3/9: Thanks for participating! Hopefully Roe will be overturned and abortion will be a state issue once again. I believe abortion is murder, but the first step to severely limiting it is allowing states, not the Supreme Court, to legislate it.
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Now this is worth blogging about.
Governor Mike Rounds is directly challenging the judge-made law known as Roe v. Wade by banning all abortions in South Dakota.
In case you were asleep during Social Studies classes, the Supreme Court, part of the judiciary branch, is to interpret statutes, not write them. The abortion “law of the land” is unconstitutional. The court managed to find a strange, never before seen doctrine in the Constitution called “right of privacy,” which, as it turns out, gives women a right of privacy to kill their babies in utero. It was sitting there for 200 years waiting to be discovered by enlightened 20th century sages.
No more ranting and raving from me, if I can help it. I’m holding you to a higher standard, too. Put on your thinking caps:
1) For “pro-choice” readers, your assignment is to demonstrate how the Supreme Court will respond to Governor Rounds’s challenge of Roe based on the decision itself and the Constitution. You’re not allowed to resort to emotional rants about “right wingers” or “theocracy” or use anecdotes about a friend who was raped to argue your case. You may mention rape in your answer.
2) For pro-life readers, based on Roe and the Constitution, lay out your argument supporting the ban on abortion and how you might defend it before the Supreme Court.
Materials: Roe v. Wade and the Constitution
You don’t have to be a lawyer to answer these questions. It may surprise you to know that “regular people” should be able to articulate their opinions on these issues. The goal is to stimulate a discussion about laws challenging Roe.
Bloggers: Wizbang, Captain Ed, Independent Conservative…
Sites: Jurist…
Update: Download a PDF copy of HB 1215, the bill Governor Rounds signed into law. The statute reads pretty much like former state laws outlawing child killing.
Update II (3/8): Well, the discussion hasn’t gone quite the way I’d hoped, but at least it’s civil. Some grasp the concept better than others.
It’s very difficult to refrain from jumping into the comment section, but I must. I don’t have the time or patience to respond to individual entries. Keep it civil, make arguments, and support them as best you can, people. That’s the point of this exercise.
A note of clarification: While individuals have the right to be “left alone,” they most certainly do not have an absolute “right of privacy” to do whatever they want with their bodies. A few people have implied or written that the right of privacy as defined in Roe has always existed. That is and will always be nonsense. Our rights are not absolute nor should they be. When the exercise of our rights impinge on others, the action is no longer considered a right. See Bogus Rights.
Another blogger tries to wade through this mess.
Update III: For my comments on rape and incest, see Part II of the March for Life series.
The position to be taken by the Attorney General for South Dakota would have to be that States Interest in protecting its unborn Citizens outweighs the mother’s non-specific ‘right to privacy’: in essence to argue that Roe v Wade was incorrectly decided. — Tough sell, but it in order to overturn Roe, that’s what they’ll have to convince the Court, that Roe v. Wade was ‘a bad call’.
Additionally, They would need to argue that regulating medical practice is a state issue, and not a federal issue, and under the divided sovereignty of a federal system, it is the State Supreme Court, and not the Federal Supreme court that should be the final court of appeal on this law.
Comment by Bo Register — 03.07.06 @ 9:00 am
Oh wow. I don’t know how accurate my legalese will be this early in the morning. I do think it’s important to remember that before Roe, abortion was legal, to various degrees, depending upon the laws of the state you lived in. In NY, for example, the laws were extremely liberal, where as in TX (where Roe began) the law stated that abortion was only an option when medical experts verified that the life of the mother was in danger.
Linda Coffee and Sarah Weddington argued that if a woman wanted to kill her child, she shouldn’t have to stand in front of a panel of medical experts to do so.
The court decided that though the constitution never mentions a “right to privacy” exactly, surely the founding fathers meant to put it in there. Seeing as how they had written rights to all this other stuff. (perhaps they just forgot.)
They also decided that the word “person” does not apply to someone who has not passed through the birth canal yet. (there by creating the idea that a someone’s person-hood can be defined by their geography.)
Roe also had all sorts of thoughts about “viability” and so forth. They decided that, because, at that time, a child couldn’t survive outside of it’s mother before a certain stage, that the child should be allowed to be killed if the mother saw fit to do so. Of course, medical technology being what it is, “viability” is being defined earlier and earlier in the pregnancy. (correct me if I’m wrong, but I believe the earliest a child has been born and survived was at 18 weeks gestation. During the time of Roe, that age was around 24 weeks.)
These days, of course, even abortionists will admit that life begins at conception. However, in their mind, “that tiny little life” is not worth saving if the mother decides “she needs” the abortion.
Doe vs Bolton later expanded on these definitions of person-hood and gave us ladies the right to kill a child all the way up until birth. The so called “right to privacy” apparently means that even if a child’s last little toe is still inside the mother’s body, the baby is not legally a “person” and can therefore be killed. But as soon as the baby is fully removed (there’s that geography thing again) than the baby is (supposedly) entitled to all rights and privileges of a full fledged adult.
yea for infanticide.
Comment by Jewels — 03.07.06 @ 9:23 am
S.D. Governor Signs Abortion Ban Into Law
Gov. Mike Rounds signed legislation Monday banning nearly all abortions in South Dakota, setting up
Trackback by Unpartisan.com Political News and Blog Aggregator — 03.07.06 @ 9:31 am
La Shawn asked an interesting question this morning. If you were arguing for (or against) the ban on abortion, what arguments would you put forth to defend your case?
Pingback by ~Jewels~of~the~Jungle~ — 03.07.06 @ 9:32 am
Without demagoguery or rhetoric, it seems quite simple to me. Once an entity…I’m trying to find the middle ground by not calling it a baby OR a ZEF…once an entity has its own heartbeat, it should receive the same protections and rights as any other citizen. I have to stop now, before the emotions take over the keyboard. Thank you, La Shawn, for posting this subject.
Comment by Doug — 03.07.06 @ 10:20 am
South Dakota Official Bans Baby Killing!
Oh happy day! The US Supreme Court is going to have to once again face the issue it typically wants to run from. Ever since Roe v. Wade, baby killing in America has cost this nation over 47,282,293 lives.
So why fight this fight? Because we know a…
Trackback by Independent Conservative — 03.07.06 @ 11:32 am
La Shawn,
It’s written in the 28th Amendment that women have the right to an abortion.. you have to be an enlightened, compassionate liberal to be able to read it because it’s invisible.
Comment by Louisiana Conservative — 03.07.06 @ 11:47 am
Alot has changed in the years since the Roe v Wade decision, for example the Federal Unborn Victims of Violence Act, also called the Laci and Conner Peterson law, recognizing that a double murder was committed.
Comment by Tom Bosee — 03.07.06 @ 11:50 am
I think it all turns on what the 9th amendment means. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
This is where the right of privacy, which led to Griswold and the Roe decision, came from. (It also is supported by some of the other amendments.)
Comment by ech — 03.07.06 @ 12:03 pm
From a pro-choice reader:
The Supreme Court will uphold Roe, and here’s why.
It has little to do with one’s views about abortion, or even the legal arguments about abortion. But it has everything to do with the sanctity of the Court itself.
You see, the Roe holding has been revisited by the Supreme Court many many times since 1973. In the eighties, the Court had a direct opportunity to overturn Roe, and it did not.
So ask yourself, what has changed about the abortion debate? What legal arguments are different now than they were a decade ago, or two decades ago, or 33 years ago?
Answer: none. The only thing that has changed are the people on the bench. In fact, that’s obviously the only reason that South Dakota did what it did.
So, should the law change merely because the justices on the bench change? While people can disagree about that, I am certain that the justices themselves would answer with a resounding “no”. ALL of them (including Alito and Roberts) talked with great reverance about precendent and stare decisis. And I think they all mean it. The law is not supposed to changes with the winds of political movement — it is supposed to be static and reliable.
I acknowledge that, historically, the Court has reversed itself. But it only has done so on rare occasion and when faced with new legal arguments and facts. For example, the “separate but equal” standard of Plessy v. Ferguson was shown, after 70 years or so, to be an unobtainable standard, and that’s how we got desegregation under Brown v. Board of Education.
But what argument can be made against abortion that wasn’t made (and lost) 33 years ago? The “right to privacy” arguments (both for and against) are exactly the same. Everything is the same, except the make-up of the court. “The court is different” may be a political reason to challenge Roe now, but it’s not a legal reason. And the Court will need a legal reason — a big one — in order to overturn precedent.
Comment by Kman — 03.07.06 @ 1:04 pm
There is something very disturbing about a bunch of lawmakers who swear to uphold the Constitution passing a law that is purposefully and directly hostile to an accepted Constitutional right. The assault on the Judiciary continues by those who whould turn back the clock to times past with regard to rights of human beings to privacy and physical autonomy. These people have no respect for what the law is, nor any respect for the Supremacy Clause, for Marbury v. Madison, for the very foundations of our Constitutional System.
