What Is Our Listserv About? [H.R. 4292, The Born-Alive Infant s Protection Act]

[Larry Tribe]

As one who does not share what I take to be a number of Brad Clanton's
positions or views on many contentious issues, and as one who has been
absent from the list for most of the past several weeks, let me just add my
two cents worth on the question of Eugene's criteria and on the uses of the
list.

In brief, I'm glad Brad was and remains welcome to participate, and I
applaud the way Eugene has been administering the list, including his
willingness to open it to Brad and to others similarly situated across the
political and ideological spectrum, and I would be distressed at a rule
requiring non-members of the professoriate always to participate only in a
manner moderated by and filtered through listserv members. I take it the
same principle should apply to knowledgeable journalists as well, although
my sense has been that they have for some reason felt obliged to sit by as
silent observers.

To address the matter of politically charged or salient topics in
particular, I'd suggest that so much of the commentary on, for example, the
matter of Dick Cheney's state of "inhabitance" (and then the responsive
jibes about Hillary Clinton's state of "residence" -- or was that
inhabitance as well? I've forgotten and don't want to look it up at the
moment) was political in cast (and not always all that illuminating, at
least by my lights) that it seems to me late in the day, as well as somewhat
short-sighted and maybe even a mite narrow-minded and conceivably even
slightly result-oriented, for any of us to be objecting to the broadening of
the list to include constitutionally sophisticated public officials of
whatever political stripe. Any of us is free to disregard whatever threads
seem beside the point or unilluminating, but all of us can learn from the
occasional foray into the real world and the occasional volley from within
it.

Certainly the dialogue generated by Brad Clanton's inquiry about H.R. 4952
has surfaced (or could readily surface) enough interesting disagreements
about what, precisely, the core right announced in Roe and reaffirmed in
Casey encompasses -- including such questions as whether that right ever
survives termination of the unwanted pregnancy as such so as to include a
separate right to secure the death of the extracted and separated fetus;
whether a right to secure the death of such a fetus, assuming such a right
might sometimes exist, is analytically distinguishable from a right to
insist on discontinuing life support (ordinary or extraordinary) for it,
whether on the agreement of both the biological mother and the biological
father or at the insistence of the mother over the objection of the father
or at the insistence of the father over the objection of the mother; what
the bases for federal legislative jurisdiction over this matter are;
whether, in the absence of significant federal laws using the word "person"
as imagined by H.R. 4952, the proposed bill becomes largely an exercise in
symbolism designed to send a signal in opposition to what the Supreme Court
held in Stenberg v. Carhart; whether, if so, there is anything improper in
Congress's use of the legislative process for that sort of signal-sending
purpose; and so forth.

It isn't clear to me that another vehicle would have come along that would
be as likely to have generated this lively (and timely) a consideration of
these important questions, although many of us were, of course, aware of
H.R. 4952 and have been, as I was, asked to offer our views of it. (In my
own case, I declined to comment, contenting myself to pleading guilty to
being overcommitted on things like teaching full-time and doing faculty
committee work and writing recommendations for students seeking clerkships
and preparing a lecture to be delivered at Pepperdine this Sept.23 on the
Boy Scouts case and Troxel and other matters and preparing an argument to be
given in the court of federal claims in a case dealing takings without just
compensation this Oct.2 and finishing up a book manuscript for the Harvard
Press and spending time with my family and finishing two cert petitions and
a cert reply and an opp cert, all due in Oct., and tearing my hair (what's
left of it) out for letting myself get so busy.) But I'm not at all sure any
of us would have brought H.R. 4952 into our conversation on our own, and I
think we are better off for Brad Clanton having done so.

The same can be said of the PRPA and the issues it spawned in the listserv
discussions about the states as laboratories against the nationalizing
backdrop of the Marshall legacy on commerce clause matters -- a legacy that
surely survives even Lopez, Morrison, and a host of other developments that
will predictably stop short of resurrecting Hammer v. Daggenhart, a case
whose ugly name will doubtless help guarantee its permanent eclipse in our
constitutional galaxy.

Should the total volume of such real-world interactions as those about H.R.
4952 and PRPA, and the intellectual puzzles they tend uniquely to spin off,
begin to push the upper limit of the listserv's capacity in such a way as to
crowd out more purely disinterested and intellectually self-contained
inquiries, I would trust to Eugene's discretion to deal with the zero-sum
problem that would emerge and to come up with solutions that avoid the most
Draconian forms of triage.

-- Larry Tribe.

