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Will Congressional Republicans Betray Limited-Government Principles When it Comes to Abortion? Of Course.

Glenn Reynolds, the Instapundit, is a libertarian who generally leans right and Republican. But he's also a law professor. So in his USA Today article, he's laying into the GOP for inconsistency when it comes to the party's attempts to restrict abortion rights from Washington, D.C.:

Republicans are supposed to oppose abortion. They're also supposed to support small government — and, more specifically, a federal government that exercises only the powers enumerated in the Constitution. Sometimes, those positions come into conflict.

One such conflict is likely to appear this week, when the House is expected to vote on a 20-week limit on abortions. Such a limit polls well— Americans are much more supportive of early abortions than late-term abortions — and would still leave the United States with more-liberal abortion laws than nearly all of Europe. Even so, the Republicans need to be asking themselves — and the Democrats need to be asking them, too — where, exactly, Congress gets the power to limit abortions to 20 weeks?

The problem is that Congress is supposed to exercise only the powers enumerated in the Constitution, and those powers don't include regulating state medical procedures. (The federal government lacks even the power to criminalize murder as such: All federal "murder" statutes punish murdering someone in the course of violating some other federal law because unlike states, the federal government has no general "police power.")...

If, as Republicans in Congress keep telling us, they support limited government, then they need to support limits on government even when those limits stand in the way of doing something they want to do.

Will they?

Guttmacher InstituteGuttmacher InstituteWhole article.

I think we all know the answer to Reynolds' question: No, of course Republicans will not abide by supposedly rock-solid principles when it conflicts with their political agenda.

The same, of course, goes for the Democrats, but they make less hay about rule of law and the need for following process over achieving specific results. We know this from instances such as the Terry Schiavo case, when GOP leaders contravened their philosophical principles about state vs. federal powers in pursuit of a particular outcome in a particular case.

According to Gallup, about 27 percent of Republicans call themselves "pro-choice" (that compares with 46 percent of independents and 67 percent of Democrats). If a ban on abortion after 20 weeks were passed (and upheld by the Supreme Court), it would impact the slightly more than 1 percent of abortions that occur after 20 weeks.

For a discussion of "Libertarian Views on Abortion," featuring Reason's Katherine Mangu-War, Ronald Bailey, and me, plus The Federalist's Mollie Hemingway, go here.

Increasingly, mostly Republican state legislatures have been using exactly the sort of onerous, retroactive regulations on medical providers they would decry in any other context to try and shut down abortion clinics in states across the country. For an example of how that process works, check out the Reason TV documentary below.

Which is all well and good if stopping abortions at any cost is your goal. But it does come at the cost of pretending that you and your party is absolutely devoted to principle and process rather than results.

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  • hpearce||

    Limited Government my A** ..... let's be honest here and complete. It is LIMITED STATIST !

  • Cyto||

    To the extent that many of these politicians actually believe that life begins at conception and is deserving of the protection of the state, this "limited government" argument you and Gillespie make is completely specious. To many of the pro-life adherents abortion is murder, plain and simple. Not analogous to murder, but exactly identical to murder because the fetus is a person in their view.

    Any claim that they are tossing over their "limited government" ideology in favor of political gain hinges on the notion that they do not truly believe that the fetus is a human life worthy of protection. This is a pretty tenuous claim. Sure, there are plenty of politicians who's world view twists in the wind of political expediency (Bill Clinton going from pro life to pro choice comes to mind), but there are plenty of hard-right politicians who seem to be truly principled on the notion of protecting unborn life.

  • OldMexican||

    Re: Cyto,

    Not analogous to murder, but exactly identical to murder because the fetus is a person in their view.


    You can say it is murder in their view, but the reality is that It IS murder. The killing of a person is murder, regardless of the circumstances, unless it is done to defend one's life or person.

    And you're right that the "limited government" argument is specious but only because anti-abortion advocates see the State as the ultimate defender of rights (which is the exact same political justification for the State given by minarchists and most libertarians), whereas pro-abortion advocates see abortion as a positive right granted by the State, which EXACTLY runs contra the idea of LIMITED government.

    I see this issue completely different, compared to Gillespie's take. I don't see abortion as a limited government issue but one of an overbearing state that grants positive rights to people, including the right to kill without warrant.

  • Tony||

    See how you must contort yourself into a tangle of nonsense in order to maintain the flawed positive vs. negative rights distinction? Then look further at how utterly absurd you must become in order to be an anarchist who thinks the United States government has a necessary place--between the legs of all women.

    Of course you're begging the question when you call abortion murder--a view that is not in line with historical norms but the invention of relatively modern theocrats. So you don't just get to declare it, but must argue why it would be useful to society to change historical norms and start throwing vast numbers of women into prison with life sentences.

    But you don't think you have to do that. You're just right, because you say so. The hallmark of a genius mind, no doubt.

  • Derpetologist||

    This pretty rich coming from you, Tony. Is there a single aspect of life you don't want to tax, regulate, mandate, subsidize, or outlaw? You criticize people who want to ban late term abortions and yet you would happily imprison people for something as trivial as refusing to sell a cake.

    One of us is a wannabe tyrant and it isn't me.

  • hpearce||

    Actually I think that is false because you and those conservatives seem to refuse to make a distinction between killing a fetus and murdering it. I'd like to hear if there is any such distinction.

  • DJK||

    I agree re: your point about the relationship between abortion and murder. If abortion is akin to murder, the state most certainly has a compelling interest in preventing the act. That's all well and good, but it's not the question at hand. The general police power is usually a state power. So criminalization of abortion, if that is what should be done, should occur at the state level. That could be done via some Model Code but the point is the same. This is a federalism argument; that's what the limited government idea is about.

