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Friday, September 02, 2011

Why Does it Matter if a Fetus is a Person?

The New Republic online has a story about what the author calls a movement to have state constitutions declare that a fetus is a "person" from the moment of conception.  The story suggests that this is both a radical move and a clear effort to set up a direct confrontation with Roe and Casey in the Supreme Court.  TNR online stories are of variable quality and I'm not endorsing every bit of this one.  Still, it raises some interesting questions about why it matters, what the answer to that question means for constitutional doctrine, and perhaps more broadly how much constitutional doctrine matters at all.

Suppose that these constitutional amendments pass--hardly a far-fetched possibility in some states.  And suppose that the Supreme Court treats that question as a judgment (on a question of fact? of law? of something else?) to which it ought to defer.  What difference should it make?  One possibility is that the people who are advocating for this believe that personhood gives rise to a right to life that cannot be overcome by any competing factors.  In other words, they view this right -- all rights? -- as a trump.  If they take this point wholly seriously, then it seems to me that the logic of their position demands that abortion be made unavailable for victims of rape or incest.  It suggests to me, less clearly but still compellingly, that a mother's intentional taking of the life of a person ought to be treated as criminal conduct punishable by the murder statutes.  And it also suggests to me that it is far from clear, in a case in which childbirth might endanger the life of the mother, that the mother's right to life should take priority over the fetus's.  I don't know who should win in that situation, but it is certainly not obvious that the mother -- who has already lived to adulthood, and who in many cases has engaged voluntarily in conduct leading to the pregnancy -- has any greater right to life than the fetus, which is equally entitled to status as a person and which is a completely innocent party in these circumstances.  

Suppose, on the other hand, that the proponents of these measures do not believe rights are trumps and that abortions are always and everywhere unlawful.  Then the courts must perforce engage in some kind of balancing of interests.  They may treat personhood as a significant factor to be weighed, but they will not treat it as creating any absolute entitlement.  They will treat the fetus/person's constitutional rights the same way that, in fact, they treat most constitutional rights: as significant factors that are still subject to balancing and may still be overcome by competing interests.  Although they would now treat the fetus as a person from the moment of conception, once they went down the road of balancing interests, they might readily conclude that the fetus's status as a person can be plotted on an ascending scale of significance from conception to viability to birth, and that the more like a fully-developed infant the fetus is, the more weight its personhood should have in the balancing inquiry.  Compared to today, some outcomes might change.  Really, though, none of them would be required to change.

So what, really, is different about the state of the law if we call fetuses persons for legal purposes?  Obviously there is a rhetorical difference involved (and, to be fair, many might say there is a meaningful expressive or dignitary interest involved too).  Whether it really requires changes in substantive outcomes, though, is an entirely different question, whatever the proponents of these measures may think.  And somewhere in those complicated questions, we can find some interesting indications about how people think about constitutional rights and constitutional adjudication, indications that could be teased out in other areas.  

If, for instance, you believe that the right to life is an absolute trump against any government infringement, then I think it is fair to say that you should be forthright in agreeing with the implications I noted above: that all abortions, no matter the reason for them, should be illegal, that mothers should be criminally prosecuted in many cases, and perhaps that a mother whose life is endangered by a pregnancy should have no greater right to life than the fetus does.  To the credit of their consistency, some supporters of these laws do indeed believe this, although I imagine that other proponents will be quite willing to soft-soap those implications or deny them altogether.  Of course, the more forthright they are in acknowledging the logical implications of their position, the less palatable these proponents' position will be to many people who oppose abortion but not in all circumstances -- who, in other words, don't think a fetus's personhood should necessarily prevent it from being deliberately snuffed out.  But there is another interesting point here.  If you really believe that rights are absolute trumps, it is fair to say you should be more willing to apply that position elsewhere.  Granted that the right to life might be viewed differently than the right to free speech, for instance, although there is no textual warrant for treating them differently.  Even so, once you go down the road of saying that some constitutional rights don't allow for balancing, then it seems to me the consistent view of someone who supports the personhood measure should also take the position that flag-burning, hard-core pornography, the ingestion of peyote, support for subversion and/or terrorism, and other similar conduct should be wholly protected by the First Amendment.  

