which Clinton vetoed. The grievous injury language was probably unconstitutional under then-existing doctrine. The Supreme Court later invalidated a Nebraska partial-birth law that lacked a health exception, and its abortion cases had forcefully mandated that abortion bans include a general health exception (not limited to grievous injury). After O'Connor retired, however, the Court upheld a federal ban passed during the Bush administration, even though it lacks a health exception.

* Kagan also advised Clinton to retreat from efforts to reduce the sentencing disparity between crack and powder cocaine. The Federal Sentencing Commission recommended invalidating it, and critics had long pointed out that the disparity was not scientifically justifiable and that it led to a pronounced racially discriminatory effect. Kagan, however, advised Clinton to maintain the status quo: “Our more nuanced message will not sell as well as the ‘tough on crime’ opposition message in an age of sound bites. . . .”

* Also related to crime, "[o]ne memo . . . includes easy-to-sell policy ideas" including "broadening police powers to 'stop and frisk suspicious characters' and putting a 'cop in every school.'"