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Monday, May 07, 2007
Lawrence v. Carhart (Part 1)
In Carhart v. Gonzales, Justice Kennedy writes that “ethical and moral concerns” justify criminal prohibition of one abortion method—dilation and extraction or D&X—so long as another method—dilation and evacuation or D&E—remains legal. Kennedy also writes that a ban on D&X need not contain a health exception because (according to Congress, to whom Kennedy defers) D&E is an equally safe alternative. Justice Ginsburg and others have suggested that Kennedy’s reliance on ethical and moral concerns contradicts his holding in Lawrence v. Texas that the state has no legitimate interest in the enforcement of popular morality though the criminal law. However, as I have explained elsewhere, Lawrence does not hold that criminal legislation cannot be justified on moral grounds; Lawrence only restricts the range of moral grounds to which the state may appeal. Specifically, the state’s legitimate interests in criminal legislation are exhausted by the acceptable goals of punishment recognized under the Eighth Amendment—retribution, deterrence, incapacitation, and rehabilitation—goals which are analytically distinct from the enforcement of popular morality as such. Retribution invokes the idea of a victim whose rights society must vindicate while deterrence, incapacitation, and rehabilitation are each methods of harm prevention. The law at issue in Lawrence could not be justified by these goals since such laws create more suffering than they prevent and fail to vindicate the rights of victims.
So what is striking about Kennedy’s opinion in Carhart is not his reliance on moral considerations but rather the types of moral considerations on which he relies: to express the state’s respect for fetal life; to promote respect for life by physicians and the public; to protect the reputation of the medical community; to draw a clear line between abortion and infanticide; to reduce the level of regret some women experience after having an abortion; to encourage doctors to invent less shocking abortion methods; to prevent perversion of the delivery process. Importantly, none of these justifications refer to the rights or interests of fetuses. Some allude to remote and speculative harms, which the Court has rejected as a basis for criminal punishment (see section III.C of the same article). Others allude to expressive purposes which do not provide an acceptable basis for punishment except insofar as expressive harm results from the violation of an independent right (see section IV.C).
What could Kennedy be thinking? Here is a possibility: Kennedy could be thinking that, while a substantial infringement of a protected liberty requires a rights-based or harm-based justification, an infringement that is not substantial can be justified on expressive or symbolic grounds alone. This might explain why Kennedy argues at such length that the ban on D&X does not create an undue burden on the basic right to seek an abortion. Kennedy could be thinking that if there are several safe alternative methods for exercising a protected liberty there is no harm in the state banning one such method to express its impersonal moral views, even if such views would not justify a ban that left individuals no meaningful way to exercise their liberty interest.
This view might seem plausible at first, but it creates a bit of a mystery: How can a criminal prohibition be justified by considerations that cannot justify punishment? Here is one possible response: Suppose that as a matter of pure retributive justice feticide (for instance by a third party) may be punished, but that a woman’s liberty to have an abortion is generally protected for some countervailing reason such as privacy or equality. On that assumption, if a ban on one abortion method does not undermine the basis of the liberty interest then punishment of those who violate such a ban can be justified by the underlying retributivist considerations. So while the selectivity of the ban is justified on expressive or symbolic grounds, the punishment is justified on the rights-based grounds endorsed by Lawrence. By contrast, since consensual sex is not rights-violating, restrictions on that activity can only be justified on rights-based or harm-based grounds. This, at any rate, is my current take on the relationship between these two very important decisions. I look forward to hearing what others think.
Posted by Adil Haque on May 7, 2007 at 10:56 AM in Constitutional thoughts | Permalink
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Tracked on May 7, 2007 2:42:24 PM
Comments
Hi Micah: That is correct. For instance, if D&E and D&X are not equally safe alternatives then a selective prohibition on D&X needs an independent or at least some supplementary justification. So all the criticism heaped on Kennedy's deference to the Congressional findings is well-placed.
Posted by: Adil Haque | May 8, 2007 9:14:40 AM
Who, then, could object to prohibiting C?
Walter Sinnott-Armstrong.
Posted by: The argument does not fail | May 8, 2007 1:17:59 AM
Interesting claim -- the structure of the argument is that there is a rights-based (exclusionary?) reason (or set of reasons) establishing a set of permissions to undertake actions [A, or B, or C], where A, B, and C are effective substitutes. Certain kinds of reasons (non-rights-based reasons; e.g., speculative, expressive, symbolic reasons etc.) cannot defeat the existence of the set; which is to say, such reasons cannot nullify it. But within the set, there is no rights-based reason to prefer any of the options to the others. (This looks like an example of nested indeterminacy.) There are, however, non-rights-based reasons to exclude, say, C. Who, then, could object to prohibiting C?
It's a nice question. But of course everything turns on the claim that the options within the set are equivalent over the rights-based reasons that justify the set. If that's false, then the argument fails. Right?
Posted by: Micah | May 7, 2007 7:16:11 PM
Hi Caitlin: Thanks very much for this comment. I’ll incorporate my response into my follow-up post tomorrow.
Posted by: Adil Haque | May 7, 2007 3:52:01 PM
This is a very interesting argument. Your critique of the interests underlying the federal ban should apply to all abortion restrictions, which are nearly always criminal prohibitions but so far have never been premised on viewing the fetus itself as a separate, rights-holding entity.
I don't understand your last point, however. It is true that feticide laws seem to be based on retributivist considerations, under which the fetus is treated as a separate legal entity meriting protection. But laws designed this way -- in contrast to laws that punish the same acts but that view the pregnant woman as the sole victim -- have always coexisted uneasily with allowing legal abortions. Abortion restrictions theoretically avoid this inconsistency because, as you point out, they are justified not by the fetus's own interests but by the state's interest in "potential life."
Even if we were to begin to understand criminal abortion restrictions differently, as vindicating an interest held by the fetus itself, it is not clear how a ban that the Court claims prohibits only one method, but prevents no abortions, furthers any such interest.
Posted by: Caitlin Borgmann | May 7, 2007 2:10:17 PM
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