Abortion
Which best describes your position:
1. A women has a constitutional right to abort unwanted pregnancies and the government should have no power to regulate this medical/moral decision. This should be the "law of the land" decreed by the United states Supreme Court.
2. An unborn baby has a constitutional right to life and a pregnant woman should have no power to end its life. This should be the "law of the land" decreed by the United states Supreme Court.
3. The constitution must be construed as providing rights to both pregnant women and the unborn and a constitutional balance must be found by the judicial branch when there is a conflict between these less than absolute rights. Striking this balance is the province of the United States Supreme Court.
4. In its essence abortion raises political questions that should be answered through representative government (a) at the state level; or (b) at the federal level by Congress.
1. A women has a constitutional right to abort unwanted pregnancies and the government should have no power to regulate this medical/moral decision. This should be the "law of the land" decreed by the United states Supreme Court.
2. An unborn baby has a constitutional right to life and a pregnant woman should have no power to end its life. This should be the "law of the land" decreed by the United states Supreme Court.
3. The constitution must be construed as providing rights to both pregnant women and the unborn and a constitutional balance must be found by the judicial branch when there is a conflict between these less than absolute rights. Striking this balance is the province of the United States Supreme Court.
4. In its essence abortion raises political questions that should be answered through representative government (a) at the state level; or (b) at the federal level by Congress.
posted by Moe The Sleaze | 2:49 PM
26 Comments:
2
Care to elaborate?
I pick 4. I see abortion as a seminal example of an issue that should be resolved by representative government. I would prefer that each state be free to enact such legislation as the consensus of its citizens approves.
I guess if these are my choices I take position #1. I would add that I do not believe that aborting a fetus is murder, nor is it something that should be done willy-nilly. There are many circumstances where abortion is justified and many others where it is not. Bottom line, since I believe abortion not to be murder I feel the government has no right to interfere in this decision.
Answer four; there is no more a Constitutional right to life than there is a constitutional right to an abortion. On a normative level, point three comes close, insofar as I think the rights of both pregnant women and unborn children should be carefully balanced, but that it is emphatically the province of the state legislatures, by virtue of the ninth and tenth amendments, to find the appropriate balance.
I think Goose3five also hits the nail on the head, after a fashion; in my view (see Compromising on Abortion, 2/8/06, at pp.2-4) (link is to PDF): "[the] only legitimate reason to be anti-abortion is because one is pro-life and believes that abortion is murder . . . Whatever one might think about the merits of abortion, it remains inescapably true that its regulation places a invasive, draconian and discriminatory burden upon women . . . in order to justify so extraordinarily invasive a law as a ban on abortion, there must be an absolutely compelling interest on the other side of the scale to weigh in favor of the law . . . [and] the only [interest that will suffice] of which I can conceive . . . [is] life of the child that abortion kills." If one feels, like Goose3five, that it is not a child's life in the balance, then one must be pro-choice; if one feels, as I do, that abortion is murder, then one must be pro-life. Being pro-choice is a defensible, internally coherent and (on its own terms) honorable position which I happen to think is disastrously wrong, but it is one I can understand and respect. Thus, I respect Goose3five's position; I do not respect, however, those people like Sen. Kerry who claim to be "personally pro-life, politically pro-choice," as this is a statement that one believes that abortion is murder but that one will do nothing to stop it.
In any instance, it is critical to separate the normative question (should abortion be legal) from the procedural question (who gets to decide); just because one is pro-choice, it does not follow that one must be pro-Roe, and just because one is pro-life, it does not follow that one will be against using the courts to impose one's policy preferences. In my view, the Constitution leaves the matter exclusively to the states, not the Courts.
Well, do you believe that other people (acting through government) have no right to regulate anything other than "murder" that a person might wish to do?
I think society not only has the right but the responsibility to establish rules that govern behaviors that affect lives other than the person engaging in the behavior.
The issue of whether society should establish such rules through the edicts of judges or through majoritarian procedures seems self-evident. Of course, rules should be established through "democratic" processes and not by the dictates of judges.
