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Law Prof Compares Definition of 'Person' in Roe v. Wade With Older Ruling That a Negro Isn't a 'Person'

Tells Harvard Students that Supreme Court Rulings Make Partial Birth Abortion Ban Pointless

By Ed Oliver
February 13, 2003

Speaking to Harvard students recently on the topic of "Thirty Years of Roe vs. Wade," Professor of Constitutional Law Dwight Duncan said that a key question at the oral argument of the case was whether the fetus is a person. If it is, its Constitutional rights would be protected.

However, the court said a fetus was not a person within the meaning of the Fourteenth Amendment, which says a person shall not be deprived of life, liberty or property without due process of law.



Professor of Constitutional Law Dwight Duncan

There was no evidence, said the court, that the framers had unborn children in mind as Constitutional persons.

Prof. Duncan said the court opined that the only "persons" they could consider were women who were interested in getting abortions. It was their liberty that was at issue.

The Supreme Court used this reasoning at least once before, said Duncan, and that was in the 1857 Dred Scott decision that challenged the federal law prohibiting slavery in the territories.

In that case, the Court held that Dred Scott, a slave who sued for his freedom after entering free territory, was not a "person" in the meaning of the Fifth Amendment. Since he was not a person, he could not be heard.

The only party that could be heard was Mr. Sanford, his slave owner. Sanford's rights of private property in Mr. Scott were ruled to be protected by the Constitution. Both Congress and state governments were powerless to prohibit or limit slavery.

"It makes cases easy to resolve if you can decide that one side in a case is not a person," said Duncan.

Should Have Considered if Abortion Is Included in 'Liberty'

It would have been interesting if the Supreme Court in Roe vs. Wade had considered if abortion was included within the meaning of "liberty" within the Fourteenth Amendment, said Duncan.

That's because when the Fourteenth Amendment was enacted in 1868, almost all the states had laws prohibiting abortion.

"The contemporary understanding was, obviously, that liberty did not include the right to kill your unborn child," said Duncan. The Supreme Court would have ruled the opposite way in Roe vs. Wade if they had approached the Fourteenth Amendment from that perspective," he said.

Arbitrary And Deceptive

There are a lot of other arbitrary and deceptive things about Roe vs. Wade, said Duncan. For example, the Court said that philosophers and theologians and scientists and doctors couldn't agree when life begins, so far be it for the Court to speculate as to an answer. After staking out an agnostic position, the Court then proceeded to lay out their ruling as though there was an understanding that a child becomes a person, under Constitutional law, only after birth.

Revisionist History

In Roe vs. Wade, Justice Blackmun wrote at length about the history of abortion regulation in his majority opinion and said that the common law did not punish abortion centuries ago.

Prof. Duncan said that is misleading because back then abortion was considered a morals offense like sodomy and was handled in canon law and by church courts. Wills were even handled under church jurisdiction.

Health Exception Loophole

Prof. Duncan explained that Roe vs. Wade divided pregnancy into three trimesters:

In the first trimester, no regulation of abortion was allowed. It was basically a free, abortion pass.

In the second trimester, regulation was only allowed in the interest of a woman's health, such as state requirements that only licensed clinics or physicians could perform abortions.

In the third trimester, a time when a fetus is viable, the court said the state could regulate or prohibit abortion in the interest of protecting the potential life of the fetus. However, there was a qualification, which said, "provided a woman's life or health is not adversely affected."

This exception didn't seem to be unreasonable, said Duncan. The big problem is the 'health' exception and how that is understood.

The companion case of Doe vs. Bolton contained a life and health exception, but the health exception was limited to physical health. In Roe vs. Wade, however, the court said that was inadequate. They said the health exception had to encompass physical, emotional, psychological, familial and the woman's age.

"Once you understand health so broadly, " said Duncan, "that basically means any woman who wants an abortion gets an abortion. She can always claim she'll be emotionally troubled if she doesn't get what she wants, and she finds a doctor to go along with it."

