Getting Beyond Roe

Why returning abortion to the states is a good idea

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The Politics of Abortion, by Anne Hendershott, Encounter Books, 179 pages, $25.95

In 1985 a prominent liberal legal figure argued that Roe v. Wade, the Supreme Court decision that established a constitutional right to an abortion, was a "heavy-handed judicial intervention" that "was difficult to justify and appears to have provoked, not resolved, conflict." The writer was Ruth Bader Ginsburg, now an associate justice on the U.S. Supreme Court—and also now a strong supporter of Roe.

Ginsburg isn't the only backer of abortion rights to have taken issue with the 1973 decision. In 1995, for example, the University of Chicago's Cass Sunstein, a superstar among liberal law professors, wrote in the Harvard Law Review that the high court "should have allowed the democratic processes of the states to adapt and to generate sensible solutions that might not occur to a set of judges." Roe, he argued, centralized an issue centered around privacy, reproduction, and medical ethics, all matters that traditionally have been the province of the states. Moving those moral debates to Washington forced a one-size-fits-all policy on the entire country, raising the stakes, and therefore the contentiousness, of an already divisive issue.

A new book by a staunch critic of abortion also suggests a decentralized approach. In The Politics of Abortion, the conservative sociologist Anne Hendershott offers a scathing, unabashedly polemical history of the pro-choice movement. While Hendershott leaves no ambiguity about her own position on the issue, she closes the book by calling not for more federal antiabortion laws but for returning the issue to the states. It is time to end the "superficial slogans that rally the troops but build impenetrable barriers," she writes. "Taking the discussions out of the courts and back to the realm of local policy, where we might once again debate the politics of abortion as neighbors and friends, would be a good start."

On that much, at least, she's correct. The "pro-choice"/"pro-life" split suggests that only two options are on the table, when in fact far more positions are possible. Just as pregnancy is a continuum, so too is the spectrum of opinion on abortion, from what might be called the Monty Python position—"Every Sperm Is Sacred"—to the philosopher Peter Singer's argument that even infants lack the self-actualization that would make it immoral to kill them, or at least no more immoral than killing an animal of similar mental capacity. Most views, of course, lie somewhere in between, offering different perspectives on everything from when human life begins to who, aside from the mother, might have a say in the decision to end a pregnancy.

Abortion policy, then, is about drawing lines and setting community standards. Such issues are best dealt with in those diverse laboratories of democracy, the states. A federalist approach would allow a wide array of abortion policies that better reflects the spectrum of public opinion on the issue. That isn't to say a federalist approach would leave everybody fully satisfied. There would still be people stuck in states whose laws don't reflect their personal values. But that much isn't very different from the way things stand today. Roe prevents any state from banning abortion outright, but in places like Utah and Mississippi abortion is extremely rare, due not just to legal restrictions—waiting periods, mandatory counseling, parental notification—but also to the fact that prevailing community values mean there isn't much of a market for the procedure. Mississippi has just one abortion clinic in the entire state.

The main difference between a purely federalist approach to abortion and what we have today is that in the former each side wouldn't be clamoring to control the federal government so it could impose its favored policies on the rest of the country. The battles would be fought in the state legislatures, and national politics would no longer be held hostage to the abortion issue.

For such a scenario to emerge, the Supreme Court would need to do more than overturn Roe. It would have to make it clear that the regulation of abortion is a police power reserved to the states, and that it will no longer entertain attempts to override abortion policy made by the states. That approach wouldn't be perfect, and it wouldn't satisfy the hard-core activists on either side of the debate, but it would be far preferable to what we have now. As it stands, the Supreme Court is one vote from overturning the decision, with two pro-Roe justices—Ginsburg and John Paul Stevens—generally considered the members most likely to retire.

Unfortunately, judging from the Court's recent ruling in Gonzales v. Carhart (which upheld a congres­sion­al ban on "partial birth" abortions) and the fair-weather approach to federalism taken in cases like Gonzales v. Raich (which upheld a federal ban on medical marijuana), a decision overturning Roe probably would leave the door open to a national ban. The divisive debate would continue.

A different course could be charted if the right embraced the more decentralist approach advocated by Hendershott. A professor of sociology at the University of San Diego, Hendershott is no center-hugging moderate. Her call for a more civilized debate comes after nine chapters of pointed attacks on the abortion rights movement. Her politics sometimes gets in the way of clear-eyed analysis, but her book is nonetheless an informative look at one side of the debate.

In a nutshell, Hendershott's argument is that abortion has become the defining issue for the American left, more important than social justice, civil rights, economic equality, or feminism itself. She describes, for example, efforts by the group Democrats for Life to get a link from the Democratic National Committee's website. Although it links to sites as varied as the Easter Seals, the Forest Service, and the Oneida Indian Organization, the party denied the group's request.

Hendershott's historical narrative documents how the abortion rights lobby ballooned from a few influential, well-funded, but outnumbered radicals in the early 1960s to a full-fledged movement by the early 1970s. The Ford Foundation, for example, funded a group called Catholics for a Free Choice, a spin-off of the National Organization for Women that sought to carve out wiggle room on the issue for Northeastern Catholics. Through the 1970s, groups like the National Abortion Rights Action League were able to tie abortion inextricably to feminism, a union that seems inevitable today but at the time wasn't obvious. Hendershott points out that one of the seminal feminist texts, Betty Friedan's The Feminine Mystique, never mentions abortion; some early feminists, such as Susan B. Anthony, were vocal opponents of the practice.

By the 1980s the movement controlled much of the Democratic Party. Well-financed pro-choice groups were able to fund candidates who supported abortion rights, while money for anti-abortion liberals was almost nonexistent. By 1993, Hendershott writes, "pro-life voices within the party had effectively been silenced." High-profile Democrats such as Bill Clinton, Al Gore, and Jesse Jackson (who had once described abortion as "genocide") all flipped on the issue before seeking national office.