And then there is the establishment clause. What these people are doing are imposing their religious morals on others. This is the tyranny of the majority that the Founding Fathers feared and for which they set up the Bill of Rights and our system of checks and balances, especially with regard to the Judiciary being the protector of the Constitution in the face of bigotry by the majority against minorities.
When life begins is a semantic, definitional issue, pure and simple. Jews believe life starts at birth. So these people are esentially telling Jews or any other religion that differs about the begining of an individual’s their beliuefs are wrong.
I think Aristotle and many other philosophers would argue that “life,” or at least what it means to be “human” and to be the sort of entity that has rights, starts when the human develops the potentials and functionality that define the species. Memory, reason, language. And to a certain extent this is how the law already treats children - minors do not have the full rights (and responsibilities) under the law that adults do. So it makes sense that a fetus, even if it was considered a “person” under the law, should have limited constitutional rights and whatever they are should be considered on a sliding scale keeping in mind the sort of lack of rights infants through 17 years olds are not afforded under the constitution.
And thus even if you were to impose your religiously inspired definition of life on others such that a fetus was to be considered a person under the law with constitutional rights, those rights should be so minimal as to pale in comparison to the constituional rights of the adult woman who is preganant with respect to her privacy and other substantive due process rights. It is nothing short of treason to so blazenly spit in the face of our system of government. Everyone who voted for the bill should be impeached for breaching their oath of office.
Comment by lazerlou — 03.07.06 @ 1:15 pm
By the way, the “right to privacy” isn’t, as La Shawn implies, a 20th century discovery. It was recognized by the Supreme Court as early as 1891 (the Roe opinion points this fact out), but its roots pre-date the Constitution itself.
The “right of privacy” in all its aspects gives us the right to marry who we want, have as many children as we want, homeschool them, and many other things that we take for granted in the context of family relationships. Perhaps the “right of privacy” is so fundamental to the notions of liberty that many are simply unable to see it. But the Framers surely did, because privacy is the theme of the Third, Fourth, and Fifth Amendments.
Comment by Kman — 03.07.06 @ 1:30 pm
>>…should the law change merely because the justices on the bench change?>>
No, but it does. That’s how the law came into effect in the first place…apparently the daughter of one of the Justices had some personal problem that involved abortion, if I understand it correctly. He should have recused himself.
>>Alot has changed in the years since the Roe v Wade decision, for example the Federal Unborn Victims of Violence Act, also called the Laci and Conner Peterson law, recognizing that a double murder was committed.>>
I wonder if Peterson’s case will end up in the SC for this reason…it hardly seems rational that a person can be condemned to death for an action that another can take with no legal consequences whatsoever. Doesn’t that seem like the soul of inequity? One or the other - federal permission to kill an unborn fetus in abortion or definition of an unborn fetus as a person in defining a murder _has_ to go. If the only difference in whether a fetus is a person or not a person depends on whether that fetus is wanted or unwanted, then we’re in trouble.
Comment by suek — 03.07.06 @ 1:31 pm
The only “legal” reasoning I can think of to change Roe would be advances in science.
In other words, the medical fields ability to:
1) make an embryo viable (able to develop outside the womb).
2) provide convincing evidence of “when” the embryo becomes “self-aware”, in other words, a being (not just a bundle of cells).
This would provide the legal reasoning (that is already in Roe v. Wade: “For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life [410 U.S. 113, 165] may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”)
Roe itself shows how to defeat abortion. Advance medical science to the point that a fetus can be “viable” outside the womb at earlier stages, then the State has a compelling reason to regulate.
Unfortunately, this means advances in science/medical science are needed (which it seems that most conservatives oppose due to the ways in which those advances are achieved).
Comment by go1 — 03.07.06 @ 1:43 pm
Kman
The ability to home school your children does not come from any Federal right to privacy.
It comes from a LACK of ANYTHING in the constitution defining education. It’s just not there. Which means the State makes the rules.
Comment by Frank Zavisca — 03.07.06 @ 1:58 pm
go1 writes:
“The only “legal†reasoning I can think of to change Roe would be advances in science.”
Excellent point.
With that in mind, I think it IS possible that the Court might move the “third trimester” line on the grounds that it is now a medical possibility for some second trimester fetuses to be viable, and therefore the state has a compelling interest in protecting them as well.
[Just so everyone’s on the same page, the Roe court held that states could regulate/ban abortions committed in the third trimester, and since then, most of them have done so to some degree]
But since most abortions take place in the first trimester anyway, I don’t think such a decision would alter the landscape very much, and will not be satisfying to the pro-life/anti-choice side.
Comment by Kman — 03.07.06 @ 1:59 pm
“…that the life of a human being begins when the ovum is fertilized by male sperm”
The South Dakota law language here could outlaw IUDs as well since they work by preventing a fertilized egg from implanting.
I’m so tired of hearing my ‘Christian’ mom friends sing the praises of this method of birth control.
I guess that’s a rant for another day.
Comment by Dea Biberdorf — 03.07.06 @ 2:01 pm
Hi LaShawn, this challenge sounds fun. If I had to guess, I’d say that the Supreme Court will find the SD law unconstitutional because it violates the guarantee of substantive due process. The lack of rape protection will probably not be a factor, as I think an exception in the case of rape would make it harder to guarantee due process, not easier.
(By the way, the 14th Amendment, which extends due process to the states, was written 100 years after the Bill of Rights, not 200. And if you think that this length of time means that all Constitutional issues should have been resolved by now, why not abolish the Supreme Court?)
Comment by neil — 03.07.06 @ 2:02 pm
I think a good legal argument against this ban is its own hypocrisy. Its intent is to ban abortion because once a sperm and an egg unite they become an entity, a person.
However, the ban only makes having an abortion a Class 5 felony…somewhere along the lines of possessing half a pound of pot. If the law’s purpose really is to put an end to killing “persons,” then it is inconsistent with standing laws making murder a higher class felony. Without stricter enforcement, then the law doesn’t make sense.
That, plus the whole fact that Roe has been repeatedly upheld. If “law” is indeed somethign above and beyond the Justices of the Supreme Court…if they are merely interpreters, not writers, then they must stick with the long standing precedent.
Also, there is no exception in the case of rape or incest which places an undue burden on a woman who is already a victim.
Thousands die every day from car accidents. Driving a car is a purely elective action. One could walk, or ride a bike, etc. People just like to drive cars because it makes their lives “convenient,” yet that convenience is one of the leading killers in America. Where is the outrage?
Comment by ervington — 03.07.06 @ 2:03 pm
Frank Zavisca:
The ability to home school your children does not come from any Federal right to privacy.
It comes from a LACK of ANYTHING in the constitution defining education. It’s just not there.
Sorry, but the Constitution does protect your right to homeschool, and this case, Pierce v. Society of Sisters (1925) is the case that says so.
The Pierce case, by the way, is one of the many cases cited in the Roe decision, demonstrating that there is a right to privacy with respect to “child-rearing and education”.
Comment by Kman — 03.07.06 @ 2:08 pm
S.D. Governor Signs Abortion Ban Into Law
Oh the times they are a changing.
Thank God we now have a Conservative tilt on the SCOTUS, I am afraid this will become a hotly contested *states rights* issue before it is over, but I think we are seeing the death throes of Roe ~v~ Wade.
Trackback by And THAT is MY Opinion — 03.07.06 @ 2:08 pm
A Direct Assault On Judicial Activism
South Dakota apparently set off a trend in state legislatures with its comprehensive abortion ban, signed into law yesterday by Governor Mike Rounds. Since Roe, no legislature has dared to so openly flout the Supreme Court’s dictate on abortion rights…
Trackback by Captain's Quarters — 03.07.06 @ 2:13 pm
The law passed by the South Dakota legislature to ban abortions in all cases except for when the life of the mother is in question is a mistake because there is no exception for cases of rape or incest. Having no provision for women who are victims of a crime will be the eventual undoing of this well intended law.
Comment by Tony in Boulder — 03.07.06 @ 2:19 pm
Tony:
Having no provision for women who are victims of a crime will be the eventual undoing of this well intended law.
Except the Court could just find that one provision to be unconstitutional, and allow the rest of the law to stand.
Comment by Kman — 03.07.06 @ 2:25 pm
The Rapists Rights Law passed in SD considers the death of a fetus a class 5 felony — something akin to having several DUIs — therefor I would argue that not even the law’s writers intended for the law against terminating blastula (yes, that’s right, it’s not a human!) to be construed as the same as killing a human being. I would go on to argue that the law is overly-expansive, and would result in a legal review of all medical practices that *might* result in the destruction of a fertilized egg.
Comment by Maimonides — 03.07.06 @ 2:37 pm
Exactly what I don’t want. Try again. - Admin
Comment by tristero — 03.07.06 @ 2:40 pm
LaShawn, you also need to post Griswold v Connecticut on this site to have the initial source of the sexual right of privacy.
