Con Law Part 2

Ms. Garza stood and faced Mr. Stanton. The debate was on.

'That's bulls.h.i.t, Stanton. The Court said abortion was not a crime at common law.'

'They lied. The only authority the Court cited were two law review articles written by the general counsel of a pro-abortion group, which articles have been roundly discredited as distortions of the common law. In order to justify their hijacking of the Const.i.tution to push their political agenda, the liberal justices misstated history by adopting one biased author's point of view.'

'History is just a point of view,' Ms. Garza said. 'Usually written by white men biased against women and minorities. The right to have an abortion was another right not mentioned in the Const.i.tution because women did not serve on the Const.i.tutional Convention. Women's voices were not heard at the time, Mr. Stanton.'

'Thank G.o.d.'

Which elicited a round of boos from the women in the cla.s.sroom. Book kicked his desk again and gestured Ms. Garza into her chair.

'Mr. Stanton, what was the key ruling of Roe?'

'That the right of privacy includes the right to have an abortion.'

'No.'

Mr. Stanton frowned.

'Ms. Garza?'

'That before viability of the unborn child, the state has no legitimate interest in the unborn.'

'The Court so held, but was that really the key ruling of the case?'

No takers.

'Come on, people, you've read the case. Think.'

Heads ducked behind the facade of laptops.

'I know you're back there. You can hide but you can't run, at least not for'-he checked the clock on the back wall-'fifteen more minutes. Was viability the key ruling of Roe?'

'No.'

A small anonymous voice.

'Who said that?'

Book searched the laptops for a face.

'Come on, fess up.'

A hand slowly rose above a laptop.

'Ms. Roberts? Was that you?'

'Unh-huh.'

Ms. Roberts peeked over her laptop on the sixth row. She had never before spoken in cla.s.s.

'Ms. Roberts, welcome to the debate. So what was the key ruling in Roe?'

She looked like the shy girl in high school who had never been on a date being asked to the prom by the football star. She took a handful of her hair hanging in her face and wrapped it around her left ear. With her index finger she pushed her black-framed gla.s.ses up on her nose. She took a deep breath then spoke in the softest of voices to the hushed cla.s.sroom.

'That under the Const.i.tution, an unborn child is not a living human being at any time prior to birth. As Justice Stevens said, it is only a, quote, "developing organism." Thus, the Const.i.tution offers no protection whatsoever to an unborn child.'

'Correct. Please elaborate.'

'The Fourteenth Amendment states that, quote, "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." Thus, if an unborn child were a "person," Roe's case would fail because the Fourteenth Amendment would expressly protect the unborn child's right to life. So, in order to find a right to an abortion, the Court had to first rule that an unborn child is not a "person" under the Const.i.tution. Which is exactly how they ruled: an unborn child is not a living human being and thus abortion is not the termination of a human life.'

Ms. Roberts had found her voice after eight months of Con Law cla.s.ses. Another small victory for Professor John Bookman.

'So?'

'So, if the unborn child is not a living human being, what's growing inside the mother-a vegetable? Dogs and cats aren't persons under the Const.i.tution either, but we have laws that prevent us from killing them for sport. And this ruling seems especially cruel given that the Court had previously ruled that corporations do qualify as persons under the Fourteenth Amendment and are thus ent.i.tled to the full protection of the Const.i.tution.'

Mr. Stanton, from the back row: 'As my man Mitt said, "Corporations are people, too."'

Which evoked a round of laughter. Book kicked his desk again.

'People, this is important. Ms. Roberts is on to something. Listen up.' Back to Ms. Roberts. 'So corporations have more rights under the Const.i.tution than an unborn child?'

'Yes. In fact, a rock has the same const.i.tutional rights as an unborn child.'

'You're almost to the finish line, Ms. Roberts. Now tell us why that particular ruling matters.'

'Because it makes us question whether we matter. It makes us question our place in the grand scheme of things. Do human beings occupy a special place in the universe or are we just a species that has evolved to a higher state of cognitive ability than, say, chimpanzees? When our highest court of law says human beings have absolutely no rights until we're born, that delegates an unborn child to the same const.i.tutional status as an earthworm or a tomato or a-'

'Rock?'

