Bush Court Spectacularly Delivers, Upholds Abortion Ban [Updated]
By gamecock Posted in Archived — Comments (81) / Email this page » / Leave a comment »
This is a day for rejoicing. Thanks to Republicans. This is a day Gamecock anticipated when he had his conservative epiphany and switched from the Democratic Party to the GOP. This is a day that can lead to regaining the majorities in Congress and retaining the White House in 2009.
More importantly, this is a day that will save hundreds of thousands if not millions of lives that otherwise would have been killed.
The law banning partial birth abortions that President Clinton had vetoed, but which President George W. Bush signed into law after its passage by a then majority GOP House and Senate, has been upheld thanks to Bush's own new appointees.
The law might have saved as many as 100,000 lives last year.
Every justice that voted to uphold the law was appointed by a Republican president.
From the Wall Street Journal (subscription required)
Supreme Court Upholds Ban
On Abortion Procedure
Associated Press
April 18, 2007 10:23 a.m.
The Supreme Court upheld the nationwide ban on a disputed abortion procedure Wednesday, handing abortion opponents the long-awaited victory they expected from a more conservative bench.
The 5-4 ruling said the Partial Birth Abortion Ban Act that Congress passed and President Bush signed into law in 2003 does not violate a woman's constitutional right to an abortion.
The opponents of the act "have not demonstrated that the Act would be unconstitutional in a large fraction of relevant cases,'' Justice Anthony Kennedy wrote in the majority opinion.
The decision pitted the court's conservatives against its liberals, with President Bush's two appointees, Chief Justice John Roberts and Justice Samuel Alito, siding with the majority.
Justices Clarence Thomas and Antonin Scalia also were in the majority.
It was the first time the court banned a specific procedure in a case over how -- not whether -- to perform an abortion.
Abortion rights groups have said the procedure sometimes is the safest for a woman. They also said that such a ruling could threaten most abortions after 12 weeks of pregnancy, although government lawyers and others who favor the ban said there are alternate, more widely used procedures that remain legal.
The outcome is likely to spur efforts at the state level to place more restrictions on abortions.
More than 1 million abortions are performed in the U.S. each year, according to recent statistics. Nearly 90% of those occur in the first 12 weeks of pregnancy, and are not affected by Tuesday's ruling.
Six federal courts have said the law that was in focus Wednesday is an impermissible restriction on a woman's constitutional right to an abortion.
The law bans a method of ending a pregnancy, rather than limiting when an abortion can be performed.
"Today's decision is alarming," Justice Ruth Bader Ginsburg wrote in dissent. She said the ruling "refuses to take...seriously" previous Supreme Court decisions on abortion.
Justice Ginsburg said the latest decision "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."
She was joined by Justices Stephen Breyer, David Souter and John Paul Stevens.
The court rejected the "health" of the mother exception that President Clinton had relied upon to justify his veto.
The court's rejection of that
disingenuous, so-called "mental health, if I have the baby as I won't be able to afford the Ferrari payments and so will be depressed, Mack truck wide exception loophole" also gives us hope that we can further chip away at Roe even with Justice Kennedy on the court.
Issues remain on this health exception, but it didn't persuade Justice Kennedy in this case. This case also bears the marks of Cheif Justice John Roberts' penchant for narrow rulings that can attract a concensus. That usually means getting more than five votes, but in this case we are talking about getting Justice Anthony "betrayed you in Vasey vs. Planned Parenthood" Kennedy to come along.
More later this week after further analysis in The HinzSight Report (see link below) and in this blog later today from GC.
In the meantime, critics that claim Bush hasn't delivered to social conservatives and evangelicals (which claim has never been true in any event) have now been shown to be spectacularly wrong. Bush is, and always has been a member of the Base.
A very high percentage of the problems social conservatives and evangelicals moved to the GOP to solve have been caused by runaway courts. This court can also be counted on to right the wrongs against religious free speech.
Bush is the expert on judges. He is delivering through his appointees. The economy is booming, and his economy has been better than the first 6-8 years of the 1990's which were also spectacular.
Candidates in the Race 4 2008, take note.
Mike Gamecock DeVine @ The Charlotte Observer
Starbucks coffee cups are dangerous, but
"One man with courage makes a majority." - Andrew Jackson
The HinzSight Report
The Minority Report
Race 4 2008
Mike Gamecock DeVine @ The Charlotte Observer
Starbucks: Coffee, good. Cups, bad, but
"One man with courage makes a majority." - Andrew Jackson
in Iraq or even here for that matter. However this war is the big issue among the majority of the population. I'm for the war but most people are against it.
We will be lucky to win much this time around if this war doesn't turn around very quickly
going fine and the McGovernites NEVER win the Presidency and this time, all the Dems are proud to be McGovernites and are not hiding it!
Mike Gamecock DeVine @ The Charlotte Observer
Starbucks: Coffee, good. Cups, bad, but
"One man with courage makes a majority." - Andrew Jackson
I think they are laying the ground for a landslide defeat based on their wakness on defense and radial liberalism on life.
See the polls on who favors jabbing scissors up baby's skulls?
Mike Gamecock DeVine @ The Charlotte Observer
Starbucks: Coffee, good. Cups, bad, but
"One man with courage makes a majority." - Andrew Jackson
It's only a first step. Spectacular would be overruling Roe (and Roe's precedents).
