This argument is, in fact, arguably a stronger case against allowing abortion in
any circumstances than against allowing moderate restrictions on the practice, although the Court must pause to point out in no uncertain terms that such a debate is a political question outside the scope of this case and that this matter concerns the powers of the Senate on this issue, not the legality of the medical procedure of abortion
per se.
Astute readers may perceive that we have so far focused almost entirely on the respondent's defense of the LTARA rather than Mr. Foucaulf's case against the law. This is because we believe that the fact that clear, limited, powers are granted to the Senate puts the onus of constitutional justification squarely on the legislature and the government - a law passed by the Senate must be justified in order to exist. The burden of proof is on the legislators who pass the law and the authorities who enforce it. A law passed by the Senate must be considered unconstitutional by default without a clear justification within the nearly three dozen powers delegated to the Senate in Art. I, §5, c.1-32. Indeed, the Attorney General makes no attempt to justify the LTARA under these pre-existing outlined powers.
In his brief, the petitioner, Mr. Foucaulf, attacks several arguable justifications for the LTARA under Art. I, §5. We will examine these in turn. Petitioner specifically cites c.13, c.14, c.30 and c.31 as potential - and in his view invalid - justifications for the law.
Art. 1, §5, c.13 grants the Senate the power to -
This is a clause that has in our opinion been misinterpreted in past decisions which we will not revisit here. There is no justification for restrictions on an elective medical procedure such as abortion in c.13, since abortion cannot under any fair reading of the text be considered "research", "investigation", or a "demonstration", let alone relate to the cause, diagnosis and treatment of medical disorders. It is clear that c.13 is intended to limit this power of the Senate to - and only to - medical research activities.
Art. 1, §5, c.14 continues that the Senate has the power to -
While we will concede that a particularly inventive lawyer could argue that pregnancy is a contagious disease, the Court must regrettably shy from bringing anti-natalism into the annals of constitutional scholarship. As with c.13, the power of the Senate here is explicitly and plainly limited to a
specific issue - preventing the spread of disease. The LTARA cannot, therefore, be reasonably justified under this clause.
Mr. Foucaulf then notes that the Senate has the power under Art. 1, §5, c.30 to -
Again, the principle of plain meaning prevents a fanciful interpretation of this clause, which has been correctly applied to uphold bans on smoking in workplaces. Unless we were to accept that legislating on trimester limits on abortion was a bizarre generational economic project designed to protect the Public Health of a future generation of employees and provide business with "commerce", we cannot, either, uphold the LTARA under c.30.
Finally, Mr. Foucaulf directs the Court's attention to Art. 1, §5, c.31, which grants the Senate the power to -
Similarly, a reading of this clause that would allow the LTARA to survive would require us to argue that restrictions on abortion constitute the protection and preservation of "natural beauty", "biological diversity" or "other natural resources". While we could, admittedly, claim that unborn life constitutes "biological diversity", and no member of this Court would dispute the clichéd politician's maxim that children are the nation's most precious resource, we cannot reasonably uphold the LTARA on the basis of a clause that clearly refers to wildlife and the natural environment.
With no other clause providing an even semi-plausible justification for the LTARA, it becomes obvious that upholding this law would require a tortured reading of the Constitution. The Court would be wrangling a constitutional rationale for the law from a section with no apparent relevance. This would of course lead inevitably to severe constitutional issues - perhaps the Senate's ability to legislate for abortion can then be derived from Art. I, §2 c.15's bequeathing of the power "[t]o provide for the humanitarian relief of the distress caused by unpredictable events of natural or man-made origin." Unfortunately, we must reluctantly decline to impose such a novel interpretation of our Constitution upon the nation.
The respondent continues to argue that, should the Court overturn the LTARA and reiterate the strict limits placed on the powers of the Senate, we would potentially open all manner of past legislation to constitutional challenge. That may or may not be so, but it is not sufficient reason to grant the Senate sweeping powers in a haze of legal ambiguity.
Specifically, the respondent claims that -
Perhaps so, but it is not clear to us why the Court should be obliged to uphold this law because the Senate has grown comfortable with potentially overreaching its proper mandate. Law that may come before the Court as the result of our judgement in this matter, such as the several examples of recent legislation that the Attorney General cites, will survive or be struck down on its own constitutional merits and whether it is justified under the thirty-one powers granted to that august body. The apparent implication that an increasingly imperial Senate, untethered from its defined role in public life - "[...] the manner in which the Senate has conducted its affairs in recent years," - has enacted sweeping legislative action that may exceed the parameters set in Art. V, is in our view all the more reason to today restate the limits of the Senate's ability to impose its will on the nation.
It may be that this ruling will have "political implications", as the Attorney General alleges, but it would be a shameful dereliction of our overriding duty to the bedrock law of Atlasia for us to ignore the pressing constitutional questions surrounding this issue because it may upset some elected representatives. What the respondent refers to as a "narrow" reading of the text of the Constitution is nothing more than what the petitioner correctly refers to as an application of the well-established and storied "plain meaning principle".
Concluding his spirited attack on the legality of the LTARA, the petitioner states that -
We are, however, willing to be unreformed theists on this point. As the former Justice Spade wrote in
Junkie v. Atlasia -
We see no compelling rationale for overturning this precedent. It seems to evident to us that, if abortion is to be legal in Atlasia, and as mentioned in the analysis of the 'implicit definition of life' argument presented by the Attorney General, such a discussion is outside the remit of this particular case, then the regions, and the regions alone, must possess the constitutional power to legislate on this procedure.
To digress briefly on a point of personal privilege, the Court is naturally aware that the current administration is nearing the end of its term. Should Mr. ZuWo not continue in his role as Attorney General in the next Cabinet, we wish to extend our gratitude and thanks for the co-operation and courtesy he has always shown to this Court throughout his tenure in the nation's highest law enforcement office, and wish him well in his future endeavours.
Today, the Court upholds the longstanding precedent set by
Fritz v. Ernest (2004) and
Junkie v. Atlasia (2010). The Senate is granted, as Justice Spade notes in his landmark ruling in
Junkie..., "broad [but] certainly not universal" powers under the Constitution. Any legislation that cannot be justified under the powers enumerated in Art. 1, §5, c.1-32 represents an illegal overreach of the Senate's proper role, and the constitutional onus must be on the Senate to legislate within these strict limits. To rule otherwise would not only be to reject a decade of overwhelming and compelling precedent on a component of the Constitution that has survived virtually unscathed the countless revisions of the document, but would cede theoretically limitless power to the federal Senate at the expense of the sovereign building blocks of Atlasia, the regions and the regional governments.
We therefore choose to uphold the precedent, which remains today, as it has in years prior, the only fair and reasonable reading of the text of the Constitution. The Senate has no authority to legislate on abortion. The
Late Term Abortion Restriction Act has no justification under these strictly limited powers, and it therefore cannot stand, in whole or in part.
The Late Term Abortion Restriction Act is thus in violation of the Constitution of Atlasia, and it is hereby struck down in its entirety.
