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March 19, 2017
"Taking Medical Judgment Seriously: Professional Consensus As a Trojan Horse for Constitutional Evolution"
The title of this post is the title of this notable new paper authored by Charlie Eastaugh and available via SSRN. Here is the abstract:
In the 2015 case of Hall v. Florida, the Supreme Court of the United States (SCOTUS) undertook a revolutionary approach to its ‘evolving standards’ jurisprudence in punishments clause adjudication. Hall demonstrated for the first time an earnest embrace of ‘professional consensus’ as an indicia of evolving standards — decided by the liberal-leaning wing of the Court, with Justice Kennedy as the swing.
Through an analysis of Atkins v. Virginia, a case which finally protected intellectually disabled offenders from execution in 2002, this article introduces the professionally-accepted psychiatric definitions of intellectual disability (ID) and challenges the assumptions — still visible across the nation — that intelligence is as straightforward as numerical fact. It will be shown that an accurate assessment of ID for Atkins claims has so far not been forthcoming in many cases, with Hall as a prime example.
In Moore v. Texas — for which an eight-Justice Court heard oral argument in November 2016 — SCOTUS is faced with the chance to provide further, essential clarity to this debate. The immediate ramifications of Moore are likely to see this inmate spared from execution. This paper develops the claim that the case could mean far more: The Court’s novel acceptance of professional standards in Hall has created a precedential Trojan Horse — one loaded with medical professionals and armed with epistemic knowledge, and one which provides the strongest opportunity for further Eighth Amendment evolution. Should the Court follow the Hall trajectory in Moore, such an attack is primed for undermining another fundamental portion of capital punishment deemed abhorrent by medical professionals and civil liberties organisations across the nation: long — often decade-long — stays on death row, invariably in extreme solitary confinement.
March 19, 2017 at 06:16 PM | Permalink
Comments
Roe v Wade was plagiarized from an American Medical Association (AMA) Resolution. It resulted in the biggest mass murder of viable babies, and in the deaths of millions of younger than viable fetuses.
The AMA represents 18% of doctors. It is less representative and more hated by doctors than the ABA is by lawyers. The problem is that our elites are all in failure. Their staffs are dominated by Ivy indoctrinated left wing people. They reciprocally support each other's agendas. They represent no one else.
Posted by: David Behar | Mar 19, 2017 8:16:29 PM
Given my long history of attacking Atkins on this blog for very similar reasons as to the OP I want make clear that my real name is not Charlie.
Posted by: Daniel | Mar 19, 2017 8:45:19 PM
Ah, lovely, an admission that what is actually desired is a political change that cannot currently be accomplished through the political process.
Posted by: Soronel Haetir | Mar 19, 2017 10:28:11 PM
Mr. Behar, when you masturbate (which I'm told is quite often), you spill millions and millions of living seeds down the toilet (as it were). You will surely burn in hell for your onanism.
Posted by: Mary quite contrary | Mar 19, 2017 11:44:19 PM
Mr Behar, you write, Row v. Wade "resulted in the biggest mass murder of viable babies." Who says they were viable? In any event please don't thrust your religion in my face. I do not share your views. And we know that were you a woman you would be singing oh so different a tune. And, Mary quite contrary has a point. do you have any qualms about spilling hundreds of millions of potential babies down the toilet when you masturbate--you ferociously ignorant twit?
Posted by: Emma from New Hampshire | Mar 20, 2017 12:15:08 AM
Mr. Behar writes, Roe v. Wade "resulted in the biggest mass murder of viable babies, and in the deaths of millions of younger than viable fetuses." Now, now, a tad over the top. You are forgetting to take your meds. Monday is the blue pill, not the red one. Try to remember.
Posted by: Sarah | Mar 20, 2017 12:17:46 AM
Sorry, Ladies. Do not get obsessed with me, nor with my sexual functions, as it is so easy to do.
Who says babies are viable? Obstetricians. Here is a letter by pro-abortion health people. All of a sudden these left wing extremist groups turn libertarian when it comes to killing babies. The reliance by the Court on the opinions of these unrepresentative professional groups is quite inappropriate. The Court has relied solely on such groups because their left wing extremist views have served the purpose of external validation of the Court's indefensible opinions. Roe has no validity because judicial review is prohibited by Article I Section 1 of our constitution. It may be totally ignored by the states. If federal officials ever try to enforce it, taser them, and throw them out of the state. Furthermore, such a question should be decided by an accountable legislature, as a matter of policy. If the Congress does not want to get involved in controversy, it should go to each individual state legislature.
