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February 25, 2005

Comments

Not clear to me that the law claims that it has the right to inspect my behavior at any instant without suspicion.

You've got to be kidding me.

"The records sought include the patient's name, medical history, details of her sex life, birth control practices and psychological profile....

The clinics, which said nearly 90 women and girls would be affected, are offering to provide records with some key information, including names, edited out."

It's the clinic;s sincerity you doubt here? You see nothing possibly disturbing about this? I see why they don't want the medical history edited, but why, precisely, do you think it is necessary to know the women's names, sexual history, birth control practices and psychological profile?

Imagine instead this is the overzealous enforcement of a gun control law, and that a rabidly pro-gun control attorney general is going to rifle through the medical records of all gun owners in the state to see if they're really up to snuff, psychologically-speaking. Is that just a "rubber meets the road moment," Sebastian?

"And yes, I'm the pro-life advocate who said that "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."

If you think this is going to impress pro-choice people you are really, really, really mistaken.

"If you think this is going to impress pro-choice people you are really, really, really mistaken."

I'll take it over the alternative.

It's hard to gather from the article whether he has a warrant for the information. Since he's requesting, I'd gather not. I've watched enough Law & Order to know that you don't get personal medical records without a warrant. I suspect Kline knows this. I suspect it's grandstanding. I agree with both of Sebastian's previous articles on abortion, but this reeks too much of headline politics to impress me as an important moment.

Statistics on late-term abortions are not kept.

However, as you know, only 1% of abortions are carried out after 20 weeks. It's really unsurprising that government agencies responsible for collecting data don't bother to break down the data still further.

Statistics on the reasons for late-term abortions are not kept.

All evidence there is, however, shows that overwhelmingly, an abortion is carried out after the 20th week only when it's desperately necessary. No one has ever been able to show anything else.

I wish you'd be honest about this, Sebastian.

Sebastian, I've read your previous thoughts on this (at the time they were posted) and although I disagree with you, I have found them to be thoughtful.

So I hope you will address the issue of the AG wanting full, unedited records. If what he wants is to track late-term abortions, he does not need names and he does not need some of that other information. Further, the clinics have offered the relevant information he wants (a step that surely angers some).

If you legalize early-term abortions and
provide honest information about it and the alternatves, the problem of late-term abortions will disappear.

I can only think of three reasons why anyone would want a third trimester abortion:
1. Their life or health was endangered by continuing the pregnancy.
2. The fetus had an abnormality inconsistent with post-uterine life.
3. They desired an abortion earlier in the pregnancy but were unable to obtain it because of legal restrictions or financial difficulties.

From reading your post, I think that you find the first two acceptable. The third is best avoided by making early abortion easily accessible and affordable.

I won't say that no woman has ever simply gotten to the third trimester and suddenly said "to hel with this, I'm getting an abortion" but I will say that I think that such a thing is vanishingly rare. The first trimester of pregnancy is miserable: morning sickness (frequently accompanied by ravenous hunger that can not be satisfied because of the accompanying nausea), debilitating fatigue, raving mood changes, onset of accompanying problems such as diabetes or hypercoagulability....In short, why would anyone go through that if they didn't want the pregnancy? The third trimester is comparatively easy.

Since prostituion is illegal and many men get venereal diseases from prostitutes do you think the Kansas AG will be asking for the personal records of all men treated for VD?

And given that sodomy was illegal (but only for same sex couples) in Kansas until Lawrence v Texas, we don't have to worry about the AG requesting proctologists' records. Thank goodness, eh?

"The records sought include the patient's name, medical history, details of her sex life, birth control practices and psychological profile."

For the stated purpose of this "investigation" there should be no reason to request any of these details. The only conclusion I come to is that this is an investigation designed to intimidate clinics, and potential patients. Sebastion, would you trust your state government to keep your "sex life and psychological profile" private.

I can picture the next news development in this case; 'sex life and psychological profile of 80 women released accidently on purpose over the internets, State Attorney General claims "not my fault"'

I'm not even sure that it could be called a fishing expedition, since they could ask for anonomous records with patient age and pregnancy term. That would give them enough evidence for probable cause in the case of an abortion that does not met the law.

If as Sebastian states, "they are going to need to allow verification regarding medical necessity when aborting viable fetuses". I don't see why there isn't a state law requiring anonomous statistics on this. If you can pass a law to restrict abortions, you can pass a law to show that clinics are obeying it.

Statistics on late-term abortions are not kept.

However, as you know, only 1% of abortions are carried out after 20 weeks.

I've got no dog in this fight, but it seems to me that if the first sentence is true, the second sentence cannot be substantiated. Nor can Jesurgislac's claim immediately following.

"The records sought include the patient's name, medical history, details of her sex life, birth control practices and psychological profile."

If what the AG wants is information about a medical condition that made the late abortion necessary, why does he need "the patient's name...details of her sex life, birth control practices and psychological profile"?

If what the AG wants is information about underage sex, why isn't he demanding doctors turn over information about male patients; e.g., underage boys needing treatment for STDs?

This fails the smell test. It's a punitive fishing expedition.

And another thing....

"Conservatives" continually complain about the use of courts to achieve "Liberal" ends, say in wildlife/eco protection. Isn't this another case of a "Conservative" AG using the courts to insert the 'govmint' into our personal lives.

Its been said several times above, but I'll be a little more verbose about it. Maybe you should rethink your post, Sebastian. Or at a minimum, at least address the real issue in a postcscript.

The post claims that the issue is law enforcement regarding late term abortions, but is it? There is no way that the subpoena is proper under our laws -- a warrantless search of everyone's medical records when there is not even a suspicion that any particular person has done anything wrong (except have a late-term abortion in Kansas, which I guess violates natural law which trumps real law, at least according to some conservative legal thinkers).

What happened to the 4th amendement prohibition against unreasonable searches and seizures? The post essentially claims (without explicitly saying it) that verification of the propriety of any late term abortion justifies this invasion of privacy and the suspension of the fourth amendment ban against unreasonable searches and seizures.

...attempts to make any restrictions in the third trimester are eviscerated by the courts to the point of complete ineffectiveness

I guess you believe that enforcing the fourth amendement and the right to privacy is an "evisceration." Tell Rush Limbaugh that, who is vigorously litigating the fine points of when it is proper to subpeona someone's medical records even when there is ample probable cause. Under the Sebastian theory, the prosecutor could get those medical records without any probable cause -- simply the desire to verify compliance with the law is enough justification. Fortunately, our courts have not adopted this reasoning, which eviscerates the fourth amendment.