  • Robert||

    I don't believe limited gov't is about its structure.

  • eyeroller||

    The term "limited government" means absolutely nothing. Let's stop using it.

  • Idle Hands||

    It means limit over here, increase over there. Only slightly better than the increase over here, increase over there method.

  • hpearce||

    LOL, it means "let's have regulation but let's not increase it" :D

  • Idle Hands||

    Will there ever be an election where this subject doesn't come up? Or would that be a sign of the apocalypse?

  • ||

    It's the end times for those babies clumps of cells right now, isn't it?

  • sarcasmic||

    Being that abortion is about the only thing that distinguishes big-government Republicans from big-government Democrats, no. There will never be an election where this subject doesn't come up.

  • DJK||

    You're forgetting about womyn's rights.

  • Francisco d'Anconia||

    Will there ever be an election where this subject doesn't come up?

    Moar importantly, will there ever be a time when I care?

  • Robert||

    It is interesting that it wasn't a controversial subject 50+ yrs. ago. People still got abortions, but quietly, and as long as it didn't come to public att'n, there seemed to be no controversy about it. I don't know how we could get back to that condition of society.

    I'd be interested in knowing which other countries this is a hotly debated matter in.

  • ||

    something you know who else something betrayed their principles?

  • hpearce||

    Actually there could be a limit on abortion ... particularly partial-birth abortion where the baby is in the process of being born .. regardless of the fact that it might have been triggered.

    I compare this to shooting a trespasser as he is leaving the property :D

  • Michael Hihn||

    20 weeks has already been ruled unconstitutional. duh.

    If the so-called pro-lifers care more about saving babies instead of political power, they could have easily banned late-term abortions ... one day after Roe v Wade.

    Roe v Wade was trimesters, later replaced with viability in Planned Parenthood v Casey. All they had to do was ban abortionists from the procedure and require an attempted live birth. duh.

    Why didn't they? Political manipulation and power-seeking.

  • OldMexican||

    Re: Michael Hindered,

    they could have easily banned late-term abortions ... one day after Roe v Wade.


    You had pro-lifers in the contemporary Congress?

    I love little Marxians. They always operate under the assumption that all people are idiots.

  • hpearce||

    LOL, so ALL means they see themselves as idiots too ? Or do they consider themselves of a higher species ... the GOD species perhaps

  • OldMexican||

    Re: hpearce,

    Or do they consider themselves of a higher species


    Going by their display of mutual "Atta boy!" back-pattings through the release of fraudulent studies that purport to show that little red Marxians are, somehow, smarter than anybody else, I would say YES, they see themselves as above the hicks, the peasantry and the rabble. Historian Fred Siegel posits this same argument in his book reply to this

  • Michael Hihn||

    LOL, so ALL means they see themselves as idiots too ? Or do they consider themselves of a higher species ... the GOD species perhaps

    Only a total dumbfuck would see simple common sense, claim it to be God-like because THEY were too fucking stupid to grasp it.

    Now tell us why it would NOT have been totally constitutional to ban late-term abortions that way .... 42 years ago. (lol)

  • Michael Hihn||

    little red Marxians are, somehow, smarter than anybody else,

    Okay, genious, tell us why that would have NOT been constitutional 42 years ago? And how many babies died because YOU are too stupid to figure it out?(snicker)

  • soflarider||

    If you're going to chide someone on their intelligence, it's important to spell genius correctly.

  • Michael Hihn||

    Good point!
    Especially if one equates spelling with severe ant-rationalism.

  • Michael Hihn||

    You had pro-lifers in the contemporary Congress? (laughing) In 1973? yup.

    I love little Marxians. They always operate under the assumption that all people are idiots.

    I love little assholes who ass-ume everyone else is a "Maxian" ... because they have nothing intelligent to say .. or when they say something totally stupid ... .

    This one assumes only a Maxian would argue for banning late-term abortion, in a way that's been constitutional for only 42 years now. (gasp)

  • hpearce||

    My problem with this kind of "principle" is that it is defined by an arbitrary measurement ... in this case time.

    ALL such laws probably need replacing if possible by solid principles.

    I admit I still have a problem with age and the border between child and adult. I'd like to replace this, I think, with a parent-child agreement of some kind :)

  • Michael Hihn||

    My problem with this kind of "principle" is that it is defined by an arbitrary measurement ... in this case time.

    Umm, not for the past 23 years.

    ALL such laws probably need replacing if possible by solid principles.

    That's what happened in 1992.
    en.wikipedia.org/wiki/Planned_Parenthood_v._Casey

    Or do they consider themselves of a higher species

    That's funny, as you display your total ignorance of the issue.

  • DJK||

    Planned Parenthood v. Casey may be settled law but the timing is still arbitrary. There's no logical or ethical principle that required SCOTUS to rule the way that they did. It's arbitrary in that precise technical definition.

  • DJK||

    So long as there is a need for laws which confer rights with age, there will always be a need for an arbitrary cut-off. This is not just true on the abortion issue, but also the drinking age, the driving age, etc. You may argue that gov't has no right to limit such things, but what about the age at which one can engage in contracts? The age of consent? The age at which one is responsible for commission of crimes? Even in a more libertarian society, those questions must be settled. It would be nice to answer such questions on an individual basis, but that's super difficult in a large society and impossible for some questions by their very nature. It's pretty unrealistic to think that age won't be a stand-in answer for all of these questions. So why is abortion any different?

