Reproductive Rights and Libertarianism

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  1. Honestly, I think the answer to this is simply that for libertarians, abortion is a particularly thorny and difficult issue that ultimately comes down to a philosophical question of “what is life? Who has rights?”  Those are difficult philosophical questions, but different answers to those questions create diametrically opposed liberty interests.

    So that’s the first issue.  Because that first issue is so thorny and complicated from a libertarian perspective, it makes a poor candidate as a litmus test for an average libertarian’s vote.

    The second is that Roe v. Wade is now 40 years old.  We’ve had, in the meantime, more Republican Presidents than Democratic Presidents, and all of the Republican Presidents, to my knowledge, have stated adherence to the pro-life side of the debate, two quite passionately so.  And yet abortion is not noticeably more restricted today than it was 39 years ago.

    This leaves the impression that abortion is more of a culture war issue, at least on the federal level, than it is an issue of real policy.Report

    • Avatar Roger in reply to Mark Thompson says:

      I agree with Mark.

       Report

    • Avatar greginak in reply to Mark Thompson says:

      Abortion is more limited then it was at least 10 or 20 years ago. R v W hasn’t been repealed but constant pressure, much of in the form of violence and repeated threats, has led to clinics closing. In much of the country there is only one clinic for an entire state and doctors are flown in from distant areas. There has also been the constant drum beat of “minor” restrictions  such as forbidding state insurance exchanges for paying for abortions, age restrictions and the attempts at declaring fetuses people with rights.

      For many women abortion is a right they can’t use unless they have enough money to get away from where they live.

      Info on abortion restrictions in the last year:

      http://www.washingtonpost.com/blogs/ezra-klein/post/2011-the-year-of-the-abortion-restrictions/2011/12/29/gIQAbJqjOP_blog.htmlReport

      • Avatar James Hanley in reply to greginak says:

        Everything greginak says is true.  The question is whether it’s really a long-term trend or whether it’s a side-effect of a temporary conservative swing that was actually based on economic factors.  If so, the new efforts to restrict it could even work up a backlash against conservatives.  Example, the South Dakota legislature’s effort a few years back to wholly ban abortion, which resulted in a) an abortion clinic being opened up on an Indian reservation, where the SD gov’t couldn’t touch it, and b) the citizens voting to repeal the ban before it took effect.

        This is merely suggestive; I don’t make this argument with confidence.  But I will note that public  opinion on abortion has been fairly consistent for some time now, and it’s a middle-ground position that doesn’t support either unlimited abortion-on-demand or a complete ban on it.  So I expect we’ll see continued fighting over this for at least a couple of more decades (perhaps longer), but with neither side ever able to secure a total victory.  If we were to base the policy purely on the median voter position, abortions would be available in the first trimester for sure, and in later trimesters in cases of rape or incest, but there would probably be a 24 hour waiting period, and minors would have to get parental or judicial approval.Report

        • Avatar Kim in reply to James Hanley says:

          I hate the idea of minors needing parental permission. It’s still her body, dammit. If the kid’s ten years old, and she’s pregnant, do you really want to tell her parents? The odds of that being a “once and done” pregnancy is next to zero…Report

          • Avatar Tod Kelly in reply to Kim says:

            I used to think the same, Kim.  Being a parent totally changed that.  (And I have boys!)

            BTW, this is not one of those “I have kids so I know better” comments… just an honest admission of how disconnected the “entirely theoretical” was to the “hopefully theoretical” for me.Report

            • Avatar Jesse Ewiak in reply to Tod Kelly says:

              But reality is, that if you have anything close to a reasonably decent relationship with your kids, they’re either going to let you know something has happened or it’ll be fairly easy to know something has happened.

              To be blunt, I doubt the child of anybody on this site will be sneaking off to Planned Parenthood. OK, many Robert Cheeks, but outside of that.Report

    • Avatar Sam in reply to Mark Thompson says:

      “And yet abortion is not noticeably more restricted today than it was 39 years ago.”

      What is this claim based on? State governments have made numerous laws in the past year alone designed specifically to make it more difficult for women to get an abortion, from enacting ridiculous licensing requirements for clinics to mandating waiting periods for women to give them the chance to “think it over” and defunding Planned Parenthood. More discussion is here. It seems to me that because these issues don’t effect men as obviously as they do women, we are freed from the immediate consequences of legislation.Report

      • Avatar Tom Van Dyke in reply to Sam says:

        Men & women have statistically equal views on abortion.  More restrictions on abortion than now are favored by a strong majority of Americans, even a majority of Democrats.

        The Roe regime represents a more extreme position than that favored by a strong majority of Americans.

        http://www.gallup.com/poll/148631/Common-State-Abortion-Restrictions-Spark-Mixed-Reviews.aspx

        Report

        • Avatar Sam in reply to Tom Van Dyke says:

          So liberty should be defined by the majority’s whims?Report

          • Avatar Tom Van Dyke in reply to Sam says:

            “Liberty?”  You can’t Michael Vick your dog.  We “define” the limits of liberty all the time.Report

            • Avatar Sam in reply to Tom Van Dyke says:

              You can Michael Vick your dog. You just can’t be Michael Vick when you do it. And of course we define the limits of liberty all of the time, but I assumed (perhaps incorrectly) that you especially were a person who didn’t want third parties defining for you what you and weren’t allowed to do.Report

              • Avatar Tom Van Dyke in reply to Sam says:

                That wouldn’t be something I would say, Sam.  I support laws against torturing animals, although there’s no “libertarian” justification for telling someone what they can and cannot do with their own property.

                But I can’t really penetrate the euphemisms and summary question begging of “reproductive health,” “women’s healthcare” and “what a woman does with her own body.”  These are formulaic attempts to evade if not shut down the real question.

                Who said it should be legal for doctors perform this “procedure?”  Are they also “free” to mutilate a woman’s body if that is her wish?

                There are a lot of “self-evident” presumptions at work here that aren’t self-evident atall.Report

              • Avatar Sam in reply to Tom Van Dyke says:

                Yes, they’re free to mutilate her body if that is her wish: see most American actresses over the age of 40.Report

              • Avatar Tom Van Dyke in reply to Sam says:

                Not a sincere rejoinder, Sam, and neither was yr reply on Michael Vick and animal abuse.  We are clearly not engaging, nor did I have a reasonable expectation that we would.Report

              • Avatar Sam in reply to Tom Van Dyke says:

                My apologies for not engaging in the manner that you wanted, but those were sincere responses.Report

              • I’ll second Sam here.  We do allow doctors to mutilate a woman’s body if it’s her wish.  Heck, we allow non-doctors to do it (piercings, tattoos, scarification, and branding).  If the focus shifts from an argument about fetuses being humans with right to a discussion of what women can do to their own body, with or without a doctor’s assistance, the pro-life side loses, hands down.

                One of the worst arguments for choice is that the fetus is just like a tumor, but if the focus is just on what a woman can do, we de facto treat the fetus as nothing more than a tumor.

                So Sam’s response is both sincere and on-point.Report

              • That’s not what I meant by “mutilation,” and I think we all know it.

                If a woman came in with her Bible and asked the doctor to follow “If thine eye offend thee, then pluck it out,” and he did, we’d rightfully send his ass to jail.

                Please, gentlemen.Report

              • That’s not what I meant by “mutilation,” and I think we all know it.

                No, Tom, and goddamit you do this all the time.  Just because you know what you mean does not mean you’ve explained it clearly so that we get your meaning.  You used the word “mutilation,” standing on its own, without further explanation; that gives us no basis for interpreting your restricted interpretation of it.

                For the record, the lovely wife and I used to regularly pass by a piercing, etc., shop in San Francisco called “Body Manipulations,” which we (despite being somewhat favorable towards tats and piercings ourselves) always called “Body Mutilations.”

                You have a duty to others, when using a word with a broad meaning, to specify your meaning, or at least not to selfishly assume they must know your limited intent.

                (Also for the record, I would indeed let the doctor pluck out the woman’s eye, if that’s what she wanted.  But then I’m pretty radical on that type of thing.)Report

              • I expect the gentle reader knew exactly what I mean by “mutilation” after reading me for 2 minutes and from the context in which I used it in this discussion.

                As for allowing a doctor to pluck a woman’s eye out if that’s what she wants, at least we have achieved clarity.  It was designed as a reductio ad absurdum, but as we see, no reductio is too absurd these days.Report

              • I expect the gentle reader knew exactly what I mean by “mutilation” after reading me for 2 minutes and from the context in which I used it in this discussion.

                I believe you.  I am quite sure you do expect this.  What I am trying to tell you is that you employ this expectation far too often, on occasions when it is wholly inaccurate.  That is, I believe your expectation is sincere, but it is very often just dead wrong.Report

              • Avatar DensityDuck in reply to Tom Van Dyke says:

                He knows what he means, and so do you.  Unfortunately, if you respond to his meaning in the way he means it, you lose the argument.  However, there’s nothing forcing you to respond he way he means it, which destroys the Socratic dialogue he’s trying to construct, and that’s very frustrating to him.Report

              • Avatar Kim in reply to Tom Van Dyke says:

                Okay, your next mutilation: excessivly large breasts, which will shortly distort a woman’s spine and cause neverending pain.

                OKAY! because a woman Looks Better to American Eyes that way.

                Let’s face it, we allow doctors to do many many things that are horrible to patients, so long as they consent.Report

              • Avatar Kim in reply to Tom Van Dyke says:

                Why not? I’m not seeing you going on a crusade about circumscion, which is a far more problematic case of paternalism.Report

        • Avatar North in reply to Tom Van Dyke says:

          What most of this demonstrates is that there are few policies more harmful to pro-choice causes than generally pro-choice policy. Similarily I have no doubt that nothing would torpedo pro-life popularity and support more than enactment of pro-life policy.Report

      • Avatar Mark Thompson in reply to Sam says:

        That was a poorly framed sentence on my part.

        What I was trying to get at is that Roe specifically has not been noticeably weakened over the years despite the best efforts of conservatives.  The legislation with which you are concerned is on the state level, and I had intended to acknowledge that legislation implicitly with my subsequent use of the phrase “at least on the federal level.”   The federal level is really all that matters here since we’re talking about the POTUS election, and AFAIK there hasn’t been any issue that has popped up as to whether any of the candidates will decline to enforce various federal abortion laws against the states in a new and different way.

         Report

        • Avatar Sam in reply to Mark Thompson says:

          Paul has campaign on both the We The People Act (which prevents federal judges from intervening in abortion) and the Sanctity of Life Act (which defines life as beginning at conception, which for some has meant a ban on not only abortion, but birth control). How are these not plainly positions at odds with a woman’s individual freedom to make healthcare decisions about her own body?

           Report

          • Avatar Mark Thompson in reply to Sam says:

            If he has, then shame on him.  If that is a significant and substantial basis for his popularity compared to other candidates in the GOP primary, it largely even undermines my rationale for being willing to vote for him, though I’m skeptical that it is such a basis since it is not materially different from what the other GOP candidates are campaigning on AFAIK.

            The We the People Act, to me, is deeply offensive to liberty (although mostly because it would apply to far more than just abortion).  The Sanctity of Life Act is less so, though I certainly have no shortage of objections to it.  To the extent that it would wind up preventing birth control, it would also go significantly further than merely attempting to answer a difficult philosophical question and would also be deeply offensive to liberty.Report

            • Avatar Tom Van Dyke in reply to Mark Thompson says:

              The We the People Act [text] removes these questions from federal jurisdiction, no more no less, and returns them to the states.

              Source texts are good.

              I also see no chance of it passing, or even being brought up for a vote.Report

              • Avatar Sam in reply to Tom Van Dyke says:

                There is intent behind the idea of removing certain questions from federal jurisdiction, and that has everything to do with steering legal questions to judges who will answer in a way that you want them too. (Which, of course, has always been my problem with Paul. He cheerleads liberty but endorses a system that will unquestionably be bad for liberty in many cases.)Report

              • Avatar Tom Van Dyke in reply to Sam says:

                No, Sam, the intention is to return these moral questions to the people and legislatures of the states, not to another set of judges.Report

              • Avatar greginak in reply to Tom Van Dyke says:

                Its this kind of response that leads people to think you are disingenuous Tom. The issue of abortion is in the hands of each individual woman right now. They can each decide what to do. Legislatures already can and do make laws about abortion, they just can’t outlaw it. And that seems to be what you are writing between the lines. You want states to be able to outlaw abortion, which is quite a bit different from taking it away from judges or giving it to people. Giving it to the “the people and legislature” as you frame it would take away rights from some people. But you don’t seem to want to directly discuss the rights of woman to control their own bodies, that is a diversion to you. It seems like the arguments you don’t want to have are diversions.Report

              • Avatar Tom Van Dyke in reply to greginak says:

                “What a woman does with her own body” is a slogan, not an argument, Mr. Gregniak, and is the disingenuousness here.

                The formulation begs the question of whether there’s another body involved besides the woman’s.

                So I don’t blame you for attacking my objection [and me personally] because you do not have an answer.  I should probably cry foul more often myself to deflect these attacks on me, but I prefer to discuss the topic.  Were I to play sophistry cop, I would have time for little else.Report

              • Avatar sonmi451 in reply to Tom Van Dyke says:

                This calculation from libertarians always amazes me – federal government = the greatest threat to liberty and the buggest tyrant ever, but state government = the will of the people, puppies, ponies, roses and all those other good stuff. What makes the politicians running for state office rather than federal ones better and more worthy of trust when it comes to liberty? There’s a magical rainbow somewhere that turns all state politicians into angels, but the minute they run for national office, they magically become the devil?Report

              • Avatar sonmi451 in reply to Tom Van Dyke says:

                Why is it “the will of the people” and “returning the questions to the people” only applies for state level? Do the PEOPLE not vote for national elections? Hey, if we REALLY want to follow the will of the people. maybe even the state is too large a unit, how about each district having its own abortion law, or any kind of laws? Surely that’s more representative of “the will of the people”, no? What’s so great about the states that liberartarians put all their faith on the state government to protect liberty, but not federal government or local city government?Report

              • Avatar James Hanley in reply to Sam says:

                Sam: <i>There is intent behind the idea of removing certain questions from federal jurisdiction, and that has everything to do with steering legal questions to judges who will answer in a [particular] way …</i>

                Tom: <i>No, Sam, the intention is to return these moral questions to the people and legislatures of the states, not to another set of judges.</i>

                You are both correct.  The intent is to return the questions to the states, where it is known that some of those states’ legislatures will further restrict or even ban abortion, and where it is known that those policies will be scrutinized by a different set of judges than those who sit on the Supreme Court, with the expectation that at least in some of those states where the legislature restricts/bans abortion that set of judges will uphold the law.

                If pro-life advocates did not anticipate state judges upholding these laws, they would have less incentive to federalize the abortion question.Report

              • The Roe court upheld no existing laws: it subsumed them.

                At the state level, judges “upholding” abortion restrictions or prohibitions is not quite an analogous issue—state constitutions are fairly easy to amend, trumping the judges.

                [Or in the case of Iowa recently, to vote out the judges who created a right to SSM.]

                On the federal level, with lifelong tenure, and with a constitution that’s notoriously difficult to amend*, the We the People Act barks up the correct tree.  In fact, it would also strip the Supreme Court [if it were inclined to] from stripping SSM from a state like NY that quite legally and properly established SSM through its legislature.

                 

                * I don’t expect the US Constitution to be amended again, in our lifetimes at least.

                 Report

              • The Roe court upheld no existing laws: it subsumed them.

                Weak sauce.  Right now state courts are effectively required to not uphold certain restrictions on abortion; if Roe is reversed they could uphold them.  That’s all that’s being said, and your response is surprisingly beside the point.Report

              • Avatar DensityDuck in reply to Tom Van Dyke says:

                “[S]tate constitutions are fairly easy to amend, trumping the judges.”

                Unless you live in California.Report

              • Tom: I looked that up before responding (hence my reference to issues other than abortion). My problem is that it takes issues that to me are indisputably questions of individual liberty and indeed are what might be called natural rights, and says that the states can override those liberties. That places state rights over individual liberty in a way that would lay waste to the 14th Amendment, which is a huge problem for me as a libertarian.

                That it has no chance of passing is not very relevant if Paul has been campaigning on it, since any vote I make for Paul is intended to send a very specific message; if his advocacy of the We the People Act significantly distracts from that message, then that significantly reduces the ability of a vote for Paul to send that message.Report

              • Avatar Tom Van Dyke in reply to Mark Thompson says:

                MarkT, I think arguing abortion as a “natural right” would run into great difficulty.  The best foundation is as a constitutional right, and only then by making the Constitution speak where it is silent.Report

              • Avatar Stillwater in reply to Tom Van Dyke says:

                Conversely, is taking a pregnancy to term a ‘natural obligation’?

                Is that an interesting question?Report

              • Yes, Mr. Still, it’s a very interesting question and one that I don’t know if I’ve ever seen addressed in these things, since the familiar arguments are run and rerun instead.

                The concept behind exceptions for rape and incest are precisely based on this point: there was no consent on the part of the woman [or girl] to the sexual act.

                In cases of consensual sex where a pregnancy results, yes, the argument is that the woman has indeed incurred a [natural] obligation and has no “natural right” to free herself from it.Report

              • Avatar BSK in reply to Stillwater says:

                Incest can be consenual.Report

              • Avatar Tom Van Dyke in reply to Stillwater says:

                The idea, my dear BSK, is that the incestee, being a child, is incapable of giving consent in any meaningful way.  Let’s be clear on this.Report

              • Avatar BSK in reply to Stillwater says:

                Whynmake that different from rape? Especially when many people’s acceptance or abortion in the case of incest are less focused on consent and more on the “depravity” and risk to the fetus of even consentual incest amongst adults?
                So, yes, let us be clear: if you accept abortion in the case of incest on the grounds that one partner was non-consenting, would younalso extend abortion in the case of incest to consenting adult incest? If not, then your exclusion is solely for rape. If yes, then my point stands and demands addressing.Report

              • What if both parties to the incest are 18 and its voluntary?
                Report

              • Avatar Tom Van Dyke in reply to Stillwater says:

                You have no standing to “demand” any courtesy of a reply from me, BSK, or demand anything else.  I like Thrasymachus in Plato’s Republic a lot because he’s my kind of asshole, but he’s rude and Socrates would have been more justified bouncing a goblet off his head instead of answering him.

                [That would have been fun.  If they made a movie of it, the screenwriter would have been forgiven for taking that liberty.]

                I’m making justifiable exceptions on abortion based on moral reasoning: there was no consent to the sexual act that created the pregnancy, no moral obligation incurred.

                If you’ve noticed, BSK, and mebbe you haven’t—many participants in this discussion have given ground based on moral reasoning, not on their leanings, druthers, and actual positions, at arm’s length, not policy prescriptions.

                [I’m obliged to embarrass my customary foil Dr. James Hanley here—an endorsement from TVD being a kiss of death hereabouts—who has argued the pro-life position despite being in agreement with not an ounce of it.  So too, the pro-choice MarkT, who elegantly noted that a “libertarian” can be either pro-choice or pro-life depending on his moral judgment about where human life begins.

                The possibility that both positions might be ethically principled tends to escape the Bumper Sticker Brigade.  “A woman’s right to her own body” is no better than “It’s a baby, not a choice.”]

                As for “adult incest,” you’ve fallen off the GPS and driven into the lake.Report

              • Avatar Stillwater in reply to Stillwater says:

                Tom, I have to take exception to some of this. First, BSK’s demand wasn’t out of line: his demand was for a response to a legitimate question in a line of inquiry, not a personal affront to your  by sovereignty. Second, James H and Mart T have been presenting – not making – arguments from the pro-life side of things. They’re both pretty clearly on the side of ‘choice’, and primarily because they think that insofar as the abortion issue can’t be decided definitively by any metric, they opt for freedom rather than coercion.

                But also, when you say that “a woman’s right to her own body” is a bumper sticker rather than an argument, you reveal yourself as someone who hasn’t thought about, or read, or talked about, these issues in any determinative way. The claim that a woman has a right to her own body is not a trivial catch-phrase, for many people – presumably half the population – it’s the starting point of the abortion discussion.Report

              • Avatar Tom Van Dyke in reply to Stillwater says:

                First of all Still, BSK has no right to “demand” anything, especially rudely.  Second, I was writing in appreciation of JamesH and MarkT stating fairly the arguments from the other side when I have read them carefully enough to know they don’t endorse them.

                who has argued the pro-life position despite being in agreement with not an ounce of it. 

                Third, I have only heard the “woman’s right to her own body” at least a thousand times and understand it.  It’s a bumper sticker, for reasons already given today, that it begs the question of whether there’s another “body” involved.  It asserts there is not, and attempts to shut down any further discussion.

                So if there’s nothing else, Still, I’ve had my say, and having to say it twice is once more than I should need to.

                 Report

              • Avatar BSK in reply to Stillwater says:

                I didn’t demand anything.  The point I made did.  You can choose to ignore it, which does nothing but cement your reputation as a duck-and-dodge artist.  Or you can address it, genuinely and honestly, and continue the conversation.  You have clearly chosen the former, putting me and my methodology on blast instead of the issue at hand.Report

              • Avatar Kim in reply to Stillwater says:

                TVD,

                I don’t see the anti-choice people as willing, able, or intending to ever keep holes like “rape or incest” open…

                I recognize their personalities — and a rat remains a rat (herein used in the Chinese zodiac, not in the American sense).

                After all, it becomes entirely too easy to blame the victim.

                But hell, if you outlaw abortion, women die. girls die. Already, one of the main causes for women leaving their homes to wander on the streets is abuse. If you don’t give them a way to “hide the evidence” I’m certain more would be kicked out.

                And that’s not even counting anything else.

                You say that a woman is obligated to carry a child to term. I say that a woman may choose. Because its her body at risk, sometimes at rather severe risk of developmental defects.

                But hell, for you, a baby outweighs the potential risks to its mother (herein seen developmentally, not a “life or death” scenario).Report

              • We’re not having a “conversation,”. BSK.  You inserted yourself into one with an irrelevant objection.  And just because I walk away from a fight with a rude person who isn’t getting it doesn’t mean I’m “dodging,” so you can stuff that slander, too.

                Sir.Report

              • Kim, we’ve been discussing the issue at arm’s length, or many have.  I haven’t promulgated my position, nor do I particularly want to: the discussion’s the thing, re-examining our starting premises and preconceptions.

                Yes, I do argue there’s an ethical obligation incurred when one [or two people, really] conceive a child through consensual sex.  Whether that necessarily leads to bringing the child to term is a further question.

                Or whether we should make it legal for a doctor or other third party to take up the forceps and erase that obligation.  That doesn’t necessarily follow either.Report

              • Avatar BSK in reply to Stillwater says:

                You said objectionsin the case of incest are predicated on a lack of consent. I pointed out that incest does not imply a lackof consent since it can be between consenting adults. I asked you to clarify. You’ve refused. It is not slander when it’s true. It is inconvenient for ou to deal with facts that you cannot distort so you go ad hominem. I’m sorry that your point on this specific issue has been exposed as fraudulent. I was hoping your supposed belief in the integritof language would make you open to considering the sloppinessof your own use. But, alas, your ego won out and the dodging continues.Report

              • Avatar JOHN S in reply to Stillwater says:

                Nice rant Kim, but with all due respect, you don’t know me or recognise my personality. You also don’t make arguments, you just spew accusations and insults. Were you intending to call some folks ‘rats’ because they might disagree with you? Or more accurately, actually discuss points that don’t completely support your own dogma?Report

              • Avatar Kim in reply to Stillwater says:

                John,

                back down, boy. You’re taking insults where none are meant — and I just said that Explicitly. I have previously defined what Rat means, in terms of sexual personality, in the Chinese/Japanese system. Rats are actually considered diligent beasts over there, not horrible ones.

