North Dakota’s Roe challenge

posted at 3:30 pm on February 18, 2009 by Ed Morrissey

North Dakota’s House has fired a shot across Roe‘s bow, and may set up the next legal challenge to the 1973 court ruling — if the Senate plays along.  Yesterday, they passed legislation explicitly determining the start of human life at conception.  If passed into law, it would make abortion an act of murder:

North Dakota’s House of Representatives has passed a bill effectively outlawing abortion.

The House voted 51-41 this afternoon to declare that a fertilized egg has all the rights of any person.

That means a fetus could not be legally aborted without the procedure being considered murder.

Dan Ruby (R) says that the language of this bill exactly comports with Roe, in that it makes an explicit determination of the start of human life.  The testimony on this point will prove interesting, assuming it passes into law.  Scientists will likely get called to define life in general and the unique composition of a human embryo, eliminating any doubt about the status of the zygote, especially as it begins multiplying.  On a scientific basis, life at the zygote stage is indisputable and separate (though dependent) on the mother.

However, don’t count your chickens until the eggs hatch, pun intended.  Ruby managed to get this through the House for the first time after several previous attempts.  The Senate may sit on this bill rather than put North Dakota into a national firestorm over abortion rights.  Such a fight would certainly be costly, and likely futile.  The current court has shown no great willingness to revisit Roe, even as some of them have acknowledged the poor construction of the decision, including Ruth Ginsburg.

Let’s hope that North Dakota decides to fight.  Roe deserves to be overturned just on the overreach alone of justices finding “emanations” from “penumbras” to instill their own view of public policy.  This debate should have remained with the states, and it’s about time that the states demanded their voice in it.

Update: My friend Jazz Shaw disagrees:

They will probably face a few challenges which didn’t get addressed in Roe, at least one on a technicality, and North Dakota may find itself dealing with the law of unintended consequences. On the first issue there is a question which has been brought up before leading to anti-abortion enthusiasts trying to bat it away as a technicality. Many people assume that the Constitution is silent on this subject, and they’re almost right. But the argument has been made that we already have a definition of when the rights of citizens begin, if not the moment when life itself takes root. For this, we point readers to the 14th amendment.

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.

Did you catch the key phrase there? Born or naturalized. So while you may be “alive” or “a person” at the moment of conception, your rights and protections don’t kick in until you somehow manage to exit the mother’s body alive. A technicality, you say? Definitely. But bigger cases have hinged on less in the past.

Well, I think that’s mighty thin gruel myself.  Not even Roe tried using that as an origin of an emanation, or a penumbra, or vision from Gaia.  The amendment had specifically to do with citizenship, not the start of life, and place of birth is a lot easier to prove than the place one was conceived — and probably a lot less embarrassing, in some instances.

Jazz is right, though, that the language in the North Dakota law would greatly complicate in-vitro fertilization that uses multiple fertilizations and fails to implant all of the resultant embryos.  Some will see that complication as a feature rather than a bug, though, and for the same reasons they support this bill — because human life is not a commodity but sacred.


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Comments

Emancipated to where? Keeping a woman from terminating a pregnancy is one thing, but forcing her to carry a frozen embryo rather than allowing it to remain where it is, is something else altogether.

Esthier on February 18, 2009 at 5:40 PM

Emancipated to an environment where it can gestate. Perhaps a lawyer representing the embryo finds a woman willing to carry it. Does the embryo then have a right to be born independent of the parents’ consent?

dedalus on February 18, 2009 at 5:47 PM

Does the embryo then have a right to be born independent of the parents’ consent?

dedalus on February 18, 2009 at 5:47 PM

Good question. I’ve heard that this actually does happen sometimes, but always with parental consent. Plus, there’d be the issue of finding a woman with a spare uterus.

It seems problematic at best. Clearly if it were possible, then it wouldn’t be possible for the parents to have extraneous frozen embryos destroyed, which would drastically change how people store things of that nature.

Esthier on February 18, 2009 at 5:55 PM

Does the embryo then have a right to be born independent of the parents’ consent?

dedalus on February 18, 2009 at 5:47 PM

There is a whole slew of moral dilemmas that arise from in-vitro which really do not have a satisfactory answer. That is why some believe that this is not an acceptable practice to begin with, harsh I know, but you can see why it is a defensible position.

neuquenguy on February 18, 2009 at 6:04 PM

There is a whole slew of moral dilemmas that arise from in-vitro which really do not have a satisfactory answer. That is why some believe that this is not an acceptable practice to begin with, harsh I know, but you can see why it is a defensible position.