On the other hand, if you don't believe that personhood or the right to life are trumps, if you think that they are subject to some form of balancing inquiry, then I think you have again made an interesting statement about jurisprudence.  Rightly or wrongly, we do not normally associate a preference for balancing tests with people who take a strong view on matters like abortion and fetal personhood.  But it seems to me that if you believe that fetal personhood is not legally dispositive, if you believe that it can be overcome by other interests, then you are making an important statement about what courts must and/or should do in constitutional cases: they must or should "make law," insofar as they are not simply engaging in a mechanical reading of the text but are actually balancing competing and perhaps incommensurable interests.  In other words, someone who supports the personhood measure but does not think it always trumps other interests is, in a sense, saying that he or she supports Justice Breyer's vision of the judicial function.  That's a nice strange set of bedfellows.

Of course, you might respond that no one who supports or opposes these measures really thinks they are making a statement about jurisprudence, and that everyone understands that the relationship between these measures and the conclusions that courts reach will not be a matter of pure logic, but will have a heavy dose of politics and policy mixed in.  That's probably right: these laws are about giving the courts an opportunity to get rid of Roe and Casey, as much or more in a political sense as a logical one.  The courts will treat the personhood provisions as a kind of political or normative message or opportunity, without feeling in any way compelled to follow them to their logical conclusion.  Then you are making an interesting statement too.  You are saying that constitutional law is a matter of politics, not just "law."  You are saying that constitutional law is not just a matter of text or principle.  In this scenario, the proponents of the personhood measures, as well as their opponents, stand revealed as fairly radical legal realists.  

In a sense, much of this is ultimately about our comfort or discomfort with the idea of "personhood" itself, and what personhood says about legal status and rights, as well as what it says about abortion.  Abortion rights advocates might oppose these laws, quite sensibly, because they understand what they are really about.  But--and I am hardly the first to suggest this, in the abortion rights camp or otherwise--this is also an occasion for them, if they wish, to say openly that abortion does involve the death of a "person," or something so close to the death of a person as to be nearly indistinguishable; that the fetus is not just a lump of cells but something with real personal and moral status.  Their position, then, would be that even if this is true, there are still many circumstances in which it is acceptable for an individual, with the assent of the state, to deliberately take another person's life.  I think this is the position that many or most abortion rights advocates take, although it is still the case (but much less so than it used to be, I think) that some abortion rights advocates, for various reasons, like to minimize the moral status of the fetus and turn our attention away from the fetus's humanity.  Conversely, supporters of these measures who believe it is important to recognize the personhood and moral status of the fetus, but who do not implacably oppose all abortions, might say more openly and publicly that personhood is important but not all-important: that, even if the fetus is a person, it should still be acceptable to take its life from time to time.  Perhaps both sides will more openly acknowledge the tragic nature of their respective positions.  And perhaps both sides--but especially, I think, the proponents of these measures--will give some thought to what they really believe about the nature of constitutional law and adjudication, and abandon some of the more trite and mechanical descriptions of constitutional law and judging that we often see in public discussion.      


Posted by Paul Horwitz on September 2, 2011 at 09:45 AM in Paul Horwitz | Permalink


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Justice Harry Blackmun cited in Roe v Wade, if personhood of the fetus can be established, Roe v Wade collapses .

Posted by: Nancy D. | Sep 8, 2011 1:26:59 AM

Thank you, Maureen, for this information.

Professor Horwitz, as a matter of logic and principle, are you asking whether it matters if a person is a person? If a person is not a person,(but then, how can a person, not be a person) in regards to Constitutional interpretation, that changes everything. Since it is true that one cannot be a human embryo without being a son or daughter, and it is true that every son or daughter is a person, then a human embryo is a person and thus has been endowed with their fundamental,UNalienable Right to Life from the moment that human individual was brought into being, at Conception.

Posted by: Nancy D. | Sep 6, 2011 3:35:38 PM

Just to reiterate, my primary interest here is less in whether the fetus is a person or whether abortion should be legal or not, but in what (if anything) the personhood measures, and the way we are inclined to interpret them, say about our understanding of constitutional interpretation and the judicial task. With that in mind, Maureen, I appreciate your posting this resolution. I do have a question or two.

