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The Two Abortion Rights, and Therapeutic Abortions as Medical Self-Defense:

The Introduction to my Medical Self-Defense article attracted enough interest that I thought I'd serialize the article on the blog; and the Harvard people were kind enough to let me do that. So let me follow the Introduction with a brief discussion of the Court's existing recognition of a constitutional medical self-defense -- the (surprisingly uncontroversial) right to get even late-term abortions when needed to protect the mother's life. (I do not rely on the more controversial right to get such abortions to protect the mother's health, including possibly emotional or psychological health, or on the right to get particular abortion procedures such as those at issue in Stenberg v. Carhart.) Recall that I'm arguing here both that the Court should recognize a constitutional right to medical self-defense, by analogy to the Court's past precedents, and that even if no such constitutional right is recognized, legislators and voters ought to recognize a moral right to medical self-defense.

Roe and Casey hold that the Constitution protects the right to an abortion. But this right actually consists of two different rights -- different in scope, justification, and popular support.

The first is the highly controversial right to abortion as reproductive choice, which generally allows pre-viability abortions on demand. The second is the right to abortion after viability when necessary "to preserve the life or health of the mother." This is not the right to abortion on demand, since a woman must show a particular reason for a post-viability abortion. Nor is the right justified by the woman's right to choose whether to bear a child: If the medical danger hadn't arisen, the woman would have been obligated to bear the child to term.

Rather, the right is a right to medical self-defense -- the right to protect your life using medical care, even when this requires destroying that which is threatening your life. This right exists despite the interest in protecting the viable fetus's life, an interest Roe and Casey held compelling enough to trump the abortion-as-choice right. Yet this right is largely uncontroversial, endorsed even by Chief Justice Rehnquist's Roe dissent, by all the restrictive abortion laws in effect when Roe was decided, and by public opinion. Only 9% to 15% of Americans endorse the view that abortions should be banned even when the woman's life is in danger. Compare this to the 42% to 58% of Americans who endorse the view that abortion should be generally banned, and available at most to protect the woman's life or in cases of rape or incest, and the 33% to 46% who endorse a similar view but without even a rape or incest exception.

The medical self-defense right has been expressly recognized just in abortion cases. Yet it can't be logically limited to situations where the defensive procedure is abortion, and rejected in cases where the woman needs to defend herself using experimental drugs or an organ transplant. Nothing about therapeutic postviability abortion makes it more deserving of protection than any other medical self-defense procedure.

One can't distinguish postviability abortions on the grounds that they involve the woman's reproductive choice. After viability the time for that choice has passed, and the ability to get a therapeutic abortion is a side-effect of the woman's medical self-defense right, not her abortion-as-choice right. Nor can one distinguish therapeutic abortions on the grounds that they involve control over the woman's own body. A patient's adding substances (such as medicines or an organ) to her body, as well as removing substances from her body (say, through drugs that kill cancer cells), involves her control over her body as much as does a doctor's inserting a surgical instrument to remove a fetus.

The medical self-defense procedures may cause some harm. Ellen's experimental drug may shorten Ellen's already short expected lifespan. It may also cost her money for what the government thinks may well be a false hope (though note that the pharmaceuticals in the Abigail Alliance case were merely not proven effective, rather than proven ineffective). Likewise, as I discuss [below], allowing compensation for organs has been said to potentially cause various other harms.

Yet Roe and Casey demand far more than a showing of some conceivable risk to some government interests before Alice's right to abortion-as-self-defense may be restricted. Even the compelling interest in protecting the life of a viable fetus -- a fetus that is in many ways indistinguishable from a born baby -- isn't enough to overcome Alice's rights.

The same should hold for other medical procedures used to protect one's life. Modest burdens on the right to medical self-defense, such as an informed consent requirement or a short waiting period, would be constitutional. But to impose a substantial burden on the patient's right to protect her life through medical procedures, the government should have to show an extremely powerful reason for burdening the right, and to show the burden is genuinely necessary because the government's goals can't be achieved in less burdensome ways. And even when the interest is powerful in the abstract, it might still sometimes be rejected in favor of a right to protect one's life, as the interest in protecting fetal life is rejected under the abortion-as-self-defense right.

There is, of course, an important limit to the right to medical self-defense (or to lethal self-defense): The right is constrained by the rights of others who aren't threatening the woman's life. No woman has a constitutional right to force a doctor to perform an abortion, even to save her life. Likewise, Ellen's constitutional right to medical self-defense wouldn't entitle her to steal experimental drugs.

But this is no different from the way other indisputably recognized constitutional rights operate. My First Amendment rights don't let me steal a printing press, speak on your lawn, or trespass on private property to worship at the site of an alleged miraculous apparition (even if Employment Division v. Smith were overturned).

This is not because property rights are more important than free speech rights, free exercise rights, or self-defense rights; rather, it's because even important rights are bounded by the rights of others. Naturally the exact scope of those rights of others -- for instance, whether they include the right to freedom from defamation, emotional distress, offense, or interference with business relations -- has long been the subject of debate. But in our legal system an inherent, and I think necessary, aspect of constitutional rights is that they are bounded by at least some rights of others. The existence of such boundaries doesn't contradict the existence of the right, or weaken the right's force when exercise of the right does not conflict with the rights of others.

Next week, I'll talk more about lethal self-defense, and then get to the payoffs, which have to do with experimental drugs and compensation for organ transplants.

Adam:
I'm supposed to be studying for the MPRE, but I'm reading the VC instead.

Does anyone know how many times a year an abortion is performed in the U.S. for the purpose of saving a mother's life?

Just curious.
11.3.2006 5:55pm
Andrew Hyman (mail) (www):
[T]he right is a right to medical self-defense -- the right to protect your life using medical care, even when this requires destroying that which is threatening your life. This right exists despite the interest in protecting the viable fetus's life, an interest Roe and Casey held compelling enough to trump the abortion-as-choice right. Yet this right is largely uncontroversial....


It is only uncontroversial as a policy matter. It is extremely controversial as a matter of constitutional law. There are few (if any) doctrines of constitutional law more controversial than the doctrine of substantive due process, and that is precisely the doctrine at issue here.
11.3.2006 6:11pm
omarbradley:
Adam, I think if you look at the statistics put out it's around 1% or less of all abortions are done to save the mother's life. Of course, you also get to things like what if she says if I don't get an abortion I'm going to kill myself, would that count as a life exception? I don't think so.

I think you need to have an actual threat to death or grievous bodily harm(ie paralysis, blindness, or whatever counts as serious bodily harm under justifiable homicide statutes and laws). I don't think merely some discomfort or mental anguish satisfies it.

Prof Volokh is exactly right, though, about the right to claim self defense and to have it result in acquittal.. It goes all the way back to the common law and was recognized by Coke, Hale, Blackstone and all those other olde British judges who wore powdered wigs. It was recognized in just about every state in the union from the founding throught the 14th amendment. It was recognized explicitly by the SCOTUS in Beard vs US(1895) and in a bunch of cases subsequently. It was fruther recognized in cases like Chambers, Winship, Patterson and Martin v Ohio as a Due Process Right. In Montana v Egelhoff, Scalia and Thomas, in contrast to denying that the right to claim voluntary intoxication was a due process right under Patterson and Medina, indicated that the right to claim self defense would indeed satisfy the burden of being "deeply rooted in history and tradition so as to be ranked as fundamental" and "implicit in ordered liberty".

From Egelhoff:
the proposition that the Due Process Clause guarantees the right to introduce all relevant evidence is simply indefensible.

but
Of course, to say that the right to introduce relevant evidence is not absolute is not to say that the Due Process Clause places no limits upon restriction of that right. But it is to say that the defendant asserting such a limit must sustain the usual heavy burden that a due process claim entails:

"[P]reventing and dealing with crime is much more the business of the States than it is of the Federal Government, and . . . we should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States. Among other things, it is normally `within the power of the State to regulate procedures under which its laws are carried out,' . . . and its decision in this regard is not subject to proscription under the Due Process Clause unless `it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.' " Patterson v. New York, 432 U.S. 197, 201-202 (1977) (citations omitted).


