Courts

Abortion, Liberalism, and Limiting Government Power

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In a column last week in the Richmond Times-Dispatch, A. Barton Hinkle observed that the passage of some meddlesome and arbitrary new anti-abortion restrictions in Virginia has pro-choice advocates sounding like "libertarian advocates of laissez-faire capitalism." As Hinkle put it:

Abortion-rights supporters fume that the new rules really have nothing to do with protecting consumers and are, instead, part of an ideological campaign to "get" their industry. The same might be said about other industries fighting other regulations…. That people with agendas exploit government power for political ends is not exactly news. Want to stop them? Limit government power in the first place.

At The American Prospect, progressive writer Adam Serwer objects, arguing that Hinkle ignores a central component of liberal thinking. As Serwer writes:

But "limiting government power" in this context wouldn't solve the problem, at least as far as liberals are concerned. Liberals believe women have the fundamental right not to be forced to carry pregnancies to term. But that right is useless if you can't exercise it because you simply can't afford to do so. So they support government aid to organizations that can provide family planning services to women who wouldn't be able to afford them otherwise. If you simply removed government from the equation entirely, you'd still be left with women unable to terminate an unwanted pregnancy simply because they lack the financial means.

Serwer is probably correct that liberals and libertarians will never agree on whether the government should fund social welfare organizations. But that's not the only way to think about "limiting government power." In fact, when it comes arbitrary and unnecessary regulations, government spending isn't part of the problem at all. The problem lies with the courts.

For more than 70 years the American legal system has demoted economic rights to a sort of second-class status. The key precedent here is United States v. Carolene Products Co. (1938), where the Supreme Court upheld a federal restriction on milk substitutes, declaring that "the existence of facts supporting the legislative judgment is to be presumed." As long as an economic regulation "rests upon some rational basis within the knowledge and experience of the legislators," the Court held that it must defer to the lawmakers and presume the legislation to be constitutional.

The result has been disastrous, with the courts rubber-stamping the vast majority of economic regulations without even bothering to check if those regulations served a legitimate government purpose. That's a major reason why we see so many stupid and obviously unnecessary regulations appearing on the books. The deck has been stacked in their favor. Yet we don't let the courts presume the constitutionality of laws restricting free speech or privacy; why should economic rights receive any less protection?

So here's one way to limit government power: Subject all laws and regulations to the same strict scrutiny in court.

NEXT: Jesse Walker Speaks About the Paranoid Center

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  1. The problem is the calling of things like this ‘rights’. You don’t have a ‘right’ to an abortion. It’s that the government doesn’t have the power to force you to not have one. But that doesn’t confer that because they can’t stop you from getting one, they are then obligated to go the other way and help you get one.

    1. “It’s that the government doesn’t have the power to force you to not have one.”

      Plenty of states would change that if they could, and many are busy enacting as many obstacles to it as they can legally get by with.

      1. Jim, that’s certainly true, but it doesn’t change the point. Either than can force you not to have one, or they can’t. Neither goes the other direction like Serwer argues that the lack of the power to force people to not have abortions means that the government has an obligation to then pay for abortions.

        1. Oh certainly, I was just pointing out another aspect of it. I don’t think they’re entitled to have the gov’t PAY for one.

          1. Although I like the possible implications of such a thing. The government should be paying for every citizen to have a gun to support our 2nd Amendment rights.

            1. I should’ve read further down… still, I need a gun.

    2. I’m having a bit of trouble with the distinction you’re trying to make. If the government cannot stop you from getting an abortion, how is that not effectively synonymous with having the right to get an abortion?

      Having a right to do something does not mean the government has to pay for you to do it if you can’t afford it yourself.

      Freedom of speech or of the press does not mean the government has to buy me a computer so I can come here and comment or print off my flyers and hand them out on the street corner. It just means the government can’t stop me from doing it.

      If women have the right to an abortion, that’s the same as saying the government can’t prevent them from getting one. It does not mean the government has to provide them. The Second Amendment says I have the right to own and keep firearms – that doesn’t mean the government has to buy me a gun; they just can’t completely prevent me from having one.

      1. SLD – I don’t agree with what I type below, this is for explanation only.

        “Social Justice” requires not only equality of opportunity but equality of outcome, thus if firearms became a social good, then social justice theory would mandate that socially disadvantaged groups be supplied with firearms (and possibly bullets). At some point between or possibly just after the World Wars, it became popular to take the theme behind the old saw “the law forbids the beggar and the rich man from sleeping under a bridge equally” and turn it on rights. Thus freedom of the press might be your right, but the government/taxpayers should also buy you a press if you couldn’t afford one.
        How could you exercise freedom of the press without a press? Bullshit, but appealing to certain people.

      2. “If women have the right to an abortion, that’s the same as saying the government can’t prevent them from getting one.”

        It could be taken either way. What would it mean to you if I told you I had a right to a job or to a house? I just heard Mark Levin(who I actually enjoy most of the time) pull this shitty trick: “These people think they have a constitutional right to jobs or houses or abortions…”. Switching back and forth between positive and negative rights really screws up the constitution.