Hendershott criticizes the pro-choice movement for trying to suppress information that might injure its cause. In one particularly interesting passage, she discusses General Electric's remarkable "4D" ultrasound imaging system, a technological innovation that renders striking images of fetuses in the womb. In 2002 G.E. marketed the product in a national campaign aimed at young women, showing expectant mothers bonding with their unborn children while Roberta Flack sang "The First Time Ever I Saw Your Face." The technology was enormously popular. 4D ultrasound stations even began to appear in shopping malls.

Abortion rights proponents leapt into action, fearing that too-real images of unborn fetuses might cost them popular support. After pressure from pro-choicers, G.E. pulled the TV ads, pulled testimonials from its website, and began marketing the technology solely for medical purposes. Several states banned the use of ultrasound for "nonmedical" purposes, including New York, where then–Attorney General Eliot Spitzer subpoenaed 34 anti-abortion crisis pregnancy centers for "practicing medicine without a license" because they used the technology.

The 4D controversy is a striking example of how one side of the abortion debate used the law to suppress the flow of information to expectant mothers out of fear of what that information might do to their cause. But Hendershott has little to say about similar efforts on the anti-abortion side. Pro-life lawmakers, for example, repeatedly have attempted to prohibit physicians who receive federal funding from even discussing abortion with their patients, particularly at overseas military hospitals.

Indeed, while Hendershott offers a wide-ranging critique of the pro-choice movement, she never acknowledges that pro-lifers have employed similar tactics. (She does set aside one chapter to attack the violent wing of the anti-abortion movement.) The Christian Coalition and kindred groups, for example, have gone to great lengths to purge their foes from the national Republican Party. They've just been less successful at it.

Consider former New York Mayor Rudolph Giuliani, a lifelong pro-choicer. Since announcing his candidacy for president, he has told the conservative talk radio titans Sean Hannity and Rush Limbaugh that in spite of his position on the issue, he would nominate justices like the fervent abortion opponents John Roberts and Samuel Alito to the Supreme Court—a signal to Republican primary voters and powerful pro-life activists that they have nothing to worry about. (Of course, Giuliani also says he will continue to support abortion rights. How he'll reconcile the two isn't exactly clear.) And while Hendershott regrets that pro-choicers have federalized the abortion debate, she is conspicuously silent on, for example, the conservative push for a pro-life amendment to the U.S. Constitution (a key plank in the Republican Party's 2004 platform) or efforts by the GOP-controlled Congress to restrict abortion.

Given this one-sidedness, some readers might suspect Hendershott's support for a federalist approach is disingenuous. "Taking the discussions out of the courts" to the realm of "local policy" would of course require Roe to be overturned, which would be a milestone victory for the pro-life movement. Nevertheless, Hendershott's history of the pro-choice movement suggests that while overturning Roe would represent a political victory for pro-lifers, the reversal wouldn't necessarily prevent many abortions. The pro-choicers achieved enormous momentum in the '60s and '70s, and support for reproductive rights is much stronger today than it was before Roe.

As late as 1967, 49 of the 50 states still made it a felony to provide an abortion. But in June of that year, the American Medical Association passed a resolution reversing its prior opposition to abortion in cases of rape or incest, severe physical deformity of the fetus, or danger to the health or life of the mother. That started a sea change in state legislatures. By the time Roe came down in 1973, just six years later, 17 states had legalized abortions performed to preserve the life or health of the mother. Colorado, North Carolina, and California also included exceptions for the mother's mental health. Alaska, Hawaii, Washington, and, most significantly, New York had passed laws essentially guaranteeing abortion on demand.

New York's law, passed just a year before Roe, didn't include a residency requirement. The Alan Guttmacher Institute, a pro-choice research organization specializing in reproductive issues, estimates that some 100,000 women traveled to New York City to obtain abortions in the time after Albany liberalized the state's laws and before the Supreme Court issued its opinion.

Without Roe, the pro-choice movement would have had to keep taking its case to the state legislatures. States with more permissive attitudes about sex and reproductive rights likely would have passed more permissive abortion laws. Other states would have embraced tighter restrictions. And some states would have kept the existing prohibitions in place.

Had Roe gone the other way, it's likely that "partial-birth" abortions already would have been prohibited in most states. (The vast majority of the public opposes the procedure at issue in Carhart, which involves partially delivering a fetus, then making an incision at the base of its skull and vacuuming out the contents.) States with a strong interest in preserving parental rights likely would have required parental permission for a minor to obtain an abortion. Some states might allow abortion but prevent the use of public funds to pay for the procedure. Others might allow abortion on demand and provide funds to ensure poor women's access to the procedure.

A federalist approach wouldn't minimize the stakes for either side. But it would recognize how important the issues are to both sides by allowing as many people as possible to live under an abortion policy that best reflects their own values, and it would transform national politics by moving a particularly poisonous argument to a more appropriate venue. Justice Ginsburg may have embraced Roe, but other supporters of abortion rights have moved in the opposite direction. Pro-choicers who have recently criticized Roe v. Wade include The Washington Post's Benjamin Wittes and Richard Cohen, Harvard's Alan Dershowitz, and Slate's William Saletan. It's healthy that at least a few voices on both sides of the debate are finally coming to realize the benefits of leaving this issue to the states.

Radley Balko is a senior editor of Reason.

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  1. ABORTION THREAD! COME TO PAPA!!!!

  2. **Gets comfortable, grabs popcorn**

    You are a brave soul Radley.

  3. Ok, let’s have baby killers on one side of the thread and religious fanatics on the other. let’s have a clean fight here people.

  4. I’ll debate taxes,but I won’t touch this.I’ve found it best to keep my thoughts to myself.

  5. Well, this isn’t a very good start. It doesn’t help that Radley’s article is distressingly even-handed and free of polemics.

    We need more grist for the mill, Balko! Maybe Ron Bailey can take you under his wing…

  6. “There would still be people stuck in states whose laws don’t reflect their personal values.”

    JetBlue is offering $99 round trips to Abortion Town.

