Balkinization  

Thursday, February 22, 2007

Equality, Privacy, and the New Genetic Technologies

JB

In my newest article on Roe and new genetic technologies, I argue for a sex equality interpretation of Roe based on the Fourteenth Amendment's prohibition on class legislation. (The full argument for that proposition, based on the Constitution's original meaning, is here.). I argue that the sex equality interpretation is superior to the Roe's original theory based on a generalized reproductive privacy right. Here's a selection from the article that explains why the difference between these two theories matters (supporting citations have been removed)

The equality interpretation of Roe-and particularly the notion that limits on abortion are a form of class legislation-will be increasingly important as we encounter new reproductive technologies like cloning and genetic engineering and new forms of medical research like stem cell research. As the technological context changes, it will make a great deal of difference whether Roe is a decision about reproductive privacy per se, or whether the liberty it protects arises from considerations of sex equality and equal citizenship.

If Roe is about reproductive choice in the abstract, about the rights of people to reproduce (or not reproduce) without interference from the state, future litigants will demand that courts insulate new reproductive technologies from regulation on the grounds that individuals should be free to have children by any means that science permits. Currently, there is no clear boundary that makes a generalized right to reproductive autonomy inapplicable to new reproductive technologies like cloning or genetic engineering. One might argue that only traditional methods of reproduction are protected, but such arguments may be unavailing precisely because the technology never existed before. The question will be whether the privacy principle applies in the new technological context, just as courts have asked whether the free speech principles apply to the Internet, or whether the Fourth Amendment's prohibition against unreasonable searches applies to infrared sensors directed at people's homes. Nor can we easily draw lines between "natural" methods of reproduction protected by the right to privacy and technologically assisted methods that are not. By now, the process of reproduction for many couples is thoroughly imbued with various forms of medical and technological assistance, including fertility clinics and in vitro fertilization. Assuming for the moment that the right to reproduce extends to using fertility clinics and in vitro fertilization, it will be difficult for courts to draw lines. The privacy interpretation of Roe may have a stopping point, but it may not be the one we now imagine, or it may simply be unprincipled and ad hoc.

On the other hand, suppose we view the abortion right not as part of a generalized right to reproductive autonomy, but rather as a specific right designed to help secure women's equal citizenship in a world in which reproductive burdens and the life-altering obligations of parenthood fall particularly heavily on them. Then we obtain a very different perspective. Cloning and other genetic technologies are not necessary to ameliorate women's inequalities with men, and indeed, as described more fully below, one can easily imagine how these technologies might someday be used to undermine women's equality. To give only one example, existing biomedical research in cloning requires large numbers of eggs to produce even a single successful result. Researchers, and later on, biomedical companies who seek to profit from human genetic engineering will have to locate vast sources of human eggs to make genetic engineering both practical and commercially viable. That may lead them to pressure large numbers of women-including particularly poor women-to serve as professional human egg donors or incubators, possibly at risk to their health. Where new reproductive technologies do not further equality between the sexes, their connections to the underlying justification for the abortion right become greatly attenuated, and we should leave their regulation to the political process in most cases.

This point can be generalized: The feminist or sex equality interpretation of Roe is not the same as a libertarian interpretation, even though women's equality is secured through liberty. The two interpretations of Roe begin to come apart precisely when reproductive rights no longer serve the goal of establishing women's equal status with men.

The very expression "reproductive rights" hides an important ambiguity. Reproductive rights could refer either to women's ability to control their reproductive lives or to the ability to choose when and how to have offspring. In the former case, reproductive rights would help secure equality with men and avoid the subordination that comes from forced motherhood. In the latter case, reproductive rights might include the right to have a child engineered to lack a particular disease or disability, or more fancifully, the right to have a child with blonde hair and blue eyes, or even a clone of one's self. The latter account of reproductive rights may increase the personal liberties of parents without promoting the relative equality of women.

Indeed, an equality-based interpretation of reproductive rights may conflict with a libertarian interpretation in a number of different ways. Consider the following possible scenarios:
(1) Engineering genetically enhanced abilities in offspring, which only the rich can afford, thus perpetuating and entrenching social stratification;
(2) Creating men and women with exaggerated or stereotypical features designed to enhance sex differentiation;
(3) Using genetic engineering or abortion to choose the sex of a baby, leading to over-representation of males over females;
(4) Using genetic engineering or abortion to eliminate fetuses thought to have undesirable traits or predilections like homosexuality, to the extent these predispositions are genetically marked;

Finally, outside the realm of reproductive rights, but using related technologies:
(5) Using collection of DNA to mark people with undesirable traits, predispositions and health risks, and then passing laws that treat those persons differently on this basis.