  2. Birds of a feather are linked together

    The Af-Pak Channel
    The American Scene
    Attackerman
    Balkinization
    Balloon Juice
    Danger Room
    Dave Weigel
    Emptywheel
    Eunomia
    Ezra Klein
    Feministe
    Feministing
    Glenn Greenwald
    Greg Sargent
    lll Doctrine
    Jack and Jill Politics
    Jonathan Bernstein
    Julian Sanchez
    Laura Rozen
    Lawyers, Guns and Money
    Leah Farrall
    The Majlis Blog
    Marc Ambinder
    Mark Kleiman
    Matthew Yglesias
    No More Mister Nice Blog
    Pam’s House Blend
    Pandagon
    Postbourgie
    RaceWire
    Racialicious
    Radley Balko
    Roy Edroso
    Sarah Mayeux
    The Sexist
    Steve Benen
    The Streak
    Ta-Nehisi Coates
    TPM Muckraker
    Wonk Room


    1. you forgot hitler

      1. He’s the 7th one down.

        1. If you had lips I’d kiss them.

  3. By the flawed logic of Mr. Serwer, poor women (and men for that matter) have the right, at Government expense, to a gun (2nd Amendment) and ammunition.

    On the First: a printing press, paper and ink, a bull horn, a web site, a blog, the computer to run the web site and blog, a free soap box, money to build a church of their liking – since, what point is there to “free speech” if one is too poor to afford the means to express oneself. Ditto that with the church – after all, if I don’t have a suitable house of worship, how, OH HOW can I exercise my religious freedoms?!?! Or for the peyote smokers – hey…instead of the church, how about a nice supply?

    1. That’s a pretty glib way of saying that you believe rich women should have a right that poor women shouldn’t.

      1. So you accept the argument that having a right to something means the government must provide it to you if you can’t afford it yourself?

        And I’m sure you (a) have some bright-line test for how poor is “poor enough” for the government to provide it and (b) have a great plan for where this money will come from (let me guess… could it be…. oh, I don’t know…. THE RICH??)

        1. The right in question is “not to be forced to carry a pregnancy to term against one’s will.” Some rights DO require government subsidy. Arguably, the most heavily subsidized right is the one you guys cherish most: the right to own property. That right entails a vast network of police, courts, surveyors, etc. to actually exist.

          So if you can’t afford an abortion, you actually do not have the same right “not to be forced to carry a pregnancy to term” as someone who can.

          1. The right in question is “not to be forced to carry a pregnancy to term against one’s will.”

            As always, you fail to see the distinction between being prohibited from doing X, and not being able to afford X.

            Similarly, you fail to see that being forced to pay for other people to do X is just as much a violation of your rights as being prohibited from doing X.

            1. If you think there should be a right to own property, that right is completely empty unless there exists a government (or some similar entity) to secure it. That is, to prevent others from trespassing and to establish the legitimacy of your claim.

              There is not a right not to pay taxes, by the way. If there is a right not to be forced to carry a pregnancy to term, then to actualize that right might require government subsidy for the poor. Otherwise you have a right that only people with money can actually enjoy–the others will have their right violated if they have an unwanted pregnancy.

              1. So if I have a right to private property, does that mean the government is obligated to purchase property for me?

                Awesome. I’d like Yosemite, please.

              2. In a free country you would have a right to not pay taxes.

                “If there is a right not to be forced to carry a pregnancy to term”

                Do you mean that in the sense that you are forced to become hungry after not eating for a while or forced to fall straight down after jumping off a building? No one forces you to carry a baby to term by not performing an abortion on you or not giving you money.

          2. Re: Tony,

            Some rights DO require government subsidy.

            Then they’re NOT rights. If someone else has to PROVIDE IT, then it is a good or a service, BUT NOT A RIGHT.

            Arguably, the most heavily subsidized right is the one you guys cherish most: the right to own property.

            You’re an idiot, Tony. Property rights exist because everybody else stays off your property and you stay away from theirs – HOW IS THAT A SUBSIDY, MORON?

            Oh, and don’t tell me that government provided “protection” for property and blah blah blah – government-run rackets are NOT SUBSIDIES.

            1. Then they’re NOT rights. If someone else has to PROVIDE IT, then it is a good or a service, BUT NOT A RIGHT.

              A right can be whatever you want it to be. Someone, say a god-king, could assert the right to all your stuff, and that right would be actual if the god-king has sufficient force to take your stuff at will. You don’t have the right until some force exists to protect it. Feel free to say that property rights are invalid, that might be consistent. Or is property not a thing you have to buy?

              You’re an idiot, Tony. Property rights exist because everybody else stays off your property and you stay away from theirs – HOW IS THAT A SUBSIDY, MORON?

              Oh, and don’t tell me that government provided “protection” for property and blah blah blah – government-run rackets are NOT SUBSIDIES.

              Your irrational government phobia is irrelevant. The only way the rights you are talking about mean anything at all is if some force backs them up, or everyone magically agrees with you. Since there’s no such thing as magic, option 1 is the only option.

              1. I thought Tony told us yesterday that he didn’t believe in force as a policy prescription.

                1. What I said was I don’t think we should base tax policy on the implied threat of rich people picking up and moving, or evading taxes. That would imply that we should tax the poor more because they can’t get away.

                  1. No libertarian supports taxing the poor more.

      2. So by your argument, the government should buy all those welfare recipients guns.

        1. I don’t believe that there should be a right to own guns.

          1. But there is. So until you pass the amendment that reapeals the Second Amendment, what say you Tony?

            1. Quite true. There is a right to own guns. I just don’t think there should be.

              1. But you weren’t asked if there should or shouldn’t be a right to own guns. You were asked if the same standard you would apply to the right to an abortion should be applied to the right to a gun.

