Guest commentary by Johanna Dasteel
While the President and Congress focus their outrage at the recognition of corporate personhood (rights of natural persons afforded to corporations as legal persons) and what it will mean according to the Supreme Court’s majority opinion in the Citizens United v. Federal Election Commission case (this video of the State of the Union address gives a glimpse of their contempt), others in the pro-abortion camp are terrified of what this means for their cause.
“Stare decisis,” or court precedent, has been the name of the game for pro-aborts in their efforts to hold on to the Supreme Court ruling of Roe v. Wade. In fact, stare decisis plays a major role in objections to state human personhood initiatives—namely that it is bad timing to pursue any human personhood initiative now due to a supposed unfavorable composition of Supreme Court justices.
This recent decision has huge implications for the human personhood movement, the movement that seeks legal recognition that all human beings are persons. Whereas persons are constitutionally protected and whereas the Supreme Court in CU v. FEC correctly defends the personhood of corporations, as the constitution clearly demands (in the Bill of Rights and the 5th and 14th Amendments to the United States Constitution), so should, according to the personhood movement, human persons be afforded those same rights and protections.
In order to understand the importance of this new Supreme Court decision as it relates to stare decisis (and, possibly, state personhood initiatives), let’s turn to an even older institution, the Catholic Church.
The Church is charged with, among other things, maintaining the integrity of Her teachings in order to bring the authentic teachings of Christ to man in the present day. It does so through Sacred Tradition (Church teachings, the Magesterium, apostolic succession, etc.) and Sacred Scripture, unaltered and with the same authority as Christ.
The “hermeneutic of continuity” is the Church's interpretive principle, which allows for the truth of all the relevant Scriptural and Magisterial texts that have come before to be the grounding of any new explications of a particular teaching of the Church or interpretation of Scripture. No developments, such as councils, encyclicals and declarations, can reverse previous teachings of the Church or interpretations of Sacred Scripture. The Church can never contradict Herself.
The Church has the Holy Spirit to guide her on matters of faith and morals and to preserve the continuity of the authentic teachings of Christ and His apostles by the promise of infallibility in these matters.
The Supreme Court, however, does not have the assurance or, if you will, the insurance of the promise of the guidance of the Holy Spirit. There is no promise of infallibility to the Court’s justices. The analogy between stare decisis and the hermeneutics of continuity is meant to stress how much importance the Supreme Court has historically placed on precedent and to stress the historical nature of a decision it makes that breaks with precedent.
It is alleged, because of the Supreme Court’s January 21 decision, that the present court is violating the tradition of the Court as it pertains to “reverence” for stare decisis. Those who criticize the court for going against precedent are placing stare decisis as an end in and of itself, rather than justice or constitutionality.
The Court anticipated such a criticism and justified its break in continuity with precedent in its January 21 decision, authored by Justice Kennedy, with Alito, Roberts, Thomas and Scalia concurring:
Our precedent is to be respected unless the most convincing of reasons demonstrates that adherence to it puts us on a course that is sure error. “Beyond workability, the relevant factors in deciding whether to adhere to the principle of stare decisis include the antiquity of the precedent, the reliance interests at stake, and of course whether the decision was well reasoned.” Montejo v. Louisiana, 556 U. S. ___, ___ (2009) (slip op., at 13) (overruling Michigan v. Jackson, 475 U. S. 625 (1986)). We have also examined whether “experience has pointed up the precedent’s shortcomings.” Pearson v. Callahan, 555
U. S. ___, ___ (2009) (slip op., at 8) (overruling Saucier v. Katz, 533 U. S. 194 (2001))
When neither party defends the reasoning of a precedent, the principle of adhering to that precedent through stare decisis is diminished.
In Citizens United v. FEC, the court explains that Citizens United produced a video documentary, referred to by the court as Hillary, which they wanted to make available for free to the public on cable television through video-on-demand within 30 days of primary elections. The Court explains the predicament Citizens United found itself in with respect to the FEC:
Concerned about possible civil and criminal penalties for violating §441b, it sought declaratory and injunctive relief, arguing that (1) §441b is unconstitutional as applied to Hillary; and (2) BCRA’s disclaimer, disclosure, and reporting requirements, BCRA §§201 and 311, were unconstitutional as applied to Hillary and the ads. The District Court denied Citizens United a preliminary injunction and granted appellee Federal Election Commission (FEC) summary judgment.
