demagogue on 1/6/2009 at 19:59

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The usual response to that is that, whenever the state is taking something away from you, the bigger the right it's taking away, the more it has to justify itself.

So if the only thing the state is taking away from you is your right to drink, smoke, vote, or drive for a few years, even though a lot of younger people could do so responsibly, but people tolerate it because the taking isn't that much, the reasoning is good enough, and the protection couldn't be enforced unless they pick some line and any of them would be arbitrary.

But when the state starts taking fundamental things like a life or freedom from incarceration away, then people won't tolerate "good enough reasoning"; the state should be absolutely sure of itself. The standard for imprisionment is "no reasonable doubt", and the state can't kill without a judicial trial.

In the abortion case, you want to get the line right because after that line, by definition it's the state taking the life of a person in its jurisdiction, where you have all these rules in place prohibiting extra-judicial state killing that we should feel uncomfortable watering down. The state really needs a damn compelling justification to take the life of what's now a "person". Remember the very question at issue is when the fundamental right to life begins; so you can't beg it in any answer to when abortion is ok.

Of course before that line, when you're absolutely sure the fetus has no right to life, then you don't have that problem so there would be much less trouble with the state arbitrarily picking one or another line. So if the state picks a very early date then there won't be any problem, at least from the fetus's perspective; and it looks more like the voting-age problem. The state should just have some reasons that are rational enough, as long as they aren't flat-out roll-the-dice arbitrary. The state isn't taking anything (from the fetus) that requires it to justify itself more.

Although, interestingly, now the relevant right in quesiton is the woman's right to choice, which is also a fundamental right. If the line is too early, then you're taking a fundamental right away from the woman (to have a later abortion), and the state again needs a damn compelling reason to do that too. The woman shouldn't have to tolerate the state just picking "any old date that gets the job done" to insist that now she can't have an abortion and control a basic part of her body and own family life. So, actually, even from the other direction the state needs to be very sure it picks the right line, and it's different from the voting-age case where it's just taking away her right to vote for a few years.

It's good that you brought up that question, though, since it's critical to what makes abortion a special kind of legal issue, and why courts fret over it a lot more than the kinds of examples you mentioned.

Random_Taffer on 1/6/2009 at 20:20

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While I certainly understand the spirit of this, I can think of at least one situation where it wouldn't be the best.

What if the mother already has a small child that is alive and well? Should she sacrifice herself so that her children may live on? What would that do to the other child? To lose their mother like that...

(This could of course only make sense in the uncommon situation that the mother would have to choose between her own life or the baby's, but not both.)

I certainly couldn't place blame on the mother for giving up the baby in this situation.

van HellSing on 1/6/2009 at 20:33

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Murdered? No, someone performed a very late abortion on him.

Swiss Mercenary on 1/6/2009 at 20:40

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Good for you. Depending on the circumstances, I wouldn't, and I'd be kicking and screaming if you, or anyone else insisted that I should sacrifice myself for a stranger.

The fact that the stranger in question shares genetic material with me has little bearing on the the principle of the above, but is certainly one of the circumstances.

Muzman on 1/6/2009 at 20:43

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This kind of thing seems like so much sophistry of the 'angels dancing on the head of a pin' kind to me. The state permitting abortion doesn't really amount to the removal of rights in any real way except in the minds of anti-abortionists does it? (them and conservative cranks who see slippery slopes everywhere). I'm not a lawyer in the least, of course, or is this a semi-abstract ethics discussion (or both I guess)?

Anyway, it's sort of stating the bleeding obvious, but for some reason to me it's worth underlining that this is all a question of human agency. That's the part people can't stand. Women's bodies are basically death traps for zygotes, destroying them left and right. Don't leave the things in their care, whatever you do. They can kill as many "babies" as they like provided they don't actually think about it or use their hands or anyone elses, and no one knows. That's all fine. But as soon as human agency gets involved, trouble.
But that's what the law is all about, so once again, like obv.
Still, before the microscope I think the line was fairly clear to most people; cutting the cord was where it was at. Prior to that you take your chances. I'm waiting for neuroscience to advance to the point where conservative states have enough to drag depressed women into court for miscarriaging.