Marty McFly on Abortion
Cool! Politico is now sending reporters into the future to flash reports back to the present day. So it seems in this piece at least. Speaking at a debate yesterday, liberal legal scholar Walter Dellinger offered the opinion that Roe V. Wade would one day be overturned by conservative judges. Wasting nary a moment, Politico reporter James Hohmann jumped into his DeLorean and reported back from the world of tomorrow:
Such a decision by the Supreme Court would pour barrels of gasoline onto the now smoldering fires of the never-ending culture war.
Wow! I'm surprised actually. I mean, I believe parents should be able to terminate their children's lives up to the moment they are self-supporting, but it also seems clear to me that Roe V. Wade is one of the most divisive events in our history. I believe it's largely the cause of the culture war and expect that overturning it would do more to cool the national conversation than any other single act. When free Americans disagree on what is essentially a metaphysical issue, they need to debate and pass different laws in different states until something vaguely resembling consensus is reached--or not. When a few people in black robes imperiously rewrite the Constitution in order to impose their vision of morality on the entire populace, it, you know, ticks people off. If Roe were overturned, I figured there'd be a lot of media/feminist wailing and gnashing of teeth, then we'd get back to the business of politics as we should. But now that Hohmann's sent the word from his DeLorean, I guess I know better.
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Re: Marty McFly on Abortion
Overturning Roe would return the abortion issue to state legislatures, where it belongs. It would also mean that every single federal judicial nomination would no longer hinge on a single issue. These strike me as healthy developments.
What frightens the Left about state legislatures is that they will have to defend the practice of abortion, as such. Right now, they can fight the battle using code words, asking prospective judges whether they support the right to "choice," or "privacy" or "reproductive rights." If they actually had to own up to what they are advocating, the pro-choice lobby will lose a lot of supporters.
Re: Marty McFly on Abortion
Ditto what Adam says.
And far from prompting some sort of new civil war, returning the issue to the state legislatures would in a lot of instances get the issue settled pretty promptly. Mississippi, Alabama, Louisiana, both Dakotas, and other conservative states would quickly enact pro-life statutes, while New York, California, Vermont, and other liberal states would just as quickly enact pro-choice statutes. No matter of state law is ever permanently settled, of course--people on both sides of the issue in all 50 states would continue to try to change the minds of their fellow citizens and enact new state laws. But the truly contentious fights--the real conflicts--would be limited to perhaps a dozen or so states.
May '10
Re: Marty McFly on Abortion
Even Justice Ginsburg, of all people, admits that Roe v Wade overreached and created the pro-life movement as it exists today. Any consistent, clear-thinking person who hates the pro-life movement, or the culture war in general, ought to hate Roe v Wade.
Re: Marty McFly on Abortion
Andrew: Abortion is a "metaphysical" issue?
Abortion is most certainly, consequentially, "physical" and not metaphysical.
To keep the discussion as a matter of science - the babies are biologically human, and alive. Allowing the physical action of killing live humans detracts greatly from an otherwise very civilized America.
Adam & Peter: Allowing state governments to decide the issue is still allowing more government power than I'm willing to cede to any government, and it is more than our governing documents allow.
The construct of America - naturally endowed rights protected by the Constitution, doesn't (isn't supposed to) allow for the killing of humans, be it by state or federal sanction.
We allow states to govern the issue of adult murder, but only to punish it. The Constitution wouldn't allow a state to legalize it, wheter it passed by legislative act or referendum.
ps - new here; first comment. Nice to meet you all.
May '10
Re: Marty McFly on Abortion
Justified Right: Andrew: Abortion is a "metaphysical" issue?
Abortion is most certainly, consequentially, "physical" and not metaphysical. · Jun 23 at 9:53am
There is no disputing the science you cite. The moral and metaphysical question is at what point should a human baby acquire human rights, and how is the conflict resolved between the baby's rights and the mother's rights?
Jun '10
Re: Marty McFly on Abortion
I'm glad we're finally hashing this out on Ricochet, it needs to be done.
Metaphysics is the philosophy of what is, or being. Therefore abortion (and all issues) are metaphysical. What IS the unborn child is the fundamental question.
Premise 1. The unborn child is a human.
Premise 2. All humans are persons and have human rights.
Premise 3. The fundamental human right is the right to life.
