Balkinization  

Wednesday, November 29, 2006

The Two Rights to Abortion

JB

In my 2005 book, What Roe v. Wade Should Have Said, and again in my recent article on Abortion and Original Meaning, which will be the subject of a symposium in Constitutional Commentary, I argued that there are not one but two rights to abortion. In this post I want to explain what the two rights to abortion are and why it matters that there are two of them. The discussion that follows is adapted from the article.

The first right to abortion is a woman's right not to be forced by the state to bear children at risk to her life or health. The second right is a woman's right not to be forced by the state to become a mother and thus to take on the responsibilities of parenthood, which, in our society are far more burdensome for women than for men. Although the first right to abortion continues throughout pregnancy, the second right need not. It only requires that women have a reasonable time to decide whether or not to become mothers and a fair and realistic opportunity to make that choice.

The Supreme Court's decisions in Roe and Casey run these two rights together, producing Roe's complex trimester system and Casey's undue burden model. In both models, states must allow abortion up to the point of viability. After viability, states can "regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." Although the Court did not say this directly, it follows that abortions must also be available before viability when necessary to preserve the mother’s life or health. Thus, we can see that in the Supreme Court's model, what I call the first right-- the right not to bear children at risk to life and health-- continues throughout the pregnancy, while the second right-- the right to avoid compelled motherhood-- is available until the point of viability.

In his forthcoming Harvard Law Review article on Medical Self-Defense, Eugene Volokh offers a different take on the two rights. What I call the first right to abortion he views as the constitutional basis for a more general right of individuals to engage in medical procedures necessary to protect their lives. (By the way, Eugene has been serializing his article on his blog, and you can begin reading it here.).

There are some interesting differences between Eugene’s formulation and mine. For example, his right of medical self-defense is both broader and narrower than what I call the first right to abortion. Eugene's formulation is narrower because he focuses on the right to protect a persons' life and not the right to protect health. By contrast, I argue that the first right to abortion protects both a woman's life and her health. Eugene’s right of medical self-defense is broader because it is not specifically connected to reproductive rights, or for that matter, to gender equality. Finally, following Roe and Casey, Eugene finds the source of the right of medical self-defense in the Due Process Clause. In my work I argue that the Due Process Clause is not the proper source of the abortion right. I find the source of the first right, as well as the second, in the Equal Protection Clause's prohibition against sex inequality.

The first right to abortion is not time limited-- it continues throughout pregnancy. Women should always have the right to preserve their life or health when it is threatened by the continuation of a pregnancy. The second right, however, need not continue throughout pregnancy; it requires only that women have a reasonable time to decide whether to become mothers and have a fair and realistic opportunity to make that choice. The state's interest in protecting unborn life is most compelling in the later stages of pregnancy. But letting states vindicate this interest when it is strongest is not necessarily inconsistent with the second right to abortion. When a woman's health and life are not at risk, the second right requires that women have a right to a fair and realistic opportunity to choose whether or not to become a mother, and in most cases this choice can usually be made in the earlier stages of a pregnancy. In fact, about 88 percent of all abortions occur in the first twelve weeks of pregnancy (roughly the end of the first trimester). Only 7 percent occur between weeks thirteen and fifteen, and only 4 percent occur between weeks sixteen and twenty. Twenty weeks is about halfway through the average pregnancy. Only 1 percent of abortions occur after that point, and only a vanishingly small number of abortions occur past twenty four weeks, the point of viability.

Why is it important to recognize two rights to abortion? I argue that the two rights to abortion help us understand how legislatures can regulate abortion consistently with the Constitution, and why the Court's trimester system, which collapses the two rights, was unnecessary. Separating out these two rights also makes clear that courts face different problems in articulating and protecting them. Implementing the first right does not require courts to draw lines based on the progress of the pregnancy; rather it primarily concerns how much discretion legislatures must give doctors in determining whether a woman faces a genuine risk to her life or health that justifies exercising the first right.

In Roe and Casey the Court held that the test was one of "appropriate medical judgement." This right is implicated in the partial birth abortion cases, including Gonzales v. Carhart, and Gonzales v. Planned Parenthood, which are currently before the Supreme Court. In the partial birth abortion cases, the question is whether the state may require women to choose a method of abortion that a substantial body of medical opinion regards as less safe than the safest method. In Stenberg v. Cahart in 2000, the Court held that this is inconsistent with the abortion right.

Thinking about the question in terms of the first right helps us see why this is so. If women have a right to preserve their life or health according to appropriate medical judgment– and almost all late term D&X abortions are therapeutic abortions-- they also have the right to use the method that is medically indicated according to appropriate medical judgment.

The second right gives women a reasonable time to decide and a fair and realistic opportunity to choose whether to become mothers. What constitutes a reasonable time and a fair and realistic opportunity to choose combines a number of different factors. Surely it is concerned with the relative developmental state of the fetus. But equally important, it is concerned with the question of what it is reasonable to expect of women who are forced to make one of the most difficult and heart-rending choices in their lives. A reasonable time to decide requires that a woman has enough time to discover that she is pregnant, talk to people she trusts, decide what to do, locate a physician, arrange a time to visit the physician (which may require taking time off from work and arranging child care for other children), make excuses or dissemble to family, friends and employers to explain her absence, travel for the initial consultation, and then make another set of arrangements to go back for the procedure if necessary.

The amount of time necessary may take longer for poor women, women in rural areas, or women in states that impose a series of procedural obstacles that effectively limit the number abortion providers in the state or that impose waiting periods. One might expect that states would prefer that women who choose to have abortions carry them out as early in the pregnancy as possible. However, abortion regulations like waiting periods may require multiple trips to the doctor and perversely increase the amount of time it takes to make the decision and carry it out, thus causing women to seek abortions later in the pregnancy.

One reason why laws that burden poor women are unconstitutional is that they don’t respect the second right to abortion– instead of giving women a reasonable time and a fair and realistic opportunity to choose, they try to discourage the choice by delaying it and making it more difficult to make. The practical effect of post-Casey abortion regulations has been to protect the right of well-to-do and well-connected women to choose abortions, and to allow states to limit the effective rights of poor women because they are easiest to deter and the easiest to push around. In essence, states have been given far more leeway to compel motherhood on the poor than on the rich. From the standpoint of the purposes of the second right to abortion, this is particularly perverse. Precisely because poor women have fewer resources, the burdens of compelled motherood and the derailing of lives that may come with compelled motherood may be far greater for them. The point of the second right is to allow all women, not just affluent women, a fair and realistic opportunity to decide whether or not to become mothers and take on the responsibilities of motherhood. The undue burden test announced in Casey is flawed to the extent that it protects the second right to abortion for only a segment of American women.

In Roe and Casey, the Court chose the point of viability as the period at which the second right to abortion ends. That line is somewhat arbitrary; Justice Blackmun's original idea in Roe was to draw the line at the end of the first trimester, but other Justices pointed out that this would not give some women- particularly poor women-- sufficient time to decide, and so Blackmun eventually settled upon the end of the second trimester. But even this factor is arbitrary and subject to changes in medical technology. In Casey, the Court noted that by 1992, developments in neonatal care had pushed the average point of viability back from 28 weeks in 1973 to 23 or 24 weeks.

Despite these objections, the Court in Casey retained the viability rule first announced in Roe, arguing that "there is no line other than viability which is more workable." It offered two substantive justifications for its choice: First, "viability . . . is the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can, in reason and all fairness, be the object of state protection that now overrides the rights of the woman." Second, drawing the line at viability "has, as a practical matter, an element of fairness. In some broad sense, it might be said that a woman who fails to act before viability has consented to the State's intervention on behalf of the developing child." These arguments suggest that the Court thought it was making its own independent determination of what constituted a reasonable time for women to decide.

