How the Supreme Court Should Approach Dobbs v. Jackson Women's Health Organization

Stephen Kershnar

The Constitution Does Not Protect Fetuses

Dunkirk-Fredonia Observer

November 29, 2021

 

            This Wednesday, the Supreme Court will hear Dobbs v. Jackson Women’s Health Organization concerning Mississippi’s abortion law.

Mississippi banned abortions performed after the first 15 weeks of pregnancy. The law does not permit abortion in the case of rape or incest but permits it when there is a medical emergency or severe fetal abnormality. The 15-week period is odd. A fetus begins to have a heartbeat after 6 weeks, forms a brain after 6 weeks, and – on one influential account - does not become conscious until 24 weeks. It is unclear what happens at 15 weeks.

            Other states have also passed other pro-life laws. The Texas Heartbeat Act prevents abortions after fetal heartbeat, which usually occurs 6 weeks after conception. Georgia banned abortions after 6 weeks. The three states’ laws conflict with Roe v. Wade (1973), a landmark Supreme Court case that held that a woman has a right to an abortion up to 24 weeks because fetuses up to that time are not viable. A fetus is viable when it can survive outside the womb.

            One issue is whether the Constitution protects fetuses. There are two provisions that someone might think protects the fetus. The Due Process Clause says, “[No state shall] deprive any person of life, liberty, or property, without due process of law.” The Equal Protection Clause says, “[No state shall] deny to any person within its jurisdiction the equal protection of the laws.” Emphasis added. The issue here is in part whether “person” refers to fetuses. Oxford University’s C’Zar Bernstein argues that the Due Process Clause is less relevant because, in the context of abortion, the life-takers are private citizens rather than the state. He also notes that the argument over abortion does not concern procedure.

            The most plausible way to way to interpret the Constitution involves originalism. Originalism asserts that the meaning of a Constitutional provision was set at the time it was passed. The idea is that Constitutional provisions have meaning, and this meaning persists over time. This can occur only if the meaning is set when it was originally passed. On different interpretations, the meaning of a provision is fixed by the authors’ or ratifiers’ intention, the ordinary meaning of the language to the public when it was passed, or its inherited common-law meaning. On this last view, the law incorporated the common law – specifically, English-judge-made law – because it used common-law words and phrases.

            The meaning of “person” should be understood in common law terms because it – along with other terms such as “cruel and unusual punishment” – was intended and understood to be a term of art, that is, a word whose meaning tracked specific legal meaning rather than ordinary meaning. One reason for this is that the Constitution’s authors and ratifiers thought about and wrote the Constitution with common-law meanings in mind. Another reason for this is the way in which language works in specialized fields. Consider, for example, how commerce, science, and sport use terms of art.

            Bernstein argues that the common law set the meaning of person according to the Born Alive Rule. This rule states that a human being becomes a person only after live birth. This can be seen in English common law regarding homicide (homicide applied only to the killing of a born human being), tort law (no liability for pre-natal injury), and inheritance (a human being may inherit only if he is born). This matters because the 14^th Amendment’s Due Process and the Equal Protection clauses used some of the same language as the 5^th Amendment’s Due Process Clause, language that came from the British common law.

            If this common law interpretation is correct, then the Constitutional term, “person,” does not refer to a fetus. It still might be the case that as a matter of constitutional law, states have a compelling interest in protecting fetal life and that the ban on abortion is a necessary means by which to do this, but this involves the sort of moral reasoning that originalists hesitate to engage in.

            Consider the moral debate over abortion. It comes down to three issues. (1) Is the fetus a person in the metaphysical sense? That is, were we ever fetuses? (2) Does the fetus have a moral right to inside the woman? (3) If the fetus does not have a right to be inside the woman, may the woman kill it as a way of protecting her body against invasion? That is, is an unwanted pregnancy a body-invasion similar to a rape? These philosophical issues are outside of the Supreme Court’s expertise and ones that it botched in the past. Perhaps the court must address these issues in deciding what the Equal Protection Clause means, but then it seems to blur the distinction between interpreting and making law. That is, addressing (1) to (3) appears to be legislating.

            If the common-law interpretation is correct, then professors – for example, Oxford University’s John Finnis – who argue that the Constitution requires that abortion be made illegal because the Constitution protects “persons” - are mistaken because fetuses are not Constitutional persons. In addition, if the common-law interpretation is correct, then the Justices should be wary of putting too much weight on precedent - especially Roe v. Wade (1973) and Planned Parenthood v. Casey (1992) - because the Court decided these decisions without acknowledging that a fetus is not a Constitutional person and because it did not show its moral reasoning, particularly with regard to issues (1) to (3). In addition, its focus on viability is best seen as a political compromise rather than a good faith attempt to interpret the Constitution.

            Instead, the Court should do one of two things. It should engage in explicit moral reasoning regarding women’s and fetuses’ rights. Alternatively, it should declare that such reasoning is legislating and hold that Constitution does not address the issue. The issue would then get kicked back to the states.