I'd have to say 2. The strong owe it to the weak to protect them, not to snuff them.
"I do not respect, however, those people like Sen. Kerry who claim to be "personally pro-life, politically pro-choice," as this is a statement that one believes that abortion is murder but that one will do nothing to stop it."
I agree almost entirely with that but I would substitute "a wrong that destroys a life and also affects other lives" for your use of the term "murder."
"Murder" is the intentional killing of another person with malice. In the abortion debate, along with the question of whether and when a "fetus" becomes a "person" prior to birth (a POLITICAL question if ever there was one-- in no way a question of "law.") you have the question of whether an abortion involves "malice" directed at the victim.
As I suggested, I do NOT that is necessary to equate abortion with murder to believe society should have the power to regulate it in accordance with the consensus reached through representative procedures.
Christina:" I'd have to say 2. The strong owe it to the weak to protect them, not to snuff them."
Ah, but you're answering a question not posed. Proposition 2 isn't "should the Constitution protect the life of the unborn," it's "does the Constitution protect the life of the unborn;" whether that was what our host intended, that's a descriptive statement, not a normative one. One can fully believe that the Constitution should protect many things (and should not protect some other things) while acknowledging that it none-the-less remains a document which says some things and does not say othes.
Consider: is it just that a murderer who is substantively and demonstrably guilty should walk away simply because the police made a mistake in searching his apartment without a warrant? I'm one of these benighted conservative law-and-order types, so on a normative level, I think that's vaguely obscene; it is, none-the-less precisely what the Fourth and Fifth Amendments require. Likewise, whether the Constitution should protect a right to life is like arguing about whether it protects a right to an abortion; whether it "should" do so or not (either because of the fundamental rectitude of such a protection or in terms of whether the Constitution should be involved in such matters; for the latter proposition, see J.H. Ely, DEMOCRACY & DISTRUST), one cannot avoid the reality that - unless one genuinely sees no difference between Supreme Court precedent with Constitutional law - it does not.
Moe,
I understand the point, but I would suggest that your alternative term ("a wrong that destroys a life and also affects other lives") suffers from the same deficiency as using a term like "murder" - both rely on the presumption of a globally-agreed definition of life. If a person who is pro-choice has an abortion, they do not see it as "a wrong that destroys a life," and therefore they cannot conceptualize it as killing, be it murder or not. What it is, however, is unambiguously done with intent: the act is carried out in the full awareness of what one is doing, and indeed, in Indiana (where I live) right now, there is a law before the General Assembly which would require women be given written notice that in the eyes of the state, their child is alive, and thus, if they do choose to abort their child, they do so entirely intentionally and understanding the nature of the action. They simply don't believe that the child is alive, and so although the action is undisputably intentional, they don't see it as killing.
I don't think this is a good basis for law, personally; if I get to choose whether someone I kill is alive or not, and thus whether or not I'm prosecuted for murder, most of the drivers on the morning school run (the ones who don't own Miles Davis records and who aren't moved by U2 records, and are thus alive purely in the most biological sense) had better start watching out. It seems to me that it will be almost impossible to detect "life," which may render the question of when life actually begins unknowable. But it seems to me that once there are detectable indicia that the prerequisites of life are present - brainwaves, heartbeat, etc. - we should defer to the fact that the fœtus may be alive, and therefore afford it appropriate protections. In other words, in questions of underdeterminacy, we should adopt a "cause least harm" approach, which means letting the child live.
My opinion is that the United States Constitution cannot be reasonably be interpreted to even create a general and amorphous "right of privacy."
What it creates is the right to be free from from unreasonable searches and seizures (Amnd. 4). It's one thing to say that places or things that a person reasonably expects to be "private" cannot be searched by government agents without a warrant or extraordinary circumstances justifying a warrantless search and another entirely to say that certain ACTIONS cannot be regulated because they concern personal values. That's why you got Griswold and Roe and penumbras and emanations and all sorts of intellectual disingenousness from the Court.
However, that the United States Constitution contains no language upon which one can really buils a principled and logical argument that abortion must be allowedby the federal government does NOT mean that the Constitution contains any language that means abortion must not be allowed by the federal government.