Perhaps the Court was ultimately correct that a uniform line should be drawn at viability uniformly, regardless of the age or poverty of pregnant women or the different circumstances that different women face. But it does not follow that the Court should have drawn the line, at least in the first instance. The issue of what is a reasonable time to decide combines a number of different factors and is inherently legislative. For example, legislatures might decide to extend the time for women in special circumstances in ways that would be inappropriate for courts. Instead of drawing its own line, the Court should have simply announced that women had certain basic rights- a right to preserve life and health and a right to a reasonable time to decide whether to become a parent, and then leave it to legislatures to balance the various considerations of fetal development, women's practical abilities, and the different obstacles faced by different women in different situations.

That would not mean that courts would have nothing to say on the matter. They would eventually decide whether state legislatures had met their constitutional obligations. The first right is relatively straightforward: legislatures would have to allow for abortions whenever life or health was threatened, and they would have to allow the safest methods as judged by a substantial segment of responsible medical opinion. But the purpose of the second right is to give pregnant women a fair and realistic opportunity to decide whether or not to become mothers. Hence legislatures rewriting their abortion laws would have to demonstrate that their statutory scheme had provided such a fair and realistic opportunity.

The approach I advocate is discourse shaping-- it demands that the arguments and justifications a legislature offers to support a law's constitutionality respond to particular constitutional goals and concerns that a court identifies. In this case, it requires legislatures to justify their abortion regulations in terms of how they affect women's practical equality in civil society and their practical ability to choose whether to become mothers, rather than solely in terms of the developmental stage of the fetus. If courts merely struck down existing abortion laws and demanded that legislatures passed new ones, legislatures might make their decisions based on pictures of fetuses. But if courts tell legislatures that they must justify the lines they draw based on whether they provide women a reasonable opportunity to decide whether to become mothers, they will have to organize their discussions and their justifications around the choices and obstacles that real women face. Courts would then decide whether those justifications were sound according to the basic constitutional principles they laid out in their original opinion.

There is a rough analogy between my "discourse shaping" approach and the Vermont Supreme Court's decision in Baker v. State, which held that the Vermont Legislature had a "constitutional mandate" under the state's constitution to find a way to give same-sex couples the "same benefits and protections afforded by Vermont law to married opposite-sex couples." (The New Jersey Supreme Court has recently adopted a similar solution). The Baker court explained the constitutional principles that the legislature had to comply with, but it left appropriate enforcement of those constitutional principles to the legislature in the first instance, noting that the legislature could extend marriage rights to same-sex couples or create a form of "domestic partnership" with similar rights and benefits. In response, the legislature created the nation's first civil unions law. By inviting legislative participation and innovation in enforcing constitutional guarantees, the Vermont Supreme Court diffused much of the political backlash that might have flowed from its groundbreaking and controversial decision. By contrast, when the Massachusetts Supreme Judicial Court held that gays were entitled to marry in Goodridge, it refused to give the state legislature any leeway in enforcement. Although the Massachusetts Legislature ultimately complied with the court's decision, the Goodridge case quickly became identified-- far more than the Baker decision in Vermont -- with courts imposing controversial solutions on majorities. Thus, it may have created a more powerful backlash.

My discourse shaping approach makes even fewer demands on the legislature than the Baker court, because it does not specify when the cutoff point for abortions must take place. It merely requires that legislatures make findings about what period of time is sufficient to give pregnant women a fair and realistic chance to end their pregnancies. It brings the legislature into the process of articulating constitutional guarantees and therefore gives them a sense of democratic responsibility and ownership for the result.

This approach is not "minimalist" in Cass Sunstein's sense of the word. Sunstein has argued that courts should rule narrowly on constitutional questions wherever possible and they should be reluctant to give controversial substantive reasons for their decisions, hoping instead to ground doctrine on reasons that most people can agree to. Sunstein believes that by proceeding in this manner courts make modest progress in promoting constitutional values and catalyze legislative protection of constitutional rights without generating a counterproductive political reaction.

I agree that these are worthy goals but doubt that minimalism is always the best method. Judges do not have to write minimalist opinions to respect democratic processes or to avoid a backlash. To the contrary, giving a legislature guidance about what constitutional principles are at stake may be a better way of facilitating a legislative solution that is both constitutionally and democratically acceptable. If the court says nothing, or very little, about what principles guide its decision, and simply throws the issue back to legislatures without explanation, legislatures may respond with solutions that courts must repeatedly strike down, and that experience may well exacerbate political tensions and lead to backlash effects. Instead of hiding the ball in a minimalist decision, courts should explain why the constitutional rights they seek to protect are important, and what they will be looking for when they review the legislature's work.

Under my approach, the Court would have done some something closer to what it did in the death penalty cases, which were decided around the same time. It would strike down old abortion laws and require the states to create new ones guaranteeing the two rights to abortion. Although the right to life movement was gathering steam before Roe was decided, there was still a strong push for abortion reform throughout the country. In the political climate of the early 1970's, most states would probably have guaranteed a basic right to abortion perhaps averaging around twenty weeks, halfway through the term of a normal pregnancy, along with a host of various regulations and exceptions. For example, in February 1972, almost a year before Roe was decided, the American Bar Association had advocated repeal of abortion laws up to the first twenty weeks, midway between the end of the first and second trimesters. We should not overestimate the degree of liberalization that the 1970's would have produced without Roe, particularly as the right-to-life movement was gathering steam. New abortion laws would probably not have given women guarantees as extensive as those which originally appeared in Roe and Doe v. Bolton.

After many states passed new abortion laws and created legislative records justifying them, the Supreme Court would be able to evaluate legislative decisions and fix upon a minimum set of standards for outlier jurisdictions. Because it would be reviewing comprehensive schemes that legislatures themselves had devised, the Court would be exercising less of a traditionally legislative and more of a traditionally judicial role. The legislative decisions would also possess a greater democratic legitimacy than a one-size-fits-all requirement imposed by a court. This would not end all controversies over abortion, but it would have given the abortion right a firmer, more democratic grounding than the actual decision in Roe did.

To be sure, a small number of states would have insisted on virtually no abortion rights, or would have made spurious determinations that a very short time- say three weeks-- was all the time that women needed to decide. However, precisely because these states would be outliers, it would be far easier for the Court to hold their restrictions unconstitutional. Instead of the Court choosing its own line and then imposing it on all of the states simultaneously, the Court could point to the laws created by the majority of states as evidence that these outlier states were not protecting women's rights adequately. In addition, it would be far easier for the Court to show that these legislatures had not seriously engaged with the substantive guidelines the Court set out in its initial opinion- to give women a right to protect their health and life throughout the pregnancy and give women a reasonable time and a fair and realistic opportunity to decide whether or not to take on the obligations of motherhood.

Finally, by leaving the length of the second right up to legislatures in the first instance, the Court would, ironically, have empowered defenders of abortion rights far more than it did by imposing a single national solution in Roe v. Wade. Roe's trimester formula- which effectively imposed a model abortion statute on the entire country-- simultaneously gave pro-choice forces a enormous victory and seriously demobilized them. Faced with mounting pro-life opposition, defenders of abortion rights repeatedly diverted resources to litigation because they assumed that the federal judiciary would ultimately back them up. But if courts had guaranteed only the basic outlines of a right to abortion and left many of the details of abortion regulation open, pro-choice advocates would have been forced to devote their resources to gaining public support for abortion rights and forging political compromises that would win in legislatures and would appeal to a broad segment of the American public. Having to fight the details of abortion regulation in the political process would probably have helped secure both the democratic character and the democratic legitimacy of abortion rights.

Comments:

Interesting post.