Conclusion: Unborn children have the right to life and are not to be denied that right by being killed through abortion.
It is very unwise to question premise 2, Mark. Such a philosophy is very dark and has a very dark history. To question premise 2 is to put one in bad company. All humans are persons and have human rights. I don't think you necessarily deny premise 2, but I'm sure you recognize the historical consequences of denying premise 2.
Re: Marty McFly on Abortion
Mark, your question deals with "personhood" which is a poltical label governed by statute and therefore subject to the wims of men. Men can grant personhood to a beetle if they change words in a statute they've written.
Human is scientific - not subject to the wims of men. Men can't grant humanness to a beetle, no matter what political powers they grant themselves.
Regarding the question you present: The American construct of naturally endowed rights which are constitutionally protected doesn't allow the question to be put to a popular vote or legislative action.
If we accept the American precept in the Declaration about what we hold self-evident, then we know we are all "created equal" and our rights are naturally endowed.
There is no room there to hold back those naturally endowed rights for an arbitrary period of time without violating the first selt-evident truth: we are all created equal - not just for a period of time.
We musn't throw out the self-evident truths of equality and naturally endowed rights and trust state government to decided what rights humans have and when we have them - a big government concession far to many of my fellow conservatives have made.
Jun '10
Re: Marty McFly on Abortion
My argument comes from a philosopher named Dr. Peter Kreeft. He teaches at Boston College, and I highly recommend his work.
http://www.peterkreeft.com/audio.htm Here's some of his lectures if you're interested
Re: Marty McFly on Abortion
Justified: the reason why I think that state legislatures get to decide abortion policy is because that is the most faithful reading of the Constitution. If unborn children qualify as "persons" under the 5th and 14th Amendments, then you could federalize abortion. But that would be to play fast-and-loose with the original meaning, which is exactly what the Roe court did. Mind you, I would enthusiatically support an amendment to redefine constitutional "personhood" to include the unborn. But until such an amendment passes, abortion simply is not a federal issue, it belongs to the States under the much-neglected 10th Amendment:
May '10
Re: Marty McFly on Abortion
Samwise, don't interpret my framing of the relevant question as a rejection of Premise 2.
Re: Marty McFly on Abortion
Adam: The 10th Amendment doesn't allow an Athenian Democracy free-for-all once reserved issues are addressed by a State. It still exists in a Constitutional framwork.
Democracy's inadequacy: 2 wolves and 1 sheep voting on what to have for lunch. Democracy will fail the sheep. That's why in a Constitutional Republic, there are certain votes the wolves don't get to take.
Certainly you wouldn't argue, based upon the federal government's failure to define personhood, that a State governernment has the right to define humans over the age of 40 as "not persons" and allow them to be killed, while protecting other humans as persons.
You would cite the Constitutional protections of both the 5th and 14th Amendment and make equal protection arguments, no matter what the new state statute said a person was or was not. You would note the constant - each is human.
Where do you then find the State government power to exclude younger humans? Are you asserting the 10th Amendment somehow trumps the 5th and 14th?
May '10
Re: Marty McFly on Abortion
Justified Right, assuming you're an originalist, addressing just the legal question, I guess you'd have to show that the original meaning of "person" in the Constitution included unborn babies. If you did that, you would effectively prove that not only should Roe v. Wade be overturned, but that the abortion issue should not be returned to the states, because legalized abortion is and always has been unconstitutional (at least since the passage of the 14th Amendment).
Jun '10
Re: Marty McFly on Abortion
Since unborn babies are human (this is a medical fact), and thus persons, the meaning of person naturally apply to them. Like 40 year olds, since they are human, and thus persons, the term applies to them as well. No one would suggest that we would have to show that the meaning of "person" includes 40 year olds but they share the same metaphysical nature as the unborn child as both are humans. Metaphysics are turning out to be quite important...
Reworded, the question might state, how can we show the meaning of "person" in the Constitution applies to 40 year olds? The proper response is the same answer and the conclusion of Roe's unconstitutionality is valid as well.
May '10
Re: Marty McFly on Abortion
Samwise, I'm not trying to convince you that babies aren't people. I'm just riding Adam's wake (post #9) to say that in order to prove that the Constitution forbids abortion you'd have to prove that the original meaning of the word "person" as written in the Constitution included unborn babies. Obviously right now the courts either don't believe that or they don't care. And most conservatives who want to see Roe v. Wade overturned so abortion can be decided by the states probably haven't given the question much thought.
