More on Abortion, Liberty, and Analogies

A response to some of my critics

My initial posting on the Dobbs case [here] has generated more than the usual volume of commentary, and I want to respond to one thread running through many of the objections to my position that, briefly stated, a woman's right to terminate her pregnancy is a component of the "liberty" protected under the Due Process Clause, which protects many personal, intimate, life-altering decisions (e.g, whom to marry, where to send one's children to school, what church to attend, who to have sex with, etc.) from state interference.

Many commenters object to this formulation on grounds that can fairly be summarized this way:  The decision to terminate a pregnancy is not analogous to those other personal, intimate, life-altering decisions because it—uniquely—involves the taking of another human life. Differently put, the state interest in the abortion case—protecting human life—is fundamentally different than in the other cases, and this renders the analogies inapt.

I believe the objection is ill-founded; let me explain why. [The argument below is taken from Judith Thompson's classic essay "A Defense of Abortion," available here] I won't quarrel here with the proposition that there is "another human life" involved; that will get us nowhere. So let's assume, at least for purposes of the argument, that human life begins at conception.

Assume that you are involved in a terrible car accident; you were driving, you took your eyes off the road and slammed into an incoming car. You wake up in the hospital and learn that several people have died in the accident.  One person—the driver of the other vehicle, say—is alive, but on life support.  Both of her kidneys were destroyed.  When the doctors had you both on the operating table, they hooked you up to provide dialysis for your unfortunate victim, processing her blood through your kidneys, in order to keep her alive.  They inform you that it will take 9 months for a transplant kidney to become available because of the victim's unusual blood type, and that you will have to remain hooked up with her for the whole period; if you were to be disconnected, she will die within minutes.

A provision of Mississippi law, enacted explicitly "to prevent the taking of a human life," prohibits you from disconnecting yourself from the dialysis.  You may leave after the 9 month period has expired, but not before.

Would anyone like to try to persuade me that this hypothetical statute is not an infringement on your liberty under the Due Process Clause?  Alternatively, if you are unable to do that, can you explain why Mississippi's abortion law is different on some materially relevant dimension so as to lead you to a different conclusion regarding its constitutionality?

 

Comments

[Brett Bellmore]

Huh. In that case, I’d say you were morally obligated to stay hooked up to the other person. In your hypothetical, you were largely responsible for her condition! Did you not notice that when formulating it? If I were in that position, I’d just suck it up and stay connected, and apologize occasionally.

From a legal perspective, what’s wrong with legally requiring somebody to make somebody else whole after putting them in a situation like that?

Also, of course, the scenario biologically makes no sense. But I suppose that would be “fighting the hypothetical”.

The basic problem with reasoning by analogy, is that you’re trying to get somebody to change their mind about situation A, by positing situation B, and hoping they’ll apply the reasoning from B to A.

They’re more likely to apply the reasoning from A to B, unless it’s a situation where they already have an established, and different reasoning for B.

Alternative hypothetical: You were out in the woods, goofing around with a gun, and accidentally shot somebody. Severed their femoral artery! (That WOULD kill you in moments, outside of an emergency room.)

Acting quickly, you apply pressure to stop the bleeding, while they rig up a tourniquet. Oops, your hand is stuck under the belt, and if you remove it they’ll bleed out in moments! (They were already getting kind of pale before the belt was tightened.)

It’s going to be extremely inconvenient to hike out of the woods with your hand strapped to their thigh. You might even have to carry them for a while.

So, are you legally guilty of a (n additional) crime if you yank your hand out, and tell them to hike out on their own? And don’t even tighten the belt for them?

I think you might be.

[Armchair Lawyer]

Where David’s analogy falls flat is in the comparison of the events.

People don’t get pregnant by “closing their eyes for a second.” It takes a series of deliberate events where people are well aware of the potential consequences.

[Michael W. Towns]

^^ Armchair lawyer nails it. The analogy or hypothetical is profoundly silly. It’s telling to me that pro-abortion advocates have to create pretzel-like hypotheticals in order to counter the strongest argument against abortion: that it kills another human being.

[Schroeder4213]

I’m assuming from this that you do not oppose abortion in the case of rape?

[Armchair Lawyer]

And rape is a commonly understood exception, precisely because the victim didn’t have any choice in the matter

[Don Nico]

Schroeder,
Your question does not follow logically from Michael’s comment.
Why should yo assume anything about his opinion about abortion post rape?

That abortion kills another human being is only arguable be those who do not want to face physical reality. The fetus is a bein; that being is genetically human.

For the purposes of the law, the question is different: “is that being a person under the law?” And if so at what point did the fetus become a legal person? On those questions, persons of good will can differ.

[Josh R]

I think the question logically follows (and apparently, Armchair did too).

Michael agreed with Armchair. Armchair distinguished Post’s hypothetical by observing pregnancy “takes a series of deliberate events where people are well aware of the potential consequences.” Reasonable may disagree with Armchair’s implied conclusion that the driver didn’t take a comparable series of deliberate actions. But accepting Armchair’s viewpoint (as Michael did), it seems very reasonable to me to ask Michael and Armchair whether pregnancy by rape no longer represents taking deliberate action. And Armchair earnestly answered the question.

[M L]

It’s a fair question, though one that is only of minimal relevance to the broader abortion issue as it only concerns a tiny fraction of a percentage of cases.

Another issue with OP’s analogy. Abortion would be like this. You get up from the hospital bed and slit the other patient’s throat, let them bleed out and die. Then disconnect yourself and leave. That would be the analogy to abortion.

Just disconnecting the life support would be analogous to various scenarios where a baby has to be delivered early due to various types of complications, even though this will likely or inevitably result in its death. Abortion itself is never medically necessary. Only procedures like this which constitute preterm delivery are sometimes medically necessary. A lot of people misunderstand that because a lot of work goes into deliberate obfuscation.

[Brett Bellmore]

I think in some cases of ectopic pregnancy actual abortion might be medically necessary, (Becaue the fetus can’t be removed intact without excessive damage to the mother’s organs.) but other than that you’re right: It’s never necessary to go out of your way to kill the baby, to end the pregnancy. It’s at most sometimes a predictable consequence.

After viability is achieved, live birth is pretty much always an available alternative to abortion, and considerable effort is usually expended by abortionists to make sure of not inadvertently delivering the baby alive.

[M L]

I don’t think that’s right. Even Planned Parenthood’s website admits: “Treating an ectopic pregnancy isn’t the same thing as getting an abortion. . . The medical procedures for abortions are not the same as the medical procedures for an ectopic pregnancy.”

So there you have it.

[Brett Bellmore]

That’s kind of tautologically true, in a trivial sense: Normal abortion procedures are designed to deal with a fetus in the location it’s supposed to be in, ectopic pregnancy procedures are designed to deal with a fetus in some location it was never supposed to be. Consequently ectopic pregnancy abortions are always seriously surgical.

[Lee Moore]

As Brett says, it’s true by definition. Pro choicers , inc Planned Parenthood, define the beginning of pregnancy as the implantation of the blastocyst in the endometrium. Since in an ectopic pregnancy the attachment happens elsewhere – and isn’t really implantation at all – it follows that under PP’s definition an ectopic pregnacy is not a pregnacy at all. Hence, on the PP definition, ending it can’t be abortion.

[WPHDM]

Don’t they make sure to execute already potentially viable big fetuses with chemicals inside the uterus to avoid legal liability for live birth?

[Brett Bellmore]

I don’t think abortionists actually fact any legal liability for a live birth. They’re concerned about legal liability for what they’d do after the live birth to make sure the procedure came to a ‘successful’ conclusion.

[grb]

Josh R : And Armchair earnestly answered the question.

And we thank him for doing so, since it clarifies things. We have an ideology that doesn’t care the slightest about the daily lives or problems of real women. It reaches down to the cellular level to claim certain kinds of contraception are murder because they prevent a fertilized egg from implanting. And all this is based on absolute principles about the “sanctity of life” or preventing the “taking of an innocent life”.

Yet then it then abandons all these for simple convenience sake, (“commonly understood” or not).

You wonder if Armchair would generously offer another exception (to the prohibition on taking innocent life) for women who suffer an unanticipated failure of contraceptive. Even the most reliable forms have some degree of failure. Would that fall outside of his “deliberate events where people are well aware of the potential consequences”?

But you already know the answer. The core tenet of the anti-abortion movement is this: The slut spread her legs for non-reproductive sex, so she gets what she deserves. Full-stop. Strip away all the hypocrisy and that’s the only “principle” that determines whether a fetus is an “innocent life” that must be spared.

[WPHDM]

KID ‘O PASSION NOT LEBENSWERT ?

Suppose I am the result of unanticipated failure of conception. Are you saying I should have committed suicide already, since I was out-o-plan and undesirable low-quality zygote material?

What if I am the product of Jungle Fever? Eligible for euthanasia to promote the purity of the breed?

[grb]

Legally, murder is murder unless it is something else, such as self-defense or unavoidable accident. The anti-choice side claims abortion is murder, and do so with a shrill insistence. Yet the “taking of innocent life” prohibition doesn’t apply in cases of rape. Why? What “something else” is involved there?

Don’t kid yourself a second about the answer : It’s public relations. For all their posturing over the “sanctity of life”, a little PR problem negates every one of their “First Principles”. It’s the kind of shallow hypocrisy we’ve come to expect from the anti-abortion movement.

And you see it in multiple other areas as well: Whether doctors should be charged as criminals, or is an unused egg in a fertility clinic a potential crime? These people will tear apart the lives of tens of thousands of women over their unbending posits & rigorous theorems – but then drop everything with a shrug over some whiffy PR.

And usually, anti-abortionists are more clever than Armchair at reducing it all to women’s lax morality; than cuts a little too close to the bone, movement-wise. But in their spirit of triumphalism, things are getting sloppy. A couple of days ago, Greg J put it this way: “if you chose to act in a certain way, you, and no one else, must bear the consequences of your choices”

That’s the movement speaking from the heart. All the “innocent victims” bullshit was an obvious scam even before they started carving out arbitrary exemptions.

[Greg J]

Wow, that was special

1: Why not victims of rape? Because in that case the woman did not chose the actions that got her pregnant.

2: “if you chose to act in a certain way, you, and no one else, must bear the consequences of your choices.” Yes, that is correct. Not clear what’s wrong with that. The point is you don’t get to murder the baby your choices created. That would be the “innocent victim” we are protecting.

You have a “liberty interest”. That interest gives you the right, if you’re over the age of consent in your jurisdiction, to chose to have sex, and to have sex.

What that “liberty interest” does not give you is the right to kill another human being if the result of your previous choices was to create that human being.

“The right to swing your fist ends where my nose begins”.

If you’re a man, and you chose to have sex with a woman, and she gets pregnant, and she decides not to murder your (that would be the plural “your”) baby, then you’re on the hook for 18 years of child support.

Feel free to ask NBA players who had women give them condoms they’d put needle holes into, so they could get pregnant and score that support, about “sexual liberty interests”.

When a man and woman have sex, and produce a baby (fetus / fertilized egg, call it whatever you want, use whatever dehumanizing language you want, the reality remains that its a living human baby), there are three human beings involved.

The baby, who had no input into the decisions made, is therefore the one most deserving of protection.

[Armchair Lawyer]

While I’m amused that you find it’s easy to strawman me, by literally putting what I believe in, rather than, oh, asking me….

You may find things more informative if you asked, and took the hypothetical question as posed.

Or, continue to strawman with NoVa…

[grb]

So your words above mean nothing? Or maybe you’re sure you can get them to make sense with enough redoes. Well, I’ll help you out with a diagnosis of the anti-abortion movement. If you then wish to renounce them, please feel free:

1. You can’t give a fertilized egg, zygote, blastocyst or fetus exclusive rights and then use state power to commandeer a woman’s womb without talking a unyielding absolutist position. Otherwise you’re back with the status quo, where those rights are balanced.

2. So anti-abortionists make a great show of being absolutists; they put on a virtual Broadway production doing so. Sometimes their efforts have a rancid comic effect, as when they demand certain kinds of contraceptives be banned because they prevent a fertilized egg from implanting – despite multiple scientific studies that show that’s not how the contraceptive works. If you thought they’d welcome evidence of thousands fewer “murders” by their own definition, you haven’t followed the grotesque hypocrisy of the movement. They lust for more faux-victims to better exercise their pretend-piety.

3. But their “absolutism” isn’t absolutist at all. They can turn it on and off at the slightest inconvenience. And when absolutism is the sole justification for blighting the lives of tens of thousands of women yearly, that’s a problem.

4. And it all comes down to the women. Asked why fertilized eggs in a fertility clinic can be unused, discarded or destroyed, one of the Texas abortion law sponsors, Clyde Chambliss, said this, “The egg in the lab doesn’t apply. It’s not in a woman. She’s not pregnant.”

Work out the logic behind that and you only end up with one thing: This has nothing to do with the sacred personhood of a fertilized egg – that’s just a pose that can be abandoned at will. It’s all about the woman’s conduct: Her actions caused the pregnancy so she get zero say in its continuance from day-one. No rights whatsoever. It’s her fault and she should suffer the consequences, so flip that Absolutist Switch.

This isn’t a bug in the anti-abortion feature, but a feature. It’s the core belief behind it all.

[Armchair Lawyer]

Again, you can continue to strawman at will. It won’t get you anywhere.

If you take David’s proposed position that a zygote/fetus is a legal person, then certain arguments follow. If you don’t believe that, then that’s fine.

But if you’re continuing from David’s proposal, as was indicated, you may need to re-examine some of your arguments

[Alpheus W Drinkwater]

He nails nothing. He is just fighting the hypothetical instead of coming to terms with the gist of the argument presented. A pretty common tactic here.

[tkamenick]

There’s nothing wrong with fighting the hypothetical when you’re pointing out that the circumstances that create the hypothetical are significant different from the original AND WOULD NEVER HAPPEN.

[Rossami]

‘Different from the original’ may be a valid argument against a hypothetical though the nature of the difference is important.

‘Would never happen’ is completely irrelevant. That’s what hypotheticals are about – exploring by analogy scenarios that are well outside the norm.

[Don Nico]

ADW,
You need to acknowledge an obvious and relevant difference between the abortion question and the hypothetical. In one case the dependent party is not a legal person and in the hypo s/he is.
In abortion one party can give informed consent, in the hypo neither party can when the medical procedure is performed.

[Josh R]

Post’s hypothetical assumes for the sake of argument that the fetus is a “human life.” Implied in this assumption is that the fetus has the same legal and moral standing as the victim of the accident (i.e., the fetus is a person). Otherwise, the hypothetical would not be interesting because it could be dismissed as you did by noting the fetus is a not a person.

[Don Nico]

Josh,
I grant your point 1, but I still have the object regarding informed consent. If one assumes that the fetus is a legal person then some duty toward the fetus functionally equivalent to informed consent would be necessary to make the hypothetical a valid comparison.
In fact in Post’s post the issues of consent are woefully contorted.

[bacchys]

Because the hypothetical is only about the liberty question versus the life of another human being. The “consent” objections being raised here are just intellectual cowardice.

[Don Nico]

Says you.
Why should I accept Post’s flawed hypothetical. I am not his student grubbing for a grade.
If he has a straight forward question directly about abortion, I’s answer it.
What you call cowardice, I call rigor. See how that works?

[bacchys]

It’s just cowardice.

The Court engages in these kinds of hypotheticals during oral arguments all the time. It’s part of fleshing out the scope of a law or rights. The attorney arguing before the Court who cowardly tries to dodge the hypothetical as you are isn’t helping himself. He’s basically proving Post’s point here: you don’t really believe in the principal you’re claiming justifies your view.

He could have used a different hypothetical. Say, one in which an estranged father has the state demanding he donate a kidney or bone marrow to his ill progeny. Someone who, perhaps, impregnated a woman after a one night stand and has done nothing more than send a child support check every month insofar as being a father. Does he have a liberty interest which would prevent the state from compelling him to donate part of his body to save his child’s life?

[David Nieporent]

Does he have a liberty interest which would prevent the state from compelling him to donate part of his body to save his child’s life?

Problem with that analogy is the act/omission distinction.

[Don Nico]

But if you want a direct answer to Post’s question, here is mine. Of course it is an infringement on the driver’s liberty, because the physicians never sought informed consent from any relevant party and because every hospital has dialysis machines that render this hypothetical stupid and completely contrary to any version of medical ethics.
And no that is not the same as the Mississippi law.
So how about you answering the question directly without name-calling or we’ll know who the coward is.

[M L]

This is not a case of fighting the hypothetical. It’s just pointing out flaws in Post’s argument by analogy which is perfectly acceptable.

Fighting the hypothetical is when the respondent refuses to answer the hypothetical or say what policy they would support in the hypothetical given. Instead they try to give various reasons why they should not have to answer the hypothetical, like it would never happen in real life, or it just hasn’t happened and is unlikely, and in actuality we have x y and z policies etc.

[NOVA Lawyer]

Armchair’s great insight is that pregnancy doesn’t happen by “closing your eyes for a second”. Actually, for some people, that may be how it happens. But more to the point, the only relevance to that objection is whether pregnancy ever happens by negligence and fairly minor negligence (forgetting to take the pill one day, etc.). Now, if you are saying that any sex is necessarily procreative sex and if, despite >99% unlikelihood of getting pregnant (she had a tubal ligation and is on the pill, he’s had a vasectomy and wears a condom), the woman is still more culpable than the “eyes closed for a second” driver, somebody doesn’t really understand either sex or driving.

Which is to say, Armchair is fighting the hypothetical.

There are numerous ways (including rape) in which a woman with an unintended pregnancy isn’t any more culpable than (and often is less culpable than) the driver. So pointing out that some women are more culpable than the driver is simply fighting the hypothetical.

The Mississippi law imposes the ban on people with precisely the same level of culpability as the driver (as well as plenty with far less). Therefore, pointing out that some pregnant women took action with more foreseeable consequences doesn’t answer whether there is a due process issue. There plainly is.

You just want to argue about whether “she deserves” the restriction on liberty, not whether there is a restriction on liberty as the term is used in the due process clause. But going into “she deserves” loses, because of rape, incest, and people getting pregnant when they more than reasonably thought they couldn’t.

[M L]

Having sex always assumes some risk of pregnancy, yes. The basic concept of consent is certainly a valid point to raise and a flaw in the argument by analogy. This isn’t fighting the hypothetical in any way. But it is immediately subject to the counterpoint of how then you deal with the thorny issue of rape where there has not been consent, and that is a fair point as well.

I’m not sure it’s the right answer, but drawing the distinction based on consent seems logically tenable, if practically difficult.

Of course, one might conclude that it is wrong to take an unborn human life even if you did not consent to the pregnancy. After all, the unborn human life is not at fault and is innocent. Thus its right to basic life would seem to outweigh other liberty interests.

However if I were to argue the point, I would offer a simple analogy. When someone breaks and enters into your home you are justified in using deadly self-defense. But let’s suppose the intruder was innocent. Suppose (and there are real life instances of this) that someone has mistaken your home or apartment for their own, perhaps they’ve had a few drinks, and they find themselves locked out of what they think is their own home. So they climb through a window or something, and then…there may be a justified use of deadly force even though the intruder was innocent.

[Armchair Lawyer]

Indeed.
I think a better analogy is as follows. You need to look at what sexual intercourse really is. It’s a highly enjoyable, athletic, and optional activity. One could make the statement, that in some respects it’s a “sport”. A sport that people choose to engage in (outside of rape exceptions, of course).

Now, let’s assume Post’s hypothetical. A zygote/fetus is a real, live, human being with all the legal obligations of human personhood.

Imagine a “sport” that had a relatively high death rate every time it was engaged in. Without “protection” it would be around 10%. Every time it was engaged in, there would be a 10% chance of death. But not to the participants, but to a third party who had no say in the matter. If people were to engage in protective measures, the death rate would drop to 1%. Which is still quite high for each and every incidence.

I struggle to think of such a sport. Perhaps shooting apples off a third party’s head with a bow and arrow. 10% of the time, the third party gets an arrow through the body. And with “protection”, you put a helmet and armor on the third party. But 1% of the time the protection fails. But people keep doing it, because the sport is so darn fun and popular. Would there be any responsibility on the part of the participants if the third party was injured?

Again, this assumes you give a zygote/fetus the same legal personhood as an adult human, as posited by Post. If you don’t, and some people don’t, then it’s like playing the same bow and arrow game…but with a dummy. But if you take Post’s position that a zygote/fetus is a real, human life…then there are severe ethical issues with abortion.

[bacchys]

Hunting has considerable risks to third parties- and I’m not talking about the animals being hunted. Other hunters are frequently injured and killed, especially on public lands where many people hunt. There’s a recent case of a mother shooting her child during a hunt. However, I don’t know what the rate is.

Post’s hypothetical was made to show that even assuming identical legal status (personhood) for the fetus and woman, the woman’s liberty interest prevails. We don’t require people to risk death or permanent injury (or even temporary injury) to save the life of another.

[Armchair Lawyer]

“Hunting has considerable risks to third parties- and I’m not talking about the animals being hunted. Other hunters are frequently injured and killed, especially on public lands where many people hunt”

How frequently though?

Imagine if there were 30 million excess human deaths due to hunting over the last 30 years. Would that make a difference?

[NOVA Lawyer]

I agree that there are severe ethical questions involved in abortion if a zygote/fetus is a real, human life. I don’t read the OP as questioning that. The hypo seems to raise some severe ethical questions that are analogous.

The question posed at the end of the hypo is:

Would anyone like to try to persuade me that this hypothetical statute is not an infringement on your liberty under the Due Process Clause?

Nothing you have said suggests the answer is anything but “Yes.” Plenty of things are unethical that are, nonetheless, legal precisely because of the greater interest in preserving individual liberty (including that those areas often involve disagreements as to the “right” answer). Thus, it is undoubtedly unethical for some parents to homeschool their children, such as where the parent is utterly incapable of and perhaps uninterested in giving the child a decent education, socialization, etc. And, yet, parents may still homeschool their children. The same can be said for all sorts of parental decisions, some of which are pretty clearly damaging to the children, but within the right of the parent to make (often with boundaries).

And, so, you haven’t escaped that there is an infringement of liberty in the hypo (which you just avoided by saying it wasn’t analogous) or in the case of laws requiring pregnant women to remain pregnant. At that point, strict scrutiny applies. That doesn’t mean, in my mind, the answer would necessarily be determined, but it isn’t as simple as the woman got pregnant (you seem to assume by choice or negligence, though there are many other possibilities), so she no longer has any liberty interest at stake.

