About That Constitution
I have to say that I think one of the most surprising bits of conventional wisdom to emerge over the years has been the squishy middle's sense that abortion should be generally legal, but that legal decisions holding that there is a constitutional right to securing this outcome are constitutionally dodgy. I'm no constitutional lawyer, but this strikes me as a pretty clear-cut issue.
The fetus either is or isn't a "legal person" under the 14th amendment. If it is, then clearly abortion bans are not only constitutionally permissable, but constitutionally mandatory. If it isn't, however, then what's the basis for the state regulating conduct that takes place entirely inside the body of a rights-bearing citizen? It would need to be a mother-regarding health-and-safety regulation of some sort which, in the nature of things, is going to leave abortions generally legal as long as they're being performed in a way that's unlikely to seriously injure the mother.
A lot of people want to say that Roe and/or Casey are legally dodgy without leaping all the way to the other conclusion that there should be a constitutional prohibition on abortion. The primary motive for this, I think, is that people find it odd that such a controversial issue as abortion rights should be decided primarily by the courts. They also feel, intuitively, that it's weird to leap so suddenly from one stance to another. I tend to agree that this is odd. The oddness, however, is right at the heart of the institution of judicial review as practiced in the United States. I'm of the opinion that this institution isn't a great idea and that many other countries have found more satisfactory institutional mechanisms for the relationship between courts and legislatures. There's no question, however, that strong judicial review is the system we actually have and reproductive freedom advocates have every reason to press our case vigorously through America's actual institutions rather than act in some make-believe universe where the United States has a generally majoritarian set of political institutions.
Comments
The fetus either is or isn't a "legal person" under the 14th amendment.
Why the dichotomy? Why not a sliding scale?
I'm no constitutional lawyer
What kind lawyer are/were you? I don't think I knew that, somehow.
I think the issue is that the "legal" debate is of an entirely different character than the "street" debate.
I don't think any justice has ever seriously said that a fetus should be considered a "legal person". Everyone (in the legal world) pretty much agrees that it isn't.
The issue is more that states get to pass whatever crazy laws they want, unless those laws contradict the constitution.
I have to say that I think one of the most surprising bits of conventional wisdom to emerge over the years has been the squishy middle's sense that abortion should be generally legal, but that legal decisions holding that there is a constitutional right to securing this outcome are constitutionally dodgy. I'm no constitutional lawyer, but this strikes me as a pretty clear-cut issue.
The only reason that the reasoning in the abortion cases seem "constitutionally dodgy" is because they're pretty much the products of compromises among the justices. That said, I have to say that when I was in law school, after years of hearing how "dodgy" Roe was, I was surprised to find its reasoning pretty damn clear with a solid basis in precedent. The latter abortion cases, though, Casey on down, are pretty muddy in terms of reasoning, though.
The fetus either is or isn't a "legal person" under the 14th amendment. If it is, then clearly abortion bans are not only constitutionally permissable, but constitutionally mandatory.
The abortion cases don't really deal with the definition of "person" under the 14th Amendment at all, actually. Primarily, they deal with the 9th, and to the extent the 14th Am. is involved at all, it's to extend the 9th to the states.
If it isn't, however, then what's the basis for the state regulating conduct that takes place entirely inside the body of a rights-bearing citizen?
States have traditionally held the right to regulate "health and public morals" as part of their inherent police powers. This is why they can, for example, prohibit selling one's organs or prohibit the sale of alcohol or prevent anyone except for a a licensed surgeon to cut into people, even though all of these things involve conduct that "takes place entirely inside the body of a rights bearing citizen."
I'm not pro-life, but I do think there are dangers to adopting a binary rule about whether a fetus is or is not a person.
I think that, if a mother is going to bring a baby to term, then she has an obligation to the health of the baby that should be legally enforceable. There is a lot of harm that a mother can do to the fetus which, while we may not think of it as a person at the time, will have a huge effect on the "person" who emerges from the womb.
How practical it is for the government to force pregnant women to be healthy is another issue. But, I think there should be legal recourse to do this, at least in extreme situations.
Another issue is, if we decide a fetus has zero personhood, then it contradicts certain current laws. I believe that if, while attacking a pregnant women, one ends up killing the fetus, one can be charged with murder. I'm not sure about this though.
I rarely get to say this, but "what Al said."
Didn't Matt study philosophy at some college? Did he not pick up any skepticism about disjunctive assertions?
I've had some doubts about the "the sky, it falls!" take on yesterday's op, and while I'm not seeing the connection to my belief that abortion is not an unqualified good, I suppose it's there somewhere.
[i]The abortion cases don't really deal with the definition of "person" under the 14th Amendment at all, actually. Primarily, they deal with the 9th, and to the extent the 14th Am. is involved at all, it's to extend the 9th to the states.[/i]
It's been a while since I read Roe, but I thought there was a section in it (It may have just been a couple paragraphs) where they definitely and clearly say that a fetus is not a person within the meaning of the 14th amendment.
If it is, then clearly abortion bans are not only constitutionally permissable, but constitutionally mandatory.
Perhaps you mean to say that a ban of abortions conducted by the state would follow from the 14th Amendment personhood of a fetus. The Constitution does not mandate statutes against theft or murder. It only precludes these acts on the part of the government.
"If it isn't, however, then what's the basis for the state regulating conduct that takes place entirely inside the body of a rights-bearing citizen?"
Boy, you really aren't a constitutional lawyer. Are you sure you are a philosopher? Aside from the scare italics ('inside the body'), your argument has absolutely nothing going for it. Here, I'll try it.
If it isn't, however, then what's the basis for the state regulating conduct that takes place entirely INSIDE THE BEDROOM of a rights-bearing citizen?
If it isn't, however, then what's the basis for the state regulating conduct that takes place entirely INSIDE THE REFRIGERATOR of a rights-bearing citizen?
If it isn't, however, then what's the basis for the state regulating conduct that takes place entirely INSIDE THE COMPUTER of a rights-bearing citizen?
See? I just overthrew all regulations of sexual behavior, refrigerated hazardous materials storage, and child computer porn in three easy sentences! You can do it, too. Here's the formula: write a banal sentence, then either italicize, capitalize, or put scare quotes around A KEY PHRASE. That KEY PHRASE then appears inciteful. No justification necessary.
Don't like gun control? Don't waste your time arguing. Instead,
If it isn't, however, then what's the basis for the state regulating conduct that takes place entirely INSIDE THE FIRING CHAMBER OF A PISTOL of a rights-bearing citizen?
Your gun control problems are behind you!