Whether or not any of these scenarios come to pass, they all demonstrate that the liberty to choose the genes of one's offspring, or the freedom to discriminate on the basis of genetics, whether by the state or by private parties, does not necessarily promote equal status and equal citizenship. Quite the contrary: Technologies that require massive harvesting of eggs may lead to enormous pressures placed on women, and particularly poor women, to serve as sources of those eggs. Genetic engineering and the ability to locate and identify genetic markers can involve or can facilitate genetic discrimination, which, in turn, can produce new forms of inequality or new techniques for older forms.

The latter problem can arise in two distinct ways. First, the state might attempt to limit or prevent private parties-whether parents, researchers, or insurance companies-from engaging in genetic engineering or genetic discrimination that it regards as unfair and unjust. The question in this case is whether the Constitution prevents this regulation. Second, the state itself might engage in genetic manipulation or discrimination, or it might facilitate such manipulation or discrimination by private parties-like medical researchers or insurance companies-in ways sufficient to constitute state action. Here, the question is whether the state's actions violate the Constitution.

How we interpret Roe's three holdings bears on each of these questions. Start with the first question-the constitutionality of the government's attempts to regulate genetic manipulation, cloning, and other forms of genetic engineering by private parties. The reproductive privacy interpretation of Roe would not affect state regulations of medical research that do not limit individuals' rights to reproduce offspring-like cloning for biomedical research and embryonic stem cell research. However, it might limit the state's ability to regulate parents who want to clone themselves or genetically engineer their children. The reproductive privacy interpretation of Roe might restrict the state's ability to prohibit privately sponsored eugenics-- for example, a couple's decision to engineer a child with a particular hair or eye color or a decision by deaf parents to engineer a child who is also deaf.

The equality interpretation of Roe has a somewhat different effect. As long as the state does not try to promote invidious discrimination-a point to which I shall return shortly-the equality interpretation leaves the regulation of genetic manipulation by private parities to the political process. That makes Roe's first two holdings particularly important. Roe holds that fertilized ova, blastocysts, embryos and fetuses do not have independent constitutional rights, but that the state has legitimate and important interests in their protection. In addition, the state has legitimate and important interests in protecting the health of women who might donate (or be pressured into donating) their eggs. Under the equality interpretation of Roe there is no independent constitutional right to prevent the beneficial development of these new technologies; but equally important, governments may regulate these technologies in the public interest and in the interest of future generations. In short, an interpretation of the abortion right grounded in sex equality leaves most of the big issues of how to deal with new reproductive technologies to the political process rather than to the courts.

Now consider the second question: Suppose the state engages in genetic engineering or genetic discrimination, or facilitates private parties so that there is state action. A reproductive privacy theory would probably limit some of this activity. It might not prohibit genetic discrimination against people already born. However, it could prevent the government from using people's genetic materials to produce offspring against their will. It could prevent the government from requiring that people's offspring be genetically modified (to eliminate undesirable traits or markers for disease). It might also limit laws that prevent parents from choosing to have offspring with certain genetic characteristics or markers.

An equality interpretation of Roe would also restrict much of this state regulation, but for different reasons. It would be based on the prohibition against class legislation and the idea that the state may not limit reproductive liberty to subordinate a group or deny it equal standing. Under this approach, state-imposed genetic engineering and genetic discrimination might be a new twenty-first century form of class legislation. The state, either directly or through facilitating private parties, discriminates against people with certain genetic markers, either by treating them differently after they are born (including hijacking their genetic material for the state's purposes), or by preventing new people from being born with these genes in the first place. (Note that it is not necessary that the genetic markers targeted by the state reliably produce specific traits as long as state officials believe that they do. Genetic discrimination can justify itself with bad science as well as with good science, and indeed may be more likely to do so.) In this twenty-first century version of class legislation, the state picks out a particular group and imposes special disabilities on it, or, more alarmingly, simply engineers the group away.

In the original nineteenth-century conception of class legislation, the affected group did not have to exist as a separate entity or group prior to the state's singling it out; class legislation could simultaneously create the class and discriminate for or against it. The same is true of new forms of genetic discrimination. To violate the Equal Protection Clause under this interpretation, the state need not pick out an existing social group, like blacks, that understands itself as possessing a separate identity. Rather, by identifying a set of genetic markers, the state constructs a group that it then picks out for disparate treatment. Genetic groups, created by medical science and state policy, could well become the new classes of the future and the victims of a new form of class legislation that the Constitution should equally prohibit. Like homosexuals and (some) religious minorities, genetic groups will not necessarily be discrete and insular, or identifiable by outward appearance. Nevertheless, these new genetic groups will carry the information that can be used to discriminate against them in their genes. Like groupings by race and sex, groups marked by genetic characteristics are constituted by factors in place at the time of their birth. But they are not inevitably immutable characteristics-perhaps in time we will be able to change a person's genetic structure-and they do not necessarily have to correspond with any existing social group. That does not mean, however, that the state or private parties may not find reasons to pick them out for special regulation. Indeed, the more that we discover (or believe we have discovered) connections between our genes and our health, intelligence, and behavioral predispositions, the more the state will be tempted to categorize people into new groups based on their common genetic inheritance.

