Wednesday, April 18, 2007
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A 5-4 Decision Against Barbarism
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Posted by:
Hugh Hewitt at
1:38 PM
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The good news is that an abhorrent procedure is outlawed.
The bad news is that Casey remains good law, and its holding remains elusive. Would a state statute prohibiting post-viability abortions except when the life of the mother was in danger be upheld? Perhaps. We don't know. It would be Justice Kennedy's call, I suspect.
But there is good news in the disappointment we see in the dissent, authored by Justice Ginsburg:
Today's decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey, between previability and postviability abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman.s health.
I dissent from the Court's disposition. Retreating from prior rulings that abortion restrictions cannot be imposed absent an exception safeguarding a woman's health, the Court upholds an Act that surely would not survive under the close scrutiny that previously attended state-decreed limitations on a woman.s reproductive choices.
The senators suspicious of the Chief Justice's and Justice Alito's testimony have no basis on which to complain that they were deceived. The two did not join Justice Thomas' concurrence, but neither can that be read as a guarantee of Casey's viability or reach down the road.
A victory for life, though not a sweeping or even a secure one. And a decision that invites state legislatures to take seriously their obligations to enact laws to protect the unborn.
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Personhood is indeed a social/legal issue as you say (although not limited to those arenas), but that's one of the main reasons why it's worth discussing/debating -- to determine what our laws should be and to arrive at a moral judgment on a societal level (and also on an individual level). And for that purpose, I'd rather start by focusing on the central question of what SHOULD define personhood rather than jump to a discussion of current legal definitions. And science is indeed relevant if we are to discuss what an embryo/fetus is in terms of its attributes and capabilities, and how those attributes and capabilities fit (or don't fit) with attributes that make a person a person.
Sounds like we agree at least that a person who irretrievably loses the potential for cognition (by virture of having a destroyed brain) ceases to be a person. So I think we agree that at least some brain activity is key to personhood (although we disagree on whether or not an organism must have that brain activity, and more precisely cognition, in the present or past to be considered a person -- for you, potential is sufficient).
We seem to disagree, though, on two points. One point we should be able to get past easily. I have stated that I think cognition (present cognition or past cognition with the potential to regain cognitive capacity) is what defines personhood. I have stated that we can obviously conclude that an embryo with zero brain activity could not possibly be capable of cognition (which I assume we can agree on). You have responded that there is brain cell activity starting at or within three weeks of gestation, and I have, in turn, explained that I am talking about at the very least the existence of brain waves, and you then responded that brain cells are "operating" at or within three weeks. First, I've tried to make it clear that I'm talking about at the very least "brain waves", which are much more than mere cell activity. I just checked a couple of pro-life web sites, and they, too, make this distinction. And initial brain waves are still a long way from brain functioning, which is still a long way from cognition. So, if we're talking at least for the moment about applying cognition as a criterion for personhood, "brain cell activity" is an irrelevant reference point. In any case, it seems that we already agree that prior to this brain cell activity that you refer to, no cognition is possible, so IF you considered cognition (present or past) a requirement for personhood (I know you don't, but just for the sake of argument), than logic would dictate that you would not consider an embryo a person prior to the onset of that brain cell activity. So, no offense intended, but really the points you've raised regarding brain cell activity are irrelevant to our discussion, because (1) brain cell activity does not amount to brain functioning, let alone cognition, (2) even if the brain cell activity standard did represent possible cognitive capacity, and if this brain cell activity begins at three weeks, then you would have to say that an embryo in the first three weeks (for example, in the first week) is not a person if personhood would require possible current cognition, and I assume you would not accept this position (i.e., you would still say that the one week embryo is a person), because (3) you simply reject current or past cognition as a requirement for personhood, which leads me to...
The second, and key area of our disagreement is on the "potential" criterion. You agree that when a brain has permanently lost the ability to function, there is no longer a person. But a pre-cognition embryo, of course, has the potential to develop cognitive ability if the pregnancy proceeds, and for this reason you consider it a person. I've explained my reason for rejecting potential cognition as a qualification for personhood (for an organism that has never had cognition) in my previous comment posted on Sunday, April, 22, 2007 12:14 PM, to which you have not responded directly (please re-read it if you wish). Essentially, if present or past cognition is a requirement for personhood, it doesn't make sense to me to consider an organism with no such cognition to be a person merely because that organism can develop cognitive capatility in the future (again, please see that previous comment for elaboration). I would be interested in any thoughts you may have regarding my points in that previous comment regarding the "potential" argument. |
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»»“Brain cell activity” is not brain activity««
Still, it's potential, and, without brain cells, there is no brain.
Brain cells are operating in the first three weeks.
However, YOU're standard is potential, and the unborn's developing brain has potential.
»»...I’m referring to at least the presence of brain waves...««
Brain cells, from the first ones, send out waves. They are operating.
Brain dead is the standard for death.
That means her brain is sending NO signals, nor waves, and, if you unhook her from the machine, the body goes, too, cuz the brain ain't keepin' her body goin'.
If her brain is dead -- no brain, nor brain cell, activity -- she is dead, and, if she is dead, she is no person. The Constitution protects no dead person. A person must be capable of enjoying Rights granted by the Constitution.
The unborn may be represented by a guardian because the unborn are alive and moving forward.
The dead woman of moving nowhere. A dead person is not guarded.
»»a headless body whose organs were somehow being sustained (i.e, kept “alive”), would you consider this headless body to be a person««
No.
That body has no brain, and the body cannot live without a brain except that a machine keeps it functioning. A body is not a person without a brain.
However, if the woman's brain displays even the slightest brain activity, she is still a person.
This is all moot cuz Science doesn't determine "personhood." The defining organizations of our representatives, with our input, define "personhood."
"Personhood" is a social/legal issue. |
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You say "Brain cell activity is happening in the first three weeks."
I think it’s clear from the context of my previous statements that “Brain cell activity” is not brain activity as I (or people generally) would use the term, which would require brain waves. Cell activity is not the same as organ activity, let alone organ functioning, let alone the brain performing cognition. The term “brain activity” I’m talking about brain activity representing even the possibility of cognition (thoughts and/or emotions). I assume that neither of us wants to be distracted needlessly by a debate over semantics, so please assume that, when I refer to brain activity, I’m referring to at least the presence of brain waves, because without brain waves there is, of course, no possibility that cognition is taking place.
You say "YOUR standard revolves around "potential." There is as much potential in the unborn child's brain elements as in the comatose woman."
You seem to be misconstruing my argument regarding potential. I’m saying that potential future cognition is INSUFFICIENT to consider an organism a person if that organism that has never had cognition (i.e., has never established personhood), but potential is SUFFICIENT for one that has had cognition in the past, thus establishing personhood as the person in the vegetative state has, even if that person is not currently experiencing person-like cognition. Please let me know if that is still unclear to you.Back to my previous hypothetical about the woman in the vegetative state, you avoided answering (I’m not saying it was deliberate) by essentially rejecting a premise of the hypothetical – i.e., that a woman in a vegetative state whose brain has been removed could be kept alive. I quickly followed up that comment with another comment offering to substitute a hypothetical in which the brain were not removed, but rather that the parts of this woman’s brain responsible for cognition have been irreparably destroyed (say from disease or injury), yet she is kept alive (it’s essentially the same hypothetical, but the point was to discuss the principle involved, rather than debate current medical feasibility, so I was hoping to avoid such a distraction).
So again, let’s assume there is a woman in a vegetative state who is currently incapable of anything that could possibly resemble person-like cognition (i.e., person-like thoughts and emotions, as opposed to a brain that maintains internal organ function, reflexes, or even cognition on par with a primitive organism), and let’s assume that the irreparable damage to her brain means that there is no possibility that she will ever regain such cognitive capability. She is, therefore, the equivalent of a headless body that is somehow being kept alive, but the difference is that her brain, combined with medical assistance, is able to continue organ function and keep her alive. So the question is, would you consider this essentially brainless body (brainless with regard to cognition) to be a person, and if so, based on what criteria for personhood? And – forgive the following hypothetical for its gruesomeness and please just for the sake of argument accept the premise even though it’s not medically possible (yet) – if we had before us literally just a headless body whose organs were somehow being sustained (i.e, kept “alive”), would you consider this headless body to be a person, and if so, what’s the difference between this headless body and a body with a destroyed brain? |
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»»an organism that has the POTENTIAL to be a person does not therefore qualify as a person, nor does it have the same right to life as one who has already established personhood. ««
YOU brought up "potential" as being significant to personhood. The unborn have potential. Abortion deprives him of it.
»»an embryo that is COMPLETELY devoid of brain activity««
It is not. Brain cell activity is happening in the first three weeks.
In any case, YOUR standard revolves around "potential." There is as much potential in the unborn child's brain elements as in the comatose woman.
Still, the elements of brain are there beginning at conception. From that, we get potential.
A butterfly is a butterfly throughout the process. The butterfly goes through stages of being a butterfly.
An acorn is a tree at its earliest stages, but still a tree.
A person goes through stages of being a person, and conception is part of that process of stages. Conception is the beginning of the birth process. From conception, everything moves forward.
The Fourteenth Amendment says, "A person who is born..."
That means that the unborn are persons who go through the birthing process, not that one is not a person until he is born. It means that a person is in the womb, is born and continues to be a person. Citizenship requires birth; but the unborn child is still a person -- though not a citizen -- before being born.
The Fourteenth Amendment defines "citizenship," not "personhood," except for the fact that it recognizes that a person exists in the womb and that he may become a citizen, if he is born. |
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Thanks for the questions you raised, Swampthing.
First, from one of my previous comments:
The difference between a pre-cognition embryo and a person in a vegetative state, assuming the latter has some chance of recovering cognition (e.g., the relevant parts of his/her brain have not been destroyed) is that, while both are not currently capable of cognition, the latter has already established personhood by having had a history of cognition (thoughts, emotions, a personality, etc.), whereas an embryo has never had such cognitions and therefore has never established personhood.
Second, regarding the “potential” argument, it is true that one could say that what makes murder immoral is that it deprives a person of the future he/she would have. However, an organism that has the POTENTIAL to be a person does not therefore qualify as a person, nor does it have the same right to life as one who has already established personhood. If potential persons were equivalent to persons, than we would all be mass murderers for not devoting all our energies and resources toward maximum procreation (and I don't just mean avoiding birth control, I mean literally doing everything possible to maximize the number of births). Now, I would expect you see a critical distinction in that the fetus, if not disturbed, would likely reach a level and type of cognition that would qualify it as a person by my general criteria of thoughts and emotions, but this distinction does not change the fact that it does not yet meet those criteria for personhood. One related question: Since embryos in a lab, such as those potentially used for embryonic stem cell research, would NOT proceed naturally toward cognitive capability if left alone, would you consider them not persons? I realize you may reject cognition-related criteria altogether, but your point seems to be that even with such criteria, a pre-cognition embryo qualifies as a person by virture of its potential for future cognition, so my refutation of that point is pertinent.