SUNY Fredonia at the Crossroads

Stephen Kershnar

Standing at the Crossroads

Dunkirk-Fredonia Observer

November 12, 2021

 

            The State University of New York at Fredonia appears to be standing at the crossroads.

            First, the school’s enrollment is dropping. The school currently has roughly 3,800 students. By way of contrast, it had roughly 5,800 students in 2010. According to the Democrat & Chronicle, from 2011 to 2021, Fredonia’s enrollment fell 33%. In general, during this period, SUNY enrollment fell by 20%. Still, with the exception of Potsdam, Fredonia’s enrollment fell noticeably more than its comprehensive-college peers. In addition, SUNY’s elite (non-specialized) research universities did not lose enrollment. Some significantly increased enrollments. Consider Binghamton (+26%), Stonybrook (+13%), Buffalo (+12%), and Albany (0%).

            Second, in response to Fredonia’s shrinking enrollment, the school sharply increased the percentage of students accepted. In 2013, it accepted 53% of applicants in 2013. In 2020, it accepted 72%. Recently, it is alleged that the acceptance rate for first-time-first-year students is at roughly 90%, although this is likely a different category than the overall acceptance rates listed in the preceding sentence. The college is thus moving in the direction of open admission. Part of the reason for moving in this direction is that the yield rate – the number of students whom Fredonia accepts and who then accept Fredonia – dropped from 35% in 2013 to 18% in 2020.

A few years ago, President Ginny Horvath allegedly dropped the SAT floor by 100 points and made recruiting NYC students a priority. It is unclear how this affected the numbers.

            Despite the increase in acceptance and decrease in yield, the reported average SAT score increased from 1080 in 2013 to 1110 in 2020. The percentage of students in the top quarter decreased slightly (-9%) and the percentage of students in the top decile increased significantly (+46%). It is unclear how much, if any, of these reported changes result from the 35% of students for whom a class rank is not available (2020 number).

Despite the reported caliber of students holding steady or improving, the graduation rate is dropping. The four-year graduation rate decreased 10% between 2006 and 2016 (the latest available number). The above changes occurred even as the school diversified its student body. Over the last decade, the percentage of minority students more than doubled, going from 12% to 26% of the student body. This figure leaves out students whose race or ethnicity is unknown.

            As a result of these changes in enrollment, the school has a $16.4 million structural deficit. The administration says that it expects to make up most of the structural deficit up with federal and state money but has called for $1.5 million in salary savings from unspecified sources. These problems are not new. A few years ago, Horvath said that the school had a $12-million-dollar structural deficit and largely exhausted its reserves, and, so, things would have to change . Note that a structural deficit is not an actual deficit and so we should be wary of putting too much weight on these deficit-numbers.

Fredonia College Council President Frank Pagano said, “We had the same amount of people working when we had 5,700 (students) as we do when we have 3,700 students.” He also said, “[S]ome programs will also have to be cut or eliminated. It will be tough to do with tenured professors, but it will have to be done if the campus wants to shore up its finances.”

President Stephen Kolison promptly contradicted Pagano’s statement. He said, “[T]here are no existing plans for reducing programs or eliminating tenured faculty positions.” In addition, the administration recently approved a plan to hire 11 new, tenure-track faculty next academic year. Hiring these faculty will likely eat up 40% of the planned $1.5 million in salary savings. The statement and approval are hard to square with the supposedly dire financial state of the college. Last year, Kolison announced the college would hire 9 new permanent administrators. This also suggests that the financial situation is not terrible. So far no one has publicly explained the conflict between Pagano’s and Kolison’s statements.

            The tension between the administration and faculty is building. A few years ago, some faculty proposed a no-confidence vote in President Ginny Horvath. The university senate never voted on the proposal, but there was a good chance it would have passed. The UUP recently filed suit against the college because it allegedly used an improper procedure to increase the humanities faculty’s yearly teaching load from six to seven classes.

            Problems arise if the federal government does not give millions of dollars to the college and its students as it did last year. The problems can be addressed in a few ways: retiring faculty and staff might not be replaced, programs with low enrollment might be cut, or programs unrelated to the campus’ identity – its identity includes the arts, education, and science – might be cut.

The first option – refrain from replacing retirees - would avoid the loss of morale that would accompany program elimination and layoffs. On the other hand, it would make faculty and staffing shortfalls depend on who retired rather than prioritizing what is important to the campus. It would also likely result in some programs heavily relying on non-tenure-track faculty. These faculty are on average, less competitive than their tenure-track peers, although their lower salaries make them cost effective.

The second option – eliminate programs with low enrollment – aims at selling programs students want similar to how Walmart sells products customers want. The third option – promote programs tied to the campus’ identity - would allow the college to develop a clearer identity in the competition for students. The third option would lessen the need to compete with the larger, more prestigious university centers – for example, Buffalo – and some comprehensive-college competitors – for example, Geneseo. These last two options come at a cost. They would involve fewer programs, lowered morale, and, perhaps, a fight over the college’s identity.

