The Federalist Society

Bar Watch Bulletin February 15, 2005

House of Delegates Action, Religious Hospitals, Patent Rights

February 15, 2005

Today we report on Monday’s actions from the House of Delegates. A number of new positions were adopted as official policies of the ABA yesterday without any opposition. Only two issues reported upon in ABA Watch-patent rights and restrictions on Catholic health careproviders-generated any debate on the House floor.

PATENT RIGHTS

The Section of Intellectual Property offered Recommendation 102, urging the ABA to support “enactment of legislation providing that the right to a patent shall belong to the inventor who first files an application for a patent containing an adequate disclosure under 35 U.S.C. § 112 of the invention or, in the event of an assignment of rights, shall belong to the assignee thereof.” The IP Section urged the ABA to support “concomitant efforts to conclude international patent harmonization agreements that incorporate such principles.”

Ten years ago the House of Delegates considered a similar recommendation, though it was not adopted. Proponents of that resolution sought to revive the proposal because of increasing globalization of the world market, as well as changes in Congress. One supporter stated: "We are the only country in the world that has a first to invent system. A first to file system would permit the U.S. to play a harmonizing role throughout the world. This resolution will permit the ABA to play a leadership role."

In opposition, a delegate from New York State spoke out that his Section opposed this recommendation: "We don't want to credit those that win the race to the door first." He declared that the current system encouraged thinkers, not well-financed individuals who might have the resources to file for a patent quickly. With the proposed system, the inventor would lose his one-year grace period to file. The New York delegate also rejected the idea that the current system is costly and burdensome, stating, "Statistically, our current system encounters very low levels of litigation because there is no question of who invented what."

Another opponent of the recommendation stated that the proposal erodes principles of creativity. The resolution also was pegged as hampering business interests.

Another delegate, a patent attorney, stood in support of Recommendation 102, stating that the U.S. cannot go to the bargaining table with other countries because of our current system. He stated that patent law is territorially based, and because we have a global economy, our current system is hampered because of inefficiencies and redundancies. He alleged
that the grace period previously mentioned would in fact not be eliminated under the new proposed system. Another supporter contended that the resolution simplifies and reduces legal costs.

At this point, debate was halted. A vote was taken, and the resolution passed 277 to 121.

RELIGIOUS HOSPITALS

Recommendation 104, sponsored by the Individual Rights & Responsibilities Section and Health Law Section, opposed governmental actions and policies that they say interfere with patients' abilities to receive from their healthcare providers: (a) all of the relevant and medically accurate information necessary to fully informed healthcare decision-making; and (b) information with respect to their access to medically appropriate care.

The recommendation is very similar to a resolution offered by the IRR Section at the 2004 ABA Annual Meeting, which was withdrawn. That recommendation also cited the “importance of fully informed consent” and sought to promote existing ABA policies to protect the rights of all patients to access to federally funded family planning clinics in order “to receive counseling and referrals with respect to all medical options related to pregnancy.” Specifically, the recommendation singles out Catholic hospitals’ limitation of treatment alternatives such as sterilization, emergency contraception, and family planning.

Supporters contended that this recommendation supported patients’ rights to receive all relevant medical information in order to make good choices about care.

Michael Greco, the ABA’s president-elect, delivered remarks in support of this recommendation. He delivered a personal speech about how his daughter almost lost her spleen, citing the policies of a religious hospital. Only a second doctor, who told Greco to take her to another hospital, saved her. He stated that there should be "no government policy which restricts the rights of patients to receive critical medical information. We cannot have religious beliefs override the need of information for my girl." He continued: "the ABA cannot be a part of that type of censorship. The government has no place to interfere between patient and doctor with information. The ABA cannot condone it."

One delegate spoke in opposition of the recommendation. He characterized the resolution as a "wolf in sheep's clothing. It undermines religious organizations and attacks the right of conscience." He went on to state that this resolution forces religious hospitals to adhere to procedures contrary to their religiously held beliefs. He then quoted the Freedom of Religion Clauses. He went on to observe that while Presbyterians, Lutherans, Methodists, Baptists, and Catholics all provide important health care services for all people, "this provision bans plurality and respect for diversity. This is the wrong trek for the ABA to go down."

Most of the floor statements were in support of the recommendation. These comments included:

  • "The resolution also builds on existing ABA policy that opposes suppression of speech activities of government grantees, and that protects women's rights to make informed decisions about reproductive health and to access reproductive health services."
  • "In the past decade, the health care delivery arena has been altered by the rapid expansion of religiously-controlled hospital systems.”
  • "Some providers also withhold information relating to family planning services."