I will first disclose that I disagree with the rights to an abortion which JB holds. However, I do not want to argue about that, at least not directly. One would like to point out, however, that the argument is incomplete because both of the rights described by JB depend (in most cases) on one possible right that JB does not discuss. That is a fundamental right to sexual intercourse. If this were not a fundamental right, then engaging in sexual intercourse could be seen as a waiver of the rights described by JB. And, even if there is a right to sexual intercourse, is there a right to unprotected sexual intercourse? Of course, rape and incest cases are outside of this rubric, but in the main these issues need further exploration to make the argument complete.
 

Professor Balkin:

The first right to abortion is a woman's right not to be forced by the state to bear children at risk to her life or health. The second right is a woman's right not to be forced by the state to become a mother and thus to take on the responsibilities of parenthood

As with all other arguments for committing abortion, the success or failure of yours depends on whether or not you recognize that an unborn child is a unique human being starting at conception and is deserving of the right to life currently reserved under the law for humans post partum. Let us examine your arguments under the assumption that an unborn child does have a right to life starting at conception.

Before we begin, I would reverse the order of these proposed "rights" to make them comport with the temporal order of conception and pregnancy.

First, you argue that the state may not force a woman to become a mother and thereby take on the responsibilities of parenthood. I agree as far as this statement goes.

The woman becomes a mother when she conceives her child. Therefore, I agree that the state may not force a woman to engage in sexual intercourse, which would be state ordered rape, and thereby conceive a child to become a mother.

However, unless the woman has in fact been raped, she voluntarily engaged in sexual intercourse, voluntarily became a parent when she conceived her child and thus voluntarily assumed the responsibilities of parenthood at that point.

A law banning abortion simply prevents the mother from killing the child within her after she becomes a mother.

Next, you argue that a woman has a constitutional right the kill her child during pregnancy if carrying the child to term would pose a risk to her life or health. If its scope is limited, this argument stands up even if you recognize that life begins at conception.

US law has long recognized that self defense of person under limited circumstances is an affirmative defense to the crime of homicide. Self defense of person has also been recognized as a right protected under the constitution under a variety of circumstances.

Generally, the law permits a person to use deadly force against another person if she reasonably believes that she is in imminent danger of being killed or of suffering great bodily injury by the acts of other person.

I see no reason why this same standard should not be applied to pregnancy. If continuing to carry the child to term creates an immediate danger of death or great bodily injury, then the mother should be able to use deadly force to kill her child through an abortion.

However, I tend to doubt that this limited self defense exception is what you had in mind. It certainly would all but end abortion because only a miniscule percentage of the current 1.3 million children killed each year in this country through abortion would fall under this exception.

I would hazard to guess that you support the current abortion on demand legal regime where the mother has the right to kill her child based on a speculative future risk of any affect on the mother's mental or physical health.

One other observation, if I may. I am unsure how the equal protection clause applies to abortion. The government did not force only women and not men to bear children. God or nature depending on your belief saw fit to only allow human females to bear children. She is therefore in a class all by herself and cannot reasonably be compared to men when it comes to bearing children.
 

To be sure, a small number of states would have insisted on virtually no abortion rights, or would have made spurious determinations that a very short time- say three weeks-- was all the time that women needed to decide. However, precisely because these states would be outliers, it would be far easier for the Court to hold their restrictions unconstitutional. Instead of the Court choosing its own line and then imposing it on all of the states simultaneously, the Court could point to the laws created by the majority of states as evidence that these outlier states were not protecting women's rights adequately.

I'm skeptical that the majority of states would have protected the ability to obtain an abortion longer than 3-4 weeks. I also expect that they would then impose delaying restrictions which would, in practice, limit the time of choice to a very narrow window indeed. Ultimately, I believe the Court would have had to set the time frame judicially in order for there to be any practical right at all.
 

one reason for seperating the two abortion rights issues is that it highlights the EP aspect of the special cases of rape or serious threat to the life and/or health of the woman. to consider it a moral obligation of a woman to bear a child in any of those circumstances IMO demonstrates a misogynous view of women as mere servile vehicles for sex and propagation.

wrt to abortion right type 2, J jackson's observation comes to mind:

there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority be imposed generally.

note that the EP relevance of the quote is male-female and not the clearly non-existent minority status of women. so following that dictum, I have wondered if it would be practical to propose that since today paternity can presumably be determined with high confidence, a biological father must assume in fair measure all the legal obligations of parenthood without regard to marital status (which seems to be becoming somewhat irrelevant in any event). while recognizing that such legislation would be unlikely to pass and might have constitutional problems, discussion might at least bring out the hypocrisy and attendant EP violation of forcing women to become mothers with no parallel impact on equally responsible men.

this idea seems obvious, so if this is well trod ground or so impractical as not to warrant discussion, I apologize.

-charles
 

Professor Balkin: The approach I advocate is discourse shaping...

Exactly what we need, but much earlier in the thought process than at the level of the constitution. Bart has (laughably but predictably) offered one extreme view, conception creates an entity with rights. The other extreme view, which has the weight of history and the full power of the memetic collective unconscious behind it is that conception creates chattel until inspiration. Parse that carefully. While a fetus is in the womb it is chattel, either the woman's in an enlightened society where women themselves have full rights and citizenship, or some man's in a less enlightened society where women, children and perhaps even slaves have neither rights nor citizenship. We claim to be the former type of society; women and other former chattel are accorded full and equal rights of citizenship under our laws.

Next, inspiration, the first breath, and, not a matter of blind coincidence but straight to the heart of the matter, deriving from the same word as "spirit." A fetus is not a person until the spirit enters with the first "breath of life". This holds true from both religious and secular perspectives, for the question is not "where does life begin" (after all, the althete's foot fungus in a grunt's shoes is "alive") but where does personhood begin and its attendant rights vest. This bright line suffices for the most of the vast spread of human history and would apply with equal force today were it not for the efforts of folks like DePalma and the Wahhabi seeking to keep women and other former chattel as disenfranchised as possible.

A fetus is a woman's chattel until it draws it's first breath (respiration, inspiration, "receiving the spirit"...) whereupon it is a person. Anything less flies in the face of history, common sense and anything remotely resembling justice.

Discourse shaping. The most effective message I have ever seen is a pro-women-as-chattel bumper sticker which read:

Abortion:
One Wounded
One Dead

That is discourse shaping. Sure, our courts should shape the discourse of legislatures, by pointing out what is and isn't allowed by our Constitution. But even before cases get to the courts we need to make sure our discourse has not been, as Lakoff puts it, pre-framed. A fetus isn't a person, it is part of a woman's body, a living part, just like her eggs and bones and brain and blood. Any discourse shaping which fails to protect this basic observation is doomed to work evil.

Discourse shaping. As I wrote yesterday, two people can enter a conversation which to a third party will appear to be a reciprocal relationship but which in reality is only an interface of two persons with completely different agendas. Some approach these debates seeking to serve justice and truth. But others in the abortion debate already "know" the truth, as handed down to them by the dogma of their religion or by their political partisans, and their only purpose is to persuade. Discourse shaping must start with knowing a hawk from a handsaw and a partner in dialectic from an ideologically driven foe. The former will play fair. The latter will write persuasive nonsense like, "One wounded, one dead" and "...recognize that an unborn child is a unique human being starting at conception..." We desperately need folks like you, Professor, to help counter this persuasive nonsense, to shape the discourse as early in it's trajectory as possible.
 

Professor Balkin:

Why is Article IX of the Bill of Rights universally disregarded, including in your defense of "two rights" to abortion?

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage other rights retained by the people." Article IX

Madison initially resisted appending a bill of rights of any kind for fear that enumerating any rights would lead some to exclude others (which in fact is what has happened). When finally persuaded to include a Bill of Rights, his inclusion of Articles IX and X are universally ignored as an enigma, even by Scalia who claims he's an originalist. Indeed, Scalia denies a "right to privacy" even though that must have been a "right retained by the people" in Madison's explicit formulation.

