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September 04, 2003

Comments

Ellie

It's significant, I think, that public support for abortion rights in the US has actually declined over the past 20-odd years.

Peter Cuthbertson

I support capital punishment for murderers, and think that should include killers like Hill. I am somewhat suspicious of the whole martyrdom notion anyway. Living, breathing martyrs are perhaps at least as effective. People like Patrick Magee and Mumia have been able to write and publish propaganda justifying their actions because they were spared "martyrdom". And Nelson Mandela would *not* have been more use to his supporters as a martyr executed in the 1960s.

However, I have trouble understanding your objections to pro-lifers protesting outside abortion clinics. How is it necessarily intimidation or violent to do this? Obviously if they attacked anyone then that would be the case, but if I am reading you rightly, you seem to think there should be a law against holding up a sign or a picture outside an abortion clinic. It's almost as though you think that someone having an abortion has nothing to feel guilty about, but also that nothing should occur as she heads to get it done that might ensure a twinge of her conscience.

I think testing medicine on animals should be legal, but I don't see why that means people who disagree with me should not be allowed to hold up signs and pictures protesting what vivisectionists are doing. Ditto to the Second Gulf War. I supported the conflict, but I also supported the right of anti-war campaigners to protest peacefully, even if their signs and pictures might be emotive or offensive to those who share my view. Peaceful protest is one thing, violent quite another. I think this distinction is very clear cut and I don't see any of blurring you describe when it comes to abortion.

Peter Cuthbertson

And before someone says I am inconsistent in thinking Hill should be executed but unborn children allowed to live: Paul Hill killed two people. By definition, the baby in the womb hasn't committed any crime.

spacetoast

You object to the "martyrdom" line because it's supposedly unprincipled, but you think abortion should be a legislative issue because apparently that's less divisive or something. That's no good. If abortion is a privacy issue per Roe, then it's a constitutional issue and state legislatures cannot decide on it, whatever other value there may be in that approach. There have been some reasoned criticisms of the privacy basis of Roe, but you can't just dismiss the constitutional issue outright. You owe at least some hand-waving in that direction. And anyway, what's tragic here isn't a lack of "political resolution," it's (a) that there are mentally diseased prerational cult members like Paul Hill, and (b) sometimes they kill people.

Guessedworker

Oliver,

Would you explain to a simple chap, please, what you mean by "abortion as a necessary recourse in ensuring the stability and happiness of family life." Do you have reasonably current statistical evidence demonstrating that a "great swathe of public opinion" really does support this? Do you, indeed, have statistical evidence demonstrating the frequency of termination in the cause of a stable and happy family life as opposed, for example, to personal and professional convenience, release from the tragic consequence of rape or Downs, release from the fear of divorce or whatever?

Squander Two

You forgot to mention what I believe is a major reason for the strength of the anti-abortion lobby in the US: the fact that abortion is effectively legal, for lifestyle reasons, in the third trimester. While I believe that abortion should be legal, I also believe it should be limited, so I have to say that, if I lived in the US, I'd be on the side of the pro-lifers. I know plenty of other people who feel the same way.

And the Supreme Court's framing it as a privacy issue was moronic. I'm sure there were all sorts of justifications they could have come up with, but privacy? Roe vs Wade was a ridiculous decision.

And, of course, there are lots of Americans who believe abortion should be legal but oppose the current law because they see it as a power-grab by the Supreme Court.

Yet Europeans typically assume that the entire American abortion debate is about religion. Yet another example of European ignorance about America. Thanks for drawing attention to it.

James Graham

Peter - if you consider the abortion of a foetus as murder, then surely it follows that you would support the death penalty for doctors who practice abortion? By your definition, the only thing Hill did wrong was to take the law into his own hands, and to kill a chauffeur.