In a remarkable history of twentieth century eugenics centered around the 1942 case of Skinner v. Oklahoma, Victoria Nourse has argued that Skinner, one of Roe's antecedents, may be a key case for understanding the Constitution's role in the era of genetic engineering. For when the state picks out groups and eliminates them by reason of their purportedly inheritable traits, it violates equal protection in its most basic sense. In Skinner, the state decided to single out certain individuals as social undesirables and sterilize them so that they could not reproduce their genes, based on the assumption that criminal tendencies were inheritable. Notably, the state excluded people convicted of certain white-collar crimes like embezzlement from its sterilization program. With a single law, the state created a "race" of second-class citizens and simultaneously exacted the penalty of elimination. As Justice Douglas explained in Skinner, when the state makes the possession of certain traits the basis for sterilization, "it has made as invidious a discrimination as if it had selected a particular race or nationality for oppressive treatment." "The power to sterilize," Douglas argued, "may have subtle, far-reaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear."

Skinner, like Roe, is about both equality and liberty. We have become accustomed to thinking about Skinner as a case about reproductive liberty, in part because it helped justify the line of cases from Griswold through Eisenstadt and Roe. But if Roe itself is best understood as a case about equality, and particularly about the Constitution's ban on class legislation, Skinner's equal protection holding once again becomes particularly salient. The best way to understand Skinner and Roe in the future is as limits on the state's control over reproduction or genetic technologies that single out groups for special disabilities, or attempt to reduce them to a subordinate status. That interpretation preserves women's rights to reproductive choice, prohibits the state from invidious forms of genetic discrimination, and leaves to the democratic process regulation of new genetic and reproductive technologies in the public interest.

Comments:

"That may lead them to pressure large numbers of women-including particularly poor women-to serve as professional human egg donors or incubators, possibly at risk to their health."

Ah, yes, the horror of "pressuring" people by offering them choices they didn't previously have. Who doesn't live in terror of the possiblity that something they have might suddenly become worth money, forcing them to actually decide whether or not they want to sell it?
 

Brett,

Please read "Bug Jack Barron" by Norman Spinrad. The pressure of a potentially dangerous and detrimental choice for money is a lot heavier on those who do not have other constructive options. And since there is heavy class stratification within the US, the people who make the structural decisions that will impact those who will make those "pressured" choices will have little in common with them. Will Carly Fiorina (to pick a wealthy woman out of the air) have the additional, enormous pressure of having to pay for any health care, transportation, or housing as opposed to someone living under the poverty level. While Carly may choose to participate in an eugenics program, I doubt it would be due to any monetary pressures.
 

Sorry for going a bit off point and making a more elementary argument, but I don't understand the "abortion as equal protection" position. Yes, only women can have abortions, but that's a medical difference between men and women. To say that states can't make laws recognizing that difference and, consequently, can't pass any laws about pregnancy (or any other gender difference) seems unwise. That's why gender classifications generally are not subjected to the same strict scrutiny that racial classifications suffer. And in any event, this is more of a disparate impact case about the social impact of pregnancy and motherhood than a facial attempt to say "women can't do X but men can." After all, abortion laws wouldn't let male doctors or boyfriends perform abortions either. I don’t think such indirect “discrimination,” if it is even that, rises to a constitutional violation according to Court precedent. Perhaps the social norms surrounding motherhood should change, but that is not a constitutional concern.

Besides, even if you concede that abortion laws discriminate on the basis of gender, you still have to weigh that violation against the state's interest in protecting unborn life. Without flatly stating its beliefs about when life begins, as the Court obviously won’t do, it becomes bizarre for it to then say that this undefined (for the Court) government interest is not compelling. The Court is not even willing to state clearly and fairly what the interest is.

If the equal protection argument is the true defense of the pro-choice future, I don’t see how it can be persuasive. Not that that’s stopped the Court before.
 

The standard of review for sex is in effect exacting scrutiny, some "not quite there, but rather close" to strict scrutiny.

The differences between men and women only can be used to justify legislation if there is a strong reason to do so. That is, to justify the burden. It is true that the argument proposes a sort of disparate impact that is not currently deemed the test. It also has a mixed equality/privacy flavor like in Lawrence v. TX.

