Pro Choice Debate

In the previous entry I pointed out how many pro-life advocates muddy the waters of the abortion debate, and gave advice about how to avoid doing that. Since I am pro-life myself, I won't be so rude as to give advice to the pro-choice side about how they should argue. That won't stop me from identifying how some of them poison the well of the debate. If some pro-choice advocates want to use that to steer their compatriots to a more civil debate, I'm not opposed. The polling data on abortion reflects a large amount of unease on the part of the US public. You may believe that the best way to deal with that unease is to use the techniques which I outline below. I suspect (or maybe hope) that such tactics will eventually alienate some voters in the middle, which may cause a sudden shift in abortion politics at some point in the future. If that is true, it may be to your advantage to manage such perceptions so that you have some control over the shift.

The debate is not just about private choices, it is also about the personhood of the fetus. I must admit that the framing of 'right to choose' rhetoric is a brilliant coup. But even in fairly hardcore libertarian circles, which is certainly not where most of you travel, there is an understanding that personal choices don't give unlimited permission to hurt third parties.

Really this focus on a 'right to choose' plays into a misconception that many Americans have about rights. Rights are often in tension with one another. They are rarely absolute. I actually want to say that they are never absolute, but I'm sure there is an exception somewhere. The right to choose personal action is one of the most infringed rights in the United States. You can't choose to smoke anywhere you want. You can't choose to beat the crap out of your children. You can't choose to yell 'FIRE' in a crowded theater if there isn't a fire. Or rather you can choose to do any of those things, but you will face punishment as a consequence for your choice.

Choices in our society are limited by their effect on other people. The right of a person to make choices about their own body is fairly strong. That right isn't unlimited--you can't just go into a doctor and expect to get a voluntary amputation for instance. In the case of abortion a right to choose involves ending the growing life in a woman's body.

The right to kill another human being is very tightly controlled. You can kill a human being if he is about to kill you, you can kill enemies in war, you can kill if he is about to kill or substantially injure someone else, and you can kill via the death penalty after years of appeals. Very few choices lead to permissible killing of other people. So the central issue is not that of choice. The central issue is whether or not the fetus is a person with rights protected by the state. If you want an obscuring political slogan, pro-choice is great. If you want to actually talk about abortion policy, choice is a component far less important that the personhood of the fetus. It is fair to argue that the fetus is not a person. It is not good faith to pretend that the personhood of the fetus is irrelevant.

Abortion is unrestricted until the very second of actual birth: the life or health exceptions are being abused. It is commonly understood by a vast majority of people that abortions should be allowed when they threaten the life of the mother. This falls under the concept that you are allowed to kill the person who puts your life in extreme danger.

NARAL puts the number of third trimester abortions at about 0.4% of all abortions. I suspect that NARAL is downplaying the statistics, but if you trust them that puts the number of third trimeseter abortions at about 6,000 per year. Even many liberal states theoretically restrict third trimester abortions except when a continued pregnancy threatens the 'life or health' of the mother. The health part of the clause has been so broadly interpreted as to allow ANY mental distress of ANY intensity to be a 'threat to the health' of the mother. As a result, despite intensive searching, I have not found a single case in the history of legal US abortions where the mother was not able to qualify under such a clause. That is not one case in about 6,000 abortions per year for 30 years. In fact I don't even know of a legal method where such decisions might be reviewed. The way these exceptions are implemented make a mockery even of Roe v. Wade. The practical effect of this is that abortion is completely legal all the way up to the very second of birth.

I suspect hardcore pro-choice advocates know that the US public wouldn't be thrilled about that, which is why you cling to the fiction of that abortions can be restricted in the third trimester, while in practice you make it impossible for any such restrictions to come into force.

Bonus warning to Pro-Life advocates: You can want to restrict abortions. You can want to restrict contraceptive use. You can want to severely restrict welfare. But you can only want two out of the three of those things simultaneously unless you are an uncaring bastard.

UPDATE
It appears that William Saletan is thinking many of the same things.

Comments

[p mac]

Saletan gets one thing wrong: this does not necessarily conflict with Roe.

Brownback's rhetoric was about viable fetuses, which are allowed more protection under Roe. The Court did not confer that protection, but it did allow--even encourage--it to be written into law.

Your final update is a strong warning to the absoulitists who claim that personhood is somehow granted at conception. This definition would logically forbid most common types of birth control (essentially everything except for condoms)

And a final note to commenters: be careful about assuming that all or even most pro-choicers are NARAL supporters. It's a straw man argument of the highest order.

[rilkefan]

What's the percentage of third-trimester abortions that involve serious (like, microencephalic) birth defects? What's the percentage that occur after 2.01 trimesters? What's the percentage that occur in the third trimester following failed attempts at obtaining an abortion in earlier trimesters, and what's the distribution by state? At what rate are women seeking late-term abortions unable to obtain them? What's Planned Parenthood's position? What's the rate of stillbirths in the third trimester, and how does that depend on prenatal care? Is there free prenatal care in this country/any sort of pregnancy entitlement program?