Now, some see the real challenges/problems of applying cognition as the criterion for personhood (i.e., the "slippery slope" of determining and deciding upon what level and type of cognition is enough) as reason for rejecting the cognition criterion altogether and using some other criterion like conception or birth or viability, but this "slippery slope" need not preclude us for acknowledging cognition as the appropriate criterion and applying it at least to a limited extent. Take an embryo that is COMPLETELY devoid of brain activity, and therefore obviously lacking any capacity for thoughts and emotions in its current form, and of course having no history of such cognitions). If we can agree on person-like cognition as the defining characteristic of personhood, we would have to agree that such an embryo is not a person. The fact that it would be difficult – and even potentially dangerous – for a society to reach a moral and legal determination as to exactly what level and type of cognition qualifies a fetus as a person does not mean that we cannot hold that an organism with NO cognition at all, nor any history of it, does not qualify as a person. To draw an analogy (imperfect, but close enough for this purpose), just because it may be difficult to determine – i.e., to reliably and validly measure and agree on a standard for – exactly at what point in metamorphasis a caterpillar becomes a butterfly, it does not mean that we can’t draw a distinction between a caterpillar and a butterfly and say that a caterpillar prior to the onset of the process of metamorphasis is clearly not a butterfly. Certain characteristics are required to distinguish a butterfly from a caterpillar, and if an organism has NONE of those characteristics, it is not a butterfly, even if it is less clear and more debatable the EXTENT to which the organism must have those characteristics to qualify as a butterfly. |
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...Dead Woman not Person
»»If a woman in a coma has a chance of regaining cognition, she is indeed a person««
If the unborn child, under normal circumstances, has the potential of cognitiion, he is a person.
The elements that form the brain are present at conception.
Therefore, the potential of cognition is present, and, therefore, the unborn, by your defintion, are persons.
However, inheritance law and regulations of the Department of Health and Human Services treat the unborn as a person -- that is, they are jural persons -- beginning at conception.
If you take a Rambler completely apart, is it still a Rambler?
If you pull out each hair of a horse's tail, is it still a horse's tail?
If you have a woman's brain in one county and her body in another, is she still a person?
When the brain of a woman in a coma leaves the body and is no longer working, she is dead. The dead are not persons, and the Constitution doesn't protect them cuz the Constitution protects only persons. Brain death is the criterion. Can't keep the brain goin' if it wants to go. You can keep the body goin' indefinitely; so working body cannot be the standard.
The fundamentals of the brain are present at conception, and growth of the brain moves forward from there. Potential exists and increases, per YOUR standard.
Therefore, the unborn child is a person at conception, by YOUR standard. |
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Any answer to my hypothetical question? |
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If a corporation is a jural person -- that is, it is treated as a person -- then, as the law shows, the unborn are jural persons, too. |
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I'd be interested in your answer to my question (my hypothetical) if you wish to answer.
I'd also be interested in any response beyond your comment about a corporation. I'm afraid I don't see the relevance. |
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Does a corporation have "congnition"? No. Yet, it is a jural person. |
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Quick note re: my hypothetical above of the comatose woman whose brain is removed and destroyed: If matters (which it shouldn't), you can substitute a comatose woman whose brain has suffered complete and irreversable destruction of the parts of the brain that produce cognition. It's the same hypothetical, but if you'd rather consider one less abstract, there it is. |
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I'll be glad to respond to your points (in quotes), and I look forward to your subsequent comments. I'd prefer to stay away from sarcasm and address each other's points respectfully, but you can proceed as you wish.
"So, a ninety-two year old woman in a coma isn't a person. We get it."
If a woman in a coma has a chance of regaining cognition, she is indeed a person, because, unlike a pre-cognition embryo, she has already established personhood by virtue of having had such cognitions (thoughts, emotions, personality). If, on the other hand, her brain were removed and destroyed, but her body kept alive, would you still call the brainless body a person?
"Do animals have "some minimal level of thoughts and emotions"? If they do, then, according to your standard, they are persons."
I was merely saying that without any thoughts and emotions, I do not believe an organism is a person. It's a condition that is NECESSARY for personhood, but I'm not saying it's SUFFICIENT, so your application of my statement is not logical. If I said that if an organism is not a mammal, it can't be a person, it wouldn't mean that I'm saying that anything that IS a mammal IS a person.
"We can call anybody a person, if we want. It's not a scientific standard that determines "personhood." Science can define what is human, and that is 46 chromosomes."
I agree that an embryo/fetus is undeniably human. It has those 46 chromosomes as you point out. But that's not the same as saying that it is a person. Which brings us back to my question, What do you think makes a person a person? And going back to my hpothetical about the living body from which the brain has been removed and destroyed, and which still, of course, has those chromosomes, what makes that body -- which has zero chance of ever regaining the brain/mind of the person whose body it was -- a person? It just seems to me that if you destroy the brain, you have destroyed the person, regardless of whether or not there is still a living organism with human DNA. Do you disagree?
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»»What makes a person a person? I think it's cognition -- some minimal level of thoughts and emotions.««
So, a ninety-two year old woman in a coma isn't a person. We get it.
Do animals have "some minimal level of thoughts and emotions"? If they do, then, according to your standard, they are persons.
»»an embryo with no capability nor any history of any cognition is not a person by my criterion. ««
We can call anybody a person, if we want. It's not a scientific standard that determines "personhood."
Science can define what is human, and that is 46 chromosomes.
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As I said, I was hoping not to get diverted into a discussion of SCOTUS and the Constitution, but let me just say this. It would seem quite simple to me: If the fetus is a person, killing it is murder, except under the same conditions in which killing any person is not murder (such as self-defense, which would correspond to saving the life of the pregnant woman). And we don't allow murder no matter how burdensome the alternative. That's why the fundamental question in the whole abortion debate should be what defines personhood. What makes a person a person? I think it's cognition -- some minimal level of thoughts and emotions. If you removed the brain from an adult and destroyed it but kept the body alive, I would not consider it a person any more than I would a decapitated body. Similarly, an embryo with no capability nor any history of any cognition is not a person by my criterion.
And yes, the exact level and type of cognition that should qualify a fetus as a person is somewhat subjective and also difficult to measure precisely with current science, but that doesn't mean we can't conclude that an embryo with zero cognition doesn't qualify, so the slippery slope argument that some present (i.e., that if we use cognition as the criterion, there's the danger that the standards for the level of cognition will be set too high) does not apply to a pre-cognition embryo that has absolutely no cognition whatsoever.
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»»I did not mean to imply that the Constitution guarantees abortion rights. ««
Yet, according to Roe SCOTUS, the only person before it was the woman, and only persons get Due Process.
So, SCOTUS said that there is privacy in the Constitution -- although the Court had to cut'n'paste like crazy to get it to fit. It said that, from this privacy, the Right to decide to abort springs. Thus, without privacy, no Right to decide and, thus, no abortion allowed.
So, if you're gonna talk about abortion, you're gonna have-ta talk about the Right to decide, and, in order to talk about that, you're gonna have-ta talk about privacy. It's all connected.
Now, however, if there is an unborn person in there, in the woman, things change, and the Roe SCOTUS recognized it when it said that, had the mere sugestion of personhood of the unborn been established, it would have had to rule the other way.
This means that what is now called an "undue burden" of anti-abortion laws on the women would turn into "due burden."
So, personhood is key as to whether the woman is a victim of undue burden, or has the responsibility of a due burden.
If she has a due burden, it springs from the due process Rights of the unborn person, as the Roe SCOTUS said. |
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To me "morality" means trying to help others and not harming others, at least unless there appears to be justification. Application of this morality means weighing the likely and possible consequences of an action in terms of how it benefits or hurts others, rather than holding that a particular action is absolutely right or wrong in all circumstances, regardless of the likely consequences in terms of benefit or harm to others, based on scripture or any other absolute mandate regarding such an action. I assume that's what you call "moral relativism". If so, I believe a better term would be "real morality". To use an example, one could say that killing innocent people is immoral, based on either scripture or simply a secular absolute, but if we could have bombed Hitler's residence in 1938, even if that meant the bomb would kill some innocents there as well, potentially averting WWII and the Holocaust and saving 50 million lives, would that absolute still hold? I think not. I think the moral thing to do would be to proceed with the bombing. The point is that any given action can be either moral or immoral depending on the intended consequences (assuming the actor has assessed and contemplated the likely consequences to a responsible degree).
If you have a different view of morality, well maybe we need to have two different words, but I think what distinguishes good from evil is a matter of harm or benefit to others, not some mandates in scripture or other absolutes. |
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»»there's nowhere to go from there as far as discussion or debate, because you hold certain truths to be absolute and not open to debate...««
And you believe there ae no absolutes, and that's why we're in the trouble we're in. |
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Thanks. Unfortunately, there's nowhere to go from there as far as discussion or debate, because you hold certain truths to be absolute and not open to debate (i.e., It's true because the Bible says so, and the Bible is right because the Bible says that the Bible is right). But you're entitled to your beliefs and I wish you well. |
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»»I know some of you conservatives see "liberal media bias" everywhere...««
And, so, there must not be bias anywhere? |
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»»the question is over the criteria for personhood and whether or not an embryo/fetus meets those criteria««
The defining bodies of government decide this just as they decided that Negroes meet the criteria. |
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Yes, I agree with your points that we have certain laws that exist to protect minorities. And yes, I agree with the need for that--to some degree.
You want to know my real feelings on this? Probably won't like them, but here goes:
This is a completely imperfect system. While it's better than any other form of government, the Founding Fathers were men. So, if we govern strictly based on their writings and their beliefs, then we will not have a perfect system.
In my faith, the laws of GOD supercede those of the Founding Fathers, and only under those laws will there be absolute fairness to everyone--born, unborn, vegetative, minority, etc. Personally, I look forward to the day when that Kingdom reigns, and we no longer have to have these discussions. As "unfair" as it seems, I don't feel apologetic that I long for this time, or that I believe Jesus the Christ to be the only truly fair governor. And that is where things get dicey.
As you so nicely put in your first posting, the "religious right" (my term--not yours), like me, are often unable to see the world from any other perspective. I can talk with you (hopefully kindly), but I won't change my opinions because I believe GOD's laws trump any "rights" that man may claim. This is very troublesome in trying to define society in association with people who don't have the same beliefs.
