Health, Son

Ross Douthat wants to disputate about whether the unconstitutionality of abortion bans really does follow straightforwardly from the premise that a fetus lacks the legal status of a person:

But there are all sorts of laws that regulate "conduct that takes place inside the body of a right-bearing citizen" - particularly when another party (like, say, an abortionist) performs said conduct. For instance, we have laws against selling your organs, laws against prostitution, laws against assisted suicide, laws that prohibit the sale of drugs and restrict the sale of alcohol, and so on and so forth. Some of these may be bad laws, but it seems like quite a stretch to say that they're all unconstitutional.

To be sure. As I wrote in my original post, constitutional abortion regulations "would need to be a mother-regarding health-and-safety regulation of some sort which, in the nature of things, is going to leave abortions generally legal as long as they're being performed in a way that's unlikely to seriously injure the mother." That's the difference. The common thread tying together the sort of regulations Ross is citing here is a public health rationale. I don't think anyone would dispute the constitutional right of congress to prohibit or curtail the use of a genuinely dangerous abortion procedure -- regulations aimed at protecting the health of pregnant women. Abortion regulations that lack health exemptions, however, can hardly be said to be public health measures. Alternatively, one could try to see abortion bans as a kind of commercial regulation -- like a rule that you can't have a liquor store next to a school, or zoning in general. But I find it hard to see how this sort of rationale could support banning the provision of a class of medical services throughout an entire state or country.

What's more, anything along these lines would be offered in bad faith. Abortion opponents don't oppose abortion rights because they think such rights are bad for the health of pregnant women. Nor do they oppose legal abortion because they think it's bad land use policy. They oppose it because they think fetuses have moral rights that ought to be instantiated as legal rights. This, however, leads to the conclusion that courts should require abortion bans, just as the SCOTUS wouldn't let a state pass a law saying "murder is illegal unless the person you kill is over 73." Either way, it'll be decided by judges. That, for better and for worse, is the nature of the American constitutional system. A question of what does and does not count as a legal person is a question for the courts and issues of enormous consequence hinge on those decisions.

4/20/07 8:37AM del.icio.us this incoming links

Comments

What's more, anything along these lines would be offered in bad faith.

Are you kidding me? Ross is right. You're letting the side down.

Posted by: SomeCallMeTim on April 20, 2007 08:53 AM

I think that while there may or may not be a public health rationale for outlawing prostitution, the reasons it is in fact banned has much more to do with traditionalist views on women, money, and sex than any public health concerns.

Posted by: otto on April 20, 2007 09:08 AM

I think your premise that the legal person issue is an on/off switch is faulty. Killing a legal person is ok under a variety of situations, notably when that person has no chance to be viable without assistance or otherwise has very limited capacities. It is also permissable as a matter of law in executions, war, self-defense.

Posted by: Doug on April 20, 2007 09:23 AM

There are all manner of choices short of abortion that adversely affect the fetus, few of which ever go punished. Right to life advocates rarely if ever clamor for laws preventing pregnant women from consuming alcohol or smoking cigarettes. A multitude of medical studies have shown either behavior in even small doses will harm the fetus. If they're truly concerned for fetal viability and a successful, healthy birth why no lobbying for laws criminalizing smoking and drinking by pregnant women? Hmmmm, the tobacco and distillery industries are predominately southern ventures, aren't they? Might that be the "base" constituency of both the anti-abortion rights crowd and the Republican party? Putting pencil to paper could banning either and enforcing it rigidly knock a percent or two off the bottom line of these producers and distributors? One or two percent of a few hundred billion dollars is a major pile of cash. A big enough pile not to push for legislation in this area. We can spend hundreds of millions attempting to stamp out recreational use of marijauna by people of all ages and sex. Yet we show no institutional urge to protect the unborn from the harm of tobacco and alcohol bombardment in the womb. Right-to-lifers, where are you on this matter?

Posted by: steve duncan on April 20, 2007 09:23 AM

Otto's right. Many of the laws passed on what goes on inside a persons body are passed ultimately on moral grounds. Just look at the outright arbitrariness of many of these laws. There was a report that came out a few weeks ago (don't have time to search for it right now, but I think you even wrote about it) that found that alcohol and tobacco were two of the most dangerous drugs, much worse than others that'll land you in jail if you're caught with them. These may be bad laws, but they've been upheld as constitutional again and again.

