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Wednesday, April 18, 2007

Gonzales v. Carhart & 2008 Politics

Several months ago, my wife and I were discussing the politics of the looming (or, arguably, ongoing) 2008 campaign. We each thought that unless things change radically in some way, the now-unknown Democrat is a strong favorite to win the WH. Neither of us thought that the situation in Iraq is very likely to greatly improve by then (continued deterioration seemed and seems much more likely). Both of us thought there were basically two major wildcards: a major, successful terrorist attack on the US and a Supreme Court ruling that would considerably change the abortion landscape.

And today, the latter may have occurred in Gonzales v. Carhart. I'll leave others to discuss
the decision itself. The key result, though, is that the SCOTUS rejected a facial challenge to the Partial-Birth Abortion Ban Act of 2003 (PBAA) outlawing the use of the procedure known medically as intact dilation and extraction, or, sometimes, DNX. The law has an exception for cases in which a pregnant woman's life is in danger, but it has no exception for her health.

I want to discuss the political fallout of this decision. One view that's held by some serious thinkers is that any serious threat to abortion rights will transform American politics by shaking loose a considerable number of Republican/Republican-leaning voters who (a) support the party on its economic or war policies and (b) do not support its position on abortion rights, but (c) do not think that abortion rights are seriously threatened.

It's no surprise to anyone who followed the confirmation process during the period after Roberts's and Alito's nominations that neither would find any problem with the PBAA. And it shouldn't be a surprise to anyone familiar with Kennedy's dissent in Stenberg v. Carhart , concerning a Nebraska law that (if I remember correctly) lacked both a life and health exception.

But it might be a surprise to those folks described above. As Jack Balkin stated at the end of this NPR interview from a year or two ago,

The Republican coalition consists of business conservatives, suburbanites, women who are in suburbs and rural areas, libertarians who believe that the government should stay out of people's private lives, and religious and social conservatives. As long as the right to abortion is more or less protected in the United States, a lot of those people can happily stay in the Republican coalition. Libertarians can stay. Business conservatives can stay. Suburban women and rural women can stay, because they figure, basically, you can get an abortion if you need to; if you can scrape the money together, you can get an abortion.

Balkin continues:

On the other hand, if Roe v. Wade is overturned, then everything is on the table, including criminalization of abortion. And at that point, libertarians, business conservatives and lots of suburban and rural women and women in urban areas, too, will say to themselves, "I'm not sure I want to be in a party that supports criminalizing abortion." At that point, they will find the Democratic Party more attractive. And not all that many people have to bolt the Republican Party for them to lose control of Congress and the presidency, just a relatively small number. And the Republicans understand that. That's why the Republican strategy is to narrow Roe, cut back at it, weed away at it, but never officially overrule it. …

The interesting thing about today's situation is that generally speaking, there's broad political support for outlawing DNX. So here we have a rare case in which anti-choice folks have found a law that is both popular and limits abortion rights. There are two key points. First, there would seem to be few additional opportunities for the anti-choice side--this was the lowest-hanging of the political fruit available to them.

Second, and more politically critical: will people who both support the PBAA but also support relatively broad pre-viability abortion rights conclude that the current Supreme Court--say, with one more Justice in the mold of Alito or Roberts--is on the edge of proving Balkin wrong and scrapping Casey, taking Roe with it? On the other hand, will they simply conclude that the court is where they are?

If pro-choice Republican supporters do perceive a serious threat to abortion rights, then Supreme Court nominations may play an extremely important role in the 2008 campaign. And if that happens, I think the Republicans will be in big trouble. It's hard to imagine a GOP nominee allowing the religious right to perceive any daylight between him and it, unless the nominee decides to reject outright Karl Rove's base-turnout approach to presidential campaigning. And unlike Bush, who indulged the political luxury of using coded references to Dred Scott, the next GOP nominee will have a hard time avoiding taking a clear stand on this issue. After all, the next Presidential term could see as many as 4 new openings on the SC bench.

And in a funny sort of way, the Court's decision today may actually work greatly to the Democrats'--and thus pro-choice groups'--advantage in 2008. Imagine that Kennedy had switched sides and the Court had struck down the PBAA. Presumably we would be hearing about activist judges defying the will of large Congressional majorities in support of a barbaric technique to murder innocent babies, and so on. That's not a climate that's super-friendly to pro-choice candidates, Balkin's (and my) views notwithstanding. But instead, the Democrat will get to focus on the imminent threat to abortion rights created by the possibility of a Stevens, Ginsburg, or Kennedy retirement--and use this case and the confirmations of Alito and Roberts to emphasize that constitutional understandings of abortion rights are more in flux than at any time since Casey.

It would certainly be ironic if enactment of the PBAA helped cement a pro-choice majority for the next several decades.

Posted by Jonah Gelbach on April 18, 2007 at 02:16 PM | Permalink

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Comments

Hi Nate

Thanks for your kind words--I will defly miss UMCP!

Thanks also for the link to Volokh's post. I guess a lot of people are fired up about this topic. Given the amount of interest in this issue, I'm hoping to put together a post specifically on this topic in the next couple days (you probably won't be surprised to hear that I think Volokh's wrong about some of the things he writes and right about others). So, check back sometime in the next week or so (I'm in the middle of a bunch of traveling and don't have a lot of time at the moment).

j

Posted by: jonah gelbach | Apr 24, 2007 12:07:40 PM

Dr. Gelbach,
First of all, as a former student, I want to congratulate you on your new position. Our loss is their gain.

