Mock Court Term Thread VOTE FOR CHIEF JUSTICE!!!

[Mr. Reactionary]

I can play whichever party is suing the government.

[Mr. Reactionary]

OK. I have my opening argument drafted. Once the other 2 Justices check in and yall elect a Chief, I'll volunteer to go first. That way there is more time to attract a lawyer to represent the government. I figured worst case maybe 1 of the Justices could recuse and argue against abortion. I feel like Justice Moore or Thomas would enjoy that.

[Mr. Reactionary]

So do we have a chief justice yet?

[Mr. Reactionary]

4 votes for Black, 3 votes for Scalia, 2 abstentions.

[Mr. Reactionary]

If Chief Justice Black would like to declare a quorum ... I can post my opening argument whenever.

[Mr. Reactionary]

Mr. Chief Justice, and may it please the Court:

This case challenges a Texas law, which prohibits a woman from having an abortion under any circumstances short of an emergency, life-or-death situation. In this case, Jane Roe, is seeking that the court declare that this law unconstitutionally violates her fundamental rights. These rights are hard to shoehorn into categorical boxes but include her right to privacy, her right to control whether or not to bear a child, and her right to seek medical care. We seek a declaratory judgment that the Texas law is unconstitutional and a permanent injunction against future enforcement of the law. We base our request on two arguments. 1.) The fundamental right to privacy recognized by this court is broad enough to constitutionally preclude Texas’s criminalization of a matter as intimate and personal as deciding whether or not to bear a child 2.) There is a fundamental right to seek medical treatment which constitutionally precludes Texas’s overly-broad ban on nearly all abortions, including medically necessary ones. 

In regards to standing, this court routinely makes an exception for those cases which are capable of repetition but constantly evade review. (Southern Pacific Terminal Co. v. ICC, 219 U.S. 498 (1911)). Given that childbirth cannot be put on hold as a case slowly crawls its way through the appeals process, our case represents a situation where a constitutional violation affecting millions of Americans is incapable of review, thus meeting this court’s standard.

It is not controversial to say that there are some rights which are fundamental to ordered liberty despite not being written down in the bill of rights. This Court has routinely upheld the prospect of protecting such liberties through the 14th Amendment. This court has recognized such unenumerated fundamental rights as the right to buy insurance (Allgeyer v. Louisiana, 165 U.S. 578 (1897)), the right to enter into contracts (Lochner v. New York, 198 U.S. 45 (1905)), the right to instruct one’s son in a foreign language (Meyer v. Nebraska, 262 U.S. 390 (1923)), and to send one’s daughter to a religious school (Pierce v. Society of Sisters, 268 U.S. 510 (1925)), the right to travel (Kent v. Dulles, 357 U.S. 116 (1958)), the right to marry (Loving v. Virginia, 388 U.S. 1 (1967)), and the right of couples both married (Griswold v. Connecticut, 381 U.S. 479 (1965)) and unmarried (Eisenstadt v. Baird, 405 U.S. 438 (1972)) to control the decision of whether or not to beget a child.

The 9th Amendment declares that, “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This amendment was ratified in response to fears that listing some pre-existing rights in the Constitution risked diminishing other pre-existing rights which were not listed. It is thus an important reminder that a Court may be dealing with a right which is entitled to the same constitutional deference as enumerated rights. Rather than announcing a particular affirmative right, the Ninth Amendment serves to protect those other rights inherent to citizenship in a democracy which are not specifically enumerated in the Bill of Rights.

This court has already recognized a fundamental right to privacy which is protected by the constitution. See Griswold. In Eisenstadt, which also recognized the right to privacy, this court clearly stated "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Eisenstadt at 454, emphasis added. The choice Petitioner is seeking is clearly a decision about whether to bear a child, which makes a finding against Texas consistent with Supreme Court precedent.

Additionally, we argue as well that there is a fundamental right to seek medical care. We are not arguing that this right guarantees outcomes or even treatment; we merely argue that human dignity demands that a person not be made to abandon all hope for medical treatment in the face of sickness and suffering. Abortions can be medically necessary in cases other than just when the mother is in imminent danger of dying. Texas’s law eliminates all access to valid medical treatment, even when there is a doctor available. Texas’s law is thus overly-broad and should struck down.

