New at Reason

Julian Sanchez | January 13, 2006

Conservatives are counting on Samuel Alito to reverse Roe v. Wade. Instead, argues Jeff Taylor, he could finally take abortion out of the national spotlight.

Comments

|1.13.06 @ 12:52PM|#

The brand of modern liberalism embodied by the Democratic Party does not recognize that reasonable people might land at different places on any of these issues.

Uh, dude? Hate to break it to you but from what I've seen over the past few years, the brand of modern conservatism embodied by the Republican Party does not recognize that reasonable people might land at different places on any of these issues either.

Still...much of the rest of your piece has some merit, though I disagree with your conclusions.

As in this quote: As a conservative practitioner of a profession that stresses respect for history, continuity and predictability, Alito may ultimately be willing to leave Roe in place.

Credible analysis, as far as it goes. And it fits the pattern of Supreme Court behavior.

But the right is looking for someone to break that tendency. And if Alito and Roberts were to let a golden opportunity pass (and there's one waiting in the wings...mark my words) the Right will go full-tilt berserk.

Ed|1.13.06 @ 1:00PM|#

Whatever happened to the abortion pill? Wasn't that supposed to make 95% of this discussion moot? It was the end of civilization! cried the anti-abortionists. What the hell happened? Were they lying?

|1.13.06 @ 1:58PM|#

Dumb article. How would another decision upholding Roe v Wade put an end to public debate? None of the past decisions have led to diminished debate. This makes no sense.

And why do Reason writers get so coy and wishy-washy when discussing abortion. "The left thinks this, the right thinks this, but libertarians have no opinion -- we'll just sit on the sidelines and mock those who do have strong opinions." Reason writers are rarely so non-commital about issues of personal freedom vs government control.

|1.13.06 @ 2:16PM|#

Isn't the official libertarian position on abortion "you don't have the right to prevent it AT THE POINT OF A GUN!"?

|1.13.06 @ 2:21PM|#

Is it inconsistent to believe in a right to privacy while simultaneously oppose abortion?

I've always felt that privacy was a strange playing field for the abortion debate.

R C Dean|1.13.06 @ 2:35PM|#

Libertarians divide on abortion like just about everyone else, because the core issue of abortion plays the same with libertarians.

If you believe that a fetus is (at least at some point) a "person", then basic libertarian principles pretty much require you to prohibit the mother from terminating that person's life. If you don't believe a fetus has any personhood until the umbilical cord is cut, then the same basic principals take you in the other direction.

As always with abortion, the core issue is whether/when the fetus graduates from lump of tissue which the mother may do with what she will, to a person who has the same right as any other person not to be greased, even by mom.

|1.13.06 @ 2:54PM|#

It's doubtful that the abortion issue will ever dissipate but, if after decades of dilligently working to stack the court in order to overturn one decision, the conservative majority fails to do such, then it's possible that the right-wing may realize the battle for abortion cannot be won in the SCOTUS.

I, for one, do not believe that Roe will ever be overturned absent a truly massive popular movement. It's not uncommon for a recently appointed justice to decide cases differently than they would have before their nomination, almost as if the weight of the Court itself presses and shapes them into a differnt mold.

Despite the activity of anti-abortion activists over the past 30 years, I believe an overturn of Roe would bring about some of the largest and most sustained popular demonstrations in our history. On such a personal decision, it's impossible to decide either way without truly offending (meant in the real, hefty sense of the word) one side. The fact that we've reached a relative stasis in this debate is not something to take lightly.

Dave W.|1.13.06 @ 3:15PM|#

Abortion in the US is an issue with a missing middle in the US.

In Europe they legislate so that abortion must be done early or not at all. Fetuses that look like a lump of tissue are treated as such. fetuses that look like a mini person are treated as people.

You try to put something like this forward in the US and you get shouted down by both sides. Kind of odd bcs Roe versus Wade seems to allow states to legislate as the Europeans have, but states seem to focus on minors and domestic abuse and stuf, instead of a simple directive to women that says: "if you are gonna do this, do it before a capacity to think and feel pain develops."

(At least most of) Europe has a significantly lower abortion rate than the US, which disparity I think the US should be ashamed of. the relative economic freedom of the US should make abortin rare, but that theory doesn't make it to practice somehow.

