Abortion Ban On
You've probably heard about the decision. Via Ann Friedman comes an apropos excerpt from Justice Ginsburg's dissent (PDF):
Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from “[s]evere depression and loss of esteem.” Because of women’'s fragile emotional state and because of the “bond of love the mother has for her child,” the Court worries, doctors may withhold information about the nature of the intact D&E procedure. The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.This way of thinking reflects ancient notions about women’s place in the family and under the Constitution— ideas that have long since been discredited.
This on late-term abortions was the predictable consequence of Bush's Supreme Court nominees getting confirmed since Justice Kennedy had already made it clear in Stenberg v. Carhart where he stood on this issue. What's less clear is to what extent Kennedy's Stenberg dissent prefigured a broader decision to step away from the Court's earlier reproductive freedom jurisprudence. I'll be looking forward to explanations from Jeffrey Rosen and Benjamin Wittes of why this turn of events is secretly good for reproductive rights.
UPDATE: Ann points out to me that this law bans all performances of the intact D&E procedure and has nothing to do with whether or not the abortion in question is late term.
Comments
I wonder if Bush could spell "shibboleth."
From the majority opinion:
While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.
No reliable data but it sounds good to us!
Who knew the job of the Supreme Court was to protect against (data-free, but potential) regret.
Now time for you lefties to start crying about the supreme caught closing up your infanticide loop whole by doing what they supposed to do: enforcing the constitution that you aspiring totalitarians hate so much.
Now time for you lefties to start crying about the supreme caught closing up your infanticide loop whole by doing what they supposed to do: enforcing the constitution that you aspiring totalitarians hate so much.
Um, the state has just taken away a right which used to exist. Lefties don't like it. You do. Who's the "aspiring totalitarian"? Do you even know what that means?
heh. wow. PHS is one dumb muthafukka.
1) Can someone explain to me why abortion is, apparently, a constitutional right?
2) Also, can someone explain to me why the law against partial-birth abortion is such a bad thing?
No I'm not trying to stir things up, these are honest questions. I am ignorant, educate me.
It's worth noting that federal legislation restricting partial birth abortion to cases where the woman's life is at stake (the law upheld by this Supreme Court decision) passed Congress by an overwhelming majority (about two thirds, if memory serves). The law, and the Supreme Court decision, are consistent with a broad American consensus on this issue. That's more than can be said about the original Roe v. Wade decision.
There is a silver lining here for Democrats though: it will give left-wing interest groups a prop to shill for more donations (and later, votes) using their typically hysterical claims (e.g., "reproductive rights are hanging by a thread" accompanied by a photo of a rope fraying to its last thread). Look for a full-page add of that sort in this Sunday's NY Times.
Of course those hysterical claims are specious. There is no broad consensus to restrict earlier-term abortions, so no legislation to do so will be passed.
Everyone who wants to read the blogtastic complaints of a lefty who can see that there is no serious case for the alleged constitutional protections on abortion and who is more or less opposed to abortions of the D+X variety, please visit Powers of the Earth.
The constitutional issue is over who controls your body. Is it the state? Conservatives say yes, the state controls your body. Liberals say no, that we have a right to privacy. What does the constitution say? Nothing direct, except that if we do in fact have a right to privacy, it is constitutionally protected. It is up to you to figure out if you have that right to privacy, or not.
1) Can someone explain to me why abortion is, apparently, a constitutional right?
The Ninth and 10th Amendments. Not one word of the constitution is a limitation on the rights of individuals (okay, I'm sure a few words are, but the point is, they're an exception to the rule); rather, they are limitations on the rights of the state, which is made explicit in the Ninth and 10th. Therefore, the government can't ban abortion unless the constitution specifically says so, which it doesn't. Some have argued that the Ninth and 10th would only make the question a state-by-state issue, but ever since the 14th Amendment, the strong trend has been towards making rights, rather than just procedural issues or something, common to all states.
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Some Conservatives think the victory is a pyrrhic victory
http://conservativetimes.org/?p=411
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I think this makes it even clearer that Roe v. Wade is on the way out...
And if Roe goes away, what's our backup plan for keeping abortion legal? Do we take it to the legislature? Fight state-by-state? Or build up popular resentment and wait until we have a chance to change the Supreme Court back to our side?
Matt - aren't you proud so many conservatives seem to be reading your blog?
To PHS et al,
The scary thing here is not that the SCOTUS upheld a law, it is that they admit that their reasoning is unsubstantiated. By presenting reasons why this is a good law they are Legislating From The Bench! Script Constructionists my ass!
Cyrus, I believe the 4th Amendment played the most important role in the Roe v. Wade decision. Privacy rights stem from the prohibition against unreasonable searches. It was ruled in Griswold v. Connecticut that the the state had no compelling interest to violate the privacy of family planning decisions by restricting access to birth control. It constituted an unreasonable intrusion. Roe simply applied the same logic to abortion.
Of course, if you believe an embryo is a citizen of the United States entitled to Constitutional rights, you're likely to disagree with that outcome, but it's interesting how few "right-to-lifers" really want to give any meaningful rights to those unwanted children other than the right to be born.
Why doesn't the imputed Constitutional right to "privacy" make suicide, drug abuse, or prostitution Constitutionally-protected actions? Those are all cases where the state limits what a woman can do with her body.