                Also, when I talk about anti-choice people, I more primarily refer to what used to be called the Christian Coalition (and now is partially Dominionists, and people who remove birth control from their ideal communities).Report

              • Tom- this is why I’m exempting abortion from my problems with the We the People Act.  My problems are that it seems to go much further than simply taking questions of abortion out of the purview of the courts.  It seems to have been in no small part a response to Lawrence v. Texas, for example.Report

              • MarkT, it’s definitely a reaction to Roe, and I think to the real possibility that SS marriages from other states will be ordered by the SC to be recognized in states that don’t have it, and don’t want it.

                Lawrence v. Texas was rather an anomaly, since sodomy laws have been largely ignored for decades anyway.  I’m not inclined to re-litigate it here.Report

  2. Avatar DensityDuck says:

    Gosh, I don’t see any links in that post at all.  Surely it shouldn’t be difficult to find a bunch of juicy red-meat quotes from every Republican candidate about how they’re totally gonna ban abortion first thing, eight o’clock, day one.  I mean, you’ve got that big long blog post, surely you must have some support behind it, right?Report

    • Avatar Sam in reply to DensityDuck says:

      Do you really need links to the policy platforms of each of the Major Republican Candidates on abortion? Here they are: Santorum, Gingrich, Romney, and Paul.Report

    • Avatar Tod Kelly in reply to DensityDuck says:

      This seems a bad faith argument.  Saying because Sam did not link to positions that each candidate has made part of all their regular stump speeches, that has been covered ad naseum, feels like blowing smoke.Report

      • Avatar Tom Van Dyke in reply to Tod Kelly says:

        Mr. Kelly, I too prefer direct quotes and not characterizations of people’s positions, which often descend to caricature.

         Report

        • Tom, if I wrote in a post that Republican candidates suggested lower taxes, would you really call foul if I didn’t cite my sources?  In a blog post, I get that you might demand that someone back up a claim that, say, Ron Paul wouldn’t support civil rights at the state level.  But making someone source that the GOP candidates have been declaring themselves anti-abortion – in a blog post – seems a bit silly, like you’re just looking for something to quibble about.Report

          • Avatar DensityDuck in reply to Tod Kelly says:

            “Tom, if I wrote in a post that Republican candidates suggested lower taxes, would you really call foul if I didn’t cite my sources?”

            That depends.  Is your entire post based on the premise that every Republican in the world wants to lower every tax that exists, and that this is bad and should be prevented by voting for Democrats in November?Report

            • Avatar Tod Kelly in reply to DensityDuck says:

              Yes, because that is clearly the exact corollary of Sam’s post about the Major Republican Candidates:  When he said Major Republican Candidates, he so obviously meant “every Republican in the world.”  Good call.Report

              • Avatar Sam in reply to Tod Kelly says:

                Didn’t I provide sufficient linkage for the claim?Report

              • Avatar Tod Kelly in reply to Sam says:

                You did; you also didn’t need to.  Any claim that you were making up the candidates’ position on abortion was silliness; I suspect that DD responded to what he mistakenly assumed you said rather than what you actually did.

                I find with this issue in particular, people quickly discern what side of the aisle you sit on, and then stop listening and come up with pre-dtermenied arguments for whatever they have decided you are going to say.

                That there was so little of this in these threads is really a testament to the post.  Approaching it the way you did forced most to use a system of rights inherent in their political philosophies as a jumping off point, and (as has been said by others here) led to a much, much better conversation than I might have predicted.Report

              • Avatar Tod Kelly in reply to Sam says:

                Also, it just occurred  to me because of your response that the dripping sarcasm I had intended in my “corollary” comment wasn’t as obvious as intended.Report

              • Avatar DensityDuck in reply to Tod Kelly says:

                :rolleyes:  If that’s honestly what you’re upset about, then fine; the unsupported assertion didn’t refer to all Republicans, merely to all the Republican Presidential candidates we’re likely to be voting for.  Is that better?  It still doesn’t make there have been supporting links in the post.Report

  3. Mark beat me to it, on both counts. But I’ll expand anyway.

    I understand liberals’ fear that Roe v. Wade will be repealed.  It’s not a ridiculous fear by any means, and looking at the number of Supreme Court justices who are conservative and liberal demonstrates the reasonableness of the fear.  And yet that close balance has been there for decades, without being tipped.  That doesn’t mean it can’t or won’t be tipped–the next appointee may be substantially different than a Sandra Day O’Connor, and Kennedy may not continue to play her role.  But, for good or ill, constant worrying about a threat that could happen but never has, tends to wear down the patience of those who are sympathetic but not wholly committed.

    And as Ron Paul shows, you can be a libertarian and be a principled opponent of abortion.  Yes, it requires government involvement in an individual choice, but so do laws against battery and murder, and libertarians don’t oppose those.  If a libertarian has concluded that the fetus is a human life with human rights, then it is morally monstrous to not at least struggle with the issue.  I come down on it differently from Ron Paul, largely because I remain unconvinced the fetus has rights, but even I am uncomfortable with abortion on demand, even though I unequivocally support it as policy.

    A third reason may be that libertarians tend to be favorable toward federalism, and the repeal of Roe v. Wade would not mean abortion is banned nationwide, but is returned to the states as a policy issue.  For those who see choice as a fundamental right, this is as monstrous as returning the choice of racial discrimination to the states, and given their position on abortion rights, rightfully so.  But for those who are torn between the issue of whose rights, the mothers or the fetus’s, should trump (or which trumps in which types of cases), returning the issue to the states for continued political debate and experimentation is reasonable.

    For my part, Paul’s pro-liferism is one of my critiques of him, although I am guilty as charged of not speaking up much about it (at least this time around; I have in the past).  Any of the moderate Republican candidates could satisfy me on this issue if they would say;

    “I am strongly pro-life, but also strongly opposed to government dictating individual’s most crucial and personal choices.  As president I would defend Roe v. Wade, but would encourage comprehensive sex education and support programs to give pregnant mothers alternatives to abortion that would give them an incentive not to abort.  Yes, there would still be abortions, but there would also be abortions if we banned them, as the history of prohibition of everything we’ve ever tried to prohibit shows, and the human wreckage of a ban is an unacceptable cost to such a policy.

    But none of them have said that; and since the unyielding pro-lifers are a much more prominent voice in the party than the yielding pro-lifers, I don’t expect any of them will.Report

    • Avatar Michael Drew in reply to James Hanley says:

      James, do you deny that the Court’s composition has been trending closer and closer to one that might take the step?  If not, how can one take issue with maintained and escalating concern on the part of advocates?  We require what they view as an apocalypse to actually take place in order not to lose “patience” with their continuing concern?  Under those circumstances, I have a hard time knowing how I’d suggest to them that they should be concerned with whether your patience with them has run out.Report

      • Avatar Loviatar in reply to Michael Drew says:

        I second every word of this.Report

      • do you deny that the Court’s composition has been trending closer and closer to one that might take the step?

        It depends on the time frame we’re talking about.  Sure, closer than the 1973 Court.  But trending “closer and closer”?  I think you can make a reasonable argument for it, but I don’t think you can make an indisputable argument.

        And let me make a mild correction if I came across as “taking issue” with liberals’ concern.  I intended to emphasize that I thought their concern was entirely reasonable, but then explain (not argue for, but just explain) the “loss of patience” on the part of those who are generally sympathetic, but not as deeply committed, to the issue.

        That’s why I wrote, ” That doesn’t mean it can’t or won’t be tipped…  But, for good or ill…”  I am not discounting the possibility that the loss of patience with the less committed may in fact turn out to be a bad thing.

         Report

        • Yes, this is what I had in mind as well.

          (Another big hug, James).Report

        • Avatar Michael Drew in reply to James Hanley says:

          I wouldn’t say it’s indisputable, either; it’s certainly not the easiest thing to quantify. But I would say that if it’s not trending closer and closer, that’s because Democrats occasionally win national elections.  And that goes directly to the point on which you were moved to say you lose your patience: that this matter determines voting for many liberals to the exclusion of so much else.  I’d have no issue with your taking issue with that value ordering, but instead you chose to question the empirical basis for their concern, and I think the basis is quite clearly established.Report

          • you were moved to say you lose your patience

            Michael,  I’ve already clarified that I wasn’t talking about myself, but making a general explanation about what some people’s motivations might be.  You cannot justify your statement attributing this position to me.

            instead you chose to question the empirical basis for their concern,

            I wrote, “It’s not a ridiculous fear by any means, and looking at the number of Supreme Court justices who are conservative and liberal demonstrates the reasonableness of the fear,” and ” I intended to emphasize that I thought their concern was entirely reasonable,” and you somehow got out of that “questioning the empirical basis for their concern”?

            Really?  Are you arguing in bad faith or are you just not reading carefully?  I want to assume the latter (because I want to act in good faith myself), but it’s pretty egregious.

            I would say that if it’s not trending closer and closer, that’s because Democrats occasionally win national elections.

            I agree.  Although I didn’t make that point myself, it’s perfectly congruent with everything I’ve said.  Of course I also expect Democrats to continue to at least occasionally win national elections (and if the Republicans persist in making themselves an ideological, rather than umbrella party, I expect the frequency to increase).Report

            • Avatar Michael Drew in reply to James Hanley says:

              Well, I just don’t get what leads to the loss of patience, then.  I think you did question it – whether the threat as it actually exists justifies the level of priority given to it.  Saying that you questioned it is not to say that you denied it outright.  I’m not sure how it’s bad faith or failure to read accurately to say so.Report

              • Michael,

                Put yourself in the position of someone who is not as deeply committed to the issue as I’m guessing you are (please correct me if wrong).  They are likely to think differently about the issue than you, and to understand them you have to grant that different thinking.

                I see at least two ways they could be approaching this differently.  One, a person who’s not deeply committed to the issue may only be focusing on the big picture outcome, not on the details of how that outcome has come about.  You are focusing on the details–and that makes for better understanding of the policy outcome, to be sure–but they may not be.

                The other way is to look at the details of how we got to the policy outcomes and to see normal and predictable political patterns; to assume that “yes, conservatives will always attack abortion rights, but liberals will always defend them, so I expect that something around the status quo will be maintained.”  From that perspective, repeated strong emphases that “this time we really might lose,” could be seen as crying wolf.

                The irony of this latter position, of course, is that this “normal” politics may happen only because the deeply committed folks stay on high alert all the time.  But if they can be expected to stay on high alert, then the not-committed aren’t wrong in not sharing the high-alert status themselves.  But still the deeply committed aren’t wrong to continue to be concerned, because if they don’t maintain their high alert, they could lose.  It’s ironic, yes, but understandable if you can mentally shift back and forth between the viewpoints of two allied but distinct groups.Report

              • Avatar Simon K in reply to James Hanley says:

                The irony of this latter position, of course, is that this “normal” politics may happen only because the deeply committed folks stay on high alert all the time.  But if they can be expected to stay on high alert, then the not-committed aren’t wrong in not sharing the high-alert status themselves.

                We could call this the Efficient Politics Hypothesis. Except of course it isn’t …Report

              • Avatar Michael Drew in reply to James Hanley says:

                Ok. Not sharing the high-alert seems to be different from losing patience with people who do, but if that’s what you meant I get it now.

                How about addressing that as always you went after my good faith and/or intelligence (raising both amounts to going after both, to tell the truth) and I explained why that was baseless, or at least addressed it (I may not have perfectly understood you but I hardly grossly mischaracterized you in a way that would justify that kind of comity-rupturing response) and now you just let it drop?  Does it stand or will you retract?

                And for that matter, why do you do that at the drop of a hat all the time?  It really kills the atmosphere.Report

              • Not sharing the high-alert seems to be different from losing patience with people who do, but if that’s what you meant I get it now.

                “Losing patience” was a bad phrase, I see now.  While not entirely incorrect, it gives a different impression than I intended.  What I meant was that after repeated warnings that don’t come to fruition (even if they don’t solely because the warnings roused people), some people will get jaded and become harder to rouse.  They’ll adopt a “you’re just crying wolf” attitude, even if that’s an unfair characterization of what the committed folks are doing.

                How about addressing that as always you went after my good faith and/or intelligence

                Not lack of intelligence, but lack of careful reading (intelligent people, particularly on blogs, are also apt to not always read closely).  But note that  I didn’t do so the first time you mischaracterized me.  I accepted that I may not have been clear.  But after I have twice said the concern is reasonable and you still accuse me of attacking its justification, I do get a bit irritable.

                And if I came across as rather annoyed, it’s also because you attributed the position to me personally a second time, after I responded to the first attribution by accepting responsibility for lack of clarity and emphasizing that it was not my own view.  So in two ways you mischaracterized me even after I disavowed the characterization.

                I don’t want to assume bad faith.  And I categorically don’t assume lack of intelligence.  But unless there’s a fourth option I’m missing, that leaves only careless reading.

                Of course there remains the alternative that I was still unclear.  But I don’t see how my calling the fear “reasonable” (twice) would be unclear enough to suggest that I was questioning the legitimacy of its basis.  But perhaps I’m failing to see something here.

                 Report

              • Avatar Michael Drew in reply to James Hanley says:

                I really wasn’t following that you weren’t referring to yourself, and if I am locating where you say you clarify that you were not correctly, I think that your language remains very confusing.

                I do read quickly here; I’m trying to manage the amount of time suck this place imposes on me.  It’s on me to not mischaracterize you in bad faith, but I think I should be able to ask that you meet the requirement of writing clearly before launching to the kind of personal attacks relating to “reading comprehension” (a univerally understood internet tradition of rank insult of another’s intelligence)  or bad faith you tend to.  I think you were pretty unclear on all of these things here, and in any case it’s an odd thing to try to explain what other people might feel about someone’s else’s political views to yet another person – I think it’s not unreasonable that I didn’t immediately understand that you meant this, since many times when some one says, “It’s like this for people who look at things this way..” they do happen to be including themselves.  It wasn’t clear one way or another.  And it’s odd that you would be so moved to explained the feelings of unnamed others with whom you don’t identify to us.

                What’s more, you responded in various places.  As I do frequently as well. But you need to keep in mind the nested comment system here that causes comments to post in places that we chronologically might not expect to see them.  But the solution is really just to not skip to being insulting to other commenters at an early point in an interaction and without confirming that they’ve done something that warrants it.  If someone misunderstands just say, ‘You’ve misunderstood me in this way.’  It gets the job done just as well. You don’t have to fall on your sword the way Mark Thompson nearly always does when there is some misunderstanding about what he’s written (though you could). Give being a nice guy a try, in other words. Cuz in this interaction, and in many others, you aren’t.

                Happy New Year. Congrats to your Ducks.Report

              • Michael,

                OK, I’ll accept that I could have been clearer.

                It’s such a common thing in political discussion on the internets to either purposely or carelessly (and I mean that in the sense of truly not caring) misinterpreting one’s debate opponents, that I probably too quickly assume that’s what’s happening  (which, of course, is to do the same thing; sigh).

                My apologies for being a bit of a dick about it.  I could have re-asserted my point without going there.Report

              • Avatar Michael Drew in reply to James Hanley says:

                Thx James.  Again, Happy New Year.Report

              • And to you, my badgery friend.Report

        • Avatar Michael Drew in reply to James Hanley says:

          …And I guess I just don’t understand why you would lose patience in the forst place.  Because Roe hasn’t been overturned, even if we can agree it’s very conceivable?  I’m not getting where you’re coming from.  What does your patience ride on here?Report

    • You’re right, James, that no GOP candidate courting the votes of pro-lifers will say such a thing, especially as a lot of pro-lifers define being pro-life as being a proponent of the prohibition of abortion.  They would say such a candidate is by definition not pro-life.Report

  4. I am a libertarian pleased to support no candidate, and this is a great reason. Obama is fine with keeping Plan B away from those who most desperately need it, and fine with insurers being forbidden to pay for abortions because of their new need to be involved in universal health care. They can all go to hell.Report

    • Avatar Will H. in reply to Robert Hutchinson says:

      Now, this is the sort of thing that I don’t understand.
      In no other policy consideration can I think of, other than primary education, is a personal right expected to be fully funded by the government.
      And so, what if I need a gun? Surely, libertarians would never trample on my Second Amendment rights.
      So, why can’t I get the government to ship me out a nice Ruger?
      Maybe even partially fund it, as we do with higher education?

      Where does this thing about, “Pay for it yourself,” equate to restricted access?

      I just want to see some consistency.Report

      • The problem–and if I misapprehend the situation, someone please tell me–is that if I am a private insurer perfectly happy to pay for abortions (in total or in part), I now have to choose between eliminating that option or not playing with the new 800-pound economic gorilla in the room. That could well be business suicide for an insurer.

        The fungibility of money + gov’t involvement + “not with my money you dont” = crowding out private options.Report

  5. Avatar Kyle Cupp says:

    As Mark and James have noted (I want a hug too!), some libertarians don’t approach the abortion issue exclusively or primarily as an issue of women’s liberty, not because they’re really not proponents of women’s liberty, but because the issue is, to their mind, more complex than that.Report

    • Avatar Loviatar in reply to Kyle Cupp says:

      You know, I always find this argument problematic; at its simplest you, Mark, James and others like you are saying that abortion is “too complex a problem” to leave to a woman and her personal physician. You and others like you seem to have no trust that women can make the best decision on how to deal with their body – nanny state at its worst – something Libertarians are supposed to abhor.Report

      • Avatar Stillwater in reply to Loviatar says:

        Libertarian-splainin?Report

      • Avatar Kyle Cupp in reply to Loviatar says:

        Not exactly.  I’m pro-life (or anti-choice, if you prefer), but not because abortion is too complex a problem to leave to women (in or not in consultation with her physician).  The complexity of this issue refers to competing and incompatible moral/political claims of the nascent life and the woman.  On the one hand, you have the claim that a women should not be forced by the state to remain pregnant against her will; on the other hand you have the claim that the state should protect the nascent life by prohibiting abortion.  To see the issue as complex is to recognize that the issue involves both these competing claims.  To see it as simple is to recognize the involvement of only one of these claims.Report

      • Avatar James Hanley in reply to Loviatar says:

        at its simplest you, Mark, James and others like you are saying that abortion is “too complex a problem” to leave to a woman and her personal physician. You and others like you seem to have no trust that women can make the best decision on how to deal with their body

        No, this is absolutely wrong.  The critical issue is whether someone views a fetus as a human with rights equivalent to every other person’s.  I don’t, as I suspect you don’t, which is why you and I do trust the woman with the choice.

        But if someone does view the fetus as having equal rights, then to say “we trust the woman to make the right choice” becomes (imperfectly) analogous to saying “we trust the woman to make the right choice about whether to kill another person or not.”

        We can only deny the legitimacy of that by refusing to recognize their belief in the fetus’s personhood as being a legitimate belief.  Many people on the pro-choice side do, I think because it makes their position easier.  While I disagree with the belief in fetal personhood, I don’t think it’s an illegitimate belief, and I don’t think a sincere person can say so.

        That granted, though, the analogy suggested above is, as I noted, imperfect, because when we disallow letting a woman kill some already birthed person we are not imposing any positive duties on her, whereas when we disallow letting her kill the fetus, we are imposing positive duties on her.  So even when we grant the fetal personhood position, I don’t think it creates an automatic moral win for pro-lifers.  But reducing fetal personhood to paternalism over the woman reflects either a misunderstanding of the position or a purposeful misrepresentation.Report

        • Right – the “complexity” is not with respect to whether “women can make the best decision on how to deal with their body.”  I don’t think any libertarian, whether pro-life or pro-choice, would disagree with that statement.

          The “complexity” comes in the difficulty of determining whether, and at what point, the zygote/fetus/child is “their body” at all.

          This is an extraordinarily difficult and philosophical question that science can inform, but cannot answer.  I, like James, am more or less fully pro-choice.  I’m increasingly even coming to the opinion that the answer to me is something approaching “when the cord is cut.”  But I can’t say that this answer is any less arbitrary than “when the heart beats,” “when the fingers form,” or indeed even “at conception.”Report

          • Avatar Sam in reply to Mark Thompson says:

            Mark and James,

            Would you feel the issue was so complex if there was any chance that it was going to be your body instead of a woman’s? Surely the fact that we’re simply not capable of being pregnant makes it easier to take positions on this issue, one way or the other?

            There is obviously no analogous health care decision that only men make that women seek to have dominion over.Report

            • Avatar Mark Thompson in reply to Sam says:

              Would you feel the issue was so complex if there was any chance that it was going to be your body instead of a woman’s?

              I certainly think that women’s attitudes on this question are inherently worthy of more weight than men’s.  What’s more, I will even readily acknowledge that on a philosophical level, women, particularly women who have been pregnant at some point in their lives, are far better situated to come to an answer as to when life begins, as they have experience to draw from that I could never hope to have. However, it is clear that this question is just as, or at least nearly as, complex for women as it is for men.

              Surely the fact that we’re simply not capable of being pregnant makes it easier to take positions on this issue, one way or the other?

              That’s just it, though – we’re arguing that it’s extraordinarily difficult to take positions on this issue.  This is indeed in no small part because we’re men.

              There is obviously no analogous health care decision that only men make that women seek to have dominion over.

              But I do not seek to have dominion over this.  I am as close to fully pro-choice as one can be.  Regardless, are you saying that only women have the right to an opinion as to when life begins?Report

              • Avatar Sam in reply to Mark Thompson says:

                I didn’t mean you personally with regard to dominion; I meant those who seek dominion over women’s bodies via anti-choice legislation. My mistake.Report

              • Avatar JOHN S in reply to Sam says:

                This isnt a ‘domination over others’ argument. I know of no one who is pro life because they want to boss women around. The vast majority, i would say are pro life because they believe abortion to be the killing of a human being. Whether this applies only to certain terms in the pregnancy or is absolute is really just a question of when life begins.  If you do not believe that the unborn are human beings with rights then there really is no pro life or anti abortion argument left.

                 Report

              • Avatar James Hanley in reply to JOHN S says:

                Yeah, but if we begin from the position that abortion is the killing of a life, it’s a lot easier to argue for a ban on it if you’re comfortable bossing women around.  The less comfortable a person is with that–that is, the more sincerely a person thinks that the women’s interests and autonomy deserve serious consideration, too–the less comfortable a person is advocating strict controls on abortion.Report

              • Avatar JOHN S in reply to James Hanley says:

                That’s nonsense  James, if you will forgive my saying so. If I believe abortion is murder then it makes no difference whether you are a woman or a man, you should be prevented from doing it. I will boss both sexes and all races equally. Rape is committed mostly by men, i have no problems supporting laws against it and severe punishment for it.

                    A person’s view on the killing of children (we are proceeding from understanding that I see it as such ) do not reflect on their respect for women’s rights, interests and autonomy. They are two different issues entirely. To spell it out: women do not, in my view have a right to kill their children. The point of argument is when the child becomes a child.Report

              • John,

                No, not nonsense.  I grant your point that if you see abortion as killing, it’s hard to grant any limits on banning it.  But even then we can recognize that the woman “the killer” is affected by a ban in a way that most killers aren’t affected by a ban on their action.  The ban on you killing me doesn’t really impose any costs on you, whereas the ban on a pregnant woman killing her fetus does impose costs on her.

