Dog Trainer: Abortion Trumps Speech
One of the basic rules of constitional law that every first year law student knows it the “state action doctrine,” which means essentially that the Constitution applies only to the government, not to private individuals. For example, if the cops suspected you might be a drug dealer and broke into your house to go on a fishing expedition while you were away, that would be a blatant violation of the Fourth Amendment, so any incriminating evidence they found as a result of that search would be inadmissible against you. But if a random burglar happened upon your secret stash and chose to testify against you, there’d be no Fourth Amendment bar to its admission. Similarly, if you work for the government and get fired for expressing a political view, you may be able to mount a First Amendment challenge. If you work for a private employer, fuhgeddaboudit. [UPDATE: maybe this wasn't such a good example.]
To be sure, there are some exceptions to the state action doctrine. One exception applies where the acts of a private individual can reasonably be imputed to the state. For example, my hypothetical burglar case only works if the burglar acted on his own, without the knowledge or apparent consent of the police. If the cops put him up to it, it won’t work. Also, there are a few provisions of the Constitution which, unlike the rest, clearly were intended to apply to private individuals. The 13th Amendment prohibition on slavery is one such example; a ban on states and the federal government owning slaves would be meaningless. Ditto for National Prohibition under the 18th Amendment, and for the obscure 21st Amendment ban on the importation of alcohol into dry states. I tend to think the same argument could be made of treason, which the Constitution does not technically prohibit, but which Article III, Section 3 does define.
One exception to the state action doctrine that I did not anticipate, but probably should have, was to the nonexistent emanation and/or penumbrum of the Constitution which, according to Roe v. Wade and Planned Parenthood v. Casey, allegedly protects the right to abortion. I’d long assumed, that if there had actually been a provision of the Constitution that protected the “constitutional” right to abortion, it would read something like this:
Congress shall make no law respecting a first trimester abortion, or prohibiting the free obtention thereof; or abridging the ability to abort a second or third trimester abortion except to protect the life or health of the mother.
Or, if you prefer:
A well controlled Population, being to the status of the United States as a First World Country, the right of pregnant women in the first trimester to obtain Abortions, shall not be infringed.
Then again, maybe we should scratch that second example. The David Souters of the world would end up parsing it wrong, and conclude that individual abortions are only allowable when absolutely necessary toward the preservation of a well-controlled population, and maybe not even then. So let’s stick with the tried and true grammar of the first example. After all, it’s patterned on the First Amendment, which enjoys as much judicial protection as any other constitutional right actually mentioned in the Constitution .
According to the L.A. Times, the Abortion Amendment goes much further than that. According to today’s editorial, while your boss may have an absolute right to fire you for expressing a First-Amendment-protected opinion, he should not be allowed to offer you a health plan that doesn’t cover abortion. For Congress even to allow this option is, in their words, “to shrink the landmark abortion-rights decision Roe vs. Wade to the point where there is no need for judges to formally overturn it.”
By that reasoning, I want my employer to buy me a printing press, a gun, a soldier-free house, a guarantee no cop will ever intrude in it without probable cause, just compensation for the last house of mine that was condemned, a free attorney if I am ever charged criminally, another attorney if I am ever sued civilly, indemnity for any unreasonably high fines I’ve ever been required to pay, other rights not mentioned here, and an assurance that Congress won’t regulate in any area other than as explicitly provided for in the Constitution. Failure to do so would be to shrink all ten of the Bill of Rights to the point where there is no need for judges to formally overturn them.
Cross-posted to Oh, That Liberal Media.
November 28th, 2004 at 8:39 pm
Heh. You’re killing me with those proposed amendments. If I were doing the Council vote this week…
November 28th, 2004 at 10:03 pm
The amendment we seem to be living under is:
“The right of a woman to obtain an abortion shall not be infringed.”
The rest of it is all lost in the “or health” language. There is really no current limit on this “right.” Or have I missed some operational law that actually limits abortions in some meaningful way?
