Balkinization  

Saturday, June 07, 2003

JB

Libertarians Form Communities

My friend Randy Barnett, one of the most interesting libertarian thinkers in the contemporary legal academy, has joined the Volokh Conspiracy.

JB

M. Derrida Would Be Proud

The incomparable Brad DeLong shows why he is the most subtle Straussian in the academic business in this recent essay.

By the way, am I the only one to have noticed the similarities between Leo Strauss and Jacques Derrida? Both believe in the importance of close readings of classic philosophical texts, both find hidden meanings in these texts which become available only after careful study by the cognoscenti, and both are interested in how surface or ordinary readings of a text are undermined and even reversed by these close readings. (And both have a problematic relationship to the Enlightenment, and a particular love for the classics.) The most important difference (or differance) might be their views about the relationship between the text and the author's intentions. Strauss seems more detemined to suggest that he is revealing what an author truly meant, while Derrida is more interested in showing how an author's text gets the better of the author. (But I am sure that, in time, we could deconstruct even this distinction, or, in the alternative, show how it conceals a deeper truth.)

JB

Is the Partial Birth Abortion Statute Constitutional?

The House has passed a new ban on partial birth abortions. The Senate passed a similar bill in March. After differences between the House and Senate versions are ironed out, the bill be sent to President Bush for his signature.

Is the statute constitutional? In a word, no.

Here is the relevant text of the partial birth abortion statute (Senate version):

Sec. 1531. Partial-birth abortions prohibited

(a) Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both. This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself. This subsection takes effect 1 day after the date of enactment of this chapter.

(b) As used in this section--

(1) the term `partial-birth abortion' means an abortion in which--

(A) the person performing the abortion deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and

(B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus;


As a preliminary matter, what Congress calls "partial birth abortion" does not correspond to existing medical terminology.

The most common abortion procedure in the second trimester (from about 12 to 24 weeks) is "dilation and evacuation" (D&E). D&E involves dilation of the cervix, removal of at least some fetal tissue using nonvacuum surgical instruments. After the 15th week D&E procedures may require that the fetus be dismembered or that parts of the fetus be collapsed in order to facilitate evacuation from the uterus. When the fetus is dismembered, it typically occurs as the doctor pulls a portion of the fetus through the cervix into the birth canal. D&E poses risks of mortality and other medical complications that are significantly lower than those which accompany the next safest mid-second-trimester procedures, called induced labor procedures.

A variation of D&E, known as "intact D&E," is used after 16 weeks. It involves removing the fetus from the uterus through the cervix "intact," i.e., in one pass rather than several passes. The intact D&E proceeds in one of two ways, depending on whether the fetus presents head first or feet first. When the fetus presents head first, the doctor will insert an instrument into the fetus' skull while the fetus is still in utero and remove the brain and other intracranial contents. When the fetal skull collapses, the physician will remove the fetus.

The feet-first method of intact D&E is known as "dilation and extraction" (D&X). The D&X procedure is the one ordinarily associated with the term "partial birth abortion." After dilating the cervix, the physician grabs the fetus by its feet and pulls the fetal body out of the uterus into the vaginal cavity. Because at this stage of development, the head is the largest part of the body, the fetus' head will be held inside the uterus by the woman's cervix. The fetus is partly outside the woman's body (hence "partial birth"), while the head is stuck inside. To remove the fetus, the physician uses an instrument such as a pair of scissors to open the skull. The physician will then either crush the skull or use a vacuum to empty the fetal skull, collapse the fetus' head, and pull the fetus completely out of the uterus.

The Congressional statute defines "partial birth abortion" to include both D&X, when the fetus presents feet first, and also cases where the fetus presents head first. That would seem to include intact D&E procedures where the fetus presents head-first. But what's crazy about the way the statute is written is that it doesn't conform to the actual practices of intact D&E in the second and third trimesters. After 16 weeks of pregnancy, no doctor would pull the fetus's head out of the body and then collapse the skull or otherwise destroy the fetus. As just noted, the problem is that the fetus' head is the widest part of the body. Hence in performing intact D&E abortions after 16 weeks when the fetus presents head first, the doctor will crush the skull while the fetus is still inside the mother's body. This sort of intact D&E just isn't "partial birth abortion" at least as defined by the statute.