                I’m not saying that those costs trump fetal rights.  I’m saying that different people will weigh those costs differently, some giving them less weight and some giving them more weight.  And one of the factors that will determine how much weight someone gives them is how much or little they respect a woman’s autonomy.  For some, even great respect for a woman’s autonomy, and a general discomfort with “commanding” women, will not trump the fetus’s rights, but it will make such a person less comfortable in supporting a ban on abortion.Report

              • Avatar JOHN S in reply to James Hanley says:

                James:  It`s true, ones concerns for people autonomy, suffering, etc. will likely temper ones atitudes towards crime and punishment. However, it is the suggestion that someone who is against abortion must somehow be less concerned for womens right, autonomy than pro choice people that gets me. I do place more importance on the lives of the innocent than i do on the personal freedom of choice and autonomy of others. Thus my concern for a womans right to chose is subjugated to my concern that we are allowing unborn people to be killed. This does not quantify my concern for either issue, it merely means i feel more strongly about one than the other.Report

              • John,

                I agree that the “must” claim is wrong.Report

              • Avatar Kim in reply to JOHN S says:

                “I know of no one”…

                I know of many. For a considerable amount of men, it is a biological victory to quietly rape a woman (compel her, psychologically manipulate her) and force her to carry the baby to term. Many of these people exist in positions of power. They like to boss women around.Report

        • Avatar Katherine in reply to James Hanley says:

          Thank you so much for saying this.  I’m pro-life, and have been in far too many debates where the issue has been reduced by pro-choicers to simply “If you’re pro-life, it’s because you hate women.”

          Having taken developmental biology, I can say that a fetus is more than just “a clump of cells”.  It’s an incredibly complex, individual organism that is undergoing the process of development from the moment of conception.  That’s what makes the issue so complex, and so hard to discuss.

          The precise policy answers are something I haven’t settled on (though I’d like to see abortion more regulated), but I can say that Canada has sex ed and social supports more than the US does, and has roughly the same abortion rate: “safe and legal” doesn’t seem to lead to “rare”.  I’d still like to see stronger supports for single mothers – it’s a good idea for any number of other reasons – but alone it doesn’t seem to be the answer to reducing abortion rates.

          Felt this was a good place to put my two cents in, as you were all saying that women’s views on this had more weight.Report

          • Avatar Kim in reply to Katherine says:

            what does more regulated mean to you? Some sort of “undue burden”-less regulation? (bearing in mind that if you have to drive 16 hours to get to an abortion practitioner, you’re increasing the cost if you have a 24 hour waiting period)Report

        • Avatar Will H. in reply to James Hanley says:

          I think you’re ignoring the middle ground, Hanley, and an obvious one.
          The fetus has non-person status.Report

          • Avatar James Hanley in reply to Will H. says:

            Will,

            No, not ignoring it.  It’s pretty much my own position.  I’ve just been making devil’s advocate arguments here, saying that if you see the fetus as a person, then it’s no longer solely a question of women’s rights, but a more complex one of competing rights.Report

    • Kyle,

      Happy New Year, hugs for everyone!Report

  6. Avatar Sam says:

    Wouldn’t a more libertarian position on abortion amount to something along the lines of, “Although I do not personally agree with abortion, I do not believe government should make healthcare decisions for individual women. As such, I will spend my time trying to convince women not to get abortions, but will not use the government to do that work for me.”Report

    • Avatar Mark Thompson in reply to Sam says:

      This is a dodge, though.  It assumes the answer to the fundamental question of “when does life begin” can be objectively determined.Report

      • Avatar Sam in reply to Mark Thompson says:

        Respectfully, I wasn’t making that assumption when I posted my question. I was trying to write something similar to libertarian positions/talking points on other issues (like poverty and charitable giving, for example). But just so I’m clear, are you arguing that because we cannot objectively determine when life begins, abortion is thus an issue that would allow for government intervention? (Not necessarily for yourself, but in the minds of libertarians who are simultaneously pro-life.)Report

        • Avatar Mark Thompson in reply to Sam says:

          are you arguing that because we cannot objectively determine when life begins, abortion is thus an issue that would allow for government intervention?

          I wouldn’t put it quite that way, as it’s a much stronger statement than I’d make, and indeed I’m trying to make a very weak statement.  Your formulation would mean that I thought merely uttering the word “abortion” would justify or at least legitimize government intervention, which I would not be willing to sign on to.

          What I’m saying is that:

          The question of when life begins is not a question to which libertarianism purports to provide an answer.  Moreover, it is a question for which no objective answer is possible, and reasonable people will come up with vastly different definitions.  Worse, it is a question that is incredibly important to any system of government, so it’s not a question that can just be ignored as a political matter. In such circumstances, it is likely appropriate for the question to be answered democratically.

          2.  Once one has answered this question, a libertarian can and should adopt policy preferences consistent with this answer, but only insofar as necessary to do so.  A libertarian who comes down on the “life begins around the cutting of the chord” should be pretty firmly pro-choice.  But a libertarian who comes down on the other side should be pretty firmly pro-life.

          3.  Because “liberty” does not and cannot provide an answer to this question, it is a question that is largely outside the scope of how a candidate should be evaluated, at least if you are doing the evaluation on purely libertarian grounds.

          Of course, I see no reason why it should be necessary to evaluate a candidate on purely libertarian grounds, even for an ardent libertarian.  But if libertarian grounds are your metric, the fact that this is ultimately dependent on an objectively unanswerable question makes it a pretty low priority.

          Ultimately, my answer to your question is probably something along the lines of “yes, if you define life as beginning at an earlier point than the cutting of the chord; no, if you do not.  But on purely libertarian grounds it should be a pretty low priority one way or another.”Report

          • Avatar Tom Van Dyke in reply to Mark Thompson says:

            Elegant, Mr. Thompson.Report

          • Avatar Sam in reply to Mark Thompson says:

            If reasonable people will come up with wildly different definitions, why throw the answer into a democracy, which by its nature is designed to make decisions about which is and isn’t the correct answer? If anything, it would seem to me that because the issue cannot be answer, the solution is to leave it a decision made by individuals, one in which other individual can attempt to intervene via persuasive, peaceful means if they feel it necessary.Report

            • Avatar Mark Thompson in reply to Sam says:

              That’s a reasonable policy argument.  But it’s not  an argument that  stands or falls on libertarian grounds or addresses the problem; it is surely not an argument that applies to whether the issue should be a higher priority issue on libertarian grounds.

              Indeed, if one comes down on the “life begins pretty early on” side of the equation, then it goes to the very core purpose of the State that those lives should be protected and that efforts should be made to ensure that those lives are eligible for protection by the State.

              Most importantly, though, the question of who/what is and is not a “person” goes directly to the essence of the State’s authority to the extent that such is legitimate.  Surely the State, if it is to be legitimate at all, must have a clear definition of who/what is and is not within its jurisdiction.

              Here’s a good analogue, and indeed something that you can even use against libertarians in the future: property rights.  Property rights are simply not possible to define or determine a priori – there are countless competing philosophical definitions of what is and is not property, what is and is not ownership, and how one may obtain legitimate title.  If there are competing legitimate philosophical claims of property rights, how does one determine the superior claim?  The answer, of course, is that the State establishes rules defining property rights, ideally through resort to some sort of democratic principle.

              For the State to remain agnostic about this question of property rights for it to leave it to the individual to decide because it is so impossible to define, would be for the State to take the de facto position that property rights are entirely a matter of possession. Whoever possesses, owns, and vice versa. This is obviously problematic, and so we need to find a solution.  That solution, ultimately, is that the State has to define property rights; the question at that point becomes whether it will be a monarch, a despot, or a democracy that determines such rights, which is another issue entirely.

              The abortion issue is exactly the same type of issue.  Indeed, I could even argue that it is part and parcel of the question of property rights: is a zygote/fetus/infant an independent human with its own rights, or is it the property of the mother with her possessing the right to exercise dominion and control over it as she desires?Report

              • Avatar JOHN S in reply to Mark Thompson says:

                I agree completely. The point, it seems is for the state to define the issue as best it can, based on it`s founding principles and the moral attitudes of it`s people. A referendum would be held in which the populace would make a majority decision. Rinse and repeat as technology or other factors merit.

                  At any rate, the question involves overlapping questions of rights and responsibilities. I had never thought of it as a property right before….Report

              • Nob Akimoto Nob Akimoto in reply to Mark Thompson says:

                Perhaps I’m misreading what you’re saying, but I’ve always gotten the impression from discussions with libertarians that property rights, and specifically ownership were considered to be natural rights, rather than derived rights. That is the moment you say the state’s required to define property rights, then we’re already off the reservation of libertarianism and classical liberalism and into some other murky territory.

                If property rights aren’t innate, and instead require state intervention, doesn’t this begin to erode the entire basis on which libertarian philosophy is based? Or am I being led astray by the fact that many anarchists like to use the language of libertarianism to justify their views?Report

              • Most libertarians have a natural rights view of property rights, but it’s not a requirement. So viewing property rights as involving state recognition (or as I would put it, social recognition; property rights can be real in a stateless community) certainly erodes the basis of a particular–and very prominent–strain of libertarianism, but not necessarily of libertarianism per se.Report

              • This is one of those areas where I disagree with most libertarians. It’s also one where I think most libertarians are not only wrong, but demonstrably so. I tend to view property rights and respect therefor much more as a rule of law issue than as a natural rights/negative liberty issue.

                If we’re talking very very generally, I can understand the claim that property rights are natural rights. My objection arises when you then try to figure out the contours of those property rights. How does one prove that a Lockean theory or system of property rights is just, but a first possession theory is not? Even if you accept a Lockean view as being the only natural rights view, it doesn’t get you very far before you wind up having to resolve conflicts in a way that just can’t be done a priori. Ultimately the contours of those rights have to be defined by an entity with legitimacy.Report

              • Avatar Stillwater in reply to Mark Thompson says:

                Even if you accept a Lockean view as being the only natural rights view, it doesn’t get you very far before you wind up having to resolve conflicts in a way that just can’t be done a priori. Ultimately the contours of those rights have to be defined by an entity with legitimacy.

                This statement, I would submit, is not only a pretty decisive argument against a priori Grand Vision Libertarianism. It’s the fundamental premise justifying what we in we currently call ‘liberalism’.Report

    • Avatar Loviatar in reply to Sam says:

      I second every word of this..Report

    • Avatar Kyle Cupp in reply to Sam says:

      This position would make sense if the libertarian thought of abortion only as or primary as a “healthcare decision,” but not all libertarians conceive abortion this way.Report

  7. Avatar Tod Kelly says:

    Excellent post, Sam.  I’m not a libertarian, of course, but the arguments that Mark, James and Kyle voice do seem to me to ring true, and allow for what you see as a disconnect.  However, I also think your recognition of said disconnect is true as well.

    If I might tie this post in with Erik’s post on labels, one of the things I have learned by hang in out here is that at the end of the day most of us are pretty much on the same page, even though we like to think we are at opposite ends of the spectrum.  Position by position, Jason and I (I have found) disagree on almost nothing (maybe nothing period?) – except that using the “libertarian” mantle is the proper way to get to those positions.

    We are all far more alike than we like to think.Report

  8. Avatar Jaybird says:

    One thing that I find to be wacky… if you asked folks in the US if they thought that the US had more restrictive abortion laws than, say, Europe or if Europe had more restrictive abortion laws, I would tend to suspect that we’d get mostly answers that said that the US was more restrictive than Europe… well, more restrictive than Northern Europe, maybe on par with Southern Europe.

    When, according to this, the US has among the most liberal abortion law in the world. Seriously: We’re up there with Russia.

    The attitude that if we tighten abortion law, at all, we’ll suddenly have women dying in back alleys and we’ll all be stuck living in 1940’s America again seems… well, to lack nuance.

    There is room between where we are and 1940. There’s Sweden, for example.

    (Now, keep in mind, I say that as someone who feels that abortion should be legal up to and including the moment of crowning for reasons as trivial as eye color selection.)Report

  9. Avatar greginak says:

    @Tom- Of course there is a fetus involved and what we think or believe about its existence is important. However there is a woman involved. Not a slogan but a person. That is where there is a conflict because the woman definitely has certain rights while the rights of the fetus are widely disagreed upon. You appear unwilling to acknowledge the woman in the equation. In fact i think you explicitly said there was no conflict over the rights of women and/or fetuses in a different thread.

    You still seem to be talking around what you want. You talk about returning the issue to the people and legislatures when what you want is to send it to states where you think you will be able to outlaw abortion at the state level. Getting rid of abortion seems like your goal but you are dressing it up in the language of freedom.Report

    • Avatar Tod Kelly in reply to greginak says:

      If I may, greg…  I think for some, because of when they believe “life” begins, this argument is tantamount to saying that an infant being killed is a woman’s rights issue because there is a mom that needs to care for it.  I don’t see it as pretending a woman isn’t there so much as thinking that the scales of rights infringement are inherently tipped far, far in one direction.Report

      • Avatar greginak in reply to Tod Kelly says:

        Tod- I don’t have a problem if a person says human life  with rights beings at conception. I don’t agree but thats fine. The line of argument that says just send it back to the “states and people” is simply arguing for , what they feel, is a change of venue to a place where they can have more success. If somebody wants to argue federalism is the bestest i don’t agree but thats fine. But there is a disingenuous that argues for sending it to the states based on all this freedom talk when the issue they think they can win there.

        I think its fair to say there is rights conflict between a fetus and a woman. For many people the age of fetus matters a lot to the rights it/he/she will have. What i don’t see is a discussion of the woman side of the conflict. Its not just a woman has to care for the baby but a woman has to be pregnant. Tom has explicitly said the womans body argument is a distraction. That is not what i would call addressing the issue.Report

        • Avatar Tod Kelly in reply to greginak says:

          FWIW, I agree with you, but I also get where those that don’t are coming from.

          In fact, this is one of the reasons why I think this issue has become more about continuing the war than trying to come to a conclusion.  Were I pro-life, and my number one concern was getting enough people to agree with me that abortion was wrong, the very first thing I would do is try to lay out some proposed system that reduces or eliminates abortion while still appeasing those for whom women’s rights issues are a genuine concern. (And historically, those are very real issues.)

          Instead, I see these issues mocked.  And I see accusations (even here, by the writing staff) that those that are pro choice are OK with killing 6 month olds.  And constant dialogue only with those who we already agree with.

          This suggests to me that we have reached that stage where continuing the war we feel empowered fighting has become our real mission.Report

    • Avatar Tom Van Dyke in reply to greginak says:

      Mr. Gregniak, I’m speaking of the very nature of rights and of morality, and you aren’t even in the same building with what I have written.

      And leave me personally out of it, por favor.Report

  10. Avatar Mike Dwyer says:

    Sam, you’re suggesting that libertarians must defend a woman’s right to choose based on personal liberties but you base that on an assumption that they don’t see the fetus as a life with it’s own rights.

    Mark beat me to this. He’s exactly right about libertarian support (or lack thereof) being based on the determination of when life begins. If life begins at conception, for example, a libertarian would defend the child’s right to live as a personal freedom.

    You say in your post:

    “…intervention into a woman’s personal medical decision making…”

    So that seems to indicate a very liberal view of abortion. Many would say, “Intervention into a woman’s attempt at killing her unborn child.” If you can’t acknowledge that reality then you will of course be unable to understand pro-choice libertarians.Report

    • Avatar Sam in reply to Mike Dwyer says:

      I think I assume that, for the libertarian, the right to do with your own body trumps all other concerns. There is something intimate about the idea that a third party could tell you what obligations you do and don’t have. But your argument is that when a pregnancy is involved, that right stops, and in fact, that right is eliminated entirely by the need to give birth to that child?Report

      • Avatar Stillwater in reply to Sam says:

        But your argument is that when a pregnancy is involved, that right stops, and in fact, that right is eliminated entirely by the need to give birth to that child?

        I think his argument is that pro-life libertarians would be inclined to view things that way. Which I think leads precisely to the issue you bring up: on what grounds is simply being pregnant a sufficient condition for the abrogation of a woman’s otherwise existing rights?

        Personally, I think that’s the correct question to be asking here – not only to pro-life libertarians, but all pro-life advocates: on what grounds is the right to life of a fetus justified as a trumping right? Personally, I don’t see that there’s a sound argument for this conclusion. At a minimum, the fetus and the mother have competing rights. So on my view, anyone who skips over the right’s-conflict part of the issue simply cannot coherently sustain a pro-life position. (They are, of course, entitled to their opinion.)Report

        • Avatar Brandon Berg in reply to Stillwater says:

          Because in the vast majority of cases the mother has some degree of responsibility for the fact that the fetus is in a situation where it cannot survive without the use of her womb, whereas the fetus has none. Only in the case of rape would you have genuinely conflicting rights.

          Granted, I don’t buy the premise that a fetus has rights. But the argument for banning abortions except in the case of rape (the mother had no choice) or non-trivial risk to the mother’s life (which she could not have reasonably foreseen) seems pretty solid to me provided that you do accept that premise.Report

          • Avatar Katherine in reply to Brandon Berg says:

            I’m not entirely disagreeing, but I think this argument is precisely what freaks out the pro-choice side, because it comes across as a rationale for saying women shouldn’t have sex (birth control does occasionally fail), or that if they do, everything that happens thereafter is their own fault.  In contrast, there are no remotely similar repercussions to sex that men face, and very few people make the argument to men that they shouldn’t ever have sex outside of marriage because they might inadvertently conceive a child.

            The “choosing to have sex” = “choosing to become pregnant” concept skeeves out a lot of people, and I can understand why.  This isn’t at the heart of the pro-life argument – the heart of it is that you can’t kill a person just because that person’s existence makes your life more difficult.Report

            • Avatar North in reply to Katherine says:

              Indeed Katherine, this is a very important point. I always find myself rankled when this line of argument ‘the woman is responsible for the fetus being inside her” is deployed. More adamant feminists generally refer to this as ‘Slut Shaming’ and while I wouldn’t subscribe to that incendiary level of rhetoric I feel there is a salience to it.

              What users of this female responsibility argument always seem to ignore or scuttle away from is that it generally does take two people to cause a fetus to appear in a woman’s body (or a person and a God in one scenario I read about somewhere).  This also ignores the historical, sociological and psychologically unhappy fact that at least 95% of the arts; 50% of economics; 50% of society; 95% of athletics and large proportions of every other human activity in existence is pursued with the express or implicit purpose of overriding any given woman’s disinclination to get pregnant and convince her to open the drawbridge so to speak.

              So yeah I really don’t like the whole “well it’s her fault for having sex” thing.Report

              • Avatar Tom Van Dyke in reply to North says:

                But if the sex was consensual, Mr. North, a [natural] obligation has been created.  It just didn’t “happen.”  We are responsible for the consequences of our actions by any ethical code imaginable, even if the consequences were unforeseen, even if not explicitly negligent.

                It’s not about guilt, or slut-shaming. It’s about ethics, and we cannot change the natural order—that it’s women and not men who get pregnant—with abstract theorizing about “rights.”

                The men don’t get off scot-free, either.  They have a price to pay for consensual sex too, if it results in a pregnancy.  18 years of child support payments, and he doesn’t even get the “choice” of giving the child up for adoption.

                [Let’s not digress into that legal swamp, how deadbeat dads duck out.  The fact is, he has an 18-yr obligation, one that cannot even be discharged through bankruptcy.]Report

              • Avatar sonmi451 in reply to Tom Van Dyke says:

                “… and he doesn’t even get the “choice” of giving the child up for adoption.”

                Yeah, I don’t think we want to go down the road of a father having the right to put a child up for adoption just because he doesn’t want to pay child support. Snatching the baby from his mother’s bosom and giving him to someone else just because the father is too cheap.Report

              • Avatar Tom Van Dyke in reply to sonmi451 says:

                Hey Sonmi, I’m a feminist.  Man for man, women are the better human beings.  They keep this country running.

                Men should be made to suffer.  Fortunately they are, although not nearly enough.Report

              • Avatar sonmi451 in reply to Tom Van Dyke says:

                Yeah, this is as hilarious as Murali calling himself a liberaltarian. FYI,  most women don’t actually want people to acknowledge women as “the better human beings”. That just lead to things like putting women up on a pedestal and then treating them like slutty, slutty sluts when they do anything that men disapprove of. We just want equality, and that equality includes the right to screw up, just like men, without being given an extra hard time, because – yo, you the ladies, you should be better human beings than men!Report

              • Avatar Murali in reply to Tom Van Dyke says:

                Yeah, this is as hilarious as Murali calling himself a liberaltarian

                So, what. I like free markets and efficient safety nets because that is what would benefit the worst off, endorse personal and civil liberties.

                I think democracy sucks and that the right to vote is over-rated, I think that marriages would last longer and be better for all the parties involved if people just stopped trying to get married when in the throes of romantic love though I offer no concrete policy proposals except perhaps the legalisation of marriages of conveniance. I think for reasons that liberals should take seriously, that abortion should be severely restricted. and suddenly I’m not liberal-tarian?

                Get real.Report

              • Avatar JOHN S in reply to sonmi451 says:

                Ah so thats why all fathers do that. I had no idea our behaviour was so….homogenous.Report

              • Avatar North in reply to Tom Van Dyke says:

                Arguably Tom, but any weight I would give to the arguement that “the sex created a “natural” obligation” is negated by the weight that I give to the arguement that any given woman is faced by almost 50% of the entire species turning a considerable amount of their entire waking attention to the matter of persuading, cajoling, tricking or otherwise coaxing women into having sex with them.Report

              • Avatar Tom Van Dyke in reply to North says:

                That’s an argument, Mr. North. I don’t think it holds up as more than poetic, but it’s an argument, so I’m good with that.

                But ethical reasoning demands we move one square back, that putting herself in that position in the first place [getting drunk with the type of guys mom and dad warn you about] still incurs moral obligations.

                And there is a way to fulfill that moral obligation that gets left by the door in these discussions, giving the baby up for adoption.  You must have noticed that that choice has not been mentioned much in all this.Report

              • Avatar Jesse Ewiak in reply to Tom Van Dyke says:

                So, the choice of a single bad decision is a minimum of nine months of being in an at-risk physical condition?Report

              • Avatar Tom Van Dyke in reply to Tom Van Dyke says:

                Jesse, you mutated “ethical obligation” into “a single bad decision,” which takes us off the same page.

                Further, “a single bad decision” has changed many a life forever, as have ethical obligations. It’s what real life is made of.Report

              • Avatar North in reply to Tom Van Dyke says:

                 

                As with all things abortion related Tom it boils back down to questions of personhood. If a woman has unprotected sex with a scofflaw or even has sex with a fine fellow but suffers a contraception failure then you (and pro-lifers) assert that there’s a natural moral obligation (presumably to the zygote thus formed). Since neither I (nor pro-choicers generally) consider a zygote a person (or persons- some zygotes turn into more than one person) we don’t feel that the woman owes a moral obligation to anyone but herself.

                Personally I concede that as the pregnancy progresses at a certain stage a very small moral obligation develops and then increases and intensifies as the woman continues to permit the pregnancy to progress until at the stage where the infant is capable of surviving outside of the woman she does have considerable moral claims competing against her own. But for the overwhelming majority of all abortions that take place I view nothing morally problematic to have occurred.

                As always, being Canadian by upbringing, I find the abortion debate in America bemusing in how it inverts the normal MO’s of the respective sides. Left wingers and liberals develop a keen appreciation for individual rights, personal sovereignty and personal property rights; right wingers and conservatives turn into positive rights endorsers to an intrusive and intimate degree that’d make them scream socialism to the heavens if the subject in question was anything other than a pre-viability fetus.Report

              • So, the choice of a single bad decision is a minimum of nine months of being in an at-risk physical condition?

                No good deed goes unpunished.Report

              • Avatar Tom Van Dyke in reply to Tom Van Dyke says:

                Mr. North, there are a lot of miles in between “personhood” and nothing more than a toenail.  I think we need a better microscope.

