Partially Constitutional?

Julian Sanchez | June 5, 2003

Cartoonist Barry Deutsch has a pair of interesting posts on the constitutionality of the new "partial birth" abortion bans.

Comments

|6.5.03 @ 6:21AM|#

Isn't that discriminating against a fetus on the basis of age? Shouldn't all unborn individuals be protected equally?

Interesting how we can assume a superior air while making light of a groups opposition to what they consider murder, isn't it? How cromagnon of those Republicans to oppose murder! And I'm pro-abortion (as opposed to "pro-choice", which I consider the wussy can't-win-the-argument-on-its-face wording for "pro-abortion". Besides, the only choice pro-choicers care about is the choice to an abortion).

Kevin Carson|6.5.03 @ 6:37AM|#

Jough:

The people who call themselves "pro-choice" are still a step above those who use the smarmy phrase "a woman's right to choose." To use such a treacly expression must indicate a REALLY bad fear of using the word "abortion."

In this case, the pro-lifers are attempting to score rhetorical points by emphasizing a procedure that is relatively rare, and tar the whole abortion industry with the bad image associated with PBA's. It's kind of a mirror-image of the disingenuousness of pro-choicers who keep bringing up rape and incest when such circumstances account for a miniscule percentage of abortions.

Sean|6.5.03 @ 6:42AM|#

Just because some one thinks they are defending against murder doesn't mean they shouldn't be mocked. Veggies say, "meat is murder" and I think they're pretty funny too. Some say, "capital punishment is murder" and they deserve a good ribbing as well. Just because some one gets on their self-righteous high horse, doesn't mean they should be safe from mockery. If some one comes up to you and says the AIDS virus has a right to live and AIDS research is state sanctioned murder, laugh in their face. If they start a movement and try and affect law, try to get others to mock them as well. It's part of the battle. Feel free to mock me if you disagree.

|6.5.03 @ 7:38AM|#

Kevin-

So we shouldn't ban things we all think are bad, for fear that we're somehow tarring things that are somehow vaguely similar?

On your planet do you legalize drive-by shootings because you don't want people to think you disapprove of wearing gang colors?

Lefty|6.5.03 @ 7:44AM|#

We are BORN with certain inalienable rights. The woman's choice trumps in this case.

Phil|6.5.03 @ 8:29AM|#

All of these comments are very interesting, but do nothing to address the simple fact that none of Congress's enumerated powers allow it to regulate abortion at all. So much for Republican worship of Federalism; it's an annoyance to be dispensed with when there's a goal to be reached.

James Merritt|6.5.03 @ 8:48AM|#

"We are BORN with certain inalienable rights. The woman's choice trumps in this case." -Lefty

Actually, the correct phrase is, "all ... are endowed by their Creator with certain unalienable Rights, that among these are Life..."

There is no indication that the endowment is contingent upon first being "born."

The Constitution's Fourteenth Amendment confirms US and State citizenship for "all persons born or naturalized in the United States..." The Right to Life, however, has never been seen as contingent upon citizenship (unless you are an enemy combatant, I suppose).

|6.5.03 @ 10:09AM|#

I agree we should mock people who make ridiculous assertions like "meat is murder". Meat is the killing of creatures for sure (abortion?), but that does not fit the definition of murder (neither does abortion), so we can mock it for being untrue. If their statement was "meat kills animals", we could still mock them (to make em mad) but our position would be fairly weak since meat actually does kill animals. (oh I dream of a day when we can grow a side of beef...)

I just hate slogans that hide or sidestep what the core discussion should be. Things like, "the protection of marriage act", "assault weapon ban", "womans right to choose", are all annoying because the titles are intentionally or unintentionally dishonest to some extent...meant to provoke a reaction of, "how can I disagree with that?" Not that anyone was really disagreeing with me...

Lefty|6.5.03 @ 11:23AM|#

James, I stand corrected. I was working off the top of my head and was surprised when I referenced it.

It doesn't change my opinion, of course, but I appreciate the correction.

cinquo|6.6.03 @ 1:06AM|#

what disgusts me is when pro-abortion people call abortion a "human right."

it may be that people will do it anyway, its impossible to stop, blah blah blah, but lets not pretend that it isn't killing an unborn human being for very selfish reasons. abortionists are completely anti-human and shit on the rights of people who happen to be unborn.

now shitting on the weak and defensless is probably human nature so it is impossible to legistlate completely against it -- but do NOT put yourself on a pedistal and call yourself an advocate of HUMAN rights if you are pro-abortion.

Sean|6.6.03 @ 1:17AM|#

"now shitting on the weak and defensless is probably human nature so it is impossible to legistlate completely against it -- but do NOT put yourself on a pedistal and call yourself an advocate of HUMAN rights if you are pro-abortion."

