Laurence Tribe, long-time professor of Constitutional law at Harvard University, may be the weightiest voice in favor of a "living Constitution"—at least the weightiest voice in the public eye. He has also written an entire book in defense of abortion. It is therefore instructive to see the quality of reasoning that he brings to bear on partial-birth abortion.
1. "This memorandum addresses the constitutionality of…a proposed federal statute that would criminalize a certain abortion procedure whether or not the fetus is viable, and without making any exception for the health of the mother."
Make a careful note of the underlying assumption. The assumption is that Congress is subservient to the courts. It is up to the courts to determine whether an act of Congress is constitutional or not.
This assumption governs the entire discussion. No supporting argument is offered for this assumption.
Now the reason that Dr. Tribe offers no argument in defense of this assumption is that it represents the current status quo. So he can safely take it for granted.
But it is important to keep in mind that this assumption is by no means unquestionable. It is striking that those who are so fond of invoking Jefferson on church/state separation fall strangely silent regarding his views on judicial review:
"The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches."
—Thomas Jefferson to W. H. Torrance, 1815. ME 14:303
"But the Chief Justice says, 'There must be an ultimate arbiter somewhere.' True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our Constitution, to have provided this peaceable appeal, where that of other nations is at once to force."
—Thomas Jefferson to William Johnson, 1823. ME 15:451
"But, you may ask, if the two departments [i.e., federal and state] should claim each the same subject of power, where is the common umpire to decide ultimately between them? In cases of little importance or urgency, the prudence of both parties will keep them aloof from the questionable ground; but if it can neither be avoided nor compromised, a convention of the States must be called to ascribe the doubtful power to that department which they may think best."
—Thomas Jefferson to John Cartwright, 1824. ME 16:47
"The Constitution . . . meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch."
—Thomas Jefferson to Abigail Adams, 1804. ME 11:51
"To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves."
—Thomas Jefferson to William C. Jarvis, 1820. ME 15:277
"In denying the right [the Supreme Court usurps] of exclusively explaining the Constitution, I go further than [others] do, if I understand rightly [this] quotation from the Federalist of an opinion that 'the judiciary is the last resort in relation to the other departments of the government, but not in relation to the rights of the parties to the compact under which the judiciary is derived.' If this opinion be sound, then indeed is our Constitution a complete felo de se [act of suicide]. For intending to establish three departments, coordinate and independent, that they might check and balance one another, it has given, according to this opinion, to one of them alone the right to prescribe rules for the government of the others, and to that one, too, which is unelected by and independent of the nation. For experience has already shown that the impeachment it has provided is not even a scare-crow . . . The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please."
—Thomas Jefferson to Spencer Roane, 1819. ME 15:212
"This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt."
—Thomas Jefferson to Edward Livingston, 1825. ME 16:114
"My construction of the Constitution is . . . that each department is truly independent of the others and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action; and especially where it is to act ultimately and without appeal."
—Thomas Jefferson to Spencer Roane, 1819. ME 15:214
For more on this subject, cf. L. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford 2004).
Anyone conversant with the current state of the debate will instantly recognize that Jefferson is raising the very same objections to judicial activism that are entertained today.
Indeed, The Constitution Restoration Act of 2004, presently making its way through Congress, would limit the jurisdiction of Federal courts in certain cases and promote federalism, under the power vested in Congress by article III, section 1 of the Constitution.
2. Consider what Tribe's hermeneutical legerdemain has brought us to. He says, in all seriousness, "that fetal viability is the constitutionally significant event, ad the bill's barely-concealed attempt to apply an altogether different standard is flatly inconsistent with the Liberty Clause of the Fifth and Fourteenth Amendments as construed by the Supreme Court in Casey."
Now is that just beautiful? We really need to pause a while lest this get by us too fast. We need to take in the full force of what has just been said. He is telling the reader that the Fifth and Fourteenth Amendments address the question of fetal viability.