*And, of course, this all assumes the zygote/fetus is a human with the full rights, etc. that entails, which is a highly dubious proposition given all sorts of scientific and other evidence.

[Armchair Lawyer]

It’s a question of the comparative infringement on liberty. Remember, we’ve assigned full personhood to the fetus.

Choice 1: the woman has the burden of being attached to the fetus for 9 months.
Choice 2: The fetus (which has full personhood) is killed.

Which is the greater infringement on liberty? 9 Months of being attached to someone? Or death?

Let’s put it a different way. Imagine a set of Siamese twins. Two heads, one body. Both individuals are fully competent. One of the twins says “I can’t stand being attached to my twin anymore. It’s an infringement on my liberty. I demand she be killed off and removed”.

As a doctor and/or lawyer, is it legal or ethical to kill and remove the second? If there was a medical procedure available in 9 months that would make them both into full, independent individuals, would be be unethical to wait until such a procedure way available?

[NOVA Lawyer]

Armchair,

Your analysis is fairly compelling from a purely utilitarian point of view. But the U.S. Constitution no more incorporates Jeremy Bentham’s utilitarianism than it does Herbert Spencer’s economics.

Under your analytical framework, there are all sorts of medical procedures that could be required or prohibited.

Most obviously, actual, forced vaccination of everyone would be permissible, yet I don’t think anyone believes, consistent with the Constitution, that people can be detained and forcibly vaccinated if they refuse.

But this is a thread about hypos.

Let’s say Alice needs a kidney or she will die within 9 months. Bob has two perfectly healthy kidneys, a family history of impeccable kidney health, and is a perfect match for Alice.

Choice 1: Bob keeps both his kidneys and Alice dies within 9 months.

Choice 2: Bob is forced to give up a kidney, so Alice can live.

And, just for fun, say medical science has progressed to the point we know Bob will live to the same old age he otherwise would have with no deterioration in his health or quality of life. Using your rubric, the U.S. government could force Bob to give Alice his kidney.

I hear you thinking, well, they’d at least have to pay him for taking his “property” with just compensation. Well, then women refused an abortion should also get compensation?

But, more to the point, forcing Bob to give up his kidney would not be consistent with the U.S. Constitution, notwithstanding utilitarian analysis favors it. (Sure, he’s a jerk if he refuses, but see the First Amendment. We accept that for freedom.)

The other objection I can see is that prohibitions on abortion stop the woman from undergoing a medical procedure, whereas Bob has to undergo a medical procedure. But that’s not really true. The pregnant woman has to manage her pregnancy (testing, nutrition, sometimes medication, etc.) and I am not at all sure you could convince me that birth isn’t the equivalent of an invasive medical procedure (and she may have to undergo a Caesarian or have her vagina ripped during birth requiring surgical repair, etc.). I don’t think an “active vs. passive” distinction saves you or, more to the point, the constitutionality of that hypothetical statute.

So, having established the Constitution isn’t purely utilitarian, what if we consider your conjoined twins.

As a doctor and/or lawyer, is it legal or ethical to kill and remove the second? Those are two very different questions.

Ethics – What is the impact on the first (does her health suffer, is she at greater risk of dying, how much? And what ethical system are we using? My intuition, like most, I’m sure, is that the “better” more ethical thing is to make the comparatively small sacrifice (in my estimation, using my values) to allow the second to survive and requiring the first to wait and live with the inconvenience.

Legality – Hard to say without seeing a statute.

But neither of those address whether a statute requiring such twins to wait for the medical procedure would be an unconstitutional infringement of twin One’s liberty. There’s at least an argument to be made that it would be, notwithstanding the consequences to twin Two. It is twin One’s heart (or whatever twin Two will lose that, apparently, belongs to twin One).

And, again, this all assumes a zygote has equal rights to a fully developed, living, breathing, sentient, outside the womb human. Even your utilitarian analysis changes dramatically if that is not taken as a given.

(And a blastocyst of undifferentiated cells really gets the same rights as born human? Really? I have a hard time anyone actually subscribes to that view, and the actions and beliefs of the vast majority of people with respect to spontaneous natural abortions, rape/incest exceptions, IVF, etc., are incompatible with taking seriously the idea that a blastocyst/zygote is equivalent to a person.)

[NOVA Lawyer]

Those are fair points (except for raising the issue of getting pregnant is necessarily more intentional or less accidental than the hypo’s wreck, which is fighting the hypo).

Consent is a significant issue for the anti-choice crowd.

Your analogy is good for highlighting that the simple fact of lack of fault does not mean the state can prevent other people protecting their interests from your incursions.

The question posed was whether there is a liberty interest protected by the Due Process clause and your comment seems to answer that question unequivocally: yes. And I agree. That doesn’t automatically mean choice wins, but certainly there is a liberty interest at stake for the pregnant woman which then would require a compelling governmental interest (and narrowly tailored remedy) to override.

[NOVA Lawyer]

And just to clarify, when I use the term “culpable”, I am just accepting Armchair’s premise that there is something wrong or culpable about becoming pregnant when one didn’t want or intend to become pregnant. I don’t agree with that background assumption, but the point is to meet him on his terms. His response to the hypo is still flawed, even accepting that premise.

[M L]

It’s not about being culpable, it’s about being liable or owing a duty. If you birth a child or even just take temporary possession of one, that child is wholly dependent on the actions of others to sustain its life, and you are under a legal duty to take those actions, otherwise you will go to prison. There are thousands of people in prison for letting their babies die, usually they are drug addicts.

Baby Left in Swing for Days Was Covered in Maggots and Died of ‘Diaper Rash’ — as Dad Is Sentenced https://people.com/crime/iowa-baby-died-diaper-rash-father-sentenced-to-life/

Note that these duties can generally be safely abdicated, such that one only need endure them for a time. For example Safe Haven laws decriminalize leaving infants with statutorily designated persons – such as fire departments – so that the child becomes a ward of the state.

[Krychek_2]

I sometimes wonder at the complete lack of understanding of human behavior in arguments such as this. Birds fly, fish swim, and humans do stupid things. It’s what we do. Especially in the heat of sexual passion in which nobody is thinking clearly. Every male who has unprotected sex with a woman knows that the potential consequence will be ruinous child support payments for the next 18 years; they continue to do it anyway. If people behaved rationally, there would be no substance abuse, a lot fewer bad marriages, and our politics would look a whole lot different than it does. Which is one reason of many I’m not a libertarian; the hypothetical reasonable man who acts in his own enlightened self interest does not exist in reality.

Fortunately, a significant amount of the time we manage to avoid the worst consequences of our own stupid behavior. Every honest person here can point to at least one time in his life in which he did something monumentally stupid that managed, by luck or otherwise, to walk away from. (Or, in my case, didn’t completely walk away from but managed to mitigate most of the consequences.) Maybe they could extend the same consideration to a pregnant woman whose life is about to be ruined by an unwanted pregnancy.

So yes, AL has a point that an unwanted pregnancy is thoroughly preventable, at multiple points in the process. If and when AL follows up that argument by saying, “And I think that I, too, should bear the full consequences for every stupid or misguided thing I’ve ever done in my life, no mitigation, no ability to fix it, I broke it so I bought it,” then I will take him seriously.

If you want to make the argument that the fetus is a full human with the full panoply of human rights, I’ll disagree with you, but at least that’s a semi-plausible argument. If, on the other hand, you want to make the vindictive argument that she broke it so she bought it, well, is that a standard you’re prepare to have applied to yourself as well?

[Armchair Lawyer]

Yes, people do stupid things. They drive drunk. They shoot firearms up into the air. They set off fireworks. They ride motorcycles with or without helmets.

And a lot of the time they get away with it. They get home safely. The bullets land in a field. The fireworks go off without a hitch. And the motorcycles work perfectly.

But sometimes, consequences happen. They hit someone when driving drunk. The bullet lands on a person. The firework blows up in their hand. The motorcycle crashes and they’re thrown from it.

And when those consequences happen…yes, people need to be responsible for it.

[DStraws]

Ah, but they aren’t beyond the by products of the particular event. For example, riding a motorcycle without a helmet and no insurance. The accident happens and the medical system/social security disability pays $100k instead of letting the person die. See we suffer the consequences. Just so for the poor woman that has an unwanted child who she neglects. Downstream effects, anyone?

[bacchys]

The vast majority of these “pro-life” authoritarians see pregnancy as the punishment for women who have sex. They oppose abortion because they see it as avoiding punishment.

[NOVA Lawyer]

This is Armchair in a nutshell.

[Armchair Lawyer]

Mmm… Strawmen….so easy….

[M L]

You are wrong, bacchys, and probably unaware of the vast amounts of time and resources that pro-life people dedicate to helping single mothers.

[Rev. Arthur L. Kirkland]

Does that help include the incessant lying to them at ‘pregnancy centers?’

Open wider, M L.

[WPHDM]

Here is your “mitigation” to getting the girl pregnant: Marry her if she will take you, or otherwise step up to the plate and accept the responsiblities of being a father. You might even come to enjoy it, or at least find it meaningful to be reponsible for raising and teaching someone that will carry on when you are gone.

[not guilty]

Doesn´t the woman have some say in the matter of whether she will carry to term?

[MikeFr]

If you think that standard is too rigorous to apply to women, what about men?

Should men be able to avoid child support payments if they ask the woman to have an abortion and she refused?

[not guilty]

Not analogous to a woman´s right to choose whether to carry to term. Once a child is born, the father has some rights vis-a-vis the child –most prominently the right to develop some relationship with his offspring. A refusal to support is not among those rights. There is a governmental interest in having both parents support the child and preventing it from becoming a public charge.

[Lee Moore]

Yes, but child support is not symmetrical between the parents. I don’t just mean that Dad usually pays a lot more than Mom (thereby entailing lots of extra hard toil in the factory) – though he does – but that even if the financial contributions were equal, the nature and measure of the financial obligation is different.

Both parents have an obligation to pay, if a child is born. But Mom
has a (nearly) free option to cancel. She can choose to abort. Dad cannot.

So if you were valuing the two obligations in terms of NPV on the day the pregnancy test comes back positive, the NPV of Dad’s obligation is way higher than Mom’s. Because Mom has an option to abort, which in financial terms is a (nearly) free put option. But Dad has no such put option – which is why even quite wealthy men often badger their girlfriends into getting rid of the child. (See eg Jeffrey Toobin)

So it is perfectly true that the mother has all of the physical burden of carrying the child to term, and Dad has none. It’s an asymmetrical burden. But the financial burden – which remember is usually not “just money” but actual paid and taxed labor that has to be performed – is asymmetrical the other way.

Which is of course precisely as nature arranged. Mom gets the burden of child bearing, Dad gets the burden of providing for mother and child. This is not decreed by the Central Patriarchal Committee for the Oppression of Women, but by a female – Mother Nature.

[David Nieporent]

Maybe they could extend the same consideration to a pregnant woman whose life is about to be ruined by an unwanted pregnancy.

Part of the gulf in worldview between pro-life and pro-choice people (though by no means all) is that the former don’t accept that framing at all. Most pro-life people do not believe that a child “ruins” someone’s life. (Especially since the law does allow for adoption, but even if it doesn’t. Nobody would deny that raising a child affects one’s life. But many would vigorously dispute that it ruins it.)

The rest of your argument suffers from the flaw that everyone agrees that there are some attempts at mitigating the consequences after one does something stupid, but everyone also agrees that not all such efforts are legitimate; sometimes people should bear the full consequences of something they’ve done. And your formulation provides no way to decide which efforts are legitimate and which aren’t, and why abortion falls on one side of the line or the other.

Or, to use your formulation: “you broke it, you bought it” is not an inherently illegitimate principle. So why should we or should we not employ it in the context of this discussion?

[SimonP]

Drawing this distinction is why pro-lifers are accused of being more interested in punishing women for having sex than they are saving fetal life.

Put another way – nothing about the distinction you’ve drawn is actually relevant to the due process/liberty analysis. You’re saying that the state has the right to force someone to support another person’s life, if their own actions are what created that situation and they were aware that their actions could have created that situation (even if they used some reasonable standard of care to avoid that result). Normally, that kind of liberty restriction would require adjudication.

[tkamenick]

“You’re saying that the state has the right to force someone to support another person’s life” – Yes. Which we do ALL THE TIME. Fuck, this is just another name for taxes, isn’t it?

[Krychek_2]

No, taxes don’t require a nine month seizure of someone’s body followed by involuntary parenting for the rest of your life. Once I write the check my tax responsibility is over.

[Armchair Lawyer]

You don’t have to be a parent. Adoption is a valid and morally acceptable choice, which should be utilized more.

[Snorkle]

Nine month seizure of someone’s body, NBD

[Armchair Lawyer]

I address this below, in comparing the fiscal values of such a seizure.

[tkamenick]

No it’s not, you keep paying taxes your entire life. Hell of a lot longer than 9 months.

[MatthewSlyfield]

“Normally, that kind of liberty restriction would require adjudication.”

So it would be okay if abortion required judicial authorization on a case by case basis?

[Krychek_2]

He didn’t say case by case.

[MatthewSlyfield]

That is generally what adjudication of liberty restrictions means.

[Armchair Lawyer]

” You’re saying that the state has the right to force someone to support another person’s life, if their own actions are what created that situation and they were aware that their actions could have created that situation”

Yes. The state does this all the time. It’s called Child Support.

[SimonP]

Which usually requires adjudication, so…

[Bubba Jones]

I suppose we could have a court determine whether the pregnant woman is actually the mother.

[Ben_]

The court could adjudicate whether she was raped or not. If not, then …

[David Nieporent]

I don’t know what “requires adjudication” means. The issue of whether one is the father may require adjudication — though regular readers of Reason can tell you about the flaws in that — but the issue of whether the father owes child support does not. It’s an obligation automatically imposed as a matter of law. One can’t go to court and argue that the obligation shouldn’t exist in one’s case.

[Intelligent Mr Toad]

Child-support requires you to pay money and external property, and maybe to spend some time with your child. Child support does not require you to allow access to the insides of your body. No court would compel a delinquent parent to donate an organ, or even a regenerating tissue like bone-marrow, to his child. Your ownership of your body is a stronger, more morally-inviolate form of ownership than ownership of external property and/or money.

[Armchair Lawyer]

That was a stronger argument before courts began to require, in one form or another, vaccination as a condition of raising one’s child.

[Intelligent Mr Toad]

The law against endangering children is not the same as the law requiring child-support.

[not guilty]

What state requires vaccination as a condition of raising one´s child? Please be specific.

[MikeFr]

Hypothetical.

You shoot someone and destroy his kidneys. He is not doing well under dialysis. If he dies you face a murder charge. And then the doctor tells you that you are a potential kidney donor for him….

[WPHDM]

SUPPORTING ANOTHER PERSON’S LIFE

Either a presumpation of paternity comes into being, viola (as when the woman is married to you, whether you are the bio dad or not), or you formally admit paternity, or otherwise all that matters to adjudication are the results of the paternity test: a matter of fact, not your choice.

[not guilty]

The duty to support devolves upon both parents.

[David Nieporent]

You’re saying that the state has the right to force someone to support another person’s life, if their own actions are what created that situation and they were aware that their actions could have created that situation (even if they used some reasonable standard of care to avoid that result).

I mean, you just described child support to a T.

[Randal]

>> People don’t get pregnant by “closing their eyes for a second.”

Uh… have you guys never had sex? It’s very much like that.

In other words, you’re getting the analogy wrong. The car accident is the equivalent of e.g. a condom breaking. Making the decision to get behind the wheel in the first place is equivalent to deciding to have sex.

Of course, this sausage blog can’t figure that out since none of us are at risk of getting pregnant. But we’re totally happy for women to be taking that risk for us amirite?

[Craig Johnston]

It is an infringement of your liberty if that includes the “liberty” to cause someone’s death. Try to actually imagine yourself in the situation you describe. You made a decision which had a chance of causing this bizarre dialysis prison and you were unlucky enough to be placed there. But, really, you are not the victim here; the person attached to your kidneys is the victim of your earlier gamble. How can you cast that as liberty? Let’s say you aren’t attached in that way, but you realize the victim of your earlier gamble will eventually (re)gain consciousness and you will have to pay to support them for decades. Why isn’t smothering them with a pillow a liberty protected by the 14th amendment?

[Krychek_2]

Because smothering someone with a pillow is actively causing their death, unlike merely walking away and leaving them on their own.

[Craig Johnston]

I think disconnecting them from your kidneys is more than “merely walking away.”
Don’t get me wrong: I think a woman should have control over her own body and make her own decisions about medical procedures, including abortion. I think there is another life involved at some point during the pregnancy and society can act to prevent violence against that life. It is a hard question for the woman and a hard question for society and the analogy presented does nothing to examine the complexity of that balance of rights.
So we have to balance Life and Liberty. If only Pursuit of Happiness had a horse in the race, we’d have a trifecta.

[Intelligent Mr Toad]

We can do abortions without doing violence to the fetus. In fact, around 25% of abortions in USA involve no physical or chemical intervention in the interior of the fetus’ body, and act only on the patient.

[Lee Moore]

There’s violence and violence, though. You will recall, no doubt, the scene at the end of North by Northwest in which Eva Marie Saint has slipped on the Mount Rushmore monument and is dangling hanging on to Cary Grant’s hand. Cary Grant’s other hand is hooked on a ledge, and the wicked Martin Landau stomps on Cary’s hand to force him to let go.

Martin Landau is then shot and all ends happily ever after, with much Hitchcockian penetration imagery, with trains and tunnels.

But suppose Landau had succeded – to the extent of forcing Cary to let go of the ledge, with the result that Eva Mary Saint fell to her death, but Cary just managed to grip on to the next ledge, suffering no more than a slightly bruised hand.

Would we say that Landau had not “done violence” to Eva Marie Saint ? Certainly he might be guilt of a minor assault or even attempted murder in re Cary Grant, but how would be stand on a charge of murdering Eva Marie Saint ?

[MikeFr]

Isn’t an abortion also actively causing death!

[Armchair Lawyer]

Oh sure…

Point 1: “So let’s assume, at least for purposes of the argument, that human life begins at conception” OK.

Point 2: The area where the analogy fails somewhat is in the characterization of the crash. Instead of just “taking your eyes off the road,” imagine instead you decided to drive down a street deliberately with your eyes closed for 5-10 minutes. You were well aware that this was reckless, and could result in the possible life or death situation, but you were having fun, and didn’t care.

Point 3: You crash into a person, having driven recklessly. That person is now on life support, and is only being kept alive through your blood supply. Your lawyer informs you that the penalty if the person dies is on the order of 5-10 years in prison. That’s certainly an infringement on your liberty, being put in prison for 5-10 years, but that infringement is well accepted by society. (Fun question, why do we accept imprisoning someone for 5-10 years if they kill someone under these circumstances?)

The alternative is to be hooked up to the person for 9 months, in order to save their life. Then the person wouldn’t die, and you wouldn’t be facing 5-10 years in prison. The comparative infringement on your liberty (9 months versus 5-10 years) is rather better if you help this person stay alive.

[Intelligent Mr Toad]

That analogy (you drive with your eyes closed and hit someone, who then needs to remain “hooked up” to you for 9 months in order to survive and recover) is not apt either, because when you drove into the person, you took something from him. You took his health and independence, and harmed him, and worsened his lot in life. That might obligate you to stay “hooked up” until he recovers, in order to minimize the harm, return the health and independence you had taken, and, generally, make restitution (although whether or not the government should enforce that obligation on you is still open to debate). In contrast, creating a fetus (by conception) does not harm it (until after it is created, there’s no one to harm) nor take anything from it (until after it is created, it has nothing for anyone to take, not even a self) nor worsened its lot in life (until after it has been conceived, it doesn’t have a lot in life). The time between conception and abortion is just so much gained for the fetus. A short life is better than no life at all. If a woman conceives, and thereby creates a fetus, and sustains its life inside her uterus for nine weeks but not nine months, then it (and its advocates) should be thanking her for the nine weeks, not trying to use them as leverage for demanding more. Otherwise, you are like someone who says: “You gave me a car, so now you must pay for my gas! After all, if you had not given me the car, then I wouldn’t need gas, so you are responsible for my need, because you caused it.” The answer is: no sir. Buy your own damned gas, and if you can’t get any, do without, as long as you can.

[Harvey Mosley]

By your argument either parent has the right to kill any of their offspring at any point in time, even after birth.

[Intelligent Mr Toad]

No. By my argument, anyone has a right to separate themselves from their child after birth, to take it to a “safe-haven drop-off” point and leave it there. So letting it live after birth does not require you to allow access to the inside of your body.

[NOVA Lawyer]

No, it doesn’t. It may have other flaws, but, hopefully, the 30 year old son is buying his own gas (and food and shelter), so, no, not “at any point in time.”

But even accepting you meant any time in the womb and only shortly after birth, you’re wrong. The woman can’t kill a newborn. She doesn’t have to breastfeed it or, really, take care of it at all. She does have to drop it off at a hospital or fire station or whatever (as Amy Comey Barrett pointed out), but she is free to walk away without providing further gas. She can’t kill it though.

But maybe you really meant to leave off the “even after birth” part. Well, that also comes with the objection that, at viability, there are options for her to stop giving the fetus gas or, at least, the fetus is at an age where it is possible for it to get gas from someone else. This is one reason why the viability standard makes some logical sense. The liberty of the mother and the things the fetus needs to remain alive are no longer inextricably tied. They are, in fact, extricable.

Your argument fails.

[Krychek_2]

Craig, and Brett, you make an excellent moral case for why the tortfeasor should agree to remain hooked up to the other person. But, there are a great many moral choices that the law does not require, and for good reason. Suppose, instead of dialysis, the only way to keep the victim alive would be for the tortfeasor to donate a kidney; would that change your analysis? At some point, the interference with liberty becomes so great that the lesser evil is to allow the tortfeasor to walk away.

Even if the fetus is a person, that is only the midpoint of the analysis, not the end. The woman has a liberty interest too. Whatever duty she may have to the fetus is not enough to overcome her right to bodily integrity. Seizing someone else’s body for nine months crosses that line.

[Armchair Lawyer]

It becomes a choice in many ways.

If the person dies, the tortfeasor is facing a sizable prison sentence for recklessly causing the person’s death. The tortfeasor could say “I refuse to donate a kidney”. The person could then die, and the tortfeasor could “just” spend 5-10 years in prison.

Is that a reasonable tradeoff? 5-10 years of prison for a kidney?