  • ||

    Why does Reason hate babies but love immigrants? Aren't they all coming from the same place? A dingy third-world country that no one wants to visit?

    /derpity-do

  • Michael Hihn||

    Why does Reason hate babies but love immigrants?

    How do immigrants violate anyone's unalienable rights? (to Liberty, for example)

  • hpearce||

    That's tough to answer as long as one has accepted the false premise that we should have state-owned/public land property. Perhaps PUBLIC PROPERTY needs to be replaced with CITIZEN-OWNED PROPERTY :D

    Certainly in a society where all land property were privatized, immigrants would need permission of the owner to occupy or use that land area

    I use LAND because I don't wish to resolve "air property" here :D

  • hpearce||

    I would like to add that my view on both foreign policy and border policy are slightly right-leaning which I haven't been able to resolve yet. I do believe the left leaning policy of the libertarians needs to be modified a little :)

  • Michael Hihn||

    I would like to add that my view on both foreign policy and border policy are slightly right-leaning which I haven't been able to resolve yet

    No kidding. Like your laughable conflating of property rights and immigration.

    I do believe the left leaning policy of the libertarians needs to be modified a little :)

    How much of that comes from your confusion regarding property rights? Since you seem to still be in high school, I assume you don't know that libertarians have been socially liberal only since 1969. (And fiscally conservervartive)

  • hpearce||

    You've done a lot of chiding there Michael Hihn, I'll [place my libertarianism against yours any day :)

    Let's start with irrelevant stuff like my LP membership number at 88 to show you how long I have been one :P

  • Michael Hihn||

    That's tough to answer as long as one has accepted the false premise that we should have state-owned/public land property.

    (laughing) That has nothing at all to do with anything I said.

    Perhaps PUBLIC PROPERTY needs to be replaced with CITIZEN-OWNED PROPERTY :D

    Umm, what does that have to do with a woman's unalienable right to Liberty? Or anyone else's?

    And what in HELL do immigrants have to do with property rights?

    Certainly in a society where all land property were privatized, immigrants would need permission of the owner to occupy or use that land area

    So .... hpearce claims that immigrants get apartment space by force, against the will of the landlord? Or seize property ownership at gunpoint instead of purchasing it????

    I use LAND because I don't wish to resolve "air property" here :D

    That would have likely been even dumber!

  • Michael Hihn||

    Thank goodness we have Ron and Rand Paul to defend us from those "big government conservatives!" Despite their phony libertarianism, NO level of government has EVER been delegated any power over abortion and/or marriage equality. (See 9th Amendment. And the 14th)

    So "libertarian-ish" means that governments have powers which have never been delegated ... same argument used by southern racists like Orval Faubus, George Wallace and others. So much for individual liberty and natural law, eh?

  • OldMexican||

    Re: Michale Hindered,

    Your rambling indicates you haven't taken your thorazine today, have you?

    Shame, shame!

  • Michael Hihn||

    OldMexican|5.11.15 @ 9:25AM
    Your rambling indicates you haven't taken your thorazine today, have you?

    (laughing) So tell us, trashmouth, when has any level of government ever been delegated any power over abortion and/or marriage equality? Do you understand our founding principle that the only legitimate powers of government must be delegated by the people?

  • Cloudbuster||

    14th Amendment: "...nor shall any State deprive any person of life, liberty, or property, without due process of law...." "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

    At whatever point it is determined that an unborn child is a person -- viability, heartbeat, brain activity, conception, what have you (those are all arguable delineations), then at that point, the Constitution gives explicit power to protect those person's lives from being taken without due process.

    Thus, I don't see a limited government problem here at all.

  • Notorious G.K.C.||

    Whoomp, there it is!

    Ever since the Magna Charta (and, I would argue, before that), arbitrary outlawry has been illegal. To put someone beyond the protection of the law, he must first be charged with a specific offense and given an opportunity to answer the charge. Only if he fails to show up in court can he be declared an outlaw whom it's OK to kill (and even then the killing is subject to some limitations).

    An unborn human being can hardly be charged with a crime, or held responsible for showing up in court.

    Therefore, outlawing an unborn human being is an unconstitutional deprivation of life.

    Therefore, under its enforcement power for the 14th Amendment, Congress can act against this scourge.

    And it's really rich to sit silently and tolerate the Supreme Court federalizing the abortion issue, and suddenly wake up to the virtues of federalism when someone proposes a mild, limited federal intervention to protect the constitutional rights of the most vulnerable humans.

  • Notorious G.K.C.||

    Holy shit, it gets worse.

    Here's Reynolds in 2008:

    "Hey, I’ve never made any secret about being pro-choice...

    "I’m one of the relatively few constitutional law professors who believes that Roe was properly decided, though the rationale needs to be understood in terms of limits to legitimate government power rather than affirmative individual rights."

    http://pjmedia.com/instapundit/023063/

    So not only is he a choicer, he endorses the Roe decision, a decision which even other choicer con law profs admit is an abomination.

    So federalism for thee, but not for him.

  • Michael Hihn||

    Planned Parenthood v. Casey may be settled law but the timing is still arbitrary.

    Totally false. Each child is "judged" on its own :"viability" -- the specific reason trimesters were abandoned, and a different part of the Constitution cited,

    There's no logical or ethical principle that required SCOTUS to rule the way that they did.

    Like so many, you may not know the constitutional principles involved. It's another example of conflicting or competing rights.
    No fundamental rights are absolute, simply because they can conflict with each other. In this case the fetal child's unalienable right to Life is precisely equal to the woman's unalienable right to Liberty. The Judiciary is empowered to resolve such disputes. But it is NOT arbitrary.
    Because they are fundamental rights, the Court is obliged to establish a boundary, draw a line, that best respects BOTH rights.