First, I'm curious about the clause that states that all American political offers "have sworn before God to support the United States Constitution as required by Article VI of that document." The website you link to quotes much of the relevant provision, so I'm sure you're aware that these officers are bound "by Oath or Affirmation" to support the Constitution, and that the Religious Test Clause follows up on the affirmation language by making clear that there shall be no religious test for office. I'm wondering whether you would acknowledge that the Constitution permits affirmations rather than oaths and thus that no one taking office is obliged to "swear before God" to support the Constitution, although they are obliged in those circumstances to affirm their support for the Constitution. To be clear, I'm not suggesting that this necessarily changes the rest of your interpretation of the Constitution. But I'm wondering why the resolution mentions only oaths, not affirmations, and whether we are supposed to take some implication from that chioce.

Second, as you know, the Fifth and Fourteenth Amendments speak in terms of the deprivation of "life, liberty, or property without due process of law." Do I take it you believe that the taking of life in the circumstances the resolution sets out are permissible if they observe due process of law, or are you making some stronger point? If the latter, doesn't this say something about the implicit method of constitutional interpretation involved? (Perhaps this has something to do with the resolution's use of the phrase "innocent person," but I'm still a little vague on how all this ties together.)

Third, the resolution says these rights are inalienable but does not tell us whether they are absolute or not. Take the case of abortions in cases involving rape or incest. Is it your view that they are constitutionall prohibited? Are lawmakers also obliged to pass laws criminalizing abortion in those cases? Can they deliberately underenforce the law in those cases, or are they obliged to actively enforce them even where rape and incest are involved? If it's the resolution's position that the right to life in those cases would have to be balanced against competing rights or interests, doesn't that say something about its implicit vision of constitutional adjudication?

Fourth, I'm a little confused about the description of the duty involved for lawmakers. I can understand the argument that government is prohibited from taking innocent lives, but you seem to be arguing further that government officials have a positive constitutional duty to pass law protecting innocent lives. Is that right? What exactly are your visions of the legal distinctions between public and private, between positive and negative rights, and between government's obligation not to do certain things and its obligation to do certain things? How would you have resolved the DeShaney case or Rodriguez v. Texas? How does this play out for, say, euthanasia? I assume your view is that a constitutional claim of the right to assistance in euthanasia should fail. But if a state fails to criminalize suicide or euthanasia, is it violating the Constitution? Is it consistent with the resolution's constitutional views to say that no one should commit suicide or euthanasia but we are free to leave the question whether to regulate these activities to the states, or do you think that the federal government in these circumstances is obliged and authorized to pass laws banning those practices?

Fifth, a less important question. The resolution says that "modern science has demonstrated beyond any reasonable doubt that the individual human person’s physical existence begins at the moment of biological inception or creation." I take it you're not saying that modern science has demonstrated beyond a resonable doubt anything about when personhood begins and where personhood exists. Do you see this rather as a moral question not susceptible to scientific proof or disproof? Or are you saying that the definition of "personhood" is "physical existence?"

Finally, I found it curious that the death penalty is not mentioned at all in the resolution. Granted that the Constitution contemplates the existence of the death penalty, but we have already seen that one plausible reading of the resolution is that it already calls for the Constitution to be interpreted beyond and even against the constitutional text, as in the case of "due process of law," so I'm not sure that's answer enough. If it were the case that it is possible in the United States to imprison dangerous individuals convicted of committing crimes with executing them, isn't there a plausible argument to be made that, under the philosophy of the resolution, the government ought not be in the business of executions?

In fairness, I don't expect answers to all these questions, although you're certainly invited to answer as many of them as you'd like. (Similarly, perhaps it's unfair for me to consider asking for answers from Nancy D., and I will cease asking from now on.) But it seems evident to me that the questions left open by the resolution, and the answers to those questions, do have the potential to say interesting things about the underlying approach to constitutional interpretation that the resolution's proponents, as a matter of logic and principle, ought to support.

Posted by: Paul Horwitz | Sep 6, 2011 1:08:14 PM

Right, just like the constitutional right to food and other necessities for "innocent life?" Cradle to grave socialism? Or are we only innocent in the womb? At least the early American Christian socialists were consistent.

