fett on 24/2/2006 at 00:37

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Who are you talking to and why? I'm not sure how to restate the question so you'll understand it. We're not discussing why abortion is right or wrong which is a moral and ethical question (well, I guess you're discussing it with yourself). That's already been discussed to death.

We are trying to discuss something new that happened today when the South Dakota courts banned abortion in that state. The question is one of legal precedent and history. Can you distinguish between the two? The first has to do with your opinion which no one gives a flying fuck about. The second has to do with facts of state and federal law.

Jesusgodandmary. Let's PRETEND for the sake of the argument that everyone here is pro-choice. Will that help you to shut your hole?

Scots Taffer on 24/2/2006 at 01:37

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To "ostracise" implies a certain level of imposition, I disagree with your assessment of my personal conduct. I would not treat someone who had undergone an abortion any differently than I would a person who had a child, I may think of them differently in mind - but what, am I not allowed to do that? And before you say "judge not, lest ye be judged", I believe that if I keep my personal judgement calls inside my head then I am not really doing anything wrong.

And as for the rest of your points, I may have thought that way once until I saw a scan of a ten week old foetus. I now have the benefit, or drawback, of having my views tempered by personal experience and emotional attachment. I'm not willing to view the parameters of life that coldly.

And yeah, you're a hypocrite. At least you're comfortable enough to accept that.

SD on 24/2/2006 at 03:00

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Well, this is the difference between a wanted pregnancy and an unwanted pregnancy. Either way, it would have been her right.


It's human from the start. It's when it becomes a human that matters.


Well, I don't believe in such things as "souls", and even if I did, I only deal in science, not superstition. For what it is worth, I have always believed that abortion should be permitted up to the point at which a foetus is able to be successfully born. Third trimester abortions should only be permitted where it is known or suspected that a foetus will be severely disabled at birth.


Idiots for imposing your beliefs on someone else's body. This is the 21st Century... we don't allow men to tell women what they can and can't do with their own body any more, at least not in a civilised society.


I know that's sarcasm, but I don't disagree with it. It's called "logical consistency".


Thanks for the misspelt anecdote. but what does that have to do with abortion?


...


Whoopy doo. But there are plenty of parts of the US where contraception is downright difficult to acquire.


It's not a question of people not sharing my beliefs. It's when one set of people want to place limits on another set of people that it becomes a problem. If you don't believe in abortion, don't have one, but don't try and force that opinion onto someone else.

Jennie&Tim on 24/2/2006 at 06:10

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Having an abortion is a responsible decision for many women, particularly those who are so irresponsible as to get pregnant unintentionally. Not likely to be good parents are they? Let's get away completely from these "irresponsible" arguments. The only times in my life when I even contemplated an abortion was waiting for the chromosomal tests to come back for my two younger babies. They were wanted and deliberately concieved; but I don't believe it is moral or ethical to bring Down's children or the other two, worse, trisomies into the world. As an older mother, I did the responsible thing and was tested.

I also believe that the position that all fetuses/embryos should be protected is more morally justifiable than making exceptions for rape/incest/health. I don't think it is the right choice; but it is clearly immoral to force a pregnancy because someone made a mistake or a contraceptive failed if you are willing to allow the other exceptions. That is a purely punitive position that makes your child's life your punishment; you don't throw an innocent baby into that position. If you truly believe a conceptus is a person, then you must protect them all. Otherwise, you're simply being ugly.

To me a person must have a functioning cortex. There's good evidence from EEG's that a fetus' cortex is not organized until about the 26th week. I'm happy to draw that as the line in the sand. I understand that other people will have other views.

(http://politics.slate.msn.com/id/2120872/)

And, perhaps illustrative for those who don't know how far right politicians can be in the States:

(http://www.nuvo.net/archive/2006/02/15/sex_and_the_statehouse.html)

And if you want to know what the bill states, here it is in all it's gory glory:

(http://legis.state.sd.us/sessions/2006/bills/HB1215SST.htm)

And, yes, it would prohibit abortion by any means, including drug induced abortions:




And, sorry Strangeblue, but you are wrong about Roe v. Wade:

(http://www.fedworld.gov/cgi-bin/waisgate?waisdocid=76247912579+0+0+0&waisaction=retrieve)

Whether or not she had to inform her husband was decided much later:

(http://www.slate.com/id/2129321/)

demagogue on 24/2/2006 at 07:54

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Ok, to get a legal perspective wedged in here somewhere.

As the article states, this law was designed to be a direct affront to Roe v Wade, I mean carefully, painstakingly tailored to make it almost impossible not to call the heart of Roe v Wade directly into question on its merits. That means, if it even gets to the the Supreme Court for review, the only way I can see it passing muster is if Roe is directly overturned (unless there is some potentially relevant detail I don't know, but unlikely). And a District / Circuit Court would simply have its hand forced; it has to reject the law based on Roe.

