North Dakota to Take a Run at Roe?

It’s certainly looking like they might, since their House of Representatives has now passed a bill which is obviously designed to do just that.

The House voted 51-41 this afternoon to declare that a fertilized egg has all the rights of any person.

That means a fetus could not be legally aborted without the procedure being considered murder.

Our friend Ed Morrissey of Hot Air, always a happy resident of the anti-choice – sorry… “pro-life” – camp, couldn’t be happier.

Let’s hope that North Dakota decides to fight. Roe deserves to be overturned just on the overreach alone of justices finding “emanations” from “penumbras” to instill their own view of public policy. This debate should have remained with the states, and it’s about time that the states demanded their voice in it.

As I’ve previously explained ad nauseum, I’m one of those annoying people who would prefer that this not be a legal question at all and that the government keep its nose out of the private affairs between a patient and her doctor. Since that’s obviously not possible, though, I come down reluctantly on the side of the pro-choice folks while remaining willing to entertain reasonable restrictions to the procedure. But in the end, questions such as the ones this North Dakota law present will come down to a set of legal technicalities.

First, as Ed points out, is the question of whether or not the state Senate will agree to pass the bill, triggering the immediate and inevitable challenge and series of long, costly court cases. That’s a might big can of worms to open up. And even if they do, assuming it goes all the way up the chain, would the current crop of Supremes even agree to hear the case? Would they be inclined to overturn Roe if they did?

They will probably face a few challenges which didn’t get addressed in Roe, at least one on a technicality, and North Dakota may find itself dealing with the law of unintended consequences. On the first issue there is a question which has been brought up before leading to anti-abortion enthusiasts trying to bat it away as a technicality. Many people assume that the Constitution is silent on this subject, and they’re almost right. But the argument has been made that we already have a definition of when the rights of citizens begin, if not the moment when life itself takes root. For this, we point readers to the 14th amendment.

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State 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.

Did you catch the key phrase there? Born or naturalized. So while you may be “alive” or “a person” at the moment of conception, your rights and protections don’t kick in until you somehow manage to exit the mother’s body alive. A technicality, you say? Definitely. But bigger cases have hinged on less in the past.

The unintended consequences scenario may be even more interesting as applied to the proposed North Dakota legislation, and it would apply to fertility clinics. Doctors in such facilities regularly harvest more eggs than they plan or hope to use in order to avoid undue stress on the prospective mother. If they get lucky and it works on the first try, and if the couple later decides they don’t want any more children, the frozen embryos wind up being tossed out with the medical waste. (Particularly if the doctor is a pro-lifer who finds it wrong to use such zygotes for stem cell research.) If this law is in place as worded, would a doctor who disposed of such fertilized eggs – which now have “all the rights of any person” – be guilty of hundreds of counts of murder? How could they not?

People like Dan Ruby, the bill’s sponsor, would probably love the opportunity to shut down all the abortion clinics, toss the doctors into a dark cell and throw away the key. But would he be as eager to go around jailing fertility doctors who are trying to help couples conceive? If those fertilized eggs are people with a full set of rights, what justification will he use to say that it’s acceptable to toss them into the trash simply because an abortion wasn’t involved? Would the government need to advice childless couples that their barren status was simply God’s will and they should just deal with it? This might be yet another case of being careful what you wish for.