We recognize that this is a sensitive issue. In terms of balancing rights, we contend that we have the stronger argument. The 14th Amendment clearly begins “All persons born …” which precludes the argument that there are constitutional protections for fetuses on par with those of persons. That does not mean there is an unlimited right to an abortion on demand. Clearly as the fetus approaches viability the philosophical questions become difficult. We don’t ask that the Court decide the question to an exact science. We only ask that the Texas law be struck down for eliminating access to abortion at even the earliest of weeks in the most serious of cases.

If the Court wants a standard at which to draw some lines for when an individual’s rights may be curtailed, our position is that the Court accept that science is constantly evolving.  Rather than using a static trimester framework, we propose a focus on things which can withstand scientific advances. This means looking at regulating individual medical procedures, or measuring viability, or an individual’s circumstances. This Court in Skinner v. Oklahoma, 318 U.S. 535 (1942) decided that strict scrutiny was appropriate in case regulating reproduction. By any standard however, the Texas law is unconstitutionally restrictive of Petitioner’s fundamental rights to privacy and to seek medical treatment. These rights fall within the concept of liberty protected by the 14th Amendment, and the 9th Amendment commands the Court to remember that some fundamental rights are not listed in the Constitution.

   I will now accept your questions.

[Mr. Reactionary]

Sir,
If a fetus isn't a human being than what is it, a bunch of cells together or is it a human who is not yet born, I would like Ms. Roes position on this matter before we decide.

Of course Justice Scalia,

This is a question whose full answer will bewilder scientists and philosophers for years to come. Our position is not that a fetus is completely divorced from humanity. In terms of DNA, a fetus has human genes. A fetus has the chance to become a person, although it is certainly not autonomous. It does not have a consciousness.

For this case, our position is that this court should look more at the stage of development. Stem cells have human DNA as well, and like Fetuses, human stem cells react to environmental stimuli and then grow into something new. But we don't attach any rights directly to the stem cells that will become a donor liver. Referring back to the 14th Amendment, our Constitution places value on the stage of human development that occurs at birth. Citizenship attaches at the moment of birth, not the moment of conception. We don't assume that a person is French just because their American parents honeymooned in Tahiti. And similarly, we don't assume that corpses are anything less than human. They have human DNA. They have rights as well. Otherwise wills would not be enforceable, and lawyers could reveal privileged information if a client dies. "Life" in the abstract sense is not the metric that has been used to assign rights to humans. Birth, and thus actual, physical independence of a being, is.

Our position is not that a fetus has no rights. Rather, that whatever limited rights a fetus may ultimately be found to have, are not so great as to overly burden the fundamental rights of citizens. And in this case, justifying an absolute ban on any procedure at any stage of development on behalf a fetus which the Constitution plainly denies is a citizen, is not proper.

 

[Mr. Reactionary]

Mr. Justice Warren

I am intrigued by your finding of a right to receive medical care.  Are you establishing this as a right derived from the Constitution itself, or as a part of the compact between a physician and their patient stemming, for example, from the Hippocratic Oath?

Our position is not that a citizen has a fundamental right to receive medical care. Rather, we argue that a citizen has a right to be free from government interference in seeking medical care. It is impossible to guarantee medical outcomes. In many rural communities, there may not even be adequate facilities to guarantee any treatment at all for some conditions.

Seeking medical care is part of our perpetual struggle against the elements, against time, against death. The right to continue in our life and liberty. One's body, one's being, one's self is much more important than the mere property interest a person may have in chattel or land. For this reason, interference with medical treatment is much more threatening to ordered liberty than laws only implicating property.

This right can be seen in societal norms. The Hippocratic oath certainly suggests that society places great value on medical care in preventing death and harm. Without so rigid an oath, the odds of more persons losing their lives or well being (fundamental rights on their own) become certain. Society recognizes that patient's have the right to refuse medical care, and a doctor is bound by that decision. Surely the rights implied in life and liberty extend to citizens who become ill.  

