Douglass Bartley
Member
- Joined
- May 31, 2007
- Messages
- 722
Here the research I did:
Congress Has Power to Prohibit Elective Abortions
Monday, July 23, 2007 3:05 PM
Congress Has Power to Prohibit Elective Abortions
Wednesday, May 09, 2007 8:10 PM
Congress Has Power to Prohibit Elective Abortions
5TH, 9TH AND 14TH AMENDMENTS OF THE CONSTITUTION PROTECT UNBORN LIFE
(2nd Edition [change in title and format only]-Humbly submitted)
1. A Fetus is a Life and a Person
1.1. We start with the proposition that the “fetus” is a life and therefore a person, both biologically and colloquially. I’ll skip the biological for which there is vast material readers can find for themselves. Instead I’ll rest on the colloquial argument: as Ann Coulter once said, no one gives “a fetal shower” or says “My fetus is due next May”, or “My fetus’s tiny legs are kicking my ribs.”
1.2. I have assumed that, despite the claims of some, the 14th Amendment [see below para. 2.9.-2.10. ] is actually valid.
1.3. What then are the federal constitutional provisions that apply to the protection of life?
2. Pertinent Federal Constitutional and Other Provisions
2.1. Article 1, §8, Cl. 1. Federal Legislative Powers: “The Congress shall have Power * * *”
2.2. Article 1, §8, Cl. 17: District of Columbia and Federal Properties: “To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square), as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be for the [building] of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings . . . .”
2.3. Article 4, §3: Federal Territory Power: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States . . . .”
2.4. Article 1, §8, Cl. 1 and Cl. 18: Necessary and Proper Laws: [1] “The Congress shall have Power * * * [18] “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”
2.5. Article 3, §2: Federal Judicial Power: “The judicial Power shall extend to all Cases, in Law and Equity, arising under . . . the Laws of the United States . . . .”
2.6. Amendment 5: Federal Due Process: “No person shall be deprived of life, liberty, or property, without due process of law . . . .”
2.7. Amendment 9: Unenumerated Rights: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
2.8. Declaration of Independence: Rights to Life, Liberty, and Property; Government’s Duties to Secure Those Rights: “. . . We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed . . . .”[1]
2.9. Amendment 14, §1: Protections of persons from unlawful state action. “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
2.10. Amendment 14, §5: Enforcement Power: “The Congress shall have power to enforce, by appropriate legislation, the provisions of [Amendment 14].”
3. Reasoning and Conclusions
A: Federal Locale Cases
3.1. There are two types of cases in which the question of federal power over abortion arises: federal locale cases and state locale cases. Federal locale cases arise from the federal government’s power to legislate for federal enclaves. Because of its exclusive federal legislative power over the District of Columbia, federal properties, and federal territories, congress has power to adopt statutes governing those locales, just as state legislatures have power to enact legislation that is proper under the state’s constitution.
3.2 Those statutes could rightly include one that would prohibit all abortions in those locales except when the mother established that the mother’s life was or would be endangered by the continuation of the pregnancy. In cases of imminent danger to the mother—i.e. cases where any delay in the abortion would likely be fatal—no due process for the infant could rightly be required. The mother’s life exception would be both “necessary” and “proper” because of the mother’s right of self-preservation.[2]
3.3. In non-emergency cases arising in federal enclaves, however, congress’s statute could rightly mandate pre-abortion notice, hearing, and an opportunity to be heard. That is to say, where there was medical doubt about whether the abortion was really necessary, no life-threatening emergency pending, and time permitting, the court could appoint a guardian ad litem both to represent the unborn infant and to ensure there was adequate proof that the intended abortion was really necessary. In all cases where the mother alleged that the pregnancy was life-threatening, the cases would have to be given the top court calendar priority (as with death penalty cases).
3.4. For non-emergency cases in those federal enclaves, congress would be bound to make the legislation comport with the 5th Amendment Due Process Clause (which applies only to the federal government). The 5th says, “No person shall be deprived of life, liberty, or property, without due process of law . . . .” That command would require a judicial hearing in all non-emergency cases where an abortion was sought; for due process requires notice, a judicial hearing for one whose life, liberty, or property is imperiled, and also a fair opportunity to be heard. [3]
3.5. In non-emergency, federal enclave cases, only federal courts (or perhaps federally-established local courts) would have jurisdiction to hear the cases, because no state would have the territorial jurisdiction to hear them.
3.6. Another ground for establishing a federal enclave abortion restriction law is the concept of equal protection of the laws. Unlike the 14th Amendment, the 5th Amendment does not have an Equal Protection Clause. However, the 9th Amendment (which binds only the federal government) is undergirded by the Declaration of Independence’s proclamations that “all men are created equal” and “to secure these rights, Governments are instituted among Men”. Those provisions in effect supply federal equal protection guarantee; and that guarantee would also constitute a foundation for a federal enclave abortion restriction statute.
B. State Locale Cases
3.7. In state locale cases, we have a different set of constitutional rules, but the same result—Congress can restrict the states from enacting laws allowing elective or medically unnecessary abortions on two grounds.