Second, Eugene Volokh has an interesting post up about civility in the abortion debate today, which seems pertinent to this comments thread. http://www.volokh.com/posts/1177363824.shtml

Keep up the interesting posts.

Posted by: Nate | Apr 23, 2007 6:37:39 PM

An apt descriptive label, though, does more that simply point out something about one's opponents' position: it suggests that the label captures something distinctive about a position. And you seem to agree that "anti-choice" says nothing at all distinctive about the actual position of opponents of abortion rights--indeed, that the term could just as legitimately and informatively be applied to those who want to ban, or to constitutionalize, anything at all. And it seems to me that labels in polite discourse should either be non-vacuously accurate or agreeable to their objects.

Posted by: Chris | Apr 20, 2007 5:06:12 PM

Chris

The fact that someone doesn't want a label attached to his or her position doesn't make that label inapt. I think being forced to confront the actual implications of one's position makes for a more, not less, informative discussion. And I certainly don't think it's very useful to allow proponents of *any* position to focus only on those parts of their position that are attractive (to themselves or others).

In any case, I guess we'll have to agree to disagree.

Thanks for your comments.

Jonah

Posted by: jonah gelbach | Apr 20, 2007 3:56:53 PM

The term "anti-democratic" might be used, of course, as part of a criticism of constitutionalizing abortion rights. But it's hardly a label that a critic should expect his opponent to accept. I mean, do you accept that as a label?

"Do the people making it somehow lose the right to have their argument taken seriously simply because they use the term 'anti-democratic'?" No, but I'd eschew terms like that that in themselves embody partisan attachments if I were trying to promote discussion. I'm not trying to get people to take you less seriously; I'm trying to get you to use terms that better foster genuinely informative discussion.

The concern of opponents of legal abortion isn't choice as such, it's abortion. Since virtually any sort of proposed law--including the Gonzales v. Carhart dissenters' proposed elaborations of constitutional law--restrict someone's freedom, the label just isn't informative. And if a label isn't actually informative, it should be acceptable to the person to whom it's applied. But "anti-choice" isn't.

Posted by: Chris | Apr 20, 2007 9:23:53 AM

Chris

You write that

I don't think advertising partisan attachments so openly in the midst of an argument is the best way to promote genuinely informative academic dialogue.

Actually, I think that being open about one's beliefs when arguing in favor of them (or, as I was doing in the post above, simply suggesting what to me is a plausible political scenario) does more to promote informative dialogue than being opaque.

As for your complaint about my position concerning terminology, I don't regard "anti-choice" as an epithet, but rather as an accurate description. Laws that restrict choices restrict choice--it's a simple tautology, not something that should be a matter of deep partisan or semantic warfare.

So, people who favor those laws are anti-choice. If you'd prefer that I say "anti-choice when the choices referred to are concern the decision to have an abortion", then I'd be happy to stipulate that that's what I mean. I didn't and wouldn't hide that position.

By contrast, your suggested reductio ad absurdum example is sophistic in that it ducks the issue and deftly seeks to change the subject.

On the other hand, you could call the constitutional arguments and conclusions that many pro-choice people have made anti-democratic. And indeed many critics have done that, precisely because these pro-choice folks "want the courts to prevent legislatures from choosing to do something they might otherwise do." Do you feel that it is inappropriate for such critics to make this critique, which seems to me rather reasonable in itself? Do the people making it somehow lose the right to have their argument taken seriously simply because they use the term "anti-democratic"?

I don't know why some people react so vehemently against the term anti-choice. If you favor restricting abortion rights, you are opposed to allowing choice. There are serious moral arguments in favor of restricting choice--either because you think the choice involved is per se immoral or because its value is outweighed by the value of fetal life--just as there are obviously serious legal arguments against the constitutional claims made by those who think abortion is a constitutional right, and just as there are also serious arguments rooted in democratic theory against courts' using open-textured Constitutional language to trump legislative acts.

That is to say, there are serious anti-choice arguments. But if you favor those arguments, why not just own up to the fact that that's your position? Why argue that you should get to call it something else?

Posted by: jonah gelbach | Apr 20, 2007 12:15:44 AM

"The law is anti-choice: it prevents people from choosing to do something they might otherwise do." Of course, why not call people who think that the right to abortion should be kept constitutionalized "anti-choice," since they want the courts to prevent legislatures from choosing to do something they might otherwise do? No one but a partisan proponent of abortion rights would ever use the term "anti-choice." I don't think advertising partisan attachments so openly in the midst of an argument is the best way to promote genuinely informative academic dialogue. But maybe that's just me.

Posted by: Chris | Apr 19, 2007 11:44:39 PM

As to political fallout from an outright Roe reversal, or the threat of it:

Yes, some pro-Roe GOP voters may switch over it. But on the other side, I know many, many prolife Catholic Democrats who say the following to me: "I am so strongly prolife that I would let that outweigh my Democrat tendencies on many other issues. However, I don't take that bait from the GOP because I know that they can't or won't do anything to really stop abortions, because the courts won't let them."

