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Jewish World Review March 20, 2012/ 26 Adar, 5772 High Court conceives of life after death By Dana Milbank http://www.JewishWorldReview.com | Next week, the Supreme Court will begin deciding whether President Obama’s health-care reforms live or die. But if you think that’s ambitious, consider what the modest justices were debating on Monday: what Americans are allowed to do AFTER they die. Specifically, the question before the court was whether a dead man can help conceive children. This odd point of law came before the court after a woman, Karen Capato, gave birth to twins 18 months after her husband died of cancer. She had used sperm he deposited when he was alive, and she was seeking his Social Security survivor benefits for the kids. The Constitution is silent on the question of posthumous conception, in large part because people back then did not sire children after death. In addition, the relevant Social Security law, written in 1939, does not get into questions of whether a surviving “child” includes one who was fertilized in vitro. In other words, the justices pretty much had to wing it. The transcript of Monday morning’s oral argument included, in alphabetical order, the words “illegitimate,” “insemination,” “marital,” “offspring,” “reproduced,” “reproduction,” “reproductive,” “sperm,” “unmarried,” “wedlock,” “wife” and “wives.” And that’s not even getting into Justice Sonya Sotomayor’s description of “biological input” into the procreative process. Clearly, the justices were on another of their field trips from their judicial chambers to Americans’ bedchambers. “Let’s assume Ms. Capato remarried but used her deceased husband’s sperm to birth two children . . . ” Sotomayor posited. “Would they qualify for survivor benefits even though she is now remarried?” “What happens if the decedent is the mother?” Sotomayor also wanted to know, adding: “Does marriage matter only if it’s the father?” The justice was not done forming new conception concepts. “What if you are a sperm donor? Does any offspring that sperm donor have qualify?” “What if,” Chief Justice John Roberts posed, “the Capato twins were conceived four years after the death in this case? Would your argument be the same?” And Justice Ruth Bader Ginsburg asked whether people in 1939 would have “understood that the marriage ends when a parent dies.” The lawyers dutifully chased each scenario. “Today there are many cases in which biological parentage is not determinative of legal parentage,” argued administration lawyer Eric Miller, defending the Social Security Administration’s decision not to pay benefits. The argument was at once picayune (not many babies are conceived with a dead parent’s seed) and profound (the justices have to resolve the definition of what a child is), and the case raised questions of federal vs. state powers. But mostly the case shows the struggle of an 18th-century legal system to keep up with 21st-century technology. As Justice Samuel Alito noted, “They never had any inkling about the situation that has arisen in this case” when members of Congress wrote the legislation. The phenomenon is happening more often, and with more consequence — notably in the area of abortion, where legal standards have been outpaced by technologies such as the morning-after pill and the ability to make younger fetuses viable. On the matter of posthumous conception, at least, justices on both the right and the left seemed disinclined to guess about what long-dead lawmakers would have thought about not-yet-invented technologies. Charles Rothfeld, arguing for Capato, said lawmakers drafting Social Security in the 1930s meant to include only children of married parents in their definition of a child, because that was “the paradigm of a child at that time.” Justice Antonin Scalia wasn’t buying that. “When Congress says