Death penalty proposal

[Larry Tribe]

Dawn Johnsen cites an intriguing case of which I had been unaware, but
Monmouth County doesn't alter the proposition that due process might
preclude putting a pregnant female prisoner under sentence of death to the
choice of either electing to undergo an abortion to which she might be
conscientiously opposed or completing her pregnancy and undergoing labor to
deliver a child which she would then have to abandon on the steps of the
execution chamber. Thus a federal law requiring states to give pregnant
women the option of postponing execution until they had given birth would be
considerably easier to defend as constitutional than would a blanket federal
ban on state execution of pregnant women -- on the assumption that some of
these women who would reject that option and choose to be executed while
still pregnant would find the alternative of having an abortion promptly
followed by execution deeply objectionable.

-----Original Message-----
From: Johnsen, Dawn Elizabeth [mailto:djohnsen at INDIANA.EDU]
Sent: Monday, July 31, 2000 2:54 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Death penalty proposal


The Third Circuit in 1987 (post-Harris) held that a prison policy denying
access to and funding for elective abortions violated both the Fourteenth
and Eighth Amendments.  Monmouth County Correctional Institutional Inmates
v. Lanzaro, 834 F.2d 326.

Dawn Johnsen

-----Original Message-----
From: Larry Tribe [mailto:larry at TRIBELAW.COM]
Sent: Saturday, July 29, 2000 9:26 AM
To: CONLAWPROF at LISTSERV.UCLA.EDU
Subject: Re: Death penalty proposal


Even if this isn't exactly a Sophie's Choice, I doubt that current law
supports what I take to be David Barron's premise that, because she is
incarcerated and at the state's mercy with respect to the medical procedures
she is free to arrange, a pregnant woman under sentence of death whose
execution has been stayed under a federal statute forbidding the execution
of any "pregnant person," cf. Geduldig v. Aiello, 417 U.S. 488, 498n.20
(1974), has some sort of right either to be furloughed from death row in
order to visit an abortion clinic so as to have her pregnancy terminated
medically there, or to have prison authorities pay for an abortionist to
visit the woman in death row so as to perform an abortion "in house,"
although I believe she would have a constitutional right to prevent the
state from interposing any "undue burden" to her having an abortion
performed in the prison if she were otherwise able privately to procure the
required medical assistance. Planned Parenthood of Pennsylvania v. Casey,
505 U.S. 833 (1992).

Neutral rules of general applicability barring the provision on death row
(and perhaps throughout a maximum-security prison) of any medical services
from outside, coupled with in-house provision of all "medically necessary"
services (but excluding supposedly "elective" procedures, including
non-therapeutic abortions), would pose a tougher case. And, even without
such rules, unless the condemned woman could afford to pay a doctor to come
to death row to perform an abortion or could find a doctor willing to do so
without charge, she would need to invoke a supposed right to have the state
furnish and pay a doctor to perform the procedure, and it is at that point
that her argument would run out of steam since the case would presumably be
governed by the background regime of Harris v. McRae, 448 U.S. 297 (1980),
denying any government obligation to fund even abortions that by any
definition are medically necessary simply because government has chosen to
fund childbirth procedures for the same set of women should they choose to
carry their pregnancies to term.

A prisoner's state-imposed incarceration no doubt makes the state
constitutionally responsible for some deprivations that in the "free world"
would be described as attributable to mere omissions, with the result that
such a prisoner, like anyone else who is involuntarily confined by the
state, "has a right to adequate food, shelter, clothing, and medical care,"
Youngberg v. Romeo, 457 U.S. 307, 315 (1982), and to a degree of personal
training related to these needs and to the need for "bodily safety and a
minimum of physical restraint," id. at 317, but the Court's insistence, even
with respect to the involuntarily confined, that "a State necessarily has
considerable discretion in determining the nature and scope of its
responsibilities," id., presumably translates into a conclusion that the
pregnant woman on death row has no more right (apart from what the eighth
amendment might confer via its incorporation into the fourteenth) to
affirmative state assistance in exercising her right to reproductive freedom
under Roe v. Wade, 110 U.S. 113 (1973), by quickly ending her pregnancy (so
as to avoid the fate of having to give birth and leave her child behind when
she is put to death) than she has a right to affirmative state assistance in
exercising her right to free speech by arranging for her to put her views
before a wide audience.

So it seems to follow that, unless the federal ban on state execution of
pregnant women is structured as an option for such women to stay their
executions until after they have given birth, such a ban would indeed
operate, at least for some significant subset of the pregnant women involved
-- those who would rather be executed without further delay than undergo
labor and leave a child behind, and who either could not arrange an abortion
on death row or would have conscientious objections to doing so -- as
compulsion to carry their pregnancies to term, which Roe and Casey mean
Congress could not impose consistent with the Due Process Clause of the
Fifth Amendment regardless of the theory (protecting fetuses, protecting
future persons, avoiding cruel punishment) underlying its invocation of Sec.
5 in doing so. --

Larry Tribe

-----Original Message-----
From: David Barron [mailto:dbarron at LAW.HARVARD.EDU]
Sent: Friday, July 28, 2000 3:29 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Death penalty proposal


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