Scott Lemieux: Man ...or Machine?

by publius

Let me join the chorus and heartily recommend Scott Lemieux's Roe series (one, two, three). It brings back old memories because he mentions an old Legal Fiction post where I laid out my own thinking on Roe. (I actually used to write about law sometimes).

I'm tied up for the moment, but I will join in on this when I can. But it's a good series -- well worth the read.

Comments

[Sebastian]

I know you aren't shocked but I'm deeply unimpressed.

First, grounding it in some sort of deep Constitutional doctrine is tough when the pretense in Griswold (and I use the word pretense because the way the pretense is immediately discarded reveals that it wasn't serious) is in the deep and abiding respect for marriage. "We deal with a right of privacy older than the Bill of Rights - older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects."

They overruled the actual history of the Constitution based on an alleged respect for an institution far older, and then summarily dismiss the reasoning less than a year later by extending it without any reference to marriage. You can't extend something that is alleged to be grounded in the thousand year tradition of marriage to individuals without revisting the original basis of the case. But that is exactly what the Supreme Court did.

To make it topical, it would be like having a first ruling which grounds the government's right to torture in the ticking bomb scenario as gravely understanding that the government has the right to protect its citizens from a clear and present danger of imminent harm. This has been the duty of all governments since well before the Constitution, and as such forms a key part of the pact between nation and citizen when extreme exigency is present because that extreme case brings the most basic compact between nation and citizen to the fore--ahead of subsidary process concerns.

Next case they say "since we have shown that the government has the right to torture in order to protect citizens from harm, it can clearly do so when they have a rational expectation that some harm at some future time may be avoided.

That is about as clear evidence as is possible for result-oriented jurisprudence without the judge merely writing "I ruled as I did, just because I say so".

Scott writes, allegedly in support of Roe that: "But that isn't the end of the analysis. The reason for this is obvious: the potential argument that the fetus is human life that the state can protect, which goes beyond the consensual behavior of Griswold (or the severe invasion of Skinner.) Indeed, I would go so far as to say that if the argument that the fetus is a human life that must be protected is accepted, Roe is clearly wrong. If a state passed a law, based on a consensus view that the fetus was life and had to be protected, and was willing to enforce these laws equitably, as I judge I would uphold such a law as constitutional however much I disagreed with the underlying moral view. "

That of course is inconsistent with Roe. Roe did not merely leave that question open so that legislatures could research the question of life beginning and then mark from that point. The judges in Roe created of whole cloth a trimester system where they summarily decided, without bothering to ground it in science or in jurisprudence, that protectable interests *could not exist* prior to the beginning of the third trimester. For no apparent reason whatsoever, they decided that the state could only protect viable fetuses after that point. They made no allowance for increased technology, and they should not have been drawing such lines in the first place. The court is neither empowered to, nor has the capability to independently research such questions. That should have been left to the legislatures. Even if you agree with where they drew the line, they shouldn't have been the ones drawing it.

His argument that the existence of a grey market makes enforcement of laws unconstitutional, is both novel and ridiculous unless you want to think that almost any law is unconstitutional. (Take almost any law whatsoever regulating doctors. There are certainly uneven applications of such regulations. That does not make regulating doctors unconstitutional. And no trying to get around it as less than a fundamental right--the doctor patient privilege has at least as valid a history as the 'right' to abort.)

Scott writes: "To me, the key is the Carolene Products standard the Supreme Court has used to evaluate civil liberties claims for several decades: namely, the idea that the Supreme Court should be especially willing to protect groups excluded from the political process and correct cases where the democratic process malfunctions."

This is compelling only if you believe that fetuses can't possibly have any rights whatsoever. Once you think they might it becomes rather obvious that never-voting fetuses might need the special protection he is talking about (which is why pro-choice advocates like Jesurgislac correctly see the need to support abortion even in the near infanticide cases of fully viable fetuses such as discussed in our last round of abortion blogging).

[Jesurgislac]

For no apparent reason whatsoever

As you surely know, since we've discussed this to death in previous threads, there are actual, biological, reality-based reasons for making a distinction between fetuses in the first two trimesters and third trimester.

His argument that the existence of a grey market makes enforcement of laws unconstitutional, is both novel and ridiculous unless you want to think that almost any law is unconstitutional.

A law that removes a person's right to something that they need makes that law impossible to enforce, as is evidenced by the fact that abortion rates around the world are not affected by legislation banning abortion.

Women need access to abortion. A legislature can ban safe legal abortion, and thus raise the maternal morbidity/mortality rate. That is, they cannot change the abortion rate: they can merely ensure that more women die or are permanently damaged.

Legislation that exists merely to make a statement that the government has a right to force women to have children against their will is certainly both immoral and pointless: legislation which has the direct effect of impairing health and life for half the population is rather worse.

[Jesurgislac]

I'm not attempting to get into an argument about the constitutionality or otherwise of abortion law: it seems to me that by the First Amendment and by the Fourteenth Amendment, it's unconstitutional to argue that the right of a woman to decide whether or not to abort ought to be taken away because it's against some religions: and certainly without the legislature deciding that it has the right to deprive women of life and liberty because they got pregnant. But that's just a textual, common-sense interpretation of what the constitution actually says: it bears no resemblance to any lawyer's reasoning. ;-) (Anti-choice laws are also impossible to enforce without violating the Fourth Amendment in various nasty ways.)

[Xeynon]

there are actual, biological, reality-based reasons for making a distinction between fetuses in the first two trimesters and third trimester.

Did you read all of Sebastian's post? There is no such as a trimester that we don't distinguish as such. It's a completely arbitrary term. Doctors don't agree what it means. Given that the idea of a trimester is not itself biological or reality-based, it's hard to see how there are "actual, biological, reality-based reasons" for making distinctions based on the term.

A law that removes a person's right to something that they need makes that law impossible to enforce, as is evidenced by the fact that abortion rates around the world are not affected by legislation banning abortion.

I don't like the word "right" here, but I'll leave that aside. If you want to argue that abortion bans are unenforceable and inhumane, you're on much stronger ground. That's not the same thing as arguing that Roe is sound jurisprudence, though.

Women need access to abortion. A legislature can ban safe legal abortion, and thus raise the maternal morbidity/mortality rate. That is, they cannot change the abortion rate: they can merely ensure that more women die or are permanently damaged.

I agree with you here. That's why as someone who is pro-choice but finds abortion deeply unsettling, I'd like to focus on policymaking which reduces the number of unwanted pregnancies. I think it's unfortunate that extremists on both sides get so caught up in their shouting matches that they're not willing to work on achieving what should be a common goal.

Legislation that exists merely to make a statement that the government has a right to force women to have children against their will is certainly both immoral and pointless:

So is legislation banning infanticide immoral and pointless? It's all a question of when you decide that a baby is a separate biological entity from its mother, and not everybody draws the line the same place you do.

legislation which has the direct effect of impairing health and life for half the population is rather worse.

Not half the population - only women who decide to have abortions. Don't be so careless with your rhetoric.

it's unconstitutional to argue that the right of a woman to decide whether or not to abort ought to be taken away because it's against some religions:

You can make a very sound argument against legal late-term abortion without any recourse whatsoever to religion. As I said, it depends on when you decide that a fetus becomes a legal person, and there's no clear-cut answer to that question, in science, law, secular philosophy, or elsewhere.

and certainly without the legislature deciding that it has the right to deprive women of life and liberty because they got pregnant. But that's just a textual, common-sense interpretation of what the constitution actually says:

Nonsense. The constitution says nothing whatsoever about abortion, nor about depriving women of life and liberty for getting pregnant.

(Anti-choice laws are also impossible to enforce without violating the Fourth Amendment in various nasty ways.)

Such as?

[Jesurgislac]

It's a completely arbitrary term.

No, it's not. Please go read some biological/scientific information about fetal development before making sweeping (and untrue) statements.

You can make a very sound argument against legal late-term abortion without any recourse whatsoever to religion.

Can you? What non-religious argument can be made that women ought to die, or suffer permanent damage to their health (or endure months of suffering in the knowledge that their fetus will die at birth) rather than allow legal late-term abortion?

Such as?

Covered in an earlier discussion on Obsidian Wings about the only country that does enforce anti-choice laws: Forensic Vagina Inspectors.

[Xeynon]

No, it's not. Please go read some biological/scientific information about fetal development before making sweeping (and untrue) statements.

From wikipedia (italics mine): Pregnancy is typically broken into three periods, or trimesters, each of about three months. While there are no hard and fast rules, these distinctions are useful in describing the changes that take place over time.

There is a generally used definition for each of the three trimesters, true (weeks 1-12, 13-27, and so on). But whether or not all the prenatal developments said to correspond with each trimester occur precisely on schedule varies with each pregnancy. Some fetuses develop to the size of a grapefruit by the 13th week, some don't. I'll concede that "completely arbitrary" was too strong a wording. But the fact remains that the trimester system does not describe invariable, hard-and-fast biological realities.

The concept of "viability outside the womb" is similarly vague - advancing technology has made fetuses viable outside the womb at ever younger and younger ages.

For someone who likes to talk about facts and being reality-based, jesurgislac, you have a disturbing tendency to 1.)not back up anything you say with any facts whatsoever, and 2.)completely ignore it when other people do present facts. At best, that's arguing in bad faith.

You can make a very sound argument against legal late-term abortion without any recourse whatsoever to religion.

Can you? What non-religious argument can be made that women ought to die, or suffer permanent damage to their health (or endure months of suffering in the knowledge that their fetus will die at birth) rather than allow legal late-term abortion?

Let me preface this by making it CRYSTAL CLEAR that I do not support inflexible abortion bans or think they're a good idea. If a woman's health or life is in danger, even a late term abortion is justified (if unfortunate).