                “Personhood” for the zygote was even voted down in Mississippi, and even if it had passed, it would be an extreme outlier.

                But you touch on the mileposts in between toenail and person, and it’s on them that the great majority of us hang our hats.Report

              • Avatar North in reply to Tom Van Dyke says:

                Most assuredly Tom, the problem then steps on out of the moral to the mere practical. Pregnancy stage estimating is an imprecise science. Is the fetus a week old? Two weeks old? How many months? There are some concrete indicators at certain developmental stages but beyond that one is pretty much out of luck. So the questions of aborting then become pretty much yes/no in general.

                And with respect most pro-lifers who I read online generally view banning of abortion entirely to be the end game to which incremental bans of certain stages of abortions are mere waystations. It’s one reason why pro-choicers fight so fervently over the least defensible abortions; if we fight em over there we don’t have to fight em over here. An arguement with impeccable neocon credentials that one.Report

              • Avatar Jesse Ewiak in reply to Tom Van Dyke says:

                To pile on North’s point, I don’t remember who made the point about Europe having more actual legal restrictions than the US does on abortions, but I guess it comes back to this.

                In Europe, there’s no massive movement to ban and criminalize abortion. Yes, abortion is restricted after the first trimester or whatever, but there’s no major parties in Western Europe who want to limit abortion further.

                So yeah, if the end-game for pro-life folks was European restrictions, I wouldn’t be happy about it, but I’d accept that deal for something else from conservatives. More funding for Medicaid or something. On the other hand, there’s no evidence that pro-lifer’s would stop there. So, we fight.Report

              • Avatar Tom Van Dyke in reply to Tom Van Dyke says:

                Mr. North, I don’t think it’s a ban/don’t ban thing atall, and we need an update from 1973 on the science badly.  We know so much more about the prenatal world than we did then.

                Roe was greeted with a sigh of relief by most Americans, I think, taking an agonizing ethical dilemma out of our hands.  We never did the ethics on it on a personal level, content to leave it to theoretical essays we didn’t read, because Roe sealed the question on a practical level.

                But our consciences have been nagging at us, as they should.  Perhaps in the end we’ll come to the same place as Roe, but through hard work of ethical reasoning and not constitutional sophistries.

                Or perhaps we won’t come to the same place.  It could happen, but it won’t if we leave it to the extremists on either side of ban/don’t ban.

                 Report

              • Avatar Tom Van Dyke in reply to Tom Van Dyke says:

                I think what you describe could happen, Mr. Ewiak, in no small part because it represents the actual American consensus.

                Report

              • Avatar Jesse Ewiak in reply to Tom Van Dyke says:

                Sure, if was a national plebiscite with multiple options, required voting, and a ban on any further legislation after the plebiscite was over.

                But in a representative democracy where the pro-restriction (and to a lesser extent, the anti-restriction) side each have such control over their respective parties and the American people don’t get nuance and consensus on any issue.Report

              • Avatar Stillwater in reply to Tom Van Dyke says:

                 Perhaps in the end we’ll come to the same place as Roe, but through hard work of ethical reasoning and not constitutional sophistries.

                Constitutional sophistries? What are you talking about Tom? Most people hold the view endorsed by the Roe decision, not because of it. I mean, you keep suggesting in a devious way that if people only thought about this stuff more, and really wrestled with all the moral problems in play, they wouldn’t be inclined to agree with Roe. How is that not insulting on some level?Report

              • Constitutional sophistries? What are you talking about

                It’s a code.  But it’s pretty easy to crack.Report

              • Avatar Tom Van Dyke in reply to Tom Van Dyke says:

                Still, Gallup says most don’t agree with Roe completely [above].  Constitutional sophistries admitted even by Roe supporters [below].  May I go now?  I don’t mean to be brusque, really, and you’ve been a faithful interlocutor, which I appreciate.  But I’m not speaking in code, or even from the fringe.

                _________________

                Laurence Tribe — Harvard Law School. Lawyer for Al Gore in 2000.

                “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”

                “The Supreme Court, 1972 Term—Foreword: Toward a Model of Roles in the Due Process of Life and Law,” 87 Harvard Law Review 1, 7 (1973).


                Ruth Bader Ginsburg — Associate Justice of the U.S. Supreme Court

                Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the court. … Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”

                North Carolina Law Review, 1985


                Edward Lazarus — Former clerk to Harry Blackmun.

                “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose, as someone who believes such a right has grounding elsewhere in the Constitution instead of where Roe placed it, and as someone who loved Roe’s author like a grandfather.”
                ….

                “What, exactly, is the problem with Roe? The problem, I believe, is that it has little connection to the Constitutional right it purportedly interpreted. A constitutional right to privacy broad enough to include abortion has no meaningful foundation in constitutional text, history, or precedent – at least, it does not if those sources are fairly described and reasonably faithfully followed.”Report

              • Tom,

                Thank you.  I appreciate it when you actually develop an argument instead of just dropping a phrase and acting as though it is sufficient in itself. Because such phrases rarely are, and especially given conservatives’ tendency to denounce as “activist” any judicial outcome they dislike, while liberals tend to persistently confuse judicial interpretation for policy preferences, this is an area where such little tropes are always suspect.Report

              • Avatar Stillwater in reply to Tom Van Dyke says:

                TVD, I’ll second James in thanking you for presenting an argument here rather than simply asserting objections. But from what you’ve presented, and given your previous comments about this, I would be inclined to think your beef with Roe isn’t the outcome – that women were granted a protected right to choose – but rather the merits of the case and the justifications for the decision. If so, then Roe is entirely incidental to any discussion we’re having here and really needs to be addressed in a con law thread.

                But I don’t think this is what you’re doing here. You’re using the procedural arguments justifying Roe as an entry-point into the abortion debate, and suggesting that the argument supporting choice isn’t as a matter of fact justified. So if anyone is hiding behind judicial interpretations here, I think it’s you. You want to reduce the abortion debate to a dispute over conflicting interpretations of constitutional principles rather than whether women – independently of constitutional principles! – do or do not have the right to terminate unwanted pregnancies. I think that gets things backwards, and if you can’t see that then I’ll explain in more detail.Report

              • Mr. Stillwater, Roe isn’t my entry point.  You asked what I meant by “constitutional sophistries,” and I believe I gave a satisfactory answer.

                Yes, Still, you certainly have the floor to make the moral case for the “right” to abortion.  I don’t even know what the foundation of rights is or means in your moral universe.

                Few even attempt to make the case for a non-legal or non-political right to abortion, so I’m encouraged you want to try.  Mostly, they argue that it’s a constitutional right, but as we see, the constitutional case is no slam dunk.

                Since you found yrself obliged to ask me what I meant by “constitutional sophistries,” I trust I have added to your knowledge of the subject.

                “You want to reduce the abortion debate to a dispute over conflicting interpretations of constitutional principles rather than whether women – independently of constitutional principles! – do or do not have the right to terminate unwanted pregnancies. I think that gets things backwards, and if you can’t see that then I’ll explain in more detail.”

                I hope this makes it clear I don’t want to reduce the abortion debate atall: I want to expand it.  So pls do explain in more detail what your point is.Report

              • Avatar Stillwater in reply to Tom Van Dyke says:

                Gladly. On the one hand, it seems to me your unwilling to engage in the debate over the limits and extensions of individual rights as they relate to the abortion debate. To this point, I haven’t yet seen you offer your own take on the subject. You’ve refrained from putting skin in the game. On the other hand, you’ve continually accused people of intellectual laziness and/or willful ignorance of … something … so it stands to reason that you have another argument up your sleeve which you think decisive (or disruptive) here, and if unleashed would put those unfortunate ignorants to shame.

                Well, what is that argument? It appears to be that several legal scholars have concluded that the arguments upon which Roe was decided are unsound. To you, this is some sort of death-blow to the entire pro-choice argument. Why? Because apparently you believe that the right to choose follows from constitutional principles. Well fair enough (maybe). But disputes about how constitutional provisions or legislation ought to be interpreted aren’t noteworthy in and of themselves.

                Which leads to the cart-before-the-horse stuff comes in. On your own view, constitutional rights follow from natural rights and are codified in the language of the Constitution. What the pro-choice advocates argue is that the right of a woman to make decisions about her own body is a natural right. I mean, what could be more natural than that?  But you apparently object to that line of argument because the language codifying natural rights in the Constitution doesn’t unambiguously accord that right. So even on your own terms, you’re (conveniently, it seems to me) placing a higher emphasis on the specific, literal language of the constitution than the rights ostensibly codified therein.

                 

                 Report

              • Avatar Tom Van Dyke in reply to North says:

                JamesH, I’m intensely curious whether you were aware of constitutional criticisms of Roe even by its supporters such as Ruth Bader Ginsburg.

                I’ve been heeding yr advice that I should explain myself more often to my fans/inquisitors.  I had given up b/c they seldom acknowledge it when I provide the factual evidence and links to support my claims, and just switch to biting on my other ankle.

                The acknowledgments here by you and Mr. Stillwater are the rarest of exceptions.

                 Report

              • Avatar Stillwater in reply to Tom Van Dyke says:

                I’ve been heeding yr advice that I should explain myself more often to my fans/inquisitors.

                I think this is good advice to follow Tom. I’d love (LOVE!) to hear more on the explanation side of things. How are we supposed to learn where we’re wrong if you don’t explain it to us?

                 Report

              • Avatar BlaiseP in reply to Tom Van Dyke says:

                Seconded.  I contend Roe is the weirdest case since Plessy and just as dispositive.   If ever there was an argument for a Constitutional Convention, it would be on the basis of Roe.

                Really, the present Constitution is grossly inadequate.  It doesn’t serve the nation as it stands today.   I’ve been watching you as you make your case and find in it a certain grim integrity lacking in almost everything I’ve seen in the blogosphere on this tendentious subject.Report

              • Avatar Stillwater in reply to Tom Van Dyke says:

                BP, I’ll chime in to agree that the constitution is inadequate, but also to say that you have an amazing talent with language, to effortlessly turn a prosaic phrase. It’s uh well you know pretty good stuff.Report

              • Tom,

                Yes, back in grad school, before I gave up on the study of constitutional law as being far too much of a post-modern enterprise (even among conservatives, despite their pretenses that there is a “true” meaning, constitutional interpretation is a pure social construction), I spent some time pouring through some of the literature on Roe.

                But frankly I was never that impressed by the criticisms.  One the one hand it’s a classic case of hard cases making for bad law.  On the other, I think there’s stronger logic to it than its detractors admit.  It all goes back to Griswold, of course, and I think Douglas was absolutely right about his much-mocked penumbras and emanations, because I think it’s silly to proof-text the Constitution, pulling chunks out and examining them de-contextualized from the whole she-bang.  The document is, in important ways, a whole, not a collection of discrete bits.

                I also think that the criticism of Blackmun’s trimester scheme is overworked.  Abortion is, as someone here suggested, a sorites problem (unless we really are going to go all the way to conception and criminalize the taking of the morning after pill).  In such cases the Court has a duty to try to impose some kind of distinctions on a system that inherently has none, and it’s a bit much to criticize them for not doing perfectly what is impossible to perfectly do.  The trimester system, for its flaws, at least has the benefit of working off some reasonable focal points.  Of course that doesn’t keep its central premise of viability from coming into conflict with advancing technology, but like I said, constitutional interpretation is a social construct, and Blackmun’s construction has worked reasonably well, despite all the criticisms of it.

                But my view aside, in addition to the direct critiques of Roe’s reasoning. there is an extensive cottage industry of trying to devise better constitutional reasonings (mostly notable, IMO, for actually being inferior to Roe), which does indicate that even supporters aren’t fully persuaded by the logic.  And no honest defender of Roe can pretend it ain’t so.

                (But for my money, the Constitution gives us no indication that it contemplates fetal personhood.  The best we can dredge from it is a recognition of an individual having rights extant from birth.  Add that to the penumbras and emanations, and I struggle to find authority for government to interfere. And I’m a guy who disdains a former roommate for being that proverbial person who used abortion as birth control (couldn’t take the pill because she smoked, she said) and who was stunned into reverential awe at the sound of my fetal daughter’s heartbeat. I’m not too far off Jaybird’s stance.)Report

              • Mr. Stillwater, I gave up debate for discussion some years back.  The former is unpleasant at best; the latter is what makes life worth living.

                I’ve found that people value only those conclusions they come to on their own, not from listening to somebody speechify.  And I think that’s the way it should be.  So I put out the best arguments and facts from my readings, for people to make of them what they may.

                What, do you think I expect to convince anybody of anything around here, or that I’m running for something?  I’d take a different tack, that’s for sure.  I’m lucky to get out of discussing a controversy with my skin and good name reasonably intact.

                That’s what I consider “winning an argument” around here, Mr. Stillwater, no lie, mere survival.

                Jeez, Socrates didn’t even manage that much.  Pass the hemlock, brother.  And mebbe a Guinness to wash it down with, por favor.

                 Report

              • Avatar BlaiseP in reply to Tom Van Dyke says:

                People are usually more convinced by reasons they discovered themselves than by those found by others.

                – Blaise PascalReport

              • Our LoOG morning torrent will likely bury it, but the irony & beauty of 4 foils who find themselves alternately at each other’s throats [in all combinations] finding themselves together and still at this is Finest Kind.  There is hope.

                Mr. Stillwater, for insisting on clarity; Dr. Hanley for his erudition [I do think Greenwald set one bookend permanently] as well as his consistency in stating the “other side’s” case fairly here; and on a personal note, brother Blaise’s “grim integrity,” which is the furthest thing from prosaic.  It makes one wish he were dead, just to hear it in his eulogy, and to live from this day forward not to belie it.

                Although I need to keep punching up my copy.  Just not on this. It makes them think you’re joking.Report

              • Avatar BlaiseP in reply to Tom Van Dyke says:

                Really, Tom has done yeoman’s work making his case.  We mustn’t allow the essence of his hard-wrung argument to be lost among the encomiums we afford ourselves.

                May I state for the record how I feel about this place, writing here?

                I have the odd disadvantage of English being my second language, not my first. Others have overcompensated as I have done:   Joseph Conrad was a Pole and did the same.

                English is a uniquely rich and bizarre language, the linguistic equivalent of the plate tectonics which thrust India against China, raising the Himalayan mountain range with the Battle of Hastings.   French formed all the polite words, Saxon all the four letter words, the Tudors made Shakespeare and James gave us the King James Bible.   But only France could give the world Molière and Racine.

                I make grammatical errors, see them, regret them, this place has no editing facility.   I have the comma disease.  My prose is, frankly, weird and pedantic.   I don’t have a fixed linguistic identity, I’m now an old man and can’t work it out in my own mind, where I stand.   It is the language of the world now.   I suppose English will lapse into what Chinese has become, a least common denominator among many peoples.  I regret the death of every great writer in English.  Though I never much liked their politics, I mourn Christopher Hitchens and William F Buckley intensely.   The Liberals have not raised up many men of letters lately, though the poets give voice to what they meant.

                Would that I might convey to you all what you mean to me.   The League of Ordinary Gentlemen has raised the bar on what it means to be a blogger in America.   Though no special bar has been raised, the level of debate is so obviously superior even I felt intimidated at first and lurked for some great while.   You are collectively so much better than you might suppose, if only for the level of the prose you generate.Report

              • Avatar North in reply to Tom Van Dyke says:

                Blaise, what is your first language if I might be so bold?

                Also, my own humble applause for the congeniality; it is admirable in any discussion but down right laudable when used when discussing this subject.Report

              • Avatar BlaiseP in reply to Tom Van Dyke says:

                Hausa and French.Report

              • Avatar Kim in reply to Tom Van Dyke says:

                TVD,

                Here’s the deal: most virgin girls Don’t Consent to their first sexual experience. Most girls have sex before 18, and most girls don’t have a steady boyfriend before then. Even of those who did, the emotional manipulation (or physical torture — sleep deprivation and whining…) is often enough. If you asked most girls, “A day before having sex for the first time, did you want to do it?” and asked them “during/slightly before sex, did you want to do it?” and asked them “when you first thought about pregnancy did you want to do it?”

                You’d get a no to one of those three, I’d suspect. In fact, judging by frat parties, you’d get a no to at least the last one for a lot of teenage sexual encounters. “The Walk Of Shame” indeed!

                Those are rapes. Maybe not legally, but one should not be able to take advantage of an altered state of consciousness (particularly one unfamiliar enough to cause marked behavior abberations), in order to press oneself on someone else.Report

              • Avatar Tom Van Dyke in reply to Kim says:

                Kim, you’ve redefined rape then.  I’ll agree that there are varying degrees of consent, but what you describe is not I Don’t Consent.

                I Don’t Consent is rape, and needs no redefining.Report

              • Avatar Kim in reply to Tom Van Dyke says:

                Tom,

                “I don’t consent” — how the FUCK are you defining that? It DOES need defining, SIR.

                1) Girl has sex while conscious and not realizing it’s going on. Is RAPE? [Yes, person not within bounds of informed consent]

                2) Girl is unable to speak, due to being too aroused, boy takes advantage of a situation he’s deliberately caused, that she doesn’t want… Is RAPE? [Yes, person unable to give informed consent]

                3) Either party has sex while sleeping… Is RAPE? [This one’s obvious, isn’t it?]

                4) Boy engages in torture, before finally getting someone to agree… Is RAPE? [Yes, altered state of consciousness voids informed consent]

                I don’t think I was terribly clear above.

                 Report

              • Avatar Murali in reply to Kim says:

                most virgin girls Don’t Consent to their first sexual experience. Most girls have sex before 18, and most girls don’t have a steady boyfriend before then.

                If this were true it would be appalling (and your society would be like something out of some third wourld hell hole in sub sahran africa) But, Kim, you’re going to have to give figures on this. You cant just throw this around. (The issue is not about regret. A lot of us regret a great many things that we consented to. The issue is rape and how robust their consent was)Report

              • Avatar North in reply to Murali says:

                I hate to say it Kim but I must reluctantly agree with Murali that the claim he highlighted is hair raising and probably needs either substantiating or possibly walking back. As a fellow commenter who often finds himself indulging in the heady liquor of hyperbole I would suggest there’s no shame in that.Report

          • Avatar Stillwater in reply to Brandon Berg says:

            Granted, I don’t buy the premise that a fetus has rights. But the argument for banning abortions except in the case of rape (the mother had no choice) or non-trivial risk to the mother’s life (which she could not have reasonably foreseen) seems pretty solid to me provided that you do accept that premise.

            Yes, this is the argument. I’d say that even on the assumption that the fetus has robust rights at the time of conception and that the mother engaged in consensual sex, the argument doesn’t entail that the fetus’ right to life is a fully trumping right. All the argument shows is that the fetus has a rights claim against the mother. For the stronger claim to follow an additional premise needs to be included: that the mother’s relevant rights (to self determination, say) are abrogated by the mere presence of a fetus in her womb (because the fetus isn’t viable outside the womb, say).

            But that premise clearly begs the question. So, to return to the original question: Why think that the fetus’s right to life is not merely a rights’ claim against the mother, but a trumping claim against her? It seems to me that the only rationale for this is viewing rights as entailing ceteris paribus obligations. But the obligations entailed by the right to life of a fetus aren’t ceteris paribus, and stipulating that they are begs the question.

             Report

        • Avatar JOHN S in reply to Stillwater says:

          The fetus has a `trumping `right because the right to life trumps most other rights. Thus your right to life trumps my right to fire my gun at you, or my right to otherwise deprive you of your rights in order to live life the way i see fit.  I have no right to kill you in order to move into your house, or to kill my kids in order to live free. I am not suggesting some folks here are in favour of legalizing murder. I am suggesting that you are failing to fully grasp the pro life argument. If the fetus is alive, and has human rights then there isnt any difference between killing it and killing your 2 year old.  If it helps, when you are talking about competing rights, substitute the word `baby`for `fetus`and you can avoid misreading the pro life point of view.  This isnt a viability argument, though i would submit that ones right to kill ones baby does not rest on the ability of said baby to survive alone, else it would be open season on any baby riding in a car on a cold winter night.Report

          • Avatar sonmi451 in reply to JOHN S says:

            What if the mother’s life is in danger? Which “life” has the greater “right to life”? Would you expect a cancer-ridden pregnant woman to forgo chemo until after she delivers, for example, even if the delay in treatment might end up killing her? Whose “right to life” trumps whose?Report

            • Avatar JOHN S in reply to sonmi451 says:

              As i said, the right to life trumps other rights. In the example you give, the fetus’ right to life would obviously not trump another persons right to life.Report

              • Avatar Jesse Ewiak in reply to JOHN S says:

                Why? I mean, I can make the argument that the women has had a life and in fact, in the scenario outlined, is the near the end. That fetus may be the next MLK, Gandhi, or whoever. Why should she get an extra few months instead of the possibly 80 years of the fetus?Report

              • Avatar JOHN S in reply to Jesse Ewiak says:

                I dont htink i want to get too deep into that last one, though i acknowledge that the same kind of argument is made on a daily basis as regards the value of human lives between different nations, say.  I am not in favour of rating lives’ relative value as it is a quagmire bottomless corruption. 

                 Report

              • Avatar Jesse Ewiak in reply to JOHN S says:

                But, you just did when you said it’s be OK to kill a baby/fetus/your choice of buzzword in order to save a woman’s life. You just made a decision on what life was more important.Report

              • Avatar Tom Van Dyke in reply to Jesse Ewiak says:

                As a point of order, “life of the mother” would be self-defense, and ethical in most known moral systems.Report

              • Avatar Jesse Ewiak in reply to Jesse Ewiak says:

                That might be even true, but that’s not saying there isn’t an argument to be made that the fetus might consider it self-defense to kill the mother so it can live. Again, I disagree, but it’s a reasonable argument to make, especially since those same people talking about “life of the mother” exceptions would tell you how precious that fetus was for the previous 8.9 months.Report

              • Avatar JOHN S in reply to Jesse Ewiak says:

                No, killing the mother would not be a legit defense, as the danger to the mother was posed by the continued developement of the baby. the life of the mother was not engangering the baby. Your point would be very similar to claiming that a man could plead not guilty of murdering  the man he tried to kill because the intended victim fought back.  Are fetus and baby buzzwords? I am trying to be neutral in my terms to ill effect it seems. I try to  give folks on both sides the benefit of using their positive sounding titles.Report

              • Avatar Jesse Ewiak in reply to Jesse Ewiak says:

                If for the mother to live, the kid has to die, then yes, the baby is a threat to the mother’s life. It’s not your murder example. It’s more like you’re tied up to somebody about to jump out a plane without a parachute that can hold two people.Report

              • Avatar JOHN S in reply to Jesse Ewiak says:

                you misunderstood me. my murderer, in my rather crass example would represent the fetus, whom you claimed might consider it self defense to kill the mother. In establishing which person, fetus or mother had the right to live , i suggest that the mother gets the right as the baby threatened her with its very existence/developement, whereas the threat to the fetus originated from the fetus itself. So i stand by my murderous fetus analogy. The mother’s right in that case is the one to protect, and this does not create a differential in the relative value of the lives involved, just the circumstances involved with the choice to be made.Report

          • Avatar sonmi451 in reply to JOHN S says:

            But that’s just it, not everyone agress that baby = fetus, so why WOULD they make that substitution? You’re using your belief (baby = fetus) to tar other people as the equivalent to the murderers of 2-year-olds.Report

            • Avatar Tom Van Dyke in reply to sonmi451 says:

              JohnS, you have a viable enough argument without the word “murder.”  It actually detracts from the force of your arguments.

