Tomorrow’s Argument: Ayotte v. Planned Parenthood of Northern New England
Abortion is always a hot-button issue. It is especially so now that Justice O’Connor is retiring and Judge Alito is slated to replace her. As a result of Judge Alito’s dissent in the Third Circuit’s decision in Planned Parenthood v. Casey, in which he argued that a spousal-notification provision in a Pennsylvania abortion regulation statute was constitutional, proponents of abortion rights are worried that Judge Alito will be unsympathetic to abortion rights claims. Opponents of abortion rights hope and think he will be just that. It is no wonder, then, that the public is watching intensely as an abortion rights case comes before the Court, for the first time in five years, just about six weeks before Judge Alito is scheduled to begin his confirmation hearings.
Ayotte v. Planned Parenthood of Northern New England, which will be argued tomorrow, asks whether abortion regulation statutes must contain exceptions for when pregnancies threaten a woman’s health or life, and if so how narrow those exceptions can be. Perhaps more importantly, the case also raises the question of what hurdle opponents of abortion statutes must clear before making facial constitutional challenges to those statutes. Respondents argue that they should only have to show that the law might endanger the lives or health of some hypothetical women in some hypothetical circumstances; petitioner claims facial challenges should only be allowed if the challenger can show that the law would endanger the lives or health of every pregnant woman, and thus be unconstitutional in every circumstance. Challengers who can only show that a law is dangerous to some women in some circumstances must wait until those circumstances actually arise, and then only have the law declared unconstitutional as applied to them.
Kelly A. Ayotte, Attorney General of New Hampshire, will argue the case for petitioner. Jennifer Dalven will argue the case for respondents. Solicitor General Paul Clement will argue on behalf of the United States as amicus curiae in support of petitioner. The merits briefs for the parties can be found here. The SG’s amicus brief can be found here.
The statute under review is New Hampshire’s Parental Notification Prior to Abortion Act, which prohibits abortion providers from performing an abortion on an unemancipated minor unless the minor’s parents or guardian have been given at least 48 hours’ notice. There are three exceptions to this rule: no liability will lie if (a) the minor has written confirmation that her parents already know about the abortion; (b) the abortion provider certifies that the abortion is necessary to prevent the minor’s death and that there is insufficient time to provide the required notice; or (c) the minor obtains a court decree authorizing the abortion upon a finding that she is mature and capable of giving consent to the abortion procedure, or that it would be in her best interests not to notify. The Act requires these court proceedings to be confidential, access to the trial and appellate courts to be available to pregnant minors at all times, petitions to be made the courts’ absolute priority, and petitions to be ruled upon within 7 calendar days (appeals are allowed another 7 days).
Respondents challenged the Act under Section 1983, and a district court issued an order holding the Act facially unconstitutional and permanently enjoining its enforcement. Peter Heed, then the Attorney General of New Hampshire, appealed to the First Circuit, which affirmed. That court first considered the standard under which the constitutionality of the Act should be reviewed. Ordinarily, the court noted, state statutes are reviewed under the standard set forth in 1987 in United States v. Salerno, which requires plaintiffs challenging a law as facially invalid to show that “no set of circumstances exists under which the Act would be valid.” The First Circuit declined to adopt the Salerno standard, reading Roe v. Wade, Planned Parenthood v. Casey, and Stenberg v. Carhart to provide a more stringent standard of review when abortion rights are threatened. Under the Roe-Casey-Stenberg standard, the First Circuit held, a statute is facially unconstitutional if it (a) places an “undue burden” on some women’s exercise of their right to choose abortion, (b) fails to provide an exception when the health of a pregnant woman is threatened by the pregnancy, or (c) fails to provide an exception when the life of a pregnant woman is threatened by the pregnancy.
The First Circuit declared the Act unconstitutional on the latter two grounds. The court found that the Act contained no explicit health exception, and that a hodgepodge of prior New Hampshire laws that might relieve a doctor of liability for performing a health-saving operation did not rescue the Act. Nor did the judicial bypass procedure – which, the court found, might take as long as two weeks – rescue the Act. The court also found that the Act’s death exception was too narrow, as a physician might not know with certainty within the Act’s 48-hour window if a life-saving procedure would be needed. The Act thus forced physicians to choose between gambling with their patients’ lives and facing liability. And since the Act contained no mens rea requirement, it would chill physicians’ decisions to perform life-saving procedures; they might fear a court’s application of a negligence standard, which would lead to post hoc second-guessing of their good-faith medical judgments. Finally, while recognizing that the judicial bypass mechanism might also insufficiently protect a minor’s privacy, thereby placing an undue burden on her right to seek an abortion, the court declined to rule on undue-burden grounds.
Kelly Ayotte, who replaced Peter Heed as New Hampshire Attorney General, petitioned for certiorari, which was granted. The petition was filed over the objections of New Hampshire Governor John Lynch, who later filed his own amicus brief in opposition to the Act.
Though the parties’ briefs address the health- and life-exception issues first, the standard of review question is probably the one with the furthest reaching consequences: a victory for petitioner would make it very difficult for challengers of abortion statutes to get those statutes invalidated on their face.
