Do you believe in ghosts? A particularly apt word to describe ghosts is “ephemeral”—gaseous, not substantial. That’s why when kids are afraid of ghosts, we reassure them that nothing out there will harm them. But is it true?
A particularly evil spirit seems to inhabit the judiciary, one quite capable of doing substantial harm, and seemingly resilient to exorcism. I am talking about the ghost of the “right to privacy,” the lodestar of the unrestricted abortion liberty, the “right” nowhere mentioned in the Constitution. Despite its textual absence, the U.S. Supreme Court has found it amongst the “emanations” and “penumbra” of the Bill of Rights. In Roe v. Wade, Harry Blackmun could not decide where the right actually is. Is it in the Ninth Amendment? The Fourteenth? Both? Between the lines? No matter. The Court said it was there—somewhere—and under the principle of stare decisis (respect for precedent), the longer an illusion persists, the more substantial it becomes, at least for lawyers. A “mainstream” practitioner of jurisprudence (presumably the kind President Obama is seeking) will no doubt not question its existence, regardless of its bastard origins.
Despite being a right of emanating penumbrae, this vague “right” somehow manages to have extremely detailed requirements for Constitutional construction. The problem with this nebulous “right” is that, in the ensuing 43 years since Roe, it has been used to abridge real rights, both natural rights (yes, I along with “extremists” like Clarence Thomas and Thomas Jefferson believe in them) as well as rights explicitly enumerated in the Constitution. As regards the former, the abortion Über-Recht has abridged any right a father might civilly assert about a child (“potential life”) for whose creation he is half responsible. It has inserted judges between parents and their minor daughters in terms of knowing about (much less consenting to) abortion. (Would Ruth Bader Ginsburg take care of your daughter if she was hurt by an abortionist like Steve Brigham?)
As regards explicitly articulated rights, the Über-Recht has been asserted against the First Amendment. The Constitution guarantees a right to protest, but some legislators persistently attempt to “protect” abortuaries from protestors by abridging the latter’s right to protest. The Constitution guarantees freedom of speech, but the abortionist lobby regularly attempts to gag pro-life counselors from speaking to women contemplating abortion. At the same time, they want to force birthright centers, offering women an alternative to abortion, to speak abortionists’ lines and make explicit referrals to abortionists. Yes, the Über-Recht , born in a gaseous, nebulous penumbra, has an amazing capacity of truncate even explicitly spelled-out rights.
That vitality was once again on display on February 22 in Maryland’s highest court, the Court of Appeals. In Glenn v. Maryland Department of Health and Mental Hygiene, the Court upheld a bureaucratic refusal to release the names of applicants for licenses to run abortion clinics in the state. Andrew Glenn applied for the supposedly public documents on March 12, 2013 under Maryland’s Public Information Act. On July 3, the DHMH provided censored copies of the records: the names of individual applicants were deleted.
Maryland, like the U.S. and many state governments, has mandatory disclosure laws that require public documents to be publicly available. The law dates from 1970, a time governments were deciding that their business ought to occur in the sunshine, where visibility would have salutary effects against corruption and collusion.
The Maryland act creates a legal presumption in favor of full disclosure “unless an unwarranted invasion of the privacy of a person in interest” is shown. Even if full disclosure is refused, the agency blocking the information must go to court within ten working days for judicial confirmation. DHMH did: a Baltimore court took nine months to uphold the denial “on the basis of public safety concerns for those individuals who propose to operate the facilities.” That refusal was upheld on appeal eleven months later and, finally, Monday of last week—almost three years after the initial denial, Maryland’s highest court upheld the censorship. The law may presume full disclosure, but there is clearly no corresponding speedy judicial disposition of disputes.
The Maryland court’s reasoning is not particularly persuasive. It admits the law requires full disclosure and that precedent says the law should be “liberally construed.” The burden of proof is on the agency that seeks to restrict access. Except for a specific set of situations in which an agency “shall” restrict access, the government “may” do so under a “catch-all” “public interest” exemption (subject to judicial confirmation). Thus, although the onus probandi is for full disclosure, we are dealing with the Über-Recht, able to leap legal presumptions in a single bound. So, while the Court spent four pages discussing the disclosure presumption, it laconically declared the “DHMH presented sufficient evidence to warrant the continued denial of the sought after information….”