              In fact, abortion need not rise to the level of “murder” to be morally or even legally unacceptable.  We can ban—and we do—what Michael Vick did to his dogs without calling it murder, yes?Report

              • Avatar JOHN S in reply to Tom Van Dyke says:

                True enough. I think homicide is better.  We didnt actually ban killing dogs though did we, we banned making them fight first I believe. I would go with killing but really, the requirement that the unborn have human rights (ie qualify as human) would make it homicide.Report

            • Avatar JOHN S in reply to sonmi451 says:

              Um… no I am not. If you read the post carefully i suggested the substitution as an aid to understanding the pro-life position of fetal rights. Such an aid was, in my view advisable as some people were arguing on the relative weight of fetal vs human rights, when a pro lifer generally sees it as an issue of human rights, period.

               Report

          • Avatar Stillwater in reply to JOHN S says:

            The fetus has a `trumping `right because the right to life trumps most other rights.

            True. In an ‘all other things being equal’ sorta way. So, you can’t kill someone to take their house, but you can kill someone who’s trying to take yours. The right creates standalone negative obligations – to refrain from unjustifiably killing someone. (Actually, one of the most compelling arguments for abortion is based on the analogy of someone trying to take your house.)

            The problem is that the right to life of the fetus entails positive obligations on the mother – presumably the obligation to carry the fetus to term or at least viability outside the womb. So it seems to that the right to life of the fetus can’t be understood on the paradigm of the right to life of an adult, where the right entails only negative obligations. That’s why I’m saying that even if the fetus has a right to life, further argument must be made for that right to trump the rights of the mother (to self-determination, say, or the right to reject the positive obligations imposed on her by the fetus).Report

            • Avatar Patrick Cahalan in reply to Stillwater says:

              The problem is that the right to life of the fetus entails positive obligations on the mother – presumably the obligation to carry the fetus to term or at least viability outside the womb. So it seems to that the right to life of the fetus can’t be understood on the paradigm of the right to life of an adult, where the right entails only negative obligations. That’s why I’m saying that even if the fetus has a right to life, further argument must be made for that right to trump the rights of the mother (to self-determination, say, or the right to reject the positive obligations imposed on her by the fetus).

              The most insightful sentence of this paragraph is, “So it seems to that the right to life of the fetus can’t be understood on the paradigm of the right to life of an adult, where the right entails only negative obligations.”

              Report

              • Avatar Stillwater in reply to Patrick Cahalan says:

                How so? Isn’t that just an accurate description of the situation – that the nature of being pregnant physically imposes a moral obligation on her?Report

              • Avatar Patrick Cahalan in reply to Stillwater says:

                Isn’t that just an accurate description of the situation

                Yes, that’s what I was saying 🙂

                I agreed with the whole paragraph, but liked that one line very much.Report

              • Avatar Stillwater in reply to Patrick Cahalan says:

                Ahhhh. Good. I’m glad you liked it. And I should say that, consistently with the premises I’ve accepted here, I don’t know definitively where I stand on the issue. In the absence of further argument, I think that insofar as the rights issue is determinative (which it isn’t, other issues are in play), my inclination is to prioritize the mother’s rights until pretty close to viability, at which point the most of the abortion debate is more-or-less moot.Report

              • Avatar JOHN S in reply to Patrick Cahalan says:

                I dont know about the right to kill someone who is trying to take your house. In canada we do not have any such right, nor do i support such a thing, since it opens up the door to justifiable homicide on a very subjective scale. Could i kill someone for stealing my car? My TV?  In canada you can kill someone if you can show that it was necessary to protect your life (or at least that you thought it was) thats about it.

                   Be that as it may, I would point out that the precedent for maternal obligations trumping a mothers (or parents) rights is already in place and is widely accepted. Once born the responsibility of the parents to ensure the childs survival is entrenched in law and in our broder social code. Thus it is illegal and immoral to allow your child to die or suffer because you didnt want to cancel your vacation, prepare food, etc. I realize this is not the same as carrying a child but  it does speak to the idea of positive obligations.Report

              • Avatar Jesse Ewiak in reply to JOHN S says:

                But if you truly don’t want your child, there’s a plethora of social service organizations. On the other hand, you can’t hand over a three-month old fetus over to the local social workers.Report

              • you can’t hand over a three-month old fetus over to the local social workers

                Well, you can, but they’re going to look at you pretty funny.Report

              • If I wasn’t going to Hell before laughing at his, I surely am now.Report

              • I’m honored to play a small role in damning your soul.Report

              • Avatar JOHN S in reply to Jesse Ewiak says:

                True, but handing over your child still requires you to ensure it’s safety in the meantime. It becomes a time issue to some degree. If you dont want your child, you can wait and get rid of it in 9 months. I am not making light of the trials of pregnancy here, but we are talking about (depending on your view) a human life in the balance.Report

      • Avatar James Hanley in reply to Sam says:

        I think I assume that, for the libertarian, the right to do with your own body trumps all other concerns.

        But again, that assumes only the woman’s “right to do with [her] own body” is all that’s being counted, and not the fetus’s “right to do with [its] own body.”  If we grant the latter, its no longer so straightforward.Report

        • Avatar Sam in reply to James Hanley says:

          So we’re introducing the idea that the fetus isn’t part of the women’s body? That seems like tenuous ground at best.Report

          • Avatar James Hanley in reply to Sam says:

            Morally distinct, not physically.   If the fetus has an innate right to life like post-natal folks are assumed to have, then it has to be considered as having a moral reality that is not synonymous with, nor wholly subordinate to, the women’s moral reality.Report

          • Avatar Murali in reply to Sam says:

            Wait, I thought it was fairly obvious that a foetus was a distinct entity (whether or not we thought it was a full or even semi person). I mean it may be intimately connected to the woman’s body, but it is still not just another part of her.Report

            • Avatar James Hanley in reply to Murali says:

              Obvious to some, but you’ll have little trouble find people who dispute it, or think it’s true only in a trivial sense with no moral significance.Report

              • Mr. Murali touches on a helpful point: if it’s neither a person but not merely just a “toenail,” what is it?

                Attempting the question is better than avoiding it, even if as James says, it may make no practical difference in the end.  But who knows, it might.Report

              • Avatar BSK in reply to Tom Van Dyke says:

                It is potential. I don’t remember much about physics, but I do remember potential energy. Energy was required to create it, energy is expected to come of it, but in the interim it is simply potential energy. Likewise, a fetus is potential life. Mit is borne from life amd will one day be life but, in its current state, is not yet life realized.Report

              • Avatar Tom Van Dyke in reply to BSK says:

                Welcome to the tall weeds, BSK. Kudos on even finding them.

                Potential and potentiality are not synonymous, as the author illustrates.  We could say that sperms and eggs separately are “potential” human beings, but a blank sheet of paper was also a ‘potential” manuscript score for Mozart’s The Magic Flute.

                The blank paper holds no potentiality.

                [I note this to save someone the trouble of concocting a reductio ad sophomorium.]Report

              • Avatar BSK in reply to Tom Van Dyke says:

                Fair enough.  That was far from a well-thought-out response to the question.  Analogizing it to physics/energy was probably just a poor direction to go in.  I guess such is the case when answering the seeming unanswerable.

                I remember my stepfather, a scientiest by trade, once saying, “Why do people wonder where life starts?  There wasn’t something that ended previously, so why do we assume something starts anew?”  I don’t remember the rest of the argument, as I was young when he stated this, but it has always been an interesting perspective.  From this angle, it appears there always was life.  I suppose the follow up question would be when does one life (or two, if we are counting mother and father) become two (or three… mother, father, and child)?  I don’t know that this is a better way of looking at it… but it is a way.  And demonstrates the limitations of our language (life vs alive; life vs living; etc.)…Report

  11. Avatar Sam says:

    Perhaps I could try this, based upon what I’ve seen elsewhere in this thread: what rights does a woman have to make decisions about her own body? And if those decisions are limited by pregnancy, what is the proposed enforcement mechanism?Report

    • Avatar Mark Thompson in reply to Sam says:

      A woman has an absolute right to make decisions about her own body. The question, however, is whether a zygote/fetus/infant should be considered part of the woman’s body or a separate entity altogether. The way you keep framing your questions and comments dodges this issue.Report

      • Avatar Sam in reply to Mark Thompson says:

        Mark,

        If we’re going to consider the zygote/fetus a separate entity, can we go further, by mandating the woman take particular vitamins, receive particular healthcare, etc?

        I am not intending to dodge anything; I may be betraying my biases with my questions, but then, we all are. (To put that another way: I find it difficult to introduce a theory of “separate” when we’re talking about something dependent upon and ensconced within.)Report

        • Avatar kenB in reply to Sam says:

          Sam, at what point do you believe the fetus acquires human rights?  Is it only at the moment of birth, or is it at some point before that?Report

          • Avatar Sam in reply to kenB says:

            I don’t believe in rights.Report

          • Avatar Sam in reply to kenB says:

            Hit reply just a bit too quickly there although I was being accurate when I said I wrote that I don’t believe in rights. Or, perhaps, at best I struggle with the idea of rights. But in any case, I think there are cases in which abortion is the “right” answer right up until birth, regardless of the notion of “human rights.”. However, I am troubled by the idea that my opinion matters here at all. Why am I, a person who will never be pregnant, dictating policy to people that will be? I also can’t get ovarian cancer, and I’d never dare tell women what treatment I did and didn’t find acceptable.Report

            • Avatar Mark Thompson in reply to Sam says:

              If you are wondering what you are doing weighing in on this issue at all, then why are you so seemingly offended by the notion that it’s a low priority issue for libertarians?Report

              • Avatar Sam in reply to Mark Thompson says:

                Because there isn’t an analogous situation that exists in the opposite (one in which women weigh in vociferously on a healthcare issue specific only to men), it doesn’t trouble you in the slightest that men’s opinions are given incredible weight on this?

                And again, my assumption about libertarianism generally is that the opinion expressed would be one in which somebody would say, “If it isn’t my body, I do not want to be involved.” Thus my own position holding that this doesn’t seem like something I should have a say in is consistent, isn’t it? (I understand better now that there are libertarians saying that the fetus has its own rights that overwhelm the rights of the woman.)Report

              • Avatar James Hanley in reply to Sam says:

                my assumption about libertarianism generally is that the opinion expressed would be one in which somebody would say, “If it isn’t my body, I do not want to be involved.”

                I get the argument about the lack of a good analogue going the other direction.  But the quote above misses the point that the libertarian only says that in reference to a person doing something that affects only their own body.  Bring another body into the mix and it gets less straightforward, because libertarians place great emphasis on the issue of consent.  For example, if some adult is raping a child, or torturing a mentally retarded person, the libertarian doesn’t say “it’s not my body, so I don’t want to be involved.”  So the moment the fetus is considered to be a human, the libertarian who views it as such can legitimately ask whether the fetus has consented to the mother’s actions in regard to it.

                I don’t hold that view myself, but I can’t see how it violates any libertarian motives at all.

                Consider this (imperfect, of course) example.  We have conjoined twins.  One wants to be separated, but the operation will kill the other.  In this case the humanity of the other is not in dispute, so would it be un-libertarian to oppose the operation on the grounds that the one’s control of their own body does not  extend that far?  I can’t see that it would be.  So for a libertarian for whom the humanity of the fetus is not in dispute, a similar logic comes into play.Report

            • Avatar James Hanley in reply to Sam says:

              Sam,

              Again, it’s because in the view of some people, it’s not only the rights of the women that matter.  A fetus is the very definition of a defenseless individual, and don’t defenseless individuals need someone to step up for them?

              (Again, policywise I stand with you, and I’m not making a normative argument for limits on abortion.  I just think it’s important to recognize that pro-life people are basing their decisions on something different than you are, and that while you may never agree with them, their policy preferences aren’t hard to understand once you recognize that their decision-making incorporates the assumption that the fetus’s rights are real.)Report

            • Avatar kenB in reply to Sam says:

              Why, as non-slaveowners, did Northerners dictate policy to the ones who would be dramatically affected by emancipation?Report

        • Avatar James Hanley in reply to Sam says:

          If we’re going to consider the zygote/fetus a separate entity, can we go further, by mandating the woman take particular vitamins, receive particular healthcare, etc?

          Sam, that’s a legitimate question, but may I respectfully submit that it’s premature?  It’s value is that it shows you recognizing the view of the fetus as an independent entity (in moral terms, of course, not physical).  But the first step then is to consider your own question from the perspective of someone who holds that view.  That’s the question we’ve been trying to answer here.

          That said, I think your question is one that pro-life advocates rarely grapple with, but ought to.Report

          • This, basically, though it’s also worth mentioning that at that point you either have a conflict of rights, if you accept the notion-as most do- that children have positive liberties of some nature, or if not the answer is straightforwardly that there are only negative liberties and so the mother has no obligation to the child other than to not actively abort it.Report

          • Avatar JOHN S in reply to James Hanley says:

            rules against abuse of unborn are a legitimate question, but lets not single out the pro life side. Answer me first whether laws against abuse/nglect of children are a good idea (they do, after all affect teh rights of the parents).  Does the state have a role in ensuring kids are not starved or beaten or exposed to alcohol or drugs? If they do, then would they not have such a role where late term pregnancy is concerned (where abortion is not legal)?  If the answer is yes, then by logical extension,  the states role would have to extend all the way back to the beginnnig of the childs life,  no?Report

            • Avatar sonmi451 in reply to JOHN S says:

              When pro-choicers bring up this and that nightmare scenario about abortion restrictions, some pro-lifers would say, no, you’re being paranoid, you’re trying to paint us in the worst possible light. I think these pro-lifers need to listen to people like JOHN S, whose opinions and beliefs seem to confirm all the worst fears and paranoia of the pro-choice side. In the course of this thread, he’s basically call pro-choicers the equivalent to murderers of 2-year-old kids, and argue that in fact, the state does have a responsibility to control a pregnant woman’s body from the earliest stage of pregnancy.Report

              • Avatar JOHN S in reply to sonmi451 says:

                Really? Have I done that? I believe I answered your concerns in the posts you are referring to. However, if you are actually afraid of my views, let me calm you a little: Sonmi, your reading comprehension leaves a little to be desired.  If you don’t agree with my views, that’s fair enough. If you are afraid of them, well what can i say?Report

  12. Avatar Simon K says:

    In general I’ll second (third) what Mark and James have said above. The question of when life actually begins is one where we can have legitimate and unresolvable differences of opinion that can’t be answered by appealing to Liberty and the views of libertarians therefore differ. On that specific question, I tend towards an answer that would actually imply a more restrictive abortion regime that the present one in the US.

    However, isn’t there a second consideration for libertarians (at least for more consequentialist libertarians) that can trump this? The consequence of banning X, after all, is not to make X disappear – its to face the people who do X with social disapproval and state sponsored violence, which are often wholly disproportionate to whatever it was they did wrong to begin with. When X is something that’s not particularly hard, and which some subset of people are likely to want to do anyway, like smoking pot or aborting a pregnancy, some people will keep right on doing it, with all the negative repercussions that happen when large numbers of people act outside of the law.

    Do we really want this? Do we want to try and imprison women for murder when they procure abortions? Most pro-lifers seem squeamish on this point, so will we just arrest and imprison those who help abort a pregnancy? How exactly are we going to enforce that? What level of aid is necessary for a prosecution? Will prostaglandin have to become a controlled substance? Can women be protected against abuse under such a regime? The ramifications seem almost entirely undesirable for everyone (except, debatably, the fetus, of course).

    I’m not arguing that 24 hour waiting periods lead inevitably to back street abortionists. They don’t. But any abortion regime sufficiently strict to actually prevent a significant fraction of present-day abortions likely would. Is the consequent increase in violence and relative loss of freedom for women and doctors still not something on which liberty has anything to say?

     Report

    • Avatar James Hanley in reply to Simon K says:

      Exactly.  This is what I was thinking of when I wrote that I would look favorably upon a libertarian or conservative candidate who said, “the human wreckage of a ban is an unacceptable cost to such a policy.”Report

    • Avatar john S in reply to Simon K says:

      SO you are suggestint that even IF one sees abortion as murder we ought to consider how hard it would be to enforce the law?  If, as I do, one sees abortion as murder then one has to support the imprisonment of people who commit that crime. Wow, would i want to see women in prison for getting an abortion? Those poor porr women! Nope. just like i don’t want to see anyone else there. But i would put them there. I think most people on both sides do not do enough heavy thinking on this issue, hence their folding on rather simple questions.

      As has already been stated, this is a question of when life begins, period. The rest is all hogwash, or are you saying murder is ok sometimes, like when  the victim was going to negatively affect another persons freedom? Or perhaps when the victim was probably not going to be loved or properly cared for in the future (all those unwanted kids, we might as well kill them)? I am not being silly here, just pointing out that all the classic lines of argument are superceded by the question of when life begins. Once that question is answered , the rest are moot. And yes, that includes rape, incest, etc.Report

      • Avatar Simon K in reply to john S says:

        If we were somehow able to come upon an undeniable and broadly accepted answer to the question of when an embryo becomes a human being then no, we should not consider the difficulty of enforcing the law. Or rather, we would have established that the cost of not enforcing it was devastating and justified the human wreckage resulting from enforcement. Such a discovery necessarily would also result in rather different societal mores that would make enforcement easier anyway.

        The consequentialist argument above applies only because we’re operating under uncertainty, or actually under undecidability. We do not know when an embryo becomes a human being and as far as we know we have no way to know. Its at this point we’re faced with the question of what is least bad.

        Given that this is the situation, arguments about what would be justified we if we not only had a consensus on when life began but were absolutely certain of it are not that useful to anyone.Report

        • Avatar JOHN S in reply to Simon K says:

          I agree with your final point, except that it is necessary to define the whole discussion in proper terms. I guess my point is that abortion is not a libertarian talking point, but is instead a moral/ethical issue  which , depending on your view point is pretty cut and dry one way or another. As for that undeniable, braodly accepted thing, well that is never going to happen and has rarely occurred on any contentious issue.

              The real danger is that the issue is constantly being sidestepped. In Canada we have NO law regarding abortion. When the subject comes up we get the same ‘womans right’ obfustication. We need to focus on the question at the heart of the issue, rather than proceed down the ‘given the current laws/definitions, what should the libertarian think ‘  road.Report

          • Avatar Sam in reply to JOHN S says:

            Can you define the “women’s right obfuscation” term you’re using? Are you saying that a woman’s right to her own body simply stops as soon as she gets pregnant?Report

            • Avatar JOHN S in reply to Sam says:

              no, her right to her body continues, but her responsibility to her unborn child also exists, just as it does for new borns. Thats  my opinion.

               The obfustication is that this is a choice or libertarian issue. It isnt. It is a question of when life (and hence right to life) begins for the unborn. Once this is defined, there will be no choice issue left to debate.  Unless that is, you agree with the canadian judge who let a mother walk after killing her newborn because canadian laws regarding abortion suggested this was not really murder.Report

          • Avatar Simon K in reply to JOHN S says:

            Is it not possible for the key question we need to answer to resolve an ethical issue to be unanswerable, even for an individual? Isn’t there a contradiction in believing both that we’ll never be able to demonstrate to one another when the beginning of life occurs, and at the same time that one’s personal view on the matter must be “cut and dry, one way or the other”? There are no many issues were we can reach such strong conclusions for ourselves but cannot demonstrate them to one another.Report

            • Avatar JOHN S in reply to Simon K says:

              I would say that it is possible to come to the conclusion on a personal level. However, i think it requires some actual thought. Most people i know have simply not bothered. As for consensus, probably never, but a majority opinion, based on the countries founding principles would be a good idea. As such it would likely be mutable as time and technology changed the parameters.  Many state have this already, though they are very reluctant to re-examine the issue as they should. As for Canada ; we have no laws re abortion at all. A problem which has begun to leak into the area of infanticide.Report

    • Avatar Mark Thompson in reply to Simon K says:

      All valid and good points. My response to this is that these are all consequentialist arguments based on the at-this-point hypothetical effect of banning abortion.  Because there is not, on the federal level and thanks to Roe v Wade, a specific proposal with a serious chance of success pending at this very moment to ban abortions in a particularly severe or large scale fashion, arguments about abortion are basically confined to the hypothetical.  It is very difficult to argue that such arguments warrant prioritizing abortion on libertarian grounds for pro-choice libertarians.  This is especially true given that there are a wide array of policy possibilities fitting within the rubric of “pro-life,” some of which are far less subject to these types of as-applied concerns than others.

      In essence, with the way that our national debate on abortion occurs, the consequentialist argument is not very powerful on libertarian grounds since on the national level, the debate is almost entirely in the hypothetical.  That doesn’t make it irrelevant; it’s just that it doesn’t do much to increase prioritization of abortion for pro-choice libertarians.  If Roe v Wade were ever overturned, I would expect that we’d see such hypothetical policies seriously proposed; at that point, I would also expect the consequentialist argument to become quite powerful indeed.Report

  13. Avatar Brandon Berg says:

    Am I misreading this, or are you asking us why we’re not single-issue voters?

    All of the candidates are unacceptable, but we still have to pick one.Report

    • Avatar Sam in reply to Brandon Berg says:

      No, I’m asking why this issue – which to me (and my biases and feelings and other weak human frailties) is a remarkably intimate one when it comes to liberty – seems to be a nonissue for some libertarians when it comes to evaluating candidates. Ron Paul, for example, is terrible on this issue, as he has no problem with a state government dictating to a woman precisely what she does with her body; some libertarians don’t seem bothered by that in the slightest. That’s what I’m trying to understand.Report

  14. Avatar BlaiseP says:

    I only wish we could get the pro-life people to get serious about squaring their moral positions with the death penalty.   It would also be useful to see how they propose to care for those unwanted children after they are born.

    These questions won’t get answered, of course.  But I can hope, can’t I?

    (bitter laughter)Report

    • Avatar James Hanley in reply to BlaiseP says:

      I only wish we could get the pro-life people to get serious about squaring their moral positions with the death penalty.

      Not that I agree with death penalty supporters, but do you seriously not grasp the grounds upon which they make the distinction?  Even if they place more reliance on it than it can bear, there is a meaningful difference between guilt and innocence.Report

      • Avatar BlaiseP in reply to James Hanley says:

        I do not.  The death penalty has claimed too many innocent lives already.  How many “woops”-es do we need before it’s stopped?Report

        • Avatar Jaybird in reply to BlaiseP says:

          It still polls pretty well.Report

          • Avatar BlaiseP in reply to Jaybird says:

            And that’s where we should derive our moral bases, nu?Report

            • Avatar Jaybird in reply to BlaiseP says:

              I certainly think that there is a chicken/egg issue there that probably needs to be addressed before the question can be meaningfully answered.Report

              • Avatar BlaiseP in reply to Jaybird says:

                It’s baldly obvious when an innocent person dies at the hands of the state.   No chicken, no egg, just a needle and a coffin and a grieving family and justice still hasn’t been done.

                Y’all seem rather like so many amachoor theologians, a bit out of your depth, rolling up all these untidy questions and labeling them Theological Mysteries.Report

              • Avatar Jaybird in reply to BlaiseP says:

                I suppose I shouldn’t have been surprised to have been misread there.

                The chicken/egg problem is the problem of whether our moral bases determine the general consensus or whether the general consensus determines the so-called moral bases.

                To address your point, killing people is what the state *DOES* Blaise. Look at war. Look at the police. Killing people is one of the reasons it exists. The death penalty has killed fewer innocent people in the United States since its inception than we’ve killed in Afghanistan in 2011.

                The death penalty has killed, according to the internets, more than 4500 people since 1930. Do you think that number is higher or lower than the number of innocent people killed in Afghanistan?