Peter Cuthbertson

I just don't understand that reasoning. It's like saying that people who want a hunting ban should be supportive of attacks on anyone who goes fox-hunting. I may not like it, but the abortionist wasn't breaking the law in anything he did any more than slave-dealers were in the days slavery was legal. Presumably you oppose slavery - does that mean you think it would have been okay to murder slave-dealers back before 1772?

In a democracy, unjust laws should be changed by peaceful campaigns, not a violent campaign of murder.

Anthony

Peter - I think what James means is that if (A) you consider abortion murder and (B) you support the death penalty for murder, then you should support the judicial execution of doctors who perform abortions. If that were the case, then Hill's crime would have been to act outside the law by killing in cold blood a man who should instead have been executed after being found guilty by due judicial process (and murder a chauffeur, obviously)

As it happens - I don't see where you've equated abortion to murder, so the arguments a bit beside the point.

Incidentally, good point re: martyrdom and Nelson Mandela - a imprisoned figurehead can sometimes be just as strong a propaganda tool as a martyred figurehead.

eric

I'm not really buying the whole martyr thing in Hill's case. If that had been so, I think one would have seen more abortion doctor killings since his arrest. Its all empty posturing.

What I do find ironic is that it seems that many who are against capital punishment don't seem to be around in this particular case.

spacetoast

Squander-

"I'm sure there were all sorts of justifications they could have come up with, but privacy? Roe vs Wade was a ridiculous decision."

Your glib dismissal demonstrates exactly why abortion shouldn't be up for vote.

" the fact that abortion is effectively legal, for lifestyle reasons, in the third trimester."

No. The fact that there isn't a strict proscription on late-term abortions, doesn't mean they are ever performed capriciously, i.e. "for lifestyle reasons." In fact, doctors who perform abortions will, in the overwhelming majority of cases, only perform so-called "partial birth" abortions when the pregnancy constitutes a significant health risk to the woman. The medical community polices itself very strictly already on this point. In reality, the partial birth abortion "crisis" is a huge scam. If there's one kind of abortion that should be especially protected, that's it, since the decision is never undertaken more seriously than in that circumstance.

James Graham

Anthony, you are quite right in your paraphrase of my previous post, but how can the "unjust" taking of a human being's life be defined as not murder? If you don't consider a foetus to be human, then fair enough, but then your opposition to abortion is likely to get rather convoluted.

Anticipatory Retaliation

Just in reference to the original post, there is a strong religious component to the debate, despite appearances. Rather than being an overt dogmatic element (although it is a factor for a lot of abortion debaters), the religious influence is kind of third or fourth order effect that ties into American political socialization.

The role that religion plays in the American abortion debate is not unlike the role that religion plays in foreign policy, prohibition, or sex laws. The influences are there, but quite subtle and easily lost in the noise of other, more immediate influences.

The one thing that does tickle me though, is that the European opposition to the death penalty could be seen as the manifestation of the Judeo-Christian tradition in public opinion. So I guess it must be all right to be religious only insofar as it can be a basis for shoddy reasoning and hypocritical views.

Val

Thanks for yet another good post. I believe you're right on Roe-Wade, perhaps the most telling example of judiciary activism trumping democracy in the US.

Anthony

James - don't ask me, I don't agree with Peter on abortion and can't speak for him.

In general, a working definition of murder could be "the deliberate killing of a human being outside of the law". Since abortion is not illegal it wouldn't be murder.

Were abortion to be made illegal on the grounds that a foetus is a full human being - with all the rights that implies - then I suppose on moral considerations one would have to support the same punishment for someone who murders an adult as one who murders a foetus.

George Peery

Roe v. Wade didn't "legalize abortion in American." Pre-1973, abortion in America was much like capital punishment is today: it was legal in some states and illegal in others. Roe v. Wade used absurd legal reasoning to usurp a state's right to legislate on this issue. This extra-Constitutional high-handedness is one reason abortion continues to be such an inflammatory issue in America.