Now there's a legal principle called stare decisis which more or less means (in the name of legal consistency and basic fairness) the Supreme Court should respect its past decisions and not over-turn them unless it feels compelled to, since people legitimately rely on the law staying consistent (particularly the most fundamental laws about things like core, unalienable liberties) and it's generally bad form for the hightest Court of the land to difinitely say "Our immortal Constitution says "X" ... Psyke! Suckers, it's actually "not X"! And as an institutional fact, the Supreme Court is normally loath to overturn decisions whatever its political makeup for this reason ... it's more likely to get rid of the case on a technicality if it is really torn and there's a technicality for it to work with (which in this case I predict would uphold the Circuit Courts' decision to overturn it). But the Court has overturned past decisions before; particularly for really big, obvious fuck-ups that are clear in retrospect (e.g., "separate but equal" racial-bias laws). In most all of the cases I can think of where this happened, there was a string of cases which gradually pulled a law's interpretation further and further away from the leading case until it gets to a point the Court looks at the state of all these cases added up and concludes 'the handwriting is on the wall; the leading case has been so ignored by later courts that it's essentially a dead letter.' I'm sure there's a case where the Court has overturned a case without this kind of long lead-up, but can't think of one (maybe the recent takings case??) BTW, the two new Justices went out of their way to acknowledge their respect for stare decisis, the only thing anyone could weasle out of them on how they might decide a case questioning Roe.


So, what's the actual controlling law here? The Supreme Court in Roe basically located it in an effective 'right to privacy' coming out of the Bill of Rights, and a 'fundamental liberty interest' out of the 14th amendment (substantive "due process") of the Constitution (which requires a compelling State interest to then negate, and by "compelling" I mean stupendously critical). As has been pointed out ad nausium, it's not literally worded as such, and from a jurisprudential perspective, it's not entirely clear what the exact legal foothold for these rights are (is it logically entailed by the amendments, a "prenumbrum" around them? what?). Anyway, whatever it is, it is very well established law ... there's a string of cases miles long that uphold it, (starting with a case called Griswold, which says that any person has a right to privacy to use birth control without State interference, well, first married couples, and then later any adult.) Even Scalia, the most conservative justice, acknowledges the right to privacy and some liberty interest in the 14th Am. So there's no way the legal bedrock of Roe will be pulled away. Also, the 3 post-Roe abortion cases at the Supreme Court have upheld Roe every time. So far from the situation where there's a line of cases moving further and further away from Roe, they are actually reinforcing it each time. That leaves dissenting justices no wiggle room to say 'the handwriting is on the wall' for the law to change.

So looking at the merits of the case itself, the question is if Griswold or the 14th Amendment cover abortion. We already know that Griswold's "right to privacy" and a 14 Am 'fundamental liberty interest' covers all adults using birth control. The State cannot stop them unless the state interest is something stupendously critical, which is very unlikely. If it's a 'fundamental liberty interest', that's pretty much the end of the debate. And of course, from a legal perspective, as far as the mother's 'liberty interest' goes, the line between birth control and abortion is incredibly thin; it's hard to see how she could have a liberty interest in one and not the other, and Griswold will not fall. So this side of the equation won't be the target of attack. What about the "state interest" side?

Abortion is argued to be different from birth control because it adds an alleged second fundamental interest, a 'life interest' of the fetus (of course, remember that medieval Catholicism found a life interest in just sperm, it was a grave sin to masterbate, which I think is a rare position today). Anyway, in German Constitutional law, in fact, they have a "proportionality" methodology where all the fundamental interests are actually weighted and then balanced, and its Constitutional Court said the fetus's life interest outweighed any liberty interest of the mother ... so State laws restricting abortion are legal. Considering Germany's history, one can understand why they'd want to take the life interest so seriously and give it an independent trump or check over any other fundamental right. At the very least, this shows that the legal opposition to abortion isn't completely irrational or beyond the ken of intellegent judges of respectable states.

The US Supreme Court approach disagrees in at least 2 respects. First, the whole "proportionality" balancing is kind of alien to its jurisprudence; either the mother has a fundamental liberty interest or she doesn't, and then that is weighed against the state's interest. So whatever life interest the fetus has is actually legally understood as the state's interest in protecting the life of a person (or just "life") in its jurisdiction. I'm not sure that this is so important for reviewing Roe's merits, but it does set up how the US Sup Court would look at this question.

The second way it is different is that the Court in Roe said that a fetus didn't have a legally cognizable life interest as a person. This was, of course, the most notorious and controversial conclusion of Roe. So far as I understood, there were two main approaches the Court (or Blackmun, who wrote the decision) made in coming to this conclusion. One thing that makes the case so controversial is that these two approaches are in deep tension with each other ... and generally speaking the writing of the opinion sucks; it did a piss poor job of clarifying the scope of the interests it was defining, for both the mother and the State (i.e., fetus).

Anyway, first Blackmun restricted the scope of the question to the legal understanding of personhood, putting aside speculations by philosophers, scientists, etc., and since there is no leading federal law clarifying the personhood status of fetuses for purposes of abortion, he decided the question by legal analogy, the bread and butter of legal argument. And he found that for, practically speaking, every other legal area, a fetus did not have personhood status, e.g., a fetus cannot inherit or acquire property, it is not eligible for State benefits, etc, etc. He thought it would be strange to have virtually every area of law pointing in one direction and then have the Constitution suddenly pointing in the opposite direction.

