by publius
Like many others, I was horrified to read about the murder of Dr. Tiller in Kansas today. It was of course more than murder -- it was an act of political terrorism. It simply cannot be dismissed as random violence.[*]
Anyway, this violent act also bears quite directly on the whole "empathy" debate. What's interesting about Obama's comments is that the empathy argument doubles as both a populist argument and a high-level theoretical assault on conservative jurisprudence.
One tenet of both originalism and textualism is that consequences of constitutional interpretation should be irrelevant. If you take both theories seriously, then you can't really allow consequences to affect your reasoning. What matters -- the only thing that matters -- is what the text says, or what the text was originally understood to mean. And for now, let's assume that conservatives take these theories seriously (rather than merely using them as window-dressing for political preferences).
The Kansas terrorism illustrates why it's important to look at the real world when interpreting the constitution. For instance, there's a First Amendment dispute about whether and to what extent the government can limit abortion protests outside of clinics.
The argument for aggressive protection (and thus a relaxing of First Amendment scrutiny) is that abortion protests have proven to be historically dangerous. Doctors and staffers and patients face truly dangerous risks -- risks that were tragically reaffirmed today. The law should recognize these concrete dangers and not pretend like these protests come straight out of a Norman Rockwell painting of a townhall meeting. It's fun to argue about free speech in the abstract -- but we don't really have that luxury.
The real world matters. It should be relevant. It's somewhat amazing to have to argue this. But that's where we are.
*[I deleted a line suggesting that people who use extreme anti-abortion rhetoric (e.g., "party of death", "pro-murder") bear some responsibility. I'm not sure how I feel about that -- and I want to think about it more before I post a view on it.]
I'm not sure I understand the connection here. Dr. Tiller wasn't murdered in or near his clinic, he was murdered in church (shades of Thomas a Becket). How do protests outside his clinic on different days affect his murder in a church today?
Posted by: Mark Field | May 31, 2009 at 05:49 PM
Some clarity might help: my understanding is that the rules keep the protestors from physically interfering with people entering or exiting the facility (a few feet back from the entrance and street access, or some such, if I recall, as you can see painted on the sidewalk in this Google Street View Image of a Planned Parenthood center I often pass on my way to the neighboring supermarket) but the rules leave the protestors very much within sight and earshot.
It's my understanding that these rules were called for because people entering and exiting these facilities were regularly being physically accosted and interfered with. And as a restriction on Free Speech, they seem much less serious than the Orwellian "Free Speech Zones" that seem now to be accepted.
Still, like Mark Field, I'm not aware (from a position of rather little information) that the incidents of serious or murderous assault or of major vandalism have occurred within the context of a demonstration; indeed, the shootings, bombings, arson, and invasions have tended to be less public affairs.
Still, if I were to walk into such a facility I'd be very much aware that the protestors outside were part of a movement that included murderers, and I'd very much prefer not to have to push through them. And I say that as a fairly large man; I can imagine the feelings on the subject of an undersized woman or a teenager.
Posted by: Warren Terra | May 31, 2009 at 06:06 PM
I agree with Mr. Field. Protesters constantly assembling to denounce Dr. Tiller as a baby-murdering Hitler has no correlation with making him a target of violence that I can see. Perhaps the young man suspected of the murder simply disliked the color of Dr. Tiller's tie, or was aiming for someone else. To causally connect it to the demonizing rhetoric of the anti-choice movement's protests, or to the previous acts of violence against Dr. Tiller's clinic, is a bit of a reach.
(Seriously, it's like invoking Thomas Becket and wondering how on earth Henry II could potentially share any blame for his murder.)
Posted by: mds | May 31, 2009 at 06:16 PM
Pro-lifers: people who commit murder to demonstrate how much they care.
I deleted a line suggesting that people who use extreme anti-abortion rhetoric (e.g., "party of death", "pro-murder") bear some responsibility.
Probably diplomatic, given that both Von and Sebastian are pro-lifers who believe Doctor Tiller has committed premeditated murder on multiple occasions.
Posted by: Jesurgislac | May 31, 2009 at 06:42 PM
I have no doubt that the extremist rhetoric on the Right creates an atmosphere which makes extremist actions more likely. But that involves a much broader First Amendment issue than the one publius raised, which was specific to abortion clinic protests.
The larger question of free speech is one we've already resolved. Nazis get to march in Skokie. The KKK gets to hold demonstrations. We understand that there may be indirect consequences of these events, but we value free speech enough to accept them. Absent some more direct connection between clinic protests (versus the overall rhetoric of the Right) and this murder, I don't see any basis for infringing the First Amendment.
Posted by: Mark Field | May 31, 2009 at 06:43 PM
The question is, Mark, whether you see a law clearing a path for people to access the picketed facilities, while keeping the protestors highly visible and just out of arm's reach, to be "infringing the First Amendment" given the track record such protesters have of physically accosting visitors to such facilities, and the murderious record of the broader movement. The point of my (somewhat muddled) first comment was its first sentence, that I don't think Publiis is suggesting a total ban on protests, and I think that his post left itself open to comments such as yours, that blur this line.
Posted by: Warren Terra | May 31, 2009 at 06:51 PM
Warren, I don't have any significant disagreement with your post. I agree that some limits on the protests are reasonable under the circumstances. I may have read too much into publius's post, but I thought the implication was to shut down clinic protests altogether. If the only point is that safety concerns need to inform the way we handle protests, then there's probably no disagreement.
Posted by: Mark Field | May 31, 2009 at 07:08 PM
The larger question of free speech is one we've already resolved. [Al-Qaida supporters get to hold public demonstrations in praise of the suicide bombers of September 11 at the WTC memorial site.] We understand that there may be indirect consequences of these events, but we value free speech enough to accept them. Absent some more direct connection between clinic protests (versus the overall rhetoric of the Right) and this murder, I don't see any basis for infringing the First Amendment.
Would you agree with my amendment, Mark? Do you feel that the same First Amendment supporters who believe Nazis and the KKK and pro-lifers should all be allowed to demonstrate where they can cause maximum distress to the victims of the terrorist movements these people espouse, would equally support al-Qaida supporters receiving the same protection for the same purpose?
