Friday, January 20, 2006

Is Roe v. Wade a bill of attainder?

Does the judicial decision Roe v. Wade (or, rather, legislation putting it into action) attaint fetuses?

This argument certainly won't convince anyone who's not already against Roe. It relies on fetuses having personhood and the rights that flow from that. And if you're a person, then you probably wouldn't need to rely on the attainder clause: you would just have, probably, a substantive due process right not to be murdered or somesuch.

Even if fetuses are persons and don't have such rights, it might seem that Roe-enacting legislation isn't an attaint. I would tend to agree. But Akhil Amar makes a series of arguments in his paper, Romer's Rightness, 95 Mich. L. Rev. 203, that seem to make the opposite case.

He starts with the classic case: the legislature puts out a bill saying, "Kill Mr. X." This is also an attaint if they say, "Mr. X can be killed by anyone without penalty." Withdrawing protection is just as bad as doing the killing yourself. It's even an attaint if the bill says, "Mr. X and his relatives can be killed by anyone without penalty." This is because the bill lists a group where inclusion is defined by status, not conduct. You don't voluntarily enter the group, and you can't move in or out by choice. It's fixed.

So wouldn't Roe be such a bill of attainder? It withdraws protection from a status-defined group.

The people Prof. Amar is defending in Romer's Rightness, are, of course, gays. Gays are probably a less clearly defined group than fetuses; also, the division between conduct and status isn't as sharp for gays as for fetuses.

My overall opinion is that whether the argument works in either case depends on how broad you can go before it's not a clearly-defined "named" group, and how sharply we divide between status and conduct. I suspect Amar would think you can go pretty far. I would want to know if most scholars think that.

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