-----Original Message-----
From: Clanton, Brad [mailto:Brad.Clanton at MAIL.HOUSE.GOV]
Sent: Wednesday, September 27, 2000 10:54 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: What Is Our Listserv About? [H.R. 4292, The Born-Alive
Infant s Protection Act]


Let me first say that I appreciate the remarks regarding my participation in
this list.  I think the questions raised regarding my participation are
valid ones, and I appreciate the opportunity to participate.  The question I
raised regarding H.R. 4292 was certainly not designed to further any
partisan political purposes.  If I were looking for a "tool to exploit" for
political purposes, I can assure you I'd look someplace other than a
conlawprof listserve, as I don't expect to get a lot of exploitation done
here.  Instead, I think there are real, substantive legal issues here that
need fleshing out, and the posts thus far have confirmed that.

Now, back to that.  Mark C. Alexander criticized me for, among other things,
telling the list "that a listserv member does not understand the law,
effectively by quoting a doctor's testimony."  As someone who has spent the
last, say, three or four months researching and writing on both the
constitutional and medical/legal issues raised by this bill, I think I am
somewhat qualified to speak on the subject.  And based on that research it
just seems to me that, at least with respect to the issue we were
discussing, the list serve member I was responding to either mispoke or was
conflating two distinct legal issues.

Let me explain.  The particular point I was responding to was the assertion
that defining when a "live birth" occurs, as H.R. 4292 does, somehow affects
the legal standard of care owed to an infant who is born prematurely or
survives an abortion.  And that is just not so.  As I stated previously, the
definition of live birth in this statute was promulgated by the World Health
Organization in 1950, and has been codified in at least 35 states.  It's a
well-established legal definition of "live birth."  My point in quoting the
doctor's testimony was simply to illustrate that this is old hat for folks
who practice this type of medicine.  They know this is the law and has been
for years.  That's why they issue these babies birth certificates and death
certificates.  They all know these premature babies they are dealing with
are persons (at least outside of the abortion context).  But the fact that
you are dealing with a person doesn't tell you what standard of care is owed
that person, any more than knowing that an elderly person or any other
person at the threshold of death is a person affects the standard of care.
That question is one of medical futility.  When life support is removed from
someone it's not because those responsible for him or her decided it was not
a person they were dealing with.  It's because the treatment would be
futile.  So too with these infants.

So there is simply no issue raised by this bill regarding the standard of
care owed to infants who survive abortions.  The same people who make
decisions about whether to provide life sustaining treatment will still make
those decisions, and this bill won't affect that in the least.  The real
question needs to be addressed (and that's the one I was raising) was the
one raised by NARAL:  do Roe/Casey & Co. somehow affect the application of
the well-established born alive principle as it is implicated by the infant
who survives an abortion?  One last thing:  the bill passed the House last
night by a vote of 380 to 15.

Brad Clanton
Counsel
House Judiciary Committee
Constitution Subcommittee
362 Ford House Office Building
Washington, D.C. 20515
202.226.7685 (phone)
202.225.3746 (fax)


-----Original Message-----
From: Mark C. Alexander [mailto:alexanma at SHU.EDU]
Sent: Tuesday, September 26, 2000 3:42 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: What Is Our Listserv About? [H.R. 4292, The Born-Alive
Infants Protection Act]


I am very concerned with the way this thread has proceeded.  It started
with an inquiry from a staff member of the House of Representatives
(Clanton), apparently seeking to respond to (or rebut) a political
organization's (NARAL) interpretation of legislation.  From this bad start,
it has degenerated in a couple of places.  First  was the moralizing
concern that was addressed, and which I shall leave alone in this post.
Second, Clanton told us that a listserv member does not understand the law,
effectively by quoting a doctor's testimony.  (I shall refrain from
dissecting that particular post).

My big concern is that our listserv is looking a whole lot like a tool for
political purposes of the majority in the House of Representatives.  We are
now talking a whole lot about politics, often to the exclusion of our
foundation of being (primarily) Con Law professors.  This is not about my
differences with the Republican party; I object to Congressional staff
members using this listserv for partisan purposes, regardless of party
affiliation.   I have had extensive experience working on Capitol Hill, in
Presidential politics, and as an elected official: I will not shy away from
political discourse.   But I think we as a group need to explore what the
purposes are of the listserv.  If it does include this kind of thread and
the comments we have seen, so be it.  But given earlier related
discussions, I am not sure that we are where we are supposed to be.

Mark C. Alexander
Associate Professor
Seton Hall University School of Law
One Newark Center
Newark, NJ 07102
973-642-8523
973-642-8194 (fax)
alexanma at shu.edu