Let us, for just a moment, remind ourselves of what these Amendments actually say:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
"Fetal viability"? Hmm. Do you see anything in the Fifth Amendment about "fetal viability"? Okay, let's give the Fourteenth Amendment a try.
Do you find anything about "fetal viability under section 1?
"Section 1. 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."
No, nothing there. What about section 2?
"Section 2. Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state."
No, nothing there, either. Okay, it must be hidden away somewhere in section 3.
"Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability."
Gee, did I miss something? What about 4-5?
"Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void."
"Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."
It's not just that there is no express reference to the right of an abortion, much less fetal viability, in the Bill of Rights. There is no implication to that effect.
There is nothing wrong with going beyond the ipsissima verba of the Constitution in the sense of either inferring a general principle from a special case, or inferring a special application from a general principle.
But that is not what is going on with Dr. Tribe. There is nothing in either the explicit or implicit propositions of the Constitution, much less the intent of the framers or the intent of the states that ratified the document, to purport a right of abortion in the text.
What you have, instead, is something like this: once upon a time there were states that banned birth-control devices. The Supreme Court didn't like those laws. So it cast about for a way to strike them down. It did this by first inferring a right of privacy in the Constitution. From this it then inferred a right to contraception. Once upon a time there were states that banned abortion. The Supreme Court didn’t like those laws, so it inferred the right to an abortion from the right to contraception. The next step is to infer all the possible undercutters or overriders to the right to an abortion—such as fetal viability, the life and health of the mother, &c.
Now the problem with this whole line of reasoning is that it has no basis in fact. And even if it did have a bit of factual anchorage to begin with, it weighs anchor as soon as it begins to draw inferences of inferences of inferences.
What you have is a fictive legal construct. The process of reasoning is much like a literary tradition, say the Star Trek franchise. Gene Roddenberry created a storybook world with certain customs and characters and scientific laws.
Someone who writes within the Star Trek tradition as a fixed frame of reference, moving forward or backward in time. Although Capt. Kirk had no mother or father in the series, yet the character would have to have a mother and father, so you could give him and father and mother, and create a backstory out of that.
All we're doing here is to toy with the incidental implications of abstract ideas. Even if the ideas had a hook in reality, they soon take on a life of their own through mutual association.
And this is fine as long as you don't forget that what we have here is the natural play of the imagination. But to reify this free-floating, deductive chain as though it bore any sort of correspondence to what is right or wrong or true or false with the world, when it is—at most—at several removes from the real world, by some six degrees of separation, is—at very best—delusional, and—at worst—sheer flimflam dudded up in judicial robes. "
The house that Jack built" makes for a good bedtime story, but bad jurisprudence. For the law deals with real people—flesh-and-blood victims and victimizers.
We need to take a few steps back and slap our face with cold water. Words mean what they meant—which is to say, what the author meant them to mean. And words do not define reality. They have no objective, n-ordered entailments for the world at large. Rather, words and ideas have referential power only insofar as they are true to the world they represent. The world confers whatever constantive force they enjoy, not vice versa.
You cannot make a meal from a recipe alone. The recipe does not create its own ingredients. To cook up a new set of rights from the Bill of Rights by toying with merely possible consequences and unintended associations or is to substitute a paper steak for the real thing.
And if that were not bad enough, much of what passes for judicial review doesn't even rise to the level of a merely possible implication, but is only consistent with the imported premise. In what sense does the "Liberty Clause" implicate the right to an abortion? Is the reasoning that if you ban abortion, you deprive a mother of the freedom to choose an abortion? That tautology is, of course, true, but by the same token, if you criminalize bank robbery, then that infringes on the freedom of bank robbers.
And if we're going to apply such loose logic, what about depriving the baby of life? Remember the wording of the "Liberty Clause": nor shall any state deprive any person of life, liberty, or property, without due process of law." If an abortionist can apply "liberty" to the case of the mother, why can an anti-abortionist not apply "life" to the case of the child? Pretty selective prooftexting.