  7. Legalize parental-decided abortion, retroactive to the age of majority, whatever it is.

    CB

  8. Let me hear all the pro-lifers in the house say “Hell yeah!” Now throw your Bibles in the air like you just don’t care!

    Now let me hear all the pro-choicers in the house say “Hell yeah!” Now throw your fetus in the air like you just don’t care!

    Get down abortion thread people! Get down!

  9. I think abortions should have an asterix next to them if the doctor was on steroids.

  10. I think abortions should have an asterix next to them if the doctor was on steroids.

    Why not just have two different types of clinics, one with steroids and one without, and let the market decide?

    Or leave it to the states. Whatever.

  11. Contrary to popular opinion, Republican politicians don’t want Roe overturned, they just want the possibility of getting it overturned in order to rally the troops to vote for them. The same goes for Democratic politicians. Roe is too good a fund-raiser to let everything go back to the states.

  12. “Roe prevents any state from banning abortion outright, but in places like Utah and Mississippi abortion is extremely rare, due not just to legal restrictions-waiting periods, mandatory counseling, parental notification-but also to the fact that prevailing community values mean there isn’t much of a market for the procedure. Mississippi has just one abortion clinic in the entire state.”

    The flip side of this argument, though, is that pro-life states like Mississippi are essentially already pro-life. What’s more likely to incite anger among pro-lifers in Mississippi, the fact that there is a lone clinic in the state, or that north of the Mason-Dixon, there are states where every day, flocks of libertines are permitted to murder their unborn children?

    I’m all for federalism and laboratories of democracy; it’s just that in this case, it seems that not much will change for the better. States with few abortion clinics will then have none, and the other states will be unaffected. The main gripe I have with the pro-life position is that it’s all about foisting very personal beliefs on the masses. I can totally sympathize with wanting to keep a fetus, but I’ll never tell others what they should do. Laboratories of democracy or not, pro-lifers will still be quite pissed off.

    While I like the Supreme Court overextending its powers about as much as everyone else here, I think this issue is too important not to be pragmatic. A precedent has been established. If we stand on principle, we have little to gain and much to lose.

  13. Just thought I’d throw this out there..

    Which is better?

    Abortion laws which are chopped and diced (no pun intended there) on the state/local level similar to gun ownership rights.

    Or

    Gun ownership rights upheld as vigorously on the federal level as abortion rights?

  14. I think Marcvs is onto something re: the Realpolitik of the issue. One of the reasons I’m not as full-throated in my support of Team Red these days.

    Though, the Dems are just as guilty with their “efforts” to improve inner-city schools for their African-American constituency.

  15. I think abortions should have an asterix next to them if the doctor was on steroids.

    As a former aficionado of that surreal Latin comic strip, I’m offended that you think it should be associated with abortion OR steroids.

    Barbare, ultionem requiro!

  16. I think the whole states rights thing is a big thing that seperates Libertarians from Conservatives (well, that and homosexuality, and drug laws, and prostitution, and…).

    While in general, I think keeping government local is a good thing… I only think that because local government is less effective in supressing peoples freedoms. But I have no ideological commitment to localism. If we had a strong Federal government that pretty much didn’t do anything but keep the states from oppressing its citizens, I would support federalism as well.

    Basicly, my support for “states rights” is pragmatic and not ideological. I want states rights for states that legalize drugs and abortion and guns, and I want the strong hand of the Federal government to restrict the states when they try to ban drugs or abortion or guns.

    The people who generally support states rights IDEOLOGICALLY are usually the people who want to restrict peoples choices (banning abortion, banning pornography, banning guns, or back in the day even enforcing segregation!).

  17. [blockquote]JetBlue is offering $99 round trips to Abortion Town.[/blockquote]

    “Abortion Town”…say, that’s the perfect name for my latest musical!

  18. D’oh!

  19. Stephen “Smacky” Sondheim knows his way around a tune but apparently not HTML.

  20. Cut! That was terrible. Let’s try this again. Take two:

    JetBlue is offering $99 round trips to Abortion Town.

    *clears throat*

    “Abortion Town”…say, that’s the perfect name for my latest musical!

  21. Bravo, Smacky..er, Stephen.

  22. “””JetBlue is offering $99 round trips to Abortion Town.”””

    And then it’s back to the federal under the commerce clause. States will probably try to pass laws to prevent you from going to another state for service.

    If I was to make a list of the people or groups that should help you make a family decision, no government would be on it.

    Mississippi sucks.

  23. I am an ardent pro-lifer and I agree with Radley that a federalist approach is what is constitutionally appropriate. As much as I would like to outlaw abortion, I will not sacrifice the best protection of life and liberty (the Constitution) to that end. I support stripping jurisdiction from the federal courts on this issue.

    I have to say that I am not sure that Roberts and Alito are pro-life enough to ignore the precedents of prior cases. I also don’t really trust either to adhere to the Constitution over the blatherings of prior courts.

  24. Paul said: The main gripe I have with the pro-life position is that it’s all about foisting very personal beliefs on the masses.

    Coming from a very conservative family myself, I understand your point pertaining to most issues (I myself am QUITE liberal). BUT I must point out that in this case that they fight abortion because it’s viewed as murder (one of the few views that I share with them). Murder is a crime in this country. If you knew such an injustice was happening, you knew you could stop it, and you did nothing to stop it, would you feel okay about that? It’s an ETHICAL responsibility, as opposed to a MORAL one.

  25. Danny- I totally agree with you about why pro-lifers are so passionate and heated about this issue. Your point actually bolsters mine. Pro-life advocates are principled; they aren’t NIMBYs. Making abortion a state issue is only a tiny step towards what they want. As long as people somewhere in the country are getting abortions, they will not rest. So it’s impossible to please everyone.

    As for the philosophical side of things, I and most people agree that abortion is ethically murky.

  26. whoops, wasnt done.

    So abortion is a tricky issue. What rankles me is that pro-lifers refuse to recognize that. Are you really sure you’re right?