Mike Laursen|1.13.06 @ 3:35PM|#

And the brand of modern libertarianism embodied by the purists who dominate the Libertarian Party does not recognize that reasonable people might land at different places on libertarian issues.

Mike|1.13.06 @ 3:42PM|#

the relative economic freedom of the US should make abortin rare, but that theory doesn't make it to practice somehow.

Why should it? The wealth of Americans makes abortion affordable. The social freedom most women in this country enjoy make it an option. In fact, the economic freedom we enjoy is probably *why* we have more abortions.

|1.13.06 @ 3:58PM|#

RC, "If you believe that a fetus is (at least at some point) a "person", then basic libertarian principles pretty much require you to prohibit the mother from terminating that person's life."

Can I have your kidney? I really need it. I really need your organ to live. (You in the back, what's so funny?) Seriously, are you going to respect my right as a person to live, or not?

Seriously, dude, you don't think it's right to compel someone to use his money to keep someone else alive, but you're ok with compelling someone to use her uterus? Howzat work?

|1.13.06 @ 4:07PM|#

states seem to focus on minors and domestic abuse and stuf, instead of a simple directive to women that says: "if you are gonna do this, do it before a capacity to think and feel pain develops."

Lots of women would prefer to do exactly that, but . . . people of certain political inclincations are constantly erecting barriers in their place, like a lack of access to adequate information, only one clinic in an entire state with one doctor that only works 10 days a month there, required 72-hour waiting periods, required seminars on different options, ad nauseum. Again, these is the doing of conservatives.

(At least most of) Europe has a significantly lower abortion rate than the US, which disparity I think the US should be ashamed of. the relative economic freedom of the US should make abortin rare, but that theory doesn't make it to practice somehow.

See above re: conservatives trying to ensure that people grow up ignorant of how to properly prevent pregnancy or telling them that birth control is sinful.

|1.13.06 @ 5:17PM|#

RC, "If you believe that a fetus is (at least at some point) a "person", then basic libertarian principles pretty much require you to prohibit the mother from terminating that person's life."

Can I have your kidney? I really need it. I really need your organ to live. (You in the back, what's so funny?) Seriously, are you going to respect my right as a person to live, or not?

Seriously, dude, you don't think it's right to compel someone to use his money to keep someone else alive, but you're ok with compelling someone to use her uterus? Howzat work?

This is classic left-liberal confusion about the nature of rights.

There is a moral difference between actively terminating a life (if that's what it is) and failure to make a donation to keep someone alive.

Just there is a moral difference from my failure to write a relief check for victims of a tsunami, and going out and drowning an Indonesian.

|1.13.06 @ 6:01PM|#

You actively terminate a life when you defend your property with a firearm, Darkly. And you would claim that you're allowed to.

I don't think the confusion here is mine.

|1.13.06 @ 6:02PM|#

This is where science and reason come into play. At what point does a human become self aware? When we can measure that then we will have a definative line for abortion. Before singularity its fair game, nothing more than a collection of tissues; after singularity it is human and fit only for the Matrix.

|1.13.06 @ 6:33PM|#

You actively terminate a life when you defend your property with a firearm, Darkly. And you would claim that you're allowed to.

I don't think the confusion here is mine.

That depends on whether you're changing the topic on purpose or through simple misunderstanding.

There is a moral difference between taking action and failure to take action, is my original point.

And, to your new point, I would say there is a moral difference between:

(1) An aggressive intruder invades or threatens my property, so I shoot him.

and

(2) A little kid is running around on my property (either as a result of an active invitation from me, or because he accidentally or otherwise innocently finds himself on my property), and decide I don't want him there, so I shoot him.

Now, if a fetus actively aggresses against its mother, or her uterus or other property, I think anyone would agree she has the right to shoot it, or do what she must to defend herself.

|1.13.06 @ 7:43PM|#

Good debates on abortion are rare. Even among libertarians. But Stevo has put together some thought provoking arguments.

The most you can hope for in most abortion debates is that at some point the participants will have a "Eureka!" moment and agree that it all comes down to when the fetus/embryo/unborn-child/unborn-angel/lump-of-tissue/insert-term-here acquires enough moral status that killing it can be considered an act of murder.