    It's arbitrary in that precise technical definition.

    It looks more like you disagree. The fetal child possesses constitutional rights at the moment it can live outside the womb -- even with mechanical support (like an incubator).
    Where would you draw the line, to best protect BOTH rights? There is no ethical or constitutional justification to deny or disparage EITHER person's rights.

  • Notorious G.K.C.||

    You replied to the wrong comment. That's OK, it happens to everyone.

  • Bo Cara Esq.||

    The states aren't outlawing anyone. Nice try.

  • Notorious G.K.C.||

    Outlawry authorizes any person (and even then under some limits) to hunt and kill the outlaw. In other words, the government simply "deregulates" the killing of outlaws.

    "...though antiently an outlawed felon was faid to have caput lupinum, and might be knocked on the head like a wolf, by any one that fhould meet him f ; becaufe, having renounced all law, he was to be dealt with as in a ftate of nature, when every one that fhould find him might flay him : yet now, to avoid fuch inhumanity, it is holden that no man is intitled to kill him wantonly or wilfully ; but in fo doing is guilty of murder g, unlefs it happens in the endeavour to apprehend him h. Forany perfon may arreft an outlaw on a criminal profecution, either of his own head, or by writ or warrant of capias utlagatum, in order to bring him to execution. But fuch outlawry may be frequently reverfed by writ of error ; the proceedings therein being (as it is fit they fhould be) exceedingly nice and circumftantial ; and, if any fingle minute point be omitted or mifconducted, the whole outlawry is illegal, and may be reverfed : upon which reverfal the party accufed is admitted to plead to, and defend himfelf againft, the indictment."

    http://avalon.law.yale.edu/18t.....k4ch24.asp

    In short, the English common law would jealously protect the right to life even of fugitives from justice.

  • Bo Cara Esq.||

    There's a difference between not extending protections and withdrawing them. And did common law outlawry law apply to embryos? I think we all know the answer.

  • Notorious G.K.C.||

    The idea of outlawing someone who was incapable of being a fugitive from justice is absurd, hence unborn human beings can't be outlawed.

    The medievals believed in witches, they believed in bleeding patients, they believed in astrology, but they weren't so twisted as to believe in outlawing an innocent human being who couldn't even be charged with a crime.

  • Bo Cara Esq.||

    They were, however, smart enough to apply protections to persons born.

  • Michael Hihn||

    In short, the English common law would jealously protect the right to life ...

    On what authority do you reject, deny or disparage the woman's equal and unalienable right to Liberty, in violation if the 9th Amendment?
    And it's clearly false to presume that English Common Law had anything to do with unalienable rights and delegated powers. Or to assume that our Constitution was not a major advance in individual liberty.

  • DJK||

    I'm confused about this argument. The 14th Amendment limits the states' power to act. It places no restriction on individuals. It limits the laws that the states may enact. It does not compel them to enact protective legislation.

  • DJK||

    Ah. I see. This wasn't a due process argument. It was an equal protection one. Interesting and potentially quite compelling. The only thing that is missing is that legal definition of personhood. :-)

  • OldMexican||

    Of course there isn't unless you believe, like Gillespie seems to believe, that you have a right to kill another human being provided the person does not accept the other human's personhood. Mass murder has been justified many times under the same "principle".

  • Bo Cara Esq.||

    Of course personhood has to be determined first. You don't count biopsy or euthanizing dogs as murder. You have to establish first who is covered by murder.

  • Cloudbuster||

    On the condition that you grant that once we have legislatively defined the boundaries of personhood, that murdering people who meet that definition should be illegal, then I'm willing to have that conversation.

    It would do much to settle the argument, or at least clarify the battleground, if there were a federal personhood statute.

    People could continue to argue about where to draw the line, but at least we'd all know what we were arguing over.

  • Bo Cara Esq.||

    I'm up for that. Even S Dakota and Mississippi have in referenda rejected personhood provisions starting it at conception.

  • OldMexican||

    Re: Bo Cara Esq.

    Of course personhood has to be determined first.


    You're right, of course. I therefore determine you're not a person.

    Now, anybody wants to make another stupid and self-contradictory proposition?

  • Bo Cara Esq.||

    "I therefore determine you're not a person"

    Thankfully that would be just one of your idiosyncratic ideas everyone else can and will safely ignore. The idea that embryos are not is on the other hand a longstanding and widely accepted one.

  • VG Zaytsev||

    So we just need a majority to agree that Bo doen's meet the qualifications for personhood, then it can be terminated at some actual person's convenience?

    Sounds good.

    Can I see a show of hand on who agrees that Bo's not a person.

  • Bo Cara Esq.||

    It's not about a majority, it's about history and tradition too. We apply rights to persons born. That's the common law understanding. That's the understanding and language of the 14th. In fact, it can't be changed by simple majority, so as usual your smugness has you getting it exactly backwards.

  • Marshall Gill||

    so as usual your smugness has you getting it exactly backwards.

    Bojection!

  • Pulseguy||

    Bo...so what? So what if what you are saying is correct, and I doubt it is. We can now see with ultrasounds what a 20 week old fetus looks like, and acts like. No one can look at that and say 'yup, not a baby' without having to come to some sort of legal twist of words. It is a baby, plain and simple. Anyone can see that. A 4 year old could see that. Now we have to deal with that.

  • Michael Hihn||

    It is a baby, plain and simple. Anyone can see that. A 4 year old could see that. Now we have to deal with that.

