Roe and History of Abortion Law and Science

Consider these items:

1. "Quickening--the mother's sense of fetal movement--was the first reliable evidence that the child was alive, and the [common] law depended on it. Why did the English common law prohibit abortion [only] after quickening? Because there was no reliable evidence that there was an existing child, or that it was alive, before quickening. When medical science challenged the quickening rule in the 1800s by showing that conception was the beginning of the life of a human being, states quickly moved to repeal the quickening rule and replace it with an abortion prohibition from conception."
Forsythe, Abuse of Discretion at 108.


2. The original Hippocratic Oath, taken by doctors for centuries prior to Roe, said this: "I will give no deadly medicine to any one if asked, nor suggest any such counsel; and in like manner I will not give to a woman a pessary to procure an abortion."

My Article on Kermit Gosnell and Roe v. Wade

If you are looking for a summary of Roe, Casey & Gonzales for this week's discussion, my article on Gosnell, Roe & the masks of the law (assigned with a link) gives you a detailed summary on p. 143-154.

Gonzales v. Carhart

1. Notice that right off the bat Justice Kennedy and the Court employ a mask of the law by describing first trimester abortions being performed "most commonly by the physician vacuuming out the embryonic tissue." (p. 609)

2. But this case is not about first trimester suction abortions, it is about second and third trimester "partial birth" abortions. This requires you to understand the difference between "D & E" abortions and "intact D & E" abortions. The latter is the type of abortion sometimes referred to as "partial birth abortions."

What is the difference between the two methods of surgical abortion"

Here is how the Court describes "D & E" abortions, the "usual abortion method" during the second and third trimester:

After sufficient dilation the...doctor... inserts grasping forceps through the woman's cervix and into the uterus to grab the fetus. The doctor grips a fetal part with the forceps and pulls it back through the cervix and vagina, continuing to pull even after meeting resistance from the cervix. The friction causes the fetus to tear apart...A doctor may make 10 to 15 passes with the forceps to evacuate the fetus in its entirety." (p. 609)

Here is how the Court describes the "intact D & E" or partial birth procedure:

In an intact D & E procedure the doctor extracts the fetus in a way conducive to pulling out its entire body, instead of ripping it apart...Intact D & E usually involves piercing the fetul skull and evacuating its contents, however, because cervical dilation is insufficient to allow the fetus's head to pass once it becomes lodged in the cervix. P. 609 

Again, notice the mask used in describing the procedure. What does it mean to "evacuate the contents" of an unborn child's skull?

Here is a  nurse's more realistic description of the procedure as quoted by the Court in Gonzales:

Here is another description from a nurse who witnessed the same method performed on a 26^1/2-week fetus and who testified before the Senate Judiciary Committee:

“ ‘Dr. Haskell went in with forceps and grabbed the baby's legs and pulled them down into the birth canal. Then he delivered the baby's body and the arms—everything but the head. The doctor kept the head right inside the uterus ....

“ ‘The baby's little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck the scissors in the back of his head, and the baby's arms jerked out, like a startle reaction, like a flinch, like a baby does when he thinks he is going to fall.

“ ‘The doctor opened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby's brains out. Now the baby went completely limp ....

“ ‘He cut the umbilical cord and delivered the placenta. He threw the baby in a pan, along with the placenta and the instruments he had just used.’ ”  Gonzales, 550 U.S. at 138-139.

So the issue in Carhart is whether a law permitting the D & E procedure but prohibiting the intact D & E procedure imposes an undue burden on a woman's right to have a second trimester abortion?

To the extent that the law applies to post-viability issues, what is the issue under the doctrine of Roe & Casey?

3. Notice that the majority says that the issue is "whether the Act furthers the legitimate interest of the Government in protecting the life of the fetus that may become a child."  p. 610 [Another use of a mask]

Notice Justice Ginsburg believes that the law is completely irrational, because it does not save "a single fetus from destruction." (p.616) What is her point? Is there a counter-argument?

The Court says that the law is an attempt by Congress to "use its voice and its regulatory authority to show its profound respect for the life within the woman." (p. 612)  But again, Justice Ginsburg says stuff and nonsense--the Act simply says take the life in the womb by Method X but not by Method Y. How is that showing "profound respect" for life in the womb?

Maybe the real legitimate purpose is not the life of the unborn, but rather regulating the "integrity and ethics of the medical profession" by drawing a clear line between abortion and infanticide? (p. 612)

Is this consistent with Casey?