That said, here's the argument. Let's follow the Supreme Court's lead and say a fetus becomes entitled to legal protection at the moment of viability outside the womb.
This is before the moment of natural birth, what's generally thought of as the "third trimester". Legal protection, in most societies, is defined to include protection against death inflicted by others deliberately and without due process of law. Late-term abortion is death inflicted deliberately and without due process of law. Voila.

This argument is simplistic in that it doesn't take in all the difficult gray-area cases to which you allude, such as those in which the mother's health/life are imperiled. But it's logically valid and it doesn't make recourse to any religious reasoning whatsoever.

Covered in an earlier discussion on Obsidian Wings about the only country that does enforce anti-choice laws: Forensic Vagina Inspectors.

Look, that's a horrible, we'd both agree. But to argue that one couldn't enforce a ban on abortion without resorting to such tactics is akin to arguing that one can't enforce a ban on drunk driving without systematic sobriety checks of every driver on the road. There are all sorts of measures that can be used to enforce a law, some humane, others less so. Granted, in the case of an abortion ban, only physical examinations could prove with 100% whether a pregnancy that terminated early was in fact an illegal abortion, but extremely high penalties for abortion providers, etc. could be used to encourage compliance instead.

Also, if you made physical examinations legal under a warrant, they'd be constitutional. Morally abhorrent and a gross abuse of government power, yes, but constitutional nonetheless.

Again, none of this is to say that a ban is a good idea. It's a really, really, REALLY bad idea. But ~85% of Americans agree with us on that, so it'd be unlikely to get passed even if Roe were overturned.

[Jesurgislac]

advancing technology has made fetuses viable outside the womb at ever younger and younger ages.

Actually, no. Fetuses are not viable outside the uterus. The term you're looking for is premature baby. We have discussed this extensively - and recently: you might want to go back and read some of the previous discussions. There's a good top-level article here about survival after premature birth: Premature Babies, BBC. But, an infant born at 22 weeks has about a 1% chance of leaving the hospital alive. Fewer than half the babies born at 25 weeks will leave the hospital alive, and of those that leave the hospital alive, about a quarter will die before their 6th birthday. cite Most of the survivors will have moderate to severe disabilities. The odds of survival and survival without disability go down sharply below 25 weeks.

It is common for anti-choicers to dream of "advanced technology" which can somehow replace pregnancy. But, in point of fact, while Lois McMaster Bujold and C.J.Cherryh have both handwaved uterine substitutes into existence in order to write about societies in which they exist - the only way, in this day and age, to create a healthy baby from a fertilised egg is for a woman to provide the necessary labour and resources - the use of her body - for nine months.

To argue that a woman is not entitled to decide for herself whether she will provide that labor and the use of her body, you have to come up with a religious argument or a legal construction that sets women apart as a class of people from whom work and bodily use can be demanded without their consent.

Let's follow the Supreme Court's lead and say a fetus becomes entitled to legal protection at the moment of viability outside the womb.
This is before the moment of natural birth, what's generally thought of as the "third trimester". Legal protection, in most societies, is defined to include protection against death inflicted by others deliberately and without due process of law. Late-term abortion is death inflicted deliberately and without due process of law.

Certiainly, if you like, you can argue that. It's not a complete argument, though, because you have to explain how the Supreme Court could rule that women are not included in protection against death inflicted by others deliberately and without due process of law. I await your argument for this without much interest.

[Xeynon]

The odds of survival and survival without disability go down sharply below 25 weeks.

This is true.

the only way, in this day and age, to create a healthy baby from a fertilised egg is for a woman to provide the necessary labour and resources - the use of her body - for nine months.

This, however, is not. With proper care, survival rates for babies born at 32-33 weeks - 8 weeks early - are "extremely high":

http://www.babyzone.com/askanexpert/answer.asp?qid=14940

To argue that a woman is not entitled to

legal construction that sets women apart as a class of people from whom work and bodily use can be demanded without their consent.

We have such a legal construction. It's called "custodial duty". The state DOES demand labor and bodily use from women (and men, for that matter) in insisting that they take care of their children post partem and declaring them negligent if they don't. The question of consent is not even an issue in this case. Pro-life/pro-choice debates are really just a debate over whether the state's power to insist on that holds for pre-partem children as well. There are reasonable arguments on both sides of that debate.

Certiainly, if you like, you can argue that. It's not a complete argument, though, because you have to explain how the Supreme Court could rule that women are not included in protection against death inflicted by others deliberately and without due process of law.

You've got a point. I will agree that were abortion outlawed, in such cases the law would put the woman's life in undue danger - hence my opposition to any sort of ban on late term abortions that does not make exceptions to protect the life of the mother.

[CharleyCarp]

No one will be surprised if I come in on the side of Roe/Casey. Were trimesters arbitrary in making bright lines to denote gradual changes? Yes. What of it: so is the age of majority, voting age, the statute of limitations, and a zillion over ways in which the law makes bright lines for the convenience of human use. And law is for human use.

I'm comfortable with the notion of an evolving balance between rights of woman/fetus. A substantial majority agrees with me. There are implacable extremists at both ends, to be sure, but no purpose is served (a) engaging them or (b) pretending that people who aren't extremists actually are. Anyway, we use balancing tests all the time in constitutional law, and employ absolutes nearly never. Pretty much everyone is OK with that in most circumstances, save a pet obsession or two.

Conservatives, whether judicial or otherwise, have (imo) lost the right to whine about emanations from penumbras, much less whole cloth, by the embrace of a ridiculously overbroad construction of the Commander-in-Chief Clause. Well, they can whine, but shouldn't expect to be taken seriously.

[Jesurgislac]

The state DOES demand labor and bodily use from women (and men, for that matter) in insisting that they take care of their children post partem and declaring them negligent if they don't.

Once a baby is born, the baby can survive independently of the mother. Otherwise, adoption, fostering, and daycare would be impossible. Taking care of a baby after the baby is born is voluntary, in a very broad sense: biology does not require that the person who provides care is the mother. Trying to equate childcare provided after birth with the woman's bodily work during pregnancy is not based on biological realities. I say again: go, read.

[Lurker]

...from whom work and bodily use can be demanded without their consent

In fact, no one here seems to be proposing a ban for abortions in case the pregnancy has started in a rape or in other sexual crimes. If the woman has voluntarily engaged in sex, she has also accepted the chance, however slight, to become pregnant. Similarly, a man who engages in sex accepts the chance that a child results from copulation. The man also has in such case the duty to support the child, regardless of his wishes. So, the women are not demanded any special "work or bodily use".

After all, the state has very far-reaching powers to demand "work or bodily use" from its citizens and residents. For example, in Finland, any fire department unit chief may order any physically fit person to perform work necessary for a rescue operation, even if such work may endager their personal safety and even if such person has pressing business elsewhere. Similarly, any person has the basic duty to lend whatever help they can to a person in immediate danger of life or limb, on the pain of two years in prison. If you accept such basic duties that a person has towards total strangers (like any good Christian should), then the duties of men and women towards their own offspring are completely natural.

[Jesurgislac]

By the way, we discussed, at some length, fairly recently, what would happen if the law permitted a doctor to induce labor or perform a c-section on a pregnant woman against her will, in order to "save the fetus": I am really not willing to go through all those arguments again. Suggest you find the discussion and read it.

[Jesurgislac]

Lurker: If the woman has voluntarily engaged in sex, she has also accepted the chance, however slight, to become pregnant.

Self-evidently, since so many abortions are a result of unplanned pregnancy, women do not "accept the chance": they reject it.

Self-evidently, too, if a government requires that a woman who is pregnant is not allowed to decide whether to terminate or continue the pregnancy, the government is attempting to force women to have babies against their will. A woman who has an abortion has not "had a baby".

[ThirdGorchBro]

Despite my own (more or less lapsed) Christian faith and my distaste for the mechanics of abortion, it was that Forensic Vagina Inspectors post which finally tipped me over to the pro-choice side. If abortion is evil, it's certainly the lesser of two evils.

[Lurker]

Jes,

Actually, I support the woman's right to choose abortion in limited circumstances, and until the fetus is viable outside the womb. I just liked to point out that in my opinion, the government does have the right to force women to carry out her pregnancy. If the pregnancy has continued until the stage where the fetus would survive as a baby with current medical care available, it is a murder to abort the pregnancy.

The question is not whether the state has the right to require the women to give birth when they have voluntarily made (a perhaps mistaken) decision to copulate. The question is how we can reduce the total of social ills resulting from peoples' mistakes to a minimum. Indeed, for this purpose, giving women a chance to have a state-funded, safe, easily available abortion as early as possible is a good way to reduce mortality. However, the focus should not be in abortions but in giving the teens good health education (not abstinence-, but prudence-based) already before they reach puberty. Any youngster at the age of 11 should know at least four ways to prevent unwanted pregnancies and be able to prevent and to self-detect the most typical sexually transmitted diseases.

[novakant]

since so many abortions are a result of unplanned pregnancy, women do not "accept the chance": they reject it.

unless they are wholly uneducated about basic biological facts, they certainly accept the fact that there is a chance that they might become pregnant, just as men accept the fact that they might conceive a child; how they deal with it if it comes to that is another matter

[Xeynon]

Taking care of a baby after the baby is born is voluntary, in a very broad sense:

Yes, but not in a legal sense - unless a woman wants to legally abjure herself of that responsibility by putting the baby up for adoption, or be prosecuted for child abuse.

biology does not require that the person who provides care is the mother.

In the age of in vitro fertilization and surrogate motherhood, biology doesn't require that the person doing the bodily work during the pregnancy be the actual mother either. Not to mention the previously mentioned fact that premature babies can be kept alive in incubators, etc. which are essentially artificial wombs.

You're appealing to biology for a sense of certainty which it just doesn't provide.

[Turbulence]

Xeynon,

Incubators are not artificial wombs, not in any sense. At birth, regardless of when it happens, irreversible physiological changes occur. The biology of a fetus inside the womb and outside the womb differ significantly. In any event, we don't have anything like the technology needed to provide a living being with the services that a womb provides.