See also Cooper v. Oklahoma, 517 U. S. ___, ___ (1996) (slip op., at 6) (applying Patterson test); Marshall v. Lonberger, 459 U.S. 422, 438, n. 6 (1983) ("the Due Process Clause does not permit the federal courts to engage in a finely tuned review of the wisdom of state evidentiary rules"). Respondent's task, then, is to establish that a defendant's right to have a jury consider evidence of his voluntary intoxication in determining whether he possesses the requisite mental state is a "fundamental principle of justice."

Our primary guide in determining whether the principle in question is fundamental is, of course, historical practice. See Medina v. California, 505 U.S. 437, 446 (1992).

Furthermore:
Finally, we may comment upon the Montana Supreme Court's citation of the following passage in Martin v. Ohio, 480 U.S. 228 (1987), a case upholding a state law that placed on the defendant the burden of proving self defense by a preponderance of the evidence:

"It would be quite different if the jury had been instructed that self defense evidence could not be considered in determining whether there was a reasonable doubt about the State's case, i.e., that self defense evidence must be put aside for all purposes unless it satisfied the preponderance standard. Such instruction would relieve the State of its burden and plainly run afoul of [In re] Winship's mandate.

and Finally:
This passage can be explained in various ways--e.g., as an assertion that the right to have a jury consider self defense evidence (unlike the right to have a jury consider evidence of voluntary intoxication), is fundamental, a proposition that the historical record may support.

Based on the historical record, from Coke, Hale and Blackstone to the present day, SCOTUS precedent, and the practice and tradition of state laws and constitutions(40+ states have laws allowing for self defense and justifiable homicide/lethal force to defend one's life and body from serious harm), the right to claim self defense, would, even under Scalia and Thomas' narrow view, easily meet the burden that the involuntary intoxication defense could not.

So, whether or not it is a due process right(which under SC precedent and the historical record it clearly is), or a privilege or immunity(which the historical record also tends to support), the right to introduce and have considered evidence of self defense is clearly a constitutional right that no state may deny.
11.3.2006 6:15pm
omarbradley:
Adam,

According to the GUttmacher Instiutute, here's some statistics:

In Nebraska, .10% of abortion were to save the mother's life, or 21 out of 19,325 between 2001-2004

In South Dakota, 1.25% were to save the mothre's life, or 67 out of 5,363 between 1999 and 2003

In Utah, .30% were for that reason, or 69 out of 22,959 bewteen 1996 and 2003

Same with the health exception, it ranges from 1-3% in most states.
11.3.2006 6:24pm
Andrew Hyman (mail) (www):
Omarbradley, you're making sweeping generalizations. There obviously is no right to self defense in many circumstances. You cannot harvest organs from your children to save yourself. There has never been a right to self-defense when the people who are attacking you are doing so unintentionally and there are a lot more of them than there are of you. There's never been a right to self-defense when the people who are attacking you are doing so unintentionally and your own negligence has placed you in that situation.

Additinally, the oft' stated view of Justices Scalia and Thomas is that substantive due process is a "judicial usurpation" and an "oxymoron." In the cases you refer to, they were dealing with procedural due process, not substantive due process. The issue was whether, and to what extent, the Due Process Clause (as opposed to other provisions of the Constitution) ensure that a defendant can introduce evidence of self-defense IF self defense is already an affirmatiove defense according to the legislature.
11.3.2006 6:25pm
Steve:
Those numbers seem absurdly low. Do they include, for example, termination of ectopic pregnancies, which I would assume is the most common life-endangering complication?
11.3.2006 7:15pm
omarbradley:
Substantive Due Process may be controverisal to Andrew Hyman, but it is not all that controversial on the SC and it hasn't been for over 100 years.

To be sure, there are disputes over just how it applies and its use particularly in the economic/liberty of contract sphere and the individual rights/social issues sphere(ie abortion, sodomy, assisted suicide, etc...), but the existence of SDP and the standards for analysing claims under it and ajudicating them, particularly in the field of procedure and criminal trials, is not all that controverisal at all.

In any case, this issue is more procedural due process than substantive due process and is totally separate for the unenumerated rights.sdp decisions like Lawrence, Griswold, Moore v East Cleveland, Roe and others.

In fact, in Montana v Egelhoff, Martin v Ohio, Medina v California, and other cases, Justices such as Scalia, Thomas, Rehnquist and White, all of whom dissented from Roe v Wade and Casey and Lawrence all agreed that the due process clause does place limitations upon a state with regard to what evidence it can bar a defendant from introducing and having considered by a jury as mitigating and possibly acquittal inducing.

Granted the due process burden is heavy and not easily met, but the self defense claim does meet it.

As Scalia asked in Egelhoff:

Respondent's task, then, is to establish that a defendant's right to have a jury consider evidence of his voluntary intoxication in determining whether he possesses the requisite mental state is a "fundamental principle of justice."

Our primary guide in determining whether the principle in question is fundamental is, of course, historical practice. See Medina v. California, 505 U.S. 437, 446 (1992).

So, under Scalia's own test, the question is whether the right to have jury consider evidence of self defense is a "fundamental prionciple of justice" as established by the historical record, case law and SC and state law precedent and current and recent state law practice and tradition.

It's really not even that close when one reads the history and the case law.

Here's Blackstone:
And thefe may be reduced to three principal or primary articles ; the right of perfonal fecurity, the right of perfonal liberty ; and the right of private property : becaufe as there is no other known method of compulfion, or of abridging man's natural free will, but by an infringment or diminution of one or other of thefe important righs, the prefervation of thefe, inviolate, may juftly be faid to include the prefervation of our civil immunities in their largeft and moft extenfive fenfe.


I. THE right of perfonal fecurity confifts in a perfon's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.


1. LIFE is the immediate gift of God, a right inherent by nature in every individual ; and it begins in contemplation of law as foon as an infant is able to ftir in the mother's womb. For if a woman is quick with child, and by a potion, or otherwife, killeth it in her womb ; or if any one beat her, whereby the child dieth in her body, and fhe is delivered of a dead child ; this, though not murder, was by the antient law homicide or manflaughter o. But at prefent it is not looked upon in quite fo atrocious a light, though it remains a very heinous mifdemefnor p.

2. A MAN'S limbs, (by which for the prefent we only underftand thofe members which may be ufeful to him in fight, and the lofs of which only amounts to mayhem by the common law) are alfo the gift of the wife creator ; to enable man to protect himfelf from external injuries in a ftate of nature. To thefe therefore he has a natural inherent right ; and they cannot be wantonly deftroyed or difabled without a manifeft breach of civil liberty.

BOTH the life and limbs of a man are of fuch high value, in the eftimation of the law of England, that it PARDONS even homicide if committed .{FE} defendendo, or in order to preferve them. For whatever is done by a man, to fave either life or member, is looked upon as done upon the higheft neceffity and compulfion.

Beard vs US(1895), a unanimous decision of HARLAN fruther expounds on the matter, listing numerous common law examples from history from Earl's Pleas of the Crown, Foster's crown cases, Bishop's criminal law, Whatron's criminal law

It also lists the opinions of numerous state courts:
See, also, Gallagher v. State, 3 Minn. 270, 273 (Gil. 185); Pond v. People, 8 Mich. 150, 177; State v. Dixon, 75 N. C. 275, 279; State v. Sherman, 16 R. I. 631, 18 Atl. 1040; Fields v. State (Ind. Sup.) 32 N. E. 780; Eversole v. Com. (Ky.) 26 S. W. 816; Haynes v. State, 17 Ga. 465, 483; Long v. State, 52 Miss. 23, 35; State v. Tweedy, 5 Iowa, 433; Baker v. Com . (Ky.) 19 S. W. 975; Tingle v. Com. (Ky.) 11 S. W. 812; 3 Rice, Ev. 360.

