Mock Court Term Thread VOTE FOR CHIEF JUSTICE!!!

[Mr. Reactionary]

Mr. Justice Warren

I am intrigued by your finding of a right to receive medical care.  Are you establishing this as a right derived from the Constitution itself, or as a part of the compact between a physician and their patient stemming, for example, from the Hippocratic Oath?

Our position is not that a citizen has a fundamental right to receive medical care. Rather, we argue that a citizen has a right to be free from government interference in seeking medical care. It is impossible to guarantee medical outcomes. In many rural communities, there may not even be adequate facilities to guarantee any treatment at all for some conditions.

Seeking medical care is part of our perpetual struggle against the elements, against time, against death. The right to continue in our life and liberty. One's body, one's being, one's self is much more important than the mere property interest a person may have in chattel or land. For this reason, interference with medical treatment is much more threatening to ordered liberty than laws only implicating property.

This right can be seen in societal norms. The Hippocratic oath certainly suggests that society places great value on medical care in preventing death and harm. Without so rigid an oath, the odds of more persons losing their lives or well being (fundamental rights on their own) become certain. Society recognizes that patient's have the right to refuse medical care, and a doctor is bound by that decision. Surely the rights implied in life and liberty extend to citizens who become ill.  

Again this Court has already recognized the right of a woman to be free from government intrusion into such fundamental matters as whether or not to bear a child. Eisenstadt v. Baird, 405 U.S. 438, 454 (1972). Surely personal medical decisions qualify as well. Deciding whether or not to apply for an organ donation, or to buy insulin, or to accept cancer treatment is certainly a fundamental matter of the utmost importance to an individual.

Prohibitions on seeking medical care represent a barrier to fundamental liberty. Consider hypothetical laws mandating medical rationing, or prohibiting persons with certain disabilities or conditions or persons above a certain age from seeking or receiving medical treatment. Laws like this, which regulate the seeking of medical care, represent a barrier to the right of a citizen to continue in the enjoyment of their life and liberty. Similarly, a law like Texas's abortion statute, which prohibits persons from receiving medication or surgery, even when a doctor agrees it is medically necessary and is prepared to give treatment, burdens this right.  

As with all fundamental rights, we accept that no right is absolute. See Schenck v. U.S., 249 U.S. 47 (1919). That means some statutes regulating the act may be constitutional. Regulating the cleanliness of facilities, determining the processes for medical malpractice and fraud claims, ensuring aspirin is not arsenic, setting default positions until informed consent is given; all of these fall within the accepted police powers of the state to protect the health and safety of citizens. But we are not asking you to decide the full extent of such a right today. We merely ask that you overturn the Texas law, which does not even have a medical exception. The law is not merely regulating the medical process, rather it is eliminating all treatments for a medical issue, which certainly denies U.S. citizens like my client from seeking medical care, and thus her rights fundamental to her life, health, safety, and bodily integrity.

 

[Mr. Reactionary]

Also I have a quick question about the rules. What are the constraints on using case law? I've been using exclusively pre-Roe v. Wade cases up until now, and clearly will continue to do so on abortion related law. But if say I wanted to reference an opinion on patient's rights that was not dependent upon Roe, is that a no-no or what?

[Antonio the Sixth]

I would like the Plaintiff to go into greater detail concerning the time limit after which the State might legitimately prohibit the recourse to abortion. Although you raise a compelling argument regarding the overbreadth of the Texas law, it would be extremely difficult for this Court to strike down a law as overbroad without having first defined the precise boundaries that it should not have overstepped. Can the Court truly rely on the evolving standards on Science to settle constitutional matters?

(I'll let the Chief Justice decide which cases you are allowed to cite, but personally I would say you shouldn't be able to cite decisions that postdate the case currently being discussed)

[Kaine for Senate '18]

(I'll let the Chief Justice decide which cases you are allowed to cite, but personally I would say you shouldn't be able to cite decisions that postdate the case currently being discussed)

Agreed. All cites need to predate the pending case.

[Mr. Reactionary]

I would like the Plaintiff to go into greater detail concerning the time limit after which the State might legitimately prohibit the recourse to abortion. Although you raise a compelling argument regarding the overbreadth of the Texas law, it would be extremely difficult for this Court to strike down a law as overbroad without having first defined the precise boundaries that it should not have overstepped. Can the Court truly rely on the evolving standards on Science to settle constitutional matters?

Of course Justice Stevens.

Earlier this year, this court expressly acknowledged that the overbreadth doctrine was a valid way to defeat state laws which offend constitutional rights. Broadrick v. Oklahoma, 413 U.S. 601 (1973). A statute can be overly broad if it burdens constitutionally protected activities in addition to the unprotected activities being targeted. As far as relying upon overbreadth for a claim under the 9th Amendment, there is precedent. In Aptheker v. Secretary of State , 378 U.S. 500 (1964), this court struck down as overly broad, a federal law restricting passports for Communists on the grounds that it violated the Petitioner’s right to travel. Id at 505.

Based on our medical treatment argument alone, overbreadth would defeat Texas’s law because there is no general health exception. The total ban covers even medically necessary abortions; this offends the fundamental right of liberty, possibly of life if conditions worsen.

But as far as a time limit, our position is that no real burden shifting should occur at least until the fetus is physically developed enough to be viable outside of the womb. Before that point, the lack of organismal autonomy suggests a stage of development that precludes the existence of any significant rights. The state may indeed have some interest in protecting the unborn, but our position is that the fundamental rights of a citizen should prevail in cases where a fetus is not capable of living on its own at the time the abortion procedure occurs. This is more dynamic than a trimester framework. As medical technologies advance, or new procedures are perfected, the exact week at which viability can be achieved will fluctuate, but viability will remain as a bright line.     

[Kingpoleon]

I'd gladly be the defendant...

[Mr. Reactionary]

I'd gladly be the defendant...

If the Court ever readjourns ... not sure if I'm still in the middle of oral arguments or not.