Again this Court has already recognized the right of a woman to be free from government intrusion into such fundamental matters as whether or not to bear a child. Eisenstadt v. Baird, 405 U.S. 438, 454 (1972). Surely personal medical decisions qualify as well. Deciding whether or not to apply for an organ donation, or to buy insulin, or to accept cancer treatment is certainly a fundamental matter of the utmost importance to an individual.

Prohibitions on seeking medical care represent a barrier to fundamental liberty. Consider hypothetical laws mandating medical rationing, or prohibiting persons with certain disabilities or conditions or persons above a certain age from seeking or receiving medical treatment. Laws like this, which regulate the seeking of medical care, represent a barrier to the right of a citizen to continue in the enjoyment of their life and liberty. Similarly, a law like Texas's abortion statute, which prohibits persons from receiving medication or surgery, even when a doctor agrees it is medically necessary and is prepared to give treatment, burdens this right.  

As with all fundamental rights, we accept that no right is absolute. See Schenck v. U.S., 249 U.S. 47 (1919). That means some statutes regulating the act may be constitutional. Regulating the cleanliness of facilities, determining the processes for medical malpractice and fraud claims, ensuring aspirin is not arsenic, setting default positions until informed consent is given; all of these fall within the accepted police powers of the state to protect the health and safety of citizens. But we are not asking you to decide the full extent of such a right today. We merely ask that you overturn the Texas law, which does not even have a medical exception. The law is not merely regulating the medical process, rather it is eliminating all treatments for a medical issue, which certainly denies U.S. citizens like my client from seeking medical care, and thus her rights fundamental to her life, health, safety, and bodily integrity.

 

[Mr. Reactionary]

Also I have a quick question about the rules. What are the constraints on using case law? I've been using exclusively pre-Roe v. Wade cases up until now, and clearly will continue to do so on abortion related law. But if say I wanted to reference an opinion on patient's rights that was not dependent upon Roe, is that a no-no or what?

[Mr. Reactionary]

I would like the Plaintiff to go into greater detail concerning the time limit after which the State might legitimately prohibit the recourse to abortion. Although you raise a compelling argument regarding the overbreadth of the Texas law, it would be extremely difficult for this Court to strike down a law as overbroad without having first defined the precise boundaries that it should not have overstepped. Can the Court truly rely on the evolving standards on Science to settle constitutional matters?

Of course Justice Stevens.

Earlier this year, this court expressly acknowledged that the overbreadth doctrine was a valid way to defeat state laws which offend constitutional rights. Broadrick v. Oklahoma, 413 U.S. 601 (1973). A statute can be overly broad if it burdens constitutionally protected activities in addition to the unprotected activities being targeted. As far as relying upon overbreadth for a claim under the 9th Amendment, there is precedent. In Aptheker v. Secretary of State , 378 U.S. 500 (1964), this court struck down as overly broad, a federal law restricting passports for Communists on the grounds that it violated the Petitioner’s right to travel. Id at 505.

Based on our medical treatment argument alone, overbreadth would defeat Texas’s law because there is no general health exception. The total ban covers even medically necessary abortions; this offends the fundamental right of liberty, possibly of life if conditions worsen.

But as far as a time limit, our position is that no real burden shifting should occur at least until the fetus is physically developed enough to be viable outside of the womb. Before that point, the lack of organismal autonomy suggests a stage of development that precludes the existence of any significant rights. The state may indeed have some interest in protecting the unborn, but our position is that the fundamental rights of a citizen should prevail in cases where a fetus is not capable of living on its own at the time the abortion procedure occurs. This is more dynamic than a trimester framework. As medical technologies advance, or new procedures are perfected, the exact week at which viability can be achieved will fluctuate, but viability will remain as a bright line.     

[Mr. Reactionary]

I'd gladly be the defendant...

If the Court ever readjourns ... not sure if I'm still in the middle of oral arguments or not.