Some libertarians go one step further and say that even if the (insert term here) has acquired moral status, it's still trespassing in the private property of the womb. So, from a libertarian perspective, the mother doesn't have any responsibility to carry the (insert term here). This is interesting, because it adds another issue to the mix, making it more complex.

Now, in previous threads we've discussed whether a consensual sex act constitutes implied consent to carry and care for any children that may result, both in the context of abortion and in the context of child support. Which I think is interesting because it raises the question of whether the (insert term here) is a trespasser or an implicitly invited guest. It's also interesting because, if you accept the argument, it provides a perfectly good reason why abortion laws should have exceptions for rape and incest. Most pro-lifers who say they'd allow for such exceptions do so out of compassion, but there's no theoretical reason why compassion should justify murder (assuming, for the sake of argument, that it's murder).

Now Stevo adds another issue: Is the child an aggressor, who can be met with force, or relatively harmless?

I don't have any answers to these questions, but I just admire the fact that abortion debates on H&R can raise fascinating and nuanced issues. At various times in my life I've been on different sides of the issue. The neat thing about H&R is that you can encounter new and unusual abortion arguments that raise serious questions about either side.

Good work guys.

|1.13.06 @ 8:40PM|#

"There is a moral difference between taking action and failure to take action, is my original point."

In some cases there is, but not in this one. A pill or exercises or mental attitude that stopped the mother from sending nutrition to the fetus, until it spontaneously aborted, would not be any different from an "active" abortion, like RU-486 or a medical procedure, in a moral sense. Or if a pregnant woman requires a certain medication to continue the pregnancy, and stops taking it - a completely passive act. It's the decision to end the process of carrying the fetus to term that has moral consequences - the difference between doing so actively and passively doesn't carry any weight.

|1.13.06 @ 9:28PM|#

the relative economic freedom of the US should make abortin rare

Huh? How the hell does that work?

|1.13.06 @ 9:50PM|#

thoreau: may I suggest "propagule" for a biologically accurate, legally meaningless and morally neutral term?

joe: generally, whether I agree with you or not, I can see your POV, but this is a pretty weak effort on your part. a woman that thinks her way into inducing an abortion is actively choosing to have an abortion. a woman who declines to take medication that is required for the pregnancy to continue, is in effect choosing to terminate her pregnancy, which we call abortion. the decision is active on her part, even if no physical movement or effort is required.

Stevo is right, and (I hate to say it), so is RC Dean.

BTW, I'm against abortion, but think it should be legal. I can't have an abortion, since I lack a uterus, but I try to prevent females from needing to choose whether or not they have to have an abortion. I've been trying to convince my mother, a member of right to life, that a more effective strategery against abortion would involve person interaction with potential aborters, such as offers of financial support, prenatal care, adoptive services, and education on contraceptives.

also, morning after pills aren't abortifacients (I just wanted to throw that in there).

|1.14.06 @ 12:02AM|#

also, morning after pills aren't abortifacients

a�bor�ti�fa�cient Audio pronunciation of "abortifacient" ( P ) Pronunciation Key (-b�rt-fshnt)
adj. Causing abortion
n. A substance or device used to induce abortion.

biologist,

You and I are close on this issue. As a Christian I oppose abortion but am uncomfortable with a bunch of conservative, elderly (and probably hypocritically adulturous) men holding sway over women and their bodies.

And WOW!...thanks to you I learned something. Per http://www.nyabortion.com/birthcontrol/themorningpill.shtml#2

How does the Morning-after Pill work?
The morning-after pill will prevent or delay the release of an egg from the ovary if given prior to ovulation, or it will help prevent the egg from traveling down the fallopian tubes and implanting in the uterus if you have already ovulated. The morning-after pill reduces the chance of getting pregnant; it does NOT cause an abortion.

Interesting. I was surprised. Thatnk you.

|1.14.06 @ 12:57AM|#

biologist,

Morning after pills make it impossible for an already-fertilized embryo to implant. A drug that causes the destruction of an embryo is an abortifacient in any meaningful sense of the word.

|1.14.06 @ 1:05AM|#

it will help prevent the egg from traveling down the fallopian tubes and implanting in the uterus if you have already ovulated.

