Thanks to a kindly reader down yonder, I now have had a chance to look at the text of Maine’s proposed "gay gene" bill, which would prohibit abortions based on the findings of a genetic test pertaining to the projected sexual orientation of the child.
If I’m reading things correctly, here’s what Maine’s law would be amended to read:
§1597-B.__Prohibited basis for abortion
An abortion may not be performed when the basis for the procedure is the projected sexual orientation of the fetus after birth, based on analysis of genetic materials of the fetus in which sexual orientation is identified through the presence or absence of a so-called "homosexual gene."
Now, I’ve highlighted the words "or absence" because it points up something I mentioned in the combox on the above-linked post: This bill does not only seek to protect babies who are foreseen to have homosexual temptations. It equally protects babies who are foreseen to have a heterosexual orientation.The law wouldn’t let you kill a kid because he’s foreseen to be straight or gay.
(The title of the bill may mention protecting homosexuals, but this is an obiter dictum. What counts is what the text of the law would be amended to read, and that protects both proto-straight and proto-gay babies.)
Would this survive the equal protection clause of the Constitution? Here’s the part of the amendment containing that clause:
Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.
Since both proto-straight and proto-gay babies are protected by the law, a textual reading would not indicate that either is being denied equal protection.
One could say that, well, the proto-gay babies are the ones who would by far benefit from such a law as most parents would not want to kill a proto-straight baby. True enough. But does the fact that one class of people benefit from a law more than another mean that the law is unconstitutional because of a violation of the equal protection clause? It would seem hard to argue this reasonably.
First, virtually every law advantages one group more than another:
- If you have a law against murder, that advantages the people who don’t want to be murdered over those that would like to murder them.
- If you have a law giving a government subsidy to wheat farmers (much against the advice of the Supergenius Thomas Sowell) then that advantages them over people not getting a subsidy in their line of work.
Laws against murder and in favor of wheat subsidies are certainly constitutional (regardless of the economic demerits of the latter), so whatever the equal protection clause means, it does not seem to mean that a law which on its face treats everyone equally could not work to the advantage of one group more than another. As long as both the would-be murder victim and the would-be murderer both have their lives protected from being murdered, equal protection is maintained. As long as anybody can become a wheat farmer and gain a share of taxpayer loot, equal protection is maintained.
The equal protection clause was originally introduced to keep states from having "Black Codes" that applied a different set of laws to blacks than to whites (e.g., with more severe punishment and less access to legal redress of grievances). Both classes had to have a common set of laws applying to them.
That is what we have here with proto-straight and proto-gay babies: Both get protexted.
Further, for the equal protection clause to be rationally applied to the unborn the courts would need to find that unborn babies are persons because the equal protection clause expressly applies to "any person within its [a state’s] jurisdiction." I would be most happy with such a finding.
That being said, do I think the proposed law is ideal?
No.
For a start, it speaks only of a "homosexual gene" (singular), but scientists might find that several genes or a combination of genes rather than a single gene may have an impact on sexual orientation.
Further, it ignores completely the possible role that hormones rather than genes may play in shaping future sexual orientation.
Finally, the such a law would have negligible effect since it only prohibits abortions "when the basis for the procedure is the projected sexual orientation of the fetus after birth." What the basis of an abortion may be is too hard to discover. A couple could get a gay gene test on the baby, find out the answer, go home, think it over, and come back with a completely different excuse for why they want to kill the kid. This bill does nothing to prevent that from happening.
Do I expect the law to pass?
Probably not, though I don’t know enough about Maine politics to know.
Do I think the law would survive court challenges?
No, that would be an extreme longshot given the proclivities of Darth Kennedy and Our Robed Masters.
Do I think the law or its attempted passage would start a productive national debate on abortion?
Heck, yeah! I suspect it’s already causing some rethinking in the gay community in a pro-life direction.
Oh, and for those who missed our earlier discussion: Do I believe that there is a "gay gene" that determines sexual orientation?
No. I think humans are too cognitive a species for that. Our sexuality is quite sensitive to cognitive conditioning, though I can’t rule out (given present science) that genes or prenatal hormones may play some kind of role in laying the groundwork for later homosexual temptations.