Peter Cuthbertson

"I'm not really buying the whole martyr thing in Hill's case. If that had been so, I think one would have seen more abortion doctor killings since his arrest."

Indeed. To read some media you'd think abortionists were facing a constant life of violence and misery. I cannot express how shocked I was to read that in thirty years of legal abortion across the US, only seven abortionists have actually been murdered by anti-abortion people. Ann Coulter looked at the statistics and worked out that being a New York cabbie for a year was far, far riskier than being an abortionist for three decades. Yet to hear some people you'd think murdering abortionists was a centrepiece of being an American pro-lifer. It's like conservatives claiming that US liberalism is all about driving off a bridge drunk and killing your passenger.

spacetoast

You people who are equating abortion with murder are begging the question on the personhood issue. You need to figure out what basket of characteristics you think entails a "right to life" protection, and then you need to apply that standard consistently--there's nothing inherently special about species membership.

spacetoast

Peter-

Add to that list hundreds of bombings, arsons, and attempted murders, and then you can be shocked.

George Peery

"...the personhood issue. You need to figure out what basket of characteristics you think entails a "right to life" protection..."

Well, OK. Human life is present from conception. At that point, a living being is present whose full genetic code is determined and in place. Nothing more needs to "happen" for this tiny human form to become just like you and me -- nothing, that is, but the passage of time and a non-lethal environment.

spacetoast

George-

You've substituted one value ("potential personhood") for another (species membership), but you're still just normalizing a subjective and non-moral value. You're really at square one there. You value that a fetus can become a person. So what? People value lots of things, most of which do not imply a moral claim, much less a right. Look, there are some important preliminary problems here, for instance: Where do rights come from? What must be satisfied such that a thing may "bear rights"? Do fetuses satisfy those requirements? I think you need to look into those issues, among others.

Name:

spacetoast: "If abortion is a privacy issue per Roe, then it's a constitutional issue"

No it's not. One thing does not follow from the other. There is nothing written about "privacy" in the constitution. Abortion may indeed be a Constitutional issue for some other reason, but not because abortion is (for the sake of argument) a "privacy issue".

"There have been some reasoned criticisms of the privacy basis of Roe, but you can't just dismiss the constitutional issue outright."

Yes you can, in this context. Again, there is no "right to privacy" encoded in the Constitution. Once again you seem to be saying that if abortion falls under the rubric of privacy rights (which can be debated), then nobody can deny a Constitutional basis for prohibiting abortion restriction. But that's like saying that if I am green, then no one can deny that I am a tree. Who says that all things that are green are trees? Who says that all "privacy issues" are protected by the Constitution?


Even if abortion is indeed every bit the "privacy issue" Roe says it is, it simply does not follow that the Constitution automatically protects it against legislative restriction by the states. You seem to be replacing what the Constitution actually says with your wishful thinking on the subject: you wish there to be a "right to privacy", the Constitution is a great and cool document, so ipso facto it must protect "privacy" in there somewhere or another. But that's simply false. Now, don't get me wrong: there may indeed be some Constitutional reason or another to believe that states lack authority to outlaw abortions (for example maybe abortion is one of those unnamed rights reserved to "the people" by the 9th Amendment? who knows?), but "because abortion is a privacy issue" can't *possibly* be one, because the Constitution enshrines no "right to privacy" as such to begin with. You are acting as if not only isn't this true, but that we all agree and it's not even debatable that the Constitution protects a right to "privacy". But that's precisely the point on which many of your opponents disagree; you are trying to sidestep the entire debate by declaring it invalid. Try again.

George Peery

"I think you need to look into those issues, among others."

You asked our humble group, "spacetoast," for a definition. I gave it to you. My answer is quite straightforward. But you don't like my answer, so you retreat into obfuscation and mumble about "issues" that I should "look into".

Being alive isn't an "issue". There's no need to "look into" it. It just IS. It's life, like the stone that Dr. Johnson (I believe it was) kicked to affirm reality.

