Con Law (3 page)

‘Sarah Weddington.’

‘From what law school did she graduate?’

‘Doesn’t say.’

‘Anyone?’

No one.

‘Not even you, Ms. Garza?’

She turned her palms up. ‘I wasn’t born until nineteen ninety.’

Mr. Stanton, texting again: ‘Didn’t your mother know that abortion was legal in nineteen ninety, even in Del Rio?’

‘Not funny, Mr. Stanton.’

But the class thought he was; they too had grown weary of Ms. Garza. She had been born poor on the border, at the opposite end of the socioeconomic spectrum from Mr. Stanton. She had entered UT an underprivileged female; she had graduated an in-your-face feminist. Book often saw her manning the pro-abortion booth on the West Mall, the free-speech zone on campus. He finally answered his own question, something law professors often had to do.

‘Sarah attended this very law school. She graduated in nineteen sixty-seven. Only four years later, she argued
Roe v. Wade
and became the youngest lawyer ever to win a Supreme Court case.’

The students smiled, as if they could put her victory on their own resumés. Ms. Garza seemed especially proud. Perhaps Sarah the law student had burned hot with the same desire to change the world. She had certainly changed the world; some would argue for the better, some would argue for the worse, but no one could argue that she didn’t change the world. Book had won two search-and-seizure cases at the Supreme Court. Both were groundbreaking—every Supreme Court case is groundbreaking—but neither had changed the world.

‘Mr.
Stanton, what law did the appellant challenge?’

Still texting. He did not look up.

‘The Texas law that made all abortions criminal acts unless necessary to save the mother’s life.’

‘And what did the Court decide?’

‘That the law violated Roe’s right of privacy and was thus unconstitutional.’

‘Mr. Stanton, in which article of the Bill of Rights is abortion mentioned?’

‘It’s not.’

‘Why is that?’

Ms. Garza couldn’t restrain herself.

‘Because racist, misogynistic white men who owned slaves and didn’t allow women to vote wrote the Constitution!’

Mr. Stanton coughed words that sounded like ‘affirmative action.’ His posse of fellow frat boys on the back row laughed. Book did not defend Ms. Garza. She needed no help. She turned in her chair and aimed a finger (not her middle one this time) at Mr. Stanton.

‘Your days are numbered, Stanton. Apartheid in America is coming to an end. Enjoy it while you can.’

‘I will. In a month, I’ll be lying by the pool at the country club surrounded by white girls.’

‘And if you get one of those girls pregnant, your rich daddy will pay for her abortion. A poor black or Latino girl gets pregnant, your daddy wants to force her to have the baby. Fifty million abortions since
Roe
—does your daddy want to pay more taxes to support all those babies?’

The senior Stanton was a prominent and very rich Republican in Texas.

‘No, but I’ll get him to endow a lifetime abortion pass for you. God knows we don’t need any more Irma Garzas in this world.’

The junior Stanton shared a high-five with his posse. Book kicked the front panel of the desk as if the heel of his boot was a gavel,
and order was soon restored. Book had warned the students that his classroom was an intellectual free-fire zone, like the Supreme Court but more civil.

‘Mr. Stanton, if the Constitution says nothing about abortion, how did the Supreme Court determine that a woman has a constitutional right to have an abortion?’

‘They discovered it.’

‘Where?’

‘In the right of privacy.’

‘The same right of privacy they discovered in
Griswold
?’

‘Yep.’

‘Another unmentioned right lurking in the shadows?’

‘Who knew?’

‘But, as Ms. Garza correctly stated, the intent of the Ninth Amendment was to make clear that there are other rights not mentioned in the Bill of Rights that are nonetheless protected by the Constitution. The Court ruled in
Griswold
that one such unmentioned right is the right of privacy. Mr. Stanton, isn’t abortion another such right?’

‘No. Abortion was not an unmentioned right of the people at the time the Bill of Rights was ratified. In fact, it was a crime at common law in every state of the Union.’

Ms. Garza stood and faced Mr. Stanton. The debate was on.

‘That’s bullshit, Stanton. The Court said abortion was
not
a crime at common law.’