Posted by: Jesurgislac | May 31, 2009 at 07:15 PM
Jes, I think you rather lack for generosity here. I am willing to assume that Mark Field has an abhorrence of Nazis, and of the KKK - aren't you? Do you really think that he mentioned them because he thought acceptance of their right to protest equated to endorsement of their beliefs? Do you think that you will catch him out by transforming them into Al Qaeda, and transforming Skokie on a summer day into Ground Zero on an anniversary of 9/11?
In fact, on the assumption that Mark Field was sincere in his call for the protection of the right of the abhorrent to protest, do you disagree with this call? You seem to be setting up to do so ...
Posted by: Warren Terra | May 31, 2009 at 07:25 PM
I deleted a line suggesting that people who use extreme anti-abortion rhetoric (e.g., "party of death", "pro-murder") bear some responsibility. I'm not sure how I feel about that
I am -- you must be aware that killing can be justified if it's in self defense or defending another. While we can't know if Dr. Tiller's murder sincerely believed he or she was defending the unborn, such a belief would obviously make it a lot easier to contemplate a premeditated violent act. And it simply can't escape the notice of those who use such incendiary terms.
Posted by: Gregory | May 31, 2009 at 08:08 PM
Absent some more direct connection between clinic protests (versus the overall rhetoric of the Right) and this murder, I don't see any basis for infringing the First Amendment.
That's perfectly okay. The direct connection between clinic protests -- protected free speech, if merely verbal -- and a long and shameful tradition of physical assault and interference is plenty of basis for infringing on the First Amendment.
One's right to free speech does not include the right to commit assault -- or to incite others to do so.
Posted by: Gregory | May 31, 2009 at 08:12 PM
I've reread publius' post three times, trying to figure out what point he's making, and the best I can do is this: "The real world matters."
Which seems an exceedingly vague point to hang a post on.
Otherwise it just seems to be a post about the Tiller killing for the sake of having a post about the Tiller killing.
Maybe I'm missing something.
Posted by: Gary Farber | May 31, 2009 at 08:29 PM
Warren Terra: I am willing to assume that Mark Field has an abhorrence of Nazis, and of the KKK - aren't you? Do you really think that he mentioned them because he thought acceptance of their right to protest equated to endorsement of their beliefs? Do you think that you will catch him out by transforming them into Al Qaeda, and transforming Skokie on a summer day into Ground Zero on an anniversary of 9/11?
I wasn't attempting to "catch Mark out", no. I was wondering whether he genuinely believed that al-Qaeda supporters would be allowed to make a peaceful demonstration of support of the suicide bombers at the WTC memorial because of American committment to free speech.
I don't believe it, FWIW.
Posted by: Jesurgislac | May 31, 2009 at 08:32 PM
"Would you agree with my amendment, Mark? Do you feel that the same First Amendment supporters who believe Nazis and the KKK and pro-lifers should all be allowed to demonstrate where they can cause maximum distress to the victims of the terrorist movements these people espouse, would equally support al-Qaida supporters receiving the same protection for the same purpose?"
I'm not following the point of this question. Although I'm not aware that there's been a specific application for such a rally/protest, of course it would be guaranteed under the First Amendment: where's the question here?
Posted by: Gary Farber | May 31, 2009 at 08:41 PM
As Gary Farber says, under current law there'd be no question that an Al Qaeda rally at the WTC would be protected (assuming it was peaceful, etc.). I support that understanding of the First Amendment, abhorrent though I find the speech. I used the examples earlier precisely because I think the First Amendment exists to protect "speech we hate" (to steal a quote).
Posted by: Mark Field | May 31, 2009 at 09:17 PM
//Pro-lifers: people who commit murder to demonstrate how much they care.//
I've altered Jes' next sentence by substituting like terms.
//Probably diplomatic, given that both Von and Sebastian are people who commit murder to demonstrate how much they care, and who believe Doctor Tiller has committed premeditated murder on multiple occasions.//
Two questions.
1. Where are you going with this? I don't get it.
2. Do you really believe that partial birth abortions are not premeditated murder (albeit legal)? Seriously. Without changing your preference for it being legal, can't you admit that it is essentially murdering a viable human being? If you can't then how can you expect to have standing in any debate about whether war is ever justified? This is what I don't get about some aspects of liberalism.
Posted by: d'd'd'dave | May 31, 2009 at 09:22 PM
I was wondering whether he genuinely believed that al-Qaeda supporters would be allowed to make a peaceful demonstration of support of the suicide bombers at the WTC memorial because of American committment to free speech.
Sure. Fred Phelps got to denounce dead soldiers during their funerals, which is just about as provocative. It's entirely possible that the government would stall them or even force them to go to court, but sooner or later they would get their permit.
And based on my experience at a truly sad number of protest marches, the event would be peaceful at least so long as one side were either peaceful or small enough to control -- the latter of which would surely be true for a pro-AQ rally. Urban governments learned a sharp lesson from the coverage of the 1968 Chicago police riot. The police are now well-trained to stay professional and neutral at rallies.
For example, I saw police, in Chicago no less, stand by stonefaced and block counterprotestors while morons burned the American flag to protest the Gulf war. I saw police stand between Kahanists and pro-Palestinians screaming at each other. Granted that a Ground Zero pro-AQ event would be about as harsh a test for neutrality as I can imagine, what with having to restrain outraged fire-fighters' orphans and all, but I think they would manage.
Generally, when police use grossly excessive force, it is because they are either very badly led, or surprised and ill-trained. There are many occasions (e.g., Rodney King) when they d*mn well should have been better trained, but that's another story. Point is, they would have both warning and proper training/doctrine for this event, so it would be fine.
Posted by: The Crafty Trilobite | May 31, 2009 at 09:45 PM
As Gary Farber says, under current law there'd be no question that an Al Qaeda rally at the WTC would be protected (assuming it was peaceful, etc.).
I think what Jesurgislac was getting at was rather: (1) would it be allowed, which is a different matter than "protected."; and (2) would those who demand the right to picket abortion providers support the First Amendment rights of groups they found abhorrent. The first is probably "yes," eventually, with prodding from groups like the ACLU, against a background of howls of outrage from those in (2), which answers that one.
