Never Get Out'A the Boat: Stenberg V. Carhart and the Future of American Law

Abstract

In this short essay, haunting scenes from film Apocalypse Now serve as backdrop for an examination of Stenberg v. Carhart and meaning that this case holds for future of American law. The movie tells story of Captain Benjamin Willard, a special forces officer in Vietnam who travels up-river on a patrol in search of a renegade American colonel whom Willard has been ordered to terminate. The major thematic concerns of film are morality, violence, candor, and tenuous nature of civilization. Indeed, life on board boat, such as it is, represents civilization. This contrasts with jungle, which represents absence of moral order that makes social life possible. This absence allows for exercise of freedom without judgment. Thus, in one scene, viewer is warned that you should get out'a boat unless you are prepared to go way. In essay, we argue that in Stenberg v. Carhart Supreme Court got out'a boat and went all way. Stenberg held that a state may not ban procedure commonly known as partial birth abortion. Stated more bluntly, Court held that protection of law does not extend to a child in process of being born. Incredibly, humanity of victim of this procedure is never addressed in Court's opinion. Here Stenberg majority differs significantly from Court in Roe v. Wade, which appeared to struggle with the difficult question of when life begins. In Stenberg, Court knows that life at issue has already begun. Indeed, it is in process of being born. By licensing brutal killing of what is undeniably an innocent human being, Court turns its back on civilization and marches proudly into jungle. Plainly, law is an essential component of authentic civilization. Law as such must embody principle of equal concern and respect for every human being and principle of ordered liberty. The essay provides examples of how, since adoption of 14th Amendment, these principles have been at heart of American constitutional law. We argue that, with Stenberg, Court has abandoned concept of ordered liberty in favor of concept of liberty as license. Moreover, in adopting what it believes is a maximal conception of human freedom, Court has undermined very notion of equal concern and respect. Here we contrast abortion license with Court's treatment of right to free speech as well as its decisions concerning capital punishment. We conclude piece by arguing that if Court truly believes that benefits of constitutional personhood do not extend to a child in process of being born, then it is incumbent on Court to explain why this is so. Indeed, rule of law demands that Court explain its now unspoken criteria for constitutional personhood. The piece is especially timely given that three decisions striking down recent federal ban on partial birth abortion are now making their way to Supreme Court. Thus, Court is once again faced with choice of embracing authentic civilization or promoting barbarism under appearance of law.