If abortion is really on the table, and a State really could seriously limit it -- e.g., no elective abortions past first trimester -- then Democrats will have a hard time being elected Governor in Pennsylvania, Ohio, Michigan, etc. If those States see real teeth to restrictions in Louisiana, then Democrats in Ohio will have to answer why 12 weeks isn't enough to make up your mind, etc. And those swing voters may -- not surely, but may -- trump the GOP voters going the other way.

Also, those GOPers going the other way might not do so if the proposal on the table continues on the chip-away route -- many suburbanites may be comfortable with a 12-week limit.

Stricter parental consent rules would also hold many middle voters, and leave hardcore NARAL-endorsed candidates with some 'splainin to do in the Midwest.

This could all be wrong, but it's at least worth weighing.

Posted by: Catholic guy | Apr 19, 2007 2:59:30 PM

In that sense it doesn't even hold that the general interest in protecting fetal life necessarily outweighs whatever interests a pregnant woman constrained by this law might have.

How could a woman possibly be constrained by this law?

So clearly property seems to trump life.


You cannot enjoy property if you are dead.

Posted by: Anarchy is still correct | Apr 19, 2007 11:43:15 AM

Thanks for your thoughtful responses...I think we're at the point on most issues where it's simply a gulf of personal judgment.

I take your point that declining to aid someone where there is no duty is another exception to this rule. It's an interesting point, although I don't think it takes you to the point where acts that involve a direct attack on (arguable) life, but it's worthy of contemplation.

Posted by: Unlikely at the End | Apr 19, 2007 10:49:30 AM

Unlikely:

Thanks for your latest comment. Let me first finish replying to your second one (You are right to say "Blah", incidentally. My bad, obviously, for bothering to engage Anarchy.)

You write:

Firstly, I don't think I was implying that savvy individuals would necessarily be fooled.

Your reasoning following this is fair. My mistake for misreading you.

Next, The Kennedy opinion is extremely narrow - it fairly explicitly says that an abortion conducted without whole extraction would be constitutionally protected; it's only the specific method that may be restricted.

That is a good point and one I should have made in response to Anarchy in the first place (I'd seen at Balkinization, for instance, before I wrote my replies). This decision appears to outlaw a procedure, not an event. In that sense it doesn't even hold that the general interest in protecting fetal life necessarily outweighs whatever interests a pregnant woman constrained by this law might have.

As for the rest of your 2nd comment, you write that my "view of perceptions of DNX may be somewhat backwards." I take your point about what you term "hardcore abortion opponents." But part of my point is that this crowd is not exactly chock full of potential Democratic voters. So losing them isn't much of a concern. As for the folks you call more moderate voters, I think your characterization of them is pretty accurate--which is why I think having this issue off the table (if indeed that's what happens) would be beneficial for Democrats. I seriously doubt there will be any real noise about repealing the PBAA, so I think this issue is largely headed for retirement status politically.

Now, regarding your most recent comment: thank you. First, I don't deny the seriousness of the philosophical position you take distinguishing life and liberties like abortion rights (which is, of course, not the same thing as saying I agree with your position).

I will say that I'm dubious of your claim that

there's a general consensus that life is a liberty of unique import, which generally triumphs in a contest over all others.

For instance, it would be illegal--and, many would say, immoral--to kill A in order to get food to give to the literally starving person B, even if (1) that were the only way to save B and (2) A didn't need the food and wouldn't agree to sell it at any price.

So clearly property seems to trump life. I could come up with all sorts of other examples that might seem less direct but would amount to the same thing (we economists are pretty good at that sort of thing, if not legal analysis!).

Regarding your final point about semantic distinctions, I think you may well be right about how many people conceive of the issue.

Thanks again for taking the time to write so much thoughtful stuff in reply to me.

Jonah

Posted by: jonah gelbach | Apr 19, 2007 7:03:17 AM

I understand your desire to perform a crude utilitarian balancing of a mother's life versus a fetus's life. Balancing tests are usually just question-begging.

I also find amusing the way you use logic in the law. I believe the following link would be helpful. http://balkin.blogspot.com/2007/03/why-would-inferior-court-judge-ever.html

Your failure to read the judicial opinions you're commenting on really is problematic. That the statute in this case immunizes women from prosecution should be a salient fact to an academic who hopes to teach law and economics. Instead of grappling with moral philosophy, don't you need a cogent explanation of how a law is coercive as against Person X without a sanction as against Person X? Especially given that in most, if not all, states, having an abortion does not result in ostracism?

Posted by: Anarchy is pretending you didn't read my last post | Apr 19, 2007 3:17:11 AM

Blah. The exchange that follows the immediate response to my last post is what I was afraid of. I'm going to address that post directly, which I thought was intriguing and honest. I also completely agree that abortion is a uniquely difficult issue because the issues involve defining life, which grants onto end-of-life issues (E.G. Terri Schiavo) the same difficulties. I'll confess that while I'm taking one side here, my personal feelings are more conflicted.