A stronger case might be to argue that anti-abortion regulations tend to stereotype, assuming certain roles for women, including motherhood. Said 'interest' is not compelling. And, interest in 'unborn life' doesn't trump rights of persons (pregnant woman) either. Why not animal life?

Your argument that the viability line is illegitimate is question begging w/o more analysis.
 

"Please read "Bug Jack Barron" by Norman Spinrad."

Read it. Now explain why this differs in any fundamental respect from "pressuring" people by offering to pay them for any dirty or risky job? Are the only people we can offer jobs to, people who don't need the money?

What's going on here is an effort to take the negative connotations which properly apply to threatening to worsen somebody's condition if they don't comply with your terms, and utilize them to attack offering to improve somebody's condition if they do as you ask.

The former is extortion. The latter is the very basis of a market economy.
 

"The standard of review for sex is in effect exacting scrutiny, some "not quite there, but rather close" to strict scrutiny."

BTW, are the courts ever going to get around to noticing that the ERA wasn't ratified?
 

brett,

IMO, the difference is that in your counter case, that the individuals are being offered compensation in return for their labor, expertise, and risk for their efforts, while in the "horror" case, individuals are being offered compensation to be materially carved up on a systemic basis.
 

"So by extension, Brett would allow citizens to sell their kidneys or provide sexual services for money."

I certainly would.

But the point here is more basic: Don't pretend that limiting somebody's rights is protecting them. If an offer leaves your condition unchanged if you reject it, it is in no morally objectionable sense "preasuring".
 

Brett,

I call BS. Let me give you a boundary example. Assume I am some sick sociopath who enjoys the suffering of others. I go to somewhere in the Sudan, and find a family under atrocious conditions, with looming starvation and the threat of death by bandits. I offer the husband a million dollars and transport out if he agrees to commit suicide, and his wife agrees to cannibalize him while I watch.

Can you still say there is no "pressuring"? That society has some responsibility to keep such an event from happening? Now, as I stated at the outset, that is an extreme situation; but it clearly illustrates that these libertarian notions of negative and positive freedom are simply not clearly separable, but are just analytic tools to identify dominant issues in a discussion.

You're not doing math. You don't have the logical right to treat it as such, even if the lawyerly often live under that delusion – life is messy, and freedom more so.
 

"The differences between men and women only can be used to justify legislation if there is a strong reason to do so. That is, to justify the burden."

That would be true if the law said "women can't do X because of peculiar characteristic S but men can," which abortion laws don’t.

"It is true that the argument proposes a sort of disparate impact that is not currently deemed the test. It also has a mixed equality/privacy flavor like in Lawrence v. TX."

Yes, that's the problem. It's sort of disparate impact, sort of mixed equality, sort of privacy...but the first doesn't give you the level of scrutiny you need, and the last is nowhere in the Constitution. We're in danger of going back to penumbra-land: the support for the equal protection argument isn't anywhere, but it could possibly be partially supported somewhere in theory, I guess.

"A stronger case might be to argue that anti-abortion regulations tend to stereotype, assuming certain roles for women, including motherhood."

Yes, that would be a disparate impact, and a very indirect one. Standardized test scores and criminal laws have stereotype-producing (and much worse) impacts against certain racial groups—are they unconstitutional? The Court cannot examine every law for any possible unequal effect down the road, and then strike down laws whose policy effects they don’t like; and the Court has said as much.

"Said 'interest' is not compelling. And, interest in 'unborn life' doesn't trump rights of persons (pregnant woman) either. Why not animal life?"

What “rights of persons (pregnant woman)”? I thought JB wanted to make an equal protection argument, not a privacy right one, in order to escape the latter’s many difficulties. Now you’re leaning on it. And the animal comparison is not on point; states don’t claim fetal life is as important as human life—they claim it is human life. Everyone agrees protecting human life is a compelling state goal (if diversity in education is!) The Court has steadfastly refused to say that fetal life is not human life, if for no other reason than concern for their institution’s preservation. Nine lawyers cannot make the scientific and religious judgments about when life begins, and Roe and Casey admitted that explicitly even as they promulgated and/or discarded the trimester or viability tests.

But if they won’t make that claim, and if they won’t admit they care about fetal life as little as they do animal life, they can’t possibly hold that the state is wrong that it is pursuing a compelling interest in preserving human life.
 

I should add that the first part of my response was too glib; the law would not have to say men can do something that women can't. That would run into a problem in light of miscegenation laws affecting both whites and blacks, for instance. But it should be obvious that miscegenation laws make an explicit issue and target of race that cannot be said of abortion and gender under a reasonably generous reading of antiabortion laws and their intent.
 