Comment by Jim — 03.07.06 @ 2:48 pm
It’s interesting to me that the law passed in SD is aimed only at the abortion providers. If we accept that abortion=child killing then shouldn’t there be some punishment for the women?
Comment by Pat Curley — 03.07.06 @ 2:59 pm
The logic of law (concerning this) is that certain rights must supercede others. Not permissions or civil rights, but rights. Now, from this, it’s not hard to understand that without the most fundamental rights, the others cannot exist. Rights stem from property (if you own a house, you have the right to paint it, etc) and unless we are to consider the unborn property, we cannot call abortion a right unless it is done so in the name of the most fundamental right: to protect one’s own life. Now, obviously the law has set some precedent that personhood is contingent upon certain factors. Geography, maturity, want or desire of the mother and so forth. (see lacy peterson law) This leads to a problem which the supreme court will certainly have to consider. 1. Personhood, without the express desire of the mother to abort, exists. Therefore, given that personhood exists before the mother even would know that she was pregnant, abortion (save for causes of defending one’s own life) would be illegal. The scotus ruled on roe in this manner specifically because of evidence that stated that the danger to a woman “may be less than carrying to full term.” But, approving abortion now that personhood had been established prior to a woman’s desires being stated would require that the pregnancy be deemed a threat to the woman’s life, beyond reasonable doubt. i.e., you can’t kill someone in defense without honestly fearing for your life, or you go to jail. Just something to think about.
Comment by Victor — 03.07.06 @ 3:11 pm
Jim writes:
LaShawn, you also need to post Griswold v Connecticut on this site to have the initial source of the sexual right of privacy.
LaShawn links to a hyperlinked version of Roe v. Wade. Within that opinion, there are links to Griswold, and many other cases relating to the “right of privacy”.
So, it may take slightly more time, but it’s accessible.
Frankly, I would be happy if people opining on this subject (on both sides of the debate) took the time just to read Roe, because I think there’s a lot of misinformation and assumptions about what it says.
Comment by Kman — 03.07.06 @ 3:11 pm
As someone who believes in the rule of law, although I am pro-choice, I fervently hope that the judicial monstrosity known as Roe Vs. Wade be overturned. Let the fight to create an abortion right go back to state legislatures, where it should have stayed in the first place. That is how Women’s Suffrage, Prohibition, and the repeal of Prohibition came about, and that is the proper American way.
Honestly, I don’t know whether the Supreme Court will overturn Roe. I do know it WON’T MATTER if it does.
You see, for all the rights rhetoric (whether “right to choose”, or “right to life”), abortion is not an abstract concept. It’s a medical procedure requiring a doctor willing to perform it. In states where abortion is frowned upon - the states likely to ban abortion if Roe is overturned - abortion providers are already incredibly rare.
Most abortion providers, understandably, prefer to practice in states where people support them and where clients are more likely to be, i.e., states where abortion won’t and will never be banned.
This reality means that however much energy is spent on Supreme Court nominee battles, a Roe reversal wouldn’t change the country’s total number of abortion providers much. In fact, a year after Roe is overturned, it would be the rare woman who would notice any difference in her life at all.
In the past year, as passionate people on both sides have dug their Supreme Court battle trenches, a few pro-choice organizations have attempted to rally supporters with reports on which states would ban abortion if Roe fell. Shortly before the 2004 election, for instance, the Center for Reproductive Rights announced that 21 states were “highly likely” to ban abortion and nine “somewhat likely”.
However, I looked at the Center For Reproductive Rights’ claims more closely. Not only are 20 West Coast, East Coast, and “Rust Belt” states solidly pro-choice–population giants like California, Illinois, Michigan and New York among them–but the other problem with the pro-choice calculations is that they include pre-Roe 1973 abortion bans still on the books. Roe superseded these laws in practice. In theory, some bans would immediately become law if Roe were overturned. But this theory implies that legislators and voters in these states wouldn’t be able to debate and pass laws saying otherwise.
Given the split in U.S. politics, many would do just that. Of the 21 states the Center for Reproductive Rights claims are “most likely” to ban abortion after Roe, seven have Democrat governors. These governors would not be able to preside over new post-Roe abortion bans without risking a party revolt.
Of the other 14 states, one (Rhode Island) votes consistently Democratic in presidential races, and elects rather mild Republicans who are often derided as RINOs (Republicans In Name Only). Though not all Democrats support abortion, it’s unlikely that the 60% of Rhode Island voters who chose Sen. John Kerry last fall would be inspired to support a ban. Nor would the milder Republicans in Rhode Island–or anywhere else these mild Republicans exist–dare try one.
Another state, Ohio, is too much of a political tossup to count in the ban camp. Colorado might vote Republican, but the state’s recent election of a Democratic senator and new Democratic majorities in its statehouse implies that the politics are pretty split.
That leaves us with 11 likely states. According to data from The Alan Guttmacher Institute, these states had 122 abortion providers in 2000. That’s less than 7% of the 1,819 abortion providers - a fluid number, to be sure - in the USA. More than half of those 122 providers (65) are in one state: Texas.
In the other 10-state area, abortion providers are already few and far between. In Mississippi, Kentucky and the Dakotas, 98% of counties have no abortion providers; in Missouri and Nebraska, 97% lack them. In these Roe-unfriendly states, women already have to travel hours by car or bus to obtain abortions; in a post-Roe world of crossing state lines, going a bit further up or down the Interstates, that story wouldn’t change.
(This is also why claims of “a return to back alley abortions” are utter bunk! A boost in Greyhound Bus ridership is what will happen, not fictional “back alley abortionists”.)
Of the nine “somewhat likely” states, only three have solidly Republican governors, legislatures and voting tendencies: Indiana, Idaho and Georgia. If they banned abortion, that would affect just 48 providers. In a realistic “worst-case scenario” (for pro-choice types) of 14 states that included a Texas ban, overturning Roe would affect a maximum of 170 providers, less than 10% of the U.S. total.
And how many Republicans in these 14 states, especially Texas (65 abortion providers is a lot for an ostensibly pro-life state, even one that big) really have the stomach for such a fight? For how many of them is abortion the real burning issue? Many Republicans are pro-life, but they see the fight for tax cuts, spending cuts, and the War On Terror as much bigger issues. These Republicans are not going to act like Captain Ahabs and go down with the anti-abortion ship. I honestly would be surprised if more than 10 states enacted or retained abortion bans once Roe is overturned.
In their zeal to fight over the Supreme Court, though, neither side of the abortion debate has absorbed these numbers. Few pro-life groups realize they’ve fought a 30-year battle to put just a handful of doctors out of business. Pro-choice forces haven’t grasped that the millions they’ll spend lobbying to block Bush’s nominees could be better spent tipping a lot of state and local legislative races. Or, for that matter, to build abortion clinics in solidly pro-choice states that are near the borders of states likely to enact or keep abortion bans.
Instead, over the next few years, the two sides have fought the political equivalent of World War I trench warfare - bloody contests over yards of turf. Millions have been spent. Alito and Roberts suffered the same “Borking” fate as Judge Robert Bork, a very agile legal mind, did in the 1980s. Fortunately, having learned from Bork’s fate, they steeled themselves for the battle in advance and prevailed. The filibuster might melt with the “nuclear option.”
Yet in the end, a post-Roe world will look a lot like a Roe world - except we’ll like each other a lot less, thanks to the battles.
Comment by Nick Byram — 03.07.06 @ 3:12 pm
Nick, it isnot about the handful of doctors, it is about the poor women who live in rural Mississippi and South Dakota who will be prevented from obtaining abortions becasue they are poor and live in backward stated. It is about them risking prosecution even if they should muster the time and money to leave the state to obtain an abortion.
Your arguments are dangerous, and I don’t think you’d make them with respect to civil rights and discrimination. It would not be OK if Mississippi had the right to segregate blacks even if the other 49 states did not.
And as a constituional matter it is important. A woman should be allowed to control her own body as she sees fit, which is consistant with the right to privacy found in the constitution as society has progressed and become more complex. It is her body and her decision. While life is sacred, a non-rational, non-aware fetus that you simply cannot call a person unless you resort to arguents based in faith should not have any rigts to speak of, certainly not over the wishes of the woman carrying the child. Ours is a history of discrimination, opression and explitation of women, and if we are going to have a constituional system, it should gurantee a woman the right to physical autonomy and privacy, just as the court has found.
Comment by lazerlou — 03.07.06 @ 3:54 pm
If that’s the reason, it’s equally obvious that South Dakota can’t count. Five of the current nine (Stevens, Kennedy, Souter, Ginsburg and Breyer) are all on the record in support of Roe. Oops!
Comment by Xrlq — 03.07.06 @ 3:56 pm
The name is “La Shawn,” and you can either follow instructions and participate in the discussion or move along. Doesn’t matter to me. - Admin
Comment by Maimonides — 03.07.06 @ 3:58 pm
“La Shawn” — my apologies.