'Yes.'

'And you think you're more important in the universe than a rock?'

'I hope so.'

'So what are the possible legal consequences of this ruling?'

'What if the unborn child has a genetic defect? Can the government force the woman to abort in order to avoid costly future treatment for that child? What if the government decides to solve poverty by inst.i.tuting mandatory abortions, like in China? New York City public schools are giving the abortion pill to eighth-grade girls without their parents' permission. When our highest court says that unborn humans are not "persons" under the Const.i.tution and may be killed without constraint but corporations that manufacture weapons of war that kill millions of born humans are "persons" with const.i.tutional rights, I say, Who are those guys? Why do they get to decide what is or isn't human? Who elected them G.o.d? How do we know they're right? If they're right, who are we and what are we and what is our place in the universe? Is human life nothing more than a biological coincidence? Are our lives no more important in the universe than road kill on I-Thirty-five? Do we matter? Or are we just matter?'

'And if they're wrong?'

'We're all in deep s.h.i.t, so to speak.'

The students stared at her with stunned expressions. Except Ms. Garza. She glared at Ms. Roberts.

'What, now you're Sarah Palin? You want women to go back to coat hangers and poison?'

Ms. Roberts did not wither under Ms. Garza's hot glare.

'I had an abortion, Ms. Garza. I was ra-'

She ducked her head, and an awkward silence fell upon the room, until Mr. Stanton said from the back row, 'Ms. Garza, you are the poster child for abortion on demand.' Which evoked a round of supportive hoots.

'Unacceptable, Mr. Stanton,' Book said. 'In this cla.s.sroom we are civil lawyers, able to disagree without being disagreeable. What is my absolute rule of conduct?'

'We shall remain civil at all times.'

'You have violated that rule. An apology, please.'

Mr. Stanton seemed contrite.

'My sincere apology for my incivility, Ms. Garza.'

She faced him.

'f.u.c.k off, Stanton.'

He threw up his hands.

The first time a student had blurted out the F-word in his cla.s.s, Book had sent him packing. Eight years later, he didn't blink an eye. He was beyond being shocked by profanity-in cla.s.s, in the corridors, anywhere in public for that matter. Profanity was as much a part of speech for this generation as 'howdy' was for Book's. The F-word had made its way from the locker room to the law school. Athletes, actors, CEOs, and even vice presidents employed the F-word. It's a noun, verb, adverb, adjective, and interjection. It's mainstream speech. It's freedom of speech. The Supreme Court had in fact ruled that the government could not fine a broadcast company for the singer Bono blurting out the F-word during an award show. Book often wondered if the Framers had antic.i.p.ated that the First Amendment would one day give const.i.tutional protection to 'f.u.c.k off.'

'Not gracious, Ms. Garza,' Book said. 'People, I know this is an emotional issue. But as lawyers we must keep our heads while others around us are losing theirs. In this cla.s.sroom, we are lawyers, not protestors.'

'But we're one Supreme Court justice away from abortion being banned in America!' Ms. Garza said.

'Who told you that?'

'Biden. He said so on TV.'

'He's wrong.'

'He's the vice president.'

'He's still wrong.'

'But Justice Scalia wants to ban abortions!'

'No, he doesn't. Scalia said that as far as he's concerned, the states may permit abortion on demand. The conservative justices don't think there's a const.i.tutional right to have an abortion, but they've never said that the Const.i.tution bans abortion or that an unborn child is a "person" under the Const.i.tution. They've never disagreed with the key ruling of Roe, that abortion is not the taking of human life under the Const.i.tution.'

'You sure about that?'

'I'm teaching Con Law, Ms. Garza.'

'Professor,' Mr. Brennan said, taking a respite from his furious typing, 'do you think the Court correctly decided Roe?'

'Mr. Brennan, in this cla.s.sroom what I think is irrelevant. What you think is relevant. And that you think. I don't care whether you agree or disagree with the Roe case, only that you think about the case. As students of the Const.i.tution, we are more concerned with the Supreme Court's reasoning than with its decisions, its thought process rather than who wins or loses the case.'