"During my lifetime, all our problems have come from mainland Europe, and all the solutions from the English-speaking nations across the world." - Thatcher
is not a first step. This was step 10,000 since Roe
Mike Gamecock DeVine @ The Charlotte Observer
Starbucks: Coffee, good. Cups, bad, but
"One man with courage makes a majority." - Andrew Jackson
lives. I hope they do overturn Roe v Wade because it's unconstitutional however the effect of overturning Roe v Wade might only be a hollow victory.
Historical abortion statistics, United States
http://www.johnstonsarchive.net/policy/abortion/ab-unitedstates.html
In 1972 the year before Roe v Wade there were 586,760 reported abortions in the USA. The population of the United States at that time was only 156 Million people.
In 2005 there were 346,213 reported abortions in the USA. The population was 300 Million.
In 1990 our nation peaked with it's highest number of abortions ever with over 1.4 million abortions being reported.
Abortions have steadily declined every year after 1990.
They even declined during Bill Clinton's 8 years in the White House.
The % of Abortions was much higher the year before anyone had even heard of Roe v Wade than it is today nearly 35 years after the case with everyone knowing about it.
It would at least be a symbolic victory if Roe V Wade were ever overturned but symbolic victories don't save lives.
you need to be a lot more careful in what you quote as a source.
No national data has been compiled for abortions for 2005. The newest official data is for 2003. 2004 data will be published in November.
But in 2003 there were 848,163 recorded, but California, West Virginia, and New Hampshire do not report abortions.
If you want to believe the number plummeted to 346K feel free. Just don't expect anyone else to accept that number.
Prior to 1997 all states and territories reported so the odds are that the actual number of abortions today is the same or higher as it was at its peak. What we are more sure about is the rate of abortions per 1,000 live births (peaked in 1983) and the rate of abortions per 1,000 women aged 15-44 (peaked in 1979) continues to decline after peaking
The % of Abortions was much higher the year before anyone had even heard of Roe v Wade than it is today nearly 35 years after the case with everyone knowing about it.
Not true. In 1972 the ratio of abortions per 1,000 live births was 180 in 2003 it was 243. In 1972 the rate of abortions per 1,000 women aged 15-44 was 5, in 2003 it was 15.
"A man can never have too much red wine, too many books, or too much ammunition." -- Rudyard Kipling
Your stats are way off. The site you reference is apparently just some dude's personal site. He has an entire star trek section to his site.
http://www.johnstonsarchive.net/startrek/index.html
Where did you find this stuff? Are you Mr. Johnston?
Did I say his statistics were the only source I used the words appears to be.
Attacking the messenger doesn't make sense particularly since I'm pro-life.
I also want Roe v Wade overturned. But his statistics could be right I have never seen any statistics when people claim this procedure or they claim that a ban would reduce 500,000 or this here would help reduce abortions. I want to see concrete evidence no maatter what it reveals.
of abortion rates, ratio, and numbers is this one. That graph starts in 1973. The points before then were lower. You can see the stark upward movement in the number of abortions post-Roe. The rate and ratio have fallen for 20 years now. The actual number has declined for 15 years or so. But all are still above pre-Roe levels. I don't think anyone doubts that making abortion illegal in some circumstances would lower the number of abortions. The scope is debatable, not the direction.
______________________________________
Bobby Jindal Saves Louisiana
we don't know if the rate at ratio have declined since 1998 because since 1998 we have not had a single year in which all states report. As I note above California does not report abortion data, I'm willing to go out on a limb and guess that California has a lot of abortions.
"A man can never have too much red wine, too many books, or too much ammunition." -- Rudyard Kipling
______________________________________
Bobby Jindal Saves Louisiana
aren't wrong, they are incomplete. Notice how his numbers are the same as the CDC up to 2003. My guess is not all states have reported for 2004-6 yet. That is why the CDC has released the numbers in their graphs and tables.
If abortions had dropped from 1.3 million to .3 million in 3 years, someone would have noticed and it would have made the news.
______________________________________
Bobby Jindal Saves Louisiana
know what the real amount of damage being done is. I'm very familiar with the war on drugs but this was the first time I ever even took a look at any Abortion stats. The way the government determines what % of people who are on drugs is they call peoples houses and ask them if they use drugs.
Most Drug users aren't stupid people although they made a stupid choice however with that said most of them aren't going to admit on the telephone to a complete stanger that they take illegal substances. These people are paranoid coke heads and meth freaks they already worried about being caught heck most of them won't even answer the phone if they have one at all. Drug use statistics are notoriuioulsy unreliable.
This may very well be the case for abortion stats as well.
on how representing an incomplete number as a total is different from being wrong. The conclusions drawn from those numbers are demonstrably wrong.
"A man can never have too much red wine, too many books, or too much ammunition." -- Rudyard Kipling
state in the union does not report its abortion statistics to the CDC or any other entity.
So all of demophilus's so-called "statistics" are wrong.
Assuming that abortions in California are done at a rate that is comparable to other blue states, the 346,000 + abortions per year that are reported by demophilus is probably well in excess of 400,000.
400,000 per year, people. That's a World War II level casualty rate every year brought to you by the abortion profiteers and females who don't want their friends and family to find out that they like to get drunk and have sex with guys they barely know.