neuquenguy on February 18, 2009 at 6:04 PM

I see your point as logically on consistent. I think most people view it practically as a process where multiple embryos are sacrificed in order to create a child who might otherwise not exist.

dedalus on February 18, 2009 at 6:08 PM

I think most people view it practically as a process where multiple embryos are sacrificed in order to create a child who might otherwise not exist.

dedalus on February 18, 2009 at 6:08 PM

Personally, if we’re going that route, I’d rather go the whole way and make babies in laps independent from mothers. Brave New World and all…

Esthier on February 18, 2009 at 6:15 PM

Some of us do believe that as a fertilized egg moves to implanation, to embryonic status, then to fetus, and finally to a baby – it has a different nature and different rights. A 5 week old embryo is quite unlike a 25 week fetus. And – if someone miscarried at five weeks or 25 weeks, many families would respond differently, too.

If from the time of implantation an embryo is considered to be a person with full rights, it would seem to open a host of legal issues. If a woman loses the embryo early and is viewed as not having maintained her health, can she be guilty of homicide? Do we need to have funerals and death certificates for those who miscarry after one month?

I consider myself very much “pro-life” – nevertheless, I do believe that society already treats embryos differently from later term fetuses. And, given the broad scope of religious and philosophical views in our nation, it is not unreasonable to have abortion law that varies throughout a pregnancy.

pbundy on February 18, 2009 at 6:15 PM

I think it would be a horrible step backwards if North Dakota were to be successful in this legal definition.

I am most definately pro-choice (NOT pro-abortion; I believe there is a fundamental difference) and think that mothers who make choices like Bristol and Sarah Palin should have all the societal and government support they need in their parental circumstance.

But for women who feel differently – out of desperation, abuse, mental illness or a variety of personal and difficult situations; abortion should be an alternative; certainly in the first trimester.

In my mind… the second trimester becomes a blurry grey area and in this day and age I personally cannot think of any situation where a third trimester abortion could be contemplated.

There’s not much I agree with Hillary Clinton on.. but I agree that we should “keep abortion safe, legal and (very, very) rare.”

sharkibark on February 18, 2009 at 6:18 PM

Esthier, there is a provision of the North Dakota Code that says that age is calculated from the time of birth, so you’re right and I’m wrong.

jim m on February 18, 2009 at 6:24 PM

“Born”

Which came first, the chicken or the egg? You can’t be ‘born’ without first having conception.

This is another version of ‘how many angels can dance on the head of a pin?’

GarandFan on February 18, 2009 at 6:24 PM

If it passes the Senate I wonder how many Republicans will switch their vote to Democrats for state and local issues?

Alan on February 18, 2009 at 6:37 PM

In my mind… the second trimester becomes a blurry grey area and in this day and age I personally cannot think of any situation where a third trimester abortion could be contemplated.


Don’t be so judgmental.How dare you

/sarc

There’s not much I agree with Hillary Clinton on.. but I agree that we should “keep abortion safe, legal and (very, very) rare.”

Now do you really think Hillary means it?

Get real

Jamson64 on February 18, 2009 at 7:01 PM

“Born”

Which came first, the chicken or the egg? You can’t be ‘born’ without first having conception.

This is another version of ‘how many angels can dance on the head of a pin?’

GarandFan on February 18, 2009 at 6:24 PM

In other words…life begins at conception.

Jamson64 on February 18, 2009 at 7:02 PM

Esthier, there is a provision of the North Dakota Code that says that age is calculated from the time of birth, so you’re right and I’m wrong.

jim m on February 18, 2009 at 6:24 PM

I appreciate it.

Esthier on February 18, 2009 at 7:20 PM

Life does begin at conception. But we never have treated all life identically.

I – and many other people in our country – simply do not think that a few week old embryo is deserving of the same protections as a 2 year old – or a 25 week old fetus.

I also do not think that we really wish to return to a time when all women, irrespective of their religious or political beliefs – would have to resort to an illegal medical procedure if they wished to get a first trimester abortion. At least, I certainly do not.

pbundy on February 18, 2009 at 7:48 PM

The law of unintended consequences extends happily to

a) claiming a tax exemption on state and federal tax returns,
b) registration for social security,
c) in the event of premature death, the ability to receive the Social Security death benefit (which, as I remember from a few years back, is $400.00),
d) the parent’s ability to open a bank account and transfer the maximum gift for the 1st year.

I’ve always wondered why some Republican Senator or Representative didn’t introduce a bill which says that the mother can assert humanity for her unborn child and then immediately claim the standard deduction for same, with the provision that if the “humanized” child suffers an abortion willed by the mother, the tax benefits must be rebated/cannot be claimed. Hence, the government would in essence be offering an incentive to not abort those children conceived in the last nine months of the year. The resulting 1040 would be quite interesting to read, and I can see brains popping over at Planned Parenthood right now at the mere thought of this.