What was that “sufficient evidence?” Well, the court opined that “[i]t is well-known that there is ‘widespread hostility’ in certain quarters towards abortion and abortion-providers.” There is “undeniable” evidence of “violence associated with the provision of abortion services,” though the court offers no examples and admits the evidence is not from Maryland. Instead, it “defers” to the DHMH’s “conservative approach,” based on an affidavit citing as its authoritative source the National Abortion Federation. Thus, on the basis of evidence as powerful as “everybody knows” and an opinion that some public opinion is “hostile” to abortion, the explicit command of a public disclosure law is rendered nugatory by an administrative action, and blessed by judicial affirmation.
The court does mention a protest that supposedly involved the child of an abortion clinic landlord which, devoid of details and conceded even by the court as “not apparently in violation of any law,” still sufficed to give it another pretext to subvert the Public Information Act. In the end, the whole reason for this decision lies in the DHMH’s uncorroborated speculation that disclosure “could … discourage [abortion] providers from seeking licensure or from offering the service at all” (emphasis mine). So, a speculative and unproven possible decline in abortionists in Maryland suffices to gut the explicit presumption of the disclosure law. In any other context, a speculative threat would never suffice to rebut a clear legal presumption, but the Über-Recht trumps all. The argument about decline in abortionists is, of course, the argument now being asserted against Texas’ restrictions on abortion: although Texas now requires abortionists to meet the same standards other medical facilities do—something abortionists apparently cannot—their challenge to the law is that holding them to those same medical standards would reduce their numbers, thus negating Roe. Being an abortionist means never having to meet normal standards.
Three other states have addressed similar public disclosure issues and not abridged access, but the Maryland court instead chose to construe its relatively vague “public interest” exemption in a way to ignore those other cases. In the end, it is supposedly in the Maryland public’s “interest” to know less about abortionists so that the state can have more of them.
The court finally justifies its ruling by claiming that the disciplinary records of physicians are available for inspection, so denying the names of clinic licensees hurts no one.
The truth is that the court’s solicitude for abortionists is in keeping with Maryland’s extremely permissive post-1991 abortion regime. Local politicians have generally been hostile to the right to life. Back in the early 1990s, when abortionists hoped to codify Roe statutorily under a Democrat president and feared its possible reversal in Casey, Maryland jumped the gun and enacted its own law to preserve the Roe regime. The state does not limit any abortions, funds them, has a parental notification law that allows abortionists to waive it, and immunizes abortionists against damages if they acted in their “best medical judgment and in accordance with accepted standards….” Maryland Right to Life says that statistics on abortions, reporting of which were always voluntary, have practically been uncollected since 2006.
Maryland was, of course, the other end of the notorious abortionist Steven Brigham’s trade: he would induce late term abortions in New Jersey (another state grossly hostile to protection of the unborn) and then transport women to Elkton, Maryland (the first town in the state on I-95), to finish the job. Brigham had lost his license in five states and never held one in Maryland, but claimed he could be an unlicensed “consultant” to a clinic director there. When the Elkton facility was raided, the bodies of 35 fetuses, including several nearly full-term, were found in a freezer.
The Glenn decision mentions Brigham in a footnote before brushing him under a rug. The real case of quacks making money with Maryland clinic directors cannot overcome the speculative threat to the “public interest” of Maryland running out of abortionists. Even if it means the records have to be hidden.
Of course, if you were a contributor to Proposition 8 in California, you would have to be “outed,” even though your contribution was a legal act of free speech in support of a ballot initiative. Similarly, if you contribute to a political action committee, you must be disclosed in the “public interest.” And people making tidy profits off abortions? Apparently, no need to disclose anything there.
Can Governor Larry Hogan, son of Rep. Lawrence J. Hogan who earned the honor of being the first congressman to introduce a human life amendment, just eight days after Roe was handed down, show where he stands by directing the DHMH in his administration to change policy?
In the 1970s, we were all out in the sunshine. In 2016, “good” medical practice clearly means limited sunbathing and unfettered access for abortionists. Apply a thick coat of SPF-50 on the sunshine provisions of Public Information Act disclosure requirements. The Über-Recht strikes again.