Kuhl’s record after leaving the Reagan Administration has continued to raise extremely troubling concerns on women’s rights. As a state court judge, Kuhl threw out an invasion of privacy lawsuit filed by Azucena Sanchez-Scott, a woman with breast cancer whose doctor had brought a drug company salesman into the examination room without disclosing to Ms. Sanchez-Scott who the man actually was, stating only that the man, who appeared to be a professional, was there “looking at” the doctor’s work. 40 Ms. Sanchez-Scott “thought he was a doctor or somebody connected with [her doctor’s] medical practice. . . .[S]he thought it was okay because he was part of the medical team. He was not introduced.” 41 Ms. Sanchez-Scott was seeing her oncologist for her first exam following her chemotherapy; she was “literally frightened to death,” waiting to see “did the lump come back.” 42 As her attorney explained it, Ms. Sanchez-Scott, upon seeing the other man in the room, was thinking “My God. What’s he going to tell me? Is it life or death?” 43
The drug salesman watched as the doctor asked Ms. Sanchez-Scott to disrobe from the waist up, lie down on her back with her knees up, and pull down the waistband of her skirt to expose her abdomen. With the drug salesman sitting beside the examining table, the doctor then performed an examination of Ms. Sanchez-Scott’s breasts and abdomen. At one point prior to the actual examination, when Ms. Sanchez-Scott had hot flashes because of the chemotherapy and took out a small fan to cool herself, the doctor took the fan away from her and gave it to the salesman, stating that it would “give him something to do.” The salesman began fanning Ms. Sanchez-Scott, who became extremely uncomfortable because both the doctor and the other man started to laugh. Although Ms. Sanchez-Scott stated that she would fan herself, the salesman “refused her request and continued to fan her.” 44
As the actual examination continued in the salesman’s presence, Ms. Sanchez-Scott “continued to become more uncomfortable” and embarrassed. After dressing, she asked a receptionist who the man was and was told he was a “drug salesman.” When she stated that she had disrobed in the man’s presence, the receptionist remarked, “[T]hat wasn’t right.”
After leaving the doctor’s office, Ms. Sanchez-Scott was extremely distraught. She subsequently filed a lawsuit against her doctor, the drug salesman, and the drug company for common law invasion of privacy. Judge Kuhl granted a motion by the defendants to dismiss Ms. Sanchez-Scott’s invasion of privacy claim outright and without giving her leave to amend her complaint, effectively holding that there was no set of facts that Ms. Sanchez-Scott could prove that would entitle her to any relief on that claim and precluding her from presenting her invasion of privacy case to a jury. Sanchez-Scott v. Alza Pharmaceuticals, Super. Ct. No. BC 214585 (LA Superior Court, Oct. 12, 1999). According to Judge Kuhl’s ruling from the bench, since Ms. Sanchez-Scott had not specifically objected to the man’s presence, “I think it cannot be said that there was a reasonable expectation of privacy.” 45
Ms. Sanchez-Scott appealed, and the California Court of Appeal, in a unanimous decision, reversed Judge Kuhl’s ruling. Sanchez-Scott v. Alza Pharmaceuticals, 86 Cal. App. 4th 365 (2001). In holding that Judge Kuhl had improperly dismissed Ms. Sanchez-Scott’s invasion of privacy claim without even giving her a chance to prove her case, the Court of Appeal relied on judicial precedent involving wrongful invasions of privacy dating back as far as 1881. The court examined the totality of the circumstances as alleged in Ms. Sanchez-Scott’s complaint, and concluded that the complaint alleged “highly offensive conduct involving a cancer patient whose breasts were observed by a drug salesperson, whose occupation was never disclosed, during an examination inside the confines of a physician’s office.” 86 Cal. App. 4th at 377-78 (emphasis added). The court further noted that the complaint made clear that Ms. Sanchez-Scott had “never consented to having an examination of her breasts observed by a male drug salesperson.” Id. at 377.
In strong language, the Court of Appeal underscored that Ms. Sanchez-Scott had a well-established expectation of privacy when she entered her doctor’s examining room, a legally protected expectation that Judge Kuhl had failed to recognize:
It cannot be easily disputed that medical examinations involve private matters. . . “[A] patient’s conversation with a provider of medical care in the course of treatment . . . carries a traditional and legally well-established expectation of privacy.” . . . Defendants do not cite to any authority which permits a male drug salesperson to be present in an examination room during the examination of a partially disrobed woman. A breast cancer patient who goes into an oncologist’s office to be examined does not, nor should she, take the risk that what goes on in the examination room will be seen or heard by anyone other than medical personnel. She does not take a risk that a drug salesperson will be a part of the process during which her breasts will be examined.
86 Cal. App. 4th at 375-76 (emphasis added, internal citation omitted). Thus, the court went on to hold that a jury could have concluded that Ms. Sanchez-Scott’s expectation of privacy was objectively reasonable, adding, “No decisional authority supports a contrary conclusion.” Id. at 376. In other words, Judge Kuhl had no legal basis for throwing out Ms. Sanchez-Scott’s claim.
In another case, Judge Kuhl, sitting by designation on a panel of the California Court of Appeal, authored a 2-1 opinion ruling against a woman who had been raped by a man in whose car she had been riding. American National Property and Casualty Co. v. Julie R., 76 Cal. App. 4th 134 (1999). The man pulled the car off the road and parked it “against a chain link fence so that the passenger side door of the car could not be opened,” the doors and power windows were locked, the man pushed the woman’s seat back, and the woman was trapped. 76 Cal. App. 4th at 137. The man then proceeded to rape her. The man was uninsured, and the woman filed a claim for benefits under the portion of her family’s auto insurance policy covering injuries caused by uninsured motorists. The insurance company refused to pay, and filed a lawsuit seeking a declaration that it had no obligation under the policy.
