Tysharah Jones Gardner | 7 Regent J. Glob. Just. & Pub. Pol. 47 (2021)

Lynne Marie Kohm | 7 Regent J. Glob. Just. & Pub. Pol. 1 (2021)

Palmer E. Hurst^† & Christina A. Hurst^†† | 2 Regent J. Glob. Just. & Pub. Pol. 155 (2015)

Richard F. Duncan* | 1 Regent J. Glob. Just. & Pub. Pol. 137 (2015)

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INTRODUCTION

If, as Laurence Tribe has observed, “all law tells a story,”^[1] this Article tells two stories occurring forty years apart—the story of Justice Harry Blackmun and the unborn human beings he covered with the legal mask of “potential” lives in Roe v. Wade^[2] in 1973, and the story of Doctor Kermit Gosnell and the unmasked babies he was convicted of murdering in his Philadelphia abortion clinic in 2013.^[3] As Professor Tribe also observes, these stories amount to “a clash of absolutes, of life against liberty,”^[4] and therefore they are stories that must be told time and again, until we get them right. These stories also demonstrate how legal concepts can be used to mask reality, and how peeking beneath the masks of the law^[5] can blow away the fog of legal illusion and give society a starkly different perspective from which to view an old constitutional issue.

THE MASKS OF THE LAW

A. Legal Concepts That Conceal Persons

One of the great constitutional law scholars of the past fifty years, Judge John T. Noonan, Jr. of the Ninth Circuit, has observed that “[i]t is a propensity of professionals in the legal process to dehumanize by legal concepts those whom the law affects harshly.”^[6] He calls this process of dehumanization the “masks of the law.”^[7]

What Noonan means by the masks of the law is the law’s ability to use rules and legal concepts to conceal persons who are treated harshly by the law. He puts it this way: “By masks in this context I mean ways of classifying individual human beings so that their humanity is hidden and disavowed.”^[8]

Perhaps the best historical example of legal masks used to conceal human persons is the law’s treatment of the issue of slavery in the United States. Suppose the law wants to permit and even sanction slavery, as was the case in America before the Civil War. The mask that the legal system used to disavow the human dignity of slaves was the mask of “property.”^[9] The mask of “property” was what allowed champions of liberty, such as George Wythe and Thomas Jefferson, to own slaves and to accept the power of the law to treat slaves harshly.^[10]

For example, as a judge in the state of Virginia, George Wythe, a signer of the Declaration of Independence and its embrace of all men being created equal, was able to preside over the sale and inheritance of slaves.^[11] In one case, Wythe declared that “[t]he property of slaves, whatever be their number . . . may be transferred with as little judicial ceremony as a single quadruped or article of house or kitchen furniture.”^[12] As Noonan observes, when deciding cases involving slaves, Wythe “could not have compassion for each of them as a person and still be a judge. His role in a slave system necessitated the use of masks.”^[13]

As in the case of Wythe, so too in the case of other great Virginians, including Thomas Jefferson and John Marshall; economic and cultural pragmatism caused them to accept the institution of slavery and “the power of the law to convert persons into [property].”^[14] As Noonan observes, “[a]t the critical moments,” these great men employed “the masks of the law [to] cover [] the faces of the slaves.”^[15]

Noonan, quoting Montesquieu, explains even more clearly the need for the masks of the law in an age of slavery: “It is impossible that we should suppose those people to be men, because if we should suppose them to be men, we would begin to believe that we ourselves are not Christians.”^[16] Thus, the law’s masking of slaves served a dual function – it hid the humanity of slaves, so judges and the law could treat them like an animal or an inanimate chair, and it allowed the white ruling classes to think well of themselves by masking the tyranny of the legal system they had created.