Yeah, I can say that's not "pressure". Suction, maybe...

That's a pretty scrupulous "sociopath" your positing, who only offers money, and walks away if you say "No!" And you're suggesting a situation where the only point of the payment is to get somebody to hurt themselves.

Meanwhile, back in the real world, we're actually talking about paying women for eggs which are actually going to be put to some use in research or treatment. Which is certainly more like a normal commercial transaction, than a thought experiment in weird evil.
 

Another quick point...(I apologise in advance for mistakes-I'm not yet in law school!)...surely, the equal protection argument as Prof. Balkin envisages it, is problematic. To presume the notion that the state is creating a class and discriminating against it with genetic fiddling to create, let's say, a new Gattaca, the whole issue of the fetus being a person or not would have to be addressed. If the fetus is not a person, it could very reasonably be argued, then the state is completely allowed to discriminate against 'it', just as it would, perhaps, discriminate against a certain breed, of sheep. Accordingly, fetuses with genetic defects, not being persons, could indeed be discriminated against. The 'individualistic' nature of the 14th Amendment ep clause has been discussed enough.

On the other hand, let us say we accept the ep argument, on the premise of course (which would be required to support it) that the fetus is a person for the purpose of the 14th amendment. At that point, the idea of a fetus being a person would outweigh any equal protection that a woman enjoys, imho at least. Thus, either way, there is a problem.

Two possible solutions then:

The idea of the binary distinction between 'life' and 'not a life' be scrapped. I'm not an expert on the literature, but I suspect there must be something on this out there. This allows us to say that a fetus is 'not enough of a life' to merit protection enough to outweigh a woman's ep interests, while it is enough of a life to merit protection from state intervention. Cleraly, this would require some fancy fiddling with ep scrutiny levels.

Secondly, adopt a (Plyler/Dale?) framework, where the nature of the right denied COMBINED WITH the eq. prot. arguments merit a higher level of scrutiny. In that way, one could deploy the privacy arguments, to prevent saying the state must consider fetuses people to protect them under ep, while at the same time, saying that women have the right to protect their reproductive right. Again, this would suggest that scrutiny levels would be more flexible than they are now. It being 3:15 am where I am, I'm afraid I cannot flesh these points out further...
 

Brett,
BTW, are the courts ever going to get around to noticing that the ERA wasn't ratified?

Dunno, are the courts ever going to get around to noticing that the text of the Constitution does not prohibit racial discrimination except in voting? (Coincidentally, the same area and in the same terms as the Constitution prohibits sex discrimination.)
 

The point of the article is to suggest a change of the law, or a clarification, so the fact that disparate interest under current doctrine cannot do something is somewhat besides the point.

I find this snide use of the word "penumbra" tedious. Attack the concept. Rights and powers in the Constitution are not just tied to their express words, but also to some outer core necessary to them. Few oppose this concept, only various applications thereof.

I think there is a privacy right in the Constitution. Prof. Balkin seems to as well; he thinks the EP argument works better in various contexts.

My secondary EP argument is not akin to disparate impact of tests etc. It is based on clear evidence that partially at least abortion laws expect women to have certain roles. Studies of the SD law recently rejected underline the fact.

Likewise, in practice, abortion laws tend to be inequitable, and a poor way to protect unborn human life. At any rate, 'human life' in this context often amounts to a religious and philosophical matter.

Yes, judges won't want to pick one meaning of life. The personal right to choose based on one's conscience factors in to why legislators are limited as well. And, why even when it was broadly illegal, the laws were woefully and selectively underenforced.

One that is not deemed 'compelling' quite often. If it was, abortion would not be legal. Cf. laws against destruction of certain animals or even use of feathers. Yes, in certain respects, animal life trumps human life, esp. if the rights of women etc. are not as strongly affected.

And, if there is no privacy right etc. I'm not sure why necessarily animal life can not be compelling overall. Many suggest NY can allow abortion, while LA cannot. Meanwhile, NY might ban the sale of veal or raising it. In the process, it arguably is treating calves more carefully than embryonic life.
 

Brett,

My example was radical, posed as a border case to block glib pronouncements about the nature of "pressure," but it actually is not so unrealistic. In the "Real World," a German has recently tried to defend himself from murder and cannibalism charges because the victim had agreed to the event - the aggressor surely thinks of himself as a defender of libertarian freedom!