Your welcome. Tips are appreciated.
Sk
I agree with that its practical to adopt a sliding scale valuation of the fetus' personhood.
There are two ideas you hear in this debate which don't make sense to me:
1) Contraception, which blocks the sperm at the last instant before it enters the egg, is perfectly ok, whereas destroying the egg once it is impregnated is murder.
2) Aborting a fetus just before it is delivered is ok, whereas killing the baby right after delivery is murder.
Both ideas involve sudden transitions from non-personhood to personhood. Idea (1) is justified by the supposition that conception is accompanied by ensoulment, which makes the blastocyst sacred. Idea (2) is justified by the historical norm that personhood is attained at birth.
Re-reading Roe, I see that Justice Blackmun advanced the same position as MY, and that Roe conceded it. They're wrong, I think.
On the 9th Amd question, I'd say this sentence is pretty meaningful: This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.
I think conservatives are sort of right on this one. even if we agree that the status of the fetus is unclear (or open to interpretation), the important question is still who should be making the interpretive decision. conservatives have a strong argument in saying it should be left to the legislatures, since there's no clear-cut constitutional reason to do otherwise.
also, this is hardly a "new" development or consensus. Center-left jurist John Hart Ely wrote a law review article critical of Roe in 1973 called "The Wages of Crying Wolf," which, if I remember correctly, is the most widely-cited law review article of all time.
For your benefit, MY, here's a short cites omitted excerpt from Stewart's concurring opinion in Roe.
In a Constitution for a free people, there can be no doubt that the meaning of "liberty" must be broad indeed. The Constitution nowhere mentions a specific right of personal choice in matters of marriage and family life, but the "liberty" protected by the Due Process Clause of the Fourteenth Amendment covers more than those freedoms explicitly named in the Bill of Rights.
As Mr. Justice Harlan once wrote: "The full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment." In the words of Mr. Justice Frankfurter, "Great concepts like . . . 'liberty' . . . were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged."
Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. As recently as last Term, in Eisenstadt v. Baird, 405 U.S. 438, 453, we recognized "the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy. "Certainly the interests of a woman in giving of her physical and emotional self during pregnancy and the interests that will be affected throughout her life by the birth and raising of a child are of a far greater degree of significance and personal intimacy than the right to send a child to private school protected in Pierce v. Society of Sisters, 268 U.S. 510 (1925), or the right to teach a foreign language protected in Meyer v. Nebraska, 262 U.S. 390 (1923)
When assuming a position on abortion, most people stake their position on moral ground, not legal. So the point of the "constitutionally dodgy" CW is precisely that dichotomy of personhood you point out. "Either the fetus is a person or it's not" is a kind of moral dilemma on which the constitution cannot comment, as indeed you assume: a judge must decide which position to take. From Roe v. Wade:
"Perfection of the [legal] interests [of the fetus] involved, again, has generally been contingent upon live birth. In short, the unborn have never been recognized in the law as persons in the whole sense."
That's a common-law interpretation, not a legislative directive or a constitutional interpretation. But Roe v. Wade doesn't claim, e.g. that a guardian cannot bring suit on behalf of an unborn fetus for wrongful death. Such a relatively narrow claim could be supported by common-law reasoning. Rather it claims there is a specific constitutional right.
So the squishy middle is being, um, the squishy middle. The squishy middle is uncomfortable with the idea that the fetus is not entitled to legal rights. Roe v. Wade depends on this controversial assumption to extend a broad constitutional right. This assumption is obviously not resolved in the constitution proper. Therefore, people who disagree (or are even just morally uncomfortable) with the opinion's common-law interpretation -- the squishy middle -- MUST in fact disagree with the opinion's reasoning, even if they are politically pro-choice.
Why the dichotomy? Why not a sliding scale?
Well one very obvious reason, is that, recently passed laws that attempt to pretend otherwise notwithstanding, 1000 years of jurisprudence in our legal system treats "BIRTH" as the brightline definition of personhood. You can't leave property to fetuses, for example. Fetusus aren't taxed. The ages when rights accrue, such as the right to vote, etc., start at BIRTH, not at conception. Fetuses aren't counted for purposes of representation. And all for a very good reason - not all pregnancies, not all fetuses, actually do come to term - not all fetuses actually become persons, contrary to conservative sentiment that those actually are little persons just like you and me.
The idea of the sliding scale, that "viability" constitutes a legal benchmark whereby the state has an interest in protecting the fetus as a being different from that of the mother, actually represents a great compromise on the part of Roe v Wade - although one would never know it from the conservative viewpoint that treats everything Roe as akin to the work of Satan. So funny to see the likes the Al attempt to appear reasonable....
If it isn't, however, then what's the basis for the state regulating conduct that takes place entirely inside the body of a rights-bearing citizen?
It's the interest in protecting potential human life, which every single court decision in this area has recognized, so don't go discounting it now. Everyone knows that if you don't do anything to terminate the pregnancy, you're most likely going to end up with a baby. As Professor MacKinnon taught us, "Of course it's a life, that's why it has to be stopped!"
But constitutionally speaking, there's a long line of right to privacy cases that are very well grounded and go back over a century. The early cases involved things like your right to send your child to private school, and your right to educate your child in a language the government doesn't want him to learn. (It was German, if anyone's curious.) Later we moved on to things like your right to use contraception. All of these cases can be broadly understood as your right to make private decisions with regard to your family.
None of this is written in the Constitution, but there's a general sentiment that the decision whether to send your child to private school ought to be "up to you." To put forward another example, if New Jersey decides that it's too crowded and henceforth families will only be allowed to have one kid each, like they do over in China, most of us would find that law completely unacceptable even if it gets properly enacted by majority vote. Your decision about whether to have kids isn't something that's properly up for majority vote.
Roe v. Wade is an outgrowth of these right to privacy cases, with the added catch that because potential human life is involved, the government is permitted a greater degree of regulation than they get in the other cases.
The idea of the sliding scale, that "viability" constitutes a legal benchmark whereby the state has an interest in protecting the fetus as a being different from that of the mother, actually represents a great compromise on the part of Roe v Wade...
What's the mortality rate of a post-viability fetus, for curiosity's sake, as compared to infant mortality rates in general?
opinion polls consistently show most people - I think numbers range from 60% to 75% - want abortion to be legal but largely restricted to the first trimester. Given these numbers, trying to conjure some fanciful constitutional basis for a policy that has solid majority support seems pointless. it's like trying to find a constitutional basis for drinking - there isn't one, but who cares, prohibition is not coming back.
also - there were about a million abortions last year in this country. even people who are pro choice (and I largely am) should be appalled by this. with the wide availability of contraceptives, the morning after pill and etc, abortion should be 'safe, legal and rare'. instead it's safe, legal and commonplace. why?
conservatives have a strong argument in saying it should be left to the legislatures
What legislatures should have the upper hand in deciding what the words of the US Constitution mean? Why?
