Have you ever read the Roe v Wade decision?

[Larry Gude]

...should there be a law, at the state level either allowing or forbidding abortion; or should it be a non-issue , in law, for each individual to decide on their own?

There should be elections. There should be elected representatives making decisions and facing their constituents.

I find NO right to abortion in the constitution anymore than I find a prohibition. This issue is far too personal, in my view, to have been settled with a sledgehammer.

 

[PsyOps]

There should be elections. There should be elected representatives making decisions and facing their constituents.

I find NO right to abortion in the constitution anymore than I find a prohibition. This issue is far too personal, in my view, to have been settled with a sledgehammer.

How do you resolve the moral issue of destroying a human life?

 

[Larry Gude]

How do you resolve the moral issue of destroying a human life?

Personally or socially?

 

[PsyOps]

Personally or socially?

Can you separate the two? Do you leave this completely up to the individual; no limitations? Does the woman have complete autonomy in the decision? Does the father have any rights or say so? Does the government have any responsibility to define the boundaries?

 

[JoeRider]

I also think that safe and legal abortion means less babies in trash cans.

It's that an abortion? Babies in the trash?

 

[Larry Gude]

Can you separate the two? Do you leave this completely up to the individual; no limitations? Does the woman have complete autonomy in the decision? Does the father have any rights or say so? Does the government have any responsibility to define the boundaries?

How else can I say this? I think it should be a decision, legality, conditions, limits, made by elected leaders who have to face their constituents.

 

[philibusters]

Isn't that the crux of the legal issue though (at least, preliminarily, and in a way that sets the ground rules for the legal consideration) - whether an embryo or fetus is a human life rather than merely "the potentiality of human life"? I'm not suggesting that it isn't, but when it comes to considering the matter, isn't assuming that all embryos and fetuses are life just begging the question?

I think it's safe to say that, to the extent they are clearly regarded legally as human life, there would be a compelling government interest in protecting that life which is, in the vast majority of cases, sufficient to overcome the appreciated privacy right. If the Roe majority had specifically found that embryos and fetuses were human lives, in the same way legally that the born are, the result would have been much different I think.

That's the crux of the problem even with just the legal consideration of the issue, let alone a particular conclusion. That question - whether an embryo (especially) or a fetus is a human life - isn't, by its nature, a legal one. It's a philosophical one, maybe a moral one. If there's to be an objective answer, perhaps a medical one. Whatever, but it isn't really a legal question. Yet, at the same time, in our society, it has to be.

If that's a separate human life that a woman is carrying around in her belly, she doesn't have a right to murder it, except in self-defense. She certainly doesn't have the right to murder it after it's capable of surviving without her. On the other hand, if it isn't a separate human life, she has a pretty strong right to do what she wants with her body. That's the conundrum the Supreme Court faced. Pretend though we might that the legal issue is simple, it is not - because it isn't a legal issue at all, just one demanding that it be treated as one. If anything, the Supreme Court should be most criticized for skirting that question somewhat - but, had it not, I suspect the controversy would be even sharper and its 'talk past each other' tone would be in even greater force.


EDIT: Oh, forgot - yes, Griswold was the 'penumbras' decision.

The issue of whether a fetus should be considered human life is definitely the crux of the moral debate and it is an essential issue to make a determination of in the legal case.

Ideally if society has come to a consensus on a tricky moral and philosophical issue, the courts don't have to make tough decision. They can just plug in the consensus. The consensus is not rooted in the Constitution or any legal language, but if there is broad consensus on the issue then that is as good as if there were such language in the Constitution addressing the issue. However, where the is no consensus in society on an moral or philosophical issue and that goes before the court, when the court uses its normative judgment, it is very controversial. Dred Scott is an example of this. Roe is probably another.

Courts are supposed to interpret law not make policy. But a lot of core constitutional doctrines involve the court considering policy issues. To some extent the application of strict scrutiny itself invites the courts to analyze policy interests. Thus while the terminology will make some unhappy the most realistic way for the court to define the state's interest in preserving the fetus is to do on the court's own normative principles.

I reached my current position on abortion around 10 years ago when I was home during winter break after my first semster of college. I read two books, Wild Swans and I wish to Inform That We and Our Families Will Be Killed Next Week. The first book was about three generation of women in pre-Communist and then Communist China the later of those two was about the Rwandian Genocide. The books combined added something to my worldview so to speak. They made me cognizant of the injustice society naturally takes on as soon as the value of human life is diminished. Thus I can kind of decided I supported bright line rules/black letter rules when it came to laws that established the value of human life and dignity in society and prohibited abortions was one of them.