child, child means child, and the mere fact that Congress wrote that at an age when most children were indeed children of married people doesn’t change the word child,” he argued. Justice Stephen Breyer raised a more practical objection. “There are already children who are eating up all of the money” in the survivor-benefit program, he said. “And then some new person shows up and you have to take the money away from the other children in order to give it to this new child. And all the time, you don’t know if that’s what the parent who was dead really wanted.” Ultimately, Roberts said, the widowed mother loses the case if the law in question is ambiguous. “Is there any reason we shouldn’t conclude based on the last hour that it’s at least ambiguous?” “It’s a mess!” Justice Elena Kagan answered. “I think the problem is that we’re dealing with new technologies that Congress . . . wasn’t anticipating at the time,” Rothfeld allowed. “Congress would not have specifically had in mind, contemplated, the question of posthumous conception.” Every weekday JewishWorldReview.com publishes what many in Washington and in the media consider "must reading." 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Previously: • 03/15/12 Conservative for Obama: The British PM as campaign prop • 03/14/12 In Section 60, a silent search for meaning • 03/13/12 Super Friends, unite • 03/12/12 It's time to believe: Romney's a winner • 03/07/12 Settling in to Washington's ways • 03/06/12 AIPAC beats the drums of war • 03/05/12 Did Republicans forget the women's vote? • 02/29/12 Mitt Romney's acceptance speech, in (mostly) his own words • 02/28/12 Common ground becomes a great divide • 02/27/12 An expert witness for the GOP gender gap • 02/21/12 Where Romney shines • 02/15/12 A Republican death wish? • 02/14/12Obama's budget games • 02/13/12 Are GOPers playing right into Obama's hands? • 02/08/12 Obama pumps the compressor of Joe Hudy's Extreme Marshmallow Cannon • 02/07/12 Abramoff's atonement • 02/01/12 Why we in the media just love Newt • 01/31/12 The end of the road for Newt Gingrich? • 01/25/12 Gingrich is Obama's best surrogate • 01/24/12 Tim Pawlenty, Mitt Romney's attack dog • 01/16/12 Mitt Romney's Al Gore problem • 01/12/12 Kamikaze Gingrich, on the loose in South Carolina • 01/11/12 Journalists' campaign trail secrets revealed • 01/10/12 Mitt Romney's money problem • 01/09/12 Newtonian exceptionalism • 01/05/12 Mitt Romney out of control • 01/04/12 Indecision 2012: In Iowa and the GOP • 01/03/12 Rick Santorum's curious closing argument • 12/28/11 A few cracks in my crystal ball • 12/23/11 A few cracks in my crystal ball • 12/20/11 Strange brews and views? • 12/19/11 Cellphone ban would be a distraction • 12/15/11 Harry Reid, Mitch McConnell and the Malfunction Minuet • 12/14/11 The presidential auction of 2012 • 12/12/11 Newt's tactics comes back to haunt him • 12/06/11 Can an anthem save Occupy non-movement? • 12/05/11 The winner of the GOP campaign: Washington • 11/30/11 Barney the bully: Congressman Frank's other legacy • 11/23/11 Jon Kyl's search-and-destroy mission • 11/21/11 Pay to play, brought to you by Washington • 11/17/11 Big enough to save the supercommittee? • 11/16/11 Why Newt Gingrich won't last • 11/08/11 The 2012 campaign gets seedier • 11/06/11 A Machiavellian model for Obama • 11/03/11 The Herman Cain crack-up • 11/01/11 Cain can --- he will survive • 10/27/11 Stuntmen of the supercommittee • 10/26/11 Democrats on the sidelines • 10/24/11 Rick Perry's birther Parade • 10/24/11 The birthers eat their own • 10/19/11 The GOP's middle man • 10/17/11 The waiting for nothing Congress • 10/12/11 Sparsely occupied D.C.: Why the movement hasn't caught on • 10/10/11 Can Obama strike an alliance with Occupy Wall Street? • 10/06/11 Chris Christie, such a presidential tease • 10/05/11 Obama and his foot soldiers go toe to toe • 09/28/11 Cain could deliver • 09/26/11 Republicans? Mr. Nice Guys? • 09/22/11 Why Ron Paul is winning the GOP primary • 09/21/11 I am a job creator who creates no jobs • 09/20/11 Obama launches a revolution • 09/19/11 Dems for Romney? • 09/14/11 ‘Supercommittee’? More than stupor committee • 09/07/11 Mitt Romney finds his (corporate) voice • 09/01/11 The infallible Dick Cheney • 08/31/11 This liberal says Perry is the ultimate conservative candidate • 08/29/11 Wanted: More bite from Obama the Great Nibbler • 08/10/11 How Rep. Austin Scott betrayed his Tea Party roots • 08/09/11 The most powerful man on Earth? • 08/08/11 The FAA shutdown and the new rules of Washington • 08/04/11 Lt. Col. Allen West fires a round at the Tea Party • 08/03/11 Government on autopilot • 08/02/11 Dems mourn debt deal like death • 07/27/11 Life imitates sport • 07/26/11 Obama and Boehner take on Washington • 07/21/11 Why Americans are angry at Congress • 07/20/11 The new party of Reagan • 07/18/11 Rob Portman, the boring Midwesterner who could bring sanity to the debt debate • 07/13/11 John Boehner's bind • 07/04/11 Stephen Colbert, Karl Rove and the mockery of campaign finance • 07/01/11 President Puts Up His Dukes, As He Ought To • 06/28/11 Rod Blagojevich verdict: All shook up • 06/27/11 Progressives voice their anger at Obama • 06/24/11 ‘Mission accomplished,’ Obama style • 06/22/11 Jon Huntsman's first step toward oblivion • 06/21/11 Scott Walker finds making bumper stickers is easier than creating jobs • 06/20/11 A day of awkwardness with Mitt Romney • 06/06/11 Hubris and humility: Sarah Palin and Robert Gates on tour • 06/02/11 The Weiner roast • 06/01/11 Congress clocks in to clock out • 05/30/11 Hermanator II: No More Mr. Gadfly • 05/24/11 How Obama has empowered Netanyahu • 05/24/11 Pawlenty bends his truth-telling • 05/20/11 Default deniers say it's all a hoax • 05/18/11: Gingrich gives voice to moderation • 05/17/11: Donald Trump and the House of Horrors • 05/16/11: The medical mystery of Mitt Romney • 05/12/11: The body impolitic: Schock photos should tempt lawmakers to cover up • 05/10/11: Muskets in hand, tea party blasts House Republicans • 05/09/11: The GOP debate: America -- and the party -- needs the grown-ups • 05/05/11: Mitch Daniels, an alternative to scary • 05/03/11: Obama's victory lap • 05/02/11: How the journalist prom got out of control • 04/28/11: Obama's birther day: Why did he lower himself by appearing in the briefing room? • 04/27/11: Obama, lost in thought • 04/24/11: Andrew Breitbart and the rifts on the right • 04/22/11: Ten Commandments for 2012 • 04/21/11: Obama likes Facebook. Facebook likes Obama. • 04/18/11: Without Nancy Pelosi, Obama is adrift • 04/15/11: If progressives ran the world • 04/14/11: Faith in political apostasy • 04/13/11: One man's revolution is another's political expediency • 04/11/11: Shutdown theatrics • 04/06/11: Paul Ryan's irresponsible budget • 04/05/11: Robots in Congress? Yes, we replicant! • 04/04/11: Robert Gibbs, Facebook and the White House corporate placement service • 04/01/11: Haley Barbour, the fat cats' candidate • 03/31/11: Republican freshmen in House shut down compromise, and possibly the government • 03/30/11: Coburn and Durbin, the dynamic duo of the debt crisis • 03/28/11: The Obama doctrine: A gray area the size of Libya • 03/24/11: Dems as Weiners • 03/23/11: Obama's quick trip from tyrant to weakling • 03/17/11: Who's afraid of Elizabeth Warren? • 03/15/11: The underwear flap over Bradley Manning • 03/10/11: In Senate's debt debate, talk isn't cheap • 03/09/11: With Obama's new Gitmo policy, Administration officials had some 'splainin to do • 03/02/11: Issa press aide scandal is like bad reality TV • 02/25/11: Jay Carney: Mouthpiece for an inscrutable White House • 02/14/11: The Donald trumps the pols at CPAC • 02/09/11: Arianna Huffington's ideological transformation © 2011, Washington Post Writers Group