[bob mcmanus]

I have also argued publicly for machine-gun legalization, heroin legalization, have questioned the validity of zoning laws and questioned whether environmental legislation violates the takings clause.

You may view me crazy, ridiculous, and irrelevant. And if "good faith" means an attempt to find a practical compromise, then perhaps I don't belong in these discussions. I doubt that you would condemn the "life begins at conception" people in the same manner or degree.

But I view myself as trying to find a position based on principle, and not allowing a desire for comfort to be my guide.

And I see no position in this matter, at least in some particular cases, that is not unspeakably tragic. I am not having fun here, sir.

[bob mcmanus]

Oh. And a formulation: "The personhood of the foetus, as determined by the state and majority of the people, with exceptions as also decided by the state, shall be the deciding factor."

is the bad faith argument, for it admits of no rights of the woman that may override.

My formulation of yesterday:

"The conflict is between a woman's self-ownership of her body and the states' compelling interest to afford its citizens equal protection"

is at least a statement that grants some legitimacy to both sides.

[nagoya ryan]

"The debate is not just about private choices, it is also about the personhood of the fetus."

Yes, it is... And, since there is no indisputable way (by my reckoning) to determine exactly at what point that "personhood" begins, then I don't see any justifiable reason (beyond popular demand, of which there is none on this issue) to change the status quo. I would paraphrase the line I quoted as, "The debate is not just about private choices, it's about something that is utterly subjective, about which there is no clearly dominant popular opinion." Hence, I am "pro-choice"... When in doubt as a group, shouldn't it be left to individuals to choose for themselves? Further to this point:

"there is an understanding that personal choices don't give unlimited permission to hurt third parties."

I would accept that statement if I were in agreement that abortion hurts a third party.

"It is fair to argue that the fetus is not a person. It is not good faith to pretend that the personhood of the fetus is irrelevant."

Like many of those who share my position, I would (big suprise) argue that a foetus is not a person. But, as I tried to express at the top of this comment, I don't have any more evidence of my position on this point than those who oppose me. I'm not trying to say that the question is irrelevant, just that it is unanswerable.

To me, that the question is unanswerable does make it irrelevant, to the extent that it should or should not affect legislation or legal precedent. We're all free to answer the question for ourselves... or, one could say that we are all free to choose for ourselves. That's what I support: the choice. So, I disagree that the phrase "right to choose" is no more than rhetoric. The emphasis for me is not so much the choice of whether or not to terminate a pregnancy, but of which is the correct answer to the "personhood" question. (The former choice is, I would think, usually made on the basis of the latter). So, it seems that we also disagree on what it is people should or should not have the right to choose.

Ugh. I really hesitated to write this post. I'm neither a lawyer or a philosopher, which I'm sure is evident. I always complain that political debate in the U.S. is really no more than a shouting match. The abortion issue really epitomizes that problem... so often I have the feeling that Americans with opposing viewpoints on this issue might as well be arguing in two different languages (and, in a way, I guess we are).

I'm already stretching attention spans, I know... But, I would like to add that I applaud the intention of making the debate more civil. I'm afraid I'm not too optimistic about the prospects of anyone accomplishing this, though.

Cheers.

[Timmy]

The question is who should decide. My answer is not the courts.

[EDG]

That right isn't unlimited--you can't just go into a doctor and expect to get a voluntary amputation for instance.

You're not talking about a right to make a choice about your body here; you're talking about a right to have someone else implement that choice, which is a right that simply doesn't exist.

I can't just go to a doctor and expect to get a voluntary amputation - but I can go home, fire up the bandsaw, and take my arm off myself; people might try to stop me for health or moral reasons, or possibly some other category that I haven't thought of, but there is no legal ground for them to stand on if they want to prevent me from amputating my own arm.

It is fair to argue that the fetus is not a person. It is not good faith to pretend that the personhood of the fetus is irrelevant.

Arguing from the position that the personhood of the fetus is irrelevant is, in my eyes, in all practical respects identical to arguing from the position that the fetus has no personhood; I'm not sure I see the issue.

[bob mcmanus]

Up all night pondering this; discovered a problem in my position, which I may get to later, and a possible place to compromise.
.....
You speak at the beginning of this post of conflicts of rights, limited rights, opposing rights. If as you wish, abortion is determined entirely by the personhood of the fetus, and the women's autonomous control of her body may never trump the rights of the foetus, it is disingenuous to claim that there is any conflict of rights, for at the point the state declares personhood, the woman no longer has any rights over her body insofar as the pregnancy is concerned. There is no conflict.
......
I claim that both women and foetus have rights, and that these rights may come into conflict. It may be easier for you if you believe the woman has no rights. It is *very* difficult for me.
......
It is especially difficult for me, for tho it may surprise you, I am not so far from defining personhood as starting at conception. Why? Technology.

