Maybe this is a Moot Court case for someone. Maybe it’s a cautionary tale about politics and how law can be abused. In any event, it has been kicking around in my head for a few days, so I thought I’d spill it out into a post and see what happens.
The State of Dysphoria has an Antinatalist Party which, as part of its party platform, contains the following policy statement. “We hold that conceiving and bearing children does irreparable harm to those children and that childbearing ought to be discouraged by appropriate public policies. We accept that human extinction is inevitable and believe that it would be better for such an extinction to take place sooner rather than later.”
After many years of increasing popularity the Antinatalist Party enjoys a great electoral success in Dysphoria, winning both the governorship and solid majorities in both houses of the state legislature. The new legislative majority proceeds to enact a set of policies consistent with its platform. These include.
- Contraception of every useful kind, provided free to the users at professionally staffed clinics established throughout the state.
- Abortion is made fully legal and for early-term abortions made available without burden or delay, again free to women who want it, at clinics established throughout the state, and protected against violence by vigorous security measures and strict laws protecting the clinics, their patients, and their personnel.
- Surgical sterilization is made available, free to any patient who wants it, at state clinics. In addition to sterilization being free, individuals opting to undergo the procedure are provided with a generous credit on their state income tax.
- Physicians are required by law to advise women seeking obstetric or gynecological care (other than emergency care) with the aim of continuing a pregnancy to delivery to advise their patients of the ready availability of abortion, of the fact that early-term abortion is substantially safer than delivery of a live infant, and are furthermore required to show their patients a professionally-produced video vividly depicting various ugly potential consequences of pregnancy (breech births, pre-eclampsia, amniotic fluid embolisms, etc.) as well as various horrible things that happen to children (genetic diseases, premature death, mental illness, being horribly injured in war etc.). Along the lines of a certain Internet-famous pamphlet, they are advised that all these bad consequences can be avoided by opting to have an abortion.
All of these public policies cost money, of course, which the state legislature raises by imposing a special surtax on the existing income tax in Dysphoria. Predictably, there’s anguished complaint from the political minority in Dysphoria about how their being compelled (sometimes, for rhetorical emphasis, “forced at gunpoint”) to pay for “immoral” policies. The last policy in the list above also draws angry objections from some physicians, especially Catholic physicians.
While the Antinatalist Party is busy with its program in Dysphoria, the Pro-Life Party wins U.S. Presidency. The Pro-Life Party has a platform plank which reads “We hold that children are a blessing and that life itself is a blessing. It is a duty imposed by the Law of Nature and Nature’s God to do everything both to protect the right of all people to exercise their procreative capacities and to protect all human life from conception to natural death.”
Naturally the Pro-Life President and her Attorney General are under considerable pressure to do something about those Antinatalists in Dysphoria and their insolent rejection of the Law of Nature and Nature’s God. Sitting up late with his law books one night, the Attorney General finds the following interesting provision in the United States Code. He underlines what he takes to be the most relevant provisions.
(a)Basic Offense.—Whoever, whether in time of peace or in time of war and with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious group as such—
(1) kills members of that group;
(2) causes serious bodily injury to members of that group;
(3) causes the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques;
(4) subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part;
(5) imposes measures intended to prevent births within the group; or
(6) transfers by force children of the group to another group;
shall be punished as provided in subsection (b).
(b)Punishment for Basic Offense.—The punishment for an offense under subsection (a) is—
(1) in the case of an offense under subsection (a)
(1), where death results, by death or imprisonment for life and a fine of not more than $1,000,000, or both; and
(2) a fine of not more than $1,000,000 or imprisonment for not more than twenty years, or both, in any other case.
Whoever directly and publicly incites another to violate subsection (a) shall be fined not more than $500,000 or imprisoned not more than five years, or both.
(d)Attempt and Conspiracy.—
Any person who attempts or conspires to commit an offense under this section shall be punished in the same manner as a person who completes the offense.
(e)Jurisdiction.—There is jurisdiction over the offenses described in subsections (a), (c), and (d) if—
(1) the offense is committed in whole or in part within the United States; or
(2) regardless of where the offense is committed, the alleged offender is—
(A) a national of the United States (as that term is defined in section 101 of the Immigration and Nationality Act (8 U.S.C. 1101));
(B) an alien lawfully admitted for permanent residence in the United States (as that term is defined in section 101 of the Immigration and Nationality Act (8 U.S.C. 1101));
(C) a stateless person whose habitual residence is in the United States; or
(D) present in the United States.
(f)Nonapplicability of Certain Limitations.—
Notwithstanding section 3282, in the case of an offense under this section, an indictment may be found, or information instituted, at any time without limitation.
In order to forestall an obvious short-circuit: The Attorney General is willing to accept a slightly tendentious reading of 18 U.S.C. § 1093(2) where “ethnic group” is defined (“the term ‘ethnic group’ means a set of individuals whose identity as such is distinctive in terms of common cultural traditions or heritage;”) and argue that all of humanity has common cultural traditions and heritage and that it is therefore an “ethnic group” within the meaning of the statute.
Swarms of Federal agents are sent to the state of Dysphoria to arrest the governor, his entire cabinet, the whole Antinatalist caucuses of both houses of the state legislature, and several hundred Antinatalist Party members on the grounds that they have either committed genocide within the meaning of (a)(5) of Section 1091 by imposing measures intended to prevent births within a relevant group, or that they have incited the same or conspired to do so.
Do the Pro-Lifers have a legal case? A moral case?