‘They lied. The only authority the Court cited were two law review articles written by the general counsel of a pro-abortion group, which articles have been roundly discredited as distortions of the common law. In order to justify their hijacking of the Constitution to push their political agenda, the liberal justices misstated history by adopting one biased author’s point of view.’

‘History is just a point of view,’ Ms. Garza said. ‘Usually written by white men biased against women and minorities. The right to have an abortion was another right not mentioned in the
Constitution because women did not serve on the Constitutional Convention. Women’s voices were not heard at the time, Mr. Stanton.’

‘Thank God.’

Which elicited a round of boos from the women in the classroom. Book kicked his desk again and gestured Ms. Garza into her chair.

‘Mr. Stanton, what was the key ruling of
Roe
?’

‘That the right of privacy includes the right to have an abortion.’

‘No.’

Mr. Stanton frowned.

‘Ms. Garza?’

‘That before viability of the unborn child, the state has no legitimate interest in the unborn.’

‘The Court so held, but was that really the key ruling of the case?’

No takers.

‘Come on, people, you’ve read the case. Think.’

Heads ducked behind the façade of laptops.

‘I know you’re back there. You can hide but you can’t run, at least not for’—he checked the clock on the back wall—‘fifteen more minutes. Was viability the key ruling of
Roe
?’

‘No.’

A small anonymous voice.

‘Who said that?’

Book searched the laptops for a face.

‘Come on, fess up.’

A hand slowly rose above a laptop.

‘
Ms. Roberts?
Was that you?’

‘Unh-huh.’

Ms. Roberts peeked over her laptop on the sixth row. She had never before spoken in class.

‘Ms. Roberts, welcome to the debate. So what was the key ruling in
Roe
?’

She
looked like the shy girl in high school who had never been on a date being asked to the prom by the football star. She took a handful of her hair hanging in her face and wrapped it around her left ear. With her index finger she pushed her black-framed glasses up on her nose. She took a deep breath then spoke in the softest of voices to the hushed classroom.

‘That under the Constitution, an unborn child is not a living human being at any time prior to birth. As Justice Stevens said, it is only a, quote, “developing organism.” Thus, the Constitution offers no protection whatsoever to an unborn child.’

‘Correct. Please elaborate.’

‘The Fourteenth Amendment states that, quote, “nor shall any state deprive any
person
of life, liberty, or property, without due process of law; nor deny to any
person
within its jurisdiction the equal protection of the laws.” Thus, if an unborn child were a “person,” Roe’s case would fail because the Fourteenth Amendment would expressly protect the unborn child’s right to life. So, in order to find a right to an abortion, the Court had to first rule that an unborn child is not a “person” under the Constitution. Which is exactly how they ruled: an unborn child is not a living human being and thus abortion is not the termination of a human life.’

Ms. Roberts had found her voice after eight months of Con Law classes. Another small victory for Professor John Bookman.

‘So?’

‘So, if the unborn child is not a living human being, what’s growing inside the mother—a vegetable? Dogs and cats aren’t persons under the Constitution either, but we have laws that prevent us from killing them for sport. And this ruling seems especially cruel given that the Court had previously ruled that corporations do qualify as persons under the Fourteenth Amendment and are thus entitled to the full protection of the Constitution.’

Mr.
Stanton, from the back row: ‘As my man Mitt said, “Corporations are people, too.”’

Which evoked a round of laughter. Book kicked his desk again.

‘People, this is important. Ms. Roberts is on to something. Listen up.’ Back to Ms. Roberts. ‘So corporations have more rights under the Constitution than an unborn child?’

‘Yes. In fact, a rock has the same constitutional rights as an unborn child.’

‘You’re almost to the finish line, Ms. Roberts. Now tell us why that particular ruling matters.’

‘Because it makes us question whether we matter. It makes us question our place in the grand scheme of things. Do human beings occupy a special place in the universe or are we just a species that has evolved to a higher state of cognitive ability than, say, chimpanzees? When our highest court of law says human beings have absolutely no rights until we’re born, that delegates an unborn child to the same constitutional status as an earthworm or a tomato or a—’

‘Rock?’

‘Yes.’

‘And you think you’re more important in the universe than a rock?’

‘I hope so.’

‘So what are the possible legal consequences of this ruling?’

