Nick Gillespie | November 14, 2005
OK, so it seems that Supreme Court Nominee Sam Alito doesn't--or at least didn't in 1985--think there's a right to abortion:
Judge Samuel A. Alito Jr., President Bush's Supreme Court nominee, wrote that "the Constitution does not protect a right to an abortion" in a 1985 document obtained by The Washington Times.
"I personally believe very strongly" in this legal position, Mr. Alito wrote on his application to become deputy assistant to Attorney General Edwin I. Meese III.
More here. (And some reasons--among an almost infinite supply--of why Ed Meese is a horse's ass here.)
But what about the Bible and abortion? Reader Russ
Dewey Journalist
Jon Basil Utley sends along this disquisition on that topic
from The NY Times, which reads in part:
"I can't take you to text that says, 'Don't commit abortion,' " said Michael J. Gorman, a professor of New Testament and early church history and dean of the Ecumenical Institute of Theology at St. Mary's Seminary and University, located in Baltimore. "It just doesn't exist."
Does that mean the Bible has nothing to offer on the issue? Mr. Gorman, who calls himself an evangelical, cites the early church's opposition to abortion and broader themes that suffuse the Scriptures, rather than specific verses: "There's an impetus in the Bible toward the protection of the innocent, protection for the weak, respect for life, respect for God's creation."
Whole thing here. Born-again ex-pres Jimmy Carter recently came out as emhatically anti-abortion here, which as many readers pointed out doesn't necessarily mean he thinks abortion should be outlawed.
And just so we don't confuse religion and the state, let's remember Roger Williams, the visionary Baptist who thought that the Catholic Church was indeed the whore of Revelation and still insisted on a secular government in which all individuals were guaranteed the right of conscience.
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The Supreme Court is not obligated to hear appeals (with maybe a
few exceptions in the Constitution? something about original
jurisdiction? I dunno).
If I were a SCOTUS Justice, I would always vote to not hear any
abortion-related appeal. No matter how the lower court ruled, I
would vote against taking the case.
And if I were a legislator, I would abstain from voting on any bill
dealing with abortion. The only exception would be 10,000 page
omnibus bills with amendments covering every conceivable subject
under the sun. I'd vote against those bills automatically no matter
what was in them.
jf-
I was rehearsing my campaign speech and crowd handling techniques
at Saturday's event. This was after the carpet humping session.
Oh, I also debated Jennifer and called her anti-puppy, pro-cancer. I had the height advantage.
There isn't a Constitutional right to an abortion because the
Constitution provides no definition of when a fetus stops being a
mere object towards which the state has no responsibilities and
starts being a legally protected human being. Without this
definition, arguments on both sides rapidly become
tautologies.
Pro-life: A fetus passed the point of conception is human being so
all the questions of privacy, maternal self-determination etc
simply do not apply anymore than they would to 1 year old child.
The Constitution clearly protects every individual from being
killed arbitrarily, so the Constitution clearly outlaws
abortion.
Pro-Choice: A fetus is not a human being until birth. It the
personal property of the mother to be dealt with as she says fit
(all the more so since it is embedded in her body). Since the
Constitution does not grant the Federal government the right to
regulate abortion, it can't. Since the matter touches on matters so
intensely personal, it is a violation of basic human rights for any
level of government to try and do so, and the Constitution requires
the Federal government to intervene if any State attempts to
abrogate the individuals basic human right.
Both arguments are perfectly logical based on their axiomatic
definitions of when legal protections activate. The courts cardinal
sin in Roe v Wade lay in abrogating to itself the power to define
when a fetus became human based solely on the medical and
scientific ideas of the early 1970's. By drawing such an arbitrary
line (and dividing the issue damn near in the middle at that) they
have laid the groundwork for all the wackiness that has
insured.
All the Constitutional arguments over abortion are ultimately
fruitless because they all hinge on a matter the Constitution does
not address.
It takes a lot of guts to refuse to be swayed by the gaius related arguments surrounding stare decisis. Unless he starts crafting Thomas-like decision, I'd hedge that Alito will fall into the stare decisis camp regarding Roe.
Shannon,
The court system is all about bright line drawing. The difficulty
in drawing such lines does not abrogate the court's responsibility
for doing so. The Constitution provides SCOTUS with the necessary
authority to draw this particular bright line. It does not assert
that they must draw it, but they were well within their bounds in
choosing to do so.
Thoreau, those comments you made about the Vietnam and Iraq War
"Price of America's Freedom" exhibits at the Smithsonian pretty
much negate any chance you have of being elected.
(Why is it I only seem to enjoy people's company when they're doing
things that would negate any chance they might have of being
elected?)
Jennifer, let's not turn this into an Iraq thread.
Why do you hate puppies? And children? And cancer patients?
Thoreau--
For the same reasons you hate America, Mom and apple pie, of
course.
To get back on topic, I wish Alito's attitude were more along
the lines of "The Constitution does not give government the right
to make laws concerning what women can and cannot do in regards to
their reproductive organs."
I'm very tired of these people who insist that they're More
Libertarian Than Thou, and more in love with the idea of a
hands-off government. . . . until the topic switches to
sex.
I agree with Shannon that the main issue is when does a 'human' become human and therefore entitled to whatever rights are 'given'or 'denied' to a citizen. It is interesting that a mother on drugs who harms her fetus can be charged with a crime of neglect , but a mother who aborts is well within her rights to terminate what is at the very least a potential human.
Jennifer : Are you saying that a fetus is nothing more than a female reproductive organ?
I would agree that ANYONE should be in control of their reproductive organs. If a women wants to be artificially inseminated, or have their uterus ripped out , shouldn't matter.If a man wants to give away his seed to someone he will never see , again no problem. But should a fetus be considerd just another organ of the female , or a human being in its own right.