The law, and the Supreme Court decision, are consistent with a broad American consensus on this issue. - Dave
To the extent that it's true, it indicates the "broad American consensus" is not based on any moral reasoning but on "abortion is teh icky": under what moral system (other than Leon Kass') is it immmoral to undergo an, admittedly icky sounding, "partial birth abortion" when a woman's health is in danger (and the D&E alternative might have more health consequences) from the pregnancy while it's ok to have an early term abortion on a whim? If you are morally serious, you might not want to allow either case, you might want to allow both cases, you might allow the PBA but not the early term abortion case, but the American consensus makes no moral sense.
Not that laws should be based on morality per se (anyway, if people based laws on Judeo-Christian morality, they'd be banning blood sausage, not PBAs), but it's better to base laws on serious moral concerns than "abortion is teh icky". Of course (c.f. pundits on the Iraq war) where silly positions are considered to be the epitome of seriousness and serious ones the epitome of silliness, so what do you expect that Americans are so farchadat about abortion?
Anyway -- since when does "everyone want it" make for law? That's why we have a Constitution in the first place as opposed to being governed by the tyranny of the majority. And why are so-called conservatives being all "nanny-state" about protecting a pregnant woman's emotions by banning some abortion procedures?
Also, if D&X is considered to be too icky to be legal, then where does that leave the D&E procedure? Today Kennedy assures us that procedure won't be touched, but by the reasoning of the PBA ban, wouldn't a D&E ban also stand?
That some women regret having had abortions seems like such an obvious and mild observation, (Name a decision that never inspires regret in some fraction of the people making it!) that I have to wonder at the utterly disproportionate fury it seems to inspire. Do you really want to defend the proposition that no women, anywhere, ever comes to regret having had an abortion?
Still, I fail to see the relevance of this claim, however unexceptional it might be. Surely prohibiting a procedure which escapes being infanticide by only the most morally irrelevant of technicalities can not depend on the woman subsequently regretting having her baby killed; Why even bring it up?
The Ninth Amendment argument is incredibly weak, because it has no stopping point. You could make a better argument based on the Equal Protection Clause, but that has its problems as well.
There's no point in claiming that Roe wasn't a purely result-oriented decision. It was. You can either defend it as a straight-up legal realist, or not defend it.
It's worth noting that federal legislation restricting partial birth abortion to cases where the woman's life is at stake (the law upheld by this Supreme Court decision) passed Congress by an overwhelming majority (about two thirds, if memory serves). The law, and the Supreme Court decision, are consistent with a broad American consensus on this issue.
A two-thirds majority is indicative of a broad American consensus. Everyone's with me so far, right?
That's more than can be said about the original Roe v. Wade decision...
CNN/Opinion Research Corporation Poll. Jan. 19-21, 2007. N=1,008 adults nationwide. MoE ± 3.
"Would you like to see the Supreme Court overturn its 1973 Roe versus Wade decision concerning abortion, or not?"
Yes: 29%
No: 62%
Not sure: 9%
CNN/USA Today/Gallup Poll. Jan. 20-22, 2006. N=1,006 adults nationwide. MoE ± 3.
"Turning to abortion: Would you like to see the Supreme Court overturn its 1973 Roe versus Wade decision concerning abortion, or not?"
Yes: 25%
No: 66%
Not sure: 9%
So we can all accept that there's a "broad American consensus" in favor of preserving Roe v. Wade, and move on, right?
Korha: Here's the historical path we took to get here:
Meyer v. Nebraska: Nebraska tried to ban teaching of German in school. Supreme Court overturned the ban, holding that the notion of "liberty" as protected by the 14th amendment due process clause included a right to make some basic decisions about how your children are raised.
Griswold v. Connecticut: Connecticut banned oral contraceptives. Ban struck down under reasoning derived from Meyer. The right to make fundamental family decisions about how and when to raise a family is fundamental to liberty.
Roe v. Wade: Now we have a fundamental right to make decisions about childbirth and childrearing, established by previous case law. Of course, the state has a legitimate interest in protecting the life of children. The question is, when does the former right cease to function and when does the later take over. The court held that in the first trimester the right to make private family decisions was preeminent. After that, the state's interest began to assert itself, and the state can regulate to some degree.
The trimester framework has largely been abandoned in more recent decisions, but the basic notion of abortion regulation as existing in a space of tension between the 14th amendment right to make family decisions and the state's police power is current.
The constitutional basis for these decisions is, at least nominally, the 14th amendment clause which states that: "No State shall ... deprive any person of life, liberty, or property without due process of law."
Many people find that basis unsatisfying, not least because the due process clause usually protects the right to judicial process, and doesn't of itself provide substantive rights. I am pro-choice and in favor of a constitutional right to abortion as a policy matter, but I must admit that the grounding for the right in the 14th amendment is pretty fishy.*
If you find the 14th amendment an unsatisfying source for a right to make childrearing decisions, consider two other clauses that seem relevant, although the courts haven't pointed to them directly very often:
9th amendment, which provides that the rights articulated in the bill of rights don not preclude the existence of other rights retained by the people.
1st amendment establishment clause. Since in most of the right to privacy cases the laws challenged had pretty clear religious bases, the 1st amendment seems pretty relevant in this discussion.
As LaFollette said, the 4th amendment is also relevant, because it suggests some constitutional deference for a personal private sphere.
(this is what happens when I read blogs when I am supposed to be studying Con Law)
*Of course, the same thing can be said of a number of rights that are completely uncontroversial, like the first amendment rights against the states. The 1st amendment originally only constrained the federal government, but the courts have "incorporated" its protections into the 14th amendment due process clause. In fact, basically all the constitutional rights you have against the state, including search and seizure, cruel and unusual punishment, and so on, are technically derived from the 14th amendment.