Now, the attorney general of Kansas plainly knows this, but has deliberatley chosen to violate the laws with his subpoena. It's no different than if the chief of the police just said f*@! it, knock down the door of everyone's home in the neighborhood and search for drugs because there might be drug dealing in the neighborhood. And then justify it by saying "I have a duty to enforce the laws."

What is the agenda of the AG? A public official knowingly violating the law for political purposes, perhaps? That's the crime that is being committed here.

Will the State reimburse the abortion clinics for the substantial legal expenses they incur to fight this plainly illegal harassment by the State? I guess a little tyranny is OK if it furthers your own political point of view.

(Note: I tried to post before, but my comment disappeared at the preview stage. My apologies if the earlier comment shows up anyway.)

Sebastian-

I'll accept this as relevant to your point about the difficulty of enforcing late-term abortion restrictions when the attorney general makes a focused request for only that medical information relevant to the determination in that case that the abortion was medically necessary. (Oh, and it would be nice if the democratically elected legislature specifically gave him the power to request that data, if he doesn't want to get a warrant for it in each case).

Other than that, this looks, as has been said many times above, like harassment and a threat to reveal private medical information about girls and women who have had abortions in an an attempt to frighten future patients.

Phill Kline is rabidly pro-life and will do anything to outlaw all abortions. Anything he does on this issue is suspect.

Jes: "I wish you'd be honest about this, Sebastian." -- Accusations of dishonesty are out of line.

Speaking now as an observer, not a moderator: I have been watching whatever's going on with you and Sebastian with consternation for some time. I think it has long since crossed the line that separates useful criticism from just piling on, and that it might be time to step back a bit and consider what's going on, and what useful purpose it serves. As I said, this is just 'me the individual' speaking, not 'me the moderator'. All that 'me the moderator' has to say is: accusations of dishonesty are out of line.

About the actual post: it's the warrantless searches aspect of it that gets me. (I take that to include: trying to get, among other things, the sexual history and psychological records of all sorts of people, whether or not there's any evidence that a crime has been committed.)

Look: I'm pro-choice. I'm completely pro-choice about fetuses before the point at which they are able to feel anything, and willing to construe that conservatively. (At this point, it seems to me, viability has nothing to do with it.) After that point, my concerns grow, and one of the things that allows them to grow without a lot of counterbalancing concern is the thought that if women have the opportunity to have abortions earlier, the need for late-term abortions is much less clear. But I make exceptions for the life and health of the mother (though I am open to the argument that at some point, the fetus should be kept alive and put up for adoption. Clearly a moment before normal delivery is one such point; it is, to me, clear (though I don't expect pro-life people to agree) that if you go early enough that the health of the fetus, if kept alive, would in all likelihood be seriously compromised, this argument stops working. Where to draw the line I do not know.) -- But does any of this mean that I have to be in favor of suspending the fourth amendment? Not that I can see.

The quoted article claims that "Sex involving someone under 16 is illegal in Kansas."

Does this mean that if two fifteen year-olds have sex in Kansas, it's a crime? Anyone have better info about this?

Because if it is a crime, then the record of some unfortunate girl who had even a first trimester abortion at fifteen would then become evidence of a crime, no matter how old the guy she slept with was.

I think Kline is aiming to run for governor in a year. He's been advocating warning labels on science texts and targetting abortion clinics to shore up his credentials.

This is just a transparent attempt to scare any woman away from abortion clinics. While he restricted these subpoenas, women can have a credible concern that he'll go on a different fishing expedition later.

Here's hoping that this investigation gets somewhere.

While I accept the civility rules, and I don't think Sebastian here is being disingenuous, I have a great deal of sympathy for Jesurgilac's reaction. Discussions of abortion that focus on late-term abortions strike me as generally divorced from the political and philosophical realities of the controversy.

People who are in favor of abortion rights don't actually view abortions as a positive good in themselves -- the good that they seek is that women should not be forced to carry an unwanted pregnancy to term. If that pregnancy can be avoided through contraception, wonderful! If through early-term abortion, that's less ideal, but often necessary (properly used condoms do break -- that's why I had an abortion ten years ago.) If through late-term abortion, that's medically and emotionally difficult, and should be avoided wherever possible (where medical problems in the fetus that preclude its living outside the womb don't present until the third trimester, that's a situation where they do remain necessary). We can horse-trade about restrictions on late-term abortions so long as contraception and early-term abortion remain easily available; the availability of late-term abortion isn't a matter of principle, it's only one of practical necessity.

Abortion opponents, at least the ones who are politically active, appear to almost universally be opposed to abortion across the board. While I recognize that it is possible for someone to be morally opposed to abortion after some point, but in favor of the right to abortion in the early stages of gestation, I've never met or heard of anyone holding that opinion for whom abortion was a highly salient political issue, or who was involved in driving public discourse or legislation in support of that position.

What this means is that discussions of restrictions on late-term abortions, or 'partial-birth' abortions, are entirely a matter of political posturing. While abortion opponents present themselves in this context as seeking a limited, reasonable goal, it is generally apparent that they're making an attack on abortion rights generally. Here, the attorney general of Kansas is purporting to simply be trying to enforce the law placing restrictions on late-term abortions. In practice, he's unnecessarily invading the privacy of patients who have had abortions by seeking information with no relevance to that issue -- it seems likely, in an attempt to intimidate future patients who need abortions. In discussions of 'partial-birth' abortion bans, proponents pretend that the laws drafted apply only to a small number of post-viability abortions -- as written, they appear to ban all abortions after the first trimester.

If you're (generic you, not particularly Sebastian) really interested in reasonable restrictions on late-term abortions, raise the issue in a way that convinces me that you're not using it as a stalking horse for a complete abortion ban, or for burdensome restrictions on early-term abortions as well. Then we can have a reasonable discussion.

Speaking as someone who is firmly in support of the right of abortion before fetal viability, I also firmly believe that post-viability (i.e. third trimester) abortions can and should be regulated by the state, at least to the point of the doctor having to sign an affidavit stating the grounds for the abortion, and documenting them in a manner that makes later review by the appropriate authorities practical. Roe recognized that the state has a valid interest in protecting the interests of a third-trimester fetus, and the fact that only a low percentage--which still represents thousands of instances a year--of abortions take place in the third trimester is not grounds for refusing to set up rules that recognize this valid interest.

M.Scott-

Right, so you would be someone I could engage with on this.

Hopefully you can see that Kline's actions here are not calculated to successfully minimize the number of late-term abortions that aren't strictly medically necessary -- rather, they're a publicity stunt to intimidate patients and energize abortion opponents.