Here's the latest (I believe) official numbers.
http://www.cdc.gov/mmwr/preview/mmwrhtml/ss5511a1.htm
As strieff notes above and as made clear in the link, the numbers from recent years do not include all states.
said i do hope they overturn Roe v wade but i don't think it's going
to happen at least anytime soon.
state you follow data and polls. I can't see how the abortion data leads to the conclusion you just stated. Abortion more than tripled after Roe. If state abortion laws were permitted, I think it is undebatable that abortions would decrease. Perhaps less people would have risky sex. Perhaps less people would choose to have an abortion. But the number of abortions would decline.
Education may have a similar effect, but you'd have to get some good research to make that point persuasively.
______________________________________
Bobby Jindal Saves Louisiana
stats on how many abortions were being done i concentrated the statistics on how many USA citizens wanted to keep abortion legal vs the ones who want to make it illegal.
unless you mean the education provided by social pressure and being forced to deal with the consequences of one's actions
"During my lifetime, all our problems have come from mainland Europe, and all the solutions from the English-speaking nations across the world." - Thatcher
And I think that there is more than enough evidence to suggest that your motives here are dishonest.
Who are you really?
You're certainly not the abortion opponent you claim to be.
Your initial assertion was "Statistics reveal that overturning Roe v. Wade might not save any lives." This is truly tortured use of the English language. Notice the word "might". Now try this: "Brushing your teeth might not reduce tooth decay at all." A true, but utterly deceptive statement. One could get run over by a truck immediately after brushing one's teeth, thus nullifying any potential benefit.
Your initial statement is a lie. "Statistics" do not reveal anything near what you claim that they reveal. Common sense reveals that allowing the states to ban abortion if they choose to will reduce the number of abortions AND SAVE LIVES in the states that choose to ban abortion.
I think the editors need to look into your history immediately. You are not who you claim to be.
or maybe I'm Barbera Boxer in disguise. Your funny I've been a Republican since the early 1970's and have never voted for a democrat in my entire life.
There not my statistics there Mr. Johnstons. He is a pro-life southern baptist
I didn't claim anything and I'm glad they banned that gruesome procedure however there was only 3000-5000 people a year getting that procedure according to Fox and Msnbc. All this did was ban hanging but continues to allow the electric chair.
Contact Johnston instead of crying like a baby about editors and my history your a joke.
here is his email you can ask him where he got his stats
I'm glad I'm not the only one who was thinking that.
He basically says "I'm pro life" and then spouts almost every talking point that Democrats spout to make themselves look moderate. And I don't believe this is the only issue that he does this on. He is either a trojan horse or he's just a very, very confused individual. LOL
"During my lifetime, all our problems have come from mainland Europe, and all the solutions from the English-speaking nations across the world." - Thatcher
As I understand it, the banned procedure is very rare. Secondly, the ban is against a method only; will it stop actualy abortions from occuring? The article you cited seemed to intimate that the procedure can be easily replaced with other more widely used procedures.
An honest question: does the ban decrease the number of abortions?
The prohibition on this gruesome procedure is a victory for all human beings, everywhere, living and yet unborn.
You just became my best friend.
I was totally convinced that you were a dKos plant before. Thanks for restoring my faith in humanity.
It is key for us (pro-life) to get the Supreme Court on the record that there are limitiations and restrictions we can place on abortion in order to move down a path to eventually get Roe vs. Wade overturned.
What happened today is an important part of a three pronged strategy to get rid of abortion:
1) Pass laws gradually limiting and increasing the regulation of abortion, and have those laws upheld by the judiciary in order to chip away at the notion that abortion is some sort of constitutional right.
2) Continue to get good conservative judges confirmed to the bench that will uphold laws limiting and eventally eliminating Rove v. Wade.
3) Most important, continue to make the case to the public, especially with the benefit of uncontestable modern medical/ultrasound technology, that unborn children are not just blobs of tissue or tadpoles but clearly are human beings and terminating their lives is wrong.
You may be right that the ruling today doesn't reduce the number of abortions in the US on its own, but it was a big step forward in the overall strategy that will get us one day to overturning Roe and then banning abortion in as many states as possible.
This is a victory but there is still much work to be done. Once Roe v. Wade is overturned, it will only take the battle to each state.
in the past that used this procedure and can be expected to in the future.
Mike Gamecock DeVine @ The Charlotte Observer
Starbucks: Coffee, good. Cups, bad, but
"One man with courage makes a majority." - Andrew Jackson
The law passed by Congress bans one procedure: dialation and extraction, or D&X. It involves, as most here are aware, puncturing the base of the skull of a fetus and removing its brains.
The alternative to this procedure (and now the only legal one of the two) is dialation and evacuation, or D&V. It involves dialating the cervix and ripping the fetus out piece by piece, an arm, leg, torso, etc. at a time. This method, obviously more gruesome than the former (but that takes place inside the womb, so less visible and "icky") is still legal and will take the place of the 2,000 or so D&X procedures each year.
Good job Congress; outlaw the more humane method of abortion and leave the gruesome method as an option. One more reason to keep government out of medicine.
From a strictly factual standpoint it really doesn't mean a whit if you are dismembered and extracted or have your skull vacuumed. You are pretty much dead in either case.