I'd agree it does not contain any such language and that the fairest reading of the Constitution is that it grants no power to the FEDERAL government to regulate abortion one way or the other-- although given the very expansive readings of the commerce clause and the general welfare clause in other contexts that might be a minority view.
My personal opinion is that abortion should be regulated by the states under their police powers because there should be no recognized federal constitutional right to abort and it is not an issue that properly invokes federal jurisdiction.
was quite a leap of logic to expand that into a "right of privacy"
The question isn't when "life" begins or whether a fetus is alive.
Inarguably, a fetus is alive and "life" has begun.
The question is when does that "life" become endowed with "humanity" and become a "person."
It is true that reasonable people can disagree about that. However, that merely explains why the abortion debate should be resolved politically through representative processes rather than artificially through judicial decisions. all a judicial decision can do is impose the personal opinion of a very small group on the entirety of society-- those who agree and disagree.
Representative government exists for the very purpose of resolving questions about which people hold differing views none of which are necessarily "normatively" right or wrong. Once that is done one's duty is to obey the law or face the consequences. The "legitimacy" of the law is not really based upon normative considerations but upon the fact it was derived from a "legitimate" and fair procedure in which all had opportunity to be heard. thus, the law can be changed through the same procedures to its diametric opposite and be equally legitimate.
It's hard to argue for the "legitimacy" of a law premised solely on the illogical and results-driven machinations of a handfful of judges.
Regarding the privacy thing, I think the difference of opinion essentially turns on the following. The Constitution inarguably protects specific privacy rights; some people look at that and say "ah, well, if the Constitution protects specific rights, it's logical to read those rights as being reflective of a broader purpose to protect privacy, hence, the enumeration of specific privacy rights suggests a general right to privacy." On the other hand, other people look at the enumeration of specific privacy rights and say "well, if there is a general right to privacy, why would there be any need to protect specific privacy rights? Expressio unius est exclusio alterius; if the framers had simply intended to create a general right to privacy, they would have said so." So there's logic behind both viewpoints. It also bears noting that the right to privacy, even if it existed, would not protect the right to an abortion, in my view; that would need to flow from an absolute right of bodily autonomy, which is itself an abstraction from a right to privacy; to reach Roe's result, one must abstract from the actual text of the Constitution (as Griswold did, over an eloquent warning from one of our most celebrated Justices) to a right to privacy, then abtract again from that to a right of bodily autonomy, and then presume (not entirley unreasonably) that one obtains Constitutional rights only at birth. That's a bridge too far for me.
I choose option 4. If Roe v. Wade were overturned (as I think it should be) would abortion be illegal? (http://www.trommetter.com/log/archives/2006/02/01/would-abortion-be-illegal/)
If merely the ultimate holding in Roe were simply overruled. We would return to the pre-Roe situation where nothing would prevent a state government from prohibiting and/or criminalizing abortion.
The mere egation of Roe and its progeny alone would neither make abortion legal or illegal. However, by the same sort of (what I consider) overreaching the Supreme Court COULD go further than merely negating Roe; it could hold that there is a recognizable FEDERAL CONSTITUTIONAL RIGHT to life possessed by an unborn being that would render any law allowing abortion unconstitutional.
"Judicial activism" can cut both ways. I've always believed that the vast majority of politically active folks want judicial activism-- they just want it on their side and attack it when it's used against their side.
Moe,
I would like to point out that the direct link to this post is dead for some reason (http://moethesleaze.blogspot.com/2006/02/abortion.html). Been trying to drive some traffic your way so it would be nice if it were fixed. You might try heading back into blogger, clicking edit posts, edit the post and hit publish again.
hmm, maybe I spoke too soon - it seems to be working now.
Thanks. I made the mistake of attempting to edit my template manually. I just started this and am not a "code talker" so I screwed up something and had to republish in a new template.
I appreciate your help. it should be working fine now. I think.
