Constitutional views on abortion

The abortion issue was misframed in the badly-argued Roe v. Wade case, which could not have been decided otherwise given the way it was argued.

The Supreme Court was hearing on appeal a case decided for the plaintiff (Roe), on the grounds that she had a Ninth Amendment right, incorporated on the states, to decide whether and how many children to have. That decision was correct, and the reasoning was correct. The Supreme Court should have just affirmed the decision, and the opinion, of the Fifth Circuit. Instead they took the case, and then struggled to find another way than the Ninth Amendment, to reach the same conclusion. The result was an exercise in sophistry. There is no good way to avoid the Ninth Amendment, to which there is intense opposition in the legal mainstream.

Part of the problem for opponents of abortion with the Fifth Circuit holding was that it "incorporated" the Ninth Amendment over the states, making it a federally justiciable everywhere.

Note however that the Fifth Circuit holding was only that a woman could terminate,the pregnancy, not that she could kill the fetus, unless she had no alternative. In principle, if the fetus could be removed from her body without killing it. that would be compliant with the holding. That is similar to the right to evict a trespasser, while taking care not to kill him. However, there is not presently a way to do that for a fetus. Should medicine eventually find a way to save the fetus, a state could require that be done. But there is also a Ninth Amendment right not to pay for rearing a child, so the state would have to bear all costs.

A person has rights, and a non-person doesn't, so if the issue is framed only as a contest between the rights of a person and a non-person, the person wins. However, (state) law may protect things that are not persons, essentially as a kind of public property. It may also restrain the ways a person with superior rights may exercise those rights against another entity, person or non-person. Thus, the owner of a piece of property who has consented to another person visiting him there, then orders him to leave, does not thereby immediately acquire the right to shoot him. He does not have the duty to allow the visitor to stay if the visitor will die of exposure if evicted, but he should still be alive when he is evicted. Thus, without violating the rights of the pregnant person, a state could require that the abortion be conducted, if possible, in a way that would leave the fetus alive at the point it is ejected, presumably into the care of others. However, this requirement could not constitutionally "burden" the right of the person to eject. It would have to be at least as easy as killing the fetus, and any additional expense would have to be borne by the party seeking live termination. Now, admittedly, there is presently no way to do that in most cases, but as a theoretical proposition, it is constitutionally permissible.

One problem with the debate on abortion is that it tends to gloss over the real issue: do we really want to criminally prosecute someone, the pregnant female, her abortionist, or perhaps even the guy who got her pregnant, with deprivation of liberty, or even life (as first-degree murder), for terminating a pregnancy (even if the fetus is left alive)? If a pregnant female hints to someone she is considering having an abortion, do we really want to lock her up or appoint a guardian to supervise her to prevent her from aborting? Can we really get a jury, if it is not stacked with anti-abortionists, to convict? Who is going to pay for the prosecutions, the incarcerations, the executions, and perhaps for the unwanted children who will be born if the measures to prevent abortion happen to be successful? How is any law enforcement agency even going to be able to investigate or prove cases if having an abortion becomes as easy as taking a pill that will be available either over the counter or on the black market?

Those who oppose abortion seem to try to avoid answering those questions. I have tried to find out why, and my conclusion is that for most of the stronger proponents of criminalizing abortion, the real motive is to punish women for having extramarital sex, by forcing them to either rear an unwanted child, watch it suffer and even die because she is inadequate for the task, or suffer the pain of first bonding to it and then having the state take the child away from her (and perhaps deliver it into to the clutches of pedophile "foster parents". (Does any of this resemble Prohibition or the War on Drugs?)

The proper libertarian position on this issue is that government is incompetent to intervene without making a bad situation worse, and that the way to prevent abortions is to encourage birth control, or abstention, at least for minors and mental incompetents. It is not a problem within the competence of government. It is a problem for social pressure and moral suasion.

There are no reliable statistics on the question of how the legality or illegality of abortion impacts abortion practices, so it is largely a matter of conjecture. However, anecdotal evidence from those involved in the field indicates that the impact of Roe v. Wade, making abortions "legal", and therefore presumably easier, was to shift the date of abortions back to an earlier stage of pregnancy, especially to the first trimester. It has also shifted the practice away from lay abortionists to physicians and clinics, reducing the mortality of the women. There is also evidence that the increased rate of abortion has had a significant impact on the crime rate and psychotropic dependency, as the reduction of juvenile crime and drug addiction has tracked the reduction in unwanted births, to the extent we can get reliable data. Although abortion may not be beneficial for the fetus, it appears to be beneficial, on balance, for almost everyone else and on society as a whole.