Comment by Maimonides — 03.07.06 @ 3:58 pm
I wish I had legal expertise. I don’t. However, it appears to me that a state cannot simply pass a law contrary to federal law. If that was the normal practice of states, there would be no basis or need for federal law. Somehow, there has to be an intervention to turn this simple issue into a broader issue which will be more difficult to challenge. For example, Roe said that states can impose restrictions in the second trimester. Could S.D. argue that it is not sufficient for states to simply be given the ability to apply restrictions given the EXPERIENCE with abortion in the state, (abuse of law, lack of ability to enforce, etc.) that has occurred since 1973?
Comment by dianne — 03.07.06 @ 4:21 pm
Lazerlou, you just don’t get it.
If, as you claim, “it is not about the handful of doctors, it is about the poor women who live in rural Mississippi and South Dakota who will be prevented from obtaining abortions becasue they are poor and live in backward stated,” then guess what? If you really believe that, then that is ALREADY going on NOW. By the way, that claim is utter bunk; bus tickets are cheap.
You claim “It is about them risking prosecution even if they should muster the time and money to leave the state to obtain an abortion.” Wrong, there is nothing in the South Dakota law that prosecutes South Dakota women going elsewhere for abortions.
Then we get to the claim:
“Your arguments are dangerous, and I don’t think you’d make them with respect to civil rights and discrimination. It would not be OK if Mississippi had the right to segregate blacks even if the other 49 states did not.”
Actually I would. The 1957 and 1964 Civil Rights Acts were passed legislatively. Indeed, if any arguments are dangerous, yours are. So nine tyrants in black robes can twist the law any way they want to? That’s how we got Plessy v. Ferguson in the first place: “equal protection of laws” redefined to mean “separate but equal”.
I’d rather have these issues hashed out, once and for all, in the legislature, where they belong!
If you really believe that “A woman should be allowed to control her own body as she sees fit,” then fight for it legislatively. Don’t rely on your hired guns in robes to do it for you.
Personally, I live in a state where abortion on demand came into being six years before Roe, under then Governor Ronald Reagan no less. If the various abortion rights groups has fought, state by state, to create an explicit “right to abortion under x number of weeks” law, we wouldn’t be still fighting this issue 30 odd years later.
“…which is consistant with the right to privacy found in the constitution as society has progressed and become more complex.”
Ah yes, here we come to the “Woomp! There it is! Enumerations and penumbras!” argument that seems to be the favorite of judicial tyrants.
Comment by Nick Byram — 03.07.06 @ 4:27 pm
Dianne, you are correct. Which is why perhaps we ought to see a Federal First Trimester Abortion Act of 2006 brought forth.
Comment by Nick Byram — 03.07.06 @ 4:29 pm
Nick, I know that in Ks we have severe problems. Our Attorney General has found evidence of an abortion mill performing abortions on minors, which he classifies as rape victims because of their age and Planned Parenthood won’t release their records because of privacy laws. Furthermore, he has sued our Governor becasue medicaid money is being used by the state for abortions. It’s a real mess here and I know it is in other states as well.
Comment by dianne — 03.07.06 @ 4:48 pm
E-mailing junk like that from a place called Community of Christ? Good grief. Begone, troll. - Admin
Comment by robert lewis — 03.07.06 @ 4:50 pm
>>It is her body and her decision.>>
And she makes that decision when she chooses to have sex. No one is free of the consequences of their own actions.
Comment by suek — 03.07.06 @ 4:54 pm
The right to marry whom we please (hardly without restriction, as we all well know, and hardly a private affair–many details of a marriage are part of the public record), have the number of children we please and so forth is not ours by virtue of some nebulous unstated but nevertheless implied “right to privacy”. It is ours because our Founders recognized that individuals in a free society have the right to shape their own lives and freely make the decisions that affect those lives.
You may argue that certain Amendments provide a cloak of privacy, but those Amendments are characterized by their specificity and do not provide for a blanket “right” to “privacy”.
However, too many previous courts have recognized that “right” and the doctrine of stare decisis is firmly established. Bad law or not, any court, regardless of who sits on it, would find overturning Roe v Wade extremely burdensome.
As it stands now, the continued life (or “life” if you prefer) of one not yet born depends almost entirely upon whether the pregnant woman considers herself a “mother” bearing a “child” who she intends to nurture and carry to term, or a “host” carting around a glob of unwanted “fetal tissue” which she plans to dispose of at the first opportunity (some women in their time have been both). In the first case, the law often will protect that “child”. In the second case, the law allows its termination. This is ridiculous. Either the unborn have no rights whatsoever or they have full rights. Either the fetus is merely an extension of the woman’s body or it’s an individual in its own right. We simply can not continue having it both ways.
Comment by Kyda Sylvester — 03.07.06 @ 4:57 pm
Kman–the reason that Griswold and the other precedents are important is because it is clear from the confirmation hearings that–at most–Roe will be overturned. Not the earlier cases which also found various implicit rights of privacy in the US Constitution. So to demonstrate how SCOTUS might respond to the SD ban–assuming of course that one more justice changes in the interim–you’ll need to find a way to distinguish the earlier cases.
Lower courts will clearly invalidate the SD law based on Roe and SCOTUS may simply decide not to hear the case, leaving the lower court decisions intact (this assumes no further change in SCOTUS membership). Even if SCOTUS changes, they may not choose this case as the one to overturn Roe, but rather to wait for a few years.
BTW, what we don’t have posted is the SD law. Without it, it’s difficult to figure out the arguments for or against the law.
BTW, Nick, I congratulate you on a well-researched, well-thought out conclusion. I think you have come very close to identifying where this will end up in 20 years (although MI, WI and PA might be more pro-life than you indicate).
Good idea. I just posted a PDF link to the HB 1215. Check Update. - Admin
Comment by Jim — 03.07.06 @ 5:14 pm
Considering “what’s new,” it seems to me that the original ROE decision included this logic: We don’t know when life begins. We aren’t going to touch that question because it’s not the place of the judiciary to make that up. We will therefore rule x,y,z (with the implicit understanding that we don’t consider the fetus to be a human being, although we just don’t know.)
What’s new is that South Dakota has legislated a definition of a human being, and included the developing unborn baby from conception in that definition. The SCOTUS has never ruled that the legislature (Federal or State) does not have the authority to do so. On the contrary, they have implied that if anyone could do that, it should be the legislature and not the judiciary. South Dakota’s legislature took pains to emphasize in the law itself that they reached the definition of life in accordance with reasoned debates, experts and valid scientific data. In essence, it is S.D.’s “finding of fact.”
If SCOTUS has already said, as they did in ROE, that it’s not their place to rule on when life begins, they may well say it is still not their place, and defer to the State legislature in this regard.
ROE could then still “stand” in States where it is not clear when human life becomes a human being, and be superseded in States like S.D.
Comment by alfonso — 03.07.06 @ 5:19 pm
If you really believe that, then that is ALREADY going on NOW. By the way, that claim is utter bunk; bus tickets are cheap.
It is going on now. Sadly, it’s not just the bus ticket that costs money and prevents women from going over the border for an abortion, it’s the day(s) of work being missed, it’s the other children that she has to find care for while she’s gone, it’s the cost of staying overnight (most states have “waiting periods” for pregnant women seeking abortions), the cost of food, and the cost of having someone pick her up at the clinic. Simply put, it’s an undue burden on the poor while the daughters of rich men who find themselves “in trouble” will easily be able to fly wherever they need to go.
Comment by eponymous — 03.07.06 @ 5:21 pm
Exactly what I don’t want. Attack the argument, not the group. Try again. - Admin
Comment by eponymous — 03.07.06 @ 5:24 pm
eponymous: Like I said, we are here already. I rest my case. Everything you cite would already apply to in-state abortions. It’s the rare woman post abortion who gets up, takes care of her remaining kids, and goes to work the next day.
In states where abortion would be likely to be banned, clinics are already very few and far between. A couple of hundred miles further up or down the interstate really does not make that much difference at all.
Comment by Nick Byram — 03.07.06 @ 5:43 pm
I find myself moving like a teeter totter on this issue. Defining life is very problematic given miscarriages, birth defects, genetic problems which manifest after birth, and the rest.
Clearly the mother has a life interest and a right to control her own body.
But everyone was a fetus. Trying to define life without universal early stages is very unscientific. It’s a political argument which would never pass muster in other contexts.
In the law there is a doctrine known as laches. If someone slumbers on a right they lose that right. This applies to contracts and land when there is no competing life, or potential life, interest.
Then there is birth control. Every elective abortion presumably could be prevented if a woman who “chooses” does it earlier in the process.
But women who are raped or coerced by a relative don’t have any choice in the first place.
Both sides have legitimate ground, and you’ll note I need not use any religious arguments to find it.
I recommend thinking caps for both sides. Screeching about baby killers or theocrats doesn’t seem to be getting anywhere.
