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February 06, 2007

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Fetal unionization is clearly the answer!

Yes! Remove all ions from fetuses today!

Oh. Nevermind.

Gary:I'm still hoping you'll get back to explaining what you think bombing Sudan will accomplish, though.

Back on that thread.


wmr: My point is that the blue slip, along with some real bi-partisan respect across the aisle, is at least part of the reason it is now 4-4-1.

Sorry - I guess I lost the context overnight. I can agree that is at least part of the reason.

I don't have anything to back this up, but I feel that groups like this are somewhat self-centering on their own. Some people just like to be contrary, and as we have seen, some like be courted for that swing vote. (I’m not saying they abandon their principles for this, just offering it as a potential influence.) For whatever reason, we have seen some justices take an unexpected turn after confirmation.

"The Warren Court was to the left of the American public as well (see especially abortion, obscenity and punishment theories)."

Yes, to some degree they were. But constitutional rights are intended to be put to popular vote; that's why they're rights, and they supersede popular will, as you know. The First Amendment is generally pretty unpopular, as well.

I'm not an advocate of McCain-Feingold, so you can't lay that on me as a possible piece of hypocrisy, I'm afraid. Just for the record. Complaints about that issue o will have to be directed elsewhere than to me.

OCSteve: "For whatever reason, we have seen some justices take an unexpected turn after confirmation."

That lifetime appointment, with removal only for cause, is empowering -- as intended. (And naturally it cuts two ways, and is also dangerous if you don't like the trends of a justice's decisions after confirmation.)

Argh: "But constitutional rights are intended to be put to popular vote;"

The dreaded Pirates Of "Not" have struck, stealing that word they so covet from before "intended." Fiends, they are! Fiends!

"But constitutional rights are [not] intended to be put to popular vote; that's why they're rights, and they supersede popular will, as you know."

Sure. And that is why new ones might, every now and then want to bother with the amendment process. And that is why getting rid of old ones might also every now and then want to bother with the amendment process.

Abortion 'rights' may or may not be deserving of Constitutional protection as a theoretical matter, but if they are, it should go through the amendment process. If capital punsishment is not Constitutionally acceptable, there needs to be an amendment, because the Constitution explictly allows for it, and rules of construction don't allow for far-reaching interpretations to stretch so far as to invalidate other portions of the same document.

Marbel: Most Christians in our biblebelt are of the 'god will take care of everybody in his own way' kind. No healthcare, no vaccination, women oblidged to stay home and take care of the kids...

As Terry Pratchett almost says: and then they die, which is the fate God* obviously intended for those gifts.

*In the specific quote I'm thinking of, Pterry uses the phrase "Kindly Old Mother Nature".

Anarch: Nope, I'm right. Just look at their track record, if you can stomach it. As for your other argument: anyone who can convince themselves that women ought to be forced through unwanted pregnancy and unwanted childbirth because fetuses are "gifts of God" but then quite happily and contentedly wants those gifts handed back to God dead because who cares about them once they're born, is beyond logical argument. All decent people are pro-choice: the rest aren't worth converting, it's just necessary to keep reminding the decent people what the indecent people are like.

"but then quite happily and contentedly wants those gifts handed back to God dead because who cares about them once they're born"

Your 'but' certainly doesn't follow for everybody does it?

"All decent people are pro-choice: the rest aren't worth converting, it's just necessary to keep reminding the decent people what the indecent people are like."

Conveniently, this allows for skipping all that tiresome "thinking" and "evaluating" when meeting or considering people; it makes life much simpler, so I can see why you'd enjoy holding on to this easy little substitute for having to use your brain.

Maybe I should point out that I'm one of Jes' non-decent people, since I approve and support the Dutch law where abortions are not allowed after 22 weeks gestation.

Jes: Anarch is right, you cannot decide what they believe, only whether you think what they believe is wrong/illogical/inconsistent/etc. And not all people who are against national healthcare and paid maternity leave want babies death.