Technology isn't magic. We are quite limited. This is not going to change anytime soon.

[Sebastian]

"What of it: so is the age of majority, voting age, the statute of limitations, and a zillion over ways in which the law makes bright lines for the convenience of human use."

Those bright lines are made either by legislatures or Constitutional amendment--which is to say democratic processes.

That isn't the Court drawing them out of the air. Different branches of government are empowered to do different things.

[Anarch]

In fact, no one here seems to be proposing a ban for abortions in case the pregnancy has started in a rape or in other sexual crimes.

Why not, if the life of the fetus is paramount?

[Anarch]

Sebastian, I know you've said similar things before but I'm afraid I can't remember: do you disapprove of the result of Griswold or not? That is, would you disapprove of the SCOTUS knocking down anticontraceptive laws regardless of its reasoning, or is there a reason you find colorable that they simply didn't make?

[magistra]

I'm in favour of abortion being legal, but I'm not convinced that you can argue for it sensibly on the basis of a woman's absolute autonomy over her own body. Most societies impose some other legal restrictions on what an individual does with their own body, even when pregnancy or harm to another person's rights aren't involved. Unless you're an extreme libertarian and also believe in the unrestricted right of adults to take whatever drugs they choose, sell one (or both) kidneys at will, engage in fights to the deaths etc, then you have to accept the moral/legal validity of some restrictions on people's bodily autonomy. The argument then becomes what the limits of such restrictions should be.

[Lurker]

Anarch,

I dont think that the life of any human being is paramount. Not mine, not yours, and much less the life that a fetus has. To me, the paramount values are the greatest good to the society as a whole, and the dignity of every human being and other creation. The fetus is not a human being, but it must have some dignity as a potential human. After all, we even honour our dead, criminalizing the maltreatment of dead human bodies, which have much less potential to become living humans again. On the other hand, ending unnecessary medical treatment of an incurably sick person is the right, dignified way to act, even if the death could be kept at bay for some more time with more intensive treatment.

Life is valuable, but not paramount. We must accept that we have two competing rights here. One is the self-determination of the pregnant woman. The other is the right of the fetus to fulfil its potential as a human. Neither right is absolute. The importance of the latter right increases as the fetus grows, and in my view, at some point of time, it surpasses the former right.

In my opinion, a fetus that could survive outside the womb with proper care has earned this right by growing to its size. It may even have some sentience and therefore, a (very undeveloped) personality. The physiological changes we've undergone at birth did not establish our sentience. The newborn baby is still rather undeveloped, and requires a long way to reach full humanity. Yet it enjoys all the human rights. On the other hand, a fertilized egg is a couple of undifferentiated cells without any thought processes, and much more comparable to a non-sentient cadaver than a baby. With such thing, we have much more choice.

[Sebastian Holsclaw]

Anarch, which result? The result of people having access to contraception is a great one and I agree with it. The pretense that it is a constitutional question is much less convincing.

I'm not aware of a good alternative *constitutional* ground for Griswold, and I think the sanctity of marriage ground is thin. The 'privacy' grounds is a complete crock from a constitutional perspective--any logical extension of that would lead to drug laws and all sorts of other things being *unconstitutional*.

I think restricting contraception is uncommonly stupid. I think drug laws are uncommonly stupid. But neither is *unconstitutional* so far as I can tell. The constitution doesn't fix all potentially stupid laws. And if you have an uncommonly stupid law that isn't currently outlawed there is the amendment process, which contrary to the whining of progressives actually used to be a vital and real process before we started expecting the Supreme Court to do it all for us.

But even if you accept the really thin "sanctity of marriage" argument in Griswold, you can't two-step that into a general indivdual right by saying that due process or equal protection requires that all rights inhere to individuals without undermining the "sanctity of marriage" argument that got you Griswold in the first place.

Essentially they said that while a right to have contraception clearly isn't in the Constitution, the millenium-long tradition of the sanctity of the marriage bond between a man and a woman trumps even the constitution. (In a more honest world they would have just said that it has some sort of natural law component because of marriage). They then almost immediately converted that into an individual right with just a little hand waving. But if that doctrine were true, there is no reason to believe that such a constitutional right existed in the first place. There is no 'millenia-long' sanctity to the right of contraception to appeal to.

That is why I used the torture analogy in the first comment. The ticking bomb scenario is compelling to a lot of people (I suspect even a clear majority of people). If you created a doctrine in support of constitutionally permitted torture (circumventing the 8th amendment by saying it isn’t ‘punishment’ would be easy in that context) by accepting the ticking bomb scenario and appealing to a long held understanding of how the state is supposed to protect the general population in emergency situations, that might be vaguely acceptable—though I wouldn’t buy it. If you then immediately two-stepped that into a general right to torture without limitation because the government has a general duty to protect the populace from the possibility of terrorist attacks, it doesn’t make sense because you are creating a general power out of something that allegedly existed only due to emergency appeals to pre-constitutional understandings.

Griswold is probably garbage, but it might just barely be acceptable because of the appeal to a general understanding of marriage. But trying to immediately extend it beyond that makes me suspect it is just garbage jurisprudence.

[Lurker]

As a citizens of European Union, I do feel that there are things that are better left for the several states to decide by themselves. Abortion and contraception are some of these. I trust much more that the politicians of my own country make decisions suiting to the mentality of Finnish peopele better than the politicians at Brussels. After all, some day there might be a coalition of value-conservatives in power there, outlawing abortion and contraception. On the other hand, if the great majority of Poles wants to ban abortion, why not let them do that? It's their country that bears the consequences. Other Europeans are not hurt, if they do such stupid things.

[Jesurgislac]

Lurker: On the other hand, if the great majority of Poles wants to ban abortion, why not let them do that? It's their country that bears the consequences.

If the great majority of white people in the US want to enslave black Americans, why not let them do that? It's their country that bears the consequences.

Similar moral reasoning, no?

Countries should not be allowed to ban legal abortion for the same reason as they should not be allowed to institute legal slavery. Slavery is wrong: forcing women to bear children against their will is wrong.

[Jesurgislac]

Magistra: Unless you're an extreme libertarian and also believe in the unrestricted right of adults to take whatever drugs they choose, sell one (or both) kidneys at will, engage in fights to the deaths etc, then you have to accept the moral/legal validity of some restrictions on people's bodily autonomy.

All of the examples you offer are of people being restricted from harming themselves. The equivalent would be arguing that the state has a moral/legal right to force women to have abortions when pregnancy will definitely kill them or permanently damage them.

Arguing that abortion must be restricted because only an extreme libertarian would claim that a patient's right to ask a doctor to perform a medical or surgical procedure to improve their health or save their life must be restricted. Apparently only an extreme libertarian would argue that a person has no right to make beneficial decisions about her own health.

[Sebastian Holsclaw]

"If the great majority of white people in the US want to enslave black Americans, why not let them do that?"

This argument isn't so obviously on your side as you seem to think. It correctly presupposes the personhood of black Americans and slaveowners incorrectly denied that personhood.

Abortion debates turn largely on the question of the personhood of the fetus. Here, you are the one denying the personhood of even very advanced or fully viable fetuses.

In the analogy, you're the slaveowner.

[Francis]

As usual with any discussion about Roe and abortion in this country, the lawyers (self included) muck up the conversation because (to insert my favorite hobbyhorse) we conflate substance with procedure

We have two clear and distinct issues here:

a. Substantive. What is the "correct" outcome for abortion law in this country?

b. Procedural. What is the legal hook for obtaining that outcome?

Then we have difficult issues that blend the two. For example, despite the language of the 14th Amendment, many pro-lifers insists that fetuses are legally "persons" at the moment of conception. Since persons have 5th Amendment rights not to be deprived of life without due process, what appears to be a process argument (the definition of personhood) is in reality a substantive argument (no abortions ever).

Personally, I've never seen a real problem with the language of the 5th Amendment barring over-inclusive abortion prevention statutes. Pregnancy, both at the adoption of the Bill of Rights and at the adoption of the 14th Amendment, had a significant risk of death. The 5th Amendment says that no person may be deprived of life without due process. What process was being given to the measurable percentage of women who died as a result of an unwanted pregnancy carried to term?

Forced pregnancy, then and now, would really limit a woman's exercise of her liberty interest. The 5th Amendment also says that no person may be deprived of liberty without due process. What process is being given to a woman today forced against her will to carry an unwanted fetus to term?

Any minute now, Sebastian is going to point out that health-of-the-mother exception allows for even very late term abortions due solely to alleged impacts to the mental health of the mother.

There will be two responses: Jes or another will point out that late term abortions are extremely rare. I or another will point out that the pro-life movement doesn't even try to get laws passed that would constrain a doctor's ability to rely on health exceptions. Seb will argue that the data on late term abortions is missing because pro-choicers won't let states collect it and that pro-choicers should be the ones reaching across the line to people like him who only want to prevent the [vast / minute] number of late term abortions that should not have been done as to allow a baby to be born.

And around we go again.

Question for the pro-life community: Assume McCain gets elected and Roe falls, what does your world look like? Given that even Scalia voted for the majority in Raich, have you come to accept that the courts will uphold attempts to federalize abortion law? Then what? Civil disobedience? Or will rich {white} women have their little weekenders in Montreal while everyone else be forced to submit to the new federal interior police force?

Francis

ps: CharleyCarp, long time no see you comment. How's Gitmo?

[Lurker]

Jes,

I accept that there live other Europeans who have drastically different set of values than I do. Anyhow, we manage to live in the same Union, profiting each other. If some member countries start to enforce their values on others, we'll soon be back in the quagmire of the world wars. Although I do not accept the Polish abortion legislation, I do warmly accept their right to enact such legislation. It is the Poles' right to decide what is right and what is wrong (inside the sovereignity they have left from the European Union and the European human rights treaties). On the subject of reproduction, we have agreed to disagree when these treaties have been enacted. This way, we have a much better-working Union. I'd say that you'd be also better off leaving this business to the several states.

