Envisioning Originalism Applied to Bioethics Cases

Photo ID 123697425 © Alexandersikov | Dreamstime.com Abstract Originalism is an increasingly prevalent method for interpreting provisions of the US Constitution. It requires strict adherence to the root meanings of constitutional terms, irrespective of drastically different contexts and without regard to consequences. This article offers a brief description of Originalism and summarizes key criticisms of Originalism in principle and in practice. It then examines a mix of past and pending legal cases that implicate bioethical principles and require interpretation of the Constitution, and it envisions an originalist approach to deciding them. Introduction Originalism and bioethics are distinct approaches to shaping public policy and private conduct. Originalism, an increasingly prevalent method for interpreting provisions of the US Constitution, requires strict adherence to the meaning of constitutional terms as understood at the time the provision was enacted, irrespective of drastically different contexts and without regard to consequences. Proponents suggest that it removes the policy preferences of judges from decision making and provides neutrality and objectivity. Critics regard it as an unreliable tool, used selectively by conservative justices to reach their desired legal conclusions. Bioethics emerged in large part as a multidisciplinary effort to examine issues raised by advances in medicine and biotechnology, from late-20th-century developments like the ventilator, in vitro fertilization, and organ transplantation to today’s use of ECMO, CRISPR, and artificial intelligence. Bioethicists strive to identify the competing ethical values at stake, weigh them, and propose ethical bedside and policy answers to them. Originalism matters to bioethicists because courts have and will continue to invoke the theory to resolve constitutional questions concerning such advances, including questions the Framers could not have envisioned. This article offers a brief description of originalism and the rationale for it and summarizes key criticisms of originalism in principle and in practice. It then examines a mix of past and pending constitutional law cases relevant to bioethics and envisions an originalist approach to deciding them. Since there is no single bioethics position on the issues presented in these cases, it is not possible to state whether an originalist approach would align or conflict with a bioethical position. Even so, the exercise is illuminating: it alerts bioethicists, with their diverse views, to the possible impact of originalism in bioethical matters. Originalism Originalism claims to offer an objective interpretation of constitutional provisions, free from judicial preference, politics, and policy.[1] Essentially, it calls upon judges to examine historical documents to reveal the original understanding of the provision and adhere to it. Originalism differs from textualism, a related doctrine that calls upon judges not to stray from the text of a constitutional provision or statute. To a strict textualist, the First Amendment, which states that “Congress shall make no law abridging the freedom of speech,” has no exceptions. An originalist, however, would point to laws from that period against libel, fraud, obscenity and more, and conclude that the original meaning of the Free Speech clause included such exceptions. A key recent example of an originalist opinion is NYS Rifle & Pistol Assn, Inc. v. Bruen.[2] Plaintiffs claimed that New York’s handgun licensing law violated the Second Amendment, which states that “a well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Years earlier, the Supreme Court ruled that the right to bear arms did not depend upon service in a militia, and that the term “arms” is not limited to arms in existence in the 18th century.[3] The sole issue in Bruen was whether the handgun licensing law infringed the right “to keep and bear arms.” In an opinion written by Justice Thomas, the majority approached the question as follows: it stated that the plain text of the Second Amendment protects the plaintiff’s right to possess arms, which would include a handgun. The Court dismissed as irrelevant New York’s argument, based on precedent, that it had a compelling interest in its gun licensing law and had narrowly tailored the law to address that interest. Rather, the Court held that New York must prove that in the era in which the Second Amendment was passed there were similar licensing laws. It regarded the original understanding of the clause as determinative. The Court then reviewed historical sources produced by the litigants and concluded that there was no analogous licensing law in the history of the colonies or the early Republic. As a result, the Court invalidated New York’s handgun licensing statute. The next day, the Court issued an opinion by Justice Alito that employed a similar originalist methodology, this time to strike down the constitutional right to abortion. In Dobbs v. Jackson Women's Health Organization,[4] the issue was whether a Mississippi law restricting abortion violated the 14th Amendment due process clause, a result seemingly compelled by the precedent Roe v. Wade[5] and its progeny. The Court again started with the text and found that the Constitution “makes no mention of abortion.”[6] It acknowledged that its prior decisions accepted the "theory" that the due process clause protects some unspecified substantive liberty interests, but only those "deeply rooted in [our] history and tradition.”[7] The Court then engaged in an examination of the historical evidence presented by the parties and concluded that abortion rights were not deeply rooted in American history and tradition, nor were they part of the mid-to-late 19th century understanding of the meaning of the due process clause. Accordingly, the Court found that abortion rights are not constitutionally protected. Of interest to bioethicists, the Court noted that its originalist analysis was similar to the analysis it had employed to uphold state laws against “assisted suicide.”[8] Since Bruen and Dobbs, the Court and lower courts have increasingly used originalism to rule on the constitutionality of other acts of Congress, agency regulations, or state statutes.[9] As one legal author put it, “Originalism is ascendent on the Supreme Court.”[10] Criticisms of Originalism When applied in good faith, originalism seeks to address the most fundamental challenge in judicial philosophy: how to interpret the law objectively, without regard to personal policy preferences or bias. In theory, originalism promises almost automated decision making: once a judge feeds the relevant clause and the historical record into the analysis, the ruling is inexorable and unassailable. Arguably, the approach avoids the subjectivity of competing judicial philosophies, primarily activism or “living constitutionalism,” that invite judges to interpret constitutional provisions in light of the social and political problems of the day. Put differently, originalism is designed to ensure that judges strictly apply the law and not act like legislators. However laudable its purpose, originalism is subject to a long list of formidable criticisms in principle and as practiced.[11] Criticisms of Originalism Theory Critics have questioned whether it is appropriate for courts to research and evaluate centuries-old historical records and, indeed, whether they are qualified to do so. One legal scholar and historian wrote that most historians regard the Court’s attempts to identify history and tradition “with detached disdain, puzzled wonderment, and even dismissive bemusement – as in: ‘Surely, they can't be serious.’”[12] There is also the question of whether it is desirable or even morally defensible to resolve today’s issues based on textual interpretations of the Framers and early legislative bodies, given their composition.[13] Invariably, they consisted exclusively of male, white, wealthy landowners, including slaveholders. Consider this comment by Osagie K. Obasogie: [T]he precise historical moments sought to serve as moral and interpretive reference points—a period of slavery, genocidal eradication of Native Americans, conquest and illegitimate land capture, patriarchy and deep gender bias, and other discriminatory attitudes—were so doggedly inequitable that it becomes hard to justify transporting eighteenth-century legal mores into the present as anything other than an attempt to maintain white male privilege."[14] To be sure, not all Framers shared the same morals or views. But the different perspectives among them further erode the argument for an originalist approach. It is doubtful that all the Framers understood key clauses the same way, so there may be no single original understanding of a clause.[15] An even more fundamental attack on originalism is that the original understanding of a clause was based on the circumstances of that day, not the circumstances of today. The historical record cannot reliably answer whether the Framers would have supported a right to bear arms if the arms included today’s high-powered weapons. Similarly, their views on extending free speech to unlimited corporate election spending are impossible to know. Nor did the Framers claim to be resolving future issues: as the Supreme Court observed, the Founders “knew they were writing a document designed to apply to ever-changing circumstances over centuries.”[16] Next, at least some originalist justices exhibit a striking disregard for stare decisis – the legal doctrine of respect for precedent.[17] Both Bruen and Dobbs gave scant regard to the longstanding and largely settled caselaw. In fact, it is fair to ask why longstanding precedents such as Roe v. Wade do not now demonstrate our history and tradition, entitling them to as