You can call a fetus a human life or not. My instinctive impression is that protecting a fetus implicates teh same values that protecting human life and dignity implicates. A fetus is a very young person. A person who has not even been born yet. But to me there is not a sudden jump of when a fetus becomes a person, they have always been one. Physical, brain, and mental development don't stop after the baby is born rather they continue for another 18 or so years. When a fetus is in the womb it is just in an early stage of development. The genetic blueprint never changes (except for tiny mutations that occur during a person's lifetime).

To me it also seems very important that the people are able to determine the important moral questions that faces society. Whether the right to an abortion is a fundamental right is maybe a question for the judiciary. However the right to determine if a fetus is a life belongs to the people. The Constitution is not philosophical document, it doesn't address moral issues and the policy of the Constitution is to create a democracy to govern society. If society has reached a consensus on a tricky moral issue, such that that is lots of history and tradition to support that consensus then the court can probably safely include that normative judgment into its decision. However, on very divisive issues, the court needs to defer to the legislature and realize the state has almost a natural right (a compelling interest) to decide the thorniest moral issues that face society, just as the government has almost a natural right of preservation during times of war.

 

[ImnoMensa]

It's that an abortion? Babies in the trash?

An abortion takes a life, what difference is it whether the body is disposed in a trash can, a dumpster , burned in an incinerator ,or disposed of as biological waste?

Safe and legal abortions does not mean that a human life has not been disposed of. It only means that the mother has safely killed her child.

To many it means that she can now go out and do the same thing over.

 

[PsyOps]

How else can I say this? I think it should be a decision, legality, conditions, limits, made by elected leaders who have to face their constituents.

So, a state or federal law. I agree; not by the courts; legislating from the bench.

 

[philibusters]

So, a state or federal law. I agree; not by the courts; legislating from the bench.

To play Devil's advocate what if the court says its a Constitutionally protected right?

 

[PsyOps]

You can call a fetus a human life or not. My instinctive impression is that protecting a fetus implicates teh same values that protecting human life and dignity implicates. A fetus is a very young person. A person who has not even been born yet. But to me there is not a sudden jump of when a fetus becomes a person, they have always been one. Physical, brain, and mental development don't stop after the baby is born rather they continue for another 18 or so years. When a fetus is in the womb it is just in an early stage of development. The genetic blueprint never changes (except for tiny mutations that occur during a person's lifetime).

I have a big problem with defining when a human life is actually a human when no one can provide compelling evidence when it actually begins. My whole stance on this is, until you can provide this evidence, err on the side of caution with ‘life begins at conception’ and must be regarded as a human life with all the rights thereof. Just because they don’t have a voice, doesn’t mean they don’t have rights.

 

[n0n1m0us3]

I have a big problem with defining when a human life is actually a human when no one can provide compelling evidence when it actually begins. My whole stance on this is, until you can provide this evidence, err on the side of caution with ‘life begins at conception’ and must be regarded as a human life with all the rights thereof. Just because they don’t have a voice, doesn’t mean they don’t have rights.

The mother is a clearly defined human life though, what about her rights? Pregnancy is definitely not without risk and women still die during childbirth, many women cannot take necessary medication during pregnancy and women also develop health issues/complications due to pregnancy/childbirth. Because of these things I think that women can make a case that abortion can be in "self-defense".
Also is the fact that some women did not consent to have a baby in their womb in the first place, rape and also children who get pregnant under the age of consent. Do they have rights? Do the rights of the fetus supersede the rights of the mother?

 

[Tilted]

Here is a question; what would the court have said, which is to say, what SHOULD the court have said, based on Roe, in response to a federal law of the day allowing abortion under any circumstance? Based on Roe, it would be allowed - the federal government isn't Constitutionally required to prohibit abortions. What should it have said to a federal law banning abortion under any circumstance? Based on Roe, it would be struck down.

Obviously, you have to guess at what the details of such laws might have said but, that's half the fun, like arguing what the '78 Steelers and '89 49'ers would have given us in a mythical game.

Roe is constructed, in my view, on the premise of privacy; if an abortion is chosen, it is no ones business. It is not settled on the legality of the procedure of abortion itself. By the same argument, one can use drugs, engage in prostitution, you name it, because the act is not commented on per the court; only the right to privacy to do as one pleases.

You're right that the basis on which the Court found that many abortion prohibitions are unConstitutional is the so-called privacy right (which is more accurately described as a personal liberty right - it's not so much about the right to have choices regarding, e.g. birth control and sex positions, remain private, as it is about the right to make such choices to begin with). But, the procedure of abortion itself - the reality of what it means - was certainly considered when deciding whether the states have sufficient compelling interest in restricting the privacy right by prohibiting abortions.

