Religious Views vs. Secular Views

Sat Oct 8 11:20:12 PDT 2005

I'm not sure I follow the logic of Rick's and (apparently John's) first
approach, below. If the court is saying there is no liberty interest that
protects "violently taking the life of a living human being in the womb" how
is that not, implicitly if not explicitly, a determination that a fetus is a
person and thus protected by the Fourteenth Amendment? 

I'm not sure I see the distinction between a "living human being" and a
"person" as anything other than a fairly unconvincing example of legal hair
splitting (particularly in light of case law that says a corporation, which
is neither living nor a human, is a person within the Fourteenth Amendment).

If a "living human being" is not a "legal person," we have serious problems
with the meaning of legal personhood (I can see some interesting problems
with right to die cases raised by this sort of distinction, just when and
how does one shift from being a legal person with a right to life to a
living human being without the right to life?). And I have to say, if I
believed that life began at conception, I would not accept the logic that
allowed the states to decide, one by one, whether they wished to outlaw
abortion.

And I am also not sure I understand the grounds used to deny the liberty
interest in this case, if not on the grounds that the abortion that harms "a
living human being" deprives a "person" of a right to life. Or, to put it
another way, if the argument is that the woman does not have a liberty
interest that extends to abortion (not because a person is being aborted,
but because of something else), what is that something else?  Is it that the
act is violent? I grant you that we do not obviously have a liberty interest
in acting violently, but presumably the emphasis on violence means we can
(perhaps must?) allow abortions at any stage of the pregnancy, if we come up
with a manner that is sufficiently non-violent (the abortion equivalent of
lethal injection). 

Or is the idea in possibility number one below that a woman does not have
the ability to make judgments that deprive another living thing of life?
Surely not, we all of us, male and female, young and old, kill living
things, or make judgments that require someone else to kill living things
for us, with some regularity -- plants, pets, animals, etc. So unless this
is an argument against the destruction of any form of life, an argument that
would quickly become a defense of pacifism and total vegetarianism, there
has to be some other justification involved here that I am not seeing.

Elizabeth Dale 

Associate Professor, US Legal History, Department of History, 
Affiliate Professor of Legal History, Levin College of Law 

University of Florida 
PO Box 17320 
Gainesville, Florida 32611 

edale at history.ufl.edu 
http://plaza.ufl.edu/edale 
352-393-0271 ex 262 

  _____  

From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of JFN
Sent: Friday, October 07, 2005 10:38 PM
To: Rick Duncan; CONLAWPROF at lists.ucla.edu
Subject: Re: Religious Views vs. Secular Views

At 9:08 AM -0700 10/7/05, Rick Duncan wrote:

One further point on this secular/religious/legal personhood question.

There are two ways to overrule Roe, one going much further than the other.

One way, is to say that SDP, whatever it might extend to, does not include a
liberty to violently take the life of a living human being in the womb. This
approach does not require the Court to hold that the fetus is a person under
the 14th. All the Court need do is deny that an abortion liberty exists, and
this would send the issue back to state legislatures and Congress to decide
whether to prohibit abortion. Most social conservatives (including, perhaps,
Miers) would take this approach to reversing Roe.

There are social liberals (including me) who would agree, and welcome the
return of state regulation and our political right to decide whether it's a
medical procedure or a violent crime. Abortions would remain available in
New York and bus tickets would remain available in Mississippi.

The second approach is to say that not only is there no SDP liberty to
abort, but what is more the fetus is a  constitutional "person" whose equal
right to life is explicitly protecetd by the 14th Amendment. This would be a
way to constitutionalize the right to life and require states to protect the
unborn from violent death in abortion clinics. I would go this way, myself,
and I would get there through a secular process of giving the status of
legal personhood an inclusive interpretation.

What would equal protection of the unborn person entail? Let's suppose that
equal protection requires the treatment of abortion as felony murder. The
partial birth abortion law that caps the punishment of the doctor at 2 years
imprisonment, absolves the mother of complicity, and allows an exception to
protect the life of the mother, plainly denies equal protection as against
the law that deters the contract killing of a 5 year-old with the possible
execution of both contractor and killer. But as you frame it -- "to protect
the unborn from violent death" -- the right is as fundamental as it can be,
and abortion is premeditated murder, and we won't have to lock up any
mothers because we will have deterred the doctors, and the rich will still
have access to abortions in Canada.

But doesn't equal protection require that the state protect the unborn child
against more than just premeditated murder? When a mother's behavior
threatens the life of her 5 year-old child, the state terminates custody and
assumes the duty to sustain life. In the case of an unborn child, doesn't
equal protection require the state to not only recognize a legal obligation
to sustain the unborn life, but to impose that duty upon an unwilling woman,
and to regulate her behavior to enforce it? A drunk presents a more
immediate and provable threat to the physical health and welfare of her
unborn child than to the children who learn to cope with her psychological
abuse.

I don't know how you would define the scope of the unborn person's right to
life, but I expect that neither of us would be happy after the Supreme Court
swapped the invented SDP right to an abortion for the unborn child's
textually more plausible EP right to life, and then began legislating its
contours on review of state pregnancy regulations -- according to trimesters
perhaps.

John Noble

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