"Surely prohibiting a procedure which escapes being infanticide by only the most morally irrelevant of technicalities can not depend on the woman subsequently regretting having her baby killed; Why even bring it up?"
I agree. Who cares if some women have regrets? This reminds me of another pet peeve: arguments about whether the fetus suffers pain. If you think abortion is murder, what difference does a little pain make? And, if pain is the sole criterion, I can gaurantee you that people often inflict a lot more pain when they kill animals (given the immature state of the fetus' nervous system).
I mean, if someone were to killing me, I think the fact that my life was ending would be a lot more important than the fact that my death happened to be accompanied by a little pain.
escapes being infanticide by only the most morally irrelevant of technicalities - Brett Ballmore
I'm with ya on "you can't make action X illegal simply because people will regret doing X" as indeed we all do things that we've regretted -- in the 1970s should government have banned wearing bell-bottoms?
However, do you really think that the difference between D&X and infanticide is morally irrelevent? I wonder what so-called pro-lifers really think of women and doctors that they think women and their doctors are thinking "well I could deliver this baby live and then have it adopted, but I hates kidz I tells ya ... so I'm gonna kill me that fetus before it's delivered so's I don't have to kills it afterwards and thus get charged with infanticide"?
If the situation was that it was no more harm to the woman to deliver the fetus -- and that baby would be alive and kicking (so that killing it would be infanticide if the fetus were delivered at that point) -- then the distinction would be a morally irrelevent technicality, but in that case why wouldn't the woman/doctor deliver? Because they's evil? And if they are so evil, should that woman really be allowed to have that kid? If we're accepting the government can be paternalistic enough to ban abortion, shouldn't it be paternalistic enough to allow abortion 'cause the mother-to-be is evil?
Come-on people, women aren't getting late-term abortions for kicks and giggles (and why do you think they are?) ... and if we're talking technicalities and morality, how is it morally better than a woman have her fetus (killed and then) ripped apart in a(n allowed) D&E than to have the safer D&X procedure done?
Sounds to me like those who are behind this consensus against so-called PBAs are either not thinking about their position (in which case why should the court uphold the consensus?) or they really think "wimins are teh evil". So what's up here?
Thanks for the above comments, especially Leo's (I for one am glad you are reading blogs instead of doing work).
Leo, under your reading, was the Supreme Court correct in upholding the consitutionality of the partial-birth abortion law, since it applies to cases beyond the first trimester?
Why doesn't the imputed Constitutional right to "privacy" make suicide, drug abuse, or prostitution Constitutionally-protected actions? Those are all cases where the state limits what a woman can do with her body.
There are reasonable grounds to ban prostitution as a public health risk with no redeeming value as a personal choice. The same goes for the unregulated sale of dangerous drugs. By contrast, family planning has redeeming value and the public health argument cuts AGAINST a ban on medical abortions, because improperly performed abortions leading to illness and death were a problem in the United States before 1973.
I personally think it's a serious error for the Courts to uphold laws against growing marijuana in small quantities for personal use, or to prevent terminally ill individuals from choosing to die peacefully. Privacy rights are, unfortunately, a very inconsistently-applied area of the law.
Also there is a huge difference (although not one, AFAIK, addressed yet by the courts) between prohibiting abortion and prohibiting use of certain drugs -- in prohibiting the use of certain drugs you merely prohibit people from doing something bad to their bodies (which also might have negative public health consequences). In the case of abortion, you are requiring that people remain pregnant: i.e. you are mandating that one person's body be used for the benefit of another (not even a person, IMHO) -- isn't this tantamount to slavery and banned by the 13th Amendment?
If Congress were to pass a law mandating kidney donations, would SCOTUS let it fly? Well, abortion bans are wrong for the same reason, nu?
rights that are completely uncontroversial, like the first amendment rights against the states.
Actually this is quite controversial in right-wing circles, in which some think states should be allowed to establish religions.
Kennedy is a fucking coward. The other four are simply judicial hacks, but Kennedy appears to require a criminalised doctor or a maimed woman to file suit.
Of course, the real intent behind the bill was to intimidate doctors out of the business of performing all surgical abortions, because of the risks of a D&E becoming a D&X. I'd like to know how this affects medical liability insurance.
Ginsberg's dissent is righteous, not least for what it implies about Kennedy since the Casey decision, and for what the new boys have done to the Court. She doesn't mince words about the amount of bullshit that the (GOPper) Congress served up as law.
Women who have abortions come to regret their choices, and consequently suffer from “[s]evere depression and loss of esteem.”
An easy supposition to make when as good conservatives are want to do, the majority completely discounts and negates the health aspects of why some women out of medical necessity prematurely end their pregnancies.
Why doesn't the imputed Constitutional right to "privacy" make suicide, drug abuse, or prostitution Constitutionally-protected actions? Those are all cases where the state limits what a woman can do with her body.
Technically, no. Those are situations where the state limits what a person can do with his or her body. Given that pregnancy is a condition affecting only women, laws regarding pregnancy do not affect all citizens. They affect only women who are or may become pregnant.
Furthermore, it's ridiculous to compare abortion to drug use, prostitution, or suicide. Drug use creates a medical condition and makes you a junkie. Having an abortion, on the other hand, ends a medical condition--pregnancy--and makes a woman...normal. One can arguably compare sex to drug use, but one cannot compare abortion to drug use.