Amusingly enough, since the fetus doesn't become a citizen until it's born, we can still declare it an enemy combatant suspend hc and torture it. Actually come to think of it, can't we now do that after it's born too?
Shannon,
That's not it at all. If I were to run a red light and crash into
you, and you needed a kidney transplant, I am in no way compelled
to give you one. Even though you are, almost certainly, a
human.
If I don't want to do something with my organs, I don't have to do
it. Even at the cost of someone else's life.
Doubled--
No, but I'm saying that a woman shouldn't be forced to bear a child
against her will. At least not in the early stages of pregnancy.
I've said many times that I don't think a fetus acquires "full
human" status, with all the rights that entails, until it's capable
of an independent biological existence outside of the mother.
So no, I don't think a woman who is eight months pregnant should
get an abortion unless her life or serious health is in danger, but
certainly in the first couple of months it's her choice.
Jennifer : Are you saying that a fetus is nothing more than
a female reproductive organ?
Near as I recall, Jennifer has consistently refused to acknowledge
the legitimacy of the pro-life position described by Shannon above.
Her statement today is further evidence of that.
Only when a pro-choice advocate openly admits that a mother has an
absolute right to dispose of an unborn child until the cord is cut
(i.e. the unborn child has zero Natural Rights until physically
detached from the mother), do I accept the righteousness of their
"stay out of my womb!" complaints. Without that admission, their
statements normally ring hollow to me.
All of this is moot. Abortion clinics use equipment purchased from companies operating in more than one state. Clearly Congress has the right to regulate abortions.
Only when a pro-choice advocate openly admits that a mother
has an absolute right to dispose of an unborn child until the cord
is cut (i.e. the unborn child has zero Natural Rights until
physically detached from the mother), do I accept the righteousness
of their "stay out of my womb!" complaints.
No, but I've already said a mother has absolute right to end a
pregnancy before the fetus is capable of an independent biological
existence. How is your comment any less bigoted than if I were to
say "Only when the anti-choice advocate openly admits that a
woman's primary function is to be a babymaker will I accept the
righteousness of their 'Do it for the children!' complaints"?
MP,
"The Constitution provides SCOTUS with the necessary authority
to draw this particular bright line."
How so? The Federal courts only have such powers as are granted by
the Constitution to the Federal government itself. Since the
Constitution does not grant the Federal government the ability to
arbitrarily define when a mass of cells becomes a legally protected
human being the court does not have the power to make that
definition either.
Who in their right mind would create a Constitutional system were
the definition of who is and is not a legally protected human being
lay with 9 unelected individuals? Devoid of any Constitutional
guidance, how could they possibly create such a definition?
References to lower bodies of law wouldn't apply.
This is a question about the fundamental scope of the power of the
state and questions of fundamental scope can only be decided at the
level of the Constitution itself via the amendment process. Letting
the courts, and thus the government itself establish its own scope
is a recipe for runaway state power. We have seen such effects in
attempts in the last few decades to simply define away the 2nd, 5th
and 10th amendments.
Just because we like the consequences of a particular ruling
doesn't mean we should ignore the corrosive effects on the overall
system that a "ends justifies the means" approach has.
Joe: "If I don't want to do something with my organs, I don't
have to do it. Even at the cost of someone else's life."
I always take this line of argument when I hear somebody say, "If
there were no taxes people would starve!" or "We should all get
taxpayer-funded healthcare, because people are dying!" Didn't I use
my organs to make my money? If I have to use my organs at work, and
then (on pain of imprisonment) give the money I made to some person
who would starve or die of illness otherwise, aren't I doing
something with my organs I don't want to do?
I'm very tired of these people who insist that they're More
Libertarian Than Thou, and more in love with the idea of a
hands-off government. . . . until the topic switches to
sex.
That's because sex is yucky and makes baby JEEZ-us cry.
Ever'y sperm is sacred...
Shannon,
You're a Borkian ink botter? Say it ain't so!
BTW, do you think we need a Constitutional amendment to state that
it is Cruel and Unusual Punishment to execute a retard?
do you think we need a Constitutional amendment to state
that it is Cruel and Unusual Punishment to execute a
retard?
Off-topic, of course, but I think if you support the death penalty
(and I do, at least in cases of murder), then I don't see why
retarded killers shouldn't be executed, too. If two vile murders
are committed, and Murderer A has an I.Q. of 100 while Murderer B
has an I.Q. of only fifty, and A is executed but B is not because
of his stupidity, then basically what we're telling A is "We're not
killing you because you're a murderer, but because of your IQ."
Jennifer,
If you are mentally incapable of distinguishing between right from
wrong (as is the case with the severely retarded) you should be
executed for murder? Doesn't murder inherently require the
committer to be cognizent of the act they are committing?
Mitch, if you actually consider money to be the equivalent of
your person, I pity you.
It's just money.
"If I have to use my organs at work, and then (on pain of
imprisonment) give the money I made to some person who would starve
or die of illness otherwise, aren't I doing something with my
organs I don't want to do?" No, working for income is not something
you don't want to do with your organs - or you wouldn't be doing
it.
Jennifer,
Does the existence of the insanity defense tell murderers "we're
executing you because of your sanity?"
If you are mentally incapable of distinguishing between
right from wrong (as is the case with the severely retarded) you
should be executed for murder? Doesn't murder inherently require
the committer to be cognizent of the act they are
committing?
This assumes you view the death penalty as a form of punishment or
as a deterrent. I don't; I view it as flushing murderous waste out
of our society.
Or, to put it another way--we don't put down a rabid dog to punish
him, but because we can't have a stable society with rabid dogs
running around, and it's a stupid waste of limited resources to
keep rabid dogs alive just because "we're too soft-hearted to kill
the poor dears who didn't know any better." The overwhelming
majority of retarded people never hurt anybody; the few who do have
the same bad wiring as normal-intelligence murderers. So get rid of
them.