According to Ayotte, the tension between Salerno and Casey is illusory; the latter creates a substantive measure of whether a statute violates someone’s rights (the undue-burden measure), and the former creates a quantitative measure of how pervasive such violations can be before the Constitution is sufficiently offended to warrant facial nullification of a statute (the under-no-circumstances measure). Salerno and Casey can be read together to say an abortion regulation statute is facially unconstitutional only if there is no set of circumstances under which the statute does not create an undue burden (or, with Stenberg and Roe, does not adequately protect the health and life of pregnant mothers). Salerno should be preserved, petitioner contends, because it expresses the long-held value that statutes should only be invalidated insofar as they violate the rights of individuals with actual cases and controversies before the Court; only in the First Amendment context should statutes be invalidated for the effect they might have on third parties (a so-called overbreadth analysis). Extending First Amendment overbreadth analysis to the abortion context is unnecessary since abortion rights are not as crucial to free and open government as free speech rights (that is, First Amendment violations are unique because they harm society as a whole by robbing it of a point of view), and because such analysis impermissibly interferes with state policymaking. Alternatively, petitioner asks the Court to enforce the “severability” clause of the Act, and only declare unconstitutional those portions of the Act that are unconstitutional as applied to challengers of the Act.
Respondents claim that to forbid preemptive facial challenges like the one made here would force pregnant minors to wait until their health is actually jeopardized by the Act before challenging it. It would also force each pregnant minor whose health might be threatened by the Act to challenge it on a case-by-case, as-applied basis, thus generating unneeded and redundant litigation. This would force challengers to face unsafe and undue delay in getting an emergency abortion, put their health and lives at risk, and perhaps deter them from exercising their right to seek abortions at all. (Placing pregnant minors in such a position is also inconsistent with Court precedent: respondents cite Thornburgh v. ACOG as a case where the Court did not wait until a woman was actually placed in danger to allow a challenge to a requirement that might delay an emergency abortion). Facial invalidation, however, does not require any minor actually to face health threats before challenging, does not force piecemeal and redundant litigation, and does not force women either to choose between facing embarrassing and arduous court battles and exercising their well-established right to get an abortion.
Respondents also argue that as-applied relief would lead to separation of powers problems, as both as-applied invalidation and the “severing” of any provision deemed unconstitutional as applied to an individual litigant would require courts essentially to write health exceptions into the statute and cross the barrier separating the legislature and judiciary. (There would presumably be federalism concerns as well because federal courts would often be called upon to rewrite state laws.) This would remove political accountability from the legislature and allow it to pass perhaps politically popular abortion regulation statutes that are facially unconstitutional in the hopes the federal courts will do the dirty work of making them constitutional.
Petitioner acknowledges that one reading of Casey does establish an overbreadth analysis that might replace the Salerno standard in some situations. In invalidating Pennsylvania’s spousal notification statute, the Court indicated that, if a statute might create an undue burden on a “large fraction” of women, it could be facially unconstitutional. Given the evidence that a “large fraction” of women might be subject to abusive spouses who would effectively veto their decision to get abortions, the spousal notification provision was unconstitutional. However, petitioner argues that the “large fraction” test should be limited to spousal notification statutes, or at least cases in which there is record evidence that a “large fraction” of women are affected. In any event, the test does not apply here: the Act’s many safety valves ensure that the health of all pregnant minors will be protected; respondents do not identify any fraction of women whose health would be jeopardized by the act; and there is no evidence that emergency abortions are sometimes necessary to preserve the health of the mother.
Respondents counter that the record establishes that cases in which a pregnant woman may need an emergency abortion can and do arise. Salerno was in part animated by the concern that constitutional decisions should be informed by concrete facts, which are present here. Nor are the other concerns animating Salerno present. The Court is not preventing other coordinate branches of government from construing the Act in a constitutional way, since there is no way to do so; and the Court is not prohibiting the state legislature from regulating abortions in a constitutional way. New Hampshire has plenty of models of constitutional parental notification statutes it can follow. (Casey, after all, upheld Pennsylvania’s parental notification statute).
In addition to the standard of review question, the Court will also be called upon to decide if the Act actually does violate the Constitution because it contains inadequate exceptions for health- and life-threatening pregnancies. The parties first disagree about whether Supreme Court precedent actually establishes a per se requirement that abortion statutes contain a health exception. Respondents claim Stenberg squarely holds as much. Petitioner claims Stenberg is very narrow and holds that such exceptions are only required when a statute might actually cause a health risk to pregnant women; indeed, in Hodgson v. Minnesota the Supreme Court upheld a parental notification statute without an explicit health exception.
The main disagreement among the parties on this issue, however, tends to boil down to how the parties predict the Act will play out when the health or lives of pregnant minors are threatened by pregnancy complications. Petitioner argues that pregnant minors can obtain emergency abortions without significant delay; respondents argue that despite the letter of the law and its intention not to harm pregnant minors, in reality the Act’s effect will be to jeopardize their health and lives.
Petitioner argues that the Act’s judicial bypass mechanism is an adequate substitute for an explicit exception and protects the health and lives of pregnant minors. Petitioner contends that the First Circuit’s finding that the mechanism might take up to two weeks is an unrealistic view of how the bypass procedure is supposed to and (given the experience of other states with similar statutes) will work. In particular, petitioner points to the provisions in the Act requiring the New Hampshire courts to be continuously open to minors seeking bypass orders, and requiring that courts make these orders their priority and rule on them expeditiously. According to respondents, however, in reality judges will be difficult for a minor to find outside of regular court hours. The New Hampshire courts are open only during business hours; and neither the Act nor the court’s information resources provide information on how to access a judge outside of business hours. In practice, the judicial bypass procedure will not cure the Act’s lack of a health exception; indeed it exacerbates it by imposing delay in emergency situations.
In defending against the life-exception challenge, petitioner first contends that the First Circuit erred in invalidating the law on the grounds that it contains no mens rea requirement. The First Circuit should have given New Hampshire the opportunity to interpret the Act first, and given the Supreme Court’s clear precedents, there is “no reason to think” the New Hampshire courts would not read the Act to protect physicians’ good faith medical judgments. Respondents counter that the New Hampshire courts had already indicated that a physician’s judgment would be interpreted under both a good-faith standard and an objective reasonableness standard. Petitioner second argues that the judicial bypass mechanism will ensure quick resolution of uncertainties and so relieves physicians of the need to “gamble” with patients’ lives in the 48-hour window. Respondents continue to argue that the bypass mechanism is not sufficient to ensure quick resolution of claims, and physicians under time pressure will be chilled from making good-faith judgments to perform emergency life-saving abortions.