Which of course leaves out the fact that the "egg" that leaves the ovaries is quite different from the "egg" that would implant in the uterus. One is a mass-produced half-cell of the woman's body, the other is a unique multicellular organism whose DNA is different from that of any cell in her body.

In other words, something happened on the way from the ovaries to the uterus, that they conveniently leave out.

|1.14.06 @ 1:05AM|#

it will help prevent the egg from traveling down the fallopian tubes and implanting in the uterus if you have already ovulated.

Which of course leaves out the fact that the "egg" that leaves the ovaries is quite different from the "egg" that would implant in the uterus. One is a mass-produced half-cell of the woman's body, the other is a unique multicellular organism whose DNA is different from that of any cell in her body.

In other words, something happened on the way from the ovaries to the uterus, that they conveniently leave out.

|1.14.06 @ 1:18AM|#

All right, say you're cruising in the middle of the Pacific Ocean on your sailboat, when suddenly a doomed plane overhead comes hurtling down towards the sea. The pilot ejects and lands on the deck of your boat.

Let's also assume that you are a long way from shore or help of any sort, and the pilot is getting on your nerves and expecting you to feed him and stuff. Would it be immoral to throw him overboard?

|1.14.06 @ 3:41AM|#

Is anyone else longing for the day of reversible sterilization? As soon as everyone, along with their tetanus, gets a sterilizer shot when they're 10, this will hopefully be a moot issue.

Side note: Joe, your arguments are terribly un-supported. As a suggestion, it's best to keep an open mind and then draw conclusions, rather than start with an answer.

|1.14.06 @ 6:21AM|#

biologist,

Morning after pills make it impossible for an already-fertilized embryo to implant. A drug that causes the destruction of an embryo is an abortifacient in any meaningful sense of the word.

Comment by: crimethink at January 14, 2006 12:57 AM

crimethink, its a very simple chain of logic:

morning-after pills prevent implantation
pregnancy is defined as beginning when implantation occurs
therefore, morning after pills prevent pregnancy

abortion is the termination of a pregnancy.
morning after pills prevent pregnancy.
therefore, morning after pills aren't abortifacients (in the strict sense).

it doesn't cause the destruction of an embryo, it causes the destruction of a zygote, a fertilized egg. SOMETIMES! most times, it prevents ovulation, release of an ovum (unfertilized egg) from the ovary, or the woman isn't in a state of potential fertilization. the time window for preventing implantation is very small compared to preventing ovulation.

if fertilization has occurred, there's a narrow window for preventing implantation, which is why the morning after pills are most effective in a 3-day period following unprotected sex.

btw, many "contraceptives", especially the ortho-tricyclen compounds have the same mode of action as morning-after pills (because they're the same chemical): they prevent ovulation AND reduce the thickness of the uterine lining to reduce the likelihood of implantation. if a zygote=a full-term baby then none of this means anything to you, but if not, then this is an acceptable risk (see: current arguments on other thread re: capital punishment). to summarize: most of the time the morning after pill will do NOTHING, because ovulation is distant relative to the insemination event. occurring next in frequency, the pill will prevent ovulation, acting as a contraceptive. the pill MAY prevent fertilization if ovulation has occurred, but this isn't known for certain. if fertilization has occurred, the pill prevents implantation, thereby preventing initiation of the pregnancy.

|1.14.06 @ 6:41AM|#

I think the GOP is afraid to actually nominate judges that will make abortions illegal. They saw what happened to the Democrats after 1964's Civil Rights Act and don't want the same results from any conservative actions on abortion. Having every state legislative, governor, US House, Senate, and Presidential election be based on the knowledge that the GOP banned abortion would eviscerate the Republicans in a way that the largely-hapless Democrats never could.

|1.14.06 @ 6:43AM|#

Which isn't to say the GOP judges won't nibble away at abortion rights. But a ban? No.

|1.14.06 @ 10:41AM|#

biologist and crimethink are talking past each other. biologist is no doubt correct on the science and terminology. However, crimethink's point is different from what biologist is arguing. The word "pregnancy" may not apply until the fertilized egg implants, but crimethink is arguing that it is immoral to prevent implantation.