(And I was never a Reagan fan, but I damned sure thought Hinckley
should have received the death penalty or whatever the hell the law
allows for attempted assassination of a President. I don't buy the
My-Obsession-With-Jodie-Foster-Made-Me-Do-It excuse.)
Also, if you're too stupid or insane to know murder is wrong, you're probably too stupid or insane to grasp the horrible implications of "I'm about to be executed." So even the "keep them alive because it's humane" argument doesn't really stand.
This assumes you view the death penalty as a form of
punishment or as a deterrent. I don't; I view it as flushing
murderous waste out of our society.
Ah...the slippery slope to utilitarian purging. When you can ground
your analysis on some sort of rights theory, then get back to
me.
When you can ground your analysis on some sort of rights
theory, then get back to me.
No thanks; I'm not particularly interested one way or the
other.
Also, if you're too stupid or insane to know murder is
wrong, you're probably too stupid or insane to grasp the horrible
implications of "I'm about to be executed." So even the "keep them
alive because it's humane" argument doesn't really
stand.
must...resist...temptation...to...Godwinize...thread....
urg...overwhelming...
fight it!
phew...I've beat it.
must...resist...temptation...to...Godwinize...thread....urg...overwhelming...fight
it!
Yes, because. . . . holy shit. . . .there's no fucking difference
between executing murderers and killing Jews. . . .ouch. . . .
Shannon again hits a home run with her last post. Abortion , and any other 'rights' i would say , should be determined NOT by the courts , but by the legislature for the reasons she gives .
Jennifer,
If you can justify the execution of an individual for an act that
they had no capacity to understand the consequences of, then you've
taken a step down the slippery slope that leads to the purging of
undesireables. Maybe it is a longer slope than one that puts any
immediate fear into you, but its there.
If you can justify the execution of an individual for an act
that they had no capacity to understand the consequences of, then
you've taken a step down the slippery slope that leads to the
purging of undesireables.
And if you can justify the life imprisonment of an individual for
an act he had no capacity to understand the consequences of, then
you've taken a step down the slippery slope that leads to the
imprisonment of undesirables, right? Of course not. That's why
"slippery slope" is the name of a well-known logical fallacy,
rather than a good argument.
I'm pro-choice on abortion, but I'm not saying 'If you take away a
woman's right to choose, you're starting down a slippery slope that
leads to her having NO say over her body at all.'
Jennifer,
It all depends on the philosophical underpinings of your argument.
Your argument is simply that you want to execute anyone who is
responsible for the death of another. This could, of course,
eventually be used to execute people convicted of manslaughter.
Along another slope, this could also be used to justify the purging
of mental institutions, since if we kill the infirm for an act that
they can't take responsibility for, why not kill them for sucking
off the tit of the state, since they can't be responsible for their
livelyhood?
Eugene Volokh has shown in numerous ways why the Slipperly Slope is
not simply a logical fallacy but a legitimate concern.
I think if you let abortion be legal too long, then stupid people will eventually come to the conclusion that it is okay for people to eat dogs.
MP...
I don't get the leap from executing someone for an action
committed, to executing undesireables for being undesireable. It
seems like we already execute people for murder. We have managed to
avoid pre-emptive action against people capable of murder.
Is the slope really that slick? Are they even on the same hill?
MP--
The problem with the slippery slope argument is that it can be used
against ANYTHING. If the government has the right to imprison
people who commit actual crimes, what's to stop them from
imprisoning people they just don't like? If women can have
abortions, what's to stop us from killing adults we don't like? Or,
if women can't have abortions, what's to protect us from forceable
impregnation? If rape is outlawed, what's to stop the government
from banning consensual sex as well? Yadda, yadda, yadda.
"This assumes you view the death penalty as a form of punishment
or as a deterrent. I don't; I view it as flushing murderous waste
out of our society."
Fortunately, Jennifer, our govenrment is specifically denied the
power to declare persons - any persons - to be sub-human, strangers
to the laws of man. A human being who commits even the most heinous
murder is neither a turd nor a canine - he is a human being who
commited an outrageous act, and we are required to treat him as
one.
"And if you can justify the life imprisonment of an individual for
an act he had no capacity to understand the consequences of, then
you've taken a step down the slippery slope that leads to the
imprisonment of undesirables, right?" Yes, we can execute
murderers. Yes, we can imprison violent felons. No, we cannot treat
like waste, or like rabid dogs, when we do so.
We are bound to consider the issues of agency and responsibility
when dealing with humans, in a way that we are not so bound to
respect them when dealing with lifeless waste or rampaging
animals.
deron,
The slope only becomes genuinely slippery when you remove the
issues of intent and responsibility, as Jennifer proposes to
do.
I'll care less about slippery-slope threats when people don't use every previously-emplaced limitation of our rights to justify additional curtailments.
I'll side with Jennifer, here, sort of... I'll agree that the issue in crime and punishment shouldn't be the level of scienter of the criminal, but the protection of society. The problem for me becomes whether an execution is ever "necessary" to protect society, if we assume that life imprisonment is sufficient to achieve that goal. It then becomes a "cost benefits" analysis, which raises a lot of uncomfortable moral issues.
The slope only becomes genuinely slippery when you remove
the issues of intent and responsibility, as Jennifer proposes to
do.
My concern is with results, not intentions. If a schizophrenic
kills my One True Love I don't give a rat's ass that the schizo
honestly thought he was killing a giant space dragon who would eat
the universe; my concern is that some piece of shit has just carved
an enormous OTL-shaped hole in my life, and now you're telling me
that since the schizo disn't realize he was causing harm
that this somehow matters.