If that's the case, then what types of D&E procedures could the statute possibly apply to? The only cases it would seem to apply to are D&E procedures performed well before viability, when the fetus's head is sufficiently small that it could be pulled out alive head first without injuring the mother. If the fetus is removed head first, and, in the process, is destroyed, then the abortion would seem to fall literally within the text of the statute (the head was out of the mother's body when the fetus was killed). But if so, that would cover a very large part of pre-viability D&E abortions. Congress would have outlawed lots of previously legal abortions in the second trimester.

In the discussion that follows, I will assume that the statute applies only to D&X abortions, and possibly to intact D&E abortions (although, as noted perviously, these will never be performed in a way that the statute assumes), but not to other D&E abortions. If the language were read to apply to the standard form of D&E abortions it would clearly be unconstitutional under Casey and Stenberg v. Cahart.

Even with this limiting construction, the statute has constitutional problems: The basic difficulty is that the law makes no exception for the health of the mother, and it does not distinguish between pre and post viability abortions.

Under the Supreme Court's 1992 Casey decision, although governments may ban all abortions after viability, they must make an exception for abortions necessary to preserve the life or health of the mother.

Before viability, governments may impose even fewer conditions on abortion. They may not place an undue burden on a woman's exercise of her right to an abortion. The Supreme Court reaffirmed this framework in Stenberg v. Cahart, 530 U.S. 914 (2000).

With respect to pre viability abortions, what Congress calls "partial birth abortion" (which includes intact D&E and D&X abortions) must be permitted if the procedure is safer than existing alternatives. Forcing women to undergo a less safe procedure would impose an undue burden on their right to an abortion. The Court explained in Casey that

As with any medical procedure, the State may enact regulations to further the health or safety of a woman seeking an abortion. Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.

A complete ban on partial birth abortions cannot plausibly be justified as furthering women's interest in health or safety, because it removes from consideration a method that in many cases is safer than induced labor methods of abortion. Hence it places a substantial obstacle in the path of women for whom the procedure would be the safest possible course. Nor can the ban be justified, as the 24 hour waiting period was in Casey itself, as a means of persuading women to choose childbirth over abortion. A total ban on a medical procedure is not a method of persuasion.

In Stenberg v. Cahart, the Court followed this line of reasoning in striking down Nebraska's partial birth abortion statute. It held that "[A] State cannot subject women's health to significant risks ... where state regulations force women to use riskier methods of abortion." ... A risk to a woman's "health is the same whether it happens to arise from regulating a particular method of abortion, or from barring abortion entirely." It seems clear that the statute is unconstitutional at least as applied to pre-viability abortions. (The ban on partial birth abortions is often thought to be a ban on late term abortions, but what is interesting about this statute is that it is not limited to late term abortions at all. Indeed, as I've pointed out, if read broadly it could ban a very significant number of second trimester abortions).

Congress has tried to get around the constitutional problems by finding as a matter of fact that "partial birth abortions" as it defines them are less safe than other forms of abortion. Since they are always less safe, there's no constitutional harm in banning them. The preamble to the statute states that "a partial-birth abortion is never necessary to preserve the health of a woman, poses serious risks to a woman's health, and lies outside the standard of medical care." The statute argues that the Court's decision in Stenberg should not apply because the Court was bound by the factual findings of the trial court, which found that partial birth abortion was sometimes medically indicated and was sometimes the safest method of abortion:

(8) . . . [U]nder well-settled Supreme Court jurisprudence, the United States Congress is not bound to accept the same factual findings that the Supreme Court was bound to accept in Stenberg under the 'clearly erroneous' standard. [This is the standard by which appellate courts review findings of fact by trial courts.] Rather, the United States Congress is entitled to reach its own factual findings--findings that the Supreme Court accords great deference--and to enact legislation based upon these findings so long as it seeks to pursue a legitimate interest that is within the scope of the Constitution, and draws reasonable inferences based upon substantial evidence.

(9) In Katzenbach v. Morgan (384 U.S. 641 (1966)), the Supreme Court articulated its highly deferential review of Congressional factual findings when it addressed the constitutionality of section 4(e) of the Voting Rights Act of 1965. Regarding Congress' factual determination that section 4(e) would assist the Puerto Rican community in `gaining nondiscriminatory treatment in public services,' the Court stated that `[i]t was for Congress, as the branch that made this judgment, to assess and weigh the various conflicting considerations. . . . It is not for us to review the congressional resolution of these factors. It is enough that we be able to perceive a basis upon which the Congress might resolve the conflict as it did. There plainly was such a basis to support section 4(e) in the application in question in this case.' (Id. at 653).