I choose 1. Whether you consider the fetus to have rights or not, the fetus is completely reliant on the woman's body for survival, and the woman's body belongs to her. A woman's body does not belong to a fetus, or her husband, or her father, or her congressman, nor any other person, except for herself. Perhaps if we took all the money pushing abstinence only as a method of birth control, and all the money pushing the Modern Narrow View Of Jesus down throats... and instead put that money into proactive family planning programs that taught real birth control, and provided services to help women living below the poverty line, we wouldn't need so many abortions. Perhaps if a woman's right to have control of her body, to decide when it is the right time to have a child... perhaps if we helped poor women get better access to birth control, we could eliminate the abortion problem altogether.
I put forth that if we could get the fundies to stop pretending that sex is bad, and agree that maybe God would prefer the pill to an abortion... well maybe the problem would go away...? Or is this problem really about control?
On what legal or moral basis can the argument that dependency means a living being may be killed by the person on whom the being is dependent for any reason deemed sufficient by that one person.
Do you not perceive some frightening ramifications flowing from that line of logic?
It is popular in some circles to to try to make the pregnant woman a "victim" (of men, the government, society in general...) and therefore justify her decision to kill as if some "parasite" has invaded her body without any contribution from her actions and is threatening her very existence.
A pregnancy resulting from forcible rape might be viewed that way but it seems rather farfetched to suggest that unavailability of birth control can cause the the 99.99% of abortions that have nothing to do with rape in that manner. Even if we ignore the plain reality that birth control is widely available to anyone who wants it, including minors and that a only a statisitically irrelevant number of people fail to grasp the concept that sexual intercourse can result in pregnancy that "argument" is profoundly weak. It boils down to: "I have the right to end a life because only I have any cognizable interest in that life because it is inside me and no one else can be allowed any interest in that life because I have the physically dominant position with respect to it."
I might turn your question of whether it's about "control" around on you. first because you equate physical dominance with the absolute right to control. I'd also ask if the radical feminist position on abortion is not just as much about control as the "fundie" position because the abortion position seems motivated far more by a broad and abstract political ideology that is desired to prevail than about anything having to do with specific real world issues surrounding almost alll abortions.
I pick answer 4 (it is a legislative question).
Answer 2 seems unworkable to me, since the constitution defines what power the government has or does not have, but it is not a list of statutes.
I don't see anything in the constitution which limits the state's ability to enact laws which attempt to protect life, or potential life, prior to birth. Thus, answer 1 is out for me.
That leaves 3 and 4, with the balancing done either by the judiciary (option 3), or by the elected legislature (option 4). And for me, at least legislators must stand for re-election.
Arguments over whether it is good policy to ciminalize abortion are just that: policy arguments. And good ones at that - once you get into the details of abortion statutes, the pro-life argument begins to loose its steam: should it be the equivalent of murder? Should the mother AND the doctor/abortionist be charged? What about the father who drove the mother to the abortionist - was he a co-conspirator? If you don't charge the mother, why not? Should it be a misdemeanor, or a felony? Manditory minimums? All are policy arguments, not rights arguments. Will criminalizing abortion actually stop it? Will the problems created by prohibition (illegal abortions, women dying, etc.) outweigh the problem the state attempted to solve (reducing abortions)?
We do consider parents, whether they continue to want to be parents or not, to have legal responsibility to their children. Those who accept responsibility to care for children also voluntarily take on that duty of care. Can the state require a woman (assuming she wasn't raped, and was old enough to voluntarily engage in sex) to provide a duty of care and support to her unborn child? If she voluntarily engaged in the act of procreation, knowing full well she may become pregnant hand have a life growing inside her, then the argument could be made that she assumed responsibility for that life, at least until it can survive outside the womb (of course, a newborn cannot survive on its own, but that is another issues itself).
Similarly, men who father children can be held financially responsible for their children until their 18th birthday unless a court removes their parental rights and responsibilities - even if they didn't want to become a father when they had sex with the child's mother. Does the fact that pregnancy is much more physically burdensome to a woman than financial burdens can be to men matter?
All policy questions - and good ones.
