Never Get Out\u27a the Boat: Stenberg v. Carhart and the Future of American Law


In this essay, the haunting scenes from the film Apocalypse Now serve as the backdrop for an examination of Stenberg v. Carhart and the meaning that this case holds for the future of American law and culture. The movie tells the story of Captain Benjamin Willard, a special forces officer in Vietnam who travels up-river on a patrol boat in search of a renegade American colonel whom Willard has been ordered to “terminate.” The major thematic concerns of the film are morality, violence, candor, and the tenuous nature of civilization. Indeed, life on board the boat, such as it is, represents civilization. This contrasts with the jungle, which represents the absence of the moral order that makes social life possible. This absence allows for the exercise of freedom without judgment. Thus, in one scene, the viewer is warned that you should “never get out’a the boat” unless you are prepared to “go all the way.” In the essay, we argue that in Stenberg v.Carhart the Supreme Court “got out’a the boat” and went “all the way.” Stenberg held that a state may not ban the procedure commonly known as partial birth abortion. Stated more bluntly, the Court held that the protection of the law does not extend to a child in the process of being born. Incredibly, the humanity of the victim of this procedure is never addressed in the Court’s opinion. Here the Stenberg majority differs significantly from the Court in Roe v. Wade, which appeared to struggle with “the difficult question of when life begins.” In Stenberg, the Court knows that the life at issue has already begun. Indeed, it is in the process of being born. By licensing the brutal killing of what is undeniably an innocent human being, the Court turns its back on civilization and marches proudly into the jungle. Plainly, law is an essential component of authentic civilization. Law as such must embody the principle of equal concern and respect for every human being and the principle of ordered liberty. The essay provides examples of how, since the adoption of the 14th Amendment, these principles have been at the heart of American constitutional law. We argue that, with Stenberg, the Court has abandoned the concept of ordered liberty in favor of the concept of liberty as license. Moreover, in adopting what it believes is a maximal conception of human freedom, the Court has undermined the very notion of equal concern and respect. Here we contrast the abortion license with the Court’s treatment of the right to free speech as well as its decisions concerning capital punishment. We conclude the piece by arguing that if the Court truly believes that the benefits of constitutional personhood do not extend to a child in the process of being born, then it is incumbent on the Court to explain why this is so. Indeed, the rule of law demands that the Court explain its now unspoken criteria for constitutional personhood. The piece is especially timely given that the Supreme Court has agreed to decide the constitutionality of the federal partial birth abortion ban. Carhart v. Gonzales, 413 F.3d 791 (8th Cir. 2005), cert. granted Gonzales v. Carhart, __ U.S. __ (2006). Thus, the Court is once again faced with the choice of embracing authentic civilization or promoting barbarism under the appearance of law

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