I would expect someone with your stated positions to be an advocate of expanded access to contraception and related medical information, and to early abortion, both as tactics likely to decrease the number of later abortions. I, and I think many other abortion-rights advocates, would be delighted to pursue a legislative agenda combining the former with whatever data-collection compatible with patient privacy you consider necessary to determine what late-term abortions are occurring and why; and with sensible regulations restricting late-term abortions in the absence of medical necessity, defined (off the top of my head) as a risk to the life or health of the mother or as a fetal defect incompatible with life outside the womb.

There's real room for compromise here, but I don't see steps toward compromise being offered by abortion opponents in the real political arena.

"There's real room for compromise here, but I don't see steps toward compromise being offered by abortion opponents in the real political arena."

IMO, the sides in the abortion dispute resemble the ones in the fight over gun rights/gun control very closely--in each conflict, both sides feel compelled to take extremist positions because they don't trust the other side at all. I appreciate your willingness to compromise--and recognize that the true agenda of many on the other side is to ban abortion altogether--but the rhetoric I hear from Planned Parenthood and other similar organizations is that the judgment of doctors in these matters can *never* be called into question, and I can't support that. From my standpoint as a pro-choice individual who also believes that the only difference between a viable third-trimester fetus and a premature baby is geography, neither side in the abortion debate has clean hands when it comes to acting in good faith.

Scott: "...the judgment of doctors in these matters can *never* be called into question,"

Of course physicians' judgement is sometimes called into question. That's what institutional review boards and lawyers are for. But why does there need to be more monitering of physicians' judgement concerning abortion than cardiac surgery or oncology or, especially, clinical research?

Certainly -- I'm not arguing that clean hands are limited to my side of this.

However, the sides are innately asymmetrical in their bargaining positions. I can happily compromise with you (barring as yet unrevealed info about your preferences). All I want is that women should not have to unwillingly carry pregnancies to term. If I get increased access to early-term abortion and to contraception, that (a) reduces the number of women who will seek late-term abortion, and (b) is, in the balance, worth 'paying for' with restrictions or prohibitions on late-term abortions to the extent that they're not medically necessary. Because abortion is, itself, not a positive good, I'm fine with restricting late-term abortions to the extent that I can also remove the need for them.

An abortion opponent, on the other hand, has to sell out his principles to compromise with your defense of first-trimester abortion rights. While your position looks like a middle ground equidistant between pro-choicers and pro-lifers, it's very compatible with my pro-choice position. On the other hand, to someone who believes that a conceptus is a human being the moment the sperm hits the egg, you're just as much a baby-killer as I am.

There are a number of simple interventions that could reduce the third trimester abortion rate in Kansas and elsewhere. The easiest is simply to make sure that all women of childbearing potential get enough folic acid in their diets. This would reduce the incidence of neural tube defects--one of the most common grounds for third trimester abortion--drastically. Making sure that every woman who is pregnant has access to prenatal care would reduce the rate of third trimester abortion even further by reducing the risk of the pregnancy to the mother's health as well as protecting the fetus against some teratogenic dangers. Another easy one is getting everyone vaccinated against rubella (German measles) and varicella (chicken pox), two diseases that can cause severe damage to fetuses. More generally, better access to birth control and improved support for women with children would both reduce the incidence of unwanted pregnancies, as would decreased poverty and more education. However, something tells me that these are not the sort of proposals Kline is going to put forth.

"While your position looks like a middle ground equidistant between pro-choicers and pro-lifers, it's very compatible with my pro-choice position. On the other hand, to someone who believes that a conceptus is a human being the moment the sperm hits the egg, you're just as much a baby-killer as I am."

True, which is one reason I find the extremist position on the pro-choice side so irritating--it gives the pro-life forces ammunition by giving them something to point at that a large majority of people find unreasonable. I'm not looking to make friends in the pro-life movement--I'm trying to vindicate both what I believe to be the legitimate liberty rights of women and the rights of viable fetuses that Roe made clear were a valid object of concern. I've heard too many people on the pro-choice side arguing that fetuses--even viable ones--have no rights at all, and I've watched those same extremists oppose very popular and reasonable legislation that makes clear that the fact that a woman has a right to choose doesn't cut any slack for criminals who attack women and kill fetuses. My reaction to these antics, to be blunt, is anger and disgust. Such viewpoints only give the pro-life forces more strength.


"I'm trying to vindicate both what I believe to be the legitimate liberty rights of women and the rights of viable fetuses that Roe made clear were a valid object of concern."

Strictly speaking, Roe balanced the fundamental privacy rights of women against a state interest in "safeguarding health, in maintaining medical standards, and in protecting potential life," rather than the rights of fetuses.

Right. Loosely talking about the rights of the fetus is very problematic for someone who takes a pro-choice position unless you have a clear, bright-line point before which there are no such rights.

This:

I've watched those same extremists oppose very popular and reasonable legislation that makes clear that the fact that a woman has a right to choose doesn't cut any slack for criminals who attack women and kill fetuses.

is necessary to the extent that the legislation establishes rights of a fetus throughout gestation, which the legislation in question did. If a fetus has a civil right not to be killed by somone making a violent attack on its mother, it logically has an equivalent right not to be killed by its mother. Even first trimester abortion is thus inconsistent with the legislation in question.

Legislation serving this end:

makes clear that the fact that a woman has a right to choose doesn't cut any slack for criminals who attack women and kill fetuses.

would be perfectly practical without defining the fetus as a person possessing rights -- making fetal death an aggravating factor in the assault charge on the woman, for example.

Scott-

I apologize if I'm being irritating here, but I get the feeling from your posts: (1) that you have a stronger emotional sympathy for (sense of kinship with) anti-abortionists than for abortion-rights activists, and (2) that you let that sympathy interfere with your analysis of why people take the positions they take, and with who is really more closely aligned with your own stated positions. There's nothing improper about (1) (that is, I disagree with you, but there's nothing wrong with it) but I think it may be confusing your reactions. I may be misreading you, but your expression of "anger and disgust" toward a position which is a legal necessity if abortion is to remain legal, suggests that you're letting your feelings get in the way of your understanding of the politics here.

My position regarding abortion is a balancing test: the liberty interests of the woman--particularly those inherent in the Thirteenth Amendment of the US Constitution (or similar laws in other nations)-- outweighs the rights of the fetus until the point when it is viable outside of the woman. This position means that I believe that the right to choose for the woman is just that--a right for her to choose to end the pregnancy based on her individual right to liberty until the time of fetal viability (along with the attendant right for her to seek out a doctor to terminate the pregnancy up to that point without that doctor facing criminal charges). It does *not* require a finding that a fetus has no rights at all before that point, or that any other third parties have any rights or immunities regarding the well-being of that fetus.