And I presume this is just a preliminary post on the germ of an idea. Because at first I thought were going to get into the issue of incitement, the strawman recharacterization of hate crimes as "thought crimes," etc. Because hate crime legislation could potentially be used against those who murder abortion providers, under the "let this be a warning to the babykillers" POV. So I hope there's a meatier followup, or I'm going to demand a refund.
Do you really believe that partial birth abortions are not premeditated murder (albeit legal)?
See, if we just keep a dialogue open with the far right on abortion, perhaps we can come to a reasonable compromise with them someday, depraved premeditated murderers though we are.
Posted by: mds | May 31, 2009 at 09:53 PM
Do you really believe that partial birth abortions are not premeditated murder (albeit legal)? Seriously
Yes. Seriously.
Murder is (approximately) the premeditated and unjustified killing of a human being. Affirmative defenses to murder include, among others, self-defense. Self-defense includes the defense of another human being. When there is no other reasonably available option to save the third party from death or even from serious injury, that is a complete defense to a charge of murder. The motives of the attacker are irrlevant.
And not one word of that is controversial. If you denied any of it in a Crim Law 101 test, you would fail that portion.
The result is that if I see someone about to fall onto you by accident, knife first, and for whatever reason I have no non-lethal means of deflecting him, I am absolutely within my rights to kill him to save your life. Even if he is a sweet little baby who didn't know any better and never asked to be thrown at you while strapped to a knife, or whatever absurd scenario would result in that outcome.
What nobody in the anti-choice camp likes to admit is that so-called partial-birth abortion is a desperate last resort used when the mother is very likely to die. In almost all such cases, the baby is sure to die as well. The doctor heroically acts to salvage the only life he can from the disaster. It is never an easy or casual decision, and it is not murder by any definition ever used in any American court.
If you know of a case in which an American doctor used a PBA procedure to commit murder, please cite it.
Posted by: The Crafty Trilobite | May 31, 2009 at 09:58 PM
Ack! Make italics go 'way!
Posted by: The Crafty Trilobite | May 31, 2009 at 09:59 PM
This balloon juice post is related, I think.
in case it doesn't come thru
http://www.balloon-juice.com/?p=22002
Posted by: liberal japonicus | May 31, 2009 at 10:11 PM
//See, if we just keep a dialogue open with the far right on abortion, perhaps we can come to a reasonable compromise with them someday, depraved premeditated murderers though we are.//
The fact that I was quoting Jesurgislac who first called pro-life people that is completely lost on mds.
Posted by: d'd'd'dave | May 31, 2009 at 10:23 PM
can't you admit that it is essentially murdering a viable human being?
Given what seems to be your ignorance of who Dr. Tiller's paitents are and their circumstances, no, I can't.
In many, many cases, it's absolutely NOT a viable human being because that's the whole point of the procedure--they're removing a non-viable fetus. In other cases, a delivery at full term would seriously endanger the health of the mother, with a large chance of non-viability anyway.
I CAN'T admit to a murder of a viable human because in case a) they were'nt viable in the first place, and in case b) self defense is not murder.
Posted by: gwangung | May 31, 2009 at 10:26 PM
since ddddave doesn't click on links, here is the quote from the balloon juice post above
"In 1994 my wife and I found out that she was pregnant. The pregnancy was difficult and unusually uncomfortable but her doctor repeatedly told her things were fine. Sometime early in the 8th month my wife, an RN who at the time was working in an infertility clinic asked the Dr. she was working for what he thought of her discomfort. He examined her and said that he couldn’t be certain but thought that she might be having twins. We were thrilled and couldn’t wait to get a new sonogram that hopefully would confirm his thoughts. Two days later our joy was turned to unspeakable sadness when the new sonogram showed conjoined twins. Conjoined twins alone is not what was so difficult but the way they were joined meant that at best only one child would survive the surgery to separate them and the survivor would more than likely live a brief and painful life filled with surgery and organ transplants. We were advised that our options were to deliver into the world a child who’s life would be filled with horrible pain and suffering or fly out to Wichita Kansas and to terminate the pregnancy under the direction of Dr. George Tiller.
We made an informed decision to go to Kansas. One can only imagine the pain borne by a woman who happily carries a child for 8 months only to find out near the end of term that the children were not to be and that she had to make the decision to terminate the pregnancy and go against everything she had been taught to believe was right. This was what my wife had to do. Dr. Tiller is a true American hero. The nightmare of our decision and the aftermath was only made bearable by the warmth and compassion of Dr. Tiller and his remarkable staff. Dr. Tiller understood that this decision was the most difficult thing that a woman could ever decide and he took the time to educate us and guide us along with the other two couples who at the time were being forced to make the same decision after discovering that they too were carrying children impacted by horrible fetal anomalies. I could describe in great detail the procedures and the pain and suffering that everyone is subjected to in these situations. However, that is not the point of the post. We can all imagine that this is not something that we would wish on anyone. The point is that the pain and suffering were only mitigated by the compassion and competence of Dr. George Tiller and his staff. We are all diminished today for a host of reasons but most of all because a man of great compassion and courage has been lost to the world."
Posted by: liberal japonicus | May 31, 2009 at 10:35 PM
Posted by: gwangung | May 31, 2009 at 10:36 PM
gone?
Posted by: publius | May 31, 2009 at 11:15 PM
Sheesh
I read the balloon juice link. I favor abortion rights and vote for them. I have no problem with killing a nonviable fetus. I have no problem with putting the life and health of the mother above that of the fetus. Go ahead and kill the fetus if it will save the mother's life.
All I'm saying is, that if you're killing that fetus in the late term for a reason other than the above, let's say as an option instead of adoption, then ... admit that you favor killing. Legal, yes. But killing, yes.
You guys are going all PBA on me. PBA is banned anyway except for those reasons you gave. I'm talking about late term abortions of viable fetuses in cases where the mother's life and health are not in danger. Wikipedia refers to a 1987 study by the Guttmacher Institute that suggests no more than 13% of women seeking (and receiving) late term abortions admitted that the abortions were for nonviable/mother's health.
I'm not saying don't do abortions.
All I'm saying is admit that it's likely that one human being is killing another for the convenience of the first.