Shannon again hits a home run with her last post. Abortion ,
and any other 'rights' i would say , should be determined NOT by
the courts , but by the legislature for the reasons she gives
.
You know, the legislature is supposed to simply represent the
interests of the voting public, i.e., you. If I'm not supposed to
trust the Supreme Court to determine my rights, why the hell am I
supposed to trust you? How the hell do you know what my
rights should be?
Jennifer, don't a lot of your "what the heck is happening to my
country" arguments rely on the slippery slope? When do we know when
we're on the logically-fallacious slope, and when we're looking at
expected logical sequlae?
the issue in crime and punishment shouldn't be the level of
scienter of the criminal
I totally thought that was a typo until I looked it up. Cool, I'd
somehow never come across that word before.
But you're wrong. :)
Jennifer, don't a lot of your "what the heck is happening to
my country" arguments rely on the slippery slope? When do we know
when we're on the logically-fallacious slope, and when we're
looking at expected logical sequlae?
Good question. I suppose if you want to get really nit-picky you
could claim that ANY predictions of the future could be a slippery
slope issue. Nonetheless, there's a big difference between "If you
let the President lock up accused terrorists without trial, on his
say-so, then soon he could lock up anyone he wants," versus "If you
execute retarded people who commit vile murders then soon you can
execute anyone you feel like."
So where DOES one draw the line between slippery-slope fallacy and
legitimate concerns for the future? I don't know offhand, but I'd
say gutting the Constitution is more likely to lead to an evil
future than allowing the execution of murderers.
Jennifer,
When you've removed individual responsibility and simply allowed
the consequences of ones actions to justify state executions, then
you've opened the door to a whole new realm of executable
offences.
Again, it is the philosophical underpinning that is the key. So
far, yours is simply revenge.
Eric the .5th: Asking juries to look into the heads of defendants to determine "why" they did something invites unequal treatment of similar defendants. That happens anyway, but juries are particularly inappropriate for such an inquiry. I would be OK with having a separate "punishment phase" determined by a publicly-accountable panel of psychiatrists, lay persons, moralists, et al, decide how best to deal with the sniper who thought he was smashing bugs at the time he was gunning down college students, if the ultimate standard is what steps are necessary to protect society, but the notion of "innocence due to insanity" that is the historical basis of our jurisprudence is nonsensical.
Ron,
Defending the insanity defense is harder to do, which is why I
specifically chose the Mentally Infirm issue.
I'd never given Animal Rights or the rights of the infirm much
thought until I read some Nozick. Very eye-opening.
When you've removed individual responsibility and simply
allowed the consequences of ones actions to justify state
executions, then you've opened the door to a whole new realm of
executable offences
Absolutely. If I had my druthers, I'd amend the law so that anybody
who commits a crime which results in the death of an innocent
person is eligible for the death penalty. This includes someone who
breaks into a house and scares the elderly resident into a heart
attack, and corrupt cops or prosecutors or SWAT team members who do
the same thing after busting down the wrong door in a drug
raid.
But mind: saying such people should be eligible for the
death penalty is not the same as saying that every single person
who does such a thing should get the death penalty. There
are, of course, thousands upon thousands of possible mitigating
circumstances which might need to be considered, which is why we
have trials by human judges and juries rather than some
computer-generated standardized justice.
Also, while I support the death penalty for killers in theory, in
practice I have serious qualms with the way it's used in this
country, and I think we HAVE executed some innocents, and so I
support a death-penalty moratorium.
Asking juries to look into the heads of defendants to
determine "why" they did something invites unequal treatment of
similar defendants.
It's also one of the fundamental roots of our system of law. One's
intent can determine not merely how much someone should be punished
for breaking a law, but which law one broke or whether one broke a
law. If you're willing to discard that, you're discarding quite a
bit.
MP: The issue is still the same--how do you best protect society while treating the defendant "fairly". The notion of fairness is subjective, whereas the "whodunnit" aspect can be deduced (albeit possibly incorrectly) from objective evidence. The problem we have today is that the legal system confuses the two, when in fact they are distinct issues.
Jennifer,
"My concern is with results, not intentions." I've got to stop you
right there. Human beings are not mere means to an end. You cannot
treat their lives, their deaths, and their suffering in a purely
utilitarian manner. Not if you wish to retain your own humanity,
anyway. Or if you wish your government to remain humane.
Though I'm beginning to understand why you cling so ferociously to
the counterfactual statement that torture is never useful.
If I had my druthers, I'd amend the law so that anybody who
commits a crime which results in the death of an innocent person is
eligible for the death penalty
[snip]
Also, while I support the death penalty for killers in theory,
in practice I have serious qualms with the way it's used in this
country, and I think we HAVE executed some innocents, and so I
support a death-penalty moratorium.
I would think THAT would give an excellent reason never to pursue
such a policy.
Though I'm beginning to understand why you cling so
ferociously to the counterfactual statement that torture is never
useful.
Actually, I cling ferociously to the statement "torture is
something our government should never do." But I'll bite: what is
the connection you have drawn between these two threads of my
worldview tapestry?
Eric: If the law requires a showing of intent as an element of the crime (and I wish more of our laws did), I have no problem with a jury determining that (anything else would clearly be unconstitutional). The issue for me is how you then determine the appropriate "sentence" if the person is found guilty. That is when all of the subjective factors come in, and I don't see why juries are the best way to determine that. Of course, in some states that issue isn't up to the jury anyway, but I'm not sure having individual judges determine it is the best way either.
Ron - juries in some jurisdictions have the option to rule someone not guity of a crime by reason of insanity or mental defect. It doesn't even get to sentencing.
Also, "sentencing guidelines" and mandatory sentences which apply little subjectivity at all do nothing to protect society, in my view, because the sentences are determined without regard to the threat the individual defendant poses.