[tgirsch]

Lurker:
If the woman has voluntarily engaged in sex, she has also accepted the chance, however slight, to become pregnant. ... The man also has in such case the duty to support the child, regardless of his wishes. So, the women are not demanded any special "work or bodily use".

This only serves to underscore Scott's point about the purpose of abortion laws. If the purpose of the law were to protect the fetus (rather than to legislate the behavior of the woman), then there would be no reason to draft exceptions for things like rape and incest. Those crimes, however horrible, are not the resulting fetus' fault, and therefore whatever rights that fetus has shouldn't be contingent upon how it was conceived.

In my opinion, a fetus that could survive outside the womb with proper care has earned this right by growing to its size.

While they might not accept your particular terminology, there are very few who would argue against this. But let's remember that the number of abortions that take place after such time as the fetus "could survive outside the womb with proper care" is a mere fraction of a percent. Viability starts at about 32-33 weeks gestational age, if another commenter's numbers are accurate. Over 99% of abortions in the US are obtained at 21 weeks of gestational age or earlier.

Francis:

Nice summation. :)

[Jesurgislac]

I accept that there live other Europeans who have drastically different set of values than I do.

So do I. I just don't want them imposing their drastically different set of values on other people. Let them live as they please: no one who thinks he would rather die than have an abortion should be forced to terminate his pregnancy against his will.

It is the Poles' right to decide what is right and what is wrong

I do not accept that a country has a right to legislate away minority rights by majority vote. It is one of the basic principles that I think the people who wrote the US Constitution got absolutely right. The people who need an abortion right now are, at any point, always a minority in any country. The majority ought not to be allowed to legislate away that right from the people who need it just because they can outvote the minority.

That is, not at all incidentally, a basic principle that underpins most of the legislation of European law on equality and human rights.

On the subject of reproduction, we have agreed to disagree when these treaties have been enacted.

Until a case reaches the European Court of Human Rights and they decide that no country has a right to force their citizens to produce babies against their will. So far that hasn't happened, but if Poland continues its headstrong course in opposition to the EU, I suspect that it will. There's a price to be paid for EU membership, and part of that price is subscribing to equality and human rights for all citizens.

[Sebastian Holsclaw]

"There's a price to be paid for EU membership, and part of that price is subscribing to equality and human rights for all citizens."

But death to even viable fetuses, right?

[Anarch]

which contrary to the whining of progressives actually used to be a vital and real process before we started expecting the Supreme Court to do it all for us.

What's your take on the ERA, then?

[Anarch]

Sorry, that was horribly vague: how do you fit the struggle over the ERA into the paradigm you just elaborated, e.g. "the whining of progressives", the "vital and real process" and the equal rights issues raised therein?

[Francis]

But death to even viable fetuses, right?

[okay, the first part of my prediction came true. Now waiting for counterbattery fire. (an ex-marine is visiting the office today; military expressions are whizzing around.)]

but, but, but, the evidence suggests that truly post-viability abortions are vanishingly rare and used only in dire situations.

[and here comes the argument that pro-choicers prevent the collection of meaningful evidence ...]

[jayann]

no one in Poland has yet brought the right kind of case to the ECHR, perhaps, but this is a beginning

But death to even viable fetuses, right?

perhaps you should look at abortion laws in Europe (hint: they vary)

[Sebastian Holsclaw]

Thanks for the clarification, I didn't have any idea what your first question was.

The ERA fits just fine into my understanding.

The right to vote went through the amendment process just fine.

The ERA was strongly resisted by the proponents of the New Deal, who saw it as threatening to their progressive coalition.

By the time the ERA was seriously considered in the 1970s, we were already getting the Court to create things which made the ERA look unneeded and sapped any large push for an amendment. Furthermore Congress and many state legislatures had already taken action in that area.

(Also there should be a privileges and immunities clause to proect citizens in lots of ways which would help ERA-style issues, but the reason that clause of the constitution has been written out of existance is a topic for another day).

[Sebastian Holsclaw]

"perhaps you should look at abortion laws in Europe (hint: they vary)"

Jesurgislac isn't a proponent of varying abortion laws. She thinks that they are a matter of human rights. She also thinks that they should be allowed even on fully viable fetuses. So I'm not sure what you're trying to say to me here.

[Jesurgislac]

Sebastian: But death to even viable fetuses, right?

But a woman's right to choose prevails over legislative whims and fancies, yes. I mean, we've been through this: where abortion is made illegal, maternal morbidity and mortality rises to levels unacceptable to common humanity, and certainly unacceptable to people who want viable fetuses to survive: if a pregnant woman dies, the fetus she carries dies too. And since making abortion illegal will not reduce the abortion rate, no one who cares about fetuses would actually oppose free access to safe legal abortion.

In fact, it's practically a marker: people who genuinely care about viable fetuses care about pregnant women, mothers, and children. People who only care about punishing women for having sex focus on stopping women from getting access to safe legal abortion.

[Sebastian]

"And since making abortion illegal will not reduce the abortion rate, no one who cares about fetuses would actually oppose free access to safe legal abortion."

You're being imprecise. We are talking about viable fetuses, not all abortions.

And your formulation makes no sense anyway. It says "no one who cares about fetuses would actually oppose free access to killing them" which is an illogical proposition on its face--no matter what you think about the personhood of a fetus.

[Francis]

yup. pretty much going as expected.

Sebastian, please point out the effort in the Californian Republican party to pass a bill prohibiting abortions post 30 weeks unless the physical health of the mother prevents carrying the fetus to term.

You may be tremendously concerned about post-viability pre-natal infanticide. But until I start seeing Assembly Bill numbers with lots of co-sponsors, I'm pretty comfortable in assuming that your political constituency for that issue consists basically of you.

[Jesurgislac]

No one who cares about fetuses would want pregnant women to die or be permanently damaged.

As restricting safe legal access to abortion means that more pregnant women will die or be permanently damaged, without affecting the abortion rate, it follows that anyone who cares about viable fetuses will oppose restricting safe legal access to abortion.

I'm not seeing where the illogic you perceive is. You do know that the only known way to safeguard a viable fetus from conception to birth is to safeguard the health and safety of pregnant women - and providing access to safe legal abortion is a necessary part of that.

It's possible it sounds illogical to you because it doesn't occur to you to consider that fetuses don't hang in a shower of golden light, but grow in a woman's uterus, nourished by her blood, and if she dies, so does the fetus. But so it is.

[Sebastian Holsclaw]

"But until I start seeing Assembly Bill numbers with lots of co-sponsors, I'm pretty comfortable in assuming that your political constituency for that issue consists basically of you."

Even if that were true, do you have a point you would like to share? Or do you just want to make comments about me personally? I'd be happy to share things for you to talk about if you'd like. Do you know I'm losing my hair? One of my close friends is dying of pancreatic cancer? Anything else?

[trilobite]

If the purpose of the law were to protect the fetus (rather than to legislate the behavior of the woman), then there would be no reason to draft exceptions for things like rape and incest. Those crimes, however horrible, are not the resulting fetus' fault, and therefore whatever rights that fetus has shouldn't be contingent upon how it was conceived.

But the argument is not that the fetus's rights are contingent upon how it was conceived. The argument is that the fetus's right is weighed against the mother's right to bodily autonomy and/or [lower risk to] life -- and that right may not exist where she assumed the risk. The fetus's right does not change, the mother's does. So an exception for rape and incest (which is generally statutory rape in this context), far from being hypocritical, actually reflects a nuanced view that acknowledges that the mother has real rights inconsistent with the fetus's right, but presumes that she has waived those rights where she voluntarily had sex. I hate to say it, but that's actually pretty consistent with the way we treat parental responsibility generally.

[jayann]

I'm not sure what you're trying to say to me here.

I took your death to even viable fetuses as a comment on Jesurgislac's

"There's a price to be paid for EU membership, and part of that price is subscribing to equality and human rights for all citizens."

and moreover (and here I accept I probably misunderstood) as a comment on Europe. Now there is indeed a 'human rights/equality price' to be paid for EU membership, but as the case to which I linked shows, the price does not as yet include uniform abortion laws. Nor, I think, will it.

Incidentally the Court ruled on privacy grounds; the European Convention does provide for a privacy right, but it is, of course, not an unqualified one.

[trilobite]

xenyon, you are much too optimistic about whether abortion would survive Roe. If the current Court overturns Roe, it will likely be on the theory that the fetus is a person with 14th Amendment rights. If so, only a threat to the life of the mother could possibly override that right, and there would probably have to be some kind of judicial process to establish the threat. That ruling would end abortion in nearly all cases -- and it would not be susceptible to vote, short of amending the Constitution.

I think we pro-choicers need to focus on defining personhood so this does not happen. The anti-abortion view that personhood begins at conception or even fertilization is, IMHO, stupid. It has no scientific basis, nor even a strong biblical one (anti-abortionists like to point to a poetic passage in Psalms, but they ignore the far more telling devaluation of the life of a fetus in Exodus). Individuation begins that early, or soon after in the case of identical twins, but so what, my cheek cells have my individual genetic code and they're not people. My own view is that we can draw the line at any convenient point of development up to the development of a moral sense (i.e., well after birth), and the best way to decide where to draw the line is by majority vote -- which will basically depend on some combination of religious belief and anthropomorphization, which is fine.

But the anti-abortionists have had their say on this issue almost unopposed for a long time, and it has become common wisdom that the soul is joined to the body at conception. I see no need for the hypothesis of the soul, but it seems far more reasonable to suppose that if G-d gives us souls, S/He does not do so until there is enough brain function for the soul to manifest itself in thought and action. Especially considering the number of fertilized eggs that fail to implant, and the number of conceptions that are lost before the brain develops. Unfortunately, I don't know of any religious leaders who take that view, much less care passionately enough about it to make it a cause.

