New at Reason

Tim Cavanaugh | March 1, 2006

Jacob Sullum discovers a penumbra of bogusness in federal abortion policy.

Comments

James Leroy Wilson|3.1.06 @ 7:06AM|#

Tell us more about this "Constitution" mentioned in the article. Does anybody in Washington D.C. know about it? Is it still in force?

MP|3.1.06 @ 7:25AM|#

The Supreme Court has never found a plausible textual basis for abortion rights, and it is folly to pretend the Constitution dictates legislative specifics such as the correct dividing line between legal and illegal abortions

Oh come on, a primary purpose of the judicial system is line drawing. Whether it is interpreting a vague statute, or deciding what specific items are federally defensible Natural Rights, SCOTUS decisions are all about the art of line drawing.

And there is clearly a proper Original Meaning interpretation that supports Roe v. Wade, which has been presented many times on this board. Even though I disagree with SCOTUS's choice to rely on substantive due process instead of combining the 9th with Incorporation, a better written decision which solely relied on the 9th would have broad support among current Originalist scholars.

KipEsquire|3.1.06 @ 7:25AM|#

"The Supreme Court has never found a plausible textual basis for abortion rights, and it is folly to pretend the Constitution dictates legislative specifics such as the correct dividing line between legal and illegal abortions, appropriate exceptions, and reasonable conditions."

Ah, yes, another faux libertarian who has no compunction reading text out of the Constitution.

If you dislike Fourteenth Amendment substantive due process jurisprudence, at least dislike it for the right reason: because it should have been unnecessary given the Ninth Amendment. But to say there is no "plausible textual basis" is inexcusable.

|3.1.06 @ 7:34AM|#

The reason for the "life of the mother" exception is that the lack thereof was the reason given for the Supremes' striking down the Nebraska PBA ban in Stenberg v Carhart (2000).

If a state banned abortions during the third trimester, a 7-months-pregnant woman would have no legal option but to carry the pregnancy to term. Since Casey forbid the state's imposing a certain definition of when life begins, such a law would certainly be struck down.

It's kind of hard not to appear inconsistent when the judiciary sets up all these hoops to jump through.

|3.1.06 @ 7:37AM|#

MP,

Justice Blackmun would seem to disagree with you; in Roe's majority opinion, he famously stated that, since milennia of philosophers and theologians had been unable to come to an agreement as to when life begins, the Court was in no position to decide, either.

|3.1.06 @ 7:43AM|#

Ah, yes, another faux libertarian

Considering libertarians' electoral history and level of political popularity, why would someone who is not a libertarian pretend to be? Are there some benefits that I've missed?

|3.1.06 @ 8:35AM|#

Are there some benefits that I've missed?

libertarians get better chicks than Republicans?

|3.1.06 @ 9:50AM|#

"libertarians get better chicks than Republicans?"

They are better, but there are also substantially fewer of them.

|3.1.06 @ 10:20AM|#

Tell us more about this "Constitution" mentioned in the article. Does anybody in Washington D.C. know about it? Is it still in force?

No! No! Only the eyes of a chief may see the Ee'd Plebnista.

|3.1.06 @ 10:44AM|#

Oh goodie! Another abortion thread!

|3.1.06 @ 10:47AM|#

Here's an interesting editorial regarding the current state of "a man's right to choose," something which is largely ignored in our very feminist society:

http://www.humaneventsonline.com/article.php?id=12738
++
Repeal the Bradley Amendment
by Phyllis Schlafly

When our supposedly compassionate federal government pokes its nose into areas that, under our principle of federalism, should be none of its business, the result is often unintended consequences, gross injustices, and of course massive costs.

A prime example is the 1986 federal Bradley Amendment, which mandates that a child-support debt cannot be retroactively reduced or forgiven even if the debtor is unemployed, hospitalized, in prison, sent to war, dead, proved to not be the father, never allowed to see his children, or loses his job or suffers a pay cut.

The result of this incredibly rigid law is to impose a punishment that makes it impossible for any but the very rich to get out from under a Bradley debt. Thousands of fathers are sentenced to debtors' prison (a medieval practice we thought abolished in the United States centuries ago), and thousands more have their drivers license confiscated (making it extraordinarily difficult to get a job).
...
This case is not an anomaly. Clarence Brandley spent 10 years in prison before he was exonerated and released in 1990, whereupon the state hit him with a bill for nearly $50,000 in child support debt that accumulated while in prison.
...
++

So guys, isn't it cool the way the various government agencies bend over backward to give women what they want, including the money and freedom of men and the ability to legally kill their children? (FWIW, nearly every gov't social program amounts to a net transfer of money from men to women).

|3.1.06 @ 10:49AM|#

I thought Sullum's analysis was well reasoned and well articulated. I find myself in agreement with him, even though I think it likely that I personally would draw the line where a fetus should gain legal protections differently than he would.

|3.1.06 @ 11:07AM|#

"libertarians get better chicks than Republicans?"

"They are better, but there are also substantially fewer of them."

And Libertarians have fewer problems with polyamory than Republicans.

brian423|3.1.06 @ 11:38AM|#

Mr. Le Mur,
I disagree with you about abortion, but I wish you success in exposing the hypocrisy of the feminist establishment on reproductive choice.

Timothy|3.1.06 @ 12:52PM|#

I propose that all abortion threads be killed in the womb.

|3.1.06 @ 12:57PM|#

brian423 -

I haven't stated my position on abortion, except to say that I'm against it as long as men don't have the same (very easily obtained) right. What I am against are the silly, self-serving word games people play in order to fool themselves into believing that that they're not killing another person for their own convenience - something which isn't that big a deal in many cases.

I'd have no moral qualms at all about offing a burglar even though no life was in the slightest bit of danger. If my house were burglarized and I knew who did it, I'd go hunt 'em down and blow their brains out if I thought I could get away with it. (lotsa "ifs"!)

Abortion's a similar situation with the exception that the person being killed hasn't done anything to deserve it. Big exception, hence the word games.

David|3.1.06 @ 2:13PM|#

Under the federal system envisioned by the Framers, regulating abortion is not the business of the states, the federal government, cities, utility districts or any other government.

Under the system envisioned by the Framers, the right to privacy is such basic bedrock to every kind of cultural, social, political and moral principle that the need to state it explicitly would be inconceivable.

There is no suggestion that the Framers contemplated any government trying to outlaw breathing. The very idea would have been so alien as to be unworthy of their consideration. Breathing, privacy and other rights were (and are) self-evident.

|3.1.06 @ 6:39PM|#

to say there is no "plausible textual basis" is inexcusable.

Good thing he instead said "the Supreme Court has never found a plausible textual basis." Which is true, even while a plausible textual basis is out there waiting for the Supremes to find it.

|3.2.06 @ 3:00AM|#

But it's conservatives who have responded by sacrificing their own principles.

Well holy crap, must be the first time they've done that since the beginning of March.