Anybody who claims that abortion ought be outlawed for whatever
reason, however well intentioned, needs to explain how such a law
would be enforced, and how the negative consequences of such a law
wouldn't be a million times worse than the negative consequences
you think we have today from having legal abortion.
From a libertarian perspective, I'd think that the necessarily
heavily intrusive and statist characteristics of any feasible
enforcement regime would turn you off immediately even if you think
abortion's always 'wrong'.
Eric: Exactly. Actually, states are beginning to respond to this issue, particularly in the case of "sexual predators", who tend to have a high rate of recidivism. This is simply an acknowledgement that the traditional way of determining prison sentences does not adequately protect society. The same problem applies to the insanity defense. Some states have the concept of "guilty, but insane", which gives the defendant possibly better treatment than other defendants, but still protects society by keeping the person locked up for at least a minimal period of time, regardless of what the shrinks say. I favor that approach, although I think there should be other input besides that of the shrinks.
Jennifer,
Hypothetical for you. You and your One True Love are walking down a
city street. High above, a window-washer, through no intent or
fault of his own, has an extreme run of bad luck and somehow falls
off the side of a building the two of you are passing by. The
window-washer falls directly on your One True Love, who dies, but
breaks the fall of the window-washer, who survives, though badly
injured (perhaps crippled for life).
Would you want the window-washer executed? If not, how is that
different from someone genuinely out of his mind who kills your One
True Live, but never would have dreamed of hurting him while
sane?
Anybody who claims that abortion ought be outlawed for
whatever reason, however well intentioned, needs to explain how
such a law would be enforced, and how the negative consequences of
such a law wouldn't be a million times worse than the negative
consequences you think we have today from having legal
abortion.
Interesting point--I remember reading on BBC a few months back that
in conservative Portugal, where abortion is illegal and most people
are philosophically opposed to it, there's been serious talk of
making it legal because of cases where women who miscarry, and
their doctors, have gone on trial. Yep--you suffer a miscarriage,
and in addition to your biological misery the law will invent more
for you.
Ha! You think the War on Drugs involves invasions of bodily
privacy--wait until you see the War on Abortion.
Anybody who claims that abortion ought be outlawed for
whatever reason, however well intentioned, needs to explain how
such a law would be enforced, and how the negative consequences of
such a law wouldn't be a million times worse than the negative
consequences you think we have today from having legal
abortion.
Interesting point--I remember reading on BBC a few months back that
in conservative Portugal, where abortion is illegal and most people
are philosophically opposed to it, there's been serious talk of
making it legal because of cases where women who miscarry, and
their doctors, have gone on trial. Yep--you suffer a miscarriage,
and in addition to your biological misery the law will heap more
misery on you. Remember where the Constitution authorizes the
creation of a Department of Miscarraige Investigation.
Ha! If you hate urine tests, blood and hair tests, and other
bodily-privacy invasijs of the War on Drugs, just you wait
until you see the War on Abortion!
Anybody who claims that abortion ought be outlawed for
whatever reason, however well intentioned, needs to explain how
such a law would be enforced, and how the negative consequences of
such a law wouldn't be a million times worse than the negative
consequences you think we have today from having legal
abortion.
Damn. Well and concisely put. Good show, M1EK.
Eric: Sorry, I didn't respond to your point. Insanity defense is a different issue, as MP noted, but I have similar views, at least where the potential harm to society is great enough that the mental state of the defendant should probably take a back seat to the protection of the rest of us.
Actually, states are beginning to respond to this issue,
particularly in the case of "sexual predators", who tend to have a
high rate of recidivism.
Actually, the way they tend to handle that is disturbing, though
related to the principle in question. After the convicts have
served their complete sentences, the states often deems them (I
forget the terminology) too dangerous to release and keeps them
incarcerated indefinitely. It's a very troubling priniciple for
people who haven't been ruled mentally incompetent.
You and your One True Love are walking down a city street.
High above, a window-washer, through no intent or fault of his own,
has an extreme run of bad luck and somehow falls off the side of a
building the two of you are passing by. The window-washer falls
directly on your One True Love, who dies, but breaks the fall of
the window-washer, who survives, though badly injured (perhaps
crippled for life). . . . Would you want the window-washer
executed? If not, how is that different from someone genuinely out
of his mind who kills your One True Live, but never would have
dreamed of hurting him while sane?
No. The window washer didn't just lack intent, but even lacked
active behavior or the ability to stop the situation. He's another
victim in a bit of bad luck or circumstance. Not every bad thing
that happens has a person responsible for it.
Jennifer,
Anti-choicers define abortion as a violent crime - one in which
there is a threat to a person's life or limb.
Reasonable suspicion - not the just cause standard necessary to get
a warrant from a judge, but the suspicion by a law enforcement
officer - that there is a threat to life or limb is called "exigent
circumstances." Under these circumstances, police are allowed to
enter onto private property and carry out searches.
Therefore, if abortion were made illegal, the suspicion by the
police that a doctor was performing abortions would make
warrantless searches of doctors' offices, including the sessions
between an Ob/Gyn and his patient, perfectly legal.
Eric: The threat to society from sexual predators is pretty well established at this point. The issues for me are (a) who decides who gets released and who doesn't, and (b)under what conditions? I don't think we've come up with the best answer for that yet, but I don't have a problem going that direction (and away from fixed sentences), as long as we don't start applying similar standards to pickpockets (that "slippery slope" we've been talking about).
You know, there once would have been a time when Americans would
have been incredulous at the thought that American citizens who
aren't even convicted criminals would routinely have to undergo
certain types of mandatory drug testing. How demeaning! That's
impossible! It can't happen here! Stop trying to scare peopple with
this talking of "random urine testing," man, you sound
obsessed.