Comment by Chip — 03.07.06 @ 5:45 pm
Nick, I know it is already going on now. You should see the Frontline on the only abortion clinic left in Mississippi. In Mississippi, they have a 48 hour waiting period after mandatory consultations. So you are talking two full days of missed work for a woman and four trips on the bus. And contrary to your assertion, for the pooerest of the poor, two separate bus trips can be very expensive. When thinking constitutionally you should consider the most vulnerable groups subject to the legislation.
I though I read that it did make it illegal to transport a woman out of state to receive an abortion. I certainly could be wrong.
And as for civil rights, along with the legislated Civil Rights Act there were a number of constitutional decisions that directly affected civil rights, preceded the legislation and rejected states rights arguments that were used to discriminate against the powerless and minorities - not the least of which was Brown v Board. You know sometimes statutes and constitutional amendments are drafted broadly with the knowledge that our competent court system will be able to apply broad principles to specific facts. And you seem to confuse the role of interpretation with legislation. The two are very different. Go back and read Marbury v Madison. And while Roe isnt the best written decision, it is consitent with the privacy and substantive due process decisions that preceeded it. You can hardly call the Supreme Court a bunch of henchmen for protecting the autonomy of women and their reproductive freedom if you grant Griswald and all the other privacy cases that preceeded it. Not to mention the overturing of Bowers v hardwick recently. Believe it or not, constitutional jurisprudence does progress in an orderly and rational manner.
Fighting for state legislation is great and all, but the constitution is suppose to protect minority interests in the face of majority domination. It will never be ok if a poor woman who happens to live in rural S. Dakota is forced to have a baby she doesn’t want, simply because she lives in that state. You shuold accept it either just becasue you live in California.
And what is wrong with enumerations and penumbras, so long as they are consitent with past holdings and rationally arrived at? It wasn’t a stretch to go from due process, prohibition against unreasonable search and seizure, guranteed rights of speech, assemby, and association to a privacy right.
Comment by lazerlou — 03.07.06 @ 5:46 pm
>>It is her body and her decision.>>
>>>>And she makes that decision when she chooses to have sex. No one is free of the consequences of their own actions.
Comment by suek >>>>
Suek,
How about the rape or incest victim? She does not have the choice. Should they at least be free of the consequences of others’ actions then?
Comment by lazerlou — 03.07.06 @ 5:51 pm
While most of the bill of right - including the
fore mentioned IX - deals with the rights of
the individual, the X admendment is
specifically directed toward protecting the
states from over extension of federal
power. As it states:
“The powers not delegated to the US by the
Constitution nor prohibited by it to the
States, are reserved to the States
respectively, or to the people.”
Surely abortion must fall within this admendent.
Comment by Monte — 03.07.06 @ 5:59 pm
It is going on now. Sadly, it’s not just the bus ticket that costs money and prevents women from going over the border for an abortion, it’s the day(s) of work being missed, it’s the other children that she has to find care for while she’s gone, it’s the cost of staying overnight (most states have “waiting periods†for pregnant women seeking abortions), the cost of food, and the cost of having someone pick her up at the clinic.”
The feminists should pick this up as a cause, then. Hit up their Hollywood pals for cash and organize groups that will transport the woman to the nearest clinic, reimburse her for lost wages, provide child care, etc.
Comment by Pat Curley — 03.07.06 @ 6:14 pm
Straightening Out La Shawn Barber On - Abortion
Of course it is perfectly alright to be AGAINST abortion. Quite frankly it would be perfectly fine with me if human beings could find some reasonable method so they could turn their fertility on and off at will and therefore pretty much eliminate the…
Trackback by Axinar's — 03.07.06 @ 7:14 pm
How about the rape or incest victim? She does not have the choice. Should they at least be free of the consequences of others’ actions then?
This is why this law will be struck down as unconstitutional, IMO. I think the court, which may be willing to revisit this subject again with new eyes, will not be willing to do so in a case where these exceptions are not plainly spelled out.
This will allow the court to go on record as saying that even if they were to relook at Roe on it’s legal merits, that it would not do so without a bright line of exceptions to bans.
Comment by Defense Guy — 03.07.06 @ 7:17 pm
Pro-choice Abortion and Holand
It has long been my contention that the ultimate end of the abortionists weren’t ever clearly stated. Of course they couldn’t be honest. If they had been brutally honest they wouldn’t have made an inch of progress. So what is the ult…
Trackback by Conservative Culture — 03.07.06 @ 7:18 pm
The fact that Roe was right seems pretty clear if you remember:
1. The Constitution guarantees liberty of the person.
2. If the State forces a woman to bear a child against her will, she is being deprived of that liberty.
3. That liberty might be reasonably taken away if the fetus is a full-fledged human being with human rights, but
4. Every abortion law that has ever been struck down has treated the fetus as something less than a full-fledged human being (since it does not make it murder to kill the fetus, often provides exceptions for things like rape and incest, and frequently doesn’t even punish the woman who procures the abortion).
Therefore, a law that arbitrarily takes away a woman’s liberty, and has no clear interest in protecting fetal life, is unconstitutional.
The idea that the Supreme Court was being weird or going beyond its power in Roe is based on a misunderstanding of the tradition of legal interpretation. It used to be very common, long before the dreaded Warren Court, to read a law in such a way as to make sure the outcome was just. The idea was that the laws are written to promote justice; natural law dictates that there are objectively just and unjust outcomes; a judge should not read the law so narrowly that its application produces an unjust result. It’s the Scalia/Bork idea, that the law should be read narrowly and that it doesn’t really matter whether its application leads to good or bad results, that is new and strange — it’s law-school thinking from people with no real-world experience.
The 7 judges in Roe said, applying previous precedents to abortion, what is an outcome that balances the liberty of the woman with the state’s interest in protecting the fetus? And they came up with: pre-viability, it’s none of the State’s business; the State can start regulating after viability but needs to make exceptions for the woman’s health and safety. It’s not a perfect compromise, but it’s a hell of a lot better than a crazy-quilt of arbitrary state laws that neither reflected the will of the people nor were enforced with any consistency.
The idea that an early-term fetus is the same thing as a person is pure bunkum and superstition of the kind that even the Catholic Church didn’t use to believe; it’s based on a silly, fake-Darwinist belief that our genetic makeup is all that determines our humanity. The truth is that though you used to be a fetus, that fetus was not the same thing that you are now: your mother, by letting you grow within and feed off her body, helped to create you. And it is only fair and logical that it should have been left up to her whether she wanted to create you or not.
Just as wanting to force women to have children against their will — a great moral evil that dwarfs the merely theoretical question of whether a clump of cells is a person or not — is part of inhumanity and evil. There are few positions more evil, more denying of humanity and freedom, more willing to reduce all humans to the level of pure DNA and nothing more, than the pro-life position. The pro-life position is against humanity itself.
Comment by M.A. — 03.07.06 @ 7:20 pm
I am with Mr. Byram on this in that this should be a question of states’ rights. Implied in his statement is another point which I haven’t seen addressed here yet: members of the GOP dare not overturn Roe. I would estimate that upon the immediate overturn of Roe, the GOP loses anywhere from 30-50% of its base. Literally Overnight! My mother-in-law is in this group: fervent Christians who abhor the war-making and destruction done in our name across the globe but are GOP “one-issue” voters. That issue: Roe. Take it away, and the political climate changes instantly! I would also lump many of my liberal-leaning Catholic relations who, being deeply rooted in a blue-collar work ethic, deeply distrust the Bush Administration, but who again (mostly because of the Pope) are “one-issue” voters. These are 2 examples from my personal experience. I’m sure you could think of many others.
Also, as a side note, it’s no coincidence that the “poorest” states in the union also happen to have the strictest abortion laws. Teenagers and “loose” women aren’t the only people who have unwanted pregnancies: so do married people. With 4 kids. That can barely afford the ones they have. I pose this question to the “keep your legs closed” people (esp. the ones on this comment thread): are you telling me that people should go into poverty based on normal marital lovemaking? If we are so concerned with the “everyone should have to face the consequences of their own actions”, shouldn’t people who have too many kids that they can’t reasonably support be denied Social Services and Welfare? Just wondering…
Comment by JT — 03.07.06 @ 7:55 pm
To ask “So, should the law change merely because the justices on the bench change?” is to create a false argument. If the 1973 Justices were wrong, then of course it should change!
As to rape and incest: what difference do these make? I realize the mother didn’t choose the sex which got her pregnant, but why punish the unborn child for that? S/he didn’t choose the rape, either! The truth is, abortion victimizes the rape/incest victim in a new way, by making her a participant in the killing.
I find a certain irony in the fact that the left is so into abortion. They want the reputation of being for the underdog, caring for those who are victimized and uderprivileged. Who would fit that descriptiom more than the unwanted unborn baby? Does anyone remember an article from over a decade ago by a liberal feminist on why the left should oppose abortion? I have it around here somewhere and it provides a lot of food for thought, even for the right.
This isn’t really about legal arguments, which is what you asked for, La Shawn, so maybe my comments are off-topic. In that case, my feelings won’t be hurt if you delete it!