I'm not proposing that buying and selling eggs or organs is by definition exploitative, or that you are correct in saying that by definition it is not exploitative. What I am trying to say is, let's get specific rather than waving neat ideologies. A street-hooker is not the same as a high-price call girl. A middle-class American renting her womb for $90k is not the same as a Indian village untouchable selling a kidney for $2k. Real world cases never fit neatly into theoretical constructs; if they seem to, it's just because you haven't looked closely enough.
 

A problem with the commentary in this thread is the usage of the term "life" and "not life." It's an absurdity that comes out of the abortion debates with no basis in reality. There is no point that human life begins; biologically, it's continuous to the dawn of Life 4 billion years ago.

The question is not when "human life" begins - obviously a blastocyst is alive, and it's a component of a human being. The question should be, what is a human being, as an autonomous being with independent rights? For the Romans, that only started when ones' father died; we should probably be more liberal than that. But to equate a clump of undifferentiated cells with even neonatal cattle, much less a human being - that's just absurd.
 

What I find particularly frustrating in this conversation is that people find it acceptable to say generalities such as:

"Rights and powers in the Constitution are not just tied to their express words, but also to some outer core necessary to them. Few oppose this concept, only various applications thereof."

"The personal right to choose based on one's conscience factors in to why legislators are limited as well."

Or even, in the next post:

"But to equate a clump of undifferentiated cells with even neonatal cattle, much less a human being - that's just absurd."


Well if rights have "some outer core" where is it? What does it mean? And most importantly, how do we limit it from invalidating every law we try to pass for the common good? If this conversation is the best we can do, we have to reject the concept. Just faintly pointing out the possibility that maybe we should respect rights not expressly in the constitution doesn't get you to abortion, and doesn't stop you from outlawing any law you don't like.

Same idea with the "undifferentiated cells" argument. If those cells aren't human life worthy of the right not to be destroyed, then what is? Where do you think the line should be? It's not enough to point at your opposition and say "absurd! absurd!" What's arguably more absurd is basically supporting an arbitrary birth-two seconds before birth line that might very well end up killing things we could rightly consider people. If life doesn't begin as an embryonic stage, then when does it? If you can't answer, and you gave no indication of doing so in your last post, then maybe you should stop calling other people's rationally defended positions absurd.

Joe's right that "I think there is a privacy right in the Constitution. Prof. Balkin seems to as well; he thinks the EP argument works better in various contexts." The problem is, commentators have trouble backing those claims up in any sort of systematic way. Just because you state your belief in something doesn't make it so.

As for the rest of the argumentation, it seems rather policy-oriented: ""Likewise, in practice, abortion laws tend to be inequitable, and a poor way to protect unborn human life. At any rate, 'human life' in this context often amounts to a religious and philosophical matter." Why any of this supports the judicial "solution" in Roe and Casey confuses me.

If New York wants to value animal life over fetal life, it is absolutely free to do so. The fact Idaho might disagree doesn't make Idaho's laws unconstitutional; it just means we live in a federal system of 50 states with different laws. New York and Idaho agree protecting life is compelling, but the democratic majorities in each state might (might!) disagree on the definition of human life (or personhood, or whatever term you wish).

I prefaced my argument with the observation that my initial comment was off Professor Balkin's original point from his post, and if you want to pursue his point instead you are free to do so.
 

gg,

Yes, the problem is that life ain't simple. There are few bright lines "out there." Most of the lines we draw are fairly arbitrary, unclear, context dependent, etc.

Life would be easier if we could go from some simple first principles and derive a legal system, like in physics where you can go from a few laws, and derive a fairly good approximation of the universe. Unfortunately, that's impossible for a computational system like human society – logically impossible. We have to go from empirically measurable and derive workable rules-of-thumb, rather than the other way around.

So, I'd agree that drawing the line for human life worthy of human rights at birth is arbitrary. I'd still say that its simple absurd to give those rights to a stem cell. On the other hand, it would be crazy to deny those rights to a one year old. So we draw an arbitrary, but reasonable line.

In the American SW, the traditional cultures drew the line at the first breath - you could terminate a child before they drew a breath, but not after; just as arbitrary, and just as reasonable given that they lacked our technology. The Romans gave the pater familias the right of capital punishment over his brood; that would be unreasonable given our cultures respect for human rights.

Arbitrary is not the same as absurd. It is absurd, and disrespectful of human life, to equate a three year old child with a blastocyst. The former has a mind, hopes, dreams, loves and hates. The latter only has some genes, and cannot be differentiated from a clump of stem cells in the pancreas except by location. If you equate the two, you are implicitly saying that all we are as human beings is meat.
 