                (AND THAT’S THE “GOOD” WAR!!!)

                All that to say, the death penalty isn’t really near my front burners for moral outrage. (Personally, I find that “prison” is more morally offensive than the death penalty but talk about getting rid of prison entirely and people look at you funny.)Report

              • Avatar BlaiseP in reply to Jaybird says:

                Well, then, if we’re actually going to talk about morality, we have to decide just how much of that has anything to do with what others think and how much of it arises from personally held beliefs.    I think you ought to pare off the Groupthink from this argument and go with the personally held beliefs part as the only one which might actually be considered morality by any definition.Report

              • Avatar Jaybird in reply to BlaiseP says:

                One of the tools I tend to use when it comes to stuff that I do/don’t want the state doing on my behalf is to ask the question “Would *I* have the right to do/prevent that?” (or a similarly phrased question).

                Given that I can think of a handful of circumstances under which I could take another person’s life and, at worst, get 99 out of 100 people to say “goddamn shame, that” without any further reproach, it’s difficult for me to say that the state has no, absolutely no, business taking the life of a convicted criminal, say.

                (Whether the state has demonstrated enough competence to be allowed to use this tool on my behalf is *ANOTHER* debate entirely but that’s a consequentialist one rather than one arising from something akin to first principles.)

                It’s still on one of the burners toward the back, though.Report

              • Avatar BlaiseP in reply to BlaiseP says:

                Well, that’s all true and important enough but it does come down to what the State sanctions and doesn’t sanction.  Insofar as the State has reserved unto itself the right to sanction abortion and the imposition of the death penalty, it has the power of life and death and it doesn’t matter what you or I think about what we might do under those circumstances.

                Therefore, our acts are lawful or unlawful.    Whether they are moral or immoral is up to each of us, as you correctly point out.   I don’t want the state having those powers over us, any of us, you, me or ol’ Hanley down there.   They don’t deserve those rights.   Those are reserved to the people.Report

              • Avatar Jaybird in reply to BlaiseP says:

                Don’t get me started on the powers the state has that it shouldn’t.Report

              • Avatar BlaiseP in reply to BlaiseP says:

                You are preaching to the choir, Monsieur Jaybird.   I view the death penalty as an irrevocable act.   I’m pretty sure all the states are obliged to pay wrongly convicted persons on the basis of how long they’ve been wrongly imprisoned.   How much do you pay for a wrongly-executed person?   Who do you pay?Report

              • Avatar James Hanley in reply to BlaiseP says:

                Y’all seem rather like so many amachoor theologians, a bit out of your depth, rolling up all these untidy questions and labeling them Theological Mysteries.

                In contrast to what particularly intelligent thing that you’ve said so far?  It’s always funny when someone who’s beginning with a rather obvious and fundamental error accuses others of being out of their depth.

                I have to say, I find you even less likeable than someone who’s just a moron.  They, at least, have an excuse for limiting themselves to mere ideology.  You, being demonstrably more intelligent, do not.Report

              • Avatar BlaiseP in reply to James Hanley says:

                Well, well.  At least I’m not a moron.   Thanks, I think.

                The theologians have been debating abortion and the ethicists have been debating the death penalty for considerably longer than you have.  They haven’t come to any conclusions on these matters.   Where is the bright line for either?   Some states have abolished abortion, some states have abolished the death penalty.    Do you really think all this talk is anywhere near original?

                “Many that live deserve death. And some that die deserve life. Can you give it to them? Then do not be too eager to deal out death in judgement. For even the very wise cannot see all ends.”

                From what I’ve seen, the death penalty hasn’t attenuated murder in this country.  Nor has criminalizing abortion in one state attenuated the practice:  the women just go elsewhere.   Where’s the benefit?

                Now you pay attention closely, for I hope not to repeat it.   I believe morality is a personal thing.   When I see folks dancing around the issue, talking about Chickens and Eggs and begged questions about Distinctions I Don’t Grasp, I see so many amateur theologian unwilling to take a stand.Report

              • Avatar James Hanley in reply to BlaiseP says:

                The theologians have been debating abortion and the ethicists have been debating the death penalty for considerably longer than you have.  They haven’t come to any conclusions on these matters.

                Uh, relevance?  I’m the one who hasn’t been making a conclusion on this matter, you are; so if that comment pins down anyone, it’s you rather than me.

                When I see folks dancing around the issue, talking about Chickens and Eggs and begged questions about Distinctions I Don’t Grasp, I see so many amateur theologian unwilling to take a stand.

                Sure, and your inability to grasp the distinctions couldn’t possibly reflect on your own amateurism?  Instead, your failure to grasp the distinctions prove something about…somebody else?  Seriously, if the professional theologians have not come to conclusions, as you have emphasized, how can you criticize someone as an amateur for not taking an absolute stand?  (Besides which, I do have a firm stand on the issue–which isn’t far from yours.  It just hasn’t been at issue here so I haven’t dwelt on it.)

                At least I’m not a moron.   Thanks, I think.

                I mean that seriously.  Your comments about war and the use of drones on another thread, for example, are quite impressive.  Thoughtful, well-based in the facts, and largely devoid of the kind of emotional bullying and ideological frothing you demonstrate here.  I don’t think you handle ideological issues with any real thoughtfulness, but if I had any kind of non-ideological problem to solve, I’d have no qualms about putting you on the task.Report

              • Avatar BlaiseP in reply to BlaiseP says:

                So what?  I’ve reached a conclusion.  I don’t see any distinction.   I’ve laid out why I don’t make the distinction, none of which you’ve addressed, even in passing.

                This issue isn’t all that complex in my world.  You shoot someone, you abort your child, you live with the consequences.   Ol’ Jaybird up there makes a point about a burglar breaking in.   You have a decision to make.  You, nobody else, not based on some polling data or what St. Augustine had to say about it, you, all by yourself.

                So I’ve made my conclusion.   You don’t agree with it.  You say it’s so much inanity, for which I will not thank you this time.  In my judgement the theologians and ethicists are entertaining some delusions about these issues for lack of practical experience.   Read the text of the Roe v. Wade decisions, the justices bring all these things to light.   They decided abortion was legal on the basis of the right to privacy, nowhere to be found in the Constitution.

                Invasion of privacy encompasses a multitude of separate torts.   I make a separate argument, all on my non-lawyer lonesome, we cannot trust the State with powers of life and death.   Those powers aren’t enumerated in the Constitution either.   Nor do the States have these powers in their constitutions, though California now has a right to privacy on the books, if not much case law.   Our only right to fundamental privacy is resident in the Fourth Amendment, which keeps us “secure in our persons”.  Via the Ninth and Fourteenth Amendments, we have the Griswold decision on contraception, which would in turn form the basis for Roe.

                It’s all so much wretched law, pulled like so much taffy from the mind of Louis Brandeis.   The Fourth Amendment was written in reaction to the searches and seizures of the Crown and good law never rises in reaction to anything done in the past.    But that’s the way it goes in politics and often in law, that we don’t consider the totality of a problem before we start in making laws against this and that.Report

              • Avatar James Hanley in reply to BlaiseP says:

                So I’ve made my conclusion…You say it’s so much inanity,

                That is simply false.  The only thing I’ve said is inane is your accusation that I was criticizing your experience.  Twice now you’ve claimed that I said something was inane that in fact I never made any such claim about.

                To think, all this ranting stemmed from a simple question whether it was possible for a conservative to see a distinction between innocence (the fetus) and guilt (a convicted murderer, for example). And you’re raging at a guy who actually shares your policy position because he dared to suggest someone could legitimately take a differing position.

                Something’s just wrong with that.Report

              • Avatar BlaiseP in reply to BlaiseP says:

                I don’t perceive the difference and I’ve laid out why.   If that’s not enough for you, tant pis, I don’t care.   Conservatives, for all their whinging about the Nanny State want a powerful State when it’s enforcing the death penalty or restricting abortion for someone violating their moral constructs.    It’s you who can’t see the obvious here, that the State sentences people to death and the State forbids abortions.    Power of life and death.

                The death penalty isn’t about guilt or innocence.   Neither is abortion.   My complaint is about the mandate of the State, a mandate the Conservatives have manifestly demonstrated they want imposed on folks.   That’s not a simplistic shibboleth, that’s an entirely realistic statement of the obvious.   And yes, it is manifest hypocrisy when someone is in favor of the death penalty and against abortion.   It is a contradiction in terms:  either life is precious enough to forbid a women to terminate a pregnancy or it is not.   If it is, then every life is equally precious, even a murderer’s life.

                As for your haranguing me about bringing my personal views and experiences into this, really, that’s a childish attitude to take.   Am I supposed to walk around the obvious in my own life?   This shit isn’t an abstraction to me.   It’s reality.Report

              • Avatar James Hanley in reply to BlaiseP says:

                Blaise,

                Again you mis-state my objection, managing to yet again talk past me, not to me.  I have no objection to anyone bringing in their personal experiences.  I only object to people arguing as though their individual experiences provide a dispositive answer to anyone except themselves, or implying that different responses to the same experience are illegitimate.

                 Report

              • Avatar BlaiseP in reply to BlaiseP says:

                I will not be schoolmarmed by you, James Hanley, on how I am allowed to make my points.   They are my own and my picture’s right next to every goddamned one of my posts.   Should my belief wherein my own experiences have failed to square with your Laputa-esque theories about the Extraction of Sunlight from Cucumbers, or prove an inconvenience or impediment to progress hereabouts, your opinions will be taken under advisement with all the gravitas they deserve.   At present, I am not inclined to take much of anything you say seriously.   Do try to work on this problem.

                Yours truly,

                BlaisePReport

              • Avatar James Hanley in reply to BlaiseP says:

                I will not be schoolmarmed by you, James Hanley, on how I am allowed to make my points.

                If I’m schoolmarming you, it’s on your abuse of logic.  Feel free to continue your errors, if you think that’s the wise course.

                At present, I am not inclined to take much of anything you say seriously.   Do try to work on this problem.

                T’ain’t really my problem now, is it?Report

              • Avatar BlaiseP in reply to BlaiseP says:

                Certainly not, Brother Hanley.   Certainly not.

                Here are my ground rules.   They are simple.   I write what I believe to be so.  Insofar as they have been made manifest in my own life, they are truer than any theoretical construct.  Anyone else may dispute them on the basis of their own experiences.

                Sartre said  “Evil is the product of the ability of humans to make abstract that which is concrete.”

                And thus I refute all sophistry and cant with the firmness of old Samuel Johnson’s boot when confronted with Bishop Berkeley’s nonsense about reality, saying, kicking the rock “I refute it, thus!”Report

        • Avatar James Hanley in reply to BlaiseP says:

          Yes, some people are too careless in their support for the death penalty.  But if you were to engage a death penalty supporter sincerely, odds are you’ll find that they would agree there ought to be safeguards against executing the innocent.  Some won’t, but you can’t extrapolate from them to death penalty supporters generally unless you provide evidence supporting such an extension.Report

      • Avatar Stillwater in reply to James Hanley says:

        I think he’s pointing at the incoherent way conservatives invoke the ‘right to life’ as ace-high trump in the abortion debate but then so casually dismiss it in the capital punishment debate.Report

        • Avatar BlaiseP in reply to Stillwater says:

          Pretty much, yeah.   And for all their wringing of hands and much concern for someone else’s kid, let that child be born into this world of woe and then all we hear is much groaning about Welfare Mamas.Report

        • But of course conservatives explicitly say that a person can throw away their right to life by committing certain offenses.  I’m all in with Blaise on opposing the death penalty, because I don’t think it’s even theoretically possible to enact sufficient safeguards.  But he’s being disingenuous in his criticism of conservatives–he’s attacking an interpretation of their beliefs that is not what they hold, by purposely misreading their meaning of the phrase “right to life.”  However intelligent Blaise is (and he’s obviously very intelligent, capable of making really sophisticated arguments), I think it’s become clear that when it comes to certain ideological disagreements he’s willing to sublimate his own intelligence and rely merely on ideological tropes.  It’s a damn shame; if he would avoid that he could make a far more substantive contribution to the discussion.Report

          • Avatar BlaiseP in reply to James Hanley says:

            Oh spare me all that.  As far as I can determine, based only on what anyone’s been willing to say about themselves, I’m the only one of you who’s actually killed anybody.   This gives me some insight into what actually happens.   The right to life is very precious and worth safeguarding at all costs.Report

            • Avatar James Hanley in reply to BlaiseP says:

              Gross arrogance, and pathetic attempt at an argument from authority.  Plenty of people have killed someone and not come to your conclusions, so your personal experience constitutes no authority that we need to listen to.

              It seems that the worse your arguments get, the more sanctimonious you get as well.

               Report

              • Avatar BlaiseP in reply to James Hanley says:

                That’s quite enough out of you.   You’ll get a More Informed Opinion on killing someone when you do it.   That’s not an argument from authority.   That’s an argument from the facts.   Pull the trigger.   Live with the consequences.   Just try it.   See how you like it.Report

              • Avatar James Hanley in reply to BlaiseP says:

                That’s quite enough out of you.

                Excuse me?  And just who in the world do you imagine yourself to be?  And can you possibly imagine that I did anything but lose even more respect for you that you would put on such airs?

                That’s not an argument from authority.   That’s an argument from the facts.

                Wrong, because not everyone responds the same way.  You’re claiming that your emotional response to killing someone is “the” factual response, and that it reveals “the” reality about life.  However strong and real the response is for you–and I neither doubt that response nor belittle it–it doesn’t speak for anything outside of your own self.

                If you had the intellectual courage to match your intellectual capacities, you would recognize that.

                 Report

              • Avatar BlaiseP in reply to James Hanley says:

                Huff an’ puff and blow yourself up into someone I might respect.   I never had any for you to begin with and have less now.   Intellectual abilities have never trumped actual experience.

                How do you think I should feel about what’s happened?   Good?   Go on, tell me how I should think on this subject, oh wise person.   I’ve had many years to contemplate these things.   If I’m half as bright as you think I am, where’s the courage I ought to have to hold my head up and say “Oh well, it’s okay.”  hmm?

                You nasty man, there might yet come a day when you’re looking down at someone you killed.   On that day you will remember this one.    Make excuses for yourself and the state and all the other good reasons you could bring to mind on that august occasion.  You will find them all false and hollow.Report

              • Avatar North in reply to BlaiseP says:

                Gentlemen, as someone who deeply respects both of your writing styles and thought processes may I interject to gently suggest we try and keep the discussion a touch less heated and maybe slightly more impersonal?Report

              • Avatar James Hanley in reply to BlaiseP says:

                Blaise,

                Where in the world do you get the idea that am I trying to tell you how you should feel?  Quote me on that if you can find it in my words. I never said anything about how you should feel, only pointed out that not everyone responds the same way as you.  I know a couple people who’ve killed someone (you’re not the only one, have you considered that?) One is now a pacifistic Buddhist, another is a staunch supporter of the death penalty and the wars in Iraq and Afghanistan.  So whose experience is authentic? Why wouldn’t it be as legitimate for me to accept the experience of my death penalty supporting friend as legitimate, rather than yours?

                Of course the reality is that each of you has had an authentic experience, and despite your inane accusations, I’d not tell any of the three of you how you “ought” to feel.

                Let’s consider where this idea of letting one person’s experience guide us would lead.  A woman deeply regrets having an abortion, certain that she has killed a human.  So based on her experience, the only answer is to ban abortion.  A mother has watched her son be tortured and killed by a sadist and concludes that only death is an appropriate punishment.  So based on her experience we have to utilize the death penalty.

                Can you understand why individual experience is a really lousy basis for argumentation on something like this?  Absolutely if your experience leads you to the conclusion that the death penalty is always wrong, you ought to advocate against it.  But to argue that someone else ought to accept your personal experience as their own guide is logically deficient, at best.Report

              • Avatar BlaiseP in reply to BlaiseP says:

                Choose what adjectives you will to describe what’s happened.   Inane is one adjective you can’t use in this context to describe my reaction.   Inane is empty, foolish, vacuous.  Learn a few more adjectives.

                I did know people who enjoyed killing.  It seemed to make it all worthwhile to them.  One of them came back and made sport of shooting stray cats and dogs.

                Frankly, it’s rather like a bad accident or a particularly embarrassing episode.  Though I can try to convey how the act of shooting someone changed me and changed others, the first and last emotions are the truest: shame and horror at the senseless death of another human being.

                The most offensive part is the sense that I had been duped.  No, Hanley, the State tells enough lies to warrant taking the power of death away from it.   Your bud who backs these wars, that’s a coping mechanism, so is Buddhism for that matter.   There’s no undoing a mistake, no putting the marble back on the block you’ve carved too far.  You can only cope.

                But reproductive rights?   The State will tell us abortion is within its purview to regulate.   I want the State out of my doctor’s office, my bedroom, my routers, my hard drives — the State is not your good buddy.

                I have been accused of some simplistic thinking, conflating Abortion with the Death Penalty, noting there’s a lack of congruence in Conservative thinking.   Today’s Conservatives make much Second Amendment rights, very concerned lest bad people attack him.   They do not trust the State to secure their rights, in fact, they’re quite sure the State would take their guns away were it not for the Second Amendment.

                But let Abortion become the topic, the State is a fine venue for these concerns, empower the State to forbid it, lest anyone harm a little baby.    The fallacy arises from their notion of the State, which would indeed regulate every aspect of their lives if given half a chance.   Insofar as their guns and rights to privacy are safe, they’re content.   Others’ rights to privacy, especially in their doctor’s offices, are not so safe.Report

              • Avatar James Hanley in reply to BlaiseP says:

                Choose what adjectives you will to describe what’s happened.   Inane is one adjective you can’t use in this context to describe my reaction.

                Blaise, the only adjective I used to describe your reaction was “legitimate.”  That’s a far cry from “inane,” so I really don’t get why you keep thinking I’m condemning your particular reaction.

                There’s a vast gulf between saying “your personal experience isn’t in itself a sufficient basis for public policy,” and saying “your reaction to that experience is [insert pejorative here].”  I’ve said the former, but I certainly haven’t said the latter.  Truth be told, I haven’t even thought such a thing, because I suspect my reaction would be similar to yours.Report

    • Avatar Kim in reply to BlaiseP says:

      How about them just squaring it with organ donation, or paying oodles to keep someone in a “conscious” coma on life support?

      Find me one pro-lifer who is willing to speak for the moral obligation to donate organs (if pressed, i’ll go with liver, as that’s relatively harmless), and I’ll concede that that person isn’t moralizing over a natural biological function that instincts/society conspire to force upon unwilling women, and then blame them afterwards.Report

      • Avatar JOHN S in reply to Kim says:

        So you actually equate those examples with abortion? You don’t draw a distinction between failing to prevent death and causing death? If that is the case, then you have a point.Report

        • Avatar Kim in reply to JOHN S says:

          mostly, yes. in both, one is asked to undergo a reasonably lifethreatening procedure (more than .5% chance of death), in order to save a life.

          I’d say that one has more of a moral obligation to save a 5 year old baby than to save a fetus.

          In my opinion, a fetus is no more alive than a parasite, though it is still human tissue, and has similar rights/obligations.Report

  15. Avatar Jaybird says:

    If I may make sweeping generalizations about both “Conservatives” and “Liberals”, I’ll share the fundamental issue that seems to get to the heart of the debate (at least as far as I can tell).

    When it comes to the two things that I believe:

    1. Abortion is probably morally wrong
    2. Abortion should not be illegal

    I find that Conservatives are flabbergasted that I could possibly believe #2 and Liberals are flabbergasted that I could possibly believe #1. Indeed, when I get in those arguments with folks, I usually find that they assume that I don’t really believe the thing they find unbelievable and wonder if I’m trying to set up some sort of rhetorical trick because I’m really a secret Liberal/Conservative.

    The main thing that strikes me about both Liberals and Conservatives is that *BOTH* of them believe that both statements ought not be true at the same time.Report

    • Avatar Patrick Cahalan in reply to Jaybird says:

      This.Report

    • Avatar Will H. in reply to Jaybird says:

      My own position as well.
      I believe our differences come down to what it means to “err on the side of caution.”Report

    • Avatar North in reply to Jaybird says:

      Eh, I guess I could live with #1 though being liberal I would make it more of a “may be” or ‘can be” rather than “probably”. But otherwise I’m okay with this formulation.Report

    • Avatar Murali in reply to Jaybird says:

      When it comes to the two things that I believe:

      1. Abortion is probably morally wrong
      2. Abortion should not be illegal

      Only thing is, is that my position is almost the reverse of yours

      1. There are lots of situations where abortion is not morally wrong

      2. Abortion should probably be illegal.

      And I think people look at me when I say this and think I’m insane….Report

      • Avatar JOHN S in reply to Murali says:

        Is that not the essence of belief in the rule of law? Is it not, in theory at least the sole existance of laws to prevent activities that are morally wrong? More specifically, activities which cause harm to others? In my view the difference between whether something immoral should be illegal is the degree of harm caused to another human being. There is no contradiction then if a person thinks abortion is harming a baby. However, there is a little bit of contradiction for those folks who think abortion is morally wrong and yet support a womans right to chose. Strike that, not a contradiction, but more like a question. Why do they think it is immoral? Given the answer, whatever that might be, is it still ok that the mother be allowed to do it? I have found that a lot of people have not actually thought it out that far (no, not talking about any folks here).Report

        • Avatar Murali in reply to JOHN S says:

           Is it not, in theory at least the sole existance of laws to prevent activities that are morally wrong? More specifically, activities which cause harm to others? In my view the difference between whether something immoral should be illegal is the degree of harm caused to another human being

          John, it all depends on what makes an action right or wrong. If an action is wrong because of some feature of the action e.g. it causes harm, then sure! many of the features of an action that would make it the kind of thing that should be illegal are going to be the same kinds of features that make it immoral.

          Note, however, that the action should not be criminalised merely because it is immoral, but because it contains certain features in virtue of which it is immoral. And this is the closest you are going to get to a (justifiable) link between immorality and illegality.

          Let’s suppose you are a utilitarian, however. Then whether an action is right or wrong depends on whether that act produces the best consequences (and that depends on th particularities of a situation). However, whether an act should be criminalised depends on whether making it illegal would produce the best consequences. And as we know, the two famously diverge. Killing one man in secret in order to give his organs to 5 others who need them may be justified at least sometimes by utilitarian calculation, but makeing it legal is not similarly justified.

          Or a more mundane example is speed limits. There can often be cases where driving at 30 over the speed limit is not morally wrong. Nevertheless, it should still be illegal.

          Things start to diverge even more if we think that acts and laws are to be justified diferently. If we think acts are to be justified with respect to the reasons/motives for action while laws are to be justified with respect to consequences or whether they put a stop to the war of all against all etc then immorality can ften be incidental to illegality. Many laws are indiscriminate with respect to the intentions of people.Report

    • Avatar Chris in reply to Jaybird says:

      Interestingly, most of the liberals I know (that is, garden-variety liberals, not feminists) think that abortion is immoral and should be legal. In fact, it’s a pretty standard liberal position that the number of abortions should be reduced for precisesly this reason (your #1). This is why these same liberals tend to be in favor of things that actually reduce the number of abortions, like sex ed and birth control.Report

      • Avatar Jaybird in reply to Chris says:

        This is an interesting point.

        I realize now that most of the places where I have debated this in the past have had a feminist sub-culture to the point where if there was not someone who would immediately question #1, someone would point out #1 to someone who would.

        It’s different arguing abortion in male-safe spaces.Report

        • Avatar Sam in reply to Jaybird says:

          Male-safe? Is this a serious term?