So what do we do with this? I don't know. I pray for His coming, and I do think dialogue such as this is useful--at minimum for us to develop patience and practice civility. And you are not a troll. For what it's worth, there are many of us on this side who enjoy good discussions--and are very generous.
My best to you. CM
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Just want to make sure I don't cause discussion of the topic I raisd to be diverted to a debate over constitutionality. My question is simply about what defines personhood, with the right to life that it implies, whether such a right is established in the Constitution, legislation or not at all. We all agree that deliberate killing of a person (other than in self-defense or war or, arguably, police enforcement) is murder and should not be legal. Therefore the question is over the criteria for personhood and whether or not an embryo/fetus meets those criteria. |
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Quick note re: my previous commment. I did not mean to imply that the Constitution guarantees abortion rights. That's a separate debate, and I'm not expressing an opinion one way or another on that question. |
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Thanks for your thoughtful response (On RedState.com I was branded a "troll", ridiculed rather than seriously responded to, and soon kicked off for raising these questions and presenting these views. So far it seems that this community is more willing and able to engage in serious, respectful discussion/debate).
To respond to a couple of your points/questions:
The difference between a pre-cognition embryo and a person in a vegetative state, assuming the latter has some chance of recovering cognition (e.g., the relevant parts of his/her brain have not been destroyed) is that, while both are not currently capable of cognition, the latter has already established personhood by having had a history of cognition (thoughts, emotions, a personality, etc.).
Regarding "majoritarianism", the purpose of much of our Constitution, particularly the Bill of Rights, is to protect the rights of the minority. I assume that you do not think our Constitution does not guarantee rights other than those that are granted through legislation or other mechanism of majority preference, and I assume most people would not want to live in an America that was so. For example, I sure wouldn't want the federal government or some state or local government to be able to shut down the conversation we're having now and arrest us, even if the majority wanted to do so. The First Amendment protects us whether our conversation is desired by the majority or not. |
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I don't intend to spend a lot of time here today, given I've got to work! I appreciate all the elements of your posting--clearly you have considered this issue indepthly.
But, I don't necessarily subscribe to the presumption that only our thoughts and our emotions define us as persons. Moreover, you give credence to potential future thoughts/emotions for the vegetative state.
First: I haven't given a lot of thought to it, but my initial reaction is that our genetic code--distinctly human--should be somehow involved in a definition of personhood--nay, possibly the basis. Given that, I would argue that things such as embryonic stem cell transplants and even in-vitro fertilization violate personhood. What about all the zygotes that go bad--the result in miscarriages, etc? Yep, those were persons too--with some sort of sickness that abbreviated their life early--the same as Huntington's or lymphoma, etc. As laborlawyer has asked, what about the birth control pills and the IUD's, etc. that has as a mechanism of action the prevention of implantation of a fertilized egg: yep, those should go too--if we're going to be consistent about what is "life". Personally, I am always amazed at the individuals who are pro-life but think in-vitro fertilization is okay--where embryos sit in freezers or are thrown in the garbage.....either you think life occurs at conception or not. Can I give anything other than a religious basis for this argument? No. I completely agree with you on that point. However, this doesn't trouble me, considering our government was founded on the premise of Constitutional majoritarianism.... As I have said, I know nothing about law, but this seems to me to say that the majority rules...????
Second: If the vegetative person should be allocated the potential for future thoughts & emotions and be considered a person, then why not the unborn baby in the first 12 weeks of life? |
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I was being ironic. I know some of you conservatives see "liberal media bias" everywhere, and will go to great lengths to "point it out". To which I ask: Would you like some cheese with that whine? |
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Well stated. I agree completely. |
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Despite the widespread, perpetual debate over abortion, rational arguments are rare. Pure pro-choicers, pure pro-lifers and those advocating mixed approaches all typically present arguments that are logically flawed.
Pro-choice advocates often skirt the critical question of whether or not a fetus in a person, relying instead on arguments of personal freedom, economic hardship, birth defects, etc., none of which are valid if the fetus is a person. You can't "choose" to kill a person, except in self-defense (which, in this case, would be to save the life of the mother). For all the typical pro-choice arguments, ask a simple question: Under the same circumstances, would it be moral and should it be legal for a mother to kill a baby? If the answer is “no”, then, unless one is contending that the fetus is not a person, he/she is contradicting himself/herself. That is not opinion, but rather logic. If it’s ok to kill “A”, but not ok to kill “B”, than “A” must not be the same as “B”.
For example, should a poor woman have the right to abort a fetus if she cannot afford to raise a child? Well, if you’re not defining the fetus as a non-person, you are supposedly extending that right to murdering any other children she may already have. Wouldn’t a ban on abortion result in unsafe, back-alley abortions? Well, if the fetus is a person, then abortion is murder, and we don't make murder legal to make it safer for the murderer. Even the “my body” argument does not hold up to this scrutiny if the fetus is a person: Imagine if you or someone else, rather than the fetus, were attached to that woman’s umbilical cord and dependent on it to survive for the next several months. Assuming this condition is no threat to the life of the woman, does the “my body, my choice” argument hold water now? And so on. For any such arguments, simply replace "fetus" with "baby" or "child" and ask if the argument still holds. To be internally consistent -- i.e., logical -- one has to either assert that the fetus is not a person or that one should have the right to kill a person under the circumstances presented.
Pro-life advocates do focus on the central question of whether or not a fetus is a person, but they either refuse to admit that religious doctrine is the sole basis for their belief that a fetus -- or even a fertilized egg -- is a person, or they don't recognize that, as long as the U.S. is not a theocracy, their religious beliefs alone are an inadequate justification for denying choices to other Americans, particularly when such choices involve such heavy personal matters. By what possible criteria outside of scripture can a fertilized egg be considered a person, entitled to the same right to life as you and I?
Some pro-lifers add the argument that what makes abortion morally wrong and what should make it illegal is that abortion eliminates the future of a person, regardless of whether or not you agree that the fetus is itself a person yet, just as what makes any murder immoral is that it eliminates the future of a person. But if one accepts this argument that preventing future lives from emerging is the moral and legal equivalent to murder, than any of us who have practiced birth control – or, for that matter, any of us who do not spend every waking moment seeking to reproduce, and offering up our spouses for that purpose during our non-waking moments – is guilty of mass murder. Clearly, morally and legally, only existing persons can have the same right to live further that you and I enjoy. Moreover, a tadpole is not a frog and a caterpillar is not a butterfly simply because of their potential.
A bizarre hybrid position, obviously derived more from politics than principle, is advocacy of banning abortion with an exclusion for rape. Holders of this illogical position contend that the fetus is a person and therefore abortion is murder, but if this person were conceived via rape, then murdering this person should be legal. If this fetus is, as they contend, as much a person before birth as after, would these people give the mother the right to murder her child at any age due to the emotional pain of the rape that produced the child? Obviously not. This position is internally inconsistent, i.e., illogical.
Some take the seemingly convenient position of being pro-choice up to the point at which the fetus is viable outside the womb, and pro-life thereafter. This position, too, ignores the central question of whether or not the fetus is a person. To illustrate the absurdity of this position, if technology enables us to extract a fertilized egg or early embryo from a pregnant woman and implant it into another willing woman, and if the supply of would-be surragate mothers were abundant, would these people then favor a total ban on abortion? Conversely, if viability were not possible at any point in a pregnancy, would these people favor legality of any abortion well into the ninth month of pregnancy, even though the brain activity (the “mind”) of a fetus a day before birth is not substantially different from that of a newborn baby?
Which leads to the question: what makes a person a person? Clearly, it is the level and nature of our thoughts and emotions (specifically either current thoughts and emotions or, in the case of a person in a vegetative state, some potential for such capacity in the future). Therefore, a more rational approach to abortion law would ask at what point in fetal development the level and nature of brain activity is sufficient to qualify the fetus as a person. Before that point in development, a non-theocratic government would protect abortion rights absolutely. Beyond that point, abortion would, by definition, be murder (with the possible self-defense exception of saving the life of the mother). A rational debate would focus on what point should be chosen using that general criterion.
There would still be heated debate, but at least it would be rational, and at least it could be bracketed. For example, obviously a fetus with no brain activity would not qualify as a person (whether or not arms, legs, or other non-cognitive features are distinguishable), and, I assume that the brain activity of a fetus at some point toward the end of a pregnancy is not substantially different from that of a newborn baby, making it clearly a person with a right to life. The debate should focus on the most appropriate point between those extremes: What level and type of brain activity constitute person-like thought and emotion, and at what point in fetal development can such activity be reached?
Let the rational debate begin.
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As the old R&B song goes, "If I didn't have bad luck /Wouldn't have luck at all."
Here is a big victory for the President personally, and the supporters and protectors of life. Does he get a minute to look triumphant in public? Not in a million years. Not so long as the ghastly business in Blacksburg, VA is dominating the national conversation.
This is yet another reason why history will be far kinder to George W Bush than his contemporaries. He named great men to the US Supreme Court. This will be a strong item in his legacy. But not today, not with the driveby media flashing ghoulish photos and video of the demented killer of 32 people all over their airways. |
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»»Swampthing still believes (as do I) that the problem of liberal media exists.««
A critical view of the language, if nothing else, tips one off.
I used to be in radio news -- anchor, reporter -- and I know from the inside what it's like, and it ain't pretty.
It's no wonder to me why so-called "journalists" are always at the bottom of popularity polls with the used car salsemen and the trial lawyers; they dip into the same bag of tricks. |
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Laborlawyer,
You wrote;
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"Why does even a victory turn into an occasion for media-bashing for some on the right?"
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Laborlawyer, Wednesday's Supreme Court 'victory' for conservatives is exclusive from the issue of liberal bias in the media.
Even if the Supreme Court had ruled the other way on this particular case, Swampthing still believes (as do I) that the problem of liberal media exists.
After all, the issue of liberal media bias is not about conservatives "winning" issues or "winning" court cases, rather, it is a question of how the media report the news.
In fact, I would argue that it's sometimes on days when liberals "lose," that media bias is most evident.
The fight against liberal media bias is a struggle that continues even on days of "victory."
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»»»The medical term is "dilation and extraction". The "media" (gawd, I hate such sweeping generalizations) are correct to point this out.««
Reporters also say that airplane engines "stall."
That is not technically correct, as you say "partial birth abortion" is not technically correct.
Two can play at that game.
Airplane engines quit.
A "stall" is an aerodynamic event, not a mechanical event. "The engine quit" is the correct way to refer to losing an engine.
So, how come the same standard you apply to partial birth abortion doesn't apply there?