  27. While Radley Balko does an outstanding job discussing the various political issues surrounding the abortion debate I find the politics beside the point.

    If there is a political question, it seems to me to be this: Under what circumstances can an entity (fetus, infant, child, adult, marginal human, etc.) reasonably expect the state to interven on its behalf in order to protect its right to life? Why?

    Despite all the back and forth on this issue over the last thrity years I’ve never heard a reasonable answer to that question.

    Follow the pro-choice argument to its logical conclusion and infanticed makes perfect sense. Do the same with the pro-life argument and birth control should be prohibited.

    Both are untenable imo.

    Bill Walsh

  28. If we legalized drugs abortion could be(in most cases) just a matter between a woman and her conscience.

  29. Pro-life advocates are principled.

    I disagree because most aren’t. They aren’t willing to apply their own reasoning to its natural conclusion. And why aren’t they? Because it’s not politically expedient.

    See:

    http://article.nationalreview.com/?q=ZjkwNWQ4ZDQ2NTljNDg4MjUyYWIxZWQ0NDVjMTkxYjg=

    Look at all those principled pro-lifers! IIRC, not a single one calls for jail time for the mother.

  30. Follow the pro-choice argument to its logical conclusion and infanticed makes perfect sense. Do the same with the pro-life argument and birth control should be prohibited.

    Uh, wrong on the pro-life side. No one seriously believes that a sperm or an ovum is a person, that’s just a strawman put out by pro-choicers. The entity produced by conception is totally different from the gametes that preceded it.

  31. So abortion is a tricky issue. What rankles me is that pro-lifers refuse to recognize that. Are you really sure you’re right?

    The same can be said on the pro-choice side. Every abortion “debate” leaves me with a “pox on both your houses” feeling.

  32. “””Murder is a crime in this country. If you knew such an injustice was happening, you knew you could stop it, and you did nothing to stop it, would you feel okay about that? It’s an ETHICAL responsibility””””

    It’s not that simple because your not drawing the line between life and potential life. Life sustains its self or dies. A fetus can not under any circumstance sustain its self. Therefore, is a fetus life or not, is fair arguement.

  33. Do the same with the pro-life argument and birth control should be prohibited.

    I don’t follow, if life begins at conception what is wrong with a contraceptive?

    Legalized drugs,recognize the right of ingestion(abortifacients,opium, foies gras,fugu, colloidal silver- everything) trumps the right to life of the zygote-american.


  34. Look at all those principled pro-lifers! IIRC, not a single one calls for jail time for the mother.

    That fits in nicely with the plan I’m advancing.
    Remove the contract with the doctor or midwife and responsibility falls completely on the woman.

  35. Bill Walsh:

    To the extent we have a state-run police force, I don’t see why they couldn’t intervene to protect the life of the fetus/baby the same way they intervene to protect them life me or you. Most of that intervention would come after the fact, i.e., by arresting and prosecuting the culpable parties. And just as beat cops can arrest someone on the street before they commit a homicide (for example, if a mugger pulls a gun on some passersby), the state could intervene to stop an abortion before the procedure is performed.

  36. Look at all those principled pro-lifers! IIRC, not a single one calls for jail time for the mother.

    Wow. Abortion is murder, but the person who consented to it and was thus a party to it is not to be held accountable for their actions? I don’t follow that logic at all.

    crimethink, I would like to here your response to that article. I’m not trying to “call you out”…I’m simply very curious about your take.

  37. The abortifacient drug is as morally neutral as a pistol.I’m assuming all drugs will be legal in Pro-Life Libertopia.

  38. Preview button is your friend!

    Should read: … “the same way they intervene to protect me or you.”

  39. There is one flaw with this argument. If you go to the federalist approach each side would push for a federal legislation to universalize their preference.

    Besides the fact that both the left and the right are devoid of common sense when it comes to the issue.

  40. Wow. Abortion is murder, but the person who consented to it and was thus a party to it is not to be held accountable for their actions? I don’t follow that logic at all.

    Seems like it should be the same as a contract killing to a pro-life absolutist.That it isn’t offers a potential solution to the issue.Abortion as a purely individual act.

  41. MP,

    I was being sarcastic as you can see.

    BTW, how do you get a link to show up?

  42. The problem with Radley’s pragmatic approach is that all unenumerated rights are about “drawing lines and setting community standards”. Then you’re left with the question of asking what the standard should be for courts to elevate unenumerated rights to Constitutional status. The answer to that question should not simply be to have the courts avoid speaking to issues which are divisive. They’d end up staying fairly silent about all sorts of issues, and that’s not a good outcome for freedom.

  43. MP,

    I’m pretty much in agreement with most of the respondees. The person who framed the question is posing a false dichotomy: you either have to support jail time equal to that for murder outside the womb, or you up and accept abortion on demand.

    I think the thinking behind the reluctance to severely punish the woman is based on the idea that a woman is usually going to be in pretty rough circumstances to consider abortion at all. In any case, at best, the argument offered by Anna Quindlen amounts to an ad hominem “pin the tail on the hypocrite,” which doesn’t address the abortion issue itself, but rather picks on actual pro-life people as a proxy. I’ll be the first to admit, we sometimes make ourselves an easy target, but that doesn’t change the hideous nature of abortion.

  44. BTW, how do you get a link to show up?

    You have to embed an HTML Anchor tag <A>.

    See here for more detail.

    And yes, I picked up on your sarcasm. It’s still a legit topic for crimethink to opinionate on.

  45. As a rabidly pro-life libertarian I find myself very ambivalent on this issue. Regardless of my opinion of abortion I find Roe to be deeply flawed. But I am not sure if I believe that abortion is an issue centered around privacy, reproduction, and medical ethics, all matters that traditionally have been the province of the states. Others have touched on the hazard; that position seems like an invitation for state legislatures to continue to invade areas of privacy that are truly consensual acts between emancipated adults and are decisions no government has any business interfering in.

    Pete Singer may believe infants lack the self-actualization that would make it immoral to kill them but unless the killer himself also lacks self-actualization it is still a deeply immoral act and pointless observation.