And on that note, happy 4/20 everyone.

Posted by: Mac on April 20, 2007 09:29 AM

I love the final paragraph of this post. Its a great rationale for why this should be settled in the courts rather than the legislature, that I don't think I ever thought of before. I'll run it up the flagpole with a pro-life friend of mine, and see if he salutes.

Posted by: Jim W on April 20, 2007 09:30 AM

Re: "This, however, leads to the conclusion that courts should require abortion bans, just as the SCOTUS wouldn't let a state pass a law saying "murder is illegal unless the person you kill is over 73." "

On second thought, are you sure the SCOTUS would invalidate such a law?

Posted by: Jim W on April 20, 2007 09:33 AM

Jim,

Of course they'd invalidate that law. The majority's over 73 (or at least getting close to it). You'd vote against a law that says "murder is illegal unless the person you kill is named Jim", right?

Posted by: Mac on April 20, 2007 09:36 AM

I don't think it's necessarily the case that in order to enact laws which protect the fetus, it needs to be considered a legal person under the 14th amendment.

For instance, most states have laws against animal cruelty, many of which make it a felony. The use of animals in medical experiments is rather tightly regulated.

So the idea of laws which protect something we acknowledge to be alive, but not a legal person, isn't something unique to the abortion debate.

Posted by: TW Andrews on April 20, 2007 09:38 AM

What's bad faith got to do with anything?

I agree with this post overall but with an important caveat: accusations about bad faith on the part of pro-lifers doesn't really address their arguments as much as their personalities. How helpful is that? It's irrelevant whether or not this position is the ultimate goal of pro-lifers or even if it's consistent with the other positions they hold. Let's pay attention to the arguments pro and con, and not the characters invloved.

Posted by: berger on April 20, 2007 09:54 AM

One issue I don't see discussed much by either side in the abortion debate is that restrictive laws, be they either state or federal, really only affect the poor. The middle class & affluent will continue to be able to access abortion in other jurisdictions (here or abroad). I'm not suggesting that the laws are targeting the poor but that is the practical effect. I think this should give reason to pause and consider how we legislate the issue as SCOTUS unlocks Roe.

Posted by: Mark on April 20, 2007 09:59 AM

Well, generally I would agree with berger. However, on this issue, I'm one of the people who has always found the argument against judicial activism, and in favor of letting the legislatures fight it out, convincing.

I'm not a lawyer (thank God), so don't jump all over me for this. On the surface, it just sounds more reasonable. Therefore, even though I'm generally pro-abortion, I've been sympathetic to the argument that Roe should be overturned on constitutional grounds, and that its better to let democratic processes deal with it.

I'm sure that most diehard abortion opponents don't really care whether its the states or the SCOTUS that decides it, as long as abortion is prohibited. But, any argument that makes other people re-evaluate the whole SCOTUS vs. democratic institutions controversy seems worthwhile to me.

Posted by: Jim W on April 20, 2007 10:04 AM

But there are all sorts of laws that regulate "conduct that takes place inside the body of a right-bearing citizen" - particularly when another party (like, say, an abortionist) performs said conduct.

True ... but as MY points out, the issue isn't regulating abortionists in order to keep abortion safe or to prevent public health consequences, but to prohibit per se a medical operation. The closest thing is the ban even on medical marijuana, and that is of dubious constitutionality (and at least you can make an argument that the availability of something that can be traded inter-state makes the commerce clause applicable).

For instance, we have laws against selling your organs

Because this can be coercive. We should have laws against selling fetuses as well. But there are not laws that say you cannot donate an organ. Nor are there laws that say you must donate organs.

laws against prostitution

Of dubious constitutionality. You'd think the pro-"free market" GOoPers would also be trying to change these anyway, but ... hmmmm ... they aren't. Anyway, though, prostitution can spread disease (although that's more likely when it's illegal), so government has a reason to have a say here.

laws against assisted suicide

Fair enough -- it's too easy to get away with murder (pun intended) if you make assisted suicide legal.

laws that prohibit the sale of drugs and restrict the sale of alcohol, and so on and so forth.