[Krychek_2]

I can think of scenarios in which the tortfeasor would not necessarily be criminally liable. But if this is not one of those scenarios and the tortfeasor really is facing a prison sentence, then I would say it’s up to him to decide how he wants to proceed. His liberty interest in his bodily integrity will still be great enough that he shouldn’t be forced to continue to provide dialysis against his will, but that doesn’t mean he might not face criminal responsibility for the death.

I have a liberty interest in not going to work if I choose not to; nobody is going to threaten me with prison if I quit my job and watch soaps on TV all day. That doesn’t mean the bank can’t foreclose on my mortgage if I stop being able to pay it.

[Armchair Lawyer]

And he has that “choice” in so much that any individual has a “choice” to commit a crime face the potential consequences, rather than take responsibility for his acts.

A person can “choose” not to pay child support, and instead face prison time. That’s a “choice” they can make. It’s immoral, but it’s a choice.

[Krayt]

If murder is the unlawful killing of another, then the murder occurs when pulling the plug, not the crash anymore. He essentially hooked the guy up to the life support machine himself, and now chooses to terminate him.

That isn’t a valid choice.

I think this analogy that you have the honor of starting someone on life support, then pulling the plug because it’s inconvenient, is a non-starter in other contexts like this. Best to just hammer on the idea the baby is not conscious or sentient yet, and therefore your right to control your reproductivity controls.

It’s because the baby is not at such a state that this is feasible ethically. Ensoulment is a religious concept, and if it is not synonymous with your consciousness, then who cares? I care not what happens to it after I die.

[Brett Bellmore]

“But, there are a great many moral choices that the law does not require, and for good reason.”

I’ve frequently said as much myself: That liberty exists in the space between what you should do, and have to do, between what you shouldn’t do, and must refrain from.

Cases where the action/inaction result in the death of an innocent, AND you have a considerable element of direct responsibility, tend to fall outside that space.

Arguably, that’s why rape exceptions exist in abortion laws: Because in the case of rape, you don’t have that element of direct responsibility, enduring the pregnancy for the welfare of the baby would be the admirable thing to do, but your lack of responsibility renders it an optional good deed. Like driving by an auto accident by the side of the road, instead of stopping to render aid.

But even on this reasoning, once past the point of viability, when the pregnancy can be ended without killing the baby, abortion leaves that space, because abortion becomes an affirmative decision to kill somebody else, not a death incidental to an exercise of one’s liberty.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Rape exceptions punish the fetus for the crime of the father.

Should this be extended? What if the rape is not physical, but from fraud, by claiming to be someone he isn’t? Suppose the rapist is the wife’s husband’s identical twin, and the fraud isn’t discovered until after birth?

Or what if the rape exception is extended to incest, the man and woman were separately adopted after birth, and the incest isn’t discovered until after birth?

As soon as you start making exceptions for so-called murder, you water down your principles. How far can this dilution go before it undermines the entire case?

[Brett Bellmore]

I can oppose rape exceptions without failing to understand the reasoning that would justify them to some people.

[Intelligent Mr Toad]

Abortion is not punishment. Abortion is giving a smaller gift than the recipient would prefer.

[SardonicOne]

Judith Jarvis Thompson’s defense (and your own) rely on the false premise that analogizes the sexual act to a car crash. It is not reasonably foreseeable that the act of driving a car will result in being connected to another individual for 9 months. It IS reasonably foreseeable that the sexual act will result in pregnancy.

Taken further, your analogy seems to state that, if there is a car crash and the individual driving is responsible, they should be able to opt out of “punishment” (via imprisonment or tort) by claiming that any such punishment is a violation of liberty interest.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

What if a condom is used, but turns out to be from a defective lot?

Birth control pills are not 100% effective. I imagine vasectomies are not 100% effective.

If you make an exception for these cases, you’re allowing murder for trite reasons.

[Davy C]

I would argue that birth control that’s 99% effective isn’t enough. Behavior which has a 1% chance of killing a bystander is almost certainly “reckless”. We make DUI illegal on smaller odds than that.

[Craig Johnston]

Condoms are only 85% effective, according to Planned Parenthood. The pill would be 99% if used perfectly, but is only 91% in practice. You are right about vasectomies. The only method which is 100% effective is abstinence (and “outercourse”, but I imagine that is also less than 100% effective in practice.) To be fair, abstinence is probably also less than 100% for the same reason: failure to practice the method perfectly at every opportunity.

[Alpheus W Drinkwater]

Still just fighting the hypothetical. The point isn’t that this is an exact representation of human sexual reproduction. The point is to try to put a man who can’t get pregnant into the situation where the state seizes control of his body for 9 months.

[MatthewSlyfield]

“The point isn’t that this is an exact representation of human sexual reproduction.”

No, the point is that the hypothetical is highly implausible on it’s own terms before you even get to comparing it to pregnacy/abortion.

[Intelligent Mr Toad]

Many hypotheticals are implausible in real life. That’s why the person using them uses them rather than citing cases from history. They’re still a valid way of reasoning and arguing, provided they don’t posit anything impossible (such as, if you could travel faster than light-speed).

[NOVA Lawyer]

Arguing about the plausibility of a hypo is the definition of fighting the hypo.

[MatthewSlyfield]

I think Roe should probably be upheld, and I still think the hypo in question is absurd to the point of not being worthy of a response.

[Allutz]

Many, if not most, pro life people would be overjoyed to be pregnant. Some are post menopausal women that have fewer children than they want. Some are women with endometriosis. Some are men who’s wives have those issues. Some are men who would simply like to double their breeding capacity with a responsible woman.

The number of pro life people who also have no desire to care for their own children is vanishingly small.

[Lee Moore]

Judith Jarvis Thompson’s defense (and your own) rely on the false premise that analogizes the sexual act to a car crash. It is not reasonably foreseeable that the act of driving a car will result in being connected to another individual for 9 months. It IS reasonably foreseeable that the sexual act will result in pregnancy.

You can’t blame Judith Jarvis Thomson for the fact that David Post came along 50 years later and totally butchered her clever thought experiment.

In her hypo, the person hooked up to the kidney machine, unwillingly providing medical assistance to a third party, is utterly blameless and has simply been kidnapped off the street.

[VinniUSMC]

Pretzels are for munching, not for the logic of awkwardly posed hypotheticals.

[Intelligent Mr Toad]

When someone tries to weasel out of answering an argument by saying “I don’t do hypotheticals” (or any variation on that theme), he’s admitting that he has no answer to the argument, and is also not classy or honest enough to admit it. Everyone in the industrialized world, and probably some people who are not in the industrialized world, uses hypotheticals. If you can’t use hypotheticals, then you are probably a persistent-veggie like Terri Schiavo was.

[VinniUSMC]

So much for being an “intelligent” toad.

[DaivdBehar]

Accepting the strained hypothetical, the law has a remedy, compensation of the estate, not biological support for 9 months. Perhaps, the fetus should get legal standing, and require money damages for being ripped apart, and for the value of its future life based on that of its parents.

[mydisplayname]

Interestingly, this was a technique used in the mid-1700s: use of the abortion exemption to manslaughter statutes did not change the child’s right to inherit (in some instances, precluding inheritance by what would have been a second-born [not first-born] son).

[Nick Gillespie's Jacket]

God this is a dumb argument/hypothetical. Maybe it would have *some* relevance if we were talking about a woman who became pregnant because the state forcibly impregnated her, or she checked into a hospital for back surgery but while under anesthesia the doctors mistakenly impregnated het through IVF instead. But what it has to do with the 99% if pregnancies and abortions in the USA is not at all clear. If this is supposed to be a strong argument for the pro-Roe side, then I suspect come July we’ll be living in a post-Roe world.

[Alpheus W Drinkwater]

It’s not dumb, you just apparently don’t understand the concept of hypotheticals in general. Fighting the terms of the hypothetical is just another way to straw man the argument.

[Life of Brian]

It’s not dumb, you just apparently don’t understand the concept of hypotheticals in general.

Yes, it’s dumb.

All hypotheticals are imperfect and thus eventually break down when stretched far enough. But this one miserably fails right out of the gate, for reasons NGJ alludes to and others here have more extensively explained: the entry into the hypothetical does not itself reflect the acts, rights, and responsibilities of the actors involved in a real-world pregnancy. At that point, it simply doesn’t matter how finely-tuned the good professor managed to make the remainder of the scenario — it’s like installing a triple deadbolt on your front door, but leaving the back door propped open.

Fighting the terms of the hypothetical is just another way to straw man the argument.</blockquote

This isn't fighting the hypothetical — it's observing that the entire basis for the hypothetical is itself a straw man.

[M L]

Fighting the hypothetical is not the same thing as pointing out flaws in the argument by analogy. The latter is the exact way that you go about countering an argument by analogy. I agree there has been some of both in here though.

[Devin Watkins 2]

Mass law Section 13L: “Whoever wantonly or recklessly engages in conduct that creates a substantial risk of serious bodily injury… to a child or wantonly and recklessly fails to take reasonable steps to alleviate such risk where there is a duty to act shall be punished by imprisonments in the house of correction for not more than 21/2 years”

[Krayt]

“Duty to act” is the escape hatch we are discussing here.

[JohannesDinkle]

I know this forum is about law , but sometimes it seems people get lost in the weeds. Airfare from Biloxi to Las Vegas, a place unlikely to change laws about abortion, is about $200 round trip. Planned Parenthood could help with the cost of the trip and the happy recipient could even take in a show after the procedure.
I imagine a huge black pyramid Planned Parenthood temple somewhere near the airport servicing the needs of women from red states everywhere. Changing the law to send it back to the states does not mean that abortions will ever be banned in California or Massachusetts. More likely to be mandated.

[Alpheus W Drinkwater]

You don’t have free speech in the state where you live. But hey, you can fly to Las Vegas and say anything you want! You could even take in a show later.

[Brett Bellmore]

The difference is that abortion isn’t a constitutional right. It is at best a liberty interest, such as government burdens, sometimes heavily, in many contexts.

[Harvey Mosley]

In California you can’t buy the most common guns sold in the US. But hey, you can move to another state and buy anything you want!

Seems to be just fine for the liberals when it comes to the Second Amendment.

[Brett Bellmore]

The reasoning here is somewhat analogous to the concerns that led the South to secede. If abortion returns to the realm of normal political choices, instead of being compelled to be legal in all states, it will become illegal in many states. Perhaps eventually enough states that federal legislation prohibiting it would be possible?

So, to preserve slaveryabortion in the slaveabortion states, it MUST be legal in all states. No state may have a choice in the matter.

[Alpheus W Drinkwater]

Did secessionists make the argument that other states banning slavery violated the constitution? It’s an interesting point if true, was there ever a case of someone in a free state challenging the law on constitutional grounds?

[MatthewSlyfield]

There was constant arguing over whether territories seeking to become states would be free or slave.

The slave states were very concerned about the balance of power in congress between the free states and the slave states.

[Cal Cetín]

“Did secessionists make the argument that other states banning slavery violated the constitution?”

“The emancipation of the slaves of the northern States was then, as previously stated, a gross outrage on the rights of property, inasmuch as it was not a voluntary relinquishment on the part of the owners. It was an act of coercive legislation.”

/Washington Union (Buchanan administration organ), November 17, 1857, p. 2, bottom of column 2

https://bit.ly/3ErWk1V

[WPHDM]

THAT EVIL DOCTRINE OF THE EQUALITY OF ALL MEN

In the case of Texas, this:

“They have for years past encouraged and sustained lawless organizations to steal our slaves and prevent their recapture, and have repeatedly murdered Southern citizens while lawfully seeking their rendition.”

Yah, this kind’a stuff you-all, and more:
https://www.tsl.texas.gov/ref/abouttx/secession/2feb1861.html

In all the non-slave-holding States, in violation of that good faith and comity which should exist between entirely distinct nations, the people have formed themselves into a great sectional party, now strong enough in numbers to control the affairs of each of those States, based upon the unnatural feeling of hostility to these Southern States and their beneficent and patriarchal system of African slavery, proclaiming the debasing doctrine of the equality of all men, irrespective of race or color–a doctrine at war with nature, in opposition to the experience of mankind, and in violation of the plainest revelations of the Divine Law. They demand the abolition of negro slavery throughout the confederacy, the recognition of political equality between the white and the negro races, and avow their determination to press on their crusade against us, so long as a negro slave remains in these States.

For years past this abolition organization has been actively sowing the seeds of discord through the Union, and has rendered the federal congress the arena for spreading firebrands and hatred between the slave-holding and non-slave-holding States.

—
Yap, as the lawyers might say, the document speaks for itself

[not guilty]

Brett, states´ rights is a discredited doctrine. Its advocates, like Orval Faubus, George Wallace and Lester Maddox, gave it a bad name in the 1950s and 1960s. (Governor Wallace, to his credit, later repented.)

And the most relevant commonality of slavery and the anti-abortion crowd is that female slaves did not have control of their fertility.

[Brett Bellmore]

“Brett, states´ rights is a discredited doctrine.”

In the eyes of everybody who wants to run a unitary state under a federal constitution, maybe.

[That other guy]

So in addition to the obvious issues of analogy that armchair guy brought up, additionally I’d have to live in a fantasy setting in which the technology exists to use my kidneys for her body, yet the technology to rapidly switch her off of my body and onto a machine, the costs of which I may be compelled to cover? Did you think this analogy through at all?

[David Nieporent]

Yet more fighting the hypo. Again: whether the hypothetical is actually likely to occur is irrelevant. (If it were, it would probably just be a case study, rather than a hypothetical.)

[That other guy]

“but not the technology to rapidly switch…” oops.

[Henry Cowell]

I think a better analogy is this:

You invite an acquaintance to ride in your airplane. An hour into the flight, at an altitude of 5,000 meters, you decide to revoke your invitation. The passenger complains that he is going to die, but as you are throwing him out the door of the plane, you explain that if you were forced to keep him on board, it would be a violation of your right to property under the 14th Amendment.

[tkamenick]

Forget about inviting, this works just as well as if it’s a stowaway. You have a right to remove the person from your plane, but not in a way that kills them.

[Intelligent Mr Toad]

The analogy to the stowaway breaks down because it assumes that the ownership-relationship you have with your airplane is the same as the ownership-relationship you have with your body. They are different. Body-ownership is a stronger, more intimate bond, which gives the owner more rights over what is owned.

[tkamenick]

They don’t have to be the same, they just have to be similar. Enough to not let you kill somebody else because you don’t like what they are doing to you.

[Cal Cetín]

This compares a highly unusual situation (has it *ever* happened?) to something which is quite usual. Hard cases make bad law, and made-up cases likewise.

The closest analogy to a car crash is if you’re raped. So let’s assume you’re carrying your rapist’s child.

Now bear in mind that the law protects the *rapist’s* life. You can’t kill him in an act of vigilantism; and the government can’t kill him because that would be cruel and unusual punishment. The Supreme Court has so decided, and stare decisis, you know.

So…if you can’t kill the guilty rapist, how is it just that you can kill the rapist’s innocent child?

[Leo Marvin]

1. You don’t have liberty interest in killing the rapist.

2. “Child” begs the question.

[Cal Cetín]

Here’s the original post:

“I won’t quarrel here with the proposition that there is ‘another human life’ involved; that will get us nowhere. So let’s assume, at least for purposes of the argument, that human life begins at conception.”

[tkamenick]

You don’t have a liberty interest in killing the child either, so?

[Intelligent Mr Toad]

You can’t kill the guilty rapist, because he is not located inside your body at the time of the killing.

This is not complicated. Here’s the judgement protocol, in three steps:

1. Suppose you want to kill something or someone.

2. Is the someone or something you want to kill located inside your body?

3. If yes, then you may kill it or him; if no, then you may not.

It’s just that simple.

[David Nieporent]

Except that just assumes the answer. You have the right to have an abortion because you have the right to have an abortion.

[Jerry B.]

“My body. My choice”

Now, is that a woman seeking an abortion, or a person refusing to be vaccinated?

[Queen Amalthea]

See? Obtuseness is really a precondition for most modern conservatives.

[Don Nico]

One of your typically BS comments.
I was struck by the great degree to which Sotomayor’s comments applied directly to mandated vaccinations. If you could not hear that, you were not listening attentively.

[NOVA Lawyer]

They apply directly only if the government was actually forcing people to get vaccinated with no alternative, i.e., taking them into physical custody and jabbing them or, alternatively, making it a crime do refuse an offered vaccination. Those aren’t happening. So, there is no direct correlation to criminalizing abortion.

Now, saying you must accept the vaccination or lose your government job or not be able to travel, the reason for vaccinations and the lack of an alternative is the difference. Vaccinations reduce the risk of that other people will be infected and get sick or die. Vaccinations involve your body, but refusing a vaccination affects other people. Thus, the government has a legitimate (compelling? depends on the circumstances) interest in coercively encouraging people to get vaccinated.

And they certainly could offer financial incentives to people to not have an abortion. Arguably, they already kind of do with various support programs and tax breaks, etc.

Basically, very little about vaccinations and abortions is the same other than that they are medical procedures that people should be able to choose to either undergo or not undergo without criminal liability (and, with respect to pre-viability fetuses and all vaccinations) can, unless the Mississippi law is upheld.

[not guilty]

The forcible administration of vaccines might violate the substantive due process right to bodily integrity a la Rochin v. California, 342 U.S. 165 (1952).

Perhaps that is why no one is seriously advocating forcible administration.

[NOVA Lawyer]

Exactly.

[sparkstable]

It seems to me that upthread it was a pro-choice supporter complaining that exceptions to your principles proves you don’t actually have principles. I think that is a stupid argument… but it is the pro-choice side around here demanding dogma rather than nuance.

[Intelligent Mr Toad]

No one should have to take a vaccine against his will. Stay unvaxxed, so long as you don’t come near me, or anyone else, until you have had the virus and fought it off and acquired immunity.

[Vandalia]

Then provide the legal justification for why a man is required to provide child support – his sweat and blood – for 20 years, give or take?

The response to this is frequently, “If you have sex, you have to be prepared to deal with the consequences.” If this applies to men, it also must apply to women.

This is where rape is generally brought up. Well, life isn’t fair. If we should allow abortion in this relatively rare scenario because otherwise “it wouldn’t be fair”, then we must also stop prosecuting sexual assault cases until society can guarantee that an innocent man can never be convicted.

See for example the case of Anthony Broadwater, who was falsely convicted for the rape of Alice Sebold. If society’s response is, “well, it sucks to be you. some people will always be falsely convicted. you are just the unlucky one.”, then that logic needs to apply equally to women in the same way that it applies to men.

Broadwater’s incarceration certainly violated his right to bodily integrity. It was also not a fluke event. Everyone knows that the innocent are convicted, it is simply accepted.

When the life expectancy and incarceration gender gaps are eliminated, then we will discuss any “undue burdens” that come with pregnancy.

[NOVA Lawyer]

The legal justification is that the man does have some responsibility for bringing the child into the world. The woman also is on the hook for child support (if the father gets/wins custody). So, yeah, society has determined that parents have a financial obligation to a child that is born.

But that says nothing about the obligation to carry an embryo/fetus for 9 months. The law looks much differently at financial penalties and loss of physical liberty (and imposition of health costs, i.e., say corporal/capital punishment). For example, the government can take property with just compensation, but the constitution nowhere says, even with due process, the government can take someone’s liberty.

Another example, contracts for specific performance generally cannot be enforced for personal services, but the person who breaches the contract can be made to pay damages. I hire you to clean my house and specify that you, personally, must do it. No court will require you to come clean my house. They might make you pay the cost of having someone else clean it though.

Your argument is basically, they made me pay for you to hire a cleaning service, why can’t I make you come clean my house? Because those are not the same interests. One is a property interest, the other a liberty interest.

[NOVA Lawyer]

type:

*but the constitution nowhere says, even with just compensation, the government can take someone’s liberty except, generally, as punishment for a crime.

[Kazinski]

This is just a devastating hypothetical.

I can’t believe Sotomayor didn’t ask this in oral arguments. They’d interrupt the hearing and vote 8-1 (Thomas dissenting) to DIG Dobbs right then and there.

[MollyGodiva]

Oh this one is easy. It is foreseeable that having sex and not being on birth control could lead to being pregnant. The situation described in this post is not foreseeable because it has never happened and probably can’t.

[Leo Marvin]

So when birth control fails, abortion is OK? Rape pregnancy abortions OK?

[JJJSSS]

Who said the individual in question isn’t on birth control? For that matter, isn’t taking your eyes off the road a foreseeable danger? Isn’t that the entire reason for texting while driving laws?

[GatorLawJay]

The analogy of the car crash is horrible for many reasons.

There is no analogy to pregnancy. Period. No one views an unborn baby like somone you may hit in car accident, even voluntarily.

Outside of rape, pregnancy is voluntary especially as SCOTUS says in day and age of contraception.

But where this argument really fails is that it’s irrelevant to Dobbs. The question is who decides the balances of these liberty interests in our Constitutional system? Is the balance decided by the 14th Amendment? Or is the Constitution silent and the States decide the balance?

In the Former the Mother’s liberty interest wins. In the latter, SCOTUS is only deciding who decides. The question of Mother’s liberty interest is irrelevant to SCOTUS in the latter case.

[Alpheus W Drinkwater]

What is being balanced here? When the topic is immigration, many people are quick to say that illegal immigrants are granted no rights by the US constitution. Is the same thing true of human blastocysts/embryos/fetuses? We know the mother has a liberty interest deriving from the 14th amendment. Constitutionally, what is on the other side of the scale?

[Queen Amalthea]

“pregnancy is voluntary”

Absurd. I want to say surely you don’t think pregnancy is going to result every time you have sex, but this is the internet and it’s actually likely you might be that weirdo.

[Prester John]

You have this pattern of saying people are being absurd or obtuse when you don’t like what they say, but it’s not what exactly is absurd or obtuse about saying that pregnancy, outside of rape, is voluntary.

Do you believe that gambling losses are also involuntary?

[Life of Brian]

I want to say surely you don’t think pregnancy is going to result every time you have sex

Russian Roulette only kills you 1/x of the time, Queenie. But nobody in their right mind thinks that means you’re not voluntarily risking your life each and every time you pull the trigger.

[Ben_]

Special people don’t have to be responsible for their actions, Brian. Didn’t you know?

Your understanding must be the erroneous understanding that rules are (and should be) the same for all. Rather, I think you’re supposed to understand that special people get to have rules beneficial to them, unlike the rest of us.

[Randal]

The car crash is voluntary in the same way. You knew when you got into you car there was some risk of getting into an accident.