  46. Pete Singer may believe infants lack the self-actualization that would make it immoral to kill them but unless the killer himself also lacks self-actualization it is still a deeply immoral act and pointless observation.It’s only immoral because you argue that it is. It is the self-actualization of the actor that is irrelevant.

  47. “abortion on demand”

    Why are the pro-lifers against abortion on demand? It’s better than abortion on request.

  48. Slightly off topic I know but…

    Assuming no knowledge of severe birth defects, were I in a situation where a woman carrying my child chose to abort, I would do everything in my power to convince her otherwise, perhaps involving the law, if I could see how. (I don’t know how I would react if there were significant developmental problems.)

    But such decisions are ultimately private and should not involve the state. My issue is simply that I should not have to pay for that decision. The state has no business funding abortion clinics, just as it has no business banning them. It is a service, you may choose or not, but you should not expect someone else to pay for it.

  49. Let’s see how “principled” those who have hijacked the “pro-life” label by following through to its logical conclusion the proposition that the destruction of a fetus is murder.

    A fetal killing by surgical means, performed by a physician with the express authorization of the mother, is by its very nature both premeditated and deliberate. Hence, if such a killing is murder, it is murder in the first degree according to common law and the statutory definition followed by many states.

    First degree murder is the only crime that is punishable by death in all states that authorize capital punishment. A surgical abortion typically involves payment of some kind to the physician or for his benefit (e.g., to the phsycian’s employer). Employing another to commit murder, as well as commission of a murder for remuneration or the promise of remuneration in many states is an aggravating factor which will support imposition of the death penalty.

    A fetal killing by surgical means, if murder, necessarily involves a young “victim” who is particularly vulnerable, being totally dependent upon its mother. The youth or particular vulnerability of a victim in many states is an aggravating factor which will support imposition of the death penalty.

    If abortion is indeed murder, how many mothers and physicians are the “pro-lifers” willing to have the Government* put to death?

    How about it, “pro-life” folks?

    _________________________________________
    * I am not inquiring about those “pro-lifer” nutjobs such as Paul Hill or Eric Rudolph, who are happy to take matters into their own hands.

  50. “No one seriously believes that a sperm or an ovum is a person, that’s just a strawman put out by pro-choicers. The entity produced by conception is totally different from the gametes that preceded it.”

    Fair enough. When a fertilized ovum naturally fails to implant in the uterus and is carried away in the menstrual flow, is that loss of life equivalent to the killing of a viable fetus?

  51. John in Nashville,

    Welcome to Ad Hominem, Population: You.

    You think that I’m an unprincipled hack? OK. That doesn’t mean I’m wrong.

  52. John in Nashville –

    Principled pro-lifers believe abortion should be punished as murder or conspiracy to murder. To the extent we have state involvement, I guess I’m a principled pro-lifer.

    I’ve thought very briefly about how this would be dealt with in an anarcho libertarian society but haven’t thought this issue fully.

  53. Did I say, crimethink, that you are an unprincipled hack? Or are you trying merely to avoid the substance of the questions I posed?

    Either way, that does not mean you are right.

  54. When a fertilized ovum naturally fails to implant in the uterus and is carried away in the menstrual flow, is that loss of life equivalent to the killing of a viable fetus?

    No, because an element of murder is mens rea. The class of mens rea applied depends on the specifics of the murder statute in question, but it’s usually intent or recklessness. Negligence could apply in some cases to lower categories of homicide.

    When a fertilized egg fails to implant (naturally), there’s no state of mind to support the murder charge.

  55. When a fertilized ovum naturally fails to implant in the uterus and is carried away in the menstrual flow, is that loss of life equivalent to the killing of a viable fetus?

    Yes, the loss of life is equivalent, though in that case it’s obviously unintentional, so it’s not morally equivalent.

    BTW, a “fertilized ovum” isn’t really an ovum (ie, female gamete) anymore, it’s a human organism with a full complement of 46 chromosomes; in my previous statement that an ovum isn’t considered a person, I was referring to the gamete.

  56. Did I say, crimethink, that you are an unprincipled hack?

    That’s the impression I got from scare quotes littered amongst the “substance” of your “questions”.

  57. That is a significant point, x,y, but it is not what I was getting at (due to inartful phrasing of the hypotheical on my part). Let me rephrase.

    When a fertilized ovum naturally fails to implant in the uterus and is carried away in the menstrual flow, is that loss of life equivalent to the unintended, non-negligent, accidental killing of a viable fetus?

  58. John in Nashville, refer to crimethink’s comment at 2:18

    And please, cut the idiotic menstrual flow comparison. Please…it’s just silly.

  59. Yes, John, but you appear to still be under the impression that an unfertilized ovum and a “fertilized ovum” are the same thing. As I stated above, they’re completely different.

  60. Hey ya’ll crazy abortion threaders! DJ thoreau checking in here to see how the abortion thread party is going. Anybody play this classic yet?

    The strawman! The strawman!
    The strawman is on fire!
    We don’t need no water,
    Let the motherf***er burn,
    Burn motherf***er! Burn!

    Have fun!

  61. Me: So abortion is a tricky issue. What rankles me is that pro-lifers refuse to recognize that. Are you really sure you’re right?

    Marcvs: The same can be said on the pro-choice side. Every abortion “debate” leaves me with a “pox on both your houses” feeling.

    Very true, the reasoning does cut both ways to an extent. The thing is, though, pro-choice is not the polar opposite of pro-life. In order for their views to be logically consistent, pro-lifers must believe they have access to philosophical truth that the majority of the nation (the Western world, natch) doesn’t have. Pro-choice is not equivalent to pro-abortion; I and many who consider themselves pro-choice have settled on a non-so-blissful agnosticism, knowing this question to be irresoluble.