If, "stonetoast", you don't believe people are human from conception, then please tell us when they are human, and what makes them so. When is "H-Day", and what "happens" between H-1 and H+1 that hoists this nothingness to the realm of H. sapiens?

There's an "issue" for you, pal.
If you don't think humans

spacetoast

Name-

"you seem to be saying that if abortion falls under the rubric of privacy rights (which can be debated), then nobody can deny a Constitutional basis for prohibiting abortion restriction."


Not quite. I've said that the constitutional issue per se cannot be denied, not that the decision can't be criticized, or that abortion is undeniably protected by the constitution. By way of analogy, I could argue that gun ownership is not protected by the 2nd, but I couldn't just dismiss gun ownership as a consitutional issue, because that dismisses arguments already on the table.

Name:

" I've said that the constitutional issue per se cannot be denied,"

If you're saying "abortion being a privacy issue makes it a Constitutional issue" can't be denied, all I can say is: 'Fraid not. It most certainly *can* be, and *is*. It is precisely what is under dispute.

"By way of analogy, I could argue that gun ownership is not protected by the 2nd, but I couldn't just dismiss gun ownership as a consitutional issue,"

You could if the Constitution had nothing whatsoever to say about guns and/or gun ownership. Bringing this analogy back to abortion/"privacy": The Constitution has *nothing* to say about "privacy". So when you say (as you did), "If abortion is a privacy issue per Roe, then it's a constitutional issue", that is completely *false* and can most certainly be dismissed. Understand now?

None of this means that abortion can't be thought to be a constitutional issue for some *other* reason (besides "privacy"). But you have identified no such reason here.

spacetoast

George-

I'm sorry if you think I'm being pretentious about it, but those questions do have to be dealt with. My view is that a "right to life," supervenes on some minimal concept of being a persisting subject of experiences...at least a basic self-awareness. I do think though that anything possessed of a capacity for pain has a moral claim on us to minimize it's suffering in our dealings with it, but a "right to life" doesn't follow from that, and a "right to life" surely doesn't follow just from life.

spacetoast

Name-

Yeah, I think I do see what you're saying now, sorry--if you claim that the constitution doesn't protect privacy, then you get to say that therefore abortion isn't a constituional issue in virtue of being a privacy issue? That's what you're saying, right?

Name:

"if you claim that the constitution doesn't protect privacy, then you get to say that therefore abortion isn't a constituional issue in virtue of being a privacy issue? That's what you're saying, right?"

Pretty much.

There is *no* "right to privacy" per se anywhere in the Constitution, so to say that "if abortion is privacy that makes it a constitutional issue and you can't deny this" was just wrong. I'm glad we understand each other.

I hasten to add, lest I be misunderstood, that (a right to) abortion could very well be a Constitutional issue for some other (or more specific) reason. Also, *just because* there's no "right to privacy" explicitly spelled out in the Constitution *doesn't* mean that people don't have that right. (This is essentially what the 9th Amendment says.) But it *does* mean that the subject of whether "abortion" is a constitutional issue based on privacy is open to debate, which is what you were denying earlier ("the constitutional issue per se cannot be denied"). The constitutional issue most certainly *can* be denied, and is, by reasonable people: All they need do is to point out, as I have done, that the "right to privacy" is not one which is explicitly protected by the Constitution in the first place.

I want to add that it's not a mere "claim" that the Constitution doesn't protect privacy. It's FACT. You will search the Constitution in vain for any single instance of the word "privacy" or any blanket protection of something which is equivalent to privacy. Now to be fair, certainly the Constitution protects and guarantees many rights which *correlate* with privacy and are related to privacy etc, but "privacy" qua privacy is *simply not there*.