‘What if the unborn child has a genetic defect? Can the government force the woman to abort in order to avoid costly future treatment for that child? What if the government decides to solve poverty by instituting mandatory abortions, like in China? New York City public schools are giving the abortion pill to eighth-grade girls without their parents’ permission. When our highest court says that unborn humans are not “persons” under the Constitution and may be killed without constraint but corporations that manufacture weapons of war that kill millions of born humans are “persons” with constitutional
rights, I say, Who are those guys? Why do they get to decide what is or isn’t human? Who elected them God? How do we know they’re right? If they’re right, who are we and what are we and what is our place in the universe? Is human life nothing more than a biological coincidence? Are our lives no more important in the universe than road kill on I-Thirty-five? Do we matter? Or are we just matter?’

‘And if they’re wrong?’

‘We’re all in deep shit, so to speak.’

The students stared at her with stunned expressions. Except Ms. Garza. She glared at Ms. Roberts.

‘What, now you’re Sarah Palin? You want women to go back to coat hangers and poison?’

Ms. Roberts did not wither under Ms. Garza’s hot glare.

‘I had an abortion, Ms. Garza. I was ra—’

She ducked her head, and an awkward silence fell upon the room, until Mr. Stanton said from the back row, ‘Ms. Garza, you are the poster child for abortion on demand.’ Which evoked a round of supportive hoots.

‘Unacceptable, Mr. Stanton,’ Book said. ‘In this classroom we are civil lawyers, able to disagree without being disagreeable. What is my absolute rule of conduct?’

‘We shall remain civil at all times.’

‘You have violated that rule. An apology, please.’

Mr. Stanton seemed contrite.

‘My sincere apology for my incivility, Ms. Garza.’

She faced him.

‘Fuck off, Stanton.’

He threw up his hands.

The first time a student had blurted out the F-word in his class, Book had sent him packing. Eight years later, he didn’t blink an eye. He was beyond being shocked by profanity—in class, in the corridors, anywhere in public for that matter. Profanity was as much a part of speech for this generation as ‘howdy’ was for Book’s. The F-word had made its way from the locker room to the law school. Athletes, actors, CEOs, and even vice presidents employed the F-word. It’s a noun, verb, adverb, adjective, and interjection. It’s mainstream speech. It’s freedom of speech. The Supreme Court had in fact ruled that the government could not fine a broadcast company for the singer Bono blurting out the F-word during an award show. Book often wondered if the Framers had anticipated that the First Amendment would one day give constitutional protection to ‘fuck off.’

‘Not
gracious, Ms. Garza,’ Book said. ‘People, I know this is an emotional issue. But as lawyers we must keep our heads while others around us are losing theirs. In this classroom, we are lawyers, not protestors.’

‘But we’re one Supreme Court justice away from abortion being banned in America!’ Ms. Garza said.

‘Who told you that?’

‘Biden. He said so on TV.’

‘He’s wrong.’

‘He’s the vice president.’

‘He’s still wrong.’

‘But Justice Scalia wants to ban abortions!’

‘No, he doesn’t. Scalia said that as far as he’s concerned, the states may permit abortion on demand. The conservative justices don’t think there’s a constitutional right to have an abortion, but they’ve never said that the Constitution bans abortion or that an unborn child is a “person” under the Constitution. They’ve never disagreed with the key ruling of
Roe
, that abortion is not the taking of human life under the Constitution.’

‘You sure about that?’

‘I’m teaching Con Law, Ms. Garza.’

‘Professor,’ Mr. Brennan said, taking a respite from his furious typing, ‘do you think the Court correctly decided
Roe
?’

‘Mr. Brennan, in this classroom what I think is irrelevant. What you think is relevant. And that you think. I don’t care whether you agree or disagree with the
Roe
case, only that you think about
the case. As students of the Constitution, we are more concerned with the Supreme Court’s reasoning than with its decisions, its thought process rather than who wins or loses the case.’

‘Bullshit.’

‘Ah, a dissenting opinion from Ms. Garza. In any event, we may disagree with the Court’s decisions, but so long as the justices
interpret
the Constitution, they are acting within their authority. If, however, they
amend
the Constitution, they are usurping we the people’s authority.’