[Aladdin's Carpet]

Honestly I can’t stand these sort of hypos. Just state your actual argument, you don’t think life begins at conception. If it does … then the argument you are making is implausible.

A parent does not have a right to just abandon a child. Or kill it. Or leave it out to die. We have child abuse laws. Why should they in this case? Again, assuming life begins at conception.

Is life really so callous to argue these absurd legalistics regarding responsibility? And if we do, assuming non rape, then there is some responsibility right?

Again, I dont think life begins at conception, and I think a good argument is that the state can’t force others to think that life does begin at conception. It’s a moral question. Therefore it’s up to people. Does it begin at 10 weeks? 12 weeks? The state can impose a limit, say, 20 weeks life is there based on some science maybe. Or its arbitrary. But if it’s too arbitrary, let people decide.

That is a defense of Roe vs. Wade. Not, oh, you have a right to kill people in this absurd hypo I made, therefore killing is ok! It falls flat.

[JasonT20]

A parent does not have a right to just abandon a child. Or kill it. Or leave it out to die. We have child abuse laws. Why should they in this case? Again, assuming life begins at conception.

This is fundamentally different from the abortion question because a parent does not need to kill a child to be free of the burden of caring for it. Anti-abortion activists are always insisting on adoption as an alternative anyway. The liberty interest at stake with abortion is to not be pregnant when a woman does not want to be. It is not to be free of caring for a child that has been born.

I think we should all agree that a woman should never be forced to become pregnant when she doesn’t want to. It is making her remain pregnant that the anti-abortion position insists on taking.

[sparkstable]

Only in-so-far as her termination of the pregnancy is at the cost of an innocent life that she (excluding rape etc.) had a reasonable belief would be in such a position due directly to her actions. That part is always cut out in the defense of abortion.

Unless you believe in the immaculate conception, women aren’t getting pregnant by slipping and falling. It isn’t an accident. It is a known, real possibility (even in the face of precautions) that a person’s actions can result in putting an innocent in peril. Doing so calls upon the actor to keep the innocent safe until they can be disentangled. It is a just desert (not food… the form that deserve derives from).

[Prester John]

It doesn’t seem to be fundamentally different at all. You can offer a child already born for adoption, but not instantly. You are legally required to care for the child until someone else can keep charge of him or her. Abortion is the same—having a baby adopted is very easy, but you do have to care for the child until such time as you can give it into someone else’s charge.

[Diderot1713]

But you are not under a legal obligation to care in certain circumstances where that care intrudes upon your bodily integrity. For example, you are not under a legal obligation to give one of your kidneys or bone marrow to your child – even if many people would say you have an ethical obligation. Isn’t that closer to the circumstances of pregnancy?

[sparkstable]

Only if you caused your child to need the transplant in the first place. Then you have something similar to abortion.

[JasonT20]

You caused your child to need the transplant because you were responsible for the child’s wellbeing and let them get sick. Actually it’s even stronger than that. It was your genes that make up half of the child’s, so it’s your fault that the child was likely to become ill. Hey, you even chose to have sex and bring the child into the world, so that is just the consequences of having had sex. See? It is all a foreseeable chain of events that makes it your responsibility to give of your body for your child. We shouldn’t allow a parent any legal choice in the matter.

This is the core of the responsibility angle of the anti abortion side. A parent that does give two shits about their kids certainly would take major risks for their child, but parents are not legally required to do so, as far as I know. It’s not like it is criminal child neglect to fail to risk your own health, safety, or life for your children. And that is for born children that everyone agrees have a right to live and at least someone has a responsibility to provide basic care and supervision, even if the biological parents surrender their rights and responsibilities.

The anti abortion position wants to impose a legal responsibility for a woman to take on physical burdens and risks to her health and life to benefit something that could become a child, but isn’t yet. And they want this even though no one is ever going to be required to take on physical risk ever again once it is born.

[JJJSSS]

This isn’t really true- that’s the entire point of ACB’s comment about safe haven laws. At most, you’re required to care for the child for the 30 minutes it takes to drive to a hospital and dump them at the reception desk. 30 minutes- or maybe 10 if you’re close to a hospital, or maybe 45 minutes if you’re further- isn’t 9 months.

[Queen Amalthea]

“I think a good argument is that the state can’t force others to think that life does begin at conception.”

This. Let’s be frank here. This is a ‘libertarian’ site, but libertarianism is, almost always, just a fig leaf for run of the mill conservatism. Conservatism is, usually in practice, about preserving hierarchies, whites over blacks, men over women, straights over gays, rich over poor, etc. The ‘libertarians’ here are in that vein. It’s the ‘we like Goldwater because he’s going to preserve states rights and freedom to associate wink wink.’

This is why they hate Somin so much. He’s actually a consistent philosophical libertarian. But these guys are just run of the mill conservatives who think, and hope, that less government will result in the hierachies they enjoy being preserved. When government inaction doesn’t seem to result in that, say with abortion, immigration, etc., they of course deviate from their professed tenets. It’s just a fig leaf.

[Krayt]

I’ve found over the years it seems easier for conservatives to give up on government control of social issues than it is for liberals to give up on government controls of business.

There are plenty of conservatives who are more libertarian-oriented, if not full on, supporting legal marijuana or more drugs, gay rights, and I mean back in the day, not just today, and so on, than there are liberals.

The only former liberal I can think of who gave up on business command and control was Christopher Hitchens, who realized the obvious, that quality of life for people was vastly better in a free economy, so you didn’t have to get on bended knee for corruptions.

[Queen Amalthea]

“There are plenty of conservatives who are more libertarian-oriented, if not full on, supporting legal marijuana or more drugs, gay rights, and I mean back in the day, not just today, and so on, than there are liberals.”

Lol.

[Armchair Lawyer]

Life absolutely begins at conception. That’s just science, and an incontrovertible fact.

If you want to believe someone isn’t really a “person” until they pass a magic viability line, then go ahead. But scientifically speaking, life begins at conception. A zygote is alive by every scientific definition of the word.

[Queen Amalthea]

This is a zygote:

https://www.google.com/url?sa=i&url=https%3A%2F%2Fen.wikipedia.org%2Fwiki%2FZygote&psig=AOvVaw0uuLoldcnO751XkQ6B17Px&ust=1638724160711000&source=images&cd=vfe&ved=0CAsQjRxqFwoTCPDzvL3RyvQCFQAAAAAdAAAAABAD

You insult any actual person by equating them to that.

The real interesting question is, why do you engage in this nonsense? Is it some weird religious belief? Or do you think this is what ‘good conservatives’ must believe because so many conservatives are pro-life? I seriously doubt you are enamored with fetuses and zygotes and babies in any other context.

[Armchair Lawyer]

And?

Scientifically, it’s a unique, new, human life. Ask any biologist, scientist, or doctor. Life begins at conception.

If you want to argue it’s not a “person”….go ahead. But just showing a picture and saying “it’s not alive”….doesn’t work.

[JasonT20]

Scientifically, it’s a unique, new, human life.

Not necessarily. About 3 times out of every 1000, it will become two unique lives. (Identical twins)

And those lives won’t necessarily be born, even if “nature” takes it course. About half won’t implant successfully, and some of those that do will miscarry or be stillborn. And all of that is at a non-trivial risk to the woman.

[Life of Brian]

Not necessarily. About 3 times out of every 1000, it will become two unique lives. (Identical twins)

Wow, you sure got him there. “It’s not a new human life at all — it may be more than one new human life!!!” LOL

[Armchair Lawyer]

Indeed…

[JasonT20]

“It’s not a new human life at all — it may be more than one new human life!!!” LOL

Yes. Which shows that it is a single cell that is a long ways from developing into a person. Several months away, in fact.

[Armchair Lawyer]

Several months by some definitions. 18 years from other definitions.

Legal personhood is a different concept than whether or not something is a biological human life.

If you want to argue someone’s not really a “person”…then that’s the argument you need to make.

[JasonT20]

Several months by some definitions. 18 years from other definitions.

Other than with serious neural birth defects, like anencephaly, there is no reasonable definition of legal personhood that would not include a baby born alive. (Anencephaly is when the neural tube of the embryo doesn’t close completely and much of the brain and skull never develops.)

Legal personhood is a different concept than whether or not something is a biological human life.

Right. That is the exact issue here. I’m glad we agree on that. That is why I just shake my head at all of the insistence that conception is the beginning of a biological human life, such as what you wrote. It’s a complete dodge of the real question. It’s the pro-life side that isn’t willing to do the hard work of justifying a dividing line somewhere between a single cell and a newborn, so they just default to that single cell.

I am perfectly willing to make the case that viability is a reasonable dividing line for purposes of abortion, with immediate medical emergencies justifying it after viability if saving the woman would preclude saving the fetus. More generally, live birth is the current standard for legal personhood, isn’t it? We call it a “birth certificate” not a “conception certificate”. It is on anyone that would want to change that to something earlier to justify the change, I would think.

The issue for me is that a woman should absolutely never be required to become pregnant, and I hope that is incontrovertible. Since pregnancy involves major physical burdens and small but significant risks of serious complications, even death, I believe that a woman should also not be required to remain pregnant when safe methods of terminating the pregnancy exist. Viability is the point at which terminating the pregnancy no longer requires the death of the fetus. Thus, it is a fair dividing line.

We could assume a fetus to have the characteristics of human beings that make us believe in a right to life for us that we don’t give other animals. (Though, it is virtually certain that a fetus, let alone an embryo or zygote, lacks that capacity for sentience.) Even with that assumption, requiring the continuation of a pregnancy against the will of a woman would be requiring a level of physical burden and risk for the benefit of another person that I don’t see anywhere else in law.

Would you grant the state the power to require healthy young people to regularly donate blood? To be tested for compatibility of other tissue for people that are ill and need donated tissue, like bone marrow or a kidney, to live? And to be required to submit to those procedures if they are a match? If the state can force a woman to remain pregnant against her will, then it certainly could do those things.

[Lee Moore]

About 3 times out of every 1000, it will become two unique lives.

Yup, but until that happens, it’s just the one new unique human life.
When it splits into two clones, then you have two distinct humans.

If human biology was such that in rare cases some men would, in their forties, start budding an extra right arm, which developed into a baby and dropped off after a few months, screaming and bawling to pursue its own independent life, you could hardly say that such a baby-budding man had not been a unique human life for the first 40 years of his life. Well you could, but it would be pretty dumb thing to say.

When a single live creature splits off a clone, then you’ve got two creatures. Until then you’ve got one.

[JasonT20]

Why are you quibbling with this one thing, when right above this I answered Armchair Lawyer with a comprehensive argument over what we both seem to agree is the real point of contention on this whole issue? Maybe I should save that somewhere, since neither he nor you want to answer it.

[Lee Moore]

You made a mistake, I corrected it. Presumably when you made your mistake you thought it was a cool point. It isn’t. It’s wrong. That’s all.

Feel free to continue you discussion with Armchair Lawyer. Though en passant I’m not sure I would be describing your contribution as a “comprehensive argument” worthy of preservation for future generations.

I’ll only comment only the one point :

That is why I just shake my head at all of the insistence that conception is the beginning of a biological human life, such as what you wrote. It’s a complete dodge of the real question. It’s the pro-life side that isn’t willing to do the hard work of justifying a dividing line somewhere between a single cell and a newborn, so they just default to that single cell.

The reason pro-lifers insist on conception as being the start of a new human life is that it is so as a matter of fact, that it is relevant but not conclusive as to the moral argument, and that its relevance is plainly accepted by the “tells” from the pro-choice side, as evidenced by the frequency and vehemence with which pro-choicers seek to deny this basic scientific fact. Including you, with your knee jerk, and incorrect, denial that a zygote that may subsequently divide into two separate individuals, is a new unique human individual. Which it is.

I agree that pro-lifers often assume that the undeniable – though much denied – fact that a new human life is created at conception is the end of the argument, which it isn’t. But your suggestion that the onus is on them to prove that this is a human life with moral value, while pro-choicers have no onus to prove that it has none seems, well, unbalanced.

We’ve done slaves and Jews and black people, and natives and “savages”, and physically disabled people, and mentally disabled people, and all sorts of contenders for “nah, they don’t count” and historically the onus of proof has lain with those who seek to deny those particular humans over there equal status.

IMHO both sides should put more effort into explaining why those people over there “don’t count like other humans” or “do count like other humans.” But I have rather more sympathy with the pro life side in the argument, despite being pro-choice myself at least as regard early abortion, because it’s rather pointless for them to go on about why “those humans over there do count” if 80% of the people on the other side are dementedly insisting that “they’re not humans.”

[JasonT20]

The reason pro-lifers insist on conception as being the start of a new human life is that it is so as a matter of fact, that it is relevant but not conclusive as to the moral argument, and that its relevance is plainly accepted by the “tells” from the pro-choice side, as evidenced by the frequency and vehemence with which pro-choicers seek to deny this basic scientific fact. Including you, with your knee jerk, and incorrect, denial that a zygote that may subsequently divide into two separate individuals, is a new unique human individual. Which it is.

You didn’t “correct” me. You’re still missing the point. It isn’t a “tell”; it is the core of the issue. Their whole deal is with starting with a zygote and saying that it is a “new unique human individual” as part of an argument against abortion (and often emergency contraception that they think is also a “sin”). And putting this kind of moral equivalency to a person can only be based on projecting forward to its possible future, not what it is at that moment, which is a single cell. By ignoring the ~0.3% chance that it could actually split into two “new unique human” beings, they are also ignoring the ~50% chance that it wouldn’t implant at all and no one would ever know it existed, not least of all, the woman. Then, there is also the chance that something else would go wrong that would result in a miscarriage, or it would fail to develop properly (such as anencephaly, where it would be missing most of the brain) and would die before birth or shortly afterwards.

The possible future of a zygote is not at all a useful consideration here. It doesn’t do a damn thing to get to the reason why we value a human being and insist on having rights that we don’t give to any other animal. A human zygote has ~2% different DNA than a chimpanzee zygote. They are 98% alike. Why is the human zygote sacred but the chimp zygote is not? That entirely begs the question on what makes humans special.

I agree that pro-lifers often assume that the undeniable – though much denied – fact that a new human life is created at conception is the end of the argument, which it isn’t. But your suggestion that the onus is on them to prove that this is a human life with moral value, while pro-choicers have no onus to prove that it has none seems, well, unbalanced.

I never said that pro-choice position has “no onus” to prove that it has no moral value. That is another mischaracterization of my position. I routinely have argued that it clearly has less moral value than a human born alive. That is more than sufficient, in my mind, to justify viability as a dividing line for abortion. What is your justification for putting the end of the first trimester as the dividing line? That is entirely arbitrary. You have said that with zero justification.

We’ve done slaves and Jews and black people, and natives and “savages”, and physically disabled people, and mentally disabled people, and all sorts of contenders for “nah, they don’t count” and historically the onus of proof has lain with those who seek to deny those particular humans over there equal status.

And this is a straw man. And/or it is irrelevant, I don’t know which logical fallacy applies. It is definitely not a valid criticism. The denial of basic rights to groups of born humans in history is not comparable here. Debating whether a single cell is a human person with basic rights is not in the same ballpark as looking at differences in skin color or religion. It isn’t even the same sport.

But I have rather more sympathy with the pro life side in the argument, despite being pro-choice myself at least as regard early abortion, because it’s rather pointless for them to go on about why “those humans over there do count” if 80% of the people on the other side are dementedly insisting that “they’re not humans.”

There’s nothing “demented” about anything I’ve said. How can you say that when so many pro-lifers literally say that pro-choice people support murdering babies, and practically cheered the cases where some nut job murdered a doctor that performed abortions or bombed a clinic?

[Prester John]

What a weird belief. Of course we love babies and children. People are a joy and new people an especial blessing to the world. You show this picture as if under sufficient magnification, the cells that make up my body look substantially different. Why would I be insulted?

[Milesthatsme]

I take no view on the ultimate issue here. Interesting that so many posters gravitate to the question of responsibility for the original event.

I’d go somewhere different. I think the thing that is arresting about the analogy, and vividly invokes “liberty” interest, is that it posits “chaining” the patient to the bedpost. When you change that aspect of the hypothetical, intuitive reactions will change. Would we have the same reaction if one was forced to carry a backpack for 9 months? Wear a wristband?

The other moral intuition that has confounded biomedical ethics is that we have a very different intuitions to requiring “positive” interventions than we do to prohibitions (illustrated by various trolley problems, ending life support questions, etc.)

[Randal]

I agree with this. I simply don’t believe the “it’s her fault for getting pregnant” crowd is serious. Would they object to a ruling that overturned Roe entirely, so that women had no right to bodily integrity at all, even in cases of rape? Obviously not. It’s all just people finding a way to lie to themselves about their own misogyny.

When the government forces them to give up 9 months of their own life to save another one, it’s all “no, wait, that can’t be right!” They can’t even be asked to get a shot in order to save lots of lives! But if it’s a pregnant woman, cue the slut shaming. “No liberty for her, that whore.”

[Lee Moore]

I simply don’t believe the “it’s her fault for getting pregnant” crowd is serious

This is because the “it’s her fault for getting pregnant” crowd is composed of pro-choicers straw-manning pro-life arguments.

Pro-lifers merely point out that, except in the case of rape, pregnancy is voluntary, even when it is very much undesired. It’s a predictable effect of having sex. The probability varies from case to case.

And generally when we analyse the moral and legal obligations that people might have, whether they voluntarily engaged in the activity that caused the consequences in question is normally regarded as relevant. It’s not blame or moral censure it’s simply responsibility. And it applies directly in the pregnancy case too – men “have their fun” and are on the hook for 18 years of child support. It’s not the wrath of God, it’s just responsibilty.

Which is why in Judith Jarvis Thomson’s original hypothetical, she took great care to structure it so that there was no question of the unfortunate person hooked up to a third party against her will being even slightly responsible for the thid party’s predicament. David Post unfortunately butchered her hypo.

[Randal]

I couldn’t have asked for a better volunteer. You even threw in the (rather disgusting) moral equivalency of child support.

So, are you going to be distraught when the court takes away the right for women to control their own bodies even when the pregnancy wasn’t their fault i.e. rape?

[Lee Moore]

So, are you going to be distraught when the court takes away the right for women to control their own bodies even when the pregnancy wasn’t their fault i.e. rape?

If the court banned all abortions, including in the first trimester, I’d be opposed. Not merely as a matter of substance, but also as a matter of process. I can’t conceive of any plausible legal argument for reaching that conclusion. It would be as unmoored from the text of the Constitution as was Roe.

But that’s never going to happen. At the maximum, they’d simply overrule Roe et al, and leave it to the State legislatures.

You are correct to note that pregnancy by rape presents a different case from the usual one, because that goes to the extent of the mother’s consent for the baby camping out inside her. Rape – zero consent, normal pregnancy – implied consent, IVF pregnancy – explicit consent.

But so long as abortion in the 1st trimester remains legal, these distinctions matter rather less. A rape victim still has three months to rid herself of her unwanted, uninvited guest.

[JasonT20]

But that’s never going to happen. At the maximum, they’d simply overrule Roe et al, and leave it to the State legislatures.

There will undoubtedly be at least a couple states that will effectively ban all abortions should Roe be completely overturned, without exceptions for rape. The Texas 6 week scheme would just about do that, since it leaves a really small window to confirm being pregnant and then scheduling and performing an abortion. Especially when other laws require a “waiting period” that necessitates two appointments.

And the point of this line from Randal and Milesthatsme is that focusing on whether the woman can be considered to have consented to becoming pregnant is kind of a give away here. That is because, if the purpose of restricting the woman’s liberty is to defend the “sacred” life of the “unborn”, then consent shouldn’t matter. Making an exception for rape undercuts the argument that the “unique human life”, as you put it elsewhere, has an independent right to life that grants it access to the woman’s womb over her continued wishes.

The whole issue is that the woman that wants and abortion doesn’t want to be pregnant. Can the government force her to remain pregnant against her will? “Well, she shouldn’t have had sex if she wasn’t willing to go through with 9 months of pregnancy” is actually a dodge of that question, and many of us on the pro-choice side think it is revealing of true intentions for at least some that are anti-abortion.

If one is willing to make exceptions for rape in any abortion restrictions, then it is really difficult to make the case that the restrictions are solely about protecting life, and not at all about imposing ‘consequences’ for having had the dirty sex. If someone is not willing to make exceptions for rape, then that is more consistent with a belief in that life being sacred, but it also makes the question of consent to having had sex completely irrelevant. I think our point here is that you can’t have it both ways. So which is it for you?

[Lee Moore]

focusing on whether the woman can be considered to have consented to becoming pregnant is kind of a give away here. That is because, if the purpose of restricting the woman’s liberty is to defend the “sacred” life of the “unborn”, then consent shouldn’t matter.

Yeah, unforunately you don’t really understand the argument. I strongly recommend that you read Judith Jarvis Thomson’s original argument, the point of which is to argue that even if the unborn child is recognised as a fully equal human with moral rights exactly equal to any adult human that does not resolve the whole abortion argument in favor of the pro-life side.

This is because we adult humans do not have unlimited obligations to keep other humans alive, even though they are morally equal to us. In fact, if we are liberals, in the traditional sense, we don’t have any such obligations, unless…

and the unlesses are essentially :

(a) where we are, to some extent, responsible for the danger/harm/predicament threatening the other adult human and/or
(b) where we voluntarily accept responsibilty for helping the other adult human

Thomson’s argument (unlike David Post’s butchery of it) was carefully crafted with a victim who could not conceivably be argued to be either responsible for the other person’s predicament, nor who could be argued to have consented either implicitly or explicitly. Consequently her argument was accepted as a pretty good one as an analogy to abortion in the case of rape, but much weaker in the normal case. She later tried to extent her argument to normal pregnancy with her rather less powerful people-seed argument.

So the argument about the degree of responsibility and/or consent is actually a necessary implication of Thomson’s pro-choice argument that the equal personhood of the fetus, even if conceded, is not fatal to the pro-choice case.

[Randal]

So it seems like you basically agree with Jason and I: the reason you want force a woman to remain pregnant, but only if she had sex voluntarily, is because you think having sex is the moral equivalent of drunk driving. You want to hold her responsible for engaging in such a reprehensible act.

If she was raped, go ahead and kill the baby, no problem. But if she dared to have sex intentionally, she’s at fault and must be “held responsible.”

That’s pretty messed up.

[Randal]

Sure, but your argument is based around the liberty right. So, do you agree that women who are raped should have a constitutionally guaranteed right to abortion in the first trimester?

If not, then your whole argument is BS and you’re just lying to yourself.