    So yeah, I don’t know that I’m right, but I don’t claim to have the answers. All I know is that we live in a crazy, violent world. Forget all the shit people do to each other, just watch some animal documentary. Murder, paralysis, mutilation, etc. occur constantly. When I look at it from that point of view, it’s hard to get too choked up to think of a nonsentient fetus dying when its parents don’t even want it. But that’s just how I see things; I don’t expect anyone to find that line of reasoning convincing.

  62. paul,

    If the pro-lifers are right, that means pro-choicers are enabling the brutal murder of millions of innocent people every year right under their noses. So, it should matter to you whether they are indeed right.

  63. That is a significant point, x,y, but it is not what I was getting at (due to inartful phrasing of the hypotheical on my part). Let me rephrase.

    When a fertilized ovum naturally fails to implant in the uterus and is carried away in the menstrual flow, is that loss of life equivalent to the unintended, non-negligent, accidental killing of a viable fetus?

    I fail to see the moral distinction between a fetilized egg (which as crimethink notes has a full complement of 46 chromosomes … and I would add, per Ramesh Ponnuru, which has the radical capacity to naturally develop into what we can all agree is a human being) and a viable fetus. So I would say the answer is yes. In both cases: (i) the moral status of the “thing” in question is the same, i.e., a person, and (ii) the loss of life is, as you say, unintended, non-negligent, and accidental.

    I’d like to stay and chat more, but I have to take off.

  64. crimethink,

    Asterix saevus infantem tuum nocebit! canis omnibus latinis licet abortionem habere!

  65. Roe delenda est!

  66. Somehow this debate is even more threatening when it’s in Latin.

    Ave Roe, nos fetus morituri te salutamus!

  67. Wow, the idea of fetal gladiators is just sick.

  68. crimethink- of course it matters to me whether the pro-lifers are right. My argument, though, was that it’s impossible to know who’s right because it’s such a personal, subjective matter. There are no definitive answers about any of the subissues: 1)when does life begin? 2) is terminating pregnancy ever justified? 3) knowing that 1 and 2 have no answers that will be close to universal acceptance, is it justified for the government to deny its citizens the right to decide for themselves?

    From a more pragmatic standpoint, not only would banning abortion create mass hysteria, cats and dogs living together, but it wouldn’t work at all. People are always going to have abortions whether it’s right or not, legal or not. And not just a few people, of course. Seems to me the best thing for anti-abortion people to do is to reach out to pro-choicers and try to win them over. Any change in policy will end in tears. Lots of em. Some blood too.

  69. “If the pro-lifers are right, that means pro-choicers are enabling the brutal murder of millions of innocent people every year right under their noses.”

    Or that they are simply defending their bodies against unwanted parasites.

  70. What if the woman, say, didn’t take care of herself while pregnant to the extent that the baby is miscarried? Would you advocate prosecution for that? For example, smoking, drinking, not taking prenatal vitamins, not getting regular checkups, etc. etc. I’m with Paul–I’m pro-choice but certainly not pro-abortion. It’s too murky a subject, and I think it’s sorta insulting to the issue (can issues be insulted?) to insist on an either/or dichotemy. Way way way too many factors involved for me to either say no abortions EVER or to say abortions ANYTIME…Makes a very complex, sometimes heartbreaking, issue too simplistic.

  71. MP, what do you suggest happens to fertilized ova that naturally fail to implant? Does the idea of menstruation make you queasy?

  72. I am generally in favor of the states setting policies over the federal government. But in this case, I would see it as a complete and utter disaster. The biggest issue I see with returning such a political issue to the states themselves is that there’s a number of states out there that would make it a crime to have an abortion (which of course, would be their right in such a situation) but for which they would also attempt to make it a crime to go to a location where it is legal to have one (after all, if one believes that abortion is murder, and that particular state’s shared values place such a belief into law, then they would believe it still to be murder if it’s done somewhere else, even if legal there).

    That would instantly mean it becomes a federal issue again, and an issue for federal courts again. And you’d have everyone trying to control various parts of the federal government to enforce whether or not it would be legal to go somewhere else to have it done.

    This is the case already in some states with various restrictions in place (seeing ultrasound, parental notification, what have you), and it’s an absolute mess – most of the time such laws are written as “It’s not illegal for the mother to go somewhere else to have a procedure, but anyone going WITH them is breaking the law…” etc. etc. Horrid mess of patchwork laws that would only get worse.

  73. Returning abortion laws to states is about as good an idea as returning segregation laws to the states because yes some states would vote to turn back the clock on both of them with the result that we’d have a patchwork quilt of abortion laws across the country, residents of one state going to another state for the procedure. This is the latest gambit of the right to life crowd because basically they know the tide is running against them. There is no way they are ever going to get Roe reversed so this is their solution even if it creates legal anarchy. We needn’t waste too much time arguing about it because it’s never going to happen.

  74. MP, what do you suggest happens to fertilized ova that naturally fail to implant? Does the idea of menstruation make you queasy?

    I suggest that it is idiotic to attempt to make a reasoned comparison between the natural uncontrollable rejection of a fertilized ova and abortion.

  75. The reason abortion must stay legal is simple: because criminalizing abortion amounts to FORCED PREGNANCY.

    Do you pro-lifers really want the state, or the federal government, to have the power to FORCE all pregnant women to bear their children? Not very conservative, if you ask me. Not very libertarian, either.

    If the government can force a pregnant woman to have a baby, that would effectively reduce women, or at least pregnant ones, to second-class citizenship. It is telling a pregnant woman that “that baby inside your body, female, is more important than you, than your life, than your needs.” No. I don’t think it’s okay for the government to say that.

    And besides, how would you punish someone if she did have an abortion? Is she a murderer? Do you punish her the same way you punish other murderers? Wait… I suppose that question has been addressed in previous posts.

    Pro-choice is NOT pro-abortion. It is anti-forced-pregnancy. A shame that term isn’t catchier.

  76. Just curious, crimethink. How many unwanted infants have you adopted?

    You’re “pro-life”, right?

    CB

  77. because criminalizing abortion amounts to FORCED PREGNANCY

    And decriminalizing it amounts to (from a pro-life perspective) LEGALIZED MURDER.