Re: Marty McFly on Abortion
And not just certain unborn babies but all fetuses from, presumably, conception until birth. It's logical to argue that all fetuses are human from the instant they are conceived, and that because they are human they are persons and ought to be legally recognized as such. But the law already distinguishes among the murder, the unlawful killing, and the lawful killing of adult human beings with full legal personhood. The reappearance of these distinctions in the womb is an obstacle to that logical argument.
Re: Marty McFly on Abortion
Mark and James: I start my legal analysis 11 years before the Constitution, when we "declared" that our freedoms are not granted by other men, rather we are created free. It is an extension of I think therefore I am - "I am, therefore I have rights."
The Constitution was not written to grant me rights or forbid me rights. It was written to tell the government what rights they may not take away from me. Some they may take away from me. The rights that are "inalienable" they may not. Among the inalienable rights are both Life and Liberty.
So Mark your perception of my position was spot on - abortion has always been illegal by denying a human the Life and Liberty granted when the human was created. The 5th and 14th Amendments reaffirmed the inalienability of Life an Liberty. The 1973 Supreme Court ignored it all.
My "originalism" goes back to America's original document, before the Constitution;-)
James: I'm not sure what "obstacle" is presented by applying those distinctions you mention to the womb. Doesn't the law already do that? For instance, one gets 2 murder charges for killing a pregnant woman, etc.
Jun '10
Re: Marty McFly on Abortion
I'm agreeing with what JR is saying.
Mark Wilson: Obviously right now the courts either don't believe that or they don't care. And most conservatives who want to see Roe v. Wade overturned so abortion can be decided by the states probably haven't given the question much thought. · Jun 23 at 5:16pm
I agree. I believe the court's official position is that life's beginning is a "great mystery" from Justice Kennedy in the Casey case. We don't know when life begins... seems odd to me because this position should count against abortion. I'm out for a hunt and there's some shrubs moving over there, it might be a deer, it might be my fellow hunter. Oh, ok, shoot!....hmmmm.
I understand your point on the constitutionality of protecting persons. My point is simply: persons are persons. The constitution protects persons, that is any person who falls under that category, no? The founding fathers probably thought the idea of abortion so insane that they didn't feel the need to specify unborn persons as distinct from others. But, that's the horrible situation we're in I guess.
Jun '10
Re: Marty McFly on Abortion
But the law already distinguishes among the murder, the unlawful killing, and the lawful killing of adult human beings with full legal personhood. The reappearance of these distinctions in the womb is an obstacle to that logical argument. · Jun 23 at 5:29pm
When do we allow the lawful killing of persons? I can think of self defense, in some cases the death penalty, in war, and horrifyingly abortion. Only in one of these cases (abortion) do we "allow" the direct killing of the innocent (which is never morally permissible). This is also the only case where the one being killed has no active agency.
As an aside, I always find the term full legal personhood perplexing. Is there such a thing as half personhood, or partial personhood? Heh, how odd. I think it bothers me because it is too often used by those trying to do horrible things. I can just imagine one of my libbie profs from college, "Well sure they're a person, but do they have full personhood?" Anywho.
May '10
Re: Marty McFly on Abortion
Not sure I agree with your conclusion here. If you grant the premise that "we don't know when life begins" then can the government prohibit abortion on the grounds of caution? You can't do that because it might be causing someone harm, but our official position is that we don't know? That seems opposed to the supposition that the government needs to show a compelling reason for restricting freedom.
Of course neither of us buys their premise that "we don't know when life begins", but I think the above represents the most common argument in favor of a right to abortion.
May '10
Re: Marty McFly on Abortion
But might it not be the opposite? The government should need to show a compelling reason to permit the killing, given that "we don't know" about the status of the intended victim. In fact, that's a point that has bothered me for years about all of the various death-permissive movements. We didn't know for sure what was going on during Terri Schiavo "persistent vegetative state," so the appropriate response was to starve her to death??? Caution is a perfectly reasonable response to the unknown, particularly given how permanent death is. Look at the lengths we go to before executing a criminal; it is exactly because execution can't be reversed and we don't want to make a mistake. Shouldn't the innocent helpless get the same consideration?.