[Lee Moore]

Well, I think all* women, raped or not, should have a constitutional right to abortion in the first trimester. But that is not the same as thinking that they actually do have such a right, under the Constitution as written. But I’d happily support a Constitutional amendment to that effect.

* I am not quite sure about whether IVF pregnancies should be included, as IVF involves explicit consent.

[JasonT20]

I would say that it is unnecessary to frame this hypothetical with the driver at fault. Many pro-life people seem willing to make exceptions in the case of rape to abortion bans. Those that aren’t (and are thus consistent with the belief that it is an innocent child’s life at stake), will find ways to minimize this. There was Todd Akins with his “legitimate rape” belief that a woman’s body would “shut the whole thing down” if she was traumatized.* (This wouldn’t affect women raped while not fully conscious, of course.) I’ve also seen people argue here about the small percentage of abortions that occur from women that had been raped, as if that makes it okay to force them to give birth to their rapist’s baby.

There are other things to add to this hypothetical to make it more like the abortion debate. First, you should add in the small, but significant risk of serious complications. It is not just that the person donating the use of their kidneys must make a 9 month sacrifice of freedom for another person’s benefit. There is also a risk of major complications, even threats to future ability to have children when the woman wants to. And, most seriously, a 1 in 6000 overall chance of death. This can be comparable to the risks of other things that people choose to do, but I can’t think of any situation where someone is legally required to take that level of risk and physical burden to benefit another person.

Next, you would have to propose that the penalties of violating the law that would force the person to be hooked up to the one that needed the dialysis be only applied to anyone that helps the person disconnect themselves from the one needing the life support. Choosing to disconnect yourself from the one that would die without the use of your body would have no penalties, but any doctor that helped you disconnect safely would be punished. So it isn’t that you would be punished for violating this law, but only that you can’t do it safely without the help of people that would be.

These are the things that make the anti-abortion position problematic, in my view. Even granting them their belief that it is just like killing a person to abort a pregnancy, there are inconsistencies with that belief in how they approach it in practice. A willingness to compromise or do argumentative dances to get around those inconsistencies make their belief seem disingenuous and more about moral disapproval of sexual freedom and an insistence of living with the “consequences” of their choices than about the developing life at the heart of the issue.

*There seems to be an old belief that goes back to the middle ages which suggested that a woman had to ‘enjoy’ it in order to become pregnant. That made pregnancy proof that a woman wasn’t raped. That was an issue in the historical event that the recent movie, The Last Duel was based on.

[Commenter_XY]

JasonT20, bringing this directly back to Dobbs, I thought Justice Kavenaugh with his questioning made a very good point (to me, anyway). Abortion is a question to be decided by the people in their respective states; unelected federal judges must not be making these decisions. And the solutions by state will vary, because the values of the people vary state by state. I don’t see that as bad. That is normal.

To me, abortion has always been a 9th and 10th amendment issue. It mystifies me somewhat why one would think otherwise.

The central question as I understand it is whether a state may prohibit abortions pre-viability. I believe that a state can prohibit abortions pre-viability under our constitutional framework. Whether a state should do that is a matter for the people of that state to decide.

Were Roe and Casey to be ‘re-interpreted’ in some manner to allow abortion restrictions pre-viability, I don’t see a whole lot changing, long term (meaning, more than 10 years). Pragmatically speaking, I can envision most of the country coalescing around prohibitions on abortions after 13-15 weeks; with exceptions for rape, incest, severe fetal defect (i.e. trisomy 16, trisomy 18), threat to physical life of mother. Roughly 95% of abortions today happen within15 weeks, so I don’t see that as a dramatic change. I am not sure I even see that pragmatic line (13-15 weeks) as anti-abortion. Do you?

So what happens if some states prohibit abortions very early, like 6 weeks? Answer: You let the political process play out in that state. It will take multiple election cycles, but the people will settle on what they want in short order (a decade). If they still want such an early line, well, alright then. They made their choice, now live with it (until they choose not to by voting to change it). That is how our system was intended to work, I thought.

That whole train of thought that Justice Kavenaugh touched on in his questioning during Dobbs argument really made a lot of sense to me. I listened to the audio transcript and it was fascinating (but lengthy at 1:54). The open-ended ‘non questions’ were annoying, though.

[JasonT20]

Abortion is a question to be decided by the people in their respective states; unelected federal judges must not be making these decisions.

Why abortion and not other civil rights? Free Speech, freedom of religion, gun control, the death penalty, vaccine mandates, racial discrimination, voting rights, interracial and same-sex marriage, and on an on? It can’t be that abortion isn’t mentioned in the Constitution, as neither are many other things considered protected, like parental rights. (And you bring up the 9th Amendment yourself.)

The ‘tyranny of the majority’ that libertarians and conservatives seem to worry so much about is an issue at all levels of government. The Constitution protects the rights of individuals everywhere in the United States, not just from the federal government. That was a mistake corrected with the 14th Amendment.

[Commenter_XY]

JasonT20, as I said…pragmatically, what would change? In sum, not much, since 95% of abortions occur within 15 weeks of conception. I think your reservation is what happens when a state, say TX, says 6 weeks. Then what? Answer: You let the political process play out in that state. Yes, it will be a little messy for a few years while the electorate within that state sorts it out.

To me, the decision of what restrictions, if any, that will be placed on abortion, must rest with the people. They (the people) must do the hard work of choosing, not unelected federal judges. With regard to the other rights you listed, my view is the states already have a significant scope of authority in each of those areas (race, sex, marriage, voting, housing, vaccine mandates, etc).

[NoOne]

Pragmatically, it would change a lot due to the various trigger laws a number of states have in place that apply outright bans on abortion once Roe’s viability standard is overturned (including Mississippi). The intent is not to preserve 15 weeks as a fixed line for future legislation, but to remove any sort of objective criteria, such as viability, for determining how to balance women’s rights against state’s interests.

Kavanaugh’s reasoning strikes me as identical to what is found in Plessy – that individual states should be given deference to decide whether, and how, to permit racial mixing. If this sort of reasoning prevails, the outcome is extremely predictable, as we’ve seen it before.

[Commenter_XY]

Yes NoOne….the first decade would be messy, for some states. I would be the first to say that. It takes time for the democratic process to work. Where I am, in The People’s Republic of NJ, abortion on demand is not going away. In many of the larger populated states (CA, NY, IL, etc.), nothing changes. That is fine. MS might have different values than NJ, and restrict abortion more. How much more? MS says 15 weeks, and that doesn’t sound unreasonable to me given 95% of abortions in the US happen by 15 weeks. The point is, MS will decide. That is ok too.

[Josh R]

I support federal legislation that prohibits states from proscribing abortion, at least through the first trimester.

[Commenter_XY]

Josh R, yeah I get where you are going. You’d like some kind of uniform standard across the board. In a perfect world, so would I. But we do not live in a perfect world, and the Founders left us the system and rules we have to work with. One outcome of that is we will have variation in standards.

My preference is to push social/cultural/political questions (like abortion) to the lowest level we practically can. That level is not Congress, it is the state legislatures.

I agree with the proposition that there has to be some amount of time for a woman to a) discover she is pregnant, and b) decide what to do. Is 6 weeks enough? Probably not. Is 13-15 weeks enough (noting that 90%, 95% of abortions completed at 13, 15 weeks respectively)? Yeah, I think so. At that point, I feel the die must be cast.

Over the next decade (in a post Roe world), a few state legislatures with play a version of ‘how low can you go’ with prohibitions. That is just the nature of things. That won’t change. That will get sorted out, with the people driving that process.

[MatthewSlyfield]

“That level is not Congress, it is the state legislatures.”

Why not county/municipal boards?

[Josh R]

The liberty of women in this manner is too important to be left to the states. We already have a federal partial-birth abortion ban. There is no constitutional infirmity in a federal law that guarantees a woman’s right to choose.

[JasonT20]

MS says 15 weeks, and that doesn’t sound unreasonable to me given 95% of abortions in the US happen by 15 weeks.

And what if SCOTUS okays their 15 week law, but leaves the question open to how much time is enough? Will MS decide that it should be 12 weeks a few years later?

[Commenter_XY]

MS can choose that, JasonT20. It is a valid exercise of state powers under our constitution.

[JasonT20]

With regard to the other rights you listed, my view is the states already have a significant scope of authority in each of those areas (race, sex, marriage, voting, housing, vaccine mandates, etc).

And they have a lot of limitations on their power to restrict those rights from the U.S. Constitution. Again, why is abortion something that should be left to the political process in each state but not others?

[Harvey Mosley]

I’m more than willing to apply the same restrictions to Second Amendment rights as those applied to abortion rights. Are you willing to do the same?

[Commenter_XY]

2A = enumerated right. Nice try, Harvey. 🙂

[JasonT20]

9A – “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” – Nice try, Commenter_XY

[not guilty]

Unenumerated rights which have been ruled to be fundamental and of constitutional magnitude are not inferior to enumerated rights. Would you curtail the right to marry, to procreate, to direct the education and upbringing of children, to bodily integrity, to choose sexual partners, to use contraception just because these fundamental rights are unenumerated?

[Lee Moore]

9A rights are of course equal in status to enumerated rights. The difference is that with the enumerated rights, it’s easy to identify that they are rights. Whereas with 9A rights, more guesswork is required. Or at least a lot more work is required to demonstrate that they really are rights retained by the people, as opposed to what you, or I, might wish were such rights.

So, take “the right to choose sexual partners.” Is this really a 9A right ? And if so, what is its extent, and how would we know.

It’s reasonably clear that circa 1791, you could not be compelled to have a sexual partner you didn’t want – at least not legally. Although even that was somewhat restricted, in that once you were married, consent was not revocable.

But it’s extremely doubtful that you had a positive right to engage in sex outside marriage. In plenty of jurisdictions adultery or fornication was punishable. And as for a same sex partner – that was widely criminalised.

So the evidence of a sweeping right to choose your sexual partner is pretty slim. except to the extent of being able to refuse sexual partners you didn’t want.

As for marriage – sometimes if you were young, you couldn’t marry without parental consent. Nor was divorce and swapping to a new sexual partner anything like a slam dunk.

So it’s fine to assert all sorts of sweeping alleged 9A rights. Much harder to do the hard yards of showing that they really qualify.

Or else we’ll have people asserting a right to open a business without having to get a government license. How would you refute such a claim ?

[Harvey Mosley]

Sorry. I meant to reply to JasonT20. And I should have mentioned that I live in California and I would be thrilled if I could buy guns as easily as a woman can get an abortion here.

[Harvey Mosley]

Also to Jason and not guilty: I agree. Unenumerated rights are not and should not be inferior to enumerated rights. But in no way, shape, or form should enumerated rights be inferior to unenumerated rights. Ever.

[JJJSSS]

“Abortion is a question to be decided by the people in their respective states; unelected federal judges must not be making these decisions.”

That would hold a lot more water if states had democratic systems. But in fact they don’t; the Supreme Court has been very clear that it won’t interfere with any sort of partisan gerrymandering. Which means that in plenty of states (and yes, this goes both ways), perhaps 40% of the people, acting in concert, can deny the rights of the other 60%.

If a party wins 40% of the vote and 60% of the seats, they may be elected- but it’s not clear to me why they would be more legitimate as decision makers than a bunch of unelected judges would be.

[tkamenick]

I don’t think it’s unreasonable at all to place duties to protect and preserve on people who caused the circumstances in the first place. If you negligently injure someone and don’t provide aid when your aid could have saved their life, you can be held liable for their death where otherwise, if you had provided aid, you would only be liable for their injuries.

[Toranth]

This hypothetical is utterly bizarre – when you actually look at it, it doesn’t suggest that pregnancy restrictions are violating the woman’s “liberty”. Instead, it suggests that rape violates the woman’s “liberty” – something everyone agrees with!

If you find yourself hooked to another person without your consent (and there is no replacement for you, and no machine to take your place) then the crime is on whomever hooked you up in the first place.

[Don Nico]

I think that you hit the nail on the head with the focus on consent. Without a serious prior discussion about the requirements of consent, the so-called hypothetical is just trolling

[JasonT20]

This is why I suggested above that this aspect of the hypothetical be removed. It doesn’t matter how or why the person was hooked up to the other person that needed the use of his kidneys. The ethical and legal question to be answered is entirely over whether someone can be required to take on those physical burdens and risks to benefit someone else against their will at that time. If it is the needs of the person that would die without this intervention that would be the limiting factor on the donor’s freedom, then it shouldn’t matter whether the donor making these sacrifices is responsible for the circumstances leading to that need or not.

Are you willing to make an exception for cases of rape or not? What about cases where a couple did use contraception, but it failed? If the answer is no, then you don’t think that responsibility matters, and it is a red herring to even mention it. If the answer is yes, then you are compromising on the belief that we are talking about an innocent human life with a right to live equal to that of a baby or any other person.

[Josh R]

It doesn’t matter how or why the person was hooked up to the other person

Under that assumption, shouldn’t it also not matter whether the pregnancy resulted from a rape or failed contraception?

[Roman Moroni]

I think the point is, if you are making the argument that hinges on recklessness in order to weigh the rights of the fetus over the rights of the mother, then you are conceding that the DEGREE of recklessness must matter. Protected sex over unprotected sex must now be a consideration if you’re going with this principle.

If not, and your only standard is the known possible outcome of a chosen activity, then why make an exception for rape? Getting raped is a known possible outcome of leaving the house. Killing someone is the known possible outcome of driving, no matter how careful you are. But that doesn’t seem to be a great overall philosophy, so maybe best to admit that absolute moral culpability isn’t really your concern, in which case it becomes a straight up question of competing rights.

[Leo Marvin]

This

[Armchair Lawyer]

Rape…yes.
Failed contraception…no.

[JasonT20]

Rape…yes.
Failed contraception…no.

Why? Why does the issue of consent to having had sex matter? That is our point here. If the state interest is only about the ‘unborn’ life, then consent is irrelevant.

[Josh R]

Firstly, we have yet another example of someone using the term “human life” to mean “person,” which clouds the debate.

Secondly, the analogy seems inapt to me because in the case of abortion, with the exception of rape, the woman hooked herself up to the other person.

[Don Nico]

Josh,
I agree with your first point. The matter of human life is obvious except to ideologues. That is a matter of genetics and trivial biology; the fetus is alive by all definitions of life.
Legal personhood is an entirely different and separate matter.

[M L]

I agree with your second point. Can you elaborate on the first?

“Person” means an entity that has legal rights. The core of the abortion debate is whether unborn humans should have any legal rights at all or be legally protected, i.e., whether they should be considered persons. Agree?

Here, Post’s argument seems to accept, for the sake of argument, that an unborn human is not just a human life, but a human life that merits some degree of moral value such that it should be legally protected like other human lives. This is implied because the fetus is analogized to an adult person, and presumably it would not be OK for you in the hypothetical to get up from the hospital bed and slit the other patient’s throat. Thus the premise is accepted that an unborn human should not be treated as a wholly lesser category of human life, as people have sometimes been categorized throughout history according to disabilities or skin color or other physical characteristics, to the point that such human life would be treated as property or could even be terminated or disposed of at any time for convenience or for any reason or no reason. Your criticism if I understand correctly is that Post sort of conflated accepting that it is a “human life” with accepting this larger premise for the sake of argument, when it could have been made more explicit, such as by stipulating that it’s not just a human life but a person. Do I have that right?

[Josh R]

I think Post got lazy in using “human life” instead of “person.” But yes, the point of the post was to persuade you that abortion should be permitted even if the fetus is a person. I wasn’t persuaded.

The core of the abortion debate is whether unborn humans should have any legal rights at all.

Close, but not quite. I think the core is whether the fetus should be considered the equivalent of a person (it’s possible for the fetus to have lesser rights than a person rather no rights at all). If so, then abortion (and embryonic stem-cell research and the destroying of unused embryos in IVF) not only should be proscribed, the woman (and the researcher and IVF technician) all must be charged with first-degree murder. All of those outcomes strike me as absurd, and thus I conclude 1) the fetus (and embryo) aren’t persons, and 2) the liberty right of a woman (and the societal benefit of stem-cell research and liberty right of a woman who want to conceive through IVF) takes precedence, at least early in the pregnancy.

[M L]

” the woman . . . must be charged with first-degree murder”

That’s a bit rigid and formalist for my tastes. The unborn is a living human being. The moral case that he or she deserves some consideration is compelling and even undeniable, in my opinion. And in this case, something is better than nothing.

There is a wide gulf between “the woman must be charged with first-degree murder” and the position that the unborn can be killed for any or no reason . . .even just for fun! Oh and let’s have this be a sanctioned medical practice and a heavily subsidized billion dollar industry.

You seem to admit there’s more gray area than you’d like when you say “at least early in the pregnancy.”

[Josh R]

If the unborn is not a person, then we have to weigh its interest against those of the woman. In early pregnancy, it’s an easy call that her liberty rights win out. Very late in pregnancy, it’s an easy call they don’t except in extreme circumstances such as permanent damage to her health.

Do you agree the unborn isn’t a person?

[M L]

An unborn human is not a person, as a matter of law.

I think they should be, though.

[Josh R]

OK. But then the woman must be charged as a first-degree murderer.

[M L]

Well I guess it depends on the particular provisions of law or legal purposes for which they are considered “persons.”

As a general normative matter, I reckon they should be persons in the sense of having at least some modicum of legal rights.

[JasonT20]

As a general normative matter, I reckon they should be persons in the sense of having at least some modicum of legal rights.

You’re trying to have it both ways. If the unborn are not persons, as a matter of law, then they have no rights to impose limitations on the liberty of those that are persons. We don’t acknowledge any rights for non-human animals, even ones that have considerable intelligence and may have some degree of sentience, like apes, cetaceans (porpoises and whales), elephants, and canines. Any penalties for animal cruelty or to further conservation of those species are because most people have a moral disapproval of harming or destroying animal life when it isn’t necessary. But our laws against animal cruelty are completely irrelevant to hunting, meat production, the making of leather products, animal testing (which includes commercial products, not just for medicine), and so on.

We could outlaw all of those activities without imposing restrictions on people’s liberties anywhere near as serious as imposing pregnancy on an unwilling woman. (Except perhaps eating meat, but since there are alternatives to eating cows and pigs to obtain the nutrition that beef and pork provide, it still wouldn’t be as much of an imposition as pregnancy.) The only reason we don’t outlaw those things is because there isn’t a majority that would want to. There is no constitutional right that would block such laws. You might make a case for a constitutional right to hunt for food for people that live in remote places, but that’s about it, I would say.

So, the moral or normative reasoning that you propose to grant some rights to a pre-viable human in a woman’s womb, but not personhood, is insufficient in my mind to permit overriding a woman’s right to not be pregnant if she doesn’t want to be. It seems to me that you have a moral intuition that makes you feel that abortion is wrong at least some of the time. (I think that most of those that agree with at least some restrictions on abortion, even some that say that they are pro-life, feel the same way. It is the absolutists that insist that an early abortion, and even birth control that they think could prevent implantation, is equivalent to murdering a baby.)

I can respect that belief, even if I don’t share it. But I would still argue that this kind of moral feeling is insufficient to legally restrict abortion, as I just laid out.

[M L]

“The only reason we don’t outlaw those things is because there isn’t a majority that would want to. There is no constitutional right that would block such laws. ”

You’ve got this all backwards and need to reconsider the Constitution. Constitutional rights were supposed to be unnecessary and truisms in a way, because the General Government was never empowered in the first place to do the things that the bill of rights prohibits them from doing.

[not guilty]

Where a woman procures her own abortion, the nature of that act is necessarily intentional, premeditated and deliberate. If the fetus were a person, what penalty would you impose, M L?

[M L]

I’m a pragmatic person. I would support a level of criminal liability that is politically possible, and represents a compromise with those who think that this particular category of living human being should be deemed less than others. “Less than” includes a vast spectrum between all or nothing.

I could imagine some time in the future when killing an unborn human is seen as equivalent to killing a born human. Perhaps when greater “birth control” technology all but removes the practical difficulty (history shows that there is no limit to the immoralities people will support when it’s seen as economically beneficial or otherwise necessary to their own interests, and only denounce these things when it becomes convenient) and when there is greater widespread understanding of human life scientifically (many people are still laboring under distortions like “it’s just a clump of cells,” some of them genuinely so, presumably). The crucial part though is increased moral respect for human life, which history shows may wax and wane. Instead of greater respect and protection for human life, we could easily develop less. The point at which a human life can be terminated for convenience could expand rather than contract, and post-birth infants might be aborted as some thinkers (e.g. Peter Singer) espouse. Individuals with disabilities might be euthanized and this would be seen as compassion. Euthanasia might become a more widely permitted, viable, subsidized, and socially accepted option, in which case folks who are elderly and/or sick will be pressured to take that route for financial and other reasons even by their own family.

[JasonT20]

…many people are still laboring under distortions like “it’s just a clump of cells,” some of them genuinely so, presumably.

Well, that is literally the case at the time of implantation in the uterus. I don’t see it as distorting things at all to recognize that fact and consider it as part of the legal debate over abortion.

The crucial part though is increased moral respect for human life, which history shows may wax and wane. Instead of greater respect and protection for human life, we could easily develop less. The point at which a human life can be terminated for convenience could expand rather than contract, and post-birth infants might be aborted as some thinkers (e.g. Peter Singer) espouse.

That’s a bit of a slippery slope argument that isn’t justified, I think. There is no significant or foreseeable risk for a majority in western societies to think like Peter Singer. A live birth is very firmly established as a legal person with completely independent rights. Wanting to expand rights to a point earlier than viability is what would be a significant change over the status quo of the last 50 years. Wanting to move the Overton window on the moral question of human rights to include pre-viable humans is a cultural question outside the power of government, in my opinion. And to actually impose that view and require an unwilling woman to remain pregnant is not constitutional either, also in my opinion.

[M L]

“Well, that is literally the case at the time of implantation in the uterus. I don’t see it as distorting things at all to recognize that fact and consider it as part of the legal debate over abortion.”

It is a clump of cells, like you are a clump of cells, but not like the phlegm that you hawked onto the sidewalk is a clump of cells. In other words, it’s not just a clump of cells.

“There is no significant or foreseeable risk for a majority in western societies to think like Peter Singer.”

Sure. So stuff that defined the 20th century can never happen again, in the 21st and ever after? And currently goes on in many places? I hope you’re right but I don’t see why that’s necessarily so and it seems dangerous to assume.

“the moral question of human rights to include pre-viable humans is a cultural question outside the power of government, in my opinion”

Your opinion is nothing but a fleeting cultural artifact, as is any state of affairs regarding the powers of government.