Posted by: d'd'd'dave | May 31, 2009 at 11:22 PM
Apparently a suspect is in custody. I'm cribbing most of a paragraph from Mark Kleiman at The Reality-Based Community, which is about half of his entire post:
Posted by: Warren Terra | May 31, 2009 at 11:22 PM
d'd'd: oddly enough, Dr. Tiller did not perform third trimester abortions for reasons other than the health of the child or the mother. Funny thing, that.
Posted by: hilzoy | May 31, 2009 at 11:33 PM
//gone?//
Yes. Publius is gone. He appears to be hiding. My guess is that he'll toss out another inflammatory post to divert attention from this curious one.
Posted by: d'd'd'dave | May 31, 2009 at 11:39 PM
hilzoy
Good for him.
Is that the same as saying it doesn't happen anywhere in the united states?
Posted by: d'd'd'dave | May 31, 2009 at 11:42 PM
Is that the same as saying it doesn't happen anywhere in the united states?
You could research the number of doctors who perform late term abortions in the US.
Posted by: gwangung | May 31, 2009 at 11:46 PM
By the way, I find the comment "Good for him" is a bit less than appropriate given what happened this morning. Perhaps some other phrasing would sound less patronizing given his murder.
Posted by: gwangung | May 31, 2009 at 11:50 PM
d'd'dave, my understanding is that late-term abortion is extremely rare and is nearly always or always done only in the circumstances Hilzoy describes. I'm not in any way an expert, or even terribly well-informed, but I paid attention during the repeated "partial-birth abortion" debates and that is the strong impression I got - and that the anti-abortion spokespeople didn't have counter-examples.
Surely if you're alleging indiscriminate termination of viable fetuses then the burden of proof should be on you, and not on the commenters here.
Posted by: Warren Terra | May 31, 2009 at 11:51 PM
Gary - the point is about whether consequences and real world pragmatic considerations are legally relevant. the main conservative judicial ideologies say no (if you take them seriously).
the point is that abortion clinics and people who do abortions face genuinely dangerous situations. and that knowledge should inform the first amendment analysis. but it's just one example.
burning crosses is another. in determining whether it's "speech," we should look at the real world and see what such acts are traditionally associated with.
i apologize if i didn't make these points clearly enough.
Posted by: publius | June 01, 2009 at 12:16 AM
//the point is that abortion clinics and people who do abortions face genuinely dangerous situations. and that knowledge should inform the first amendment analysis. but it's just one example.//
Can we evaluate picket lines in the same way? There is often blockage of access, intimidation, even violence.
Posted by: d'd'd'dave | June 01, 2009 at 12:31 AM
Funny, when people attend city council meetings to express their opposition to ddddave's various land projects, they are, according to him, 'environmental nazis'. Now, he compares someone killing a doctor going to his church to unions exercising their ability to strike.
Posted by: liberal japonicus | June 01, 2009 at 12:55 AM
"You could research the number of doctors who perform late term abortions in the US."
According to a commenter on the aforementioned Balloon Juice post, Dr. Tiller was one of three doctors nationwide that performed the procedure.
Posted by: vinceneilyoung | June 01, 2009 at 01:07 AM
Triple dave at 9:22:
Do you really believe that partial birth abortions are not premeditated murder (albeit legal)?
And only two hours later, after I and others explain that murder and killing are very different things:
All I'm saying is, that if you're killing that fetus in the late term for a reason other than the above, let's say as an option instead of adoption, then ... admit that you favor killing. Legal, yes. But killing, yes.
You guys are going all PBA on me. PBA is banned anyway except for those reasons you gave.
d'd'd'dave, when you lie, people stop listening to you. When you move the goalposts because you were flat wrong, and pretend it's what you said in the first place, that is lying. When you complain about people answering the exact question you asked, as if we had made up that issue, you are lying. This is not the first time you have done this sort of thing. You have long since reached the point where ad hominem responses are appropriate. In other words, if you said the sky was blue, I would take that as proof that I need an umbrella. You have achieved anti-credibility.
So I'm not going to bother looking up your unlinked wikipedia factoid. Because the supposed fact comes from d'd'd'dave, I reasonably conclude that wikipedia either does not say that, or is provably wrong.
Posted by: The Crafty Trilobite | June 01, 2009 at 01:28 AM
you must be aware that killing can be justified if it's in self defense or defending another
The use of deadly force to protect against imminent great bodily harm or threat of death to oneself or another, sure. What does that have to do with Dr. Tiller? Was he about to perform an abortion on his way out of the church?
Posted by: mythago | June 01, 2009 at 01:39 AM
Nearly everybody thinks it's OK to klill other people under some set of circumstances: war, death penalty, self defense. The reason anti-abortion people are so poisonous is they equate their opposition to abortion with personal moral superiority. That sense of superiority is what gave the murderer the justification he needed to kill the doctor.
Posted by: wonkie | June 01, 2009 at 01:49 AM
trilobite
I am not a lawyer. I use words like a layman (perhaps not even an average layman). So murder vs killer are not much different to me, I did not make the distinction in my mind. Call me a liar if you want. it's not true. But if you like to interpret it that way, it's up to you.
I would point out that my use of the term 'murderer' was in a chain that began with Jes calling Von and Eric murderers - which we all believe they are not. The word in it's context to that point on this thread had not been one of legal art.
LJ
I did not compare someone killing a doctor going to his church to unions exercising their ability to strike. I compared people exercising their right to protest in front of abortion clinics to union people exercising their right to walk a picket line (which is different than exercising their right to strike).
Also, i did not describe all people who express opposition to my projects as 'environmental nazis'. I only described the environmental nazis that way and, in particular, I mentioned one of the five council people.
Crafty Trilobite should observe that LJ has used either imprecise wording or lies in characterizing my recent comments. So, I am not the only one who lacks precision. Just the only one you see as a liar?
But you're not the only one who presumes people with opposing viewpoints are disingenuous. Here is Publius presuming bad faith // let's assume that conservatives take these theories seriously (rather than merely using them as window-dressing for political preferences).// i.e. if they don't agree with me they are either stupid or lying.
Posted by: d'd'd'dave | June 01, 2009 at 02:09 AM
Back in the late 90s, some champions of the weak and helpless were agitating for an end to the "death tax". Their pitch was that small family farms had to be sold off to pay it. They looked high and low for a single case like that, and could not find one. Nevertheless, they kept railing against the unfairness of good, honest folk having to sell the family farm when pappa dies in order to pay the "death tax". They succeeded in convincing a fair number of fools that the estate tax was unfair to John-boy Walton and thus ought not be levied on the heirs of Sam Walton. I mention this for two reasons.