Likewise, it would be totally insane to think that illegal abortion
could possibly lead to certain situations requiring mandatory
pelvic exams to determine if women have ever had abortions.
If the fetus is late term, then there is threat to both life and limb. That is not an anti-choice opinion. Rather, that is a simple fact. In fact, the limbs show right up on photographs or in the medical waste bag. Wanna see some pix, Joe -- or will you trust me on the limbs thing?
Help Wanted. We are a Drug Free Workplace and an Abortion
Free Zone. EOE.
(Translation: prepare to take a drug test and an abortion test if
you want this job.)
Eric: Instead of incarcerating sex offenders beyond the length
of their sentences, it appears lawmakers have found a new tactic -
pulling a "drug-free schools" trick and just
redlining them out of town. And while it's a somewhat
understandable reaction to a difficult problem, it will almost
certainly have the perverse result of making them resort to
criminal activity again.
I've always wondered why we don't just give sex offenders longer
sentences to begin with. It would avoid a lot of this nonsense.
If the fetus is late term, then there is threat to both life
and limb. That is not an anti-choice opinion. Rather, that is a
simple fact.
Ouch. Cognitive dissonance gives me a headache. This comment can't
be from the same Dave W. who is also opposed to the way women can
snag men for child support when the poor guy didn't even know he
was getting someone pregnant.
Wow. Which crude sexist oversimplification best sums it up for you,
Dave--"the bitch should have kept her damned legs together" or "the
bastard should have kept his damned dick dry"? Or is it 50-50, do
you think?
Dave W - the phrase "to a person" is assumed in the "threat to life and limb" argument. Police cannot search your home because a chickadee might die. All you've done is kick the can down the road.
Phil,
Sexual predators are getting long, long terms now. This issue is
coming up because 45 year old child rapists are finishing up the 12
year terms they received in the early 90s.
Likewise, it would be totally insane to think that illegal
abortion could possibly lead to certain situations requiring
mandatory pelvic exams to determine if women have ever had
abortions.
Wow. Pretty cool. In the same thread in which you deride me for
making a Slippery Slope argument, and then deride the concept in
general, you come up with your own.
Pretty much, MP, though the fact that such trials are already occurring in Western European countries where abortion is illegal is enough to give one pause. How do you think the laws against abortion will be enforced, then?
How do you think the laws against abortion will be enforced,
then?
I don't. I agree with both M1EK's pragmatic position and your
"capable of an independent biological existence" position. I
reserve my ire for pro-choicers who believe that the woman's
privacy right goes up to the cutting of the cord, and for
inkblotters like Shannon who ignore the Ninth Amendment and refuse
to acknowledge that the role of a judge is to be a bright line
drawer.
" After the convicts have served their complete sentences, the
states often deems them (I forget the terminology) too dangerous to
release and keeps them incarcerated indefinitely. It's a very
troubling priniciple for people who haven't been ruled mentally
incompetent."
Sex offenders aren't really like other criminals. You can't just
turn someone lose and say - "Ok, have fun, and never act on your
sexual impulses again, ever." They re-offend at a much higher rate.
De-pedophiling a pedophile is pretty much the same idea as
de-gaying a gay. Or gay-ing a hetero.
JDM,
You'd make a great lawyer for the Administration. "We can't let him
out of prison, he's a terrorist!".
"It's a very troubling priniciple for people who haven't been
ruled mentally incompetent."
In fact, there are judicial hearings at which the state is required
to demonstrate that the subject is unable or unwilling to stop his
behavior, and at which the subject is given the opportunity to
refute the government's charges. So the "mental incompetancy"
hearing analogy is quite appropriate, while the "because we say so"
hearings the administration is endorsing for our gulag prisoners is
not.
"There's an impetus in the Bible toward the protection of
the innocent, protection for the weak, respect for
life..."
Sure. :)
Jennifer,
To get back on topic, I wish Alito's attitude were more along
the lines of "The Constitution does not give government the right
to make laws concerning what women can and cannot do in regards to
their reproductive organs."
Which really says nothing about state laws, and state laws are the
heart of this matter (remember both Roe and Casey
dealt with state laws).
That's why "slippery slope" is the name of a well-known logical
fallacy, rather than a good argument.
Slippery slopes exist. Slimpy because sometimes the slippery slope
argument is fallacious doesn't mean that it is always
fallacious.
If I had my druthers, I'd amend the law so that anybody who
commits a crime which results in the death of an innocent person is
eligible for the death penalty. This includes someone who breaks
into a house and scares the elderly resident into a heart
attack...
That already exists under the law. Its called felony murder.
Ron,
It then becomes a "cost benefits" analysis, which raises a lot
of uncomfortable moral issues
You deal with the issue as any good rule utilitarian would.
Happily you will note that the insanity defense is rarely pulled
off. Juries are skeptical of it (according to social science
research on the issue).
Eric the .5b,
The law-trained elite use it a lot. :)
MP,
There is a difference between arguing that one wants to ban
abortions and arguing that the federal Constitution doesn't create
a right to one that the states must honor.
As to the Ninth Amendment, one need not view it as a source of
rights in order to honor its presence. One may indeed simply look
at it the way Madison (apparently) did - as a rule of
construction.
There is a difference between arguing that one wants to ban
abortions and arguing that the federal Constitution doesn't create
a right to one that the states must honor.
Of course, but then you'd be ignoring both Incorporation and
Barnett's understanding of the Ninth. Shannon seemed to be
primarily in denial that the court drew a line rather than simply
making a constructionist argument.
MP,
Well, you do realize that Barnett could be wrong right (I'm not
convinced of his argument because of what Madison said after he
wrote the Ninth Amendment)? And that incorporation by itself is a
problematic concept.
