Monday, May 12, 2014

Fifty years after Griswold v. Connecticut, NYPD to accommodate safer sex, but stops short of recognizing privacy rights to contraception [UPDATED]

2013-04-11 Protest against Christine Quinn - Condom Banner photo Image_zps30c06990.jpg

At a nighttime protest in Jackson Heights, Queens, last year, activists held up a banner with a giant drawing of condom locked in a police handcuff to represent the NYPD's criminalization of the use of contraception.

New York Police Department to stop criminalizing use of contraception -- in some cases

Advocates for sex workers and improved public health won a major concession from the New York Police Department's on-going oppression against citizens when police officials announced that they would stop seizing reproductive contraceptives, namely, condoms, as evidence of criminality in police crackdowns against sex workers.

Police announced the change in policy after years of demands from activists that the police were stigmatizing the use of condoms, so much so that health officials had long criticized the police practice as undermining their efforts to protect sex workers from disease. In fact, during the 15 years that former Council Speaker Christine Quinn was in public office, she was the city's most visible female and LGBT politician, and she never made any advancement on overturning the police criminalization of condoms. Indeed, under her incumbency, police biases against trans and gender non-conforming citizens extended the anti-condom dragnet against sex workers to include members of the LGBT community. In several media reports, LGBT New Yorkers attested to being harassed, arrested, and stigmatized by the police for innocently carrying contraception -- in direct violation of their privacy rights. What is more, many HIV/AIDS activists had long objected to the police's stigmatization of the use of condoms as flying in the face of advice from city health officials, who advocated their use for safer sex as a way to decrease the incidence of sexually-transmitted diseases and to prevent unwanted pregnancies. For years, if New Yorkers were caught carrying condoms, the prophylactics could be used as criminal evidence in sex worker prosecution cases -- even though the city's Department of Health distributed condoms to all New Yorkers to promote safer sex and greater public health.

In announcing their change in policy today, NYPD officials carved out a backdoor loophole to retain the right to use condoms as evidence in sex trafficking cases, however.

The nominal changes in NYPD condom policy, being spun under the guise as an advancement to public health, comes almost 50 years since the Supreme Court of the United States ruled in the landmark 1965 case of Griswold v. Connecticut that overturned a state law that had criminalized the use of contraception. In The New York Times article posted to their Web site, there was no mention by police as according any reasoning in the policy change to respect New Yorkers' right to privacy. Nor was it mentioned whether police would stop menacing LGBT New Yorkers as part of its new compromised policy. In respect of reproductive rights, it was never explained how police departments across the United States could opt out of compliance in the first place with the Griswold decision.

The partial backpedal on the condom policy is the NYPD's latest half-measure at reform since the election of Mayor Bill de Blasio. Mr. de Blasio campaigned to end the "stop-and-frisk era," but the mayor contradicted his campaign promise by making a regressive appointment of William Bratton as the city's new police commissioner. Commissioner Bratton has promised to continue to use the controversial police tacking known as stop-and-frisk, which has been ruled to be unconstitutional for its racist impact on the community. Mr. de Blasio also campaigned on the promise to stop the arrests of New Yorkers carrying small amounts of marijuana, but Commissioner Bratton's arrest rate for marijuana possession is actually up from the rate of his predecessor, Raymond Kelly. The NYPD has also promised to disband a controversial demographics unit, which targeted New York's Muslim community, but the police department continues to its practice of racial and religious profiling, and surveillance, of Muslims. As Mayor de Blasio tries to resolve many outstanding litigation cases against the police department over its killing of unarmed, innocent civilians and its policy of using brutality against New Yorkers, the de Blasio administration seems to be neglecting long outstanding cases of minority plaintiffs, such as the Central Park 5, further causing tensions over the new administration's insensitivity to the concerns of people long oppressed by the police. Since Mayor de Blasio supports Commissioner Bratton's "broken windows theory" of policing, the NYPD is expected to continue to target its aggressive policing tactics against the city's poor and people of color.

The government compromises its citizens' right to privacy in the new surveillance state, but what happens to citizens' other fundamental rights that are predicated on privacy ?

Meghan Newcomer, a brilliant future lawyer graduating this year from Fordham Law School, published a "Pelican Brief" of sorts last year in the Fordham Law Review entitled, "Can Condoms be Compelling ? Examining the State Interest in Confiscating Condoms from Suspected Sex Workers," about the criminal crackdown by police departments in New York City, Washington, DC, and Los Angeles against sex workers carrying condoms. In Ms. Newcomer's legal analysis, she examined the government's burden in proving it could violate the fundamental right to contraception, and she found that the government could not achieve a compelling state reason to do so. Ms. Newcomer expertly framed her legal reasoning around the constitutional privacy rights established under the landmark Griswold case and other related rulings and laws. After examining the law, Ms. Newcomer concluded in her article that :

Because the Supreme Court has identified a right for all individuals to be free from state interference in their choice of whether to use contraceptive devices, state actors confiscating condoms from suspected sex workers infringes on that constitutionally protected privacy right. The government’s lack of a compelling state interest in taking condoms, coupled with the failure to narrowly tailor the policy so as to involve the least restrictive infringement of the right, means that the conduct cannot survive strict scrutiny. For this reason, New York City, Washington, D.C., and Los Angeles are enforcing unconstitutional policies and must stop confiscating condoms from suspected sex workers.

There are more issues that need review, which were not the focus of Ms. Newcomer's fascinating article in the Fordham Law Review. Since New York City officials, privacy rights advocates, and women's rights groups are not raising alarms about the privacy violations of the police department's condom policy, are citizens basically consenting to the government's gutting of the Griswold decision ?

In the time since the Supreme Court issued its ruling in the Griswold case, the impact of the court's decision has been unmistakable in expanding constitutional rights to privacy in subsequent jurisprudence. Prior to Griswold, there was no court case that found a privacy right guaranteed in the U.S. Constitution. After Griswold, the fundamental right to privacy was found from the court's interpretation of the due process clause of the Fourteenth Amendment. Further landmark Supreme Court case decisions, such as Roe v. Wade, Bowers v. Hardwick, and Lawrence v. Texas, the latter which expanded Bowers by overturning its narrower interpretation, were made possible because of legal precedent that citizens' privacy was protected by the due process clause.

With police departments essentially given discretion to opt out of the law established by the Griswold decision, advocates for police reform are focused on the public health aspects of the dangerous condom policy. Meanwhile, silent are citizens, who appear to be consenting to the wholesale undermining of reproductive freedoms and LGBT civil rights, in addition to the right to privacy established by Griswold. As the government conducts mass warrantless surveillance of its citizens to the outrage of voters, the state doesn't have to go to great lengths to legally violate citizens' privacy rights if the state can first undermine the case law establishing citizens' fundamental rights to privacy. With crime rates so low, why are police departments targeting sex workers carrying condoms ? Perhaps it is to sufficiently restrict citizens' rights under the Griswold case in order to serve the government's "compelling interest" to conduct its unconstitutional surveillance activities. If the state can chip away at privacy rights just enough, it won't technically be violating its citizens' fundamental rights if the state can, ipso facto, succeed at gutting Griswold.

As the government wears down Griswold, where does that leave citizens' rights to an abortion under Roe and to further rights to privacy and substantive due process under the Fourteenth Amendment under Lawrence ? What about the long social movement to end discrimination based on sexual orientation and gender identity to which Lawrence helped to give critical mass ?

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