On this subject, MY is completely right: in our system, judges get the final say on what the law is. And most conservatives should agree: if (for example) you allocate to Congress the sole authority to determine what 'interstate commerce' means, or 'taken' or 'bear arms' then you end up with a legislative branch that has the authority to justify anything it wants to do. Because no one has the authority to say that it has mis-applied the words.
Courts don't often strike down statutes, but this is, in large part, because legislatures mostly know where the lines are, and mostly try to stay within them. Take away judicial review, and what you'll get is full on legislative tyranny. No Bill of Rights, certainly.
If it isn't, however, then what's the basis for the state regulating conduct that takes place entirely inside the body of a rights-bearing citizen?
Erm, since when does the abortion take place entirely inside the body? Are we rabbits all of a sudden? It's a medical procedure, it takes place in a doctor's office. I like the government regulating doctors. But I'm with you, states shouldn't be able to ban fetal absorbtion or miscarriage. And they shouldn't ban abortion, but I don't see how the constitution as written stops them. And yes, I'm foolish for thinking we're governed by a written constitution.
lucas,
It's been a while since I read Roe, but I thought there was a section in it (It may have just been a couple paragraphs) where they definitely and clearly say that a fetus is not a person within the meaning of the 14th amendment.
Re-reading Roe, I see that you're right--they do. That's what I get for relying on a six-year-old memory...
Point is, though, there was much more to the opinion than that.
If it isn't, however, then what's the basis for the state regulating conduct that takes place entirely inside the body of a rights-bearing citizen?
Commerce clause. The federal government has the right to regulate flow of hormones and body fluids inside the bodies of citizens!
But seriously, the government already steps way over their bounds all the time and no one cares. There needs to be a renewed focus on states rights for their own sake, rather then for the sake of whatever pet issue people have (slavery, medical marijuana, etc), not to mention individual rights.
It's not that Roe v. Wade in particular was wrongly decided. As someone said above, it is based in a clear line of precedent and has good reasoning to support its conclusions. The problem is that it is based in substantive due process, one of the most problematic constitutional doctrines in our history.
Substantive due process seems like an oxymoron. How can a substantive right be derived from a clause that, by its own terms, requires only "due process"?
The doctrine of substantive due process has its origin in the now-discredited Lochner decision, which held that the state could not interfere with baker's "freedom to contract" for 10-12 hour days by passing a maximum hours law. Lochner was one of the key cases overturned in the 1930s to allows the New Deal. It represents a reactionary and outdated judicial philosophy that would prevent the government from passing any labor and employment regulations at all.
Substantive due process survives in only two ways: right to privacy and incorporation of the bill of rights. Both of these are desirable doctrines, providing essential limits on state power. But it isn't clear at all why they are somehow "due process." Everything else the due process clause does actually relates to, you know, process. Incorporation should almost certainly have happened through the privileges and immunities clause, not the due process clause. As it is, incorporation is a pretty obvious case of constitutional amendment through judicial decision. If the legal community wasn't in almost complete agreement on the issue, incorporation would be on a very shaky footing.
All of that leaves the right to privacy on a less than firm foundation.
"also - there were about a million abortions last year in this country. even people who are pro choice (and I largely am) should be appalled by this. with the wide availability of contraceptives, the morning after pill and etc, abortion should be 'safe, legal and rare'. instead it's safe, legal and commonplace. why?"
That's a rhetorical "why," right? Because if not, the answer is: "people are biologically driven to have lots and lots of sex, and to expect that they're going to use birth control every single time, or that birth control is going to work properly every single time, is just totally unrealistic."
"The fetus either is or isn't a "legal person" under the 14th amendment."
Whatever flaws MY's statement may appear to have, I think it does get at the essential issue. If the fetus is a person, you're not permitted to kill it. If it's not, a woman has as much right to decide what to do about it as she does to choose a course of treatment for cancer. The political arguments (if not always the legal ones) over abortion all come back to this question--is the fetus a human being (and if so, at what point did it become one)?
This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is ...
CharleyCarp's quote, besides its relevance to the discussion, also provides a classic example of why the verb "to feel" should be avoided in legal writing.
No one should be terribly interested in whether the Court "feels" that the right to privacy is founded in such-&-such.
how bout this..no matter what the law says a woman's gonna get get an abortion legal or otherwise if she wants one and there's nothing that can be done to stop her.
"If the legal community wasn't in almost complete agreement on the issue, incorporation would be on a very shaky footing."
The legal community is in complete agreement for one simple reason -- because the S.Ct. has said it's so. Ipse dixit.
"The Constitution does not mandate statutes against theft or murder."
In merry old England, the King could declare that some bad guy was no longer protected by the law -- he was an "outlaw." Thus, anyone could kill an outlaw without fear of legal consequence.
I'm pro-choice, but Congress has the power to make laws related to medical practice (or rather, Congress has assumed that power under a broad reading of the Commerce Clause which I endorse and which is generally accepted). If abortion were outlawed, it would be like laws against medical marijuana - patently ridiculous, but not subject to Supreme Court override. If citizens think that Congress has made unhelpful (but constitutionally legitimate) laws, our remedy is petition Congress to make better laws, or to elect more sensible representatives.
An issue that's hardly ever recognized in these debates: assuming a woman's right to cease providing support to the fetus and have it removed from her body, it is very hard to see why that entails a right not only to have the fetus removed but also killed.
This is particularly relevant to the intact D&E procedure. If there are cases where the fetus can't be removed without killing it, then the "removal" right trumps. But there appear to be some cases -- some or most intact D&E procedures -- where it would be just as easy to remove the fetus living as to kill it before removal. (Read Kennedy's opinion for evidence of this).
What possible justification is there for a right not only to remove, but also kill, the fetus?
In practice, those receiving an abortion usually don't just want to cease providing physical support for the fetus (which is the moral/philosophical justification) -- they don't want a biological CHILD existing in the world (even one they are not obligated to care for). I understand this view -- but it's not clear why that preference should have much force.
If the fetus is a person, you're not permitted to kill it.