'Bulls.h.i.t.'

'Ah, a dissenting opinion from Ms. Garza. In any event, we may disagree with the Court's decisions, but so long as the justices interpret the Const.i.tution, they are acting within their authority. If, however, they amend the Const.i.tution, they are usurping we the people's authority.'

Mr. Stanton: 'And that's exactly what they did in Roe. The Court can't interpret words that don't even exist.'

'Ms. Garza, doesn't Mr. Stanton make a good point? If the Framers of the Const.i.tution-'

'White men.'

'Yes, we know that, Ms. Garza. If the Framers wanted to give a woman the right to have an abortion, wouldn't they have just written it into the Bill of Rights?'

'Their misogynistic belief system prevented them from considering the plight of women, just as their racist att.i.tudes prevented them from freeing the slaves.'

'All right. Let's a.s.sume that to be true, that our Founding Fathers were unable, due to their upbringing, their religious beliefs, their views about women's place in society ... for whatever reason, they were incapable of including a right to an abortion in the Const.i.tution. Now, fast forward to nineteen seventy-three. Women may vote, use contraceptives, attend law school. States are liberalizing abortion laws. Why didn't the Court just say to Roe, "We're sorry, but the Const.i.tution does not address abortion. Therefore, you must take your complaint to your state legislature to change the law." Isn't that the correct action for the Court to take, to defer to the democratic process?'

'Changing the law through fifty state legislatures would have taken decades, and without a national abortion right poor women like Roe might have to travel to another state to obtain an abortion. A Supreme Court opinion is the law of the land. It changes the law in all fifty states in a single moment. Like that.'

She snapped her fingers.

'But, Ms. Garza, isn't the appropriate avenue to a national abortion right a const.i.tutional amendment? The Const.i.tution has been amended twenty-seven times to add the Bill of Rights, end slavery, guarantee the right to vote to women and persons of all races, create an income tax, begin and end prohibition ... Why not abortion?'

'Because the justices knew right-wing religious nuts would block a const.i.tutional amendment granting women the right to an abortion.'

'But isn't that the nature of democracy? We the people determining our own rights?'

'Not when they the Republicans deny me my rights.'

'But what do you do in a democracy when you can't convince a majority that you should in fact possess a particular right?'

'I do what Roe did-I get the Supreme Court to give me the right I want.'

'So, in a nation of three hundred twenty million people, nine unelected lawyers sitting as the Supreme Court should circ.u.mvent democracy by removing certain issues from the democratic process and declaring those issues const.i.tutional in nature?'

'Yes. And it only takes five justices to win.'

'But by removing abortion from the democratic process, didn't the Court poison political discourse in America? Abortion wasn't even part of the political conversation before Roe. Now it's a litmus test for judges and politicians, and it has polarized the nation. Roe didn't settle a political fight; it started one.'

'It gave women control over their reproductive decisions. Just like men enjoy.'

'Oh, yeah,' Mr. Stanton said from the back row. 'We've got it real good. A girl lies about being on the pill, and we're paying child support for the next eighteen years. Try telling that to your dad.'

Another awkward silence captured the cla.s.sroom.

'Uh, okay, let's move on. In nineteen ninety-two, after two decades of protests, political fights, and contentious judicial nominations, the Court again took up a major abortion case, Planned Parenthood v. Casey. The Court's stated intent was to put an end to the abortion wars in the country. In a five-to-four decision, the Court reaffirmed Roe but allowed the states more leeway in regulating abortions. Justice Kennedy's lead opinion appealed to the American people to respect their decision and accept a woman's right to an abortion as the law of the land, a lawyer's way of saying, "Trust us. We know what we're doing."'

Ms. Roberts jumped back into the fray.

'How are we supposed to trust those guys when Kennedy can write that nonsense in Casey?' She read off her laptop: 'Quote, "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Really? Maybe it's just me, but it's hard to imagine Jefferson or Madison saying goofy stuff like that.'