The Solicitor General’s amicus brief in support of petitioner is motivated by the government’s desire to see the federal Partial-Birth Abortion Ban Act upheld when the Court hears a facial challenge to it (which it might do this term if it grants certiorari in Carhart v. Gonzales). The federal law, like the New Hampshire law, contains no health exception. It is based in part on Congressional findings that partial-birth abortions are never needed to save the health of a pregnant woman. The SG’s brief mainly reemphasizes petitioner’s arguments that Stenberg does not create a per se health exception requirement; that Casey did not alter the Salerno standard; that the Casey “large fraction” test is meant to apply to spousal notification statutes only; and that respondents’ facial challenge should fail because they have failed to show that the Act actually will endanger pregnant women.
The fate of New Hampshire’s statute and the Salerno standard in abortion statute contexts may be determined by how quickly the justices resolve this case. If the Court splits down ideological lines, as is predicted, with Justice O’Connor as the deciding vote in favor of respondents, then respondents might taste victory only if an opinion is delivered before Judge Alito’s confirmation. If the opinion is delivered after Justice O’Connor’s retirement becomes effective, the case will probably have to be reargued with a likely-Justice Alito voting instead.
“As a result of Judge Alito’s dissent in the Third Circuit’s decision in Planned Parenthood v. Casey, in which he argued that a spousal-notification provision in a Pennsylvania abortion regulation statute was constitutional, proponents of abortion rights are worried that Judge Alito will be unsympathetic to abortion rights claims. Opponents of abortion rights hope and think he will be just that.”
Opposing abortion is not about opposing the rights of women, but about recognizing the rights of the unborn. According to SCOTUS, the unborn have no rights at *any* age, even moments from birth. Does anyone really believe this anymore?
Comment by Ben Kennedy — November 29, 2005 @ 1:47 pm
I do Ben, I’m proud of it, and I’m committed to spend my life using the law to make this world a better place for my children and yours and I’m comforted by the fact that there are millions of proud pro-choice women just like me in this country.
Comment by Elizabeth — November 29, 2005 @ 3:13 pm
There is virtually no chance that O’Connor will still be on the Court when this case is decided. The Court’s deliberations will almost certainly carry on for several months, and Alito’s confirmation vote is scheduled for January. About the only way O’Connor could participate is if the Alito nomination stalls for some reason, and right now that is not likely.
Justice Kennedy appears to be the critical vote here. If he votes as he did in Casey, then there will be five votes to affirm, regardless of what Roberts and Alito may do. If he votes as he did in Stenberg, and Roberts joins the conservatives, then Alito would be holding the fifth vote for either side. If that happens, the case would probably have to be re-argued.
Comment by Marc Shepherd — November 29, 2005 @ 3:21 pm
Ben Kennedy wrote, “According to SCOTUS, the unborn have no rights at *any* age, even moments from birth. Does anyone really believe this anymore?”
Well, I am not sure SCOTUS’s current precedents actually say that. But whatever it is you think they’re saying about abortion rights, that position has some level of support from at least six Justices.
Comment by Marc Shepherd — November 29, 2005 @ 3:27 pm
Marc - in Roe, Blackmun states “a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life”. That is to say, it is not a balancing of rights that controls the limits of abortion, but a balancing of the rights of the woman against the an “important interest” of the state. That is to say, states can protect thrid-trimester if they want to, but don’t have to. Now, if a state decided to protect two-day old life but not one-day old life, there could be some kind of equal protection argument that says the state is violating the rights of the one-day old. But a state has no equal protection obligation to protect a nine-month fetus as opposed to a newborn, despite the fact they are biologically identical.
Comment by Ben Kennedy — November 29, 2005 @ 4:47 pm
Ben, that is a genuinely interesting argument. But I think it fails because one can easily and cynically say that they are not biologically identical: one is within the womb, the other is outside of it. One could also argue that the consequences are bad: is a woman who doesn’t eat the day before her pregnancy the same as a woman who refuses to her feed her newborn for a day? One could also modify the Dworkin’s tack and say that newborns have interests, as their life has officially begun, but fetuses do not have interests. You can’t do much of anything in a womb. Rights protect interests: so, if no interests exist to protect, no rights exist to protect them.
Comment by Commentator — November 29, 2005 @ 10:21 pm
Commentator - being within a womb doesn’t change the fundamental nature of a human being. That is to say, it not not a biological consideration, only a positional (in this case about 1 foot) one. The only difference between a nine month fetus and a newborn infant is that one receives nutrition and oxygen through a cord, the other through the mouth. We certainly would not say that people who feed through a tube do not get equal protection under the law. A 22 week old premature infant with little chance of survival has complete Constutional protection, but a larger, more developed, healthy 39 week fetus has *none* for the sole reason that it feeds through an umbillical cord. Something is quite askew about that.
Comment by Ben Kennedy — November 29, 2005 @ 10:50 pm
“One could also modify the Dworkin’s tack and say that newborns have interests, as their life has officially begun, but fetuses do not have interests. You can’t do much of anything in a womb.”
Could you, perhaps, offer some examples of things that an infant can do much of an hour after birth (by which point, killing them would constitute infanticide) which they cannot do much of in the womb? Cry? Take a deep breath of fresh air, perhaps?
And how “born” does a child have to be in order to qualify for protection? Head, shoulders, knees and toes? What about just the shoulders, knees and toes, as in a D&X procedure? That’s off the table, presumably, right?