Wrong. First-year law school stuff. There is no precedent in common law or modern constitutional law that requires one person to give up the use of their body to preserve the life or health of another. If someone is drowning, and you could easily save them, you have no legal obligation to do so (unless that's your job). If someone is dying, and you donating blood or organ tissue would save them, you have no legal obligation to do so. It's not that no one has thought of making these things mandatory, it's that they are unconstitutional.
That's a rhetorical "why," right? Because if not, the answer is: "people are biologically driven to have lots and lots of sex, and to expect that they're going to use birth control every single time, or that birth control is going to work properly every single time, is just totally unrealistic."
What? This may currently be true, because birth control is hard to get, can be expensive, some forms of it are not that easy to use, and none of it is perfectly effective (although some are pretty effective if used properly). But that oughtn't be the case. And it wouldn't be if the people who bore the costs of undesired pregnancy--even if you do have an abortion, there are still costs to unplanned pregnancy compared to not getting pregnant--weren't all women. If men were the ones who bore the risk of pregnancy we would have easy to use, cheap or free, 100% effective birth control now. And it would also prevent periods.
The moderate anti-Roe and Casey crowd are making a completely different constitutional argument from the religious right anti-Roe crowd.
The moderate argument is that Roe is wrong because there is no constitutional right to an abortion. Basically, an attack on substantive due process as conceived by the Roe Court.
The religious right argument is that the fetus is constitutionally protected under the fourteenth. So no, it's not simply whether the fetus is or is not a legal person. The fetus may not be a person under the 14th and Roe may still be invalid. It's not a matter of navigating choppy waters, but navigating two different streams entirely.
Thankfully, the religious right view seems to have little purchase amongst most Justices. After Carhart, the moderate view will probably win. Which means that the issue will move from courts to state government. Of course, what would be really interesting is a post-Carhart constitutional challenge to the Constitutional authority of Congress to legislate with respect to abortion. Thomas in his concurrence, made it clear this issue wasn't before the Court. But given the Court's federalism jurisprudence, I think a constitutional attack would prevail and the federal government would be stripped of all authority to regulate abortion.
Judson- I'm with you 100%. It's pretty lame that we live in a world where this kind of legalistic and "moral" hairsplitting is allowed to determine public policy.
The fact of the matter is that restricting or prohibiting abortion is going to to absolutely nothing to make it less prevalent, any more than Prohibition or the "War on Drugs" did anything about the "moral evils" they were intended to combat. And if I were a doctor, and I felt the procedure which the Supreme Court banned yesterday was the safest course for my patient, I'd go ahead and perform it.
If the fetus is a person, you're not permitted to kill it. - Frank
Actually, to me that's one of those "everybody agrees that" statements that usually turns out to be wrong ...
Of course, you are permitted to kill people. You are permitted to kill in self-defense if your life is at stake. According to your local gun nut, you are permitted to kill if your property is under attack (and a fetus taking vital nutrients from your blood can certainly be classed as "your property is under attack").
Moreover, do we have legal obligations to sustain life? Can the government, for example, compel me to give blood? If not, then, even if a fetus is considered a person (so actively killing it would be "wrong"), it would be permissible to somehow cut-off its blood supply in utero, wouldn't it? The state cannot compel a woman to give blood ... but then the distinction between killing it with some sort of injection and doing surgery to clamp the umbellical cord is a technicality, ain't it?
It seems to me that the relevent question is "if a state passed a law mandating blood donations, how would the court rule?" or "if a state passed a law mandating organ donations, how would the court rule?" ... if there is a legal argument that the state cannot mandate such things, the state cannot prohibit abortion, even if the fetus gets counted as a person!
S- I'm also in complete agreement with you, especially "[the present situation] ought not be the case."
"If the fetus is a person, you're not permitted to kill it. If it's not, a woman has as much right to decide what to do about it as she does to choose a course of treatment for cancer."
Well, that's true. But it doesn't answer the question. How much right to determine treatment for cancer does a person have? Certainly, the FDA can ban a particular treatment of cancer. Can they ban half of the available treatments? What about nine out of ten? The answer to these is almost certainly "yes." There is no right, that I'm aware of, to choose your treatment for cancer. Perhaps the states couldn't bad ALL cancer treatments - such a plan might fail even a bare minimum rational basis test - but they definitely have a lot of power to restrict medical decision.
Even if there were a right to medical decision making, such a right would almost certainly be a privacy right, based on the same questionable foundation as the privacy right in Roe.
That isn't to say that this is a desirable state of affairs. But it is where we stand right now.
Re "is the fetus a human being (and if so, at what point did it become one)?"
--------
I agree with the posters above who say this issue lies on a 9 month continum versus being an either-or question.
The idea that life begins at conception is a religious feeling unsupported by any real evidence. And we generally try to avoid using the power of the State to levy severe punishments on people just to enforce religious opinions. That way leads to burnings at the stake and the Inquisition.
The religious groups making up the anti-abortion forces do not ,in general, really believe their claim that life begins at conception. If they did, then they would be calling for the death penalty for doctors and women who execute abortions. That, after all, is what we do with baby murderers.
On the other hand, life obviously does not start at birth either. The religious right and pro-life groups are more honest in this respect than pro-choice groups. In that the pro-life groups look at the physical evidence -- pictures of the rapid development of embryos and of fetuses in various stages of development --and say : "That's a baby". The pro-choice groups seem to avert their eyes from what an abortion really does.
I don't know where one draws the line and says that an embryo has become a person. If I had to make a choice, I would say the points occurs when the the fetus has enough brain cells to show brain waves and can feel pain. But that's an intuitive judgement. In drawing the line at 3 months, The Supreme Court made a difficult judgement in Roe --probably the best one available.
Whatever flaws MY's statement may appear to have, I think it does get at the essential issue. If the fetus is a person, you're not permitted to kill it. If it's not, a woman has as much right to decide what to do about it as she does to choose a course of treatment for cancer. The political arguments (if not always the legal ones) over abortion all come back to this question--is the fetus a human being (and if so, at what point did it become one)?
I'm not a lawyer. Rather I'm an anthropologist. One important aspect of the discussion around abortion has to do with the semantic field. There is no doubt that a human fetus is human....its not becoming a pig or a pear; this is not an area over which the courts can in any meaningful way have jusidiction. There is equally little doubt I gather that leal persons are not limited to human beings, witness the notion of the corporation which has legal standing; this the courts arbitrate all the time. In the discussion around abortion these two terms overlap in sometimes very disconcerting ways even though "legal person" and "human being" are not necessarily synonymous notions. The discussion around abortion is also complicated because people choose to abort and choose to bring to term or not to abort in some senses for precisely the same reason--its a human fetus on its way to being an infant and later child who will need lots of looking after by someone.