Interestingly, the law only treated slaves as nonpersons when it served the interests of slave owners to do so. Remarkably, when slaves were charged with crimes, they were often held to be legal persons.^[17] For example, in United States v. Amy,^[18] a slave named Amy was treated both as “the property of Samuel W. Hairston” and as a “person” who could be held criminally responsible for stealing mail from a post office.^[19] Chief Justice Taney, sitting as a circuit justice, held that although “[i]t is true that a slave [was] the property of the master . . . and it [was] equally true that he is not a citizen,” nevertheless a slave was indeed a person when charged with a crime under the criminal laws.^[20] According to John M. Gregory, the federal prosecutor in the case, the evidence of Amy’s status as a person under federal criminal law was palpable: “I cannot prove more plainly,” argued Mr. Gregory, “that the prisoner is a person, a natural person, at least, than to ask your honors to look at her. There she is. She is beyond doubt a human being.”^[21] Thus, the law masked Amy as the property of her master for some purposes, and removed the mask and “look[ed] at her” when she was charged as a person who had unlawfully stolen mail from a post office.^[22] Such are the masks of the law. As we sometimes tell our students, the law often treats “X as Y for the purposes of Z.” But when X is a human being, and Y is a nonperson, great injustices may occur.

However, the jurisprudential magic of the masks of the law can be broken if we dare to look beneath the masks, even for the purposes of Z, and see the real persons who have been concealed underneath.^[23] For example, consider what happens when Batman’s mask slips, and everyone sees Bruce Wayne’s unmasked face. The secret identity is destroyed, and everyone now knows that Batman is Bruce Wayne. He is no longer the Dark Knight striking fear in the hearts of criminals, but instead merely a billionaire, playboy vigilante missing his mommy! There is no getting the toothpaste back in the tube once the “spell is broken” and the human face under the mask is revealed.^[24] In order to abolish slavery, you must dispel the magic of the masks of the law, and invite society to look into the eyes of the real persons concealed by the masks.^[25]

B. Literature and Popular Culture Peeking Beneath Legal Masks

“[T]he masks of the law” are a type of legal fiction, “magical ways by which persons are removed from the legal process.”^[26] As Noonan explains lucidly, “[a]t the points of a legal system where it is too much to recognize that a human being exists, a mask is employed. The intolerable strain is relieved.”^[27]

But great literature and even the popular culture often give us a peek behind the masks of the law and enable society to see the real persons concealed by legal fictions.^[28] For example, in Mark Twain’s The Adventures of Huckleberry Finn there is a passage concerning a steamboat explosion in which Aunt Sally asks Huck if anyone was injured.^[29] When Huck replies “No’m” and notes that only a slave had been killed, Aunt Polly responds: “Well, it’s lucky: because sometimes people do get hurt.”^[30] The reader, of course, is aware that Aunt Sally is looking at the mask of property, not the real human being who was killed in the explosion.

There is also a powerful example of slavery and the masks of the law in the recent Oscar-winning film, Twelve Years a Slave.^[31] It is the scene in which the cruel slave-owner, Master Epps, brutally whips Patsey, a female slave.^[32] He literally tears the flesh off her back with a bull whip for a minor act of disobedience.^[33] Solomon Northrup, who was kidnapped and sold into slavery, denounces Epps for his inhumanity: “Thoudevil!” says Solomon. “Sooner or later, somewhere in the course of eternal justice, thou shalt answer for this sin!” To which Epps replies with a mask: “Sin? There is no sin. A man does how he pleases with his property.”^[34] Of course, the modern viewer clearly recognizes that Epps is using a legal concept to mask his unjust treatment of a real human being.