Why don't reporters refer to legal matters by their real, technically-correct names from Black's?
When reporters, for instance, say, "Maricopa County Superior Court," they are incorrect; it's, "Superior Court In and For Maricopa County," cuz - they ought to know - Superior Court is a creature of the State of Arizona and that there is really only one Superior Court with county branches. So, how come they aren't so technical then, rather oh-so-technical only when it comes to partial birth abortion, hmmmm?
I'll tell you why.
It's a comment to sneak into the news report, that's why. It's a way to add to the alleged "report" opinion masquerading as fact, and, when the reader, or listener, or viewer, observes the "report," he isn't even aware of the covert means by which the reporter is slipping him a "mickey." |
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»»"Partial birth abortion" may be descriptive to some, but it is not the correct medical term.««
Not necessary to use the medical term in order accurately to reflect the procedure. "Partial birth abortion" gets the picture across nicely.
Libs don't like the term because it IS accurate.
»»The medical term is "dilation and extraction". The "media" (gawd, I hate such sweeping generalizations) are correct to point this out.««
Irrelevant for the normal, non-med person. No need to use medical terms to describe what's going on.
Pro-Choice=Pro-Abortion=Wrong-Choice'ers like the sterile term to distract from the messiness of the procedure. So, wy do they freely use the term "abortion" without disclaming it?
"Partial birth abortion" not only accurately describes the procedure but, also, communicates that it is not just any ol' surgery, rather an abortion of, as Kennedy put it, "life" that was in the womb.
»»Why does even a victory turn into an occasion for media-bashing for some on the right?««
"Media bashing"? Is the media immune from challenge? When did I take an oath not to challenge the media?
»» This constant cry of victimization gets really old.««
Yeah, those Libs don't know when to stop. |
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»»The logical extension of your view is that any doctor who performs an abortion, and any woman who has an abortion performed, is guilty of murder. Is that your position? If not why not?««
In God's eyes, yes, it is. It's right there in the Bible.
»»Also- is birth control "murder"? If not, why not?««
Human creatures have 46 chromosomes.
Sperm has 23 and so does egg. They are not human creatures.
As a matter of face, they are manufactured.
»» How about Mifepristone (RU-486), which aborts at 5-7 weeks? Murder? ««
Murder, in God's eyes.
»»When does life begin?««
At conception when inheritance laws and Department of Health and Human Services regulations recognize legal entitlements attached to the unborn.
»» When is the fetus a "person" subject to the protection of the laws?««
According to the fact that they are jural persons, just like corporations, they get protection beginning at conception.
The Roe Court said that all we would have had to do for it was to show a suggestion of the establishment of "personhood" and the Court would have had to rule the other way. Just a suggestion. Inheritance law and DHHS regs, which establish jural personhood, provide that suggestion. Too bad the State of Texas didn't run with that in '73. |
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"Partial birth abortion" may be descriptive to some, but it is not the correct medical term. The medical term is "dilation and extraction". The "media" (gawd, I hate such sweeping generalizations) are correct to point this out.
Swampthing, you won. The procedure is now illegal except where medically necessary. (I agree with the Court so I guess I won too). Why does even a victory turn into an occasion for media-bashing for some on the right? This constant cry of victimization gets really old. |
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The logical extension of your view is that any doctor who performs an abortion, and any woman who has an abortion performed, is guilty of murder. Is that your position? If not why not?
Also- is birth control "murder"? If not, why not? How about Mifepristone (RU-486), which aborts at 5-7 weeks? Murder?
When does life begin? When is the fetus a "person" subject to the protection of the laws?
I find these complex moral and legal questions, which is why I've always been pro-choice for first trimester abortions despite my moral misgivings. You seem to feel the answer is simple. I'd like to understand your reasoning. |
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I notice that, when the media refer to the procedure, they say, "what opponents call 'partial birth abortion.'"
What is not accurate when one calls it "partial birth abortion"? Does it not accurately describe what and where this happens? |
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You make very thoughtful points. I simply do not accept that the view of the commerce clause which has held sway for the past 80 years is an infringement of "liberty" as I interpret that term. I understand that you view this as inconsistent. We will have to agree to disagree. |
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I have been a doctor for almost 15 years. I do family practice in a small town. All those that think this procedure is ok should actually watch one. Actually go watch an every day abortion. I cannot tell you the number of young girls I have seen emotionally destroyed because they had an abortion. I just wish those that supported abortion would have to courage to call it what it really is. In utero child dismemberment with extraction. So, for you that think abortion is no big deal I challenge you to call it what it is. The safe bet is you won't because you are a coward. If you call it what it is you will have to acknowledge it is more than just a "choice."
My patients know I am a pro innocent life family doctor. If they do not like that they can go else where. |
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If an abortionist purchase furnishings, equipment and/or supplies from a manufacturer or supplier in a different state, does that make his or her entire practice subject to regulation by Congress under the interstate commerce clause?
I'm thankful for the Court's decision today, and hope that some abortion practitioners will be prosecuted and put out of business because of it.
At the same time, I have compassion on women who are in a situation where they would consider abortion. I pray that more and more Christian and caring organizations will reach out to these ladies and help them to make the choice to carry their child to term. |
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It is beautiful everytime I read it.
Thank you! |
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Well this little ruling got this thread rolling. That's for sure.
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That's the interesting question. They signed on to Kennedy's odd majority opinion, but they didn't join in Thomas's concurrence (sp?). I suspect that they agree with Thomas, but that they had to humor Kennedy to keep his darned weather vane pointed in the right direction.
I have my personal views about abortion. Which are irrelevant. But Roe v. Wade is such a jurisprudential disaster that it should assume its rightfull place next to Plessy v. Ferguson. But this probably won't happen unless the unborn children who have been killed can form an army. |
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The Declaration of Independence and the Constitution are two very different documents. The Declaration makes heavy references to the Creator, but also states that governments are instituted by men. The Constitution makes no references to the Creator (other than acknowledging at the end that it is signed in the year of our Lord). While I agree with you that natural law exists--governments are man-made and by their very nature imperfect. The Constitution (in its main articles) is less about granting rights than separating powers. The individual "rights" section only came with the Bill of Rights which the states demanded be included (and have subsequently been expanded on).
Declaration of Independence: When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
U.S. Constitution: We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
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»»the Constitution... It never claims to grant rights. ««
Nevertheless, that is what constitutions do.
»»The same people (largely) who wrote the declaration of independence wrote the constitution. So when they say in the first that our rights come from God, and in the second they limit government so as to not usurp rights not yielded, where do you get off claiming our rights originate in that document?««
The D/I is not law and grants nothing.
The Constitution makes Fundamental Law of what comes from God. The Constitution grants Rights that come from God. The Right to vote is not among them. |
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»»The second amendment does not define "arms". Could we "clarify" by setting the definition to mean those things attached to our shoulders?««
Is a karate black belt "armed"? Yes.
»»The definition is set by what was intended.««
No one knows what is intended except for what they wrote they intended.
"Arms" includes weapons, primarily guns.
»»Changing from that requires amendment.««
Then the SCOTUS decision to put "separation of Church and State" into the meaning of the Constitution is an Amendment without having gone through the amending process. Therefore, that ruling is illegal. |
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»»If we then defined personhood to exclude mentally retarded, could we also do this without amendment?««
We may define it any waywe wish. |
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Hugh, A Chapman University(heads-up) Joshua Flynn- Brown Scholar Athlete published " In Defense of the President" One students'journey to simplify conservative truth, Author House 3/14/2007
Josh is a senior,DIII Independent Basketball Player of the year.Political Science major
Bill Parker |
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Unbelievably grotesque:
"He sought immunity for abortionists to commit infanticide for any abortion that was careless or unsuccessful in a late term abortion."
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I'm certain that all the full time abortion sycophants for Planned Parenthood donations in the Democrat party will never bring it up.
But there is a sitting time bomb in the Obama candidacy. He sought immunity for abortionists to commit infanticide for any abortion that was careless or unsuccessful in a late term abortion.
He worked for five years for that law, sponsored it and pigeonholed any opposition. There were actually several abortion screw ups that occurred in which at least one live baby was simply flushed down a toilet and another simply locked in a closet to die. And he actively opposed a Illinois initiative that would protect a baby born in those circumstances. So in essence he supports the Chinese Infanticide method of "Birth Control."
As much as I would love to see Hillary and the Clinton machine destroyed, Obama is fatally flawed.
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But home is where the heart is. Does this apply to the commerece clause? Well, if not, it is still nice to know where it is. |
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"The Rights men grant come from the Constitution. Men can easily take them away."
Please read the Constitution. It never claims to grant rights. The same people (largely) who wrote the declaration of independence wrote the constitution. So when they say in the first that our rights come from God, and in the second they limit government so as to not usurp rights not yielded, where do you get off claiming our rights originate in that document?
You clearly have just enough knowledge to be dangerous (kind of like me with computers). Please stop destroying my Constitution. I'm done. |
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"There is no definition in the Constitution to change."
The second amendment does not define "arms". Could we "clarify" by setting the definition to mean those things attached to our shoulders? Of course not. The definition is set by what was intended. Changing from that requires amendment. |
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"Defining "personhood" would not change the Constitution, only clear it up. So, there's no need for amendments cuz nothing is changed. There is no definition in the Constitution to change."
If we then defined personhood to exclude mentally retarded, could we also do this without amendment? |
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"The Commerce Clause: I do accept the interpretation of the commerce clause which underlies the laws in question. It is the same basic principle which underlies all laws guaranteeing civil rights, voting rights, etc. I do not see the Court changing this any time soon."
Civil rights and voting rights are enforced federally specifically by the amendments making them a federal issue.
Civil Rights - Amendment 14 section 5: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."
Voting Rights - Amendment 24 section 2: "The Congress shall have power to enforce this article by appropriate legislation."
Voting Rights - Amendment 19 : "Congress shall have power to enforce this article by appropriate legislation."
I could go on. They are not rightly dependent upon the commerce clause.
I also point out that your embrace of a broad commerce clause is in conflict with the "presumption of liberty" you claim to embrace. The founding fathers believed our rights preexisted the consititution. Via the consititution, we yielded certain rights to federal powers. The presumption of liberty necessarily requires a narrow reading of federal powers, so that they do not usurp rights that were not yielded. We did not yield our rights to innerstate commerce to the federal government. We only allowed the federal government to regulate commerce that was either 1) with foriegn governments, 2) between the several states, or 3) with Indian Tribes. If this power is expanded to include all commerce that affects any of these, then certainly all commerce is subject to regulation. Why does the constitution then say "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;" when it could have just said "To regulate Commerce"? |
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»»It is for this reason that I would much prefer we go through the formal process prescribed... Constitutional Amendment.««
Defining "personhood" would not change the Constitution, only clear it up. So, there's no need for amendments cuz nothing is changed. There is no definition in the Constitution to change. |
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»»Both of these can be correctly understood as protecting our privacy in a specific way. They are specific, not general. I agree with you that there is not a "general right to privacy".««
"Correctly understood" depends on who's doing the understanding, doesn't it?