With some exception, we seem to have a consensus that abortion regulation should be treated as a policy question decided by state legislatures.
Let's now put the "rights" issues aside (I know it's hard for some) and simply assume that ANY degree of regulation is possible from no regulation abortion on demand to complete prohibition and criminalization.
What, if any, level of regulation, would you choose to support and why?
(Anyone new who hasn't chimed in with their views on the "sights" issues or the forum where the conflict should be resolved should still feel free to do so.)
Ah, the normative question. I am unwilling to embrace an outright, all-circumstances ban, because I'm not a doctor and it does seem to me that there are going to be times when abortion is medically necessary to prevent the death or serious injury of the mother. So it should always be illegal except for cases where two doctors, one non-attending, certify that it is a medical necessity.
However, this is where the idea of a culture of life comes into play: what circumstances merit it cannot be specifically delineated by positive law, which inevitably leaves scope for physician discretion - which is, of course, an open door for physician abuse. The culture of life, to me, means that all efforts should be made to save both the mother AND the child; being pro-life is a statement that the child has MORE worth than some suggest, rather than that the mother has LESS worth than some suggest. BOTH are valuable, and should be treated as such. If a child is unlikely to survive outside the womb, that is not adequate reason to abort it; if a child is unlikely to survive outside the womb AND there is a possibility that the mother would face complications resulting from giving birth (naturally or c-section), THEN an abortion MAY, conceivably, be appropriate, depending on the severity of each possibility; if the child is unlikely to survive outside the womb AND there is a STRONG possibility that the mother would face serious injury or even death, then abortion becomes a more permissable option. But it should only ever be a last resort when no other option is available, that is, when it becomes clear that it is impossible to save both mother and baby, the mother should be the primary focus of care.
Of course, life and health exceptions are used as loopholes by abortionists, which is the reason the pro-life lobby opposes such exceptions. But I tend to think that when a doctor abuses his discretion and prescribes medication to induce death ("assisted suicide"), such doctors usually develop a cognizable pattern, and are investigated and prosecuted. This, of course, requires both a Republican legislature to pass the law and a Republican executive willing to execute it faithfully.
This scheme falls somewhere short of outright banning abortion, but I believe it would render not just the majority, but the overwhelming majority of abortions carried out in the United States today, by taking the option off the table except in cases of genuine and dire medical necessity.
I mostly concur. I'd allow abortions where it was determined that the pregancy created a real risk of death or serious, permanent PHYSICAL harm to the mother. As alluded to by Simon, the current "harm" standard (which is applicable only during the third trimester under the Roe holding) includes potential emotional or psychological harms that basically allow any abortion to be performed. When the "exception" swallows the rule it is but meaningless formality.
I'd also require that such finding be made by a doctor not in any way affilliated with the doctor who would perform and profit from the abortion.
The most troubling issues to deal with (although real world examples are VERY VERY rare contrary to pro-choice propaganda) are those surrounding the rape/incest pregnancy. I find it almost impossible to resolve as the unborn is clearly entirely faultless but the pschological and emotional trauma to the potential mother are so compelling I would allow it in cases where there is evidence to establish the claim that the pregnancy resulted from rapeincest. I recognize this creates a rather large "loophole" and it would be abused by false assertions from time to time, but nothing can be perfect when human beings are involved.
I, too, find the rape and incest scenario compelling, but I feel compelled to the opposite conclusion - that being pro-life is a statement that the child has worth, and should not be held responsible for the circumstances of their conception. If this holds true when contraception was simlpy forgotten, it seems to me that it must also hold true in even terrible situations. However, while I think that logic compels that conclusion, I think that would be a leap too far for almost everyone else in the country, pro-life or not, so I would be content with a law that allowed such a loophole, under the "somewhat better is still better" rubric.
http://www.nytimes.com/2004/07/18/magazine/18LIVES.html?ex=1247889600&en=f4176027eece64e3&ei=5090&partner=rssuserland
Put aside issues of law, politics and procedure. Read this and tell me if anyone can think of any moral jutification for this woman. what she did is perfectly legal but is there anybody who wants to argue it was right?
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