We would also see how closely the Democrats hew to “Every Child a Wanted Child.” by the debate on this bill.

unclesmrgol on February 18, 2009 at 8:36 PM

I guess Jazz Shaw did not read until the end of part of the Constutition he quoted. It says:

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.

These prohibitions respect the rights of persons, not just citizens. And so, should the Court allow fertilized ova to be regarded as persons, the rights apply. I strongly doubt however the Court would do so.

As an originalist, the question to me comes down to what the Framers meant by “person.” I bet they would certainly have included older unborn children. But, supposing they had our present state of knowledge, would they have extended personhood all the way to conception? I can’t say.

edshepp on February 18, 2009 at 8:41 PM

Emancipated to an environment where it can gestate. Perhaps a lawyer representing the embryo finds a woman willing to carry it. Does the embryo then have a right to be born independent of the parents’ consent?

dedalus on February 18, 2009 at 5:47 PM

Yes.

Note that the argument about “parents’ consent” is remarkably similar to antebellum laws (the Black Codes) regulating the beating of slaves. Slaves cannot be beaten without the permission of their master, and if their master beats them, the master cannot beat them to death, unless such beating which resulted in death was light or moderate in nature.

Buried in all that is the concept that a human viewed as property has a few rights. Not many, but a few, some of which are quite fuzzy, even after death.

unclesmrgol on February 18, 2009 at 8:44 PM

As an originalist, the question to me comes down to what the Framers meant by “person.” I bet they would certainly have included older unborn children. But, supposing they had our present state of knowledge, would they have extended personhood all the way to conception? I can’t say.

edshepp on February 18, 2009 at 8:41 PM

Does each amendment to the Constitution then require a reset on “originality”? Certainly the Fourteenth Amendment does.

The Constitution is worded to confer natural United States citizenship solely to born people; however, the individual States are free to extend further rights beyond those in the Constitution to their people.

California, for example, has a fetal murder law on the books.

unclesmrgol on February 18, 2009 at 8:50 PM

Part of the difficulty with Roe is Blackmun and company took advantage of what appears to be a 200 year old compromise in state abortion laws to recognize the rights of the mother to the exclusion of any rights in the unborn child. Every state in the Union adhered to the “born alive” rule, whereby an unborn child did not become a person for purposes of obtaining legal rights until fully born and separate from his or her mother. Although the caselaw is pretty skimpy in this regard, the reason for this distinction appears to be that the recognition of personhood in the unborn child set up the potential for an irreconcilable conflict between the rights of the mother and the rights of the unborn child, and specifically, the fundamental right to self-preservation.

For example, childbirth was a much greater risk in the 19th Century and doctors delivering women of their children often faced the choice of saving the mother or saving the child. If the unborn child possessed the same fundamental right of self-preservation as did his or her mother, upon what basis could the choice be made? Killing the child to save the mother would violate a fundamental right and visa versa.

You could recognize an exception to the unborn child’s fundamental right to self-preservation to facilitate the salvation of the mother, but to do so would set a regretable precedent that maybe the right to self-preservation was not so fundamental after all.

So, the compromise. Until the child was no longer a potential mortal threat to the mother, i.e., upon live birth, the child possessed no rights. The mother was the only one of the two with a fundamental right to self-preservation, and the state criminalized abortion, treating it differently than murder, to protect the mother and child without implicating the murder statute. Only, in 1973, Justice Blackmun held that state legislature’s couldn’t make such a compromise.

Which sets up the attempt to recognize personhood in the unborn child by the North Dakota House, which creates problems all of its own. Now, with personhood and full fundamental rights established in the unborn child, any injury to the child, from a fertilized egg to a zygote to an embryo to a fetus, may be subject to criminal prosecution or tort action, including against the mother herself. This legislation sets up the very irreconcilable difference sought to be addressed by the original compromise.

This is why the question put to then candidate Obama was so insightful: When does a baby obtain human rights? If you say at conception, you establish constitutional protection for the unborn child, but you clearly also add all kinds of legal problems as a consequence. The original compromise was a good one and the Supreme Court simply acted like a super legislature in finding that there was no compelling interest in making such a compromise.

Mongo Mere Pawn on February 18, 2009 at 8:57 PM

Emancipated to where? Keeping a woman from terminating a pregnancy is one thing, but forcing her to carry a frozen embryo rather than allowing it to remain where it is, is something else altogether.