Can you remind me, Sebastian, how you would have decided Brown v. Board of Education, since the evils of the Warren Court have come up?

"in order to get the test case, the guys had to effectively stage the arrest."

Sebastian--members of my family know Lawrence and his partner; the arrest was not staged. Darned if I can see what evidence you have to the contrary.

I'd also liike to see your evidence that only 4 states criminalized sodomy at the time of Lawrence--that seems to me to be clearly incorrect. It would be a pain to start linking to criminal statutes from around the country, but I will if you insist . . .

At a basic level, you and your fellow textualists don't understand the role of the courts in a common law-based system like ours--a role that was well understood by the founders. The notion that only the Legislature, and not the courts, can legitimately "make" law is inconsistent with about 1000 years of legal history.

Most of the basic principles which form our law today were developed on a case-by-case basis by courts, not enacted by the legislature. For example, I don't think you'd dispute that it's possible to bring a negligence action in your state of California, but I also don't think you can point to a statute creating such a cause of action.

When the courts recognize a constitutional right to privacy, they are simply performing the function that the founders expected them to perform.

"in order to get the test case, the guys had to effectively stage the arrest."

Sebastian--members of my family know Lawrence and his partner; the arrest was not staged. Darned if I can see what evidence you have to the contrary.

I'd also liike to see your evidence that only 4 states criminalized sodomy at the time of Lawrence--that seems to me to be clearly incorrect. It would be a pain to start linking to criminal statutes from around the country, but I will if you insist . . .

At a basic level, you and your fellow textualists don't understand the role of the courts in a common law-based system like ours--a role that was well understood by the founders. The notion that only the Legislature, and not the courts, can legitimately "make" law is inconsistent with about 1000 years of legal history.

Most of the basic principles which form our law today were developed on a case-by-case basis by courts, not enacted by the legislature. For example, I don't think you'd dispute that it's possible to bring a negligence action in your state of California, but I also don't think you can point to a statute creating such a cause of action.

When the courts recognize a constitutional right to privacy, they are simply performing the function that the founders expected them to perform.

"Sebastian--members of my family know Lawrence and his partner; the arrest was not staged. Darned if I can see what evidence you have to the contrary."

You might want to read the rest of the thread.

"At a basic level, you and your fellow textualists don't understand the role of the courts in a common law-based system like ours--a role that was well understood by the founders. The notion that only the Legislature, and not the courts, can legitimately "make" law is inconsistent with about 1000 years of legal history."

Common law grounded in a text, it is a distinction with a huge difference. The normal rules of textual interpretation as applied in thousands of routine cases also apply to the Constitution, much to the chagrin of liberal jurists. That is inconsistent, with ummm only your prefered method of analysis NOT even 100 years of legal history.

"Most of the basic principles which form our law today were developed on a case-by-case basis by courts, not enacted by the legislature."

That is nice and completely irrelevant. First, common law on the federal level isn't nearly so extensive. (The common but not entirely true saying being "There is no federal common law"). Second, what precisely is supposed to happen when the legislature enacts a law? If both deal with the same subject, is that law subordinate or superior to the common law? We both know the answer don't we? But for clarity, please answer anyway.

The Constitution is not common law. It was not judicially created. It was created by ratification. Its function is to set up a procedure for governing and to protect certain rights. It has a handy amendment process for changing itself that modern liberals seem bored by. Its intersection with common law is that the APPLICATION of it to specific facts follows a common law tradition. Note I do not say the INTERPRETATION of it. The INTERPRETATION of it follows common law rules of INTERPRETATION which are indeed well understood. Rules like "specific terms rule over general terms" make questions like "Is the death penalty allowed under the Constitution" completely trivial--the answer is "Yes", it is specifically contemplated.

But none of this makes it 'common law' in the sense you are using the term. You are using the term to meed 'judge codified' law. Constitutional law is not that and was not contemplated to be that. It was intended to be 'constitution codified' law.