The decision does uphold state requirements for pre-abortion counseling. If that counseling includes a description of the procedure, which would be required if a physician were following federal informed consent guidelines, then grusome is better.
The next step is to go after a more gruesome means of abortion and outlaw it.
We aren't going to win this in one fell swoop but we can make great inroads incrementally.
"A man can never have too much red wine, too many books, or too much ammunition." -- Rudyard Kipling
that the decision rendered today is based in part on the finding that there are other means for a woman who needs an abortion for health reasons to obtain one than D&X. The fact of the matter is that the alternative, D&V, is more gruesome. Following the court's logic, the government can outlaw one or more of the procedures available to a woman, but not all of them.
So why, when some methods of abortion have to remain legal for the court's ruling to stand up, outlaw the less gruesome of two methods?
By the way, I don't know anyone who actually subscribes to the "you are pretty much dead in either case argument." Are you actually saying that a gun shot wound to the head and being dragged behind a car (roughly the equivalent to D&X and D&V, respectively) are the same?
Following the court's logic, the government can outlaw one or more of the procedures available to a woman, but not all of them.
I don't think they said that at all. The case before them dealt with PBA. They couldn't very well rule on an issue not before them.
They did reiterate the state interest in the third trimester babies so I don't see why the hack 'em and sack 'em procedure is safe from attack.
By the way, I don't know anyone who actually subscribes to the "you are pretty much dead in either case argument." Are you actually saying that a gun shot wound to the head and being dragged behind a car (roughly the equivalent to D&X and D&V, respectively) are the same?
So one person is more or less dead than the other? You may not like the aesthetics but the outcome is exactly the same.
"A man can never have too much red wine, too many books, or too much ammunition." -- Rudyard Kipling
"undue burden" is based on the argument that intact D&E as defined in the statute cannot be confused with traditional D&E. The presumption throughout is that if it had outlawed the latter it would have created an undue burden and been unconstitutional.
you can construe it that way if you wish, but the decision is pretty narrow and doesn't address which procedures may or may not be necessary and it does reiterate state interest in a viable fetus.
So I'm happy for the moment.
As I said as far as I am concerned the more gruesome the procedure the better. We've proven we can attack the method used in abortion and get about 60-70% of the population with us. Today proved the court will listen to that argument. We can attack infant dismemberment, which has been the source of a string of surgical misadventures, just as successfully.
"A man can never have too much red wine, too many books, or too much ammunition." -- Rudyard Kipling
section III C of Kennedy's opinion any other way. The respondents argued the ban, while intending to ban intact D&E could be construed to ban traditional D&E and thereby places an undue burden on the woman by denying her her constitutional right to access to an abortion if her health is in danger.
The court ruled that the statute cannot be so construed, and must not be so construed, because to construe it in such a way would render it unconstitutional (see especially the second full paragraph on pg. 23). The assumption in this opinion, that banning all access to abortion would be unconstitutional, is obvious. Therefore, congress may limit some methods of abortions, but not eliminate them altogether.
Which part of this line of reasoning do you find unconvincing?
the claim is the that the law is so vaguely written than a doctor using the other procedure could be accused of PBA.
At no point does anyone say anything other than the law is not that vaguely written. The issue of other methods was not before the court, they didn't rule on it. It simply didn't happen.
You don't have to dig in the footnotes to find it, read pages 4 and 5.
The Act’s failure to allow the banned procedure’s use where “ ‘necessary, in appropriate medical judgment, for preservation of the[mother’s] health,’ ” Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 327–328, does not have the effect of imposing anunconstitutional burden on the abortion right. The Court assumes the Act’s prohibition would be unconstitutional, under controlling precedents, if it “subject[ed] [women] to significant health risks.” Id., at 328. Whether the Act creates such risks was, however, a contested factual question below: The evidence presented in the trial courts and before Congress demonstrates both sides have medical support fortheir positions. The Court’s precedents instruct that the Act can sur-vive facial attack when this medical uncertainty persists. See, e.g., Kansas v. Hendricks, 521 U. S. 346, 360, n. 3. This traditional rule is consistent with Casey, which confirms both that the State has an in-terest in promoting respect for human life at all stages in the preg-nancy, and that abortion doctors should be treated the same as otherdoctors. Medical uncertainty does not foreclose the exercise of legis-lative power in the abortion context any more than it does in other contexts. Other considerations also support the Court’s conclusion, including the fact that safe alternatives to the prohibited procedure, such as D&E, are available.
The best you can get from this is an acknowlegement that as long as there is a safer method, any method can be outlawed.
Coupled with the emphasis on state interest in the third trimester, we are within striking distance of outlawing third trimester abortions.
"A man can never have too much red wine, too many books, or too much ammunition." -- Rudyard Kipling
as long as there is a "safe" alternative (it doesn't have to be safer than the one banned), Congress can outlaw abortion. A safe alternative must remain, though. I'm simply arguing that Congress banned the wrong procedure. I just made a blog entry on the topic (my first, so be gentle ;)), so I'll stop threadjacking this one.
The current abbreviations are IDX (intact dialation and extraction, outlawed today) and D&E (dialation and evacuation).
They seemed to have changed since the last time I read up on them. Apologies for the error.
in the opinion today (which I'm about halfway through), the court uses the less common intact D&E for "intact dialation and extraction."