          (And how can something be entirely immoral that can, in some cases, save the woman’s life? I understand the queasiness of people opposed to people using abortion as a de-facto birth control – although I question how many of those women really, actually exist – but surely there are scenarios in which abortion is not only reasonable, but in fact the ONLY answer.)Report

          • Avatar Tod Kelly in reply to Sam says:

            Actually, I keep all of my dudes in a male-safe when I’m not using them.Report

          • Avatar Jaybird in reply to Sam says:

            “And how can something be entirely immoral that can, in some cases, save the woman’s life?”

            Golly, I sure wouldn’t want to be the guy who wrote the paragraph that made you write that question in response to it! I wonder how he’ll weasel his way out of it!Report

            • Avatar Sam in reply to Jaybird says:

              Jaybird,

              I was responding generally but the reply function made it appear here? My mistake. There seem to commenters here arguing that abortion is morally wrong, full stop. Do I have that wrong?Report

              • Avatar Jaybird in reply to Sam says:

                Oh, I thought that you were replying to me. (And I specifically said “probably morally wrong” which I see as significantly different from entirely immoral”.)

                If you’d like me to answer the question on their behalf, I suppose I could try…

                 Report

              • Avatar Chris in reply to Sam says:

                I’m not arguing that either, though I think that’s what many, if not most liberals think of abortion. I suspect they would say that it’s still immoral even to save a life, but we do a lot of immoral things to avoid even more immoral ones, eh?

                My own position is that abortion, like the vast majority of moral issues, is ambiguous.Report

              • Avatar Sam in reply to Chris says:

                I guess I’m stunned by the idea that abortion would be immoral in a case of a clear threat to a woman’s life.Report

              • Avatar Jaybird in reply to Sam says:

                Someone breaks into my house and I suspect that this person is a threat to me and, most importantly, my wife.

                Boom, headshot.

                Can you imagine anyone saying “you know, really, you shouldn’t have killed this person”? Anyone at all? (Because I can. I can imagine countries that have that attitude as policy.)Report

              • Avatar BlaiseP in reply to Jaybird says:

                Let us put a slightly different scenario into play, a real one which happened to a friend of mine in a bad neighborhood in Chicago.

                As you say, here’s someone breaking into your home.   You shoot him.   It turns out to be your grandson who’d had a fight with your son and ran over to Grandpa’s house to get away from the situation.

                You might just want to make absolutely sure that burglar is actually a threat before you shoot him.   The old joke about the pacifist Quaker and the burglar comes to mind:  “Friend, I would not shoot thee for all the world but thou art standing where I am about to discharge my musket.”Report

              • Avatar Jaybird in reply to Jaybird says:

                Blaise, I am specifically trying to stack the deck as absurdly as I possibly can.

                Instead of it being a grandson, let’s imagine it being a legit B&E with intent to harm. Steal the money, steal the silver, torment the inhabitants.

                Can you imagine someone saying “you still shouldn’t have shot him in the head”?

                I can. I can even imagine a country having this as policy.Report

              • Avatar BSK in reply to Jaybird says:

                Well, doesn’t intent play a role?  If someone broke into your house with the intention of killing you, I’d have little issue with you blasting him.  If someone broke into your house looking for a warm place to slept but was a carrier for an almost assuredly fatal disease that can be transmitted through the air BUT which was rendered inert the moment he dies, are you still entitled to blast him?  The threat is just as real, but the man’s intentions differ.  I’m a lot less comfortable (though not necessarily entirely so) with blasting him in the latter scenario.  An at-risk pregnancy is probably more akin to the second scenario than the first.  If the baby DID want you dead… well, every man/fetus for itself!Report

              • Avatar Jaybird in reply to Jaybird says:

                R v Lindsay (not the Canadian case, the British case) involved three guys with loaded guns breaking into a small-time dealer’s house. The small-time dealer picked up a sword and killed one of the three guys breaking into his house and the other two guys ran off.

                The small-time dealer got 8 years. Here’s from wikipedia:

                The prosecution case was that, although he had initially acted in self defense, he had then lost his self-control and demonstrated a clear intent to kill the armed intruder. In fact, the defendant was himself a low-level cannabis dealer who kept the sword available to defend himself against other drug dealers. The Court of Appeal confirmed an eight-year term of imprisonment. In a non-criminal context, it would not be expected that ordinary householders who “go too far” when defending themselves against armed intruders would receive such a long sentence.

                If I had stacked the deck and said three guys with handguns broke into your house, would that have been *TOO* absurd? (And the distinction between a low-level dealer and “ordinary householders” is really, really, really, really creepy.)Report

              • Avatar BSK in reply to Jaybird says:

                I agree that the focus on the shop owner’s drug dealings, which were otherwise immaterial to the case, is really unfortunate.

                However, I don’t think someone should be given carte blanche over someone who has broken into their home, even with the intent to harm.  Let’s say I disarm my assailant and hog tie him.  Can I torture him in my basement for a few hours before popping him?  If the guy turns to run and is halfway out the door, can I pop him in the back of the head?

                I don’t know the specifics of that case well enough to say if that guy, in particular, went too far.  In general, I’d err on the side of assuming the victim (that is, the home owner) not going too far, since it would be hard to assume the pscyhe of someone whose house, family, and life are under assault.  But, there ought to exist a line somewhere.  If not, I could get away with murder by inviting someone into my home, goading them into a fight, and popping them.Report

              • Avatar Jaybird in reply to Jaybird says:

                To tie everything up together in a crazy little bow we then get to the finale question:

                To what extent is sex analogous to inviting a baby into your womb?Report

              • Avatar BSK in reply to Jaybird says:

                Well a case could be made that they are wholly equivalent. However, I am not sympathetic to that line of thinking. Otherwise, we could say that getting in a car is equivalent to inviting paralysis or walking down the street is euivalent to asking to be shot. I mean, all of those are potential risks of the chosen action and the “threat” of all of them can never be reduced to zero. Yet no one would begrudge an accident victim or gunshot victim seeking medical attention to avoid paralysis or death. I fully realize these different scenarios are not entirely analogous but we have to start somewhere, no?

                It is unfortunate that something as natural, as enjoyable, as purely human as a romp in the hay can carry with it the potential consequences that it does.

                FWIW, I’m not really sure we disagree here. I was just parsing the question farther. I would no doubt of the morality of abortion in order to save the life of the mother.Report

              • Avatar Chris in reply to Sam says:

                This is not an uncommon position throughout ethics, so I’m not sure why you find it so shocking. Have you never heard the phrase “the lesser of two evils?”Report

        • During my ideological wanderings, I spent some time with a physician-oriented abortion-rights advocacy group.  Within that culture, abortion often seemed to not only be not morally wrong, but actually an empowering personal choice.  Even then I found the sentiment a bit unsettling.

          I think some of my more strident opinions about the pro-choice movement have been in reaction to my socially conservative upbringing, and it’s taken some time to admit that some of what I tried to reject still seems right to me.  I find myself now holding essentially the same position as you, Jaybird.Report

      • Avatar Kim in reply to Chris says:

        I’m not going to say I’m not a feminist… but I think that most liberals don’t find abortion, in general, to be immoral.

        I think it’s fairly obvious that having an abortion to get a “blond and blue eyed” baby is probably immoral. I think that most sane liberals recognize the possibility of such a thing.

        Most liberals, imnsho would say, “it’s a gray area”Report

  16. Avatar john S says:

    So in your view abortion is all about womens liberty and nothing at all about the definition of when a human life is a life? There is a proscription against killing a human being in any civilized society.  Using euphamisms like ‘healthcare decisions’ suggests that you see the unborn as just healthcare concerns of the mother, hot as living beings. Perhaps you need to define what stage of pregnancy you are talking about.

    Most discussions of abotrion do what you have done: progress along two entirely different scripts. The fact is that a woman’s right has nothing to do with it if the embryo is deemed to be a human. Once the definition is made there is no room for discussion, is there?   This is a debate which must start and end with the definition of human life. Libertarianism, conservatism, liberalism are not valid philosophical positions from which to start. Unless that is, we see one persons right to chose as being more important than anothers right to live.

    I do agree that there is not enough honest discussion of this issue, however, you seem to suggest that it is hypocrisy for a libertarian to support stronger limits or even abolition of abortion. There is no conflict there, if the libertarian believes that a: an unborn child is a child and that b: killing such an unborn is murder, unless done in self defence.Report

    • Avatar James K in reply to john S says:

      Yes, this is the central reason abortion debates go nowhere.  Everyone is arguing about what a person is, and everyone ends up arguing their priors.

      I will say one thing with my policy analyst hat on – if your goal is to minimise the amount of abortion in the world your best tool is contraception.  A world in which every act of conception is the result of the deliberate decision of both would-be parents is a world with very little abortion in it.  I can’t help but feel those opponents of abortion who also oppose contraception have at best very warped priorities.Report

    • Avatar Patrick Cahalan in reply to john S says:

      The fact is that a woman’s right has nothing to do with it if the embryo is deemed to be a human. Once the definition is made there is no room for discussion, is there?

      Certainly there is.

      There’s lots of people out there that are dying, right now.  Unless you hold a pretty uncommon view of moral obligation, I doubt you’d consider it my responsibility to stop that from happening.

      You’re skipping over the question of obligation, and it’s a pretty important one.

      I am hard pressed myself to tell a pregnant woman what her moral obligations are, just like I’m hard pressed to tell someone with a terminal disease what their moral obligations are.  And, in fact, I’m hard pressed to tell someone who is armed what their moral obligations are should they be in a situation where they believe their life is threatened. Come to think of it, there’s lots of conflict scenarios where I’d be hard pressed to tell anyone what their moral obligations are in that scenario.

      In any event, I can’t square away my belief on what their moral obligations are simply by moral reasoning from first principles, I’m not enough of an absolutist.

      I’m certainly not okay with the idea of the collective deciding that people in those conditions ought to have their moral obligations dictated to them.Report

      • Avatar kenB in reply to Patrick Cahalan says:

        Imagine that a new mother is stranded alone with her recently-born infant in a snowbound cabin .  She’s been formula-feeding because she has a strong aversion to allowing anyone to touch her breasts, but now she’s run out of formula and the only way to keep the newborn alive is for the mom to breastfeed him.  Does your discomfort at dictating moral obligations apply to this situation as well?

         Report

        • Avatar Patrick Cahalan in reply to kenB says:

          I think if you have a personal ick factor towards body contact and you allow someone to die because of it, that is indicative that you have some serious problems, to the point where I’d probably regard you as crazy.

          As such, the question of dictating actual obligation is difficult, as they’re crazy.  Moral obligation probably doesn’t come into it; you can’t be expected to choose the moral path if you’re nuts.

          Legal obligations are different, of course.  If you’re asking, “Would you regard this person as legally culpable of negligence?” I’d probably need a lot more context but it’s likely I would come down at “yes”.  But that’s very complicated; like the “do we throw this one guy overboard in a lifeboat” scenario.  The answer is “it depends”.Report

          • Avatar kenB in reply to Patrick Cahalan says:

            So why do you hesitate so much more with the doesn’t-want-to-nurse mother than the doesn’t-want-to-be-pregnant mother?  We might be talking just a few days of growth between being in the womb and being out of it in this situation.Report

            • Avatar Patrick Cahalan in reply to kenB says:

              Mid- to late- term abortions for matters of convenience are very difficult to justify morally (this doesn’t necessarily imply that I’m okay with making them illegal for a number of other reasons).

              If you’re asking, “Do I regard people who would terminate a pregnancy late in the third trimester for matters of convenience as morally equivalent to someone who would allow a newborn to starve to death for matters of personal preference?” then the answer is, “More data needed, but likely yeah, I do”.

              If you’re asking, “So should we then treat them as legally equivalent conflicts?” my answer is, “No, we should not”.Report

      • Avatar Tom Van Dyke in reply to Patrick Cahalan says:

        PatC, I’m not good with comparing pregnancy with a terminal disease or being in the same paragraph.

        Despite some views—including the Roman church’s—privileging “the life of the mother” is easily defensible under most ethical codes and by natural law or right, that it’s a matter of self-defense.

        I can’t see where the terminally ill fit in.  In fact, under modern medical ethics like the UK’s NICE, there’s an ethical obligation to accept death and not burden the next generation.

        This all seems backwards to me even under the proposed modern ethical paradigm.Report

        • Avatar Patrick Cahalan in reply to Tom Van Dyke says:

          Sorry, Tom, I was a little all over the place, there.

          What I was attempting to say is that there are moments of moral conflict that represent major moments of quandary.

          To a great degree, I have a hard time deciding that I ought to dictate to people who are in those scenarios what their moral obligations may be to the parties involved (including themselves).  I’m pretty cool with what *I* regard as *my* moral obligations in those scenarios, but that’s me and, should the Almighty exist, that’s going to be my case to defend at the bar up at the gates.  I can argue that case on its own merits and accept the sentence should it come to pass.

          Now, once we all join together in society we have obligations that we don’t have in the “state of nature”, but sussing out what the differentials ought to be between society’s practical obligations to its members and what individual moral obligations are isn’t always straightforward.

          Also, there are questions of morality that (even when I have a fairly considered opinion as to the obviousness of the answer to the question) I have procedural problems.  I can imagine a technological future where those concerns don’t exist, and then I’d be okay with dictating this particular legal question.

          When it comes to first term abortions, I don’t see that there is a clear-cut case of society having an obligation to the fetus for a long laundry list of reasons.  Things get very complicated after that point, but essentially when it is all said and done what it boils down to… for me.. is that this isn’t society’s problem to solve.  Society will be bad at solving this problem.  It might have been better at it nine hundred years ago (I doubt it) or it might be better at it nine hundred years from now (much more likely), but right now today all implementations are going to suck.

          Individuals can solve it, and smaller societal structures can help.  Women can come to their answers.  Maybe support groups or volunteers or welfare programs or what-have-you can lessen the stress of this conflict, and make it easier for the woman to resolve the conflict in a manner that causes least harm.

          But I don’t think climbing on a moral obligation horse (I won’t go so far as to call it a high horse, but it’s still a horse) and dictating an outcome is particularly effective.

          I understand that some people look at the fetus as a human being, and a particularly helpless one at that, but I also understand that many other people don’t look at the fetus as a human being, and barring a “spiritometer” they have a pretty solid foundation for their stance.Report

          • Avatar kenB in reply to Patrick Cahalan says:

            barring a “spiritometer”

            Well, ultimately the question is why we privilege human life, especially in a society that’s disavowed legislating based on questions of spirit.  If we can answer that question then it would be easier to zero in on a more satisfying answer for abortion.Report

            • Avatar Patrick Cahalan in reply to kenB says:

              Practicality.

              If you can’t provide some sort of sense of security for adult members of a society, it ain’t gonna last long.

              Hence, murder is illegal and burglary is illegal and a number of other things are and ought to be illegal.Report

              • Avatar kenB in reply to Patrick Cahalan says:

                Hmm… well then why protect children, especially very young ones?  Saying that parents can humanely dispose of their kids up to age 2 isn’t going to cause anyone any sense of fear or insecurity.Report

              • Avatar Patrick Cahalan in reply to kenB says:

                It isn’t?  I think it might.Report

              • It wouldn’t cause voting age adults to have any fear or insecurity about what might be done to them, would it?Report

              • Avatar Patrick Cahalan in reply to James Hanley says:

                Oh, I think it might.  I imagine I might feel a little leery about living in a culture where infanticide was considered okay.  Wouldn’t you?

                I mean, wouldn’t that give you some pause?  Hm, what might this crazy society think of next?

                I have an amount of sympathy for some anti-abortionists just on *those* grounds.  However, they don’t seem so put out about abortions that they’re taking to the streets, so apparently it’s an evil that is tolerable enough at the moment that revolution isn’t necessary to correct it.

                On the other hand, I can very easily see civil unrest from infanticide.Report

              • Um, I can see people thinking it’s just plain wrong to allow killing of kids who can walk and talk, but I’m not sure that would extrapolate into thinking I might be next on the list.

                If we go a little more restrictive, not two year olds but just newborns, there’ve been plenty of societies throughout history that condoned it without getting really whacky.Report

              • Avatar Stillwater in reply to James Hanley says:

                Without trying to trivialize the issue (tho I’m aware someone might read me that way), in my mind most of the ‘infanticide is morally heinous’ clamor comes from individuals projecting outward from our subjective experiences onto a hypothetical: that MY life – as I know it now! – is worth so much (to me!) that NOONE should ever be deprived their future experiences! But I – and I admit this openly – don’t think this is an objectively justifiable reason to prohibit infanticide. If there is a reason to prohibit it, it’s not by generalizing from our own subjectively viewed experiences of individual life.Report

              • Avatar Jaybird in reply to James Hanley says:

                Do we really want to trade the bright line we have for a sorites problem?Report

              • Avatar Stillwater in reply to James Hanley says:

                I’d say no. For one because I don’t think this is a sorites problem (why do you ? it’s a categorical argument I’m making here…). But also I think it’s better to get clear about these issues – in this little politically inconsequential corner of the world – than opt for a pre-determined conception of societal expediency.Report

              • Avatar kenB in reply to James Hanley says:

                I imagine I might feel a little leery about living in a culture where infanticide was considered okay. 

                But this exercise is designed precisely to determine *why* you feel that way about infanticide but not abortion (or meat-eating, for that matter).  The argument for legal abortion that says “I don’t want to enforce my moral choices on others” depends on assigning the fetus a different status than an infant.  What’s the underlying justification for that difference?  Is it rigorous and consistent?

                I’m with Stillwater in this case — once you get past the knee-jerk reaction, and taking religious perspectives off the table, it’s hard to rationally justify privileging newborn human life over either a human fetus or a fully mature mammal.  Not that I’m arguing for legalized infanticide, but it’s good to be aware of when we’ve reached the bottom turtle.

                 Report

              • Avatar Jaybird in reply to James Hanley says:

                For one because I don’t think this is a sorites problem (why do you ? it’s a categorical argument I’m making here…).

                It seems to me that “birth”, if it does anything, provides one hell of a bright line. We know that a baby that has been born can, in theory, be adopted. Even by people who look nothing like the baby. Even by *GAY* people. A baby in utero, however, is still connected to the mama. Even at 9 months and 13 days.

                By saying “well, we can terminate 2 year olds”, we’re opening up to the question of “what about 2 1/2 year olds?” Or 3? Or 4?

                There’s no bright line.Report

              • Avatar Stillwater in reply to James Hanley says:

                JB, I got a little confused about what you said upthread. I thought you were saying that generalizing from individual experiences was the bright line, and eliminating it created a sorites problem. I agree that the whole thing is a sorites problem. But I don’t think that birth (natural birth?) is a bright line, or as bright as it needs to be to resolve these issues.

                 Report

              • Avatar Patrick Cahalan in reply to James Hanley says:

                @ kenB

                The argument for legal abortion that says “I don’t want to enforce my moral choices on others” depends on assigning the fetus a different status than an infant. 

                Not entirely.  The argument for legal abortion can depend on two different tracts: one, that issue.  And two, the practicalities of forbidding legal abortion (under some set of circumstances) require a structure that would present problems itself.  I happen to agree with at least some of the arguments in both spaces.

                What’s the underlying justification for that difference? 

                This depends on the person making the argument.  The two most common ones are developmentally dependent: either the fetus cannot survive on its own or the fetus does not possess neurological development to the extent that it qualifies as a fully human existence.

                Is it rigorous and consistent?

                Usually not; most people I know who assign the fetus the same status as a full human do so based upon principles that they bend and twist when talking about other cases of human life-taking.

                Side note: you can’t have a closed axiomatic system that is complete, concise, and correct.  So if you’re asking for rigorous and consistent, you’re probably winding up putting in incorrectness somewhere in your moral framework.  Don’t blame me, that’s God’s fault.

                I’m with Stillwater in this case — once you get past the knee-jerk reaction, and taking religious perspectives off the table, it’s hard to rationally justify privileging newborn human life over either a human fetus or a fully mature mammal.

                I don’t think this is actually very difficult at all for most people.  Again, lots of most people aren’t terribly rigorous about it, but that doesn’t make them incorrect.

                In any event, I do see a couple of inherent differences between a newborn human being with the normal set of faculties and both a (first trimester) fetus and a fully mature mammal.  If you don’t, that’s understandable, lots of people don’t (in the first case) and lots of people don’t (in the second).  Some people don’t in both, but that’s pretty rare.

                Jaybird likes the bright line of birth, and it’s certainly unambiguous so it has that going for it (which is not a trivial advantage), but I think that moral obligations to other humans are predicated on a lot of competing factors that make simple statements difficult to defend.

                One of the difficulties with this thread is that there is a tendency for comments to fudge together a number of factors here.

                We have the moral obligation of the parent to the child.  We have the moral obligation of the citizen to his or her fellow citizen.  We have the moral obligation of the citizenry to structure their society such that it causes least injustice.  We have the practical obligation of the citizenry to produce a society that is stable, which sometimes requires legal recognition of morally questionable behavior (since, after all, civil war is more disagreeable than forbidding all cultural norms).  We have the legal obligations (which in some cases are aligned with the moral obligations, and in some cases are cross-purposes, and finally in some cases are not relevant at all) which may be the codified attempts at the previous.  Finally, we have the non-state, non-individual forces in a society that have little to do with legal obligations (other than trying to establish or remove those obligations) but quite a bit to do with society’s other, extra-legal impositions upon its members.

                Oddly enough, that last bit is the part that many right-to-life people have a very hard time recognizing… in spite of the fact that there is a very, very large correlation between people who are right-to-life and people who propose using exactly those forces to solve societal problems *over* the legal system in many]most other cases.

                I look at the legalization of abortion as potentially bad.  I look at the prohibition of abortion as having consequences I don’t particularly like, and thus likely also potentially bad.  There’s a frying pan over here, and a fire over there, and don’t like either overmuch.

                On the gripping hand, if we prohibit abortion using legal mechanisms, we’ve embedded some of those potentially bad outcomes into the state, and it is very difficult to compensate for that.  If, on the other hand, we do not prohibit abortion using legal mechanisms, it is still certainly possible to reduce abortions using other extra-legal societal structures, encouragements, etc.

                So we don’t need to outlaw abortions to lessen their frequency – we can use other methods to do so… but if we outlaw abortions we’ve made it very difficult to effectively reduce the remaining abortions without incarcerating women (or doctors).

                Or, more succinctly, when looking only at the law... legalized abortion is the frying pan.  Illegal abortion is the fire.  Both burn.  But looking at the whole of society, it’s a lot easier to use extra-legal forces to move the frying pan out from over the fire than it is to use extra-legal forces to put out the fire while the frying pan remains over it.

                It’s a bad solutions space, but this is where we often are when we are talking about moral obligations in highly conflicted spaces.

                Now, Tom might chime in here with a completely justifiable bit of empirical evidence he’s already referred to elsewhere on the thread that points to the bald fact that legalized abortion has greatly increased abortions to the point where many of those potentially bad outcomes I don’t like about illegal abortion are vastly outweighed (currently) by the number of convenience abortions that remind him of the eugenics post he wrote on the subblog.

                I quite frankly admit I don’t have a great counter to that one; it’s obviously true that the default status of an activity (legal vs illegal) does in fact have a very big impact on the frequency of the activity, even if the penalty is very minor.  The law is a very powerful and effective tool for preventing a large swath of occurrences of anything.  My admittedly not-great counter is that since Roe, the vast majority of pro-life resource expenditure has gone to breaking Roe, not reducing abortion.  If the pro-life community transferred all of that effort towards sex education, supporting low-income women, rape prevention education, and a host of other extra-legal methods of cutting down on abortion, you might see that trend change dramatically.Report

              • Avatar KenB in reply to James Hanley says:

                Well, apart from perhaps a few quibbles, I pretty much accept that.  I succumbed to the temptation to jump into this thread when I saw people making assertions that seemed too strong to be justified by all the uncertainty around this topic, and I guess I misread you as being more confident than you really were. 

