Treating the Unborn As One of Us

I am not saying that total brain death is my awesome rule, by the way. Don't want to commit the Harry Blackmun error. I don't want to be an asshole insisting everybody has to follow my rule. The nice thing about total brain death is that it's not my rule. It's everybody's rule. It's the rule in all 50 states, and Washington D.C., and every industrial nation in the world. Except in Japan. I don't know how they die in Japan. You say you don't like this rule? Change the damn rule. You can do that. You can totally change your death rules.

On the other hand, you can't play fast and loose with your death statutes. "Once you have white hair, you're dead." Just spitballing here, but I would call that unconstitutional. But I think--since we apply death statutes to us, and none of us want to be buried alive--that we tend to be pretty good about our death statutes. The problem is not with our definitions of death. The problem is that the Supreme Court has defined the unborn as outside the class of humanity.

I say that's bad. And unconstitutional.

What is tragic about the Court's failure to apply the equal protection clause to the unborn is that it would have helped them navigate some of these tricky waters. If the unborn are a protected class of people, if they are a part of humanity, doctors can't just kill them. But then you have to think about what is a homicide and what is not.

Say the Court in Roe struck down the Texas abortion statute as unconstitutional. But instead of writing a new abortion statute for the whole country, the Court did nothing. That would leave doctors free to do abortions, right? Not necessarily. Texas could still have charged a doctor with homicide. Some of these abortions that we read about in Supreme Court caselaw rather seem like a homicide, right?

In fact, it is this possibility, that abortion might be a homicide, that makes it troubling to separate this procedure from homicide classifications, from death statutes, from the laws we apply to the rest of us. From the statute, and the State's defense of the statute at oral argument in Roe, it isn’t clear whether Texas considers abortion to be infanticide (since it defines life as beginning at implantation) or not infanticide (since abortion has a separate section in the criminal code). Does the abortion statute preclude a murder prosecution? Is the abortionist guilty of abortion, or murder? This murkiness in the law creates a notice issue with the citizenry, hence a due process issue.

So one thing the Supreme Court could have done is void the statute for vagueness. Why is there a separate section for abortion in the criminal code? In Roe, Justice Blackmun writes, "the penalty for criminal abortion specified by Art. 1195 (10 years) is significantly less than the maximum penalty for murder prescribed by Art. 1257 of the Texas Penal Code (death penalty). If the fetus is a person, may the penalties be different?"

The answer, of course, is no. But the Supreme Court is glib and facile in assuming that discrimination against the unborn "proves" that babies in the womb are not alive and not people. Just because Texas is discriminating against the unborn does not mean that the Supreme Court should constitutionalize that discrimination. "The unborn are not people, we have proven it."

A far more subtle opinion might have voided the statute for vagueness, and asked the state to bring its abortion, murder, and death statutes into alignment. If Texas is really interested in protecting the baby's life, as it claimed, then it should welcome this opportunity to clarify what it is doing.