Civil Discourse Now

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Paul Ryan and the dangerous folly of "personhood" amendments.

   With Mitt Romney’s choice of Paul Ryan as his running mate, we are faced, once more, with the question of "personhood" amendments, or P.A.s for short in this column. I have addressed this topic before, but this is very important. When I first read mention of P.A.s, I had to look up the term. P.A.s provide that a human life begins at conception. The implication is a human life is entitled to all the rights of a person at that point. This is another attempt to scuttle Roe v. Wade.

   P.A.s have an effect aside from an assault on a woman’s right to decide what is done with her body.  P.A.s as strategy to overturn Roe have not been well thought-out.

   Does "personhood" allow abortion if the mother’s life is endangered by continuation of the pregnancy? If it does not, the absurdity of the position should be clear. One actual life should not be abandoned in the faint interests of a second.

   What occurs when the life of the mother is endangered?  For purposes of this blog, I offer these elements of a situation:

-Woman discovers at 27 weeks that carrying her pregnancy to term will result in her own death.

-Survival of Fetus at time of delivery is uncertain.

-A personhood amendment has been added to the U.S. Constitution.

I use the terms "Woman" rather than "Mother" and "Fetus" rather than "Child" so that I cannot remotey be accused as acknowledging Fetus is a human being. 

   Also, I offer the following premises:

1) The amendment confers the full rights of a person on Fetus. P.A.s would appear to eliminate any consideration that defines the fetus as anything less—e.g., 3/5—of a human being. If Fetus possess all of the rights of a human being, those rights necessarily include due process of law.

2) The P.A. does not specifically allow abortion to save the life of Woman. Of the P.A.s I have read, none makes such an exception.

3) Diagnosis of Woman’s condition is to a degree of reasonable medical certainty with which 99% of the practitioners in the applicable field would agree.

4) In any legal proceeding, the court would have to presume Fetus would want to live.

5) A bureaucratic means of conferring the power to abort Fetus is in place at least to the extent the physician would know whom to call.  (E.g., the local department of health.)

6) In the problem I pose, time is of the essence.

-The time of delivery is somewhat vague, but probably would occur at the 37th week, after which Woman is dead.

-Probability for Woman’s survival would decrease as time passes.

-If any time settings seem unrealistic, I have tried to err on the side of brevity. For example, I do not know if a doctor can make such a diagnosis as I describe in 15 minutes of examination. The diagnosis might take several tests and more time. I err on the side of brevity in such matters because brevity would lend itself to a quicker resolution and a more favorable prospect for the P.A.

-With over 20 years’ in the practice of law, I have experience with court proceedings. When I describe how long court proceedings might take, I utilize that experience.

7) At every step of this process, attorneys and court staff drop everything else to work only on this case in order to facilitate its disposition.

8) Gestation is 38 weeks.

9) No extensions of time or continuances are allowed as to court deadlines or hearings.

9) Fetus loses at the evidentiary hearing or trial, and on all the appeals.

Problems with the P.A.s

     In 1973, when Roe was decided, every state that outlawed abortion allowed an exception where Woman’s life was in danger. There also were exceptions for health and physical well-being, as well as rape and incest. Some physicians used the health and physical well-being exception to circumvent the broad restrictions of the statute. "Life in danger" means something different and specific. It implies all of those legislatures recognized Woman’s life has primacy. Under P.A.s, no such latitude is allowed. There no longer is any primacy of one life over another.

     As a full human being, Fetus has the full rights of a human being, the most basic of which is due process of law. If Woman’s life is endangered by continuation of pregnancy, the court would have to appoint a Guardian Ad Litem ("GAL") to represent the interests of Fetus. I can think of only one area of the law in which proceedings exist by which the State can take a human life against the will of that person: the death penalty. Persons can be drafted by the military to serve in a war, but the loss of the draftee’s life is not a certainty. Only in DP cases is the specific goal to take the person’s life. I am death-penalty certified. In the seminars and classes I attended to achieve certification, we were taught, as potential counsel for people sentenced to death, to do anything we could to delay a final outcome of death. That instruction is not a deeply-guarded secret, but a basic principle of DP law. In the context of the hypothetical I raise, the goal of a lawyer acting for or as a GAL would be no different. This is an adversarial proceeding. An advocate for a party cannot be "objective," in the sense that the lawyer caves to the ultimate goal of the opposition. No lawyer could find it in the best interest of her or his client to allow termination of the client’s life in favor of the life of another.

     In the context of DP cases, the U.S. Supreme Court has held that "death is different." That is why the courts go to extraordinary lengths to protect the rights of individuals prosecuted in DP cases. And still innocent people are sentenced to death.