In deciding how to proceed with program cuts and layoffs – if in fact they must be made –  the college will have to balance market niche, student preferences, and faculty morale. It thus faces the crossroads.

Disclosure: I am a tenured faculty member at Fredonia.

The Bleeding Southern Border

 Stephen Kershnar

The Bleeding Southern Border

Dunkirk-Fredonia Observer

October 31, 2021

 

            The Biden administration is moving the country toward an open Southern border. This is disgraceful.   

This year, the country will let in roughly 2 million illegal aliens. This is based on internal government estimate of 2 million illegal aliens who will be encountered at the border. Many will be let in. In addition, there are 400,000 who will likely sneak past border patrol. The number of illegal aliens is thus larger than the population of San Diego. It is the equivalent to letting in a population equal to Atlanta, Kansas City, and Miami in one year. 

            The loathsome Biden administration did it through a massive across-the-board effort. It stopped building the Southern wall. It tried to put in place a 100-day freeze on all deportation. This applied even to those found guilty of assault, drunk driving, and manslaughter.

The Biden administration then tried to end the “Remain in Mexico” policy. The policy held that asylum seekers from Central America should apply in Mexico or the first safe country. Common sense demands this rule as the vast majority of Central American asylum seekers are ineligible under American law. It also ended a related agreement with El Salvador, Guatemala, and Honduras that – following international law - asylum seekers must file for asylum in the first safe country they get to rather than breaking into the US and filing there.

Having opened the Southern border, the Biden administration then put in place the Obama administration’s idiotic “catch and release” policy. This policy allows illegal aliens who broke into the country to stay subject only to a notice to appear before a judge far into the future. Many do not do so. Some illegal aliens were even released without a court date. The Biden administration then – at taxpayers’ expense - bussed or flew many illegal aliens to different parts of the country in the dead of night and without telling local authorities.

            The Biden administration also eliminated accountability. It ended the “public charge” rule that required that those who were likely to become dependent on welfare were ineligible for permanent residency (green card). It announced that families or employers who sponsor aliens would no longer have to sign an affidavit of support. Such a promise of support would have made them financially responsible if an immigrant went on welfare. And, of course, the administration ended any financial penalty for sanctuary cities. It is even considering a roughly $1 million dollar payment to families separated while breaking in.

            Many of the above policies are illegal. Like the Obama administration’s criminal use of the FBI, IRS, Justice Department, and NSA, open-and-notorious lawbreaking is now the norm.    

            On average, each new legal immigrant sponsors 3.5 other immigrants. Immigrant women have on average 2.9 children (immigrant women without an education have even more). Thus, letting in and amnestying 2 million illegal aliens in effect adds 10 million people. By way of contrast, Pennsylvania has 13 million people.

Most households headed by immigrants from Central America and Mexico are on welfare (73%). This is more than twice as high as the native population (30%). The economic problems of these immigrants continue to a second generation. Specifically, the children of Hispanic immigrants have much lower incomes (including median household income), are much less likely to be proficient in math and reading when in school, and are much less likely to graduate from college.

One of the reasons this matters is that most taxpayers – 61% - pay no federal income tax and, so, we are importing generations of people who ride in the wagon rather than pushing it. If the country wanted immigrants who – both initially and via their children - would perform better than average in terms of crime, education, income, marriage, and welfare, we could easily get them by admitting immigrants from Asia. Such successful immigrants would even come with an obesity rate less than half of current Americans.

Instead of selecting immigrants similar to how an Ivy League school selects its students – which we easily could do – the administration is hell-bent on doing the opposite. Even if the country were committed to admitting Hispanic immigrants, the country could mimic affirmative-action admission in the Ivy League and admit the best Hispanic applicants, thereby ensuring quite talented immigrants, even if not the very best we can get.

None of this is good for current citizens. It is not good economically. See above. This is true whether we compare the illegal aliens to no immigrants or merit-based immigrants.

Nor is it good politically. People who depend on the government for the basics – education, food, housing, and medicine – are much less likely to care about freedom or vote for it. They are also less likely to be bothered by warmongering or gross criminality – see the Bush, Clinton and Obama administrations– and more on keeping the gravy train moving down the tracks.  

This is not even good socially. Most Americans do not want unskilled-and-uneducated illegal aliens as their neighbors or dating their 17-year-old daughters. Such preferences have nothing to do with an American’s race or ethnicity. It makes little sense to import people who Americans, on average, do not want as lovers, neighbors, sons-in-law, or spouses.

What is the justification for opening the Southern border? As noted above, it is not economic, political, or social. It is not even the most charitable thing we could so. If we want to let in the poorest and most desperate, we could admit 2 million from the Congo, Niger, Malawi, etc. They live in far worse conditions than Central Americans. We could also admit 10 million immigrants rather than the 3.2 million immigrants – legal and illegal – that we will probably admit this year. In any case, a country facing a debt 130% of its economy, Social Security and Medicare insolvency, a social fabric increasingly being torn apart (see abortion, Antifa/BLM, Covid-mandates, and school board fights), and possible conflict with China, does not have the luxury of this nonsense.