The Instigator
CASmnl42
Con (against)
Winning
17 Points
The Contender
philochristos
Pro (for)
Losing
0 Points

The Life at Conception Act would effectively negate the constitutional right to abortion

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Post Voting Period
The voting period for this debate has ended.
after 3 votes the winner is...
CASmnl42
Voting Style: Open Point System: 7 Point
Started: 2/16/2015 Category: Politics
Updated: 2 years ago Status: Post Voting Period
Viewed: 1,128 times Debate No: 70128
Debate Rounds (4)
Comments (9)
Votes (3)

 

CASmnl42

Con

I've invited philochristos to this debate. I look forward to our exchange.

This debate is inspired by another currently-running debate about whether Congress should pass the Life at Conception Act. The debate can be found here: http://www.debate.org...

And the text of the bill can be found here:
https://www.congress.gov...

I am intrigued by a related question not being discussed in that debate. The proponents of the bill argue that the Act would effectively undermine the rationale for Roe v Wade and other cases recognizing a constitutional right to abortion. (http://www.prolifealliance.com...) I would like to debate whether there is any legal basis to think that this act of Congress, if validly passed and enacted, would be legally effective in overturning the judicially-recognized right to abortion under the 5th and 14th Amendments.

I will argue the con position, that the Act would be legally ineffective. Pro would bear the burden of proof to show that there is a plausible legal theory under which at least five Supreme Court justices would recognize the Act as invalidating the right to abortion.

Both debaters should agree not to debate the morality of abortion or the political likelihood of enactment. The philosophical definitions of life and personhood are not relevant, though discussion of the legal definitions would be expected. This is not a debate about the desirability of the Act, but its legal efficacy.

Round 1 should be for acceptance, rules and definitions, no arguments.
Round 2, principle arguments
Round 3, rebuttals of R2 arguments and further arguments
Round 4, rebuttals of R3 arguments and conclusions, no new arguments

Thank you - looking forward to an intriguing discussion.
philochristos

Pro

I accept! Thank you for picking me. :-) Maybe the odds be ever in your favor!
Debate Round No. 1
CASmnl42

Con

I want to thank philochristos for agreeing to this debate. I look forward to our discussion. Although philochristos is supporting the resolution, Con will argue first, because... Well, because I'm still new here, and I made an amateurish error in setting up the debate structure. But! Anyway! Nevertheless! Mistakes were made, etc., best just ignore and push past 'em. There's still a lot of fertile ground to cover here.

-

I'd like to begin with an analogy. The Second Amendment, as we all know, protects the right to keep and bear arms. What if Congress, in its wisdom, passed a law stating that "The word 'arms' in the 2nd Amendment shall mean flint-lock muzzle-loading muskets." Would Congress have the power to do so? Or would that be an unconstitutional infringement of rights? Or consider the freedom of press in the First Amendment. Could Congress define "press" to mean just "print newspapers and books," and thereby restrict the content of broadcast media or online conversation?

The answers to these questions are intuitively obvious - Congress cannot redefine constitutional rights out of existence. While the case at hand is not quite as simple as the examples above, it is almost that simple. As a general, foundational principle, a legislature cannot change a constitution by means of a statute.

-

I take the position that the Life at Conception Act ("Act") would not, if passed, be legally effective at restricting the constitutional right to abortion recognized by the Supreme Court in Roe v. Wade and reaffirmed in Planned Parenthood v. Casey. Under the scope of this debate - and importantly, under the scope of the arguments offered by the Act's supporters - it does not matter whether the Supreme Court rightly decided those cases. They have not been overruled and remain valid law. The Act is an attempt to work within the framework set by Roe and Casey and nevertheless undermine the constitutional right to abortion. I will make my initial argument within the same framework.

The Act in question claims to "implement equal protection under the 14th article of amendment to the Constitution for the right to life of each born and preborn human person." The Act "declares that the right to life guaranteed by the Constitution is vested in each human being," and defines "human being" to "include each and every member of the species homo sapiens at all stages of life, including the moment of fertilization, cloning, or other moment at which an individual member of the human species comes into being." [1]

Supporters of the Act claim that if Congress can redefine when life begins by means of a statute, the constitutional reasoning underpinning Roe will collapse. This is not true, for the following reasons:

The Act is not within the scope of Congressional power.