Comment by Simon — November 30, 2005 @ 9:08 am
Simon - good points. Today, the concept of “birth” is rather fluid (vaginal or abdominal). It is now possible to schedule the granting of human rights around a golf game! In the future, things will be even more murky when things like artificial wombs will be developed. At some point in the future, SCOTUS will have to confront the issue head on - are unborn humans beings the object of equal protection under the Constitution, or are they property and only the object of optional “state interest”. Until this this issue is addressed, no real progress will be made.
Comment by Ben Kennedy — November 30, 2005 @ 10:01 am
“At some point in the future, SCOTUS will have to confront the issue head on - are unborn humans beings the object of equal protection under the Constitution.”
The correct answer to which, in my view, will turn on whether a genuinely convincing argument can be made that the original understanding of the equal protection clause protected the unborn. Which will, in turn, require demonstration that the unborn were considered legally protectable entities in 1868. I would love to read such an argument, but I have yet to do so.
I think there are two distinctly different issues that should not necessarily be conflated: first, does the Constitution protect the freedom to seek and obtain an abortion (and if so, does it place any limits on that freedom, and why)? Second, does the Constitution protect a right to life for the unborn? The answer to the first question, obviously, is no; the answer to the second question, as mentioned above, depends on whether a reasonable person at the time the 14th Amendment was ratified would have understood “person” to include the unborn. It seems to me that the answer is “yes,” but that view rests on what may be inadequate data to support such a view. Specifically, the adoption of laws in 36 U.S. states and territories at the time of the Fourteenth Amendment banning abortion (see Roe v. Wade, 410 U.S. 113, 176 n1 (Rehnquist, J., dissenting) would seem, to my mind, to suggest that the framers of the Fourteenth Amendment did consider unborn children legally protectable.
Comment by Simon — November 30, 2005 @ 11:35 am
Various courts have cited Blackstone’s description of the unborn: “The right of personal security consists in a person’s legal and uninterrupted enjoyment of life, his limbs, his body, his health, and his reputation. Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of the law as soon as an infant is able to stir in the mother’s womb … An infant in ventre as mere, or in the mother’s womb, is supposed in law to be born for many purposes. It is capable of having a legacy, or a surrender of copyhold estate, made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born. And in this point the civil law agrees with ours.” Two things strike me - first, common law unequivocally stated that the unborn have legal rights, which Blackmun completely glossed over - he was more concerned about whether abortion was considered a felony or a misdemeanor, rather than the fundamental concept rooted in common law that a fetus could enjoy inherent rights by virtue of simply being an individual. Second, is that due to modern imaging technology, we know that an embryo’s heart “stirs” at three weeks. That is to say, we no longer need to rely on the mother’s sensitivty to detect when rapid growth of the unborn child (aka “quickening” ) begins.
Comment by Ben Kennedy — November 30, 2005 @ 12:57 pm
Which will, in turn, require demonstration that the unborn were considered legally protectable entities in 1868. I would love to read such an argument, but I have yet to do so.
You have yet to find such an argument because such an argument would be ahistorical and possibly racist. The issue then was protecting the rights of former slaves. To analogize a fully-grown man denied of his rights to a form of life that lacks yet the capacity to speak or recognize its own image is insulting — not to the fetuses, but to the slaves who were freed.
Could you, perhaps, offer some examples of things that an infant can do much of an hour after birth (by which point, killing them would constitute infanticide) which they cannot do much of in the womb?
You ignore the flipside of the question. One could also argue that the consequences are bad: is a woman who doesn’t eat the day before her pregnancy the same as a woman who refuses to her feed her newborn for a day? The answer is no. The duty a mother has to her newborn is not correlative to the duty she has to her fetus, simply because one is biologically separated from her body.
Commentator - being within a womb doesn’t change the fundamental nature of a human being.
Okay. So if it is within the fundamental nature of human beings to be gay, does the Constitution necessarily provide a right to gay marriage and homosexual sodomy?
Again, I’m not a pro-abortion ninny, so you can tone down your rhetoric in addressing my points.
Comment by Commentator — November 30, 2005 @ 2:17 pm
Cry? Take a deep breath of fresh air, perhaps?
You must not appreciate how many philosophers believe these things are fundamentally human experiences — to cry, consciously, and to intake air and appreciate it. Babies can do that, fetuses cannot. So, yes, ability to cry consciously is a fundamental distinction. It’s a significant difference between chimpanzees and humans. I take it, based on your position, that you support autonomy rights for chimpanzees?
Comment by Commentator — November 30, 2005 @ 2:23 pm
Judicially enforceable autonomy rights, that is.
Comment by Commentator — November 30, 2005 @ 2:23 pm
“You must not appreciate how many philosophers believe these things are fundamentally human experiences — to cry, consciously, and to intake air and appreciate it. Babies can do that, fetuses cannot. So, yes, ability to cry consciously is a fundamental distinction. It’s a significant difference between chimpanzees and humans. I take it, based on your position, that you support autonomy rights for chimpanzees?”
You are setting up silly strawman arguments. Of course fetuses share many similarities with most mammals. But they share a profound similarity with newborn infants - specifically, they are ontologically the same fundmental creature. For a minute or so after a baby is born, the umbillical cord continues to pulse before the placenta is passed. That is to say, the only difference between a newborn and a fetus is being moved about a foot or so. Is it the snipping of the cord that provides Constitutional rights? Is a fetus property? These are questions that most pro-choice folks don’t even want to engage because it highlights how nonsensical our abortion jurisprudence is.
Comment by Ben Kennedy — November 30, 2005 @ 4:19 pm
Commentator -
What the framers of the 14th amendment intended is irrelevant - what is entirely relevant is, what did the language they chose to couch their intent mean, and how broad a construction does it support?
