If a corporation
can be a person with legal rights that ordinarily accrue only to the living,
why not a zygote? Most of us on the left can’t imagine a court deciding that a
single, fertilized cell in a woman’s body has a right to life equal to that of
the woman. But how many of us would have predicted that the Supreme Court of
the United States would come to view corporations as living organisms? Corporations
don’t breathe, don’t bleed, don’t eat. In fact, the only thing remotely human that
they do is shit on the rest of us. Not unlike our current President.
Nevertheless…
Santa Clara vs. Southern Pacific Railroad
(1886): The California Constitutional Convention of 1878-1879 denied to
railroads a tax deduction available to living residents. The Supreme Court
decided that railroads (the Union Pacific and Central Pacific had instituted
lawsuits of their own) were protected by the equal-protection clause of the
14th Amendment, just like every American. The railroads did not have to pay the
tax.
Kasky vs. Nike (2002): Marc Kasky’s
lawsuit accused Nike of false advertising after the company ran a series of ads
touting the excellent working conditions in its overseas plants. Nike’s
defended aggressively, claiming that its right to lie was protected by the 1st
Amendment’s free-speech clause. One lower court ruled in favor of Nike and
another against before the Supreme Court agreed to hear the case. The Court
finally punted, returning the case to the trial court where it was settled.
Burwell vs. Hobby Lobby (2014): Hobby
Lobby, a closely held corporation, claimed that the mandatory contraceptive
coverage in the Affordable Care Act violated the “free exercise of religion”
clause of the 1st Amendment and the Religious Freedom Restoration
Act (RFRA). The Court agreed, essentially, with a lower court ruling that
declared Hobby Lobby to be “person” under the RFRA.
Citizens United vs. Federal Election
Commission (2010): Shortly before the Democratic primaries began in January
of 2008, Citizens United, a conservative non-profit, arranged to air a
full-length, anti-Hillary film. This was illegal under the Bipartisan Campaign
Reform Act and the film wasn’t shown. Eventually, the Supreme Court overruled two
prior decisions (Austin vs. Michigan
Chamber of Commerce and McConnell vs.
FEC) when it declared that the film, whether the product of a human or a
corporation, was protected by the 1st Amendment’s guaranteed right
to freedom of speech.
Corporations are
legal entities crafted from varying State regulations. They are also, according
to our highest Court, human beings, at least for the purposes described above.
If this seems counter intuitive, I suggest the reader internalize a chiseled-on-the-tablets
truth. The Constitution of the United States is whatever the Supreme Court says
it is.
Which bring me back to my original
question: If a corporation can be a person, why not a zygote?
Consider this
excerpt from Justice Blackmun’s majority opinion in Roe vs. Wade, as cited by Rossum and Tarr in American Constitutional Law, 3rd Edition:
“Blackmun
admitted that if a fetus is a person, its right to life is guaranteed by the 14th
Amendment. But he then skirted the question of whether a fetus is a person: `We
need not resolve the difficult question of when life begins. When those trained
in their respective disciplines of medicine, philosophy and theology are unable
to arrive at a consensus, the judiciary, at this point in the development of
man’s knowledge, is not in a position to speculate upon the answer.’”
In a footnote,
Blackmun declared: “The Court’s language here is of critical importance to the
proponents of the Human Life Statute, which would declare that the life of a
human being begins at conception. They claim that the Court’s refusal in Roe to
treat the fetus as a person merely represented an admission that the judiciary
was incapable of deciding the question of when life begins.”
Later, in a
memorandum for a different case, Doe vs.
Bolton, Blackmun made the implications even more explicit. “The pregnant
woman cannot be isolated in her ‘privacy’ because she carries an embryo, and
later, a fetus. The heart of the matter is that somewhere, either forthwith at
conception, or at quickening, or at birth, or at some other point in between,
another being becomes involved and the privacy the woman possessed has become
dual rather than sole.”
The first
“personhood” bills declaring a zygote to be a human being were introduced
before Roe vs. Wade was decided, mainly at the behest of the Catholic Church. They
continue to be introduced, year by year, in State legislatures as well as in Congress.
Further, the Republican Party has not equivocated on this issue. The Party’s
2012 platform demands an end to all abortions, with no exceptions for rape,
incest or the health of the mother. “We support,” the document reads, “a human
rights amendment to the Constitution and endorse legislation to make clear that
the 14th Amendment’s protections apply to unborn children.”
Take that, mom.
Once the first
premise is granted, that human life begins with the union of sperm and egg, the
conservative argument is, at least on its face, irresistible. A zygote can
hardly be held responsible for the manner in which it was conceived. And as for
viability, embryos and fetuses are viable in the environment for which
evolution intended them. Just like the rest of us.
There’s another uncomfortable
truth here as well. If, as Blackmun wrote, “the heart of the matter” is that
human life must have a beginning point, the only beginning point available that
isn’t arbitrary is the moment of conception. Prior to the creation of a zygote,
the egg in a woman’s fallopian tube contains only her genes. After
fertilization, the zygote’s DNA is entirely its own. Clearly, the union has
created a new life. Every other assertion is arbitrary and has the feel of slamming
a square peg into a round hole.