I know of no argument that will persuade anybody on either side to change his or her mind, but I like the fact that abortion debates on H&R bring out nuances rarely grasped in most abortion discussions in America.

|1.14.06 @ 10:44AM|#

I agree with jon. The public may not be terribly fond of abortion, but I don't think they would stand for a reversal of Roe vs. Wade. Yes, yes, I know, reversal would "only" make it a state issue, it wouldn't mean outright national prohibition. Be that as it may, I believe it would trigger a huge backlash.

A liberal friend of mine wants Roe overturned for that very reason.

|1.14.06 @ 11:58AM|#

biologist,

As thoreau observed, the concern of pro-life people is protecting human life from the time it comes into existence, ie conception. The act of defining "pregnancy" as starting at implantation (which is questionable, given common use of the term) does nothing to change the fact that even before implantation, the embryo* is a distinct human organism. A rose by any other name...

* I hate to quibble over irrelevant terminology, but zygotes become embryos before implantation; otherwise, how could we talk about "frozen embryos" and "embryonic stem cell research" when the embryos in question have never even been inside a uterus?

|1.14.06 @ 12:12PM|#

thoreau,

The problem with that is that you wind up with the situation that we had from 1970-72, where people from across the nation flooded into CA and NY to take advantage of legal abortion in those states. While some might be relieved that abortions are no longer occuring in their state, I think most pro-lifers will not accept a situation where all it takes to snuff out the life of an innocent is a trip across state lines. You'd probably see some sort of Congressional legislation forbidding crossing state lines for the purposes of getting an abortion, a rare legitimate use of Congress' power to regulate interstate commerce.

Of course, a correct interpretation of the equal protection clause of the Fourteenth Ammendment would actually force states to illegalize abortion, just as states may not change their murder statutes so that they only protect whites, for instance.

|1.14.06 @ 12:24PM|#

crimethink:

I'm pro-life. I'm against abortion. I don't think prohibition is necessarily the best way to minimize the abortion rate. There's no public consensus on when human life begins. The medical definition of when pregnancy begins is implantation. Allowing pregnancies to be terminated before human thought and form are achieved seems like an acceptable compromise to me, a pro-life/anti-abortion person. If your stance is based strictly on morality, or when the soul is granted, there's no way to tell scientifically or legally. All we can or should do from a public policy perspective is make compromises to try to minimize abortions: first trimester abortions on demand, only by medical necessity thereafter. Supplement with comprehensive, scientifically/ medically based sex education and ethical appeals to people. There will never be no abortions, but having only 10 abortions instead of 100 (or 99 instead of 100) is an improvement.

A non-semantic point: I repeat, ortho-tricyclen compounds present the same ethical dilemma as the morning-after pill. Should this form of "contraception" sensu lato be forbidden?

Another: In vitro fertilization results is the deaths of many thousands of zygotes and embryos each year. Should IVF be made illegal in your pro-life scheme?

|1.14.06 @ 12:42PM|#

biologist,

Yes and yes. This is why I call out Ron Bailey every time he writes an article in defense of ESC research, though he has responded only once, and has never addressed my criticisms of his preposterous no-one-mourns-embryos-so-they're-not-persons "argument".

And of course, in keeping with my role as Papist Avenger and self-appointed Defender of the Faith, I also must note that Catholic teaching opposes both IVF and "The Pill" because they destroy embryos, among other reasons.

|1.14.06 @ 12:48PM|#

And before you or someone else accuses me of being a science-phobic neo-Luddite, let me reiterate that I'm totally in favor of scientific research of all sorts. However, research that involves destroying innocent human beings is research that must not be done.

|1.14.06 @ 12:57PM|#

it doesn't cause the destruction of an embryo, it causes the destruction of a zygote, a fertilized egg.

NOBODY calls me a zygote, or I implant myself in their ASS!

|1.14.06 @ 1:03PM|#

crimethink-

If Roe was overturned, I have no doubt that there would be states that would ban abortion, and I have no doubt that frustrated pro-lifers would seek a national ban on abortion, or at least a law to prevent people from crossing state lines for abortion.

