Con Law Exam 2015: Abortion Law in a Fiorina Administration

by Michael Dorf

It's that time of year again--when I'm too busy grading exams and papers to blog as often as I like. Thus, I give you the exam I recently administered to my 1L constitutional law students. They had 8 hours to write exams totaling no more than 2,500 words, but you, dear readers, can take as much time as you like.
The following facts apply to all questions, except where otherwise noted.

In November 2016, Carly Fiorina is elected President of the United States, while the Republican Party strengthens its majorities in the Senate and House of Representatives. Making good on a campaign promise to “use all lawful means to combat the scourge of abortion,” in March 2017, President Fiorina’s Attorney General, Chris Christie, seeks and obtains a federal grand jury indictment of Dr. Jill Barbary, for allegedly committing first-degree murder in violation of 18 U.S.C. § 1111, which authorizes the death penalty or life imprisonment for the “unlawful killing of a human being with malice aforethought” where the killing occurs “[w]ithin the special maritime and territorial jurisdiction of the United States.” The indictment is filed in federal district court in the Southern District of New York, and is assigned to Federal District Judge Alison Nathan.

The facts are not in dispute. Dr. Barbary was the ship’s doctor on board the U.S.-flagged cruise ship Pinafore. While the ship was sailing off the east coast of the United States, Jane Doe, a passenger who was 23-weeks pregnant, came to the sick bay with what Dr. Barbary quickly diagnosed as severe preeclampsia. After Dr. Barbary explained to Doe that continuing her pregnancy would put her at high immediate risk for a potentially fatal stroke, Doe consented to an abortion. Dr. Barbary attempted to perform a conventional D&E, but complications from Doe’s preeclampsia required her to rush the procedure, and as a consequence, the fetus emerged alive from Doe.

Dr. Barbary thought that the equipment in a neonatal ICU at a Level IV or Level V hospital might perhaps be sufficient to sustain the very premature infant, but when she radioed to shore, she learned that a helicopter dispatched immediately could not bring the infant to such a hospital in less than three hours. However, she knew that, without the kind of intervention available at a sophisticated hospital, the baby would die within minutes. Meanwhile, Dr. Barbary observed signs of severe distress in the infant. Rather than permit the infant to continue to suffer before dying, Dr. Barbary injected a lethal dose of morphine, and the infant died seconds later. Jane Doe, who was still unconscious when Barbary injected the morphine, awoke a few minutes later. Upon learning what Dr. Barbary did, Doe thanked her for “showing mercy to my baby.”

When the Pinafore docked in New York harbor the next morning, the ship’s nurse, James Frederickson, reported the incident to a reporter for the New York Post. A front-page story in the next day’s paper (under the banner headline “SHIP DOC MURDERS BABY”) led to a federal investigation, and then to the indictment.

The indictment relies on the Born-Alive Infants Protection Act (BAIPA), 1 U.S.C. § 8. It provides:

(a) In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the words “person”, “human being”, “child”, and “individual”, shall include every infant member of the species homo sapiens who is born alive at any stage of development.
(b) As used in this section, the term “born alive”, with respect to a member of the species homo sapiens, means the complete expulsion or extraction from his or her mother of that member, at any stage of development, who after such expulsion or extraction breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, regardless of whether the umbilical cord has been cut, and regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, cesarean section, or induced abortion.
(c) Nothing in this section shall be construed to affirm, deny, expand, or contract any legal status or legal right applicable to any member of the species homo sapiens at any point prior to being “born alive” as defined in this section.

Dr. Barbary does not contest that the ship’s location at the relevant time subjected her to federal maritime jurisdiction, as defined in 18 U.S.C. § 7. Nonetheless, her lawyer has filed a motion with Judge Nathan, seeking to have the indictment dismissed on the ground that her prosecution would violate the Fifth Amendment’s guarantee of substantive due process.

Question 1: For purposes of this question only, you are a law clerk to Judge Nathan. Advise her whether she should grant the motion to dismiss the indictment. You should assume that there are no relevant precedents in the Southern District of New York or the Second Circuit, and thus, to the extent that you make arguments based on precedent, you should rely only on decisions of the U.S. Supreme Court.

The following facts apply only to Questions 2 and 3.

By statute or otherwise, all states provide some protection to infants “born alive,” per the common law rule that Congress codified at the federal level in the BAIPA. However, states vary with respect to the punishment available. In response to the publicity surrounding the Barbary case, Congress passes and President Fiorina signs the Protecting Unborn Children Against Monstrous Doctors Act (PUCAMDA) of 2017.

PUCAMDA expands the federal murder statute, 18 U.S.C. § 1111, insofar as it applies to fetuses born alive during the course of attempted abortions, so that it now applies to attempted abortions throughout the United States, not just in the maritime and territorial jurisdiction of the federal government. PUCAMDA thus makes it a federal capital offense for a doctor or anyone else anywhere in the United States to kill a fetus born alive during an attempted abortion.