                If you think there’s a difference, say why and show your work.

                1. Well my point was that liberals will tend not to bother with the question since most are not sold on a fundamental right to own firearms, but it is a fair question.

                  Technically I suppose you cannot keep and bear arms if you can’t afford any arms, so maybe hypothetically they should be subsidized for the poor. There is somewhat of a difference though. If you have the right to own a gun, that doesn’t mean you have to exercise the right. But if you have the right “not to be forced to carry a pregnancy to term” then abortion services are a necessity in the event you get pregnant and don’t want the baby. Your not owning a gun is not an infringement on your right to own a gun. But your not being able to afford an abortion IS an infringement on your right not to carry a pregnancy to term against your will.

                  Not sure if that makes sense, but thanks for making me think.

                  1. Re: Tony,

                    But if you have the right “not to be forced to carry a pregnancy to term” then abortion services are a necessity in the event you get pregnant and don’t want the baby.

                    Non sequitur. Having the right not to be forced to do something does not confer you a right to someone else’s services.

                    1. Sure it does. Your right not to be burgled or raped only means something if the services of the police are at your disposal. Otherwise there exists the right to burgle or rape you, and you have the right to sit there and take it.

                    2. Your right not to be burgled or raped only means something if the services of the police are at your disposal. Otherwise there exists the right to burgle or rape you, and you have the right to sit there and take it.

                      Holy crap this makes not one whit of sense.

                      There are police in my county. So does that mean nobody gets burgled or raped? Because those people do get burgled or raped, does that mean the government has violated their rights?

                      Your thought process is like tapioca.

                    3. There are police in my county. So does that mean nobody gets burgled or raped? Because those people do get burgled or raped, does that mean the government has violated their rights?

                      If you are raped, your right not to be assaulted has been violated ONLY BECAUSE there exists a legal system that codifies that right. Without that legal system, the rapist has EXACTLY the same claim to legitimacy when he declares a right to own your ass. How do you solve such a dispute without police and their guns and a criminal justice system?

                    4. Re: Tony,

                      Sure it does. Your right not to be burgled or raped only means something if the services of the police are at your disposal.

                      The fact that people are not raped or robbed even when no police is present being a never mind to you, isn’t it?

                      Otherwise there exists the right to burgle or rape you, and you have the right to sit there and take it.

                      You certainly have a right not to do anything, but if you think you have a right to burglarize a house, I would suggest you test that theory by entering someone’s house here in Texas, and try to steal their flat screen TV. While you die of your buckshot wounds, you will have your ephiphany.

                      The fact is, people actively defend their rights all the time, police or no police. Rights are concepts people reach by reason; they are axiomatic, allowing them to set boundaries between individuals – my life is mine, your life is yours; my property is mine, your property is yours. The fact that some do not want to think this way is irrelevant, changes not the validity of the concepts, just like thinking 2+2=5 does not change the fact that 2+2=4.

                    5. Let’s say, hypothetically, there is no government. According to you, is it wrong to rape someone?

                  2. Your not owning a gun is not an infringement on your right to own a gun. But your not being able to afford an abortion IS an infringement on your right not to carry a pregnancy to term against your will.

                    Cognitive dissonance, thy name is Tony.

                    Jesus H. Upjumpin’ Christ, you’re so full of shit, it’s depressing.

                    You are tying yourself into pretzel knots trying to distinguish the notion of government providing you with an abortion, since having an abortion is a right, versus the government providing you with a gun, if owning a gun is a right. And yet you are unable to make any convincing, principled distinction.

                    You write: If you have the right to own a gun, that doesn’t mean you have to exercise the right.

                    Exactly. And if you have the right to an abortion, it doesn’t mean you have to exercise that right, either.

                    But in either case, if you DO want to exercise the right in question – either having an abortion or having a gun – and you are unable to afford to pay for the “right” in question – abortion or gun – how can you justify paying for the abortion but not paying for the gun?

                    If a poor, pregnant woman wants a gun but doesn’t want an abortion, the government in your universe would buy her the abortion, but not the gun? If she has a right to own a gun, but can’t afford one, using your own logic, she is denied her right unless the government provides her the gun. Just like, according to you, if she cannot afford to pay for an abortion, the government denies her the right to an abortion if it does not provide it to her.

                    In either case, the individual desires to exercise a supposedly constitutional right but is unable to afford to do so in her own. If the government does not pay for it, the government then denies that right?

                    That is puerile bullshit.

                    1. And if you have the right to an abortion, it doesn’t mean you have to exercise that right, either.

                      True, but “the right to have an abortion” is not the framing in question. It’s “the right not to be forced to give birth against one’s will.” If you can’t afford an abortion, you are forced to give birth, and your right is thus violated. To contrast, not being able to afford a gun is not the same having your right to own one violated. Just like not being able to buy a house is not a violation of the right to own property.

                    2. You don’t have a right to rewrite reality. Try it. Turn yourself into a zebra. I’ll wait. If a woman has a fertilized egg inside her, she has a right to take any action she sees fit to make sure it doesn’t grow into a baby and get ejected her body. If she wants a specialist to intervene, she can find one who’s willing to do it for her a price she’s willing to pay(including free of charge) or she can do it herself. You are conflating the forces of nature with human coersion. She does not have a right to make slaves of people.