Interesting. Why the 13th? "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

I also wonder at what point under such a system the fetus would be recognized as having rights?

To save time, my philosophy about the legal and moral problems posed by abortion can be found here.

I've not worked to out to the extent that you have, M. Scott, but that's extremely interesting.

Thanks for the link. I appreciate your thorough reasoning.

Interesting, but given that you define a fetus not as a human being, but as a rights-possessing-bundle-of-cells-with-the-potential-to-become-a-human-being, I take issue with the unexamined use of the word 'murder' to describe the killing of a fetus. Elsewhere, murder means only the killing of a person; shouldn't the killing of something that, in your terms, is not yet a person, be something other than murder?

"Elsewhere, murder means only the killing of a person; shouldn't the killing of something that, in your terms, is not yet a person, be something other than murder?"

I see your point, and would be willing to call it something other than murder--if the penalty was equivalent to murder, including possibly creating eligibilty for the death penalty exactly as if the killer had killed a baby who had already been born. The important point from my POV is that someone who causes the death of a fetus under those circumstances has committed a crime that is as serious as murder, and should not escape the full appropriate consequences for his or her actions because of political questions. This is also an issue of the potential mother's rights in such cases--she has *chosen* to give birth, and the criminal has killed something that she almost certainly already considered to be a baby. I see no reason why that undeniable fact should not be recognized by the law, though I would also favor wording it in such a way as to keep it from being a weapon against a woman exercising her right of choice, or a doctor assisting her in doing so, as long as it does not extend to viable fetuses.

Good comments, M. Scott. It's not clear to me that Planned Parenthood takes the stance you ascribe to it, though. Do you really think for example that they believe an abortion is equivalent to a haircut?

Sebastian: Statistics on late-term abortions are not kept.

me: However, as you know, only 1% of abortions are carried out after 20 weeks.

Slarti: I've got no dog in this fight, but it seems to me that if the first sentence is true, the second sentence cannot be substantiated.

Quite right, Slarti. Sebastian's claim that "Statistics on late-term abortions are not kept" is not true, and he knows it, because I made the same point the last time this came up on ObWing.

References that substantiate my point:

4% of abortions carried out between 16-20 weeks, 1% at 21 weeks or more: from a fact-sheet produced by the Alan Guttmacher Institute Induced Abortion (US) (stats from 1998, presented as a pie chart: "When Women Have Abortions (in weeks)"

8,862 abortions carried out at 21 weeks or more (from a total number of 625,301 abortions carried out in the US in 1995) - that is, in 1995, 1.4% of all abortions were at 21 weeks or more. (cite, figures sourced from www.cdc.gov) There are similar charts for 1994 (1.26%) and 1993 (1.2%) at the same website: abortionfacts.com.
For 2001, the CDC report says:

In 2001, for women whose weeks of gestation at the time of abortion were adequately reported (42 reporting areas), 59% of reported legal induced abortions were known to have been obtained at <8 weeks' gestation and 87% at <13 weeks (Table 6). Overall (40 reporting areas), 25% of abortions were known to have been performed at <6 weeks' gestation, 18% at 7 weeks, and 16% at 8 weeks (Table 7). Few reported abortions occurred after 15 weeks' gestation: 4.2% at 16--20 weeks and 1.4% at >21 weeks. cite

My memory rounded the figure down from 1.+ to 1%, but the fact is, that for late-term abortions, statistics are obtainable. It just doesn't suit Sebastian to be honest about it.

Equivalent to a haircut, no. I do think that abortion rights organizations do their best to minimize the importance of what is being done, and are invested in seeing the law reflect that philosophy. I'm not for that. To use another example where law allows taking life: I have the right--if necessary--to use lethal force to stop another person from trying to murder me--that doesn't give me the right to demand that the law define the person I just lawfully killed as not being human.

And I could work with that -- my only issue here is in not creating a slippery slope of fetal rights that can be used to ban early-term abortion. As long as that is recognized as a problem, and the language is written to as to fence around abortion rights (which would depend in detail on the wording of the law in question), such a law could be entirely unobjectionable.

Question -- a law recognizing the death of a fetus as an aggravating factor in an assault on a pregnant woman could create any desired level of additional penalty for that conduct, without any risk of the law being used as a stepping-stone to abortion restrictions. Would that work for you, or is it important to you that any such law recognize your belief in the rights-possessing nature of the fetus?

M.Scott, the problem I see with the system you describe is that it requires the law to balance the rights of a person against those of a fetus/person (either another person, or some entity with rights near or equivalent to those of a person), while Roe balances the rights of a person (the mother) with the interests of the larger society (the state). Thus, Roe can draw the line at fetal viability by reasoning that after viability, the fetus is presumably capable of life outside the womb and the society's interests in its wellbeing are consequently that much more compelling, enough to outweigh the rights of the mother. In the system you describe, the fetus presumably has the same interests both pre- and post-viablity, so it's unclear what logical significance viability has in this system.

As a result, you are left with comparing individual rights against individual rights, which seems to lead to the moral conclusion that one individual (the mother) cannot have the right to terminate the existence of another individual.

I'd like to see a law written in that manner (assuming the penalties were at the same level as for murder), regardless of whether my views on the rights of a fetus were recognized or not. I'm quite familiar with the saying "The perfect is the enemy of the good," and would not want to throw away a useful change in the law just because the law as a whole does not reflect my views.

"It just doesn't suit Sebastian to be honest about it."

Jes, if you can't abide by the posting rules on an issue, please take it to the kitten.

"As a result, you are left with comparing individual rights against individual rights, which seems to lead to the moral conclusion that one individual (the mother) cannot have the right to terminate the existence of another individual."

The law already recognizes that such situations can and do exist--most notably the right to use lethal self-defense to defend one's life. The reason I invoked the Thirteenth Amendment is that it is an absolute right that can be invoked against other persons, not just against the government. It is because that the right to live is such an important right that it can be balanced at all against the right not to be subjected to involuntary servitude. For me, viability is the tipping point where the balance of rights shifts to the fetus, except under certain carefully defined circumstances which mostly spring from the right of self-defense.

I see. I understand better now, thanks. I congratulate you on having diligently thought this out.

For me, viability is the tipping point where the balance of rights shifts to the fetus, except under certain carefully defined circumstances which mostly spring from the right of self-defense.

Eloquent and surely where the debate should shift to.

Travis

By your argument, could one argue that a woman has the right to demand induction of labor any time after viability on the grounds that she should not be required to house this independent being?