If George H.W. Bush had listened to Orrin Hatch instead of Warren Rudman and put Edith Jones on the Supreme Court instead of David Souter, then we probably would have done away with Roe in one fell swoop this week. Actually, we never would have had Casey or Stenberg, and would have done away with Roe in 1992.
I would love to have read Edith Jones's opinion striking down Roe. It would make Scalia's passionate dissents look tame by comparison. LOL
Mike Gamecock DeVine @ The Charlotte Observer
Starbucks: Coffee, good. Cups, bad, but
"One man with courage makes a majority." - Andrew Jackson
as I didn't follow the process as the bill was passed. Were there any proposed amendments to ban D&V as well?
The article says "It was the first time the court banned a specific procedure in a case over how -- not whether -- to perform an abortion."
The Court did not ban anything. It allowed a legislative ban to stand. There is a HUGE difference between the two, as it gets to the heart of sane conservative/originalist jurisprudence versus the ludicrous 'living Constitution.' A Sup Court functioning as it should -- i.e a conservative Sup Court -- would not impose outcomes on these hot-button issues, but rather would allow the legitimate authorities to settle the matter.
It is important for this distinction to reach the public, because the standard tactic of the Left in dealing with conservative judges is to intentionally misrepresent what they have done, and what they would do. You have 'straight talkers' like Bill Maher repeating the lie that a conservative Sup Court would 'outlaw abortion', but of course that is not true. They would simply strike down a bad decision in Roe, and turn the matter back to the states where it belongs. Scalia has been clear on this; the Constitution says nothing on the matter, but the people/legislatures should be free to adopt as loose or restrictive laws as they see fit.
Mike Gamecock DeVine @ The Charlotte Observer
Starbucks: Coffee, good. Cups, bad, but
"One man with courage makes a majority." - Andrew Jackson
for making that distinction.
We don't want to get as bad as liberals and start pushing results-oriented jurisprudence.
that poor women seeking partial birth abortions are going to be put in jail? (sarcasm off).
...would have joined in such an opinion? If so, do you think such a Giuliani judge would be an Alito-Scalia type, or a Kennedy? In other words, do you think a Giuliani-appointed judge would be willing to go all the way and strike down Roe, or do you think at best a Giuliani judge would be another Anthony Kennedy, which is to say, not all bad, but certainly not good either.
Yes, I know what Giuliani said. What I am trying to point out with my snide remark is the ridiculousness of Giuliani's earlier statements about being against throwing pregnant women in jail that want abortions. Giuliani keeps explaining that he is pro-choice because he is not in favor of pregnant women being thrown in jail. By stating this he is implying that pro-lifers believe we should throw these women in jail. Well, if his real concern is throwing pregnant women in jail, why is he not disturbed by this SC decision? Won't poor women that are down on their luck and need a partial birth abortion end up in jail? No because Giuliani knows full well that no-one advocates that position. His support of today's SC decision shows that he knows full well that he has been consciously feeding us all a line about throwing women in jail.
I read Guiliani's statement as agreeing with the court's legal decision. IOW, as a matter of constitutional law, Guiliani agrees with the Supreme Court that the PBA Ban Act was not unconstitutional.
I do not read Guiliani's statement as agreeing with Congress's policy decision to enact the PBA Ban.
I heartily agree that this decision is great news about the Supreme Court. First it demonstrates how much better Alito is than O'Connor, but we pretty much knew that already. Similarly it shows progress toward ditching Roe v. Wade, even though we're not there yet.
I disagree about the contention that it will save many lives if any. As others have pointed out, the court merely upheld a law saying that if a woman opts a late term abortion, she just has to use a late term abortion procedure other than partial birth abortion. It's a safe bet that just about every woman who would have had a partial birth abortion will still have her late term abortion.
While I'm pro-choice on early term abortions of a clump of cells with no mental activity, my moral/policy preference is to see late term abortions banned (with physical health exceptions). This court decision on best interpretation doesn't address whether it would uphold such a law, and could plausibly be read to imply that the PBA ban is only valid if some alternative method of late term abortion is allowed. My optimistic reading is that it was following good judicial practice of ignoring issues not necessary for deciding the case at hand; if the case doesn't require it to address the issue of whether an overall ban is allowed, it should rule on a narrower basis.
I would have been more pleased if had been a state law rather than a federal law banning PBA. Strictly reading the Constitution's text, this seems pretty far from the enumerated powers of the federal government. Of course we've all gotten pretty used to sweeping interpretations of the commerce clause, so what the heck.
PBA. Moreover, there is no argument that one can't make about killing the "clump" after a fertilzed egg attackes to the uterine wall that can't also be used to justify killing severely disable clumps outside thw womb.
Mike Gamecock DeVine @ The Charlotte Observer
Starbucks: Coffee, good. Cups, bad, but
"One man with courage makes a majority." - Andrew Jackson
... just to be clear about what I mean "with no mental activity," I mean the same or stricter standards than we apply outside the womb. If some patient's degraded mental state is still not bad enough to consider brain dead, i.e. not dead enough to pull the plug, I favor protecting a fetus at the stage it has a similar level of mental awareness. My moral view has similar criteria for when a right to life has not yet begun and when it has ended.