Look for the section on Viability. Ignore the inside baseball measurement controversy bs. That is question is not settled. Reference to a 2005 edition of a textbook is also misleading. Medicine has completely turned over twice since that time.
June 18, 2013
Dear Member of the House of Representatives,
We, the undersigned medical and public health organizations, stand in strong opposition to H.R. 1797, the Pain-Capable Unborn Child Protection Act, sponsored by Representative Trent Franks (R-AZ). This bill would deny women of safe and legal medical care through governmental interference with the doctor-patient relationship.
If enacted, H.R. 1797 would ban most abortions in the United States at 20 weeks after fertilization.
The bill threatens providers with fines and/or imprisonment, clearly intended to intimidate and discourage doctors from providing abortion care.
This legislation endangers women by criminalizing safe, legal abortion. With only a narrow and inadequate exception for the life and health of a woman, H.R. 1797 would place doctors in the untenable position of denying abortions to women in need, including women carrying a pregnancy with severe and lethal anomalies, which are sometimes not diagnosed until 20 weeks or later. These include:
•Anencephaly, a “lethal defect characterized by absence of the brain and cranium above the base of the skull and orbits;”
•Renal agenesis, the failure of kidneys to materialize;
•Limb-body wall complex, in which the organs are often outside the body cavity;
•Severe heart defects; and
•Neural tube defects such as encephalocele (the protrusion of brain tissue through an opening in the skull) and severe hydrocephaly (severe accumulation of excessive fluid within the brain).
These and other pregnancy complications often result in fetal death before or soon after birth. The bill attempts to dictate how physicians should care for their patients, based on inaccurate and unscientific claims:
•Gestational Age
Obstetrician-gynecologists use last menstrual period (LMP) to date pregnancies. This bill seeks to take the determination of gestational age away from medical doctors who are trained to make this determination.
•Fetal Pain
A rigorous 2005 scientific review of evidence on fetal pain in Journal of the American Medical Association (JAMA)ii concluded that fetal perception of pain is unlikely before the third trimester. No new studies since then have changed this dominant view of the medical profession. While bill supporters present studies which support the claim of fetal pain prior to the third trimester, when weighed with the JAMA study and other available information, the supporters’ conclusion does not stand.i
•Fetal Viability
Most ob-gyns understand fetal viability occurs near 24 weeks gestation using LMP dating. The bill relies on misleading evidence about fetal viability, using post
-fertilization age instead of LMP dating in a normal (or healthy) pregnancy, falsely implying high survival rates among neonates.
We strongly oppose governmental interference in the doctor-patient relationship. H.R. 1797 jeopardizes the health of all women in the U.S. by denying access to safe and legal abortion, and replaces personal decision-making by women and their doctors with politicians’ personal ideology.
Our organizations oppose this interference and threat to women’s health and urge you to oppose passage of H.R. 1797.
Sincerely,
American College of Nurse-Midwives
American Congress of Obstetricians and Gynecologists
American Medical Women’s Association
American Nurses Association
American Public Health Association
Association of Reproductive Health Professionals
American Society for Reproductive Medicine
Medical Students for Choice
National Abortion Federation
National Association of Nurse Practitioners in Women’s Health
National Family Planning & Reproductive Health Association
Physicians for Reproductive Health
Planned Parenthood Federation of America
i Cunningham et al. eds. Williams Obstetrics. 22d ed. 2005, 394.
ii Lee SJ, Ralston HJP, Drey EA, Partridge JC, Rosen MA. Fetal pain: A systematic multidisciplinary review of the evidence. JAMA 2005; 294: 947-954
Posted by: David Behar | Mar 20, 2017 2:24:05 AM
Before Prof. Berman starts complaining of an off topic discussion, what could be more relevant than the executions of mass numbers of babies without due process, and by means of butchery, being torn apart by metal instruments. The method of their deaths would have the veterinarians up in arms if ever done to steer, let alone calves for veal.