Even with a "right to privacy" a conflict arises concerning abortion, including a "right to life" a "right of personal ownership," a "right to self-defense," among many others, including your less-compelling rights (that Article IX insists is among the "rights retained by the people"). But since these "rights retained by the people" are not expressly enumerated, Justices deny they exist, as Madison insisted they would, even by "originalists."

Many rights are involved in the decision and process of abortion. You cite two. Why are none considered in light of Article IX?
 

Robert Link said...

Bart has (laughably but predictably) offered one extreme view, conception creates an entity with rights. The other extreme view, which has the weight of history and the full power of the memetic collective unconscious behind it is that conception creates chattel until inspiration.

Perhaps I am insufficiently educated, but is a "memetic collective unconscious" the same thing as a penumbra emanating from the Constitution?

If we can deal with concrete reality for a moment, my position is straight forward and scientifically indisputable.

A human being is simply a living human. At conception, both you and I were living and possessed the individual genetic code which made us unique human beings.

Therefore, the all arguments in favor of abortion depend on drawing lines defining all human beings prior to a certain point in time to be disposable chattel rather than legal persons based on some physical or mental limitation. The problem with all of these arguments stripping person-hood from the unborn based on physical or mental limitation is that the same arguments can be made for euthanizing immature children, the disabled or the elderly.

Parse that carefully. While a fetus is in the womb it is chattel...

Here we differ. I do not believe that a human being is ever chattel. How do you arrive at this conclusion?

Next, inspiration, the first breath, and, not a matter of blind coincidence but straight to the heart of the matter, deriving from the same word as "spirit." A fetus is not a person until the spirit enters with the first "breath of life". This holds true from both religious and secular perspectives, for the question is not "where does life begin" (after all, the althete's foot fungus in a grunt's shoes is "alive") but where does personhood begin and its attendant rights vest. This bright line suffices for the most of the vast spread of human history and would apply with equal force today were it not for the efforts of folks like DePalma and the Wahhabi seeking to keep women and other former chattel as disenfranchised as possible.

Good heavens! Are you actually offering this superstition of breath as soul as the basis for treating a class of human beings as chattel and killing them at will?

Over the "vast spread of human history," we also practiced slavery on the theory that the slave was something less than human. Under this idea, we could starve, whip, maim, dismember and kill the slave because she was merely chattel. That surely doesn't inform our constitutional perspective of slavery today.

Time to join the age of in vitro science.
 

Bart: Time to join the age of in vitro science.

If you actually meant that then we might have a conversation. But you cherry pick "scientific findings" to support, or at least try to persuade others, to your inane world view of "have sex, bang you're a mom." Such behavior shows it's not often worth anyone's while engaging you.

Were we engaged in legitimate dialectic then your extreme thesis of "rights of personhood vest at conception" would be legitimately met with the equally extreme anti-thesis of "rights of personhood vest with the first breath." Then we could proceed as partners in search of a richly nuanced truth via synthesis. But such is not a game you are competent to play. Instead of searching for a synthesis of richly nuanced truth you will continue to parrot arguments available for cut-and-paste from any number of your partisan numbskulls, without even the effort to create something new in the discourse. It will suffice for you to bray endlessly without really *thinking* at all.

So, if persuasion is the game, yup, I'm saying exactly that the legal status of personhood, with attendant rights, should only vest with the first breath, your breathless incredulity notwithstanding. Indeed, usher in "in vitro science," and while we're at it how about a little history of gender inequality? Isn't it odd that you and bin Laden so thoroughly agree that you each have the right to tell a woman what she can and can't do with her womb, that you both seem to have so much more concern for the combination of a sperm and an egg the millisecond the egg wall is breached than for the person you would consign to play host for those few cells?

Can you hear the strains of "Every Sperm is Sacred" in the background? I reckon Bart's lookin' to compose the sequel, "Every Ovuum's Awesome" which will argue it's murder to let an egg escape during menses. C'mon Bart, admit it, you're a "barefoot and pregnant" kindof guy at heart, aren't ya. Maybe you can write the definitive tract on the subject while you're waiting for your folks to prove your citizenship after you get picked up, wrongfully, as an AUEC, assuming you ever find the section of the MCA that gives them the chance.
 

Robert:

To start, let me give you a bit of advice that I give fellow attorneys caught up in legalese - try speaking in plain English. We are engaged in a debate, not "proceed[ing] as partners in search of a richly nuanced truth via synthesis," whatever you think that incomprehensible drivel means. Someone has misinformed you that stringing together big words makes you appear intelligent.

Next, I never stated that a sperm or an egg = a human. I presume you know about the birds and the bees and thus know what conception means. If so, try to avoid offering straw men. In my simplistic view, you are not ""search of a richly nuanced truth via synthesis," but rather are simply trying to change the subject from the points I actually raised so you do not have to address the hard (not richly nuanced) truth.
 

We are engaged in a debate, not "proceed[ing] as partners in search of a richly nuanced truth via synthesis," whatever you think that incomprehensible drivel means.

Robert, I guess Bart missed our little discussion regarding the nature of his method of discussion, his Weltanschauung. I guess you win our debate: it's just about winning and losing, and not just a lack of meeting of the minds. But then again, that supports part of my thesis: that folks who believe in Truth, as handed down by the divine breath, don't even understand what you mean by collaborating from differing points of view to find a new truth, since there are none.

He's surely capable of understanding the words you use; I don't doubt that he's capable of handling any extended latinate phrases you throw at him, but he's just incapable of understanding the context that make them meaningful.
 

Jojo: I don't doubt that he's capable of handling any extended latinate phrases you throw at him.

Heh. You missed our little "does not follow" exchange, in which he "corrected" my spelling from -ur to -or.

I'm fine with your take of the point spread in my little debate with you. Ironic I find this note after posting my rebuttal on that thread. But, hey, dude, how's about putting something useful on your blogger profile. Feel free to contact me off-blog, it would be a pleasure to make your further acquaintance.
 

Eeek, it's already ad hominem theater in this thread.

Clear scientific evidence can be used to support either side of this chestnut-flavored debate, so appeals to the indisputability of one view or another are ill-advised.

The problem is the nexus between concepts of humanity and potential: when does an embryo have sufficient potential to be considered fully human? This is a philosophical question that may be answered with arguments based upon scientific data, but it is not a question that can be answered solely through pure science.
 

PMSChicago: Eeek, it's already ad hominem theater in this thread.

Ok, y'caught me. The similarity in Bart's and bin Laden's views of reproductive rights has no real bearing on any strictly sound argument. But recall it is Bart himself who has set the criterion as "persuasiveness" rather than "soundness". (Frankly, based on other things he finds "incomprehensible" I doubt he got far enough in Logic 101 to parse the difference.)

PMSChicago: ...it is not a question that can be answered solely through pure science.

I agree completely, but your position is too nuanced by far, at least for the likes of our friend Bart and his right-to-be-a-baby-machine partisans in the Republican Christian Fundamentalist camp. I find I am persuaded by the superstition of the first breath, although I *do* look forward to batting it back and forth with good folks, such as yourself, over time. Wonder how Bart would have fared back when the GOP stance was a Posner-esque, "An aborted baby costs the state less than a welfare baby," back before it sold it's soul to the likes of Falwell and Robertson.

Peace
 

"In Roe and Casey the Court held that the test was one of "appropriate medical judgement.""

And in Doe, a few hours after Roe, precluded any inquiry into whether the medical judgement really WAS "appropriate", turning "life or health" into more of a magical incantation doctors are specially privileged to recite, than an actual professional judgement.
 

Gay Species:

"Why is Article IX of the Bill of Rights universally disregarded, including in your defense of "two rights" to abortion?"