"When the courts recognize a constitutional right to privacy, they are simply performing the function that the founders expected them to perform."

When the courts created a "right to privacy" that isn't anything like what is actually in the Consitution they most certainly are not doing what the founders expected.

But your "penumbras formed by emanations" are coming back to haunt you. The Bush-sought extensions of Executive power are in the same line of reasoning as the idea that you can find the death penalty unconstitutional despite the fact that the Constitution specifically allows for it. If you can emanate certain general principles to void explicit portions of the Constitution to create rights (firmly in contradiction with common law understanding of textual interpretation), you can do the same to destroy them.

Can someone invent a uterine replicator, already? I'd love it just for the technological cat among the pigeons it would throw on both sides of the aisle...

Marbel: Maybe I should point out that I'm one of Jes' non-decent people, since I approve and support the Dutch law where abortions are not allowed after 22 weeks gestation.

Say that you're 24/40ths of a decent person, then, at least: even if you think that after 24 weeks a pregnant woman who needs an abortion or will die should just die. Do you, by the way? Or are you even more of a decent person than you are prepared to admit, and do actually allow that a woman may be allowed to choose life over dying with her fetus?

Jes: Anarch is right, you cannot decide what they believe, only whether you think what they believe is wrong/illogical/inconsistent/etc.

I don't decide what pro-lifers believe: they decide that for themselves. And what they believe is perfectly right, logical, and consistent with wanting control over women's bodies and for women not to have control over reproduction: that fits their actions, their other statements, and their political allegience. That they cover this with nonsense claims to believe in the sacredness of fetuses does not mean we actually have to believe this.

And not all people who are against national healthcare and paid maternity leave want babies death.

Want, possibly not. Don't care if babies live or die, but absolutely don't want any investment in helping them live, certainly.

24/40th sounds more reasonable than what you said the last time we had this discussion ;). Though my decency depends on more things afaiac.

Life threatening is a completely different situation. Woman almost always prevails, but an abortion is hardly ever necessary (usually it is an emergency birth in those cases).

Everything you say after this is as factbased as my statement that people that do not like cheese are morally inferior.

Marbel: 24/40th sounds more reasonable than what you said the last time we had this discussion ;).

Occasionally I am more reasonable than at other times. ;-)

Life threatening is a completely different situation. Woman almost always prevails, but an abortion is hardly ever necessary

But who gets to decide? If you are anti-choice, it's either legislators, the doctor, or the woman's husband - or some combination. Someone else other than the only person directly affected by the life or death decision gets to impose their wishes on the woman directly affected.

If you are pro-choice, it's the pregnant woman who gets to decide. Her body. Her life. Her choice.

By the time it is life-threatening the women often is not in a condition to choose. But the 'almost' in that sentence was to prevent someone from coming up with a rare case in which the women is lost anyway. So it is always the women, if she has a chance at surviving and living. Probabely even when she would choose for survival of the child, which might make it anti-choice again.

Where we differ is where the baby starts to be entitled to protection. For me that border lies at viability, for you at birth.

However, that still doesn't mean that people who are from what we call the 'black stocking church' don't love their children or grieve when they die - even if they do not vaccinate them. I know empathy is not your strong suit, but you have to be aware that people are very different and you cannot apply that kind of logic to whole groups of people because it is how YOU would feel in their situation.

Marbel: So it is always the women, if she has a chance at surviving and living. Probabely even when she would choose for survival of the child, which might make it anti-choice again.

Nope - that last sentence says you misunderstand. What makes being pro-choice simple, consistent, and decent, is that it's always up to the woman to decide. "Anti-choice" would be forcing someone else's decision on her. Whether that decision was to let the fetus die so that the woman can live (there's no child involved) or for the woman to decide to give her life up for a better chance for the fetus to become a child. You're using "pro-choice" as if it meant "kill the fetus".