The privacy right, like other rights, is not absolute - if there's a good enough reason, government's can restrict it. That's where the 3 different rules for the 3 different trimesters reasoning comes from. The Court didn't decided that embryos and fetuses were actually human life, but decided that they were something like life (i.e. what it called 'the potentiality of human life'), and as a pregnancy progresses the states' interest in protecting the life potentiality of the fetus becomes more compelling and allows them to place more restrictions on abortions. The Court's answer to the question is a bit (okay, more than a bit) clumsy. But, it was being asked to play God - to decide what is and isn't life. It split the difference and, in my opinion, effectively admitted that it wasn't up to the task.

I consider myself a pretty good decision maker in the limited situations where making good decisions is what I'm primarily concerned with (e.g. when others ask me for advice). However, asked by humans to vote God's proxy, I would, if at all possible, defer. The Supreme Court didn't have that option - somebody had to vote God's proxy and decide what life was, and thus decide what was entitled to government and/or Constitutional protection. In our society, if that task has to be performed, it falls ultimately to the 9 Justices of the Supreme Court. Their response was to split the difference and try not to decide - to try to avoid assuming the role of God. Was it a chicken#### thing to do? Perhaps. Or perhaps it was the humble thing to do.

Now, the act of discussing prostitution is illegal as is the act itself. The possession of drugs is illegal as is the consumption. Right?

So, Roe throws up the basic premise for much of what ails society today; the right to do whatever we want with NO regard for anyone else; not the father. Not the siblings. Not even the doctor as we sue doctors who get picky over what abortions they will or will not perform. Roe sets abortion up as this thing one does, totally on ones own, that has nothing to do with anyone else.

Now, I am covering more ground than is conversational at this point but, I wanted to set the two basic points down; abortion doesn't happen in a vacuum (no pun intended) and it opens up much of the rule of law to complete failure. How is my speeding hurting anyone when I haven't hit a thing? How is my putting off paying taxes hurting anyone else when I have other bills to pay? How is my taking your property for a few moments any of your concern if I put it back in the same condition and you never knew I had it? Add in drugs, alcohol, prostitution, etc, etc.

Roe is all about rights and zero regard to responsibility. And, on top of that, it is the most barbaric thing humans can do. By far.

If you want to argue there's an incredible amount of inconsistency when it comes to rights protections and when and where governments are allowed to tell us what we can and can't do, you'll find no debate adversary in me. But, I still think you're wrong with regard to what Roe is about and means. It isn't all about rights with zero regard to responsibility (or the government's ability to enforce such). Now that you've got me thinking about it, it occurs to me that Roe is one of the most evident single-decision encapsulations of the notion that rights are strong, but not absolute, and subject to limitations when society's need to limit them is strong enough - of the notion that individual rights and society's collective need to maintain order are in constant struggle with each other and neither is paramount enough that the other should be dismissed in any general sense, rather, that one can only overpower the other in specific senses. The real qualm that people have is with the decision the Court reached with regard to which should be allowed to overpower the other in the specific circumstances the court respectively considered - not with the Court's claiming that an individual's privacy right is paramount and not encumbered by societal responsibility, as the Court claimed no such thing.

 

[Tilted]

Right there is the vulgar contradiction; establishing a federal, constitutional right to abortion while trying argue that the state, the government, still retains to limit those rights.

I think you slightly misconstrue the asserted argument - the asserted argument would be that the abortion right, as it was crafted, was the result of the argument that people have a personal liberty right and the argument that the government has the right to limit that personal liberty right under some circumstances. The so-called abortion right is the compromise between two conflicting realities or, more accurately, the result of balancing them with each other. It is those realities (i.e. the personal liberty right and government's right to limit it) that contradict each other - the abortion right, as delineated, is the result of the contradiction.

Surely you don't mean to argue that asserting that Americans have certain rights requires us to accept that those rights can't ever be limited? Because, it seems that's the vulgar contradiction you are pointing at. People have the freedom to move about, but can we not limit the speed at which they can move when they are on public roads? They have the right to speak freely, but can we not punish them for saying they're going to kill the President?

We're not talking about a face lift. If we establish a constitutional right to abortion, the killing of the unborn, for whatever reason, how in the flying hell do we so "No smoking dope, kids! No screwing for rent money!"

There is a deeply compelling interest for the state to be seen as rational and consistent in prioritizing what it deems, via the court, to be the extent of our rights and not be seen a frivolous and having principles firmly planted in quicksand.