Comment by jenney — 03.07.06 @ 8:20 pm
Jenny,
you say:
“I find a certain irony in the fact that the left is so into abortion. They want the reputation of being for the underdog, caring for those who are victimized and uderprivileged. Who would fit that descriptiom more than the unwanted unborn baby? ”
i’ll tell you who: Women. Living breathing conscious adult women who have been treated as pieces of reproductive property by men since the beginnings of the species. Unborn children have only gotten the short end relatively recently in the course of human events.
Liberals, like me, hate abortion, we just dislike the systematic exploitation and disadvatage that women have suffered even more.
As for “suffering,” a fetus isn’t conscious. Even if it can feel pain in the third trimester, it has no memory, or identity. Abortion is an affront to life and I dislike it, but that is based in my sense of morality that I would never be so lacking in humility as to impose on any other person as a legal matter. you are assuming that a fetus is a person. Your is a view based only in faith. Other religions believe life and personhood starts at birth, and for you to imposed your morals on others is wrong.
Comment by lazerlou — 03.07.06 @ 8:30 pm
And she makes that decision when she chooses to have sex. No one is free of the consequences of their own actions.
Obviously, not every woman who becomes pregnant chose to have sex.
But your argument is flawed for other reasons as well. Yes, anytime a man and a woman have sex together, pregnancy can result. The potential consequence of sex is that, if pregnancy results, a decision has to be made about whether to go through with the pregnancy or terminate it. That is a decision that is almost always difficult for any woman, regardless of the circumstances. Sometimes the decision is agonizing. That is the consequence.
A woman has the right to decide whether or not to willingly give her body, or share her body, with another person. A woman also has the right to make health decisions for her body if, as the result of sex, she becomes pregnant. One right does not preclude, or cancel out, the other. Your argument implies that, by choosing to have sex, a woman gives up the right to her health.
It simply doesn’t make sense to say, If you don’t want children, don’t have sex. There are too many women in this world who don’t like children, don’t want children, aren’t in a position to raise children. If they all decided not to have sex, how would men react?
Oh, and that brings up another point. If women who don’t want children give up their right to have sex, what about men who don’t want children or who aren’t prepared to pay child support? Do men who don’t want to deal with pregnancy and child-rearing stop having sex?
Comment by Kathy — 03.07.06 @ 8:39 pm
Others: LaShawn Barber
Pingback by Conservative Culture — 03.07.06 @ 9:12 pm
>>How about the rape or incest victim? She does not have the choice. Should they at least be free of the consequences of others’ actions then?>>
For how long after the impregnation? My understanding is that rape victims are normally treated with a “morning after” pill when they are taken into the treatment room. Incest is a different problem. Assuming that rape is not a consideration (which may not be valid), then when are you assuming the situation is discovered?
Comment by suek — 03.07.06 @ 9:21 pm
It is a good debate. The questions raised underscore the consequences of what happens when we separate sex, marriage and children; all three of which were designed to work in concert with each other.
Great questions, LaShawn!
Comment by Carol — 03.07.06 @ 9:26 pm
“…you are assuming that a fetus is a person. Your is a view based only in faith. Other religions believe life and personhood starts at birth, and for you to imposed your morals on others is wrong.” - lazerlou
This is a scientifically and philisophically unsupportable claim.
1. A fetus is a living organism. Its species is human. Ergo, a fetus is human. Period. There is no debate, no room for opinion - it’s a scientific fact.
2. Philisophically, it’s absurd to claim that you can’t impose “morals” on people. The obvious and extreme example is somebody who wants to kill you. If they believe that it’s OK for them to do it, should they be allowed to? By your argument, the idea that killing is wrong is “just your morals”, and they should therefore be allowed to. We all recognize that morals should be imposed on everybody equally - hence laws against murder, rape, and theft.
An accurate statement of the sentiment you were incorrectly attempting to apply to this situation would be that you can’t impose your idea of “holiness” on others. For example, Christians believe that homosexual activity is wrong. But consensual sexual activity is not a matter of morality, since no unconsenting party is harmed. Thus, even though Christians believe that homosexuality is wrong, it shouldn’t be legally regulated.
Abortion, on the other hand, is a matter of morality. One party involved is involuntarily harmed - the fetus. A fetus is a human organism. Pain, heartbeat, brain activity - they’re all irrelevant. The destruction of a human organism is murder.
Any attempt to exclude unborn fetuses from classification of human is exactly what you accuse the pro-life side of doing: bringing unscientific matters of faith into a legal arena where they don’t belong.
Comment by Kendrick — 03.07.06 @ 9:29 pm
>>… we just dislike the systematic exploitation and disadvatage that women have suffered even more.>>
Oh baloney. Women are not helpless pieces of fluff - certainly not today. This argument may have held water in 1900, but not 2000. If women want to be “liberated”, then they have to accept responsibility. They are responsible for their own body. If they get pregnant, it’s their own responsibility.
Comment by suek — 03.07.06 @ 9:30 pm
If the human gestation period was a prime number and there were no trimesters, how would Roe be different?
Comment by Geoff — 03.07.06 @ 9:31 pm
lazerlou:
You say, “Abortion is an affront to life and I dislike it, but that is based in my sense of morality that I would never be so lacking in humility as to impose on any other person as a legal matter.”
and I must beg to differ with you here. Of course you impose your morality on people in a legal matter. Every law is an imposition of morality. I’m not allowed to kill my postman, even if I don’t like him and find him inconvenient. That is because we have laws protecting his life. Why does the law say his life is more valuable than my convenience? That is a moral. Where those morals come from may be up for debate, but please do not try to argue that abortion is a moral issue while murdering one’s postman is not.
You continue in this line of reasoning further:
“you are assuming that a fetus is a person. Your is a view based only in faith.” Well, no, actually, it’s not, it’s based on science. Biologically you would be hard pressed to claim an unborn baby is not a person. What do you think it is?
But suppose it were based on faith. My faith is also what tells me that you are a person. Before I was a Christian I remember telling someone that since I was smarter than most people (in my obviously arrogant opinion!) that I had a greater right to life than other people of lesser, inferior, intellect. (You might be interested that the great abortion proponent, the founder of Planned Parenthood, Margaret Sanger, believed this also. She founded PP in order to limit the number of undesirable births, defined by her as the poor and people of color, any color but white. OTOH, you probably aren’t interested.) It is only my faith that tells me that anyone but me is valuable at all.
Comment by jenney — 03.07.06 @ 9:37 pm
Did anyone consult the Dred Scott decision? Brother Scott was ruled to be property and therefore “chattel.” Egro: you want to kill your cow? Then kill it! You want to drag your slave around the world? Drag him! You have a PRIVACY and PROPERTY right to kick, maim and kill your your possessions unless the SPCA or PETA intervenes, according to the Dred Scott logic.
So what happens when, in normal circumstances, a human male fires sperm at a human egg? Mitosis! And when the human sperm and the human egg undergo mitosis what is the result? A Volkswagen? An ostrich? An oak tree? A character out of Dr. Seuss? No! 100% of the time it is a human being.
Will the human being be perfect with ten fingers and ten toes? Very likely. But who has the perfect wisdom to know that nine toes is less than “normal”?
So, the little lady is now with child through whatever means: consent, surprise, rape or incest. Is the child in making her “property” ala “Dred Scott” to do with as she may? Or is the child in making a developing human with certain unalienable rights to life, liberty and the pursuit of happiness?
We shun the concept of infanticide, but our babies are unable to survive without extraordinary means until they are several years old. Why not convey the property right on the mother to kill her property until it can sustain itself?
But what of the poor woman who must bear the indignity of a pregnancy she does not want? Well, if she is severely injured, she may have nine months of convalescence until she is nursed back to health. If she is pregnant, by whatever means, her duty of incubator and nurturer lasts no longer. She can always relinquish her “property right” to adoption.
What about the “mother” who doses her fetus with drugs and lives a life of reckless abandon? Is it all “tough luck” to the fetus because the “mother” has a privacy right to act in her own perverted interest even though it cripples the fetus?
I am well aware that you can find an implied “privacy right” in the Constitution. But Justice Douglas diddled with the penumbra emanating from certain concepts and honed in on it. Justice Douglas is dead and cannot speak for himself. So, Roe supporters. it is up to you to spell out the privacy right in clear and obvious terms.
And, you might start by defining “privacy.” Suggestion: “I know it when I see it” is not going to wash.
Good luck!
Comment by Heliotrope — 03.07.06 @ 9:50 pm
Again, the justification for Roe is a liberty justification.
1. The Constitution guarantees liberty of the person.
2. If the State forces a woman to bear a child against her will, she is being deprived of that liberty.
3. That liberty might be reasonably taken away if the fetus is a full-fledged human being with human rights, but
4. Every abortion law that has ever been struck down has treated the fetus as something less than a full-fledged human being (since it does not make it murder to kill the fetus, often provides exceptions for things like rape and incest, and frequently doesn’t even punish the woman who procures the abortion).