This argument won't fly, because even if Congress makes findings of fact, courts are still required to make their own independent determination whether a statute will violate fundamental constitutional rights. Congress can't by its own fiat declare that banning a certain medical procedure does not constitute an "undue burden" to a woman's right to abortion. Courts still have to decide that issue, and where the meaning of a constitutional doctrine is tied up with factual determinations of health and safety, courts have a constitutional obligation to decide whether Congress's findings of facts effecitvely undermine basic constitutional guarantees. Otherwise, Congress could do an end-run around constitutional rights by claiming that certain facts were simply the case.

In the Katzenbach v. Morgan case cited above, it was easy for the Court to defer to Congress. That is because Congress was not trying to limit fundamental rights in passing the Voting Rights Act of 1965. Quite the contrary: it was passing legislation in aid of enforcing fundamental rights. The Court argued that Congress had good reasons to think that the Voting Rights Act would help secure constitutional rights and so it was happy to defer to Congress's judgments about why the Voting Rights Act was necessary. Katzenbach is the opposite of this case, in which Congress is trying to limit women's rights by arguing that a certain form of abortion is never medically indicated and therefore women have no right to have it performed.

Where a fundamental right is at stake, courts may defer to Congressional findings of fact, but they have to make their own independent assessment of whether the legislation impinges on fundamental liberties. The preamble to the partial birth abortion statute tries to get around this objection by pointing to the Turner case: the issue there was whether must-carry obligations on cable companies violated their First Amendment rights. That case involved legislation that might impinge on a fundamental right, and the Court deferred to Congressional findings of fact.

The Court did use Congressional findings of fact in Turner, but it didn't just accept them blindly. Rather, it held that important issues of fact had to be determined in order to decide whether the First Amendment was violated. It didn't just accept Congress's determinations at face value, and it sent the case to a trial court to conduct hearings. The trial court, in turn compiled an extensive record that included not only Congress's findings but also its own findings. What the Court did not do in Turner is what Congress wants it to do here. It didn't announce that the First Amendment isn't violated if Congress says it isn't, and that burdens on First Amendment rights don't exist if Congress says they don't exist. Above all, it didn't say that Congress could effectively overrule the Court's free speech precedents by stating findings of fact in the preamble to a statute. The same principle applies in this case. Congress can't make restrictions on abortion legal simply on its own say-so.

Because the question of health and safety is crucially linked to the application of the Court's doctrines in Casey and Stenberg, Congress's findings of fact simply can't be dispositive. Although courts should consider those findings of fact, there is no obligation for the Supreme Court to overrule its previous precedents in order to defer to them. And under those precedents, the new partial birth abortion statute is pretty clearly unconstitutional.


Thursday, June 05, 2003

JB

Why it Matters if the Weapons of Mass Destruction Aren't Found

Speaking in Qatar, today, President Bush declared (according to a report from the Associated Press):

"We're on the look. We'll reveal the truth," Bush said, without specifically promising weapons would be found. "But one thing is certain: no terrorist network will gain weapons of mass destruction from the Iraqi regime because the Iraqi regime is no more."

The problem, however, is that if the weapons had already been given to terrorist groups before the war, or fell into the hands of terrorist groups during the anarchy that reigned while the war was going on, it will be quite irrelevant whether terrorist networks now can gain weapons from Iraq. That horse is already out of the barn door.

What the Administration has not yet addressed is the sobering possibility that the decision to attack Iraq actually caused weapons of mass destruction to proliferate to terrorist groups, making Americans less safe, not more. The Administration was warned about this possibility repeatedly by opponents of the war and dismissed it. But if we do not find those weapons in Iraq, that may be the reason why.

If the Administration did not deceive the American people about the existence of WMD in Saddam Hussein's Iraq, then the possibility that these weapons have already proliferated and spread to terrorist groups becomes much greater. And that should be troubling for any Administration that insists it is acting to make the American people safer. (Which raises an interesting question: should we be happier if it turns out that the Administration was merely dishonest because it misled the public about WMD's in Iraq or incompetent because it let the WMD's fall into the hands of terrorists?)

Many people have defended the recent war on the grounds that even if weapons of mass destruction were not found, it's worth the price because we have freed the Iraqi people from a terrible tyrant. I agree that this is a very good thing, especially as we learn more and more about how terrible Saddam's regime truly was, although I wonder whether we are now prepared to invade Burma or Zimbabwe, or any other country ruled by a terrible tyrant, in order to free those people as well.