Still, no mention of the "Right to Privacy," even in those examples.
Libs are fond of telling us that Jesus didn't use the word, "homosexuality" [even though He did reference it in other words, and that's good enough].
Well, two can play at that game.
We say, therefore, that the Constitution says what it says, and doesn't say what it doesn't say. |
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»»The authors and ratifiers of our constitution believed our rights preexisted the constitution. We yield certain rights to be a part of society. We did that through the constitution. That is why our constitution constituted a limited federal government; so as to not take rights that were not being given up.
Please note, we do not get our rights from government, government gets its powers from us. I can not state that more emphatically.««
The Rights men grant come from the Constitution. Men can easily take them away. |
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"»»There are certainly specific rights to privacy««
Only Constitutions grant Rights.
Where is the "Right to Privacy" in the Constitution? The U.S. Constitution, that is. Where are the words?"
As I said, please see the 3rd and 4th amendments for specific examples.
Amendment 3: "No Soldier shall, in time of peace, be quartered in any house without the consent of the Owner; nor in time of war, but in a manner to be prescribed by law."
Amendment 4: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Both of these can be correctly understood as protecting our privacy in a specific way. They are specific, not general. I agree with you that there is not a "general right to privacy". |
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First: As to the hypotheticals you propose, conspiracy to overthrow the government and disclosure of state secrets are crimes, and obviously the government has the right to regulate in this area (as opposed to advocacy of overthrowing the government, wich is a liberty protected by the First Amendment).
The Commerce Clause: I do accept the interpretation of the commerce clause which underlies the laws in question. It is the same basic principle which underlies all laws guaranteeing civil rights, voting rights, etc. I do not see the Court changing this any time soon.
Unenumerated rights: I absolutely agree with you that expanding a presumption of liberty to unenumerated rights is dangerous. This is the same swamp that led the Lochner-era court to erroneously establish a "liberty of contract" which led to overturning virtually every state attempt to legislate health and welfare and was ultimately discredited and discarded. Nevertheless I find it difficult to conceive that the founders did not intend that government be prevented from intruding into personal privacy absent some compelling state interest. Even Justice Thomas declared in his confirmation hearings that there exists a constitutional right to privacy (he located it in the 14th Amendment).
How to balance these things, I am not sure. I can say I am glad to live in California, where the right to privacy IS enumerated in our State Constitution. There is no doubt what would happen here if Roe were overturned.
(with apologies to Swampthing:)) |
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»»"Only Constitutions grant Rights."
There is not a more dangerous statement than this. Please reference our declaration of independence...««
D/I is not Fundamental Law. The Constitution is. |
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»»You continually reference black's personhood. You make my point for me. We changed that by constitutional amendment. Not by the legislature.««
I believe that is not correct. What you say came later. |
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"Only Constitutions grant Rights."
There is not a more dangerous statement than this. Please reference our declaration of independence:
"We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness."
The authors and ratifiers of our constitution believed our rights preexisted the constitution. We yield certain rights to be a part of society. We did that through the constitution. That is why our constitution constituted a limited federal government; so as to not take rights that were not being given up.
Please note, we do not get our rights from government, government gets its powers from us. I can not state that more emphatically. |
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You continually reference black's personhood. You make my point for me. We changed that by constitutional amendment. Not by the legislature. |
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re. redefining personhood
If one believes that the Constitution is a living document that can morph into whatever we think it should be, there is no problem defining personhood to be whatever you want it to mean.
I consider myself an originalist. I believe that the constitution (and its amendments) mean what they meant when they were adopted. This means that my rights can not be usurped by the government evolving to be what Hillary or Kerry believe it should be.
At the time of ratification of the 5th amendment (the first instance of the due process clause), abortion was generally legal through "quickening". So it is clear that the founders did not believe the unborn were persons before the mom felt them move. There are also laws on the books at that time that indicates (perhaps assume is a better word) that "person" referred to those who were born. It is also worth noting that blacks were not considered persons under the Constitution.
When we wanted to redefine personhood to include blacks (for the purpose of constitutional law), we passed the 14th amendment. We didn't just change our assumptions about what the Constitution means, we actually changed the Constitution.
In the 14th Amendment, we find the second instance of the due process clause. I am less familiar with evidence regarding what personhood was intended to include in 1868 (when this amendment was ratified). If one could find evidence that the unborn were intended to be included, that would satisfy me.
Throughout much of our nations history, personhood has been understood to begin at birth. We may now rightly decide it begins at conception; I certainly believe it does. But I am very hesitant to informally change the legal application of personhood simply because we came to an enlightened understanding. I fear what is in Pandora's box, should we open it. Perhaps the next generation will come to a less enlightened understanding of personhood that excludes the mentally retarded, or homosexuals, or guys with a screen name of "sdf". It is for this reason that I would much prefer we go through the formal process prescribed... Constitutional Amendment. |
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»»how do you "establish" personhood.««
The legislative Branch is the defining branch.
Congress could do it outright, and so could state legislatures.
Only persons get Due Process.
Since "person," in the Constitution, is not defined, it's left to the legislative.
»»...there are two ways by which your "personhood" concept could be implemented. First, via Constitutional Amendment...««
There is nothing to change in the Constitution, only define, only to establish [the suggestion], as SCOTUS says in Roe.
»»...[or] by uncovering some evidence that the founders (or the ratifying bodies) intended "person" in the 5th or 14th amendments to include the unborn.««
Irrelevant whether they thought the unborn are persons. Obviously, they left it to future thinkers who would try to match values to keen intelligence.
The Founders didn't consider the personhood of Negroes, either, and we had to do that last century. We can do the same for the unborn. All it takes is decision.
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The conversation going on here. |
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»»There are certainly specific rights to privacy««
Only Constitutions grant Rights.
Where is the "Right to Privacy" in the Constitution? The U.S. Constitution, that is. Where are the words?
We're not lookin' for an assembly of words and phrases that, when shifted and maniuplated around, amount to it. No facsimilies. No, "Well, it's the same thing"s. If it ain't there, it ain't there. |
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»»Too enjoyable!
I guess I have to say it here too.
Too enjoyable! ««
Was is' das? |
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I found professor Barnett's work interesting. His "presumption of liberty" proposal is, in my view, largely correct. He seems to want to incorporate natural rights via the 9th and 14th amendments against the states. I am not certain this is valid.
But as to a "right to privacy" being found in the 9th amendment, I am skeptical. There are certainly specific rights to privacy. Examples include those enumerated in the 3rd and 4th amendments. But natural law, or any other foundational system of rights, does not reference a general right to privacy. If I conspire with a friend to overthrow the government in the privacy of my living room, is that protected? If I whisper to a friend classified intel, is that protected? I think it unwise to declare constitutional a general right to privacy without considering both its foundation in natural rights or our nations traditions.
Barnett's presumption of liberty is specifically applied as limiting enumerated federal powers. Do you accept Congress' assertion of power under interstate commerce to regulate partial birth abortion? A presumption of liberty would certainly find "affect of interstate commerce" as not being "interstate commerce" and thus not sufficient to be regulated by Congress. |
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»»Lawyers are no damn good- until you need one!««
And THEY create the circumstances that require them.
WHAT A RACKET! |
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My grandpa says, "a thermometer has degrees too, and you know where they stick that."
He said this to me upon my receipt of my graduate degree.....so I say this (sort-of) tongue in cheek.
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»»I thought I understood the pervasive posting to be that the constitution has no distinct "definition" of "personhood". How is "personhood" actually defined, then, if it should be "redefined"?««
I thought-a dat, too. Great point! |
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»»The right to privacy: I believe it is in the Constitution, specifically the Ninth Amendment, which states:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."««
Just as homosexuals claim that Jesus didn't mention the word, "homosexuality," we say that "privacy" is nowhere to be found in the Constitution. |
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You mentioned "redefining personhood", in relation to suffrage & civil rights. But, I thought I understood the pervasive posting to be that the constitution has no distinct "definition" of "personhood". How is "personhood" actually defined, then, if it should be "redefined"?
And if the constitution isn't clear about "personhood", wouldn't it have been prudent for the SCOTUS to establish this definitively (i.e. constitutional amendment, or whatever way) prior to the RvW ruling? Their inclusion of a term that has yet to be specifically defined suggests some degree of arrogance, does it not? Makes one wonder if the decision was completely motivated not by an interpretation of what the constitution says, but rather delivery of an end-product that they want to deliver (because of their personal politics??) ???
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As my father (also a lawyer) used to say: Lawyers are no damn good- until you need one! |
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I guess I have to say it here too.
Too enjoyable! |
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»»swampthing
To me, you have the appropriate perspective.....but, what do I know? Absolutely nothing about law. ««
What's to know?
I'm presenting a purely logical argument that, if the unborn is a person, and only persons get Due Process, then the unborn are due process; that, if SCOTUS says that it would have had to rule the other way, 'cept for the fact that "personhood" was not before the Court.
This really is easy stuff.
No need for people to present arguments here like legal briefs, as though they are wanna-be lawyers.
Roe SCOTUS gave us the gift, and we ought-a run with it.
All it takes is what you learned in college English and grade school mathematics: break it all down, simplify it. It think that's in English 102.
People are writing this complicated, convoluted stuff aboutg trimesters and viability, and all they gotta do is know that only persons get Rights and that, if we define theunborn as persons, tghey get Rights and the woman's undue burden turns to due burden.
That may be too simple for some. I dunno. |
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Ever notice that layers always talk/write AT you, not talk/write with you? They write like robots. They simply cannot write conversationally. |
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Since the Constitution doesn't define what it means to be a person, it, therefore, is left to the defining body, the Legislative: Congress and state legislatures.
We know that Science tells us that the unborn, at conception, are human: 46 chromosomes.
We decided lastg century that Negroes are persons. It wasn't a finding. It wasn't a scientific discovery. It was a decision based on what we know and think.
We can do this for the unborn, too.
And, if corporations are persons, the unborn are persons. |
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Whoops: that should be "medicaid".