The first reaon is that the rhetoric around "late-term abortions" seems similar in form to the "death tax" flim-flam. To hear the abortion-is-murder crowd talk, you'd think there was a rash of women in America aborting healthy fetuses in the 7th or 8th month. I bet there isn't.
The second reason is that I would have bet, even before reading Warren Terra's 11:22 comment, that the murderer of Dr. Tiller is opposed to the "death tax" as well as to "killing babies". I am even willing to lay a small bet that he opposes the minimum wage, let alone "gay marriage".
Some opinions seem to go together like ham and eggs, is all I'm saying. I don't know why that should be.
--TP
Posted by: Tony P. | June 01, 2009 at 02:21 AM
d'd'd'dave, do you mean that in your 11:22 post you just happened to say 'kill' instead of 'murder,' and it had nothing to do with the fact that you turned out to be wrong about "murder"? Or do you mean that you really meant "kill," all along and just accidentally used the inflammatory phrase "premeditated murder" at 9:22 to describe justified self-defense killing?
If you want to use legal phrases like "premeditated murder," perhaps you should find out what they mean first. Just as you could find out what "partial-birth abortion" means. Or better yet, the name of the actual procedure.
"LJ did it TOO" doesn't work when my toddler says it either.
I don't presume bad faith. I wait until it is proven. That's why you and I exchanged comments for months before I gave up.
Posted by: The Crafty Trilobite | June 01, 2009 at 02:50 AM
(Italics clean-up needed in aisle 4!)
The Crafty Trilobite: Fred Phelps got to denounce dead soldiers during their funerals, which is just about as provocative.
Not at all. Phelps ia white and not a Muslim. Nothing he does could be as provocative as a peaceful Muslim demonstration at the WTC memorial.
d'd'd'dave, when you lie, people stop listening to you.
Ah, if only that were true.
Posted by: Jesurgislac | June 01, 2009 at 03:16 AM
Do you really believe that partial birth abortions are not premeditated murder (albeit legal)? Seriously.
You've been answered aplenty, but I'll weigh in too: Abolsutely. There is no such thing as a "partial birth abortion." There's a technique used in extremis to save a mother's health, a technique which pro-lifers saddled with an outrageous term like "partial birth abortion" precisely to inflame emotions and, I'm sure, to help demonize practitioners.
As I've pointed out, killing can be justifiable if it's to save someone else, so no, intact dilation and extraction is not murder.
Posted by: Gregory | June 01, 2009 at 03:29 AM
The first two paragraphs of 11:22 are what I meant when I used both the terms killing and murder. What is the proper word to use for a killing that is not in self-defense and not because the killee is nonviable? It is premeditated in the sense that both the woman and the doctor set out to do it. Let's call it "Grunt". You can translate it into english for yourself. I am not able to define words more closely than I have already done.
I meant "Grunt" all along and used the inflammatory phrase "premeditated murder" because I had used it in reference to Jes' comment in the paragraph before - it was readily available and, since my question was directed at Jes, it was in the spirit of what she had offered
//If you want to use legal phrases like "premeditated murder," perhaps you should find out what they mean first. Just as you could find out what "partial-birth abortion" means. Or better yet, the name of the actual procedure.//
I'm speaking Gruntese. If you want to interpret me as if english is my first language then you do so at your own peril.
I find it interesting that no one is willing to concede that there might be an occasional abortion of a viable fetus done on a woman who is not at physical risk. Instead I get a lot of answers of the type "it depends on what the meaning of IS is". This from the crowd who absolutely, positively, under all circumsatnces reject anything that might even hint at torture. There cannot be even one torture!
I suspect they'll say 'well, okay, sure, probably one or two of those elective abortions might happen in a year but it is overwhelmingly in the public interest that abortions take place so we must accept some error.' Yet, in other areas there can be absolutely no leeway ever.
I'm not saying this to mock. I'm saying it because I am trying to understand the unifying theory of liberalism. How can I become a liberal if I don't understand it?
It is hard for me to differentiate between it being acceptable to harm a few viable fetuses and it being unacceptable to harm a few uighurs. Don't get me wrong. I don't want to harm either of the two. I just wonder why one is more acceptable than the other in liberal-land.
Please don't tell me it is because one is against the law and the other isn't because so many of the posts on this site are about how various laws should be changed to be more in the spirit of liberalism.
Posted by: d'd'd'dave | June 01, 2009 at 03:33 AM
murder vs killer are not much different to me, I did not make the distinction in my mind.
So if a police officer or a soldier kills someone in the line of duty, no matter how justifiable a shoot it was, you consider him or her a murderer?
Posted by: Gregory | June 01, 2009 at 03:36 AM
I find it interesting that no one is willing to concede that there might be an occasional abortion of a viable fetus done on a woman who is not at physical risk.
I find it interesting that you aren't willing to demonstrate that it happens at all, given that the burden of proof is on you. I also find it interesting that no one is denying that it "might" be done "occasionally," because that isn't the question. You're just moving the goalposts again.
And if it "might" be done "occasionally," so what? That hardly validates the inflammatory and false rhetoric of the anti-choice side.
I'll posit something that is more than likely to "might" be done "occasionally" if these self-righteous monsters get their way: Birth control will be up next. With the same falsity of their previous rhetoric, the anti-choice side claims that birth control pills "might" prevent a fertilized egg from implanting "occasionally," and they call that abortion.
Posted by: Gregory | June 01, 2009 at 03:45 AM
"Remember how Repubicans in Congress were all in a dither about the DHS report on right-wing extremist organizations as potential terrorist threats? The Tiller gunman was affiliated with at least two of those organizations. In addition to his connection with Operation Rescue, he was a tax protester, a "sovereign citizen," and a member of the Freemen."
Can we please, please, please, please start waterboarding right wing extremists, and sticking the operation rescue scumbags in gulags? Or, to use Dick Cheney's axiom, is there only "no middle ground" when the suspects are guilty of being openly non-christian or female?