If shitting on the weak is human nature, and abortion is shitting on the weak, is not then defense of abortion also defense of human nature, therefore making defenders of abortion also advocates of human rights?

At least by cinquo's logic it does, despite her insistance otherwise.

Plutarck|6.6.03 @ 1:44AM|#

Just thought I'd throw this in here (felt like it):

SELFISH, adj.
Devoid of consideration for the selfishness of others.

cinquo|6.6.03 @ 1:45AM|#

you are confusing human nature and human rights. it is human nature to steal, kill, etc under differnet circumtances.

but rights are supposably universal. people will always kills, steal, lie, etc. but that doesn't mean it is morally correct (it would be stupid to advocate legistation to ban lying, but that doesn't mean is right and I would say those who advocate lying are immoral. they are hypocrites too if they defend 'lying' as a human right).

Jim N|6.6.03 @ 2:39AM|#

James, it was surprising because so many of your comments seem to read like the latest LP press release.

When I read your comment about the constitution, I thought you were extending the right to life to the unborn. I guess, reading your later comments, that you do extend that right in a moral sense, but not a legal sense. If you had seen it as a legal right, then you very much would have been straying from party line, and as far as I know it would be the first time you had done so on these boards.

fredH|6.6.03 @ 3:32AM|#

Good one, Plutarck. That definition is worthy of Ambrose Bierce.

James Merritt|6.6.03 @ 4:12AM|#

"James, it was surprising because so many of your comments seem to read like the latest LP press release." -Jim N

But better worded and more persuasive, I hope! Ha ha!

As I said, there is a remarkable and satisfying correspondence between my views and the LP platform -- otherwise I wouldn't be a member or or support the LP -- but as I am not a party functionary or candidate, and as I came to my libertarianism via a peripatetic and eclectic path, that correspondence is not an identity by any means.

I try to be careful to represent the LP properly and accurately when I speak of it, however, just as I try to represent the constitution accurately. I also see a fair amount of unearned LP bashing going on in blogs like this, and, like most Americans, I tend to jump in to defend the underdog. I am particularly concerned about recent efforts by the major parties to lure LP members or potential LP voters back into playing the GOP-Demo good-cop, bad-cop game, but that's way off topic, although it may explain why I often seem to be rising to the LP's defense. It IS under attack. But then, so is Liberty in the modern day.

James Merritt|6.6.03 @ 4:32AM|#

"James, you wouldn't be happening to stray from LP party-line, would you? Very surprising." -Jim N

Why surprising? And what makes you think I stray? I personally don't think that government has any business "regulating" abortion at all. But, just as being against the drug war doesn't imply an endorsement of drug use or abuse, being against government intervention in the issue of abortion is not by any stretch an endorsement of abortion.

The LP Party line is that government should neither prohibit, nor promote/finance abortions. My position is consistent with that, but I still wish to minimize the practice of abortion. I think that more harm than good will come from categorizing abortion as murder. I believe, rather, that the most effective way of minimizing abortion is through non-governmental persuasion and education, backed up by the provision of real alternatives, both for women who find themselves considering abortion, as well as for those of either sex who do not wish to cause or experience pregnancy in the first place.

The best way to deal with abortion, I think, is not to deny that "choice," but rather to provide much better alternative "choices."

Lest you think I am trying to dance nimbly away from your suggestion that I may have deviated from the LP party line, let me state, flat out, that I don't hesitate to disagree with the LP when I think they are wrong. I completely and publicly disagreed with the LP position on NAFTA, for example. The LP held their noses and endorsed it. I thought it was a bad idea then; I still think it is a bad idea, and GATT/WTO too. You don't need huge bureaucracies and thousands of pages of regulations, just to enable free trade. The US Constitution does it -- requiring free trade between the States -- in just a few sentences.

I like the LP, but I don't get my libertarianism out of any party's campaign book or platform. So I have, from time to time, disagreed with the party and/or its officials or leading candidates. Despite breaking with the party line on occasion, I still recognize the LP as the one notable US political party that is mostly in agreement with me -- far more so than any of the others -- and so I support and recommend them.

My views on abortion and my party orthodoxy, of course, are largely irrelevant to the question of whether the rights mentioned in the Declaration of Independence and Constitution kick in before birth, at birth, or sometime afterward. The quotes I provided speak for themselves, and did, long before anyone attached the term "libertarian" to a political movement or party.

|6.6.03 @ 9:07AM|#

"just hate slogans that hide or sidestep what the core discussion should be. Things like, "the protection of marriage act", "assault weapon ban", "womans right to choose", are all annoying because the titles are intentionally or unintentionally dishonest to some extent...meant to provoke a reaction of, "how can I disagree with that?" Not that anyone was really disagreeing with me..."