Esthier on February 18, 2009 at 5:40 PM

Agreed. But killing the frozen embryo isn’t cool either.

The frozen embryo has (in my mind) all the rights and property interests that a child has in their parents’ estate. That’s come up more than once, where one parent wants to implant the embryo, and the other, not wanting to be burdened with the almost certain resulting child, protests greatly.

unclesmrgol on February 18, 2009 at 9:02 PM

Note that the argument about “parents’ consent” is remarkably similar to antebellum laws (the Black Codes) regulating the beating of slaves. Slaves cannot be beaten without the permission of their master, and if their master beats them, the master cannot beat them to death, unless such beating which resulted in death was light or moderate in nature.

unclesmrgol on February 18, 2009 at 8:44 PM

The men and women who were slaves were able to function apart from their masters. Children and embryos can not. We rely on parents to make sacrifices and exercise good judgment when raising kids, because we know the state will do a poor job as a substitute.

I think you agree that this legislation probably gives an embryo the right to be born-certainly if it is conceived naturally and in the womb. However, a frozen embryo would logically have the same rights.

Could the state compel a mother to be implanted? Maybe, since it would compel a mother who has just conceived to carry the child for 9 months. Practically, it’s more likely that the state could take custody of frozen embryos.

dedalus on February 18, 2009 at 9:20 PM

That’s come up more than once, where one parent wants to implant the embryo, and the other, not wanting to be burdened with the almost certain resulting child, protests greatly.

unclesmrgol on February 18, 2009 at 9:02 PM

Interesting quandary you’ve linked to. Aside from the question of when rights apply to the unborn is the issue of family stability. If giving birth to the embryo by the single mother against the father’s will creates two unstable families maybe society isn’t better off.

dedalus on February 18, 2009 at 9:34 PM

I didn’t get far in the thread. Found this. I can’t say it better.
I hope they pick the fight. It would be great for obvious reasons, but also might spark dialogue about our constitution. Furthermore, create dialogue between the libritarian and social wings of the Republican party. I would love to see these two sides come together strongly to fight to overturn Roe in spirit of states rights (moral legislation at the federal level is not in the constitution). Then, if need be, fight this out at the state level 50 times over.

WashJeff on February 18, 2009 at 3:36 PM

riverrat in va

riverrat10k on February 18, 2009 at 9:46 PM

guess i still havnt figured out the quote thingy. thot i had it

riverrat10k on February 18, 2009 at 9:47 PM

While I personally find abortion repugnant and sad, I am a realist. Women have decided to abort for inumberable (sp?) and various reasons, for thousands of years.

My OPINION, is do not provide my tax dollars to agencies/organizations that promote abortion. Don’t let douletalk about the rules of seperation of funds fool ya’.
See latest news for how effective our bloated govt. is at enforcing the regs.

If you wanta kill somebody, just don’t make me pay for it.

riverrat10k on February 18, 2009 at 9:59 PM

I bet the Senate won’t pass it.
Cap’n Ed fails to mention that passage would criminalize several popular forms of birth control, ie all those that cause failure of the diploid egg (or undifferentiated cell clump as I prefer) to implant.

No way.

strangelet on February 18, 2009 at 10:17 PM

You don’t get it yet, do you?
Republican leadership doesn’t want to strike down Roe…Bush had 8 years and never did a damn thing to weaken Roe.
Your leaders want to keep Roe as a whip to get you to the polls with.
Time is running out.
60% of the youth demographic is against repealing Roe.
Coincidentally, approximately the same percentage that voted against Prop 8 and for Obama.

strangelet on February 18, 2009 at 10:26 PM

strangelet on February 18, 2009 at 10:26 PM

You’re dumb—and a liar. Pew did a survey of the Gen Y. They’re just as pro-life as their parents, and that’s while they’re in their 20s. Douthat think this could be the most pro-life generation yet. Are they more liberal gay rights, yes, but not on abortion. I’m sorry if pro-aborts like yourself can’t handle that and needs to twist facts.

IR-MN on February 18, 2009 at 11:30 PM

Its about time one of the top 5 Left Religions get attacked…….they have attempted to shove their religions down our throats for decades…..non of which are in the USA Const.

and at the same time take away our religions….including Freedom of Religion and 2nd Amendments……all of which are in the USA Consti.

sbark on February 18, 2009 at 11:41 PM

I’m happy about this, although I know it’s an uphill battle for my state. It makes me even more confused as to why we have only liberal democrats representing us in Washington. I could understand one or two, maybe, but all three of them?

thevastlane on February 19, 2009 at 12:01 AM

Now do you really think Hillary means it?