This is because being NOT pregnant is, in fact, the normal state of being for the human female. It's the default setting. The question in point is whether and when the state has a right to deny a pregnant woman the right to return to the safer, healthier state of non-pregnancy. Historically, the state has used its right to legislate in the interest of the fetus to support various restrictions on abortion. Unfortunately, the state's interest in the fetus has often been used as a stalking horse for restrictions on women's personal autonomy that have no analogue for men. This is because of an unfortunate historical bias against women in our laws, one which frequently denied them from certain rights of autonomy that were legally protected for men.
It may shock some of you to hear this, but the game has for years been rigged against women. Still is.
Das:
"To the extent that it's true, it indicates the "broad American consensus" is not based on any moral reasoning but on "abortion is teh icky": under what moral system (other than Leon Kass') is it immmoral to undergo an, admittedly icky sounding, "partial birth abortion" when a woman's health is in danger (and the D&E alternative might have more health consequences) from the pregnancy while it's ok to have an early term abortion on a whim?"
I wasn't making a moral argument, just pointing out that this Supreme Court decision backs up a law that was passed with broad Congressional support, and that mirrors the fairly broad popular consensus on this part of the abortion issue. But since you bring morality up, some ethicists have made plausible moral arguments for limiting abortion somewhere between the extremes of conception and birth, rather than banning it entirely or allowing it in all instances. Do a little research online if you are interested and you will find these essays, or pick up an essay collection from an introductory college ethics class and you will probably find them. That's where I did. I can't reproduce the arguments verbatim here, but suffice it to say they didn't involve the word "icky".
You bring to mind a more interesting issue (in my opinion), the quote above, when you mention the word "health". The only reason the partial birth abortion ban didn't include an exception for risk to the woman's health (as opposed to her life) is because of the way the word "health" in Roe v. Wade was hollowed out (by a subsequent Supreme Court decision) to essentially allow abortion-on-demand.
Steve:
I should have been more precise. I wasn't commenting on the popularity of preserving Roe v. Wade now -- there is both a broad consensus for preserving the right to abortion and for limiting partial birth abortion. The point I meant to make was that the way the limits on partial birth initially became law (through broadly-supported legislation) was more democratic than the way abortion became legal nationally (through the Roe v. Wade Supreme Court decision).
Adding, while every state has mandated a parent's responsibility to provide materially for their child, there is to my knowledge not ONE state that has ever violated the sanctity of a parent's body by demanding they provide body parts or products to their child.
As far as I can tell no state has ever mandated that a father donate his kidney of liver or even blood to a sick child, even if this was the difference between life and death.
I point this out because it seems we as a society are only willing to legally mandate that WOMEN sacrifice their health for their children. Men, on the other hand, are free from such an imposition. Men are widely assumed to have inalienable rights to autonomy over their body, while women are not.
Technically, no. Those are situations where the state limits what a person can do with his or her body. Given that pregnancy is a condition affecting only women, laws regarding pregnancy do not affect all citizens. They affect only women who are or may become pregnant.
Which is precisely why abortion rights should have been protected principally on equal protection grounds. However, at the time of Roe, we were in the middle of a substantive due process boom, and applying the equal protection clause to women was a still a radical concept.
Do you really want to defend the proposition that no women, anywhere, ever comes to regret having had an abortion?
No. I want to the defend the proposition that the Surpeme Court should not be in the business of deciding the Constitutionality, or lack thereof, in whole or in part, of a statute, based on that possibility (which the Court conceded is not backed up by any data) that some women, somewhere, might come to regret having an abortion. That has no bearing, (and obviously no handy statistical bearing), on the case of the individual pregnant woman facing a private, medical decision.
Some people regret having kids. People regret lots of things. And people live with all kinds of regret. It's part of life - and it should not be part of this opinion - especially absent any data.
"That has no bearing, (and obviously no handy statistical bearing), on the case of the individual pregnant woman facing a private, medical decision."
Too true. But a medical decision which involves killing somebody else can scarcely be described as private.
But a medical decision which involves killing somebody else can scarcely be described as private.
It's true that the fetus does not get a vote, but many are of the view that there is not much more private than woman's control over her reproductive organs/health.
But a medical decision which involves killing somebody else can scarcely be described as private.
Wow, another male "libertarian" who thinks the rights of zygotes, embryos, and fetuses trump those of the mere incubator they occupy.
Of course, if you somehow find a way to attribute some degree of personhood to the woman, how hard will you push for the death penalty for women who obtain abortions, Mr. Bellmore?
But a medical decision which involves killing somebody else can scarcely be described as private. - Brett Bellmore
But
(1) do feti count as "somebody else" for legal purposes? if so, then if a woman is prone to miscarry, can she be arrested if she gets pregnant, after all, she's recklessly endangering her fetus (she knows she has a good chance of miscarrying, leading to a loss of life -- yet she gets pregnant anyway)? if a miscarriage seems like it may have been an abortion, should it be investigated by the police? if you really believe feti are "people" under the law, per force, you'll answer 'yes' -- but is that what you really want? do you want to arrest women who have the misfortune of miscarrying? IMHO, it's rather frightening to consider feti as people ...
(2) even if fetuses are people, does a person have a "right to life" when such life depends on the organs of another person? E.g. can the law, as asked above, mandate a father give up a kidney in order to preserve the life of his child? So how can the law mandate that a woman give up the function of her reproductive system (e.g. a so-called PBA is more likely, IIRC, to preserve fertility than other kinds of abortions) and her kidneys (suppose the pregnancy is leading to kidney failure and must be terminated immediately to prevent such a failure)?
Korha: The trimester framework was abandoned a while ago. The courts now decide based on a more free-floating balancing of the competing interests. I don't consider myself informed enough about partial birth abortion or the laws banning it to say whether the decision was right or wrong.