I have made a good-faith effort to find any ways that government intervention has or could make the situation better. I have found some theoretical ways, but none that work in practice, other than providing contraceptives and training in their use, or putting young people under 24-hour supervision, such as keeping them in gender-segregated boarding schools. Even government suasion, such as waiting periods, counseling, etc., appears to be counterproductive. Reduced funding tends to shift terminations toward later stages of pregnancy, and increases the rate of mortality and morbidity among the women. Any responsible policy analysis of this or any other issue must consider all the costs and benefits, not just those that support a particular position. It is easy in this field for emotion to distort judgment, and we must always be on guard against this.

As for leaving the matter to the states, it does not work to allow each state to have a different definition of personhood, given that all the rights recognized, explicitly or implicitly, in the Constitution, attach to persons, other than the rights of citizenship (voting, holding office). All that any state would have to do to deny someone any right would be to change their definition of personhood to exclude that individual, as was done (inconsistently) to justify slavery. Now, as I have pointed out in previous posts, a state may protect things without declaring them to be persons, but not to the extent that it imposes an undue burden on the exercise of a right by a person. That only leaves the possibility of legislation requiring abortions to leave the fetus alive if not unduly burdensome on the woman, but as yet this is infeasible in practice.

People who come to the abortion issue from a religious standpoint have trouble accepting that "personhood" is a matter of convention. It is not something that is somehow defined by nature or scripture. It is defined by law and legal practice, and has to be, because it is only "persons" (legal roles) that can meaningfully be deemed to have legal rights, powers, and duties. Too many people try to confuse the issue by framing it in terms of "human life" or other such term, but that is not a proper legal term.

"Personhood" is a constitutional issue because the Constitution associates rights with "persons", as it would have to do. Not with "human life". For purpose of law, a "person" is a bundle of competences, including the competence to have interests and assert them as judicial questions in a court of law.

At the time the Constitution was ratified, the beginning of personhood was conventionally defined by birth, not conception, and the end by the cessation of signs of life, such as a heartbeat. That was done, in large part, because those were the ways that the bundle of competences could be ascertained, as a practical matter. Today medical science makes the points of beginning and ending less definite, but we are bound by the definition at the time of ratification of all legal terms in the Constitution, because if we allow subsequent opinions about meaning to be the basis for legal decisionmaking, there is no longer a "law" that can constrain government. To understand this problem, just consider that what the slave states were doing to maintain slavery was to redefine personhood to exclude blacks. They expressed it as a redefinition of "citizenship", ignoring that constitutional rights are attached to persons and not citizens, except for rights like the right to vote and hold public office. To change the definition of a constitutional term we have to formally amend the Constitution.

What the issue comes down to is that not every instance of something that can be called "human life" is a person, and a "person" is not necessarily a human. If a human female gave birth to an individual that had the DNA of a human but managed to express that DNA as a cocker spaniel, with all the capabilities and limitations of a cocker, and therefore not the competences of a person, the law would have to treat it as a nonperson. On the other hand, we already find corporate entities to exhibit the competences of personhood and treat it as a person. At some time in the future, we could have a robot, a space alien, or a chimpanzee genetically enhanced to be able to speak and reason like the average human, appear in court with a legal claim and the expectation of receiving redress of its grievances. A judge might dismiss the claim of a robot or a chimp, but if the space alien has a saucer hovering overhead with its beam weapons directed at the courthouse, one suspects he would find its personhood apparent.

So what it really comes down to is whether a being has a gun or the support of something with a gun, to defend its rights. Law and politics, in the end, respects power and the willingness to use it. That comes down to money and votes.

A constitutionally principled and competent position on abortion is that rights belong to legal persons, that in a court contest between a person and a nonperson the decision must favor the person, that at the time the Constitution was ratified personhood was defined by convention to begin at birth and not earlier, and that there is no consensus or sufficient support to amend the Constitution to change the definition, therefore we hold that while a state may encourage pregnant a woman to terminate a pregnancy in a way that allows the fetus to survive, this must not be done in a way that unduly burdens her right to do so.