                    3. True, but “the right to have an abortion” is not the framing in question. It’s “the right not to be forced to give birth against one’s will.”

                      BULL. FUCKING. SHIT.

                      How is a woman who “forced to give birth against her will” by the government, unless the government locked her up, tied her down and forcibly inseminated her, and then forcibly prevented her from taking any action to terminate that pregnancy?

                      You are completely and totally denying any personal responsibility for the individual’s actions.

                      Unless we’re talking about a woman who was raped, she chose to engage in sexual activity, knowing full well the potential risk of pregnancy. Nobody forced her to do that against her will. So framing it as “the right not to be forced to give birth” is complete, disingenuous bullshit. Nobody is forcing her to give birth against her will if the government is not outlawing abortion. If abortion is legal, then she can go get one. Nobody is hauling her in and saying, “no, dammit, you’re going to have that baby!”

                      If she cannot afford the abortion, that is not, at all, the same as the government “forcing her to give birth against her will.” If it’s legal, the government is not doing anything either way about it. She can choose to terminate the abortion, and the government will not prevent her from doing so.

                      If you truly believe this nonsensical bullshit you’re spouting, I truly hope you do not reproduce, because I can’t imagine what infantile nonsense you would teach your children.

                      You’ve made it abundantly clear that you (wrongly) believe that all rights spring from government and that the purpose of government is provide the “rights” for people that you agree with – as you’ve indicated above, because you don’t think there should be a right to own a gun, you don’t believe the government has to provide them, but you do believe the government should provide abortions.

                      There is no rational standard for determining what truly are “rights” in your uinverse.

                  3. “But if you have the right “not to be forced to carry a pregnancy to term” then abortion services are a necessity in the event you get pregnant and don’t want the baby. ”

                    But you don’t have the right not to be forced to carry a pregnancy to term, you have a right to privacy, which incidentally covers whatever you might choose to do reproductively as far as SCOTUS is concerned. Once you ask for a handout from the public for some need, your behavior is no longer private and is necessarily of government interest, so abortion can’t hide behind that shield.

          2. Re: Tony,

            I don’t believe that there should be a right to own guns.

            Thiefs start from somewhere…

            1. Fuck you. You’re trying to tell me that there exists in human DNA a right to own a modern firearm? Gee I wonder why I think you’re offering nothing but a bunch of arbitrary bullshit with excuses meant to give your beliefs the extra legitimacy that comes by sprinkling them with fairy dust.

              1. Re: Tony,

                Fuck you. You’re trying to tell me that there exists in human DNA a right to own a modern firearm?

                Is there to own a pen?

                I mean, do you have a brain? Are you for real?

                Fuck you, thief!

              2. Where does there exist in human DNA a right to print something on a piece of paper and hand it out to people walking by on the sidewalk?

                Where does there exist in the human DNA a right to engage in the belief system of your choosing?

                Admit it – you support the liberties that you like and you don’t support the liberties you don’t – just like every single other opinionated individual in the known universe.

                You don’t like guns; therefore, you believe there is no individual right to own them. You think women should be able to terminate a pregnancy if they want to; therefore, you believe there is an inherent right to an abortion.

                Stop fooling yourself and trying to fool anyone else that there is any legitimate, objective, reasonable distinction in the basis for your position on either of these “rights.” It’s simply a matter of which things you think people should be able to do without government interference. As yet, you have not stated any argument of any substance whatsoever.

                1. I thought you were talking to OM until you got to guns and abortion. To clarify, I don’t think rights are encoded in DNA (or etched in stone). I think they are abstract human inventions. Of course I, like everyone else, support liberties I like and don’t support those I don’t like. My beef with OM is that he is claiming that his preferences are extra special, because he says so.

                  1. Re: Tony,

                    I think they are abstract human inventions.

                    All ideas and concepts are abstract human inventions.

                    Of course I, like everyone else, support liberties I like and don’t support those I don’t like.

                    ‘Everybody else’ would mean your statist buddies?

                    My beef with OM is that he is claiming that his preferences are extra special, because he says so.

                    “When in doubt, obfuscate and create a strawman.”

                    Old Statist proverb.

          3. I don’t believe that there should be a right to own guns.

            And I don’t think there should be a right to an abortion. Sucks to be on the losing end of a court decision and then have to pay for that you find detestable, don’t it?

            1. Yes it does, but I’m not going call into question the legitimacy of the entire system just because I don’t get my way on a policy matter, because I’m not a whiny little baby.

              1. > I’m not a whiny little baby.

                hahaha, I just thought that bore repeating. Is somebody somewhere collecting Tony quotes?

      3. Then start a fucking charity to remedy this terrible inequality.

  4. So the government is denying me my right to freedom of the press because it hasn’t bought me a printing press?

    1. Apparently, yes.

      1. And the government is denying my right to practice my religion, because they do not force everyone to bow down and worship me?

        1. Me, too!

  5. But that right is useless if you can’t exercise it because you simply can’t afford to do so.

    Anyone who commits the positive rights fallacy I write off as an utterly lost cause, someone who will admit to no principled limits whatsoever to state power, who cares only that the Total State is helmed by the Right People who will don their jackboots only to Do Good.