Worse yet, the suggestion that construing the 14th amendnent more broadly than its supposed intent constitutes racism seems a touch self-defeating a contention for liberals, doesn’t it? I thought you folks were all about giving the language a broad construction; that equal protection means equal protection for any person means for any person, not just any person who happens to be black (or indeed, who happened to be a victim of the wrong which the 14th was supposedly intended to remedy)? I mean, you say it’s insulting to analogize the rights of men to that of an unborn child, because the framers intended the language to apply mainly to former slaves, yet undoubtedly they did not intend for that language to apply to white women (such a conclusion would be, needless to say, “ahistorical and possibly racist” under your standard) - does the equal protection clause apply to anyone that the framers didn’t intend it to?
Why this sudden concern on the part of liberals for the original intent, and how long will it last, pray tell?
“One could also argue that the consequences are bad: is a woman who doesn’t eat the day before her pregnancy the same as a woman who refuses to her feed her newborn for a day? The answer is no. The duty a mother has to her newborn is not correlative to the duty she has to her fetus, simply because one is biologically separated from her body.”
Well, I wouldn’t agree that the two can safely be analogized. The ability of the woman to feed the child separate to her ability to feed herself isn’t something that can be separated prior to physical separation, but that is a far cry from saying that there is no duty of care thus entailed. A mother who skips a meal is one thing; a woman who starves herself with intent to harm her child’s development is quite another, just as we would look differently on a father who failed to feed his child three square meals a day for financial reasons than one who deliberately undertook to malnourish a child.
“I take it, based on your position, that you support autonomy rights for chimpanzees?”
To the extent that I don’t think they, or any other animal, should be slaughtered indiscriminately for no better purpose than convenience, yes, but I think that’s getting off-topic.
Furthermore, it seems pretty tenuous to suggest that babies cry consciously, as opposed to reflexively, or that one must “appreciate” (or even, conciously choose to) take a breath in order to qualify as a fourteenth amendment person.
Comment by Simon — November 30, 2005 @ 4:33 pm
Commentator - What the framers of the 14th amendment intended is irrelevant - what is entirely relevant is, what did the language they chose to couch their intent mean, and how broad a construction does it support?
I never said a word about intent. But the Slaughter-House cases, which capture the original public meaning of the 14th Amendment, limit it to “black equality”. Scalia cites those cases in Casey when he notes that the text of the 14th Amendment guarantees black quality. It is you who are applying the “broad construction”. No crazy interpretation needs to be manufactured to include slaves or their descendants in the 14th Amendment. Thus, it is you who has the burden of proving the controversial case. Critiques of my position do not assist you to meet your burden.
To the extent that I don’t think they, or any other animal, should be slaughtered indiscriminately for no better purpose than convenience, yes, but I think that’s getting off-topic.
No, it was not off-topic. If you support judicially enforceable rights for the unborn, then your concept of personhood and autonomy should include mental and functional equivalents (or superiors — after all, why able-minded humans, feeble-minded humans, and human fetuses, but not everything in between?), and chimpazees should be able to sue in federal court too. As I said, we can argue from consequences, and the consequences of your position are CRAZY.
Comment by Commentator — November 30, 2005 @ 8:47 pm
just as we would look differently on a father who failed to feed his child three square meals a day for financial reasons than one who deliberately undertook to malnourish a child.
This is disanalogous. Finances do no appear in the other analogies. You are one step removed from the argument.
Comment by Commentator — November 30, 2005 @ 8:48 pm
That is to say, the only difference between a newborn and a fetus is being moved about a foot or so.
The only difference between rape and making love is the presence of the word “Yes.” Fine point distinctions are not illegitimate simply because they are fine.
Comment by Commentator — November 30, 2005 @ 8:51 pm
Commentator - being within a womb doesn’t change the fundamental nature of a human being.
Okay. So if it is within the fundamental nature of human beings to be gay, does the Constitution necessarily provide a right to gay marriage and homosexual sodomy?
Comment by Commentator — November 30, 2005 @ 8:53 pm
Commentator said, “The only difference between rape and making love is the presence of the word ‘Yes.’ Fine point distinctions are not illegitimate simply because they are fine”
Poor analogy. With rape, it is clear *why* the issue of intent matters. Sex without intent is an extreme personal violation. The legitimacy of this distinction is obvious. I want to know *why* you think moving a fetus one foot over confers Constitutional protection. Why would you say this legitimate? To me, it isn’t - it strikes me as rather silly thing to say that the human womb is the sole place in the universe where human creatures do not receive fundamental human rights. If human rights are indeed “inalienable”, then they attach for no other reason that the intrinsic humantiy of their recipient, and not their local surroundings or method of nourishment.
Yet this apparently is your position, and the opinion of SCOTUS as well. Or, perhaps you think otherwise. Do you think that a nine month fetus deserves no Constitutional protection?
Comment by Ben Kennedy — November 30, 2005 @ 9:34 pm
Sex without intent is an extreme personal violation. The legitimacy of this distinction is obvious.
This is called question-begging. That will not help you meet YOUR burden.
Comment by Commentator — November 30, 2005 @ 11:11 pm
Commentator - come out with your position. Do you think a fetus deserves Constitutional or not? I have stated a half-dozen or so reasons rooted in science, common law, and common sense why they do deserve this protection. You have given no reason why they should not other than it is “within the womb”. I have stated why your criteria is fundamentally illogical (human rights are inherent, not positional - fetuses are biological indistinguishable from newborns, etc). In fact, I would challenge all who believe in Roe vs Wade to explain if and why they agree with the court’s conclusion that unborn human life has no inherent Constitutional protection. It’s the elephant in the pro-choice closet - in order to defend abortion rights, one has to de-humanize what is scientifically, without a doubt, a human being. Not a “potential” human being, but real living actual human being that just happens to be younger that most.
