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Monday, July 2, 2018


My son, Professor Tobias Barrington Wolff, who knows about this stuff and teaches Constitutoinal Law, posted this comment on FaceBook.  It is chilling.

"Concerning the prospect of Roe v. Wade and Casey being overruled:
The unexamined premise in these conversations always seems to be that overruling Roe would "return the issue to the States" such that the ability of women to decide whether to continue or terminate a pregnancy would depend on local sentiment. That is not necessarily the case.
If a hostile Court overrules Roe simply by saying that there is no right to individual autonomy under the Constitution that protects reproductive choice -- that the Constitution has nothing to say about the matter -- then yes, the issue would be decided by state law (assuming Congress did not enact a national ban on abortion).
But there is another direction the Court could go in overruling Roe. Advocates who seek to eliminate abortion rights often argue that the developing fetus is a "person" from the moment of conception for purposes of the Constitution. Many States that are hostile to abortion have considered "personhood" laws that declare fetal personhood from conception.
If the Supreme Court were to adopt this proposition -- which it expressly rejected in Roe -- and hold that the term "person" in the Constitution includes the developing fetus, then the next step would be for advocates to argue that it is unconstitutional for States to allow abortion. The argument would sound in equal protection. Murder laws in the United States prohibit the killing of persons. But if a developing fetus is a "person" within the meaning of the Constitution, and murder laws do not prohibit abortion, then those laws are making it illegal to kill some persons while allowing the killing of other persons. This, the argument would go, is a grave violation of the Equal Protection Clause and its command that a State may not "deny to any person within its jurisdiction the equal protection of the laws."
This is not a fanciful prospect. This argument is a foundation of anti-abortion advocacy, and it came up during the oral argument in Roe v. Wade, where Justice Potter Stewart (who voted with the majority in Roe) pointed out that a holding that the fetus is a "person" would necessarily mean that the issue cannot be left up to the States at all.
When the Supreme Court ruled last week that the First Amendment prohibits states from imposing agency fee requirements on non-union members, it took an issue that had previous been left up to the States -- with anti-union forces pushing against those requirements under the heading of so-called "right to work" advocacy -- and used the Constitution to nationalize the issue. In the process, it overruled a 42-year-old precedent that had been a mainstay of First Amendment doctrine in this area and, as Justice Kagan pointed out in her dissent, had been working well. Once again, this is not a fanciful prospect.
When we talk about reproductive rights and access to safe, legal abortion being at risk, the risk is not merely that access might vary from State to State. The risk is that the Court could decide to use the Constitution to nationalize the issue in the other direction."


Carl said...

This is an extremely fanciful prospect.

David said...

I highly recommend Corey Brettschneider's "Gorsuch, Abortion and the Concept of Personhood":

Dean said...

I simply cannot get the abortion debate. Nor do I want to pursue it here. I'm being "meta," enough said, or so I hope. The prospect that "person" ("man, woman, or child") might possibly mean embryo or fetus, i.e., non-person, is mind-boggling. "Person" might just as well mean "little red wagon." And thus any legal act declaring anything other than a person a person must fail even the mildest legal standard demanding a mere whiff of reasonableness. What am I missing?

MS said...

As a retired attorney, I can affirm that your son is absolutely correct and the prospect of the Court ruling that a foetus is a person, and therefore protected under the 14th Amendment, is not fanciful. I can see Justices Thomas, Alito and Gorsuch voting in favor of such a ruling. Roberts is now considered the swing vote on whether Rove v. Wade gets overturned. The concept of what constitutes a "person" under the 14th Amendment has already been stretched beyond reason and was the mainstay of the Court's decision in Citizens United, where the Court reaffirmed precedent that held that corporations are "persons" under the 14th Amendment and therefore protected by freedom of speech under the First Amendment. The next premise for the argument is that the expenditure of political donations constitutes speech. For an explanation of how the Court can stretch the meaning of words to include corporations as "persons" and political expenditures as constituting "speech," you would have to ask Wittgentstein.

Regarding the Court's horrible decision in Janus vs. AFSCME, overruling precedent allowing states to require non-union public employees to pay fair share fees to the union, I was hoping that the attorneys arguing in favor of the unions would invoke the concept of an unconstitutional "taking." The "taking" doctrine relates to the power of eminent domain, whereby the government can confiscate private property to serve a public good. To do so, the government entity is required to pay fair compensation for the confiscation. The failure to do so constitutes an unlawful "taking." Unions are required by law to fairly represent all employees in the bargaining unit, even those who do not belong to the union. This is referred to as "the duty of fair representation." Unions can be sued for damages if, for example, a nun-union employee who has filed a grievance against the employer argues that the union failed to defend him/her vigorously during the grievance proceedings and contends that the union lost the grievance because of its dereliction of this duty. So, now under the Janus decision, public service unions, and their personnel, are still required to expend time and money to fairly represent non-union members who refuse to pay union dues. This, I would submit, is an unconstitutional "taking" - the services of the union's personnel constitutes property (there is precedent to equate services with property), for which the union is not being compensated. I do not know if this argument was advanced by the attorneys, but I believe it is a valid argument. More valid than the Court's ruling that the requirement that the employees pay fair share fees constitutes "compelled speech," in violation of the First Amendment.

David Palmeter said...

Charles Lane has a very interesting column in today's Post:

marcel proust said...

When a person dies, isn't it legally required in most jusrisdictions in the US that a death certificate be issued? So, even ignoring Costa Rican type horrors of jailing (mostly poor) women for miscarriages (because of suspicions of abortion), wouldn't this bring us to Ceausescu-levels of invasive monitoring of women's fertility to identify conception? At the least, wouldn't women between menarche and the end of menopause have to be take fertility tests during the census to get an accurate count? How would the IRS be able to ascertain if woman or families are accurately counting children for dependent status? Would the SSA have to issue SSNs for every conception? Would women, both US citizens and foreigners, have to have a passport for their fetus if they enter the country when pregnant? The practical problems of this change are overwhelming.

On a related note: corporate personhood. Given that the court has given corporations full legal status as persons (I think that's that implication of the most recent rulings around the first amendment), (a) should they be counted in the census, and (b) how can they be denied the right to vote?

Utopian Yuri said...

Continuing in marcel proust's vein: if money is speech, aren't state laws restricting access to property (such as criminalization of making use of another's property) suspect as unconstitutional interference with speech?