There is no constutional protection for unmarried pregnancy, and indeed many court cases have hinged on marriage being required to legally procreate. The only case that comes close to suggesting that individuals have a right to conceive is Eisenstadt, but note that even that case only says that individuals have a right to make a "decision" about whether or not to conceive, and of course that is true. If they want decide they want to conceive, though, there might be certain legal things they have to do first, like marry the person they want to conceive with. Five years after Eisenstadt, the court ruled in Zablocki that people had to be allowed to marry because that was the only relationship they could legally conceive in. So Eisenstadt didn't strike fornication laws from any state's books, it didn't declare a right to unmarried conception.
Loving confirmed that there are "supportable basis" to prohibit certain relations from marrying, by which they meant prohibit them from conceiving together (hence the citation of Skinner in a case about marriage, and the mention of marriage in Skinner, a case about individual rights). So, there are supportable basis to stop certain types of conceptions from happening. I don't think they can be based on private medical information, we can't tell a person with a genetic disease that they cannot reproduce, but we can say that people cannot reproduce with engineered gametes. It's not their privacy anymore, since genetic engineering is not a medical procedure on a living person but a manufacturing process of someone else - a member of the public - who does not exist yet. To say that a member of the public can be "privately" created obviously wrong, harkening back to slavery.

The proposed federal egg and sperm law, which would prohibit all forms of unnatural conception, is not unconstitutional in the slightest. If you want to test it, there is one in Missouri now that prohibits implantation of a "cloned" embryo (ie, an embryo that isn't from an actual man and woman's gametes).
 

I find the sexual-equality argument for abortion rights profoundly unconvincing.

For the mother and the father of a fetus to be on an equal footing, the woman would have to have no more rights regarding the pregnancy than the man did. The man does not have the right to terminate the pregnancy, nor does he have the right simply to walk away from it and abandon his responsibility for the child when it is born. From the moment of conception until the fetus dies or grows into an emancipated adult, he is legally bound to help support the child and the mother. He may not opt out of fatherhood in the way the pregnant woman may opt out of motherhood by choosing abortion, and very few would argue that he should. Yet to maximize sexual equality, we should be forced to concede him that exact right.

However, pregnancy intrudes upon a woman's personal privacy in a way that it does not intrude upon a man's, because it invades the integrity of her body. For this reason it can be argued (and I agree, though with qualms) that a woman should have the right to terminate her pregnancy, even at the cost of the fetus's life. Agreeing to the woman's right to do this is a choice to place the value of personal privacy above the value of sexual equality. It gives a mother a right the father does not and should not have, in order to protect her personal privacy.
 

I often wonder if "reproductive rights" and "right of self-ownership" might be one of those unenumerated rights Article IX of the Bill of Rights intended to "be retained by the people?" It certainly would have made Madison proud, if it did, and vindicate his hesitation at any enumeration without Article IX and Article X. It might also end the casuistry our legal profession finds endlessly fascinating, and remind us that the unenumerated rights retained by the people are actual, real, and intelligible assertions, balanced by other rights, such as the "right to life." Instead of casuistry, we might accept a more modest cost-benefit analysis of various "unenumerated rights," and weigh them in the balance of justice. Alas, we suffered equivocation of "equal protection" as "separate, but equal" for 75 years, maybe after 250 years we'll finally see the wisdom of Madison's final two Articles? But, I still doubt it. Call it "vested interests," which seems to be an "unenumerated right" that is not asserted, not expressed, but clandestinely understood nonetheless. That'll be a couple-hundred thousand grand for rendering it useless. Please pay the clerk. Dismissed.
 

"So, I'd agree that drawing the line for human life worthy of human rights at birth is arbitrary. I'd still say that its simple absurd to give those rights to a stem cell. On the other hand, it would be crazy to deny those rights to a one year old. So we draw an arbitrary, but reasonable line"

Yes! Good! Wait, where was that line, again? It's equally "absurd" and "disrespectful" to say a fetus is not a person but then a minute later at birth is a person. That position, in my opinion, is more disrespectful than treating a blastocyst as life because if you err on the side of termination, that's literally a fatal mistake.

At that point it becomes a matter of line-drawing within the womb, and it isn't hard to see how pro-life arguments can push that line further and further until we are almost basically at conception. Obviously it's a murky issue, but like you say, we have to pick a reasonable line. To me the only safe, reasonable line that prevents any possible chance of murder is at conception, or very shortly thereafter.

"Arbitrary is not the same as absurd. It is absurd, and disrespectful of human life, to equate a three year old child with a blastocyst. The former has a mind, hopes, dreams, loves and hates. The latter only has some genes, and cannot be differentiated from a clump of stem cells in the pancreas except by location. If you equate the two, you are implicitly saying that all we are as human beings is meat."