What does viability mean, and how might technology change that meaning? Is it inconceivable that a 4 wk foetus might be surgically removed, successfully implanted, grow to term and be delivered healthily? Are we so distant from such technology? I think not.

And does personhood mean much else than the potential to become a person, given means available? If technology allows us to bring a 4 wk foetus to term, how can we not call it a person?

And so, are we headed toward performing coercive surgery on 1st term women who desire abortions? I do not see how a standard of personhood neccessarily forbids this, unless it is not the only right in question.

[praktike]

Bonus warning to Pro-Life advocates: You can want to restrict abortions. You can want to restrict contraceptive use. You can want to severely restrict welfare. But you can only want two out of the three of those things simultaneously unless you are an uncaring bastard.

And there you have it...throw in an unwillingness to do much about the adoption problem in this country, and you've got a very unserious position.

[Sebastian Holsclaw]

"it is disingenuous to claim that there is any conflict of rights, for at the point the state declares personhood, the woman no longer has any rights over her body insofar as the pregnancy is concerned. There is no conflict."

No, there could still be a conflict between the health of the mother and continuation of the pregnancy past viability. There are probably other conflicts but they don't leap to mind.

"And there you have it...throw in an unwillingness to do much about the adoption problem in this country, and you've got a very unserious position."

Among some people. But not me.

[Paul Cella]

As a constitutional matter, all I ask is that the proper power of legislation be restored to the legislative bodies of this country: in short, that legislatures be allowed to restrict contraception or abortion. It is the same argument I have made a number of times here concerning homosexual marriage.

We are simply deluding ourselves with all our talk of democracy, if virtually every great issue before us -- issues rooted in our understanding of ourselves as a people, and our understanding of justice and the good life -- are all answered by decree from nine robed attorneys.

There is no question in my mind that upon the restoration of the republican principle -- a principle so central to our tradition that we might even simply call it the American principle -- to the politics of this nation, the health of our political debate would itself be restored.

Lincoln, America's finest rhetorician, perhaps its greatest statesman, and among its first rank of political philosophers, knew what the American Question was, and would be: "It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us. . . that government of the people, by the people, for the people, shall not perish from this earth."

[Nathan]

A little while ago, there was a good discussion on Jane Galt's site regarding the adoption problem (regarding abortion). I came to the impression that there is not a shortage of native infants to adopt, as people are constantly adopting children from overseas due to long waiting periods for domestic adoption.

I also think that very few opponents of abortion would be opposed to increased welfare and a changed adoption regime as requirements for making abortion illegal. Remember, most pro-life people are not free-trading semi-libertarian conservatives. They are often much more socially conservative than fiscally conservative.

[Paul Cella]

I also think that very few opponents of abortion would be opposed to increased welfare and a changed adoption regime as requirements for making abortion illegal.

Yes abortion is an incalculably greater evil than welfarism.

[Edward]

As a constitutional matter, all I ask is that the proper power of legislation be restored to the legislative bodies of this country: in short, that legislatures be allowed to restrict contraception or abortion. It is the same argument I have made a number of times here concerning homosexual marriage.

That implies you might move to a state that best suited your view on these topics or work to have the law changed in the state you live in, but I have to ask if that would satisfy true opponents of abortion or gay marriage? Would leaving it up to the states be OK? If New York allowed both abortion and gay marriage, but some other state outlawed them both, would opponents be content to let New York be and live in the state most suited to their views?

[Navy Davy]

Myself, I'm pro-life. In my view, it ain't a good thing to be killin' our offspring, simply to remove the last remaining impediment to risk-free, casual sex.

I think we need to be a little more compassionate and a lot more responsible.

My 2 cents.

[praktike]

BTW, Sebastian is a great addition to Ob Wi. One can only read so many blogs, and this makes it easy.

[kenB]

BTW, Sebastian is a great addition to Ob Wi. One can only read so many blogs, and this makes it easy.

I agree, and he'll be even better when he stops recycling old posts. [joke!]

[Paul Cella]

I have to ask if that would satisfy true opponents of abortion or gay marriage? Would leaving it up to the states be OK? If New York allowed both abortion and gay marriage, but some other state outlawed them both, would opponents be content to let New York be and live in the state most suited to their views?

I would not "satisfy" them (or me) morally, but it would satisfy us constitutionally; which, in turn, would mean that we would understand that to correct (say) New York's unjust but constitutionally-legitimate laws, we would have to persuade the people of New York to elect better men and women to their Legislature.

In brief, we are (and I think I can speak for many like me) prepared to submit to the republican principle with much greater equanimity and indulgence than we are to judicial usurpation.

Judicial usurpation pushes us to consider revolutionary measures, as distasteful as they are to us; duly-enacted legislation in the states would, for all practical purposes, disarm our objections, defeat our stridency, leaving to us only the instruments of moral persuasion.

[Edward]

we would understand that to correct (say) New York's unjust but constitutionally-legitimate laws, we would have to persuade the people of New York to elect better men and women to their Legislature.

