Supreme Court of the United States

In re: Midwestern Public Law B005.2 Midwest Equal Rights Act

Case No. 16–15, 100 M.S.Ct 122

RestrepoMU, J., delivered the opinion of the Court, in which the Chief Justice, Panhead369 and Trips_93, JJ., joined.

Before the Court is Midwestern Public Law B.005.2 — The Midwest Equal Rights Act of 2016. The Bill, on the surface, “reaffirms” the rights of all Americans. But the true purpose of the Bill is to extend the meaning of the concept of ‘Americans’, additionally banning abortion in all circumstances. In keeping with this court’s previous rulings on the subject, we find that such a ban would violate the 14th Amendment and the sanctity of due process it protects, and therefore the relevant section is held void. Additionally, we have extended our ruling to further clarify protections on a woman’s reproductive choices, and the role of substantive due process under the 14th Amendment.

Discussion

A. Abortion and Due Process

B005.2 seeks to amend the definition of a person in the Midwestern state, going on to ban stem cell research and abortion. By using an argument at the root of many pro-life arguments; namely, that a fetus is a person and thus afforded all the rights thereof, this bill would completely rid Midwestern citizens of access to abortions (§§ 3(a), (b) and (c)). While previous attempts at outlawing abortion that have passed before this Court have often implied the argument that a fetus is entitled to full personhood, never before has it been the central justification quite like in B005.2. And while this Court does not, and cannot, decide on when life may begin, we have deeply considered the argument, and its implications.

Abortion is among the most tumultuous and controversial debates in America today. This Court has repeatedly found the issue on its docket and it is first important to be completely clear that this Court has not been presented any evidence to merit a ruling that reverses those previous decisions.

B. Substantive Due Process and Reproduction

When considering Abortion, one must first consider Mothers and their role as childbearers. It is a wholly unique circumstance in our world. The imposition placed upon women, which they willingly and happily bear, is not to be underestimated. They grow within them, a biological being, who will one day grow into an animal more advanced than any other species we know of. They do this by placing an incredible burden upon themselves, physically, emotionally, financially and mentally. And the act of childbirth itself is a further burden. Practically speaking, there is no substantial difference between the mother and the fetus. They exist, to any outside observer, as the same entity, one entirely reliant on, in every sense, the other.

However, previous cases before this Court that have dealt with abortion (notably Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood v. Casey, 505 U.S. 833 (1992)) have been tackled through the lens of Substantive Due Process, and there are few more vilified concepts in American Legal Tradition. The Constitution establishes clearly that “no person shall be deprived of life, liberty, or property without due process of law”, strictly to mean that those rights are sacred without certain procedural steps (hearings, trials and other Judicial interventions), but as human, and indeed American, history has taught us, the Judicial system cannot always be relied on to protect those rights. U.S.Const. amends. V, XIV. Therefore, in the years since the signing of the Constitution, the theory of Substantive Due Process has emerged to make it clear that some acts are off limits for government interference, “regardless of the fairness of the procedures used to implement them.” Daniels v. Williams, 474 U. S. 327 (1986). Substantive due process separates acts by persons that can be subject to government intrusion, and acts that must be beyond the reach of governmental interference. In essence, some acts are beyond the Government’s ability for procedural reasons, but some acts are so substantively abhorrent to our Republic, that they too are beyond the Government’s power.

But Substantive Due Process is often used to protect implicit rights, not only explicit rights (consider the right to privacy versus the right to free speech, respectively). And while it may be uncomfortable to legislate and discuss the existence of rights not explicitly enumerated in the Constitution, it must be said that a citizen’s rights do not exist in a vacuum. The right to freely worship and the right to free speech are not totally exclusive, and even interact. To undermine one, would undermine the other. And that is true of many rights. The concept of Implicit rights is critical because the rights we claim in this republic exist as a mesh of interconnected concepts, not standalone pillars.