But if partial birth abortion of Baby Doe is similar to infanticide, why is a D & E abortion of the identical Baby Doe not similar to infanticide?

Nebraska Fetal Homicide Law

28-388. Act, how cited.

Sections 28-388 to 28-394 shall be known and may be cited as the Homicide of the Unborn Child Act.

28-389. Terms, defined.

For purposes of the Homicide of the Unborn Child Act, unless the context otherwise requires:

(1) Premeditation means a design formed to do something before it is done; and

(2) Unborn child means an individual member of the species Homo sapiens, at any stage of development in utero, who was alive at the time of the homicidal act and died as a result thereof whether before, during, or after birth.

28-390. Applicability of sections.

Sections 28-391 to 28-394 do not apply to an act or conduct causing or contributing to the death of an unborn child when the act or conduct is:

(1) Committed or engaged in by the mother of the unborn child;

(2) Any medical procedure performed with the consent of the mother; or

(3) Dispensing a drug or device in accordance with law or administering a drug or device prescribed in accordance with law.

28-391. Murder of an unborn child in the first degree; penalty.

(1) A person commits murder of an unborn child in the first degree if he or she in committing an act or engaging in conduct that causes the death of an unborn child, intends, with deliberate and premeditated malice, to kill the unborn child or the mother of the unborn child with knowledge of the pregnancy.

(2) Murder of an unborn child in the first degree is a Class IA felony.

28-392. Murder of an unborn child in the second degree; penalty.

(1) A person commits murder of an unborn child in the second degree if he or she, in committing an act or engaging in conduct that causes the death of an unborn child, intends, but without premeditation, to kill the unborn child or another.

(2) Murder of an unborn child in the second degree is a Class IB felony.

28-393. Manslaughter of an unborn child; penalty.

(1) A person commits manslaughter of an unborn child if he or she (a) kills an unborn child without malice upon a sudden quarrel with any person or (b) causes the death of an unborn child unintentionally while in the perpetration of or attempt to perpetrate any criminal assault, any sexual assault, arson, robbery, kidnapping, intentional child abuse, hijacking of any public or private means of transportation, or burglary.

(2) Manslaughter of an unborn child is a Class III felony.

28-394. Motor vehicle homicide of an unborn child; penalty.

(1) A person who causes the death of an unborn child unintentionally while engaged in the operation of a motor vehicle in violation of the law of the State of Nebraska or in violation of any city or village ordinance commits motor vehicle homicide of an unborn child.

(2) Except as provided in subsection (3) of this section, motor vehicle homicide of an unborn child is a Class I misdemeanor.

(3)(a) If the proximate cause of the death of an unborn child is the operation of a motor vehicle in violation of section 60-6,213 or 60-6,214, motor vehicle homicide of an unborn child is a Class IV felony.

(b) Except as provided in subdivision (3)(c) of this section, if the proximate cause of the death of an unborn child is the operation of a motor vehicle in violation of section 60-6,196 or 60-6,197.06, motor vehicle homicide of an unborn child is a Class IV felony and the court shall, as part of the judgment of conviction, order the person not to drive any motor vehicle for any purpose for a period of at least sixty days and not more than fifteen years after the date ordered by the court and shall order that the operator's license of such person be revoked for the same period. The revocation shall not run concurrently with any jail term imposed.

(c) If the proximate cause of the death of an unborn child is the operation of a motor vehicle in violation of section 60-6,196 or 60-6,197.06 and the defendant has a prior conviction for a violation of section 60-6,196 or a city or village ordinance enacted in conformance with section 60-6,196, motor vehicle homicide of an unborn child is a Class III felony and the court shall, as part of the judgment of conviction, order the person not to drive any motor vehicle for any purpose for a period of at least sixty days and not more than fifteen years after the date ordered by the court and shall order that the operator's license of such person be revoked for the same period. The revocation shall not run concurrently with any jail term imposed.

Justice Kennedy on The Rule of Law and Obergefell

Here is a report of some remarks Justice Kennedy recently made at Harvard Law School:

Justice Kennedy told students that public officials who object a law based on moral standing should resign from office rather than refuse to enforce it.

 The Supreme Court Justice also noted that it is mandated for government officials to "enforce a law that they believe is morally corrupt," even if they do face "difficult moral questions."

He continued, "The rule of law is that as a public official in performing your legal duties you are bound to enforce the law."