“Since both proto-straight and proto-gay babies are protected by the law, a textual reading would not indicate that either is being denied equal protection.”
Very true. Unfortunately we no longer live in a country that abides by the plain meaning of the written text of the Constitution, or that has a judiciary that believes words actually have to mean what they mean. When you consider the legal argument in favor of homosexual pseudo-marriage, which consists of a deliberate twisting of the Equal Protection clause, you can be sure that some immorality-friendly judge will be more than happy to misuse “Equal Protection” or some other Constitutional provision to strike down this law.
This is a hopeful sign. The twisted logic of abortion could not continue forever without turning back on itself. Together with the Unborn Victims of Viloence Act and other legal realities, bills like this might help to SIGNIFICANTLY weaken Roe.
Actually, statutes that forbid discrimination based on (real or perceived) sexual orientation have been used to protect heterosexuals, not just homosexuals. It’s less common in experience, but such laws do cover both equally in substance.
I don’t understand how the Equal Protection Clause has anything to do with the proposed statute. The EPC defines a “citizen” before detailing a “citizen’s” right to equal protection under the law. This definition requires birth or naturalization, though one can’t have the later without the former. It is clear our abortion rule makers (read: federal judges) do not consider the unborn to be “citizens” subject to the EPC, or else the criminality of abortion would be reflected in our laws. Ironically, they must follow the prima facie definition–something most of them seem loathe to do of any statute or Constitutional clause–of “citizen” given in the EPC to reach this conclusion.
JP
Hi Jimmy!
I’m afraid I don’t quite get your support of a bill like this. Even if the bill removes “sexual orientation” from the list of legitimate reasons to have an abortion, how does it differ from laws that do something similar in the areas of employment and housing? Would you consider supporting the proposed changes to the Civil Rights Act of 1964 for the same reasons that you support this bill? Correct me if I’m mistaken, but I understood that a reference to “sexual orientation” in such legislation was understood as a <obligitory evil file format reference>special right.</obligitory evil file format reference>
No Eric. They are two separate things entirely. In the first instance one is protecting the right of the individual to live. This is a fundamental right that the state should have little or no access to. Historically abridgement of the right to life has been limited to certain “high-crimes” such as murder or treason.
In your example you are protecting a behavior. Behaviors can have little to no social protections. One of the reasons, for example, that anti-smoking laws can be enacted is because they restrict the rights of certain individual’s to engage in a behavior even when that behavior is compelled by addiction . Sexual intercourse, versus a sexual predisposition, is a behavior that can be legislated against. In the United States, and unfortunately in most of the Western world, the behavior is entering into some sort of protected status. If homosexuals are so predisposed to their behavior that it is compulsive, then we would have to view them as mentally diseased. This is a position that I don’t think you would support.
This is also the reason why I feel this bill hijacks a morally conservative position. I felt arguments like this coming. The spidey-sense was just waaaaaay to tingly.
Hi Nick!
I’m afraid I still don’t understand. How can you say that an individual has a right to live but not the right to shelter or to support himself financially?
Let’s be clear. If the genetic assumption that the original bill from Maine addressed turned out to be true, then sexual orientation is something that would exist in complete independence of one’s behavior. If the orientation could be objectively determined, then those individuals could be the subjects of discrimination regardless of whether they act upon their temptations. So this is not strictly about behavior.
I suppose I ought to add that, generally speaking, I do not support such anti-discrimination legislation. Part of the reason for that has always been that unlike race or gender, one’s sexual orientation is unknowable unless the individual chooses to make it apparent in some fashion. What we’re saying with the bill from Maine is that may not be the case anymore.
“SEC. 1107. (a) Definition- For purposes of titles II, III, VI, VII, and IX of this Act, the term `affectional or sexual orientation’ means male or female homosexuality, heterosexuality, and bisexuality by orientation or practice, by and between consenting adults.”
Thus…behavior. Unless that isn’t the bill you wished to use. Of course, this ignores whether it’s genetic at all. That is, the bill doesn’t presume to address whether or not its a compulsion (presumably treatable), a tendancy (which would require no special protection), or pure choice (again no special protection).
Hi Nick!
So does the bill become worthy of support once the reference to “practice” is removed?