Posted by: AnonSummica | Sep 6, 2011 11:59:24 AM

I think this spells out the truth:

The Equal Protection for Posterity Resolution

A Resolution affirming vital existing constitutional protections for the unalienable right to life of every innocent person, from the first moment of creation until natural death.

WHEREAS, The first stated principle of the United States, in its charter, the Declaration of Independence, is the assertion of the self-evident truth that all men are created equal, and that they are each endowed by their Creator with certain unalienable rights, beginning with the right to life, and that the first purpose of all government is to defend that supreme right; and

WHEREAS, The first stated purposes of We the People of the United States in our Constitution are “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity”; and

WHEREAS, The United States Constitution, in the Fourteenth Amendment, imperatively requires that all persons within the jurisdictions of all the States be afforded the equal protection of the laws; and

WHEREAS, The United States Constitution, in the Fifth and the Fourteenth Amendments, explicitly forbids the taking of the life of any innocent person; and

WHEREAS, The practices of abortion and euthanasia violate every clause of the stated purposes of the United States Constitution, and its explicit provisions; and

WHEREAS, Modern science has demonstrated beyond any reasonable doubt that the individual human person’s physical existence begins at the moment of biological inception or creation; and

WHEREAS, All executive, legislative and judicial Officers in America, at every level and in every branch, have sworn before God to support the United States Constitution as required by Article VI of that document, and have therefore, because the Constitution explicitly requires it, sworn to protect the life of every innocent person;

THEREFORE, WE THE PEOPLE OF THE UNITED STATES HEREBY RESOLVE that the God-given, unalienable right to life of every innocent person, from biological inception or creation to natural death, be protected everywhere within every state, territory and jurisdiction of the United States of America; that every officer of the judicial, legislative and executive departments, at every level and in every branch, is required to use all lawful means to protect every innocent life within their jurisdictions; and that we will henceforth deem failure to carry out this supreme sworn duty to be cause for removal from public office via impeachment or recall, or by statutory or electoral means, notwithstanding any law passed by any legislative body within the United States, or the decision of any court, or the decree of any executive officer, at any level of governance, to the contrary.

Posted by: Maureen Gerrish | Sep 6, 2011 11:46:59 AM

Actually, it is not true that we ALL know that Roe v. Wade was a lie from the start, but that does not change the fact that it was and continues to be a lie from the beginning.

Posted by: Nancy D. | Sep 6, 2011 11:22:26 AM

Paul, one does not have to be a lawyer to understand that our Founding Fathers recognized our inherent equal Dignity exists at the moment of our creation and that securing our inherent, fundamental, unalienable Rights is good for our posterity as well as for our prosperity. The citizen comment is not a "non-sequitur", and I am surprised that this judge was not removed due to a mistrial, but then, we all know that Roe v.Wade was a lie from the start.

I am a daughter, sister, wife and the mother of five children, and my degree is in Elementary Education.

Posted by: Nancy D. | Sep 6, 2011 8:47:55 AM

I'm going to pretty well stay out of the debate other than to read and monitor it. I'll reiterate that my interest, with respect to my dialogue with Nancy, is not to change her views. She is hardly the only strong believer out there in the centrality of natural law to constitutional interpretation. My post was not primarily about natural rights, it was mostly about what the personhood laws and how they are interpreted may say about one's views on constitutional interpretation in general. I am just interested in asking Nancy to offer a more specific set of answers about what her approach requires or recommends in the specific cases I discuss. It's difficult, I think, for either of us to have a productive dialogue, which I do believe is possible, unless we get past the general statements and dig into the specifics. I don't know that Nancy is a lawyer, and perhaps it's unfair of me to keep pressing on the specifics, but I think her answers would be useful. Again, though, I'm taking her position on natural rights as a basic starting assumption; I'm not interested in attacking it, just figuring out what she thinks it means in the kinds of specific cases I asked about.

Posted by: Paul Horwitz | Sep 5, 2011 9:10:10 AM

"Joe, with all due respect, a skin cell is not someone's son or daughter."

Yes and with all due respect, few think "someone's son or daughter" is destroyed when IUDs are used. Emotion appeals only go so far.