So what is the Rule of Law and how does it differ from The Rule of Men?

 Wikipedia defines Rule of Law:

The rule of law is the legal principle that law should govern a nation, as opposed to being governed by arbitrary decisions of individual government officials. It primarily refers to the influence and authority of law within society, particularly as a constraint upon behavior, including behavior of government officials.^[2] The phrase can be traced back to 16th century Britain, and in the following century the Scottish theologian Samuel Rutherford used the phrase in his argument against the divine right of kings.^[3] The rule of law was further popularized in the 19th century by British jurist A. V. Dicey. The concept, if not the phrase, was familiar to ancient philosophers such as Aristotle, who wrote "Law should govern".^[4]
Rule of law implies that every citizen is subject to the law, including law makers themselves. In this sense, it stands in contrast to an autocracy, collective leadership, dictatorship, or oligarchy where the rulers are held above the law. Lack of the rule of law can be found in both democracies and dictatorships, for example because of neglect or ignorance of the law, and the rule of law is more apt to decay if a government has insufficient corrective mechanisms for restoring it. Government based upon the rule of law is called nomocracy.

Is Obergerfell a case under the Rule of Law or the Law of Rulers?

Even if the result is a good one as many of you no doubt believe, is it ever good for the Court to rule 320 million citizens from the Bench? Do the ends justify the means?

Roe and "Sex Selection" Abortions

Under Roe, may the state prohibit abortions performed to terminate a pregnancy because of the gender of the unborn child? In other words, under Roe does a woman's right to choose an abortion include the right to abort for any reason she chooses, including the gender of the unborn child?

Consider this excerpt from an article in the Boston Globe:

Population experts have documented for years the use of abortion for sex selection in regions of the world where sons are more highly prized than daughters.
The problem is particularly acute in Asia, and especially in China and India, the world's two largest countries.
The natural sex ratio at birth is slightly male-biased at roughly 1.05-to-1, meaning that about 105 boys are born for every 100 girls. But in China the current ratio at birth is about 120 boys per 100 girls - and in more prosperous parts of the country, such as Guangdong and Hainan, the imbalance has reached an even more lopsided 135-to-100.
In India, census data from 2001 show that among children younger than 6, there are just 927 girls per 1,000 boys. There too, the greater the prosperity, the greater the discrepancy: In the high-income state of Punjab, notes Joseph D'Agostino of the Population Research Institute, there are only 793 girls for every 1,000 boys. He cites a report by UNICEF, which calculates that "7,000 fewer girls are now born in India each day than nature would dictate, and 10 million have been killed during pregnancy or just after in the past 20 years."
There is nothing new about the high cultural premium placed on sons in developing countries. What is relatively new is easy access to cheap ultrasound scans for determining the sex of an unborn child, and the availability of inexpensive abortions for parents who don't want a baby of the "wrong" sex.
Consider Vietnam, where a decade ago the sex ratio of newborns was a normal 1.04-to-1. Today, with the rise of ultrasound and abortion clinics, the number of newborn males has surged ahead of females.
"Vietnamese women who find they are carrying an unwanted female baby often head immediately to an abortion clinic," the Straits Times of Singapore reported last fall. "A walk-in abortion at a state hospital can be performed for $10, and at private clinics for about $20."
Most Americans rightly regard sex-selective abortions as odious; in a 2006 Zogby poll, an overwhelming 86 percent of Americans agreed that such abortions should be illegal.

Are sex selection abortions covered by Roe's abortion liberty? What arguments would you make both ways?

What about race selection abortions? Permissible under Roe?

Suppose a woman discovers that the child she is carrying is a Downs Syndrome baby. Is it permissible to abort a child because it has a disability?

Would a law prohibiting abortions performed because of the unborn child’s race, gender, or disability violate Roe and the abortion liberty? What are your best arguments both ways? Explain.

 

A Clash of Constitutions

Our Nation is very divided and this now includes what Prof. John O. McGinnis calls "a clash of constitutions."  I am not assigning this short article, but it is worth reading if you are interested in the heated debate over judicial nominations and the calls from some to "pack the Court" by incfesing the  number of seats on the Court.

Here is the link

 And here is a money quote:

The Senate hearing on the nomination of Amy Coney Barrett to the Supreme Court shows that we effectively have two different Constitutions today, because the interpretive methodologies of Democratic and Republican political actors diverge so dramatically. Republicans embrace originalism as a mode of interpretation. Democrats aspire to a method that bends the Constitution toward “the moral arc of the universe” where that arc traces the parabola of progressive politics.

