Statements of Interest

For those people who still read this blog (anyone? anyone?) I wanted to announce my new blog, “Digital Age Defense.” In the long run “Digital Age Defense” will be more than just a blog – it’s a whole project dedicated to exploring and providing resources to people finding themselves in situations involving state sanctions for their technology use and development. At minimum this expertise will roll into my private practice, but I hope to somehow provide some benefit with it to serve the public interest as well.

In the meantime, however, the project consists of a WordPress blog, and posts relating to the convergence of cyberlaw and criminal law will appear over there. (Other legal and general interest posts will remain here.) Please go read it/like it/follow it/subscribe to it (multiple feeds available)!

I found myself tweeting extensively in disgust over the Susan G. Komen Foundation’s decision to stop funding Planned Parenthood’s breast cancer screening programs going forward. “Politicizing women’s health makes me sick,” I tweeted at one point. “Literally. Because I’m a woman, and it undermines my healthcare.”

A friend wrote back to me at some point during the fracas that he never would have advised the Komen Foundation from ending its alliance with Planned Parenthood — but he also never would have advised them to enter it in the first place. It’s just too controversial an organization.

I had to disagree. “If you are an organization dedicated to women’s health looking to find partners on the ground who can do hands-on fulfillment of that mission in the community, there’s probably few better than PP to partner with, and from a health-services-provision standpoint there’s absolutely no reason why you wouldn’t.

“The ONLY reason one would think twice about it is if one thinks it’s perfectly reasonable to politicize women’s health. And if Komen is such an organization, it doesn’t deserve to be funded. At least not by people who recognize the deleterious effect politicization of women’s health actually has on women’s health.”

The reason the Komen Foundation found itself in such a hornets nest, I continued, was because everyone thought Komen was the first type of organization and was now shocked to discover it was really the second.

The real problem is that we’re not seeing the issue for what it is. It’s not anti-abortion v. pro-abortion. We’re not talking about two sides of the same coin. We’re not even talking about the same coin. One side believes in supporting women’s health; the other side has a completely different agenda. The other side may claim it supports women’s health, but it is simply not possible to support women’s health by only supporting some of her health. Nor would it be possible to support only some of men’s health either, for that matter. No man can claim to be healthy if he has, for instance, a healthy digestive system but an unhealthy circulatory system. Health requires all the systems to be looked after. But some mistakenly seem to think that women can be healthy if they only get care for some of their parts and some of their conditions.

Which is not to say that everyone has to look after everything. It’s perfectly fine for programs like the Komen Foundation to only focus on certain aspects of women’s health. Specialization isn’t a problem. But that’s not what the move to end Planned Parentood funding was about. They didn’t decide to pledge that money to an organization more focused on breast health. They decided not to fund it because they didn’t like all the aspects of women’s health Planned Parenthood cares for. That animus politicized the delivery of healthcare and undermined not only the health of everyone Planned Parenthood cares for in any way, but also women who have or ever will have breast cancer. Because now, instead of The Susan G. Komen Foundation being regarded as a benefactor of women’s health, it is now regarded as an organization who thinks it appropriate to undermine it. And few who value women’s healthcare will want to fund that.

I’ve been thinking about these issues in another context, so I decided to salvage this post from my old blog so I could reference it. Originally written March 23, 2004, with edits for clarity today.

There’s a concept in the law known as the “reasonable man.” It’s used as a benchmark to compare the behavior in question with the behavior a reasonable person similarly situated would be reasonably expected to exhibit. It’s often criticized as an elusive standard, because no person ever could attain such consistently normalized behavior. All people, even the most conventional, predictable, and rational, stray into their own eccentricities from time to time, which isn’t itself necessarily unreasonable. Furthermore, reasonable behavior often derives its inherent reasonableness from context. Lighting a match may be reasonable in a dark cave; not so in a dynamite factory. Yet judging a behavior according to the reasonable man standard may not always capture contextual nuance so well.

Still, it can provide some guidance when courts are trying to decide if a person acted in a way unique to himself, or in a manner that other people might have reasonably behaved. In torts cases this test is extremely important, particularly in cases of negligence. Is it reasonable, for instance, to presume that a person who knew there were vicious, hungry dogs in the yard would have double-checked that the gate was locked? If yes, then why didn’t this one?

The U.S. Supreme Court just heard a case, Hiibel v. Sixth Judicial District Court, involving a man who was arrested in Nevada for refusing to give his name when asked by the police. In this case the State conceded that the police hadn’t had probable cause, a high level of suspicion he was guilty of a crime, to justify arresting the man when they first came upon him and asked him his name. They only had “reasonable suspicion.” The Court was asked to decide whether this was enough to entitle them to ask him his name, with him being required to answer under penalty of law.

Ultimately this case could turn, at least in part, on how plausible a suspicion of an actual crime the police needed to justify the demand for a name. But what caught my eye in the New York Times report about the oral arguments was a comment made by Justice Scalia. On being asked to identify oneself, he said, “I would think any reasonable citizen would answer.”
Continue reading ‘The Reasonable Man, Scalia is not (repost)’ »