To bring this back round for a bit to the original topic: Scott, given your views on the proper place to draw the line on abortions and the need to document grounds for post-viability abortions (both of which seem sensible to me), what do you make of the actions taken by Attorney General Kline?

Fair question, Mark. As constructed, I'm less than thrilled with it. I'd like to see the identities of the young women protected--with draconian legal penalties to anyone who leaks the information to the public--and the emphasis put on the doctors, whose names are already public record. Also, I'm not unmindful of the possible political motives of the Kansas AG in issuing the order in the form it is in. There's clearly a legitimate issue here--the AG is asking for evidence regarding abortions that should not be performed at all without compelling evidence that the doctor should be willing to provide if he or she is complying with the law. However, I wouldn't mind seeing whatever trial judge is assigned to the case adding his or her own additional privacy protection demands to the order, rather than simply upholding or denying it in toto.

I'd like to see the identities of the young women protected--with draconian legal penalties to anyone who leaks the information to the public--and the emphasis put on the doctors, whose names are already public record.

If you read the article, I believe they've have already agreed to provide the requested information, so long as they are allowed to redact the patients' names. Furthermore, of course, the infeormation requested goes far beyond that necessary to determine if the law is being obeyed in this regard -- medical histories including sexual histories and contraceptive use have nothing to do with the medical necessity for a late-term abortion.

travis: Oops. I seem to have attributed some of Scott's views to you. Sorry about that.

"...the AG is asking for evidence regarding abortions that should not be performed at all without compelling evidence that the doctor should be willing to provide if he or she is complying with the law"

No. A doctor should not give information about his or her patients out to anyone without the patients' written permission unless a court order is issued.

SH said: "in practice attempts to make any restrictions in the third trimester are eviscerated by the courts to the point of complete ineffectiveness"

I don't think that's quite right. Every single recent legislative attempt that I'm aware of was grossly inconsistent with Sup Ct jurisprudence, e.g., not having any health of mother exception or not allowing for judicial review if the minor can't go to her parents.

the feds, as far as i'm concerned, lack jurisdiction over the issue altogther.

but if there are state laws that have tried to narrow "health of the mother" exceptions or tried to put oversight procedures in place which have been invalidated, i'd love to see a cite.

cheers

Francis

Like Scott I have a weird legal position: Griswold's right but badly argued, and Roe is wrong.

The phrase “emanations and penumbras” is easy to mock, but in fact we accept them quite readily in other areas of constitutional law and the Ninth Amendment provides some textual support for our doing so. (Sebastian is a purist who doesn’t accept them, but most people do.) I think many people’s real problem with the “right to privacy” is that it’s ill-defined, both as far as what the right consists of, and what the constitutional justification for it is. “Privacy” tells you very little about what the right means. I think it could be defined more accurately as:
--a right against arbitrary imprisonment by the government. (Major constitutional sources: “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” “Nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Other constitutional provisions that provide evidence for the existence of such a right: all other legal protections for the accused.)
--a right against arbitary state invasion of either your body or your home. (Major constitutional sources: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” “nor cruel and unusual punishments inflicted.” “nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” Other constitutional provisions that provide evidence for the existence of such a right: “No soldier shall, in time of peace be quartered in any house, without the consent of the owner”)

Before they lock you up, or lay their hands on you, or knock on your door, they need a reason. And the Supreme Court has decided—and I think they are correct in this, though I would not if I were an originalist—that this is especially true when it comes to controlling your family or your reproductive organs. This is something that many Americans believe almost instinctually now—and I don’t think this belief is something that feminists and gay people came up with. It’s obviously connected to feminism and gay rights, but I think it comes originally from something else.

The Supreme Court heard two cases on forced sterilization in 1927 and 1942. In the 1927 case Buck v. Bell the court voted 8-1 to uphold a law providing for compulsory sterilization of the mentally retarded. Justice Oliver Holmes wrote for the majority,

The judgment finds the facts that have been recited and that Carrie Buck 'is the probable potential parent of socially inadequate offspring, likewise afflicted, that she may be sexually sterilized without detriment to her general health and that her welfare and that of society will be promoted by her sterilization,' and thereupon makes the order. In view of the general declarations of the Legislature and the specific findings of the Court obviously we cannot say as matter of law that the grounds do not exist, and if they exist they justify the result. We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v. Massachusetts, 197 U.S. 11 , 25 S. Ct. 358, 3 Ann. Cas. 765. Three generations of imbeciles are enough.

The lone dissenter, Justice Butler, did not even write an opinion.

In 1942, in Skinner v. Oklahoma, the Court did almost a completely 180. It unanimously struck down a law providing for the compulsory sterilization of people convicted of committing certain crimes. Justice Douglas wrote for the Court:

“We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the race. The power to sterilize, if exercised, may have subtle, farreaching and devastating effects. In evil or reckless hands it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty.

Both cases were decided under the equal protection clause, but the Court only reached the result it did in Skinner because it found that the case involved a fundamental right.

I don’t think it is a coincidence that the court completely reversed itself between 1927 and 1942. The court changed a great deal in those years. Specifically, I’m arguing that before the sexual revolution, the feminist movement, or the gay rights movement, the belief in a moral if not a constitutional “right to privacy” comes from our knowledge of the outrages that the Nazi and Communist totalitarianism perpetrated on the human body and especially the reproductive organs, the family, and the home.

Now, Griswold is a harder case than Skinner. The law does not facially discriminate (though it surely has a discriminatory effect) and the state does not physically seize you and forcibly impregnate you. It merely makes it a crime to try to avoid pregnancy. That is why to defend the holding, you need to believe that the Constitution provides a substantive right against arbitrary imprisonment as well as a substantive right against unreasonable government invasions of the body or the home. I believe both things.

Where Roe v. Wade differs from Griswold, and where I think it goes astray, is not in its analysis of the woman’s right, but in its analysis of the state’s interest. In both Griswold and Roe the court applies “strict scrutiny”: the law must be necessary to serve a compelling state interest. Most of us would agree that the Griswold law does not—even Justice Stewart’s dissent calls it “an exceptionally silly law.”

But Roe is different. Many people believe that the state’s interest is in preserving innocent life, and there is no interest for fundamental than that. Blackmun’s majority opinion dodges the question. He claims that it's not possible to determine when life begins. But to reach its decision that the state has no compelling interest in outlawing abortion until after six months of pregnancy, the court implicitly finds, but never directly states, that a fetus is not a human life before that point.

