Balkinization  

Thursday, February 07, 2019

Would the Pain-Capable Unborn Children Protection Act Be Constitutional?

Gerard N. Magliocca

In November, a Federal District Court in Michigan held the Prohibition of Female Genital Mutilation Act of 1995 unconstitutional. The Court reasoned, in essence, that the Supreme Court's decisions in Lopez and Morrison meant that this sort of local activity could not be regulated by Congress pursuant to the Commerce Clause or any other enumerated power. This was true even though the case involved a prosecution of doctors who were paid to do the procedure by a family. While states were free to ban the practice, the federal government could not.

My question is simple: If this opinion is correct, then would it not follow that a federal statute prohibiting a third trimester abortion under certain circumstances would also be invalid? I doubt that Congress can produce findings that third-trimester abortions have a demonstrable effect on interstate commerce any greater than female genital mutilation does.

One response to this, of course, is that perhaps the District Court erred in holding that the FGM statute is unconstitutional. I've having a hard time, though, understanding how the two examples can be distinguished.

Comments:

When Gonzales v. Carhart was being decided, there were arguments in certain conservative (National Review) and conservative/libertarian (Cato) institutions and such arguing basically on federalism grounds that the national ban was unconstitutional. Like such arguments against DOMA, I respect the consistency.

Thomas (joined with Scalia) also provided a concurring opinion that not only was a full attack on Roe but added "I also note that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court." This was a bit coy in my opinion since repeatedly the Supreme Court added questions for review and could have here.

Note though that -- unlike some -- neither argued that fetuses have some sort of constitutional right & readily accepted that states could allow abortions. OTOH, they have not been fully consistent about overall principles as seen in a recent ruling involving disclosure to "crisis pregnancy" centers.

There is also some attempt to differentiate such as saying that the FGMA is necessary on equal protection grounds [cf. Nevada Department of Human Resources v. Hibbs] or as international treaty obligations [Missouri v. Holland?]. I'm not sure how far that applies a pain law (putting aside the problems on the merits).

https://www.congress.gov/bill/115th-congress/house-bill/36/text

"Congress has authority to extend protection to pain-capable unborn children under the Supreme Court’s Commerce Clause precedents and under the Constitution’s grants of powers to Congress under the Equal Protection, Due Process, and Enforcement Clauses of the Fourteenth Amendment."

I don't know where the 14A power kicks in here. If were talking about Sen. Sasse's "born alive" bill, sure, but fetuses were never held to be legal "persons" for constitutional purposes. This doesn't mean without more you could not legally protect them, even as legal persons in some fashion, but it wouldn't be a 14th Amendment thing.

It sounds like an attempt to broaden the law, using pain as a test for personhood. I wonder how that would work on the non-human animal rights front.


 

My question is simple: If this opinion is correct, then would it not follow that a federal statute prohibiting a third trimester abortion under certain circumstances would also be invalid?

In dismissing a prosecution under the Prohibition of Female Genital Mutilation Act of 1995, the judge held Congress unconstitutionally outlawed a local assault under the Commerce Clause.

I believe the same reasoning would apply to efforts to outlaw a local homicide.

Of course, if the Supremes affirmed this decision, how much of the US criminal code would survive?




 

You could make a case for enabling legislation under the 14th amendment, but it would require Congress to "find" that a viable 'fetus' was a person for 14th amendment purposes. Equal protection would then require that viable fetuses be protected by state level homicide laws.

The 14th amendment restricts citizenship to post-birth, but it doesn't explicitly link personhood to birth.
 

By the way, I agree with the court about the constitutionality of the federal FGM statute. It's clearly an exercise of the general police power which Congress deliberately was NOT given.
 

The recent New York law, of course, doesn't even require any dubious "finding"; It outright violates equal protection, by depriving newborns of "immediate" protection under New York state laws, *after* they've been born.

It clearly aims to create a window during which a born, alive, citizen is deprived of any legal protection. That's a straight up 14th amendment violation under any reading of it.
 

It outright violates equal protection, by depriving newborns of "immediate" protection under New York state laws, *after* they've been born.

Not really.

"The RHA removes abortion from the state’s penal code altogether; the homicide statute still defines a “person” as “a human being who has been born and is alive.” Killing a baby once born was and is still considered a homicide."

https://www.factcheck.org/2019/02/addressing-new-yorks-new-abortion-law/
 

I think Congress has clear jurisdiction to ban FGM, even if indirectly: no implement sold in interstate commerce, or the sale of which intrastate would affect interstate commerce, may be used for FGM.
 

" Killing a baby once born was and is still considered a homicide."

Well, duh; It's kind of tautological to say that "killing a baby once born was and is still considered a homicide", in as much as "homicide" just means "killing a human". But, as we all know, not all homicides are crimes. And the state doesn't even intend to officially notice all crimes, either.

It's still the case that this law does somewhat more than just remove abortion from the state's penal code altogether. It repeals in its entire Title 5-A - (4164) INDUCED VIABLE BIRTHS, which protected the lives of babies that happened to have survived abortions.