How much right to determine treatment for cancer does a person have? Certainly, the FDA can ban a particular treatment of cancer. Can they ban half of the available treatments? What about nine out of ten? The answer to these is almost certainly "yes." There is no right, that I'm aware of, to choose your treatment for cancer. - Leo
I dunno what the law is here, but it seems to me the state can only ban treatments for cancer because the treatment would be unsafe, of dubious effectiveness or might result in a bunch of tripped-up cancer patients robbing local 7/11s in order to deal with their munchies. The state cannot decide that a cancer treatment is bad because it's unethical to kill cancer cells in a certain manner.
Thus states (and potentially the federal government) can and do (and generally in ways supported by pro-choicers) regulate abortion -- make sure abortion methods are safe and effective and carried out by qualified practicioners ... and make it illegal to perform abortions with coathangers or to claim you are an abortion provider when you are not medically qualified to do so.
But that isn't the issue here. Congress has banned so-called partial birth abortions, which are medically more sound and safer than some of the un-banned methods. The issue is ... well, it was somehow an easy victory for abortion opponants. I don't think people would look to kindly upon a cancer treatment being banned simply because a lobby had some cartoons of cancer cells that made them look cute and the method of killing them look like it was killing cute cancer cells. So why should abortion be different?
Whatever flaws MY's statement may appear to have, I think it does get at the essential issue. If the fetus is a person, you're not permitted to kill it.
This is a legally unsound statement as others have pointed out, but it works as a shorthand ethical position on the issue. The problem here is that there's a certain intermediate zone where we're not sure whether the fetus is a person or not. Legally and procedurally, you can say that in that circumstance it's just up to a court and/or a legislature to draw a line somewhere, but as I mentioned above, this part of the debate is not in realm of legal procedure, but the merits of the policy. How should we treat a fetus that maybe isn't but maybe is a person?
You can say every individual expecting mother should just decide for herself, but that's unsatisfactory. Can a mother terminate her pregnancy at will at 8 months and 29 days?
Re "rather than act in some make-believe universe where the United States has a generally majoritarian set of political institutions."
------
Especially when the Supreme Court has defined a Constitutional right to an abortion but there is no Constitutionally -defined right to vote. So a "majority" of whom? A future Republican caucus?
The Amendments allowing women and Afro-Americans to vote do not say they have a right to vote -- it merely says that right cannot be taken away on the basis of race or sex.
As I recall, the main body of the Constitution says that you can vote in federal elections if you are allowed by your state to vote for members of the most numerous branch of the state legislature.
But it seems to me that a state could pass a law giving the vote only to people who pay X amount of taxes or have Y amount of property and it would pass review by the Supreme Court.
The Bush Administration and his Republican Supreme Court have already shown us that we do not have several liberties that we thought were spelled out in the Bill of Rights. Habeas corpus. Right to trial by jury. Immunity to searchs other than under warrents issued by the judicial branch. A Ban on cruel and unusual punishments.
Re: "The religious groups making up the anti-abortion forces do not ,in general, really believe their claim that life begins at conception. If they did, then they would be calling for the death penalty for doctors and women who execute abortions. That, after all, is what we do with baby murderers."
I disagree. My strong impression is that they DO believe life begins at conception, and they DO believe it is murder.
Why no calls for the death penalty then? Baby steps (no pun intended). Its the same as if you suddenly found yourself in a society that allowed slavery. While you might take political action to end it, you wouldn't immediately support the criminal penalties we see for kidnapping on slave owners. You would want to try to change peoples minds first.
But come to think of it, I don't think the Constitution defines what a "Supreme Court" is either. Which is why Franklin Roosevelt saw nothing wrong with adding 15 or 20 of his supporters to the Court so that it would reach the verdicts he wanted. Including the Curran decision which has come back to haunt us.
It's always good to read the fine print.
Maybe I'm old fashioned, but I think we should treat pregnant women as demon posessed pariahs to be feared and shunned.
Re: "The fact of the matter is that restricting or prohibiting abortion is going to to absolutely nothing to make it less prevalent, any more than Prohibition or the "War on Drugs" did anything about the "moral evils" they were intended to combat."
Then, who cares what the laws are?
Seriously, anyone who thinks recreational drug use would be just as prevalent if there were no laws against it hasn't done recreational drugs. Its a lot of fun. I would have done a lot more of it if it were legal.
If there were a law prohibiting abortion, I predict you would see a drastic decline in abortions.
the issue whether a fetus is a person or not was the beauty of Roe - the opinion flatly stated that it is a religious issue, one for each person to make, but not within the court's power to decide. Hence the court's compromise on viability of the fetus outside the womb (which I always thought was the achilles heel, since viability would probably change over time with advances in science).
Many thanks to those who took my comment seriously (as it was intended) and responded with thoughtful objections. A very civil thread, this one.
Mithras:
Interesting points. Does it matter that in the case of abortion the fetus is not in danger (as opposed to the drowning or dying person)? It seems more akin to a case of a child on life support who is nonetheless expected to recover.
DAS:
Sure there are cases where you are allowed to kill, so I was oversimplifying, but I don't think you are arguing that abortion is self-defense, right? Surely there aren't many justifications for killing, say, a three-day-old baby, so the question is whether/how a fetus is different from that. Perhaps its utter dependence on the mother is the difference, but the three-day-old is awfully dependent, as well, so I'm still not sure.
Leo/DAS on cancer:
I'm with DAS here. That's why I chose the cancer example. While the state can regulate medical procedures, there's a pretty small set of justifications it can use to do so.
Re: If it isn't, however, then what's the basis for the state regulating conduct that takes place entirely inside the body of a rights-bearing citizen?
Um, drug laws? They might not be a good idea, but I think it would be a stretch to say that they are unconstitutional.
Re: You can't leave property to fetuses, for example.
I don't think it's true that postumous heirs cannot inherit. (As a practical matter, fetuses do not inherit simply because the length of time even the simplest, unchallenged will requires to move through probate allows ample time for any postumous in uetro heir to be born in the meantime).
Re: because birth control is hard to get, can be expensive, some forms of it are not that easy to use, and none of it is perfectly effective
well, no, nothing is "perfectly effective". However condoms at least are very easy to get hold of and they are dirt cheap. In fact many gay bars provide them for free.
Re; If men were the ones who bore the risk of pregnancy we would have easy to use, cheap or free, 100% effective birth control now
This is silly. Men may not get pregnant, but they do bear the risk of being socked with child support and, just like women, they have the risk of contracting STDs.