Not the thread for this, but can't let a characterization of a future gay marriage law in New York as "unjust" go unchallenged. It would be quite the contrary. I hope you see that some day.

[Timmy]

And there you have it...throw in an unwillingness to do much about the adoption problem in this country, and you've got a very unserious position.

Apparently praktike, you are unaware of what the problem is.

[bob mcmanus]

I was quite serious above, in that I think present or near future technology makes a first trimester embryo *more* viable than a 3-6 month foetus.

I ran into a problem that if I was fairly viewing a conflict of rights, I should in good faith at some point grant the foetus superior rights, and was with trepidation hoping to exchange third trimester state supremacy for 1st trimester female autonomy.

However, it appears my adversaries recognize no actual female autonomy at any point, and so concessions are counterproductive, for comity and compassion are not conceivable. Those who consider me a heartless monster may rejoice in my sorrow.

[Sebastian Holsclaw]

"However, it appears my adversaries recognize no actual female autonomy at any point, and so concessions are counterproductive, for comity and compassion are not conceivable."

Which adversaries? In my previous post I explicitly admit that it isn't worth political capital try to outlaw early term abortions. On that topic, there is a pretty large majority of Americans who believe that female autonomy wins the day.

[bob mcmanus]

"explicitly admit that it isn't worth political capital try to outlaw early term abortions."

Without yourself recognizing female autonomy as an important principle, and not merely a temporary setback in a long war, I can only see your concession as tactical.

Would you be willing to codify first trimester autonomy in the Constitution?

[Sebastian Holsclaw]

Tactical, or realistic?

In any case I don't see why I would codify something as changeable as medical technology (as viability is a function of medical technology) into the Constitution. I also presume that much of the autonomy question has to do with birth control techniques, which for all I know could become much more powerful or less obtrusive or have fewer side effects than they do now. In other words, this is the perfect case for legislative action--attentive to changing details, rather than Constitutional pronouncements.

[bob mcmanus]

"I also presume that much of the autonomy question has to do with birth control techniques, which for all I know could become much more powerful or less obtrusive or have fewer side effects than they do now"

I am sorry, I am trying to determine what you accept in principle, rather than what you feel is wrong, but lack the current power to change.

Do you object to contraception that prevents implantation, RU486 that I think reverses implantation, or a future stronger variety that may be effective in the first few months? Do you accept any or all of these things as a right?

And I am much less comfortable with either side leaving this to the legislative process, than I am with gay marriage. The principles and consequences seem much more important.

[Beth]

EDG writes: "I can't just go to a doctor and expect to get a voluntary amputation "

Well, almost.
http://www.twincities.com/mld/twincities/living/travel/

As for the topic... I wish that there were uterine replicators, so that it didn't require sacrificing someone's rights for a potential someone's rights. Because pregnancy isn't just "get tired and have to pee a lot." It's also "throwing up and being miserable." It's also "having high blood pressure and coming close to kidney failure, seizures, and possible death." It's also any number of life-threatening hazards that cannot be predicted. And it's not just "bringing a new life into the world." It's also "discovering the child has brain deformities and will not survive birth -- if that long" or possibly worse, "discovering the child will always be a vegetable, requiring hospitalization and/or 24-hour-nursing."

My younger brother was in a coma for 2-3 years. This destroyed my family's finances, and arguably caused my parents marital relationship problems to decay beyond redemption. To declare that "if it has a heartbeat, it's a person" even if it will never talk, walk, smile, or even think... is not something I would mandate for anyone else. It is a burden, financially and emotionally, that can only be hefted by choice. (And yes, I think that my brother should have been taken off the ventilator. It was no kindness to confine a spirit in a lump of useless meat.)

Some people find their solace in birthing a child that cannot live, so at least it may die in their arms. Some find their solace in ending the pregnancy and grieving, saving their strength and energy and time for a pregnancy that likely will not suffer whatever freak accident that rendered that child-to-be nonviable.

I find it distressing that so many anti-abortion arguments don't seem to acknowledge that there are potential reasons for parents who wanted a child to believe it necessary abort. Ectopic pregnancies, Tay Sachs Disease, any number of defects which ensure that the child cannot survive at this tech level, and which may endanger the mother or even both parents, directly or indirectly.

--Beth, mother of one fairly planned daughter, who was delivered by quasi-emergency C-section 2 months early. She was doing better than I was... Blood pressure close to seizure levels, fluid retention, nightmares (I get them with high blood pressure), kidneys shut down to some degree, and a healing abdominal incision on top of all that. And I wanted a kid. And my story is one of the mild ones.

[Beth]

A quick addendum (since getting a kid to nap wreaks havoc with what one wanted to say, argh) -- yes, I do see that the actual article comments on the subject of health-based abortions. I am probably in agreement with the concept that too many pro-life arguments muddy the water by not taking those into account, and the most heart-rending thing I read recently was a magazine article written by someone who was in the horrible position of discovering that their longed-for child was nonviable... and she was in, or very close to, the third trimester, and the only procedure that was feasible was the so-called "partial birth" one.