The citizen comment is a non sequitur. The Constitution does speak of "persons," not citizens in the relevant section. This still doesn't make a fertilized egg a "human individual."

I realize your different views but that sort of conclusively say-so isn't going to even convince many against abortion, many of whom don't think a fertilized egg is a "human individual."

Posted by: Joe | Sep 5, 2011 8:57:00 AM

In the oral argument for Roe v Wade, a judge actually suggested that the definition of person that is used in our Constitution was "naturalized citizen", but then he realized he was mistaken. Every son or daughter is a human individual.

Posted by: Nancy D. | Sep 4, 2011 6:48:06 PM

Joe, with all due respect, a skin cell is not someone's son or daughter.

Posted by: Nancy D. | Sep 4, 2011 6:33:19 PM

My last sentence uses a pronoun that is too specific. "It" is not required for my argument to hold. As to DNA, twins are but one example of the complicated nature of "conception" and how (as Roe itself noted) it is a type of process that takes time to complete and results in something different than what was present in the beginning. Also, if something WAS added to the DNA, I don't see that as making much of a difference at the end of the day really -- do you really want to rest on that? What if some sort of medical advance allows us to add a sliver of DNA to fix some birth defect?

Posted by: Joe | Sep 4, 2011 2:58:52 PM

"A human individual" is not how the term "person" was or is understood in a legal sense. Many definitions of "individuality" also would not meet what is present in a fertilized egg. The fertilized egg is "human." It is is some fashion "life" (though so is a skin cell) though again legally not the "life" cited in the Due Process Clause. [I know of one of the many pre-Roe lower court rulings that held otherwise, but it was an outlier, even among those that didn't protect the choice to abort.] But, to call it a "human person" is a big leap.

Posted by: Joe | Sep 4, 2011 2:54:16 PM

Since it is true that at conception, nothing is added to the DNA of that human person who will continue to grow and develop, every human person, from the moment of their conception, is wholly human, and is thus a human individual, which is the definition of "person".

Posted by: Nancy D. | Sep 4, 2011 2:36:20 PM

Jen R. "then there are two people involved, it can be legitimate to contrain the action of one with respect to the other."

We protect dogs without recognizing -- maybe we should in some sense? -- them as "persons" and constrain the action of persons with respect to them in certain ways. So, though I agree that "persons" in a legal sense has a real effect on rights balancing, I think that's phrased a bit too broadly. As Eric Rasmusen notes as well, "person" has a legal effect for various civil reasons too. This is not merely horatory. It will in some real sense inhibit abortion rights as well as affect artificial reproduction and other matters.

The post suggests those who support abortion rights recognize a "person" is present or close enough, not just a "clump of cells" or some such. I think we have to be clear here. If some state is going to label a fertilized egg (not merely a "fetus," which doesn't result until 10-12 weeks, after most abortions occur) a "person," many are going to be wary. Because -- and religious traditions that speak of ensoulment only arising at 40 days or some such point reflect this -- many don't think using a IUD destroys a "person." They don't think, even though they very well would think some respect should be supplied, in vitro fertilization results in the destruction of "persons."

I personally think that human life from conception has some sort of value and that those who abort usually agree, thinking that abortion in fact furthers life values more than the alternatives. Various accounts (see, e.g, Abortion & Life) spell this out. But, use of a term like "person," like those pictures of full formed fetuses in anti-abortion campaigns when they people's views would make IUDs illegal, not useful or accurate in that respect. The exact understanding of human life is a big matter of dispute but "person" is a bad compromise position, particularly if you are going to called fertilized eggs "persons" along with you and me.

Posted by: Joe | Sep 4, 2011 1:39:24 PM

I hope people are attending to civil law implications too. A fetus currently counts for a lot of trust and property law purposes, I think, but can't own property, right? or bring lawsuits?

Posted by: Eric Rasmusen | Sep 4, 2011 10:09:53 AM

If it is true that our unalienable Rights have been endowed to us from God, then the purpose of our unalienable Rights, is what God intended and thus The Law that is created to secure our unalienable Rights must be consistent with God's Law, which is grounded in respect for the inherent equal Dignity of every human individual.