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1. LAURENCE H. TRIBE, ABORTION THE CLASH OF ABSOLUTES 27 (1990). ︎
2. See Roe v. Wade, 410 U.S. 113 (1973). ︎
3. See Jon Hurdle & Trip Gabriel, Philadelphia Abortion Doctor Guilty of Murder in Late-Term Procedures, N.Y. TIMES , May 13, 2013, http://www.nytimes.com/2013/05/14/us/kermit-gosnell-abortion-doctor-found-guilty-of-murder.html?pagewanted=all&_r=0; See generally Report of the Grand Jury, In re Cnty. Investigating Grand Jury XXIII, Misc. NO. 0009901-2008, (Pa. Ct. Com. Pl. Jan. 14, 2011) [hereinafter cited as Grand Jury Report]. As the Grand Jury Report made clear, Gosnell’s standard late-term abortion technique was to induce premature birth of “live, viable, babies in the third trimester of pregnancy —and then murder[] these newborns by severing their spinal cords with scissors.” Id. at 1. ︎
4. TRIBE, supra note 1, at 3. Of course, the right to life is really the most fundamental means of protecting liberty, because without life there is no liberty. So it is probably more correct to describe this issue as concerning a clash between life and liberty on one side, and liberty and autonomy on the other. ︎
5. See generally JOHN T. NOONAN, JR., PERSONS AND MASKS OF THE LAW (1976). ︎
6. JOHN T. NOONAN, JR., A PRIVATE CHOICE 153 (1979). ︎
7. NOONAN, supra note 5, at 54. ︎
8. Id. at 19. ︎
9. Id. at 39–40. ︎
10. Id. at 29–64. ︎
11. Id. at 29. ︎
12. Id. at 56 (citing Fowler v. Saunders, 8 Va. (4 Call) 361 (1798)). ︎
13. Id. at 58. To his credit, after the death of his wife in 1787, Wythe “freed their slaves, a decision made easier by a lack of children expecting an inheritance.” ALAN TAYLOR, THE INTERNAL ENEMY: SLAVERY AND WAR IN VIRGINIA, 1772-1832 105 (2013). ︎
14. NOONAN, supra note 5, at 59–60. ︎
15. Id. at 60. ︎
16. Id. at 48. ︎
17. See Note, What We Talk About When We Talk About Persons: The Language of a Legal Fiction, 114 HARV. L. REV. 1745, 1748 (2001). ︎
18. 24 F. Cas. 792 (C.C.D. Va. 1896) (No. 14,445). ︎
19. Id. at 793. ︎
20. Id. at 809. ︎
21. Id. at 795; see also Note, supra note 17, at 1748–49. ︎
22. See generally United States v. Amy, 24 F. Cas. 792. ︎
23. See NOONAN, supra note 5, at 58–59. ︎
24. Id. ︎
25. See id. ︎
26. Id. at 25–26. ︎
27. Id. at 26. ︎
28. See generally MARK TWAIN, THE ADVENTURES OF HUCKLEBERRY FINN (The Floating Press 2008) (1884). ︎
29. Id. at 397; NOONAN, supra note 5, at 11. ︎
30. TWAIN, supra note 28, at 398. ︎
31. Twelve Years a Slave (20th Century Fox Home Entertainment 2013). ︎
32. Id. ︎
33. Id. ︎
34. Id.; 12 Years a Slave, IMDB, http://www.imdb.com/title/tt2024544/?ref_=nv_sr_1 (last visited Mar. 27, 2015). ︎

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* Sherman S. Welpton, Jr. Professor of Law, University of Nebraska College of Law. In writing this Article I stand on the shoulders of an intellectual giant of the law, Judge John T. Noonan of the Ninth Circuit. This Article is dedicated to him and to his enormous contribution to the legal profession.

Erica Harrigan | 1 Regent J. Glob. Just. & Pub. Pol. 59 (2014)

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INTRODUCTION

Let girls be born elsewhere, let boys take birth here. Son is wealth. Son is a blessing. The son will be the father’s strength in old age. The father will go to heaven if the son lights his funeral pyre. It is the son who will rescue the father from hell.^[1]

This Indian saying is indicative of a pervasive societal preference for sons. In India, the desire for sons is so strong that half a million girls per year are killed via sex selective abortion in the hopes that a future pregnancy will produce a son.^[2] Prenatal medical technology like the ultrasound is so widely available and cheap that even the poorest of Indian families can determine the sex of a fetus and decide if they want to allow it to live.^[3] This has resulted in an increasingly skewed sex ratio that has dangerous consequences for India’s future.^[4] Despite efforts to curb these statistics, the latest Indian census in 2011 revealed that the sex ratio of the number of girls born per 1000 boys had dropped yet again from past censuses.^[5] A natural sex ratio at birth is an average of 105 boys born for every 100 girls.^[6] In 1981, the ratio in India was 962 girls for every 1000 boys.^[7] In 1991, that dropped to 945 and in 2001, continued its descent to 927.^[8] In 2011, the ratio dropped to an all-time low of 914.^[9]