This doesn't address the issue of potential life, but that's another debate.
the dilema of those that try and determine the amorphous Persistent Vegitative State and hope that just before they pull the plug, it becomes less persistent.
I expect to change your position!
Mike Gamecock DeVine @ The Charlotte Observer
Starbucks: Coffee, good. Cups, bad, but
"One man with courage makes a majority." - Andrew Jackson
is life.
Mike Gamecock DeVine @ The Charlotte Observer
Starbucks: Coffee, good. Cups, bad, but
"One man with courage makes a majority." - Andrew Jackson
Just because there's a gray area between two distinct situations doesn't mean the law shouldn't distinguish between them, even if the point it defines between them is hard to decide. You can write much more precise laws on what level of mental activity constitutes brain dead, than we have on what constitutes a "reasonable" fear for one's own safety in legally justified homicide.
There are cases where a patient is obviously dead or obviously alive mentally, not perfectly correlated either way with the ability to breath without mechanical assistance. There are inevitably some not so obvious cases where well meaning people will disagree, but that doesn't mean that the law must forbid pulling the plug in all circumstances.
on a case involving negligent highway repair work with a sign warning of a "no shoulder" hole, that there should be no liability to the driver that drive in the hole, since:
"I can draw a line.!"
You make good points gensec, as usual.
Mike Gamecock DeVine @ The Charlotte Observer
Starbucks: Coffee, good. Cups, bad, but
"One man with courage makes a majority." - Andrew Jacks
My Russian history prof from Czechoslovakia had an accent as thick as they come. There were other courses that mattered a lot more for where and who I am today, but that accent helped make my memories of that course seem the most profound.
That is the best impact this case has. It helps assure that a republican will nominate the next 2-3 justices and that a GOP senate majority confirms them.
That saves lives.
Mike Gamecock DeVine @ The Charlotte Observer
Starbucks: Coffee, good. Cups, bad, but
"One man with courage makes a majority." - Andrew Jacks
Leon H Wolf,
Below are excerpts from your “First Principles" on the subject of legal abortion, followed one-by-one by my related comments. The excerpts from your posting are the paragraphs in quotes below. I have combined some of your paragraphs to make it easier to distinguish the excerpts from my comments (i.e., to group each excerpt into one paragraph within quotes), since I don't know how to adjust the fonts here as a means of visual distinction.
“First, it will be useful to enumerate some of the reasons that do not describe why I am opposed to legalized abortion. I am not opposed to legalized abortion because abortion is an issue of responsibility. Although according to the Alan Guttmacher Institute, rape and incest account for less than 1.5% of all abortions, it is unquestionably true in the United States, and perhaps more so in other societies, that some women do not make a meaningful choice to become pregnant. It is true that I am generally more favorable to volitional explanations than deterministic ones (in virtually all areas of life), but only a fool would deny that some consequences truly are determined rather than chosen, and this applies to abortion as well.”
I agree that the responsibility for the pregnancy should not be a basis for opposing legal abortion, but the proper rationale is different, much simpler, and more related to logic than opinion (and therefore less debatable). Responsibility for the pregnancy is simply irrelevant. If the embryo/fetus is a person, then a pregnant rape victim has no right to kill that person (other than, arguably, to save her life, which is comparable to a self-defense justification for killing a person), and if the embryo/fetus is not a person, then society has no more moral basis for outlawing its abortion than it does for making it illegal for a homeowner to remove a tree in his/her backyard simply because he/she had planted it, particularly if a legal requirement to maintain the tree would (or could) result in substantial practical or emotional sacrifice and would infringe upon individual liberty, both of which would apply to outlawing abortion.
“The reason that I am opposed to legalized abortion is really very simple: I believe that all human life should be afforded the protection of the law. Setting aside the embryo-destruction question for a moment (we shall, I promise, have that debate another time), the reality is that abortion is a procedure that is practiced almost exclusively after the fourth week of gestation.”
You are moving the goalposts, here, unless you are only arguing against legal abortion after the fourth week of gestation, which I assume you do not intend to do.
“By this stage of development, the unborn has its own heartbeat, and its own primitive nervous system. It is genetically unique from both its mother and father, and is an entirely discrete and separate organism from its mother, despite residing within its mother. To use a crude analogy - a tapeworm residing inside a human is completely contained within the human, but is unquestionably not the human it resides within. So it is with the fetus.”
I don’t think anyone questions that the embryo/fetus is a distinct organism.
“However, unlike the tapeworm, the fetus is not the final form a human will take. Eventually, in the normal course of events, it will become an infant, toddler, child, adolescent, adult. It is, however, unquestionably a separate biological organism, which is almost human.”
This is the “potential” argument. True, 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 (even you describe an early embryo as “almost human”, although “almost a peson” would be a more precise term for what you mean, since the organism is undeniably human), nor does it have the same right to life as one who has already established personhood via previous and current cognition (thoughts and emotions). 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, 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.
