CAN PRODUCE GRAVE INJUSTICES
By John Weston Parry, J.D.
In our legal system what do people who have—or are thought to be potential carriers of—the Ebola virus, pregnant women in states with highly restrictive abortion laws, and people with mental disabilities, have in common? Because of their statuses as individuals with medical needs who are feared, disliked, or disfavored, they may be subjected to legal actions based on irrational prejudices, impressionistic opinions, or unreliable diagnoses that without rational justification penalize them for being threats to a particular community or its established beliefs. Emergent civil rights violations against potential carriers of contagious diseases and women who carry fetuses that are valued more than the women themselves, parallel in disturbing ways what has been happening to large numbers of people with mental disabilities for decades. All of these individuals and the groups they belong to are highly vulnerable to being victimized by politicians, judges, and juries, who have breached or minimized their responsibilities to implement laws fairly and justly.
Unfortunately, discriminatory laws and legal policies, which unfairly marginalize the rights of people, who are viewed as being a threat or affront to various communities based on subjective beliefs rather than actual knowledge, have been expanding. This has become a slippery slope of the communitarian ideal in which the views of empowered constituencies overwhelm science and empirical evidence with impressionistic opinions and cognitive dissonance. With too many of our most vital social issues, despite the existence of persuasive knowledge to the contrary, we continue to implement popular or politically convenient beliefs to our detriment. In this post-modern paradigm, anti-intellectualism is viewed as a virtue. Politicians, including Governors Rick Perry, Chris Christie, Andrew Como, and Paul LePage, become more politically viable by practicing demagoguery rather than nuanced leadership.
Why should people take the time and effort to understand an issue if they can arrive at a far more popular outcome by embracing a widely-held belief? As long as Americans continue to ignore or minimize the collateral damage to the rights of vulnerable groups, which our empowered constituencies dislike, devalue, or fear, these types of laws and policies will have little or no opposition. In the process, groups such as the American Civil Liberties Union and the Centers on Disease Control, which are willing to challenge this nonsense, will be viewed with distrust and hostility based on irrational dissonance that makes those who challenge popular beliefs with knowledge the enemy. Making matters worse—as noted in a recent New York Times editorial—Attorney Generals, who strongly influence and implement the legal policies of our states, are now subject to crass lobbying efforts in which “companies [and other interested organizations] give hundreds of thousands of dollars (and often much more)…to elect [them].” Thereafter, “once in office, many of these officials are treated to expensive vacations at resort hotels, where they mingle with lobbyists…trying to make deals for their clients” and various other constituencies.
Thus, in many ways, given the socio-political culture that we have in place, it is not surprising that much of our legal system has been used to marginalize the civil rights of potential carriers’ of infectious diseases, pregnant women, people with mental disabilities, and other disfavored groups. The most voluminous examples of such contempt for individual rights occur when people with mental disabilities are incarcerated in the criminal justice system. Inside almost any detention center where state and federal governments house inmates with mental disorders will be the most awful conditions of mistreatment, abuse and neglect. One disillusioned psychiatrist, Stephen Seagar, who works in a California forensic mental hospital, recently acknowledged that these types of facilities provide perpetual “`sorrow, sadness and hopelessness,'” rather than humane care and treatment, which could make the residents better. Tragically, conditions for the much larger number of inmates with mental disorders, who remain in the regular prison populations, are even worse. (See, John Weston Parry, Mental Disability, Violence, and Future Dangerousness: Myths Behind the Presumption of Guilt (Rowman & Littlefield, October 2013).
Perhaps the surprise is that many more unpopular or devalued groups have not been affected by these politico-medico-legal dynamics, at least not yet. But what will happen if our health care system for poor and economically distressed Americans is further marginalized under the weight of profound greed and self-interest and immigrants become our enemies? As Americans in a post-modern world, we are resigned to accept wrongs we think cannot be changed or changed to benefit us.
We have become a segmented society that appears to be immune to mass injustices when wrongs do not involve ourselves, our relatives, our friends, or a homogenous circle of people on social media. As David Brooks has observed, it is a “society almost perfectly suited for contagions of hysteria and overreaction” in which “feelings of intellectual inferiority toward people in authority...turns into corrosive cynicism...” Isolation and cynicism in turn breed “fear” which has become the “anti-science...fog that alters perception and clouds thought.” What this produces in the “American body politic” suggests Google and market strategist, Nicholas Colas, is “`an odd mixture of hostility and apathy.'” It also is a society in which justice has become a fungible commodity.