    1. RC I was going to disagree a little bit regarding being an utterly lost cause, then I re-read the article and I realize that you’re probably correct, anyone who spews nonsense like this: “Liberals believe women have the fundamental right not to be forced to carry pregnancies to term” is most likely hopeless.

  6. Not fast enough.
    If the government wants to buy me that rifle I’ve had my eye on and the cartridges to go with it, I’m OK with that. Keep the printing press.

    1. 2nd admendments right with anything less than my own set of Perazzi’s = facisim

      http://www.shootingsports.com/perazzi/oltrap.htm

      One my not like Dick Cheney, but you cannot disagree with his choice of firearms.

      1. Let’s hear it for big government and “free” quality firearms.

  7. It would be interesting to see the pro and con arguments if the Virginia state legislature were to float the idea of a $500 per-unit tax on every abortion performed in the state.

    1. That might require an amendment to the Virginia Constitution. The state constitution sets out what must and may be taxed. I’d have to research that, but I dunno that the legislature has the constitutional power to tax that procedure.

      Also, I’m thinking the SCOTUS (at least some of the judges) might find that such a high tax on something that SCOTUS already has found to be a constitutional right might rise to the level of actually denying that right to the women who can’t afford the $500 tax. After all, we all know “the power to tax is the power to destroy.”

      Interesting how all these expensive medical procedures easily could be avoided by a very inexpensive closed-end latex tube.

      1. So the state can’t tax my firearms purchases? Sweet!

        1. Nice example of a non sequitur Brett L.

        2. Um, actually it can, because the Virginia Constitution expressly provides that ALL property shall be taxed.

        3. Not by an exorbitant amount clearly intended to prevent most people from making that purchase.

          Of course, they might be able to get away with prescribing such an onerous regulatory regime that it’s equivalent to a huge tax. ie, requiring ballistics testing, etching a signature on the inside of the shaft for tracking ownership, etc.

  8. Subject all laws and regulations to the same strict scrutiny in court.

    So then Anthony Kennedy, on whatever whim, gets to decide all our laws and regulations?

    1. Pragmatically, the more people whose say-so is required, the less likely the requirement will be fulfilled. Wouldn’t you rather have a Kennedy or a Bozo or whoever have veto power over legislated or regulated impositions?

      1. Ideally, my buckshot in the revenuer’s hindquarters would ultimately determine what regulations stand.

  9. “you’d still be left with women unable to terminate an unwanted pregnancy simply because they lack the financial means.”

    What about throwing themselves down the stairs or a few swift kicks in the gut?

    1. Re: IceTrey,

      What about throwing themselves down the stairs or a few swift kicks in the gut?

      You didn’t read the fine print – the so-called “right” is actually a right to an affordable abortion.

      Sounds like welfare to me…

  10. “But that right is useless if you can’t exercise it because you simply can’t afford to do so.”

    Ha ha ha ha ha!!!!

    Oh man! Are pro-abortionists IDIOTS!

    You can ALWAYS afford to exercise your rights, ALWAYS, because they represent responsibilities from you towards others (you can’t kill, you can’t steal, you can’t limit someone’s freedom). What you CAN’T afford (or can afford) is a GOOD (a thing or a service), NOT A RIGHT. And GOODS ARE NOT RIGHTS!

    Fucking idiots.

    1. Plus, no one is denying them abortions. Last time I checked, the Dollar General still sells 5 coat hangers for $1.

    2. Hey! Here’s an idea: we need to find a way to commoditize rights. We have to set a price – i.e., a market value on each right. Then we can pool the rights of thousands of people and use them as collateral to issue securities. We’ll call them rights-backed securities. Maybe we can convince Congress to create a special section of the Internal Revenue Code that allows any rights-backed securitization trust to not be taxed at the entity level. Then we can get lots of big pension plans to buy our rights-backed securities.

      We’ll make tons of money! I mean, what could go wrong?

  11. Anyone realize that this could easily be ended if we just accepted that babies in the womb are a living thing?

    Honestly, if we did that we wouldn’t have to care about this stuff.

    Remember true Freedom exists only if we self-govern. Self-governance accepts the consequences of what you do. Abortions not only devalue human life it also destroys the consequence part of the equation.

    Therefore self-governance can not be employed.

    1. Nobody questions whether the unborn are living. The question is what rights as persons are they afforded. Obviously that’s a tricky question since the fetus’s rights can clearly conflict with the mother’s rights.

      It is a little silly to say that fetuses have a right to self-governance. Do children even have that right?

      1. Re: Tony,

        The question is what rights as persons are they afforded.

        Nobody affords anybody any rights, as these already exist by virtue of our humanity, first, and reason, second. Unborn babies may not have reason yet, but there’s no denying they’re human – ergo, they have rights.

        It is a little silly to say that fetuses have a right to self-governance.

        They HAVE the right – whether they can exercise it or not is another matter, but just because they don’t exercise a right does not preclude fetuses from having them.

        If you have a car, do you have a right to have it only when you drive it?

        1. OM you asserting for the 1,000th time that rights are the product of Jesus’s farts doesn’t make it so. You want rights to have a magical origin because that way you get to lecture me on how correct you are about everything, because Jesus says so. Stop believing in magic and get back to me.

          1. Re: Tony,

            OM you asserting for the 1,000th time that rights are the product of Jesus’s farts doesn’t make it so.

            You’re equivocating – yet again.