Posted by: byrningman | June 01, 2009 at 03:47 AM
I for one was exuberant when right-wing commentators highlighted the existence of these nefarious 'madrasas' across the Arab and Muslim world, breeding grounds for terror and extremism.
I expect that the DHS, FBI, CIA, delta force and the marines will now be used to eliminate the abominable 'school' phenomenon that blights much of middle and rural America, taking kids at a young age and indoctrinating them in the ideology of murderers. It wouldn't surprise me if we've even had presidential candidates who passed through these 'schools', immersing themselves in a culture of hate.
Posted by: byrningman | June 01, 2009 at 03:58 AM
"When I use a word," Humpty Dumpty said, in rather a scornful tone, "it means just what I choose it to mean—neither more nor less."
"The question is," said Alice, "whether you can make words mean so many different things."
"The question is," said Humpty Dumpty. "which is to be master—that's all."
Posted by: Nombrilisme Vide | June 01, 2009 at 04:48 AM
On the bright side, Nombrilisme, we can ALL now make up our own languages. I am parsonimofied with grabjness!
As for Dave, he clearly wants to wash all my socks. By which I mean...well, he can figure it out, it's in Gruntese.
Posted by: The Crafty Trilobite | June 01, 2009 at 05:12 AM
Ahh, ddddave, so a union going on strike is so completely different from setting up a picket line in front of a place? I guess with the corollary being that anyone who worries about the relationship between the anti abortion protests and this murder is being hypocritical? I mean, I knew you were a liar, but it's really hard to tell if you are just lying to score a point or if you really think you've come upon a meaningful distinction and are proudly displaying it for all to see.
As for your environmental nazi notion, you claimed
"Also, i did not describe all people who express opposition to my projects as 'environmental nazis'. I only described the environmental nazis that way and, in particular, I mentioned one of the five council people."
but here's what you really said at first
"I (and i'm sure many other small c types) would gladly join up with the social freedom/lgbt types to form a new dominant paradigm if the social freedom/lgbt types would separate from the economic socialists and environmental nazis on the left."
Yes, of course, in ddddaveese, this only means you were only talking about one person, but in the language that we speak, this is a broad brush slur and coming back with your 'explanation'
"Environmental nazis are very prevalent and influential in local land use matters. I have a local loony-fringe city council person to deal with who believes that any new Green trend she reads about absolutely must be showcased in our town first."
is not particularly narrowing down the field in any meaningful way, if you intend on communicating in English rather than in dddavese. Is one of the conversational principles of dddavese that you have to lie in the majority of your communication opportunities? If so, I have no doubt about your fluency in the dialect.
Posted by: liberal japonicus | June 01, 2009 at 05:42 AM
"d'd'dave, my understanding is that late-term abortion is extremely rare and is nearly always or always done only in the circumstances Hilzoy describes."
My understanding of the issue is informed by the statements of one Dr. Fitzsimmons, among other things. I think it IS fair to say, however, that it's virtually unheard of for late term abortions to occur without at least a nominal CLAIM that it's for the reasons Hilzoy describes. Which claim, thanks to Doe v Bolton, is not subject to review.
I just think that in some cases it's pretext.
Anyway, "The argument for aggressive protection (and thus a relaxing of First Amendment scrutiny) is that abortion protests have proven to be historically dangerous."
Any idea how pathetically easy it is for pro-lifers to stand that argument on it's head, given the relative number of murdered abortionists, and aborted fetuses?
Posted by: Brett Bellmore | June 01, 2009 at 06:46 AM
Any idea how pathetically easy it is for pro-lifers to stand that argument on it's head, given the relative number of murdered abortionists, and aborted fetuses?
It may have escaped your attention, but one of those things is legal and the other is not; thus any attempt to "stand that argument on its head"(1) relies on a false equivalance that a second-grader could see through.
(1) No apostrophe in the possessive "its." Just for reference.
Posted by: Phil | June 01, 2009 at 08:21 AM
"I just think that in some cases it's pretext."
Why? What evidence do you have? Or do you think this just because you think abortion is icky and the womens can't be trusted?
Posted by: jdkbrown | June 01, 2009 at 09:38 AM
italics. i kill them.
Posted by: cleek | June 01, 2009 at 10:04 AM
Gary - the point is about whether consequences and real world pragmatic considerations are legally relevant. the main conservative judicial ideologies say no (if you take them seriously).
the point is that abortion clinics and people who do abortions face genuinely dangerous situations. and that knowledge should inform the first amendment analysis. but it's just one example.
burning crosses is another. in determining whether it's "speech," we should look at the real world and see what such acts are traditionally associated with.
I'm still not sure I understand the consequences here. Symbolic speech, under current law (which I approve) treats burning flags (and crosses) as protected. They should be, generally speaking. Now if someone burns a cross on your lawn, that's different, at least in part because it involves violation of your property rights. There may also be protections for private individuals who aren't public figures. But if you're suggesting that it should be illegal to burn a cross at mid-day in a public square as part of a public protest, then I disagree, just as I would if someone were to burn a flag in that venue.
Similarly, it's certainly appropriate to protect the employees and patrons of clinics, and to restrict protests for that purpose. But I don't think this murder, or others, justifies eliminating the right to protest against abortion (which you have not said you support either; it's just that your comments have been somewhat vague in their conclusions).
Posted by: Mark Field | June 01, 2009 at 10:29 AM
Just because I think women are members of the same species that does all sorts of other nasty things with significant frequency, and because the pro-choice movement is so damned determined to block anything which might make pretextual 'necessity' infeasible.
See Doe v Bolton.
Phil, that wouldn't stop standing the argument on it's head from being persuasive for third graders and above.
And I'm on a crusade to reform English on that point.
Posted by: Brett Bellmore | June 01, 2009 at 10:41 AM
Brett, what incentive do you believe women to have to subject themselves to late-term abortions without compelling need? It seems like an odd thing to me to believe that this is the sort of thing women would be likely to do simply because they were legally able to. It seems that common sense would tell you that wanton late-term abortions should be exceedingly rare, regardless of some perceived failure to provide some kind of evidence of that rarity.
Posted by: hairshirthedonist | June 01, 2009 at 10:48 AM
"Gary - the point is about whether consequences and real world pragmatic considerations are legally relevant. the main conservative judicial ideologies say no "
That is too general of a point.
