Supreme Court to Decide on Partial Birth Abortion Ban

[Emsworth]

The law is clearly unconstitutional, not because abortion is a constitutional right, but because the federal government clearly has no authority over the issue. The states are entitled to regulate abortion however they please.

Is this pure "substantive due process," or is there a Commerce Clause element as well?

I am assuming that this is a due process case. Organizations like Planned Parenthood do not believe in federalism.

[Emsworth]

No matter how desirable a federal partial birth abortion ban might seem, it is clearly unconstitutional. I really cannot see how killing a fetus constitutes "commerce ... among the states." Even under modern jurisprudence, this law should not be sustained.

So, we have to do the next best thing, and protect babies who are in late term which have shown can survive outside of their mother (one of the requirements the pro-death crowd argues on).

Why should courts care about protecting fetuses?

[Emsworth]

But is the same fetus not a person a few hours earlier while it is still in the womb?

Yes. The theory that a fetus is a "person" prior to birth is a dubious one. "Person" is a legal term that has nothing to do with religion, science, or ethics. The term "person" has long been understood to exclude fetuses; thus, at the common law, aborting a fetus was not murder, but at most a misdemeanor.

But even if a fetus is a person, it does not follow that states must forbid abortion. Every law, in some sense or another, classifies individuals. That does not mean that every law is unconstitutional. As A18 points out, only one form of discrimination is prohibited by the equal protection clause: discrimination on the basis of race.

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You are essentially arguing that fetuses must be accorded the same rights as adults. But this position is not tenable. Under this theory, children would be allowed to marry, make contracts, drink, smoke, and so forth, because they are supposedly "subject to the same protection of the law that all other persons are."

[Emsworth]

I'm not arguing that. According to your profile you are 17, so you can't do any of those things; drink, smoke, etc. either, but that doesn't mean that its legal for someone to murder you.

If a state wishes to pass a law making it lawful for seventeen year-olds to be murdered, I know of no provision of the Constitution which will prevent it from doing so.

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The equal protection clause could mean any number of things. It might mean that states have to treat fetuses and adults equally, by protecting the lives of both. It might also mean that states have to treat rich and poor equally, by taxing both at the same rates. It might also mean that states have to treat homosexuals and heterosexuals equally, by legalizing same-sex marriage.

Almost all laws discriminate between individuals in one way or another. Abortion laws differentiate between fetuses and adults; tax laws differentiate between rich and poor; marriage laws differentiate between homosexuals and heterosexuals. Under your theory, all of these laws would be unconstitutional, because they give one class of citizens (adults, poor people, or heterosexuals) more "protection" than another class. Needless to say, a literal reading of the equal protection clause cannot possibly be sustained.

In the words of Sir William Blackstone, "the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it." The most cursory glance at history would indicate that the purpose of the equal protection clause was to obliterate distinctions between the races. It follows, therefore, that the clause prevents any state from engaging in racial discrimination. But there is no evidence that other forms of discrimination (such as age discrimination) are forbidden.

[Emsworth]

We already had that until the recent SCOTUS ruling striking down the death penalty for minors.

And?