Get real
Jamson64 on February 18, 2009 at 7:01 PM

It doesn’t matter if she means it or not. I mean it – and I am merely giving credit to someone who made a simple statement I happen to agree with.

sharkibark on February 19, 2009 at 7:00 AM

I am not a liar.
I am citing the Hamilton poll, just like Douthat, where 70% of the respondents stated they would not personally have an abortion.
What Douthat DOESN’T cite is that 60% of those same respondents are against strking down Roe v Wade.
Is Douthat a liar or just lacking reading comprehension skillz?
You pick.
;)
Decrying abortion is not at all the same thing as overtuning Roe.
As we will soon see in Jesusland Nebraska.

strangelet on February 19, 2009 at 9:33 AM

I truly hope my home state decides to fight the fight to the bitter end.
Many Dems here are on board with this.
I truly hope that our legislators don’t get chicken$hit over this.
We have a budget surplus here, why not spend some of it fighting this?

Badger40 on February 19, 2009 at 10:15 AM

Moronbadger
Do u actually unnerstand what that bill means?
Doctors can be jailed for prescribing birthcontrol, women that that birthcontrol can be jailed for murder, unwilling women can be forced to have cryo-embryos implanted against their will.
Your legislature just made your stupid state into a RL version of the Handmaids Tale.
For however long it the Supremes to invalidate it.

strangelet on February 19, 2009 at 12:10 PM

Great, so then we can have murder investigations against every mother whose baby dies during pregnancy.

Of course, since misogny is now acceptable in the US, we might as well declare women property of their husbands or fathers and be done with it.

Nora on February 19, 2009 at 12:54 PM

wow……no one is sayin’ anything in whole blogverse.
I guess the stupidity of this law has taken everyone’s breath away.

strangelet on February 19, 2009 at 1:54 PM

strangelet on February 19, 2009 at 1:54 PM

A pity that you seem to be immune to its effect.

JadeNYU on February 19, 2009 at 3:10 PM

Life does begin at conception. But we never have treated all life identically.

I – and many other people in our country – simply do not think that a few week old embryo is deserving of the same protections as a 2 year old – or a 25 week old fetus.

I also do not think that we really wish to return to a time when all women, irrespective of their religious or political beliefs – would have to resort to an illegal medical procedure if they wished to get a first trimester abortion. At least, I certainly do not.

pbundy on February 18, 2009 at 7:48 PM


But this is essentially the problem. You and these mysterious others represent the Romans leaving their children to the elements. We, in favor of life, represent the Christians and Jews retrieving the pagan children to protect their lives from selfish parents.

To answer the statistical equivalent of genocide with supposed tragedy is a hollow argument. If these 50 million children were not murdered there never would have been a need for cheap labor to fill any perceived gaps in the labor force. But promoting the slaughtering 3 out of every 5 Black children since the 70’s sure proved to fulfill the legacy of Sanger, no matter what the intention.

Fivo on February 19, 2009 at 4:12 PM

How does this help Michelle Obama’s children? >.<

BlameAmericaLast on February 19, 2009 at 5:22 PM

Ed, be careful what you wish for.

There is nothing that can define human life as being sacred without including all life. As soon as you draw that sort of argument into the picture then we all must become vegetarians. But, wait, vegetables are life, too. And, like all life, they have the same basic structure to their DNA we humans have. We won’t be able to eat anything that does no die a natural death. And we’re not equipped to survive that.

Going the other direction, just when does the spark of humanity come alive? This is also a point of disagreement. On religious grounds the moment of conception is selected with purely mystical basis by Evangelical Christians, among others. At the other end the infant must survive a substantial time before it is considered to be human in Islam. A scientist might look for when unmistakable features that distinguish humans from animals appear in the fetus/child. Hands may not qualify here. When can you distinguish a human from another primate?

If the legal arguments start running into those directions you may find the ruling from the courts more consonant with the Islamic doctrine than the “moment of conception” doctrine or even the “before the moment of conception” doctrine of those religions that also eschew contraception.

This is a rather tough issue to adjudicate. We, as a nation, have a requirement to adjudicate with purely secular criteria in this regard as in all others. That means science will appear in the court room for this. And the results will surely disappoint those who force the issue into court on evangelical motives.

My darkest suspicions suggest it would be a really good idea for evangelicals to work to keep the issue OUT of court. I figure they would lose a month to as much as a year on the basis of “the spark that distinguishes man from the animals” arguments. (And some apparent humans never do seem to develop that spark. What about them?)

Winning would be cool, I admit. But look to the potential downside before jumping into the legal pool. Legislating the value of PI does not work.

{o.o}

herself on February 19, 2009 at 6:34 PM