Archive for the ‘Roe v. Wade’ Tag

North Dakota may grant human rights to individual cells

Officially, the ratio of North Dakota's flag is 33:26, but they're almost always made in the more standard 5:3 ratio

Officially, the ratio of North Dakota's flag is 33:26, but they're almost always made in the more standard 5:3 ratio

The North Dakota House of Representatives approved a bill that would grant human rights to fertilized egg cells, a move designed to challenge abortion and Roe v. Wade.  The bill passed 51-41 and now moves on to the 47-member state Senate.

If passed by the Legislative Assembly and signed into law by the Governor, the bill will face a challenge in the courts, which will almost certainly declare it unconstitutional and a violation of Roe v. Wade. Critics say that defending the law in the courts will be an unnecessary expense for the state, since defeat is almost certain.  The current composition of the Supreme Court, and the likely composition after any Obama appointments, make it unlikely that that tribunal would intervene to overturn its prior precedents in abortion law.

The operative text of the bill reads as follows:

References to individual, person, or human being – Legislative intent. For purposes of interpretation of the constitution and laws of North Dakota, it is the intent of the legislative assembly that an individual, a person, when the context indicates that a reference to an individual is intended, or a human being includes any organism with the genome of homo sapiens.

The measure is very similar to Colorado’s Amendment 48 (blogged about in detail here), which would have modified that state’s constitution to define a fertilized egg as a person.  The people of Colorado examined the issue closely and handed Amendment 48 a huge defeat—73.3% of voters rejected it, almost a 3:1 margin.

To abortion opponents this sort of thing may sound good, but upon examination the law becomes extremely problematic.  Not only abortion, but many common forms of birth control that prevent fertilized eggs from implanting in the uterus would be illegal; women on the pill could potentially be charged with murder.  The law would also be likely to have a chilling effect on the medical community for various reasons.

Even if the law was a good idea, it is so likely to be struck down in the courts that passing it would amount to only a fairly costly symbolic gesture.  I think the people of North Dakota have more important business for their legislators to be attending to.

Freedom of speech and campaign finance laws

In response to my Constitution Day blog post, a friend of mine sent me the text of a speech, “The Liberal Assault on Freedom of Speech,” given by a professor of politics at the University of Dallas, Thomas West. He comments on the impact of recent campaign finance legislation on the freedom of political speech in the United States, which is, after all, the most important sort of speech since it allows you to defend or regain the other sorts of speech.

Professor West is critical of laws like McCain-Feingold, which limits the ability of citizens groups to criticize–or support–political candidates and issues within certain time periods, viz. right before an election when such speech could have the most impact. He quotes several incumbent legislators who claim the laws are designed to limit negative ads and clean up politics. Of course, as people already in office and enjoying the numerous benefits of incumbency, I can see how their own interests might bias them in these matters. West also critiques regulation of the airwaves, such as the fairness doctrine which stifled discussion of politics on the radio and involved the government in what could be discussed until it was rescinded in 1987.

The speech reminded me of a 1997 article, “A Constitutional Campaign Finance Plan,” by Michael W. McConnell, who was at the time a Constitutional lawyer and is now a federal appellate judge sitting on the 10th Circuit Court of Appeals in Denver. He criticizes the current regime, writing that “McCain-Feingold … make[s] it a crime to run an advertisement stating your views on [a] candidate within 60 days of the election. Under no coherent reading of the Constitution could it be permissible to prohibit citizens and voluntary associations from attempting to persuade their fellow citizens how to vote. That is the very core of the First Amendment.”

He argues that spending money to persuade public opinion is very good but that spending money to buy access to politicians is bad; campaign finance laws should try to eliminate or limit the later without too seriously impinging on the former. He makes a number of very interesting suggestions towards these ends, such as eliminating PACs and raising individual contribution limits. 

Individuals have many different opinions and interests, and unless their contributions are large enough to warrant invitation to a White House coffee or its equivalent, the candidate does not necessarily know what those interests are. The interests of a PAC lobbyist, by contrast, are all too clear. It also bears mention that PACs give almost 13 times as much money to incumbents as to challengers–a sure sign that the purpose of the contribution is to buy influence rather than to persuade voters.

He also proposes banning campaign contributions for a certain period, such as six months, following election day.

The postelection fundraiser, where lobbyists scurry to placate the winner, may be the most undisguised form of influence peddling in our entire system. It is particularly disgusting to see lobbyists who supported the loser suddenly switch sides. This abuse can be banned without injury to freedom of speech. Postelection contributions cannot possibly serve the function of persuading our fellow citizens how to vote. It is simply a way for the holder of public office to use his position for personal political advantage–and for lobbyists to curry favor without any danger that the other side might win.

