EXAM NO. ___________ Professor Brant
Constitutional Law December 9, 1998
Final Examination
GRADE POSTING: If you do not wish to have your grade posted (by exam number) in this course, please place an X by your number on the exam and on your answer.
DIRECTIONS
3. Three hours have been allotted for the examination.
A) During the first half hour, only the examination and scratch paper will be provided.
B) This time should be spent reading the question and outlining your response.
C) Blue books will be passed out after the first half hour.
D) You may begin writing in your blue books as soon as you receive them.
4. There is no presumption that use of a case name results from knowledge of its contents. Discuss and analyze any case law you plan to use in your answer.
GOOD LUCK!
When Gynetics, a small pharmaceutical firm based in Somerville, N.J. acquired the rights to the "morning after" pill, they knew they had a tiger by the tail. But, with 2.7 million unintended pregnancies occurring each year in the United States, half of which are due to contraceptive failure, Gynetics was determined to make a product available to the American market that had long been available overseas. According to recent statistics, 28% of American women have experienced an unintended birth. The American College of Obstetricians and Gynecologists estimates that making emergency contraceptive drugs available in the United States could prevent as many as 800,000 abortions each year. This figure is based on the fact that 54% of all unintended pregnancies end in an abortion.
Based on this data, together with two years of research studies indicating that the morning-after pill was safe and effective, Gynetics sought and obtained full approval from the U.S. Food and Drug Administration ("FDA") in October of 1998 for their "emergency contraception kits," called Preven. Preven requires a doctor's prescription, and sells for about $20 per kit. The FDA required Gynetics to provide literature with the kits which fully describes the side effects and any potential interactions with other drugs. No further labeling or warning materials were required by federal law.
Preven is markedly different from RU-486, the French abortion pill. While the French drug causes a woman to abort after conception has occurred, Preven, which consists of the same hormones found in regular birth control pills, simply prevents conception from occurring when it is taken within 72 hours of unprotected sex. While it is not known exactly how the hormones in Preven prevent pregnancy, it is believed that the drug either delays ovulation, slows the sperm as it passes through the fallopian tube, or alters the lining of the uterus, preventing implantation.
The Preven kit contains a pregnancy test, which the woman is instructed to take first. If the pregnancy test is positive, the woman is instructed not to take the pills. If the woman disregards these instructions, the pills will neither cause an abortion nor harm the fetus. If the pregnancy test is negative, the woman takes two doses of birth control pills, one set within 72 hours of unprotected sex, the second set 12 hours later. When taken as directed, the kit prevents pregnancy from occurring for 98 out of 100 women.
Side effects of the drugs as described in the accompanying literature include nausea and possible vomiting, which may last for a few hours, or for 1-2 days. Women who cannot take birth control pills because of hypertension, migraines, diabetes or heart disease are instructed not to take Preven. It should also be avoided by women over 35 who smoke heavily, and by those who have a history of blood clots, strokes or liver disease.
A variety of political groups mounted a swift campaign to oppose the national distribution of Preven kits, and obtained their first legislative success in Missouri, a state with an historical record of restricting abortion. The Missouri state legislature enacted a law prohibiting the sale, distribution, possession or use of Preven kits in Missouri. Ohio passed a law requiring the drug to carry a warning label which stated: "The psychological and emotional complications resulting from the use of this drug can be severe and long-lasting." Ohio also required any married woman seeking to purchase Preven to obtain the consent of her husband, and unemancipated minors under 18 were required to produce the signed consent of one parent or legal guardian. Both Gynetics and an Ohio pharmacist sued the Ohio Attorney General, Betty Montgomery, seeking a declaratory judgment that the Ohio law was unconstitutional.
Martha Rae Stewart, an unmarried 32 year old woman, purchased a Preven kit with a prescription from her doctor in New York City. She took the kit with her when she flew home to Missouri for the holidays. Her bag was searched by airport security personnel, since she had traveled to Peru earlier that month, and thus fit some of the criteria associated with drug smugglers. Airport personnel found Martha's Preven kit and confiscated it. She was prosecuted for unlawful possession of the drug under Missouri law, which carried a penalty of up to $1,000. and up to 90 days in jail.
Congress enacted a federal statute stating that any products liability suit based on state law which alleged injuries due to Preven would be subject to a statute of limitations that was twice as long as the applicable state statute of limitations governing products liability actions. In the preamble to this law, Congress stated that it was extending the state statutes of limitations because it anticipated that some medical consequences of Preven might not emerge for years. The FDA issued a press release, protesting this decision, stating that it had thoroughly reviewed the medical information and "stood behind" its previous assessment of Preven as safe and effective.
Discuss and resolve all constitutional law issues.
Both federalism and separation of powers concepts have been actively employed by the Supreme Court in the past six years to strike down a variety of legislative acts. The Supreme Court's recent Separation of Powers jurisprudence encompasses such decisions as Lujan v. Defenders of Wildlife (1992), Bennett v. Spear (1997), Plaut v. Spendthrift Farms (1995), City of Boerne v. Flores (1997), Clinton v. New York (1997) and Clinton v. Jones (1997). The recent federalism jurisprudence includes United States v. Lopez (1995), Printz v. United States (1997), New York v. United States (1992) and U.S. Term Limits v. Thornton (1995). In addition, several of the Court's recent due process decisions, including Romer v. Evans (1996), Washington v. Glucksberg (1997), Planned Parenthood v. Casey (1992) and BMW of North America v. Gore (1996) have significant federalism implications. Select either two separation of powers cases or two federalism cases from the decisions just cited. For each of the two cases you selected, please explain: (a) How those decisions advance the values of federalism or separation of powers, and (b) Whether those decisions reflect an originalist or a nonoriginalist approach to constitutional interpretation, and (c) Which of the latter approaches (originalism or nonoriginalism) you find preferable, and why.