1) Does a newborn have "loves and hates"? How about an about-to-be-delivered fetus? Again, isn't it absurd to distinguish between the two based on a completely extrinsic difference of location (certainly not dependency)? 2) Your last sentence ignores the possibility of a soul, or of even an Aristotelian telos that we ought to respect. Obviously, we don't live in a theocracy or an Aristotelian city, but you can't say the *only* way I can value embryos and newborns enough not to kill either is to treat people like "meat." There are obviously other ways.

Speaking of not living in a theocracy or Aristotelian city, NONE of the above conversation has the least bit to do with the Constitution, or whether that document allows us to pick the interests of pregnant women over that of the fetus, or whether we can say life begins here or there, OR in the absence of an enumerated right whether we must decide the ambiguity of this question against the interests of the fetus and in favor of the pregnant woman.

The way this conversation got off track is emblematic of how that basic truth that abortion is not constitutionally protected gets lost in constitutional interpretation. The fact that abortion is a hard question doesn't change that truth.

From the last comment:

"I often wonder if "reproductive rights" and "right of self-ownership" might be one of those unenumerated rights Article IX of the Bill of Rights intended to "be retained by the people?" It certainly would have made Madison proud, if it did, and vindicate his hesitation at any enumeration without Article IX and Article X."

I do too! Thing is, we don't make law based on musings and wonderings. We need some reasoning or evidence. You can call it casuistry all you want, but it reflects a real concern about how to limit the power of an unelected judiciary.

If you can convince 2/3rd's of the people that we should take a utilitarian approach to rights and let the Court decide broad policy questions, then go for it (but without democratically changing the system first you may be violating their right to self-government, which is morally troubling on a deontological, not utilitarian, level.) I guess Bush v. Gore wasn't chastening enough to make liberals think twice about whether an uncontrolled Court serves "utility" or "rights"...maybe it'll take another Lochner or Dred Scott.
 

I should emphasize that no one in this thread has tried to demonstrate that one can accept a constitutional right to abortion while limiting the justices from making broad policy decisions on a range of topics.

The closest attempt to a coherent theory was the last defense, which is that on the average the Court might serve utility more than not with its liberating decisions. Besides being a remarkably unproven and scary bet to make with the country's future, it really does pose a moral problem:

Would you accept a decision on an issue dear to your heart made by nine unelected justices if they freely admitted that they were doing it because they thought it was right, not because of any other somewhat objective standard?

I doubt it; people have trouble accepting Court rulings when they are firmly entrenched in reason, text, history, and everything else if the case harms their interests!
 

gg,

You willfully ignore the distinction between a fetus at nine-months from a blastocyst. If I haven't been clear on this muddy subject, a blastocyst has no loves or hates; a six-month old does. In between, it is a gradual development, where we must look for arbitrary, but reasonable and salient lines. From the fetus at six-months to a three month old child, you have preliminary CNS function, but incomplete myelinization; you have a proto-mind, not as a fully functional as most developed mammals (which we do not protect).

You're assuming that because you give a new-born status as an autonomous human being (not as a life, its always alive), that it actually is. We do so exactly to err on the side of caution. But a newborn's brain is not yet fully myelinated; its just a collection of uncoordinated reflexes. But since we can not identify the day that consciousness emerges, and since it is safer to simply accord it that status for practical reasons, we do so.

You can mystify with souls and Platonic magic; but what does this have to do with the decisions of a secular state? If, to you, there is some kind of preexistent entity that equally fills both a stem cell, and an adult, how am I to measure that quality? To those outside your world, these are just meat measurements, like temperature or rigidity. A "soul" in no way connects with the biological phenomenon of mind; that is a scientific, as opposed to theological discussion.

Now, why does this matter, in a constitutional context? Because inalienable rights do not come from the constitution; the constitution is of value insofar as it protects those rights, that come from deeper cultural and structural realities. Those rights are explicitly protected with the "unenumerated rights" clause, recognizing that no document can be expected to fully cover all the natural and inalienable rights.

This is the essential problem of legalism. The legalist attempts to go from a set of enumerated principles to a system of governance, like a mathematician goes from a set of axioms to a mathematical system. The problem is, the mathematician knows that his system if complete and powerful, is inherently indeterminate – that he must pick and choose some of the truths of his system, because there are undeterminable truths in any such mathematical system.

We have to look at the empirical results, the intentions of the document, and work back the necessary principles. And any honest look at the history of law will show that that is what actually happens, despite rationalizations to the contrary.

gg, you may be right that the court is not the right venue. But first, it must be determined if the right to abortion is a basic human right under our system, regardless of its constitutional protection. From there the question of its constitutional status can be determined. But the lawyerly types of course want to start from the documents; that of course is nonsense, because the context of the document in question has changed so radically over time.
 

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