3. Tribe begins by faulting the bill for failing to make provision for the life and health of the mother. But he then glosses the "health" of the mother to cover "all factors—physical, emotional, psychological, familial, and the woman's age." In other words, there are no restrictions on abortion, for the definition of a woman's "health" can be extended and attenuated to any degree necessary to necessitate any abortion whatsoever. Abortion anytime, anywhere, for any reason.
This especially exposes the insincerity of his saying that Congress has no business to butt in given the "ability of the States to enact laws of their own dealing with precisely the same subject matter," for by his lights, the judiciary is superior to the legislative branch, either at the state or federal level; and that, what is more, the legislative branch has absolutely no discretion in this area for the Supreme Court has settled the matter once and for all time.
4. Tribe takes exception to the wording of the bill. He dubs this "a peculiar bit of alchemy" because "the terms ‘fetus' and ‘infant' are interchangeable," which he characterizes as a "novel definition of 'infant.'"
Well, according to the Oxford English dictionary, an infant is "a child during the earliest period of life (or still unborn)." And according to the 1611 (KJV) rendering of Job 3:16, an infant who never saw the light of day is in synonymous parallelism with a stillborn child. So it looks like Tribe is working with a novel definition of novelty.
Actually, a more egregious specimen of semantic alchemy occurs when Tribe repeated treats "woman" and "mother" as interchangeable. But these two words have different meanings and connotations. Every mother is a woman, but every woman is not a mother.
The distinction is not inconsequential. It is easier to depersonalize the abortion debate if you talk about women in general in relation to an anonymous fetus, for a woman qua woman has no relationship to any particular fetus. By contrast, a mother has a very special relationship to the child in her womb.
It is also striking how the abortionist will attempt to personalize the plight of the woman while endeavoring, in equal measure, to depersonalize her baby by the use of clinical terminology like "the fetus." Consider the tonal difference between "mother and child" as over against "woman and fetus."
5. Like every other abortionist, Tribe regularly resorts to euphemisms. He tries to cast this as a debate over "reproductive freedom" or "reproductive destiny."
Really now, is anyone denying the right of a woman to have a baby? Of course not!
Moreover, who is denying a woman the right not to have a baby? No one that I'm aware of.
Rather, the woman has already exercised her freedom of choice in consenting to engage in sexual reproduction. And guess what. When a woman engages in sexual reproduction, she sometimes gets pregnant!
So what Tribe is really saying is that a woman cannot be trusted with the consequences of her chosen lifestyle. How is this really any different from the old fashioned view that a woman could not enter into a binding contract without the approval of her husband or father or brother?
6. Dr. Tribe has a disconcerting habit of oscillating between moralistic and legalistic arguments. But these are not on a par. Legalistic arguments are based on precedent and the principle of stare decisis, as when he cites Roe, Doe, Danforth, Thornburgh, and Casey.
But moralistic arguments are independent of common law, as when he talks about "experimenting" with the life and health of the mother or "trading" her welfare for the welfare of the child. This way of speaking suggests that something ought to be law because it is morally incumbent, and not incumbent because it is a matter of law and law alone.
It is ethically unseemly, to say the least, to make the fate of the unborn child turn on merely legalistic maneuvers, erected on one false or question-begging premise upon another.
Tribe finds it morally arbitrary to make the right of the unborn baby hinge on its physical location. Of course, a prolifer would regard the child as sacrosanct at every stage of gestation. But, beyond that, it is no less arbitrary to say that a child might have a right to life in 1972, but have no right to life in 1973.
Just as artificial is the criterion of fetal viability. It should be unnecessary to point out that a pre-term baby is not supposed to be viable outside the womb. That is what the womb is for. How long can Mr. Tribe survive without food, water, warmth, or oxygen?
In the same vein, Tribe talks about the "undue burden" placed on a mother's wellbeing. This is a very unnatural way of characterizing a natural condition. One might as well say that having to walk on both feet places an undue burden on a biped.
Tribe talks about abortion as "an obviously tragic procedure that everyone wishes were never necessary." But this is a straw man argue. Most legal abortions are not medically necessary. A tragic choice is a moral dilemma that is forced upon one.