Traditionally, Indian culture has valued sons and systematically discriminated against girls.^[10] Infanticide of girl children has been documented for centuries, but the introduction of ultrasound technology in India opened a floodgate of prenatal sex determination followed by sex selective abortions.^[11] To combat the dropping ratio of girls, the Indian Parliament enacted the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act (PNDT) in 1994, which criminalized sex determination and sex selective abortion.^[12] Sadly, however, society and medical professionals alike generally ignored the PNDT Act.^[13]

In 2001, the Indian Supreme Court responded to a 1998 report regarding the lack of enforcement by issuing directives for more vigorous enforcement.^[14] Since those issuances, awareness and advocacy for the rights of the girl child have slightly increased, but as evidenced by the continuous drop in sex ratios, the current course of action is not effective.^[15] In order for there to be a significant drop in sex selective abortions and an evening out in the sex ratio, the medical community must take responsibility for its role in sex determination and abortion.^[16] The Indian Medical Association (IMA) and the Medical Council of India (MCI) must enforce the PNDT Act and the MCI’s Code of Medical Ethics, so that doctors who have direct control of these technologies are held responsible for their actions.^[17]

This Note discusses the historical discrimination against girl children in India, societal motivations for sex determination, and the effects of the introduction of prenatal medical technology as well as the projected consequences of sex selective abortion. This Note then discusses the current state of the law in India and the PNDT Act. Finally, this Note analyzes the role of the medical community in sex determination and sex selective abortion and emphasizes the necessity of enforcing the Code of Medical Ethics in a way that is self-regulating.

BACKGROUND

A. Historical Discrimination Against Girl Children

1. 1. Causes of Female Discrimination Against Girl Children

Dominant patriarchal family structures in Asia have traditionally placed great value on producing a male heir.^[18] “Property rights [are] passed down hereditarily from father to son.”^[19] The son not only “carr[ies] on the family name and caste,” but also “care[s] for his parents in their old age,” while a daughter is considered “part of her in-laws’ family” once she marries.^[20] Because a son receives the family inheritance, he is perceived as a critical source of stability and wealth and as such is a better “investment” than a daughter.^[21] In India, a son’s birth raises the social and economic standing of a family, while the birth of a daughter does not.

Not only are girls perceived as not bringing money into a family, but they are also perceived as taking money away from the family in the form of a dowry.^[22] An Indian proverb demonstrates the prevailing cultural bias against daughters: “Grooming a girl is like watering a neighbor’s garden.”^[23] When a daughter marries, she leaves her family and spends the rest of her life working for her in-laws’ family.^[24] In addition, the custom of dowry in India demands that the family of the bride pay the family of the groom.^[25] Though this custom has deep roots in Hindu law and historically was voluntary, the current practice is not voluntary and requires a significant amount of money and goods whether or not the bride’s family has the financial ability to pay.^[26] The demanded dowry can amount to up to five years’ income for some families because it is calculated to be proportionate to the groom’s potential earning capacity.^[27] Despite the Dowry Prohibition Act that was passed in 1961 outlawing dowry payments, the practice continues.^[28] If a groom’s family is not satisfied with the dowry payment, there can be serious repercussions for the bride, including abuse and even death.^[29] These deaths are often called “bride burning”^[30] in reference to the “accidental” kitchen fires that kill these young brides.^[31] Since 1947, when India became independent, 72,000 brides “between the ages of fifteen and twenty have been burned to death.”^[32] Dowry is only one example of a culture that devalues girls to the extent that it is seen as merciful to selectively abort or kill them to prevent them from experiencing bride burning or other discrimination.^[33]