I quite agree, and you can add to your list my personal favorite, "The United States Patriot Act" - yes, anyone who would dare cry "Give my liberty, or give me death" is a most un-american cur indeed.


However, I will take some small issue with the usage of the word "murder". While according the dictionary you are right, in that "meat is murder" uses murder as a noun, and is as such apparently misused - and it is certainly used intentionally to provoke an emotional response.

However, the odd part is when 'murder' is used as a verb transitive it gains the alternative dictionary definitions of "To kill brutally or inhumanl," and "To put an end to; destroy." So, to be entirely grammatically and philosophically correct, "Meat is murder" would have to be changed to "To unneccessarily kill an animal so as to eat it is to murder it"...but you know, that's sort of cumbersome and really quite difficult to comfortably fit on a T-Shirt, bumpersticker, or placard. That, and it's sorta hard to shout out quickly in situations such as forcing the message into, say, a live broadcast, or when you are being carted away by The Man.

So, it seems the use of murder is to note a brutal, inhuman or inhumane practice - which isn't a precisely correct use, according to a strict grammatical application of the dictionary, though it seems rather minor technical quibble.

Of course, I still find it a bit amusing that "humane", which comes from Middle English for "human", is the word which denotes kindness, mercy, or compassion. Hee, hee, hee.

fredH|6.6.03 @ 10:02AM|#

James:

I agree with you that abortion should be legal, but that we should try to minimize its use by providing alternatives. One of the most obvious alternatives would be to develop more effective means of birth control, which would reduce unwanted pregnancies and hence abortions. Unfortunately, threats of lawsuits have deterred almost everybody who might want to develop such methods. The Dalkon shield case looms large.

One would think that reducing the number of abortions by reducing the number of unwanted pregnancies would be a program that both sides of the debate could get behind, thus finding some common ground. But it seems to me that the most vocal opponents of abortion seem also to be against sex education and the development of more effective birth control. This leads me to think that fanatical opposition to abortion is really a symptom of a world view that is, au fond, either pro-natal or anti-sex. The former is bizarre in a world that is severely overpopulated, and the later is itelf a symptom of serious mental derangement.

Sean:

Good point about mocking fanatics. H. L. Mencken said that when dealing with such people, one horse laugh is worth ten thousand syllogisms.

Will|6.6.03 @ 10:22AM|#

James, The issue is the scope of "all persons," isn't it?

JDM|6.6.03 @ 10:27AM|#

"The former is bizarre *in a world that is severely overpopulated*"

What does a horse laugh sound like?

|6.6.03 @ 10:44AM|#

FredH,

I have no figures to back me up, but I seem to recall that contraception failure is a relatively small factor in unwanted pregnancy, compared to unprotected sex. In other words, this is not a technological issue, so much as a cultural/educational one.

omnibus bill|6.6.03 @ 10:49AM|#

The scope of the pro-women's-right-to-economic-self-determination-and-individual-liberty crowd's position was indicated by Senator Boxer during debate with Senator Rick "Man's best friend" Santorum. He sarcastically asked Boxer exactly when the right to life attached to the fetus. Senator Boxer replied, in all seriousness, "when the mother chooses to take it home from the hospital."

Julian|6.6.03 @ 10:52AM|#

Well, the two aren't totally unconnected. Let's face it: nobody particularly /likes/ condoms; they're something people (and obviously not all people) put up with because they're necessary. If there were a safe and effective male version of "the pill," or if the female version could be improved to get rid of some of the side effects that make some people eschew it, you'd probably see much higher rates of use. So to some extent, better technology could lower the cultural or psychological resistance to birth control.

|6.6.03 @ 11:13AM|#

It was a funny cartoon, though.

|6.6.03 @ 11:24AM|#

Bill,

'He sarcastically asked Boxer exactly when the right to life attached to the fetus. Senator Boxer replied, in all seriousness, "when the mother chooses to take it home from the hospital."'