There is a strange Baptist-Bootlegger understanding that has fully evacuated the 9th Amendment. The conservatives dislike the idea of discerning "new" rights that would prevent them from arresting sodomites etc. The left generally loathes the jurisprudence that predated Roosevelt, which held that fundamental rights included a strong right to contract, to work at your bakery as long as you liked, to sell your milk for whatever price you liked, etc. Those last two and others like it interfered with the progressive goal of a planned economy.

Even obvious fundamental rights such as the right to privacy are doctrinally housed in magnificent legal edifices that relate to specific protections in the other amendments, as if the 9th amendment were a superfluous oddity. In fact, the court that first identified the right to privacy went out of its way to disclaim that the 9th and 10th amendments are any curb to government power. A strong 9th amendment, for example, would protect the right to eat unpasteurized cheese or foie gras, or use medicinal marijuana, or build 10 houses in a "greenbelt" farmstead zoned for 1 mansion, and both sides believe they have more to fear from new freedoms than from suppression of the ones they like.
 

The first statement troubles me, but likely voices a reality that splits the debate.

It seems hard to many to accept that there isn't a fundamental right to sexual intercourse with the usual caveats (the question is voiced so broadly that even sex during marriage is involved).

As to "unprotected," this too is honestly hard to understand. First, how exactly do we prove that? My own state make certain marital issues unjusticiable because of the privacy issues involved. Second, birth control fails repeatedly. Finally, the reality of some strict liability policy is honestly not only ahistorical but horrible to behold. But, that voices a bias, I guess.

Anyway, if one thread of JB's reasoning involves health issues, why exactly is it purely a EP issue? I find it much better to put things in a broader perspective, as others have, which doesn't make abortion seem so much of a special pleading.

Yes, we would have to deal with the "life" at issue, but loads of privacy/autonomy issues involve such issues. Many involve third parties that we all admit are separate persons. Thus, many refusal of treatment cases, or those involving child care, etc.

As to discourse shifting, do not the cases do that? They too address issues of health, privacy (decisions respecting family etc.), and (Casey) women equality. The viability line underlines the point -- per Casey, we read it is provides a clear line plus gives time for judgment. But, health/life issues remain even after. So, clearly, two threads.

Finally, how different is JB's views from EV as to breadth? Does he not too support some constitutional right to secure our health and well being in other contexts?
 

Timon Braun:

I am not sure where you yourself stand on the 9th Amendment, but the basic dangers you cite are real. If Judge A reads his own favorite pet rights into the 9th Amendment, what is to stop Judge B from reading in something entirely different? If the 9th Amendment is to be given a broad reading, how can even the most far-fetched and implausible right be proven not to be included? If the 9th Amendment means anything and everything, then ultimately it means nothing.

A reasonable middle ground might be to take it to mean that any extra-constitutional guarantee of a right shall also be recognized. Or, perhaps, that any right protected by common law shall be respected unless specifically overridden by statute.
 

Enlightened:

We should first stipulate that we are talking at a level of abstraction that is almost irrelevant to the purpose of making a legal case for abortion rights. For the purposes of the courts there is no such thing as the 9th Amendment, for better or worse. You'll notice Volokh's linked post, for example, doesn't mention it at all, preferring to vibe on an emanation from the 2nd as a possible hook for a right to prevent your own death. (The paper itself does mention self-defense provisions in contemporaneous state constitutions and then nods to the 9th before genuflecting at the altar of the 14th.)

As I understand Balkin's point, which is perfectly valid, abortion laws affect women over men, and the poor over the rich, and are therefore denying the former rights given to the latter. That's perfectly true, but it implies the wrong could be righted by some counterbalancing punishment of men, or restriction on the wealthy. I think the 9th means what it says, and should include things like a right to preserve one's health (controversial abortions now and someday therapeutic cloning), a right to eat foie gras in Chicago, and a right to build as much house as you can afford on the land you can afford (even in towns "zoned" for rich people). Or, to put it another way, a city that has banned duplexes (as Palo Alto just did) would have to prove a great need to do so, beyond a preference for richer residents, much like they cannot restrict speech except to preserve public order. Frankly I have trouble imagining a right I am opposed to, except maybe George Lakoff's "freedom" to live in a global monoculture modeled on Berkeley, CA (where I confess to having enjoyed myself all through college.)
 

"Some approach these debates seeking to serve justice and truth."

This is among the most laughable statements I have ever read on this blog. Apparently, Robert believes that those who agree with him seek justice and truth, and those who disagree with him are a bunch of religious freaks who are not worth conversing with. So he (again, laughably) compares them to Bin Laden in order to shut down discussion and, I suppose, "discourse shape."

Furthermore, it is childsplay to call the other side's argument extreme, introduce a false extreme, and then try to force a 'compromise' in between. You could just as easily state, as a response to South African Apartheid, that in South Africa, minorities had no rights and in others they have equal rights, so lets settle on a nice compromise and just give them some of what they seek. That's not discourse shaping, it's just idiotic.

The bottom line on this issue is that it really boils down to a value judgment about when personhood begins, or is worth protecting. After all of JB's analysis, you still can't get past that basic point, as Zathras and Bart (in his first post) point out. Everything else revolves around that judgment. And since sooner or later we are going to have to vote on that judgment, as opposed to having it dictated by those we appoint to the bench, why not sooner?

Full Disclosure: I don't agree that life begins at conception, but I am alarmed by those who simply dismiss those who disagree, in the name of "richly nuanced legitimate dialectic."

Zathras really nails the basic flaw in Roe: outside of the rape and life/health exceptions, which virtually everyone (even in SD) concedes should be permissable, Roe and Casey are implicitly claiming a fundamental right to consequence-free sexual intercourse. JB is agreeing with this right on the ground that any consequences would fall more heavily on the woman than the man. But how the consequnces fall is irrelevant to whether the right exists. Consider that at least half of voters are women; that there is virtually no gender gap in how men and women feel about abortion rights; that the weight of how the consequences fall is not determined by the government; and that more generally, a disparate impact does not by itself establish discrimination.
 

Full Disclosure: I don't agree that life begins at conception, but I am alarmed by those who simply dismiss those who disagree, in the name of "richly nuanced legitimate dialectic."


The comments should be read in the context of an long ongoing metadebate between Robert and Bart. Furthermore, I frankly don't see what's wrong with invoking dialectics, particularly in regards to an issue like abortion where polarization frames the debate. If one is afraid of "big words," that's fine, but nothing that Robert said was nonsensical.

Synthesis is not the halfway between the two terms, as someone above suggested; if it were just that, it would plainly be childsplay and idiotic. Synthesis involves a carrying forward of portions of both viewpoints into a third term that is neither identical with the first term, nor identical with the second. The idea is not to compromise, but to reconsider previous viewpoints in the light of new evidence or lines of inquiry. For someone committed to such a process, it can be very frustrating to engage in discussion with someone who is not so committed. Once you realize that a co-participant in discussion is not participating in good faith, but rather is promoting a particular agenda, you begin to anticipate the position of the ideologue before he speaks it. When the ideologue satisfies your prediction, dismissal may be an all too easy response, since engaging in discussion is likely to end only in both sides repeating their viewpoints ad infinitum.

One of the reasons I enjoy this blog (and the comments section in particular) is that there are a lot of intelligent people of various political stripes here who have an interest in how the law affects issues and vice-versa. At times, posts can be heated or dismissive; I admit I've thrown my own barbs out from time to time, and likely will do so again when I see something egregious.

But overall, the legal framework employed here provides an interesting counter to the impulsive "that's what my daddy taught me" discussions of policy that you find elsewhere. I think it's a shame when our discussion breaks down because of irreconcilable differences in ideology, just as I think it's a shame to ridicule someone for using perfectly English words that fall outside of one's comfort range.
 

Timon Braun:

I assume from your general tone that you are a libertarian and consider most government actions to be violations of someone's rights. You are therefore eager to use the 9th Amendment to strike down just about any law above the bare minumum.

