The Question

If there is one question a nominee for the Supreme Court hates, it is this one: "Is a baby in the womb a person?" All the hostility and anger and fear of Roe v. Wade are summed up in that one question. And it is a question that a nominee for the Court cannot legitimately duck, because no one on the Supreme Court has ever argued that a baby in the womb is a person. Yes, that's right, all the right-wingers sign on. It's unanimous. Even Thomas and Scalia agree that a baby in the womb is a non-person.

Since it's so frickin' unanimous, can Kagan honestly say the issue is likely to come up in the future? It's not like it's 5-4 on the humanity of the unborn. It's 9-0 against. Actually, mark it 19-0. Every Justice on the Supreme Court, implicitly or explicitly, have signed on to Justice Blackmun's dehumanization of the unborn (with the exception of Sotomayor, who hasn't had an opportunity yet to express her agreement).

You would expect, with this widespread unanimity, that the dehumanization of the unborn is a no-brainer, a softball, an easy question. But it's the opposite of an easy question. It's a damning question. It's the whole ball game. You know Kagan hates the question. They all hate the question. Because if a baby in the womb is a human being, then the Supreme Court has killed innocent people.

The Supreme Court held, in essence, that you become a person when you become a citizen. That is to say, when you're born. And you stop being a person when you stop being a citizen. That is to say, when you're dead. Birth is the beginning and death is the end.

Justice Scalia nods his head at this bright-line test. Birth! Death! It's simple. Who can argue that birth is when you start being a person and death is when you stop? Well, actually, anybody who uses his brain can argue with it.

Say that a baby, Sue, is conceived on January 1st. Another baby, John, is conceived on April 1st of the same year.  On October 1st, John is born 3 months prematurely and is rushed to an incubator. He weighs one pound. He's sickly, weak, and might die. Sue, meanwhile, is in perfect health. She weighs seven pounds and is ready to come out any day now.

According to the Supreme Court of the United States of America, John is a person and is entitled to the equal protection of the laws. And Sue, who is older, and bigger, and stronger, and healthier, has no constitutional rights at all.

According to Scalia, Thomas, Rehnquist, Alito, Roberts, White, Kennedy, Burger, O'Connor, Stewart, Powell, Souter, Douglas, Brennan, Marshall, Breyer, Ginsburg, Stevens and Blackmun, that unborn baby in the ninth month must be classified as a legal object. It's required.

Now that should not be a unanimous opinion. I think many people would say that a seven-pound baby is more of a baby than a tiny 1-pounder. Cause, you know, she's bigger.

Of course it's pretty ridiculous to use pounds to measure humanity. What are we doing, buying meat? On the other hand, size appears to play a part in our compassion. Microscopic organism? Too tiny. Kicking baby in the ninth month? Definitely human.

Of the two, it's kinda bizarre to suggest the younger, smaller, unhealthier and less viable baby is a person.  But of course you have to agree she is, because she's a frickin' citizen. So what's really insane is to insist that the older, bigger, healthier and more viable baby is not a person at all.

You would think Carhart would blow this whole stupid argument out of the water. Unborn = object. Born = person. What's partially-born, the missing link? A partially born baby is like a minotaur to the Supreme Court. You're half-person, half-animal.

As all the right-wingers on the Court go into conniption fits about the homicidal uneumerated rights found by their liberal colleagues, you would think it would occur to one of them to revisit the issue of legal humanity. But it doesn't.

Why is this stupid argument still followed?  Because it's unanimous. Since it's unanimous, the issue never comes up.  Now, a unanimous opinion may mean it's an obvious point of law and only dummies like me are yelling about it. Or what it might also mean is that it's a weak argument that has gone unchallenged.

What do we know about an unchallenged idea? Well, you've never had to defend it before. You've never had to struggle with it. You've never had to think it through. You coast on your Ivy League credentials and your lazy assumptions.

Even more damning is the issue of bias. Why do liberals dehumanize the unborn? Because they want abortion rights for women. And the baby gets in the way. Okay, but why would right-wingers, the opposition, why would they dehumanize the unborn?

Again, bias. Some of them dehumanize the unborn because they are worried about their institution, the Supreme Court, and they want to protect it. Others have a strict jurisprudence and try to limit the Constitution whenever they can. They really don't mind the possibility of states murdering helpless and innocent people. "Go ahead and classify people as objects, we don't mind." Maybe they have a fear of being called an "activist." Personally, I would rather be called an activist than a baby-killer. I'll bet Scalia would, too.

Regardless, for whatever reason, no right-wingers in the judiciary have accepted the argument that a baby in the womb is a human being entitled to the equal protection of the laws. And obviously no liberals are accepting it. Thus we have a widespread judicial consensus on this issue. A consensus that is lacking among our people.

What this means, for purposes of a confirmation hearing, is that Elena Kagan has no legitimate reason to avoid talking about what all the Justices say is true about Roe: an unborn infant is a legal object without any constitutional right to live. Again, this is a seemingly unanimous, 19-0 opinion. Harry Blackmun in Casey even pointed this out, daring anybody to object. And nobody did. And since so many of our citizens are upset about precisely this aspect of the opinion, it seems fair to ask Kagan to explain the logic of the doctrine.

How do you define what a person is? Who defines that word? Is it an ordinary word that you look up in a dictionary? Or do you need to go to Yale or Harvard to know what a person is? Is it a legal term of art? Is there a danger of bias, of judges narrowing the word so that it doesn't protect people whom we want to discriminate against?

What do you think, Elena?