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Tuesday, May 23, 2006

Roy Moore To Scotus: Abortion Violates Equal Protection Clause

A major hat tip to Lee at Bama Blog (he is going to get my reporter of the year award) for this story. Roy Moore has filed an Amicus Brief in the Scotus case of Gonzales v. Carhart. That case is about the federal partial birth abortion act. So far both the district court and the 8th Circuit Court of Appeals have held it unconstitutional because it does not contain an exception for the health of the mother. Moore, as you might guess, is arguing that the act is constitutional. Not only that, he also argues that abortion violates the Fourteenth Amendment. According to Moore, every state is constitutionally required to prohibit the abortion of post-twenty week fetuses.

The brief begins by stating the obvious:

the words of this Constitution and the solemn oath thereto are still relevant today and should control, above all other competing powers and influences, the decisions of federal courts.

No doubt. The problem is defining those words and then applying the definitions to particular cases.

The problem is illustrated by Moore's brief in this case. Moore's argument will rely on the Equal Protection Clause of the Fourteenth Amendment, which states:

No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.

So does "person" include a fetus still developing in a woman's womb? Good luck finding an answer in "the words of this Constitution." In fact, Moore's brief does not find the answer in the Constitution, rather relying on state laws like Alabama's that declare a fetus a person for purposes of homicide prosecutions, and also on a quote from William Blackstone. But other textual and non-textual sources indicate a fetus is not a person. The same question arose in Roe v. Wade, this is the Court's response:

The Constitution does not define "person" in so many words. Section 1 of the Fourteenth Amendment contains three references to "person." The first, in defining "citizens," speaks of "persons born or naturalized in the United States." The word also appears both in the Due Process Clause and in the Equal Protection Clause. "Person" is used in other places in the Constitution: in the listing of qualifications for Representatives and Senators, Art. I, 2, cl. 2, and 3, cl. 3; in the Apportionment Clause, Art. I, 2, cl. 3; 53 in the Migration and Importation provision, Art. I, 9, cl. 1; in the Emolument Clause, Art. I, 9, cl. 8; in the Electors provisions, Art. II, 1, cl. 2, and the superseded cl. 3; in the provision outlining qualifications for the office of President, Art. II, 1, cl. 5; in the Extradition provisions, Art. IV, 2, cl. 2, and the superseded Fugitive Slave Clause 3; and in the Fifth, Twelfth, and Twenty-second Amendments, as well as in 2 and 3 of the Fourteenth Amendment. But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application. 54 [410 U.S. 113, 158]

All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word "person," as used in the Fourteenth Amendment, does not include the unborn. 55 This is in accord with the results reached in those few cases where the issue has been squarely presented. McGarvey v. Magee-Womens Hospital, 340 F. Supp. 751 (WD Pa. 1972); Byrn v. New York City Health & Hospitals Corp., 31 N. Y. 2d 194, 286 N. E. 2d 887 (1972), appeal docketed, No. 72-434; Abele v. Markle, 351 F. Supp. 224 (Conn. 1972), appeal docketed, No. 72-730. Cf. Cheaney v. State, ___ Ind., at ___, 285 N. E. 2d, at 270; Montana v. Rogers, 278 F.2d 68, 72 (CA7 1960), aff'd sub nom. Montana v. Kennedy, 366 U.S. 308 (1961); Keeler v. Superior Court, 2 Cal. 3d 619, 470 P.2d 617 (1970); State v. Dickinson, 28 [410 U.S. 113, 159] Ohio St. 2d 65, 275 N. E. 2d 599 (1971). Indeed, our decision in United States v. Vuitch, 402 U.S. 62 (1971), inferentially is to the same effect, for we there would not have indulged in statutory interpretation favorable to abortion in specified circumstances if the necessary consequence was the termination of life entitled to Fourteenth Amendment protection.

The point here is not that a fetus is (or is not) a person. The point is that constitutional decision making is more complicated than Moore wants us to believe. Deciding what the text means and how to apply it involves extra-textual sources. Cases making these decisions then guide future cases. That way Scotus does not have to re-invent the wheel with every case or controversy. Which is exactly what Moore's brief does in this case. As the quote from Roe indicates, that 'person' does not include the unborn is already settled law. Scotus has already heard both sides of the issue and settled on a meaning. Moore's argument is a re-tread.

Anyway, leaving aside methodological truisms, we get to the heart of Moore's argument.

because the persons subjected to the procedure of partial-birth abortion are living human beings, the states are denying the fetuses equal protection of the law under the Fourteenth Amendment by failing to protect them in the same manner the states protect other living human beings.

I do not think he is arguing that the constitutional duty to protect begins at conception. The brief goes on to state that 20 week old fetuses "are virtually the same as newborn infants." It makes no mention of anything younger. So, apparently, the duty arises at 20 weeks.

Now, the brief only argues that the Constitutional duty empowers Congress "to remedy this 'oppression of inequality' against these living human beings." But if Moore is correct - if beginning at 20 weeks fetuses are persons entitled by the Fourteenth Amendment to equal protection under the laws - then there is no need for federal legislation. The constitution itself would prohibit abortions of those fetuses. So long as states prohibit killing born children, they would also have to prohibit aborting fetuses after those fetuses reach 20 weeks.

Whatever you think about the persuasiveness of the argument, I think two things are true. First, it is nothing new. Scotus rejected it in Roe. Second, it's probably bad politics. I think many people would be fine with getting rid of Roe provided that left the issue to the states. Moore's argument, however, would largely take the states out of the equation. As does Roe it would take a debatable issue off the floor and impose an absolute rule. If that is the alternative, I think many moderate Roe opponents would become Roe supporters.