Take the 9th Amendment to mean judges may strike down any law they think violates a right, and they may start working at cross-purposes. One judge may find a pregnant woman has a right to abortion and another my find a fetus is a person with a right to life. One judge my find for a developer's right to use is land as he pleases and another may find for the neighbors' right not to be disturbed by an intrusive development. One judge my find Terri Schiavo had the right to make end of life decisions without putting them in writing and another may find that she has the right to a life-sustaining feeding tube.

Or, assuming you are a libertarian, what if some judge decides to use the 9th Amendment not to restrain government, but to expand it by finding that people have a right to some government service?
 

Article IX in the context of Madison, its author, must contextualize it (especially for an "originalist") in what Madison himself feared: That only enumerated rights would be protected. Madison hesitated including any Bill of Rights, because of this fear. That's why Article IX appears!

I don't agree that it "means" any and all "claims" to a right can be held. Rather, it states that other rights, when legitimately pressed and argued, are NOT excluded. And of all the "rights" I think most Americans would agree we have is the right to privacy. Like all rights, no right is absolute, including a right to privacy. Rights, in fact, often conflict. Thus, all rights are in some form circumscribed.

But it's unimaginable that the author of the Bill of Rights would include among those rights Article IX and then for everyone thereafter to ignore or deny "other rights are retained." In context of Madison's entire hesitation of enumerating any rights because we might gravitate only to those rights enumerated is precisely what has happened. If we had adopted Madison's own views, the right to "equal protection" and "due process" would not have had to wait until Reconstruction! A right to privacy would seem prima facie to be just another one of those "rights retained" (building duplexes in Palo Alto is way beside the point).
 

The Gay Species:

A right to privacy would seem prima facie to be just another one of those "rights retained" (building duplexes in Palo Alto is way beside the point)

But that is precisely the point. You say any right "legitimately pressed and argued" should not be excluded. But what objective standard do you have to determine what right is "legitimately pressed and argued"? Timon Braun believes that a right to build duplexes in Palo Alto is "legitimately pressed and argued" and should be acknowledged. You disagree. So do I. But what standard other than your own convictions do you have to prove who is right?
 

It's utter casuistry and folly to think one can derive a "right to abortion," any more than one can derive a "right to build duplexes in Palo Alto." The nature of "rights" is their broad claim to some intrinsic, universal human value that everyone in every situation in any time and place can claim. Since abortions are applicable only to women, no appeal to universality is possible. Thus, no right either.

However, a right to privacy, a right to self-ownership, a right to self-determination, a right to self-defense (all the unenumerated rights retained by the people under Article IX) can be claimed, because they all are universifiable! And within those unenumerated rights retained by the people, one can then cavil over the right to life (which is also universifiable and also unenumerated).

The second casuistry that must cease is trying to deny a human zyogote is not human. It's a biological fact that a new human entity is formed at conception. It's pointless to deny it.

There are many good and compelling reasons to choose an abortion, and many and good and compelling reason to do so within a framework that is itself human. That also takes into account our intuition (even if unemumerated) that we have a right to life. Rights, by their very nature, conflict. No right is absolute. And the right to self-defense is also a part of the right to life, so if a woman's pregnancy threatens the woman's life, her right to self-defense and right to life should be without question.

I'd also suggest that the truly evolutionary development of ontogeny takes a decidedly "human" cast around the 23 week. It's then that all of us can see a truly human form like our own. Before that time, the morphogenesis goes through earlier and more primitive aspects that reflect our entire evoultion on planet earth. But around week 23 no one cannot see the human form of the fetus. And our biological instincts is to defend the defenseless, whether a pet or something that looks very human growing in our women's wombs.

Prior to week 23 an abortion is not involving all these biological instincts. After week 23, they cannot help but tug at us. I'm not suggesting week 23 become a line drawn in the proverbial sand, but I am suggesting that after this point a reason for an abortion should not be delayed family planning. Gross human defects and threats to the mother's health remain viable and good reasons to terminate a pregnancy. But no longer delayed family planning. And I cannot envision any situation that could ever justify a partial-birth abortion. That kind of cruelty is inhumane.

Having suggested these considerations, we all have the right of self-ownership and self-determination, including pregnant women. Within THOSE rights, she still has the final say over her own body. And as long as human ontogeny requires a woman's body, she alone gets to determine how that ontogeny plays out in its entirety. I would personally hope as a society we could instill in women's values that delayed family planning after week 23 and partial-birth abortions are socially undesirable. Better choices avail, and they should be taken.

But unless we are prepared to deny the right of ownership of our own bodies (another right not enumerated but "retained by the people"), the final arbiter of an abortion is and always must be the woman. Not because she has a "right to an abortion," but because she has a right to own and defend her body like we all do. Even if jurisprudence cares not a wit for Article IX, I DO.
 

The Gay Species:

Obviously there is a great deal to what you say. One person's rights overlap with and conflict with another's. A pregnant woman's right to control her own body conflicts with a fetus's right to survival. Or one land owner's right to develop his/her own land conflicts with the neighbors' peaceful enjoyment of their own land.

You say there is no direct right to abortion, but one may be derived from the right to control one's body. TB might just as well say that there is no direct right to build duplexes in Palo Alto, but such a right derives from the right to control one's own property. Certainly many people would include the right to control one's own property on their list of intrinsic, universal values. But, of course, what one person does with his/her property has an impact on other people nearby.

So it is all a complex system of conflicting rights and trade-offs. But, that being the case, are the courts the best arbitors of those rights? I would view the courts' role more narrowly -- to single out rights (generally meaning enumerated ones!) so important that not even the rough and tumble of the democratic process may be allowed to intrude on them, and leave to the democratic process the decision where to draw the other complex trade-offs between one person's rights and another.
 

Enlightened Layperson:

Once we grant that not all "rights" have been enumerated, and that other "rights" have a valid claim, then we can arbitrate between competing (even conflicting) right claims.

We may do this in a myriad number of ways, including judicial, democracy, science, consequences, and appeals to untuition. In a pluralistic liberal democracy, all these factors participate in our decision making.

Personally, I default to the proverbial Cost-Benefit Analysis, however defective that analysis may be. One not only draws a ledger of pros and cons, but one weighs each entry with a relative value. The only factors disallowed are private tastes, religious dogma, or any value that cannot be universalized in a public arbitration.

So, within the CBA we can draw on various enumerated and unenumerated "rights" (those that alone are universifiable), we can then weigh the import of each, and determine a calculus that all parties can agree that is at least generally recognized and mutually understandable. And if the calculus is "indeterminate," we default to freedom rather than restriction.

The property owner who wants duplexes versus the city who wants SFRs can thus begin to examine each parties' interests in a context that each party agrees and understands is not "personal." Like many decisions in a pluralistic society, not all interests can be accommodated, but at least we have some measure other than "will to power" to arbitrate our differences.

Astonishingly (it's really not) people who do this almost always come to a decision that everyone agrees is fair, equitable, and balanced, even if there's fundamental disagreement. It's only those with provincial and narrow interests that will not abide any decision other than their personal preference and individual tastes. In the larger society, personal preferences and tastes are no way to decide a public interest or a fair and balanced arbitration. Whether Bush, Fundies, Progressives, NARAL, etc., haven't we seen enough failures to embrace commonsense?
 

PMS:

Once you realize that a co-participant in discussion is not participating in good faith, but rather is promoting a particular agenda, you begin to anticipate the position of the ideologue before he speaks it. When the ideologue satisfies your prediction, dismissal may be an all too easy response, since engaging in discussion is likely to end only in both sides repeating their viewpoints ad infinitum.

The problem with this attitude (not participating in good faith) is that Robert displays as much of it as he accuses Bart of displaying.