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Both could have been implemented by reading the existing constitutional text more broadly (in a way that would remain textually true). But in both instances, despite pressing injustice, it was believed that constitutional amendment was required to address the issue at a federal level since the drafters/ratifiers did not intend their language to extend as far as we wanted it to. How would redefining personhood be different? (genuinely curious) |
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Concurrences: These occur when a justice agrees with the result, but not the reasoning, of a particular decision.
The right to privacy: I believe it is in the Constitution, specifically the Ninth Amendment, which states:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
While some scholars contend that the Ninth Amendment is meaningless (Robert Bork calls it an "ink blot"), I concur with Professor Randy Barnett's position that the Ninth Amendment creates a "presumption of liberty". Under this presumption, if you challenge a law, and the Court finds that it violates the people's liberty (not just license, as a law against murder would), then to keep the law, the government must convincingly argue that it is necessary and proper. In other words, laws restricting liberty are assumed to be unconstitutional, unless the government has a particularly convincing argument. And clearly, personal privacy is just such a liberty.
Application to abortion in general: I would contend that a woman's right to choose is a "liberty" prior to the point of viability. Post-viability, the fetus gains rights which the government may protect.
Application to so-called "partial birth" abortion: I believe that the Court reached the correct decision, if properly understood. The laws in question prohibit a specific method of abortion, dilation and extraction. The law contains an exception where the life of the mother is at risk. Alternate methods of abortion remain lawful. And in a crucial passage, Justice Kennedy's opinion states that while a general ban on dilation and extraction is constitutional, the court could entertain a challenge to the ban in which a doctor found it necessary to perform the banned procedure on a patient suffering certain medical complications. This establishes the "medical necessity" exception set forth in previous court rulings, and Justices Roberts and Alito joined Justice Kennedy in so holding.
Therefore, I conclude that the Court's decision is not a substantial infringement of liberty, and to the extent such infringement exists, the government has a compelling basis to ban this procedure in the absence of a medical necessity. In light of the fact that neither Roberts nor Alito joined the concurrence of Thomas and Scalia (who have expressed these views before), I also conclude not much has changed from a constitutional perspective. |
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To me, you have the appropriate perspective.....but, what do I know? Absolutely nothing about law.
Still, it seems only right to charge forward with the discussions of how we already acknowledge the unborn as persons, and see how it shakes out--in lieu of this defensive posturing. I do realize, however, that (I guess, or so it is on legal TV shows!!) law is usually sort-of "retrospective"--looking at what has been done before and rejecting/accepting arguments based on that.
BTW, I love the argument about prenatal health care. If this "fetus" is not a person, then one could argue that we have no obligation to provide state-based OB care for the indigent (i.e. Medicare). One can't exactly argue about health of the mother, since in the majority, health of the woman is not in jeopardy simply because of the pregnant state. Appreciate your perspective.....C
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»»I'm just explaining what is, not arguing for it.««
Okie dokie.
»"All that changes if the unborn is a person."
Yes, that's correct, but it's just one way to undo Roe v. Wade...««
Actually, as I have written, it doesn't change Roe cuz it takes what the Court gave Pro-Life:
"If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the [Fourteenth] Amendment]."
Pro-Choice=Pro-Abortion=Wrong-Choiceers wish I hadn't noticed that statement, and they hope that you will not notice it, either.
That statement is a gift to Pro-Life, telling us how to get abortion restriction past SCOTUS. All we gotta do is suggest the establishment of "personhood." That easy. No convoluted, legal descriptions and this and that. |
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In addition to the amendment and new historical evidence, originalism has no issue with states defining personhood to begin at conception rather than birth. (Only obstacle: SCOTUS) |
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I'm just explaining what is, not arguing for it.
"All that changes if the unborn is a person."
Yes, that's correct, but it's just one way to undo Roe v. Wade, others would be to unfind the Right of Privacy, which is pretty much where all the Conservatives on the court are headed, or to so limit its application that it has no real world effect. |
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»»you can't claim fetal personhood for taxes««
Irrelevant to the personhood of the unborn.
It's just that the case hasn't properly been made so that we can claim tax benefits from the unborn.
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At the same time, however, we have laws on the books now that tret the unborn as persons. They are what the law calls, "jural persons," and corporations fall under this catagory.
if we can treat corporations as persons, we can treat the unborn as persons, and, so, we do, already.
Inheritance law says that the unborn, beginning at conception, have "future interests" in property.
If they have an interest, they must survive to enjoy that interest, and that's where the State comes in, to protect survivability.
The father of the child also has an interest in his child's surviving cuz he has the Right to chose how to dispose of his property; and, so, he has a Right to that heir. The State must protect that Right.
The Department of Health and Human Services says that the unborn child is entitled, beginning at conception, to health care wholly apart from the interests of the mother; and, so, the State must protect the unborn child so he can get that health care.
Just based on these items, the unborn are already treated as persons, and all we have to do is invoke these in courts all across the land. |
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Okay, thank you for the historical context--I should have thought about that: that you can't claim fetal personhood for taxes, etc.
Then again, it seems hard to have a discussion about whether the intial RvW was appropriate if the supportive evidence (fetal murder) is based on that intial case....see what I mean, it makes it circular....well, a fetus is only a person when it is viable because subsequent murder laws say so....well, where did those murder laws take their definition of personhood from? Well from RvW....I think you addressed this in your last posting.
This is very complex and does seem to rest with how to define the unborn. Thanks for your attention.
I am retiring for evening!
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»»When we're dealing with what are now called "Fundamental Rights" - those in the Bill of Rights and certain others, such as the Right of Privacy...««
We're still trying to find this so-called "Right" to privacy.
»»... then the court has said that any law limiting these rights may be justified only by a "compelling state interest" ... [and] that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake."««
Due Process is a legit State interest.
If we define "personhood" as beginning at conception, then the Due Process Rights of the unborn are a legit State interest because only persons get Rights.
»»...Roe v. Wade attempted to balance the state's legitimate interests against the abortion right.««
The Court, itself, says that it would have had to rule the other way had merely a suggestion of the establishment of unborn personhood been brought before it.
Instead, all the Court had to deal with is the woman's Right to Due Process cuz she was the only person, and only persons have Rights.
Therefore, restrictions on abortion are an undue burden on her.
However, if the unborn is a person also, then the Constitution protects him, too, and the woman's burden then becomes due.
»»So, essentially, the court said the state has interest in protecting the life of the fetus when the fetus could survive on its own, and can prevent the mother from getting an abortion at that point.««
All that changes if the unborn is a person.
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I guess my question is this: why would the unborn not be assumed included? According to what precedent is the unborn child put into a separate category from the "born" child?
Historically, at law, and for most purposes today, you are not a person until you are born. So, for instance, you can't claim an exemption on your tax return for another child while you are pregnant, if the baby is not born until the next tax year.
Also, historically, it was not a crime to kill a fetus. A well known case occurred in 1969 in California. Teresa Keeler, eight months pregnant, was beaten unconscious by her jealous ex-husband, Robert Keeler, who told her during the attack that he was going to "stomp it [the baby] out of her." Later, at the hospital, Keeler delivered her little girl, who was still born and suffered from a fractured skull. Prosecutors charged the husband for the murder of the fetus. The California Supreme Court dismissed the charges, saying that only person born alive could be murdered, that a fetus was not a person under the murder statute.
California later changed its law to say that murder charges can apply to fetuses older than seven weeks, and Scott Peterson with was recently convicted of the murder of his pregnant wife, Laci Peterson, and their unborn son, under the revised law. Many other states now have fetal homicide laws, but there are differences about when a fetus is considered living and abortions are excepted because of Roe v. Wade.
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The short answer to your questions on restrictions on rights is this. The government can regulate and restrict our rights, otherwise there would be anarchy. The question for the courts is when and how much - how far can the government go. That's why we have a Bill of Rights in the first place.
When we're dealing with what are now called "Fundamental Rights" - those in the Bill of Rights and certain others, such as the Right of Privacy, then the court has said that any law limiting these rights may be justified only by a "compelling state interest" ... [and] that legislative enactments must be narrowly drawn to express only the legitimate state interests at stake."
Along this line, Roe v. Wade attempted to balance the state's legitimate interests against the abortion right. The Court broke the pregnancy into three parts and ruled that the state cannot restrict a woman's right to an abortion during the first trimester, the state can regulate the abortion procedure during the second trimester "in ways that are reasonably related to maternal health", and the state can choose to restrict or proscribe abortion as it sees fit during the third trimester when the fetus is viable, except when necessary for the preservation of the life or health of the mother.
So, essentially, the court said the state has interest in protecting the life of the fetus when the fetus could survive on its own, and can prevent the mother from getting an abortion at that point.
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»»Please show me the privacy clause in the Constitution. I am having a hard time finding it. ««
That's cuz SCOTUS cut'n'pasted it into the Constitution. The Court took a piece from here and there, put them together and POOF! privacy. |
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"Personhood" is not a scientific question. It's a social and, therefore, legislative question as much as it was when society decided that Negroes are persons.
Therefore, when SCOTUS, in Roe, itself, says,
"If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the [Fourteenth] Amendment],"
it intends to protect the unborn as persons, IF ONLY we would present even a suggestion of the establishment of "personhood." It says that the unborn would, then, be protected by Due Process, and this means that the woman's burden would go from undue to due. |
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How is the unborn one second before birth different from the born one second after birth?
What difference in the makeup of the CHILD, not his address, justifies killing him? |
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cmitch,
I've seen this first hand, too. It embarassed me.
I remember, in Denver, one day, I had to go and interview John Kenneth Galbraith, the economist.
I knew, and still know, next to nothing about economics.
So, on my way out of the station, I grabbed news headlines and financial news headlines so I could aks him intelligent questions about the financil news of the day, rather the amateur's questions about what he's answered time and time again already. My reasoning: What has he to say about what's going on today, not yesterday, except as how what has happened affects what IS happening. [Reporters don't think this way; but I was always trying to improve my abilities, finding ways to do what has to be done that nobody else was doing, even though they should've.]
When the interview was over, he told me that he appreciated my intelligent questions. Not that I was the star, rather he was letting me know I approached it correctly and that he was only too willing to cooperate.
At least, if I go into an interview not knowing what the Hell is goin' on, I'll aks the guy to refresh me on a point, or two. Then, he knows I'm not tryin' to BS him. [It's important not to BS those you're tryin' to interview.]
Anyways, I would say that, if you get some legal grounding, you would be an asset to your profession cuz, maybe, you could come up with a fresh approach to a problem. It doesn't always take an expert, rather a fresh set of eyes. A key word, phrase. An observation. Who knows what impact you'd have on your profession with that little bit of knowledge. |
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I guess my question is this: why would the unborn not be assumed included? According to what precedent is the unborn child put into a separate category from the "born" child? Do our other laws intended for the masses specifically include "the elderly", or "adolescents", etc.? With what authority did the court speak to this in RvW?
