Abortion, the death penalty, and the Supreme Court

The US Supreme Court ruled back in 1973 in Roe v. Wade that abortion is legal within certain limits and set in motion a prolonged campaign by opponents to overturn that ruling. What opponents have tried to do is rather than overturn that decision directly, to adopt a policy of trying to make it harder and harder for women to get one. This has taken the form of adding restrictions that make it difficult for clinics to operate, thus forcing many to shut down and forcing women to travel to distant locations.

They have also added waiting times, forced women to listen to anti-abortion messages that are meant to scare and depress them, undergo unwanted procedures, and subjected them to run the gauntlet of protestors as they go in and out of clinics. The goal seems to be to make getting an abortion difficult and emotionally draining, so that the only people for whom the right to an abortion is secure and easily accessible will be the wealthy, while the poor have to overcome all these hurdles.

The conservative members of the US Supreme Court seem to have had no difficulty with this strategy and have given their consent to many of these obstacles. But when it comes to the death penalty, the shoe is on the other foot and those same justices of the Supreme Court seem to be irked by this kind of guerilla strategy. This was visible in the hearings two weeks ago on the constitutionality of the methods used by some states to put prisoners to death.

The problem is that one of the three-drug cocktails that used to be used is no longer available because manufacturers both here and abroad have feared the negative publicity with being associated with providing a death-dealing drug and have bowed to public pressure and refused to allow that drug to be used to execute people. As a result states have tried other drugs with some terrible results and each of those alternative methods have been challenged under the US constitution’s Eighth Amendment that prohibits cruel and usual punishments.

Lyle Denniston describes the exchanges that the pro-death penalty justices had with lawyers during hearings on the challenge to the latest method.

What appears to be a clear majority of the Court has grown frustrated with the repeated constitutional assaults on the death penalty, especially since that penalty is still constitutionally permitted. That frustration almost boiled over as the Court heard the case of Glossip v. Gross.

“Let’s be honest about what’s going on here,” Alito began. He mentioned how controversial the death penalty is, and said its opponents would be free to continue to try to get it abolished. But, he said, until that happens, “is it appropriate for the judiciary to countenance what amounts to a guerilla war against the death penalty which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain?”

He went on: “And so the states are reduced to using drugs like this one [midazalom] which give rise to disputes about whether, in fact, every possibility of pain is eliminated.”

After Konrad replied that it was the duty of the courts to decide whether a method of execution was constitutional, Justice Antonin Scalia took up Alito’s point. The states, Scalia said, have tried other drugs, and those have been made unavailable “by the abolitionists putting pressure on the companies that manufacture them so that the states cannot obtain those other drugs.”

Konrad was being battered by the Justices’ underlying discontent with the way the fight against capital punishment has moved from outright attempts at abolition to a seeming campaign to put it out of reach, one execution method at a time.

So in the view of these justices, waging a “guerilla war” against the right to an abortion is just fine but doing so against the death penalty is not.

Some states are now considering bringing back older methods of execution such as hanging, electrocution, and Utah has even resurrected firing squads.

The problem facing death penalty advocates is that reporters and other witnesses are present at executions and all these alternative methods result in visibly violent deaths unlike those obtained by lethal injections that give the illusion of dying in one’s sleep and that this is a humane method of killing people.

Why we don’t abandon the barbaric practice of executing people is something I will never understand.


  1. deepak shetty says

    Why we don’t abandon the barbaric practice of executing people is something I will never understand.
    Putting on my Sam Harris hat.
    Suppose we have a serial killer who has murdered a gazillion people and we have video, eye witness , DNA evidence , and this person has been tried and fairly convicted in court, and suppose this person is like a Batman villain who can escape from any form of imprisonment that we could ever devise and suppose he carries a ticking nuclear bomb in his pocket -- wouldn’t it be more moral to execute this person?

  2. Peter the Mediocre says

    I am opposed to capital punishment because I don’t think the death penalty works as a deterrent. If it did work, deterrence would be the only argument in its favor that makes any real sense, given the alternative of life incarceration without any chance of release. The horror of some people at the thought of a visibly abrupt and somewhat violent (but only very briefly painful) death, and their apparent equanimity at seeing a person paralyzed and then poisoned with no assurance that the prisoner is actually unconscious, seems to me to be completely wrong. Essentially a small number of people who think “that’s yucky but this doesn’t bother me” are pushing the discussion in a direction that avoids the important point (should we kill people who have been convicted of egregious crimes) to a side issue (how can we kill people without making any reporters throw up). That’s really wrong.

  3. Mano Singham says

    deepak shetty.

    You have captured the Harris style of argumentation perfectly!

  4. jd142 says

    And for a serious response to the Harris argument (yes, hilariously spot on) I give you the Norwegians. http://www.theguardian.com/society/2013/feb/25/norwegian-prison-inmates-treated-like-people or http://content.time.com/time/magazine/article/0,9171,1986002,00.html. Even Anders Behring Breivik, as close as I’d want to come to a Batman villain, was technically only sentenced to 21 years in jail, which is the maximum in Norway. There’s a don’t-get-out-of-jail-free card though; release is conditional on his no longer being a threat to society. He’s never getting out.

    There is absolutely no doubt that he killed those 77 kids/young adults, but the Norwegians apparently think people can be improved and rehabilitated if you just try to treat them like human beings instead of like numbers on a balance sheet. Crazy vikings. 🙂

  5. Peter B says

    I say the following without taking a stand on the appropriateness of the death penalty.

    It is simple to execute people quietly and painlessly. Use an anaesthetic gas. But unlike its use in surgery use enough to kill. Do in a well-ventilated room and guards can be in the same room. Possibly shift the anaesthetic diluent from air to nitrogen after the prisoner is well beyond the point of reacting to the lack of oxygen.

    Use a common surgical anaesthetic gas to avoid supply issues.

    The above should shift the anti death penalty arguments away from the method of execution. Their arguments should focus on the state taking a life rather that a fixable side issue.

  6. Mano Singham says

    Peter B,

    I had wondered about the method you suggest and there must be some reason why it is not used.

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