It explicitly denies the "retreat to the wall" theory and concluded that a man is "entitled to stand his ground, and meet any attack made upon him with a deadly weapon, in such way and with such force as, under all the circumstances, he, at the moment, honestly believed, and had reasonable grounds to believe, were necessary to SAVE HIS OWN LIFE, or to PROTECT himself from great bodily injury."

Surely if you're allowed to save your own life when someone is trying to kill you or do great bodily harm, you're allowed to in a case where your life is threatened by a fetus/baby/child/husband/whatever. Or at the least, you're allowed to claim that and have a jury decide

I could go on and on but I highly doubt that any SC Justice, even Scalia or Thomas would affirm the ability of a state to deny a defendant of "the right to have a jury consider self defense evidence" which even they admit, the historical record would seem to support. Until such a case is brought, we won't know, but I'd suspect it would be a unanimous decision upholding the due process right.
11.3.2006 7:18pm
omarbradley:
Of course the self defense right is not absolute and applcable in any situation whatsoever, however, its content is long settled by the common law and other case law. Andrew brings up exceptions, but they in no way deny the right altogether. Just as certain restrictions o free speech or free exercise of religion don't deny those rights.

Andrew Hyman, I guess my question for you is this:

Does a state have the power to deny a defendant the right to introduce evidence that he or she acted in self defense? Can they exclude self defense altogether from the trial?

Do you disagree with the SC in Martin v Ohio that:

"It would be quite different if the jury had been instructed that self defense evidence could not be considered in determining whether there was a reasonable doubt about the State's case, i.e., that self defense evidence must be put aside for all purposes unless it satisfied the preponderance standard. Such instruction would relieve the State of its burden and plainly run afoul of [In re] Winship's mandate."

Do you disagree with the SC in Montana v Egelhoff that:

the right to have a jury consider self defense evidence (unlike the right to have a jury consider evidence of voluntary intoxication), is fundamental, a proposition that the historical record may support.

I agree with both passages and I think that if the case ever comes before the court, it will be a 9-0 decision in favor of it. We'll see.
11.3.2006 7:26pm
Andrew Hyman (mail) (www):
Omarbradley, it's irrelevant whether "any SC Justice, even Scalia or Thomas would affirm the ability of a state to deny a defendant of 'the right to have a jury consider self defense evidence' which even they admit, the historical record would seem to support." That is not what Professor Volokh's article is about. It is about whether a state has power to substantively deny a defendant the right of self-defense, rather than about whether a state can regulate procedural standards for admissibility of evidence to a jury.

Omar, you previously wrote, "I agree with you on substantive due process." But now in this thread you say that the doctrine "is not all that controversial and it hasn't been for over 100 years." How is anyone supposed to have a serious conversation with you if you wiggle around like that? The doctrine is obviously extremely controversial, with Justices like Scalia and Thomas calling it an "oxymoron" and a "usurpation." Many other justices have felt the same way (e.g. Justice Black and plenty of justices in the ninteenth century). Note that a lot of things have been around for more than 100 years without thereby becoming legitimate (e.g. rape, incest, warfare, murder, et cetera). Sustantive due process is just another in a long line. I particularly like this characterization:

D/P is a not only a common shorthand for Due Process, but is also porn industry slang for "double penetration," a fitting metaphor for what the Supremes are doing to the Constitution every time they use it.


And surely the doctrine has expanded dramatically over the past hundred years. It's not as though the doctrine were anywhere near as pervasive in 1906 as it is today. The point is, if the doctrine flies in the face of our written Constitution, then our written Constitution should prevail, no matter how long the violation has occurred.

As to your question about the right of a defendant to have a jury consider evidence, yes I do believe that such a right has at least some constitutional protection, but that has nothing to do with Due Process. If a criminal statute makes self-defense an affirmative defense, then I do believe the Sixth Amendment guarantees that the jury can receive at least some evidence as to that affirmative defense. That right also applies to the states, by virtue of the Privileges or Immunities Clause of the 14th Amendment. Due Process has absolutely nothing to do with it, IMHO.
11.3.2006 8:04pm
Steve:
The doctrine is obviously extremely controversial, with Justices like Scalia and Thomas calling it an "oxymoron" and a "usurpation."

Sure. And Judge Bork felt paper money was unconstitutional. That doesn't mean he would have gotten rid of it.
11.3.2006 8:10pm
Andrew Hyman (mail) (www):
I don't know the extent to which Scalia and Thomas would "get rid of it" but I do very strongly suspect that they would stop expanding it.
11.3.2006 8:15pm
Andrew Hyman (mail) (www):
Incidentally, the notion that paper money is unconstitutional is completely wrong, as I previously pointed out.
11.3.2006 9:39pm
omarbradley:
Andrew,

a few comments:

1: While Scalia and Thomas have been vocal opponents of its use and especially its broad application, the vast majority of SC Justices have accepted sdp and agreed with it to one degree or another. If you add up a list of justices since it first started being used in the late 1800's, way more have supported it than opposed it. Even Roberts and Alito both acknowledged it and seemed to agree with it in their hearings. So, as far the SC is concerned, it's not all that controversial. In the economic realm it's gone by the wayside, but as far as personal rights, it's still widely used and accepted by a vast majority of Justices.

2: Perhaps I wasn't as clear as I could have been and conflated procedural and substantive due process. The idea of procedural due process rights is even less controversial than substantive due process "fundamental rights" jurisprudence and even Scalia and Thomas accept procedural due process as a limitation on state power.

See Egelhoff:

Of course, to say that the right to introduce relevant evidence is not absolute is not to say that the Due Process Clause places no limits upon restriction of that right. But it is to say that the defendant asserting such a limit must sustain the usual heavy burden that a due process claim entails(IOW, there ARE limits placed by the Due Process clause)

The burden is heavy, but there are rights that satisfy it.

and that to analyze a given due process right the Court has to ask whether the right in question is:

"a fundamental principle of justice."

Our primary guide in determining whether the principle in question is fundamental is, of course, historical practice. See Medina v. California, 505 U.S. 437, 446 (1992).

They go in to indicate that the self defense right would indeed meet the heavy burden set out.

So, the question for me is whether or not the right to have a jury consider evidence that an action was taken in self defense is "a fundamental principle of justice" protected by the due process clause. I think the historical record, from the Common Law through State Law through practice and tradition through SC precedent and just about any other mark you want to use, shows that it is indeed and therefore a state may not deny it to a defendant. A state may not pass a law that denies defendants the right to plead self defense or that commands juries to disregard claims/evidence of self defense. Do you agree?

Now, the jury isn't obligated to accept the evidence or to acquit the defendant based on it, but the defendant does have a right to present it. A state cannot exclude self defense as an affirmative defense, it cannot take away the right of self defense from its citizens. In fact, I'd go so far as to say that the right of self defense is one of the privileges or immunities of US citizenship protected by the 14th amendment.

Now this is limited by time/place/manner restrictions as are the 1st amendment speech/religion rights. It's not applicable in every situation and every time. But under the widely settled laws such as as are stated in Beard vs US and the statutes of just about every state in the Union(basically you have a reasonable belief that your life is in danger or that you're about to suffer great bodily harm, you're otherwise acting lawfully, you haven't provoked the attack, it's not in the process of a fight or conflict you've started, you've made a reasonable attempt to get away and/or avoid using lethal force etc...)I do think there is a constitutional right to act in self defense.

I also think the historical record supports me there.

Now, whether you base that on the due process clause, the privileges or immunities clause, the 6th amendment I don't really care.

As an example, while I agree Roe was wrongly decided and that abortion laws should be up to the states, I think if a state passed a law that abortion was criminal even if necessary to save a woman's life, I think that would be unconstitutional, and I think the SC would unanimously hold, even Scalia and Thomas.