Re: The idea that life begins at conception is a religious feeling unsupported by any real evidence.
Curiously, it's not even very traditional among religions, most of which did not, in the past, regard fetsues as "persons" until about eight weeks into pregnancy.
Re: The Amendments allowing women and Afro-Americans to vote do not say they have a right to vote -- it merely says that right cannot be taken away on the basis of race or sex.
To use a little logic here, if a right cannot be taken away then obviously it must exist in the first place.
Re: Habeas corpus. Right to trial by jury. Immunity to searchs other than under warrents issued by the judicial branch. A Ban on cruel and unusual punishments.
Habeas corpus is not absolute: the Constitution allows for its suspension. Whether the Bush administration's means of doing so meets the Constitution's guidelines is debatable of course. Non-trial by jury and warrantless searches have been allowed in exceptional cases for a long time: the Bush administration would not be successful in these matters without precedent to fall back on. The ban on cruel and unusual punishments is, unfortunately, one of those vague things that can easily be finessed by those willing to argue with a straight face that what they are doing is not cruel or unusual, or perhaps not a punishment.
Re "The fact of the matter is that restricting or prohibiting abortion is going to to absolutely nothing to make it less prevalent, any more than Prohibition or the "War on Drugs" did anything about the "moral evils" they were intended to combat."
--------
Not really true. You can drink bootleg moonshine or ingest street drugs and take you chances.
Abortion in the 2-9 month timeframe, however, is
a complex medical service that has to be provided by a doctor. And I assure you that there are few doctors who will endanger their license to perform banned procedures.
Although I suppose there is always the old coathanger.
Rich women, of course, can go overseas.
Re "To use a little logic here, if a right cannot be taken away then obviously it must exist in the first place."
-------
Not really. Employers are banned from discriminating on the basis of sex or race. But they still may not give you a job. For any one of a 1000 other reasons. Or for no reason at all-- employment at will,etc.
Idea (1) is justified by the supposition that conception is accompanied by ensoulment, which makes the blastocyst sacred.
I think there is a non-religious argument. Conception results in the in the formation of the dna representing a complete human life (as apposed to person), while a sperm or egg is genetically incomplete.
I don’t think there is anything in the fourteenth amendment that requires states to punish murder as long as the government isn’t doing the killing and citizens are treated equally.
Why the dichotomy? Why not a sliding scale?
Well one very obvious reason, is that, recently passed laws that attempt to pretend otherwise notwithstanding, 1000 years of jurisprudence in our legal system treats "BIRTH" as the brightline definition of personhood.
This is a silly argument. As you point out, the law provides a sliding scale of rights and responsibilities from birth to adulthood. There is no reason that the law cannot apply a sliding scale of personhood from conception to birth. There is a discontinuity in the law a birth, granted, but it seems to me that is arbitrary. The baby becomes disconnected from its mother, but I don’t think that changes its personhood.
“On this subject, MY is completely right: in our system, judges get the final say on what the law is.”
No, judges should decide if a law passed by the legislature violates the constitution. Big difference.
Re: "I think there is a non-religious argument. Conception results in the in the formation of the dna representing a complete human life (as apposed to person), while a sperm or egg is genetically incomplete."
This may be an argument, but I can't say I completely understand it (not that I understand why a soul should be sacred either, except to just take it on faith).
My understanding of biology may be a little fuzzy, but even before conception, once you know which sperm is going to enter which egg, don't you also know what the complete DNA sequence will be? So, what's the difference between stopping a known DNA sequence from being created one millisecond before it happens, vs. just letting it happen, and then destroying the cell one millisecond later?
My overall point is, its hard to escape the conclusion that what happens in this biological process is the creation of more and more complexity on a temporal continuum, and its silly to try to pinpoint a particular time at which the entity suddenly becomes a person.
Whatever flaws MY's statement may appear to have, I think it does get at the essential issue. If the fetus is a person, you're not permitted to kill it.
I think that is true only if the states decide to pass laws preventing you from killing it.
Well, let us accept MY's argument that the U.S. Constitution guarantees a right to abortion, though nobody in America realized this for the first two hundred years of the document's existence.
Given this analysis, it seems absolutely unequivocal the the Constitution also guarantees a right to suicide, since there's certainly no other "person" involved, scientifically ambiguous or not. Similarly, we must assume that all State laws restricting personal behavior such as taking drugs, alcohol, private sexual acts, are also ipso-facto unconstitutional.
Summarily striking down absolutely all laws against such "victimless crimes" would certainly be well in keeping with an extremely expansive policy goal of Left-Libertarians. But I'm just not sure it actually has much to do with the U.S. Constitution, at last as I (or any casual observer) might read the document.
It seems more akin to a case of a child on life support who is nonetheless expected to recover.
DAS:
Sure there are cases where you are allowed to kill, so I was oversimplifying, but I don't think you are arguing that abortion is self-defense, right? - Frank
However, even in the case of a child on life support, could the state require, e.g., that the nutritients fed to the child come from the mother? Could the state require the mother to give a blood transfusion to the child? The difference between the child on life support and the fetus, even if you consider the fetus to be a person, is that the resources for running the life support machines come from the wall electrical outlet and the supplier of the IV/feeding tube nutrients whereas in the case of a fetus, they come from the mother's body via the umbellical cord ... so if the state can't require someone to donate blood, how can they ban abortion?
And yes, I am arguing self-defense. If someone who has convinced himself he's a vampire were sucking your blood, wouldn't that be assault against which you could defend yourself by removing the supposed vampire from your body forcefully? And do you have any obligation to make sure the self-styled vampire doesn't get hurt in the process? OTOH, it places, IMHO, an undue burdon on a woman to require her to deliver a fetus in-injured to the point that it could survive if it were viable in order to remove that which is eating away at her internal resources, if she no longer wants the pregnancy to continue.
My overall point is, its hard to escape the conclusion that what happens in this biological process is the creation of more and more complexity on a temporal continuum, and its silly to try to pinpoint a particular time at which the entity suddenly becomes a person.
I agree with the continuum to personhood, but I do think “human life” begins a conception since human live requires a complete set of dna that will guide the development of that human life.
Re DAS's statement above:
---------
Moreover, do we have legal obligations to sustain life? Can the government, for example, compel me to give blood? If not, then, even if a fetus is considered a person (so actively killing it would be "wrong"), it would be permissible to somehow cut-off its blood supply in utero, wouldn't it? The state cannot compel a woman to give blood ... but then the distinction between killing it with some sort of injection and doing surgery to clamp the umbellical cord is a technicality, ain't it?