Can we agree a Government that is grounded in respect for the inherent equal Dignity of all persons should create Laws that encourage rather than discourage respect for the inherent Dignity of all persons and that when The Law reflects Justice, a reasonable person can assume that most people will feel a responsibility to uphold The Law?

Posted by: Nancy D. | Sep 4, 2011 9:32:18 AM

Nancy, that's fine. I'm not questioning your premise. But I need to know how to interpret and apply the law! That's why I continue to look for some more concrete answers from you.

Posted by: Paul Horwitz | Sep 4, 2011 1:20:59 AM

Professor Horwitz, if respect for the inherent, equal Dignity of the human person is not the reason God Has endowed every human individual with certain, unalienable Rights from the moment of our creation, then for what reason do our unalienable Rights exist?

Posted by: Nancy D. | Sep 3, 2011 8:33:21 PM

Nancy D., thanks for your comments. Readers here may not be familiar with your views, but I have of course read your comments on Mirror of Justice many times. Perhaps you can help answer some questions, because I tend to be a little confused about your precise views on matters like these and you generally appeal to these arguments in your discussion of legal and constitutional questions:

* What are the sources that you view as authoritative in determining what the inherent equal dignity of every human requires in particular cases? Do I take it these are the sources you think judges should be using?
* Given what I understand about what you have to say about the requirements of respect for the inherent equal dignity of every human individual, am I right in thinking that in your view, individuals' own views about what constitutes the nature and interest of their own dignity are ultimately irrelevant, and furthermore that the state may enforce, against individuals' own desires, laws that prevent them from acting in ways that violate your understanding (or *the* understanding, I'm not fighting about whether you're right or not) of what their inherent equal dignity requires? Is that a "may," or a "must?" Is is the case that no one has a constitutional right to engage in sodomy but the state is entitled to leave people free to engage in as much sodomy as they wish -- or do you believe the state has a positive duty to outlaw sodomy? If neither, what?
* Is it your view that the boundaries of First Amendment freedom, and of other constitutional rights, are determined by the conception of inherent equal dignity, so that any speech or expressive conduct that falls outside that scope may be prohibited? Again, is that a "may," or a "must?" Do I take it you believe that hate speech laws are constitutional? How about libeling public officials? Nude dancing? Anti-Semitic or anti-Catholic speech? The O'Brien Factor? The use of the word "nigger" in literature? A jacket worn in a courthouse corridor reading "Fuck the draft?" R-rated movies? Conversely, I take it you would agree that a statute prohibiting flag-burning is constitutional. I appreciate that this is a long list, but I think your approach would radically alter First Amendment law, let alone other constitutional rights, and I'd like to make sure.
* On ingesting peyote, I should have given context. The use of peyote is an important part of religious ceremonies for some Native American tribes and other religious groups. Is that conduct, in that context, still a violation of respect for the inherent equal dignity of every human individual? If so, can (or must) it be prohibited? Can the legislature constitutionally grant an exemption from the law for the ingestion of peyote when it's religious?

Thanks so much. I should add that this is not some cleverly laid trap for you -- for one thing, I'm not that clever. But you have regularly appealed to the inherent equal dignity of human individuals on MoJ as a central rule of constitutional law, but generally fairly vaguely, and I have long wanted to know more. If I get a chance , I'll reply to your second post, but this comment is just a response to your first post. Best, PH

Posted by: Paul Horwitz | Sep 3, 2011 11:36:51 AM

No doubt, our Founding Fathers realized that the act of procreation was over once a new human individual was created, which is why they stated, unanimously, "We hold these truths to be self evident, that all Men are created equal...", for they did not say that all Men are born equal because they knew that every human individual was created before they were born, endowed by their Creator at the moment of their creation with the fundamental, UNalienable Right to Life, Liberty, and The Pursuit of Happiness, our Right to Liberty and The Pursuit of Happiness dependent upon protecting our fundamental Right to Life from the moment of our creation, to begin with.

Posted by: Nancy D. | Sep 3, 2011 10:52:13 AM

One would think that if you supported the Personhood measure, it would be because you recognize the inherent equal Dignity of every human individual so why then would someone who supported the Personhood measure take the position that " hard-core pornography, the ingesting of peyote, support for subversion and/or terrorism, and other similar conduct, would be wholly protected by The First Amendment", when such conduct is a violation of respect for the inherent equal Dignity of every human individual, to begin with?