[Aubrey LaVentana]

at the risk of continuing to fight the hypothetical, the hypothetical needs to be revised.

The issue of Federal courts prohibiting States from enforcing their laws needs to be introduced.

[Roman Moroni]

I think that’s implied in the hypothetical. But I suppose he could have added the question, do federal courts have the power to profited the states from passing a law mandating that you stay hooked up to this other person against your will? Does the umbrella of constitutional liberty provide you the right to walk away from a 9 month medical procedure, even if you know doing so will end someone’s life?

[Aubrey LaVentana]

“A willingness to compromise or do argumentative dances to get around those inconsistencies make their belief seem disingenuous and more about moral disapproval of sexual freedom and an insistence of living with the “consequences” of their choices than about the developing life at the heart of the issue.”

I used to believe this. I no longer do.

[bevis the lumberjack]

Yeah I’ll call bullshit on that too. That line of thinking is just another example of pushing assumed views on your evil political opponents.

I know a decent amount of pro-life people and almost 100% of them are women. It’s all about the baby/child/(insert your word here). There is zero punitive thought involved.

[JasonT20]

I know a decent amount of pro-life people and almost 100% of them are women.

Your personal anecdote, even if I don’t “call bullshit” on it, doesn’t represent the reality of pro-life politicians or the pro-life movement more generally, quite obviously.

And I did say that it makes their belief “seem disingenuous”, so I do grant the possibility of sincerity of belief in the value of the developing life. Or, what is more likely, that they simply are trying to deal with cognitive dissonance. That is, they want to believe that abortion is equivalent to killing a baby, but they also don’t feel okay with it being punished with the same severity. Hence, compromise and other efforts to resolve the cognitive dissonance.

[bevis the lumberjack]

Politicians? Pro-life politicians are passionately opposed to abortion. That’s why so many of them have been found to have bought one for their mistresses.

Politicians don’t believe in anything except figuring out what they need to say to stay in power.

There’s no cognitive dissonance. It’s really really simple. A huge portion of the pro life people honestly believe that abortion terminates a human life. Scientifically they are correct. Some of them (mostly the religious ones, e.g. the Catholics) take the simple position that all life is sacred and extend their opposition to abortion to opposition to the death penalty.

No offense intended, but you should talk to your opponents more often.

[JasonT20]

There’s no cognitive dissonance. It’s really really simple. A huge portion of the pro life people honestly believe that abortion terminates a human life. Scientifically they are correct.

The question isn’t whether it is a human life, but a person with a right to life that can override a woman’s choice on whether to be pregnant. If they believe it is equal to murdering a baby, as most claim to do, then how is there not a contradiction in what punishments they are willing to advocate for? Is it that they actually don’t see it as equal to murder, but some lesser crime? That would indicate that they don’t view the fetus as equal to a born person. Or is it that they really do view it as equal to murder, but recognize that they are in a substantial minority with that view and couldn’t ever get a legislative majority to go along with having abortion punished with 25 years to life in prison?

Remember when Trump said in a debate in 2016 that he thought there should be some punishment for a woman that had an abortion, and all kinds of pro-lifers were like – Shhh! Don’t say that! – ? Jeanne Mancini, president of the March for Life Education and Defense Fund, said, “No pro-lifer would ever want to punish a woman who has chosen abortion. This is against the very nature of what we are about.”

Some of them (mostly the religious ones, e.g. the Catholics) take the simple position that all life is sacred and extend their opposition to abortion to opposition to the death penalty.

And they have the right of religious freedom to believe that. But they do not have the right or power to impose their religious beliefs on others.

Oh, and Scalia, devout Catholic that he was, was stridently on the side of the death penalty. Pope John Paul II and Pope Francis speaking out against the death penalty certainly didn’t sway him.

[JJJSSS]

I know almost no pro-life people who aren’t punitive.

Oh, they don’t think they’re punitive. But they’re typically not very interested in- and in fact often quite opposed to- measures that would prevent pregnancy in the general population, like comprehensive sex ed, free, readily available, and easily accessible birth control, or the morning after pill (which contrary to what was a popular belief, acts by preventing the release of an egg rather than preventing implantation).

[JasonT20]

But they’re typically not very interested in- and in fact often quite opposed to- measures that would prevent pregnancy in the general population…

Yes. The best way to reduce abortion would be to reduce unwanted pregnancy. But then “comprehensive sex ed, free, readily available, and easily accessible birth control” would allow women to have consequence-free sex. Can’t have that.

[Harvey Mosley]

I’m all in favor. In fact, I think girls 13 years old and older should be administered Depo-Provera in public schools without a policy to opt out.

[Randal]

There are A LOT of comments here taking the punitive approach. Very very few, on the other hand, take the pro-life position on the hypothetical and say yeah, you have a duty to stay hooked up. I saw just one. How do you explain that?

It’s very difficult to see how you can be pro-life, but not support a law like the hypothetical, or even forced organ donations, without going down the path of “the woman brought it on herself.” Can you explain how?

Women are quite capable of slut-shaming by the way.

[Queen Amalthea]

It’s an interesting hypothetical, but ultimately pointless. The white straight guys commenting here anti-abortion just want to make ‘sluts’ pay for their sex. They certainly don’t care about ‘babies’ in any other aspect.

[Queen Amalthea]

Look at how many ‘pro-life’ commenters here come down to: ‘well, the woman had sex, so she has to face the consequences.’ It’s like these people write the horror films where the women who have sex have to be killed.

In any other debate, say on war or self defense, these same people show they hold life very cheaply. They’re just misogynists, they want to see women pay for having sex (see Limbaugh and the Fluke thing). Likely, they’ve had bad experiences with women and sex and the idea of a liberated woman’s sexuality is emasculating.

[Randal]

Yes 100%. It really sad and obvious reading these comments.

[Queen Amalthea]

Remember too that the same pro-life commenters are of course the ones who think incredibly minor things like wearing a mask or getting a shot are equivalent to Nazi final solutions. If they faced the prospects of 9 months pregnancy this wouldn’t be an issue at all. But FYIGM is a central tenet of conservatism these days.

[DSC]

Not all of them. Likely not even most of them. This is guilt by association fallacy at its finest.

[bevis the lumberjack]

He can’t help it. Generalizing negatively about your political opponents is a hallmark of people who are consumed by politics. Left, right, it’s what they do.

[Life of Brian]

The white straight guys commenting here

Queenie, I’m supremely comfortable that you’re about the only one on the face of the planet carrying around a hammer so large and so monochromatic so as to make you sum up the abortion debate as a sexual orientation issue. Thanks for an extra-large belly laugh today.

[Harvey Mosley]

I disagree with your assumption. But since you feel this way I’m sure that you are against making men pay child support. After all its just a way to make the ‘sleaze balls’ pay for their sex, right?

[Randal]

Women also have to pay child support.

There will be some interesting cases that come up in the wake if Dobbs. Can the woman who the government forces to be pregnant claim those nine months as a taking? Surely her time is valuable. Use the market rate for surrogate mothers.

[VinniUSMC]

Can the woman who the government forces to be pregnant claim those nine months as a taking?

The government forcibly impregnates women?! That should be a much bigger headline.

[ducksalad]

It’s not that hard to defend this hypothetical law if you frame the same facts differently.

1. You caused, through negligence, a horrible accident in which a person lost both kidneys.
2. If they die, it’s negligent homicide, and you will face a prison sentence of 4 to 10 years in the state penitentiary.
3. The transplant waiting is long and there are no willing donors. But it so happens you are compatible to either give up a kidney, or if you want to keep the kidney, to temporarily hook-up for 9 months.
4. You have absolute liberty to take or not take Option 3. In fact, most people who negligently cause a car crash wouldn’t even have Option 3! It’s wonderful to have choices.

——–

I’m pro-choice at least for early pregnancy, but these attempts to say “even it’s a full-blown human child with full constitutional rights, we still win!” usually fail, and there’s a good reason actual litigators in these cases don’t try to argue that. Because in normal life we rarely permit someone to have a discretionary, unquestionable right to take another life at any time of their choosing. It does in fact all boil down to when you think the right to life begins to attach.

[Diderot1713]

But a person is under no obligation to give a kidney or bone marrow to another person, even supposing (in the specific circumstances) without that gift, the needy person will die. The refusal to give the organ causes the death of the other person (in the sense of but-for causation). There may be an ethical lapse here, but there is no legal culpability. Wouldn’t it be possible to look at the case of the pregnant woman as closer to this – if one assumes that the fetus is a person?

[Lee Moore]

I think you are assuming your conclusion. Yes there is no legal duty to give a kidney to a person who would otherwise die, but that doesn’t mean that Mississippi, or even Vermont, couldn’t write such a law tomorrow morning.

The question then becomes whether and to what extent that law is constitutional.

[JasonT20]

That shouldn’t be a hard question for an originalist. We already do not put any legal responsibility on people to put themselves at physical risk for the benefit of another person. As far as I know, no one is ever legally required to run into the proverbial burning building, for instance, in order to save someone. The most you can ever be legally required to do is to seek other assistance, such as by calling 911. To put such a large imposition on someone’s physical autonomy when that has never been done before would be pretty contrary to any originalist interpretation of the Constitution as well as any other reasonable theory of constitutional law.

[Lee Moore]

Welcome back after your long sleep, Sleeping Beauty. You may want to google “Covid”. Once you’ve worked out what google is.

But “We already do not put any legal responsibility on people…” still misses the point. The question you are trying to answer is – where does it say in the Constitution that we couldn’t ?

[Lee Moore]

would be pretty contrary to any originalist interpretation of the Constitution

And particularly if you are going to award merit badges, or demerit badges, to “originalist” Constitutional interpretations – you gotta start with some text. Originalism is not a hand waving method of interpretation. It requires some actual text to work with.

[not guilty]

The liberty protected by the Fourteenth Amendment due process clause is an incident of personhood. A zygote/embryo/fetus is alive, but it is not a person. A tadpole is alive, but it is not a frog.

[MatthewSlyfield]

“A tadpole is alive, but it is not a frog.”

Genetically, yes, it is.

[Lee Moore]

Not merely genetically. A tadpole is simply the larval phase of a frog’s life.

“Tadpole” is to “Frog” as

“Toddler” is to “Human”

[Armchair Lawyer]

Let’s look at this a different way though.

According to David Post, being forced to carry a child is a horrible infringement on your liberty. OK, we can accept that. Can we put a dollar value on that infringement?

That’s tricky. But, perhaps one way to do so would be to look at the rate someone would get if they were paid to be pregnant. Surrogacy is a real thing. The going rate to be a surrogate (and the resulting infringement on your liberty, in exchange for monetary compensation) is ~$50,000. (There’s a decent range here).

Let’s look at the other side of the coin here. Child Support can be looked as an infringement on a parent’s liberty. They are being legally “forced” to support a child. The cost, is on average ~$5000 a year for 21 years. Or $110,000.

So, here’s the question. If you can infringe on someone’s liberty by forcing them to pay $110,000 for an action, can you alternatively force them to engage in a legal activity that would be reimbursed normally at 50% of that cost?

[Queen Amalthea]

Notice what’s going on here. It’s regular practice. The argument is ‘there’s an equivalent government forced thing, so this thing is ok.’ This is the heart of modern ‘libertarianism.’ It’s just a fig leaf for run of the mill conservatism.

[sparkstable]

So you support allowing a father to say “Accident!” or even simply “Unwanted!” and be legally shielded, by envocation of liberty and due process, from paying child support?

[Aubrey LaVentana]

Or does the Queen reject the notion that a man should be compelled by the courts to pay for the upbringing of such a child, after a paternity test has proved he’s not the father?

J Norton 2, that is involuntary servitude.

[JasonT20]

Child support is a bit of a red herring. A single mother will have her earning potential limited for at least some time after the baby is born, and then in order to work and support herself, as well as the child, there would be the cost of child care. Perhaps once the child is old enough to no longer need any kind of supervision while the mother is working, you could justify the father no longer having to pay any kind of support. The whole idea of child support was to make sure that a man wouldn’t leave a woman struggling to care for an unexpected child they both created.

If you want to say, “She had the option to have an abortion, therefore the man shouldn’t have to pay anything if he doesn’t want to,” then maybe that would be enough for men currently pro-life to change their minds and become pro-choice. Maybe propose that and see if it flies.

[Life of Brian]

The whole idea of child support was to make sure that a man wouldn’t leave a woman struggling to care for an unexpected child they both created.

You may have overlooked the end of Aubrey’s question: “after a paternity test has proved he’s not the father?”

[Armchair Lawyer]

“Child support is a bit of a red herring. A single mother will have her earning potential limited for at least some time after the baby is born, and then in order to work and support herself, as well as the child, there would be the cost of child care.”

This assumes she continues to raise the child, as opposed to having the child adopted. In which case, none of these conditions apply.

[WPHDM]

INVOLUNTARY PAYFATHERHOOD: WHAT RED HERRING?

That’s already been decided in favor of the out-of-wedlock child being entitled to support, just like marital children: on equal protection grounds.

The legal status of illegitimacy is, like race or national origin, a characteristic beyond an individual’s control, and it bears no relation to the individual’s ability to participate in and contribute to society. Mathews v. Lucas, 427 U.S. 495, 505, 96 S.Ct. 2755, 2762, 49 L.Ed.2d 651 (1976); Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973) (state law denying right of paternal support to illegitimate children while granting right to legitimate children violates equal protection).

That said, that other equal protection issue – discrimination on account of sex with respect to baby mother and baby father remails. Unlike fetus mother through legal abortion, fetus father has no way to unilaterally shed parental responsibility. That would of course run counter to the child’s right to support (state-enforced against unwilling father) which serves a significant state interest in that it shifts the cost of raising children from the public fisc (“welfare”) to bio dads. At least in part.

Also note that a paternity and child support action may be instituted before the birth of the child in question, at least in Texas. Tex. Fam. Code Sec. 160.611, captioned PROCEEDINGS BEFORE BIRTH.

BUT SEE THE FOLLOWING LIMITATION:

Sec. 160.502. ORDER FOR TESTING.
(a) Except as otherwise provided by this subchapter and by Subchapter G, a court shall order a child and other designated individuals to submit to genetic testing if the request is made by a party to a proceeding to determine parentage.

(b) If a request for genetic testing of a child is made before the birth of the child, the court or support enforcement agency may not order in utero testing.

(c) If two or more men are subject to court-ordered genetic testing, the testing may be ordered concurrently or sequentially.

[not guilty]

Purely economic regulations, such as child support obligations, do not impinge upon fundamental rights.

[Toranth]

You don’t think the right to property is a fundamental right?

[not guilty]

What I think doesn´t matter. The courts typically do not recognize rights to property as fundamental.

[WPHDM]

That is nonsense, at least in Texas, where the state constitution prohibits imprisonment for debt (Art. I, Sec. 18.), but child support is excepted because it is deemed not debt, but a legal obligation.

PAYFATHERHOOD CON’T

The Texas Constitution prohibits a trial court from confining a person under its contempt powers as a means of enforcing a judgment for debt. TEX. CONST. art. I, § 18 (“No person shall ever be imprisoned for debt.”). On the other hand, a child support obligation and attorney’s fees related to a child support enforcement proceeding are viewed as a legal duty and are not considered a debt. In re Henry, 154 S.W.3d 594, 596 (Tex. 2005) (orig.proceeding) (per curiam); see also Ex parte Helms, 152 Tex. 480, 259 S.W.2d 184, 189 (1953) (“The attorney’s fee is but a part of the procedural remedy for enforcing substantive rights and the fee allowed as well as other costs in the proceeding is incidental to and a part of the payments necessary for the support of the minors.” (emphasis added)). Therefore, a trial court may use its contempt power as set forth in Chapter 157—including the possibilities of confinement, garnishment of wages, and suspension of the obligor’s driver’s license—to ensure that child support obligors pay overdue child support. See TEX. FAM.CODE §§ 158.0051, 232.003; In re Henry, 154 S.W.3d at 596.

SOURCE: Tucker v. Thomas, 419 SW 3d 292 (Tex. 2013).

[Armchair Lawyer]

Let’s add onto this…

Medical science is quickly advancing. Let’s hypothesize that it became possible to remove an embryo or fetus from a woman, and were able to safely implant the embryo/fetus in a willing surrogate.

Ethically speaking, if the woman wanted an abortion, could the law mandate that any proposed abortion would require instead removal of the embryo/fetus from the woman, and implantation in a surrogate? Furthermore, the woman who wanted the abortion would be charged the cost of such a procedure to implant the unborn child in a new surrogate? Ethically speaking, would this be unreasonable? Why, especially when compared to the fiscal costs of child support we are already willing to place on a parent?

[Toranth]

Artificial wombs are already a thing used on animals – sufficiently developed fetuses can be brought to term safely in an external device. And if it works for sheep, cattle, dogs, etc, then it would almost certainly work for humans.

As you point out, if the choice is “give up to adoption” and the cost is just paying for the transfer to another surrogate host or machine, is it still moral and ethical to kill the human instead?

[Armchair Lawyer]

Indeed. These questions will be major ethical issues in the years ahead.

[JJJSSS]

You’d think that anti-abortion folks would be providing massive funding for just such a thing, wouldn’t you? Like, imagine how much money the Catholic Church could devote if they really wanted to eliminate abortion once and for all!

[Lee Moore]

There’s already an analogous situation with IVF.

1. The early embryo is alive and well outside the uterus, and
2. then gets implanted in the uterus
3. and then pops out

So there’s a time (time 1) when it’s not ready to be born, but it can survive outside the uterus.

This adds a twist to the abortion debate. The Judith Jarvis Thomson hypo has been criticised for providing an argument in favor of abortion rights in the case of rape, but not in the normal case.

In the normal case, where a woman gets pregnant as a result of voluntary sexual intercourse, the JJT argument is obviously weaker, because of the mother’s implicit consent.

But in the IVF case, it’s even weaker because the mother has explicitly consented to the crittur’s camping in her uterus.
Moreover, the mother’s explicit consent makes it very hard to argue that she should be allowed change her mind. Because the embryo has entered a period of vulnerability (time 2) and if she had not volunteered, it would have been possible to find a different, more reliable volunteer.

Since we’re doing analogies, let’s imagine two ships finding a shipwrecked mariner floating in mid ocean on a shaky raft. Ship A says “Sure, we’ll rescue you. We’re heading for Tokyo.” Ship B says “Sure, we’ll rescue you, We’re heading for take you to San Francisco.”

There’s a very stromg implied commitment to take the mariner all the way. Not to change their mind in mid ocean and chuck him overboard. And even more so because the mariner could have chosen the other ship.

[WPHDM]

ANALOGY FAIL: DIFFERENT SORT’A HOOK-UP

Dialysis is a substitute for a person’s failed/nonfunctioning/damaged kidneys (both, since 1 would normally suffice) and cleans the patient’s *own* blood. That’s why it’s called renal replacement therapy. No hooking up to another person’s circulatory system. And blood transfusions in actue situations come from the blood bank.

Also, the patient doesn’t stay hooked to the machine continuously, but will typically undergo treatment two or more times a week in a dialysis center. Patients will die if treatment is stopped, but many are well enough to lead normal lives with dialysis on a regular schedule.

Additionally, availability of a replacement kidney cannot be predicted (unless the patient has their own live matching donor, such as a family member) because it will depend on many factors, including number of traffic accidents and shootings that result in donations of usable kidneys (supply), donor-recipient compatibility to minimise risks of rejection, and a patient’s position/ranking on the waiting list. A person who experienced kidney failure and is on dialysis may remain on it for years before being offered a kidney for transplantation.

[Mark Leen]

Of course it is an infringemwnt on your “liberty” (broadly defined as doing what you want), but what does that prove? Taking your money to pay damages infringes on your liberty. Making you take a vaccine that changes your body forever infringes on your liberty. The common law rule that once you start providing aid in a manner others rely on, you have to continue to do so infringes your liberty. Forcing a parent to care for children on pain of potential incarceration for abuse/neglect infringes on your liberty. Making suicide illegal infringes on your liberty. Moreover, the states have deemed themselves fit to regulate abortion from before the Fourteenth Amendment. So, your definition of liberty may not be the most salient one.

[Aubrey LaVentana]

“(unless the patient has their own live matching donor, such as a family member)” Many grandparents opt to raise the unwanted children of their own children. Either formally, through adoption, or informally.

I hear that governments aren’t very helpful in adoption placement either. Isn’t our own suing a Catholic adoption agency because, umm, they’re Catholic and won’t place kids into families that ignore Catholic values?

“(supply)” Governments typically interfere in a free market for donated organs and tissues. PSAs encouraging donors isn’t quite the same.

[Life of Brian]

DIFFERENT SORT’A HOOK-UP

Well played.

[DSC]

There are more than a few problems with this analogy. First, as has been amply pointed out, pregnancy is not analogous because pregnancy is a natural and predicted consequence of unprotected sex. Second, abortion is not simply unhooking someone. It is killing. At best, it is more like throwing someone overboard in the middle of the ocean. At worst, it is slitting their throat before shoving them overboard.

Third, the analogy falls apart when considering current legal precedents. Under current law, if you don’t get an abortion before viability, you have an obligation to carry the pregnancy to term. Inducing labor or getting a c-section early would be tortious in almost every case and likely criminal. So under current law, there is a point where you’re not permitted to disconnect the tubes so to speak.

[sparkstable]

You make an interesting point. A critical distinction between the hypothetical and abortion is the means of terminating the hook-up.

What if we alter the hypothetical thusly. You decide you no longer want to be hooked up. Instead of disconnecting the machine and letting the person drift off I to death… you crush their skull and dismember them. Once done, you vacuum up the body parts and discard them. Now you walk out of the hospital. In what psycho world would we say that isn’t murder… EVEN IF we accept that you could have simply unhooked the machine instead?

[Diderot1713]

But this isn’t fully convincing. You had the option of disconnecting the machine and letting the person die naturally. Could you just cut the placenta while the fetus is inside the uterus and let the fetus die naturally? (This is a serious question: I don’t know about these medical aspects. Does someone know?)

[Illocust]

I think that would be the equivalent of cutting the oxygen from a comatose patient, but not removing the tube from their throat, so they suffocate on the tube. You’d need to induce birth, so the kid could live or die in a place where they could actually breathe air if capable.

[Lee Moore]

Cutting the placenta would be an assault on the fetus, as the placenta is part of the fetus’s body, not the mother’s. If you wanted to surgically disconnect without an assault on the fetus, you would to dig into the maternal endometrium. Which would be quite dangerous.