    1000% Irrelevant. Or ... it's a grown woman, plain and simple. Anyone can see that. a 1-year0old could see that. When will you deal with itt?

  • OldMexican||

    Re: Bo Cara Esq,

    Thankfully that would be just one of your idiosyncratic ideas everyone else can and will safely ignore.


    ... instead of offering a counterargument. Yes, I understand intellectual cowardice, Bo. I've seen it many times before. You're not the first to practice it and you won't be the last.

    The absurdity of proposing a personhood test on humans is never put to question when it comes to baby humans even when it - the absurdity - becomes obvious whenever the test is applied to one self. I can't deny the personhood of any other human being if I accept *I* am a human being and that *I* am a person. Like things have the same attributes - First Law of Thought or Law of Identity. Because the argument against the personhood of a baby human runs contra this law of thought, abortionists simply refuse to address the argument logically.

  • Bo Cara Esq.||

    Don't confuse me saying plainly that your position is widely and longstandingly rejected with that being the grounds why I think it's wrong. It's just why it can and will be ignored.

  • OldMexican||

    Re: Bo Cara Esq,

    Don't confuse me saying plainly that your position is widely and longstandingly rejected


    Oh, indeed? So you know the minds of everybody. I see.

    with that being the grounds why I think it's wrong.


    I take you prefer the Argumentum Ad Populum over simply stating why you think a person is not a person.

  • DJK||

    Man, what is with jumping on Bo for everything he posts here? His comments generally seem to get to the main point of the issue pretty quickly and he seems genuinely willing to entertain other possible answers. He sometimes comes to other conclusions but seems to do so in an intellectually honest manner. There seems to be a small population here that would rather jump down his throat than use the dialog to clarify and enhance their own positions. It's really quite sad for the individuals and for the libertarian movement as a whole.

  • Cloudbuster||

    Bo's not wrong. We desperately need to legislatively or by amendment specifically define what is meant by "person." Everything falls into place once that definition is set.

    All other wrangling about abortion and sanctity of life would boil down to where people decide personhood should be defined, and it could always be revised in the face of changing public opinion.

    The fact that people disagree so passionately about abortion is evidence of the fact that personhood isn't a universally-agreed-upon concept and needs to be discussed and decided on explicitly.

  • OldMexican||

    Re: Cloudbuster,

    We desperately need to legislatively or by amendment specifically define what is meant by "person."


    That is an extraordinary proposition, since who else but persons legislate? Why would people need laws to rectify what is in the end an error in thought? For that, you buy a dictionary.

  • Bo Cara Esq.||

    Who could be surprised that for Old Mexican this isn't something where reasonable people can disagree, but rather he's right and the answer is obvious.

  • LynchPin1477||

    You're 100% correct. But abortion is too good of a wedge issue for the political class to give up. Much better to obfuscate the real issue and engage in a little divide and conquer.

    I haven't seen polling, but my gut tells me that if a personhood amendment came up, that a healthy majority would define it as starting with brain activity or viability.

  • Bo Cara Esq.||

    Exactly. Mere DNA is not how most people define ourselves. We're marked by thought, by consciousness. It's why someone can look at a dear relative in a vegetative state and say 'that's not my dad, my dad is gone.' The DNA is there, but the person is not.

  • LynchPin1477||

    We're marked by thought, by consciousness

    Agreed. The problem is that thought, consciousness, intelligence -- the things that seem to most naturally provide a foundation for individual rights and personhood -- exist on a spectrum. Even if it is not truly continuous, there is much finer gradation than we have historically understood. An adult chimpanzee raised around humans probably has a greater cognitive ability than a newborn human. That has the potential to muddy the waters when it comes to defining personhood and applying it consistently.

  • LynchPin1477||

    It's also the reason why I like a definition of personhood that considers more than just a snapshot of intelligence or ability at any given moment and instead looks at future *potential*. I also that think that ties in nicely with a wider respect for the dignity and inherent value of the individual, and captures issues regarding comas, vegetative states, brain damage, etc.. And that is why I prefer a definition that begins with conception. If that means extending some protections to certain animals as well, then I am more than happy to do so.

  • Bo Cara Esq.||

    I don't think any line is going to be finely perfect, but that's life.

    I actually think some animals warrant some moral protection because of what you mention.

  • OldMexican||

    Re: Bo Cara Esq,

    Exactly. Mere DNA is not how most people define ourselves.


    Who is making that assertion? That's a red herring, Bo. DNA does not define itself. A person defines him or herself. The question is if you have the right to define someone as a NON-PERSON when YOU accept yourself as a PERSON.

    It's why someone can look at a dear relative in a vegetative state and say 'that's not my dad, my dad is gone.'


    And of course a baby human has the same condition as someone who first lived and then died. Is that what you're arguing? Because now you have risen to a new level of equivocation I've never seen before.

  • DJK||

    Consciousness and intelligence are clearly not how most of us define "a life having the right to continued existence". If that were the case, we'd have no protections for the mentally disabled. People would be free to kill with impunity if only they put their victims under anesthesia first. The right to life would likely cease with certain acquired cognitive disorders. Consciousness and intelligence cannot be the whole story.

  • LynchPin1477||

    Consciousness and intelligence cannot be the whole story.

    Agreed. I was trying to get at that in my second post without launching into a full discourse.

  • Bo Cara Esq.||

    .nor shall any State deprive any person of life, liberty, or property, without due process of law...."

    States are conducting abortions?

  • OldMexican||

    Re: Bo Cara Esq.

    Paying for them, Bo. With your hard-earned cash.