Section 1 of PUCAMDA recites as authority “the Commerce Clause, because abortion is an economic activity substantially affecting interstate commerce, and/or Section Five of the Fourteenth Amendment, because failure to protect from murder some, but not all, persons born alive, denies the unprotected persons the equal protection of the laws.”

Section 2 of PUCAMDA contains the following “fallback” provision: “In the event that PUCAMDA, on its face or as applied, is found by a court to exceed the scope of congressional power, PUCAMDA shall only apply to attempted abortions performed using instruments or other materials that have traveled in interstate or foreign commerce, or in facilities constructed from materials that have traveled in interstate or foreign commerce, or in facilities that rely on interstate or foreign commerce for heating, cooling, electricity, or communications.”

Section 3 of PUCAMDA contains a secondary fallback provision: “In the event that both Sections 1 and 2 of PUCAMDA, on their face or as applied, are found by a court to exceed the scope of congressional power, Medicaid is hereby repealed. In such event, Medicaid is also hereby re-enacted exactly as before, except now with the condition that no state shall receive any funding for Medicaid unless it adopts, with respect to killings of infants born alive after attempted abortions, the same definition of and penalties in its state murder law as appear in the federal murder statute, 18 U.S.C. § 1111, as informed by the BAIPA.”

For purposes of Question 2, you are an advisor to New York Governor Andrew Cuomo. New York law provides substantial protection to infants born alive. For example, New York Executive Law § 291 states: “The opportunity to obtain medical treatment of an infant prematurely born alive in the course of an abortion shall be the same as the rights of an infant born spontaneously.” In addition, New York Penal Law § 125.05 appears to contemplate the possibility of a homicide prosecution of a doctor (or other person) who intentionally kills a fetus born alive after an attempted abortion.

There are no reported decisions of New York cases in which the born-alive rule of Penal Law § 125.05 was applied to the killing of a fetus born alive after an attempted abortion, so it is unclear whether the substance of New York law already parallels federal law. However, it is quite clear that New York law differs at least with respect to penalty, as New York has abolished the death penalty. Governor Cuomo is very concerned about the possibility of federal prosecutors or local prosecutors (under Section 3 of PUCAMDA, should it be activated) seeking the death penalty for a doctor who kills a fetus born alive after an attempted abortion. But it is unclear to the governor whether PUCAMDA is constitutional.

Question 2: Write the analysis portion of a memo to Governor Cuomo discussing whether PUCAMDA falls within the powers of Congress. Even if you conclude that the law is valid without one or more of the fallbacks coming into play, be sure to evaluate the validity of all Sections.

The following facts apply only to Question 3.

The Freedom of Access to Clinic Entrances (FACE) Act, 18 U.S.C. § 248, provides for criminal and civil remedies against persons who use force or the threat of force to obstruct access to reproductive health services, including abortion. However, the most prominent uses of force against abortion providers have resulted in the most serious criminal charges being brought under state law. For example, Michael Frederick Griffin, who killed Dr. David Gunn in 1993, was convicted of murder under Florida law, and is now serving a life sentence in state prison. Likewise, Robert L. Dear, Jr., who killed three people and injured others at a Planned Parenthood facility in Colorado in November 2015, was (you should assume for purposes of this question) prosecuted for and convicted of three counts of first-degree murder under Colorado law.

On the same day that she signs PUCAMDA into law, President Fiorina takes two actions regarding the FACE Act. First, she issues pardons to everyone who has been convicted of, or stands charged with violating, the FACE Act. Second, she issues an executive order—co-signed by Attorney General Christie—instructing the FBI and other federal agencies “to exercise prosecutorial discretion to de-prioritize FACE Act violations. The Fiorina Administration will treat the FACE Act as a dead letter.” In a memorandum accompanying the executive order, President Fiorina explains:
Although the courts have rejected constitutional challenges to the FACE Act under the First and Tenth Amendments, as the head of a co-equal branch of government, I have the power and duty to make an independent constitutional judgment. I conclude that in fact the FACE Act violates the First Amendment rights of pro-life protesters, violates the Tenth Amendment rights of states, and violates the Fifth Amendment rights of unborn children. Moreover, to the extent that the FACE Act may reach unprotected conduct, it is wholly redundant with state law. It should therefore be an extremely low law enforcement priority. So long as there are real threats to the security of the United States from ISIS terrorists and others, the Fiorina Administration will not waste resources on unconstitutional prosecutions under the FACE Act.
For purposes of Question 3 only, assume that you are an attorney for Planned Parenthood (PP). Although PP has good relations with state and local law enforcement in many places, its leaders fear that in strongly pro-life areas, the withdrawal of the threat of federal prosecution under the FACE Act will greatly increase the risk to patients and employees of private violence and intimidation.

Question 3: Write the analysis portion of a memorandum to PP President Cecile Richards assessing the likelihood of success of a court challenge to President Fiorina’s policies regarding the FACE Act.