You'll have to excuse my ignorance of much of the philosophical discussion of liberties. Unlike the law, it's not an area I spend an excessive amount of time on. However, I do think that there's a general consensus that life is a liberty of unique import, which generally triumphs in a contest over all others. Of course, this is not absolute, the primary exception being self-defense. I can thus see Volokh's article thoroughly in this context. However, self-defense is only accepted because it involves one's defense of that same paramount right in themselves. We don't even accept ending life of another with their consent otherwise (whether or not we should is a seperate question, but my point is that the life right is unique in its primacy). It is fairly clear, at least to me, that self-defense is the only real right on the same level as life on a normative level.

I'm not overly fond of either the Roe or Casey decisions (shocking, I know), but neither of them presented it as a case of conflicting first-order liberties. Roe used a trimester framework as a proxy for the determination of when life begins, with its treatment of the second trimester standing uneasily in this context as a compromise to an insurmountable problem. As people have noted, Roe was not about a woman's rights, but rather essentially an expression of my original point...there is a right to privacy as long as it's not a living person, at which case there is no right (and where it's unclear, we'll have a compromise). While Casey did not entirely follow this approach, it's treatment of life as the ultimate right did not deviate from Roe.

Ultimately, my observation was as much semantic as anything else. A pro-life person supports the use of an analysis of whether a human life is being taken. A pro-choice person supports the use of an analysis wherein the key question is whether a person's right to choose is being taken. On a pragmatic level, though, few people think that the choice right trumps the life issue - most pro-choice individuals beleive that life begins at some later point. The reason intact DNX is so unpopular is that it's terribly difficult, given the physical realities of the procedure, to deny that the life consideration is negligable. This is why the act passed with huge numbers of Democrats, and I think also why the Democratic Party will not trot out this decision, and prays the Republicans won't either. To trot it out allows the Republicans to bring in the corporeal elements of abortion, which undercut the pro-choice position among the majority of the populace.

Just my two cents. I recognize that there are thorny moral questions, and likewise that I think the current decision adds to a long line of abortion decisions that no-one but their author(s) feel are correct in their reasoning.

Posted by: Unlikely Strikes Back | Apr 19, 2007 12:47:24 AM

Anarchy

I'm going to leave it where I've left it. A look at your signature and first few lines convinces me there's not a lot of point in continuing either to read your latest comment or this exchange.

Best of luck to you.

Jonah

Posted by: jonah gelbach | Apr 18, 2007 11:55:17 PM

I was not claiming that argument to be legally ridiculous. I was claiming it to be logically ridiculous. How can a fetus ever not be human life?

What you call "logic" is not the game being played in the legal regime here because whether a fetus is human life and whether it is a constitutional person are not the same analysis.

If you think that forcing a woman to risk her life giving birth under circumstances that an obstetrician believes to be mortally threatening does not constitute an "undue burden" under Casey, then I look forward to hearing why you think this.

While you have twice attacked me with ad hominems -- first accusing me of getting riled up; second accusing me of being upset -- the quick, cutting style of my post is really just indication of how easy it is for someone with basic knowledge of the law to cut through the flab of your argument. Arguing about "forcing a woman to risk her life" is plainly a red-herring, as today's decision has nothing to do with forcing women to risk their lives. It focuses on a statute without a health exception. The statute at-issue does not bar abortions necessary to protect the mother's life. In any event, it immunizes mothers from prosecution for having abortions (of any kind) performed on them.

Second, you seem not to understand either the precedential or jurisprudential point of my comment about "undue burdens". For one, since you like to cite Blackmun so much, please cite where "undue burden" appears in Blackmun's Roe opinion? Furthermore, if you understand so well how precedent works, why go back to Blackmun's opinion to discuss the scope of an "undue burden" when the "undue burden" standard was injected by Justice O'Connor in 1992 in Casey? In addition, if "undue burde"n is the prevailing standard, why do you overlook that Supreme Court precedent -- that was handed down today -- shows that there are statutes without a health exception that do not constitute "undue burdens"? Given such, why would it necessarily be the case that believing today's decision was correctly decided is materially equivalent to rejecting the "undue burden" standard? Your leap of "logic" is nonsense.

As to your stipulation, you are simply wrong on the law by framing it as a stipulation. It has been the case since Roe until today that the government has a legitimate interest in regulating abortion to protect human life. That does not require analyzing whether fetuses are persons under the Fourteenth Amendment, which is why today's decision does not discuss the personhood of fetuses under the Fourteenth Amendment. Indeed, you only seem to be bringing it up because you don't know what you're talking about.

Posted by: Anarchy is Jonah with tenure | Apr 18, 2007 10:35:06 PM

Anarchy

Two other clarificatory things:

1. Perhaps I created confusion in my comment that got you so riled up with the "jurisprudential" in

(b) Anarchy-cum-Unlikely is wrong as a matter of jurisprudential fact

Looking up "jurisprudence" at dictionary.com (http://dictionary.reference.com/browse/jurisprudence), I see that definition 1 is "the science or philosophy of law". That was not what I meant--I meant definition 4, "decisions of courts, esp. of reviewing tribunals." So I realize now I'd have been clearer had I written "precedential" rather than "jurisprudential".

Note also that I wouldn't go so far as Dworkin and claim knowledge of ever-true philosophical facts on issues like this--for this reason especially I wish I'd written "precedential fact".

