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January 23, 2008

Comments

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).

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.

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.)

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?

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.

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 abu