[Sebastian Holsclaw]

"I took your death to even viable fetuses as a comment on Jesurgislac's

"There's a price to be paid for EU membership, and part of that price is subscribing to equality and human rights for all citizens.""

That is correct. But her version of "equality and human rights for all citizens" includes the mandate that women must be permitted to abort even viable fetuses.

Trilobite: "I think we pro-choicers need to focus on defining personhood so this does not happen... My own view is that we can draw the line at any convenient point of development up to the development of a moral sense (i.e., well after birth), and the best way to decide where to draw the line is by majority vote -- which will basically depend on some combination of religious belief and anthropomorphization, which is fine."

As to "well after birth", I agree that the logic of aborting late-term fetuses could easily be applied to not bothering with personhood for babies. But YIKES!

I'm only heartened by my belief that very few people would agree with you about the beginning of personhood actually being that late, so a majority ruling on that would tend to put it at some late period of the pregnancy.

[tgirsch]

Trilobite:

I see your point, but it still presumes that "having consensual sex" equates to "volunteering to become pregnant," and I don't believe that follows. If we were really getting that nuanced about it, then whether or not the couple attempted any sort of birth control (and what sort) would be relevant to whether or not an abortion is allowable.

There's an easier explanation, though: It's that the anti-abortion movement only accepts rape/incest/health exemptions because they have to; that is, by and large they would much rather have a ban without such protections/exemptions. Based on previous court rulings, however, these exemptions are viewed by them as a "necessary evil," and since they know that these exemptions likely account for only a very small percentage of abortions anyway, they're willing to live with them.

[tgirsch]

Sebastian:
I'm only heartened by my belief that very few people would agree with you about the beginning of personhood actually being that late, so a majority ruling on that would tend to put it at some late period of the pregnancy.

I saw someone posit once that we define the beginning of life in much the same way that we define the end of it, based on the presence (or lack) of brain activity in the prefrontal lobe. I'm not sure where that would put the line in the beginning, but I'm pretty sure it would be pretty late into the pregnancy, yet before birth. Would that sort of marker be acceptable?

[Scot t Lemieux]

His argument that the existence of a grey market makes enforcement of laws unconstitutional, is both novel and ridiculous unless you want to think that almost any law is unconstitutional. (Take almost any law whatsoever regulating doctors. There are certainly uneven applications of such regulations.

Except, of course, that we're not talking about mere uneven enforcement. We're talking about a de facto exemption for a class of people. This is, in fact, very unusual. And it's particularly important in this case because the ludicrously arbitrary enforcement of aboriton laws is completely incommensurate with the alleged state objective, as is the complete exclusion of women from punishment. Wealthy people don't have a de facto exemption from laws banning assault, let alone first degree murder. Moreover, there's nothing remotely "novel" about the argument unless Yick Wo has been recently overturned by the Roberts Court and I missed it. You seem to be arguing that the equal protection clause has no content at all.

Granted, I would prefer a Morgentaler-type decision that left open the theoretical possibility that the tiny number of people willing to act consistently with the premise that the fetus is comparable to a human person could get power and pass and enforce laws accordingly. But in practice, it's irrelevant: 1)that's not going to happen, and 2)in such a radically different social context Roe would be overturned anyway.

[Gary Farber]

If we draw the line at forbidding termination of [chose-your-preferred-noun]s at up to "development of a moral sense," then there are an awful lot of folks out there in the advertising business, and a good number of other industries and persuasions, that society might benefit from aborting as soon as possible.

[Jesurgislac]

But her version of "equality and human rights for all citizens" includes the mandate that women must be permitted to abort even viable fetuses.

Or, put another way: my version of equality and human rights for all citizens includes the mandate that women must not be forced through pregnancy and childbirth against their will.

[Francis]

and I have friends with autistic kids, who are heading into divorce and I'm about 20 lbs overweight.

the point, since you seem to have missed it, is that you raise an enormous tempest in a teapot, when the teapot is itself in a much larger tempest.

You never answer the question of the expected consequences of achieving your legal goal, largely because I think you recognize that the consequences could be very disruptive to our democracy.

Roe falls. How? Does the court find that fetuses are persons? Or (more likely) does the court find that the federal constitution cannot bar a state statute / constitutional amendment which states that the State has the power to prevent all / some abortions. OK, then what?

1. There will be a massive attempt to adopt federal law that conforms to that state law.

2. Poor women who live in that state will notice that the rich women whose houses they clean are suddenly taking many more weekenders to California or (following successful passage of federal laws) Montreal.

3. Poor women who live in that state will not be able to get abortions. Likely consequences include a massive increase in unwanted children, illegal abortions, civil disobedience, family violence and violence against newborns. Hooray.

We can also expect legal attacks on family planning / IVF facilities and stem cell research.

All of this based on a very questionable assumption that (a) post-viability abortions actually occur and (b) it is possible to prevent them.

Based on the rhetoric out of about 90% of the pro-life community, there is no consistent underlying philosophy, either legal or moral. If personhood exists at fertilization, then all abortions except when the life of the mother is truly at risk must be barred. No rape exception, no incest exception. Many kinds of birth control become illegal, as does any kind of family planning which creates multiple embryos (ie, the standard procedure).

When these consequences are raised, somehow the pro-life community manages to find excuses. Which then creates for us pro-choicers the impression that the vast majority of the pro-life community is really interested in controlling women's sexuality.

A legally defensible argument exists that a State develops a strong interest in regulating the availability of abortion at the point when a strong majority of fetuses would be viable without adverse consequences or extraordinary measures. This seems to be your position. Oddly enough, it's also the position in Roe.

You harp time and again about the way us meany pro-choicers have expanded the health exception to make the regulation of post-viability abortions impossible. You berate us for not using the legislative process 30 years ago. And you don't seem to see the contradiction between those positions.

You don't like abortion law in California? Get it changed through the legislative process. Hell, circulate an initiative. That way you don't even need a legislator to carry a bill.

But if you're going to put your views out there, don't get grouchy when you get picked on. It's unbecoming of you.

[Sebastian Holsclaw]

Francis, what are you talking about?

You can't logically argue that late term abortions effectively do not exist AND that making real bans on late term abortions would have all these horrific social consequences that you seem to think they would have.

Who are all these poor women who aren't having late term abortions now that are going to be impacted so negatively?

How are they going to see hundreds or thousands of rich white women fleeing the state or country to have elective late term abortions that you say never happen?

How do you think you can simultaneously claim that something never happens and that banning it will cause massive social unrest for the people who *need* to have the thing that never happens?

The policies I want are a ban on late term abortions (to be negotiated but say around 6 or 7 months) with only a medical exception for a noticeable increase in risk (to be negotiated but say 5% or more) of serious PHYSICAL harm to the mother or of very profound damage to the fetus (no late term cleft palate, dwarfism or Down's syndrome abortions). I would want a transparent system for reviewing those that fall under the medical necessity exception. I envision it involving say two doctors who are not involved in the abortion and an externally auditable system with a well defined paper trail of medical records.

"But if you're going to put your views out there, don't get grouchy when you get picked on."

I don't mind when you pick on my VIEWS. I get annoyed when you pretend I have some sort of direct voice in any legislature and that if I don't, you can be dismissive.

[Josh]

The policies I want are a ban on late term abortions (to be negotiated but say around 6 or 7 months) with only a medical exception for a noticeable increase in risk (to be negotiated but say 5% or more)

What makes you think that medicine is precise enough to actually measure a 5% increase in risk?

I won't speak for Francis, but frankly everything I've seen you post on this subject has seemed rather blind to the attitudes of the people who are on your side on this one, Sebastian. I believe you when you outline your preferred policies; but unfortunately I (and I suspect a lot of other people) don't believe that the rest of the anti-abortion side is willing to stop where you are.

[novakant]

Good god, can we get a grip:

87% of abortions in both England/Wales and the US were performed at 12 weeks or less. Shifting the debate to the remaining 13% (of which another few % will be uncontroversial cases of rape / incest / health endangered) is simply not very useful.

[Francis]

Dude, the whole point of you holding such a minority view is that if Roe falls, States will not be adopting such narrow laws. Much broader restrictions (see South Dakota) will be enacted.

Also, no case law prevents your position from becoming law in California. What prevents your view from passing is that the strongly Democratic Assembly would probably walk over hot coals than take on any abortion legislation.

which is why I encourage you to go the initiative route.

[trilobite]

tgirsch: "assuming the risk" is not quite the same as "volunteering" for the consequences if the risk comes to pass. We don't go skiing on the assumption that we will fall and break our necks, but (unless there's some other factor involved) the skier can't sue the resort after he does fall and break his neck. I wouldn't say he volunteered to break his neck, but I would say he assumed some risk it would happen.

Everybody knows that sex can cause babies. It's not obvious that the use of birth control should change the basic moral calculation: everyone also knows that birth control sometimes fails (and a lot of birth control failures are actually human error in use, which adds a negligence element to the question). It lowers the risk considerably, but the possible consequences are the same. You can walk down the street, stumble on the curb, and slip a disc. Does that mean the curb was too dangerous and you should be able to make the city or homeowner pay for your medical care? Other things being equal, no -- you just hit the jackpot, but that's life. If the fetus is a person, then it is a minor, and its parents can't evade responsibility just because they reasonably calculated the odds. Somebody has to be responsible, and small though their moral contribution to the event may have been, it was larger than anyone else's.

That's why I say the key is that the fetus is not a person.

As for the reasoning of the anti-abortion movement, I'm not a mindreader. But I'm less concerned with what the movement's members think than with what the legislatures think -- and if the movement finds it cannot convince most legislators and their constituents not to make an exception for rape/incest, then why should that be? Why do majorities very consistently draw the line there? I suggest that it is because, whether they think it through or go on intuition, most people see a difference in the mother's rights. IOW, most people are more sensitive to the nuances than we give them credit for. I find that a rather cheering thought.