But there are public health issues with drunk drivers and hopped up kids robbing 7/11s. The government has a legitimate interest here that it doesn't have in making safe methods of abortion illegal, even if one considers fetuses (feti?) to be people.

The question is how would SCOTUS rule on a law mandating blood donations? Obviously there is a slight difference between forcing someone to do something and preventing someone from doing something, but still, the operative issue is that being prohibited from having a fetus removed is a mandatory blood donation law. And if it causes, e.g., one of your kidneys to fail, it's tantamount to a kidney donation. Etc.

So how would SCOTUS rule on the Constitutionality of mandatory blood donation laws? On mandatory organ donation laws?

If these are un-Constitutional, so are abortion restrictions.

Posted by: DAS on April 20, 2007 10:06 AM

berger, "bad faith" isn't about personality, it's about legal justification. The way our legal system works, the reasoning behind a given law is relevant to its constitutionality.

I'm still not sure I'm convinced, but Matt's logic certainly makes sense. Yes, there are times when the government regulates what goes in people's bodies. Yes, there are times when laws are written without public health or commerce in mind. But those times don't seem to coincide. You can cite drug laws and prostitution, but the public health rationale for both those seems far less disingenuous than it would be for banning abortion procedures. "Good faith" is a matter of degree.

Posted by: Consumatopia on April 20, 2007 10:11 AM

(and at least you can make an argument that the availability of something that can be traded inter-state makes the commerce clause applicable).

DAS, this doesn't affect most of your post, but I think the commerce clause is a distraction here. Without a fourteenth amendment, Congress could use the commerce clause to screw with abortion, and the states wouldn't even need that rationale. The fourteenth amendment restricts both of those.

Posted by: Consumatopia on April 20, 2007 10:19 AM

Yeah, I'm going to echo the previous comments, and say that it's not an either/or, black/white picture.

Right now, I believe, many states have banned post-viability abortions. Applying Yglesias' logic, these statues would be either unconstitutional or, alternatively, constitutionally required. Obviously though, this is not the case. It's completely coherent to have a gray area where you say, maybe abortion in the first trimester is ok, but a viable fetus also ought to have some protections, even though it's still in the woman's body. This position is where the majority of people fall (myself included).

Posted by: Korha on April 20, 2007 10:20 AM

Doug + TW Andrews = all you need to know.

Whether or not the fetus can be defined as a human life has very little, if anything, to do with the Constitution.

Posted by: JP on April 20, 2007 11:07 AM

I wonder what would happen if a State only banned the killing of those under 72. Would it be an equal protection violation or something? I mean, MY seems to be under the impression that a State couldn't do this because it has a constitutional obligation to protect human life, but no State is obligated to have a murder statute.

Posted by: Steve on April 20, 2007 11:12 AM

Steve, that would probably fail the rational basis test.

Posted by: JP on April 20, 2007 11:14 AM

So banning anal sex would pass contitutional muster because it would serve to reduce AIDS transmission?

Posted by: Yancey Ward on April 20, 2007 11:52 AM

It sounds like MY is saying he believes in an absolute Constitutional right to an abortion. But why stop there? What's the difference between a fetus at 8 months 30 days and a newborn? They are both dependent on their mother for survival. One is inside her, one is not. So what? Why not have a Constitutional right to infanticide if a mother decides her baby is inconvenient?

Hopefully MY doesn't really believe there is a Constitutional right to abort an 8 month 30 day old fetus. Once you accept that the fetus deserves some protection prior to birth, where we draw the line becomes a fundamentally arbitrary decision.

Roe based the line on trimesters. Medical science has now advanced to make fetuses viable even earlier. Ultimately it makes more sense for society to decide where to draw lines like this through legislation rather than court decisions not just with abortion but with assisted suicide, vegetative states, etc.

If the Republicans win a few more Presidential elections and get to replace 2-3 more members of the Court, it is entirely conceivable we could get a U.S. Supreme Court that would not just overrule Roe but would in fact rule all abortions to be un-Constitutional. Relying on the courts for abortion rights is foolhardy.