Moreover, the Constitution even explicitly assigns the government many powers to violate peoples' privacy (in any normal sense of the term) in certain situations: by allowing an income tax the Constitution implicitly allows government to ask you how much money you earn (is that not a violation of privacy?); the Constitution allows government to search your home under such-and-such conditions; the Constitution allows (in fact, orders!) the government to periodically count the number of people living in your home; etc. The notion that the Constitution protects "privacy" in some blanket way is pretty hard to support.

I suppose the most one could say would be this: as per the 10th Amendment, all things related to "privacy" are rights retained by the people, EXCEPT in cases where something in their state constitution or the U.S. Constitution allows their state or federal government to violate that "privacy". (Duh.) But there are many such cases, and the question under discussion is *precisely* whether abortion (because in pro-lifers' view it is an act of murder, thus violating the rights of the unborn child) might be one of them. This question is not settled or even clarified by deciding to slap the label "privacy" on abortion. As I've said, the Constitution makes no mention whatsoever of "privacy" to begin with. Best,

spacetoast

No, it's only a FACT that the constitution doesn't protect privacy if you're a textualist.

spacetoast

Err...ok, I shouldn't have responded like that. Look, I think we at least agree that there's something discordant about the court's understanding of abortion as a "privacy" issue.

"the question under discussion is *precisely* whether abortion (because in pro-lifers' view it is an act of murder, thus violating the rights of the unborn child) might be one of them. This question is not settled or even clarified by deciding to slap the label "privacy" on abortion."

This seems to me to be the real sticking point with Roe, i.e. whether abortion is legitimately understood as a privacy right, and not the construction of the 9th that delivers privacy rights--if there was ever a candidate for one of those unenumerated rights, it's privacy per Griswold and all of those things. What's distinctive about Roe isn't the privacy conception, but the appeal to the privacy conception in the circumstance of abortion.

Peter Cuthbertson

Spacetoast shows what defenders of abortion must sink to once exposed to the basic scientific facts, which is to deny the sanctity of innocent human life and insert their own narrower qualification of what constitutes a person. "Science says this is a human life, but I say it's not a person without x." I always find it ironic when pro-lifers are accused of elevating subjective preferences to the status of moral law, when it is they who are simply going with what scientific facts say about the status of the unborn child, and pro-abortion people who need to insert extra qualifications that have little or no scientific basis.

I think it's very dangerous ground to be on. I forget who it was said that the common theme of slavery, the holocaust and abortion was dehumanising the lower group to justify what you are doing to them. Forgive me if I don't participate.

spacetoast

Peter-

What scientific facts do you think I'm evading? Fetuses belong to the species--that's trivially true.

"when it is they who are simply going with what scientific facts say about the status of the unborn child, and pro-abortion people who need to insert extra qualifications that have little or no scientific basis."

If you're talking about my self-awareness standard, then you're wrong. Self-awareness is a coherent scientific notion as far as this debate is concerned, and certainly more so than the soul or whatever. It is also the only coherent standard following from the autonomy principle. Anyway, you need to at least take the trouble of learning the talking points of the abortion debate before your next enfilade of question begging.

This is a worthwhile text:

http://www.amazon.com/exec/obidos/tg/detail/-/0140220038/qid=1062828012/sr=1-3/ref=sr_1_3/002-8472810-1827232?v=glance&s=books

Squander Two

I don't care whether a fetus "is" or "isn't" a human being, and I don't see that the abortion debate rests on that issue.

I believe that a fetus is not a human being but that it is wrong to kill a fetus.

The above sentence may not be what I actually believe, but it certainly contains no logical inconsistencies and is a perfectly defendable moral stance. Personhood doesn't come into it.

The privacy defense of abortion is the same defense wife-beaters use. It's my body, so it's none of your business. It's my family, so it's none of your business. It's my wife, so it's none of your business. All very well, but the argument contains no proper response (other than repetition) to someone who stands up and says "Well, I'm going to make it my business, 'cause I think what you're doing is wrong." An interesting discussion, possibly, but no basis for sound law.