It seems to me that the relevent question is "if a state passed a law mandating blood donations, how would the court rule?" or "if a state passed a law mandating organ donations, how would the court rule?" ... if there is a legal argument that the state cannot mandate such things, the state cannot prohibit abortion, even if the fetus gets counted as a person!
-----------
Actually, the State DOES Mandate that if you create a human being, you have an 18 year obligation to feed and care for that human being. You cannot, for example, do as the ancients did and place a baby outdoors to die of thirst, hypothermia,etc.
Christian Scientists who deny medical aid to their sick children for religious beliefs have been prosecuted.
The State can even compel you to give your life --on the battlefield -- to protect children that are not your own.
Actually, the State DOES Mandate that if you create a human being, you have an 18 year obligation to feed and care for that human being. You cannot, for example, do as the ancients did and place a baby outdoors to die of thirst, hypothermia,etc. - Don Williams
Nope. You cannot do that.
But you can do the modern equivalent of leaving your kid on the door of a nunnery. So the state does provide alternatives for those who find themselves unable or even unwilling to care for a baby or a kid. But what possible alternative is there if your body is unable to sustain a pregnancy without adverse health effects?
Re DAS's comment "If someone who has convinced himself he's a vampire were sucking your blood, wouldn't that be assault against which you could defend yourself by removing the supposed vampire from your body forcefully?"
---------
Anyone who has been a parent knows that children ARE vampires -- they suck up years of your life.
In providing for them. In playing with them and giving them the necessary attention. In steering them away from harm and rescuing them from mistakes. In fighting with them because they rightfully want full independence at an early age.
Hell, colleges charge almost $200,000 for a BS degree now. If that's not blood-sucking, what is?
Too damm bad. If you don't want the job, put on a condom.
Re DAS comments "what possible alternative is there if your body is unable to sustain a pregnancy without adverse health effects?"
--------
If you are talking about "adverse health effects" created out of thin air as an flimsy excuse, then I would say that the alternative is to not get pregnant to begin with.
If ,on the other hand, you are talking about the unforeseen and highly dangerous condition where the fetus becomes deadly to the mother -- e.g, where the mother's body starts reacting to the fetus as a foreign body -- then you have a real dilemna. I personally have nothing against abortions that are medically necessary to save the mother's life --or even where the mother's is simply at serious risk.
"The U.S. Supreme Court upheld a partial-birth ban on abortion, which should be a crumb to satisfy the anti-abortion camp. Such an event, though, could hamper the anti-abortion movement in the long term. Why? It gives them hope that the problem can be rectified through the courts, which it cannot, for it is bigger than just abortion; it’s the rife plague of judicial activism. If the anti-abortion camp is serious,
(1) Following Article III, Section 2 of the Constitution, they should compel Congress to pass law removing appellate jurisdiction from the Supreme Court to hear any cases involving abortion. Thus, the issue could be returned to the states
or
(2) Following Amendment X, the states themselves should defy the Supreme Court and pass laws outlawing abortion. Invoking Andrew Jackson, they should say that the Supreme Court has no authority to enforce laws in their respective states."
From: http://conservativetimes.org/?p=411
Re: You can't leave property to fetuses, for example.
I don't think it's true that postumous heirs cannot inherit. (As a practical matter, fetuses do not inherit simply because the length of time even the simplest, unchallenged will requires to move through probate allows ample time for any postumous in uetro heir to be born in the meantime).
Postumous [sic] heirs certainly can inherit - no one said that they couldn't - the only restriction is that they have to be BORN first. And as a practical matter, fetuses do not inherit simply because they have to be BORN first to acquire the right to inherit. What is it about the concept that legal "personhood" begins at BIRTH - that a fetus actually has to survive the passage out of its mothers body and actually breathe that first breath on it's own in order go from being a fetus to a person - that is so hard for people to understand and accept? Is it a gender thing that men are incapable of conceptualizing the importance and reality of what happens at birth so when they discuss it in the abstract they treat it as no consequence?
(and for the length of probate argument - back in the day most estates were not that complex, and the number of actual real property owners were pretty small. Probate could and did go usually pretty swiftly.)
Re: "What is it about the concept that legal "personhood" begins at BIRTH - that a fetus actually has to survive the passage out of its mothers body and actually breathe that first breath on it's own in order go from being a fetus to a person - that is so hard for people to understand and accept?"
I am basically pro-abortion, but I think this simplifies things too much. If a woman is planning to take a fetus to term, and she is abusing her body (and the fetus), don't you think society should have the right to regulate her behavior? Its a responsibility to the health of the person who is going to be born.
Re DAS/cancer: I'm sure you're right about what the state should be able to do. What I'm telling you is what the law actually says about what the state can and cannot do. Unless there is a specific constitutional prohibition, the state has general police power to regulate wisely or foolishly. If you don't like what your legislature does, vote.
This may not be the way it should be, but it is the law.
Perhaps rational basis review, which applies in the absence of a specific constitutional right, might prevent a state from banning cancer treatments. (And that's far from clear, rational basis review is extraordinarily deferential to the state.) But there is no way rational basis review would strike down abortion regulations. The inquiry under rational basis review is whether any rational basis can be imagined which would justify the laws existence. The government almost never loses when this standard is applied. There is no balancing with other rights, and no critical analysis of the legislature's actual motives. In short, it is a license for the Court to pontificate on what kind of things, hypothetically, the law might possibly, rarely, accomplish. Under such analysis, anecdotal evidence about "emotional trauma" following abortions would provide ample "rational basis" for broad abortion restrictions.
If a woman is planning to take a fetus to term, and she is abusing her body (and the fetus), don't you think society should have the right to regulate her behavior? Its a responsibility to the health of the person who is going to be born.
Define "abuse". Say a woman takes reasonably good care of herself, but there is a natural miscarriage anyway (something like 20% of all pregnancies miscarry). How are you going to define the difference? Do you want to have a society where the pregnancy police come sniffing around and investigate every pregnancy, especially during a time of great personal tragedy? DO you really believe that pregnant women are nothing more than brood mares whose behaviour should be "regulated by society". Wow.
And besides, Jim W - you're missing the point of the argument - in legal terms, the fetus itself has no rights until it is born and becomes a person and our legal system recognizes that in terms of whole bunch of rights across all different forms of the law. But anything before that - such as what you are suggesting (and you really should think that one through some more) is being done by society ("the state"), on behalf of the interests of the fetus. Which is the way things are now. But it's not like the fetus itself can sue in court or anything like that.