[Sebastian Holsclaw]

"Dude, the whole point of you holding such a minority view is that if Roe falls, States will not be adopting such narrow laws. Much broader restrictions (see South Dakota) will be enacted."

When you say states do you mean that many will or that it is possible that some will? It is certainly possible that much stricter restrictions than I am advocating will be passed in lots of states, but it is unlikely when the laws are more than symbolic.

And that has nothing whatsoever to do with the fundamental illegitimacy of Roe as a constitutional issue. The fact is that the Constitution does not mandate your preferred policy outcomes or mine. Policy outcomes like that are properly determined in legislatures. If you want them to be determined by the Constitution you need to use Constitutional amendments.

And what makes me responsible for every possible pro-life view? Do I hold you responsible for the essentially infanticide-is-ok-if-the-mother-chooses view that Jesurgislac holds? I'm responsible for my views. If I'm arguing with a ridiculous pro-lifer you'll see a different emphasis. As it is here, I only argue with ridiculous pro-choicers.

[trilobite]

novakant, 10% of abortions is still a lot of abortions. If they are people when aborted, that's an awful lot of murders. So the discussion is worth having, even if it's "only" 10% or so.

Sebastian,
I agree that the logic of aborting late-term fetuses could easily be applied to not bothering with personhood for babies. But YIKES!

Well, yeah, me too. But a lot of societies historically have considered infanticide fine -- and IIRC, the medieval Catholic Church had a doctrine that ensoulment occurred 40 days after birth, b/c that gave a priest riding circuit a chance to get to the village and baptize the baby. I don't know if that had any consequences in lay criminal law, but I wouldn't be surprised.

I'm only heartened by my belief that very few people would agree with you about the beginning of personhood actually being that late, so a majority ruling on that would tend to put it at some late period of the pregnancy.

I agree - and that's one reason I'm fine with majority rule on this issue. I don't know anyone who would vote for infanticide, including most emphatically me. Similarly, there's no particular logic to corpse-desecration laws, but people won't stand for using Grampa's body in a performance art piece any more than they'll stand for murdering babies. And I see no reason why they should.

[novakant]

So the discussion is worth having, even if it's "only" 10% or so.

Yeah, but if you spend 90% of the time discussing 10% of the cases there's something wrong.

[Sebastian Holsclaw]

"Yeah, but if you spend 90% of the time discussing 10% of the cases there's something wrong."

That isn't true at all. Far more than 99% of people who get angry at each other never kill each other. Yet in law we spend a lot more time talking about the very small percentage of people who do.

[novakant]

false analogy

[Francis]

Sebastian:

As you are well aware, the Bill of Rights is intended to be anti-majoritarian. As you are also well aware, the BoR uses words that are not subject to precise interpretation, like "liberty" and "due process".

Therefore, from time to time the Supreme Court will intepret those words in a way that the majority believes is wrong. So? That's a feature, not a bug. Don't like that rule? Tough. It's an essential component of our system.

Now, we all can have long debates about the correctness of the Sup.Ct's various anti-majoritarian decisions, and I think that they're worth having. But if you start from the premise that a decision you disagree with is fundamentally illegitimate, you've foreclosed any discussion.

[cue Monty Python -- an argument is just a contradiction. no it isn't. yes it is. no it isn't ...]

You're a big fan of the historical argument. But a huge problem with the historical argument is that women didn't have the right to vote. How can we be so sure that abortion would not have been within the scope of traditional privacy rights if women could have voted? Another problem is interpreting the 14th Amendment and the gutting thereof in the Slaughterhouse Cases.

You seem to take the position that reasonable minds cannot disagree about Roe. (I'm not sure what else you mean by "fundamental illegitimacy".) Well, I disagree and so does Scott. Last I checked I thought that I was reasonable. I don't know Scott personally but from his writings he seems reasonable.

So where does that leave the discussion? I refuse to agree that Roe was fundamentally illegitimate and you, apparently, are focsed on an issue that virtually no other activist cares about. Now what?

PS: To the kitten. The Gaza Strip was in the news again today. If an open thread was started on Israel / Palestine, we could have back to back threads of complete deadlock. Wouldn't that be fun.

[Redstocking]

Jesurgislac referred to any earlier discussion: "what would happen if the law permitted a doctor to induce labor or perform a c-section on a pregnant woman against her will, in order to "save the fetus": What I am about to say has absolutely nothing to do with abortions, but everything to do with women's choice.

Doctors induce labor and perform c sections on women all the time when the baby is in no danger, but normal childbirth is too slow for hospital and doctor schedules. They absolutely refuse to let women with previous C sections attempt vaginal birth. Many obstetricians try to outlaw midwives, even though much of the world relies on midwives to handle normal births.

Almost all major hospitals regard a 30-40 percent C section rate as normal. Induction and augmentation of labor are the rule, often leading to C sections. Women are strapped to an electronic fetal monitor, given drugs that paralyze their legs, and forbidden to walk around during labor.

I wish the women's choice movement would join the fight for a revolution in American childbirth.

[Baskaborr]

I find the "she knew if she had sex that pregnancy was a possibility" so she needs to take responsibility a revalation. That logic opens endless vistas of possibility. Every time I sit down in an automobile I understand the risk of accidental death or injury. Everyone understands the risk of lifestyle/eating choices on heart disease/stroke/cancer. In fact most emergency room cases can be traced back to activites where the risk is well understood. Working as a roofer? Everyone knows the danger. Just by adopting the same standard that knowing the risk means that medical intervention in event of an accident is unnecessary will save us a fortune as we eleminate EMTs, Ambulances and Emergency rooms. What a boon to the country!

[Phil]

So, are we still at the point where Sebastian wants to enslave women and Jesurgislac wants to stab babies in the skull while they crown? Great. Very productive, as usual.

or of very profound damage to the fetus (no late term cleft palate, dwarfism or Down's syndrome abortions).

I was almost with you here, but you aren't the one who is going to have to raise those children, and I see no reason why those three things should particularly be excluded.

[Jesurgislac]

Phil: Great. Very productive, as usual.

Thanks for your useful and positive contribution to the debate.

[Xeynon]

Sebastian wants to enslave women and Jesurgislac wants to stab babies in the skull while they crown? Great. Very productive, as usual.

Alas, this is what any debate of abortion (or any issue related to abortion, such as the validity of the jurisprudence in Roe inevitably devolves to.

[Sebastian]

"no late term cleft palate, dwarfism or Down's syndrome abortions).

I was almost with you here, but you aren't the one who is going to have to raise those children, and I see no reason why those three things should particularly be excluded."

Because especially with the first two, they will (especially in a Western country) have no trouble leading meaningful lives. Killing them over it is ridiculous. Seriously, you think it would be fine to have a late term elective abortion over having a dwarf?

[Phil]

Thanks for your useful and positive contribution to the debate.

You're welcome. I mean, I'm sure I haven't convinced nearly as many people as you clearly have, what with your reasonableness and persuasive charms, but here's an idea: Don't read my posts if you find them useless and non-contributive. That will save you all of 15 seconds in your obviously busy day.

Because especially with the first two, they will (especially in a Western country) have no trouble leading meaningful lives.

The same can be said of any pregnancy aborted at any point. I'm not sure how relevant it is here.

Killing them over it is ridiculous. Seriously, you think it would be fine to have a late term elective abortion over having a dwarf?

It's an academic question for me, Sebastian -- I had a vasectomy 14 years ago. I'd have to be the woman pregnant with a child with dwarfism before I could come close to reasonably answering the question.

[Francis]

yup. I can see that having a medical review process to determine whether the health status of the fetus justifies abortion will be completely free of any problems.

here's an alternative rule: The state may require any woman over 30 weeks pregnant to deliver via C-section only if adoptive parents acceptable to the birth mother and with adequate health insurance have pre-committed to raise the baby until it's 18 years old.

here's another: stay out of other people's uteruses and vaginas. Depriving 50% of the population of a right to which they have become accustomed will end up making Prohibition look law-abiding by comparison.

[Jesurgislac]

As was discussed recently in the last abortion thread, Sebastian, there is considerable variation in the effects of Down's Syndrome, cleft palate, and dwarfism: and considerable variation in the ability of a woman to be able to properly care for a profoundly disabled infant.

Yet you seem to feel, quite arbitrarily, that you yourself are a far better judge of how disabled any child will be than an attending physician, and far better able to judge a woman's ability to care for that child that she herself is.

How does that work, Sebastian? How do you know? How many profoundly disabled children have you yourself cared for from birth?

Me, I think we should just acknowledge that this is a difficult situation for a woman to be in, and she's the best person to make the decision what to do about it: oddly enough, I don't suppose most pregnant women in the US think "I must consult Sebastian Holsclaw! He'll know what I should do!"

[Phil]

I hope, pray, yearn that one day I can contribute such positive, useful nuggets of conversation as

It's possible it sounds illogical to you because it doesn't occur to you to consider that fetuses don't hang in a shower of golden light, but grow in a woman's uterus, nourished by her blood, and if she dies, so does the fetus. But so it is.

The positivity and usefulness leap from the screen, they do.

[Jesurgislac]

You're welcome.

My pleasure. You're always so charming and polite, Phil, that you could persuade me of anything.

[jpe]

Roe was an originalist decision; the arbitrariness of the trimester distinction tracks the arbitrariness of historical distinction.

[Jesurgislac]

So legally, phylogeny recapitulates ontogeny?

[Turbulence]

...considerable variation in the ability of a woman to be able to properly care for a profoundly disabled infant.

I don't think proper attention has been paid to this issue. The variability in DS cases in very large: some DS-afflicted individuals are very high functioning and some will never be able to even recognize their caregivers, let alone communicate with them. And there are many cases in between.