Ebola and Other Contagious Diseases
What has happened already when only a handful of people with the Ebola virus landed on our shores should be a warning of things to come if there were a potentially lethal epidemic or biologic attack. Popular opinions rather than medical science would heavily influence our policies with regard to quarantines and other rights deprivations aimed at suspected carriers. Our legal system would not be well-equipped to rebuff the hate, fear, and money-driven beliefs of many Americans, the demagoguery of our politicians, or the subjective impressions and opinions of self-interested medical and other health and pseudo-health experts. In fact, there is every reason to believe that it is far more likely that our laws and courts would be used to bring about increased rights deprivations, particularly since the appointment and election of judges have become more political and financial, and the definition of a national or state emergency continues to be broadened well beyond its constitutional origins.
Some of the worst political excesses were on display in many parts of the country with the recent Ebola scare. Governors in a number of states viewed the need to take steps to control a small domestic outbreak of the deadly, but difficult to transmit, virus as an opportunity to manipulate their voters, rather than to support or initiate rational public health policies. Governor Perry of Texas began the procession of duplicity after the virus first visited the United States in Dallas. He erred on the side of plausible deniability and self-preservation for his state’s medical system. Perry and state health officials deliberately understated the potential threat caused by inadequate medical training and protocols in Texas for dealing with contagious diseases such as Ebola. In the end, the affected patient died and several health care workers were exposed unnecessarily, including two who were allowed to travel on an airplane and cruise ship, respectively, without any thought given that this might be a problem.
Unfortunately, the national panic that was created morphed into liberty-constricting overreactions and rights violations in other states, most notably New Jersey, New York, and Maine. Not coincidentally, the governor making the most headlines in this regard was the one hoping to have a run at the presidency in 2016, who also happened to be the Chair of both the National and Republican Governor Associations: Chris Christie of New Jersey. Rather than being a leader by dealing with the Ebola crisis in a measured, medically-sophisticated manner, he used and inflamed the pre-existing fear as a platform to score political points. Both he and New York’s Democratic Governor Cuomo decided to ignore public health recommendations from the Center on Disease Control and other respected medical organizations and to invoke overly-broad, mandatory quarantines. Thus, the seeds for the possible future mass internment of American citizens and residents—reminiscent of the Japanese detention camps in World War II or persons with mental disabilities today—were planted should there ever be a full-blown epidemic involving a contagious disease.
Instead of establishing protocols for monitoring the health symptoms of individuals, including health workers arriving in the United States, who may have been exposed to the Ebola virus, these two governors established mandatory 21-day quarantines, regardless of the individual circumstances involved. Soon other jurisdictions followed, including Maine and Louisiana. The perpetuation of these narrow selfish interests left American doctors and health care workers, who wanted to help squash Ebola and other potentially lethal virus in parts of Africa and other areas of the world, which have poor medical infrastructures, in a quandary. These volunteers had to decide whether their commitment to do the right thing was worth the risk of lengthy quarantines and public antagonism.
Making matters worse, the chill from such governmental legal actions will continue to deter dedicated health care workers in the future, unless our laws and policies are changed in light of this experience. According to the Voice of America, “infectious disease experts say the risk of getting Ebola, even from someone who has just started a fever, is very low.” Spread of the disease requires “`[i]ntimate contact with infectious bodily fluids....” Nevertheless, public opinion polls in New Jersey supported Governor Christie's intrusive actions about two to one, while less than 40 percent supported the federal government, which had followed the CDC’s public health guidelines. Overall, reported Aaron Blake in the Washington Post, “80 percent of Americans supported the concept of some kind of quarantine.”
Quarantine is a type of “emergency” involuntary civil commitment, which usually begins with some form of house arrest without due process, but can begin with prison-like incarceration right away, or turn into it for those who violate any of the restrictive conditions of their quarantines. It is very similar to what happens to people with mental disabilities when they are perceived as creating a threat to the community. The difference is that unlike extended civil commitment, which must be authorized by a judge after what at least resembles a due process hearing, extended quarantines may be imposed unilaterally by a governor or other designated state officials, in the guise of an emergency. In the past, an emergency required that there be a “real and present danger” to the public. Today, all that is required appears to be an irrational or unsubstantiated fear that something bad might happen if these extraordinary measures are not followed.
Victims of quarantines may sue after they have been committed to government incarceration, but they must overcome difficult obstacles in the legal system that have little to do with justice. These include: a legal definition of “emergency” that continues to encompass more and more situations in which there is no clear and present danger; governments that have far more resources at their disposals than almost any of these detained individuals can muster; an ever increasing percentage of judges who are subjectively swayed by the perceptions of community safety and other political or financial considerations; paid experts who will testify on behalf of the prosecuting governments in ways that support their employer's or constituency’s positions whatever they may be; and most of all “concerned” citizens, who are convinced that quarantines and other restrictive measures are justified, even if a large percentage of false positives result in many people being quarantined, who were never a risk or whose risk could be managed successfully in less-intrusive ways.