Let us return to the question of Abortion and other Reproductive Rights. There is little, if any, legitimate justification a government can have to interfere with such a private and intimate process. But let us consider such an intrusion from a legal perspective. If the Government can dictate terms to a woman in the most intimate of settings, what rights could possibly be safe from government intrusion? If the Government can force a woman to carry a fetus to term, can the Government force a woman to conceive a child? Can a Government, explicitly ordered to respect a freedom to movement, claim one has no freedom to dictate their own medical procedures? Can a Government forbidden from billeting soldiers in a private house, and searching that house, claim to be allowed to interject itself into a Doctor’s office to decide what one can and cannot do? And Finally, can a Government, founded on the concept of a sacred right to “Life, Liberty and Property” deny the Liberty to choose how, where and why one creates Life?

In such a world, women would be mere vessels, a crude means to an end, held captive by their own biology. The relationship between a woman and her fetus is not akin to a mother and her child. The biological reality of that relationship, in its early stages, is simply one of a woman and her body. In society, there exists a relationship between people and the Government, where rights and privileges are fluid and complex. But a fetus has not entered that society, and instead remains in a closed and a private system, populated only by itself and the mother. If it is a woman’s right to choose whether to be, how to be, when to be and where to be sexual active, whether or not to conceive, as well as the manner and time of, and partner to conception, then those same rights must extend throughout that same biological process, or else those rights would lose all meaning. There is no legal difference.

Many have legitimate fears when it comes to the use of Substantive Due Process, and it is clear a more precise doctrine is required to govern its use. Therefore, Substantive Due Process protections of Implicit rights should be a legitimate option for this judiciary, when:

1. The right (or the regulation of that right) in question, did not exist at the writing of the Constitution, ridding the founders of the opportunity to be more explicit, AND,
2. Any deprivation or regulation of the right in question would fundamentally endanger or undermine an explicit right in the Constitution, AND,
3. The right in question is consistent in its scope and intentions, with explicit constitutional rights, OR,
4. The right in question can be clearly and easily extrapolated by examining the intersection of other explicit constitutional rights.

C. Women’s Reproduction and Strict Scrutiny

As discussed above, there exists a unique bond, and relationship, between a fetus and a mother.

Therefore any regulation concerning how women use their own reproductive system must be viewed with the highest skepticism. A woman’s free access to, and healthy use of, her reproductive system, should be regarded as specially protected by the due process of law outlined in the 14th Amendment, and any infringement must be held to its own level of strict scrutiny.

Specifically for the issue of the regulation of Male and Female reproductive rights, there should be:

1. A compelling, and specific, government interest, that serves persons in society as a whole. The government cannot sufficiently argue that a mother’s interests, regarding such a private and special process, are outweighed by an unborn, and unviable, fetus,
2. The restrictions should be narrowly tailored, to affect only the relevant government interest,
3. Those restrictions should be as unrestrictive as possible to avoid generally or effectively restricting a citizen’s overall reproductive rights.

D. Personhood

B.005.2 additionally deals with the question of personhood. This is a highly complicated and philosophical question, and one that cannot simply be answered definitively by this court today.

Despite the petitioners overtures, this court is of the opinion that because the relevant clauses, § 3(a) and 3c has not yet been applied by a government agent, or applied, interpreted or disputed by a court, there is no controversy that requires an answer.

This court has already ruled that we are “not empowered to decide […] abstract propositions, or to declare, for the government of future cases, principles or rules of law which cannot affect the result as to the thing in issue in the case before it”, (Tyler v. Judges of Court of Registration, 179 U.S. 405, 409 (1900)).

Therefore we decline to rule on the constitutionality of the relevant sections.

Conclusion

§ 3(b) does not serve a legitimate Government interest, is not narrowly tailored, and is highly restrictive, and its ban on abortions is unconstitutional, and therefore § 3(b) is held void.

It is clear that there are few more private and personal circumstances than a woman and her unborn child. Placing impositions on women concerning how, when, and where they bear children should be abhorrent to any person, and when Due Process is considered, such an interference is clearly unconstitutional.

Furthermore, this Court cannot condemn, in stronger words, the recklessness of the Midwestern state in their disregard for the law. Well aware of the law and precedent allowing abortion, Legislators and the Governor proceeded anyway. Any genuine ideological beliefs these lawmakers may have had, is overshadowed by a deep, and highly concerning, disrespect for our system of Government. Their position as Legislators does not entitle them to unlimited power. While the law cannot adequately function if it’s civilians ignore it, the law loses all meaning if legislators choose to ignore it.