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You raise a good question. It is certainly where the black and white merge to be gray.
I don't know the answer to that. It is certainly worthy of debate. My initial reaction is that it would not be interstate commerce, it would be the woman's exercise of her right to travel. But I could be persuaded with a strong argument.
If she prepaid for the service across state lines, I would say that is interstate commerce.
If the doctor crossed state lines to preform an abortion (with the expectation of a fee), I would say that is interstate commerce.
Not to get to far off on a tangent, but while we are exploring the gray...
What if the woman paid with a credit card. The computer communications certainly cross state lines. I would argue that the credit card processing could be subject to federal regulation, but not the service paid for. (I use the word service not to minimize abortion, but in recognition that a finding opposite of mine would allow Congress to regulate any service paid for with a credit card). |
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Now that is interesting. The next logical question would be, how do you "establish" personhood.
With an originalist understanding of the Constitution, there are two ways by which your "personhood" concept could be implemented. First, via Constitutional Amendment. This is certainly the most secure way, but the most burdensome. Second, by uncovering some evidence that the founders (or the ratifying bodies) intended "person" in the 5th or 14th amendments to include the unborn.
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Points well taken.
A bit off topic, but...I remember doing an interview for a local news station on the Mumps outbreak last year. This crazy-acting TV anchor woman comes to the U where I was teaching to do an "indepth" interview.
This "indepth" interview lasted all of 7 minutes--before they did their editing. What actually concerned me was her distinct lack of knowledge of mumps--I dare say even of "disease" in general. She asked me the most ridiculous questions, and clearly did not have a clue how to interpret my answers. I was mortified when I saw the end product. I looked like an idiot. It was sad because they had an opportunity to do some good public service there--many families were wondering what to do about this.......and she was frankly idiotic. I thought, "Is this a journalist?" I had many other similar encounters--especially over Katrina.
Appreciate the comments.
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Let's say that the "right" to an abortion ends up in the hands of each state; and, let's say that many states have a ban on abortion. If a woman travels from one state to another to obtain this "service", is that inter-state commerce?
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Tody's decision by the Justices is no less valid than the one the Justices' made many years ago that began the travesty of abortion on demand no matter the moral cost, no matter the circumsstance as long as it prevented the inconvenience to the mother. At least now maybe they will turn to a more strict reading of the exclutionary clause of "for the health of the mother". |
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Thank you for your nice post. I did read the RvW decision. I was able to understand, with my limited capabilities, that the decision was entirely based on an argument about privacy--not about whether or not an embryo represents life. I find this intriguing (and concerning). That court, or so it seems to me, constructed a very tangential argument that, albeit indirectly, ultimately gave "permission" to forgo even any discussion about whether the ACT of abortion represents murder.
I suppose it is rare to find things that are commonly done, are not illegal, but with whom many people are disgusted or think should be illegal. Thus, it's hard to find comparison arguments (that is, the "right to privacy" argument).
Let me ask this: if the court is ruling on privacy, as in RvW, how then do they justify subsequently putting restrictions on what is done "in privacy"? Meaning, how did they come up with the decision of viability? They must have had some regard for life at some stage....so, with what authority did they decide that prior to external viability, there was no life? I realize this is an age-old question, but I have never asked it of people who would know.....so???
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There's one paragraph in Roe that the Libs don't like to draw attention to:
"If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the [Fourteenth] Amendment]."
This means that, had the Court had a definition of "personhood" before it that includes the unborn, it would have had to rule the other way.
That's why I'm not for overturning Roe; it gives Right to Life the ammo to define "personhood" as beginning at conception.
If that happens, the undue burden on the woman becomes a due burden. |
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To clarify, if an abortion is preformed for a fee in the back of a truck trailer, or in an airplane, as it crossed state lines, Congress could regulate this.
But this law is a ban on all of these abortions, even if the commerce is entirely innerstate.
The "affecting interstate or foreign commerce" is patently a canard, as it falls well short of the actual language of the Constitution.
If Congress' logic is accepted, any commerce is interstate commerce. So why the distinction in the Constitution? |
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Cmitch,
I used to be in radio news. Anchor, reporter, producer, writer.
My idea is/was that those in news-gathering ought to know as much as possible about the subjects involved in what they cover. They don't. They depend on the subject of interviews to do all the talkin', and, so, that's why you get the "How do you feel?" questions. Reporters are pretty stupid about the things they cover.
So, on my own, I studied about law, about medicine and about aviation [I love aviation].
That way, when I covered stories involving those things, I could aks intelligent questions and write intelligent stories for broadcast.
For instance, when a twin engine airplane goes down and stupid reporters say that engine failure brought it down, I know that's crap cuz a twin can fly on one engine all the way to landing; and it can glide with no engines. Not well, but it can.
Reporter stupidity was evident when that Comair regional jet went off the end of the runway. They said that it was the controller's fault; but I know that the pilot in command has the final responsibility [FAR 91.3; FAR 103]. The controller is not in the aircraft.
Also, although I never got around to it, I wanted to go and watch an autopsy so that I could know a little sumpin' about it when I report a death and autopsy.
So, what I'm saying is that it would behoove you to know as much as possible about law and how it relates to what you do, whatever that is, cuz, especially, you can peer discuss, or relate to other, interested parties, like the media, issues that impact your profession and those involved in what your profession offers.
I recommend that you find a law survey class somewheres, and what you find there will lead you to further study. |
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Well, I'm not an expert on Con Law, but let me give you a little context.
The current fight over the Constitution's meaning can perhaps be simplified to two sides. Those who, like Justice Thomas, say, if it's not there in writing in the Constitution, it's not a Constitutional right, and should be left to the Congress. And those, like past Justice Harlan, who famously wrote in 1961, "the full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This 'liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on."
There is no explicit "Right of Privacy" in the Constitution. For Justic Thomas and many others that means it does not exist. Other justices, past and present, find it in Justice Harlan's "full scope of the liberty guaranteed by the Due Process Clause."
If you get past the argument that there is a Right to Privacy, then the question becomes what does it protect and in what ways can the government limit it. This is where Roe v. Wade comes in, with the Court deciding that the Right to Privacy protected a woman's decision to have an abortion from government interference, at least up until the "point at which the fetus becomes ‘viable,’ that is, potentially able to live outside the mother's womb, albeit with artificial aid.
Since Roe v. Wade, opponents of abortion have been seeking to limit the case's application and, ulimately, to overturn it. Today's case was about limiting it and the majority decisions broke down into those who said, we not ruling on abortion overall, but this particular horrendous procedure should not be legal, and Justice Thomas, et al, who said, nothing about abortion should be legal, so we don't need to split hairs here. |
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Article I Section 8 of our Constitution limits Congress' authority to a list of explicit powers. Your "Constitutional authority to define" is not one of them.
"»»I would be interested in knowing what part of partial birth abortion qualifies it as interstate commerce. If that is not the proper source for federal authority...««
You can't find it in the Act?"
The act is here: http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00001531----000-.html
It says: "Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both."
My point is as follows:
The constitutional authority granted is "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;" There is no commerce here between the states or with foreign nations. There is therefore nothing to regulate.
My next point is, if you believe that the Constitution can be sacrificed in the pursuit of protection of life, that is OK. I don't buy it, but you have a right to that opinion. I just object when someone holds that opinion, and then says that Roe and Casey should be overturned because they are unconstitutional. Like I said before, either the Constitution is binding, or it is not. We can't have it both ways. |
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YOU GOT IT! (laughing!) I figured I had to put something reflective of me in there.....so I don't feel like such a loser for not understanding this stuff!! The closest I've ever gotten to legal anything was medschool--I used to study in the law library at a local U, and when I was brain dead, I'd get up and read some of those legal books. I never understood any of it, and it made me feel better about choosing medicine.
JayHub: I totally get what you're saying now. I can see that the concurrent opinion makes it look as though there's no unified reason to uphold this ban.
Thanks guys!
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Isn't it interesting that liberals whine when a single restriction is placed on abortions but then stay silent when they pass laws putting tons of restrictions on guns?
http://www.letfreedomringblog.com/2007/04/18/hillary-upset-over-scotus-ruling/
I noticed that Hillary is upset with this ruling. Talk about playing chameleon. Just 15 short months ago, she told abortion rights supporters that they needed to "find common ground" with pro life advocates. |
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cmitch4,
I ain't gettin' ugly about it, and, it appears, we're on the same side; but how long did you have to wait before you could squeeze "trichotillomania" into a conversation? |
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Who would have thought abortion would have been such a hot button issue? |
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»»Our host does not estimate how many abortions will be prevented by this legislation ««
On that note, how many lives will be saved by gun control? |
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Replace: "Could you expound." with "Could you expound?"
Replace: "Congresses" with "Congress'"
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Okay, so you're saying this:
Kennedy wrote the opinion, and 4 others agreed to the conclusion. However, Thomas and Scalia filed a concurrent opinion because they believe that:
First, that Roe and Casey were wrongly decided AND
that this law's authority under the Commerce Clause was explicitly not considered.
So you (& Hugh) are saying it is interesting that Alito & Roberts did not join the concurrent opinion regarding the thought that Roe was wrongly decided. Instead, a simple joining of Kennedy's writing says they agree with his reasons for the conclusion.
Whew. Okay, now I do get the significance of this--most expect Roberts & Alito to agree that the RvW decision was incorrectly decided....and we cannot assume that they do based on their "failure to concur" with Thomas/Scalia.
Okay. I got it. Just took a bit of concentrating on what you said. Thanks.
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Congress is the defining part of our government. Congress gets to define things.
»»I would be interested in knowing what part of partial birth abortion qualifies it as interstate commerce. If that is not the proper source for federal authority...««
You can't find it in the Act? |
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»»Thomas and Scalia want to treat Roe like a hazardous waste spill.««
Good point.
They want to treat it like one cuz it IS one.
»» First they contain it by upholding federal legislation which chips away at protections claimed by proponents as settled law. Eventually they dispose of the whole mess by washing their hands of any federal jurisdiction whatsoever.
Ideologically diabolical!««
They aren't supposed to be ideological. |
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"»»on what authority did Congress act?««
Constitutional authority to define."
I am not familiar with this concept. Could you expound.
"»» They do not have constitutional power to outlaw this abhorrent procedure.««
That's an assertion, not fact."
You are correct. That is my assertion. But it was Congresses assertion that their authority for this law came from the Interstate Commerce clause. I would be interested in knowing what part of partial birth abortion qualifies it as interstate commerce. If that is not the proper source for federal authority, I am interested in what the proper source is. I am not familiar with your "Constitutional authority to define." I am interested in hearing more.