Some pro-life people would say that the courts have no place defining what is and is not a human life or a person as defined in the Constitution. This is not well thought out: almost everyone agrees that if the legislature said that infants or gays or Jews or blacks Muslims or the mentally ill or the mentally retarded were not fully human, the Court would have a duty to overturn it. An alternative argument is that the courts can overturn the legislature's decision that someone is NOT a person or a human life, but not the legislature's decision that someone IS a person or a human life. I also disagree with this. If a legislature determined that a chimpanzee or an unfertilized egg was a person entitled to equal protection of the laws, I think the courts clearly should not have to defer to that.

But I do believe the court should be very, very careful in deciding who is and isn't a person, and in cases of uncertainty should err in the direction of finding humanity and/or should leave the question to the legislature. And with a five and a half month old fetus, there is genuine uncertainty. The court’s trimester system has no real medical or scientific basis. Blackmun just picks a nice round number. It’s completely arbitrary.

As far as the thirteenth amendment and the functionally similar equal protection clause argument for Roe—there are a few cases where criminal law imposes not only a moral but a legal duty to care for another person. One of the most famous of these is that parents have a legal obligation to care for their child. I don’t consider that “involuntary servitude” or a violation of the parents’ equal protection rights and neither do the courts. The parents chose to have and keep the child and in doing so they “assumed a duty of care,” as the courts put it. If a fetus is a human being, it seems to me that by choosing to have sex you assume a duty to care for any child that may be conceived—and this is the position the law takes when it comes a father’s legal duty to provide child support. In cases of rape there is not a choice to have sex so that might be distinguishable. I haven’t thought it through.

Now, here’s the last place it’s necessary to distinguish the constitutional status of birth control and abortion: to say that it’s unconstitutional to ban the IUD and the birth control pill and emergency contraception, I have to take a position on when life begins. I have to argue that there is enough certainty that a fertilized but unimplanted embryo is not a person, to say that the state has no compelling interest in banning these methods of birth control.

I am willing to make that argument.

I don’t think it’s possible to scientifically determine the moment when life begins, because I don’t think there is one moment waiting to be discovered by scientists. You can pick various times—the moment of fertilization, implantation, differentiation (because after this you don’t have the identical twin problem) the beginning of heart beat, the beginning of brain waves, the beginning of the second trimester, the beginning of the third trimester, viability (but that’s also indeterminate), birth—but it’s none of them. There’s no single instant; there’s nine months of becoming more of a person every day.

But you don’t have to be able to draw a precise line between two categories to determine that something is on one side of the line or another. This is why I believe that while fertilization and birth are the most obvious, dramatic moments to draw the line in the abortion debate they are also close to the worst answers you could give. A fertilized egg is not a person, nor is an undifferentiated blastocyst that cannot only not feel pain or have a heart-beat, but has no nervous or circulatory tissue at all, and may still become identical twin, and may be miscarried without the mother even knowing it. Whereas to abort me four days after my due date and a day before my birth would be, if not murder, than something almost indistinguishable from murder.

In other situations, I am uncertain. In the face of that uncertainty and the certainty that women will seek abortions whether they are legal or not, I think the government should keep abortion legal and make every effort to make sure it is safe, rare, and that if it has to happen, it happens as early in the pregnancy as possible.

As you might guess from all that, I am very pro-birth control and very pro-morning-after-pill. And I think Harry Reid's Prevention First bill is an excellent idea. I wish it had a chance in hell.

p.s. and I think Congress clearly has the affirmative power to rule on abortion under the commerce power.

Oh, I also think there is a good argument that the Equal Protection clause requires that abortion be legal when necessary to protect the life of the mother.

Katherine: I'd add one thing. As far as I know, we do not generally take life, in the sense of 'having your organism still keeping itself going, in some sense', as the boundary on one side of which we have a protected person and on the other side of which we don't. At least, we don't in the case of brain death, which occurs when the body is still alive (though on machines.) In the case of death, at least, it's the brain, not the entire body, that has to die in order for "you" to die.

In the case of blastocysts prevented from implanting themselves, there is of course no brain at all. By the end of the first trimester, iirc, synapses are just beginning to form -- and without synapses, I don't think there can be neural connections or anything. As I understand it, scientists don't think that sentience (let alone anything more complicated) is possible until somewhere around halfway through pregnancy.

To me, this is more important than viability. Viability depends a lot more on our technological capacities than on anything about the fetus. The more time goes on, the earlier fetuses will be viable; and they will be viable in the sense that we can keep them alive long before we figure out how to keep them alive in ways that won't lead to their having very serious health problems. But sentience is a property of the fetus that (I think) really is a good dividing line: before there is sentience, there is no subject, no person, at all -- though, as in the case of a brain-dead person, there may be a life (biologically.)

I also think that determining when a cell is alive (biologically) can get complicated -- as can the question, when exactly does fertilization occur?, and, when do we get to call a blastocyst 'an individual' (since blastocysts can both divide into twins and amalgamate, up to a certain point.)

I seem to recall from high school philosophy the idea that anything really valuable has to be distinguishable from other such objects. Cows, for example, are interchangable. Of course one would not accept switching one's newborn for one's neighbor's. Yet I suspect it is (according to some system no one would want to write down) a greater tragedy for a two-year-old to die in an accident than for a newborn to do so. (Whether it would be worse for a meteor to snuff a 30-something, say me, than a two-year-old is probably impossible to decide reasonably.) The Romans exposed infants under the age of a week or so if they didn't seem healthy - does this reflect the above or does it just creep everybody out?

Yes, "interchangable" and "interchangeable" are not ...

The Romans exposed infants under the age of a week or so if they didn't seem healthy...

The Romans did that too? I thought that was just the Spartans...

rilkefan: interestingly, Ronald Dworkin did write down something like what you said -- though he was very explicit about its not being usable as a justification for killing, etc., just as a way of accounting for our sense that (for instance) it's worse when a two year old dies than when a newborn does, and worse when a twenty year old dies than when an eighty year old does. He says: there's always one valuable thing that's lost when someone dies, namely the gift of life. But there is also what you might call the investment in the life, by the one whose life it is and others. When a ten year old dies, there's all that parenting, but also all that living by the child, learning things (and I tend to think of children as heat-seeking missiles directed at stuff they can learn from, in a fun way. Not school, I mean) and trying to figure out how to be a person and all that. All gone, with no chance for it ever to come to fruition. By contrast, an eighty year old's death can be in all sorts of ways a tragedy, but it is never a tragedy in the sense that the person has never had the chance to live.

So the general idea is: the tragedy of a death goes up as long as investment in the kid's future is going on, then down (slowly) as the adult gets to put that investment to good use, until at some point (when the person has had a very long and happy life, as long and happy as anyone could want, but has reached a point where s/he won't be happy any more) it reaches the point where the tragedy is "just" the tragedy of death again.