3.8. First via the 14th Amendment Due Process Clause (applicable only to states). The 14th says in part, “[N]or shall any State deprive any person of life, liberty, or property, without due process of law; and goes on to give congress power to “enforce” those provisions. Therefore Congress has the power (and maybe the constitutional duty) to enact due process protections for the unborn, measures that would override any and all state laws that permit elective abortions in non-life threatening cases.
3.9. As a matter of enforcing 14th Amendment due process requirements, congress could rightly enact the type of restricting statute referred to in Para. 1 above, except that here the federal courts and the state courts would have, as a matter of constitutional law, a concurrent jurisdiction; for state courts appear to have concurrent jurisdiction over “Cases, in Law and Equity, arising under . . . the Laws of the United States . . . .”
3.10. Note that in state situs cases, there is another 14th Amendment ground upon which a federal abortion restriction could stand: “[no state may] deny to any person within its jurisdiction the equal protection of the laws.”
3.11. How does 14th ‘s Equal Protection Clause fit in with the other Amendment 14, §1 provisions? The citizenship clause was designed to give natural born and naturalized persons state and U.S. citizenship; the Privileges and Immunities clause to put all U.S. citizens, including newly-citizenized blacks, within a state on equal footing with the other citizens of that state in order to prevent legislative discriminations and to prevent 2nd class citizenship; and the Due Process Clause to insure that all persons, citizens or not, were afforded notice and an opportunity to be heard in judicial proceedings against them.
3.12. Conventional wisdom seems to be that the Equal Protection Clause is a guarantee both against discriminatory legislation and discriminatory administration or application of law; and legions of cases have used equal protection to strike down discriminatory legislation.[4] However, that “wisdom” is misguided, for it ignores the word “protection”, makes the Privileges and Immunities clause redundant, and disregards the contextual backdrop of the 14th Amendment. The word “protection” and the history of enactment show that equal protection was designed not to get at discriminatory legislation in matters of civil rights (that was the job of privileges and immunities), but only at discriminatory enforcement, administration, or application of existing law.[5]
3.13. At the time the 14th was adopted, blacks were being regularly brutalized by gangs of thugs and killed by lynch mobs. Their properties were being destroyed. The “abysmal failure of the South to protect blacks” was an American disgrace that needed to be quickly remedied.[6] The remedy the framers devised was the Equal Protection Clause, which by its terms required states to protect blacks by enforcing laws against mayhem, murder, and so on.
3.14. Professor Raoul Berger makes the point well:
What then is the substantive content of the words "equal protection of the laws"? The almost exclusive focus on "equal" has obscured the significance of the word "protection." Yet it is "protection" that is the subject of discourse; "equal" is the modifier. Whatever "protection" is furnished must be "equal." What, it needs to be asked, was to be protected? The abysmal failure of the South to protect the "person and property" of blacks against violence and murder, to safeguard the means whereby they could exist, furnishes the answer. That approach can rescue analysis from treating the word "equal" as if it were a crystal ball. "Protection," if given, must be impartial.[7]
3.15. That conclusion is not only supported by the word “protection” and by the context, but also by the fact that the privileges or immunities clause[8] was the “legislative equality clause”, the clause by which legislative discrimination against resident blacks and migrating blacks was prohibited. The problem equal protection addressed was how to guarantee that every person, citizen or otherwise, within a state was entitled to the same law enforcement protection, and the immediate effect was that blacks could legally insist, for example, on the same police protection as whites.
3.16. The same rationale applies to unborn persons: state law enforcement must guarantee the same police protection to unborn babies as it does for all other persons.
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[1] Found in the United States Statutes at Large, p.1 @ http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=124
[2] I realize that the unborn child also has rights of self-preservation (through a proxy), but I’ll skip that issue for now.
[3] “The fundamental requiste of due process of law is the opportunity to be heard. Louisville & N. R. Co. v. Schmidt, 177 U.S. 230, 236, 44 S. L. ed. 747, 750, 20 Sup. Ct. Rep. 620; Simon v. Craft, 182 U.S. 427, 436, 45 S. L. ed. 1165, 1170, 21 Sup. Ct. Rep. 836. And it is to this end, of course, that summons or equivalent notice is employed.” Grannis v. Ordean, 234 U.S. 385, 394 (1914) @ http://supreme.justia.com/us/234/385/case.html
[4] E.g.: Shapiro v. Thompson, 394 U.S. 618 (1969) (welfare residency requirements); Mississippi University for Women v. Hogan, 458 U.S. 718 (1982) (gender segregation in schools); Califano v. Goldfarb, 430 U.S. 199 (1977) (discrimination in social security benefits for women); Phyler v. Doe, 457 U.S. 202 (1982) (statute barring children of illegal aliens from public schools).
[5] See, for example, Yick Wo v. Hopkins, 118 U.S. 356 (1886) (unequal administration of law).
[6] Berger, The Fourteenth Amendment and the Bill of Rights, p. 123. Senator Wilson stated, "Thousands and tens of thousands of harmless black men . . . have been wronged and outraged by violence, and hundreds upon hundreds have been murdered." Id. at 111.
[7] The Fourteenth Amendment and the Bill of Rights, pp. 122-123.
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