The thing is, I've watched otherwise happy couples break up over the stress of having a DS-afflicted kid. I've watched parents suffer from nervous breakdowns. Caring for DS-afflicted kids, even those with "moderate" disabilities is really really hard on families. It is incredibly costly both in terms of cash and time, and the constant stress wears people down. Most parents can imagine a day when they're kids will leave the nest and achieve independence; if you have a DS kid, generally, you can't do that. You're going to be stuck caring for them for the rest of your life while they're stuck at the developmental development stage of a six year old. That's really hard on people, and many people crack under that kind of pressure. Many others don't crack, but just have all the joy sucked out of their lives.

Its actually worse than that though. As DS-afflicted individuals grow older, they often develop serious illnesses. Try dealing with OCD in a DS adult. A very large number develop Alzheimer's.

Life for DS adults isn't necessarily a happy experience...these people often have very great difficulties communicating with others, which can make them incredibly lonely.

I'm sorry for the rant, but sometimes I lose patience upon seeing the flippancy of people who assume that Down's isn't a huge problem. It often is and there's no way to tell in-utero which cases will be problematic. The fact that you might have spent 10 minutes as a teenager volunteering with the highest functioning DS kids doesn't mean you actually know anything about the average DS population.

[JanieM]

Redstocking: "Doctors induce labor and perform c sections on women all the time when the baby is in no danger, but normal childbirth is too slow for hospital and doctor schedules. They absolutely refuse to let women with previous C sections attempt vaginal birth."

"Absolutely" is misleading unless you qualify the assertion by saying "most" doctors. I did a lot of homework and went to some extra trouble to find a doctor who would allow me to attempt a VBAC (it turned out fine, and the baby weighed 10 pounds, heaven help me). That doc worked not only with certified nurse-midwives but with a lay midwife as well, who stayed with me throughout a long labor and for a while after the baby was born.

I agree that it would be nice if there was more pushback against the # of caesareans...but that's actually true of a lot of things, i.e. I wish more people wanted the world arranged just as I would like it arranged.

[Turbulence]

I forgot to add in the comment above:

OCD might not seem like a big deal (we've got drugs for that right?) but in a DS patient it can be crippling. Moreover, getting treatment is much harder than for a cognitively normal adult. Psychiatrists and neurologists generally aren't interested in dealing with DS patients for these kinds of issues. They don't think its worth their time and diagnosis can be very hard (how do you rigorously assess the development of a new major cognitive impairment given an already existing cognitive impairment?). The drug therapies that exist often have huge side effects and it can be really hard to tell whether or not the DS patient is suffering from them.

Life is hard enough, for all of us, without massive cognitive impairments. It really is.

[tgirsch]

trilobite:
That's why I say the key is that the fetus is not a person.

On this much, at least, we agree. But I don't think that's the only path one can use to arrive at the same destination.

If, as you say, the act of engaging in sex means "assuming the risk" of becoming pregnant, and if a fetus is presumed to be a "person" with moral and legal rights, then why should abortion bans not punish the woman who seeks the abortion? And why should women who miscarry not be investigated for negligence and potentially prosecuted for manslaughter, or something like it?

The point here isn't so much that foes of abortion appreciate "nuance," as you seem to claim. I think it's more that they're simply inconsistent in their beliefs with respect to the subject. I'm not willing to go so far as Francis and claim that their primary goal is to legislate women's sexual behavior, with abortion bans being a means to an end (no doubt, for some this is the case, but I wouldn't say that's the majority). It's just that for better or for worse, abortion (of some types) trips the "ick" factor for them, and they act accordingly.

IIRC, the medieval Catholic Church had a doctrine that ensoulment occurred 40 days after birth

My understanding is that they viewed ensoulment to happen at "quickening," when a woman first starts to feel the fetus' movements inside her. Still well below birth. Interestingly enough, until something like the mid 19th century, the church didn't have an objection to abortions prior to that time.

Sebastian:
infanticide-is-ok-if-the-mother-chooses

Are we really at the point of the discussion where we're equating late-term abortion with infantcide? I was hoping this abortion debate, unlike most, would stay above that level...

[liberal japonicus]

stay out of other people's uteruses and vaginas

uteri?

(yeah, how can it be masculine, but maybe it is just masculine ending. ba-dum-dum)

[Francis]

uteri? you're going to make Hilzoy hysterical.

[ducks, runs]

[[to those who find me too obscure, the etmology of "hysteria" is "of the womb" and hilzoy is female and this thread was about reproduction and ... oh hell, never mind.]]

[Sebastian]

"Yet you seem to feel, quite arbitrarily, that you yourself are a far better judge of how disabled any child will be than an attending physician, and far better able to judge a woman's ability to care for that child that she herself is."

She doesn't have to care for the nasty little thing if she hates the idea so much. Very few people with Down's Syndrome would really be better off dead even if you end up having to put them up for adoption. The same is true of cleft palate, and dwarfism (I can't honestly believe that you people are saying that dwarfism is such a profound problem as to require killing the fetus).

"The fact that you might have spent 10 minutes as a teenager volunteering with the highest functioning DS kids doesn't mean you actually know anything about the average DS population."

I'm afraid you don't know anything about me if you think that I've only spent 10 minutes with Down Syndrome children (google one of my best friends-Stephanie White in San Diego re Down's syndrome). And you don't know much about Down's syndrome if you think they would generally be better off dead.

[liberal japonicus]

Sorry, just trying to recalibrate a bit, Sebastian, are you commenting as just Sebastian as well, or are there two Sebastians? I'm not participating in the thread, so I've only been reading it in dribs and drabs, and the last comment certainly seems to remove any doubt, but I thought it better safe than sorry and go ahead and ask.

[Lurker]

Jes,

I disagree with you that a ban on some abortions necessarily leads to a massive number of illegal abortions. In Finland, the abortion is legal until 12 weeks, unless woman's health is endangered because of her actual illness of bodily deformation. If the fetus is afflicted with any deformation, the abotion is possible until 24 weeks. Theoretically, the abortion can only be performed if there is a medical, eugenical or social reason to perform it, but in practice, "social" criterion is liberally applied, so abortion is available on demand until 12 weeks of pregnancy. However, the idea that abortion is only given to those in medical, eugenical or social need discourages opposition to legislation, and may discourage some women in good financial standing to apply for abortion.

Only doctors working in municipal or state institutions have the right to carry out abortion, after consulting another doctor. If they decide not to carry out abortion, the woman may apply for it from the national center for patient's rights. On the other hand, doctors in public institutions do not have the right not to perform abortion for moral reasons. The abortion costs about 20 euros to the woman, the same as any day-long visit to a public hospital.

We have a well-functioning system: it is not an object of public discussion. Not even the most vocal feminists quetion the limitations set by our legislation. During the 37 years we have had our current legislation, the public has been conditioned to think that not getting abortion during the first 12 weeks means deciding to carry out the pregnancy to the term. Illegal abortions are not a problem: the last conviction for an illegal abortion occurred over 30 years ago, and as far as I know, there are no illegal late-term abortions. (The maximum sentence would be six years in jail.) As all expectant mother attend the free muncipal prenatal clinics regularly (a cultural phenomenon typical to a Nordic welfare state), such cases would be seen quite easily.

The question of abortion is very culture-dependent. In Finland, the abortion is not completely free, but the number of illegal abortions is insignificant due to the easy availability of it during the first 12 weeks of pregnancy and due to good sexual health education given at schools. (One of the main points in that education is: abortion is not pregnancy prevention. Use condom and/or pills.) On the other hand, I agree that in the U.S, this system would not work, as the whole society is vastly different.

[Jesurgislac]

Lurker: I disagree with you that a ban on some abortions necessarily leads to a massive number of illegal abortions.

Since that's not what I said, you are not disagreeing with me: I don't quite know who you are disagreeing with!

I said that it has been shown (as common sense would tend to say in any case) that banning safe legal abortion does nothing to change the abortion rate.

In Finland, the abortion is legal until 12 weeks, unless woman's health is endangered because of her actual illness of bodily deformation.

And, as I recall, abortion is accessible in Finland - a woman who discovers she's pregnant and wants to terminate, can do so, without any of the long-distance travel or saving to pay that occurs in the US. Yes? Further, I expect that the people who judge if a second or third trimester abortion is necessary are, in fact, the people who would know: the attending physician(s) and the pregnant woman.

And I see no reason why this system wouldn't work in the US: free contraception available to all, a generation of mandatory sex education that focusses on encouraging kids to use contraception when they have partner sex rather than on telling them not to have sex, and safe legal abortion available at every single clinic or hospital throughout the country. But the extensive and powerful anti-choice political movement in the US is not interested in promoting any of those options: rather, when pro-choicers propose them, the "pro-lifers" oppose them, demonstrating handily that they've no wish to reduce the number of abortions in the US. Someone who is really against abortion in the US would be supporting Planned Parenthood.

[Jesurgislac]

She doesn't have to care for the nasty little thing if she hates the idea so much.

Well, she does, actually. Most women will, if they can, because having had the baby, there is an emotional connection. Giving up a baby, even if you can't care for the baby and know you can't, is painful: I've never met a woman who lost a child to adoption who didn't regret the loss for the rest of her life.

The point is that looking after a severely handicapped child takes extensive resources. As was pointed out upthread, marriages have foundered on this. If a woman knows she does not have the resources to care for the child - and of course, in the US, she won't even be guaranteed paid maternity leave - she could decide that she'll go through pregnancy and childbirth and then give up the child and hope that someone else with more resources does give the child a good home. Or she may decide that it's better that the baby shall never exist, because she can't take care of the baby, and it would be irresponsible to give birth under those circumstances.

And you don't know much about Down's syndrome if you think they would generally be better off dead.

Would the children conceived immediately after a fetus with Down's Syndrome is aborted be generally better off dead?

(A woman in a discussion thread on Pandagon says she used to do pro-lifer heads in by telling them that they were wishing her brother out of existence: he was conceived, she said, a month or so after her mother aborted a fetus with Down's Syndrome. Had her mother not had that abortion, her brother would not exist.)