2. You seem to think that I conflate

The state's legitimate interest in protecting human life

with

the fetus's status as a constitutional person under the 14th Amendment

I certainly agree as a matter of normative policy that the state has a legitimate interest in fetal life independent of the question of fetal personhood. For the record, I didn't deny that claim--in fact, a reasonable reading of what I wrote confirms my agreement. I wrote:

So whatever the state's (in the general sense) interest in protecting fetal life, it doesn't involve anything like the same level of constitutional protection that an actually born woman's life does.

The initial clause doesn't deny the state's general (i.e., independent of personhood) interest "in protecting fetal life". Rather, it stipulates it, going on to suggest that some other constitutional right is more weighty.

That said, you would have a point if you claimed that my argument was incomplete, in the sense that I didn't establish that the general interest in protecting fetal life necessarily starts small enough to be outweighed by the value of allowing a woman to protect her own life. However, I did go on to write

Thus (if I am right), if Unlikely's claim is construed as a constitutional rather than moral claim (which *I* did not so construe it), then the claim would surely be trumped at a sufficiently early stage of pregnancy under Casey's undue burden standard.

If you think that forcing a woman to risk her life giving birth under circumstances that an obstetrician believes to be mortally threatening does not constitute an "undue burden" under Casey, then I look forward to hearing why you think this.

It seems, though, from your 2nd comment that you are just upset that that standard is--precedentially--the law of the land. But that's a whole different ball of wax

Posted by: jonah gelbach | Apr 18, 2007 10:01:05 PM

Anarchy:

First, I confess to confusion as to your point regarding my statement that

My understanding is that it's pretty well settled that a fetus is not a constitutional person

with "That is true". I understand your point about uniformity. But if you go read section IX.A of Blackmun's decision in Roe (I used Google, just now, to find it), you will find a detailed discussion of the question of fetal personhood and the statement that

The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, [410 U.S. 113, 157] for the fetus' right to life would then be guaranteed specifically by the [14th] Amendment.

Blackmun goes on to say that a variety of evidence

persuades us that the word "person," as used in the Fourteenth Amendment, does not include the unborn.

That's an awful lot of substantive talk about something you cast as essentially a side point.

[As for your characterization of my philosopohical points as a summary of Dworkin in Life's Dominion, I haven't read that book of his, tho I have read some of his other stuff on abortion--Freedom's Law, maybe?]

Second, you take issue with my characterization, as ridiculous, of the third of three possibilities, that

(c) Anarchy-cum-Unlikely is right but only because a fetus magically becomes a human life but only at some discrete point after the undue burden standard's protection expires.

Your complaint is that

For someone who doesn't know the law, calling an argument "ridiculous" is a bit much.

Evidently I was unclear. I was not claiming that argument to be legally ridiculous. I was claiming it to be logically ridiculous. How can a fetus ever not be human life? It's certainly human life at the point of birth. So if it's not human life at some point pre-birth, then there must be a particular moment when it becomes fully a human life. When is that point? Do you know? If not, how would you design a method for discerning? If you want to take this logically ridiculous position, you are welcome to do so, but don't be surpised when I call it what it is.

Having said that, Blackmun spends quite a bit of time in section IX.B
discussing the question of when life begins, ultimately punting. Some of the views he characterizes there suggest that life begins at a time other than conception. Some (if not all) of these views are based on the view that life isn't uniquely human in an important way until "ensoulment" or some related event has occurred. If these views are taken to mean that fetal life isn't biologically human before such an event, then I think them ridiculous. On the other hand, if they boil down to the position that human life's claim to special moral status--of the variety that can trump otherwise important liberties--doesn't occur until sometime after conception, then the issue is largely, if not totally semantic.

My support for abortion rights--let's make it perfectly clear: as a matter of policy rather than as a claim about constitutional law--has never been based on a view that a fetus is not human life. Rather it's based on the view that while terminating a pregnancy involves ending the life of a human fetus, there are competing rights and principles at work. (Note, by the way, that on this view, the dividing line between the time early enough in a pregnancy that abortion rights morally should be unfettered and the time later in a pregnancy when these rights can morally be proscribed is an ethical position, not a biological one. For that reason, the same logical burden of devising a method to find a dividing line does not apply here as it does to the proposition that fetuses are somehow not human until later in a pregnancy.)

Regarding your question about where the phrase "undue burden" appears in the Constitution, obviously it doesn't. Perhaps you should ask Justice Kennedy about this. (Of course, there are plenty of other open-textured things about which you could ask any Justice, or even a law professor, if you are truly feel that only literal text in the Constitution should be given force.)

As for the rest of your comment, I don't know enough (i.e., much at all) about the cases at issue, so I'll just stipulate that you have your view.

Posted by: jonah gelbach | Apr 18, 2007 9:33:27 PM

My understanding is that it's pretty well settled that a fetus is not a constitutional person

That is true, but the rest of your argument, which is a pat summary of Ronald Dworkin's arguments on the matter, best articulated by him in Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom (See http://www.amazon.com/Lifes-Dominion-Argument-Euthanasia-Individual/dp/0679733191) is assuredly not the law. Nor has it ever been. Generally, the statement that fetuses cannot avail themselves of the word "person" in the 14th Amendment is a way to prevent state legislatures from deciding that fetuses are persons and thus having a federal question decided wholly by state law (which utterly destroys uniform interpretation of the clause, i.e., 'a person = x and y' in Louisiana, but 'a person = x but not y' in New York).