One person who had enough sense and courage to fight the recent American Ebola quarantine policies was Kaci Hickox, a nurse who went to West Africa as a volunteer to help people with the Ebola virus. When she returned, Hickox was—as she described to the Guardian--“`quarantined against [her] will by overzealous politicians [who used] fear… to disregard medical science and the Constitution in hopes of advancing their careers.’” Hickox’s ordeal began the moment she landed in Newark, New Jersey.
Governor Christie had issued an order that anyone flying into Newark, who had been in contact with the Ebola virus, should be quarantined. Hickox was held indefinitely even though she had no symptoms of the disease and had tested negative for Ebola. Instead of relying on established public health protocols, Christie drummed up support for his actions by being deceitful. He falsely claimed that Hickox was “`obviously ill,” even though there was no evidence, either then or anytime thereafter, that she had symptoms of the virus. As a result, Hickox became widely known and often disparaged as “the Ebola Nurse.” After being held for three days in what the New York Daily News described as “Christie’s Ebola detention center at Newark Liberty Airport,” Hickox was subject to another political quarantine when she returned to her home in Maine.
Hickox’s governor, Paul LePage, demanded that she be placed under house arrest. In addition, Hickox's life partner, who was a senior nursing student at a nearby branch of the state university, was barred from his campus. Irrational fears about Ebola spread to other jurisdictions as well. For example, in Louisville, Kentucky, a religious studies teacher, who had visited Kenya as part of a missionary trip, was told not to come back to school for three weeks, even though Kenya has had no recorded cases of Ebola and the teacher had no symptoms. Hickox, however, cautiously resisted her quarantine, taking widely publicized bike rides with her boyfriend, but without coming into direct contact with other people. When state officials objected, she ignored them and the state took her to court to enforce its unilateral order.
According to the New York Times, the chief judge for that state’s district courts decided to follow public health guidelines. He required Hickox to be monitored daily for symptoms of Ebola, to inform public health officials should any symptoms appear, and to coordinate any travel plans with those officials. His decision, however, precluded the state from imposing additional restrictions on Hickox. He understood “`that we owe [Hickox] and all professionals who give of themselves in this way a debt of gratitude.”
The standard in Maine for quarantine is comparable to most other jurisdictions: whether the imposed restrictions are necessary “`to avoid a clear and immediate public health threat,’” which the state failed to establish in this case. Mere exposure or presumed exposure to the Ebola virus should not be enough to justify involuntary detention without the presence of actual symptoms, given the fact that until symptoms appear there is no significant health risk. Thus, close monitoring of symptoms for those who have come in direct contact with Ebola patients is all that the law should allow, both with respect to asymptomatic individuals who are in the United States and American citizens traveling abroad. This approach would reflect the protocols established by the Centers of Disease Control in the United States and the European Centre for Disease Prevention and Control in Europe, rather than fear-driven public opinion.
Laws Protecting the “Unborn” That Violate the Rights of Pregnant Women
A somewhat different public mindset has driven the enactment and enforcement of laws that violate the civil rights of pregnant women. It is a belief, which has been transformed into an unshakable conviction, fetuses are to be valued equally or more so than the women who are pregnant with those fetuses, especially if those women engage in antisocial behaviors or come from devalued socio-economic backgrounds. To a certain extent this reflects the essence of the abortion debate, but at the periphery it also involves some of the most extreme outcomes that anti-abortion laws can generate. As compared to quarantines, which are fueled mostly by fear-based beliefs, pregnant women may become victims of those who claim to be morally superior and thus dislike and even hate them based on the perception that these women may be morally inadequate.
Abortion is a very difficult subject for many reasons, but in terms of morality, it is reasonable to conclude that there are two legitimate values that are set against each other. Thus, there must be a balancing of legitimate interests for there to be a just result. Ultimately, what the pro-choice side contends, and the Constitution as interpreted by the Supreme Court requires, is that fetuses may not be valued more than the women who are pregnant with those fetuses. In addition when their rights conflict, pregnant women are supposed to be valued more highly that fetuses. Yet, because of anti-abortion laws that are overly broad and ill-conceived—even for the controversial purpose of protecting the rights of a fetus to be born—women, who are pregnant and intend to give birth, have been placed in legal jeopardy of having their fundamental rights trampled on. Unfortunately, that jeopardy already has been realized by many women.