Comment by Ben Kennedy — November 30, 2005 @ 11:31 pm
You have given no reason why they should not other than it is “within the womb”. I have stated why your criteria is fundamentally illogical (human rights are inherent, not positional - fetuses are biological indistinguishable from newborns, etc).
That is untrue. I pointed out that there are loose threads you have failed to forcefully tie up. You claim there is no biological distinction, but there is one. You have not convincingly demonstrated why the court should not use this as its benchmark, given the silly consequences of using your benchmark, which would result in chimpanzees filing suit in federal court. You claim that the present benchmark is fundamentally illogical because human rights are inherent, but you have yet to answer this question: if it is within the fundamental nature of human beings to be gay, does the Constitution necessarily provide a right to gay marriage and homosexual sodomy? Until you satisfactorily answer this question, you have not shifted your burden on to me.
Comment by Commentator — December 1, 2005 @ 11:52 am
“That is untrue. I pointed out that there are loose threads you have failed to forcefully tie up. You claim there is no biological distinction, but there is one.”
It is an undisputed fact of science that the lifespan of human beings begins at conception and ends at natural death. During birth, one creature does not die to be replaced with a new one. It is the same creature - the same biological entity. Moving a creature from point A to point B doesn’t change it’s biological nature. As a creature matures, it certainly goes through physical changes, but these changes do not change its biological identity. The changes that occur when a fetus leaves the womb are minor compared the changes the occur from infancy to old age, during which every single subatomic particle has been replaced several times, or the changes that occur in a woman’s body during pregnancy. Now, are still going to persist in the fallacy that a fetus and newborn are fundamentally different things that have a different sets of rights?
“You have not convincingly demonstrated why the court should not use this as its benchmark, given the silly consequences of using your benchmark, which would result in chimpanzees filing suit in federal court”
I didn’t bring this up, but my benchmark has no such consequences - all I propose is that all human beings have human rights, regardless of whether or not they happen to be in a womb. A chimpanzee is not a human being so therefore does not receive equal protection. A fetus is a human being, so it therefore does. The only “silly consequence” of this position is that the abortion rights of a woman must be weighed against the inherent rights of the fetus rather than a vague “state interest in protecting potential human life”. I will also point out again that this viewpoint is actually more consistent with common law, where the unborn did have legal rights.
“You claim that the present benchmark is fundamentally illogical because human rights are inherent, but you have yet to answer this question: if it is within the fundamental nature of human beings to be gay, does the Constitution necessarily provide a right to gay marriage and homosexual sodomy? Until you satisfactorily answer this question, you have not shifted your burden on to me.”
The use of the term “fundamenal nature” has nothing to do with which rights, if any, are granted. Rather, the principle behind equal protection is that all people should be protected equally because we all inherently equal - it echos the phrase “all men are created equal”. A newborn and an old man deserve equal protection because they are both human beings. Likewise, a fetus deserves the same protection because it is a human being. This is not a debate about what rights the Constitution protection, but who it protects.
Comment by Ben Kennedy — December 1, 2005 @ 1:19 pm
all I propose is that all human beings have human rights, regardless of whether or not they happen to be in a womb.
Happening to be in a womb is a biological distinction. The problem is that you claimed there was no biological distinction. There is one; your claim is false.
It is an undisputed fact of science that the lifespan of human beings begins at conception and ends at natural death.
Your idea of when life begins appears to be based on “ensoulment,” which is not science: it is Catholic doctrine.
A newborn and an old man deserve equal protection because they are both human beings. Likewise, a fetus deserves the same protection because it is a human being.
Then your argument should include protection for homosexual sodomites and their marriages, because they deserve equal protection under the law, too. Or is your claim now that homosexual sodomites are not human beings?
This is not a debate about what rights the Constitution protection, but who it protects.
Then why won’t you answer why, if it protects the personhood and autonomy of fetuses, it does not protect the personhood and autonomy of chimpanzees? It seems you are discriminating against chimapanzees simply because they are not fully sentient — that is the less than 1% difference that makes them not-human — but then again, fetuses are not fullt sentient, either. In fact, the neurological development of chimapanzees and humans is perfectly identical until age 3; if human fetuses are constitutional persons, then so are chimpanzee fetuses, because there is no biological distinction between them. It appears that, on your crazy reading of the constitution, chimpanzees have constitutional rights until age 3, which they lose thereafter. Please explain how that constitutes equal protection.
Comment by Commentator — December 1, 2005 @ 10:24 pm
“Happening to be in a womb is a biological distinction.”
Whatever man - you keep saying this even though it makes no sense. Answer this - when a fetus becomes a newborn baby, is it A) the *same* creature or B) a *different* creature? If you picked “A”, then the two have the same biological identity. It’s so obvious it seems silly writing down. A fetus is a creature of type “homo sapiens”. To claim otherwise is foolish.
“Your idea of when life begins appears to be based on ‘ensoulment’ which is not science: it is Catholic doctrine.”
I have said no such thing. Being a genetic human being happens well before 80 or 40 days - it happens at the moment of conception. Again, these are the basic facts of sexual reproduction. Once conception happens, reproduction has occured and a new being begins to gestate. The view that there is such a thing as a genetic human creature with no rights that is not a “person” is a superstition perpetuated by the SCOTUS.
“Then your argument should include protection for homosexual sodomites and their marriages, because they deserve equal protection under the law, too. Or is your claim now that homosexual sodomites are not human beings?”
How many times have I said that the only criteria for human rights (and hence Constitutional protection) should be membership in the human race? Of course homosexuals are people that deserve equal protection. Take a step back and *listen* to what I am saying.