See Rehnquist's and White's dissents in Roe. They both indicate that laws that criminalized abortion when necessary to save a woman's life would be unconstitutional.

So yes, I think there is both a procedural due process right to present evidence of self defense AND a right to act in self defense that is protected by the P and I clause of the 14th amendment(as interpreted by Justices like Field, Bradley, Chase, Swayne, Harlan I and even hinted at by Thomas in Saenz v Roe and in 2 law review articles he wrote in the late 80s) the due process clause of the 14th amendment(if you follow Harlan's due process jurisprudence which has become accepted by many on the SC) or by the 2nd amendment(if you believe certain individual rights gun rights scholars) or by the 9th amendment(if you believe Randy Barnett and some other 9th amendment scholars). And I think the historical record and relevant case law supports both propositions.
11.3.2006 10:27pm
omarbradley:
As an example here's Rehnquist from his dissent in Roe:

The Due Process Clause of the Fourteenth Amendment undoubtedly does place a limit, albeit a broad one, on legislative power to enact laws such as this. If the Texas statute were to prohibit an abortion even where the mother's life is in jeopardy, I have little doubt that such a statute would lack a rational relation to a valid state objective under the test stated in Williamson, supra. But the Court's sweeping invalidation of any restrictions on abortion during the first trimester is impossible to justify under that standard, and the conscious weighing of competing factors that the Court's opinion apparently substitutes for the established test is far more appropriate to a legislative judgment than to a judicial one.

IOW, a law criminalizing abortion that lacked a life exception WOULD be unconstitutional. White's dissent agrees with this as he repeatedly contrasts lasws that seek to ban abortions based on the whim, caproce or convenience of the mother, and those that would seek to ban them when her life or health is serious jeopardy.

Now why would both of them, dissenters in Roe/Casey, acknowledge that abortion laws that bar abortion even when the mother's life is in danger are invalid? Clearly becuase they infringe on a right to self defense and a right to take action to save one's life. Now whether you use the rational basis due process test of Williamson or the P and I clsue or whatever the result is the same.

I have full confidence that Scalia and Thomas agree with Rehnquist's dissent above and would strike down an abortion law that lacked an exception to save the mother's life. Even the SD ban at issue next week has a life exception.

Do you agree with Rehnquist and White that "If the Texas statute were to prohibit an abortion even where the mother's life is in jeopardy" it would be unconstitutional? Or would you uphold such a ban?
11.3.2006 10:42pm
Andrew Hyman (mail) (www):
General Bradley, Scalia and Thomas are right about substantive due process, whereas Rehnquist and White were wrong. Don't forget that White was one of the geniuses who gave us Griswold v. Connecticut, which was an abomidable decision that shredded the Constitution in order to reach a morally correct result that would have eventually been reached by legitimate means.

Look, if some insane state legislature decides to ban abortion even to save the life of the mother, and Congress is unable or unwilling to do anything about it, then it's a complete no-brainer that the American people should then amend the Constitution to include a right of self-defense in at least these narrow circumstances. Passing constitutional amendments was good enough for previous generations of Americans, and it should be good enough for us.

General Bradley, the framers of the Constitution thought that the people's rights would be most secure if some of them were put in the hands of the federal judiciary, and if some of them were put in the hands of the elected representatives of the people themselves. They did not mean for all the important rights to be taken out of the hands of the people's representatives, so that legislators are left with trivial little decisions like whether to label a couple "married" or not. The framers did not trust the judiciary to properly draw all the lines between one person's rights and another person's rights.

You can cite all the cases you want, while assiduously avoiding the plain text of the Constitution. But that plain text was written so we could hold judges to account, and not so the judges could mangle the text however they please.

As I've already pointed out, the language of the 14th Amendment's Privileges or Immunities Clause very plainly does not compel states to respect any rights at all, unless those rights already restrain the federal government. Likewise, the language of the 9th Amendment negates any expansion of governmental power caused by the enumeration of rights in the Constitution, without further limiting governmental power. This plain meaning is confirmed by the legislative history of those amendments. Likewise, the Due Process Clause has what Hamilton called a "precise technical import" which had already been settled by the highest courts in Britain.

It really borders on treason to say, "I think people should have a particular constitutional right and I don't care which part of the Constitution we shoehorn that right into." One person's right can be another person's destruction. You want to leave all those decisions to judges? You trust fuive judges to determine when a substantive right of self defense should apply and when it should not? You think five unelected and unaccountable lawyers should be entrusted with these decisions?

Suppose five clueless judges come up with a cockamamie rule that the mandatory component of the right to self defense is the right to do what is necessary to prevent death (or seriously bodily injury, rape, or a few other serious harms) without infringing the rights of others who aren't attacking you, regardless of the moral culpability of the attackers. Then a person tied to a train track will have a fundamental constitutional right to throw grenades at an oncoming train. Two parents adrift in a lifeboat with their kids and a few cans of food will have a fundamental constitutional right to throw the kids overboard to keep the food for themselves. It goes on and on. I do not trust judges to draw all of these lines, and neither did the framers. As one representative at the New York ratification said in 1788:

[A prisoner may] hold his life... at the pleasure of the Supreme Court, to which an appeal lies, and consequently depend on the tender mercies, perhaps, of the wicked, (for judges may be wicked;) and what those tender mercies are, I need not tell you. You may read them in the history of the Star Chamber....


Personally, I worry much more about judicial stupidity than wickedness.
11.3.2006 11:27pm
omarbradley:
If you think Scalia or Thomas would uphold an abortion law that didn't have a life of the mother exception, I think you're mistaken. I doubt one will ever be passed anyway, but I'm confident they'd strike if it it got to the SCOTUS.

Your amendment passing idea is fine and theory but in practice amendments aren't passed that easily. There's been 15 or so the last 200+ years. They just don't happen like that and the idea that amendments would be passed for every bad judicial decision that is handed down is rather silly. It's just not going to happen.

Your P and I point is meaningless. When did I say that the right to self defense didn't also restrain the federal govt? It applies equally to the states and the feds. So your P and I argument doesn't work. I have just as much of a right to claim self defense in federal court as I do in state court, no more no less. It's a P or I that applies to both levels of govt. Just like Freedom of Speech, Trial by Jury, and the right to confront witnesses.

As for the 9th amendment, you can continue to hold that view, but as Randy Barnett and others have shown, the history and original meaning of the 9th amendment is far from as "plain" as you apparently believe it to be. I'm not saying I agree with Prof Barnett, but he and others certainly have amassed copious evidence to support their claim and refute yours so I don't think it's as open and shut as you make it out to be.

Your five clueless Judges argument is irrelevant. 5 clueless judges don't need substantive due process or the 9th amendment to make bad decisions. The way our system is set up, 5 Justices on the SCOTUS can do whatever they want for whatever reason they want and it's the law until a constitutional amendment overrules them. If 5 Justices say that freedom of assembly protects the right to sodomy, then it does and we're stuck with that ruling and it's the law. If they say that the 8th amendment prohibits jail sentences of more than 5 years becuase they're cruel and unusual then that's the law. If they say that freedom of expression/speech protects child pornography or cocaine use or whatever, then it does and that's the law. Until we amend the Constitution, which as you've no doubt seen with the attempts to protect flag burning and marriage, isn't exactly the overnight thing you make it out to be.

The court doesn't need the due process clause to make bad decisions, they have more than enough other weapons in their arsenal. You may not like it, I may not like it, but that's how it is.

Ultimately, the Court can do what it chooses and decide how it feels, substantve due process or not. The court has made countless wrong decisions in non-due process cases to show that even plain textual provisions like the Bill of Rights, the Commerce Clause, and others are no barrier to abuse by Judges.

You might not like it and feel that 5 black robed masters are running your life, but I and most Americans don't. If you have that much of a problem with the way the SC operates, I'm sorry but I can't help you.