I will say that when decisions divide on a 5-4 basis in this court I usually agree with the side that doesn't include Scalia.
DAS:
"do feti count as "somebody else" for legal purposes?"
Not sure if that is the correct plural form for "fetus" but, in answer to your question, they do count as "someone else" for at least one purpose. When a fetus is killed along with a pregnant woman, the murderer is charged with two murders, not one (e.g., Scott Peterson).
When a fetus is killed along with a pregnant woman, the murderer is charged with two murders, not one (e.g., Scott Peterson). - Fred
Actually, this strikes me as odd ... not just because of my pro-choice political commitments, but also because it contradicts the Bible from which many pro-lifers claim to gain so much guidance (sorry, I can't get the chapter and verses right now):
In the case where a pregnant woman intervenes in a fight and one of the combatants accidently hits her and causes her to miscarry, the case is pointedly not considered one of homocide or even wrongful death, but one of injury (to the woman) and property damage. From a Biblical/Talmudic perspective, one who murders a pregnant woman is only guilty of a single murder, but it may be considered an aggravating circumstance leading to a more severe punishment.
Not that we should be legislating Biblical law, but it is odd how so many would-be theocrats, well, ignore the Bible.
if a miscarriage seems like it may have been an abortion, should it be investigated by the police? if you really believe feti are "people" under the law, per force, you'll answer 'yes' -- but is that what you really want? do you want to arrest women who have the misfortune of miscarrying?
Some state recently considered or enacted (I forget which state and whether it passed or not) legislation that would have required any woman who miscarried to report the miscarriage to the police.
This is because being NOT pregnant is, in fact, the normal state of being for the human female. It's the default setting.
Not exactly: For most of human history, before lowered infant mortality rates and birth control, most women did spend most of their reproductive years either pregnant or nursing. Obviously, this works less well with lower infant mortality rates, and places serious limitations on women's ability to do anything else, but it appears to be the situation to which some conservatives wish to return.
"Wow, another male "libertarian" who thinks the rights of zygotes, embryos, and fetuses trump those of the mere incubator they occupy."
Another libertarian who thinks that the right of a viable infant to live trumps the woman's mere convenience, and so a woman can't have a right to abortion under all conceivable circumstances, though she clearly does under most.
"Pro-life" libertarians are a minority, but not a tiny minority.
Another libertarian who thinks that the right of a viable infant to live trumps the woman's mere convenience, and so a woman can't have a right to abortion under all conceivable [pun intended?] circumstances, though she clearly does under most. - Brett Ballmore
However, what's banned is not abortion under certain circumstances, but a certain kind of abortion operation that is less risky to the woman than the operation that is not banned. What happens if a pregnancy is threatening a woman's health in an undebatable fashion and forcing a premature delivery (at a stage when the fetus is borderline viable and likely to die at birth) will cause further damage to the woman's health (if you cannot understand why it would be less damaging to deliver a live fetus, where you are trying not to harm the fetus, than to deliver a fetus in parts -- well, let me just say I wouldn't trust you to ship large fragile items 'cause you wouldn't understand that you can't shove such an item into a postal box without smushing it)? Should she be required to continue to carry the fetus (so the fetus is more likely to survive) in spite of her health risks? Should she only be allowed an operation with a greater likelihood of complications because it's harder to demonize this operation without grossing out the people you are trying to get onto your side?
Anyway, since when do even we who are already born have such an unlimitted right to life? What if I, kaynenhora, need a kidney and my mother is the best match? Supposing it would merely be an inconvenience for her to give up a kidney. Does my right to life trump her mere convenience? Under certain moral systems it certainly does, but I'd hardly call anyone who feels the state has the power to coercively enforce my right to life under such a circumstance a "libertarian". So why should abortion be any different? Because the elfin features of a 30 week old fetus are a lot cuter than I am?
DAS:
"(if you cannot understand why it would be less damaging to deliver a live fetus, where you are trying not to harm the fetus, than to deliver a fetus in parts..."
You may want to read up on what a partial-birth abortion is (the medical-sounding term is "intact dilation and extraction"). The fetus isn't "delivered in parts"; delivery is induced and when the fetus's head appears it is punctured with a sharp object, and then the contents of its skull are sucked out. This has the effect of both killing the fetus and shrinking its head to make for a quicker delivery.
You may choose to make your moral and political stand on this ground, if you wish, but at least learn the lay of the land first.
The fetus isn't "delivered in parts"; delivery is induced and when the fetus's head appears it is punctured with a sharp object, and then the contents of its skull are sucked out. This has the effect of both killing the fetus and shrinking its head to make for a quicker delivery. - Fred
Sorry for the wrong choice of word -- "delivered in parts" is how the procedure that's not outlawed works. The banned procedure is as you describe -- but it's still the same net effect: it's easier to deliver the fetus smushed than alive. And if you deliver it intact (but smushed), you don't have to worry about the parts getting lost or hurting your patient.
I still wonder why people seem to think women are having this sort of procedure done, when it's done at a stage where the fetus would be viable (even with only a slight possibility of being viable for long) for kicks and giggles. If the fetus could be delivered without sucking its brains out, you'd think they'd be sucking the brains of the fetus out? Do you think women and their doctors are truly evil?
LaFollette Progressive,
Of course, if you believe an embryo is a citizen of the United States entitled to Constitutional rights, you're likely to disagree with that outcome,
You don't have to believe that an embryo is a citizen of the US to be pro-life. I don't think most pro-lifers hold this view. You simply have to believe that an embryo is a human life deserving of legal protection. It's not legal to kill an illegal immigrant after all.
but it's interesting how few "right-to-lifers" really want to give any meaningful rights to those unwanted children other than the right to be born.