The irony of this statement just has me in stitches:
"There's an impetus in the Bible toward the protection of the
innocent, protection for the weak, respect for life..."
Jennifer & M1EK,
If we were to apply your slippery slope argument to enforcing the
law against murder, the govt would already be mandating daily tests
for powder burns, blood stains, etc, and installing video cameras
in private spaces. As it stands, only a small percentage of murders
will ever be solved; solving every murder would require the loss of
more privacy than we consider it to be worth. Does that mean we
should repeal the usually unenforceable laws against murder?
After all, abortion was illegal throughout the US for many decades,
and mandatory pelvic exams never cropped up.
'You'd make a great lawyer for the Administration. "We can't let
him out of prison, he's a terrorist!".'
Once someone is proven a pedophile or a terrorist (in the blowing
up buildings and subways sense) in a court of law, I'm all for life
sentences. Not sure what your point is.
solving every murder would require the loss of more privacy
than we consider it to be worth. Does that mean we should repeal
the usually unenforceable laws against murder?
"Usually unenforceable?" How many unsolved murders are their per
year compared to the population as a whole?
After all, abortion was illegal throughout the US for many
decades, and mandatory pelvic exams never cropped up.
Yes, and drug use was illegal for many decades before testing
cropped up. But now that the inexpensive medical technology is
there, suddenly bodily integrity is no longer a right, and urine,
blood and hair testing became fairly commonplace.
And drug users aren't even assumed by the law to be murderers, the
way abortionists and abortion recipients would be.
JDM,
Now, if you argued that an individual merely accused of being an
active pedophile should be detained forever, etc. that would be
another thing entirely.
Clearly we could simply expand the length of sentences for those
found guilty of such crimes (pre-conviction obviously and barring
some miracle drug, procedure, etc.).
In other news, Britain has gotten rid of the concept of
double-jeopardy.
Jennifer,
Not a single American, except for those convicted of drug-related
crimes, faces mandatory drug testing. All testing is done on a
voluntary basis, including employment-related testing, since
employment is, after all, voluntary.
In any event, the analogy fails since pelvic exams were hardly
impossible or novel in the days of abortion being illegal.
"After all, abortion was illegal throughout the US for many
decades, and mandatory pelvic exams never cropped up."
But (many) people did suffer serious consequences (or even die)
from botched illegal abortions. Oops.
Well, you do realize that Barnett could be wrong right (I'm
not convinced of his argument because of what Madison said after he
wrote the Ninth Amendment)? And that incorporation by itself is a
problematic concept.
Yup. My focal point in calling out Shannon was the issue of line
drawing. But I'll always counter anyone who claims that SCOTUS had
no right to even decide Roe with opposing Constitutional
theory.
In other news, Britain has gotten rid of the concept of
double-jeopardy.
But only in light of strong new evidence. Like that will never get
abused. HA! The British gave up their freedom long ago.
Suckers.
Not a single American, except for those convicted of
drug-related crimes, faces mandatory drug testing.
Except for students. And members of the military (which would be
especially egregious in the evenbt of a draft). And Americans
convicted of any crime can be forced to take them.
Jennifer,
No. The window washer didn't just lack intent, but even lacked
active behavior or the ability to stop the situation. He's another
victim in a bit of bad luck or circumstance. Not every bad thing
that happens has a person responsible for it.
M1EK,
There is no oops. The point is, every non-botched abortion also
results in someone's death.
Jennifer,
Minors, convicts, and members of the military have always had fewer
rights than other citizens, and the latter two categories are
entered by choice. In any event, drug testing has not become
mandatory to the point that you were claiming "abortion testing"
would be if abortion ceased being legal.
Crimethink--
No, but it sets a bad precedent nonetheless. How do you
suppose the anti-abortion laws would be enforced?
crimethink,
If a minor (with his parents) opts out of public schooling, then
they too aren't required to undergo drug testing. Its
situational.
Mitch, if you actually consider money to be the equivalent
of your person, I pity you. ... It's just money.
That's not exactly what Mitch was saying. And I can't imagine
anyone who works for their income being so cavalier as to say "It's
just money" and truly mean it.
When you work to earn an income, you do expend part of yourself.
You expend your time, your energy, your effort. You do literally
expend the energy stored in your body, and to the extent that your
work involves any physical activity at all, you expend wear and
tear on your physical body.
You also trade time and energy you might otherwise have spent
playing ball with your kid or teaching him to walk or fish. Or
having sex or going to dinner and a movie with your spouse. Or
reading and improving your mind. Or writing a love poem. Or
pursuing this idea you have about curing cancer. Or working in a
soup kitchen. Or getting stoned, or eating chocolate, or sleeping,
or whatever else you do that you find pleasurable or rewarding in
some day.
Your money is your life. The part of your life you've transformed
into money.
Money is just the way of keeping track of the wealth you produce
for the person who pays you your income. It is a method of
transforming the value of a specific kind of labor into more
readily transferable forms of wealth. It may seem more abstract
than direct barter, but there's no reason to divorce it entirely
from the actual work you do and what it costs you.
As Mitch pointed out, your money is in fact produced by various of
your organs. Even if you have a very sedentary desk job, you are
using your brain, your eyes and the muscles of your arms and
fingers at least.
When you expend yourself to earn an income, and forego all the
other ways you might have spent your time and energy, that's fine.
Because you've made a choice. The 40 hours you spend a week earning
an income, so you can provide your self and your family with food
and shelter and education and medicine and Xboxes is worth more to
you, quite frankly, than an equivalent 40 hours spent playing ball
with your kid (while the two of you starve). You've decided to
spend your time in pursuit of what means most to you.