But lets take just the 1st amendment. According to gwangung there have been 8 abortion-provider related murders in the past 20 years.
In the case of communism, for example, there were rather more than eight communism related deaths surrounding the McCarthy years. Does that justify blacklisting people who chose to associate with the communist party at some point in their lives? Much less taking more direct government action?
The NAZIs caused significantly more than American deaths. Yet the ACLU defended their right to march in Skokie, a Jewish enclave where a large number of the people living there (approximately 1 in 6 of the Jews in that suburb) were actual survivors or directly related to survivors of the concentration camps.
"It seems that common sense would tell you that wanton late-term abortions should be exceedingly rare, regardless of some perceived failure to provide some kind of evidence of that rarity."
And eight murders in 20 years makes the murder of abortion providers very rare. But we should still try to stop them, right?
Posted by: Sebastian | June 01, 2009 at 11:41 AM
And eight murders in 20 years makes the murder of abortion providers very rare. But we should still try to stop them, right?
I was asking Brett why he seems to be suggesting that unneccessary late-term abortions would be common. Since you're asking this question, Sebastian, do you agree that they are far more likely to be extremely rare? Also, since you're asking this question, do you believe late-term abortions are murders? Do you think I or anyone else here thinks that late-term abortions are wonderful things or is it more likely that I'm willing to accept that tragedies occur in this imperfect world? Do you think that if it were in my power to ensure that no one would ever need a late-term abortion, that I wouldn't do that?
Posted by: hairshirthedonist | June 01, 2009 at 11:50 AM
In the case of communism, for example, there were rather more than eight communism related deaths surrounding the McCarthy years.
In the United States? Really?
"It seems that common sense would tell you that wanton late-term abortions should be exceedingly rare, regardless of some perceived failure to provide some kind of evidence of that rarity."
And eight murders in 20 years makes the murder of abortion providers very rare. But we should still try to stop them, right?
Much like Brett, you're making a false equivalance here. No, I do not think we should try to stop perfectly legal abortions from taking place, but I do think we should try to stop completely illegal murders from taking place.
Posted by: Phil | June 01, 2009 at 11:55 AM
"I was asking Brett why he seems to be suggesting that unneccessary late-term abortions would be common."
But I don't think they're common. Certainly not as common as murder at more conventional ages. I merely think they occur.
Posted by: Brett Bellmore | June 01, 2009 at 12:07 PM
Me: Brett, what incentive do you believe women to have to subject themselves to late-term abortions without compelling need?
I'm truly curious to read your answer to this question, Brett.
Posted by: hairshirthedonist | June 01, 2009 at 12:18 PM
Sebastian: Does that justify blacklisting people who chose to associate with the communist party at some point in their lives? Much less taking more direct government action?
Sebastian, what action is it that you think people are trying to justify that makes you ask this question?
Posted by: hairshirthedonist | June 01, 2009 at 12:22 PM
"What incentive do you believe women to have to subject themselves to late-term abortions without compelling need?"
People commit murder every day. Do you suppose every one of those cases represents somebody who killed out of compelling need? People get elective plastic surgery done, with non-negligible odds of dying, do you suppose that's out of compelling need?
It shows a lack of appreciation for the diversity of human motivation, and the extent to which some people are determined to have things their way even at great cost, to say that no woman would ever subject herself to a late term elective abortion. Some people just aren't particularly risk averse, or even killing other people averse.
Posted by: Brett Bellmore | June 01, 2009 at 12:32 PM
People commit murder every day.
“George Tiller was a mass-murderer,” stated Randall Terry, founder of Operation Rescue. “We grieve for him that he did not have time to properly prepare his soul to face God.” Christian Post
Posted by: Jesurgislac | June 01, 2009 at 12:36 PM
It shows a lack of appreciation for the diversity of human motivation, and the extent to which some people are determined to have things their way even at great cost, to say that no woman would ever subject herself to a late term elective abortion.
I agree. But, then, you agree that elective late-term would be exceedingly rare, right? It would be easier to evaluate your postition knowing what it is you're trying to prevent and at what cost, as a practical matter. We might still disagree, but at least we'd know on what grounds.
Posted by: hairshirthedonist | June 01, 2009 at 12:47 PM
"Since you're asking this question, Sebastian, do you agree that they are far more likely to be extremely rare? Also, since you're asking this question, do you believe late-term abortions are murders?"
I think late term abortions in general are pretty rare. I can't find the cite (the easy statistics are at 5 months+ while I'd prefer 6+ which is much clearer and also more rare). I believe they are on the order of 1.5% for 5+ months and .2% for 6+ months. Of course that still puts us in the hundreds.
Do I beleive that late term abortions are murder? Tough question, but probably not in the way you think. I would have previously said that late term abortions which are not necessary for the physical health of the mother, and which are not because of a defect so severe that the fetus if born would quickly die or have no serious chance of long term meaningful survival, are murder.
But I think I'm coming around to the idea that it might be a very bad thing, somewhat less than murder. (More than embezzling from your grandmother, less than killing her).
I’m convinced of that by the argument that the fetus, at different stages, is on a continuum of human life that requires more protection as time and gestation go further along.
I’m not convinced that no one would ever use a late term abortion except during strict necessity. No one is a very limited number.
I’m also not convinced that it is unlikely that a there exist doctors who would act in an unethical manner. (Anyone want to argue that torture could not have happened under the eye of a doctor because it would have been unethical? We’ve seen illustrations to the contrary.)
So I’m not convinced by the argument that we shouldn’t examine late term abortions for improper use just because “women would never do such things”.
Women, and men do lots of bad things every single day.
I’m also not convinced that because late term abortions are rare, that no action should be taken. There were about 18,000 murders per year in the US over the past 20 years. If there were 8 abortion-provider related murders, that represents %0.002 percent of murders in the US.
As for Phil’s: "Much like Brett, you're making a false equivalance here. No, I do not think we should try to stop perfectly legal abortions from taking place, but I do think we should try to stop completely illegal murders from taking place."
First it isn’t clear that all of the abortions would prove to be perfectly legal. Second, I’m talking about the mainstream understanding of what perfectly legal ought to be (illegal in the 3rd trimester except for very serious birth defect or serious chance of death or physical harm to the mother). That may or may not track with what is actually legal in any given state.