Posted by: Nancy D. | Sep 3, 2011 10:35:06 AM

Are there states that don't follow DeShaney as a matter of state constitutional law? That seems quite important for assessing the practical import of these initiatives. On Roe & DeShaney, see here at 299-301.

Posted by: Chris | Sep 2, 2011 6:15:38 PM

I appreciate the thoughtful comments. I might say briefly to Teresa that I quite agree that the jurisprudence of personhood, so to speak, and the jurisprudence of procreation more generally, indeed raises interesting issues. That said, my post was, in a sense, mostly interested in what the ways in which we interpret the personhood amendments might say about our views about jurisprudence more generally, and particularly about the inevitability of balancing even in the face of a "clear" text.

Posted by: Paul Horwitz | Sep 2, 2011 4:29:58 PM

Thank you Paul for your response. I agree that personhood legislation raises lots of interesting moral and legal questions, but that is true of the almost every issue regarding procreation. For example, I often lecture of "men's reproductive rights" noting that more than one court has found male victims of rape liable for child support, notwithstanding that the male did not consent to the sexual activity giving rise to conception. The courts reason that the innocent child should not be penalized by the wrongful acts of the mother. While it is true that the physical burdens of pregnancy only impact women, if it is the innocence of the child that is legally determinative, it is hard to reconcile these cases with the argument that public policy should permit abortion in cases of rape. Another example is the judicial treatment of disputes over frozen embryonic children. Even in cases where one of the biological parents wants to bring the child to term, and the non-consenting parent would have no legal responsibility for the child, the parent seeking the death of the embryo wins. The courts consistently reason that the right to avoid procreation trumps the right to procreate, yet to many people (including myself) the act of procreation is over. We are talking about repudiating the act of procreation after the fact, not compelling it in the first place. All very interesting and troubling in many respects.

Posted by: Teresa Collett | Sep 2, 2011 3:58:41 PM

"So what, really, is different about the state of the law if we call fetuses persons for legal purposes?"

It makes a difference because in one case, you're balancing the rights of two people against each other, and in the other case, you're balancing a woman's rights simply against society's preferences about what she does. When there are two people involved, it can be legitimate to contrain the action of one with respect to the other. However, *if* the fetus is not a person, then how do proponents justify restrictions on abortion (other than what might be considered consumer protection measures)? Are those restrictions justified on the grounds that society has enough of a stake in reproduction that it gets to override personal decisions? If so, then on what basis can women be protected from being legally forced to have abortions, or to use contraception, or not to use contraception?

It may not make a difference to the unborn whether or not they are protected because they are legal persons, but it makes a huge difference to the rest of us.

Posted by: Jen R | Sep 2, 2011 2:57:39 PM

Prof. Collett, thanks for the comment. (And please call me Paul!) I should be clear that while I think there is a good argument that the legal personhood of the fetus should lead as a principled matter to the prohibition of abortion even where the pregnancy is a result of rape or incest -- and, as the story I link to notes, some proponents of the law agree -- I agree with you that that's not the only possible outcome. Although I may well have stated the first point too strongly in the first part of the post, I do think I make that point clearer in the remainder of the post. Similarly, I certainly think that either a court or a legislature could conclude that a case involving the life of the mother must be left in the realm of private decisionmaking (where it is now). My broader point, however, is that any of these positions say interesting things: about what personhood means, about what fetal personhood in particular entails for the law, about what the acceptability to the laws' proponents of a balancing approach would say more broadly about their views concerning constitutional adjudication, and about their broader views of the distinction (or lack thereof) between law and politics. My point is not to settle these issues but to point out the questions raised.

Posted by: Paul Horwitz | Sep 2, 2011 2:45:59 PM

Professor Horwitz' claim that fetal personhood decides the question of whether a general prohibition could or should include exceptions for rape/incest or threat to the mother's life is too simplistic.