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1. Discrimination Against Women: Millions of Girls Aborted in Recent Years in
   India, BUDDHIST BROADCASTING NETWORK (Oct. 16, 2013), http://www.bbncommunity.com/discrimination-women-millions-girls-aborted-recent-years-india/ (quoting Taslima Nasrin, “It’s a Girl!” “Kill Her”, FREETHOUGHTBLOGS.COM (Apr. 30, 2012), http://freethoughtblogs.com/taslima/2012/04/30/its-a-girl-kill-her/). ︎
2. Kristi Lemoine & John Tanagho, Note, Gender Discrimination Fuels Sex Selective Abortion: The Impact of the Indian Supreme Court on the Implementation and Enforcement of the PNDT Act, 15 U. MIAMI INT’L & COMP. L. REV . 203, 204–05 (2007). ︎
3. Id. at 205. ︎
4. Id. ︎
5. OFFICE OF THE REGISTRAR GEN. & CENSUS COMM ’R, INDIA, Final Population Totals, CENSUS INFO INDIA 2011, http://censusindia.gov.in/2011census/censusinfodashboard/index.html (last visited Oct. 22, 2014); see also Sex Ratio in Indian Population – 2011, MED INDIA,
   http://www.medindia.net/health_statistics/general/sex-ratio-in-india-2011.asp (last visited
   Oct. 22, 2014) [hereinafter Sex Ratio in Indian Population – 2011]. ︎
6. MARA HVISTENDAHL, UNNATURAL SELECTION: CHOOSING BOYS OVER GIRLS, AND THE CONSEQUENCES OF A WORLD FULL OF MEN xiii (2011). ︎
7. OFFICE OF THE REGISTRAR GEN. & CENSUS COMM’R, INDIA, Gender Composition, CENSUS OF INDIA, http://censusindia.gov.in/Census_And_You/gender_composition.aspx (last visited Oct. 22, 2014). ︎
8. Id. ︎
9. Sex Ratio in Indian Population – 2011, supra note 5. ︎
10. See Lemoine & Tanagho, supra note 2, at 218. ︎
11. See Vineet Chander, Note, “It’s (Still) a Boy . . . “: Making the Pre-Natal Diagnostic Techniques Act an Effective Weapon in India’s Struggle to Stamp Out Female Feticide, 36 GEO. WASH. INT’L L. REV. 453, 453, 457 (2004). ︎
12. Lemoine & Tanagho, supra note 2, at 206. ︎
13. Id. ︎
14. Id. ︎
15. Id. at 206–07; Sex Ratio in Indian Population – 2011, supra note 5. ︎
16. Chander, supra note 11, at 466. ︎
17. Id. ︎
18. Monica Sharma, Twenty-First Century Pink or Blue: How Sex Selection Technology Facilitates Gendercide and What We Can Do About It, 46 FAM. CT. REV. 198, 200 (2008). ︎
19. Chander, supra note 11, at 455. ︎
20. Id. ︎
21. Sharma, supra note 18, at 200–01. ︎
22. Sharma, supra note 18, at 200–01. ︎
23. Id. at 200. ︎
24. Alison Wood Manhoff, Note, Banned and Enforced: The Immediate Answer to a Problem Without an Immediate Solution—How India Can Prevent Another Generation of “Missing Girls,” 38 VAND. J. TRANSNAT’L. L. 889, 899 (2005). ︎
25. Id. at 900. ︎
26. Id. ︎
27. Andrea Krugman, Note, Being Female Can Be Fatal: An Examination of India’s Ban on Pre-Natal Gender Testing, 6 CARDOZO J. INT’L & COMP. L. 215, 224 (1998). ︎
28. Manhoff, supra note 25, at 901. ︎
29. Id. ︎
30. Krugman, supra note 28, at 224. ︎
31. Dowery Deaths and Bride Burnings, VDAY, http://www.vday.org/bride+death#.VAzmz2PCevk (last visited Oct. 30, 2014). ︎
32. Krugman, supra note 28, at 224. ︎
33. See Manhoff, supra note 25, at 905; see also Varsha Chitnis & Danaya Wright,
    The Legacy of Colonialism: Law and Women’s Rights in India, 64 WASH. & LEE L. REV.
    1315, 1339 (2007). ︎