Therefore, a law that arbitrarily takes away a woman’s liberty, and has no clear interest in protecting fetal life, is unconstitutional.
Comment by M.A. — 03.07.06 @ 9:58 pm
>>…Yes, anytime a man and a woman have sex together, pregnancy can result.>>
Whew. Glad we got that basic fact out of the way. Most - meaning the majority - of women are only fertile 5-7 days out of a lunar month. Contraceptives are readily available, both physical contraceptives and chemical contraceptives. We’re not talking about total abstinence here.
>>A woman has the right to decide whether or not to willingly give her body, or share her body, with another person>>
She does not have that right in a vacuum. With it comes the responsibility to use her body responsibly. If she doesn’t want to “share” it, she should have sex responsibility.
>>Your argument implies that, by choosing to have sex, a woman gives up the right to her health.>>
Amazing that the species has survived so long with so much danger to the health of females during gestation. Can you whip out some statistics concerning “destroyed” health as a result of pregnancies?
>>If women who don’t want children give up their right to have sex, what about men who don’t want children or who aren’t prepared to pay child support? >>
What about them? are they marriage partners or just fly by night sexual partners? Whichever they are, they should stop having unprotected sex, but some of that changes with their status. In one situation, it’s entirely the woman’s prerogative. In the other, it should be a mutual decision. And, by the way, at the present time, regardless of their “preparation”, if the mother identifies them as the father, they _will_ pay child support. _They_ don’t have a choice in the matter. The smart man who doesn’t want to support a child or children _definitely_ uses protection - or he’s a fool. If there’s an unwanted pregnancy, he doesn’t have a choice - he has the responsibility without the right. Would you agree that a man should be able to require that a woman abort a pregnancy unwanted by the man?
Do men who don’t want to deal with pregnancy and child-rearing stop having sex?
Comment by suek — 03.07.06 @ 10:43 pm
The politically correct term of pro-life is a misnomer. There’s only pro-life or pro-death. If someone was pro-life, why in the world would they call themselves pro-choice? It’s because no one would admit that they are for the death of a human being that can’t defend themselves.
I don’t know how to articulate a pro-life agrument without turning it into a dissertation!
That’s why I put “pro-choice” in quotes.
- Admin
Comment by Bonnie Calhoun — 03.07.06 @ 10:54 pm
Amazing that the species has survived so long with so much danger to the health of females during gestation. Can you whip out some statistics concerning “destroyed†health as a result of pregnancies?
It’s called death in childbirth, for starters. Happens a lot, even now, and happens more to poor women (who are the ones most affected by abortion bans).
Comment by M.A. — 03.07.06 @ 10:54 pm
1) There’s no reasonable constitutional case to be made on behalf of Roe. When it was handed down, the clerks on the Supreme Court itself started calling it “Harry’s abortion (after Justice Harry Blackmun who wrote the decision).
2) Right now, there aren’t five votes on the Supreme Court to reverse Roe. If this law goes to the Supreme Court with this court, South Dakota will lose, and the precedent will make it that much harder to reverse Roe.
3) If the law is upheld, SD’s decision not to allow an exception for rape or incest will make the both the law and the Supreme Court look extreme, and fuel a pro-abortion backlash. By contrast, polls have regularly shown that a plurality of Americans support a ban on abortion except in cases of rape or incest or where the mother’s life is in danger. That would be a much wiser way to challenge Roe, and one with a better chance of success.
4) As the commander of the Death Star once remarked: “I’m taking an awful risk with this, Vader. This had better work.”
Comment by GrenfellHunt — 03.07.06 @ 11:23 pm
Do men who don’t want to deal with pregnancy and child-rearing stop having sex?
That’s what I was asking *you.* My answer, of course, is yes. If women who don’t want children should stop having sex, for the rest of their lives if necessary, then men who don’t want children, or who don’t want to pay child support, or who don’t approve of abortion, should also stop having sex.
And by the way, plenty of men get away with not paying child support. As far as pregnancy and child-bearing or rearing are concerned, sex has no consequences for men at all. For men, sex and procreation are not linked at all in any sense apart from the contribution of a sperm. That’s why men have always had more freedom than women — even in our own supposedly free and democratic society. Human sexuality is THE most basic, deeply rooted need of the species, after water and food. It’s not an extracurricular, recreational activity that one can give up if circumstances don’t allow for it. Therefore, when you tell a woman, If you don’t want children, don’t have sex; you are in effect telling her that she has a lesser right to the full measure of her humanity than a man does.
Comment by Kathy — 03.07.06 @ 11:38 pm
Remember, as long as there aren’t laws mandating death for women who attempt to have abortions the state isn’t doing it’s full duty to protect these little teeny future-people.
Comment by matt — 03.07.06 @ 11:43 pm
(1) Alfonso (#44) writes:
“What’s new is that South Dakota has legislated a definition of a human being, and included the developing unborn baby from conception in that definition. The SCOTUS has never ruled that the legislature (Federal or State) does not have the authority to do so.”
Alfonso, I don’t think the issue is the authority of South Dakota to define an unborn baby as a human being. The problem is whether defining something a certain way makes it true. You simply can’t legislate unknowable beliefs.
If South Dakota defined God’s skin color to be white, does that make it so?
(2) Chip (#48) writes:
“I find myself moving like a teeter totter on this issue. Defining life is very problematic given miscarriages, birth defects, genetic problems which manifest after birth, and the rest.”
That’s the whole crux of the pro-choice position: there IS no universal definition of when life begins. It’s not grounded in science or math or absolutes. Instead, it’s a personal — often religious or philosophical — belief. For a court or legislature to mandate one (and only one) “correct” answer would be a violation of personal liberties.
Jenney (#58) writes:
“To ask ‘So, should the law change merely because the justices on the bench change?’ is to create a false argument. If the 1973 Justices were wrong, then of course it should change!
But how do you show that the Justices in 1973 were LEGALLY or FACTUALLY wrong?
It’s like two people looking at the same swatch of fabric, and one person says it’s more pink than red, and the person says it’s more red than pink. How do you PROVE beyond all doubt that one of them is wrong, when all you are talking about is opinions?
You can’t. And it’s the same issue with “when life begins”. Rather than come up with a definitive answer, the Roe Court wisely said “No way are we going there. That’s something that everyone has to decide for themselves.”
Heliotrope (#68) writes:
Justice Douglas is dead and cannot speak for himself. So, Roe supporters. it is up to you to spell out the privacy right in clear and obvious terms.”
I’m not quite sure what Douglas being dead has to do with it. All the justices who desegregated the schools are dead, too — is that issue up for grabs now?
As for the “privacy right”, that’s all spelled out in Roe and the other cases leading up to it (Griswold, etc.). If you want to know my position (and I’m not dead, by the way), you can read them.
I think the burden is on Roe detractors to explain why there the right to privacy does not exist (or, as one commenter suggested, explain why it exists but it doesn’t extend so far as to protect a woman’s right to choose).
Comment by Kman — 03.07.06 @ 11:53 pm
Interesting conversation. But the reality is the Supreme Court will uphold Roe for several reasons.
First, the Court abides by precedent except in exceptional circumstances. Despite the attempts of the South Dakota legislature to show otherwise, there are no exceptional circumstances warranting the reversal of established precedent.
Second, the S.D. statute mirrors the statutes rejected by the court in Roe. The S.D. statute bans all abortions except in cases to save the life of the mother, which parrots the Roe statutes. The court in Roe, however, specifically rejected the restrictions found now in the S.D. statute. The only difference between now and then is the composition of the court. I don’t the new justices will offend precedent by overturning Roe.
Third, the S.D. legislature has no compelling reason to impose the previously rejected restrictions. Of course, there is an argument that new medical advances suggest that life begins at conception. The declined to get involved in this medical debate in Roe, and will decline to do so in this case. As the court recognized in Roe, there is no consensus opinion of when life begins. The opinions vary based on religion, politics, and indeed medical evidence. So the court opted to focus on viability. Viability according to the court dealt with a fetus’ ability to survive outside of the womb. I have seen nothing offered by the S.D. legislature that would force the court to change its framework of analysis. The court relies on viability to measure the rights of the mother and those of the fetus. Once the fetus becomes viable, the court stated that the state then would have a compelling state interest in proscribing the privacy rights of the mother. This reasoning will not change.
Personally, I wish the court would overturn Roe. So many define their politics based solely on Roe. If Roe was gone, then what would they do? People would then have to address the issues. Moreover, if Roe is overturned then the Court would necessarily have to reevaluate the death penalty.
Comment by Antonio — 03.07.06 @ 11:54 pm
The SD challenge will do more harm then good.
With Ginsberg and Stevens about to retire allowing for two more Bush appointments, and elections in months, we needed patience.
Now…
The money will pour in, the radical base is engergized…
And worse…
A more damaging decision could pass 5-4 to reinforce Roe.v.Wade.