Spacetoast:
"The fact that there isn't a strict proscription on late-term abortions, doesn't mean they are ever performed capriciously ... in the overwhelming majority of cases, only perform so-called "partial birth" abortions when the pregnancy constitutes a significant health risk to the woman."

Yes, I know that. But that's down to doctors' using common sense and humanity and remembering the Hippocratic Oath, not their obeying the law. Roe vs Wade legalised third-trimester abortions for reasons of the mother's welfare, but then "welfare" went on to be defined by the Supreme Court as including financial, familial, or psychological welfare. Effectively, it is legal in the US to get an abortion in the eighth month because you can't afford to raise the child or because you feel that having a child will cause you to become depressed. Whether that actually happens often or at all doesn't change the perfectly good reasons why a lot of people would find such a law repugnant.

spacetoast

Squander-

"I believe that a fetus is not a human being but that it is wrong to kill a fetus."

You're right that it's not logically inconsistent, but that doesn't mean it's morally defensible. If you take this claim, you still need to identify a basis for granting fetuses a "right to life" protection.

I believe that a ___ is not a human being but that it is wrong to kill a ___.

(1) Cow.

(2) Fish.

(3) Carrot.

(4) Virus.

If you're making a sanctity of life argument, then you would concede that the above should also be granted a "right to life" protection; otherwise you need to identify the thing that distinguishes fetuses from other forms of life such that it's acceptable to kill one and not the other.

I don't really understand your response to me about the other thing, so I have nothing to add.

Squander Two

Spacetoast,

You mentioned the right to life, not me. Saying, "I think it's wrong to kill fetuses," is not the same thing at all as saying, "I believe fetuses have a right to life."


>> "you need to identify the thing that distinguishes fetuses from other forms of life"

That "thing" would be me. I can make the distinction. Can't you?


Like it or not, morality isn't based on logical analysis. It's based on humanity. There are some things that people just don't like, whether that dislike be rational or not. Even if a slave is treated extremely well, we feel slavery is wrong. In fact, most humans would rather be poor, downtrodden, depressed, and free than be a happy, respected, wealthy slave. Why? It's not particularly rational. When you analyse it logically, the former isn't really a better option. But we prefer it anyway.

And this is what you're up against. You can argue till you're blue in the face about distinguishing features of fetuses and what the nature of personhood is and where rights come from and who should have them. It all misses the point. A very large number of people think that it's very, very wrong to kill fetuses (except on those rare occasions when either the mother or the fetus can survive, but not both). Demonstrating that a belief is logically inconsistent doesn't demonstrate that it's immoral.

Now, construct a logically consistent argument to explain why it's wrong to eat dead people that doesn't rest, at some point, on the premise "Because it just is." In the unlikely event that you manage to make such an argument, explain why it proves that cannibalism laws should be changed, and explain why the voters you'd need to persuade are likely to accept your argument.

Jurjen

Oliver writes: "If the Supreme Court had kept out of it, then the abortion issue could have been settled state-by-state in exactly the way that it has, for all practical purposes, been resolved in Europe."

I understand and sympathise with that sentiment, but I'm not sure the SCotUS had the option of "staying out of it." The parties in the case appealed to the SCotUS, and in order to refuse to hear the case, the Court would set a precedent for refusing to hear cases "on appeal from specific denial of injunctive relief." Since the latter is the very purpose of the Supreme Court, such precedent would have been undesirable.

Regarding the "right to privacy," the SCotUS stated itsefl in section VIII of the ruling that "The Constitution does not explicitly mention any right of privacy," but cites case law to the effect that the right to personal privacy from state interference has consistently been regarded as implicit, particularly in the Ninth and Fourteenth Amendments. It's important to remember that the issue of State rights versus federal rights is not the only one in play here; the question of individual rights versus State rights is also under consideration, and that question is precisely what Section 1 of the Fourteenth Amendment was written, and passed, to regulate.

CS

I'd say by your own critique, you pretty much Chomsky'd this one.

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