I agree - there is tremendous inconsistency in the juxtapositions of various rights protections with various powers allowed to governments. But, the underlying consideration which dictated how those respective elements weighed against each other in Roe was whether or not an embryo or fetus is a human life. That's where the dispute lies. If it is, then Roe has to go the other way - personal liberty rights notwithstanding. If it isn't, then Roe should go much the way it did. A lot of people think that the Roe Court got that consideration clearly wrong.

 

[Tilted]

The Supreme Court was not required to take the case… No? They could have deferred to the states… No? Shouldn’t this be an issue like any other handled at the state level? Death penalty, property taxes, etc… Even though we have a specific amendment that says everyone has a right to own a gun; each state still has their own regulations regarding that ownership.

I’m struggling to figure out what makes this case different from so many others that demand it be resolved at the federal level.

With a few exceptions, the Supreme Court isn't required to take any cases. However, it should take cases that involve basic, unresolved Constitutional questions. It can't leave those questions to the states. Are states supposed to be allowed to (ultimately) decide for themselves whether or not they are Constitutionally allowed to have the laws they would choose? Are respective football teams allowed to (ultimately) decide for themselves whether or not the plays they run are legal as per NFL rules? Are respective employees allowed to (ultimately) decide for themselves whether they violated company policy?

States are certainly entitled to choose their own policies with regard to a wide array of issues, but those policies still have to be Constitutional - they can't violate provisions of the Constitution that apply to states and/or serve to limit their powers.

As to the Second Amendment, it doesn't restrict what states can do with regard to gun regulation. The Fourteenth Amendment does (the point in making that distinction is that there isn't specific Constitutional language protecting gun rights against state infringement any more than there is specific Constitutional language protecting privacy rights against state infringement - we have to look beyond the text to intent and understanding, which is sometimes evidenced by non-Constitutional text, to find that both, either, or neither of those groups of rights are Constitutionally protected). You are right though that, even in light of the Fourteenth Amendment, states have their own gun regulations. But, those regulations can't violate the Fourteenth Amendment. We're currently in the beginning of a period in which we will be exploring which of them do and which of them don't.

What makes this case different (from many other cases that the Supreme Court has chosen not to hear) is that it dealt with a basic, unresolved question of Constitutional law. That's also what makes it the same as many cases that the Supreme Court has chosen to hear. It's the Supreme Court's job to settle these kinds of issues when they make their way to the Court. Lower courts gave their answers, but the Supreme Court needed to eventually give its. Constitutional interpretation doesn't get left to the states to decide as each state sees fit.

All that said, the Supreme Court could have decided that all abortion restrictions are Constitutional, and thus left the choice of abortion policy to the states. But, that wouldn't have been leaving the Constitutional issue to the states - it would have just been deciding it much the other way. I believe that's what most people mean, or want to have had happened, when they say it should have been left to the states. Either way, the Supreme Court had to - or at least needed to - decide the Constitutional issue, so that states knew what they were and weren't allowed to do.


(Sorry, I'm trying to keep/catch up with the thread, but I just fall further behind.)

 

[Toxick]

I have a big problem with defining when a human life is actually a human when no one can provide compelling evidence when it actually begins. My whole stance on this is, until you can provide this evidence, err on the side of caution with ‘life begins at conception’ and must be regarded as a human life with all the rights thereof. Just because they don’t have a voice, doesn’t mean they don’t have rights.

You're a Christian, right? The bible defines life.



Note: All you tree-hugging Jesus-haters may feel free to skip to the next post (if applicable) because I'm about ready to do some bible-thumping. This is a Christian to Christian conversation and not applicable to those who don't believe in the bible. Therefore I am not using this argument with you, as you don't accept the underlying premise to begin with. TIA.


Anyway.... The bible clearly refers to "blood" as "life" several times throughout the bible. (I can dig up relevant passages if you'd like). So you have human life defined with the appearance of the first blood cell.

At around about 6-8 weeks after conception.

 

[philibusters]

The mother is a clearly defined human life though, what about her rights?

Well there are two parts to 14th Amendment Jurisprudence. The first is determining if a fundamental right is at stake. Second if there is a fundamental rights at stake the only restrictions the state can place on that right are ones for where the state has 1) a compelling state interest 2) the regulation is narrowly tailored towards protecting that state interest.

So you could find that under the 14th amendment the right to an abortion is a fundamental right, yet that the state can place restrictions on it. In fact, the court in Roe did just that, saying that because the fetus is viable during the third trimester, the states could prohibit abortions during the third tremester becaues the state had an interest in protecting human life (the viable fetus) and banning abortions was really the only means to protecting that state interest (saving the fetus's life).

So its tricky, but the court can find that a fundamental right exists, yet the state can override that right.