Anyway, this didn't mean the state had no interests left, or that a fetus might not still have some life interest (just not the life interest of a "person"). And in fact Blackmun recognized the state still had interests in putting some restrictions on abortion such as protecting the health of the mother, maybe requiring getting a parent's permission, and what about the residual life interest of the fetus?

So to deal with these sorts of questions, the second approach Blackmun took was to clarify when the state's interest might be at its highest. Before Blackmun was a Sup Court Justice, he worked as general counsel for a large hospital (or something like that), so he was very well read on medical issues/terminology. It was probably because of this he came up with his much-criticized (on both sides of the debate) masterstroke: segregating the issue of the "mother's interest vs. state interest" question by the trimester of pregnancy. Apparently, he reasoned, the state's interest grew as the pregnancy went on, for a number of very medically-contextualized reasons (which is what puts it in tension with the above approach): the health of the mother is more endangered and the putative life interest of the fetus grows over time (e.g., when it becomes conscious). So he drew a line: the State can only prohibit abortions beginning into the 3rd trimester. It can have limited restrictions on earlier abortions (such as requiring conselling), as long as there is no effective restriction on the ability of a woman to get the abortion A few later cases explored the legality of these lesser restrictions (some of which were found to amount to an "effective" prohibition), but that's not really at issue here, and doesn't get to the core question.

Anyway, because it was so fact-laden, the line Blackmun drew was open to factual debate and criticisms of arbitrariness, and both sides seemed to hate the idea, and his explanations, which sounded less like a judge and more like a doctor, only opened up the line to further criticism. (To be fair, judges are in the job of drawing so-called arbitrary lines like this all the time, although I think he went beyond the line here).

Ok, so what about this new law. Well, as you can see, since it restricts any abortion at any time, including in the first two trimesters, it's clearly against the spirit of Roe. It's true that medical knowledge about the neurology of fetuses has increased since Roe (we are much better at localizing the development of particular cognitive functions in a fetus), as has the sophistication of philosophical debate about the moral issues involved (although the standard-setter for the ethical debate remains Judith Thompson's 1971 (http://spot.colorado.edu/~heathwoo/Phil160,Fall02/thomson.htm) essay, definately the most discussed argument, arguing in favor of Roe; or you can read her more popular (http://www.bostonreview.net/BR20.3/thomson.html) article if you don't like the jargon).

But it's not clear that any of the legal underpinnings of Roe have evolved. At the most, these considerations might argue for moving the '3rd trimester' line a little forward or a little back, but it's hard to see how they get a legal foothold into either dismissing that the woman has a fundamental liberty interest (how do you distinguish Griswold?) or that the state's interest is compelling for the entire duration of the pregnancy (even putting aside all the contingencies like rape, etc.). The medical advances aren't going to help there, and the state of the ethical debate is at its best a wash.

So now we have 2 conservative justices replacing one conservative justice and one swing voter. So far as I know, and as much as the Senate confirmation hearings could dig up: the two new justices have very little indication in their background of how they would address the 'right to privacy' in the context of reviewing Roe, although both have been in positions arguing against extensions of Roe as lawyers at various times. It's hard to predict how the arguments will turn out, of course ... and the poor writing of Roe only makes it more of a problem in predicting and everyone feeling good about the decision. But as a legal matter they have very little wiggle room to work with even if they were hell-bent on overturning Roe. They'd have to really be swimming upstream against a very strong current of settled caselaw.

I hope that gets the legal perspective across.

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I should say that I have my own personal opinions that didn't get much of any air time in this diatribe since I wanted to be honest about the situation. (And having been raised as an evanglical Christain, having studied cognitive science in undergrad, having then studied moral philosophy and constitutional law postgrad, I've got more than a few). I'll have to save that for another time.

Well, I'll say a little. My current thinking (coming from a legal philosopher named Dworkin) is that it's true there is a spiritual understanding of "life" and its propery boundaries which is central to many people's way of life and grounded in very established religious norms; but it departs from the scientific/rational understanding of life that's at the center of the political, moral, and legal theory deciding how State power should be restricted in (classical) liberal, democratic States. As such, this religiously-understood "life" interest is best protected under the First Amendment freedom of religion, but not the 14th Amendment. You cannot require or pressure religious dissenters into supporting abortions in any way, but at the same time, you cannot prohibit those with a different religious perspective on the "spiritual" boundaries of life from having an abortion, not unless the scientific/rational understanding of 'life' gives it an independent foothold. That still leaves the debate open on the scientific/rational end. My thinking now is that, before consciousness in its most primitive sense at least, it's just not there. But I'll seriously have to save that argument for another time... (in retrospect, sorry for the length!)

Anyway, this is the great moral debate of our generation, and part of the culture wars over "life" and "liberty", science and spirituality in the modern world. It's these sorts of debates that keep the world going round. I just hope people are honest with themselves, have some integrity, and actually make an effort at coming to the right decision for the right reasons.