Though of course, unless the woman has specifically said otherwise, if she's beyond expressing her wishes, the doctor's bound to do what's the best for the patient - who is the pregnant woman, not the fetus. But that takes it outside the realm of pro-choice or anti-choice, unless the doctor's one of those people who thinks the woman is an incubator and his job is to save the fetus.

. For me that border lies at viability, for you at birth.

Precisely. If the fetus is actually viable - as opposed to technically viable. A fetus birthed at 25 weeks (according to the BMA) has something like a 35% chance of surviving past the age of 6 with no disability, and a 26% of being still alive at age 6 with severe disability. A woman has a right to decide if she wants to terminate or to give birth to a severely disabled child: and a severely disabled child has the same right a normally-abled child has, to be taken care of by someone who chose.

You think it would be only right to force a woman to give birth to a child she doesn't want/doesn't want to give birth to: I think that that is indecent and profoundly immoral. Women are not incubators or slaves, but human beings with the right to make decisions about our own bodies and our own lives: which is why, regardless of a person's personal feelings about abortion in general or any individual abortion or pregnancy, pro-choice is the only decent moral stance to take. Anything else treats women as incubators or as slaves.

BTW, is anyone else chuckling over the juxtaposition of the title to this post and the Undercarriage? Cheeseburger?? one?

Jes: I did not equale pro-choice with pro killing. You said that anti-choice people thought the woman less important than the baby. I said that in my example they would still save the mother and not the baby, and thus it is not pro-choice but it also doesn't see the mother as 'incubator'.

Your figures are about chance it has after birth. That is more important for the decision about when you will start to actively treat a premature (in the Netherlands doctors tend to take 25 weeks as a minimum). I talk about when the child-to-be starts to have some legal rights of protection of it's own.

The decision about having a handicapped child is also not relevant. If it is severely handicapped it deserves euthanatia, but by that time everybody agrees. And before the child is entitled to protection you can also decide to have an abortion if it is severely handicapped. But as a parent you *always* have the risk that you child becomes handicapped. What if it has problems during the birth and comes out handicapped? What if it has severe meningitis at 4 and is severely handicapped after? What if it gets run over by a car at 10 and is severely handicapped after?

And about forcing the women to give birth: the baby will not magically disappear, she will still have to give birth, even at an early stage.

As I said earlier: my niece was born last year at 27 weeks. The idea that she has more legal protection out of the womb than in the womb is weird for me, since it is still the same baby.


DtM: I have a tabbed browser and read all posts in their seperate tabs, so I only see the bottom bits of the posts. No juxtaposition without someone else telling me about fruits vs cheesburgers ;)

Though of course, unless the woman has specifically said otherwise, if she's beyond expressing her wishes, the doctor's bound to do what's the best for the patient - who is the pregnant woman, not the fetus.

Um. I'm pretty sure we have some actual doctors rather than moralist dilettantes posting here. I'd like to hear their opinions on, when acting as an ob/gyn treating an ongoing pregnancy, who the patient is. I suspect the answer is "both."

You yourself are a frequent advocate for solid prenatal care for pregnant women as part of a universal healthcare package. Just who do you imagine the patient is in that scenario?

I should add that I include myself in the category "moralist dilettantes."

"Democracy" isn't in the Constitution either. The words "right to privacy" don't have to be there when the conncept so obviously is. What really amazes me is that conservatives, who say that thheir political philosophy is based upon, amonng others, the principle of self-reliannce and minnimal governnmennt interference inindividual lives would also insist thhat there is no Constitutional basis for protecting people from interference in their personal decisions! I don't thinnk that concepts like self reliannce, individualism, self determination are compatible with a government that is presumed to have the power, whenever the whim seizes a bunch of legislators, to interfere at will inn people's private decsions.

Anarch: Nope, I'm right.

No, you're not. And your subsequent declarations of faith pretty much prove it.