However, I also suspect that there would be a massive backlash. There may be a majority of the American public that is very uncomfortable with abortion, but I have a hunch that there's also a majority that would oppose locking up doctors and desperate young women. Some may prefer to characterize the issue somewhat differently than that, but my hunch is that a large majority would characterize the issue as "locking up doctors and desperate young women." The result would be a massive backlash. Maybe 60 Democratic Senators. Definitely Democratic majorities in both houses of Congress. Many of the currently GOP governorships and state legislative houses (not all, but many) would change hands.

That's my prediction. The GOP may have elected an idiot to the White House, but they won't let that idiot, or any other idiot, or any judge appointed by an idiot, touch any third rails.

As to the premise of the article, that there may be a way to defuse this issue, I suspect that ending the debate is impossible without something drastic. Reduced incidence of abortion, and techniques that move abortions earlier and earlier in the term may make a lot of people more comfortable with the situation (I didn't say make everybody more comfortable, just a lot of people), but they won't end the issue. I think that the only way to really end this is to overturn Roe and see the backlash. With that backlash as a lesson, no serious politician (outside of a few enclaves of staunch prolife opinion) would ever again try to make hay of the issue. And that would be that.

And I think the GOP leadership isn't quite dumb enough to let that happen. So we're stuck with this messy issue.

Shit.

|1.14.06 @ 2:03PM|#

But wouldn't any backlash be limited by the fact that for the people that really care about this issue the most, nothing would change? Is the fact that a black woman in New Orleans has to pay $35 in travel expenses to get an abortion really enough to galvanize the masses? A national law to outlaw aboriton would do the trick, but there would need to be a sea change in American politics to be able to muster anywhere near 50 votes for that in the Senate, let alone the 60 such a contencious issue would require. But I suppose it would serve as a useful rallying cry and fundraising tool for the left, just as gay marriage does for the social right. So maybe I agree with you to a point after all.

|1.14.06 @ 3:43PM|#

thoreau,

You mean like the backlash against putting doctors who prescribe too much of pain-control drugs in prison? Forgive me for thinking that the American people's capacity for outrage at their govt is all but gone. Not that I'm happy about that in general, but in this case it serves my purposes.

Of course, the Repubs may well be in a similar situation as the Dems of the early 60s. If they manage to make abortion illegal, they might lose the support of moderates and fall from power; but they can't string along their increasingly restless base forever, especially now that they control all the levers of power. While it's unlikely that Christian conservatives will go Democratic, all they have to do is stay home on election day to seal the fate of the GOP.

The Wine Commonsewer|1.14.06 @ 5:02PM|#

Crime,

I posted a link to a Wired story a few months ago that was exciting to me because it offered a third alternative with respect to stem cells. I wonder if you saw it? It's worth looking it just to see the picture of the tumor with teeth.

How To Farm Stem Cells Without Losing Your Soul

As far as the Alito Charade goes.......Jesus Chrysler, get me a shovel, every time the Supers overturn a law they are disturbing well settled law. Advocates of so called settled law weren't advocates of it at all when abortion was illegal. That would include the Senior Senator from the great state of Californicate, Ms Dianne Feinstein.

In case we've forgotten, slavery was once well-settled law.

Thanks for letting me blow off some hot air.

Larry A|1.14.06 @ 5:39PM|#

Thoreau: Now Stevo adds another issue: Is the child an aggressor, who can be met with force, or relatively harmless?

Not a new issue. In addition to rape and incest, many abortion-limiting laws contain an exemption where continuing the pregnancy endangers the life of the mother.

|1.15.06 @ 6:02PM|#

thoreau

And I think the GOP leadership isn't quite dumb enough to let that happen. So we're stuck with this messy issue.

Shit.

Or the more likely senerio that roe v wade is not entierly over turned but in fact partially overturned to allow more regualtions for after first trimester abortions putting it more in line with what biologist (and myself) and those with similar issues would be more acepting of thus putting the pro-life crowd into a smaller minority....also in your senerio you make it virtually impossible for pro-choice republicans to exist (or for that matter pro-life democrats) which you should know exist in fairly substantial numbers.

M. Simon|1.15.06 @ 7:21PM|#

Abortion has nothing to do with privacy.

Just wait until we have vagina police and I'm chief inspector.

R C Dean|1.16.06 @ 10:30AM|#

Stevo is right, and (I hate to say it), so is RC Dean.

I know, it hurts to say it. But like the man says, no pain, no gain.