There were 18 requests to speak in favor of the resolution and 2 to speak in opposition. It passed overwhelmingly.

REFORM OF THE JURY SYSTEM

President Grey delivered an address to the ABA House of Delegates on the importance of the jury system. He began by acknowledging the importance of voting in a democratic system of government. He then stated that another important part of democratic government is the jury system, and "this democratic institution needs to be strengthened." He mentioned other organizations that have joined this mission (i.e. the Criminal Lawyers Association, the Trial Lawyers Association, etc. He left out the Federalist Society this time.). He said that we need to "secure the bedrock of our justice system that is the American jury," and "Juries are the handbrake on the arrogance of power."

Recommendation 113 urged the adoption of the ABA Principles Relating to Juries and Jury Trials. This resolution was adopted, with a few dissents.

OTHER RECOMMENDATIONS

Recommendation 106 called upon the United States government to take all necessary and proper actions within its power to end the ongoing genocide in Darfur, Sudan. The sponsor demanded that we send all those responsible for genocide to the International Criminal Court. The report accompanying the recommendation based most of its findings on a report published by Human Rights Watch. The recommendation was adopted without opposition.

Recommendation 108A urged jurisdictions to enact statutes to adequately compensate individuals who have been convicted and incarcerated for crimes they did not commit. The recommendation was adopted without opposition.

Recommendation 108B urged federal, state, local, and territorial governments to reduce the risk of convicting the innocent, while increasing the likelihood of convicting the guilty, by ensuring that no prosecution should occur based solely upon uncorroborated jailhouse informant testimony. The
recommendation was adopted without opposition.

Recommendation 108C urged federal, state, local. and territorial governments to reduce the risk of convicting the innocent by establishing standards of practice for defense counsel that will identify those cases that demand greater expertise and resources than other cases because of their serious nature. The recommendation was adopted without opposition.

Recommendation 109A urged the federal government to undertake an urgent study of the impact that the federal government has had in causing asbestos-related injuries over time and to identify the appropriate role for the federal government in the solution of the present asbestos litigation crisis. The recommendation was adopted without opposition.

Recommendation 109C opposes legislative changes to Rule 11, including changes proposed in the "Lawsuit Abuse Reduction Act.” The recommendation was adopted without opposition.

Recommendation 110 called upon Congress and the Administration to take steps to ensure that the visa issuance process is more effective and efficient, particularly for those who seek to conduct scientific or scholarly research in the United States, and supported policies to enhance homeland and national security along with efforts to establish new visa policies and procedures to bolster security. This resolution states that the current system is lengthy and cumbersome, causing a decline in student applications. According to the sponsor: "The current delays and lack of transparency in the visa process are depriving the United States of the ‘best and brightest’ minds of non-US scholars, students, researchers, and teachers–not only in academia, but also in industry." The resolution concludes that "the problem is reaching crisis proportions, and the federal government needs to respond promptly to avoid deepening an already deteriorating situation." This recommendation was also adopted without opposition.

Recommendation 111 urged Congress and the President to support the establishment of a federal affordable housing trust fund to increase the availability of affordable housing. The recommendation was adopted without opposition.

Recommendation 112 supported the repeal of annual numerical caps that result in undue delays in the granting of lawful asylum and permanent residence to those individuals who have already been granted asylum status in the United States. This resolution contends that some asylees have to wait as many as 27 years after their asylum grants before they can become citizens. According to a supporter on the House floor: "People are dying before they become citizens." The recommendation was adopted without opposition.

Recommendation 300B recommended that standards, as authorized by an appropriate court rule, statute or regulation, be established by the states and territories for the operation of screening vans or other forms of mass screening for asbestos-related conditions to prevent medical screenings from being conducted inaccurately and being misused, but not to prevent legitimate monitoring of health. The recommendation was adopted without opposition.

Recommendation 300C recommended that states and territories adopt the Model Statute of Limitations for Asbestos dated February 2005, governing the accrual of actions for injury, illness or wrongful death based upon exposure to asbestos. The recommendation was adopted without opposition.

Recommendation 301 urged Congress to take specified steps to assure that federal sentencing practices are effective, fair and just, and effectuate the goals of sentencing set forth in the Sentencing Reform Act. Delegate Stephen Saltzburg spoke in favor of the recommendation and called for 12 months of hearings as well as for an ABA role in defining advisory sentencing guidelines. The recommendation was adopted without opposition.


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