The health exception is understood so broadly, said Duncan, that the claim that states can prohibit abortion in the third trimester is farcical. "It's false, it's deceptive advertising on the part of the Supreme Court," he said.

One demonstration that the health exception was deceptive advertising, said Duncan, was when Chief Justice Burger signed on to the majority opinion. He wrote a concurrence saying that it was his understanding that the Court was not endorsing abortion on demand. Before he resigned, however, Burger found himself in dissent on abortion cases because he found that, in fact, Roe vs. Wade did mean abortion on demand.

Challenged in 1992

In 1992 there was a major challenge to Roe vs. Wade in a case called Planned Parenthood vs. Casey. The Court, in a 6 to 3 vote, reaffirmed what it called the "essential holding of Roe," which was that states could regulate abortion, as long as the regulation did not unduly burden a woman's choice to get an abortion.

Duncan said that case got rid of the rigid trimester scheme of Roe vs. Wade, but basically articulated the same rule as Roe as far as the third trimester is concerned. That is, states could regulate or prohibit abortion except when a woman's life or health are in danger.

The court upheld in Casey an informed consent, 24-hour waiting requirement and parental consent provisions, as long as there is a judicial bypass, as well as certain reporting provisions.

The Court in Casey held as unconstitutional, however, a provision that required spousal notification. "This was a notification provision, not a consent provision," said Duncan, "It is not as if she had to get the husband's okay."

Partial Birth Abortion

Nebraska was one of about thirty states that prohibited a particular type of late term abortion procedure called D & X, or partial birth abortion. In a challenge to Nebraska's law, the Supreme Court declared this ban on partial birth abortion to be unconstitutional on two grounds:

One was it didn't contain an exception for the woman's health in spite of the fact that briefs by the AMA, etc. said there is never a medical reason for a partial birth abortion.

The second reason was since the ban on the partial birth procedure arguably could be interpreted to also ban the Constitutionally protected D&E procedure (dismemberment),
the ban constituted an undue burden on a woman getting a D&E abortion.

One of the issues brought up in the Nebraska case over partial birth abortion a few years ago was the personhood of the fetus. The Court basically said they did not want to reopen that issue, said Duncan.

There was an attempt to ban partial birth abortion in Massachusetts, which got nowhere politically, said Duncan.

No Point In Banning Partial Birth Abortion

Even though there is hopeful talk of getting the president's signature on a partial birth abortion ban, Prof. Duncan said he does not see a point in such legislation. "It would have to have a health exception so broad that it would, in effect, eviscerate the law. Furthermore it would be a kind of farce. It would allow politicians to say how opposed they are to partial birth abortion, while at the same time having in place a law that really does not ban anything."

Duncan reiterated, "There is this incredibly broad third trimester health exception that you can drive a truck through, which means anyone who wants an abortion up until the moment of live birth, gets one. That's what that health exception means in practice, and the partial birth abortion case shows quite clearly that is the case."

With the Born Alive Protection Act, said Duncan, at least when the child's head emerges or if it survives a botched abortion, it has a federally protected right to life.

State Funding

The U.S. Supreme Court was faced with a couple cases over the years that claimed a Constitutional right to funding by the state for abortions for indigent women. The Court in general rejected those claims, said Duncan.

Here in Massachusetts, the SJC ruled just the opposite, he says. That is, in Massachusetts indigent women can get an abortion at taxpayer's expense as a matter of a state Constitutional right.

Woman's Right To Know?

We do have an informed consent, 24-hour waiting period provision in the law here in Massachusetts, said Duncan, but the federal court in the late 1980's declared it unconstitutional before the Casey case came up. After Casey came out, the Massachusetts consent law is clearly okay under the U.S. Constitution, but the Attorney General refuses to enforce it and refuses to go to federal court to get them to vacate the judgment even though it is clearly an obsolete judgment.

As a result, Mass. Citizens for Life has proposed a 'Woman's Right to Know' Bill, which aims to reenact an informed consent provision in state law.