Posted by: Sebastian | June 01, 2009 at 01:24 PM
There were about 18,000 murders per year in the US over the past 20 years. If there were 8 abortion-provider related murders, that represents %0.002 percent of murders in the US.
I don't understand this. What are we to conclude, given these numbers? That, since murders of abortion doctors represent a small percentage of the murders in the US, they should be allowed? Are there larger numbers of legitimately terminated abortion doctor's lives providing the backdrop against which these few murders represent mere aberrations?
Posted by: hairshirthedonist | June 01, 2009 at 01:40 PM
I don't know that it's possible, given the rather skimpy state of data collection on late term abortions, to really say how many are taking place, let alone how many are disguised elective abortions.
Exceedingly rare? I'd be shocked to learn there were as many as a thousand a year. I wouldn't be surprised if it were more than ten. I mean, you've actually got a significant movement willing to defend the proposition that elective abortions are a woman's right, right up to the time the cord is cut! That kind of 'moral' support's got to boost the totals at least a little.
But it's all just guesses.
Posted by: Brett Bellmore | June 01, 2009 at 02:11 PM
"Symbolic speech, under current law (which I approve) treats burning flags (and crosses) as protected."
Burning crosses is, in fact, illegal in some places, due to its historic usage, if it's done with an intent to intimidate.
Virginia:
The case was VIRGINIA v. BLACK et al.Posted by: Gary Farber | June 01, 2009 at 02:47 PM
"The NAZIs caused significantly more than American deaths. Yet the ACLU defended their right to march in Skokie, a Jewish enclave where a large number of the people living there (approximately 1 in 6 of the Jews in that suburb) were actual survivors or directly related to survivors of the concentration camps."
You are, of course, conflating German Nazis in a time of war with the U.S., with Americans who proclaim a supportive ideology long after that war ended. This is not helpful. Actual German Nazis weren't allowed to parade in America during the war.
Posted by: Gary Farber | June 01, 2009 at 02:50 PM
"What are we to conclude, given these numbers? That, since murders of abortion doctors represent a small percentage of the murders in the US, they should be allowed?"
I certainly wouldn't conclude that from the numbers. I would conclude that they should still not be allowed.
Late term abortions done for unacceptable reasons are rare and represent a small percentage of abortions, and they shouldn't be allowed either.
Posted by: Sebastian | June 01, 2009 at 02:56 PM
Late term abortions done for [reasons] unacceptable [to me] are rare and represent a small percentage of abortions, and they shouldn't be allowed either.
Fixed that for you.
I absolutely agree that if you get pregnant, Sebastian, you should never have an abortion for what seems to you to be an unacceptable reason.
Neither you nor anyone else should be allowed to decide what constitutes an unacceptable reason to someone else.
Posted by: Jesurgislac | June 01, 2009 at 03:02 PM
"You are, of course, conflating German Nazis in a time of war with the U.S., with Americans who proclaim a supportive ideology long after that war ended. This is not helpful. Actual German Nazis weren't allowed to parade in America during the war."
I'm not sure what you are trying to say here. Is there a war or something of that level of civil liberties impact that we should be paying attention to?
I'm also not sure what work the 'proclaim a supportive ideology' is doing in the analysis. Aren't we talking about pro-life people more in general rather than just gunman? So aren't we implicating the 'supportive ideology' people?
Publius is already at the "The law should recognize these concrete dangers and not pretend like these protests come straight out of a Norman Rockwell painting of a townhall meeting. It's fun to argue about free speech in the abstract -- but we don't really have that luxury" stage.
Posted by: Sebastian | June 01, 2009 at 03:04 PM
some people are determined to have things their way
And here we see the real kernel at the core of a lot of this rhetoric: how dare those uppity bitches get above their station.
You see the same thing in rhetoric about abortion 'on demand', or women supposedly using abortion as birth control, or having an abortion as the result of 'careless' or 'casual' sex. It's what drives the nonsense about how murdering an unborn baby is OK if there was a birth control failure, or in cases of rape or incest. It's why you hear abortion described as 'not taking responsibility', whereas leaving your infant to be raised by strangers (i.e. adoption) is somehow much more responsible.
Posted by: mythago | June 01, 2009 at 03:08 PM
Late term abortions done for unacceptable reasons are rare and represent a small percentage of abortions, and they shouldn't be allowed either.
Okay. I just don't know what that has to do with some small number of murders, when all murders are illegal. There is never a legitimate reason to kill an abortion doctor aside from the legitimate reasons to kill any other person.
The question is, what (or whom) are you willing to sacrifice to disallow this admittedly small number of unacceptable abortions?
If there we some means of preventing healthy women from terminating healthy fetuses at 8-1/2 months that didn't involve all sorts of other terrible things happening, I'd probably be in favor of it. I guess it comes down to what policy you're actually advocating. Mine is "state hands off" until someone can come up with something better.
Posted by: hairshirthedonist | June 01, 2009 at 03:10 PM
You're right, Gary, of course. I am aware of VA v. Black, but was (over) simplifying.
Posted by: Mark Field | June 01, 2009 at 03:28 PM
"I'm also not sure what work the 'proclaim a supportive ideology' is doing in the analysis."
I was pointing out that your example conflated two sets of people it shouldn't conflate, and therefore isn't useful. As usual, if I'd wanted to make a larger point, or some other point about something else, I'd have made it.
I don't get involved in abortion arguments, as a rule, you may or may not have noticed; such arguments expend much energy, but convince almost no one.
Posted by: Gary Farber | June 01, 2009 at 03:49 PM
That's because the question as to whether the fetus (At some stage...) is a person with rights, or not, is doing almost all of the work. To change somebody's mind on abortion, you have to change their premises, not just challenge their reasoning.
And, of course, it doesn't help that both sides typically are using a very funky definition of "person", to guarantee they get to be right. On one side, the very possession of human DNA supposedly makes you a person, on the other, it's a matter of nothing more than topology.
They're both nuts, the fetus gradually becomes a person, it's an object which is in the process of changing from one status to another. That's why it's only a subset of late term abortions which are really problematic.
But, contra Jes, they really are problematic.
Posted by: Brett Bellmore | June 02, 2009 at 06:57 AM