At issue in the case was whether the “bodily injury” had resulted from “use of” the vehicle in question. The trial court granted summary judgment for the insurance company. Kuhl, writing for herself and a colleague, upheld the ruling. In so holding, Kuhl wrote that “the role of the automobile in the rape of Julie R. was merely as a locale for the attack. Although the door was locked and the passenger seat reclined, nothing about the operation of the vehicle contributed to the attack any more than furniture or a corner used to trap a rape victim in a house could be said to be a substantial factor in causing a rape.” 76 Cal. App. 4th at 142 (emphasis added). The dissenting judge strongly disagreed, noting that the driver had “so operate[d] and position[ed] his car as to imprison his passenger, whom he then rape[d].” Id. at 145. As the dissent further stated, “the vehicle was not used as a passive piece of furniture, but as a cage to prevent the victim from escaping, thus enabling the motorist to commit the act of rape. . . [The car’s] use was a substantial factor in enabling the rape of the victim.” Id. at 147, 149. 46
As an attorney in private practice, Kuhl continued the anti-choice advocacy reflected in her Reagan Administration record. In Rust v. Sullivan, 500 U.S. 173 (1991), Kuhl filed an amicus curiae brief on behalf of an anti-choice organization called the American Academy of Medical Ethics, successfully urging the Court to uphold the government’s “gag rule,” which prohibited family planning clinics that received federal Title X funds from counseling women regarding abortion or “referring a pregnant woman to an abortion provider, even upon specific request.” 500 U.S. at 180. 47 The gag rule had been challenged by Title X recipients and doctors on behalf of themselves and their patients as unauthorized by Title X and on the grounds that it violated the First Amendment rights of health care providers and the First and Fifth Amendment rights of Title X clients.
Further underscoring her opposition to the Court’s recognition of women’s reproductive freedom as a constitutional right, Kuhl chose to begin her amicus brief in Rust with the following free-standing quote: “‘This Court’s abortion decisions have already worked a major distortion in the Court’s constitutional jurisprudence. . . [N]o legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving . . . abortion.’” 48 In Rust, a sharply divided 5-4 Court upheld the gag rule.
Another amicus curiae effort by Kuhl while she was in private practice supported efforts by the Virginia Military Institute — a public all-male college in Virginia — to continue to exclude women. In 1990, the United States sued VMI and Virginia, contending that VMI’s denial of admission to women violated the Equal Protection Clause. VMI was the only single-sex public institution of higher education in the state. An “incomparable military college,” VMI provided “unique educational opportunities.” 49 The United States Court of Appeals for the Fourth Circuit held that the exclusion of women from VMI violated the Equal Protection Clause, and ordered the case returned to the district court so that Virginia could “formulate, adopt, and implement a plan that conforms to the principles of equal protection . . . .” United States v. Virginia, 976 F.2d 890, 892 (4th Cir. 1992), cert. denied sub nom. Virginia Military Institute v. United States, 508 U.S. 946 (1993).
Rather than address the issue of a remedy in the district court, VMI filed a petition for a writ of certiorari with the Supreme Court asking the Court to reverse the Fourth Circuit’s ruling. VMI’s counsel of record on the cert. petition was Richard K. Willard, Kuhl’s former colleague from the Reagan Justice Department, then in private practice. 50 Kuhl herself co-authored an amicus curiae brief in support of VMI’s cert. petition that was filed on behalf of three private women’s schools, including Mary Baldwin College in Virginia. 51 Although the brief was couched in terms of the importance of preserving single-sex education for women, particularly private women’s colleges, private schooling was not at issue in the case; VMI was a public institution that denied admission to women. 52 Even assuming the value of women’s colleges, Virginia maintained no public women’s colleges, let alone one providing the unique educational opportunities offered by VMI. According to contemporaneous press reports, Kuhl’s amicus brief in support of VMI’s effort to have the Supreme Court overturn the Fourth Circuit’s ruling was filed as part of VMI’s strategy of enlisting women’s colleges in support of its efforts to continue to exclude women. See, e.g., “VMI Case Makes Odd Bedfellows Women’s Colleges Allies,” Roanoke Times & World News (Apr. 11, 1993), 1993 WL 4411514. 53
The Supreme Court denied VMI’s cert. petition, declining to hear the case at an intermediate stage. 54 Three years later, however, after the lower courts had ruled in the remedial phase, the Court in a 7-1 ruling (with Justice Thomas not participating) expressly affirmed the Fourth Circuit’s 1992 holding that Virginia had violated the Equal Protection Clause. United States v. Virginia, 518 U.S 515 (1996). In its ruling, the Supreme Court also rejected the “remedy” that the lower courts had upheld and that VMI urged be accepted so that it could continue to exclude women: the creation of a “parallel” program for women at Mary Baldwin College called the Virginia Women’s Institute for Leadership (“VWIL”). The Court found that VWIL was vastly inferior to VMI academically and in other significant respects, and held that its existence could not justify the continued exclusion of women from VMI. Even Justice Rehnquist, concurring in the Court’s judgment, concluded that the program at Mary Baldwin College “fails as a remedy, because it is distinctly inferior to the existing men’s institution and will continue to be for the foreseeable future.” 518 U.S. at 566. 55