How is that interesting? What do you mean by meaningful rights? What doe you know of the efforts by pro-lifers to help un-wed mothers and to facilitate adoptions in instances when a child is truly unwanted? Do you really have any first hand knowledge of the pro-life community or do you just prefer to cast ungrounded aspersions?
I seriously doubt more than a vanishingly small number of women would have a late term abortion for "kicks and giggles", though I'm sufficiently familiar with the variety of human motivation that I wouldn't venture to say the number is actually zero.
On the other hand, I'd venture to say that a not insignificant number of women would be willing to abort a viable infant based purely on their desire not to be a mother. That's not "kicks and giggles", but it's also not sufficient reason to kill somebody.
On the other hand, I'd venture to say that a not insignificant number of women would be willing to abort a viable infant based purely on their desire not to be a mother.
Okay, but they can still abort it, they just have to use one medical procedure rather than another. What's the point?
Another libertarian who thinks that the right of a viable infant to live trumps the woman's mere convenience, and so a woman can't have a right to abortion under all conceivable circumstances, though she clearly does under most.
In general, the kinds of restrictions that anti-abortionists push, and that this ruling will further enable, determine who can get an abortion based on whether their circumstances allow them to deal with waiting periods, travel to another city or state if there is no local provider, etc., etc., etc. How any of these hurdles, or whether a woman faces major health risks from D&E, serves to limit abortions to those who "deserve" them rather than those who are getting them for convenience (as opposed to those who are white and wealthy rather than those who are not) I would be interested to hear.
On the other hand, I'd venture to say that a not insignificant number of women would be willing to abort a viable infant based purely on their desire not to be a mother. - Brett Bellmore
But there is a reason that these women are not, for example, carrying the fetus to term and then giving the baby up for adoption, nu?
There shouldn't be such arguments over this birth control issue. I'm not saying abortion is right, but women should have right to make their own choices.
What is more important is what can we do for our future generations?
$12 billion can provide education for every kid on earth; $15 billion can provide access to water and sanitation; and it only cost $19 billion to end global poverty, according to The Borgen Project. Comparing to the $522 billion U.S. military budget and $340 billion for Iraq War thus far, these annual costs of improving the world is very little.
Unfortunately, our political leader is not making a commitment to the U.N.’s Millennium Development Goals to end global poverty. It is really not so hard if we are truly willing to make a change and bring peace to the world not by military solution but by humanitarian aid.
Mark Adams-
You don't have to believe that an embryo is a citizen of the US to be pro-life. I don't think most pro-lifers hold this view. You simply have to believe that an embryo is a human life deserving of legal protection. It's not legal to kill an illegal immigrant after all.
We were discussing Constitutional law, were we not? One can "be pro-life" without believing that embryos are entitled to all the rights of citizenship. But the Supreme Court has ruled that women have the Constitutional right to make reproductive decisions for themselves. For the state to force a woman to carry an unwanted child to term against her will, you need to believe that the unborn's right to life outweighs the mother's rights. The Roe and Casey decisions attempted to balance those rights and weighed in on the side of the mother except in the later stages of pregnancy when the child can potentially survive outside the womb.
Illegal immigrants don't generally incubate inside a human body for nine months. Apples, meet oranges.
I'm aware that some abortion opponents are deeply committed to facilitating adoption and helping pregnant women in need. I commend them. But in my experience, such pro-lifers are vastly outnumbered by people who simply oppose abortion and put very little additional thought or energy into the subject.
Predictably, Brett's opinion is trolling bullshit. States already can and do regulate late-term abortions. Late-term abortions are generally illegal unless the consequences are dire. This is a dramatic expansion of federal power into what has historically been a state perogative, which puts paid to any claims by Brett to be a libertarian. Worse than that, the law did not ban late-term abortions -- it banned a particular medical procedure, one that can be used before the last trimester.
What are the consequences? Now, if a woman has a fetus die in her womb in the second or third trimesters, doctors now have to either induce delivery or use a tool to cut the fetus up into pieces inside the womb so that they can extract them. Quite the triumph for liberty that Brett is standing up for.
We were discussing Constitutional law, were we not?
I don't think you understand my point which is a simple one: You don't have to believe that a fetus is a citizen of the US to believe that it deserves legal protection. My illegal immigrant comment was only used to illustrate that believing a human life is entitled to protection does not mean one is logically obligated to confer citizenship on that life. You seemed to imply -- I guess I misread -- that a pro-life position requires conferring citizenship on embryos.
"What's the point?"
It's a start, that's the point. Partial birth abortion is practically a textbook reducto of the 'right' to abort, infanticide in all but name, and blatently so. Now that the Court has confronted the naked face of what the right to abort post viability really consitutes, and blinked, the way is open for it to recognize the same evil in more veiled form, and permit regulation of other abortion procedures post-viability.
"But there is a reason that these women are not, for example, carrying the fetus to term and then giving the baby up for adoption, nu?"
Even when a child is adobpted out, the birth mother is still a "mother" in a sense some women, in some cases, find objectionable.
I think I finally understand what trolling means: disagreeing with the majority opinion of the echo chamber. Interesting.
Partial birth abortion is practically a textbook reducto of the 'right' to abort, infanticide in all but name, and blatently so.