    See, I can use all caps too.

  78. Crimethink/MP –

    Would you, as pro-lifers, object to being completely and totally responsible for the health and development of a 1 day old baby assigned to you for a period of nine months, and if so, why?

    CB

  79. I understand the pro-life perspective, but I ask you to think of the mother’s life, and not just her potential as an incubator. It’s not murder if it’s self-defense. It’s not murder if the person being killed needs to use another person’s body to live. The choice of whether or not to carry a pregnancy to term is up to the owner of the body being used, and no one else. Especially not the government.

    Sorry if all caps bothers you so. Forced pregnancy is forced pregnancy, whether it’s capitalized or not!

  80. Would you, as pro-lifers, object to being completely and totally responsible for the health and development of a 1 day old baby assigned to you for a period of nine months, and if so, why?

    I’m a six-monther actually (legalized abortion until the fetus is legitimately viable on its own). I simply get annoyed by silly debate tactics.

    It’s not murder if the person being killed needs to use another person’s body to live.

    So if I shoot my conjoined twin in the head its not murder?

  81. Mr. Balko should have also shown the larger context for federalism than abortion alone. Most of our problems with the federal government, from social security to repairing I35, could be fixed with a strong dose of federalism.
    True federalism would likely eliminate the income tax, the sosec tax and the medicare tax. The problem is that entrenched bureaucracies are never pulled from their perches by court order.
    So, the central government has vested interest in perpetuating Roe v. Wade and all the other non-federalist policies. It would just have been nice to read Mr. Balko make the case against abortion law in the larger context.

  82. “silly debate tactics” (like the conjoined twin reference).

    I see. So you’re actually a pro-choicer, not a pro-lifer. I think we agree then. You use “viable” as the cut off. So do I. It’s crimethink who thinks life begins at the “moment of sperm/egg union”.

    So what say you, crimethink? Would you be willing to keep that baby for 9 months?

    CB

  83. This is nowhere near as fun as the JEFF thread above.

  84. “silly debate tactics” (like the conjoined twin reference).

    Hey, I’m not the one who said it’s not murder as long as there’s a biological interdependency.

    And crimethink…I bet you’ve answered CB’s question like 800 times on other threads. You should start to accumulate your posts in a crimethink’s greatest hits collection and just provide a link to it.

    In fact, most of the regulars should do that…it would sure save a lot of time.

  85. Pro-choicers are inherently anti-religious types who crave recognition as rebels, hedonists, and moderns.The reason the USA has the abortion problem it does is because the people who own the clinics know the money is real and the minds opposing it easily characterized as marginal types; this marginalization is most visibly accomplished thru politics. So they are made unreal, so to speak. The media is into dissing marginals so it plays along. This society is simply too shallow to sustain a serious debate such as this so it goes into nothingness, otherwise known as political “debate”.

  86. MP – I usually try to ask questions that can be answered with a number (How many unwanted babies have you adopted?”) or a Yes/No (Would you be willing to raise an assigned infant for 9 months? Admittedly the Why/why not MIGHT require some time.) Either a number or a yes/no would be faster than posting a link to ya’ll’s library of already answered questions.

    So… crimethink? How many? (If the answer is zero, or no, then by all means, post a link to your thoughts. I’d love to see the principles being applied.)

    CB

  87. Cracker’s Boy,

    Let’s assume for the sake of argument that I’m a worthless, degenerate, hypocritical sack of shit.

    What relevance does that have to the right to life (or lack thereof) of an unborn child?

  88. The reason abortion must stay legal is simple: because criminalizing abortion amounts to FORCED PREGNANCY.

    Because, as we all know, the govt forces women to have sex.

  89. You should start to accumulate your posts in a crimethink’s greatest hits collection and just provide a link to it.

    LOL! Or maybe I could link to a basic logic text; that would take care of a lot of the “arguments” these people come up with.

  90. As a dedicated pro choice male, I am amused at the discussion. I see no new ideas or opinions here.

    Fortunately as a successful white male I have the means and mobility to support my partner’s choice in any instance. Give the power to the states and we will go to states where it is legal. Ban it at the federal level and we will go to a country where it is legal. I suspect package vacations will be reasonable and choices extensive. Your arguments are meaningless as they have no impact on me or my class.

    In the other world this simply impacts the poor and makes their lives more difficult. However, there is a major need in this country for people to fill the low paying menial jobs. If not illegal immigrants, then the poorer natives will have to do. We will need to breed more of them to keep up with demand.

  91. “Because, as we all know, the govt forces women to have sex.”

    Now we’re on to something. Your arguement isn’t about life or death or when conception occurs. You’re one of those people who think women who have sex without intending pregnancy are slutty whores! A puritan!

    Have you never fucked a women for pleasure, crimethink? You’ve only had sex intending procreation?

    Now. What does it have to do with the right to life of an unborn child? A lot. If you are so concerned with the “right to life of an unborn child”, then you would have volunteered to adopt the baby of some woman who was headed to get an aboortion. But since you haven’t, then maybe you’ll admit it’s not about the “right to life”. It’s about the “women shouldn’t have sex if they don’t want babies”.

    So yeah… I guess you pegged it. We don’t need to argue. Your a hypocritical puritan. If you weren’t, you’d take in some babies.

    CB

  92. So yeah… I guess you pegged it. We don’t need to argue. Your a hypocritical puritan. If you weren’t, you’d take in some babies.

    OK…but, again, does that mean that unborn children don’t have any right to life?

    Hint: notice that the question doesn’t involve me in any way. It would stand to reason that your answer to it should also not involve me and my allegedly hypocritical puritan attitudes in any way.

  93. “unborn children don’t have any right to life”.

    Define unborn children.

    An egg and a sperm? Or a viable, if not completely self-sufficient, almost human? Which do you mean?

    CB

  94. I see that none of the “pro-life” advocates has deigned to answer the central question of my 3:09 post. Since that question was implicit rather than explicit, let me rephrase.