As I said before, it's very important that this is not about "who can we kill?", etc.

Anarch: I think it was everywhere, practically. It went on in Europe well into the Middle Ages, if memory serves. John Boswell wrote a book on it, I think, and he was a wonderful historian, so anyone interested might find it worth reading.

Thanks for that recommendation, hilzoy. People interested in a look at how different culture deals with abortion might be interested in William LaFleur's _Liquid Life: Abortion and Buddhism in Japan._ which discusses why an obstensibly Buddhist country would tolerate virtually legal abortion on demand (here's the stats and the site has historical info for other countries)

The 'virtually legal' modifier is a feeble attempt to convey the strangeness of it all. The Meiji restoration, in adopting Western law codes, made abortion illegal. In the run up to WWII, it became a woman's duty to be fecund. Since 1948, abortion has been legal at any point (Why did the Occupation officials agree to this? I'll have to talk to some people about it). However, because of the massive decline in the birthrate, the government has recently unsuccessfully tried to limit abortion, and a number of feminists have argued that the right to abortion is essential (please don't equate Japanese feminism with American feminism. It's very difficult to get a handle on what japanese feminism is, a problem made more difficult by the fact that 50 year old men who hold doors open for women (rather than simply have them walk three steps behind) refer to themselves as "feminists" This link is interesting in that light)

Also, abortion is completely uncovered by medical insurance. This has created a situation where the very powerful doctors lobby argues to maintain the status quo because abortion is not subject to the mandates of socialized medicine and can be done on a cash only basis. There has also been some sensationalized discussion of 'placenta beauty treatments' which use human placental material (that link often has very weird stories about Japan, so some salt is advised. Also not completely worksafe)

The book was reviewed, the author responded and the reviewer replied in the Japanese Journal of Religious Studies.

I think that LaFleur is more correct than the reviewer Tanabe. This link (in jpnese) points out that the population of Edo was stable, despite the absence of emigration, Malthusian incidents and wars, and the writer suggests that the process of mabiki (literally 'thinning rice seedlings') took care of excess population. The article asserts (though my wife is suspicious) that mabiki could take place until children reached the age of seven(!) and because farmers had no social safety net, this was unavoidable.

While I'm not sure if children up to the age of 7 could be infanticized, there was also the phenomenon of rural families giving up their daughters to be prostitutes/servants, called karayuki san (which is the subject of one of Shohei Imamura's best films) It's also the subject of a popular 80's TV drama called Oshin that has been syndicated to all of the Middle East countries and may have been responsible for the order that Japanese troops stationed in Iraq grow moustaches and beards because Oshin's husband had facial hair. (I think this was from Joi Ito's blog

LaFleur's response cites an interesting factoid that I toss out here for further discussion. It says

In this late-Edo policy switch on the part of Japan’s Buddhists I see a parallel to an occurrence in American history. Research by James C. Mohr (1978) shows that prior to the 1840s the Protestant clergy paid virtually no attention to the fact that many women in their parishes were having abortions—referred to then as the medical correction of “irregularity” in a woman’s menstrual cycle. Fears, however, of a demographic crisis—specifically, a lowered birthrate among upper-class Protestants precisely at a time when Catholics were arriving in ever greater numbers from Europe—forced an end to this considerable stretch of silence. A practice that had been implicitly condoned by never being mentioned quickly became the focus of a new public and pulpit discourse about morality. Fecundist programs were in put into place and the censure of abortion was begun.

If this is true, it might provide some explanation as to why most conservatives can hold that abortion is a sin, but capital punishment is an appropriate punishment, in that their support is driven by concerns of losing culture/influence.

Rilkefan: Jes, if you can't abide by the posting rules on an issue

Is it against the posting rules to point out when someone isn't being honest?

. . . medical histories including sexual histories and contraceptive use have nothing to do with the medical necessity for a late-term abortion.

No, but they speak quite loudly to what the real likely motivation behind this fishing expedition is, which is the threat of having this information "accidentally" leaked as someone alluded to above, then publicly portraying the women who have had late-term abortions as promiscuous, irresponsible libertines.

Small correction, abortion is legal from the 1st to the 7th month in Japan, though in Japan, they say that women are pregnant for 10 months (with each month being 4 weeks) so this is quite close to the 2 trimester mark.

Also googling turns up this page has a huge number of links to both sides, plus philosophical papers at the bottom. Also going up the Japanese links goes to the Journal of Buddhist Ethics Tons of stuff to read, no time.

Jes: it is not against the posting rules to point out that someone has overlooked a salient consideration. It is against the posting rules to call them dishonest. This is so even if you've pointed that consideration out before, since the person may have forgotten it. (I wish I could remember all the interesting things people have pointed out to me, but I'm sure I don't. And while I quite like Sebastian, I don't attribute to him the super-powers that he'd need to remember all the things people have said to him.)

a popular 80's TV drama called Oshin that has been syndicated to all of the Middle East countries

Again of topic: Not just the ME. I loved Oshin at the time ;-)

On topic: as stated before, in the Netherlands you can have an abortion till end of first trimester without anything (officially you have a 5 day waiting period between expressing the wish and doing the abortion). Second trimester you can have an abortion on medical indication. As from 24 weeks you cannot have an abortion anymore but in exceptional cases they can start labour (I know of someone who discovered this late in the pregnancy that the baby did not have a brain at all). Once born a child is a person though, and you need to officially report the birth for communal registry. Partian birth don't exist here (I think it is horrible); after first trimester you give birth.
Motivation of our law is that there is a "growing scale" like Katherine described, where the baby becomes more of a person with rights further in the pregnancy.

It is against the posting rules to call them dishonest.

Fine, then I won't.

I will merely point out that yes, statistics are available for late-term abortions, that Sebastian knows this because I have pointed out those statistics before, and yet, he keeps claiming - though he knows better - that these statistics are not available.

Why he does this will have to remain an inexplicable and undiscussed mystery.

LJ upthread speculates that conservative opposition to abortion comes from a sense that they are losing cultural influence and a desire to assert cultural influence. yes, that's exactly why the debate is so vicious and decisive. If Americans could discuss abortion the way people are discussing it on this thread--without the moral high horses and without the hidden agendas--we could probably find a way of conceptualizing abortion that would more or less suit most people. As it is the debate is polarized into it-is-murder- no-matter-what and no, it's-the woman's-choice-no-matter-what, positions which actually leave most of us unsatisfied. Hilary Clinton was trying to move the debate away from the extremes in her recent speech. The position that Kerry took, that abortion shuold be legal, but rare, was also an attempt to move from the extremes to common ground. The left, on this issue, needs to get off the extreme and move toward the center in order to reframe the debate. That's hard to do because it requires some trust and trust is noteably lacking in our current political life. However the left does not need to trust the right in order to reframe the debate. We need to trust the center and that is a risk we can take. I'm a second generation Planned Parenthood member, daughter of a feminist, and I see no advantage to the left in insisting on an absolute right for any female to get an abortion. We are more likely to perserve choice in this couuntry and fight off the real conservative theocratic agenda if we engage seriously in discussions of how to prevent the need for abortion than if we keep acting as if the act of aborting a child was a positive step forward for the feminist cause. The "we" I am referring to is the feminist activist lefftist kind of people to whichh I am familiar, being one myself.