1. Because the question whether §441b applies to Hillary cannot be resolved on other, narrower grounds without chilling political speech, this Court must consider the continuing effect of the speech suppression upheld in Austin. Pp. 5–20.
In other words, the court is pointing out that to decide the case within the context of the existing law would—in the majority opinion’s words—“chill” the political speech of Citizens United (a 1st Amendment right), so it must reconsider the previous Supreme Court decision, Austin v. Michigan Chamber of Commerce, 494 U. S. 652, that political speech may be banned based on the speaker’s corporate identity, which was upheld in McConnell v. Federal Election Commission, 540 U.S. 93, 203-209.
The majority opinion went on to explain that there was no compelling interest—standard under the Equal Protection Clause that federal courts use to assess the constitutionality of governmental classifications based on race as well as those that impinge on fundamental constitutional rights—for stare decisis that would preclude the Court from considering the constitutionality of the federal law itself:
Legislatures may have enacted bans on corporate expenditures believing that those bans were constitutional. This is not a compelling interest for stare decisis. If it were, legislative acts could prevent us from overruling our own precedents, thereby interfering with our duty “to say what the law is.”
The absence of compelling interest, in turn, obliged the court to consider the constitutionality of the federal law itself, 2 U. S. C. §441b, which the Court ultimately decided was “chilling” the political speech of corporations, both for-profit and non-profit.
Now, how does this discussion of stare decisis relate to the human personhood movement? This movement has been denied the support of key pro-life leaders and organizations. One of the typical reasons for denying support has been that now is not the time, because the Supreme Court is not favorable to our cause. They say the Supreme Court is not favorable to our cause because it has an unholy reverence for stare decisis and is not willing to assess the constitutionality of existing federal or state statutes.
Justice Kennedy, who delivered the deciding vote in this very telling case, is the very same justice that many of the pro-life critics of personhood accuse of being unreliable, at best, when it comes to bringing a personhood case before the Supreme Court. The fear is that he is espoused to stare decisis, that he does not want to address constitutional personhood in any respect. Clearly, he has proved himself amenable to considering constitutionality of even a controversial federal law, in the face of stare decisis. Kennedy will be the swing vote if personhood is ever brought before the court. Kennedy, the National Right to Life Committee-endorsed judicial nominee.
The current makeup of the court is a far cry from what it was in 1973. Don’t take my word for it. Consider Supreme Court Justice Ruth Bader Ginsburg’s dissenting opinion in Gonzalez v. Carhart (2007):
And most troubling, Casey’s principles, confirming the continuing vitality of “the essential holding of Roe,” are merely “assume[d]” for the moment rather than “retained” or “reaffirmed.”
Though today’s opinion does not go so far as to discard Roe or Casey, the Court, differently composed than it was when we last considered a restrictive abortion regulation, is hardly faithful to our earlier invocations of “the rule of law” and the “principles of stare decisis.” (Emphasis added.)
Is this the Court rededicating itself—so to speak—to upholding and defending the Constitution? Is it renouncing the holdings on which Roe and other cases were decided, much like it refused to revere precedence established with Austin and McConnell in their consideration of Citizens United v. FEC?
Another relevant point: CU v. FEC, in essence, affords the rights of personhood to corporations. One cannot help but point out the irony that whole classes of human beings, most notably the infirm and elderly, are in jeopardy of losing this legal status while an even larger class has lost the recognition of personhood entirely—preborn human beings. Is it not scandalous to assert that a court is willing to recognize corporations as persons, but not all human beings as persons with the rights and privileges protected by the U.S. Constitution?
It must be pointed out that, besides it always being the right time to do the right thing, now is the time to put state personhood initiatives in play. Because if one does have the privilege of going before this demonstrably and increasingly fair-handed and Constitutionally-minded Supreme Court (at least the majority of it), there is more hope for a favorable decision than we have had since 1973—and that we are likely to have in the next 37 years. It is unfathomable that we could pass up this window of opportunity and lose another 50 million people out of fear of losing a fight.
Johanna Dasteel is American Life League’s senior legislative liaison.