“What is to distinguish between the four-week-old unborn child, and the four-week-old infant? An honest answer will admit of only two realistic distinctions: development and location. And yet, the one is afforded all the protections of law, and the other none - not even the most basic protection which provides that those who would do her harm leading to death are subject to criminal sanction. I cannot justify a system - either morally or philosophically - that will draw these distinctions based solely upon the level of development or location of the humans within its jurisdiction. In reality, the only distinction actually drawn by our law is "location" - a child within womb, at any developmental level, is legal fair game, a child without is sacrosanct. Cf. this story. However, this circumstance is due to the fact that current United States abortion law is actually more permissive than many abortion advocates would prefer: when it is pointed out that it's ridiculous that woman can shoot her own in utero on the very day of her delivery and not suffer legal sanction for what she would have been convicted of first degree murder for doing later in the day, the goalposts often change.”
I completely agree regarding the absurdity of the typical “location” argument (i.e., “My body, my choice”). Location (within vs. outside the womb) is an illogical argument for legal abortion if the embryo/fetus is a person, assuming proponents of legal abortion agree that killing a person should be illegal (exept in self-defense, which corresponds to saving the life of the mother). As a important note, the same applies to the similarly flawed argument for “viability outside the womb” that some claim as a relevant point for the onset of a right to life, ignoring the question of whether or not the embryo/fetus is a person, regardless of whether or not it can survive outside the womb. The only relevance of location is that, if the embryo/fetus is NOT a person, and if, as I would contend, there could still be weaker arguments for outlawing abortion on the grounds of promoting particular cultural values (e.g., Albert Schweitzer’s “reverance for life”, which applies to all living things) or a society’s need to grow its population (or reduce its decline) or some other collective benefit, the fact that the embryo/fetus is located in the womb and therefore necessitates a substantial degree of sacrifice by the mother (pregnancy to term & birth), as well as an infringement upon individual liberty, places a higher burden on that society for proving that the collective benefits justify the individual sacrifices (practical, emotional, and infringement upon liberty).
“It is then commonly asserted that: (1) You are quite correct, location is an absurd line to draw, I would prefer "consciousness," and (2) this makes the argument irrelevant since a relatively infinitesimal number of late-term abortions are performed every year. What of "consciousness," then, as a suitable yardstick against which to measure whether a human life is entitled to the protection of the law? Whatever might be said of its usefulness for determining this question at the end of life, when consciousness is viewed as a function of development, it becomes clear that this standard is no less arbitrary or unsatisfactory than "location." The reason that this is so is that it is based upon a theory that human legal rights are based upon some contingent quality of humanity, rather than upon humanity per se. The entire path of human legal process has fought to destroy the contingent view of human rights: from the time that rights were contingent upon nobility, or gender, or race, or any other such thing, any society which today would hold that any human right (say, property, the franchise) was based upon some contingent property (for instance, being male, being white) would justly be criticized as a morally backwards oppressor of human rights. Historically, we have looked back upon these backward times when rights such as property and the franchise were based upon contingent qualities like race and gender with a sad nod toward what were the inevitable realities of the time. However, when the right to life becomes contingent upon some quality (race, ideology), those societies are justly looked upon with universal condemnation as illegitimate monstrosities. So here, we have made the right to life contingent - today upon "location," in the mind of the moderate pro-abortion advocate it is "consciousness," by which he means "development." This is comfortable for many people primarily because it conveniently places the line where the existing social order will not be disturbed. This, however, is no more valid as a contingency than "puberty" or "toddlerhood" or any other stage of human development. “It is important to note that this is not a "slippery slope" argument - this is an argument about the state of the law right now and its injustice. If the lessons of history also teach us that foundations of "contingency" tend to bleed into other areas, that is something else to consider.”
Not only does your argument above indeed constitute a “slipper slope” argument, your slippery slope argument is of the extreme variety. As a note, I would substitute “thoughts and emotions”, or “cognition” for short, instead of “consciousness”, but the following points would apply to consciousness as well. Now, can we agree that an organism that is completely devoid of thoughts and emotions, and lacks any capacity thereof in it’s current form, nor has ever had such cognitions, cannot possibly be a person? If so, logic would dictate that we agree that an embryo is not a person, since, needless to say, an organism with no brain activity, nor any history thereof, cannot possibly have the capcity or history of cognition. 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.
“There are some common objections to any policy which would place abortion outside of the law. First, it is asserted that criminalizing abortion, or any other policy making abortions difficult to obtain (such as a policy which would de-license and/or fine doctors who performed abortions, which would be my preference), will inevitably lead to the deaths of women who would seek abortions in any case. This may well be so, but it does not, as such, illegitimize the policy.”
I agree completely. If – repeat, IF -- the embryo/fetus is a person, then killing it is murder (other than in self-defense), and we don’t make murder legal just to make it safer for the murderers.
“It is also contended that abortion is a moral issue, and it is wrong to legislate morality. This is, of course, a statement that does not bear close scrutiny. The criminal law, by and large, is the legislation of morality - moral judgments about the value of human life, about the sanctity of property, etc. Further, it does not make any position ipso facto illegitimate just because it is held by a large number of religious people; for instance, virtually all religious people believe, based at least in part on the teachings of their faith, that murder and theft are wrong. What makes a particular position an illegitimate extension by government into the private lives of its citizens is not that it is a position advocated by the religious, it is that the government has overstepped the bounds of the functions it is capable of effectively affecting. It has often been said (although it is somewhat disputed) that the law cannot lead or change morality. Insofar as this applies to things like adultery or churchgoing, the criticism is well-taken. Insofar as it applies to the unjust taking of human life, it is so much chattering in the wind: the most basic function of any government being the protection of the lives of its citizens.”
