Alito, Abortion, and the Bible

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.

Comments

[Akira MacKenzie]

Another abortion thread?

TAKE COVER! FLAME WAR APPROACHING!!!

[thoreau]

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]

thoreau:

Where can I donate to your campaign?

[thoreau]

jf-

I was rehearsing my campaign speech and crowd handling techniques at Saturday's event. This was after the carpet humping session.

[thoreau]

Oh, I also debated Jennifer and called her anti-puppy, pro-cancer. I had the height advantage.

[Shannon Love]

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.

[MP]

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.

[MP]

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.

[Jennifer]

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?)

[thoreau]

Jennifer, let's not turn this into an Iraq thread.

Why do you hate puppies? And children? And cancer patients?

[Jennifer]

Thoreau--

For the same reasons you hate America, Mom and apple pie, of course.

[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."

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.

[doubled]

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.

[doubled]

Jennifer : Are you saying that a fetus is nothing more than a female reproductive organ?

[doubled]

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.

[metalgrid]

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?

[joe]

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.

[Jennifer]

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.

[MP]

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.

[MP]

Jennifer,

OK...my statements against you were unwarranted then. Sorry.

[thoreau]

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.

[Jennifer]

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"?

[Jennifer]

MP--
Cross-posted 'twixt me and thee.

[Shannon Love]

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.

[Mitch]

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?

[Akira MacKenzie]

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...

[MP]

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?

[MP]

ink botter ...ink blotter...darnit...

[Jennifer]

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."

[MP]

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?

[joe]

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.

[joe]

Jennifer,

Does the existence of the insanity defense tell murderers "we're executing you because of your sanity?"

[joe]

Or, to put it more simply:

(organs -> money) != (organs = money)

[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?

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.)

[Jennifer]

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.

[MP]

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.

[Jennifer]

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.

[MP]

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.

[Jennifer]

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. . . .

[doubled]

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 .

[MP]

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.

[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.

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.'

[Dave W.]

Dogeater Nick here to tell us who qualifies for rights and who doesn't.

[MP]

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.

[Dave W.]

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.

[deron]

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?

[Jennifer]

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.

[joe]

"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.

[joe]

deron,

The slope only becomes genuinely slippery when you remove the issues of intent and responsibility, as Jennifer proposes to do.

[Eric the .5b]

I'll care less about slippery-slope threats when people don't use every previously-emplaced limitation of our rights to justify additional curtailments.

[Ron]

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.

[Jennifer]

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.

[Phil]

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?

[Eric the .5b]

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]

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.

[MP]

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.

[Ron]

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.

[MP]

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.

[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

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.

[Eric the .5b]

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.

[Ron]

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.

[joe]

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.

[Eric the .5b]

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.

[Jennifer]

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?

[Ron]

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.

[Eric the .5b]

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.

[Ron]

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.

[M1EK]

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'.

[Ron]

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.

[Eric the .5b]

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?

[Jennifer]

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.

[Jennifer]

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!

[Eric the .5b]

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.

[Ron]

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.

[Eric the .5b]

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.

[Jennifer]

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.

[joe]

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.

[Jennifer]

bodily-privacy "invasijs" = invasions.

How the heck did I do that?

[Ron]

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).

[Jennifer]

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.

[Dave W.]

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?

[Jennifer]

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.)

[zach]

Dave W., the key phrase here is a person's life and limb.

[Phil]

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.

[Jennifer]

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?

[joe]

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.

[joe]

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.

[MP]

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.

[Jennifer]

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?

[MP]

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.

[JDM]

" 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.

[Jennifer]

MP--

My apologies for misunderstanding you, then.

[MP]

JDM,

You'd make a great lawyer for the Administration. "We can't let him out of prison, he's a terrorist!".

[joe]

"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.

[Hakluyt]

"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. 🙂

[Hakluyt]

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.

[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.

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.

[Hakluyt]

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.

[Hakluyt]

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..."

[crimethink]

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.

[JDM]

'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.

[Jennifer]

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.

[Hakluyt]

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.

[crimethink]

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.

[M1EK]

"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.

[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.

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.

[Jennifer]

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.

[Eric the .5b]

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.

[Eric the .5b]

Ahem. The last paragraph of my last post is not meant to be quoted.

[crimethink]

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.

[Jennifer]

Crimethink--

No, but it sets a bad precedent nonetheless. How do you suppose the anti-abortion laws would be enforced?

[Hakluyt]

crimethink,

If a minor (with his parents) opts out of public schooling, then they too aren't required to undergo drug testing. Its situational.

[Stevo Darkly]

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.

[M1EK]

"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?

[Hakluyt]

Stevo Darkly,

Nicely put.

[joe]

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.

[Hakluyt]

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.

[Hakluyt]

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!

[Hakluyt]

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. 🙂

[crimethink]

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.

[crimethink]

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?

[crimethink]

How do you suppose the anti-abortion laws would be enforced?

The same way we enforce laws against other types of murder.

[MP]

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.

[Hakluyt]

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.

[Serafina]

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."

[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?"

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?

[The Wine Commonsewer]

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.

[M1EK]

"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.

[crimethink]

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

[M1EK]

"Thank you for again demonstrating the connection between legal abortion and eugenics."

Thank you for again reminding me that I've been overestimating your intelligence.