As he suggests, even accepting the legal personhood of the unborn, there are other jurisprudential consideration in deciding what protections arise. It is possible that a legislature and/or court could adopt the position articulated by Justice Rehquist in Deshaney v. Winnebago County, "As a general matter, then, we conclude that a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." While I find this statement (and frankly the whole opinion) troubling, it is the current interpreation of the US Constitution.

Even if that position is too radical, it is not unreasonable to distinguish pregnancies resulting from rape/incest as falling within the general American position that the is no duty to rescue or render aid to a stranger, while pregnancies resulting from voluntary sex (including those from intentionally but unsuccessfully contracepted sex) as being within the general rule that the person creating the hazard to another has a duty to rescue or in this case continue the pregnancy until the child can live outside the womb.

As for an exception for abortions necessary to preserve the life of the mother, it seems very clear to me that a legislature could take the position that the government should not choose between the lives of two citizens and leave that rare case in the realm of private decisionmaking.

Posted by: Teresa Collett | Sep 2, 2011 2:00:08 PM

Nice post. It seems worth mentioning that the most famous philosophical defense of abortion, Judith Jarvis Thomson's "A Defense of Abortion," explicitly starts by granting the assumption that "the fetus is a person from the moment of conception."

Obviously, Thomson is making a moral argument, but there are reasons to think the moral argument she makes is relevant to the legal arguments.

One reason it might be worth taking a look at Thomson's article (if you haven't already) is that it makes evident some of the weaker points in the fully liberal position on abortion.

Posted by: Philosopher | Sep 2, 2011 1:13:53 PM

Joel, just to be clear, I did make sure to acknowledge the point you make in your first paragraph, when I said that many people would say there is an expressive or dignitary reason to make clear the personhood of a fetus. As the rest of your comment, I'm not sure that we're in conflict: I suggested that responses to these laws would say something about the presence and role of, say, interest-balancing in constitutional law and about when and whether people view rights as trumps. But I don't see how your point about ignoring the rights and needs of fathers follows. Is it that if a fetus is a person, then it's a child, and if it's a child then the father's legal rights come into play? Maybe. But it's not clear that pre-natal personhood is the same as being a child or having the legal status of a child, and it is perfectly possible that courts could conclude that the fetus is a person but that the father has no legal right to intervene in matters involving it prior to birth. Nor, to the extent that courts would be required to engage in interest-balancing in matters involving the fetus, is it clear why the father's interests would necessarily be considered, let alone that they would have any weight as against the interests of the mother, the fetus, or the state. I know this is a long response to one half of one sentence in your comment, by the way; sorry. I just needed a few words to work out my thoughts on this.

Posted by: Paul Horwitz | Sep 2, 2011 12:46:56 PM

Well, for starters it matters because it is true. It matters that our laws recognize and seek consistency with the truth. It is hard enough for mere mortals like us to deal with the truth, and Professor Horwitz' various QuodLibets are a good sampling of the many pitfalls that lie alog that path, but it is incomparably worse to deal with rejection of the truth.

Of course courts of law exist to balance interests and to apply -- and in the process shape -- the law with an eye to the practical consequences of their actions and the greater good of the society. We also acknowledge that in so doing they are not peopled by angels, or even by mental giants. They do their best, and by the logic of judicial review submit to a corrective process. The example of how to treat mothers who abort their children is illustrative.

Since abortion is not a demonstrable threat to the citizens of a place -- since they are already out of the womb -- the provisions of the criminal code designed to safeguard the public have very diminished applicability. That fact would, in turn, have to be readdressed if it appeared that the practice of abortion on a wide scale undermined the vitality of marriage and family, given how central they are to the life and prosperity of the community.

At any point, the legislature could interpose its judgement in these matters, imposing laws on the courts, as often happens in all other areas. In general, the law -- courts and legislatures -- would have to decide what is the best practical was to respond to the personhood of the infants in the womb, just as they have to respond to every other kind of issue that arises in the course of daily life. They would however be prevented from entirely ignoring the needs and the rights of the unborn, and from ignoring entirely the rights and needs of many other parties -- e.g. fathers -- to these most intimate affairs.

Posted by: Joel Clarke Gibbons | Sep 2, 2011 12:29:11 PM

yes, but can a pregnant woman drive in a carpool lane?

Posted by: Jessie Owley | Sep 2, 2011 11:59:05 AM

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