(The article has a happy ending -- their second child was healthy.)

[Sebastian Holsclaw]

What? Praktike, don't stop reading my blog just because I put stuff here. Do you want me to cry? I hate crying in public!

:)

[praktike]

Apparently praktike, you are unaware of what the problem is.

Educate me, oh wise and all-knowing Timmy!

[Mithras]

The health part of the clause has been so broadly interpreted as to allow ANY mental distress of ANY intensity to be a 'threat to the health' of the mother. As a result, despite intensive searching, I have not found a single case in the history of legal US abortions where the mother was not able to qualify under such a clause. That is not one case in about 6,000 abortions per year for 30 years. In fact I don't even know of a legal method where such decisions might be reviewed.

This is just anti-choice propanganda. The legal method where such decisions might be reviewed would be a prosecution by the county or state district attorney's office. You think right-wing prosecutors aren't salivating at the prospect of jailing abortionists? Think again. Don't you know that anti-abortion activists regularly pose as patients, and go into clinics and doctors' offices to try to gather evidence against them? It's commonplace. What doctor in his or her right mind is going to risk jail and loss of their medical license by not documenting the actual risk to the patient's health?

The fact that you have not found a single court case "where the mother was not able to qualify" is not evidence of your thesis that the standards are not being upheld. First of all, you don't even bother to look at the rate of serious (fatal) birth defects to compare to the late-term abortion rate. As a result, you leap to the conclusion that each of the (already miniscule number of) late-term abortions is for trivial reasons. You have no statistical basis of serious birth defects to provide a reference; probably intentionally, since it likely would contradict everything you say.

Second, if a woman for some unaccountable reason did carry a pregnancy to the third trimester and then decided to abort it for a trivial reason, the person who would deny that request is a doctor, not a judge. That decision would not be reported where you could find it. The only way it would come to your attention is if the woman then sued for an injunction to force the doctor to provide her with the abortion (given the time and expense involved, an absurd proposition).

Given the difficulty in carrying a pregnancy to the third trimester, I am sure the percentage of women who want a late-term abortion for trivial reasons is vanishingly small, and in the cases where it does happen, the doctor's refusal ends the matter.

[Paul Cella]

If a woman for some unaccountable reason did carry a pregnancy to the third trimester and then decided to abort it for a trivial reason, the person who would deny that request is a doctor, not a judge.

Right. The doctor in this case, being an abortion specialist (most doctors will not perform abortions and most medical students will not learn how) -- that is, being dependent financially on aborting fetuses -- is quite unlikely to refuse a request to abort on any grounds. Why would he? A sudden grip of conscience?

It is precisely the doctor who should not make the decision: his interest makes him an altogether unfit judge, quite aside from the fact that the barbarian medicine he practices makes him unfit to judge just about anything. Shall we let drug companies make decisions about FDA approval of their drugs? Shall we let robbers write the guidelines about sentencing for convictions of robbery?

You think right-wing prosecutors aren't salivating at the prospect of jailing abortionists?

"Salivating" is rather vivid for my taste. I will say that it will be a blow for justice when an abortionist is imprisoned, just as it is a blow for justice when a slave-trader is imprisoned.

[Edward]

Why would he? A sudden grip of conscience?

You're falling into that category of argument here where you lose your otherwise sympathetic readers Paul.

Health Care Professionals who perform abortions are Health Care Professionals. As long as abortions are legal it truly behooves the nation to have trained professionals to perform them...your judgment of who performs such work is offensive.

[Paul Cella]

I am sorry to lose sympathetic readers (and sorry to lose unsympathetic but fair ones), but it is not clear to me why casting suspicion on the interest of abortionists is out-of-bounds. Gun companies have an interest, trial lawyers have an interest, radiologists have an interest; but abortionists do not?

To consider a more innocuous example: Why is it that, as I have discovered recently quite by accident, OB-GYNs do not particularly care for the quasi-independent ultrasound industry that has developed? Could it be more interest than altruistic concern for patients? Or consider the reflexive hostility of doctors toward "alternative medicine," no matter how open patients are to it. Or the hostility of Liberals to talk radio; or the hostility of Conservatives on talk radio to Liberals entering talk radio.

[Paul Cella]

Speaking of the conscience of the abortionist . . .

The judge then pressed Johnson on whether he ever thought about fetal pain while performing abortions involving dismemberment. Another doctor a day earlier had testified that a fetus sometimes does not immediately die after its limbs are pulled off.

[Edward]

I'm sure you can find all sorts of horrifying anecdotes, Paul. It doesn't change the fact that Doctors who perform legal procedures should not be demonized.

[Paul Cella]

I disagree. The same formulation you use could be adapted elsewhere: "It doesn't change the fact that merchants who legally trade in human chattel should not be demonized." Laws can be profoundly unjust; people are accountable for their acquiescence in injustice; to place any moral condemnation of unjust laws and their servants outside of polite discourse is to amputate the moral imagination.