So while substantive due process is certainly a means to judicial adventurism, getting rid of it won't solve your problems. It'll just transfer them to another area or clause for you to complain about.

For someone who seems so hung up on originalism and textualism I find it funny that you'd call a post on a blog explaininbg that there are various possible textual groundings for a constitutional decision to be treasonous.

Setting aside the fact that a blog post on ConLaw is protected by the 1st amendment and that treason has to be an overt act with 2 witnesses, which there certainly isn't in this case, the idea that a blog post on Con Law amounts to "Levying war against the United States" or "adhering to its enemies, giving them aid and comfort" is quite frankly rediculous, and I question just how aware of the plain meaning of the text you are to even make such a statement.

Justices from John Marshall on down have written decisions that offer multiple rationales and grounds, so I don't see the big deal. A right or power can be grounded on more than one clause or provision.

I didn't say I don't care which part of the Constitution I shoehorn it to. I don't think for example, that self defense is protected by the 1st Amendment, the 8th amendment, the commerce clause, the Art IV P and I clause or any other clauses. Although, if 5 Justices say the first amendment protects a right to self defense, it does until 5 say it doesn't or we amend the Constitution. FWIW, if they did that, I'd disagree with the decision, even though I agree with the result.

I did say that it could be grounded in the due process clause, the P or I clause, the 6th Amendment or ART III trial by jury clause, or possibly the 9th amendment(if you accept Prof Barnett and others on it), but I acknowledge that the 9th is a bit of a strecth and unwarranted based on SC and federal and state precedent.

I thik either the due process clause or the P or I clause is the most logical place for the substantive right, although an argument can be made for the 6th amendment for the procedural right of claiming self defense during a trial.

You certainly have the courage of your convictions and the confidence that your 100% right about what the Constitution means. I don't, and I don't think most Judges do either. I try to do the best I can based on my research and understanding of the relevant materials. Could I be wrong? Of course, and I'm certainly open to evidence pointing in other directions.

Fortunately, I think the vast majority of judges, SC Justices, and SC case law supports my side. Fortunately, your views are in the minority and haven't commanded a SC majority. I don't think they will either. You're like Don Quixote chasing after your substantive due process and robed masters windmills. You're certainly free to do so, but I don't think your quest will end any different than did El Hombre de la Mancha's.
11.4.2006 1:06am
omarbradley:
Addendum, in 200+ years of American history, only 2 constitutional amendments have been passed as a direct result of an opposed SC decision.

The 11th in opposition to Chisolm v Georgia and I believe the 16th in relation to the income tax. An argument could be made that the 14th amendment was to overturn Barron v Baltimore(indeed Bingham did make that argument) and parts of Dred Scott(the citizenship clause), but it was ratified 35 years and 9 years after those decisions respectively.

So the idea that there'd be some quick constitutional amendment to enshrine a right to have an abortion when a mother's life is at risk is preposterous. Even with things like flag burning and marriage, which the polls show the public overwhelmingly support, amendments to protect them sit around for years and fail to pick up any traction in the Congress, let alone the states.

Contrary to your assertion, passing amendments isn't really an American tradition. The Bill of Rights were a special circumstance related to the consolidation of the govt and the need to placate the antifederalists. Since those ten passed, amendments have been quite rare.

Madison, Jefferson, Hamilton nor any of the other framers ever got any more passed or even seriously advocated doing so.

Even conservatives don't use amendments. They could easily propose an amendment that bans abortion, or allows school prayer, or modifies the establishment clause, or explicitly allows the death penalty, or bans eminent domain for provate development, or bans homosexual sodomy, or band affirmative action, or narrows the commerce clause, or allows for term limits, or whatever. They don't.

Instead, they work within the system and hope to get Justices appointed who will reverse the decisions they don't like; they don't go out and call for and pass amendments to overturn every bad decision that comes down. Just as they push for Justices who will use existing clauses to recognize new rights or powers they wan. They don't push for amending the Constitution to grant those new powers or right, they push for Judges who will do it for them, just like liberals do.

The fact is that passing amendments for singular constitutional rights or powers is rather impractical and just isn't going to happen, nor has it happened throught US history.

James Madison, Alexander Hamilton, and Joseph Story themselves said that the true meaning of the Constitution will be settled over a course of judicial decisions, using precedent, experience, and public acquiescence to help guide the judges. That the people themselves define the Constitution and that acceptance of decisions, even though they may be erroneous as a matter of original meaning, they nonetheless become law and part of the Constitution. That the meaning can and does change over time and that holding out the "original understanding" at Philadelphia or as the case may be in 1868, is pure folly.

In fact, Justice Story vehemently criticized and excoriated just the kind of originalism and certitude that you seem to advocate. He went off on Jefferson and others who advocated originalism and looking to the legislative history of the convention and ratifying conventions as perverting the Constitution.(as did Hamilton in his opinion on the Bank)

Ironically, Bob Bork held Story up in his hearings as "a leading authority" on the original meaning, perhaps unaware that Story had nothing but disdain for the origianlism that Bork advocated.

Madison warned against judges who get to close to the sun and exhibit the hubris that they alone know the true meaning, that all past decisions were wrong and they can take it upon themselves to overrule precedent to follow their own views of what the Constitution means.

Even Madison himself, to take but one example, when it came to the Bank, acknowledged that while he disagreed as to the original meaning, he nevertheless accepted the judgment of the courts and of the people that the Constitution now meant something different than he had thought and signed it into law. He didn't, you'll notice, call for or require a Constitutional amendment to change the meaning. He just accepted that it had evolved through judicial interpretation and public understanding and support.

Even in his crique of McCulloch v Maryland(yes, the great Alexander Hamilton, John Marsall and Joseph Story were harshly criticized by Madison for betraying the original meaning and perverting it far beyond what anyone at the time understood it or expected it to be), Madison didn't call for an amendment to overturn it. Rather, he hoped for Judges that might correct Marshall's error and he even seemed resigned to the fact that the public at large accepted it and that it wouuld no doubt come to be seen as good law.

It's a further irony that many originalists will cite Hamilton, Story and Marshall as sources for the original meaning when Madison himself accused them of ignoring it and controverting it completely.

In my view, the fact that framers like Madison, Hamilton, Jefferson, Marshall, Wilson, Randolph and others couldn't agree on what the original meaning was and that leading commentators like Story, Tucker, Roane, Kent and others disagreed with each other and with the Framers and often critiqued originalism as even being a desired technique in the first place, should give all of us pause before we assert that 220 years in the future, we know what the true original meaning is or even that it matters in the first place.

Concepts like procedural due process and even substantive rights to some extent have long been accepted by both the courts and the public and for a judge to take it upon himself to all of a sudden implement what he thinks the original meaning is would be to fall prey to just the weakness that Madison warned against.

Finally, it's clear that your view is not one that has the support of mainstream American legal circles and Courts, and I for one, am rather appreciative of that.
11.4.2006 1:51am
omarbradley:
For anyone who's interested here's Bork's "leading authority" Joseph Story on Originalism:

10. Mr. Jefferson has laid down two rules, which he deems perfect canons for the interpretation of the constitution...

The second canon is, " On every question of construction [we should] carry ourselves back to the time, when the constitution was adopted; recollect the spirit manifested in the debates; and instead of trying, what meaning may be squeezed out of the text, or invented against it, conform to the probable one, in which it was passed."(In fact I've seen just this quote of Jefferson's cited by many originalists, including on many conservative web sites. It pretty much defines originalism.)

Now, who does not see the utter looseness, and incoherence of this canon.(pretty strong stuff from Bork's "leading authority") How are we to know, what was thought of particular clauses of the constitution at the time of its adoption? In many cases, no printed debates give any account of any construction; and where any is given, different persons held different doctrines. Whose is to prevail? Besides; of all the state conventions, the debates of five only are preserved, and these very imperfectly. What is to be done, as to the other eight states? What is to be done, as to the eleven new states, which have come into the Union under constructions, which have been established, against what some persons may deem the meaning of the framers of it?