Rather tellingly, and in a somewhat obscure manner, it also removes from the official notice of coroners the deaths of such babies. 4165 included the reporting requirements that would have notified a coroner such a death had occurred, and the requirement for a second physician to be present when an abortion past the time of viability takes place, so that the abortionist himself can certify that everything went down as it was supposed to.

So the state of New York now officially closes its eyes to such deaths. Fat lot of good the death of that newborn still being "homicide" is going to do if the state is now officially out of the business of monitoring them.
 

"I think Congress has clear jurisdiction to ban FGM, even if indirectly: no implement sold in interstate commerce, or the sale of which intrastate would affect interstate commerce, may be used for FGM."

That's not clear jurisdiction, it's just a sophistry the Court is in the habit of accepting.
 

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Brett continues to suffer from a chronic case of WICKBURN. It probably started in Brett's childhood near the border with Canada when he couldn't compete with Mexican farm laborers in "pulling radishes." Query: Were they white radishes?
 

The reference was to a "homicide statute," not homicide in general. It was in a paragraph discussing the criminal law. That is the context.

The old law selectively targeted abortion, a medical procedure, as a criminal matter. This is of a piece of regular practice -- instead of treating abortion as a general matter, it is selectively targeted for burdensome regulation.* Thus, e.g., clinics are required to provide various ideologically slanted materials and this is upheld though there are First Amendment and other concerns involved. Meanwhile, the Supreme Court strikes down disclosure rules to "crisis pregnancy centers" with a history of misleading people and put themselves out as health providers.

Removing it from the criminal code does not suddenly remove protections of babies born alive, by abortion or normal pregnancy. A very premature baby, e.g., might not survive long. But, they are protected in the state of New York by the law. This doesn't require pregnancy to be regulated as criminal matter. Concerns about physicians, regulated by the state, can be cited here too.

Are there special requirements for second physicians to make sure the other one does it right? Extra requirements are not only unnecessary but burdensome. The nuances of "obscure" regulations here probably should be taken with some humility. But, again, I would think general laws can be trusted when dealing with any babies born alive that do not survive. It is not like only abortion is a concern for anti-abortion groups either -- fear of eugenic infanticide has been expressed. But, again, putting pregnancy in the criminal code is not necessary there.

As noted in the link provided:

“The RHA does not change standard medical practices. To reiterate, any baby born alive in New York State would be treated like any other live birth, and given appropriate medical care. This was the case before the RHA, and it remains the case now.”

---

* Control of one's body in this context is admittedly not as much of a civil liberty matter as requirements regarding serving black people at a public accommodation.


 

Red, actually.
 

Looking at the ruling, the government appears to focused on the argument that the law here was legitimate pursuant to treaty obligations. The judge first said the connection was too weak and then used federalism concerns as a back-up argument.

I think Mark Field's argument a bit open-ended but as a predictive exercise would also say that the Roberts Court would find it likely constitutionally problematic. This was suggested by the Bond case [at the time, I thought the prosecution arguably valid] that was decided on narrow grounds but partially as a matter of constitutional avoidance.
 

I agree about the Roberts Court. But it's a legitimate argument under long-standing case law.
 

The cases tended to also appeal to some general overall interstate commerce hook.

Thus, e.g., use of a handgun in interstate commerce is a way around Lopez, but there is a clear problem of illegal usage of guns in interstate commerce. Wickard involved agriculture, which is currently a national industry. Health care is like 1/6 of the national economy and so on (it wasn't a matter of "just breathing").

If we are going to make a federal crime any misuse of a product sold in interstate commerce, that could potential federalize chunks of traditionally state crimes. And, I don't think the cases really generally take us that far as a whole. The case here is a case in point. Meanwhile, targeting a single abortion procedure to me was dubious as a honest application of constitutional federalism.

That sort of pushing the envelope causes problems though it might be "legitimate." This is also partially beyond the question of if we should -- ala Breyer et. al. -- rely basically on legislative checks except when some other constitutional provision is also involved. The courts do seem have tried to avoid directly facing that by not taking things too far.
 

The relevant nexus to IC wouldn't be "health care" in my suggestion, it would be the commerce in medical tools and medications, including the kinds of tools and medications necessary for such an operation. That sort of nexus was previously cited by the Court in, for example, Hospital Building Co. v Trustees of Rex Hospital.
 

"The 14th amendment restricts citizenship to post-birth, but it doesn't explicitly link personhood to birth."

At the most this argument wins you that the personhood of the unborn is not explicitly established by the 14th. There remains not a scintilla of evidence that the 14th was understood or meant to protect the unborn. A modest, non-activist court realizes this is a political question. A modest, non-intrusive government leaves this up the individual pregnant woman.


 

"the requirement for a second physician to be present when an abortion past the time of viability takes place, so that the abortionist himself can certify that everything went down as it was supposed to.

So the state of New York now officially closes its eyes to such deaths. Fat lot of good the death of that newborn still being "homicide" is going to do if the state is now officially out of the business of monitoring them."