     Therefore, all of the procedural protections in place for a DP case presumably would come into play. Indiana’s Criminal Rule ("CR") 24 is patterned after the ABA model for requirements for DP representation. Under CR24(B), a person must be represented by two DP-qualified counsel. The workloads of those persons must be limited to accommodate a DP case. Each attorney must spend a minimum of 1,500 hours on the case. That might not be in the Indiana rule, but it is accepted as a standard by the ABA and by the U.S. Supreme Court. Two attorneys are required for the appeal.

     There is an automatic stay of execution in order to litigate the appeal. DP cases typically take these routes:

1) Guilt or Phase I trial: very difficult to waive jury.

2) Penalty or Phase II trial: also by jury a la Blakely.

3) Direct appeal to the state supreme court.

-Even when expedited this takes a year.

-Could be taken up under rules for an interlocutory


4) Post-conviction relief:

-Available in criminal cases after direct appeal, so

   probably would not be available here.

5) Federal appeal—petition for writ of cert to the US Supremes.

-That’s usually quicker than the state appellate process.

6) Other Federal remedies.

-An action for deprivation of civil rights might be brought

   under 42 U.S.C. § 1983.

-Would initially be in U.S. District Court.

-Appeal could be taken up through the U.S. Court of

   of Appeals & then to the US Supremes.

Given the complexity of the issues in the case of Woman seeking an abortion to save her life, the medical question of Woman’s physical condition requiring an abortion would have to be litigated. Even if 99% of physicians might agree with the diagnosis, Fetus still has a right to due process. In other words, Fetus has a right to confront the evidence and cross-examine witnesses that favor the abortion. Fetus also has a right to bring contrary evidence.

     Another question GAL could raise for Fetus is whether Woman’s life is such that it should be spared and not that of Fetus.

     Counsel for Fetus would have legitimate reasons to request time to prepare for the evidentiary hearing/trial itself. An argument could be made that counsel was ineffective or committed malpractice in NOT asking for as much time as possible to examine evidence and investigate. Generally ineffective assistance of counsel claims arise only in the context of criminal cases, but where a life is at stake, as here, it could be held that Fetus has a right to effective assistance of counsel. Also, is this a case in which the right to trial by jury is implicated? Jury trials take more time than trials by the court. The proceedings potentially could take years. They certainly would take more than the 12 weeks left to Woman before her pregnancy comes to term.

     There are individuals, sentenced to death, who choose to go ahead with execution. That situation is not presented here. Presumably a person who chooses to go ahead with a death sentence is mentally competent to make that choice. Here, the client cannot form or verbalize a choice or intent. Again, the court must presume Fetus would want to live.

Time Is Against the Woman

     For these reasons, Fetus’s GAL would take actions that would be deemed reasonable, by any court, to delay the abortion with the goal of Fetus’s live delivery. There only are 12 weeks to delay. There always is the possibility Woman would go into early labor and Fetus would have to be cut out from her body. Woman would die but it is possible Fetus would live. Amongst reasonable delays:

-Initial hearing to determine the schedule of proceedings and to advise everyone, in this case primarily Woman, of their rights

-This might be when counsel for Fetus requests certain resources for Fetus, such as funds for hiring of experts to consult and to testify, as well as an investigator.

-At least one intermediate pre-trial conference to discuss issues of discovery (the obtaining of evidence and information).

-Time for counsel for Fetus to obtain all medical records; even if expedited through a change in Federal law concerning medical records, this would take at least several days.

-Time for Fetus’s investigator to interview potential witnesses.

-Depositions (certainly of the physician who made the initial diagnosis as well as Woman herself).

-Intermediate motions to be filed with the trial court. These could be for any reasons supported by the evidence and cogent argument.

-Appeal to the state’s appellate courts.

-Petition for writ of certiorari to the United States Supreme Court.

     At the evidentiary hearing, consideration of Woman’s medical condition requiring abortion could take a significant amount of time. The parties could stipulate to that condition, but such a stipulation probably would not be in the best interest of Fetus. And parties do not have to stipulate to matters. Hence the trial court would hear testimony on rather complex issues. Other matters could be raised as well:

-Arguments could be advanced why Woman should be the one to die.

-Mortality tables in themselves would show Fetus has more time to live.

-Fetus has not had a chance to make any mistakes. Although character evidence generally is not admissible, it is conceivable counsel for Fetus would attempt to adduce such evidence. The trial court’s rejection of that evidence would constitute an issue for appeal. Such evidence could include Woman’s criminal history as well as the testimony of anyone with whom she has had any personal animosity. Fetus’s lawyer could be inclined to seek to address every bad aspect of the mother’s life (whether true or not; simply supported by testimony) in court. And remember, a witness who testifies under subpoena is immune from suit for slander.