            You lack sophistication, Tony (that’s another way of saying you’re an ignorant fool.)

            You want rights to have a magical origin[…]

            There’s nothing magical about it. You are exercising your right to freely express yourself, are you not? Or do you have to ask someone permission for every word you write? You would have to, if rights really came from government or some other entity.

            Your intellectual lazyness is not MY problem, Tony – it’s YOURS.

            1. If government suppressed speech, there is no right to free speech. In that instance all that’s required of government is to do nothing. But that’s not the case with all rights, including many you assert are aspects of human biology.

              Then again, even speech sometimes requires government action, since you have to have the ability to challenge attacks on or violations of that right in government courts.

              1. Re: Tony,

                If government suppressed speech, there is no right to free speech.

                Oh – you think that government is omnipotent, then?

                Again, you’re lazy.

                The fact that government tries to supress speech is only evidence of its violent ways, not of its power to nullify a right. Even the best container cannot hold water forever – some will always seep through. Humans are like that.

                You’re easily impressed by the amount of violence government can unleash, but that describes YOU – as an easily impressionable little twit.

                1. So explain what is meaningful about asserting that all humans, anywhere and at any time, have a right, if nearly all of them never had the ability to enjoy that right?

                  I just don’t believe in natural rights for exactly the same reason I don’t believe in santa claus. That leaves us with legal rights.

                  1. Re: Tony,

                    So explain what is meaningful about asserting that all humans, anywhere and at any time, have a right, if nearly all of them never had the ability to enjoy that right?

                    What in the world are you talking about?

                    I just don’t believe in natural rights for exactly the same reason I don’t believe in santa claus.

                    Right – because both are comparable issues.

                    You’re a lazy twit.

                    1. OM is lazy your word of the day? You’re the one not trying to answer my posts at all, preferring empty insults, as usual.

                      To clarify: There is no physical evidence that natural rights exist. Similarly, there is no physical evidence that Santa Claus exists. They are both figments of your imagination or the imagination of a toddler, respectively.

                    2. Re: Tony,

                      OM is lazy your word of the day?

                      No, it’s the adjective that describes you. I cannot help you there.

                      You’re the one not trying to answer my posts at all, preferring empty insults, as usual.

                      I have replied to them very patiently – you, on the other hand, have the habit of replying with red herrings.

                      To clarify: There is no physical evidence that natural rights exist.

                      That’s because rights are not a physical phenomenon. Duh.

                      And you still think you’re not being lazy? Now you want physical proof of abstract concepts.

                    3. That’s because rights are not a physical phenomenon.

                      What other type of phenomenon can something be? How are we supposed to agree on what are rights and what aren’t? You seem to be edging close to reality. Yes, rights are abstractions. Therefore, they are nothing unless they are manifested physically, i.e., by people’s physical enjoyment of the liberty or entitlement the right entails.

                  2. Because you’ve never bothered to read any one of dozens of philosophical works arguing in favour of the existence of santa claus?

                    1. that was meant in reply to Tony’s comment @5.29.

              2. If government suppressed speech, there is no right to free speech.

                Wrong. Your syllogism is flawed and circular.

                You have the government violating the right to free speech. This does not mean the right ceases to exist. It simply means the government has failed to acknowledge or recognize it.

                A right cannot depend on a government recognizing it to exist.

                1. You have the government violating the right to free speech.

                  If the US government suppressed someone’s speech, it would be violating the right to free speech, since that right is codified in the first amendment. Other governments have no such rights codified, and can perfectly legally enact bans on, say, expressing love for Hitler. Do those people actually have the right to say they love Hitler, or do they not?

                  A right cannot depend on a government recognizing it to exist.

                  There’s no other way, I’m afraid. Otherwise, where do rights exist? They are abstractions, after all, until you have the physical capacity to express or enjoy them.

                  The biggest problem with saying there are natural rights is that you can declare them to be whatever you want, then stamp them with the imprimatur of nature. Sorry, I don’t want you deciding what all of our rights should be and then saying “because God said so.” I’d rather take my chances with constitutional democracy.

                  1. I’d rather take my chances with constitutional democracy.

                    Well then maybe you’d better go move somewhere else, because we live in a constitutional republic.

                    And I do not rely on “because God said so” for my understanding of natural rights. Primarily because I don’t believe in “God.”

                    It’s quite evident that you have not read any of the philosophical works underpinning the concepts upon which our Declaration of Independence and Constitution were based.

                    The fact that a right is codified in the Constitution does not mean that the Constitution is the source of that right – in fact, the SCOTUS expressly has stated this in more than one case. Anyone who understands the fundamental notions upon which our Constitution is based knows that the rights recognized therein existed prior to the Constitution and do not rely on that document for their existence or force.

                    The fact that other countries can “legally” outlaw certain forms of speech (e.g., the stupid bans on “hate speech” we’ve been hearing about in France) does not mean that humans do not have a fundamental right to think what they choose to think and to express those thoughts. What it means is that the government is, to an extent, tyrannical and is traducing that basic human right of free expression.

                    Fundamental human rights do not need a piece of paper with them written on it to still exist as legitimate concepts. Check out the writings of Ghandi. As in, “they cannot take from us what we do not freely give them.”