[Edward]

We'll have to agree to disagree on this one Paul.

I'll just go on record to say doctors who perform abortions are providing an important service in protecting the lives of women who choose to have an abortion. They are not without conscience, and they deserve respect.

[Sebastian Holsclaw]

Mithras, don't be ridiculous. If I said, "In the thirty year history of ABC Corporation's alleged compliance with anti-discrimination statutes there has not been a single minority hired." You would admit that there might be a problem.

If I said that the EPA has not found a single pollutor worth prosecuting in the last 30 years, you would practically bang me over the head with it as strong evidence that the EPA wasn't doing its job.

When someone says that a particular state with infidelity laws hasn't prosecuted in 50 years is that better evidence that infidelity does not exist in the state, or that the law is not being enforced?

"What doctor in his or her right mind is going to risk jail and loss of their medical license by not documenting the actual risk to the patient's health?" What are you talking about? There is no risk of jail and no risk of loss of medical license because there is no method of enforcement.

Furthermore, I did not say that I had never found a COURT CASE, I said that I had never found a case (as in a single INSTANCE). And with thousands of these abortions per year over 30 years, the idea that there wouldn't be a documentable court case much less a documentable instance strongly suggests that either the system is absolutely perfect, or that the medical health clause has no teeth whatsoever. Frankly there should be at least a handful of cases to point at every year.

[Mithras]

If I said, "In the thirty year history of ABC Corporation's alleged compliance with anti-discrimination statutes there has not been a single minority hired." You would admit that there might be a problem.

Yes, there might be. Now, tell me how many minorities applied and how many minorities there are in the applicable job pool. Otherwise, the statistic "not a single minority" is meaningless. Lots of companies don't hire any minorities without breaking anti-discrimination laws.

If I said that the EPA has not found a single pollutor worth prosecuting .... When someone says that a particular state with infidelity laws hasn't prosecuted in 50 years ....

The difference being, of course, is that we know adultery happens often and we can see pollution occuring. Both of which make them not analogous to frivolous late-term abortion.

I said that I had never found a case (as in a single INSTANCE).

Again, how do imagine such an instance would come to your attention? Medical records are confidential; the only people to see them are the health authorities and the D.A. I think this is the third time I have asked you this question now. Do you have an answer?

either the system is absolutely perfect, or that the medical health clause has no teeth whatsoever.

False choice. The system might be extremely effective, and there may be an extremely rare (far fewer than the 6,600 per year scare number you throw around) case of a woman who carries a pregnancy to 30 weeks and then suddenly wants an abortion for trivial reasons combined with a doctor who doesn't care.

So, Holsclaw, what is the rate of fatal birth defects discovered late in pregnancy? Since you're so eager to indict the entire medical community for imaginary crimes, maybe you should do some research.

[bob mcmanus]

"Gun companies have an interest, trial lawyers have an interest, radiologists have an interest; but abortionists do not?"

I hope I have learned through experience that people rarely act, even conciously, based upon a single motive; and certainly should not be judged as if they were unitarily motivated.

That the President gets paid doesn't necessarily mean he took the job for the money.

[bob mcmanus]

And anyway, in the current climate, with both the possible and real consequences obvious to all, to claim that abortion providers are primarily motivated by greed is patently absurd. It don't pay well enough.

A claim that abortion providers are motivated by an evil ideology is worth listening to.

[Sebastian Holsclaw]

Look Mithras, you understand the idea that it is difficult to get evidence from those who have incentive to hide it? The statistics you desire are intentionally not kept. Go look for them yourself, you will find that at the very best they are kept using incredibly fuzzy terms, and never with links to abortions. This is not an accident. If you can't accept the fact that you are positing a system with zero error rate (an idea that only a liberal could believe) I can't help you.

This system has no governmental legal check.

This system has no malpractice check.

This system has no AMA ethics check.

This system is has no forms to be filed with agencies and no independent review. Doctors are not required to verify or deny the viability of the fetus nor are they required to verify that there is serious medical threat to the mother's health. Despite complaints to the contrary, medical professionals have a financial incentive to perform late term abortions if the mother requests it because they are somewhat pricey.

Yet you would have me believe that this non-system with no internal checks, no external checks, no incentive for truthfulness, no punishment for untruthfulness and a financial incentive for ignoring a fetus which won't be suing you anyway is 'extremely effective' at protecting viable fetuses who are not endangering their mothers. So effective in fact that a case where this 'system' has been wrong has never come to light.

A skeptical person might suggest that no abuses come to light because the entire 'system' is so unaccountable as to make it very difficult for an abuse to come to view--especially since the only party possibly harmed is dead amd disposed of without an independent autopsy.

But hey, if the new liberal understanding is that zero safeguards are needed because professionals always act ethically I would like to now talk about civil rights and the police....

