Centerfield

If not an evolving concept of decency, what about expanding concepts of science?

I offer two related areas for discussion today, both turning on the litigation surrounding the Federal Partial-birth Abortion Act (FPBAA), 117 Stat. 1201.

One of the things that I find most baffling about the litigation is the strange unwillingness on the part of liberals to kick a conservative when he's down. Last month, when the Ninth Circuit handed down Planned Parenthood v. Gonzales, I complained that the point had been missed:

In reaffirming the Circuit Court's verdict, the panel entirely fails to even consider the question on which any action against FPBAA should turn: did Congress have the authority to enact this statute in the first place? Answer that question in the negative, and the entirety of the litigation thusfar is nullified; it becomes irrelevant whether the act places an undue burden, it becomes irrelevant whether the statute's terms are "unconstitutionally vague," and it becomes irrelevant whether it includes a health exception.

The Ninth Circuit was not alone in reaching its conclusions; on the same day that the Ninth Circuit handed down Planned Parenthood v. Gonzales, the Second Circuit weighed in (National Abortion Federation v. Gonzales), and shortly thereafter, the Eighth Circuit (Carhart v. Gonzales) got in on the game, too. On Tuesday, the Supreme Court granted cert in Carhart (not to be confused with Stenberg v. Carhart, about which you're going to read a lot in connection with this case, although not from me).

Yet one reads searches these three Courts of Appeals opinions in vain for the "F" word: federalism. It wasn't brought before the Courts in the challenges, and it wasn't raised sua sponte, even by the Ninth Circuit. Something strikes me as being odd in all this; come on, liberals - kick us conservatives where it hurts! The FPBAA is a free shot! We evil FedSoc types keep going on about the limits of the commerce clause power, about states rights, about federalism; well, here's your chance to ask us to prove it! Why not litigate on the premise that this law is ultra vires (which, after all, it is)? Why give Mean 'ol Nino an easy getout, a way to uphold the law by merely ruling on the specific challenge before him? Surely, this isn't just because liberals are afraid of what it would mean to get on the federalism boat. As Jonah Goldberg pointed out yesterday, liberals have (arguably) suddenly become fairweather friends of originalism now that it suits their purpose (over the NSA program, and, of course, in general where the second amendment is concerned), and once this moment passes and it ceases to be in their interest to have a frozen Constitution, they will once again demand its defrosting. If liberals are willing to jump off the boat and swim for shore in other areas, why would federalism be any different? Or am I just missing the point - regular readers will know that I'm reluctant to discuss whether a law is a good idea on a normative level until we've established whether or not its Constitutional in the first place, but liberals are not exactly known for their respect of the structural (as opposed to rights-bearing) sections of the Constitution, so perhaps they simply regard it as normal to approach this (as it appears to me) backwards?

So that's my first question for discussion today.

The second question is related, but a little more esoteric, a little more theoretical. At SCOTUSblog, I averred that the Fourteenth Amendment doesn't give Congress a free pass to regulate abortion:

On another blog a couple of days ago, someone (obviously pro-life) pointed out that the Constitution doesn't mention abortion or unborn children, but on the other hand, nor does it mention African Americans, Gypsies, Jews or Hispanics, and no-one would argue that they aren't protected. I sympathize, but the argument is just flat-out dumb. The Constitution may not mention any of those groups, but nor does it mention caucasians. The term used is "persons," and that term is expansive enough to cover anyone considered a person at the time of ratification, so In order to say that the unborn are protected by the Fourteenth Amendment, you must either a) demonstrate that the unborn were considered persons in 1868, or b) abandon originalism in favor of something else.

In rebuttal, another commenter, Ben Kennedy, wrote:

I believe that it is not difficult to contruct the case that the term "person" used around 1868 could include the unborn. Blackstone writes,

"The right of personal security consists in a person’s legal and uninterrupted enjoyment of life, his limbs, his body, his health, and his reputation. Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of the law as soon as an infant is able to stir in the mother’s womb ... An infant in ventre as mere, or in the mother’s womb, is supposed in law to be born for many purposes. It is capable of having a legacy, or a surrender of copyhold estate, made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born. And in this point the civil law agrees with ours."

What Blackstone didn't know was that a fetus "stirs" 22 days after conception when the heart starts beating.

Wow! How convenient would that be! I'm not sure how to feel about that. Aren't I in favor of a static constitution? Isn't this an evolutionary content argument? And don't I think all that "evolving standards of decency" mush is pretty risible stuff? Aren't I stuck with reject this?

But hang on a moment - is this an evolving content argument? Is this really the "evolving standards of decency"?

If I might rephrase Ben's point: if fœtal personhood was understood to occur at the time of quickening in 1868, and since that time, science has demonstrated that quickening in fact takes place earlier during pregnancy, does that change the balance of probabilities that the original meaning of persons extended to the unborn? I don't know the answer to that, but it's certainly an interesting point. I have to say that I remain sceptical, though, since this theory of quickening as the start of personhood goes back at least as far as Blackstone, yet laws criminalizing abortion in England and the United States did not begin to appear until decades after Blackstone, in the early 19th Century.

But in any instance, and this is my second question for discussion in this post: It's an intriguing point, though. Arguendo, if the original understanding of the Fourteenth Amendment could clearly be shown to be accepting of fœtal personhood at, say, six months, on the premise that this is when "quickening" takes place, and that this confers Congress power to regulate abortion after this time, but in the years since 1868, we have determined that quickening actually takes place earlier (this is totally wrong, but let's say it takes place at one month), does that mean that the original understanding permits Congress to regulate abortion after six months (the original understanding of the timeframe), or after one month (the original understanding of the event)? That isn't, after all, an evolving concept of decency, but the expansion of scientific knowledge; it is a factual, not subjective, inquiry. I've argued before that, even absent evolving content, the Eighth Amendment does prohibit certain punishments, even if they did not exist at the time of ratification (that is, even if it is not a "living constitution" in the sense that it grows and morphs, it is alive in the sense that it continues to apply to new and unforeseen circumstances; Roe may be invalid, but Kyllo is not, and don't even get me started on Trop); hence, I don't know what to think about this point.

So has Ben proved me wrong? Has he made a successful (albeit rather novel) originalist case for Congressional regulation of abortion? Or is this just a little too much like that marvellously seductive "evolving content" stuff that I disparage at every opportunity.

Two different - and quite broad - areas for discussion there.

Posted by Simon at February 24, 2006 10:22 AM