  • Bo Cara Esq.||

    Really? To the extent that's true then the 14th could apply to those, but not ones that don't involve the state

  • OldMexican||

    Re: Bo Cara Esq.

    Really?


    Yes, really. That is how Planned Parenthood finances its operations. Otherwise only rich girls would have abortions and, of course, you can't have that under the principles of the Politics of Envy (Marxianism)

  • Bo Cara Esq.||

    Oh, the fungibility argument. Yawn.

  • OldMexican||

    Re: Bo Cara Esq.

    Oh, the fungibility argument. Yawn.


    It's the reality, Bo. When you can fund one thing with free money from the government, you release capital for other projects that you would have to prioritize differently if otherwise. I don't see what is it that makes this difficult to understand.

  • Bo Cara Esq.||

    So if my local government office eats at Chik Fil A my government had funded anti-gay rights initiatives?

  • Bo Cara Esq.||

    See, the government orders a catered event from Chik Fil A. They take some of that profit and donate it to an anti gay marriage group. OMG my government just supported anti SSM groups!

  • OldMexican||

    Re: Bo Cara Esq,

    So if my local government office eats at Chik Fil A my government had funded anti-gay rights initiatives?


    If those local government bureaucrats have a side job to fund their government activities or are being paid through voluntary contributions á la Red Cross instead of through naked robbery at gunpoint (what people call "taxes" with a very sick sense of humor), then no.

  • Michael Hihn||

    Here's a short lesson on why pro-lifers are so full of shit on fungability.
    Umm, abortions are the most profitable thing PP does. That means abortions are helping to pay for everything else PP does. duh.

    For example, PP is the sole medical provider in many inner cities. That includes Medicaid. Because abortions, and Title X programs, pay the overhead, they can afford to treat the indigent from the tiny amount Medicaid pays. Accounting 101.

  • Cloudbuster||

    As G K C says, declaring someone outside the law, beyond protection of the state, is denying them due process.

    Imagine, if you will, that after the 14th amendment was ratified, states had declined to make murdering black people a crime. Would that have been acceptable? If your answer is yes, we really don't have anything more to talk about.

  • Bo Cara Esq.||

    That would have been an equal protection issue.

  • Cloudbuster||

    Then, if it is determined that unborn children are persons, then equal protection would apply. It's still a 14th amendment issue.

    G K C still isn't wrong though. That's exactly what the historical concept of outlawry is about. By denying equal protection to people, the government is allowing them to be deprived of life, liberty and property without due process. The concepts are intertwined.

  • Bo Cara Esq.||

    , if it is determined that unborn children are persons

    Yes, well of course there's the rub. And outlawry has never been applied to persons not born. Same with the 14th. Given that history and the text of the 14th you'd need something like a personhood amendment changing the traditional understanding of persons to something else.

  • Notorious G.K.C.||

    "outlawry has never been applied to persons not born"

    You mean that no court has ever declared an unborn person an outlaw? Of course not, because outlawry can only be invoked against fugitives from justice, genius.

  • Bo Cara Esq.||

    Then there's no authority for applying protections from outlawry to them.

    It's the difference between withdrawing and never granting, among other things.

  • Notorious G.K.C.||

    Outlawry couldn't be applied to people in prison, either, because they're not fugitives. Does that mean prisoners can be killed on a whim?

  • Bo Cara Esq.||

    They can be killed with due process of course, and that's state action, which abortions aren't.

  • Notorious G.K.C.||

    What about Leo Frank? The state didn't kill him, a lynch mob came to the prison, took him away, and hanged him.

    But it wasn't the state's fault! All the state authorities did was fail to provide protection to a person in their custody!

  • Notorious G.K.C.||

    And don't forget the Shipp case, where the U.S. Supreme court was hearing the appeal of a black man convicted of rape, and while the appeal was going on a lynch mob took him away from the prison and hanged him, with the local authorities either turning a blind eye or showing gross incompetence at protecting the prisoner. The Court found the local officials guilty of contempt for failing to protect their prisoner from the mob.

    But there was no state action!

  • Bo Cara Esq.||

    Didn't the liability lie in the fact the state had him in custody?

  • Notorious G.K.C.||

    You suggested that, because unborn children couldn't be protected from arbitrary outlawry - because unborn children had never been judicially declared outlaws!

    I pointed out that your argument proved too much, since prisoners can't be judicially outlawed either. Yet they're protected from arbitrary outlawry.

  • Bo Cara Esq.||

    Prisoners are protected because they're in custody-state action.

    But the essence of the argument is this. The question was, where do the Feds get the power to deal with abortion? Your answer was pretty strained to begin with: the 14th should authorize them stepping in to prevent outlawry from being declared on embryos. But outlawry and it's protections have always been about persons born, and so has the 14th.

    Like I said, if you changed the definition of personhood from it's widely and longstanding common law and constitutional understanding you might have something. But that steps not been done.

  • Notorious G.K.C.||

    ME "You mean that no court has ever declared an unborn person an outlaw? Of course not, because outlawry can only be invoked against fugitives from justice, genius."

    YOU: "Then there's no authority for applying protections from outlawry to them."

    ME: Prisoners aren't fugitives from justice, either, so I guess they aren't protected from outlawry, either?

    YOU: Time to move the goalposts!

  • Bo Cara Esq.||

    Interesting, what was the federal cause of action you see there?

  • Mickey Rat||

    Has it been determined if law students are persons? I see plenty of evidence to the contrary.

  • Bo Cara Esq.||

    It's funny how babies make misanthropes like Mickey so upset. They're just soccer mom' say heart!