Because the federal government is a government of limited powers, Congress cannot pass laws that are not within the scope of its authority as defined by the constitution. In some areas this power is broad - interstate commerce, for instance - but in others it is quite narrow. The Act purports to be authorized by two constitutional provisions, neither of which is a plausible source of constitutional authorization for this bill.

The first is the "necessary and proper" clause of Article I, Sec. 8. Section 8 lists 17 specific powers granted to Congress, and then states that Congress "shall have Power To…make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers." It does not, by itself, authorize any exercise of power not already granted to it elsewhere in Section 8. Section 8 authorizes Congress to borrow money, regulate commerce, declare war, but not to define life. The Act does not plausibly fall within Congress's Section 8 powers.

The second is Amendment 14, Sec. 5. The 14th Amendment is one of the post-Civil-War amendments which sought to abolish slavery and establish legal equality not just under federal law, but under state law; thus, no State may "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." Section 5 permits that "Congress shall have the power to enforce, by appropriate legislation, the provisions of this article." Section 5 does give Congress a new power - power to pass legislation to make sure that the states comply with the 14th amendment. It does not give Congress any power to redefine the terms of the 14th Amendment.

The Act does not undermine the reasoning of Roe v. Wade.

The Act's supporters pull two quotes from Roe v. Wade severely out of context in making its argument. [2] [3]

The first is the Court's declaration that "We need not resolve the difficult question of when life begins...the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer." The implicit argument is that if the judiciary cannot answer the question, perhaps Congress can provide just such a definition. The second statement in question is that "if [a] suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the [14th] Amendment." These statements are being quoted out of order, however, and the order matters. Taken in the order presented by supporters, it appears that the Court is searching for some definition of life or personhood and, finding that it can arrive at none, finds no protection in the 14th Amendment for fetuses.

Taking the statements in the order they appear in the decision, the reasoning of the Court becomes clearer. First, the Court addresses the definition of "life" as that word appears in the 14th Amendment guarantee of "life, liberty, [and] property." The Court is saying that if a fetus is a person under the 14th Amendment, then the case for a legal right to abortion collapses. To answer this question, the Court makes an originalist argument - what did the people who wrote the 14th Amendment define as a "person"? The Court concludes that "The Constitution does not define "person" in so many words," but that in every place the word is used, "the use of the word is such that it has application only post-natally." That, combined with the observation that "throughout the major portion of the 19th century, prevailing legal abortion practices were far freer than they are today," the Court concluded that the drafters of the 14th Amendment would not have considered a fetus a person under the Amendment. This is the controlling ruling, and having been made, cannot be undone by a post-hoc Act of Congress.

The second statement arises from having already decided what "person" means under the 14th Amendment, and the Court already determined that a fetus is not a "person." Nevertheless, the state of Texas, defending its restrictions on abortion, asked the Court to rule that even though the framers of the 14th Amendment would not have considered a fetus to be life, that life nevertheless begins at conception. But, having decided the core legal issue of what the 14th Amendment means, the Court declined to wade into the thorny philosophical, moral and religious issue of when life "actually" begins.

In this light, the Act would not have any effect. The Court's ruling is premised on what the 14th Amendment meant to the framers, not to what legislators later determine. The Act does not undermine the Court's reasoning in Roe.

The Act's supporters have not "counted to five"

If the Act were to be passed, the ultimate determination of its constitutional effect would be decided by the nine members of the U.S. Supreme Court. For the Act to be valid, five members of the Supreme Court would have to rule that the Act had the intended effect of undermining the right to abortion. Assuming the current composition of the Court remains stable, there is no plausible combination of five justices that would vote to effectively end the right to abortion because of this Act.

The Court is typically seen as composed of two major blocks -- the conservative wing (Alito, Thomas, Kennedy, Scalia, and Roberts) and the liberal wing (Kagan, Sotomayor, Breyer, and Ginsburg). Kennedy is typically considered a swing voter between the two blocks, but leans decidedly to the right on most issues.

Within the liberal wing, it is implausible that any of the four justices would find the Act efficacious. All have consistently supported abortion rights from the bench, and none are committed to a judicial philosophy that would place a statutory definition over the "fundamental liberties inherent in the concept of ordered liberty" guaranteed by 14th Amendment jurisprudence.