Gay Species:

Not because she has a "right to an abortion," but because she has a right to own and defend her body like we all do.

We don't have absolute ownership over our bodies. That's why the government can compel us to take vaccinations; prohibit us from taking narcotic drugs recreationally; and stop us from committing suicide. All of these putative 'rights' have been repudiated for decades, if not centuries, and are not seriously questioned. So our rights of ownership can be limited insofar as our behavior causes externalities (one of which in this context is a dead zygote/fetus/baby).

Moreover, "defending" your body begs the question "from what?" From the natural consequences of your voluntary choices? That argument only works discussing the 'first' right to abortion, and the 2nd right only insofar as pregnancy results from rape. If you voluntarily engage in behavior, you are generally presumed to have voluntarily accepted the known risks of that behavior. Why is that different here?

Not to mention the argument as to when the zygote/fetus/baby acquires his or her own rights of ownership and to defend his or her life.

Again, I don't think you are going to be able to reason to a consensus or 'synthesis' position on this. Too much depends on our value judgments, whether informed by religion or science or intuition or by when a fetus "looks like a baby" or whatever else.
 

Count Twist: ...Robert displays as much of it as he accuses Bart of displaying.

The question you fail to ask is, "To whom?" As in, "To whom does Robert display such disrespect." Either you are reading selectively or you assume I include you in some category with Bart (who has well earned my enmity over a period of many weeks.) Other trolls have fared as poorly as he and some have even departed, by and large. Other conservatives have found me approachable and even received apologies from me where rightly due. My relationship with you remains to be seen. I hope it will be a good one, with each of us benefiting. But that will be as much up to you as it is up to me. Where building relationships is concerned I find a friendly note to a private email goes a long way. Why not check my profile and drop me a line? I'd "go first" but there's no contact info at your profile.

CT: Too much depends on our value judgments...

I think we can agree here. But what we may fail to agree on is how such value judgments are to be made in the first place. Are you a "because the bible says so" type where value judgments are concerned? Or do you follow the, perhaps more fashionable, "because it is efficient" conceptual framework for such judgment? Are there other contenders for a legitimate scheme of judging values? Real questions, the answers to which lead to very different results. The best of all possible worlds is a result judged valuable by all these disparate criteria sets. Call me a fool, if you like, for thinking such a chimera worth the chase.

Peace.
 

As a non-lawyer, I'm interested in what those who wish to overturn Roe v Wade would hope to implement in law.

I don't mean some vague rhetoric about the rights of the fetus, but detailed foundational assumptions culminating in concrete proposals for laws and sanctions.
 

Robert:

Well, I don't know the history between you and Bart, so maybe there is a flame war that precedes your exchange. But his posts did not by their terms seem unreasonable or hostile to me, and your response was very confrontational.

As for my own views, I am certainly not a because-the-bible-says-so person, but I don't know that I can reject the value judgments of someone who does hold that view in favor of a because-the-national-academy-of-science says so, or because-Roe and Casey-say-so, or for any other reason. Religiously based value judgments are no less valid because they are religiously based, just because I don't agree with them. That's why I think we need to vote already.

Our values are all the product of our experience and religion is the experience of many people; it can't be discounted any more that your conclusions based on your personal experiences either. And yet, we still have to have laws, particularly where there are disputed externalities to our behavior, such as the issue of how to balance the rights of a mother vs. the life/potential life she is carrying.

Antonio:

Personally, I would favor a federal statute that broadly states that (A) a woman can have a paid abortion throughout pregnancy if her life or health (great bodily harm, not emotional or psychological harm) were at stake; and (B) a woman can have an unsubsidized abortion under federal law during the first trimester, and if her state allows it during the second.

So as to the 'second' right to abortion, federal law would preempt state law and allow abortion during the first trimester, and would preempt state law and prohibit abortion during the third trimester. The second trimester would be left to the states.
 

"As a non-lawyer, I'm interested in what those who wish to overturn Roe v Wade would hope to implement in law."

I don't regard overturning Roe v Wade as terribly urgent; Bad legal reasoning, decent policy prescription, after all.

The problem is actually with Doe v Bolton, issued later that day. Because it stands for the proposition that nobody under any circumstances can review and potentially reverse a physician's judgement that an abortion is medically necessary, (A rule that applies to no other medical treatment!) it made a farce of the trimester scheme promulgated in Roe. "Medical necessity" becomes nothing more than a magical incantation doctors are privileged to recite, not a professional judgement the doctors have some incentive to get right.

Roe v. Wade wasn't all that bad a compromise, even if the court wasn't entitled to make that compromise. But it's the subsequent decisions turning that compromise into abortion on demand through delivery that need to be overturned.
 

Count Twist: his posts did not by their terms seem unreasonable or hostile to me, and your response was very confrontational.

I dig; it's why I felt I owed you a direct response. I've some history here with the dude, most notably in relation to threads on the Military Commissions Act. He never has come clean about how an innocent citizen is protected by the terms of that act from arbitrary detention, and I find his refusal to do so disingenuous, at best.

CT: ...disputed externalities...

I suspect we're going to get along just fine, even when you think I'm talking crazy talk. When you say "disputed externalities" my first thought is that most folks who talk in such terms most especially don't want to fairly discuss what is and isn't an externality, e.g., since all Dow workers, board members and shareholders are humans reliant on pure water sources, how is Dow's pollution of a water table some kind of "externality"? It's like looking at a sentence, "Spiro conjectures Ex-Lax" and asking, "where does the context required to understand this end?" The immediate context for this famous example is, "What does Pat Nixon frost her cakes with?" But how old do you have to be (i.e., how much and what kind of internalized context must the reader possess) to "get" the once timely and topical nuances of this joke topically rather than its generic punch? I propose there are similar issues with choices about abortion. My *gut* feeling says the fairest answer is to use the bright line of the first breath. But I won't pretend to have developed that to either a fully expounded and sound argument yet nor even a merely persuasive one, save in the eyes of a few souls demented in some fashion similar to my own. And so I offer up that criterion here where it will get batted around by folks with sharp minds, folks who will keep me on my toes, and I will be better for it.

Happy to count you in that group, Count.

CT: Religiously based value judgments are no less valid because they are religiously based, just because I don't agree with them. That's why I think we need to vote already.

But it's not that easy. As I once pointed out to our host, and as Bart rebutted to me on this very thread, we once, as a nation, voted for Slavery, and for Prohibition. Those votes, democratic as they may have been, were certainly neither wise nor moral. (Yeah, I purposely threw in an arguable example juxtaposed to the commonly accepted example.) So before we let the semi-literate massses (much less the silver-tongued persuaders working for Falwell and Robertson!) bring this to a vote it would be nice to have *some* kind of criteria other than "whoever dumps the most bread into the TV ads is right." IMO.
 

As a non-lawyer, I'm interested in what those who wish to overturn Roe v Wade would hope to implement in law.

I can pass along to you what an abortion opponent (an ethics professor at Georgetown) once told me: in his view, life begins at conception; the Constitution protects life; therefore abortion is banned, in all cases whatsoever, as a matter of Constitutional law. He expressly said that this was the ultimate goal, that repeal of Roe was just a step on the road to this result.
 

Mark Field: I can pass along to you what an abortion opponent (an ethics professor at Georgetown) once told me: in his view, life begins at conception; the Constitution protects life; therefore abortion is banned, in all cases whatsoever, as a matter of Constitutional law.

Proof positive that even people who should know better can fall prey to shoddy thinking. If the Constitution protected "life" then we'd not use anti-biotics. Even if we allow that the esteemed professor meant to say "human life" he would still be reasoning from an unproved assumption, that the result of a sperm penetrating an egg wall triggers the application of the famous bundle of rights to the combination of those two cells. That's one view. Typically it's a terribly hypocritical view, because it uses "scientism" (as opposed to science) to support a moral position actually grounded in faith, religious or otherwise. And, true to the nature of such blind assertion of unproved premises, this line of argument seeks to rule out all discussion of matters falling in a middle only fatuously excluded. Persuasive for many, sadly, but not even a near approximation of sound.