An extension of this idea would be to require all political campaign contributions to be used by the recipient within a specified period (no longer than six months). This would prevent incumbents from amassing “war chests” to scare off potential challengers. It is hard to believe that contributions made years before the election, and before the contributor even knows who the opposing candidate might be, is a good-faith attempt to persuade. It is almost certainly an attempt to buy influence.

I think that most people are concerned about the influence of money on politics and we don’t want elections to be bought and sold.  However, we shouldn’t pass finance laws that amount to incumbent protection acts in the pursuit of reform.  There are much better ways to eliminate the bad effects of money in politics without removing our rights to support the causes and candidates that share and represent our views.

Unfortunately, since he’d be willing to strike down McCain-Feingold, McConnell is unlikely to be elevated to the Supreme Court if McCain wins, and Obama would also be unlikely to promote him, though Judge McConnell is a stud on the first amendment and has a libertarian bent that I rather like; he’s one of my two favorite federal appellate court judges.  You can read several more of his essays here; he opines on Bush v. Gore and Roe v. Wade, both of which he criticizes.

Colorado’s Amendment 48

The Flag of Colorado, one of the best in the Union

The Flag of Colorado, one of the best in the Union

This November the citizens of Colorado will be deciding on 18 ballot initiatives, including one which would amend the state’s constitution to expand the definition of person to include a fertilized egg.  The measure is called–deceptively, according to some opponents–the Colorado Equal Rights Amendment, and is also known as the Definition of Person Initiative or Amendment 48. 

The text of the initiative reads as follows:

Be it Enacted by the People of the State of Colorado: SECTION 1. Article II of the constitution of the state of Colorado is amended BY THE ADDITION OF A NEW SECTION to read: Section 31. Person defined. As used in sections 3, 6, and 25 of article II of the state constitution, the terms “person” or “persons” shall include any human being from the moment of fertilization.

Supporters obtained 103,000 valid signatures to get the measure on the ballot; 76,000 were needed.  They hope the measure will make illegal most, if not all, abortions in Colorado.  Focus on the Family, which is headquartered in Coloado Springs, is one of several groups supporting the measure.

The amendment is the brainchild of 21-year old Kristi Burton, who says “The word ‘person’ in our constitution has never been defined and because of that, there’s a whole group of people in Colorado who aren’t protected. And, certainly that would be the unborn child.”  Supreme Court Justice Harry Blackmun, author of the Roe v. Wade decision, said that the right to an abortion would be nullified by the rights of the unborn if the unborn constituted a person with rights.  As Justice Antonin Scalia argued in his dissent in Planned Parenthood v. Casey,

The whole argument of abortion opponents is that what the Court calls the fetus and what others call the unborn child is a human life. Thus, whatever answer Roe came up with after conducting its “balancing” is bound to be wrong, unless it is correct that the human fetus is in some critical sense merely potentially human. There is, of course, no way to determine that as a legal matter; it is, in fact, a value judgment. Some societies have considered newborn children not yet human, or the incompetent elderly no longer so.

He further argued that “The States may, if they wish, permit abortion on demand,” if the unborn are not considered persons, “but the Constitution does not require them to do so,” since it contains no definition of person that speaks to the issue at hand. 

Legally, the abortion debate is not really about whether killing unborn persons is okay or not–everyone agrees that killing people is wrong.  The issue is at what stage personhood is gained in the developmental process, from egg to birth, personhood is gained.  The Colorado ballot measure attempts to legally define that point.

The measure has many opponents, who have said that the measure may criminalize certain popular forms of birth control, like the morning-after pill and intra uterine devices,  which operate by preventing the implantation of the fertilized egg in the uterus.  This could be tantamount to murder if Amendment 48 is approved. 

Abortion rights groups are joined by the state’s major medical associations and societies in opposing the measure, which could make doctors who treat women of child bearing age liable to criminal prosecution, since just about anything more involved than taking a woman’s temperature could potentially impact the health and prospects of a fertilized egg that she is carrying.  Treatment of ectopic pregnancies, which often involves the termination of the pregnancy to protect the life of the mother, might also be considered murder, though I suspect the courts would eventually rule that terminating such a pregnancy, which presents serious risks to the mother, is okay.  However, most agree that lots of litigation is probable if the amendment passes.

Incidentally, only about 50% of all fertilized eggs implant in the womb.  Of those that do, about one in five will miscarry without human intervention.  (A large portion of these failures are due to genetic abnormalities.)  Thus, one might say that, if this Amendment passes, something like 60% of all people in Colorado are never even born, for completely non-abortion related reasons.

I couldn’t locate any polling data on the measure, but I think this vote will be another interesting one to watch on election night.  Colorado polls close at 7pm Mountain Time; the state is widely considered a swing state in this year’s presidential election.