Proceedings leading up to the evidentiary hearing would take a minimum of six weeks. Probably they would take longer than that. The hearing itself could last several days. As long as objections raised by Fetus’s counsel are supported by cogent argument and citation to legal authority (statute, case law), there exists a right to raise those objections.

     On average, an appeal in Indiana takes approximately one year to reach disposition. A party has 30 days in which to file Notice of Appeal. The court reporter has 90 days in which to prepare the transcript. Appellant has 30 days to file his/her/its brief. Opposing party has 30 days for its brief. 15 days are allowed for a reply. On average, the Indiana Court of Appeals hands down a decision three and a half (3 ½) months after submission of final brief. The losing party has 30 days to seek transfer to the Indiana Supreme Court, the means by which one seeks review of a decision of the Indiana Court of Appeals. Opposing party has 15 days to reply. A response brief may be filed within 10 days. Court rules could be crafted, for P.A. cases, to shorten some of these periods. For example, Notice of Appeal could be deemed automatic. But some matters cannot be accelerated as a practical matter: e.g., a transcript for a complex hearing is difficult to produce in less than a week. Deadlines for briefs could be shorter, but due process concerns are implicated is a party is not allowed adequate time to brief a complex matter. Also, let’s cut out the Indiana Court of Appeals and give the Indiana Supreme Court original jurisdiction over the case. 

     If (1) one week is allowed for production of the transcript, (2) Fetus’s brief is due seven days after completion of transcript, and (3) Woman’s brief is filed a day after receipt of Fetus’s brief, two more weeks have passed. Court rules could preclude a reply brief. On such a serious matter, the Indiana Supreme Court would need time not available to it. Let us say three (3) days pass between submission of all briefs and transcripts to the Supreme Court and the handing down of its decision. Still, 2 and a half (2 ½) weeks have passed. A motion for order of stay would be filed with the United States Supreme Court to file a petition for writ of certiorari. A party is allowed 90 days to file a petition for writ. Supreme Court Rule 13.1. Rule can be changed, but due process still requires time adequately to prepare. A petition for writ is not simply a couple of pages asking that the Supreme Court accept jurisdiction of the case. Essentially it is another, and in many ways substantively different, brief. For purposes of argument, let us say ten  days are given to the party to file it. That’s a very short time to prepare a filing with the highest court in the land. Also say, for purposes of this argument, Woman files her response the day after receipt of Fetus’s petition. The justices meet and, within three days, hand down a decision. Two more weeks have passed.  

     Everything has moved, relative to courts, at the speed of light. Still, ten weeks have elapsed. Woman has only two more weeks until she comes to full term. She may already have gone into labor and died.  

     Fetus’s counsel now files, with the U.S. District Court, an action under 28 U.S.C. § 1983 for deprivation of Fetus’s civil rights. The case has to be docketed, preliminary hearing set, and evidentiary hearing had. On an adverse ruling, appeal may be sought to the United States Court of Appeals.

     The proceedings would be extremely expensive. The majority of women who seek abortions are low-income. Presumably a great many of them not only would require public funding for the procedure, but for litigation. Fetus, in this case, inherently is indigent. Expenses for court-appointed counsel and expert witnesses are potentially doubled: one set for Woman, if she is declared indigent, and one set for Fetus. The Constitution requires no less.


     Once full due process rights are granted a fetus, such proceedings as I describe here are necessary. Our courts would not operate in fashion similar to Judge Roy Bean when he asked, "Got anything to say before I find you guilty?"

     The goal of DP defense lawyers is to delay a client’s death. After all, new evidence might be found either to establish innocence or vacate the penalty of death. The applicable law could change. The goal is delay. In proceedings under P.A. there is no reason to expect the goal would be different. Fetus’s lawyer has a specific client to represent. As attorneys for the State noted in Matter of Guardianship of J.D.S, 5D03-1921 in Florida, Woman’s interests were inherently in conflict with Fetus’s and a different guardian than that already appointed to Woman had to be appointed to represent the interests of Fetus.

     The personhood amendments deny human rights to a being in existence: Woman. Her decision to abort is hers to make. Where her life is in jeopardy because continuation of the pregnancy will result in her death, her right to make that decision without interference from the State, or anyone else, cannot be more precious.

     To deny Woman the right to abort, immediately, is to deny her personhood.

     All 50 states made this exception to their abortion statutes prior to Roe. This exception disappears with a personhood amendment. 

   If Paul Ryan is one heart beat away from the Oval Office, there is a very real danger of P.A.s being pushed onto us.

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