And that's cool. But if you force someone to spend 40 hours away
from their kid because you feel the wool industry needs a subsidy,
or because you think "Piss Christ" is actually objectively a very
pretty picture and you feel the artist could use the money, then
that's not so cool. Even if the cause is worthy, someone is still
be forced to expend part of himself for ends not of his
choosing.
I think Mitch raises a valid and interesting point. If you're being
forced to pay for the raising of a children by a state-run
orphanage, for example, then you have to work longer, and sacrifice
more opportunities, to provide the income required for that
payment, beyond what you'd work to support yourself and your own
goals. Unless you've got an actual responsibility to the kids you
are helping to raise, you can claim legitimately that you are being
forced to use your organs to be a parent, albeit indirectly. Yes
you are.
"There is no oops. The point is, every non-botched abortion also
results in someone's death."
crimethink, you blithering Einstien, every botched abortion results
in one OR MORE deaths. Kid definitely dead. Mother often injured,
sometimes dead.
But of course if they were going to abort, they deserved it,
right?
Stevo, I'm not arguing that one has no claim on one's money, or
that it plays no role in one's self. Thrown straw to the contrary,
I'm not a communist.
I'm arguing that such claims pale in comparison to those one can
make on one's body, one's mind, and one's soul. The latter are
given by the Creator, which is to say, are inherent in the
definition of a human being. Wealth, on the other hand, doesn't
even exist outside of society, like social status. It's a lesser
phenomenon, in terms of defining one's selfhood.
joe,
I'm arguing that such claims pale in comparison to those one
can make on one's body, one's mind, and one's soul.
That's called a personal preference.
The latter are given by the Creator, which is to say, are
inherent in the definition of a human being.
Someone could just as easily argue that their job was given to them
by their Creator.
Wealth, on the other hand, doesn't even exist outside of
society, like social status.
Are you suggesting that the way our mind exists, how we are born,
etc. are outside of society? If so, then I have to say that is one
of the dumbest damn things I've seen you write.
It's a lesser phenomenon, in terms of defining one's
selfhood.
According to your personal preference.
Stevo Darkly,
See, money sullies things, whereas joe's "Creator" isn't involved
with money. Ha ha ha. Apparently human beings are only social
animals when it comes to how we make money; when it comes to our
how our mind forms we aren't at all, it comes straight from a
Creator and never changes. Ha ha ha!
Stevo Darkly,
That joe felt compelled to bring out God in order to bolster his
argument should have sent the bullshit detectors off the charts.
See, God made it this way, and you just need to accept my circular
reasoning as fact. :)
Wealth, on the other hand, doesn't even exist outside of
society, like social status.
While money is a creation of society, wealth is not. Even if
society did not exist, humans would seek to gain possession of
things necessary for survival and comfort. Just because wealth
takes the form of money instead of food does not make it a social
construct.
M1EK,
So, saving (or rather prolonging) a few lives that might have been
jeopardized by botched abortions, justify the millions of deaths
caused annually in 'safe' abortions?
How do you suppose the anti-abortion laws would be
enforced?
The same way we enforce laws against other types of murder.
The same way we enforce laws against other types of
murder.
You're dodging the hard question of how the authorities will
determine that a crime has been committed.
MP,
Well, that's the problem with any government mandated regulatory
scheme. That people perfer some types of regulatory schemes over
others is more of an issue of what they want people in society to
do or be allowed to do than a sign of consistency. Jennifer, joe,
etc. want you to have a high degree of personal autonomy when it
comes to abortion, but so much in other areas. Now, its likely that
they have these opinions not based on clear thinking but upon
whatever received knowledge they've gotten over the years,
nevertheless thye are hypocrites on the sybject.
One in four pregnancies in the US ends in miscarriage, and
despite all of our advances, this number is not likely to go down,
given that women are having children later and the risks are
subsequently higher.
In pre-Roe days, doctors who performed a seemingly high number of
D&Cs were called before review boards to see if they were
actually performing abortions. Now we have new medications that
cause abortions that will look like a miscarriage, and you can bet
that if Roe goes down in flames there will be increasing black
market use of these drugs. I can easily envision it becoming
commonplace to require women who miscarry to undergo blood tests to
determine if they really miscarried or if they were
"murderers."
"So, saving (or rather prolonging) a few lives that might have
been jeopardized by botched abortions, justify the millions of
deaths caused annually in 'safe' abortions?"
It'd be more than a "few" lives, and the number of abortions
wouldn't drop from millions to zero either, since rich women would
continue to get abortions as they did before.
That, combined with the necessary invasiveness of any attempt to
actually enforce this law; and the non-medical negative
consequences of such a law (gee, MORE babies born to poor women;
JUST WHAT WE NEED!), make me answer the question: YES, allowing
those fetuses to be legally and safely aborted is the best option
available.
Happy?
So, Alito is against abortion?
If he was against capital punishment do you think there would be
more than a blip on the media radar screens? Would there be 126
comments on a Reason post?
Of course, the same people who are pissed that he's against
abortion would be delighted to find out he was against cap
punsihement. And that opposition would be just part of his
mainstream frame of reference as opposed to his extremist views on
abortion.
Everything is relative, like incest.
"Of course, the same people who are pissed that he's against
abortion would be delighted to find out he was against cap
punsihement."
Really? I'd be disappointed myself. I like having the death penalty
as a Constitutional option, even though I'd also support banning it
at the state level if the legislature so decides.
and the non-medical negative consequences of such a law
(gee, MORE babies born to poor women; JUST WHAT WE NEED!), make me
answer the question: YES, allowing those fetuses to be legally and
safely aborted is the best option available.
Thank you for again demonstrating the connection between legal
abortion and eugenics. It's not just you, though; in Planned
Parenthood's pre-WW2 days, they openly supported eugenics, and were
quite cozy with Nazi Germany...
http://www.spectacle.org/997/richmond.html
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