A few points need to be emphasized:

Congress has no authority under the Constitution to define when or how personhood begins or ends. That was done by the ratifiers of the Constitution when they froze the prevailing definition as of the time of ratification, which was that it begins at birth (or even somewhat after birth, such as baptism, entry into the family Bible, or registration with the county recorder). If Congress had such a power the majority party could define members of the minority party as "unpersons" not entitled to rights or the protection of the law. As much as some people might like to legislate against abortion, violating the Constitution is not the way to act against it.

Denying funding is certainly constitutional, but removing jurisdiction from federal courts is not. This approach is based on the wrongful decision in Ex Parte McCardle, 74 U.S. 506 (Wall.) (1868). See the decision at http://www.constitution.org/ussc/074-506.htm and my commentary at http://www.constitution.org/ussc/074-506jr.htm . The Constitution only grants Congress authority to reassign jurisdiction between original and appellate, not to remove jurisdiction from all federal courts for certain issues. For any judicial issue there always has to be a court somewhere that can hear it, even if it is only the Supreme Court, and the Supreme Court always has at least appellate jurisdiction. Congress also has no authority to recognize the authority of the states to do anything, like some kind of license. The states do have the authority to protect the unborn in certain ways, just as they have the authority to protect trespassers from being summarily shot without due notice or an opportunity to leave peacefully. They could similarly require that, if it can be done without unduly burdening the right of the woman to terminate her pregnancy, the termination leave the fetus alive. That may not be medially feasible today in most cases, but with medical progress it may become possible. Some might like to punish women for getting pregnant irresponsibly by forcing them to carry to term, but as a matter of constitutional law we have to make more subtle decisions.

Passing a statute criminalizing abortion would merely drive it underground, as it was before Roe v. Wade, when it was difficult to get juries to convict. Statistical studies show that the rates of abortion are about the same regardless of whether it is legal or illegal. Like the prohibitions on alcohol and psychotropic substances, such laws are unenforceable in practice, and do more harm than good. Law is not some kind of magic. Passing a law against something is as likely to cause more of it than less. Some interventions are simply beyond the competence of government, and we need to recognize those limits and use other measures, like education and social pressure, to do what government can't.

A law is a command from those authorized to issue it to the members of the public body bound to obey it. To be a law it must continue to mean what it meant to the lawgiver when it was issued, to the extent that meaning can be discerned upon investigation. It is not a stretch to interpret "writings" to include all kinds of communication of information, or "arms" to include all the kinds of tools that might be used by military or militia to accomplish their proper missions (from ammunition to computers). "Mile" has essentially the same meaning. All we have done has been to adopt more precise measurement operations.

Now consider some other constitutional terms, such as "jury" or "due process", and posit extreme departures from original usage. Are we really free to redefine those terms? The U.S. Supreme Court sustained the power of a state to try a case with a jury of as few as six in Williams v. Florida, 399 US 78 (1970), but I regard that as a wrong decision, if the term in the Florida Constitution is considered to have the same meaning the term has in the U.S. Constitution, which can be presumed if it is not redefined in the Florida Constitution. But suppose "jury" were interpreted to be a single individual designated by the Party (as in Orwell)? Or suppose "due process" were interpreted to mean, as it did for the Queen of Hearts in Alice's Adventures in Wonderland, "Sentence first--verdict afterwards." http://www.gutenberg.org/files/19033/19033-h/19033-h.htm . The defenders of that interpretation might argue that it is "due" because it is uniformly applied to everyone, but I would argue that it unconstitutional because it does not provide the minimal level of protection of the rights of persons that was the standard when the Constitution was adopted.

Now we get to the term "person". Are we really free to redefine it by contemporary usage? The slave states tried to do that for blacks to maintain slavery, although they tried to do it using the term "citizen" rather than "person" and attaching rights to citizenship instead of personhood, which is contrary to the usage of those terms in the Constitution. Proponents of making abortion illegal might try to redefine the term to include more objects, but if we allow that we must also, logically, allow redefinition to include fewer. To allow states to each adopt their own definitions would be to allow them to define "person" to exclude humans of German descent, or perhaps members of the opposition political party, making it legal for any person to kill anything not a person. Be careful what you ask for.

We can detect the onset of brain activity. For most fetuses it is a sudden event that occurs at about the 145-day point. "Like a lightbulb", said one fetal neurologist. The idea of moving the commencement of personhood back to that point has been proposed, but it would require a constitutional amendment.