"»»We must hold ourselves to a higher standard.««
We are. Life is the highest of standards."
Non-sequitur. My point is that we either believe the Constitution is binding, or we do not. We can not have it both ways.
"Masquerading Libs
»»you don't believe in a disposable Constitution, do you?««
Since when is a Lib a strict constructionist?"
I miss your point. If you are saying that Brad S - to whom that comment was directed - is a "masquerading lib", he has not shown any evidence of this. If you are asserting I am, I would be interested in why you came to that conclusion.
And I think you meant "Originalist". |
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The other effect of having multiple concurring opinions is that it sometimes makes it more difficult to predict from the decision as precedent for other situations. Ideally, if you have 9 justices all agreeing, it's very clear what the court has said. If it's 5-4 and the opinions are all over the place, a decision becomes harder to apply beyond its specific circumstances. |
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OK, this is what that sounds like to me:
skdfjkasjdf Thomas lskdfjaksdjf Alito laksjdfksjf Roe and Casey laksdjfklfjdasdf.
Although I REALLY DO appreciate your attempts to help the legally-challenged. I just don't have enough background here to fully understand this.
What I do get are two things:
1) This is far too complicated a deal to be boiled down to a simple "this was right" or "this was wrong", as Mr. Briggsy is prone to do--with every posting on Mr. Hewitt's site.
and 2) Clearly, this ruling does not prevent the majority of women from killing their babies, if they want. So, all this trichotillomania from the left is a bunch of smoke & mirrors--just something to get exercised about.....to get the "average woman" out there whipped up into a frenzy that she's losing some kind of "constitutional" right.
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A concurrence is often issued when the opinion expressed in the concurrence does not have enough votes to become the majority opinion, but reaches the same conclusion as the majority opinion.
If Thomas would have espoused the overturn of this law based upon its lack of grounding under the Commerce Clause, it would have been a dissent. Instead Thomas made two points.
First, that Roe and Casey were wrongly decided. This, when applied, would not have overturned this law.
Second, that this law's authority under the Commerce Clause was explicitly not considered.
Justice Kennedy would not join an opinion with either of these inclusions. It is interesting that neither Roberts nor Alito did as well. |
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re. interesting banter
You and I agree as to Thomas's first point. Those who don't won't be persuaded here.
As to Thomas's second point, there is a point that many pro-lifers are hesitant to embrace. Don't you think that is worthy of some discussion? |
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To show my ignorance, I want to post this question....I'm in medicine, not law. So, much of this talk is alien to me.
Can you legal-eagles explain the significance of these: "joining" an opinion, filing a separate "concurrence". Obviously, I understand the dissent part....and a joining with dissent. But what is significance of Roberts, Alito & Kennedy failing to join the concurring opinions of Scalia and Thomas?
Thanks.... |
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»»Pray that this law goes unenforced. ««
You'll wear your knees to the bone and STILL He won't grant your request to let the killing go on. |
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See Thomas's concurrence. Scalia joined. They leave themselves a big out. |
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»»you don't believe in a disposable Constitution, do you?««
Since when is a Lib a strict constructionist? |
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»»on what authority did Congress act?««
Constitutional authority to define.
»» They do not have constitutional power to outlaw this abhorrent procedure.««
That's an assertion, not fact.
»»We must hold ourselves to a higher standard.««
We are. Life is the highest of standards. |
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»»As long as we are chipping away
at constitutional rights, can we ban handguns? ««
No, unless you can find a way to bar and ban handguns for EVERYBODY, and make sure NOBODY has them.
Until then, you're in the position of "letting" some have guns to threaten the rest of us with and putting the rest of us in the position of being defenseless, just like those students and teachers.
When faced with death, those students and teachers weren't debating gun control,saying "Why, oh, why does HE have a gun?" No, they were saying, "I wish the Hell I had a gun!"
So, YOU're for keeping things as they are following their deaths. Beautiful. |
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"Pray that this law goes unenforced. The history of imposing anti-abortion laws shows that people like the idea in theory but are appalled by it in practice. "
I find the crushing of a babies skull and sucking out the brains far more appalling. The inconvenience inflicted on miserable souls who would perpetrate this horrible crime on their own baby pales in comparison. |
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Interesting banter. Refocus on Justice Thomas' other point. The Court's abortion jurisprudence has no basis in the Constitution. The Court must continue in this fashion to correct their string of errors since 1973. None of us should expect an immediate reversal of Roe v. Wade, but all of us should press forward to make abortion as rare an occurence as the death penalty. |
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Though a restrained one. Someone remind me again on the virtues of restraint? |
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Pray that this law goes unenforced. The history of imposing anti-abortion laws shows that people like the idea in theory but are appalled by it in practice. Here's a recent example:
http://www.cnn.com/2007/WORLD/europe/04/10/portugal.abortion.ap/
Banning abortion in Portugal sounded like a great idea- until women needed them and actually got arrested. |
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As to slavery, my point was not to ignore it took a war, it was to highlight that even after the war, the Constitution was amended by it's prescribed process.
As to Founder's offense, I am confident in asserting their offense would be as to the breadth with which the Constitution is read. They wrote the Constitution very narrowly, prescribing limited powers to the federal government, precisely to protect the unenumerated rights and state powers referenced in the 9th and 10th amendments.
They would be offended by the federal law in question, in that the Constitution gives the federal government no power for such a law. Similarly, they would be offended by Roe and Casey, in that the Constitution gives no authority to the federal government to interfere with what rights the people yield to their respective states - so long as it is not explicitly granted to the federal government.
(Brad S., note, this is the benefit to holding oneself to a higher standard... you can still claim fidelity to the whole of the Constitution) |
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What refreshing news this is! After a very depressing day, there is a glimmer of light in the darkness. Social conservatives need to keep their eye on the ball with regards to the presidency. Those who stay home because the candidate isn't perfect have no part in the party when things like this happen. This is an important victory. God Bless President Bush for his Supreme Court nominees. |
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"And slavery was rightly dealt with via amendment, not by usurpation of power."
I recall a bit more than an amendment being used to end slavery...
As an aside, there may be no "privacy clause," but the Constitution is clearly interested in protecting the American people from undue government intrusion. That we read the constitution so narrowly would scare some of the Founders - who objected to having a Bill of Rights precisely because they feared that by enumerating rights they would limit them.
http://www.themechanicaleye.com
DU |
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as to the full impact on civil rights (14th). Slavery was outlawed immediately (13th). |
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My apologies. I thought the Constitution was a single document. But if "settled law" becomes part of the body of law known as the Constitution, then I guess the Constitution's Privacy Clause is found in Griswold.
Please don't read my sarcasm to support Connecticut's lousy judgment. I just think that should have been dealt with democratically. |
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I'm writing on this subject on my site, if anyone wants to see it, click on my name above. Up about 3:30 p.m. ET. |
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And slavery was rightly dealt with via amendment, not by usurpation of power. |
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I would humbly submit to you that if a proper reading of the Constitution were held during the time of slavery, that the laws that forbade slavery in the new territories in the North were a violation of the Commerce Clause.
Aren't you glad we've moved on from that? |
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I hope you don't embrace a lower standard. Certainly, you don't believe in a disposable Constitution, do you? |
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"What is man that thou art mindful of him" said Micah in the OT. That's a darned good question, and one you won't see Justice Ginsberg tackling. The notion that the "Constitution" confers a right of abortion is laughable. Somehow the Supreme Court missed that for nearly 200 years -- pre Roe v. Wade. The Supreme Court regularly insults our intelligence. For example, we hear from high courts that "nude dancing is a form of speech." No, it may be many things, but it is not speech as contained in the Constitution. If we as a society want to make nude dancing a form of speech -- or aborition a "protected" form of behavior -- then we need to amend the Constitution. We don't need to "interpret' it as if we were a bunch of college freshmen giving "our" reading of a John Donne poem. Note Justice Goldberg citing the American College of Gynecology. Gee, what did they have to do with the Constitution? Oh, right, nothing. "All other rights are left to the states . . ." means the states should decided. It meant that in the 1780s and it still means that. It doesn't mean that a bunch of militant leftists on the Court are the ultimate determinants of all things. |
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You read to much into my earlier post. I said nothing about today's decision. My criticism was of Hugh's "good news" quote (my criticism of Hugh is rare, we generally agree). Clearly, today's decision was a step in the right direction, even if the legislation it upheld was not. The decision returns some semblance of state input tothis issue. I hold out hope that Thomas's concurrence will eventually lead to a proper reading of the Constitution. Thomas wrote:
"I also note that whether the Act constitutes a permissible exercise of Congress' power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it." |
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Mrs. Justice Ginsberg's position is that the life of a "foetus" who's doing everything but kicking, screaming, and playing with a rattle is not something worth preserving. At the same time, I'm sure she's very concerned about the loss of life at Virgina Tech. I'd be interested in the philosophical distinctions she's making. "Life is cheap" as the cynics say, and life is getting a whole lot cheaper, as this realist says. My impresson of Ginsberg, Breyer, Souter, and Stevens is that they're no more interested in the Consitution than they are in theoretical astrophysics. Overall, being "pro-life" means putting a great value on life at all stages. People who a "little pro-life, but" are frankly dangerous. They seem to believe their lives are important, but that other people's aren't. I seem to remember a society in the 1930s that operated on that disastrous principle. The Nazis (most of them) did believe that Jews were human beings -- but of a LESSER sort. Ginsberg and the three stooges seem to think along the same lines.
steve maloney |
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Yes, you can insist on having a "higher standard" all you want, and you can even win debates with the lowbrow who choose the "less pure" route.
But all that counts is WINNING and LOSING. The Pro-Life side WON TODAY. You take that victory and you march forward. Unless you want to get into a hissy fit about having a "higher standard," of course. |
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EXACTLY! Could not have said it any better. |
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If you want to defend the right to have the sort of butchery that is Partial Birth Abortion, feel free.
And no, the handguns aren't getting banned. Silly goose. |
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Briggsy:
Please show me the privacy clause in the Constitution. I am having a hard time finding it. Thanks. |
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I agree with Hugh in that "an abhorrent procedure is outlawed". But on what authority did Congress act? They do not have constitutional power to outlaw this abhorrent procedure. This is certainly not "interstate commerce" as Congress claims.
The pro-life movement continually asserts that the overturn of Roe and Casey would simply return the debate to the states. By praising this law, we show ourselves similar to the pro-choice movement: we also allow our activism to trump the Constitution when convenient.
We must hold ourselves to a higher standard. |
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