Sex involving someone under 16 is illegal in Kansas, and it is illegal in the state for doctors to perform an abortion after 22 weeks unless there is reason to believe it is needed to protect the mother's health.

I'm pro-choice, but I have no problem with these sorts of laws against late-term abortions or government efforts to enforce them. My understanding is that late-term abortions are very rare (and Jesurgislac's statistics support that), and I think that most of them are necessary (although I don't have solid evidence for that claim). I think that statistics on abortions, including timing, reason, type, etc., should be kept and should be publicized more. I'd like to see major newspapers put a little pie graph and a few words on the front page, and an article inside the paper, once a year when the annual abortion stats came out. It's a heated issue that receives lots of attention, so people should at least be informed about the basic facts.

I said that governments should be able to enforce laws against late-term abortions, but there should be limits on the information that they have access to. They shouldn't get any more information than they need to verify that there was a legitimate reason for the abortion. In this case, the clinics' desire to not include the names of the people involved is perfectly reasonable, and I see no reason why they should include information like sexual history and psychological profile. There's no need to give the government that kind of information and expose the women who have had abortions to intrusions into their lives unless there is probable cause for a criminal investigation of an illicit abortion.

Since the doctor is deciding whether a health of the mother exception is present, and the doctor is actually performing the abortion, and the doctor is in a better position to know the law and be susceptible to incentives, it seems to me that it is the doctor who should be receiving the scrutiny, not the patient. Perhaps a more effective way of minimizing unjustified late-term abortions would be to make doctors consult with other doctors (and maybe also lawyers) before performing late-term abortions. Although perhaps that consultation could not be kept sufficiently disinterested, or would impose too long of a wait on the procedure.

I think that it's wrong to use abortion records to prosecute people for underage sex, for the same reason that it would be wrong to use medical records on childbirth or STDs for those purposes. If the sex has already taken place and it has potentially serious consequences, the focus should be on dealing with the consequences of the sex, not on punishing the participants. Young people who have had sex should not be given a legal disincentive to seek medical attention. The fact that the Attorney General has given his duty to "prosecute child rape" as one of his reasons for seeking these abortion records, combined with the fact (as far as I know) that he has not made a similar effort to obtain other information indicative of underage sex, suggests that his motives are questionable. Thus, it is particularly important to protect the anonymity of the women who have had abortions in the current case.

I think that the continual problem of questionable intentions and ulterior motives is one of the reasons why common ground on abortion is especially difficult to find. It's hard to agree on sensible regulations when many pro-choice people see any attempt to regulate abortion as a way to "harass women and abortion doctors" (to quote the trackback) and many pro-life people see attempts to resist such regulations as a way to prevent any oversight of abortion practices.

Blar-

Your general points are well taken, but do remember that in this particular case, the clinic is perfectly willing to release the information relevant to enforcing the law -- they just want to redact names of patients and other sensitive materials from the medical records. There's a tendency to make balanced accusations of unreasonableness against both sides of an issue, but on this specific case, I really don't think you can call the clinic unreasonable.

We are more likely to perserve choice in this couuntry and fight off the real conservative theocratic agenda if we engage seriously in discussions of how to prevent the need for abortion than if we keep acting as if the act of aborting a child was a positive step forward for the feminist cause.

Lily-

As in the bill increasing access to contraception and sex education sponsored by pro-life Senate Minority Leader Reid, which NARAL has come out strongly in favor of? Again, lefty-feminists are being painted as unreasonable here, but every time I hear a suggestion about how we could be more reasonable, it's something we're already doing.

It is against the posting rules to call them dishonest. This is so even if you've pointed that consideration out before, since the person may have forgotten it.

Seriously? (I'm all for the presumption of good faith, but sometimes that presumption is, well, not borne out by the facts.)

I think that's reasonable, even where the presumption is, as you say, not borne out by the facts. Conversations of the form "I can call you a liar, because you are a liar; but you'd better not call me a liar, because I'm not!" are unpleasant and destructive of the civility the moderators are attempting to maintain here, even when the speaker is perfectly correct.

Noting that a poster has been repeatedly informed of a salient piece of information relating to a topic in which he is apparently quite interested, and yet consistently fails to recall that information, allows anyone who wants to to to draw their own conclusions without disrupting the civil tone of the site.

LizardBreath, I think that we agree on this particular case. It is perfectly reasonable of the clinics to withhold the names, and none of their actions described in the article seem unreasonable or inconsistent with the position I've laid out. I tried to be balanced, not by accusing both sides of unreasonableness (which is often the self-styled moderate's version of partisan bias), but by looking at the big picture and seeing how the goals of both sides are reasonable and compatible.

Much of the disagreement here comes from different interpretations of the actors involved in the case at hand, which in many ways is a secondary issue. When the focus is on the particular case at hand, people on opposing sides are liable to interpret the case differently, in part because they suspect that the other side has ulterior motives and in part because they hone in on the details that suggest that the other side is doing something wrong. Gestures towards common ground that get tacked onto the end of partisan arguments about a particular case often seem like window dressing, insincere efforts to seem reasonable that these people on the other side will only make as long as they don't require conceding anything of substance on the issue at hand. (Sometimes this is true and sometimes it is not.)

Putting your sincere general views up front and focusing on them is one way of trying to change this dynamic. In this case, just about everyone can hope that the state gets enough information to prosecute people who were involved in illegal abortions, but not enough information to cause trouble for the people involved in medically justified late-term abortions. (I don't know if there's as much agreement about possible prosecutions for underage sex, but the priciples at issue there are really only tangentially related to abortion.)

Blar: The most efficient way to decrease the rate of medically unnecessary late abortions is to make sure that both birth control and early abortion are easily available and inexpensive. I can't imagine deliberately waits 6 or 7 months to have an abortion because pregnancy is so much fun so if any non-medically necessary abortions are being done out there, they're being done because the woman involved didn't have access to or couldn't afford an early abortion...or the birth control that would have prevented the pregnancy in the first place.

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