Yeah, it's just like infanticide, aside from the fact that the fetus is usually 20-22 weeks old and has zero chance to survive outside the womb. Your entire "infanticide" argument proceeds from the assumption that when a doctor takes a fetus that is MONTHS away from being born naturally, and partially yanks it into the birth canal in order to kill it, that's 99.9% just like birth! It's a ridiculous argument. You've been completely brainwashed by the "partial-birth" framing. A 20-week old fetus months away from being born doesn't suddenly become a "baby 5 minutes from birth" just because of which abortion procedure you choose.
This is a dramatic expansion of federal power into what has historically been a state perogative, which puts paid to any claims by Brett to be a libertarian.
I'm pretty sure a federalist is something different from a libertarian.
Now, if a woman has a fetus die in her womb in the second or third trimesters, doctors now have to either induce delivery or use a tool to cut the fetus up into pieces inside the womb so that they can extract them.
I'm pretty sure you're just making this up.
I'd love to hear some comments from our Dem "leaders" who supported Alito and Roberts' confirmations on this issue. They're the ones who put these knucleheads up there.
Steve, I keep saying "viable", and people keep ignoring it. I've got no beef with abortions prior to viablity, or even where live birth is substantially more risky to the mother than an abortion. Even if in that latter case somebody is being killed, it falls under a reasonable interpretation of "self defense".
But there's a signficant faction in the pro-choice movement, a controling fraction, who want women to have a completely unfettered choice of whether to abort, under all circumstances. They're just a hair's breadth away from Singer. Privately, maybe not that far.
But there's a signficant faction in the pro-choice movement, a controling fraction, who want women to have a completely unfettered choice of whether to abort, under all circumstances.
Well, there's a significant faction, not just in the pro-life movement but in the overall conservative movement, who want abortions to be banned altogether, and don't want 5-day old blastocysts to be used for medical research even if they're going to be discarded anyway. That's the controlling faction on the other side.
The reason why pro-choicers fight, not just over the basic right but over extreme cases like partial-birth abortion, is because it's unabashedly part of an incremental strategy to eliminate abortion rights altogether. Today's decision, standing alone, will not kill anyone and will have very little significance. But as a step towards overturning Roe v. Wade, it's very significant. That's what the opposition is about.
Here's the thing. If we ever had a legislative compromise along the lines of your personal views - no restrictions pre-viability, very very very rare post-viability and only to avoid a substantial risk to life - you would see very little interest from the pro-choice movement in expanding abortion rights beyond that. Yet that compromise would be utterly unacceptable to the pro-life movement. There is not a chance they would not continue fighting just as strongly to eliminate the right altogether. They might not have the support of reasonable guys like yourself in so doing, but they would not lose one iota of steam.
The pro-choice movement knows this, which is why they fight to keep Roe v. Wade and to keep it as strong as possible. The possibility of reasonable compromise is not on the table.
Steve, what you fail to take into account is that the pro-life movement is swelled beyond all reason by the reaction against the courts' fiat imposition of a pro-choice regime that's far beyond the public consensus. Everyone who genuinely wants ANY meaningful regulation of abortion winds up in the pro-life camp because of this judicial regime.
The threat to the pro-choice movement is that, when that dike of judicial protection fails, the pro-life movement could sweep to a victory far in excess of what public opinion justifies, before they shed enough members to lose their clout.
OTOH, if the pro-choice movement strikes while you've still got some backing from the courts, you can establish a compromise more to YOUR liking. There are a wide range of end states that could be consistant with existing public opinion, if they were established before the courts released their death grip on policy in this area.
But you can't do that because your leaders genuinely are extremeists. So I suspect that when the courts finally let democracy function in this area again, it's going to result in a policy a lot more hostile to abortion than anything *I* would like.
"The possibility of reasonable compromise is not on the table."
I have no interest in discussing abortion, abortion law, or abortion politics anymore. I have long had little interest in talking to Republicans, or even about Republicans.
Bayh, Byrd, Carper, Conrad, Dorgan, Johnson (SD), Leahy, Lincoln, Ben Nelson, and Reid. ...these people are the reason this decision came down. And other names. They are the enemy of women, who will continue to live in pain and fear.
Every women must live her life in fear. It must stop, by whatever means suffucient and necessary.
Politics has failed women. No compromises, no concessions, no deals, zero tolerance. Let us all go Leninist on the fuckers.
And Lord, no gun control. Bellmore I'm sure has an arsenal. We are going to need a lot of guns.
35 years ago I drove a woman 1500 miles, as a favor for a friend. And for 35 years I have been watching and waiting for this to come down, for women to be put back in their place as a little less than human. 35 years of listening to people say:"Hey, they're family, ftiends, colleagues. We disagree, but they aren't that bad." They are that bad.
Is it going to be fifty more years?
This was a despicable decision by Kennedy, and Ginsburg wrote an adequate dissent. This was patronising and patriarchal. This was Dred Scott bad, or worse. Yet it will stand.
We live in a patriarchy, and we need a revolution. No metaphor, no hyperbole.
Brett: Cynthia Gorney's article goes into detail about the absolutist dynamics on both sides:
Both sides think they have everything to lose.
Everyone who genuinely wants ANY meaningful regulation of abortion winds up in the pro-life camp because of this judicial regime.
Well, tough shit: how about they set up a tent in the 'it's none of my fucking business' camp?
But you can't do that because your leaders genuinely are extremeists.