Weak Parental Consent Law

On parental consent, our Massachusetts statute as written requires two-parent consent. But one of the early things the Court required in consent laws is a thing called judicial bypass. That means there is always a way for a minor girl to go into court on an anonymous basis to petition for an abortion said Duncan.

Here in Massachusetts, such petitions are called Mary Moe Petitions, where a girl basically gets a lawyer from Planned Parenthood to accompany her into court to get judicial permission for an abortion.

Judicial permission is granted either because the girl is judged to be a mature minor capable of making medical decisions for herself, or, because it is in her 'best interests.'

Prof. Duncan said it is quite clear that in Massachusetts, Mary Moe petitions are rubber stamped by judges. Only a handful have been denied and all those were reversed on appeal within hours, he said.

Planned Parenthood challenged the two-parent consent law, as weak as it is, to get it declared unconstitutional. The SJC basically rewrote the consent law by reducing the number of required consenting parents to one or else with court approval of the abortion.

Prof. Duncan mentioned that Planned Parenthood is running a "Roe at Thirty" poster contest. One of the requirements listed on their website. is that children under 18 must have a parent or guardian's permission to submit their designs, and for it to get published along with their name.

"She needs parental permission to submit a poster, but she doesn't need permission to get an abortion," marveled Prof. Duncan. The Weekly Standard parodied the situation, he said, by writing, "Get your laws off my crayons."

Buffer Zones

Prof. Duncan said there are a plethora of laws and injunctions that regulate demonstrating or protesting in front of abortion clinics, including a buffer zone law that he is involved in challenges in the U. S District Court in Boston.

The buffer zone here was modeled after the one that the Supreme court upheld a couple years ago out of Colorado, said Duncan. Basically what the buffer zone provides is that within an 18-foot radius of entrances and exits to abortion facilities, you cannot approach within six feet of a person for purposes of leafleting, protest, education or counseling.

"Basically you have to keep your distance and can't approach someone for communicative purposes," said Duncan.

"We challenge this under the First Amendment, and the reason that we think we have a fair chance of prevailing is that even though our law was modeled on the Colorado law, which the Supreme Court upheld under the First Amendment, nevertheless, our law has a couple exemptions."

One exemption is for abortion clinic agents and employees. Employees can approach the potential client for their own brand of counseling or to swoop down and escort the person without their permission and rip any pro-life literature out of their hands.

Another exemption is for people entering and exiting the abortion clinic, which covers boyfriends, etc. This means boyfriends can approach and intimidate the little old ladies who pray outside clinics and they can get in the face of other pro-lifers, etc.

The law is not viewpoint and content neutral the way First Amendment says regulations of a public forum on the streets and sidewalks has to be, said Duncan.

It's Why Appointing Judges Has Become a War

Prof. Duncan does not foresee Roe being overturned for at least a decade at the earliest. In 1992 the Supreme Court thoroughly examined the question of whether or not they should overturn it, said Duncan, and stupidly committed its institutional integrity to sticking by Roe vs. Wade, more or less saying, "If we were to back down now, we'd lose all credibility even if it was incorrectly decided."

This is why the whole issue of judicial confirmation becomes so important, said Duncan. Everybody realizes it all depends on one or two votes at the Supreme court. That immediately makes every nomination like World War III.

Three justices are sensible on the abortion issue, said Duncan. They are Rehnquist, Scalia and Thomas. All the rest are lousy, he said. Kennedy voted on the right side on partial birth abortion as a bit of a surprise, but Kennedy, O'Connor and Souter, who are sort of the middle, signed on to Casey, upholding Roe vs. Wade. They are not open at all to any reconsideration of Roe vs. Wade, he said.

The real solid pro-aborts are Stevens, Ginsburg and Bryer, said Duncan.
.
Some avenues that may be effective as far as chipping away at abortion is the push for informed consent laws, with the whole tie-in to breast cancer and other complications.

Pursuing malpractice suits against abortionists can be another effective avenue. Other than the legal approach, the soft-sell pro-life ads such as the Caring Foundation puts out are very effective, said Duncan.

 

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