Death penalty proposal

[David Barron]

i may have missed something, would not a stay simply permit the woman an
opportunity to choose whether to terminate the pregancy or not, so that a
prohibiton against imposing death on a pregnant woman would in no sense
compel anyone to carry a child to term -- assuming that is that a woman in
prison has an opprotunity to terminate a pregnancy (a distinct question,
but one i would think that a woman in prsion should prevail under). until
such time as the woman has eiyther given birth or terminated the pregnancy,
a ban on executions of pregnant women would apply.  after such time, it
would not appear to.

still, of course, there is the question of whether conferrng choice
produces more crulety in this setting than withdrawing them

At 02:54 PM 07/28/2000 -0400, you wrote:
>Both Mark Tushnet's observation on the cruelty of executing a pregnant
>woman, and the earlier comment by my colleague David Barron on that subject,
>have led me to wonder about the situation of a woman, in early pregnancy
>when her death warrant is signed, who is offered a stay of execution long
>enough to permit her to carry her pregnancy to term, to undergo normal
>childbirth, and only then to be put to death.
>
>Some women in that situation might welcome the opportunity to experience
>life in a pregnant condition, to become mothers, to see their babies
>successfully delivered and perhaps happily adopted, and only then to meet
>their appointed fates with lethal injections. But other women similarly
>situated might plausibly regard that scenario as hell on earth, and might
>think nothing crueler than to be tantalized with the possibility of
>motherhood only to be forced to undergo the pains of labor followed by the
>ignominy of execution knowing that the babies they are compelled to leave
>behind will grow up parentless, shamed by the knowledge that their mothers
>were put to death by the state, and likely shuffled from foster home to
>foster home.
>
>Even if Congress is given considerable latitude in defining constitutional
>concepts such as "cruel and unusual punishment" notwithstanding City of
>Boerne v. Flores, would it not be reasonable for the Court to hold that
>under no plausible definition could it be deemed a cruel and unusual
>punishment to grant such a pregnant inmate's urgent plea to be executed as
>soon as possible rather than to have the execution deferred until after she
>had given birth?
>
>At least if the congressional legislation recently approved by the House is
>cast as a mandatory delay until the pregnancy is over rather than as an
>entitlement to a pregnancy-linked stay at the woman's request (does anyone
>know which of the two it is?), it would seem to follow that it could not be
>defended as a Sec.5 measure to enforce the cruel and unusual punishment
>clause as incorporated against the states via Sec.1. (If it is, instead,
>only an entitlement to a stay at the woman's option, then little or nothing
>of this post is relevant.)
>
>Indeed, this analysis suggests a flaw in my own earlier suggestion that not
>even the City of Boerne approach should get in the way of a judicial
>decision, notwithstanding Roe v. Wade, to uphold the ban on state execution
>of pregnant women -- either on the theory that fetuses may be deemed
>"persons" except when the women carrying them opt for abortion, or on the
>theory that Congress is empowered to protect future persons by preventing
>the destruction of fetuses without so much as a hearing into whether they
>deserve to be destroyed along with the women carrying them who have been
>sentenced to death.
>
>The flaw as I now perceive it is that, when the women involved decide that
>they would rather terminate their pregnancies -- not through D&E or D&X or
>anything of the sort but simply as a side effect of their own scheduled
>executions -- than carry those pregnancies to the very end and give birth
>before being put to death, a governmental action to override that choice and
>to compel those women to carry their pregnancies to term before being
>executed, however rationalized, would seem to be the very thing that Roe,
>Casey, and Stenberg flatly forbid prior to fetal viability.
>
>After the point of viability, things obviously become different, but trying
>in this unique context to untangle the meaning of the mandated exception for
>the life or health of the mother -- complicated enough if one follows the
>debate in Stenberg between Justice Breyer, on the one hand, and Justices
>Kennedy and Thomas, on the other in circumstances where it is not the
>pregnancy that threatens the woman's life or health but the choice of one
>abortion method over another (presumably the choice of execution as a
>"method" of abortion is maximally dangerous to life and health!) -- is
>beyond the scope of the modest thought that this post was meant to implant.
>
>-- Larry Tribe
>
>-----Original Message-----
>From: Mark Tushnet [mailto:TUSHNET at WPGATE.LAW3.GEORGETOWN.EDU]
>Sent: Friday, July 28, 2000 8:15 AM
>To: CONLAWPROF at listserv.ucla.edu
>Subject: Re: Death penalty proposal
>
>
>Let's assume that the Court would itself hold that executing a pregnant
>woman violated the Constitution, relying in part on a strong historical
>tradition.  Cf. Ford v. Wainwright, holding it unconstitutional to execute a
>person so insane that s/he can't appreciate the significance of the action.
>(I don't see whether it matters whether the constitutional right violated is
>that of the woman or of the fetus, but maybe on reflection I'd find some
>significance in the distinction.)  What exactly does the federal statute
>then do?  Maybe there's more to it, but here's where I am on that question:
>Assuming that, for some reason, the Supreme Court denies review of the
>woman's/fetus's claim, the statute provides a remedy in federal court that
>would otherwise not be available under the current habeas corpus provisions,
>there being, by hypothesis, no dispositive Supreme Court decision on the
>question so that the state court's rejection of the claim could not be an
>unreasonable interpreta!
>tion of Supreme Court decisions.  (Although even here I think there's room
>to argue that denying the claim would be unreasonable under the Court's
>decision last Term, in which case the statute really wouldn't do anything.)
>And, to pick up Sandy's theme, which I take to support the Court's recent
>federalism forays, is there any reason at all to think that Rep. Lehtinen or
>anyone else thought that this was what Congress was about to do?
>
>Mark Tushnet
>Georgetown University Law Center
>600 New Jersey Ave. NW
>Washington, DC  20001
>     202-662-9106
>     202-662-9497 (fax)
>tushnet at law.georgetown.edu