                    Do you believe that individuals have a fundamental right to defend themselves against violent attack? Can you legitimately use force to fend off someone coming at you with a baseball bat, or a knife, or a gun? Can you, in fighting off the attacker, inflict serious physical injury, or maybe even death, if it becomes clear that he is trying to kill you?

                    If so, show me where in the Constitution you find it codified that you have this right to defend yourself from an attacker using such force.

    2. Anyone realize that this could easily be ended if we just accepted that babies in the womb are a living thing?

      Actually, no. No, it would not “easily be ended”. First, the joining of a sperm cell and an ovum is not a “living thing.” A blastula is, in fact, nothing more than a microscopic ball of cells that has the potential to become a human being. A lot can happen along the way – it can spontaneously abort (miscarriage) or develop fatal disease or deformity.

      Termination of a pregnancy at that stage would not, as far as I’m concerned, constitute killing a person. Primarily because at that stage it could not, in any sense, be considered a human being.

      Leave all the mystical religion stuff out of it. The difficulty is drawing a line between the time during which performing an abortion is not killing a human being versus the time during which it is. The SCOTUS has attempted to do this based on the notion of fetal viability outside the womb, which does make a certain degree of sense. If an 8-week fetus could not possibly, under any circumstance, be viable outside the womb as a person – i.e., if the woman had a miscarriage at that point, the “baby” would immediately be dead – I find it difficult to conclude that terminating the pregnancy is “killing a person.”

      HOWEVER – I further submit that answering the question of whether or not an embryo or fetus is a person, and whether abortion constitutes killing of a person does NOT answer the question of whether abortion should be legal.

      Because we as a society already have concluded there are circumstances under which killing a living, breathing, adult human being can be not only legally excusable, but in some cases, actually “justifiable.”

      So even if we all agree that an embryo or fetus IS a “person” and that an abortion constitutes the killing of a person, the question is: under what circumstances is it legally excusable to kill a person?

      Right now, it is legally excusable, or in fact actually justifiable, in pretty much every jurisdiction in the U.S., to kill a person when that person presents an immediate threat of imminent serious physical injury or death. If that guy is trying to kill you, you can kill him instead, and it is justifiable homicide.

      It also is possible to posit circumstances where your actions cause another person’s death, but it is excusable, although not necessarily justifiable. A purely accidental death, where you did not act negligently, yet some action you took caused or contributed to the person’s death, can be excusable.

      So if we go ahead and posit that an embryo is human life, the debate really is about defining the circumstances under which performing an abortion and terminating that life can legally be excusable.

      And ne’er the twain shall meet…

      1. Good post. Abortion is more intractable a question than most because its solution depends on drawing almost totally arbitrary lines based on abstractions like personhood. I happen to think there is a utilitarian case, and a fairly obvious one, but I’ll leave that aside.

        I am very curious what OM thinks, since he has access to the definitions of the fundamental rights of nature. OM! Consult your oracle and enlighten us. Is there a right to abortion?

        1. Re: Tony,

          I am very curious what OM thinks

          Liar.

          1. But you are the arbiter of all that is known about rights, since you have access to their natural source. So consult it and tell me, does a rape victim have the right to abortion?

  12. where do i sign up to get my FREE taxpayer funded network (or cable) news channel so I can properly exercise my free speech and free press rights?

  13. can’t wait for the government to buy me a mansion on the beach so I can properly exercise my property rights!

  14. sounding like “libertarian advocates of laissez-faire capitalism.”

    Liberals don’t see it necessary to take an all-or-nothing approach, and find it childish and ridiculous to be merely anti-government, as if there is some alternative to government. This frees us to concern ourselves with policies, rather than forever shaking fists at the fundamental makeup of the world.

    1. Liberals don’t see it necessary to take an all-or-nothing approach

      But drawing completely arbitrary lines is just fine, amirite?

      as if there is some alternative to government.

      Oh my! What on Earth will happen if the city government privatizes garbage collection?

    2. Cancer cells don’t see it necessary to take an all-or-nothing approach, and find it childish and ridiculous to be merely anti-cancer, as if there is some alternative to cancer.

  15. as if there is some alternative to government.

    The Statist Fallacy revealed, albeit unintentionally. If there is no alternative to government:

    Everything for the State, Nothing against the State, Nothing outside the State.

    1. There may be an alternative, but all you guys offer are fairy tales. Since there won’t be an alternative in any of our lifetimes, why bother worrying about it? How exactly are you helping to make sure government works well if the beginning and end of your political philosophy is government=bad?

      1. Re: Tony,

        There may be an alternative, but all you guys offer are fairy tales.

        The statist fuck construing any criticism of government as “fairy tales”. Next, rodents gnaw.

        Since there won’t be an alternative in any of our lifetimes, why bother worrying about it?

        I will tell you why:

        Since there will not be any alternative to disease, why bother about it? Right? Same argument.

        The reason WE libertarians are bothered is because we hold liberty as the highest political goal, whereas government holds its total power as the highest political goal. We libertarians may possibly never get rid of government (I seriously doubt that,) but we can have such a healthy dislike for it and educate people on having a healthy dislike for government [enough to make people sick to their stomachs] so as to keep an ever vigilant eye over it, at least.

        Instead, complacency has made government into the leviathan we suffer today. You may like it that way, but we freedom lovers don’t care what you like. The fact that you are enamoured of fascism is your problem.

        How exactly are you helping to make sure government works well if the beginning and end of your political philosophy is government=bad?