Posted by: Ron on April 20, 2007 12:05 PM

Yeah, that hits the nail on the head. Whether or not personhood is a gray area (which I also believe) is a distraction--the core point is that in between the time when abortions are constitutional protected and the time when infanticide is pretty nearly constitutionally prohibited, there is a time in which the matter is left to the states. And that in-between time is built directly into Roe v. Wade.

Posted by: Consumatopia on April 20, 2007 12:10 PM

"So banning anal sex would pass contitutional muster because it would serve to reduce AIDS transmission?"

Posted by: Yancey Ward on April 20, 2007 11:52 AM
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
If nothing else it would relieve a lot of women from accusations of being an uptight prude.

Posted by: steve duncan on April 20, 2007 12:36 PM

I have serious doubts about the Supreme Court conferring full personhood on fetuses, even if Roe falls. I think the question of "when a fetus becomes a person" is existential enough for the Court to dodge the issue, which I imagine would be its preference, even if they have the votes to overrule Roe. I mean, it's possible - a radicalized Court could make the leap and call all fetuses full persons. But it's not like we're talking about an inevitable legal conclusion the Court would have to arrive at.

Posted by: owenz on April 20, 2007 12:39 PM

I think the mistake you are making (Matthew) is to overly prioritize "self-ownership/ bodily autonomy"; that part of several rationalistic moral systems, but it's not necessarily part of Constitutionally protected rights.

For comparison, the Constitution almost certainly intends to protect "property" to about the same degree as "liberty"; the Army amendments (13-15) do not really change that. However, that doesn't allow me to chain my dog in the yard and not feed it; there are lots and lots of legal prohibitions on what I can do with my property (that are "public morals" restrictions, such as animal cruelty laws; I'm not talking about "externality" restrictions, like zoning.)

Posted by: SamChevre on April 20, 2007 01:34 PM

What's the difference between a fetus at 8 months 30 days and a newborn? They are both dependent on their mother for survival.

Um, since when is a newborn automatically dependent on a mother for survival, given that other people can in fact feed, clean, clothe, and protect infants not their own?

Posted by: latts on April 20, 2007 01:49 PM

Re: "What's the difference between a fetus at 8 months 30 days and a newborn? They are both dependent on their mother for survival."

Anyway, who cares what the difference is? Its ludicrous to think its totally immoral to kill a newborn baby but perfectly ok to kill one that's a few hours from being born. That's just common sense.

Posted by: Jim W on April 20, 2007 01:59 PM

Ah, it's the "woman, what woman?" argument again.

Posted by: Noah on April 20, 2007 02:34 PM

Matt,

This is the kind of issue you should use your "philosophy student" hat for, not your "Democratic party hack" hat. Your logic is terrible, and I can't believe you can't see why.

Posted by: Pithlord on April 20, 2007 03:24 PM

MY posted:

"... This, however, leads to the conclusion that courts should require abortion bans, just as the SCOTUS wouldn't let a state pass a law saying "murder is illegal unless the person you kill is over 73". ..."

Suppose a state passed a law which treated a mother's killing of her just born baby as a lesser offence than murder. Are you sure SCOTUS would invalidate such a law?

Posted by: James B. Shearer on April 20, 2007 03:58 PM

Either way, it'll be decided by judges. That, for better and for worse, is the nature of the American constitutional system. A question of what does and does not count as a legal person is a question for the courts and issues of enormous consequence hinge on those decisions.

You're entirely wrong. These things don't have to be decided by the courts at all. A non-activist court would simply say there's no basis in the Constitution for determining whether or not a [zygote/first-trimester fetus/third-trimester fetus/one day old infant/senile old man] is or isn't a "legal person" and leave it up to the elected officials to, you know, pass laws that would clear it up for us. That way, we don't have 9 unelected jurists deciding our most heated policy questions. That is the nature of the American constitutional system.

Posted by: right on April 20, 2007 04:38 PM

Heh... something tells me that if there were 30+ Democratic state legislatures and a strongly Dem congress, but two more Bush appointees on the SCOTUS, we'd never hear another peep about 'judicial activism.'

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