According to this logic the death of any patient that is not certified by more than one doctor can be said to be 'legalizing homicide.' I mean, without that how can you know it wasn't? You can't trust the doctor...
 

One could go full Catherine Mackinnon and argue that FGM, since it's victims are only girls, is a violation of the Equal Protection Clause and the legislation is justified by Section 5 of the 14th.

If liberals were playing by the same rules as conservatives these days, that'd be the approach.
 

I think that's also a legitimate argument, though the concern there would be circumcision. And, of course, there are many who would ban that.
 

Mark, I don't think circumcision is quite apt because while it is only done to men it's not done to them in order to control and cow them *as men.* FGM, following Mackinnon's work, is more akin to lynching than circumcision...If the 14th allows anti-lynching legislation then it should allow anti-FGM legislation. I don't think that logic quite applies to circumcision, but then again, that should probably be left to the political process (does Congress think it must be prohibited to promote equal protection?).
 

I've always been a bit non-plussed by the hate for Wickard.

I mean, I get it, historically and empirically it had to do with, like so many things American, race and 'state's rights' to oppress blacks free from federal intervention. It expanded the commerce power which expanded the power to intervene in civil rights issues (Heart of Atlanta). And white libertarians, who mostly ignored Jim Crow, suddenly were roused to action at the prospect of an intrusive federal government trying to guarantee rights to blacks...

But if you move back from that...I get it, it says 'inter-state' so *how can it be intra-state!* There's a logic there, sure. But it's a child's logic. When I tell my kid to clean up her breakfast by saying 'hey, you have to clean up your breakfast, put the milk away and your bowl in the sink' she leaves the cereal out. When I say 'come on, why didn't you put it away' she says 'you said put the milk away and your bowl in the sink, you didn't say anything about the cereal!'

If intra-state activity impacts interstate activity then of course it's reasonable to say the power to regulate the latter includes the power to regulate the former, otherwise you essentially nullify the power granted.

But, of course, as I said, it was never about this point. It was about 'hey, you can't make me serve blacks/women/gays/etc.,!' The same people that moan about federal reach screech for federal reach when it comes to gun control, affirmative action, etc.,. It's all pure ideology, where 'principles' are tools. Propagandist ones.
 

Hospital Bldg. Co. v. Trustees of Rex Hosp. was an antitrust case, if I have the right cite. To get a flavor: "Petitioner has alleged that respondents are engaged in an unlawful conspiracy to restrain trade and commerce in the furnishing of medical and surgical hospital services, and that they are attempting to monopolize the hospital business in the Raleigh, N.C. metropolitan area."

Seems like an easier call. But, I'll end that line of argument here.

"There remains not a scintilla of evidence that the 14th was understood or meant to protect the unborn."

That might concern originalists more, whoever they might be.

I'm not totally against in theory in some fashion protecting the unborn but even there the old story about the violinist would come back. The girl or woman that is pregnant still has a claim, one much stronger at any rate by means of text and so on.
 

I'll say that I think Wickard was correctly decided, and I agree that it's both blindered and juvenile to think that commerce can be put in neat little buckets labeled "interstate" and "intrastate".

As for circumcision, I've seen the arguments against -- I don't agree with them -- and they are making the argument that it mutilates men and deprives them of their natural state.

Yes, Hospital Building Co. was an antitrust case, but the test is the same as any commerce clause case because the Sherman Act was intended to exercise full Congressional authority within the CC; thus, antitrust cases need a nexus to interstate commerce (a "substantial effect"). "As long as the restraint in question 'substantially and adversely affects interstate commerce,' [Citations omitted] the interstate commerce nexus required for Sherman Act coverage is established."

In that case, "The complaint, fairly read, alleges that, if respondents and their coconspirators were to succeed in blocking petitioner's planned expansion, petitioner's purchases of out-of-state medicines and supplies [would be reduced]…." There were other allegations as well, but these were among the allegations that the conduct at issue would have a "substantial effect" on IC. See also Summit Health Limited v Pinhas, 500 US at 329 (citing Hospital Building Co. on precisely this point).
 



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"I mean, I get it, historically and empirically it had to do with, like so many things American, race and 'state's rights' to oppress blacks free from federal intervention. "

Geeze, only the worst sort of obsessive could turn a case about whether using wheat you grew yourself on your own farm, ON your own farm, was "interstate commerce" into being about racism. I guess anything that challenges the absolute power of the federal government to do anything is ultimately about restoring slavery, right?

No, Wickard was wrongly decided. The "interstate" commerce clause explicitly divides the world into things that are commerce, and things that aren't commerce. Into commerce that can be regulated by the federal government, and commerce that can't be regulated by the federal government.

Wickard and allied cases were about erasing those distinctions that the Constitution set up, generating a list of excuses why Congress would be permitted to regulate what it deliberately hadn't been given the power to regulate.

Does the inability to regulate intrastate commerce sometimes make the regulation of interstate commerce less than perfect? Does the inability to regulate non-commerce sometimes make the regulation of commerce less than perfect?

Yeah, so freaking what? It's still only interstate commerce that Congress has been given authority to regulate.


 

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