Comment by DANEgerus — 03.07.06 @ 11:55 pm
Submitted for Your Approval
First off… any spambots reading this should immediately go here, here, here, and here. Die spambots, die! And now… here are all the links submitted by members of the Watcher’s Council for this week’s vote. Council li…
Trackback by Watcher of Weasels — 03.07.06 @ 11:55 pm
Bonnie (#70) writes:
If someone was pro-life, why in the world would they call themselves pro-choice?
I’m not sure I understand your point, but a person can be both pro-life and pro-choice.
Let me give an analogy. A person can believe and worship in the Catholic Church AND believe that everybody has the right to be whatever religion they want. So, that person is (a) pro-Catholic and (b) pro-religious freedom. No contradiction
Likewise, a person can be pro-choice and pro-life. They think women should have a right to choose, AND they hope that women would CHOOSE not to have an abortion. It’s not a contradiction.
Comment by Kman — 03.08.06 @ 12:01 am
The Immorality of the “Pro-Life†Movement
Those who advocate the extreme religious “pro-life†position regarding the sanctity of human life, i.e., those who want to ban virtually all abortions, prolong life regardless of the person’s condition (e.g., Terri Schiavo), and ban stem-cell research, turn to morality to justify their stance. Even the “pro-life†label carries a profound sense of righteousness; after all, how could “pro-life†be anything but good? However, under close inspection the “pro-life†position is no such thing; in fact, its logical conclusions are immoral.
According to the “pro-life†position, you and I are morally equivalent to a microscopic embryo in a Petri dish, or a person in a vegetative coma, simply because we share human DNA. Think about the implications of this position: it is worse to destroy an embryo that we can barely observe with the human eye than to torture or maim a living human being, the former being murder and the latter being a lesser crime according to the “pro-life†worldview. Interestingly, even the most ardent “pro-life†advocates don’t truly believe their own rhetoric and its perverse conclusions. For example, exceptions for abortion are usually made in cases where the woman’s life is in jeopardy. But wait a moment: if the embryo or fetus is 100% morally equivalent to a full human-being, isn’t it selfish for a mother to choose her life over the life of her child? A woman who ran out of a building during a fire in order to save her life, while leaving her child to die, would in most circles be considered a monster. For those extremists who believe that abortion should be outlawed even when a woman’s life is in danger, consider the “pro-life†message that sends: Attention women! Pregnancy may be a death sentence; approach at your own risk!
Stem-cell research is the arena where the illogic of the “pro-life†position is most evident. The embryos that scientists require for stem-cell research are microscopic. To put things in perspective, they are about 1/1000th the size of a fly’s brain. And yet the “pro-life†movement wants to impose on society the view that the rights of these microscopic cells trump the rights of the millions of living people who are suffering and dying from some of the world’s most debilitating diseases. Yet these same “pro-life†people sanction dubious medical research on primates who are highly sentient, and thus suffer immensely in medical labs throughout the country. This is human exceptionalism brought to a chilling conclusion; no cruelty inflicted on non-humans is ever considered worse than what is done to a few human cells under a microscope.
Ironically, “pro-lifers†criticize those who advocate animal rights based on the belief that the case for these rights is founded on purely biological notions of identity; in other words, that apes should be afforded similar rights to humans because they are nearly genetically equivalent. In truth, however, animal rights’ advocates base their claims on the fact that humans are much more than their biology, that what defines us is our ability to learn, to feel pain, our sense of identity, our social relationships, our complex emotions, and that the animals who share these traits (as well as most of our DNA) should be afforded greater protection under the law.
It is the “pro-life†movement which uses only crude biological arguments on which to base its moral claims: that because an embryo and a brain-dead coma patient share the same DNA as you or I, we are all morally equivalent. This is an almost complete denial of what it means to be human, and is such a low common denominator that it degrades our humanity. It is also poor science since there are large genetic differences even among humans. My DNA exists in my skin, which through technology will no doubt one day have the potential to form the building blocks of an entirely new human being, but that doesn’t make this sliver of biological mass a moral entity. It is my ability to think, feel, and my sense of identity which does.
“Pro-lifers†argue that anything but their extreme position eventually leads to moral relativisim, in which certain groups get to decide which “others†are actually human. While, no doubt, a morality that takes into account the full spectrum of consciousness, identity, and sentience must be approached with great care, and has the potential to lead to abuse, it ultimately rests on objective facts and science. Arguments that blacks, women, gays, or Jews are inferior have been forever relegated to the dustbin of disrepute and have no chance of resurfacing with significant force in a society dedicated to reason (unfortunately, they still thrive in circles where dogma and religion reign). But societies dedicated to reason and scientific progress will ultimately judge the extreme “pro-life†position harshly as well; it relies on purely reductionist genetic arguments that put the interests of human DNA, no matter what its form, over the interests of all other sentient life.
Comment by J.S. — 03.08.06 @ 12:07 am
Exactly what I don’t want. Try again. - Admin
Comment by Lindata — 03.08.06 @ 12:10 am
Contraceptives are readily available, both physical contraceptives and chemical contraceptives. We’re not talking about total abstinence here.
This is a dishonest argument. Contraceptives, although usually very reliable, CAN fail. Your argument is that if a woman chooses to have sex, she must be forced to “take the consequences” — which in your view means full-term pregnancy and childbirth. If that is your position, then a woman who chooses to have sex STILL has to take the consequence of pregnancy and childbirth if the contraceptive does fail. The only option, in your framing of the issue, for a woman who does not want a child, is to give up sex for the rest of her life.
She does not have that right in a vacuum. With it comes the responsibility to use her body responsibly. If she doesn’t want to “share†it, she should have sex responsibility.
If she doesn’t want to share it, then there’s no sex. I’m not sure what you’re trying to say here.
My point is that (a) a woman has an absolute right to decide whether and with whom she shares her body; and (b) a woman has an absolute right to make decisions for her own body for the purpose of safeguarding her own health, and abortion bans take away that right. There is no “with that right comes…” qualifier here. Women have the right to own their own bodies.
Amazing that the species has survived so long with so much danger to the health of females during gestation. Can you whip out some statistics concerning “destroyed†health as a result of pregnancies
I can’t “whip out” specific numbers without doing research, but I *can* tell you that pregnancy can trigger a number of serious health conditions and/or worsen preexisting ones. A partial list of major medical conditions that can become much more dangerous in pregnancy, or that can actually be caused by pregnancy, and/or that can continue even after childbirth, are: preeclampsia and the even more serious eclampsia, high blood pressure, hypertension, kidney disease, diabetes, major depression, trouble breathing (especially problematic for asthma sufferers), vision problems, headaches, and more. Some of these sound minor but can also be signals of more serious conditions (for example, headaches — especially when they feel new or different — can presage eclampsia. Also, some of these conditions, like high blood pressure or hypertension, are not simply health concerns in and of themselves, but also are risk factors for eclampsia; and urinary tract infections, which are quite common especially in the later stages of pregnancy, can potentially cause kidney damage.
Most women today who have access to quality medical care don’t experience serious or permanent health problems — but the point is that pregnancy is always a potentially life- or health-threatening event. Women have the right to choose, based on their own medical histories and their knowledge of themselves, whether they will assume such risks.
The species has survived so long despite these very real dangers of pregnancy because, up until quite relatively recently, women had many more pregnancies than they have now — so even though death in childbirth was a routine part of life for centuries, there were enough live births for the species to continue.
The smart man who doesn’t want to support a child or children _definitely_ uses protection - or he’s a fool.
Yes, but again, the point is that protection doesn’t guarantee a woman will not become pregnant. Therefore, if a man does not want to support a child or children, he should not be having sex.
Comment by Kathy — 03.08.06 @ 12:11 am
Does An Embryo Have An Independent Right To Life
UPDATE II: Meanwhile, back at the ranch the battle lines between the elected representatives of the people and the the Supreme Court’s dictate have been drawn on the issue of Roe v Wade. It is clear that this battle will have to be fought at some poin…
Trackback by All Things Beautiful — 03.08.06 @ 12:50 am
Lores Rizkalla of ‘Just A Woman’ has an interesting piece on this subject posted at her blog today -
A Test of Civilization
http://www.justawoman.org/blog/2006/3/7/a-test-of-civilization.html
Comment by Tony Jivoin — 03.08.06 @ 12:57 am
“a constituional system…should gaurantee a woman the right to physical autonomy and privacy”
We don’t have the right to kill for sexual gratification.
We know that contraception is not 100% effective, yet choose to take that risk anyway.
We are weighing the Liberty of the Mother against the Life of another human. Civilized societies err on the side of caution when life is involved.
Comment by Fen — 03.08.06 @ 1:01 am
“If there’s an unwanted pregnancy, he doesn’t have a choice - he has the responsibility without the right.”
I’d like to also point out, if we treat the fetus as “property”, then I’d like to have some reproductive rights - it my DNA too!
Comment by Fen — 03.08.06 @ 1:06 am