(c) Anarchy-cum-Unlikely is right but only because a fetus magically becomes a human life but only at some discrete point after the undue burden standard's protection expires.

For someone who doesn't know the law, calling an argument "ridiculous" is a bit much. Especially because the "only because" portion of your argument is a straw-man a-blowin' in the wind. The state's legitimate interest in protecting human life -- which is validated in Roe and Casey and confirmed by today's opinion -- is independent of the fetus's status as a constitutional person under the 14th Amendment; you cannot simply synthesize the two. (Synthesize was polite; I believe the philosophical term is "conflate".) You certainly are hypostasizing your own policy preferences in your view of the law (which you admit you don't know.) But such policy preference determinations, the Court is saying, are a legitimate concern of Congress and of state legislatures, hence the reference to Glucksberg, a case that is both certainly good law and also appeals to the democratic value of having states decide for themselves what state policy toward assisted suicide should be. Is there some tension between Carhart and Glucksberg? Not really, if one looks to Gonzales v. Oregon. In Gonzales, General Ashcroft declared a state law invalid and SCOTUS said, No, no. You have no authority. It didn't say that Congress couldn't have done so. Likewise, in Glucksberg, General Ashcroft declared a state law invalid, and SCOTUS said, No, no. You have no authority. In Carhart, Kennedy is just saying that Congress, unlike the Attorney General, can make law. So can the state legislatures. But what state legislatures or Congress can't do is define terms in the Constitution -- like "person" in the 14th Amendment -- through state or federal legislation, which would implicitly repeal the 13th Amendment. Now, where exactly does it say "undue burden" in the Constitution? I must have missed that on my bar exam.

Posted by: Anarchy is not Unlikely (if you agree with Jonah) | Apr 18, 2007 8:42:23 PM

One other thought regarding the intersection of Anarchy's and (Even More?) Unlikely's comments. My understanding is that it's pretty well settled that a fetus is not a constitutional person (I believe even Rehnquist accepted that position in Roe in 1973).

So whatever the state's (in the general sense) interest in protecting fetal life, it doesn't involve anything like the same level of constitutional protection that an actually born woman's life does.

Thus (if I am right), if Unlikely's claim is construed as a constitutional rather than moral claim (which *I* did not so construe it), then the claim would surely be trumped at a sufficiently early stage of pregnancy under Casey's undue burden standard.

That is, if the position that Anarchy-cum-Unlikely is taking is that the statement "A fetus is a human life" is tantamount to trumping any right to abortion at all, then either (a)I am wrong about the fetal personhood issue, (b) Anarchy-cum-Unlikely is wrong as a matter of jurisprudential fact, or (c) Anarchy-cum-Unlikely is right but only because a fetus magically becomes a human life but only at some discrete point after the undue burden standard's protection expires.

I don't think it's (a), and (c) is ridiculous. Which leaves (b).

Posted by: jonah gelbach | Apr 18, 2007 7:11:19 PM

Anarchy is not law quotes my statement that

there is no other situation in human experience that is analogous to pregnancy. So it isn't obvious to me that one can just scotch-tape moral judgments from other contexts onto this one.

and then asks

Isn't that a collective evaluation for society to make via Congress or its state legislatures?

Busy as I am, I have time to point out that I was not making a constitutional point, but rather a philosophical one. I though that was clear from the context. How the resolution of that philosophical question interfaces with constitutional principles of interpretation is obviously a different question.

Posted by: jonah gelbach | Apr 18, 2007 6:51:14 PM

But there is no other situation in human experience that is analogous to pregnancy. So it isn't obvious to me that one can just scotch-tape moral judgments from other contexts onto this one.

Isn't that a collective evaluation for society to make via Congress or its state legislatures?

Posted by: Anarchy is not law | Apr 18, 2007 6:06:12 PM

Still Unlikely:

Thanks for your reply to mine. I am really stuck for time at the moment and so don't have time to answer in great detail at the moment (hopefully later--I gotta stop checking for comments!). But one thing I will respond to is the graf you worried would get us to undesirable tangents.

You write:

The issue is not a woman's choice. It is whether what we are dealing with is another human life, or simply a blob within a human being. If it is the former, a notion of choice is laughable, since it pales before the life of a human being.

I your premise is wrong. I certainly agree that if it's just a blob then there's no issue. But even if "what we are dealing with is another human life," the issue is hardly settled. There are two issues. First, unless you are a philosophical pacifist, then you surely believe that taking a life is sometimes justifiable. I'll assume arguendo that you aren't a philosophical pacifist.

You can certainly argue that a woman's right to control her own body "pales before the life" of the fetus inside her. But I think to do so is to suggest that all sorts of liberties have been vastly over-rated by their proponents. I don't happen to agree with that suggestion. That is not to say that no limitations on abortion could be justifiable if we take seriously the liberty interest here. Rather it is to say that there *is* a first-order liberty at stake, so that there must be an equally compelling first-order concern on the other side of the ledger to justify so limiting a woman's liberty. Hence the sort of conclusions reached in Roe, Casey, and academic articles (e.g., Balkin's "Abortion and Originalism," which is as much about interpretive theory as it is about abortion per se).