Abortion methods that do not rely on direct physical or surgical assaults on the fetus include things like progesterone blockers, which affect the maternal endometrium.

[J Norton 2]

For those of you who would permit the government to mandate nine months of servitude, how would you handle the 13th Amendment? “Neither slavery nor involuntary servitude” shall exist in the United States, “except as a punishment for crime whereof the party shall have been duly convicted.”

I read this: No criminal conviction, not involuntary servitude.

[Aubrey LaVentana]

Gestation isn’t servitude. It’s gestation. There is no legal condition comparable to it, to such an extent that hypotheticals can’t grasp it.

[J Norton 2]

How is government-compelled gestation not servitude? A woman is being required to give her life and labor to the development of an outcome which she has the option to avoid.

Or, to return to the hypothetical that began this thread, how would being compelled to give the use of one’s kidneys to a car-crash victim not be involuntary servitude?

[Armchair Lawyer]

How is government-compelled child support not servitude? A parent is required to give his labor and earnings to the development of an outcome which they have the option to avoid.

[Randal]

Nobody thinks paying fines is servitude. The whole “but men have to pay child support so we’re even” trope is a bad look.

[Toranth]

Unless the “government” impregnated the woman against her will, it isn’t “government-compelled gestation”.
But if you are asking if anyone here supports the “government” going out and forcing women to become pregnant, I think you’ll find unsurprisingly little support for it.

[J Norton 2]

The 14th Amendment liberty interests of a woman are violated whether the government impregnates her or requires her to remain pregnant.

[Toranth]

Quite an assertion! Do you have any evidence to back it up?

[WPHDM]

What about sex-specific compulsory military service aka the draft?

[J Norton 2]

This was resolved in Rostker v Goldberg, 453 U.S. 57 (1981).

[Harvey Mosley]

So? The current question is likely to be resolved by Dobbs.

[J Norton 2]

The draft is in the Constitution. Article I, Section 8, paragraph 12.

[M L]

Some people think that abortion is a heinous crime, morally tantamount to some kind of lesser form of homicide if not murder, and eerily similar to historical debates about slavery in its necessary “unpersoning” of living human beings who are deemed to be less than.

Others think abortion is an important right of personal bodily autonomy, and that for a government to infringe upon that right by outlawing abortion is an outrageous act of tyranny.

There’s really no getting around the issue. Regardless of which side is right and which side is wrong, the reality is that one side is going to force its viewpoint on the other side at gunpoint within some scale of jurisdiction. The only variable question is how much do you want to force the rule that you believe to be right upon a maximal number of people by maximalist use of government force that is as centralized and reaching over as great an area as possible — versus, how much are you willing to be truly tolerant and allow neighboring communities or states to chart their own course while standing firm for the principle you believe to be correct being upheld in your own community at whatever level of localization. It’s the same with other issues. Both the left and right are susceptible to the impulse to force their view nationally and even internationally when they think they can, when allowing local decisions would have been a perfectly viable alternative and is the truly tolerant position. But consistency is hard.

[not guilty]

The right to choose abortion has been recognized as fundamental for almost 50 years. Who is enforcing that right at gunpoint? Please be specific.

[Randal]

It would be easier to believe this if you were also willing to let go of the constitutional rights that you like. But no, I’m sure you have reasons for why those are important but this one isn’t. Consistency is, indeed, hard.

[Jimmy the Dane]

The problem here is I don’t think that fact pattern is even medically possible let alone having even a remote chance of happening. Making shit up to try to scare people into accepting your underlying proposition is just plain dishonest argumentation. Sure a law professor can do better than this….?

[Bubba Jones]

I think it reveals a lack of empathy. He just cannot see the other side of the argument.

He is trying to force his debate opponent to accept a utilitarian view of killing people.

[Toranth]

I was ignoring that, because all analogies are bad, but yea, this is patently absurd – it really reveals more about how little Post understands about human physiology than anything all. Honestly, it’s so bad, I find it pretty funny. I mean, just imagine what it would look like!

Really, it’s like him stating a hypothetical about someone hacking your silverware and preventing you from eating.

[Goju]

The underlying problem with hypotheticals is the ability of the creator to craft it so that no matter what choices are offered – only the creator’s will suffice to fill all the requirements.

The solution here is obvious. Declare yourself to be a Sovereign Citizen free of all the illegal laws and agencies of the illegal State. Then claim immunity by virtue of such declarations, land simply refuse to be hooked up. Walk out of the hospital and go home and live a free life pursuing your own liberty and happiness.

[Flight-ER-Doc]

Perhaps if our system of justice required such eye for an eye justice, we would need less justice?

[Caphon]

Such a difficult issue. I thought Sotomayor’s questions and pressing was ultimately quite effective, and David’s hypothetical here quite good. Reading some of the better top line comments here responding to the hypothetical, I think they also are quite competent – unhook? Fine, but now prison sentence for manslaughter based on liability for putting your kidney-less compadre in that situation. The obligation to a stowaway on an airplane or boat also an interesting analogy.
I confess that I tend to err towards “labs of democracy” and states rights, but I can’t say I’m very confident what the right answer is. There are arguments on both sides that make me skeptical of their positions, but the _best_ arguments on either side are quite good.

[J Norton 2]

When the issue is one of religious and moral beliefs, the states are not really “laboratories of democracy.” More likely they are chess pieces in a culture war.

[WPHDM]

INTRA-NATIONAL ABORTION REGIME DIVERSITY

In the abortion context, a good argument for state-by-state approach rather than a national judicially-imposed womb-evacuattion policy is that folks can then self-select into the state-level regulatory regime that they prefer, thanks to internal freedom of movement. Let’s call it “Democracies in America” with nod to that erstwhile French visitor, rather than “states as laboratories”. After all, it has more to do with values, rather than effectiveness of alternative fetal-demising methods, and diversity in the distribution of values can then be reflected in divergent degrees of regulatory stricture imposed through the political branches. Policy regime selection by personal relocation is not as simple at the international stage due to immigration restriction, language barriers, cultural differences and many other issues.

And have thus contributed an impractical solution to the market place of ideas for the post-Roe era, let’s hasten to belabor the obvious:

PENIS ADMISSION PROTOCOL ADJUSTMENTS (“PAPA”)

Thanks to mass media hysteria and falling-sky invocations, Texans – both he and she — are now on notice of reduced availability of convenient home-town abortion-as-birth-control, and are free to adjust their contraceptive and mate-selection/selectivity behavior accordingly. Or flush the unappreciated product of (mis)conception with even greater dispatch after an “accident” notwithstanding the shift of the parameters governing the risk calculus.

[J Norton 2]

“Texans – both he and she — are now on notice of reduced availability of convenient home-town abortion-as-birth-control, and are free to adjust their contraceptive and mate-selection/selectivity behavior….”

But if the Thomas argument as he advanced it the Dobbs oral arguments is correct, and if we have only those constitutional rights listed in the constitution, the Griswold use of contraceptives is no longer protected from Texas, nor is the Loving v. Virginia right to select your sexual partner.

[M L]

What’s the difference between “laboratories of democracy” and “chess pieces in a culture war” ?

I’ll wait. Hint: there is none.

[WPHDM]

A political scientist might tell you that the idea of laboratories of democracy refers to real-life experimentation with different state and local-level public policy approaches to common problems, and the causal insights to be gained regarding what works and what not, and how well, and at what cost.
—> comparative policy studies, comparative method more generally.

Disease control and mitigation measures makes for a better candidate of the “What works” approach (at least in theory and before politicization) whereas abortion is primarily a normative issue. After all, the effectiveness of various approaches to killing and expelling or extracting fetuses is already well-established.

Sex ed and pregnancy prevention programs would be a better candidate for comparative evaluation as to effectiveness, but also involve values and convictions, which impose constraints on the range of public policy approaches and their political feasibility.

[M L]

Meh. It’s all normative and politicized. People are making a religion out of face masks and vaccines these days, among other things.

[mydisplayname]

Having read the post and the comments, four points seem clear to me:

1 – As a practical matter, an abortion exemption to manslaughter statutes has existed and always will exist. No prohibition against self-induced chemical abortion prior to some point — perhaps 13 or 14 weeks, around 28 days times 3 plus 15% — is actually enforceable (along the same line of reasoning Scalia used when striking certain buggery statutes). This is not “liberty” but instead is practicality.
2 – Pregnancy after the after the aforementioned 13 to 14 week time is a choice as irrevocable as the choice [if we use that term] made by a man to initiate pregnancy. We must remember that liberty is enjoyed equally by all: at present, a man has no liberty to force the abortion of (and thereby relieve himself of liability for) a child resulting from a pregnancy he initiated.
3 – If a national standard is indeed necessary (and it may or may not be), such a standard must consider the liberty and legal rights both of the mother and the child.
4 – The veil of ignorance must apply to considerations of mother & child rights. [An unconscious heroin addict arrives at the hospital, is given Naloxone, and recovers to become the most prolific serial killer ever known. Simultaneously, an unconscious heroin addict arrives at the hospital, is given Naloxone, and recovers to discover the cure for all human cancers. Should we give Naloxone to unconscious heroin addicts?]

————-

From above:

“[T]he fetus is alive by all definitions of life. Legal personhood is an entirely different and separate matter.”
“[I]n normal life we rarely permit someone to have a discretionary, unquestionable right to take another life at any time of their choosing.”
“I thought Justice Kavenaugh with his questioning made a very good point (to me, anyway). Abortion is a question to be decided by the people in their respective states; unelected federal judges must not be making these decisions. And the solutions by state will vary, because the values of the people vary state by state. […] [A]bortion has always been a 9th and 10th amendment issue. It mystifies me somewhat why one would think otherwise. The central question as I understand it is whether a state may prohibit abortions pre-viability. I believe that a state can prohibit abortions pre-viability under our constitutional framework. Whether a state should do that is a matter for the people of that state to decide.”
“Then provide the legal justification for why a man is required to provide child support – his sweat and blood – for 20 years, give or take? The response to this is frequently, “If you have sex, you have to be prepared to deal with the consequences.” If this applies to men, it also must apply to women.”
“I think we should all agree that a woman should never be forced to become pregnant when she doesn’t want to. It is making her remain pregnant that the anti-abortion position insists on taking.”
“Gestation isn’t servitude. It’s gestation.”
“[I]f the choice is ‘give up to adoption’ [after de-wombing] and the cost is just paying for the transfer to another surrogate host or machine, is it still moral and ethical to kill the human instead?”

[Greg J]

My initial posting on the Dobbs case [here] has generated more than the usual volume of commentary, and I want to respond to one thread running through many of the objections to my position that, briefly stated, a woman’s right to terminate her pregnancy is a component of the “liberty” protected under the Due Process Clause, which protects many personal, intimate, life-altering decisions (e.g, whom to marry, where to send one’s children to school, what church to attend, who to have sex with, etc.) from state interference.

1: whom to marry: See laws against incest, bigamy. See age of consent laws
2: what church to attend: That’s 1st Amendment, not some nebulous judge made up bullshit
3: where to send one’s children to school: Except teh State has every right to make sure that your children actually are being educated. And the State can arrest you for child abuse, abuse that is far less severe than an abortion
4: who to have sex with: See laws against incest, bigamy. See age of consent laws

Basically, what it comes down to is this “liberty interest” only actually appears when the left wants to push something about sex.

And the same people who fight like wildcats to get gov’t subsidized abortions, fight like rabid weasels against any sort of school choice that lets parents who aren’t well off get to decide where to actually send their children to school

And your analogy is stupidity on stilts. You don’t get pregnant in an “auto accident”, you get pregnant because you personally made a decision to have sex and risk getting pregnant. (Otherwise it’s rape.)

Are you an adult? Then you’re responsible for your actions, and their consequences. Killing the baby you created because he or she is inconvenient to you?

That’s not a legitimate response

[Jacoby 2]

A poor analogy, I think. The circumstance arises accidentally, and you are required to be physically immobilized for nine months hooked to a machine. Neither of these apply to the abortion question.

The need to concoct such a labored scenario, even if it held up, suggests it would be the exception that proved the rule.

[Greg J]

Let’s talk about “liberty interests”:

1: My right to refuse to cater “weddings” by same sex couples, while still catering real heterosexual weddings

2: My right to work for whatever wage I can negotiate, rather than not being allowed to work unless I’m paid at least a “minimum wage”.

3: My right to carry a gun with me at all times in public for my own self defense (since the police are not required to protect me)

4: My right to go out in civil society, and hold a job, without getting one of the shitty Covid shots

I could go on, but this is a good start. I thought Thomas dropped the ball with the PP lawyer. Which she spouted her “liberty” bullshit, he should have called her on it, and questioned her about exactly what “liberties” are protected by this emination from a penumbra.

So, David Post, where are the abortion supporters supporting all these other liberties, none of which involve killing innocent human beings?

(Note: Feel free to provide a chart of State Covid “vaccination” rates vs State Covid infection rates where there’s a negative linear relationship between the two. Until you can do that, you can not honestly claim that getting one of the Covid shots protects other people. And you can’t provide such a chart, at least not honestly)

[Rev. Arthur L. Kirkland]

Cranky, bigoted, disaffected clingers are among my favorite culture war casualties.

And the core target audience of a White, male, right-wing, faux libertarian blog.

[Greg J]

Pathetic loser unable to respond to any argument, other than with racism.

I’m so glad I’m not you

[Rev. Arthur L. Kirkland]

I’m so glad guys like me have been shoving American progress down the bigoted, whimpering throats of right-wing jerks like you for at least a half-century, with no end in sight.

You get to continue to whine, but you will continue to comply, clinger.

[Greg J]

“I’m so glad guys like me” have been sitting in there mommy’s basement’s wanking off to power trip fantasies.

FIFY

[F.D. Wolf]

Let me suggest a twist on your hypothetical that I believe is more analogous to pregnancy.

Let us say this woman is going to die. The doctors come to you and say they can keep her alive if you are physically connected to her, but the connection must last nine months. If the connection is severed before then, she will die instantly. You agree and are connected. But a month later, you change your mind and ask to be disconnected.

Should you be allowed to sever the connection?

[Bubba Jones]

What if the dying woman didn’t need your kidney until after you agreed to it? In other words, by agreeing to the procedure you eliminated all other options?

[Roman Moroni]

Well, what about adding even more specificity to your analogy. What if before hooking yourself up to the woman you insisted on having a contract that guarantees your right to unhook yourself at any time?

Is there any moral principle that says such a stipulation should be illegal? If not, then the basic premise that the man has no right to withdraw anytime after initial hookup seems flawed.

[F.D. Wolf]

You may be right. I wasn’t suggesting the hypothetical I posed had a correct, obvious answer.

[WPHDM]

How about a temporary injunction (which is what we call a preliminary one in Texas) to preserve the status quo (life being supported via the hookup) based on the theory of specific performance of the agreement. No adequate remedy if the person dies unless the order is entered and the 9-month promise enforced on pain of contempt of court.

[Bubba Jones]

No. You can’t kill another person to mitigate the unfortunate consequences of a mistake.

If this were an easy thing to do while under duress, we wouldn’t need laws about it.

If this is something you are worried about, use birth control. Piss on a stick after unprotected sex. Get an early abortion to take advantage of the fact that most people agree with your choice to have an abortion before 15 weeks.

And no. There shouldn’t be an exception for rape or incest. We don’t execute people for the crimes of their parents.

[Bubba Jones]

What if this dying woman didn’t need your kidney until after you agreed to it.

[Archibald Tuttle]

Analogies are a terrible method to determine morality. Principles, not analogies should prevail. But the law lives and breathes with analogies. That’s why law is a horribly blunt instrument for moral problems.

If you want a guide to the correct approach, read Hazlitt – The Foundations of Morality

[Titus PUllo]

Abortion is not mentioned in the Constitution, isn’t in the Bill of Rights or mentioned on the Declaration of Independence. The Federal govt has NO delegated power to rule on abortion. The States or people (through their legislatures) make the call. Or you can pass a constitutional amendment legalizing abortion. This isn’t hard. I lose more and more respect for CATO as the years go by…

[sparkstable]

I am avidly pro-life. However the “it isn’t in the Constitution” is a poor argument. Yes… in Roe the court twisted itself to magically “find” some never-before-seen alcove of hidden rights and declared the one they liked to be sacrosanct.

They could have done this much more easily and with much more honesty. They could have just read the 9th Amendment. A woman has a right to privacy, bodily autonomy, choices in medical care, etc… it is all right there in the 9th.

The issue is… rights have built in limits and those limitations are the existence of other people and their rights. If you are the active party… you can do what you want up to the point of imposing on someone else without their consent. The mother knowingly consented to the risk of getting pregnant (ignoring rape as that is a justifiable and obvious exception). She brought the baby into the situation, not the other way around. The child can not be trespassing when their existence was predicated on the mother putting them where they are. It is the mother who is acting at this point. And her bodily autonomy does not gramt her the license to kill another person… be it her unborn child, her child, her neighbor, or some 50 year old stranger.

[Lee Moore]

They could have just read the 9th Amendment. A woman has a right to privacy, bodily autonomy, choices in medical care, etc… it is all right there in the 9th.

I agree that if there is a constitutional right to abortion, it derives from the 9th, not elsewhere. The problem is the word “retained” in the 9th, which implies that the 9th protects rights that we have always had, or at the very least, had in 1791.

And abortion is a pretty weak candidate for such an alleged right, because of the long standing common law criminalisation of abortion. And the absence of writings indicating that there was such a right, or even arguing that there should be.

I am kind of the opposite to you. I have no problem at all with abortion, at least in the first trimester, but I don’t see any good argument that thete’s a constitutional right to it sitting in the 9th. Still less in the 14th.

[Randal]

The typical common law cut-off was around 18 weeks or so.

[Lee Moore]

Sure, but even that puts the kybosh on the theory that there’s a secret 9A constitutional right about protecting a woman’s bodily integrity from her own child.

Indeed, since a fetus at 18 weeks is waaaaay more of an imposition on a woman’s bodily integrity than something younger than that, it’s pretty hard to construct an argument that there even could be a coherent right that would protect a woman’s right to bodily integrity up to 18 weeks, when the imposition is relatively small, but which disappears after 18 weeks, when it’s much bigger. Never mind that there is.

[Randal]

Oh. My. God. The lengths you all will go to blame the woman for the terrible sin of having sex. I didn’t realize the extent to which slut-shaming was at the core of the pro-life movement, but according to these comments that’s like 99% of it! You guys don’t care about the life of the unborn, you just hate any woman for having the gall to fuck.

Let me get this straight. You’re totally fine blaming the woman for getting pregnant in the first place because she should know that pregnancy follows from sex. But you think nobody in the olden days could figure out that when you end a pregnancy in week 10, you’ll no longer be pregnant in week 18?

[Lee Moore]

Leaving your emotional spasm on one side, I confess that :

But you think nobody in the olden days could figure out that when you end a pregnancy in week 10, you’ll no longer be pregnant in week 18?

sailed straight past me. I have no idea what point you’re trying to make.

[Randal]

You said that the common law right to abort a pregnancy before week 18 doesn’t count because the woman’s liberty interest is, if anything, weaker earlier in the pregnancy.

I’m saying that’s retarded, because obviously you get an abortion so that you are no longer pregnant. If you get an abortion at 10 weeks, you’re not pregnant at 10 weeks, or at 11 weeks, or 12 weeks, or 13 weeks, or 14 weeks, or 15 weeks, or 16 weeks, or 17 weeks, or 18 weeks, or 19 weeks. See how that works?

So if you agree that a woman has a liberty interest in not being pregnant at 18 weeks, that supports allowing her to get an abortion at 10 weeks. She shouldn’t have to wait until later in the pregnancy for her liberty interest to “kick in” once the pregnancy becomes more of a burden.

And the fact that I need to explain this painfully obvious cause / effect relationship to you is ironic given how eager you are to blame women for having sex that potentially results in pregnancy.

[Lee Moore]

I’m still not receiving any kind of logical argument – I assume your job does not depend on clarity of argument and expression.

But if I had to guess at your meaning, it would be that getting rid of your offspring early, when it is of lesser inconvenience, makes a lot of sense because that will later save you the much greater inconvenience of an older, bigger, fetus. If that’s your meaning, I agree, it would make sense. A stitch in time saves nine.

But if the alleged right to get rid of your offspring is couched in terms of a right to bodily integrity, then while it may be a good prudential move to do it early, that is no explanation for why this right should disappear, when the offspring is a much larger imposition on your bodily integrity. So I understand the argument that it would be wise to move early, I merely note that we are not discussing what is wise, we are discussing what the right is, if it exists.

And the common law background is that pre-quickening, ie when bodily integrity imposition is smaller, abortion was not illegal, while post-quickening, ie when bodily integrity imposition is bigger, abortion was illegal.

Now, stipulating for the present that an act that was legal in 1791 was ipso facto a Constitutionally protected right under 9A, that would make pre-quickening abortion a 9A Constutional right, but post-quickening abortion not a Constitutional right (since it was illegal.) This structure of a disappearing right as the fetus gets bigger is not consistent with the bodily integrity theory of what the right is, because the existence of the right is inversely related to the imposition on bodily integrity.

So that’s my point. If there is a 9A right, bodily integrity is a poor basis for it, given the common law history.

Your point that it is wise to get your abortion in early, before the imposition grows too big – if that was your point – is perfectly reasonable, but also perfectly irrelevant to the argument about whether the bodily integrity basis points in the wrong direction to the common law history of an early right that disappears as fetus gets to be more trouble.

For the avoidance of doubt, my stipulation is quite unjustified. That something was illegal under the common law in 1791 is pretty good evidence that there was no Constitutional right to do it. But that something was legal under the common law in 1791 is no evidence that there was a constitutional right to do it. Many things can be legal to do, without there being any Constitutional bar on a legislature deciding to make it illegal later.

[Lee Moore]

Moving away from a supposed right based on bodily integrity, with which the structure of the common law on abortion in 1791 is inconsistent, what is that structure of common law (early abortion = legal, later abortion = illegal) consistent with ?

The obvious answer is that it is consistent with the later abortion being regarded as a more abhorrent act, because of the changed staus of the unborn child. This is apparent directly from the dividing line – quickening. It’s something about the potential abortee – that it can be observed to move – that flips the common law switch from legal to illegal. Nothing to do with the mother’s bodily integrity.