November 28th, 2004 at 10:49 pm
Strictly speaking, you’re right. The lack of the “mother’s health” exception was the court’s excuse for striking down Nebraska’s ban on so-called “so-called partial birth abortion.” This time around, however, my intent was not to be brutally frank with the fake abortion amendment, but to write one that reads more or less like the others, vis a vis its interpretation by the courts.
November 29th, 2004 at 9:30 am
Cruel and unusual interpretations
Xrlq points to this Los Angeles Times editorial which says, in effect, that employer-sponsored health plans should not be allowed to exclude coverage for abortion because doing so would “shrink…
November 29th, 2004 at 10:55 am
First sentence:arrow:constitional
November 29th, 2004 at 11:06 am
Since you’re well versed in these matters:
“’state action doctrine,’ which means essentially that the Constitution applies only to the government, not to private individuals…” makes me ponder first-amendment issues.
Could you help me understand why Lefties go batcrap insane when conservatives challenge outrageous vulgarity, unpatriotic obscenity, or other foulness, calling this criticism “censorship”? I refuse to call free speech attacking other free speech “censorship,” even when I’m the one attacked, as long as it’s not the government — but that’s the Left’s default mode. If a religious group contends with a film like “Priest,” or “Last Temptation,” they are called “censors” and “book-burners.” If the govt. burns books, I’ll worry, and fight it. But if a group of zealots want to burn ACDC records, whatever: Not my thing, but they’re not Nazis. The Left, meanwhile, wants the freedom to stomp and burn the flag…
November 29th, 2004 at 4:21 pm
BHC, I don’t know if I would go as far as to say that only government can practice censorship, or that private censorship is never a problem. I think it was a BIG problem when Millennium Information Services fired Stephen Gardner for expressing his views about John Kerry. It’s not a First Amendment violation, but that doesn’t mean it isn’t a problem, and depending on the state, may even be illegal.
Of course, merely criticizing someone else’s speech is a far cry from “censoring” him.
November 29th, 2004 at 6:45 pm
Don’t Get Cocky, NYT Editors! Los Angeles Times Editors Also Know How to Regurgitate Talking Points from the Left!
Newspaper editorial writers could learn something from bloggers. Blogging etiquette generally requires that bloggers “show their work” by providing links to their sources (or, if no Web link is available, to explain where readers can go to find the s…
November 29th, 2004 at 7:02 pm
Here’s another tangent, from here are some exceptions to the state action doctrine. One exception applies where the acts of a private individual can reasonably be imputed to the state.
Any chance this could extend to pre-employment drug screening? Probably too much of a stretch, but perhaps not? When gov. procurement contracts require vendors to do them, is that sufficient for imputation? Or does it have to be more direct?
November 29th, 2004 at 8:02 pm
Not necessarily more direct; it’s more a question of whether or not the same test would be considered unconstitutional if done by the state. AFAIK, the state can impose pre-employment drug screening requirements on its own would-be employees, so I would think it could also require its contractors to do so. Probably a different result if the state was using the tests to prosecute the applicants criminally.
November 29th, 2004 at 10:58 pm
Hmmm. So 4th Amendment protections apply only when a search/siezure is for the purposes of criminal prosecution?
And now my mind is wandering off into CFS territory.
November 30th, 2004 at 1:41 am
Could someone please explain how I do a trackback to this post?
November 30th, 2004 at 7:39 am
…and a partridge in a pear tree
Xrlq explains the state action doctrine, for the constitutionally illiterate.
November 30th, 2004 at 1:22 pm
Jed, I believe that is correct, though I’m not 100% sure. IIRC, the US Supreme Court heard a case on that issue last year; unfortunately, I don’t remember the name of the case or the ultimate holding.
November 30th, 2004 at 7:37 pm
Well, if any keywords (respondent, etc.) come to mind, maybe you could toss ‘em my direction. I’m not seeing anything specific to that at Findlaw. I’m sure it’ll come up again some time.
Later, dude.
December 1st, 2004 at 3:40 pm
Millennium Information Services denies the story as reported.
December 1st, 2004 at 4:01 pm
I know. That’s why I added the update stating “maybe this wasn’t such a good example,” and linking to the same page.