                I think that moral obligations to other humans are predicated on a lot of competing factors that make simple statements difficult to defend.

                Yup, that’s the song I was really singing here.  I think it applies just as much to the idea of not imposing a moral obligation on others as to imposing it.Report

              • Avatar Patrick Cahalan in reply to kenB says:

                Um, I can see people thinking it’s just plain wrong to allow killing of kids who can walk and talk, but I’m not sure that would extrapolate into thinking I might be next on the list.

                Might not for you, granted.

                I know a few people who present exactly that sort of logic at me on a basis frequent enough that I can readily see it.

                In any event, I didn’t mean to imply that practicality is the only concern.Report

        • Avatar Matty in reply to Tom Van Dyke says:

          Have you got a source for NICE giving this advice? They generally decide whether a treatment is effective enough to warrant NHS funding. Ethics is in play sure but I’ve never heard of the Institute opining on what a patients ethical obligations are and can’ find it on a brief check of their website.Report

      • Avatar JOHN S in reply to Patrick Cahalan says:

        Ha ha! Well  I certainly was proven wrong about there being no room for discussion! I don’t have a problem with extending some of my moral code onto others. Telling them not to kill people for trespassing or for stealing their stuff. I agree with you that i would not condemn someone for protecting themselves against a killer, or even against greivous bodilly harm. But am I asking for that? I am not so sure. In deeming a fetus to be a living human, I am requiring that it’s life be preserved in most circumstances, just as i would preserve the child after it has been born. I seem to be having tense problems there…) .

           I am not into telling people what they can do with their lives, with the necessary codicil. Libertarianism in my view means allowing people to do what they will, so long as it doesn’t substantially interfere with others doing the same. If, and when the fetus becomes one of the ‘others’ , then abortion becomes antilibertarian.  Of course that is just my definition.Report

  17. Avatar Will H. says:

    On this occasion, I would like to (mis)quote / paraphrase Mr. Hanley from previous conversation.
    I’ve tested the man on a few occasions (go figure). But there were a couple of questions that I’ve asked of libertarians before that made them all run like scalded dogs (Michael Vick references notwithstanding), but he batted them down rather easily (current basketball attire aside).
    What he said was something along the lines of:
    Just because libertarianism isn’t the answer for everything doesn’t mean that libertarianism isn’t the answer for most everything.
    Which is what I believe was the thrust of Mark’s comment above.

    And secondly, the OP takes it as a foregone conclusion that the sole concern of abortion is as a medical procedure, while that is definitely not the case.
    Surely, every conservative would wish that any abortions to be had should be given as a medical procedure, ie not as a party game, or a initiation ritual, or a half-time event at the Super Bowl.
    But this still looks like the fetus=toenail clipping false equivalence to me.
    Sorry if I offended, but that’s just my view.Report

    • Avatar James Hanley in reply to Will H. says:

      I can accept that paraphrase.  Even if libertarianism isn’t in fact the answer for most everything, the statement works as a matter of formal logic.

      But “batted down easily,” is surely giving me too much credit.  Perhaps the sheer elegance of my writing obscured the intellectual effort required to answer your questions?  *grin*Report

  18. Avatar Will H. says:

    A closely related topic, and one that should be considered:
    Ok, say that a fetus/zygote/cue-ball-after-a-hard-night-of-drinking is the very same thing as a toenail clipping.
    Very well then.
    Would it then be permissible to use the DNA from that toenail clipping and do something insidious with it?– make it into a commenter at Balloon Juice, say?
    Then, by what right would the woman/filly/lass have to say:
    “Wait a minute! That’s the DNA from my toenail clipping commenting over at Balloon Juice!”
    Does that dog hunt, or does the pig fly?

    That is, what is the extent of this “ownership” proclaimed?Report

  19. Nob Akimoto Nob Akimoto says:

    My general problem with “pro-life” (other than the name, which is horribly offensive) positions on abortion is that they make an enormous logical leap that has second-order implications far beyond their own personal distaste for voluntary termination of pregnancy. The conceptual leap into defining personhood as beginning with conception has serious policy implications (e.g. how to handle miscarriage as a legal matter) to moral implications (the morality of even trying to get pregnant) that I think we ultimately end up in territory that’s simply not tenable.

    Fetal personhood amendments don’t seem to be surviving scrutiny (thankfully), but how do we square that with the overwhelming support for banning abortion in those same states? What separates abortion from stillbirths, miscarriage, IVF, ectopic pregnancies, even the act of trying to get pregnant, where a good proportion of fertilized eggs never implant?

    Is it intent? Or some hazy notion that it’s elective?Report

    • Avatar Tom Van Dyke in reply to Nob Akimoto says:

      Nob, I prefer “anti-choice.”  It spares everybody the pain of discussing the issue.Report

    • Avatar North in reply to Nob Akimoto says:

      but how do we square that with the overwhelming support for banning abortion in those same states?

      Nob. My personal two cents: If, let’s hypothesize, a President Romney appointed a couple adamant pro-life justices to the supreme court and Roe got eliminated, if further the states in question then outlawed abortion I theorize that we could see the current support in opinion polls invert.

      My own uneducated impression of the state of play on the matter of abortion is that many pro-choicers are tuned out of the issue and many other more fence sitting people find it convenient to be vocally pro-life while enjoying the fact that the current system is pro-choice despite their asserted opposition.Report

      • Nob Akimoto Nob Akimoto in reply to North says:

        I suppose you’re right about the the fence-sitters. On the other hand I’m still having a hard time squaring anti-abortion polling in Mississippi with the failure of the personhood amendment. (Note I’m not advocating for it. Just that the logical end of “life begins at conception” should be fetal personhood)Report

      • Avatar Simon K in reply to North says:

        I would slightly differ from that – I think there’s a fairly solid majority that would favour a more restrictive regime than the current one. Say requiring some kind of justification for abortion after X weeks (21 and 24 are popular numbers, but given current technology it might go lower). That majority is probably quite stable, but at present most of those people seem to represent themselves as pro-life. I’m confused as to why, but there it is.  Vastly fewer people support a ban on 1st trimester abortion than call themselves pro-life, for example. Were the legal regime to flip and some states allowed to pass from-the-point-of-conception fetal personhood laws and that were generally still accepted as the objective of the pro-life movement, I’d expect those people to rapidly flip their identifcication without really changing their policy views.Report

        • Avatar North in reply to Simon K says:

          A good analysis Simon. Essentially the terms pro-life and pro-choice are likely being used by the masses to indicate their position vis a vis current policy rather than by objective standards. Therefore a pro-choice person who favors more restrictions on abortion, for instance, would identify as pro-life to a pollster since they feel that currnet policy is to the left of them.Report

    • Avatar sonmi451 in reply to Nob Akimoto says:

      I’m guessing the difference for some pro-lifers, anti-choicers, whatever you want to call them, is that abortion involves a decision and an act by a WOMAN, stillbirths, miscarriages, ectopic pregnancies, those are all acts of god or nature.Report

      • Nob Akimoto Nob Akimoto in reply to sonmi451 says:

        I’d guess my counterpoint is that if you act to make yourself pregnant, at some point you’re going to have a fertilized egg that won’t implant, which in the practical sense is the same thing. Essentially that in your attempt to have a child you’ve “killed” a fetus.Report

    • Avatar Scott in reply to Nob Akimoto says:

      Nob:

      Sorry, I guess saying pro-life doesn’t sugar coat reality so as to spare peoples’ feeling or conscience. It is sad that in many instances animal life has more protection than human life.Report

  20. Avatar E.D. Kain says:

    Look, an abortion thread that’s nearing 200 comments. Color me surprised!Report

  21. Avatar Patrick Cahalan says:

    Jaybird said, up there:

    Someone breaks into my house and I suspect that this person is a threat to me and, most importantly, my wife.

    Boom, headshot.

    Can you imagine anyone saying “you know, really, you shouldn’t have killed this person”? Anyone at all? (Because I can. I can imagine countries that have that attitude as policy.)

    You know, really, (in most cases) I’m probably going to think you shouldn’t have killed this person.

    That said, this is exactly one of those cases of conflict about which I’m uncomfortable telling anyone else what their moral obligations are.  Particularly because, in this instance… I’m certain that, even in a state of moral awareness, I’m likely going to do the same thing.

    That doesn’t make it right, it just makes it necessary.  I can think of all sorts of scenarios wherein something I regard as necessary is probably immoral.  Such is the joke on us.Report

    • Avatar Jesse Ewiak in reply to Patrick Cahalan says:

      I’d note than in the US, yeah, it’s not a horrible thing to assume someone invading your home had a deadly weapon. However, those other countries have an anti-murder random thieves policy because the vast majority of those thieves don’t have weapons or any want/need to harm you.

      But, if I can be a judgmental person, many of the people who end up shooting random people in their home have wanted to shoot somebody since they’ve got that gun. Actual, responsible gun owner’s don’t unlock their gun the moment they hear a shuffle outside the kitchen window.Report

  22. North asks:
    What users of this female responsibility argument always seem to ignore or scuttle away from is that it generally does take two people to cause a fetus to appear in a woman’s body (or a person and a God in one scenario I read about somewhere).

    Here is a question: If a man is raped, should he have to pay child support for any children born from said rape? If the answer is yes, I suppose I applaud you for your consistency. If the answer is no, you’re applying a degree of moral agency on something that is not all about moral agency. Which is, to an extent, the same thing that pro-life people are doing when it comes to abortion. It is not inherently more about “punishing women for sex” than child support is about punishing men for the same.

    @Jaybird asks:
    To what extent is sex analogous to inviting a baby into your womb?

    Most pro-choice people would say that the answer Jaybird’s question is “it’s not an invitation at all.”

    But if we’re talking about child support payments, the answer is “he should have thought of that when he took his pistol out of his holster.”

    Now, the requirement of carrying a baby in your womb is substantive different, and more of a violation than cutting a check, but these are not wholly unrelated scenarios.Report

    • Avatar Jaybird in reply to Will Truman says:

      (Jaybird just wants to clarify once more that he is pro-choice.)Report

    • Avatar Jaybird in reply to Will Truman says:

      Less feverish now, I think I have the wherewithal to talk about this.

      Way back when I was a kid in college and we were between knowing who Anita Hill and knowing who Monica Lewinsky was, I wrote a paper about whether there should be the equivalent of paternal abortion laws… something like in exchange for saying “I want nothing to do with this child, ever (forever ever)”, a father could remove his legal obligations to any given pregnant woman who claims he is the gamete donor for her clump of cells (as opposed, of course, to the father of her baby).

      One of the brilliant! ideas I had was to interview the lady behind the desk in the women’s center.

      It was explained to me that women had much more responsibility here than men did and, historically (like within living memory), men were only now being asked to share responsibility to the point where there were legal protections in place and if it looked like women had more options than men did when it came to pregnancy, that still was very much *NOT* the case. They just no longer had the option of bailing.

      At the time, this argument struck me as self-evidently absurd.

      Now, I think, it just strikes me as wholly insufficient for what they’re shooting for and it’s more likely to have unintended consequences that make things worse than intended consequences to make things better.Report

  23. Avatar BlaiseP says:

    May I add a few un-constructive thoughts to this business of Reproductive Rights?

    I have been swayed by Mr. Tom Van Dyke’s arguments, especially by his quotes from various legal scholars.   I would expand upon his point:  “The Roe court upheld no existing laws: it subsumed them.”   It did more than subsume them, it made a Sky Hook, based on nothing in the Constitution.

    Let us focus on the zygote as a biological construct.   Is that zgyote not the combination of two haploid cells, one from the father and the other from the mother?    Where is the father in the picture of Roe?   The father is exactly one-half of the issue, surely he is party to the matter.  Does he have rights to intervene in the fate of his progeny?

    Under Roe he does not.

    Roe ought to be overturned on the basis of obvious biology, known for centuries.Report

    • Avatar Sam in reply to BlaiseP says:

      BlaiseP,

      Are you proposing that the man’s objection be enough to overrule a woman’s desire on this as a matter of practical law?Report

    • Avatar North in reply to BlaiseP says:

      BlaiseP, I’d disagree because I do not think think you’re analysing the biology far enough. Let us focus on pregnancy as a biological construct. Do the effects, burdens and risks of pregnancy not fall entirely upon the woman in a pregnancy? Where is the impact of the pregnancy upon the father? The Father is utterly detatched from the gestation process. He has deposited his genetic material and thereafter biology in its tyranny leaves him free to blithely sail on to other waters if he is so inclined. The Father is not remotely one half of the process and accordingly his rights are proportional to his skin in the game. This strikes me as about as just as one can hope for when dealing with this issue.Report

      • Avatar Chris in reply to North says:

        I could be wrong, but I figured Blaise was being sarcastic.Report

      • Avatar Stillwater in reply to North says:

        North, he’s making a men’s rights argument. Men’s rights are categorically distinct from women’s rights, but for some reason that doesn’t prevent some folks from trying to subsume the one into the other.Report

      • Avatar Patrick Cahalan in reply to North says:

        I think it’s fair to say that if you are excluding the paternal side from the decision-making process, the paternal side as a matter of justice ought to have responsibilities excluded also*.

        In other words, if we’re giving women the right to decide what happens in the event of a pregnancy, we should give the men the right to opt-out of child support.  If the woman wants the baby, and the man doesn’t, forcing the man to pay child support while he has no say in the decision to actually have the baby is manifestly unjust.

        Unless, of course, the man has a special duty to the child.  But if the man has a special duty to the child, then clearly the woman does as well and there is no choice to have in the first place; they both have to have the kid and pony up the effort to raise their offspring, to whom they owe duties.

        * If, on the other hand, no parent has special duties to the child, the only justifiable special duty that would obligate the man to deal with the outcome of a pregnancy would be if they had a special duty to the woman.  You can argue that case, of course.  If the man makes a verbal contract and attempts to void it by action, he can be held accountable for the outcomes…. “I’ll marry you, baby… just let me get to home base!”Report

        • Avatar Jesse Ewiak in reply to Patrick Cahalan says:

          Ignoring the fact that men as a gender have had a nice 5,000 year run of being able to impregnate a woman and leave town and thus, remove themselves from responsibility, arguments like this are why some people might think those on the pro-life side care more about the sexual control of women than the actual fetus.

          Yes, it is unfair that men can’t shirk parental responsibility once they finish their deed. To that, I say too bad. Unfortunately, that’s the price we have to pay for the massive societal advantages we have for being male. Don’t want to be “forced” to pay child support? Don’t get a girl pregnant. Unlike the girl, you don’t have nine months of a dangerous medical condition to deal with.Report

        • Avatar Kim in reply to Patrick Cahalan says:

          A different perspective, If I may… Forcing men to pay child support (which is By Far not Guaranteed! — considerable considerable people don’t actually pay, and many remain unaware of whether they have had kids. Not to mention the “blame it on someone else” game) is a way to attempt to constrain male reproductive urges.

          That is to say: “If you “get lucky” you may need to pay for it.” As a considerable number of those are not legally prosecutable rapes (wherein we say that a woman who doesn’t want it, and doesn’t say a word, can’t prosecute, at teh very least), but are anything from quiet rapes to “deliberately creating altered states of consciousness…” It seems like this is a reasonable way to stop Bad Behavior (which is defined as Breeding Too Much Makes Society Implode).

          … except it’s really not. Because many guys have decoded ways in which this is impossible to enforce (everything from the girl wanting to protect him from legal consequences, to the girl sincerely not knowing who had sex with her (or when), to it being too shameful to admit that a girl who was raped had an orgasm during it.).Report

        • Avatar Patrick Cahalan in reply to Patrick Cahalan says:

          In both of your cases, you’re implicitly agreeing that the man has a special obligation to the woman… Jesse because apparently today’s man needs to pay for the misdeeds of his upteenth-removed ancestors and Kim because most men are bastards.

          That’s fair enough (although I’m deliberately casting both of your comments in a disagreeable light, they both have more than some merit, particularly the “most men are bastards” charge).

          However, for a liberated woman, entering into the sex act without an intention of procreation with a partner who likewise is entering into the sex act without said intention, wherein both partners take precautions to limit the likelihood of a pregnancy being an outcome and thus there is an implicit agreement that this is just for laughs… for the woman to turn around (if she gets pregnant) and decide both to keep the baby (which is certainly her right) and soak the sex partner for support (which is clearly unjust in this case, right?  Right?) seems out of bounds.

          Yes?  Or no?Report

          • Avatar Kim in reply to Patrick Cahalan says:

            I’m implicitly agreeing to no such thing, merely stating that this is a method of societal control that makes society work Better (aka not Implode and Die). Kinda like how women-dominated societies Crashed and Burned. It doesn’t say that it’s right NOW, although there’s certainly an element of that.

            Most men aren’t bastards, just about 33% of them. And at least some (a few?) of those have morals. [Bear in mind, I know someone explicitly disinvited from the Inauguration because “we remember what happened LAST time…”]

            Yeah, I think what you’re saying is unjust, and I’d be mostly willing to accept a formal written (standardized!) contract that would allow both parties to void rights (possibly with some escape clauses).

            Two mutually consenting parties, taking mutual responsibility (both condoms and The Pill), should be able to carve out a No We Really Mean It safehaven from general purpose law.

             Report

            • Avatar Patrick Cahalan in reply to Kim says:

              merely stating that this is a method of societal control that makes society work Better

              Ah.

              Well, this is one of those cases where I don’t think the stick is actually going to do much (I don’t disagree with your general principle, just its application in this case).

              Men who want sex are pretty unlikely to be dissuaded from participating in the sex act just because they might be hung with a legal obligation.  Shoot, men engage in unprotected sex in spite of the fact that it might kill them.  So I don’t think this actually provides much in the way of disincentive that will actually affect the decision-making process.Report

              • Avatar Kim in reply to Patrick Cahalan says:

                What it does is get the 33% of guys who are Dogs (and other personality types) to put on the condom if she asks (and some to consider sex without a condom to be kinda icky, particularly if it’s a one night stand).

                It doesn’t work for a LOT of guys — then again, a large proportion of guys are actively disinterested in reproduction (s&m, gay, etc).

                The problem with me saying “this makes society work better” is that this rule is actually older than condoms. It’s applicability has been substantially undercut by the ability of either side to take precautionsReport

              • Avatar Will Truman in reply to Kim says:

                What it does is get the 33% of guys who are Dogs (and other personality types) to put on the condom if she asks (and some to consider sex without a condom to be kinda icky, particularly if it’s a one night stand).

                The problem with this is that the men who are dogs are least likely to take the threat of child support seriously (low time horizons and all that) and the most likely never to pay for it anyway (less likely to ever have the means to do so).Report

              • Avatar Kim in reply to Will Truman says:

                … pigs and rats are more likely to not take the threat seriously, as they Never Ever get called on it (well, mostly not ever, Bristol managed it, as what, the third girl her boy got pregnant within the year?).

                Dogs(again, the Chinese personality type), are called such because they’re willing to be leashed, and ultimately just in it for the fun. Wearing a condom increases the likelihood of repeated sex, and thus they’re for it.Report

          • Avatar Stillwater in reply to Patrick Cahalan says:

            for the woman to turn around (if she gets pregnant) and decide both to keep the baby (which is certainly her right) and soak the sex partner for support (which is clearly unjust in this case, right?  Right?) seems out of bounds.

            Yes, on at least one measure of justice. But how central is this criticism to the current  legal apparatus in place? That is, do all abortion and child support laws need to be fundamentally revised to prevent this type of scenario from ever happening? Or can we treat this as a standalone problem that gets remedied without revising a woman’s right to choose or making that choice in principle dependent on agreement from her partner?

            I understand you’re just presenting a fair criticism of an inconsistency between rights and obligations here. But lots of people (men’s rights activists!) use this premise to effectively subsume womans rights into mens rights. They use it as a basis to undo what has been done. Which is what Jesse and Kim were saying upthread.Report

            • Avatar Patrick Cahalan in reply to Stillwater says:

              Or can we treat this as a standalone problem that gets remedied without revising a woman’s right to choose or making that choice in principle dependent on agreement from her partner?

              In theory, this is the way it works now (IANAL).  Paternity suits need to be brought, they’re not necessarily granted outright, right?  Your mileage may vary according to state, of course.

              So no, I’m not necessarily advocating changing anything.  Just shining a light into that corner of the room and making sure everybody remembers there’s a chair over there.Report

        • Avatar BSK in reply to Patrick Cahalan says:

          Interesting paradox here… essentially you are saying that men assume a level of accountability that choice-advocates do not expect of women.

          Man and woman have sex.  Woman gets pregnant.  Woman can opt out, independent of man, of pregnancy and its associated consequences via abortion.  Man can not opt out without consent of woman.

          I suppose the response would be to weigh the consequences of the pregnancy for the man versus that of the woman.  A man owes a certain sum of money, which general pales in comparison to what it actually costs to raise the baby.  The woman is also on the hook for money, as well as time, the fact of being pregnant, etc, etc, etc.Report

        • Personally, I can’t get behind the whole notion of male opt-out. But I really do wish it is something that more people would think about when they argue on the one hand that it’s outrageous to have an accountability/agency component on the abortion subject and then moralistically state that if a man doesn’t want to be a father that he needs to keep his pistol in his holster.

          You simply can’t argue that a man is entirely responsible for his role in getting a woman pregnant (absent rape, presumably, though often including sperm theft) and then cry foul when it comes up in the abortion discussion.Report

    • Avatar sonmi451 in reply to BlaiseP says:

      So what is the practical laws you are proposing here? Women must have the permission of the father before she can get an abortion? What if she’s not sure who the father is? Should the law force her to wait until she is far along enough for DNA test to be conducted? I mean, that might increase the rate of second-trimester abortions, which more people object to compared to first trimester abortions, but hey, fathers’ rights, right? So what happens if the pregnancy can affect the health of the women, but the father still demands her to continue the pregnancy, under the basis that the life of his child is more important than the health of the mother? If the mother had a miscarriage and the father suspects she actually had an abortion, can the father sue the mother for not having his permission to get an abortion, or even have her arrested? Have you thought through the implications?Report

    • Avatar Jesse Ewiak in reply to BlaiseP says:

      Or how about the other side. Can a man then force a woman to get an abortion if he doesn’t want a descendant running around?Report

      • Avatar sonmi451 in reply to Jesse Ewiak says:

        I’m going for the most charitable interpretation here and assuming that BlaiseP wants an abortion law that requires consent from both the prospective father and prospective mother, and not one that puts the desire of the prospective father above the prospective mother. So in your hypothetical, the prospective father cannot force the prospective mother to have an abortion if she doesn’t want one, but he CAN FORCE the prospective mother to continue the pregnancy, even if she wants an abortion. Please feel free to clarify, Mr BlaiseP.Report

        • Avatar sonmi451 in reply to sonmi451 says:

          Correction, I was wrong about not putting the desire of the prospective father above the prospective mother. In the case of the prospective mother wanting an abortion and the prospective father forcing her to continue the pregnancy, obviously the desire of the prospective father is being put above the prospective mother in the abortion laws of BlaiseP’s imagination.Report

    • Avatar BlaiseP in reply to BlaiseP says:

      Sam: I’m only asking questions, not proposing any answers.  Clearly existing law doesn’t provide the father any right to object to an abortion.

      North and Kim:  there’s an interesting bit of law at State of Louisiana v. Frisard which might address your concerns.   The impact is paternal liability.Report

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