Is that OK, according to evolving standards of decency? Does that form of death penalty comply with Baze, with Atkins, or with Roper? The appellants in those cases were convicted of murder, and had their due process.
Posted by: David Behar | Mar 20, 2017 2:35:44 AM
Hall is a joke of a decision. What are the odds of a guy scoring an 80 and a 79 and being mentally retarded? Close to zero (and with a wide margin to spare).
Posted by: federalist | Mar 20, 2017 8:31:08 AM
DB is a performance artist. Audience feedback is often appreciated there.
Posted by: Joe | Mar 20, 2017 12:14:49 PM
@Joe
Over the years you have made that claim several times the DB is a "performance artist" and I have no idea what you mean by it. Trump is a performance artist too. So what? I don't understand how that has anything to do with anything.
Posted by: Daniel | Mar 20, 2017 5:52:53 PM
David Behar who by some accounts is also Supremacy Claus* is not someone I take that seriously, since taking his comments as a whole, he seems to be involved in some sort of performance art/shtick as much as seriously saying things. The latter repeatedly bothers people (such as various crudely sexist comments) but again I don't take it seriously since he isn't simply like other people just stating his opinions or something. Any comparison to Trump there doesn't really do him any favors.
I find this has something to do with something.
* As noted on a blog attached to that name: "Supremacy Claus is a fictional character."
Posted by: Joe | Mar 20, 2017 6:54:21 PM
Being a weasel and a perpetual apologist for rent seeking is not a good way to go through life.
Posted by: David Behar | Mar 20, 2017 7:37:43 PM
Supremacy Claus, please take your meds!
Posted by: Sarah | Mar 20, 2017 8:17:57 PM
When the Supreme Court used an AMA resolution in Roe v Wade, it was a catastrophe. They pick and choose professional statements only to fit and to support their biased views.
When the Court picked tiny studies showing continuing brain development, it was also a catastrophe for the murder victims of real adults aged less than 18.
While I have advocated for more empiricism in legal decision making, the Court has chosen to ignore empirical evidence not supporting their biases. For example, young people are superior to adults in every human function, including morality. They commit fewer violent crimes than adults.
The author of this lawyer article will be not be telling the reader that.
Posted by: David Behar | Mar 21, 2017 10:43:02 PM
When the Supreme Court used an AMA resolution in Roe v Wade, it was a catastrophe. They pick and choose professional statements only to fit and to support their biased views.
When the Court picked tiny studies showing continuing brain development, it was also a catastrophe for the murder victims of real adults aged less than 18.
While I have advocated for more empiricism in legal decision making, the Court has chosen to ignore empirical evidence not supporting their biases. For example, young people are superior to adults in every human function, including morality. They commit fewer violent crimes than adults.
The author of this lawyer article will be not be telling the reader that.
Posted by: David Behar | Mar 21, 2017 10:43:02 PM
It's merely birth control. The troglodytes are deathly afraid that their wimminfolk won't be their personal property any longer if they gain full control of their reproductive system. Next.
Posted by: MarK M. | Mar 21, 2017 10:45:16 PM
Mark. Conclusory, insulting, and stupid reply to an important question of lawyer weasel covering themselves with technical opinions to justify their personal feelings and biases. You are quite emotional for a reptilian lawyer.
These disgusting, and unethical judges pick and choose the professional conclusions that justify their personal feelings, and ignore thousands of others that do not. It is a type of intellectual fraud, and the lack of balance in an opinion should be criminalized, because of its fraud.
Posted by: David Behar | Mar 23, 2017 8:49:48 AM
I discussed the catastrophic consequences of justifying Roe v Wade with an awful AMA Resolution. The AMA, even in 1970, was anathema to most doctors. Its resolution as a professional standard is fraudulent. Most doctors are right of center in their politics. The AMA is controlled by Ivy indoctrinated, dirty Commies.
Other examples of misapplication of clinical conclusions include use of the IQ test, a test of educational potential, not of culpability. The tiny studies showing continued myelinization of the frontal lobes until age 25, while ignoring the thousands of studies showing adolescents are superior to adult in all human functions, including morality, their committing much fewer violent crimes.
Posted by: David Behar | Mar 23, 2017 9:12:34 AM