 

Week of October 19 thru 23

For next week, read assignment 14 and part of assignment 15 (through Roe v. Wade):

Casebook p. 465-486: 536-544

 Casebook p. 583-594; Just skim my recent article, Kermit Gosnell's Babies: Abortion, Infanticide and Looking Beyond the Masks of the Law,  available at Digital Commons

 

Zoom Session:  Only one zoom session this week—Wednesday October 21 at 5 PM

 

Class Video Links

Video 20

 https://unl.box.com/s/c4ikuepyqz40wbl5j1po1vkeoiv6361y

Video 21 

https://unl.box.com/s/mp2k6pp0sr3o5nj81c09timomt8p9ndu

Video 22
https://unl.box.com/s/pw297krvbqqb2nptym1j3bq413d8vrve

 

 I will also show up for an optional Zoom Q & A session on Thursday October 22 @ 5 PM

 

Griswold: A Few Comments and Questions

                                     Justice Scalia's Rubber Stamp (photo by his son, Chris)

"Please don't emanate in the penumbras" --SCOTUS blog

For all its talk about penumbras and emanations, Griswold is a Substantive Due Process/Lochner-type decision in which the Court decided that "privacy in marriage" is a fundamental right protected by the Constitution. By the time it decides Roe, the Court frankly admits that SDP is the source of the non-constitutional, Constitutional right of privacy.

But privacy to do what? Do unmarried people have a right of "marital privacy" to use contraceptives? Yes, I guess that makes it non-marital, marital privacy! See Eisenstadt v. Baird, casebook at 583.

Does the Constitution allow "the police to search the sacred precincts of the marital bedroom" for illegal drugs, or guns, or other contraband? Of course, so long as they get a warrant or otherwise comply with the Fourth Amendment! I guess the marital bedroom is not so sacred after all!

Is the Griswold Court an "activist" Court?

Of course not-- Justice Douglas explicitly informed us that: "We [the Court] do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions." As the Bard might have said, "The lady doth protest too much, methinks." Whenever the Court feels compelled to deny it is being activist, that is a great marker of an activist decision that is about to follow.

By the way, this is not to say that "silly" state laws banning contraception are good policy. It is simply to recognize that these policy questions are left to state legislatures and state constitutions under the Tenth Amendment, not to the Supreme Court under the Written Constitution.

Not all bad laws are constitutionally prohibited; and not all good laws are constitutionally required.

Indeed, Justice had a rubber stamp that said : "STUPID BUT CONSTITUTIONAL."

Is Roe v. Wade an "Activist" Decision?

Here is a way to think about Roe v. Wade and whether it is an activist decision by the Supreme Court. Think about this—was there ever a time in American history when three-fourths of the States would have ratified a constitutional amendment proposing the abortion liberty as created by the Court in Roe? Ever?

If you can't imagine 38 states ever ratifying a constitutional doctrine such as the Court's abortion jurisprudence, what does that say about whether Roe is legitimate constitutional law?

Close Reading Papers

 Just to be clear, I cannot help you with the substance of your analysis on the close reading papers. I don't even want to know which case or article you have chosen to write on. I can help with general questions, but not with substance or questions about the particular case you are writing on. This is like a take home exam that you will write and I will grade anonymously.

Judge Barrett's Confirmation Hearings Begin Tomorrow

 I'm guessing C Span will have gavel to gavel coverage.  History (or Her-story) in the making.

Here is a transcript of her opening statement: Link

Week of October 12 Thru 16

 

Only one zoom session this week—Wednesday October  14 at 5 PM

  Class Video Links:

Video 17

https://unl.box.com/s/sr1b426gwqztuharu9edslrhvxed2bl2

Video 18

 https://unl.box.com/s/zdy3fp4jwoaed0afbny5asuh3s62q1hz

 Video 19 

 https://unl.box.com/s/75xujtd9w4syynpxm4awao5i860a0s2k

 

Zoom schedule:

 Wednesday October 14 @ 5 PM

12. Casebook p. 407-425; p.975-980

13. Casebook p. 426-463[We will focus on McDonald (p. 441-61]

 

I will also show up for an optional Zoom Q & A session on Thursday October 15 @ 5 PM

 

This is optional. It is not part of the required attendance policy. I will just be there to answer your question and discuss whatever you wish to discuss.