Regardless of what one believes about abortion, laws that indiscriminately try to advance the rights of not only fetuses, but embryos and fertilized eggs, in the guise of bestowing them with personhood—which would provide them with the same rights as citizens and residents of the United States—have created hundreds of injustices. Unfortunately, these numbers are likely to mushroom into the thousands, if more of these laws are enacted and enforcement is increased. In a New York Times op-ed piece, Lynn Paltrow, a lawyer and executive director of the National Advocates for Pregnant Women (NAPW) and Jeanne Flavin, a sociology professor on the NAPW board, recently explained, based on their own detailed nationwide study, what has been happening with these laws for over four decades.
The problem is that these vague legal proscriptions have been used by overzealous prosecutors and judges to arrest, prosecute, penalize, and operate on pregnant women, if either perceived harm should come to their fetuses, even if it was accidental, or such perceived harm might—or might not—occur in the future. In the 32 years between 1973, when the Supreme Court decided Roe v. Wade and 2005, Paltrow and Flavin identified 413 such cases. In less than nine years since, they found 380 new cases, which represent a “`seismic shift,'” reflecting the number of additional anti-abortion laws that were enacted in recent years. Furthermore, for every case in which there is an official record, there undoubtedly are more instances in which coercion is delivered using the threat of official action.
Essentially, there have been at least four different types of situations that have led to these kinds of intrusive and punitive actions against pregnant women. They have occurred in both our criminal and civil justice systems. Criminal arrests and prosecutions have involved a variety of charges against women who are presumed to have deliberately or negligently harmed their fetuses, not by getting an abortion, but by causing harm or perceived harm to themselves now or in the future. The most common prosecutions have been against women who have ingested drugs or alcohol while they are pregnant, particularly those who are viewed as being addicted. In jurisdictions where a fetus is given the rights of a child, these women may be jailed for child abuse until they give birth—or much longer than that. In addition, these mothers are likely to lose their parental rights or at least have them substantially diminished.
Similarly, women who are pregnant and have a mental disorder are being arrested and jailed if their condition threatens their fetus, particularly if they have attempted suicide or it is thought they will commit suicide. Dangerousness to self like dangerousness to others is extremely difficult to predict reliably, even if it already has occurred once, and those predictions are subject to being influenced by impressionistic opinions with little empirical bases. If an actual suicide attempt takes place and the fetus is injured, then child abuse charges might be lodged. In South Carolina, for instance, a suicide attempt that resulted in a “lost pregnancy” led to a conviction of the women involved for “homicide by child abuse.”
A third type of criminal arrest and potential prosecution and conviction may occur if a woman is injured or delays in getting medical treatment and authorities believe she did it to deliberately injure or kill her fetus. Paltrow and Flavin cited two examples of this. An Iowa woman was arrested for “`attempted fetal homicide'” after she fell down the stairs and later hospital staff reported her to the police. Also, a Louisiana woman was convicted of second-degree murder, after she went to the hospital “for unexplained vaginal bleeding,” which was presumed to be due to a self-inflicted abortion. Over a year later, she was released from jail when “medical records revealed she had suffered a miscarriage at 11 to 15 weeks of pregnancy.” Thus, there could not have been an illegal abortion as was alleged.
Sometimes civil prosecutors and judges are the main culprits when they use laws to protect the fetus by forcing the pregnant women to undergo cesarean surgery to give birth. As outrageous as this might seem, it does happen, even if there is no specific law on the books permitting it. In Florida, a woman, opting for a home birth, was forcibly taken in an ambulance to a hospital and compelled to have cesarean surgery without a prior court order. Afterwards, a judge justified those draconian governmental actions because the rights of the plaintiff “'clearly did not outweigh the interests... in preserving the life of the unborn child.'” Similarly, a judge in Washington D.C. ordered a cesarean procedure for “a critically ill...woman... which he understood might kill her.” The judge was persuaded that in those circumstances “he had an obligation to give [the] fetus a chance for life.” Both the mother and baby died.
Every day the rights of vulnerable people may be jeopardized, marginalized, or abused by true believers, who cannot or do not want to be persuaded by science, empirical evidence, and other types of knowledge. Somehow these prejudicial beliefs are allowed to prevail, whether they involve unreliable predictions or impressions about dangerousness, religious teachings, or the desire to advance other unsubstantiated convictions. This is primarily because our legal system is poorly designed to incorporate knowledge into our statutes, regulations and courtrooms.
Legal fictions often are used to justify and explain these legal deficiencies under the convenient umbrellas of due process, the rules that govern the admissibility of evidence, judicial discretion, legislative prerogatives, and other traditional legal notions that in many contexts have served the legal system well. Unconscionable injustices have become commonplace, however, because the American legal system is way behind the times in terms of incorporating knowledge and too often resistant—and even incapable—of moving fast enough to ensure justice and fairness for those who are—or may be—victimized by popular ignorance.