How are we to arrive at what is the most probable meaning? Are Mr. Hamilton, and Mr. Madison, and Mr. Jay, the expounders in the Federalist, to be followed. Or are others of a different opinion to guide us? Are we to be governed by the opinions of a few, now dead, who have left them on record? Or by those of a few now living, simply because they were actors in those days, constituting not one in a thousand of those, who were called to deliberate upon the constitution, and not one in ten thousand of those, who were in favour or against it, among the people?

[Ironically, if you look at Thomas and Scalia's opinions opinions, they do this all the time. In Kelo, Printz and countless other cases, they'll cite Madison or some framer to support their decision. But in Rector, Thomas says that Madison's views are ambiguous and that in any event, what he thought doesn't matter becuase he's only one guy and we can't really go by what the a framer or groups of framers thought. What's his minimum #? 2? 10? 100? In Lopez and other decisions, Thomas and Scalia cite Story but in his Thornton dissent, joined by Scalia, Thomas goes on about how Story came from a period after the founding so he doesn't count and he's not reliable enough. In McIntyre Scalia says that it doesn't matter what the framers thought the 1st Amendment meant because it's vague so it acquires meaning over time and has penumbras taht can add or subtract new meanings to it. Thomas says the framers do matter, at least in that case. Although for someone who ripped Story for not being a framer, he has no problem citing various authors and pamphleteers who had nothing to do with the framing. Scalia calls him on it. Thomas also didn't mind citing Fredrick Douglass to give the original meaning of the equal protection clause and invalidate affirmative action. For all Douglass' stengths, he had absolutely nothing to do with framing or ratofying the 14th amendment. To paraphrase Justice Scalia, using originalism is like picking your friends out of a crowded room, there's always enough evidence out there to support whatever result you want to end up with]

Anyway, more Story:

Or are we to be governed by the opinions of those, who constituted a majority of those, who were called to act on that occasion, either as framers of, or voters upon, the constitution? If by the latter, in what manner can we know those opinions? Are we to be governed by the sense of a majority of a particular state, or of all of the United States?

If so, how are we to ascertain, what that sense was? Is the sense of the constitution to be ascertained, not by its own text, but by the "probable meaning" to be gathered by conjectures from scattered documents, from private papers, from the table talk of some statesmen, or the jealous exaggerations of others? Is the constitution of the United States to be the only instrument, which is not to be interpreted by what is written, but by probable guesses, aside from the text? What would be said of interpreting a statute of a state legislature, by endeavouring to find out, from private sources, the objects and opinions of every member; how every one thought; what he wished; how he interpreted it?

Suppose different persons had different opinions, what is to be done? Suppose different persons are not agreed, as to " the probable meaning " of the framers or of the people, what interpretation is to be followed? These, and many questions of the same sort, might be asked.

It is obvious, that there can be no security to the people in any constitution of government, if they are not to judge of it by the fair meaning of the words of the text; but the words are to be bent and broken by the "probable meaning" of persons, whom they never knew, and whose opinions, and means of information, may be no better than their own?

The people adopted the constitution according to the words of the text in their reasonable interpretation, and not according to the private interpretation of any particular men. The opinions of the latter may sometimes aid us in arriving at just results; but they can never be conclusive. The Federalist denied, that the president could remove a public officer without the consent of the senate. The first congress affirmed his right by a mere majority. Which is to be followed?

I couldn't have said it any better
11.4.2006 3:15am
omarbradley:
Interestingly enough, I just noticed an opinion of Justice Scalia's where he explicitly places himself in Jefferson's camp as far as his method of interpretation.

It's interesting to contrast Scalia's approving citation of Jefferson to define originalism with the response from Bork's "leading authority" and Thomas' "brilliant and learned man" Justice Story.

From McIntyre v Ohio:

Justice Scalia , with whom The Chief Justice joins,

The question posed by the present case is not the easiest sort to answer for those who adhere to the Court's (and the society's) traditional view that the Constitution bears its original meaning and is unchanging. Under that view, "[o]n every question of construction, [we should] carry ourselves back to the time when the Constitution was adopted; recollect the spirit manifested in the debates; and instead of trying [to find] what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." T. Jefferson, Letter to William Johnson (June 12, 1823), in 15 Writings of Thomas Jefferson 439, 449 (A. Lipscomb ed. 1904).

Now compare that with Story's smackdown above

Keep in mind that Story is a man who, aside from serving on the SC for 30 years, for founding Harvard Law School(Scalia's alma mater), from being appointed by the father of the Constitution James Madison, from being a virtual judicial clone of John Marshall agreeing with the CJ 100% of the time during their stint on the bench, enshrinig Marshall's opinions as dogma in his treatises, and also being a best friend to Marshall off the bench, wrote what is considered the leading treatise on the Constitution, cited countless times in countless SC opinions as gospel.

Scalia also goes on to claim in that opinion that the meaning of the 1st amendment is "unclear"! And that it's ok to use "principles of liberty embedded in constitutional guarantees" to decide cases. Sounds a bit like a phrase of one William Orville Douglas about provisions of the Bill of Rights(or "constitutional guarantees" to use Nino's phrase) having penumbras and emanations(or "embedded principles of liberty" to quote Scalia). He makes a similar argumet in Printz.

If originalism is so ineffective that it renders the 1st amendment "unclear", what good is it at all? I mean if Scalia admits that the 1st amendment is unclear, the 1st one, why should we trust him on any of the others?

He goes on to give a confusing answer of how since lots of states had laws against X in the post 1868 period and they weren't challenged, X can't be considered a constitutional right. But then he says that even more states had laws against flag burning and they weren't challenged either, in fact they were explicitly affirmed by a unanimous SC as well as 1st amendment absolutist Hugo Black and Liberal hero Earl Warren, but that's different because flag burning represents a constiutional principle that's a "core guarantee" whereas the right to anonymnously support or critique candidates is on the "periphery"

How he differentiates between core guarantees, peripheral guarantees, embedded principles of liberty, and rights inherent in the nature and structure of the document(as he does in Printz, Alden v Maine and Seminole Tribe) sounds quite a lot like judicial activism and robed mastery to me.
11.4.2006 3:52am
Andrew Hyman (mail) (www):
Omarbradley, I'm not going to let you put me in the position of having to rebut your long and repetitious rants. Ergo, this is my last comment to you in this thread.

The P or I Clause of the 14th Amendment says that,

"NO STATE shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."


If you think this limits the federal government in any way whatsoever then you are very obviously and sadly mistaken. You said, "I'd go so far as to say that the right of self defense is one of the privileges or immunities of US citizenship protected by the 14th amendment." But can't you see that the plain language of that clause of the 14th Amendment ONLY RESTRICTS THE STATES?

You've flip-flopped around on substantive due process, you've refused to read plain English in the Constitution, and now you're drowning the comments of other commenters in your sea of loquaciousness.

You say that, "The way our system is set up, 5 Justices on the SCOTUS can do whatever they want for whatever reason they want." This is sheer nonsense, and yes it borders on treason. There once was a day when judges and scholars took the language of the Constitution seriously. See Chief Justice Marshall in Cohens v. Virginia:

We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be TREASON TO THE CONSTITUTION.


If you think that a substantive right of self-defense is protected by the 6th Amendment, then you're out of your mind. The Sixth Amendment is about PROCEDURE, not SUBSTANCE. But evidently this distinction escapes you.

You may want to trivialize what I have to say by calling me a Don Quixote or "out of the mainstream" or what have you. It's a free country, and you can call me whatever you want. But don't expect me to carry on a conversation with you anymore in the face of such insults. And don't expect me to agree with your sophisticated jurisprudential view that , "The way our system is set up, 5 Justices on the SCOTUS can do whatever they want for whatever reason they want." Contrary to your belief, your view is not shared by a majority of the American people, though doubtless it is shared by more than a few judges.