[bob mcmanus]

Sebastian, I hear your points, and in a different environment I wish your complaints could be addressed.

But when pictures of doctors and patients are posted on the Internet, and Ashcroft goes to hospitals on fishing expeditions and data mining excursions, we pro-choicers have very good reason not to have any trust whatsoever in how even the govt will use or protect the data and powers.

[Mithras]

The statistics you desire are intentionally not kept. ... This system has no governmental legal check.

Have you ever heard of "public health authorities"? These people review medical records. They don't need a warrant. And if they find wrongdoing, they turn it over to the police. Did you not know that?

This system has no malpractice check.

Right. You think ob/gyn med mal insurance providers don't review case records? You think that if doctors were providing frivolous late-term abortions there wouldn't be malpractice lawsuits from mothers who had second thoughts later? You attribute greed to the doctors, but you ignore this obvious financial incentive to your (increasingly unlikely) hypothetical pregnant woman. If she's so callous that she'd abort a third-trimester pregnancy for no good reason, what would keep her from trying to say she wasn't in her right mind when she signed the informed consent forms? Next you'll tell me the doctors murder the women to silence them after they collect their fee.

So ... once more. What's the rate of fatal birth defects discovered late in pregnancy, Holsclaw? How does it compare to the rates of late term abortion and stillbirth?

[Sebastian Holsclaw]

Malpractice lawsuits on what basis? With what evidence? The woman asks for an abortion. There is no requirement to show fetal non-viability so NO SUCH RECORDS ARE KEPT. There is no requirement to show danger to the mother so NO SUCH RECORDS ARE KEPT. Insurance audits of records intentionally not kept? How does that work? Subpoenas for records not kept? How do you do that? Public health authority reviews of RECORDS NOT KEPT, how do they do that?

What part of the 'the records are not kept' are you having trouble with?

If you want to make an inferential point about abortions and fatal birth defects I encourage you to do so. You will find that many of the records you would normally want ARE NOT KEPT, but if you find something which supports your point, feel free to share it.

My point is about the system. We have a system which makes a life or death decision about the viability of a fetus (which if wrong will lead to an unjust death of an independently viable human being)with almost no oversight whatsoever. Therefore the laws which 'protect' viable fetuses are dead letter.

We wouldn't design a death penalty that way, and the number of people killed by the death penalty is far less than 6,000 per year.

Your argument seems to be that we can TOTALLY trust the doctor who is getting paid and the mother who desires an abortion to take into account the rights of the fetus who has no independent person looking out for her interest. A fetus who can't sue afterwards because she is dead.

That is a very strange way of ensuring that the right life or death decision is made. Being a regular reader of your blog I know you aren't naive about the crucial need for oversight in other areas so you have the appearance of being intentionally self-confused here.

[Mithras]

Malpractice lawsuits on what basis?

They can claim a lack of informed consent that resulted in psychological and physical harm, a standard basis of med mal lawsuits.

Insurance audits of records intentionally not kept?

Of course the medical files are retained; they're just confidential. Why would a med mal insurance company write a policy for someone doing ob/gyn if they had no way to determine if that doctor was complying with medical standards?

If you want to test it for yourself, find yourself a pregnant pro-life woman to pose as someone seeking a late-term abortion for a trivial reason, and see what response she gets. It shouldn't be hard to do. In fact, I am sure Operation Rescue and that ilk have tried it, since I know they try to trip doctors up in other ways doing such things. Given the lack of any publicity from such groups, doesn't your own logic tell you they were unsuccessful?

Just because the information is not available to you on google doesn't mean it doesn't exist, Holsclaw. It's available to the government, medical licensing boards, to insurance carriers and in discovery during litigation. The system of government oversight, professional regulation, malpractice insurance requirements and civil litigation seems to be working fine.

[Sebastian Holsclaw]

Doctors keep files that they are required to keep. Doctors keep records that they are required to keep. I know this, I've engaged in litigation.

Doctors rarely keep records they are not required to keep.

They are not required to keep records on fetal viability if they are performing an abortion. They don't need to, it isn't a legal requirement, so they don't keep them.

If you have other information, please share it, but I suspect you don't, because I have actually looked into the matter while you have all the appearance of some one who is thinking 'they must keep those kind of things'. Find an insurance compliance officer and ask them. They will tell you that fetal viability records are not kept for abortions. They are not kept because no one requires that they be kept. You know as well as I that sophisticated corporations do not keep records which could expose them to litigation unless required by their business or by the government.

There is no business reason for an abortionist to keep fetal viability records. Insurance companies do not care about fetal viability. The abortionist doesn't need to document it. There is no legal requirement for them to keep fetal viability records. Therefore they don't keep such records. (I would accuse abortion doctors of many things, but unsophisticated is not one of them.)

What is this 'trip them up'? There is nowhere to trip them to. No law is enforced against doctors who abort viable fetuses. There is no need for records showing that a fetus is non-viable. It ISN'T A REQUIREMENT.