(Note: I’m ignoring
the utter disingenuousness of evangelical Christians who assert a purely
biological definition of human life when their sole concern is acting on God’s
will. And I have to wonder how many of today’s rank-and-file Born-Agains know
that conservative Christians came to the anti-abortion table years after Roe
was decided. In point of fact, the pro-choice position enjoyed widespread
support – 60% among women and men – in 1973 when Roe was decided. And two years
later, at the confirmation hearings for Justice John Paul Stevens in 1975, no
Senator, Republican or Democrat, posed a single question about abortion or the
Roe decision.)
I could conclude
with a rant about not giving a damn when life begins. A cell is a cell is a
cell. But a cell becomes two, then four, then…. There must be a stopping point.
Only a very few among us would be comfortable with an abortion performed a month
before a woman’s due date because she decided that she didn’t really want the
child. And lest anyone dismiss this possibility, please remember, a
low-probability event is not a no-probability event. Longshots come in, too.
My personal
opinions, however, are not the point of this rant. I want to revisit the part
about the Constitution being whatever the Supreme Court says it is. If that
weren’t true, if Supreme Court decisions could be routinely dismissed, if
compliance were forced instead of voluntary, the sort of government brutality
we associate with Russia would soon descend upon us. The Warren Court’s
decisions overturned more than 170 years of Supreme Court jurisprudence. Though
conservatives have vented their rage and despair in countless speeches and
essays, they’ve lived with the Warren Court’s judgments.
Unfortunately, now
that the Republicans have stolen another election and put Neil Gorsuch, a
Samuel Alito thinkalike, on the bench, I’m relatively certain that I’ll have to
do a little coping of my own. Or maybe a lot of coping. My fear is that
conservatives – and I mean the most radical among them – will accomplish
judicially what they can’t accomplish legislatively. Justices like Alito and
Thomas, and probably Gorsuch, are reflexively conservative. Whereas Scalia
could be unpredictable, they will always affirm the libertarian principle.
Massa first.
Of course, if
the court’s present composition remains in place until we next have a
Democratic President, my fears will prove groundless. But that’s very unlikely
to happen. Anthony Kennedy is eighty years old. He’s already told friends and
colleagues that he hopes to retire soon. Kennedy, a Republican appointee, has
been the fifth vote for Roe since Sandra Day O’Conner retired in 2006.
Additionally, Ruth Bader Ginsburg, a cancer survivor, is 84 and Steven Breyer
is 78.
What might a 6-3 court (or, God forbid, a
7-2 court) staffed with the likes of Joseph Alito and Clarence Thomas do to our
present understanding of the Constitution? Might it, for example, make the
decision Blackmun refused to make? Might it finally take the position hinted at
by Blackmun, that personhood begins at conception?
Now imagine this
scenario. Kevin and Sophia, happily married, are expecting a child. Sophia is three
months into her pregnancy and both she and her husband look forward to the
birth. They shop for nursery furniture, arrange to have that spare room
painted, and maybe, if they’re especially fortunate, run ads on Craig’s List in
search of a nanny. Then comes the bad news. Sophia is diagnosed with relatively
advanced uterine cancer. If she has an immediate hysterectomy, which includes
aborting the fetus she carries, her chances of survival five years down the
line are about 69%. If she waits six months, until her child is born, until her
disease has spread still further, her chances shrink to 17%.
But whatever her long-term fate, Sophia
will almost certainly remain alive for six months. Long enough to give birth to
a healthy infant.
The personhood
bills currently in circulation would accord a zygote all the rights enjoyed by
its mother, including a right to life so basic it forms the natural law
platform from which all other rights spring. Should a conservative Supreme
Court uphold one of these bills, what might happen next is anyone’s guess. And
that would be true even if Sofia’s odds dropped still further, say below 10%,
or even if her death was certain. How do you choose between “persons” with an
equal right to life? Logic would lead you to choose the life of the fetus over
Sophia’s. If surgery is delayed, the fetus is almost certain to survive, whereas
Sophia faces a mortality rate of 30% even if her surgery is immediate.
Abortion is illegal,
with no written exception to save the life of the mother, in countries like Chile,
the Dominican Republic, Haiti, El Salvador, Honduras, Nicaragua and Surinam.
Further away, the abortion law in the Philippines gets right to the point: “It
(the State) shall equally protect the life of the mother and the life of the
newborn from conception.”
In Chile,
there’s no exception to the ban, even if it’s clear that the fetus cannot
survive. In one case, doctors were unable to perform emergency surgery on a
woman suffering through an ectopic pregnancy until a fetal heartbeat could no
longer be detected. That the fetus’s heart would stop beating was not in
question. It was only a matter of who would die first, the fetus or the mom.
But it can’t
happen here, right? If Roe should be overturned, abortion policy will be
determined by the States. That’s the general claim, anyway. But it could easily
go the other way. And you can be certain that whenever the issue does come
before a court dominated by extreme conservatives, pro-life attorneys will ask
the court to rule that personhood begins at conception, or at least firmly
establish a point at which it does begin. That done, the “equal protection
clause” of the 14th Amendment then covers both lives and it becomes
impossible to assert the primacy of one over the other without negating the
very concept of equality.
Sorry, mom.
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