We find section § 3(b) Unconstitutional, but do not find it necessary to void the entire bill at this time.

It is so ordered

notevenalongname, J., with whom bsddc and AdmiralJones42, JJ., join, concurring in judgment.

Before us is a challenge to a Midwestern State statute (B. 005.2 §§ 3(a) and (b)) under the Due Process Clause of the Fourteenth Amendment. The Midwestern State Equal Rights Act, adopted by the legislature “to restore due process to the unborn”, forbids all abortion and stem cell research within the Midwestern State (§ 3(b)), and extends to all unborn humans “the equal protection of the laws” (§§ 3(a) and c).

I.

a) The equal protection of the laws shall extend to all persons from conception until death, including unborn human beings.
c) All unborn human beings in Midwestern State are persons before the law.

Midwestern State Equal Rights Act, §§ 3a and 3c

The petitioner challenges § 3(a) under the Due Process Clause of the Fourteenth Amendment, and under our precedent in Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood v. Casey, 505 U.S. 833 (1992), under the theory that “equal protection of the laws includes murder of the subject (in this case, the fetus, which is defined as abortion)”.

We have in the past declined to rule on a Missouri law providing “all the rights, privileges, and immunities available to other persons, citizens, and residents of this state” to unborn children, Webster v. Reproductive Health Services, 492 U.S. 490, 504 (1989), because “the extent to which [the law] might be used to interpret other state statutes or regulations” could only be conclusively decided by the State’s courts. Id., at 506. Similarly, because § 3(a) has not yet been applied, interpreted, or otherwise construed by any court of the Midwestern State, we must again decline to pass judgment:

Lacking any authoritative construction of the statute by the state courts, without which no constitutional question arises, and lacking the authority to give such a controlling construction ourselves, and with a record which presents no concrete set of facts to which the statute is to be applied, the case is plainly not one to be disposed of by the declaratory judgment procedure.

Federation of Labor v. McAdory, 325 U.S. 450, 460 (1945). We are “not empowered to decide […] abstract propositions, or to declare, for the government of future cases, principles or rules of law which cannot affect the result as to the thing in issue in the case before it”, Tyler v. Judges of Court of Registration, 179 U.S. 405, 409 (1900), and therefore need not rule on the constitutionality of § 3(a).

II.

(b) Abortion and embryonic stem cell research are prohibited in Midwestern State.

Midwestern State Equal Rights Act, § 3(b)

(a)

The constitution does not eo ipso create a fundamental right to abortion. Such a right is neither inherited from English common law (or otherwise embedded in our legal traditions), nor can it be found in or derived from the text of the Constitution. Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 520 (1990) (SCALIA, J., concurring).

This Court has in the past occasionally taken the position that, even when not found in the Constitution, certain rights may in some fashion be incorporated in the same through the Due Process Clauses of the Fifth and Fourteenth Amendments. Yet, after over a century of sporadic application of the doctrine of substantive due process, neither the petitioner, nor the respondent, nor this Court or any of its predecessors have ever been able to find a reliable and workable standard under which it could be decided whether a particular “right” is a fundamental right protected by the Due Process Clause. When precedent proves unworkable, we have never found ourselves compelled to follow it. Payne v. Tennessee, 501 U.S. 808, 809 (1991), Smith v. Allwright, 321 U.S. 649, 665 (1944).