Note that if there is substantial threat to the woman's own life in the event of carrying to term, then the question isn't even close in my book--then any life-versus-life test is apples to apples and we have basically a case of self-defense (see, e.g., Volokh's article in HLR on medical self-defense). Health is trickier because it's hard to measure "threats to health" in the same way we can measure threats to life. Different people have dift ideas about health. I gather--tho as I say haven't read--that Kennedy's opinion boils down to a distinguishing of Gonzales from Stenberg/Casey on something like these grounds.

Second, one of the things that I think is so tricky about the philosophical issues involving abortion is forming the appropriate analogies and categories. You have an easy time suggesting that if a fetus is a life, then abortion is always wrong, since "all [factors] pale before the question of human life." In so doing you suggest that the liberty issues involved in debates over abortion rights and restrictions are just one more example--sort of like whether it's ok to kill a guy for his pizza when you're really hungry (it's not). But there is no other situation in human experience that is analogous to pregnancy. So it isn't obvious to me that one can just scotch-tape moral judgments from other contexts onto this one.

Anyway, I got to go. Thanks again for your comments.

Posted by: jonah gelbach | Apr 18, 2007 5:21:43 PM

I think I meant anti-sequitur. But I confess I don't know whether even that is a word.

Posted by: jonah gelbach | Apr 18, 2007 5:02:09 PM

Thanks for the serious response. My riposte, in the order you addressed my points:

Firstly, I don't think I was implying that savvy individuals would necessarily be fooled. The Kennedy opinion is extremely narrow - it fairly explicitly says that an abortion conducted without whole extraction would be constitutionally protected; it's only the specific method that may be restricted. While no-one doubts that Roberts and Alito would not have joined Roe or even Casey, there is legitimate doubt at to whether they would now vote to overrule that line of cases. In this case Roberts and Alito indicated that they would not, and a reasonable, savvy, person could conclude that their votes in this case are a result of genuine opinion and not simply intra-court politics. With both Justices there is very little fact (albeit much speculation) to support a contrary position.

I actually think your view of perceptions of DNX may be somewhat backwards. To hardcore abortion opponents, there is no difference between DNX and RU-486 or other first-trimester methods (note: I'm no expert on methods, the point is that it's not morally different to them). Rather, it is that DNX appalls more moderate voters as well that it became a political issue. For the voters Balkin was speaking of, DNX is not the start of a slippery slope...it is the point where they are comfortable with the more conservative parts of the party. The issues that do cause genuine cleavage are issues like the morning-after pill, some notification provisions, and the right more generally within the first trimester. The exact reason that this law exists is because it is an issue that even many democrats are on the anti-abortion side of. That said, I could be wrong...this is definitely a wait-and-see kind of issue.

Regarding the third point, you're right - I was lazy and didn't explain that what I meant was that the right to a DNX abortion appeals to the liberal element of the democratic party only. Despite what some anti-abortion entities assert, the procedure itself appeals to no-one.

One final point. The issue is not a woman's choice. It is whether what we are dealing with is another human life, or simply a blob within a human being. If it is the former, a notion of choice is laughable, since it pales before the life of a human being. If it is the former, then the notion of choice is fairly clear, since it involves a simple question of bodily self-determination. While there are many other factors afoot here (such as the fact of woman's equality depends on the ability to control her reproductive destiny), they all pale before the question of human life. I recognize the terms "pro-life" and "anti-life" are fairly manipulative (albeit no more than "pro-choice" and "anti-choice"), but the real question is simply where human life begins.

Feel free to delete that last paragraph - I can see how it could lead to undesirable tangents. I just felt it was worth putting out there.

Posted by: Still Unlikely | Apr 18, 2007 5:01:51 PM

Simon

You seem very upset by my post. Here's a rejoinder that I hope will make you feel better:


I don't try to hide my general support for the Democratic (note the spelling) Party, or at least, most of its candidates. For instance, just the other day I wrote a post in which I said I was proud to be a liberal. So, you haven't exposed a deep, dark secret here.
Yes, I do believe that the Democratic candidate is likely to win in 2008, and I did believe that several months ago, too. You got me--I believe what I said I did. As for Convenien[ce], so what? I don't know why you would think there's something sinister about my stating expectations, even if they happen to be consistent with my desires. Do you think I somehow control who wins the Presidency? It's not like I have a vote on the Supreme Court vote, after all.
I am not sure how you concluded that I disagree with today's opinion. Did I write that? I didn't mean to, if I did. I certainly disagree with the PBAA, as I understand it. But I haven't read the decision and in any case am neither a lawyer nor an expert on the finer points of the Court's abortion jurisprudence. Which is why I don't know whether the case was correctly decided.
Finally, I come to this:

your framing of [the PBAA] as "anti-choice" being as telling - and wrong - as it would be for me to fram the pro-choice position as "pro death"

The law is anti-choice: it prevents people from choosing to do something they might otherwise do. That's just a fact. It's not a fact that per se requires one to oppose the law (though I personally do, as I wrote above). It seems to me that the obvious pro-PBAA position isn't that the law involves no restriction of any form of choice--it's a LAW for god's sake!--but rather that one values the restriction of choice involved less than one values other things the law does. Or, perhaps more likely in this case, one supports the PBAA precisely *because* it restricts choice. But if you want to say that it doesn't restrict choice, you will have to explain to me how, say, statutes against bank robbery or newspaper publication would not restrict choice.