“Then why won’t you answer why, if it protects the personhood and autonomy of fetuses, it does not protect the personhood and autonomy of chimpanzees?”
A chimpanzee is not a human being in any stage of development. A fetus, newborn, and adult are all *humans* in various stages of development and thus should be entitled to human rights. Now as to your concern as to the neurological similarities of humans and chimpanzees, some such as Peter Singer (google for him) argue that the rights of higher animals should be elevated to the same level as human rights. But this does not change the fundamental inconsistency regarding how the SCOTUS treats the unborn - as property. It is simply inconsistent and silly to say that a newborn is entitled to a full set of human rights, and a nine month fetus on the verge of birth is not. Whether and how chimpanzees and sentient aliens (should they exist) deserve rights is a debate for another day. The question before is if the unborn humans should get the same human rights adults get.
Comment by Ben Kennedy — December 1, 2005 @ 10:54 pm
Actually Commentator, lets keep it simpler - do you think that the unborn are property, or not? This is really the crux of the matter. I maintain that the SCOTUS treats unborn humans as property by virtue of the fact that they receive no Constitutional protection.
Comment by Ben Kennedy — December 2, 2005 @ 8:52 am
Actually, despite your attempts to reframe the issue, the issue is whether we should trade in our current doctrine for your newfangled theories. The question, then, is whether your newfangled theory is consistent and coherent and does not cause all sorts of crazy results that we would abhor.
“The view that there is such a thing as a genetic human creature with no rights that is not a ‘person’ is a superstition perpetuated by the SCOTUS.”
Now, you are predicating human rights on genetics. That seems a great way to exclude the personhood of chimpanzees — even when they are of the same level of sentience as a human — but it also has no founding in our Constitution. The Constitution does not define “person” by reference to DNA. The mentions of “person” in the Constitution all concern rights of the Lockean variety that naturally flow from rational self-interest as a sentient being; the problem with your reading into the Constitution a “human genome” clause is that it excludes those beings whose personhood and autonomy would qualify without such a clause present, e.g., chimpanzees. You have given no justification for why the Constitution must necessarily be read to obtain only for those with a particular genetic make-up. If anything, one could argue that limiting constitutional personhood on the basis of slight genetic variation was erased from the Constitution with the passage of the 13th and 19th Amendments. It seems your theory is simply arbitary.
Indeed, as proof of the arbitrariness of your reading of the Constitution, I charged that your reading of the Constitution, it “should [of necessity] include protection for homosexual sodomites and their marriages,” to which you replied that “Of course homosexuals are people that deserve equal protection.” Please explain where in the Constitution it mandates that any and all marriage laws must sanction gay “marriages” in order to be valid under the Constitution. I don’t see anything about marriage in the Constitution at all. And I certainly don’t remember a right to gay marriage existing at common law. You can google Peter Singer all you want, but that won’t make your argument in favor of a zany constitutional interpretation the least bit sensible.
Comment by Commentator — December 2, 2005 @ 11:44 am
“The mentions of ‘person’ in the Constitution all concern rights of the Lockean variety that naturally flow from rational self-interest as a sentient being;”
Ok, then explain to me why this should apply to newborn infants but not nine month fetuses. Being “a sentient being” has nothing to do with being in the womb. If a newborn is a “sentient being”, then so is a fetus.
Comment by Ben Kennedy — December 2, 2005 @ 12:00 pm
That is a non-sequitur. I never said people of different age cannot have different rights. We let children work less than adults; we mandate that children go to school; we don’t allow children to consent to sex below a certain age. A good example of this distinction is that women can have abortions without their parents’ consent, but, generally, children cannot.
So, a distinction based on age, or mental development, can be made that is consistent with Locke and with natural rights. I didn’t actually say I supported Roe or its specific distinction, i.e., drawing of the line. The point is, your drawing of the line, on the bases you claim, makes no sense, is inconsistent with the Constitution, and results in Paul Clement battling it out with a chimpanzee SCOTUS.
Comment by Commentator — December 2, 2005 @ 4:15 pm
“I didn’t actually say I supported Roe or its specific distinction, i.e., drawing of the line. The point is, your drawing of the line, on the bases you claim, makes no sense, is inconsistent with the Constitution, and results in Paul Clement battling it out with a chimpanzee SCOTUS.”
Since I have said quite clearly that my criteria for receiving human rights should be membership in the human race regardless of age, I do not understand why you persists in claiming that I think chimpanzees deserve human rights, or why this is some logical consequence of my position. They are quite simply not human beings.
However, it seems that you disgree with Roe’s assertion that the right to life does not begin solely at birth. I am now curious as to when *you* think humans are entitled to the specific right to life that, as you say, “naturally flow[s] from rational self-interest as a sentient being”. Since we are willing to grant a right to life to members of our species that have not acheived full developmental consciousness (e.g. a newborn baby), I cannot find a logical justification for not granting this right to other, less developed members of the species which have the same fundamental human nature. This is the essence of “natural rights”. If rights are attached at some fixed point chosen by man, they are not natural at all.
Comment by Ben Kennedy — December 2, 2005 @ 5:09 pm
I cannot find a logical justification for not granting this right to other, less developed members of the species which have the same fundamental human nature.
Why limit it at species? What separates humans from other primates is sentience. Chimpanzee fetuses and human fetuses have the same level of sentience. They have the same fundamental human nature. Like I said, you support rights for chimpanzees, or your theory is arbitrary.
Since I have said quite clearly that my criteria for receiving human rights should be membership in the human race regardless of age
If that is your view, then there should be no child labor laws, and no laws against pedophilia. Are you a member of NAMBLA?