Suppose we only redefine the term "person" to begin at some point before birth. That would mean that if there were any reasonable suspicion that the woman might terminate the pregnancy, the court would have the duty to confine the woman under constant supervision of a guardian ad litem to deprive her of the opportunity to abort, and charge the woman or her spouse the costs of the court-appointed supervisor. If anyone has been following what has been happening in family courts recently, this is not an implausible scenario. Be careful what you ask for.

I remember the days when the "conservative" position was to support abortion as a way to reduce crime, thought to be increased by producing more unwanted children, a hypothesis that has recently been supported by research). The reality is that if there is not more of a consensus to make it a crime than we have in this country today, anti-abortion criminal laws would be unenforceable, as they were before Roe v. Wade. What we don't need is yet more unenforceable statutes.

Considering personhood to begin at birth may not be a perfect solution from all viewpoints, but we can reasonably maintain that it is the worst solution -- except for all the others.

It is not a stretch to interpret "person" to include android robots, animals enhanced to have humanlike intelligence and ability to speak, or space aliens, but to do that we would be invoking a bundle of competences that they have and a fetus does not. We are still stuck with the meaning of the term for humans in 1787 that personhood begins at birth (or somewhat after).

Southern slaveholders denied rights to blacks by essentially adopting legal definitions of personhood that were different from the definitions used in other states. They tried to do it using the term "citizen" when they meant "person". If they had known what they were doing they would have used "person" and the issue would be more clear. But now that people are coming to use the words with greater precision, once we open the way for the states to redefine it there is nothing to prevent a local majority to redefine it to exclude anyone they don't like. How would you like it if some day those without social security numbers were defined as "nonpersons" subject to being killed by anyone on sight, and some bureaucrat deleted your SSN from the system?

I wouldn't be surprised if half of all pregnant women have thought about terminating the pregnancy, and hinted that to someone, which would create reasonable suspicion, and trigger confinement and 24/7 supervision. Consider the figures from http://www.cdc.gov/mmwr/preview/mmwrhtml/ss5511a1.htm . You are probably looking at such draconian interventions for 1million women a year at a cost of $50,000 each, or $50 billion/year. Are you willing to pay taxes to do that? I suspect there would also be a cost from pregnant women assassinating the judges, supervisors, and other persons who tried to impose that kind of slavery on them.

Abortionists or even women acting alone have always been able to induce abortions throughout the gestation period without surgery, but at some risk. Surgery is safer but not necessary. Besides, long before Roe v. Wade juries were refusing to convict, especially when there was at least one woman on the jury.

There is no constitutional authority for the federal Congress to prohibit abortion, or any other medical procedure. The only constitutional federal crimes are treason, counterfeiting, piracy, felonies on the high seas, offenses against the laws of nations, enslavement, violations of rights by state agents, or impeding voting on certain grounds, such as race, gender, age 18 or above, nonpayment of a tax, etc. That's all. All those federal statutes prohibiting other things are unconstitutional. See http://www.constitution.org/col/02729_fed-usurp.htm .

Concerning whether the Supreme Court had jurisdiction to decide Roe v. Wade, the 14th Amendment is usually cited as having extended the jurisdiction of the federal courts to cases between a citizen and his state over a claim that the state denied a fundamental right of the citizen. That amendment was indeed intended to clarify the question of whether adoption of the Bill of Rights, except for the First Amendment, made such cases "federal questions" within the jurisdiction of federal courts. The decision in Barron v. Baltimore had been that they did not. I argue in my commentary on that case that it was wrongly decided. The 14th Amendment only clarified original meaning and understanding. It didn't change it.

The Constitution did not establish any mechanism other than that each and every person has to interpret and apply the Constitution himself, in any situation in which he might find himself, and may not relinquish the responsibility for doing that to supervisors, legal counsel, or even judges. If you read the opinion in Marbury v. Madison carefully, you will find that we are all on our own. One can say that this is a design flaw in the Constitution, but it is not. It is the only way a constitution can work, and if that is too much of a demand on citizens of a republic, then there is no constitutional design that can work, and a constitutional republic is impossible.

The founders adopted a system of constitutional republican government to surpass the limitations and defects of the old common law system, which incorporates nonconflicting parts of the common law, but established a completely new foundation on a historical act of ratification, not on custom, tradition, or precedent, except mainly to provide the definitions of key terms.