And as my reply to Unlikely noted, I don't know a single pro-choice person who celebrates abortions. Speaking for myself and about every pro-choice person I know, I can honestly tell you that none of us is "pro-death". We think women should have the right to decide this very difficult issue for themselves. That is not pro-death. So by agreeing not to call pro-choice people "pro-death", you are simply agreeing not to label us inaccurately. Which is a good thing for you to do, but which makes your complaint regarding my characterization of the PBAA simply a nonsequitur. Or an contrari-sequitur. Or something like that.

Posted by: jonah gelbach | Apr 18, 2007 4:59:34 PM

Simon:

Jonah can speak for himself, but I don't think his argument is implausibly "convenient." Given recent polls, it's no stretch to think that some moderates would vote Dem instead of Repub if they thought Roe was truly threatened. And it's hardly novel to note that Repubs have gotten some mileage out of the "activist judges are out of control, especially on abortion" meme among its base. So, a decision that seems to go against abortion rights (I'll save for another time whether it's proper to use the term "anti-choice") might undercut that message at the margins.

Now, how big of a deal is this? My guess is that it probably won't be a huge deal in 2008, given that the anti-choice/pro-life side won't be happy until abortion is generally illegal, and however this case turned out, the pro-choice side would still be talking more realistically about Roe being overturned if a Repub got to appoint another Justice or two.

But now we're talking degree, and who really knows?

Posted by: Joseph Slater | Apr 18, 2007 4:51:59 PM

Jonah,
So let me see if I get this right: you, a democrat supporter one has to presume, previously felt that "unless things change radically in some way, the now-unknown Democrat is a strong favorite to win the WH." And now today's ruling, that you disagree with, upholding a law you don't agree with (your framing of it as "anti-choice" being as telling - and wrong - as it would be for me to fram the pro-choice position as "pro death") also turns out to be a major boon for the party you already supported, notwithstanding that this is a very narrow ruling for a politically popular law that could in any event be repealed by Congress at any time. Is that about the size of it? Doesn't any of that strike you as being a little... Convenient? How wonderful it must be that events just keep playing into your normative preference for the outcome! And if they don't look like they're playing into it, well, that's only on the surface: if we look closely, there's an angle in which it may well do so. You don't see all this as being just a tinsy winsy bit like seeing all roads as leading to one's personal Rome?

Posted by: Simon | Apr 18, 2007 4:32:20 PM

Unlikely:

Let me handle your last point first. You note that Alito and Roberts didn't join Thomas's concurrence, stating that

No-one knows whether this was done to keep Kennedy on their side or because they genuinely do not favor overturning Roe/Casey. However, among some savvy libertarians, this may play a role in reassuring them.

Perhaps I am mis-reading you, but I don't see how someone can simultaneously be savvy and be fooled.

Regarding your first point, you may of course be right. And I may be wrong. But I rather doubt that if I am wrong it is because you are right. I don't think DNX is that much of a big deal in the great scheme of abortion politics. It may carry special value to some people with especially vehement views against abortion rights. But I think most people's view is that it's a small part of the overall issue. So I don't think Republicans asking whether "Democratic presidential candidates would nominate someone who would have voted with the dissent on this position" would cut much ice. The nominee can just say, hey, the real issue is Roe/Casey, not Gonzales. And I don't think s/he will lose many votes that way--anyone not satisfied with that response is hardly a likely Dem voter in the first place. But if Balkin is right, plenty of people would desert the GOP over a threat to Roe/Casey.

Finally, you write that

partial-birth and other forms of abortion in the second trimester are much more unpopular than first-trimester abortions, and don't hold much appeal outside the liberal element of the Democratic party.

I don't know *anyone* for whom abortions "hold much appeal". The issue isn't whether abortions are a desirable thing. It's whether prohibiting a woman's right to choose one is an acceptable constraint on her own self-determination. Obviously there are serious arguments in favor of the view that jailing women and/or their doctors is justified. But there is no serious argument that liberals, moderates, libertarians, or anyone else supports abortion rights because abortions hold much appeal.

Posted by: jonah gelbach | Apr 18, 2007 3:42:50 PM

While this scenario hold considerable appeal from a pro-abortion standpoint, I don't think it's realistic. In fact, I rather think it would allow Republicans to sharpen their point. The decision was 5-4, with the dissent only needing one more member to become a majority. Republicans can (and doubtless will) ask if Democratic presidential candidates would nominate someone who would have voted with the dissent on this position. As you noted, partial-birth and other forms of abortion in the second trimester are much more unpopular than first-trimester abortions, and don't hold much appeal outside the liberal element of the Democratic party.

An added question is how much the fact that the court's new members did not join Justice Thomas' concurrence will impact politially. No-one knows whether this was done to keep Kennedy on their side or because they genuinely do not favor overturning Roe/Casey. However, among some savvy libertarians, this may play a role in reassuring them.

Posted by: Unlikely | Apr 18, 2007 3:21:47 PM

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