If we stipulate this professor's childishly simple and demonstrably false (due to their childish over-simplification) premises then perhaps we might find his inference valid. But even there the use of universals, "all cases" is a red flag for critical thinkers. In this instance it is a demonstrably false conclusion, which again points to either invalid inference or untrue premises. You'd think professors would a) know better and b) hold themselves to a higher standard.

Peace.
 

Even if we allow that the esteemed professor meant to say "human life"

He did.

he would still be reasoning from an unproved assumption, that the result of a sperm penetrating an egg wall triggers the application of the famous bundle of rights to the combination of those two cells.

He's Catholic and that is their view.
 

Mark Field: He's Catholic and that is their view.

Which means the primary support for this unproven premise is appeal to authority, an authority I do not accept, namely, the Pope. But can he openly admit this is his support for his premise? Or does he use scientism? I'm inclined to expect the latter, seeing as how the Pope, going back a ways, decreed sex for procreation as the only sanctioned sex and the Church has since tended to only incorporate those portions of scientific thought which can be bent to such a purpose, e.g., the scientific knowledge of existence of micro-scopic items and their functions so as to allow conception to be set at breach of the egg wall rather than moment of ejaculation into the baby-machine. Maybe that puts it a little harshly, but, really, you invoke his Catholcism as if that were reason to uncritically accept his central premise, as if suddenly weighing the truth-value of his premises were off limits. It is not.

If you'd rather not speak for this person I'm happy to let it stand as "I cannot accept his central premise as having been settled." Peace.
 

But can he openly admit this is his support for his premise? Or does he use scientism?

I don't know how he'd answer this.

you invoke his Catholcism as if that were reason to uncritically accept his central premise, as if suddenly weighing the truth-value of his premises were off limits.

I only invoked it to explain his position, not because I agree with him -- I don't.
 

Professor Balkin: ...pro-choice advocates...

Isn't it about time we rejected this label? It does nothing except accept the framing of the women-have-only-the-right-to-life-as-a-baby-factory folks in the religious fundamentalist camp. It carries connotations that we should aggressively reject.

The question remains, when should the full rights of person-hood vest in a collection of cells? Should it be at the pico-second of egg wall breach by a lucky sperm as the Fallwells and Robertsons would hypocritically have it (i.e., science is good when it works their political will, as here, but bad when it thwarts same, hence their support of anti-science in the form of "Intelligent" Design)? Or should it be at the first exhale, which comes closer to the history of our common law? Somewhere in between as delineated by the Court with the trimester system?

The question is nowhere near settled. But what *is* settled is that accepting the labels foisted onto the debate by one particularly aggressive (and perhaps intellectually dishonest) political faction serves no one...except perhaps the Falwells and Robertons. It's time we recast this debate in less semantically charged terms, substituting, say, the Egg-Meets-Sperm label for "Right to Life" and First-Breath label for "Pro-Choice." Because, frankly, as long as we let this kind of prejudicial language prefigure our debates we deserve the choas and rancor that ensues.
 

Robert:

Pro-choice was the term adopted by abortion-rights advocates, reasoning that "pro-choice" sounded better than "pro-abortion." I don't see why you believe it carries unfavorable connotations.
 

Enlightened Layperson: I don't see why you believe it carries unfavorable connotations.

At best it sounds like a sports supplement. At worst it sounds frivolous and perhaps even maliciously so in contrast with "Right to Life." Both sides of the divide can be cast in terms of choice, when it is available, when it isn't. Both sides can be cast in terms of the right to live, who has it, when they get it. Both castings are more trouble than they are worth. But "Right to Life" is so very sexy compared to any of the alternatives offered so far that folks on that side of the divide have a persuasive advantage from the outset, because it makes "Pro Choice" a gloss for "Right to Kill".

When should the rights of person-hood vest? Should they all vest at once or incrementally? How should we decide? By the bible? By the Cato institutes's notion of scientific findings? By popular vote? The extreme ends ofered thus far are a) all such rights should vest at the sperm's breach of the egg wall and b) no such rights should vest until the collection of cells has taken its first breath. Any labels that detract from clear eyed discussion of how to justly answer the question of when those rights vest should be avoided.
 

Antonio Manetti said...

As a non-lawyer, I'm interested in what those who wish to overturn Roe v Wade would hope to implement in law.

I don't mean some vague rhetoric about the rights of the fetus, but detailed foundational assumptions culminating in concrete proposals for laws and sanctions.


Abortion should be treated as homicide with the following exceptions:

1) Self defense - The mother may use deadly force against her child when there is an imminent threat to her of death or great bodily injury.

2) Rape and Incest - This can be justified on a variation of the self defense argument in that the woman did not choose to engage in the sexual intercourse which made her a mother.

3) Disability of the Child - The child is so badly disabled that she will not survive post partum. In such a case, it is unreasonable to expect the mother to assume the risks of carrying to term such a child.
 

Robert Link said...

Mark Field: He's Catholic and that is their view.

Which means the primary support for this unproven premise is appeal to authority, an authority I do not accept, namely, the Pope. But can he openly admit this is his support for his premise? Or does he use scientism?


Robert and I agree for once. I would reject an appeal to religious authority as the basis for determining when human life begins.

Thankfully, we now have a great deal of science on in vitro human life, far more than the Court had in Roe when they were actually invoking centuries old folk theories of life like "quickening."

The current science shows that we all become living humans with our own unique genetic codes upon conception.

We reside within but are not part of our mothers' bodies during gestation. Indeed, the mother's body must modify its hormones to keep her immune system from attacking and rejecting her unborn child.
 

Bart: The current science shows that we all become living humans with our own unique genetic codes upon conception.

Illegitimate use of the definite article, a cheap trick which probably plays well with juries but which, we all know, isn't really proof at all, just another form of begging the question. You are either not honest enough or not bright enough to plumb the presuppositions of your wording. Maybe it's both.

Indeed, the mother's body must modify its hormones to keep her immune system from attacking and rejecting her unborn child.

As above, you simply assume that which is to be proved. I suppose that the food I eat isn't part of my body either, since so many chemical changes are triggered by its presence.

The point, of course, isn't to go toe-to-toe with you on each of your cheats; pointing them out generally suffices and I have no doubt that you can and will spin them endlessly, so there will always be plenty of source material to work with.

You would vest full rights of personhood at the instant the egg wall is breached, and hang the consequences. After all a slut who screws without intent to parent deserves what she gets (and it is well documented that what she gets, including her ability to get a safe abortion, legal or otherwise, varies quite unjustly along class lines.) Others would take a wider range of criteria and consequences into account, including the idea that only the most dementeded of dieties would make something so wonderful as sex a sin.

Or maybe I am just goading you again...
 

Robert, your posts certainly are interesting. I think you've missed some camps in the debate, though. There are those, such as the famous Professor Singer, who reject the Egg Meets Sperm and the First Breath positions, finding that some later event is the relevant one.

After reading some of this, I'm tempted to join his camp. I'd set the date rather late. How old are you?
 

@Thomas: I certainly didn't mean to represent that I had provided anything like an exhaustive list of positions on the matter. Thanks for adding this bit. I'll address other matters in private email, assuming your profile is accurate. ;)
 

"Bart" DePalma:

The current science shows that we all become living humans with our own unique genetic codes upon conception.

"The current science" [sic] shows that I wash thousands of human clones of me -- each with my "unique genetic codes" -- down the drain each time I wash my face. Not to mention what happens when I'm on the throne. Arrest me for this Arne-cide, "Bart". Stop me before I slough some more. 8^P

Cheers,
 

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