When Miranda, our gutsy, cynical lawyer from Sex and the City, decided not to go the abortion way, and decided, instead, to have the baby, (besides shocking the be-jaayzuz out of us) the issues that were brought up implicated nearly every single one of the points brought up by Jack Balkin in his recent, excellent, discussion of the issue. The delectable associate, Max, (mmm...love those 'brunets' with the flowing locks) proved that beautiful hair may not grow from the best brains, by 'outing' her as a pregnant women at work. Even worse, of course Miranda had to head back home during FLEET WEEK to take care of Brady...Job (of Jehoval wrath), in my opinion, had a party compared to this.(Vince may or may not remember the time when, while walking through Times Square during this time of the year, with him explaining some abstruse point or the other, he realised he was talking to empty air - without his realising, I had reflexively turned around, and begun following a couple of sailors across Times Square). Her flatulence problems, enforced celibacy from the fourth season, and her various maternal crises in the 5th all point to the terrors of pregnancy and motherhood respectively.
The hardship of pregnancy and motherhood therefore, even for a rich, 'liberated', NYC mother, who gets to give her child her own last name, and hire both a nanny and a cleaning lady is hard. How much harder, Balkin points out (though not exactly by citing Sex and the City -though he should have) is it for women not so fortunately situated. And how much harder still, is it for those, who are forced to undergo the experience involuntarily, implicating both liberty interests as well as equal protection issues, by forcibly relegating them to a 'second class' of citizens (by deprival of said liberty) who cannot, like normal citizens fulfilling their 'patriotic duty', take part in the pursuit of sailors on fleet week. (See Section 4, which includes an intersting discussion of the intertwining of liberty (due process) and equal protection interests).
That pregnancy (Correction: abortion!) has become an accepted 'privilege and immunity' under a 'dynamic declatory rights' doctrine (Sec 2, or at least, under an evolving expected application of substantive due process doctrine), at least in NYC, is undeniable. When she found out it was pregnant, it was taken for granted that Miranda would abort - she changed her mind, not because she felt she didn't have the right to abort, but because she exercised a right (perhaps as controversial, and therefore equally profound in New York single society as its opposite would be in Texas married society) NOT to abort.
Balkin is a hero of mine. There are certain issues with his expected applications doctrine, but it is the most convincing theory of constitutional interpretation I have yet come across in my limited experience. In spite of not citing Sex and the City, against all odds, he establishes the claim that the right to abortion comes under the protective umbrella of both liberty and equality claims of the 14th Amendment. However, after reading possibly the most persuasive justification of the rights of abortion I have until date, I realised that I still wasn't persuaded by one part of his argument, namely, his complete refutation of the rights of an unborn Brady Hobbs.
Let's get it straight at the outset. I don't personally believe that the unborn have constitutional rights. However, the fundamental confusion I find in Balkin's paper is that he confuses the fact that the constitution does not say that foetuses are citizens with the fact that the constitution says that foetuses are not citizens.
Balkin presents a persuasive case that foetuses are not considered as ‘persons’ under the constitution. When one applies the text of the 14th Amendment referring to persons to today’s conception of personhood, there is indeed nothing to suggest that it, or any other section of the constitution protects the life of the foetus. Thus, the Court cannot, as Balkin rightly notes, extend federal constitutional protection to foetuses which may be aborted under State law.
However, Balkin goes further. He claims that the Court may deny the foetuses such protection; that from reading the Constitution, the Court can conclude that the foetuses have nonexistent or minimal rights, allowing the right of the mother to trump theirs. As per Balkin’s own theory of constitutional interpretation however, there must be some text in the Constitution, the application of which, leads to Balkin’s conclusion. However, as he successfully proves- there is no such text in the first place, that can be construed to apply to foetuses at all.
Foetuses then are in legal limbo: someone has to determine what rights they have. My little sister could tell you that the Constitution is not subject to inferential rules of statutory interpretation. Balkin could have claimed that a foetus has NO rights iff he had provided some theory under which the federal government would have the power to state whether the foetus is a life, and (at least in 1973) if the federal government had actually done so. (Whether the government has done so today, I’ll leave up to you). Balkin has not attempted at providing such a theory. If he had, it is my contention that he would have fallen at the first hurdle: the federal government does have the power to make this determination. (Where that leaves various federal laws today, I’ll leave up to you to decide.)
You can see where I’m leading with this: the states get to tell you whether the foetus is a life-we have to leave the realm of sole federal jurisdiction. Now, if a state (through adjudication by its court, or clear statement in its laws) agrees that the foetus has no rights, then, again, there is no issue – each girl can have an abortion at 16. However, if a state claims that a foetus is a person then we have a situation in which one party enjoys rights conferred on it by the state, acting within its powers, and another party has rights conferred by the federal government. I honestly don’t know much about torts, but I suspect that the correct referee at this point would be a state court, who would have to weigh the rights of both parties against each other.
The thing here is to not conceive of the issue solely as the State impinging on the fundamental civil liberties of an individual, with the usual doctrinal constitutional safeguards being applied – in this case requiring a compelling state interest, to trump the liberty. The State and the woman are the only actors only in those states where the foetus is clearly NOT a person. In those states where a foetus is considered a person, we are entering the realm of balancing the rights of individuals or entities against each other, thus invoking a different set of doctrinal rules.
Finally, Balkin’s last few points regarding the fact that State laws often do not conform to the perception that a foetus is a person may weigh heavily in favor of the belief that states believe, in fact that foetuses are NOT persons, allowing the constitutional rights of women to trump their rights.
However, the determination is for a state court to make (or a federal court, if the latter get jurisdiction if one of the parties has federal rights at stake). Now, what a judge on such a tribunal may actually explain away this non-uniformity quite convincingly. To assign rights to foetuses, one does not have to conceive of them as ‘persons’, either before quickening or after quickening (as many others, more citable than me, have already pointed out). Corporations, for example, enjoy several of the rights of persons, though under no theory of expected application are they truly ‘persons’ (a quality they share with several of my dates :p ). Different entities can have a different level of rights from fully fledged persons. Thus, a society may believe that a foetus has a certain right to life less than that of a person, but fundamental nevertheless. It can value that right higher than that of a woman to have a regular abortion, unless there are circumstances that increases the burden on the woman to bear the child – one could quite conceivably make a claim that bearing a child conceived through rape or incest is heavier than that of bearing a child conceived through consensual adult sex, and that the weight of the former burden may trump rights that the latter cannot.
A final note to this LONG, LONG post is basically a thought that if Dworkin is right and foetuses do not have rights, but simply ‘detached’ value, then the action may be in federal court, as technically, the foetus would have no rights claims to assert, and it would essentially be the woman suing for her rights against alleged State interest. But that I leave for more expert minds who will hopefully comment.