[Lurker]

Jes,

Absolutely. Sorry I misunderstood you. And indeed, the abortion is easily available. Usually, it is provided at major municipal hospitals and in the regional and provincial hospitals. In Southern part of the country, a rural inhabitant must perhaps some 50 km, in Northern part a maximum of 400 km. (A city-dweller just visits the hospital of her city.) The same applies to all other cases requiring a hospital visit. Municipal health clinics can usually perform only those abortions that can be caused purely with medication. However, the abortion is covered by social insurance, so the majority of travel costs are borne by the state.

Post-contraceptives (the so called penance pill) are available in all drugstores without prescription. Their correct use is part of the health education curriculum.

[novakant]

Sebastian, having cared for children with all levels of disability for a while when I was younger, I am with you here and Jes is just being her usual endearing and constructive self (funny also how she seems to totally have eliminated men as agents from the process).

But, if we fully grant, as I do, the right to abortion within, say, the first trimester, etc., for reasons such as incompatibility with general life plans, it is indeed hard to prohibit abortion if the reason given is disability of the child.

Screening for and aborting children with Down is a very tough issue because it smells of euthanasia, because such children and their parents can lead perfectly fulfilled lives and because it is very hard on those children should they get the feeling that they are lucky to be alive because the majority of those with the same disabilities are commonly aborted.

Yet, I am a fervent supporter of abortion for whatever reason in the first trimester. So for me it comes down to educating society about disability and having the state provide adequate resources to care for these children.

[magistra]

Sebastian,

As has been pointed out in many previous threads, the numbers of late-term (third trimester) abortions in countries such as the UK are extraordinarily rare: less than 1%. And there has never in the UK been a legal case upheld that any of these have breached the strict conditions on danger to mother/severe physical handicap of child. (The claim that an abortion was done purely on cleft palate grounds was not upheld).

If you're going to argue that there are numerous late abortions in the US, you have to claim either:

a) American doctors are more morally unscrupulous than British ones

b) American women are more morally unscrupulous than British ones

c) the US abortion system is so dysfunctional that substantial delays are arising in women getting abortions that they want much earlier

Which of these are you going to argue or you finally just going to accept that third-trimester abortions are a marginal issue?

[Jesurgislac]

novakant: Sebastian, having cared for children with all levels of disability for a while when I was younger

And this was voluntary, or you were forced into it without your consent? If the former, why are you "with Sebastian" in wanting other people to be forced without consent to do so?

funny also how she seems to totally have eliminated men as agents from the process

Biology already did: there's no known example of a man getting pregnant and having to decide whether or not to terminate. If you mean that I didn't explicitly include a supportive partner as part of a woman's resources when deciding whether to have a baby or not, well, no, I didn't explicitly do so: but yes, I would say that a supportive and reliable partner - male or female - would naturally be a big part of the decision. (Not an inevitable one; it might not be possible even then, after all.)

Screening for and aborting children with Down is a very tough issue because it smells of euthanasia, because such children and their parents can lead perfectly fulfilled lives and because it is very hard on those children should they get the feeling that they are lucky to be alive because the majority of those with the same disabilities are commonly aborted.

Of course those children shouldn't think they were "lucky to be alive" any more than any person should think they are! Every person conceived is born because their mother made a conscious choice, when she discovered she was pregnant, to have the baby who would grow up to be that person. The only way to make a person with a handicap feel they ought to be especially grateful would be - as you and Sebastian are certainly doing - to focus on this issue to exclusion.

My mother and I went to a pro-choice demonstration a few months ago, and, as I said to the demo organiser, when anti-choicers bloviate about "What if your mother had been pro-choice!" I can honestly say "She was and she is: so I know I was wanted."

Yet, I am a fervent supporter of abortion for whatever reason in the first trimester. So for me it comes down to educating society about disability and having the state provide adequate resources to care for these children.

Of course it does. But how are you going to "educate society" if you're arguing that people ought to be forced against their will? Education isn't done by force: it's done by example. What kind of example are you setting by arguing that women can't be allowed to choose to have the baby, they've got to be forced? That children who are born with a disability can't be allowed to have the certainty that they are wanted?

[Lurker]

Jes,

novakant is not, as far as I see, trying to force anyone to carry out their pregnancies. On the contrary, he is very pro-choice, just like me. It is just that we all seem to give some rights to the fetus.

I think that even the woman should have some responsibility. If she neglects to get the abortion in time, then she must carry the fetus to the term. (Of course, in present-day US, the late abortion may result from totally different reasons than neglect, say from ingnorance or inavailability and that changes the case totally.) After all, she has had 12-20 weeks of time to ponder the decision whether to become mother. Contrary to this, man makes the decision to risk becoming a father at the moment he starts copulating. After that, there is no turning back for the man. If the woman decides to have the child, the man is obliged to participate in its raising for the next 18 years.

[Jesurgislac]

novakant is not, as far as I see, trying to force anyone to carry out their pregnancies

I'm sorry: I thought novakant was arguing for forced pregnancy after the first trimester, so that if a woman discovers her fetus has Down's Syndrome, she will not be allowed to make the choice to have the baby but will be forced to have it whether she wants to or not. That was certainly what I got out of novakant's comment.

After all, she has had 12-20 weeks of time to ponder the decision whether to become mother.

Yes, but genetic testing or scans can provide new information which the woman will also have to ponder. Being a mother to a child with a severe disability is going to be rather different in terms of energy, resources, and cost. A woman has a window of opportunity in which she can make the choice, with the result that if she decides she will have the baby, whatever the handicap, it's a free choice rather than a forced committment. I think free choice is better.

If the woman decides to have the child, the man is obliged to participate in its raising for the next 18 years.

Yes, until men can get pregnant, men can't decide to have abortions. Fact of life. Once the baby is born, of course both parents have responsibilities towards the child.

[Lurker]

Jes,

Again, we are arguing from different viewpoints. In my country, 90% of abortions occur with the reason classified "social". That is possible only during the first 12 weeks, i.e. the first trimester. The abortion in case of foetal deformation is possible until 24th week. Before that, the pregnant woman has been administered at least one ultrasound test for the detection of abnormalities. If that test show problems, more tests are made. In some municipalities, three screening tests are always administered as a matter of course.

For example, in the Finnish capital Helsinki, which administers two routine screening tests per woman, there were 192 positive ultrasound tests during the year 2006, out of which 34 showed DS or other chromosome abnormalities in the serum test. 32 of those pregnancies were aborted. 99% of the pregnant women underwent the testing. This means that the number of DS children born is reduced by about 60-70 %. (False negatives are common.)

The municipalities pay for foetal screening. The question how many screenings should be financed per woman is a very delicate ethical question, because the idea of screening away abnormal foeti from the whole population is whole thing is eugenical. On the other hand, as it is the municipality which bears most of the extra costs of associated with the DS baby, reducing their number to a minimum is a good thing for the municipal finances. Basically, no amount of fetal screening costs as much as having DS babies.

[novakant]

It's no use arguing with Jes in good faith - see above.

[Jesurgislac]

In my country, 90% of abortions occur with the reason classified "social".

97% in my country. That's the proportion carried out before 12 weeks.

On the other hand, as it is the municipality which bears most of the extra costs of associated with the DS baby, reducing their number to a minimum is a good thing for the municipal finances. Basically, no amount of fetal screening costs as much as having DS babies.

Now that's an obscene piece of calculation for the municipality to make.

[Jesurgislac]

novakant: It's no use arguing with Jes in good faith - see above.

It's certainly of no use trying to argue in good faith with people who will not acknowledge that their argument about "saving the fetuses" by banning abortion is in fact an argument for forcing a woman to have a baby against her will. This isn't indirect or supposition: it is just the other side of the coin. Yet I've noticed that people who ardently argue that the fetuses ought to be saved by banning abortions, get extremely annoyed when confronted with someone who insists on pointing out that this means forcing women through pregnancy and childbirth - with all that this implies for their health, their welfare, and indeed their lives.

(The added point is of course that stats show that a woman denied a safe legal abortion may well go find herself an illegal one...)

What is really goddamned annoying is when hypocrites who don't want to talk about the women whom their principles condemn without a thought, accuse me of bad faith because I do.

[dutchmarbel]

or of very profound damage to the fetus (no late term cleft palate, dwarfism or Down's syndrome abortions).

I was almost with you here, but you aren't the one who is going to have to raise those children, and I see no reason why those three things should particularly be excluded.

Sebastian said excluded in third trimester, they can be detected earlier than that.

@Sebastian: as you know by now we have the system you propose and I think it is the preferred system. We even have legal personhood for the feutus as from 24 weeks.

But we also have a society where abortions are easy and free, where people have universal healthcare that will both pay for most pre-natal tests and will help pay a lot of the additional costs for bringing up handicapped kids (and provide the pill for free till the girl is at least 18 yrs) and where sex ed is almost obligatory. That means that there are hardly any women who have to carry till that late in the pregnancy without actually really wanting the child.

If you advocate a ban on third pregnancies in the US, you'd advocate it in a society where 49% of the pregnancies are unplanned, where it is hard and expensive to get an abortion (often almost impossible for poor and/or young women) and where raising a handicapped child will have much more severe consequences for the family.

I disagree with Jesurgislac (and some others here) that it should always just be the decision of the pregnant woman. As I said, I am perfectly happy with our system where the intrests of the women are weighted against the intrests of the feutus/baby.

But in the US the women have so many more disadvantages, that their intrests should result in more leniency. Advocating a ban on third-term pregnancies without having at least easy access to contraception and early abortions - indeed where there is a reasonalble change that such a ban would be abused to make early abortions even harder, makes the costs for pregnant women too high. If you weigh the intrests of the fetus/baby against the intrests of the pregnant women, the latter carries much more weight till later in the pregnancy.