I agree with the point above if by “morality” you are referring to principles of right and wrong that are not completely dependent on religious doctrine. Conversely, if one cannot make an argument for the morality or immorality of an action/law/policy without saying “it’s immoral because my scripture says it’s immoral”, then I do not accept “morality” as the correct term, and I would generally not accept such an argument as a legitimate basis for establishing laws that infringe upon fundamental individual liberty and force substantial sacrifices on some or all affected individuals. “Morality” in my view is a matter of helping or not harming others (I would include animals as well, although standards would be different than for humans and would vary by species based on ability to think, emote and “experience” pain and pleasure, admittedly difficult determinations and not something about which I’m knowledgable.) I would like to think that the “religious people” to whom you refer would “believe that murder and theft are wrong” even without their religion – if not, I sure as heck don’t want to be near them if they ever lose faith! But back to your point, I agree that it is wrong to contend that morality, particularly the idea that it is wrong to inflict severe harm on innocent others, cannot be a legitimate basis for legislation. In fact, as you point out, in extreme cases – such as criminalizing murder – legislating “morality” is arguably the most legitimate function and responsibility of government.
“This is a post about abortion, but a couple of peripheral issues generally arise that might as well be dealt with up front. First - the death penalty. As a philosophical matter, I support the death penalty. One of the things about rights is that they can inevitably be surrendered - but always by voluntary acts. The right to liberty and property (and the franchise) by the voluntary choice to commit certain crimes. But freewill voluntary choices are always part of the equation. That does not mean that I don't have very serious reservations about the way the death penalty is carried out on this country. More here. The question of war is an entirely separate subject which admits of no easy answer, but I have written of it as best I can here.”
I agree that there is no inherent conflict between being pro-life and being pro-death penalty. While the question of free will is an entirely different debate that is relevant but which I will disregard here because it would open up a whole, distracting can of worms, there are at the very least practical arguments – debatable, but plausible – for the death penalty, such as the deterrent effect, as well as satisfaction for family and friends of victims. Similarly, I agree that there is no inherent conflict between being pro-life and not being a pacifist. War is sometimes the most moral option (e.g., defeating Nazi Germany).
You've been tossed here once before, IM4. Do this again, and we drop AOL a friendly note about your abuse of our server and site.
-----------
We are all heroes, you and Boo and I. Hamsters and rangers everywhere, rejoice!
and who support limited Federal government.
How does this law jibe with your views that the Federal government should only pass laws that deal with the specific powers granted them in the Constitution.
Under which specific power does this law fall under?
There are those who look at things the way they are, and ask why ... I dream of things that never were and ask why not. - Robert Kennedy
I understand that for fifty bucks he'll tell you anything that you want to hear on this.
The Fuzzy Puppy of the VRWC.
Mr. Reid is hardly alone in that particular club. They have jackets.
I am not looking to debate the partisan gamesmanship of the issue.
But I have seen MANY people say that Roe should be struck down so that the states can decide this matter on their own.
There are those who look at things the way they are, and ask why ... I dream of things that never were and ask why not. - Robert Kennedy
Anyway, snark aside I would presume that the argument is that we do have laws against murder; that pretty clearly a critical threshold of the population considers PBAs to be infanticide; and that thus this law is simply redressing an intolerable, non-legislative imposition.
Or something like that. I personally take my libertarianism with a double shot of pragmatism and three heaping spoonfuls of sentimentality.
The Fuzzy Puppy of the VRWC.
I'm fine with pragmatist politics as long as people are consistent about it. You've always been consistent.
However I don't believe that there is a Federal law outlawing murder only murders that apply in Federal situations. If I kill my neighbor the Federal government doesn't have a law they can charge me with. I could be wrong on this but I believe that is true.
There are those who look at things the way they are, and ask why ... I dream of things that never were and ask why not. - Robert Kennedy
is part of the federal government
Mike Gamecock DeVine @ The Charlotte Observer
Starbucks: Coffee, good. Cups, bad, but
"One man with courage makes a majority." - Andrew Jacks
What's good for the goose is good for the gander, political principles be damned.
There are those who look at things the way they are, and ask why ... I dream of things that never were and ask why not. - Robert Kennedy
reduses the number of merders under THAT law until we can change the law.
Mike Gamecock DeVine @ The Charlotte Observer
Starbucks: Coffee, good. Cups, bad, but
"One man with courage makes a majority."-Andrew Jackson
"...it's a pretty odd one because the basis on which this decision is decided is that this procedure can be banned because a perfectly equal alternative, also barbaric is available and as long as it is, it means it's going to happen."
http://www.realclearpolitics.com/articles/2007/04/special_report_roundta...
"During my lifetime, all our problems have come from mainland Europe, and all the solutions from the English-speaking nations across the world." - Thatcher
this decision; the procedure is getting the publicity its proponents fear; and the fact that Roberts kept Kennedy from chosing a side that could have cost more inncoent lives.
Mike Gamecock DeVine @ The Charlotte Observer
Starbucks: Coffee, good. Cups, bad, but
"One man with courage makes a majority."-Andrew Jackson
will be determined by what happens in Iraq.