MY posted:
"The fetus either is or isn't a "legal person" under the 14th amendment. If it is, then clearly abortion bans are not only constitutionally permissable, but constitutionally mandatory. ..."
As others have pointed out this is untrue. Perhaps the state would be prohibited from executing pregnant women but there would be no requirement that abortion be illegal anymore than there is a constitutional requirement that killing a trespasser be illegal.
MY posted:
"... If it isn't, however, then what's the basis for the state regulating conduct that takes place entirely inside the body of a rights-bearing citizen? It would need to be a mother-regarding health-and-safety regulation of some sort which, in the nature of things, is going to leave abortions generally legal as long as they're being performed in a way that's unlikely to seriously injure the mother."
This also seems dubious, the state clearly has the right to prohibit pregnant women from taking thalidomide at least in my opinion.
50% of all pregnancies end in spontaneous abortion, most before women know they are pregnant. pregnancy does not automatically end in live birth. do you mourn every single miscarriage, or late period as a full human life?
It's not that Roe v. Wade in particular was wrongly decided. As someone said above, it is based in a clear line of precedent and has good reasoning to support its conclusions. The problem is that it is based in substantive due process, one of the most problematic constitutional doctrines in our history.
Somebody actually paid attention in law school. The problem with Roe is that constitutionally speaking, it is premised on the same logic that once was used to strike down minimum wage laws based on the "fundamental right to contract." The grounds on deciding which unenumerated rights are "fundamental" are essentially arbitrary. The past 20 years have shown us what judicial activism looks like when the activists are conservative.
That's why the equal protection argument for abortion rights is more compelling for me. I don't see how women can be fully equal citizens in a country that subordinates the most important decisions in their lives to the moral preferences of others.
As said elsewhere here, but not that clearly, MY's statement is simply wrong, as a matter of fact, based on mistaken premises.
"The fetus either is or isn't a "legal person" under the 14th amendment. If it is, then clearly abortion bans are not only constitutionally permissable, but constitutionally mandatory."
The argument against Roe that has any chance of ever getting 5 votes is not that a fetus is a person and therefore enjoys the protection of the Constitution, but that there is no due process right to privacy, or if there is that right does not extend to abortion, or that even if it does extend to abortion it may be restricted based on something less than a compelling government interest, and restricted to the point of a ban.
My guess is that the number of votes for a ruling that a fetus enjoys constitutional protections, right now on the Supreme Court, is ZERO. Not even a Supreme Court of 9 Scalias and Thomases would make such a ruling.
mhp: I'm interested in the equal protection argument. Is there a good article that spells out the reasoning and its implications for some of the other privacy rights (sexual freedom, contraception, childrearing, etc)?
>people should be appalled by the number of >abortions.
No more than they should be about the number of liposuctions.
Abortion concerns the woman, and her alone.
Charley, of course, is right. No one has a 14th Amendment right not to be murdered, just a 14th Amendment right not to be murdered by the state. Correct thyself, Yglesias!
Can we get you and Jack Balkin to do a Diavlog on this?
Also am I the only person who thinks "Diva-log" instead of Diavlog? Heh.
The 14th Amendment says, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." So it seems pretty clear that a fetus is not a citizen.
"No one has a 14th Amendment right not to be murdered, just a 14th Amendment right not to be murdered by the state. Correct thyself, Yglesias!"
Not quite. IF the state is going to be protecting people from being privately murdered, under the 14th amendment it has to protect everybody equally. "Equal protection of the law", and all that.
Re: Conception results in the in the formation of the dna representing a complete human life (as apposed to person), while a sperm or egg is genetically incomplete.
This is not true. Sperm and egg are genetically haploid, not genetically imcomplete. There are a number of liging things which are quite happy to prodouce fully living and functioning haploid versions of the species.
Re: Employers are banned from discriminating on the basis of sex or race. But they still may not give you a job.
Apples to oranges. The right to be free from racial discrmination, not to have a job.
Brett Bellmore:
"Not quite. IF the state is going to be protecting people from being privately murdered, under the 14th amendment it has to protect everybody equally. "Equal protection of the law", and all that."
Only people similarly situated. The state could exclude fetuses as it (in some cases) excludes trespassers.
If there were a law prohibiting abortion, I predict you would see a drastic decline in abortions.
Yeah! It worked just like that in Romania!
/end snark
For anybody interested in the relevant history, Check out Leslie Regan's, _When Abortion Was A Crime: Women, Medicine, and Law in the United States, 1867-1973_.
Particularly interesting are the rates of women treated for septic abortion in Chicago's Cook County Hospital, pre-Roe.
The US constitution has never been held to require the goverment to prohibit anything. In fact there are rulings to the contrary.
This isn't just a theoretical point that has never been tested since all states obvisiouly prohibits murder. It has real consequences in cases today. Eg, if the police just randomly shoot you can sue for violation of your constitutional right but if Matt were to shoot you, (using his recently acquired legal handgun), you can't sue the goverment no matter
how negligient the police were in allowing it to happen or in failing to investigate afterwards. The right to life only means the goverment can't take it without a trial, not that they have to do anything to protect it.
The equal protection clause does restrict the goverment in some ways, eg if they prohibit the murder of white guys it has to prohibit the murder of black gals too, but as long as the criminal law doesn't discriminate on the basis of race, sex, national origin or a few other grounds the goverment can basically allow anything it wants.
It is interesting to note that the European convention of Human Rights, which has constitutional status in several European countries, does on the other hand require the state to actively protect the life of its subjects.
The US constitution has never been held to require the goverment to prohibit anything. In fact there are rulings to the contrary.
It is rather breathtaking that someone with such an expensive education as Yglesias would not understand this basic feature of our system of government. Makes one wonder about the rest of the population.
The equal protection clause does restrict the goverment in some ways, eg if they prohibit the murder of white guys it has to prohibit the murder of black gals too, but as long as the criminal law doesn't discriminate on the basis of race, sex, national origin or a few other grounds the goverment can basically allow anything it wants.
Wasn't that Matt's point? If fetuses have rights, to fail to protect them is discrimination--denying them equal protection.
And though there are a few "special" kinds of discrimination that receive extra legal scrutiny, any legal discrimination is still potentially unconstitutional.
Can we get you and Jack Balkin to do a Diavlog on this?
Also am I the only person who thinks "Diva-log" instead of Diavlog? Heh.
Charley, of course, is right. No one has a 14th Amendment right not to be murdered, just a 14th Amendment right not to be murdered by the state. Correct thyself, Yglesias!
The US constitution has never been held to require the goverment to prohibit anything. In fact there are rulings to the contrary.
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