Comment by Commentator — December 2, 2005 @ 11:42 pm
Commentator - you keep misinterpreting my comments and moving the discussion off the original topic. I am concerned now with one thing - should the natural law rights we currently afford to born people also be afforded to the unborn. That is all I wish to address - not chimpanzees, and not NAMBLA. So, if you want to bring up some theory of natural law that excludes the unborn from receiving human rights, be my guest. Or if you don’t believe in natural law and natural rights, then this whole discussion is moot.
Comment by Ben Kennedy — December 3, 2005 @ 8:46 am
With all due respect, your formulation is wrong. The question is whether we should replace the current rule with the rule you now propose. The answer is obviously no, given how incoherent your rule is and all the bad consequences that will necessarily result.
Comment by Commentator — December 5, 2005 @ 2:02 pm
“With all due respect, your formulation is wrong. The question is whether we should replace the current rule with the rule you now propose. The answer is obviously no, given how incoherent your rule is and all the bad consequences that will necessarily result.”
Giving Consitional protection to the unborn (which is the only “rule” I have suggested) has none of the consequences you ascribe. Any hypothetical scenario involving chimpanzees could just as well happen right now, due to what you have already noted about neurological development. If we give rights to two year olds, why not chimpanzees, right? This debate is unchanged by giving Constitutional protection to the unborn.
However, you seem to want to avoid talking about natural rights of the unborn. How can you give natural rights to pre-sentient newborns but not pre-sentient fetuses? Earlier, you said:
“So, a distinction based on age, or mental development, can be made that is consistent with Locke and with natural rights”
I am curious how you can make this distinction without completely eroding the very foundation of natural law. How can a specific human creature not receive the right to life of all human creatures? I think such a distinction inherently contradicts the notion of natural rights.
Comment by Ben Kennedy — December 5, 2005 @ 2:44 pm
How can you give natural rights to pre-sentient newborns but not pre-sentient fetuses?
I never said one should, so the premise of your critique is a straw-man.
I am curious how you can make [an age-based] distinction without completely eroding the very foundation of natural law.
I already gave two examples. One can note that consent necessarily follows from man’s capacity to reason; since the ability to reason of children is lesser than that of mature adults, there is less to which the state will acknowledge they can consent to, e.g., child labor is restricted. That is not inconsistent with the right to one’s labor, because it is a part of the natural state of affairs that children are cared for by their parents. One might also say that the right to reproduce is a natural right; one could in the same way refuse to recognize as valid the consent of children engaging in sex acts with much older adults, because a part of the natural state of affairs of humankind is location in time; we accrete experience and wisdom used in good decision-making over time. Likewise, fetuses are younger and located in wombs and newborns are older and not; a difference in age and in the natural state of affairs can support a distinction in the recognition of consent. The argument is not over what rights God vests in man, as it were; but whether it is justified for the state to condition their recognition — if your answer is no, then it seems your problem is that there is a state at all, and you are an anarchist: so I fail to see why you are so upset that I have attributed to you the necessary consequences of your anarchist position, i.e., permitting chimpanzees to run rampant in the courts and pedophiles to run rampant in the streets; that is your favored state, the state of nature, is it not? If, on the other hand, you are simply disagreeing whether the line is properly drawn, then the question is “whether we should replace the current rule with the rule you now propose.”
In that case you have the burden of demonstrating that your rule would not result in anarchy, or at the very least, worse consequences that the status quo, if taken to its logical extension. You have failed thus far.
Comment by Commentator — December 5, 2005 @ 11:32 pm
“I never said one should [give natural rights to newborns], so the premise of your critique is a straw-man.”
Are you telling me that you think newborns have no natural rights?
“The argument is not over what rights God vests in man, as it were; but whether it is justified for the state to condition their recognition”
The word “recognition” is apt - natural rights pre-exist before the state, and there are occasions when the state may not recognize them. This is legitimate when there is a conflict of rights. The state may restict my right to property if I exercise it to take someone else’s. This is called “stealing”. A state may restrict an adults right to have sex by preventing people from having sex with infants or minors. This is called “statuatory rape”. Similarly, child labor may be criminialzed due to the historically documented exploitative relationship between employer and child. In all cases, some rights are suppressed based on protecting others. Rights may also be ignored to further legitimate state interests, e.g. the draft of voting age requirements. These age-based distinctions refer to state recognition of rights, but have nothing to do with whether or not there is an underlying natural right to recognize. Infants have freedom of speech, even though they can’t talk. They have freedom of association, even though they can’t even crawl.
So my question, which you keep dodging, is why do you think unborn humans not have the same natural rights afforded to newborn infants?
Comment by Ben Kennedy — December 6, 2005 @ 9:41 am
At this point it is rather obvious that you are desperate. You quote me as having said: “I never said one should [give natural rights to newborns], so the premise of your critique is a straw-man.” (bracketed material yours).
What I actually said was quite different. You asked: “How can you give natural rights to pre-sentient newborns but not pre-sentient fetuses?” I replied: “I never said one should, so the premise of your critique is a straw-man.” I never said anything about how natural rights should be distributed. I took no position whatsoever on whether God should give natural rights to newborns. In fact, I said: “The argument is not over what rights God vests in man, as it were; but whether it is justified for the state to condition their recognition.” If your argument is with God, leave me out of it.
Comment by Commentator — December 9, 2005 @ 11:39 am
“I took no position whatsoever on whether God should give natural rights to newborns.”
You are dodging the question, yet again. Do you think the unborn have natural rights? Your reluctance to even engage this question highlights the fundamental defectiveness of Constitutionally protected “abortion rights” - they only exist by refusing to consider the humanity of the unborn.
Comment by Ben Kennedy — December 9, 2005 @ 3:58 pm