Kennedy would also be unlikely to defer to the Act's definition. A central part of Kennedy's legacy is voting to uphold abortion rights in its most critical post-Roe test, the Casey decision - and the man is legacy-conscious. While he has tolerated legislation that significantly limits abortion rights, he has consistently affirmed their existence, if grudgingly.

Although the remainder of the conservative wing has proved hostile to abortion rights, one or two might prove surprising votes against the Act. In particular, Alito, Thomas and Scalia each subscribe, to varying degrees, to judicial philosophies of originalism and strict constructionism, both of which are hostile to Congressional modification of definitions of terms found in the constitution. Since, as noted above, the Roe decision rests in part on an originalist argument, one or more conservatives may vote to reject the Act from the standpoint that it is the Court's job, not Congress's, to declare what the law means.

For these reasons, I believe the Life at Conception Act would be ineffective at undermining the right to abortion

[1]http://www.congress.gov...
[2]410 U.S. 113 (1973); http://supreme.justia.com...
[3]http://www.prolifealliance.com...
philochristos

Pro

I had a simple argument I was going to make that Con has already responded to. I've been struggling with this for a few hours now, and I've come to the conclusion to Con is right. The majority opinion in Roe v. Wade states that the unborn are not included as "persons" as that word is used in the 14th amendment. Congress does not have the authority to undermine or alter the Constitution merely by redefining words. The only way to change the definition of "person" to include the unborn so the unborn would be protected by the 14th amendment is with another Constitutional amendment.

So I concede. Congratulations to Con for a well-argued case.

In the following rounds, I'll just put "this space intentionally left blank." so we can hurry up and get to the voting.

Debate Round No. 2
CASmnl42

Con

Thanks for the concession. I may repost at a later date
philochristos

Pro

This space intentionally left blank.
Debate Round No. 3
CASmnl42

Con

And that should do it. Please vote Con.
philochristos

Pro

This space intentionally left blank.
Debate Round No. 4
9 comments have been posted on this debate. Showing 1 through 9 records.
Posted by CASmnl42 2 years ago
CASmnl42
Lannan13 - in the body of Round 1, I am more precise that there is a "judicially-recognized right to abortion under the 5th and 14th Amendments." From the standpoint of the legal realist, the constitution says whatever five justices at any given time *say* it says.
Posted by lannan13 2 years ago
lannan13
There is no constitutional right to abortion.
Posted by Chuz-Life 2 years ago
Chuz-Life
Please add my name to the list of takers for this challenge. I like the direction this is going.
Posted by Soldiercide 2 years ago
Soldiercide
It is an interesting tactic, one used in Sweden (if I am not mistaken) with respect to prostitution. It's a bit chickensh*t in my opinion, but interesting nonetheless.
Posted by philochristos 2 years ago
philochristos
I would like to accept. My argument would be very simple.
Posted by TBR 2 years ago
TBR
Damn good question con. This is the type of abortion debate worth discussion! I have no interest in taking it, but well done.
Posted by Lexus 2 years ago
Lexus
Thought I was going to be the only person that had an interest in this, so I rescind my "application" for this debate
Posted by Soldiercide 2 years ago
Soldiercide
I don't meet the criteria either, but I would argue that scientific and legal movement following Roe v. Wade would cast doubt on the constitutionality of abortions in most circumstances @lexus.
Posted by Lexus 2 years ago
Lexus
I do not meet your criteria that you have put forward on this debate.
However, since I am already debating Lannan about this Act then it would make sense to defend that it would negate the constitutional right of abortion.
3 votes have been placed for this debate. Showing 1 through 3 records.
Vote Placed by Zarroette 2 years ago
Zarroette
CASmnl42philochristosTied
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Total points awarded:50 
Reasons for voting decision: Pro gracefully concedes.
Vote Placed by lannan13 2 years ago
lannan13
CASmnl42philochristosTied
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Total points awarded:60 
Reasons for voting decision: Concession
Vote Placed by dsjpk5 2 years ago
dsjpk5
CASmnl42philochristosTied
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Total points awarded:60 
Reasons for voting decision: Concession by Pro.