    If abortion is murder, it meets traditional criteria for capital murder, as my earlier post explained in greater detail. What is the “pro-life” position, in a jurisdiction that authorizes capital punishment, as to whether the Government should seek to execute physicians who perform abortions for hire and/or the mothers who hire them to perform these contract killings?

    Those who are not too obtuse and whose heads haven’t exploded may wish to explain: (1) how seeking the death penalty for doctors/mothers is pro-life; and (2) in the alternative, why abortion practitioners and procurers should be treated differently from other killers.

  95. Another observation. The phrase “forced pregnancy” should be reserved for pregnancy that results from forcible rape.

    The denial of abortion services does not force any woman to become pregnant; the need for abortion in any particular case presupposes a pregnancy.

    As George Orwell observed, “The great enemy of clear language is insincerity. When there is a gap between one’s real and one’s declared aims, one turns as it were instinctively to long words and exhausted idioms, like a cuttlefish spurting out ink.” Those of us who oppose pre-viability abortion being criminalized should be honest in our use of language, unlike those on Eric Rudolph’s side of the culture war.

  96. I answered your question before you asked it.

  97. Those of us who oppose pre-viability abortion being criminalized should be honest in our use of language, unlike those on Eric Rudolph’s side of the culture war.

    I agree, those of you on the Mao Zedong side of the culture war need to get your act together.

  98. “I suggest that it is idiotic to attempt to make a reasoned comparison between the natural uncontrollable rejection of a fertilized ova and abortion.”

    Somebody already queried about if a woman intentionally allows herself to fall into poor health the fetus miscarries. What if she is on the pill? That isn’t “uncontrollable”.

  99. crimethink, since you didn’t answer the question, I shall repeat: how is seeking the death penalty for doctors/mothers who participate in abortion “pro-life”?

  100. Damn! You sex control freaks are irony challenged.

  101. I agree, those of you on the Mao Zedong side of the culture war need to get your act together.

    I love it when an abortion thread goes to shit.

    *lights cigar*

  102. Abortion rights is a truly national issue. We cannot have multiple definitions of personhood, anymore than we can have multiple definitions of citizenship — either is a “house divided” which “cannot stand.”

    There is an alternative to both the “heavy hand” of the Supreme Court and individual state governments, namely the people, who are supposedly sovereign. Here’s how the American people can decide the issue, once and for all:

    Congress enacts two amendments, one pro-choice and one pro-life, each drafted by its respective proponents, and submits both to the states with further provisions that in each federal election (every two years), the voters of each state will get to elect either a pro-choice or pro-life representative to a special convention of that state to decide whether thaat state will ratify the pro-life or the pro-choice amendment.

    Such elections continue every two years until one of the amendments has been simultaneously ratified by at least 38 conventions, whereupon the amendment is ratified.

    If the pro-life amendment wins, then so be it. Congress can, if it wishes, impose the death penalty for abortion under the enabling clause of the “pro life” amendment and we can start executing women who have abortions and those who perform or procure them. The FBI will lead the charge to stamp out the horror or abortion, just as it did to stamp out drinking while the 18th amendment was in effect, or a new agency can be created for the purpose of rooting out abortion.

    If the pro-choice amendment wins, then so be it as well. No more complaining about how un democratic Roe v Wade is or about heavy-handed judicial interference in democratic processes.

    Best of all, no more distortion of presidential elections over this issue, one over which the President has no power or responsibility whatsoever. We can focus on the matters which are important in presidential elections: foreign policy, national security, economic policy.

    It’s what the founding fathers intended and it is quintissentially democratic.

  103. Fortunately as a successful white male I have the means and mobility to support my partner’s choice in any instance. Give the power to the states and we will go to states where it is legal. Ban it at the federal level and we will go to a country where it is legal. I suspect package vacations will be reasonable and choices extensive. Your arguments are meaningless as they have no impact on me or my class.

    Successful non-white males, of course, will be unable to avail themselves of such options.

  104. Just as much as abortion is a choice, having sex is also a choice. In having sex (with or without birth control) I already assume that there’s some small chance that my girlfriend could get pregnant. It’s undecided that penal-vaginal sex is the only way to get pregnant–except for maybe a few strange fetishes.

    So, my argument is that people should be educated enough and then take responsibility for their actions. If they have sex and it results in a pregnancy, it seems that would be a direct result of their actions. They KNEW that it could end up in them being pregnant… so how can they say that they didn’t want it to happen. If you want to have (heterosexual) sex, you inherently want kids. This is why it aggrivates me when people act like they had nothing to do with their pregnancy… At one point, they had the choice! So why give them a way out if it is unethical?

  105. how is seeking the death penalty for doctors/mothers who participate in abortion “pro-life”

    Uh, I don’t know. Which shouldn’t come as a surprise, seeing as how I never said that I think they should get the death penalty.

  106. “If you want to have (heterosexual) sex, you inherently want kids.”

    Ah. Another puritanical prude.

    Welcome.

    CB

  107. If you want to have (heterosexual) sex, you inherently want kids.

    not if you nail her in the keister, bro.

  108. dhex must have led a sheltered life.

    crimethink, do you contend that, in states that authorize capital punishment for first degree murder, abortion practitioners and procurers should be treated differently from other killers–that is, being subjected to the death penalty in an appropriate case?

    Trying to get a straight answer from you is like trying to nail Jell-o to the wall.

  109. Excuse me, I mistakenly wrote “being subjected” when I meant to write “being exempted”. My bad.

  110. Excuse me once more. I should have called out Danny, whom dhex was quoting.

  111. I explicitly noted that penal-vaginal sex causes kids… therefore if you are having penal-anal sex you don’t run that risk. For that matter, why does it even need to be heterosexual if you like to give it “in the keister”.

    And what about being sheltered dismisses my point? If you have penal-vaginal sex, you are in the most basic way allowing the possibility of a pregnancy. Kids need to be taught this simple fact. Then we can’t allow them to claim ignorance.

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