Which "leaders" did you have in mind? Democrats in Congress, who are so eager to preserve the regime of "abortion on demand" that they didn't even bother to filibuster Justice Alito? Or maybe you have in mind interest groups like NARAL, who are so extreme that they didn't even bother to SCORE the cloture vote on Alito as part of their pro-choice scorecard, and supported Senators like Chafee (who would have preserved a Republican majority!) and Lieberman against opponents who were clearly better on the choice issue? Are these the "extremist leaders" you have in mind, as opposed to people like Jerry Falwell, who actually gets a call from the White House to solicit his input on Supreme Court nominations?
No one is part of the "pro-life movement," let alone a leader of it, who simply opposes judicial intervention in the issue and doesn't care how the issue turns out in the legislatures. Support in the opinion polls for overturning Roe v. Wade (25-30%) lags consistently BEHIND other indicators, such as self-identifying as pro-life. Roe v. Wade has been a useful tool to rally people who already oppose abortion to an even higher degree of frenzy, but there's absolutely no support for the proposition that there are legions of outraged moderates who simply identify as pro-life because they want to see the Supreme Court butt out of the issue.
Brett's post beginning with:
"Steve, what you fail to take into account is that the pro-life movement is swelled beyond all reason by the reaction against the courts' fiat imposition of a pro-choice regime that's far beyond the public consensus. Everyone who genuinely wants ANY meaningful regulation of abortion winds up in the pro-life camp because of this judicial regime..."
Is spot-on. You folks should listen to him. There are a lot of who have moderate views on abortion (i.e., that it should be legal but regulated in some way) who are totally turned off by the radical pro-choice crowd for whom nothing is out of bounds.
I keep saying "viable", and people keep ignoring it. I've got no beef with abortions prior to viablity, or even where live birth is substantially more risky to the mother than an abortion. - Brett B.
I'm not Steve. Never have been named Steve. But I'll respond anyway.
(1) Viability: the law in question makes no distinction or not about viability -- it bans a particular procedure of particular use after viability, but used also before viability
(2) A live birth is always going to be substantially more risky than an abortion -- it's much easier to force a pomelo sized [noun] through a hole the size of a small lemon if you don't care that the pomelo comes out smashed.
Again I ask, if it's no more burdon to just deliver the viable fetus than abort it, why are women aborting? OTOH, if it is such a burdon, how can the state compel women to undergo said burdon? The state, e.g., cannot compel you to donate your kidney or even your blood ... why can it compel you to lend out, so to speak, your uterus (and also your blood)?
Ask yourself why would "some women, in some cases" find being "still a 'mother'" to be "objectionable" "in some sense"? Because they are baby hating sluts who wanna have sex and not "pay the price of pregnancy"? Or are women choosing to abort for good reasons? And who gets to decide what's a good reason? As the pro-choice bumper sticker went -- "if you don't trust me with a choice, how can you trust me with a child?"
As to the whole "our extreme views are driving away moderates" -- what's extreme about our views? If you don't want an abortion, don't have one. Our position is moderate. People who've convinced themselves that whenever there are two opposing views, the truth always lies exactly between those two views and relativistically define "moderation" thus, e.g. the punditocracy as well as many "real 'murkins", are being dangerously silly. We aren't driving people into the pro-life camp; the degraded nature of so-called mainstream discourse is stupidifying people to the point where they can't tell what a moderate position even is.
the pro-life movement is swelled beyond all reason by the reaction against the courts' fiat imposition of a pro-choice regime that's far beyond the public consensus.
BTW ... this is silly, actually. I thought you were a libertarian, Brett. At some points the public consensus has been for massive government projects. Should the courts have allowed the New Deal NRA because it was what was within the public consensus?
The courts have imposed by fiat many regimes far beyond the public consensus -- school integration, interracial marriage, etc. Were the courts wrong because they went far beyond the public consensus? Isn't one of the functions of the courts -- to put a check on the tyranny of the majority by requiring laws square with the Constitution?
And as to
Everyone who genuinely wants ANY meaningful regulation of abortion winds up in the pro-life camp because of this judicial regime.
define meaningful regulation? You might be shocked to know that many, if not most pro-choicers, are in favor of regulating abortion: remember the motto of many of us is that abortion should be "safe, legal [and the controversial, which controversy might, admittedly turn some people off] rare" -- we support regulations to keep abortion safe.
What kind of market is the least regulated market? An illegal market. Like with illicit drugs, which may be tainted with poison or what have you, back-alley abortions are unregulated and unsafe.
Also, many states have many regulations on the books restricting access to late term abortions, and only some of the most severe laws are actively being fought by pro-choicers ... so it's not exactly the case that angry mobs of pro-choicers are forcing judges to rescind every abortion law and sensible moderate people are joining the pro-life people out of disgust (which emotion is oh-so-rational anyway).
The pro-life position is an extreme position that has managed to convince people it ain't any more extreme than the pro-choice position, so the majority of people, who live by "the truth is somewhere in the middle" (a decent enough saying in general, but oy is it so morally relativistic ... isn't it amazing how much support what otherwise would be reactionary positions, held by people who ostensibly decry moral relativism -- although they subtly appeal to it as well -- get due to the moral relativism of the populace?), calibrate their beliefs to be exactly between "no abortions at all" and "let's allow abortions".
Also, how many people find themselves in the pro-choice camp because of pro-life absolutism? I know some people who do. OTOH, seems to me the pro-lifers I know are pro-life either because of a specific religious commitment (which religious commitment is not shared by the majority of Americans and anyway should provide no basis for laws in our secular state) or because they don't realize what the goals of many in the pro-life movement actually are. By position most people are pro-choice ... they just have these strawmen views of the abortion debate, and hence are unwilling to support "pro-abortion" causes ...
Brett Bellmore is quite the fascist philosopher.
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