You can rant all you want about the small number of constitutional amendments that have been passed to overturn court decisions. But that's not what I suggested. What I suggested is that a constitutional amendment could be passed to overturn legislation by an insane state legislature.

Apparently, you deny our ability to discern the meaning of the Constitution 220 years later. But I have no problem discerning that a president's term is four years instead of sixteen years. Other constitutional provisions have a similarly clear meaning, while some are less clear. It is not a weakness to insist that a president stand for reelection after four years, nor is it a weakness to insist that the P or I Clause of the 14th Amendment ONLY RESTRAINS THE STATES. This is not rocket science, and judges should not be released from a duty to interpret the Constitution in good faith, according to the rules of reason and the intended meaning of the words used by the framers.

Incidentally, you might try using blockquotes sometime, for your endless quotations.

Have a nice weekend.
11.4.2006 8:59am
k parker (mail):
Steve,

Perhaps you missed that most troubling phrase 'viable fetus', which is what I find most disturbing about this discussion.

In answer to your question, I think it's fairly problematic for the fetus in an ectopic pregnancy to reach the point of viability. Eugene might wish to clarify this, but my assumption would be they are outside the scope of his discussion.

But let's return to that word 'viable' for a moment. Here's what really troubles me: if the fetus really is viable, then certainly an emergency C-section works just as well as an abortion for removing the risk to the mother, without be necessarily fatal to the baby. Why wouldn't this be the treatment of choice? More strongly, why would medical necessity ever be a genuine reason for a late-term abortion? Or to put it in the realm of self-defense: if there were a non-lethal method of self-defense that was every bit as reliable as lethal methods, why should lethal methods continue to be acceptable?
11.4.2006 11:32am
Steve:
Perhaps you missed that most troubling phrase 'viable fetus', which is what I find most disturbing about this discussion.

Yeah, I guess I did miss it. My web browser can't find it anywhere in this post other than the comment you just made. In terms of comparing a late-term abortion to an emergency C-section, I don't know the medical facts as far as risk goes, but assuming that a C-section imposes a risk to the mother that is nontrivially greater than an abortion, it raises a very interesting question of whether the mother has a right to "defend" herself against that additional risk by choosing a procedure that has no chance of survival for the fetus.

I couldn't manage to wade through the prolix argument those other two posters had, but extrapolating from Godwin's Law and its corollaries, I suspect the guy who suggested certain legal opinions border on treason should be deemed the loser.

Oh, and I alluded to Judge Bork's legal philosophy earlier.

So there is, in fact, a recognition on my part that stare decisis or the theory of precedent is important. In fact, I would say to you that anybody who believes in original intention as the means of interpreting the Constitution has to have a theory of precedent, because this Nation has grown in ways that do not comport with the intentions of the people who wrote the Constitution -- the commerce clause is one example -- and it is simply too late to go back and tear that up.

I cite to you the Legal Tender cases. These are extreme examples admittedly. Scholarship suggests that the framers intended to prohibit paper money. Any judge who today thought he would go back to the original intent really ought to be accompanied by a guardian rather than be sitting on the bench.
11.4.2006 12:46pm
Andrew Hyman (mail) (www):
Steve, thanks for that quote. Bork is correct that stare decisis is an important and valid concept. I've never denied that. I'm not sure how that applied to Professor Volokh's article, given that he is arguing for a departure from the tradition of legislative control over the law of self defense, and urging an unprecedented expansion of judicial control over the substantive criminal law.

In any event, your Bork quote shows that he was not endorsing the view that the framers intended to prohibit paper money, but merely suggesting that some scholars think so. And, those scholars are wrong, as I've explained elsewhere.

There are many different versions of the doctrine of stare decisis. The version that I support, and that seems most consistent with constitutional law, was explained in a law review article by Professor Caleb Nelson, a former clerk for Justice Thomas. In a nutshell, here's what Professor Nelson wrote:

American courts of last resort recognize a rebuttable presumption against overruling their own past decisions. In earlier eras, people often suggested that this presumption did not apply if the past decision, in the view of the court's current members, was demonstrably erroneous. But when the Supreme Court makes similar noises today, it is roundly criticized. At least within the academy, conventional wisdom now maintains that a purported demonstration of error is not enough to justify overruling a past decision.
....
[T]he conventional wisdom is wrong to suggest that any coherent doctrine of stare decisis must include a presumption against overruling precedents that the current court deems demonstrably erroneous. The doctrine of stare decisis would indeed be no doctrine at all if courts were free to overrule a past decision simply because they would have reached a different decision as an original matter. But when a court says that a past decision is demonstrably erroneous, it is saying not only that it would have reached a different decision as an original matter, but also that the prior court went beyond the range of indeterminacy created by the relevant source of law....

Americans from the Founding on believed that court decisions could help "liquidate" or settle the meaning of ambiguous provisions of written law. Later courts generally were supposed to abide by such "liquidations" .... To the extent that the underlying legal provision was determinate, however, courts were not thought to be similarly bound by precedents that misinterpreted it.
....
Of the Court's current members, Justices Scalia and Thomas seem to have the most faith in the determinacy of the legal texts that come before the Court. It should come as no surprise that they also seem the most willing to overrule the Court's past decisions....Prominent journalists and other commentators suggest that there is some contradiction between these Justices' mantra of "judicial restraint" and any systematic re-examination of precedents. But if one believes in the determinacy of the underlying legal texts, one need not define "judicial restraint" solely in terms of fidelity to precedent; one can also speak of fidelity to the texts themselves.


Nelson's law review article about stare decisis is really great, and I highly recommend it.

And, I dare say that no justice of the present Supreme Court would support a notion of stare decisis according to which the Court would have to adhere to a prior decision according to which a senator's term of six years may be measured in Martian years rather than Earth years. The oath is to the Constitution, and not to the U.S. Reports.
11.4.2006 1:23pm
BruceM (mail) (www):
Isn't this more of a necessity defense than a self-defense issue? It's not an issue of use of force, and consdierations like reasonable force and duty to retreat don't apply (must retreat from your fetus except in your home... abortion clinic was not home, therefore self-defense doesn't apply because pregnant mother had duty to retreat before having abortion).

This issue is the right to have a medical treatment or procedure which is unpopular with Evangelical Christians. I think the First Amendment should be the applicable governing principle, as to not legally forbid me to have a medical procedure/treatment due to the whims of Bible-thumping Christians 2000 miles away is most certainly an establishment of religion.

Is it any different than a person who needs to use marijuana to save their life (assuming such a case exists)? If a person is charged with possession of a controlled substance, or abortion, in connection with a life-saving medical treatment/procedure, and the person can establish by a preponderance of the evidence that the drugs/abortion was necessary to avoid her death, it should be an acquittal.
11.4.2006 3:48pm
Andrew Hyman (mail) (www):
I wish the bible-thumping evangelicals would start saying how great it is to rip apart a fully-formed fetus for purposes of birth control.

Then maybe the left would finally be willing to ban this barbaric practice, and would stop fantasizing that it's enshrined in the Constitution.
11.4.2006 4:08pm
k parker (mail):
Steve,

My web browser can't find it anywhere in this post other than the comment you just made


Hmm, either your browswer doesn't know how to search, or maybe you had exact-word-only turned on (now that I look back at it, it's acually in a possessive phrase, "viable fetus's".)

At any rate, see the second full sentence of the third paragraph of the first quoted section.
11.4.2006 4:23pm
BruceM (mail) (www):
Andrew, nobody says abortion is enshrined in the constitution. That's christian spin. Freedom from the government telling us what we cannot do with/to our own bodies, particularly when it comes to a medical procedure, is what we say is enshrined in the constitution. The fact that this right encompasses abortion is no more tenuous than if the government banned open heart bypass surgery, nose jobs, colonoscopies, or me clipping my toenails. It's none of the government's business what I, you, or any pregnant woman does with our own bodies so long as it doesn't directly hurt anyone else.