Phil: You yourself are a frequent advocate for solid prenatal care for pregnant women as part of a universal healthcare package. Just who do you imagine the patient is in that scenario?

The pregnant woman. Who do you imagine the patient is?

Given the word "prenatal," and the fact that the woman is, in fact, already born and therefore not in any meaningful way "prenatal," I leave it as an exercise for the reader.

So, when in the midst of this prenatal care, the doctor listens for a heartbeat, whose heartbeat is she listening for? The woman's?

Jes: in prenatal care both the woman and the child(ren) are patients. They check up on both - and treat both. Simple example: In case of my niece: when it was clear that she might be born early they gave her shots in utero to prepare her lungs better.

In todays related news: a guy who stabbed the womb of his wife (37/38 weeks pregnant) 4 times will be prosecuted with murder of the unborn baby. The mother had a ceasarian, but the baby died the next day because of the injuries sustained in the womb.

*I* think it was murder. But since the baby wasn't born at the time of the attack, from your pov it appearantly wasn't. Or do you think it was murder too?


The first charge should be attempted murder of the woman with the unborn child as aggravating circumstances.
At that point (isn't 38 weeks actually overdue already?) the child would be fully viable and (in my opinion) justify a murder or manslaughter charge too.

Clarification: we call manslaughter murder too, and he is also charged with attempted murder on his wife.

But the viability of the baby is why the prosecution goes for murder/manslaughter. The case only just started, so I have no idea what the outcome will be, but I thought it interesting in view of our discussion here.

And the attempt to kill his wife is no aggrevating circumstance. His plea is that he just heard that his wife wanted to divorce and that the child wasn't his - but he stabbed the womb 4 times so that was aimed at the child, not the mother.

What ever happened to the guy that exposed Bernie Kerik for the monster that he is? I think the country owes this guy a thank you for not letting Rudy put a guy like that in homeland security? How could Rudy have put a guy with no high school diploma in a position of authority in the jail system, and let him go into the Police Commissioner spot and then set him up for homeland security? What a Joke!!!! Something really stinks here!! What could Kerik possibly have on Rudy or even the president that nothing happens to this dirt bag? There has to be more!!! There Has to Be More!!!

It's obvious that Kerik and Rudy didn't want this guy Ray talking. What Happened to him? As soon as he exposed him, no one ever heard from him again. Is he even alive? What does Kerik have on Rudy that he would continue to let him get away with these atrocities? What does this guy Ray know that would make them react in this way? Obviously it's not in Rudy's or Kerik's best interest to have him talking. Ray was Kerik's best man at his wedding, he must have known something more that they did not want exposed. What would have happened if this loser Kerik slithered his way into the White House? What irreversible damage could have been done if not for the Patriotic bravery of Ray? This guy Ray did a huge service to this country exposing this monster for what he is. It's pretty obvious that Rudy is the brains of this operation and Kerik is the brawn in this politically corrupt scandal.

What has happened to America that when someone does the right thing that they should have fear for their safety, or even their family's safety? Is this the message that we should be sending that when someone does the right thing they might disappear without a trace? What happened to this guy Larry Ray? Did Kerik or some other corrupt official get rid of him for doing the right thing?

I think this should be the new theme for all Americans. "DO THE RIGHT THING". We need to embrace all people who do the right thing!!! I thank god that this guy Ray didn't think only of himself when he exposed that dirt bag for what he really is. He knew how powerful this monster was, and he did what was right anyway. Why do you think Kerik got kicked out of Saudi Arabia? It was for framing people that his bosses told him to frame.He got a couple of doctors thrown out of there strictly by framing them. This guy has no moral compass and obviously Rudy's not far ahead of him.

I hope that with Rudy making a run for the White House that people take notice of what his track record has been in his dealings with Kerik. More than likely, Kerik is not the only morally insufficient criminal that Rudy's got his hands dirty with.

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