        A good working government is the LEAST desirable thing, as it would mean the WORST POSSIBLE GOVERNMENT. A government that barely functions would mean the least possible intromission on people’s voluntary acts, exchanges and trades. So helping government would DEFEAT THE PURPOSE of striving for liberty. What people need is to hinder government, make bureaucrats that much more miserable, not helping it.

        1. The statist fuck construing any criticism of government as “fairy tales”

          But you don’t offer criticism of government, you offer criticism of the concept of government itself. Until you have a viable alternative to the system just about every human being lives under, preferably with evidential support, then you might as well be saying the best life to live is on Neptune surrounded by poodles.

          Anarchy is not a serious political stance. If anything, anarchy is synonymous with “bad,” not government. Anarchists used to be confined to cabins in the woods. Now we have the internet.

          1. Re: Tony,

            But you don’t offer criticism of government, you offer criticism of the concept of government itself.

            Statist fucks sure love tautologies.

            Until you have a viable alternative to the system just about every human being lives under, preferably with evidential support, then you might as well be saying the best life to live is on Neptune surrounded by poodles.

            Evidence has been provided to you many times. The fact that you’re lazy does not become my or somebody else’s problem all of a sudden.

            The fact that government is neither omnipotent or omniscient makes normal life pretty anarchic. Unless you have the habit of calling your local bureaucrat to have permission to take a dump, then you don’t need government for pretty much all your tasks.

            Anarchy is not a serious political stance.

            That’s a conclusion, not an argument.

            If anything, anarchy is synonymous with “bad,” not government.

            Now it seems you lack command of language. Anarchism only means “without governent”. The fact that it is equated with “bad” is due to socialists that call themselves “anarchists” and torch cars during demonstrations. Those guys ain’t me.

            1. Statist fucks sure love tautologies.

              You know what I mean. You are not criticizing policies or the structure of a government, you are criticizing the very existence of government. This, I believe, is a completely irrational stance. It’s like saying you hate the sun. It’s not going to ever go away. Well, the sun will eventually. But if some number of people survives, there will immediately be people asserting authority over others, and we will have government. You are selling a fantasy. You are engaging in childish daydreaming about an impossible world. It is offensive to people with brains.

              1. You’re right. No anarchist has ever proposed any solution to stopping people asserting authority over others. Nope. Not a single one. Never.

      2. By advocating for government to be as small and powerless as possible, so as to minimize the harm done.

  16. I guess for libertarians from now on it’s only liberty and pursuit of happiness forget life …

    1. Re: Kris,

      I guess for libertarians from now on it’s only liberty and pursuit of happiness forget life…

      Don’t lump me with the cosmotarians – I believe that ALL human life is precious, including the life of yet-to-be-born humans.

    2. Kris, your life is none of my concern. As long as I’m doing nothing to hinder your enjoyment of it you have no complaint.

      On the other hand, if you don’t enjoy your life don’t expect me to do anything about that either.

      I mind my own business and as long as you mind yours, we’ll get along just fine.

  17. If this A. Barton Hinkle thinks abortions are too expensive, wait til he checks what it costs to carry a pregnancy to term.

    If his hypothetical pregnant woman can’t afford an abortion she sure as hell can’t afford a delivery.

    But seriously, Planned Parenthood is going to shut down because it loses its government handouts. Maybe it’s the pwoggies that need to check their charitable giving priorities.

  18. Maybe it’s the pwoggies that need to check their charitable giving priorities.

    Charity is destructive as it displaces the public responsibility for social welfare with consequent oversight by appropriately credentialed experts.
    Voluntary giving beyond our collective obligations is welcome but it should be restricted to licensed and regulated secular non-profits.

  19. Other governments have no such rights codified, and can perfectly legally enact bans on, say, expressing love for Hitler.

    No, Tony, rights are things I can do if there aren’t Nazis like you around to interfere.

    Do those people actually have the right to say they love Hitler, or do they not?

    Yes, Tony, they do. Just because Hitler’s successor’s and assigns say the can’t doesn’t me they don’t have a right to.

  20. Damn right, I was shocked when I read Carolene Products back in law school and I’ve been saying all laws should have to stand up to a ‘strict scrutiny’ test ever since. Not just economic regulations, all laws (though these days almost all laws are based on the horrendously abused and mis-used power of the Commerce Clause.

    If the gov’t cannot meet the burden of showing a given statute is narrowly tailored to acheive a compelling government interest then it should be unconstitutional. There should be no “presumption of constitutionality”… rather, it should be the opposite. All laws should be presumed to be constitutional violations and the burden should be on the government to show the law is proper.

    Moreover, all US citizens subject to the law should have automatic standing to challenge it in court. The framers didn’t intend for We the People to be denied legal remedies against government abuse due to technicalities of “standing”.

  21. ” Liberals believe women have the fundamental right not to be forced to carry pregnancies to term. But that right is useless if you can’t exercise it because you simply can’t afford to do so. So they support government aid to organizations that can provide family planning services to women who wouldn’t be able to afford them otherwise.”

    Which, while it annoys libertarians, is why many people on the right say that one cannot be an economic conservative without being a social conservative. Libertarians notwithstanding, the concept of positive rights is so pervasive in social liberal circles that in order to guarantee the social liberties they support, social liberals will always fund things like Planned Parenthood and scrap economic conservatism in a heartbeat.

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