And of course, we come back to the debate as to whether or not a fetus is "someone else." It takes faith to believe that it is. We don't legislate based on conclusions of faith. So if your religion doesn't want you to have an abortion, don't have one. But get over the fact that other people who don't share your faith will.

What the left needs to do is argue for mandatory, forcible abortions. That way we can settle on a more reasonable middle ground. When only one side is advocating extreme positions, all compromises tend towards the extreme.
11.4.2006 9:22pm
Andrew Hyman (mail) (www):
It takes faith to believe that "someone else" is present beginning at the point of viability --- and that faith is very strange indeed, seeing as how the point of viability varies depending upon the availablity of medical services.

(BTW, I am not a Christian.)
11.4.2006 9:30pm
Emma B:
K Parker:

I've never heard of an ectopic pregnancy coming anywhere close to the 24-week mark (the rough border of viability) -- usually they rupture pretty early in the first trimester, at roughly 8 weeks. Also, I doubt the placenta could implant into the fallopian tube to support fetal growth after 12 weeks. They're also probably not included in Steve's stats, as roughly 2% of pregnancies are ectopic. I would agree that they're probably not germane here.

It's possible to envision a few scenarios in which a woman's physical condition might not be stable enough for a C-section or a forced induction. I'm specifically thinking of severe cases of HELLP syndrome (very severe variant of pre-eclampsia). The only treatment for HELLP is delivery of the baby, but a mother with a very severe case of HELLP might have such low platelets as to make a surgical delivery very risky. Likewise, if she's actively having seizures, she might not be able to tolerate the anesthesia required for a C-section. Abortion (dilation and extraction) is a much less invasive procedure, since it doesn't require making any incisions, and doesn't require the same level of anesthesia. A mother who's very ill from HELLP or eclampsia might be able to survive an abortion, but not a surgical delivery or labor. I think it's really rare for HELLP to proceed that far -- it's usually caught much earlier in the process, when a C-section is still a viable option. However, it is medically plausible that there are cases where a C-section poses a much greater risk to the mother's life than an abortion.
11.5.2006 1:06am
Mr L:
BruceM said...
Andrew, nobody says abortion is enshrined in the constitution. That's christian spin. Freedom from the government telling us what we cannot do with/to our own bodies, particularly when it comes to a medical procedure, is what we say is enshrined in the constitution.

Way to defeat your own point -- the government tells us what we can and cannot do with our bodies all damn day, from drug laws and restrictions on organ sales to more recent smoking and trans fat bans. I'd be ecstatic if that corporeal noninterference clause was extended to these things as well, but it appears that it's only My Body when it comes to terminating a pregnancy.

And you're right, abortion isn't 'inscribed' in the Constitution -- it's priviledged above it. Even the rights which are inscribed -- free speech, guns, due process -- have plenty of court-approved exceptions, e.g. McCain-Feingold, waiting periods and assault weapon bans, traffic tickets and drug seizures, and so on. Abortion, however, is not subject to many common-sense restrictions of far lesser scope; a good example is the court nullification of parental notification laws.

And of course, we come back to the debate as to whether or not a fetus is "someone else." It takes faith to believe that it is.

No, it doesn't, except in the general understanding of 'faith' as a belief in something absent confirmation -- a description which easily characteracterizes your position as well. Tell me, why is a baby not a baby, merely because it's skull has yet to clear the birth canal?
11.5.2006 1:22am
Ken Arromdee:
And of course, we come back to the debate as to whether or not a fetus is "someone else." It takes faith to believe that it is. We don't legislate based on conclusions of faith.

So? The idea that *any* entity is "someone else" is a matter of faith. We don't know that people whose names start with the letter 'X' are 'someone else'. We don't even know that a baby that has been born is 'someone else'.
11.5.2006 6:44pm
BruceM (mail) (www):
Mr. L: I was not saying the gov't can never tell us what we can/can't do to our bodies (although I do believe such laws are wrong and should not be permitted nor tolerated). I was saying the government can't tell us what we can/cant' do to our bodies based on certain people's religious beliefs. It is a clear violation of the Establishment Clause.

By way of example, the government could arguably ban us from wearing seatbelts due to evidence that seatbelts kill and cause more injuries/death than accidents without seatbelt use (although I think such laws are ill advised). However, if there were no evidence that shows seatbelts have a detrimental effect and a certain religious group wants seatbelt use banned because they believe it is sinful to wear seatbelts due to an interpretation of some religious text, a law banning seatbelt use would be an establishment of religion and unconstitutional.

You have to look at the true intention of the law (e.g. not the ipse dixit of congressional 'findings').
11.6.2006 6:29pm
omarbradley:
There was actually an interesting book by Peter Wentz a few years back arguing that at least as far as pre-viability bans on abortion go, they do violate the establishment clause. Justice Stevens made a similar argument in his opinion in Akron, I believe.

The issue is whether the restriction is based on pure faith/religious beliefs, or whether it also has a secluar justification that can can be based on nonreligious grounds.

For example, laws against rape, murder, theft etc... undoubtedly have religious backgrounds, but they also have secular reasons and you don't need to buy in to the religious dogma to suuport them.

IOW, athiests, pagans, wiccans, and every type of religion can see the value of laws against murder and theft. There's no society in the world that doesn't have such laws, whether Christian, Muslim, Hindu, Jewish, Buddhist, Shinto, whatever. Even the athiest USSR and PRC have such laws.

However, when it comes to previability abortions(and the exact line of this varies but for agrument's sake let's say 1st trimester), the religious aspect is the vital issue. Those that are opposed to abortion, particularly early abortion do so based on sincere religious beliefs that not only does life begin at conception, but that the soul begins as wlel, that the fetus is a person with the same characteristics and qualities as born humans.

However, there are many differences between born humans and early fetuses, which Wentz goes into. The ability to think, to fell, to perceive. Having developed organs, developed brain function, developed abulatory and circular function. And other factors. Clearly at say 8 months, the fetus would be acknowledged and recognized by just about all as a person, but at say 3 weeks or 6 weeks or early on, there is real debate.

Also if you look at other countries, whereas all of them have laws against murder, theft and other secular offenses, not all of them have laws against early abortion. Countries as diverse as China, many in Europe, Asia, Africa, Australia, even Canada allow and have laws protetcing the right to early abortion.

In contrast, those that have strict antiabortion laws tend to have Catholic and other religious backgrounds(Ireland, much of Latin America, some Catholic countries in Europe and Africa)that make it clear that religious belief and not secular values lie behind them.

That's fine for those countries, but those countries don't have an Establishment/Free Exercise clause(that even Conservative/Originalist Bush Judge and scholar Michael McConnell recognizes might provide protection for abortion in limited circumstances)

The establishment clause rule wouldn't apply to laws about parental notification/waiting periods/informed consent as they all have secular rationales. IE, a parent should be informed about any procedure their child is going to receive, abortion or not. Notification has no religious basis and isn't based on religious belief. SImilarly, I think state PBA bans would not be prohibited because by the time they're done, well in to the 2nd trimester, the fetus possesses traits that give it a recognizable humanity outside of religious belief(cognizance, perception, developed organs, limbs, circular/nervous/respiratory function, etc...).

That's the gist of the book at least. That laws against early abortions simply because they violate the religious beliefs of Catholics/Evangelical Christians and perhaps Orthodox Jews and Muslims violate the establishment clause becuase they have no secular basis and are simply enshrining religious belief in law, or "laws respecting an establishment of religion". The book's by Peter Wentz it's called "Abortion Rights as Religious Freedom" and if you're interesed in these issues, you should check it out
11.7.2006 3:14am