The Due Process Clauses in the Constitution protects more than rights merely procedural in notion. For example, the requirement of “due process of law” carries with it a prohibition on arbitrariness. See, for example, Usery v. Turner Elkhorn Mining Co., 428 U.S. 1 (1976) (“[T]he burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way.”, Id., at 15). Similarly, it is generally accepted that the Due Process Clause includes as a “long established and narrowly limited” extension “certain explicit substantive protections of the Bill of Rights”. Albright v. Oliver, 510 U.S. 266, 275 (1994) (SCALIA, J., concurring). It does not, however, authorize this Court — or any court — to recognize as constitutional rights any right that public opinion (or worse, the personal opinion of the select few serving on that court) demands. Prior to the introduction of substantive due process to social issues, we used that same doctrine to recognize a slave owner’s property rights in slaves that had fled or migrated into free territory (Dred Scott v. Sanford, 60 U.S. 393 (1857)), and to recognize as a fundamental right the right to freedom of contract (Allgeyer v. Louisiana, 165 U.S. 578 (1897), see also Lochner v. New York, 198 U.S. 45 (1905)). Of course, out of this parade of horribles, not one decision withstood the test of time. Dred Scott was superseded by the Thirteenth and Fourteenth Amendments within just over a decade, and the involvement of substantive due process in economic matters — along with the entire Lochner era — found its end in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) and subsequent decisions. See also Williamson v. Lee Optical, Inc., 348 U.S. 483 (1955), at 488:

The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions because they may be unwise, improvident, or out of harmony with a particular school of thought.

Indeed, when legislative action ignores any right that the people feel should be granted to them, but that is not addressed in the Constitution, or otherwise addressed by law, we have repeatedly encouraged them to seek that change by involvement in the electoral and political process.

For protection against abuses by legislatures, the people must resort to the polls, not to the courts.

Munn v. Illinois, 94 U.S. 113, 134 (1876). After all,

[w]e do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions.

Griswold v. Connecticut, 381 U.S. 479, 482 (1965).

The doctrine of substantive due process is neither grounded in the Constitution, nor otherwise supported by anything except this Court’s continued reliance upon said construct, and a fundamentally flawed interpretation of the Due Process Clause, and accordingly, it should be abandoned.

(b)

Nevertheless, § 3(b) cannot survive scrutiny.When, as in the present case, a medical procedure is regulated by a state, special care must be taken to allow for exceptions when a physician finds said medical procedure necessary to protect the life or health of a patient. The Due Process Clause, while not protecting any specific right to abortion, does protect “life, liberty, [and] property”, and — even when narrowly construing “liberty” limited to those rights grounded in the Constitution — it is this protection we rely on today.

A categorical ban on a procedure potentially necessary to protect the life of a patient is equivalent to a direct deprivation of life, for the “[d]eprivation of a remedy is equivalent to a deprivation of the right which it is intended to vindicate, unless another remedy exists or is substituted for that which is taken away.” Campbell v. Holt, 115 U.S. 620 (1885).

Where state law conflicts with a constitutionally guaranteed fundamental right, such as the constitutional guarantee of life, we apply strict scrutiny. See generally United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4 (1938). It is generally invalid unless it is justified by a compelling government interest, narrowly tailored to serve that interest, and the least restrictive means possible to achieve its goal. But a law that in specific cases mandates a deprivation of life must be met with the most rigorous, exacting possible scrutiny. See generally Gregg v. Georgia, 428 U.S. 153, 187 (1976) (“When a defendant’s life is at stake, the Court has been particularly sensitive to insure that every safeguard is observed.”).

§ 3(b) does not meet that standard.

We have recognized that the State has an “important and legitimate interest in potential life”, Roe v. Wade, supra, at 163, and it is well-established that the police power generally allows a State to provide for the public health and safety. This interest has in the past overborn individual interests. Jacobson v. Massachusetts, 197 U.S. 11 (1905) (finding a Massachusetts law mandating smallpox vaccination constitutional). Yet, we also observed that

[…] the police power of a State, whether exercised by the legislature or by a local body acting under its authority, may be exerted in such circumstances or by regulations so arbitrary and oppressive in particular cases as to justify the interference of the courts to prevent wrong and oppression.

Id., at 38, and that in cases where mandatory vaccination, or, in this case, denial of an abortion would be “cruel and inhuman”, the courts would “be competent to interfere and protect the health and life of the individual concerned.”. Ibid.

The State’s interest in protecting the unborn cannot be so compelling as to override or otherwise negatively implicate mother’s right to life, especially in light of our previous decisions that the unborn are not “persons” protected by the Fourteenth Amendment. Roe v. Wade, supra, at 158.

Therefore, because § 3(b) does not exempt abortions necessary to protect the life or health of the mother, and because its sweeping language does not allow for a narrower construction, its unconditional ban on abortions is unconstitutional, and must be invalidated.