But what is more important is the question whether we would be willing to free the Iraqi people if we knew that the price would be the proliferation of weapons of mass destruction and their placement in the hands of terrorist organizations. No one who has supported the war on the grounds that it freed the Iraqi people has come to terms with *that* question.

As much as the American people are happy that Saddam Hussein's ruthless regime is no more, I seriously doubt they would have been willing to end Saddam's reign if it had led to proliferation of weapons of mass destruction to terrorist groups that would threaten America. Americans are altrustic and idealistic, but they are not crazy.


Wednesday, June 04, 2003

JB

Blair is in Trouble, Why Isn't Bush?

The Washington Post reports:

Tony Blair failed today to quiet the roar of criticism over his insistence that Iraq is hiding weapons of mass destruction, with the opposition leader declaring that "nobody believes a word now that the prime minister is saying."
. . .

Blair has been under fierce pressure here in recent days, in part from members of his own party, since fresh doubts surfaced about his case that Iraq possesses weapons of mass destruction. More than 70 Labor members in the House of Commons have signed a petition demanding that Blair publish his evidence, with one, Malcolm Savidge, calling the issue "potentially more serious than Watergate." A key Commons committee, brushing aside Blair's objections, approved an investigation late Tuesday.

In a very real sense, the war over Iraq is still being fought here, in marked contrast to the United States, where neither political party has used the failure to find dangerous weapons as a major issue against President Bush.


That last sentence is perhaps the most interesting one. Tony Blair was, throughout the crisis over Iraq, far more believable than Bush, repeatedly portraying himself as the voice of reason and offering a strong moral and political case for invading Iraq. The irony is that, now that weapons of mass destruction do not appear to have been in Iraq as promised, Blair is getting the most flak for misleading his nation. President Bush, by contrast, is getting much less criticism at home for deceiving the American people concerning one of the most central issues of governance in a democracy-- the decision whether to risk American lives and go to war. Bush has, on any number of occaisions, lied through is teeth about the facts of the Iraq conflict and the Administration's reasons for going to war. And yet, he has emerged largely unscathed, free to strut aboard an aircraft carrier and play the part of a hero. To quote Bob Dole on another occasion, where's the outrage?

Part of the reason for this difference has to do with the fact that Great Britain has a much more robust tradition of questioning leaders about their decisions. British prime ministers are subject to questioning about their policies in ways that American presidents would never allow. The British press is also less supine than the American press, which has, in many cases, essentially given itself over to uninhibited flagwaving and infotainment. In particular, the BBC, although run by the British government, has been much more balanced in its coverage than the American news media, whose conservative pundits seem determined to make excuses for whatever disinformation the Bush Administration cares to offer.

In short, I would suggest that the major reason why Blair is in more hot water right now for deceiving the public about why Britain went to war is that the democratic process is simply working better in Britain right now than it is in the United States.

JB

Was Powell Pressured to Use Cooked Intelligence Data?

Reuters reports that he was:

US Secretary of State Colin Powell was under persistent pressure from the Pentagon and White House to include questionable intelligence in his report on Iraq's weapons of mass destruction he delivered at the United Nations last February, a US weekly reported.

US News and World Report magazine said the first draft of the speech was prepared for Powell by Vice President Richard Cheney's chief of staff, Lewis "Scooter" Libby, in late January.

According to the report, the draft contained such questionable material that Powell lost his temper, throwing several pages in the air and declaring, "I'm not reading this. This is bullshit."

The White House also pressed Powell to include charges that the suspected leader of the September 11 hijackers, Mohammed Atta, had met in Prague with an Iraqi intelligence officer prior to the attacks, despite a refusal by US and European intelligence agencies to confirm the meeting, the magazine said.
. . .

US News also said that the Defense Intelligence Agency had issued a classified assessment of Iraq's chemical weapons program last September, arguing that "there is no reliable information on whether Iraq is producing and stockpiling chemical weapons."

However, Defense Secretary Donald Rumsfeld told Congress shortly after that that the Iraqi "regime has amassed large, clandestine stockpiles of chemical weapons, including VX, sarin, cyclosarin, and mustard gas," according to the report.


Another list of quotes and justifications given about weapons of mass destruction, with links to key documents and dossiers, appears here courtesy of Financial Times.


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