Pregnancy is definitely not without risk and women still die during childbirth, many women cannot take necessary medication during pregnancy and women also develop health issues/complications due to pregnancy/childbirth. Because of these things I think that women can make a case that abortion can be in "self-defense".

Its hard to say how a court would treat a woman who risked a very substantial threat to her life by continuing a pregnancy. Perhaps if she could prove the risk was substantial she was have a common law defense to a criminal charge, such as durress.

Also is the fact that some women did not consent to have a baby in their womb in the first place, rape and also children who get pregnant under the age of consent. Do they have rights? Do the rights of the fetus supersede the rights of the mother?

I think that provides a weaker argument than a risk to the woman's own health. Again you could recognize the woman has a fundamental right to control her body but still find the state can override that interest by using its powers to protect the fetus's life.

 

[Larry Gude]

I think you slightly misconstrue the asserted argument - the asserted argument would be that the abortion right, as it was crafted, was the result of the argument that people have a personal liberty right and the argument that the government has the right to limit that personal liberty right under some circumstances. The so-called abortion right is the compromise between two conflicting realities or, more accurately, the result of balancing them with each other. It is those realities (i.e. the personal liberty right and government's right to limit it) that contradict each other - the abortion right, as delineated, is the result of the contradiction.

Misconstrue? Balance? Splitting a loaf is one thing. We're talking about abortion; the killing of the unborn. You can't have a half of an abortion.

There are two great moral wrongs in out age; one, abortion. As I say, there is simply nothing we do that is anywhere near as barbaric.

The other great moral wrong is in stating that there is a one size fits all constitutional answer to allow it or prohibit it. If anything should be a matter left to the states it is abortion. This HAS to be an issue that elected legislators face their constituents on. Regularly. Otherwise, we have what we have; a nation of stark, raving mad lunatics that get all upset over words, harm done to snail darters and tree rodents yet fully support infanticide.

We get a society that is unserious, vapid and uncredible at the slightest of examination. In short, we get what we are.

 

[philibusters]

Misconstrue? Balance? Splitting a loaf is one thing. We're talking about abortion; the killing of the unborn. You can't have a half of an abortion.

There are two great moral wrongs in out age; one, abortion. As I say, there is simply nothing we do that is anywhere near as barbaric.

The other great moral wrong is in stating that there is a one size fits all constitutional answer to allow it or prohibit it. If anything should be a matter left to the states it is abortion. This HAS to be an issue that elected legislators face their constituents on. Regularly. Otherwise, we have what we have; a nation of stark, raving mad lunatics that get all upset over words, harm done to snail darters and tree rodents yet fully support infanticide.

We get a society that is unserious, vapid and uncredible at the slightest of examination. In short, we get what we are.

While you cannot have half an abortion, the court can rule that abortions can be prohibited sometimes but not other times which is what it did. For example, in Roe, the Supreme Court said the states can prohibit abortions in the last trimester because the state has a compelling interest to protect because the fetus is viable (could live outside the womb--albeit with machine help).

 

[PsyOps]

You're a Christian, right? The bible defines life.



Note: All you tree-hugging Jesus-haters may feel free to skip to the next post (if applicable) because I'm about ready to do some bible-thumping. This is a Christian to Christian conversation and not applicable to those who don't believe in the bible. Therefore I am not using this argument with you, as you don't accept the underlying premise to begin with. TIA.


Anyway.... The bible clearly refers to "blood" as "life" several times throughout the bible. (I can dig up relevant passages if you'd like). So you have human life defined with the appearance of the first blood cell.

At around about 6-8 weeks after conception.

"For you created my inmost being; you knit me together in my mother's womb . . . your eyes saw my unformed body. All the days ordained for me were written in your book before one of them came to be." - Psalm 139:13 and 16

I’m not aware of a verse in the bible states that life begins when blood is apparent. Blood is a representation of life, not the actual definition of when it begins. You had to kill an animal in order to get it’s BLOOD to splatter on the alter for a viable sacrifice to God. So, I don’t consider your interpretation God’s use of ‘blood’ as defining when life begins.

For the life of a creature is in the blood, and I have given it to you to make atonement for yourselves on the altar; it is the blood that makes atonement for one’s life. - Leviticus 17:11

God talks about human life in the spirit. I am comfortable believing a human has this spirit (or soul) at conception. If that ‘fetus’ were to not survive prior to your defined 6-8 weeks, I believe it is still a soul (a life) lost on this earth and gained in heaven.

Or do you not know that your body is a temple of the Holy Spirit who is in you, whom you have from God, and that you are not your own? For you have been bought with a price: therefore glorify God in your body. - 1 Cor. 6:19-20