I love your standard. There are no prosecutions, zero disciplinary actions, and no lawsuits so obviously it never happens. This is a matter of life or death, but we don't have to independently verify if the fetus is viable or not. Hell we typicaly don't even have the doctor cross his heart, hope to die, stick a needle in his eye promise that it was non-viable.
That is your idea of an oversight system that is 'working fine'. Can we trust electronic voting using that? Or maybe it is more like the death penalty in the 1950s. Was the fact that few cases were overturned evidence that the death penalty system then was more accurate than it is now?

Give me a break. It means that the system then wasn't as good at uncovering problems.

If the number we were talking about for prosecutions/disciplinary actions was something other than zero, at least you would have some case that these things were being looked at carefully (though the low incidence would still be suspicious). But that zero is awfully suspicious when you are talking about thousands of instances of late term abortions. And it is especially suspicious that we can't even find instances of women denied abortions such that there wouldn't be disciplinary action because the denial was correct. (And if you don't think NARAL would be all over that to prove how opressive our current abortion laws are, your trust is amazing.)

You are suggesting by inferrence that the system of determining viability is absolutely perfect (zero prosecutions/zero disciplinary actions) AND that this perfect function amazingly always allows for an abortion if a woman desires it. I honestly don't know what to say when faced with such an unrealistic trust.

[bob mcmanus]

"No, there could still be a conflict between the health of the mother and continuation of the pregnancy past viability."

Just for my edification, Mr Holsclaw, would you like to explain exactly why, in those cases of irreconcilable conflict between the life of the mother and the life of the child, the decision should be made in favor of the mother? I have seen it argued the other way, tho rarely.

Not just tradition, or practical possibility, but actual moral reasoning why in these cases, preference should be given the mother?

[Mithras]

For someone who claims to "have actually looked into the matter", your posts are surprisingly link-free.

Anyway, this is getting old. Up to now, you've failed to explain why a pregnant woman would seek an abortion of "convenience" after going through the discomfort of >180 days of pregnancy, especially since late-term abortions are riskier, more costly (as you point out) and are much more uncomfortable for the patient. "Oh yeah, I'll just go through morning sickness and let my body totally change, and then I'll decide to have a really expensive, dangerous procedure." Right. Happens all the time.

Up to now you don't produce any of the available statistical information that would obviously bear on your position. Instead, you pose it as all or nothing - no one has shown you the medical records, so all 6,600 late-term abortions last year were because the woman got bored and decided to get a dog instead.

For the record, there might be a handful of women who do make up some lame psychological-harm reason to get a third-trimester abortion every year. People do some crazy stuff. But that's not a reason for the government to demand total control over the decision. It's just this kind of situation that illustrates why we need to keep the government out of medical decisons, and keep them between the (already living, actually alive) patient and his or her doctor.

[Sebastian Holsclaw]

"But that's not a reason for the government to demand total control over the decision. "

What a reasonable sounding position. But we weren't talking about total control. You are resisting ANY control.

[Sebastian Holsclaw]

And BTW, isn't it a little bit of a cheap shot to complain about a lack of links when I have repeatedly and scrupulously disclosed why information is difficult to obtain in this area? Before you accuse, couldn't you at least bother to contest my explanations?

[bob mcmanus]

"when I have repeatedly and scrupulously disclosed why information is difficult to obtain in this area?"

As in the case where Ashcroft was slapped by the judge recently, Mr Holslclaw is crying over his lack of information, with the probable purpose of finding more names and pictures to slap up onto the internet.

No, the cases in question are quite rare. And as in yesterday and Mr Cella's "Noble lie", our opponents know neither moderation or honor, and should not be treated as if they did.

[bob mcmanus]

And BTW, to our hosts:

That your newest member would choose to begin his participation with the most divisive and incendiary issue in America for at least 150 years;

That to my credit or in foolishness, I have revealed my position fully and in so doing attacked (in admitting personhood & viability begins at conception) the most common and defensible pro-choice argument...for I do not think this defense will long endure

That in confessing my position I have at best alienated acquaintances(sic) and at worst created implacable enemies;

And yet notice some other members of this consortium conspicuous by their absence;

In any case I find myself growing immoderate in my language, for which I apologize; and would in addition apologize to anyone I have disappointed. I do not visit blogs seeking enemies.

[kenB]

Sebastian,

I'm not a partisan, I'm just wondering what your basis is for this declaration:

The health part of the clause has been so broadly interpreted as to allow ANY mental distress of ANY intensity to be a 'threat to the health' of the mother.

The original post presents it as fact and declares that the absence of evidence of anyone being turned down for a 3rd-trimester abortion is a consequence; but my understanding from your subsequent comments is that you're really deriving the former from the latter (and nothing else). If so, I'd say that's shaky ground for such a sweeping assertion.

[nagoya ryan]

Yeah, well, like I said near the top of all this brouhaha... speaking two different languages. I'll give Sebastian one (and only one) thing, he knows how to make an entrance.