Opponents of abortion sometimes look for support to a quote from founder James Wilson, in Vol. 2 of his Works:

With consistency, beautiful and undeviating, human life, from its commencement to its close, is protected by the common law. In the contemplation of law, life begins when the infant is first able to stir in the womb.⁹⁸⁰ By the law, life is protected not only from immediate destruction, but from every degree of actual violence, and, in some cases, from every degree of danger.

980. 1. Bl. Com. 129.

However, that footnote 980 is to a passage in William Blackstone's Commentaries on the Laws of England:

I. The right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.6

1. Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law a soon as an infant is able to stir in the mother's womb. For if a woman is quick with child, and by a potion or otherwise, killeth it in her womb; or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the antient law homicide or manslaughter.o(6) But the modern law doth not look upon this offence in quite so atrocious a light, but merely as a heinous misdemesnor.^p

(6) But if the child be born alive, and afterwards die in consequence of the potion, or beating, it will be murder. 3. Inst. 50. But quere, how shall this be proved?

p 3 Inst. 50. q Stat. 12. Car. II. c. 24. r Stat. 10 and 11 W. III. c. 16.

So Blackstone's comment is in turn based on Edward Coke's Institutes (3 Inst. 50).

If a woman be quick with childe, and by a potion or otherwise killeth it in her wombe; or if a man beat her, whereby the childe dieth in her body, and she is delivered of a dead childe, this is a great misprision, and no murder: but if the childe be born alive, and dieth of the potion, battery or other cause, this is murder: for in law it is accounted a reasonable creature, in rerum natura, when it is born alive.

So it is not murder, because not yet a person, if the death occurs before natural birth. It is a common law misdemeanor, a "misprision", in which the woman, not the fetus, is the victim. It should be understood that in that time, it could be held a common law offense to assault oneself as well as another. That is the basis for laws against suicide.

However, common law crimes are forbidden by the constitutional prohibitions on ex post facto laws. See my comment on United States v. Hudson, 7 Cranch 32 (1812). The way is still open for a state to pass a law against abortion as an assault on the woman, but if she doesn't complain, we come back to Blackstone's "quere, how shall this be proved?"

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In response to those who call for overturning Roe v. Wade, it is worth asking what the effects of that would be. The issue in the case was not a statute making it a crime for a woman to have an abortion, but for a physician or other person to assist in it, although it was treated as though the pregnant woman were the party targeted with prosecution, which is why it was argued to be moot after the period of the pregnancy concluded. We have to consider the following:

1. There is little or no drive to make the woman a criminal. It would also be nearly impossible to get juries to convict, nullifying the statutes.
2. The lack of medical assistance is not going to prevent most abortions, just make them more dangerous. Do we really want to criminalize physicians trying to minimize the danger? Juries are unlikely to convict those as well.
3. Is it really good public policy to make abortions more difficult or expensive? That has never prevented them.
4. Is it really true that there are plenty of people willing to adopt unwanted pregnancies? Not kids from disadvantaged backgrounds. Not if the kids are brain damaged or sociopathic. I know of people who have adopted children with the ever more common oppositional defiance disorder (ODD) (presumably caused by the birth mother taking drugs) for whom managing the kids is a nightmare.
5. Is it really punishing the mother to make her care for the child? I know many who welcome more unwed babies for the welfare benefits. (Most of which eventually become criminals.)
6. Advocates in this field should not presume that all affected are prosperous middle-class persons. Abortion appears to be a major way to combat multi-generational poverty. Do we really want to be overrun by desperate delinquents?

Links:

1. Legal issues of Roe v. Wade, Daniel J. Castellano, 2009, 2011.
2. “Sua cuique persona?” A Note on the Fiction of Legal Personhood  ... , Jeanne Gaakeer, https://doi.org/10.1080/1535685X.2016.1232920
3. “An Artificial Being”: John Marshall And Corporate Personhood, Christopher J.Wolfe, Harvard Journal of Law& Public Policy [Vol.40]
4. The Handmaid's Tale, Margaret Atwood, 1985. Amazon, Hulu , Wikipedia .
5. Originalism does not support social conservative agenda https://constitutionalism.blogspot.com/2016/12/originalism-does-not-support-social.html