    But as you're won't to do you've stumbled on a key point. The reason why the 14th doesn't grant a power to the Feds to intervene is because law, constitutional and common, has always distinguished between persons born (including law students-btw I'm graduated now) and persons not.

  • Mickey Rat||

    That is rich, being accused of misanthropy by someone who thinks human=/person, which has neen a principle of the most unsavory and unjust ideologies in history.

    Was a passing grade getting your name spelled correctly?

  • Bo Cara Esq.||

    Because black people are embryos are something, right Mickey?

  • Mickey Rat||

    Because A is A, regardless of how many ways you may be able to subcategorize the A set.

  • Notorious G.K.C.||

    I suppose you're not fully familiar with the concept of outlawry, are you?

    As in, "no free man shall be taken or imprisoned or disseised or outlawed or exiled or in any way ruined, nor will we go or send against him, except by the lawful judgment of his peers or by the law of the land."

    (from Heritage Foundation)

    http://ow.ly/MNzby

  • Bo Cara Esq.||

    The 14th explicitly applies to state action. The states are not 'outlawing' anyone.

  • Cloudbuster||

    See my example above regarding blacks and laws against murdering them.

  • Bo Cara Esq.||

    That would be an equal protection issue, dealing with, to quote the 14th, persons born.

  • Mickey Rat||

    Putting a human or an entire class of humans beyond the protection of the law is outlawing them. Though technically it is the SCOTUS that has required such classification over the sovereign will of various states.

  • Bo Cara Esq.||

    Actually, outlawry law has never applied to 'humans' but persons. So this gets you nowhere.

    The 14th deals with state action, not inaction. There's a distinction there that's kinda big for libertarians.

  • Mickey Rat||

    By that reasoning, the state not prosecuting the killer of a black or homosexual victim because of the characteristics of the victim would not be a violation of equal protection as the state is not acting.

  • Bo Cara Esq.||

    Or the state not extending marriage licensed to the gay couple like they do for the straight, right?

  • Mickey Rat||

    Homosexual couples are not equivalent to straight couples, so no.

  • Bo Cara Esq.||

    And embryos are not equivalent to born black people or homosexuals.

  • Mickey Rat||

    Explain why. For reasoning that does not call into question the rights of tjose you do think are persons.

  • R C Dean||

    I don't see how the 14th gives the Feds authority to regulate abortions that aren't performed by the State.

    The 14th says Congress has the authority to pass laws that ensure that the State doesn't deprive any person, etc.

    That's why the civil rights laws applicable to private businesses and people were passed under the Commerce Clause.

  • Michael Hihn||

    Thus, I don't see a limited government problem here at all.

    "Limited government" here means REJECTING government's EQUAL power to defend the woman's unalienable right to Liberty. In other words, statists like Ron and Ran Paul totally reject any or all determinations on "whatever point is determined." Because they reject the woman's equal, unalienable and/or God-given rights ... while claiming to be constitutional conservatives!!!!
    Also see the 9th Amendment which denies ALL levels of government ANY power in this issue at all.

  • Mickey Rat||

    If memory serves, the courts have already federalized aspects of this issue by invoking equal protection to invalidate individual state attempts at such restrictions. So that only a federal law which affects everyone equally can pass muster. It might behoove Gillespie to notice how the unprincipled actions of the judiciary have defined the rules of engagement on this issue. The process is as favors the utilitarianism of the social Left.

  • Bo Cara Esq.||

    Not equal protection, due process. And a statute can't override an Amendment.

  • VG Zaytsev||

    Only a SCOTUS decision can, right?

  • Mickey Rat||

    Was not claiming the statute overrode the amendment, but that a federal law went around the equal protrection reasoning,

  • Michael Hihn||

    So that only a federal law which affects everyone equally can pass muster.

    Wrong.
    In this case, it's a conflict between competing equal rights: the fetal child's right to like and the woman's right to liberty -- which are both unalienable. thus precisely equal.

    by invoking equal protection to invalidate individual state attempts at such restrictions.

    Umm, learn the 14th Amendment, which explicitly denies states any power to treat any rights, or any individual, unequally. And the 9th Amendment forbids ALL levels of government from denying or disparaging ANY fundamental human right ... like Life, Liberty and the Pursuit if Happiness, among others,

    The process is as favors the utilitarianism of the social Left. Only to those who reject the entire founding concept if equal and unalienable rights. On what authority do you reject our core founding principles?
  • Mickey Rat||

    Wow, that is completely incoherent and does not actually say anything despite being rather wordy.

  • DJK||

    Meet Michael Hihn.

  • Michael Hihn||

    Wow, that is completely incoherent and does not actually say anything despite being rather wordy.

    (laughing) One more time for the mentally challenged.
    Only to those who reject the entire founding concept if equal and unalienable rights. On what authority do you reject our core founding principles?

  • Mickey Rat||

    Which had nothing to do with the point of reasoning I was criticizing.

    Second, nothing of what you wrote actually defended the logic of the current state of abortion jurisprudence or how we got to this results oriented.muddle. All you presented was a word salad of catchphrases which came to no logical point.

  • AlmightyJB||

    Roe v Wade is over 40 years old and 40 years we've been hearing that it is a heartbeat away from being overturned by the GOP yet nothing even close to that has happened nor will it happen. If the media stopped trying to make it an ussue it wouldn't be an issue. I'll worry about actual threats to liberty unstead.

  • OldMexican||

    Re: AlmightyJB,

    I'll worry about actual threats to liberty [i]nstead.