Nor do we have to guess this as there are plenty of sources which explain the quickening divide – it was, in the olden days, assumed to be the moment when the unborn child came alive (hence “quickening”); and secondly, even if the unborn child had come alive earlier, it would be impractical to prosecute a pre-quickening abortion because of the difficulty in proving, pre-quickening (ie external evidence of movement) that there has been a live child.

So the common law history is consistent with a status of unborn child distinction, and not consistent with a right to bodily integrity right.

[Randal]

It does appear that you have a hard time with logic. I think even in 1791, people understood how to trade off against competing rights.

[ReaderY]

Why not use Lawrence v. Texas as the essential reversal of precedent?

Bowers v. Hardwick stood for the proposition that the conception of liberty that includes a right to an abortion has no relationship to a right to engage in homosexual sex.

If Justice Kavanaugh wants to reverse Roe but preserve Lawrence, why isn’t it open him to argue that the post-Lawrence conception of liberty, the one that includes a right to engage in homosexual sex, bears no relation to a right to an abortion?

Bowers can be interpreted as supplying the proposition that the two are different things that have no relationship to each other, and Lawrence can then be interpreted as switching from one thing to the other. Accepting the one implicitly rejects the other. Indeed, perhaps after Lawrence it is the idea that the Constitution protects abortion that became facetious.

Not my preferered way of reasoning. But if Justice Kavanaugh wants to reverse Roe while preserving Lawrence, it seems to me the line of argument, whether I think it ultimately appropriatw or not, is open.

[Josh R]

Bowers v. Hardwick stood for the proposition that the conception of liberty that includes a right to an abortion has no relationship to a right to engage in homosexual sex.

OK. But, Lawrence doesn’t rest on the proposition that the liberty interest to engage in homosexual conduct is related to the liberty interest in access to abortion.

[ReaderY]

But that position is consistent with what I said, not against it. If they represent two distinct liberty interests, then it’s easier to argue that Roe held you get strict scrutiny on the liberty interest that contains abortion but doesn’t contain gay rights, while Lawrence held you get strict scrutiny on the liberty interest that contains gay rights but doesn’t contain abortion.

It then opens the door to arguing that Lawrenced switched from one linerty interest to the other.

If Bowers means abortion excludes gay rights, you can argue Lawrence means gay rights excludes abortion.

[Josh R]

If Bowers means abortion excludes gay rights, you can argue Lawrence means gay rights excludes abortion

Bowers did no such thing. The Court would have reached the same decision with or without Roe.

[Mike Hansberry]

A woman has a lapse in judgement, gets into relationship with a jerk and eventually becomes pregnant. She continues the pregnancy until the 8th month. Then, with full knowledge that the child she carries is another human life, she has an abortion.

Consider again the OP’s hypothetical in relation to the above.

Would a libertarian assert that the person who caused the accident (A) and supported the survivor (B) for 8 months is perfectly free to walk away just a month short of assuring B’s survival?

Would a libertarian assert that at the 8th month A is perfectly free to take deliberate steps to kill B rather than allow B the chance to try to live without A’s aid?

———————————-

You can have your pound of flesh, but if you spill one drop of blood…

[Josh R]

Would a libertarian assert that the person who caused the accident (A) and supported the survivor (B) for 8 months is perfectly free to walk away just a month short of assuring B’s survival?

I’m guessing Post would say “yes.”

Would a libertarian assert that at the 8th month A is perfectly free to take deliberate steps to kill B rather than allow B the chance to try to live without A’s aid?

If the choices were killing versus walking away without killing (in the analogy, induced premature delivery), I suspect he might agree the person must choose the latter.

[Mike Hansberry]

Josh wrote: “If the choices were killing versus walking away without killing (in the analogy, induced premature delivery), I suspect he might agree the person must choose the latter”

That is the difficult part, when do we draw the line? At what point in a pregnancy does the state have a say? Some have tried to set aside the issue of viability, but to me there is no getting around it.

It is easy to say at day one of Post’s hypothetical that we ought not compel the distracted driver to be hooked up for 9 months, but that analogy might lead to a different conclusion if we ask other questions. Some might say that after X many months of rendering aid the driver is now committed to seeing it through. But no one in their right mind would say that the driver is free to cause the death of the injured person.

[NoOne]

Hrm. I think I prefer the violinist analogy due to its simplicity, but I appreciate the attempt to add a guilty party to the analogy to head of that particular quibble.

Though, I prefer analogy to something that demonstrates how much weight we really do give to individual liberties. For example, forced sterilization or compulsory organ donation. In both cases, I think it’s easy to understand how reproductive freedom and bodily autonomy prevail over state interests. How that applies to abortion, contraception, in vitro fertilization, and the like is a small step – especially given how those are all biologically and legally similar (or even identical in some cases).

[WPHDM]

THE MALE ABORTION: RIGHT TO LIFE IN PRISON

Re: “As a practical matter, an abortion exemption to manslaughter statutes has existed and always will exist.”

In Texas, the abortion exception in the criminal homicide statute exists only for the fetus mother, and that’s of course because of the SCOTUS fiat. See Tex. Pen.Code Ann. § 19.06
https://statutes.capitol.texas.gov/Docs/PE/htm/PE.19.htm

APPLICABILITY TO CERTAIN CONDUCT. This chapter does not apply to the death of an unborn child if the conduct charged is: (1) conduct committed by the mother of the unborn child; (2) a lawful medical procedure performed by a physician or other licensed health care provider with the requisite consent, if the death of the unborn child was the intended result of the procedure;

CASE IN POINT: Flores v. State, 215 S.W.3d 520 (Tex.App.-Beaumont 2007, no pet.)(fetus father doesn’t have a fundamental right to abort or to assist in aborting his unborn children).

“A jury found Gerardo Flores guilty of the capital murder of his two unborn children. He was sentenced to life in prison. His appellate issues concern the constitutionality of various sections of the Texas Penal Code, the trial court’s refusal to submit certain “lesser-included” offenses for the jury’s consideration, and the trial court’s denial of motions to suppress evidence. We affirm the trial court’s judgment.”
https://scholar.google.com/scholar_case?case=11172623962495724083&hl=en&as_sdt=6,44

[Mike Hansberry]

1) Do individuals have a right to abortion in certain circumstances?
2) Can a state ban abortion in certain circumstances?
3) Does sec 1 of the 14th amendment compel states to forbid abortion in certain circumstances?
4) All of the above

[WPHDM]

That’s not true: A hypothetical can be totally whacky (a mere thought experiment completely divorced from reality) or a fact scenario that is realistic and will or might occur in future, but is not before the court in the case sub judice.

Example of whacky: Should abortion be a constitutional right when the patient got pregnant from the vaginal insertion of a cucumber? Or when the Holy Ghost did the impregnating (with apologies to Catholics et al).

As for the latter (reality-cognizant hypotheticals), they are obviously relevant when courts engage in policymaking by promulgating precedent, as our Supreme Council on National Abortion Policy has been doing, and continues doing, when considering the potential or likely real-life consequences to various possible “doctrinal” rulings.

[Larvell Blanks]

Maybe because at the time of the 14th Amendment, it was understood that your liberties included the right not to be tied up for 9 months (with or without your kidneys being hooked up to someone else) against your will, but did not include the right to an abortion.

[lucia_l]

Baby’s born at 34 weeks have practically the same likehood of survival as at 40 weeks. Should a woman who no longer wants to carry the baby be allowed to have labor induced at 34 weeks when keeping it in the womb is no longer required to keep the baby alive? It could be cared for by the hospital staff.

Delivering the baby at that time terminates the pregnancy. So the woman regains her liberty sooner, and in this case without taking any life. Seems to me that if the reason to not allow termination is to not take the life of another, late terminations should be allowed, provided someone arranges for others to take over care of the baby after it is delivered.

[JJJSSS]

One doesn’t even need to arrange the caring. The safe haven laws that ACB is enamored with allow a woman to leave the baby with a hospital, no questions asked.

[anonprof]

How about this analogy – you throw a party. I think we can all agree that you are not obligated to let a guest stay no matter what. Perhaps someone shows up uninvited on a cold December night – you are within your rights to tell them to leave even if it means certain death from the cold. Or perhaps a guest is threatening somehow and you throw them out. Again, I don’t think anyone would argue that you have a moral or legal obligation to their welfare. But perhaps, a guest has an allergic reaction to something you serve and passes out. You may not have meant for this person to pass out and maybe you really want them out of your house. But if you throw them out in the cold (to certain death from exposure), I think most would agree that you have violated their right to life, and this trumps your right to control who is in your house. Perhaps one thinks that those of us who believe that you take on that obligation when you invite a guest over just hate parties and want to punish debauchery. Maybe, maybe not. I don’t see why that matters. The person who passed out from an allergic reaction shouldn’t forfeit their right to live because you don’t want your liberty to control who stays in your house violated. Similarly with abortion. If a woman’s pregnancy poses a significant threat of harm or if she did not consent, it seems termination of the pregnancy is justified. Otherwise killing the human is not.

Now once one allows for abortion in cases of harm or rape, it is hard to see how abortion can be effectively banned as a practical matter. Forcing a victim to participate in an investigation strikes me as a political non-starter. My guess is that among the dozen or so papers we sign when we go to the doctor, there will be a form attesting that one is reasonably concerned with one’s health or a victim of nonconsensual sex.

[Nate]

B”H

Besides only being analogous to a rape that was not properly treated with EC etc., the analogy is unfair because the extremely far-fetched and unnatural scenario elicits an intuitive aversion.

One is indeed obligated to expend effort and tolerate discomfort to save a life. Especially when that life is so innocent, rife with exponentially infinite potential, and one’s own flesh and blood!

Here’s a counter analogy. A woman was kidnapped to a desert island, where she was raped and held captive for nine months, then abandoned there alone prior to giving birth [with ample means for both mother and child to survive]. Should it not be a crime to murder that child [before cutting the umbilical chord] or “merely” abandon it to die?!

As long as the mother is not endangered, the tragic circumstances preceding the conception of the life within her do not provide justification for taking it.

Choose life!

[ReaderY]

The concept of liberty protected by Casey really is different from the concept protected by Lawrence. Webster found that the concept was a “whole cloth” framed by “history and tradition.” Bowers held that that history and tradition did not include ciolations of sodomy laws.

Laetence, however, addressed a form of liberty that had neither the connection with history and tradition nor the particular overarching theme the previous conception had. It protected something far more amorphous, far more a matter of judicial judgment.

Why doesn’t Lawrence change the picture? It was the essential reversal of precedent. It made things much more flexible, much more a matter of the justices’ judgement.

It gave the court new flexibility to include things previously excluded. Why doesn’t that same amorphousness, that same, flexibility, that same quality of everything being up to the justices’ judgment, create a new ability to leave out something that was in previously in?

Up through Casry, things like history and tradition were relevant to these sorts of arguments. After Lawrence, they no longer matter. Today, Roe is history. Why should we care about it?

[Rev. Arthur L. Kirkland]

With a day to observe the handiwork you requested of this blog’s carefully cultivated class of commenters, Prof. Post, and a couple of hundred examples of the level of thinking of the audience this blog currently attracts — why do you continue to associate (infrequently, perhaps tellingly so) with The Volokh Conspiracy?

Are these the clingers you were looking for?

Thank you.

[Toranth]

For all those defending the right to an abortion because the fetus lacks legal protection, let me ask a different (obvious bad) hypothetical.

A woman becomes pregnant. She wants the child. Her boyfriend, the child’s father, does not want the kid. So he slips her some misoprostol or tansey extract or other abortifacient.

Has he committed a crime? If so, what crime?

[J Norton 2]

Yes, he has probably committed a crime. He has no protected privilege to terminate the pregnancy.

At Common Law he would likely be guilty of battery on the mother. It would probably not be murder, since until the last few decades, the homicide required that the fetus be born alive before the criminal act. Under the influence of the right-to-life movement, some states have recently passed new laws creating new crimes of homicide.

[Toranth]

So, you say assault, but nothing else?

By the way – 38 states have such laws, and these laws against fetal homicide are hardly new – they existed all the way back to Medieval England, with a few mentioned to cases back in Republican Rome that I could find. 800+ years seems to be a little longer than your imagined “last few decades”.

[J Norton 2]

It was not murder under Common Law.

[Toranth]

People were arrested, tried, and executed for murdering an unborn child.

I’m not sure where you can then conclude it was not murder under the law.

[Sorcer23]

Roe established the right to privacy, with no qualifications. That really needs to be revisited. The 4th Amendment guarantees one’s right to unreasonable searches and seizures, the right to privacy should be similarly constructed. That is, one is free from unreasonable invasions of privacy.
Abortion is such a situation, where beyond a reasonable expectation of privacy, beyond a given time frame, none should be expected.
Where that time frame should be is of course up for grabs. For me, that time would be before one is showing that one is pregnant. At that point, unless one is told someone, no one will know or guess. That usually fits in with about the first trimester.
Meaning that one’s privacy is retained, no one can know, unless told, and the individual’s right to no unreasonable invasion of privacy can be sustained.

[Lee Moore]

Roe established the right to privacy, with no qualifications. That really needs to be revisited. The 4th Amendment guarantees one’s right to unreasonable searches and seizures, the right to privacy should be similarly constructed. That is, one is free from unreasonable invasions of privacy.

You are obviously a reasonable man, woman, earthworm, whatev.
But moving beyond reasonableness simpliciter, there’s a reason why the 4th has a reasonableness test. It’s right there in the text :

“The right of the people to be secure in their persons, houses, papers, and effects,[a] against unreasonable searches and seizures”

There’s no reason – in the text – why other Constitutional rights can be violated if it seems “reasonable” to do so.

In reality Roe did not really establish the “right to privacy”, it esablished the right of judges to pull rights from their rear end, and presumably, the right to stuff them back up there as it amuses them.

It’s analagous to the Harry Reid “nuclear option” which is often portrayed as eliminating the Senate filibuster for executive branch appointments, and judicial appointments below SCOTUS. But that was simply a detail, a building knocked over in the blast. The real Harry Reid nuclear option was to establish that the Senate rules could be changed without following the Senate rules for changing the Senate rules – ie we can do what we like because we have the votes.

And likewise with Roe. The implications for abortion are secondary. The primary blast of Roe is that SCOTUS can make up Constitutional rights at will, trumping the federal legislative branch, and State legislatures, just cos they’ve got the votes.

[not guilty]

The right to choose abortion was not made up from whole cloth in Roe. Procreation was recognized as a fundamental right in Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942). A fundamental right to privacy expansive enough to avoid procreation was recognized in Griswold v. Connecticut, 381 U.S. 479 (1965). SCOTUS opined in 1972 that ¨If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.¨ Eisenstadt v. Baird, 405 U.S. 438, 453 (1972). Roe may gave been result oriented, but it is a logical extension of these precedents to the abortion context.

[Lee Moore]

Procreation was recognized as a fundamental right in Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942)

But not as a constitutional right. The majority does not find procreation to be a right “retained” under the 9th Amendment. Nor does it discover a 14th Amendment right under the Due Process clause. Instead it finds that the law deprives the criminal faced with sterilization of his Equal Protection rights – based on an argument that other similar crimes do not involve the threat of sterilization.

This may be rather a strained argument, but at least it is formally within the logical structure of equal protection – you have a right to the same legal treatment as comparable people, and in this case you have been deprived of it.

Justice Stone, agreeing with the judgement but not the EP reasoning, is the one that offers a 14A Due Process argument. But he doesn’t assert a free floating constitutional right to procreation. He asserts that the reason for the sterilisation punishment is something to do with keeping bad genes out of the next generation and that the criminal in question has not been given an adequate process for trying to challenge a presumption that his genes are bad.

Again this is (very) strained, but again it fits within the logical structure of a procedural due process right. You have not given me a fair process to demonstrate that this severe punishment should not apply to me.

So, yes, we can see judges straining hard to arrive at the result they want – but they are at least formally placing their arguments within the structure of the text. Equal protection must have something to do with equality of treatment for like persons, and due process is about process.

In short, not even slightly a Roe like precedent.

[Randal]

So, do you think they’re so strained that they should be overturned as well? Or do you think the procreation right exists, but under 9A?

[Lee Moore]

It’s not a question of “overturning” – I just think they’re bad arguments.

The EP argument is essentially that it is a breach of EP if there are different punishments for similar, but different, offenses. So, to take an extreme example, if a Statute specifies the punishment for burglarising a property on Monday, or Wednesday or Friday or Sunday as 2 years in jail, but for burglarising on Tuesday, Thursday on Saturday it’s 4 years in jail; the guy who did his burglary on a Tuesday and got 4 years has an EP claim because Wednesday burglars only got 2 years.

I would certainly agree that the distinction by days of the week seems silly, but the argument that there’s an EP claim seems sillier. The Tuesday burglar is treated equally with other Tuesday burglars, and the Statute gives due notice to the burglarising community that it distinguishes between Tuesday and Wednesday burglaries.

So I merely hope – without expectation – judges will make a less silly argument in future.

The DP argument is also weak because it implies that the lack of an opportunity to challenge the supposed reason for a punishment is a due process failure, even when the punishment is not made conditional on that reason.

Thus if the law says “A sex offender, guilty of a Section 311 offense, who is a danger to children” gets 15 years, then sure, the sex offender gets to argue that he isn’t a danger to children. If he is denied the right to argue that, that’s a due process failure. But if the law says “A sex offender, guilty of a Section 311 offense” gets 15 years then if you get 15 years, you’re getting your due process.

Even if, poking about in the legislative history, it appears that the legislature imposed a 15 year sentence because it thought that most offenders in that category would be a danger to children, and you could if given the chance show that you wouldn’t be a danger to children.

[Randal]

That was a long way of saying nothing.

Do you think, under the Constitution as written, there’s a right to procreation?

[Lee Moore]

Ignoring the analogy with abortion I’ll try to answer David Post’s question :

“Would anyone like to try to persuade me that this hypothetical statute is not an infringement on your liberty under the Due Process Clause? ”

1. Obviously it is.
2, But what kind of liberty ?
(a) an ordinary day to day not a Constitutional right liberty, or
(b) a Constitutional right liberty ?
3. If (a) then the statute is an infringement of your liberty, but it is not forbidden by 14A, so long as it is applied with due process
4. If (b) then it is an infringement of your Constitutional rights, under whichever provision of the Constitution it is that grants that right
5. Since I reject the concept of due process, as a source of substantive rights, rather than a right to – checks words on tin – “due process” then the answer to DP’s question is again that it’s not an infringement of a 14A DP right. Though if it is a Constitutional right derived from elsewhere, then it would be an infringement of that non 14A right.
6. However, stipulating that substantive due process is a thing, and that it provided a Constitutional right not to be attached to some other person for their medical benefit, for 9 months against your will, then the Mississippi law would be an infringement of this 14A substantive right.

In the case of 5, we would have a duke out between the “you” and your 14A DP right, and the other driver and her 14A EP right. The Mississippi law is not described in detail but it appears to be a general legal provision providing the protection of Mississippi law to persons under its jurisdiction in respect of threats to their lives, and so it would seem unlikely that the other driver can’t claim that protection.

It would make an interesting case. I imagine self defense precedents might be relevant – particularly any with the unusual circumstances in this case ie –

(1) the threat to “you” being not of death, or even serious bodily injury, but of very serious inconvenience over a long period. I wonder if there’s anything that’s been in the quarantine area that’s been litigated. Typhoid Mary springs to mind.

(2) the self defense “need” to kill an innocent party rather than a guilty one. From philosophy, the trolley problem springs to mind.

[Lee Moore]

In the aforementioned legal duke out, I imagine that in DP’s hypo, “you” would be seriously at a disadvantaged by the fact that you are responsible for your victim’s injuries. I can’t imagine why DP chose to muddy the water in that way. JJT certainly didn’t in her violinist hypo.

I think we can deduce from this that JJT is smarter than DP.

JJT’s violinist paper is a really good piece of moral philosophical argument, well worth reading. Not flawless, but what is ? Also well worth reading is John Finnis’s reply to her. Also not flawless, but what is ?

Finnis, of course, is still around.

[Seamus]

In the aforementioned legal duke out, I imagine that in DP’s hypo, “you” would be seriously at a disadvantaged by the fact that you are responsible for your victim’s injuries. I can’t imagine why DP chose to muddy the water in that way. JJT certainly didn’t in her violinist hypo.

Actually, DP merely replicated the situation in the vast majority of pregnancies. Except in a tiny percentage of cases, fetuses and embryos find themselves utterly dependent on the bodies of their mothers because of actions those mothers voluntarily performed. Like auto accidents, pregnancies don’t just happen randomly, the way meteorite strikes do.

[Lee Moore]

Duh, where I said in the case of 5, I meant in the case of 6

[RhymesWithRight]

Forget the liberty interest under the Due Process Clause of the Fourteenth Amendment — the law in question imposes involuntary servitude without prior conviction of a crime in violation of the Thirteenth Amendment and is therefore clearly invalid. The same is true of any law that requires women to be unwilling incubators for unwanted fetuses — it is clearly involuntary servitude.

[Seamus]

I would bet dollars to doughnuts that, in that unlikely scenario, if there were no other way to keep the other accident victim alive, and if disconnecting the two would undeniably lead to the near-immediate death of the other victim, then the court would bend over backwards to find a way to justify requiring the drive to continue to be hooked up to the other one.

[Seamus]

I wonder how JJT would have decided the moral issue if, instead of a violinist hooked up to a stranger, it was two conjoined twins hooked up to each other. If one of them wanted to undergo surgery to separate them, but the other suffered, say, a renal inadquacy that made it necessary for him or her to rely on the more healthy twin’s kidneys to filter his or her blood, and would die as a result of surgery to separate them, would JJT say to the “parasitic” twin, “Gosh, it sucks to be you, but your brother/sister has a clear right not to have another person commandeer his/her body, even if that’s necessary for survival of that other person”?

[bush lawyer]

Late to the party and didn’t read every comment; apologies if someone already did this. Fixed the hypo without fighting it:

Assume that you are involved in a terrible car accident; you weren’t at fault; the person driving the other car took their eyes off the road and slammed into you. You wake up in the hospital alive, but on life support. Both of your kidneys have been destroyed. When the doctors had you on the operating table, they hooked you up to the at-fault driver to provide dialysis for you, processing your blood through the other driver’s kidneys to keep you alive. They inform the other driver that it will take 9 months for a transplant kidney to become available because of your unusual blood type, and that you will have to remain hooked up with the other driver for the whole period; if you were to be disconnected you will die within minutes.

A provision of Mississippi law, exacted explicitly “to prevent the taking of a human life”, prohibits the other driver from disconnecting from the dialysis. The other driver may leave after the 9 month period has expired, but not before.