And by pushing to make the killing of a fetus count as a murder, while insisting that doing so will not have any impact on legal abortions, the anti-abortion movement has enshrined that principle into law. Thanks, guys!

dhex|6.6.03 @ 11:41AM|#

well, it is murder. it's just a form of murder some of us (including myself) would like to keep legal, if only because it'd cause more chaos to illegalize it. just like capital punishment is murder. it's just a form of murder people are comfortable with. (not including myself)

i did sex education for a good three years in college and like with driving like crazy assholes and polydrug stimulant abuse (or polychip snack abuse) everyone seems to live under the cloud of "it can't happen to me." no matter how many oozing sore slideshows you do, you'll still see the same kids doing the "i was drunk and blah blah blah" routine. just sad.

fredH|6.6.03 @ 11:44AM|#

JDM:

Believing that the world is overpopulated is not being fanatical; it's just my opinion. Advocating some sort of fascistic response to the situation, such as mandatory birth control a la China, would be fanatical. I do not, nor would I ever, advocate anything of the kind. All I advocate is giving people more options for having sex without producing children if they don't want them. It is as fanatical to demand that people produce and raise children as it would be to force them not to.

harDCore|6.6.03 @ 11:48AM|#

Do I need to mention that pratically everyone that has posted on here is a DUDE???

Dudes - Get your prostates checked and let women waste their time arguing about sh1t that doesn't affect us.

James Merritt|6.6.03 @ 12:08PM|#

** fredH says, "But it seems to me that the most vocal opponents of abortion seem also to be against sex education and the development of more effective birth control."

I support more effective birth control. I am, in theory, in favor of better sex education, but I have noticed that its introduction, earlier and earlier into the public school curriculum (e.g., it was high-school senior stuff when I was in school, but is now being taught to sixth-graders)seems only to add fuel to a sexual awareness wildfire that has been working its way, into the lower grades, for years. I have noticed that my sixth grade son doesn't really want to know about sex or its technicalities, yet "family life" class forces him to sit through it on a regular basis. He, and many of his classmates, are still kids. I'm talking about children with teddy bears or unicorns, security blankets, superhero bendie-toys, and the like. Why intrude on the childhoods of all at this point, merely because they will likely need the information within a few years, or because a few precocious pre-teens may need it now?

Back when there was controversy over whether I and other members of the senior class in high school should be exposed to sex education, some people said, "if we talk about sex in the schools, we'll just inspire more sex among our kids." I thought that was a silly point of view, when considering teen-age high school upperclassmen, who were already raging hormone factories (as I was, also),and could hardly think about sex any more than they already did. But there IS a line, ahead of which a child is as unaware and unconcerned with sex as sex, as he will ever be; and immediately after which, he is as aware and concerned with sex as he is ever likely to be. Sex education is appropriate FOR THAT PERSON when he or she is about to cross over that line, which is drawn at a unique place for each individual. The current public school approach, to talk about sex in elementary school, means that a great many kids are hearing inappropriate sex talk, long before they are ready for it. It is difficult for me to believe that this priming doesn't makes kids, some kids, at least, sexually aware and active all the earlier. I can't understand how that can be a good thing. There is a fine line between educating people about an activity, and encouraging it. It seems, in some cases, that we have definitely crossed that line, however unintentionally.

To sum up, while I am not at all against sex education, I do think it can be approached more thoughtfully and judiciously than I have seen it done in public schools in recent years. I also wish that more parents would take the lead in knowing when to provide this information to their children, and in doing so authoritatively, instead of leaving the job to the one-size-fits-all schools.

** Will says, "James, The issue is the scope of 'all persons,' isn't it?"

Yes, I think so, but I nevertheless very much believe that if we recodify the laws to establish and respect rights of embryos and fetuses, as some advocate, we will be letting ourselves in for a considerable amount of social trouble that could be avoided without lessening real protection for the unborn, were we to leave the issues and problems of unwanted pregnancies, birth control, and abortions to the civil society. To me, government and laws really do seem like profoundly inappropriate tools for dealing with this matter.

Jim N|6.6.03 @ 12:30PM|#

James, you wouldn't be happening to stray from LP party-line, would you? Very surprising.

Federal regulations on abortion may in fact be unconstitutional (I think it's debatable), but from that standpoint is Roe v. Wade any less odious?

Jacob Sullum had an interesting article on this subject recently.

JDM|6.6.03 @ 12:43PM|#

FredH,

The laugh is for the opinion that the world is overpopulated, which is the result of propaganda spread by fanatics. Any rational evaluation of the arguments shows this.

fredH|6.6.03 @ 12:53PM|#

James:

Well put. There is no doubt that the educrats have in many schools handled sex education in the same ham-handed way that they handle so many things. I did not have thoughtful people like you in mind when I referred to those who oppose both abortion and more effective birth control. I was thinking about the moss-backed crowd whose only response to sex is "just say no." These people think sex is dirty or evil, and out of embarassment they can't or won't explain it to their kids. So who will? I don't like leaving it in the hands of the educational establishment any more than you do, but what are the other options? In the ideal world, each individual child would be taught at the appropriate time, as you so eloquently advocated. But how do we get there. I don't have the answer. I just wish more people would think about the problem; then we might find one.

Rosenbaum Dennis|9.10.04 @ 12:24AM|#

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