    The killing of innocents is an actual thread to liberty, A. First, it frees the State from its stated purpose, which is to protect people's rights.

    And I am not saying the State should be there to stop an abortion, but should be there to fulfill its -purpose as an arbiter when a tort is committed. A father should be able to sue a woman and her abortionist for killing his child. Under Roe v Wade he has no recourse - while at the same time this same State imposes obligations upon him for supporting this child whether he wanted to have one or not.

    Rights are universal, as rights exist because of our condition as human beings and persons (that is enjoying free will) separate from all other beings. A non-universal "right" (one which is exclusive of one set of persons) cannot be a true right. This is why pro-abortion advocates, instead of arguing for killing a child on utilitarian grounds, prefer to equivocate by proposing that the unborn child is "part of the woman", thus becoming property under the self-ownership principle, very close to the justification for the Dred Scott decision.

  • Bo Cara Esq.||

    The woman carries the child.

  • Notorious G.K.C.||

    Child?

  • Bo Cara Esq.||

    Potential child.

  • Notorious G.K.C.||

    Whew-you almost gave the game away with that concession!

  • Mickey Rat||

    You do not have a grasp of what "potential" means. If it already exists, it is not "potential".

  • OldMexican||

    Re: Bo Cara Esq,

    The woman carries the child.


    And? My car carries my kids, too, when I drive them around. Does that mean they're fair game?

    Women carry the child because that is our biology. It is natural. That does not mean women suddenly have special rights.

  • Bo Cara Esq.||

    Yes, your car and your wife carrying a child is the same thing.

    Have you ever talked to a human woman? I'm curious how analogies like that go over with them.

  • OldMexican||

    Re: Bo Cara Esq,

    Yes, your car and your wife carrying a child is the same thing.


    Yes, they are. Both are vehicles for the child. Both protect them against the elements. The only difference is that the car did not contribute to the conception of the child - directly, at least.

    Have you ever talked to a human woman?


    Many, Bo. I fail to understand your point. Do you want to argue that the question of personhood depends on how a woman regards her role as a vessel for new life?

  • The Elite Elite||

    The GOP had a big window to throw some kind of restrictions on abortion during the first few years of Bush, when we had a supposed pro-life majority. Yet nothing was even attempted. But yeah, this time suddenly Republicans will grow a spin and try to stop the murdering of babies. Yeah, sure. I'll believe it when I see it.

  • Bo Cara Esq.||

    What they can do is limited by SCOTUS. What Bush did do was appoint at least one justice who I'd bet would essentially reverse Roe and one that would allow more restrictions. I count three votes to actually overturn whereas there were probably only two before.

  • Michael Hihn||

    Roe v Wade is over 40 years old and 40 years we've been hearing that it is a heartbeat away from being overturned

    It's STUNNING how many here are totally unaware that Roe v Wade was significantly replaced in 1992.

  • Notorious G.K.C.||

    "the Terry Schiavo case, when GOP leaders contravened their philosophical principles about state vs. federal powers in pursuit of a particular outcome in a particular case."

    To be specific - Congress passed a law saying Schiavo's family could go into federal court, without procedural obstacles, and litigate her case on the merits.

    You'll be pleased to know that when the federal courts examined Schiavo's case under this statute*, they ruled *against* her on the merits. And they didn't even delay her death. Contrast the situation with prisoners on Death Row, where the federal courts delay their execution for months or years in order to examine their last-minute arguments.

    *They assumed for the purposes of argument that the statute was constitutional.

  • Superflippy||

    Well put. My respect for you has increased enormously after reading this post. Too many people are willing to overlook this sort of hypocrisy.

  • Notorious G.K.C.||

    Even with a limited federal government, guaranteeing due process of law and equal protection would still be a federal function.

  • hpearce||

    Let me use this area here to state that Reason and other libertarians have adopted what I consider "wrong" views because they have refused to take a stand on whether the state is accepted as a valid libertarian concept or not !

    Both their foreign policy and border policy (AT LEAST) are based upon their belief in the existence of the state over voluntary government as an accepted form of government; AND I suggest therefore their polices are biased to the left in these cases. That conclusion even makes sense.

    There ! Got that off my chest :D

  • MJGreen||

    ...Huh?

  • Michael Hihn||

    There ! Got that off my chest :D

    This is almost as wacky as your assertion, earlier on this page, that immigration was an issue of private property rights vs public ownership of property.

    AND I suggest therefore their polices are biased to the left in these cases.

    So ... this time you say that any and all deviations from absolute anarchy are biased to the left!

    That conclusion even makes sense.

    Why?

  • hpearce||

    You idiot ... no real libertarian is an anarchist :D They merely oppose coercive monopolies and prefer a voluntary consensual agreement for themselves and their government.

    Of course in your case, maybe you do believe in a society without any government :)

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  • Baelzar||

    The cold fact is that you cannot control the fetus without controlling the woman that is completely wrapped around it. It is her property.

    If women laid eggs, there might be an argument.

  • Robert||

    It's not too hard for people to square opposition to big gov't w support for prohib'ns on things like abortions. When these people think of "big gov't", they're thinking about lots of taxing & spending, & about lots of nitpicky regul'ns with high administrative costs. However, a ban on abortions is neither of those things. Enforcing laws against abortions doesn't cost a lot, and it's not like a clinic is going to have to hire people to fill out complicated forms to determine whether someone's had an abortion or not. Same w on the one hand prohibiting a new recreational drug & on the other going thru the appl'n process for a new therapeutic drug. The simple yes-or-no things aren't thought of that commonly as "big gov't", but the ones that require a lot of people's time to work on are.

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