March 7, 2006

"This is our time," say Roe opponents. But is it?

Now that South Dakota has passed its harsh anti-abortion law, what will happen next?
[O]pponents of abortion have split over South Dakota's approach, a fact that [Governor Michael] Rounds acknowledged in recent weeks as he weighed whether to sign the legislation.

Some, including those who led efforts to pass the ban in South Dakota, said they considered this the ideal time to return the central question of Roe to the Supreme Court. State Representative Roger Hunt, who sponsored the bill in South Dakota, pointed to the appointments of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., both conservatives, and what he described as the "strong possibility" of the retirement of Justice John Paul Stevens in the near future and the naming of a conservative as his successor.

"This is our time," Mr. Hunt said on Monday.

Other national anti-abortion groups, though, have quietly disagreed with the timing, pressing instead to cut down on abortions by creating restrictions that may be more palatable to a wider audience, restrictions like parental and spousal notification laws and clinic regulations. If the Supreme Court upholds Roe, they have argued, the damage for those opposed to abortion rights will be grave.

"As much as this isn't the best strategic thing to do, it's there and it's the law of South Dakota now," said Daniel S. McConchie, vice president of Americans United for Life, another group. "We'll defend our position now — which is to oppose abortion."

Cristina Minniti, a spokeswoman for the National Right to Life Committee, said no one from her organization was available to be interviewed on the South Dakota law. Instead, she issued a one paragraph statement which stated, in part: "Currently there are at least five votes, a majority, on the U.S. Supreme Court to uphold Roe v. Wade."

Mr. Rounds, who became governor in 2003 after serving in the South Dakota Senate for a decade, declined to speak with reporters after the signing. In an earlier interview, he said that he personally felt uncertain about the timing of a challenge to Roe, but that he was leaning toward signing the bill, in part because he did not wish to divide the people who, like him, oppose abortion.
I think Rounds and others sense that they are making a terrible misstep. The very harshness of this law will remind ordinary people why they have quietly, over the years, accepted the individual's right to make a private decision about whether to continue a pregnancy. More modest efforts at constraining the right may have been tolerated. But this remorseless intrusion on the individual should backfire on abortion opponents. Even if they manage to get the Court to overturn Roe v. Wade -- and I don't think they will -- the political support for abortion rights should make that victory Pyrrhic.

IN THE COMMENTS: I'm happy to say there is civil conversation among readers with very different views.

100 comments:

Smilin' Jack said...

Stevens should retire now...this bonehead move by SD would guarantee that his successor is not a conservative.

Dave said...

"The very harshness of this law will remind ordinary people why they have quietly, over the years, accepted the individual's right to make a private decision about whether to continue a pregnancy."

Agreed about the harshness of the law. It seems rather barbaric to prohibit a woman who was raped to abort her pregnancy, along the lines of stoning adulteresses to death. That can't bode well for the pro-life contingent's claim to moral superiority.

Doubtless someone will read this comment and call me a murderer. Have at it. See if Althouse's prediction comes to pass. I suspect it will.

me said...

"Even if they manage to get the Court to overturn Roe v. Wade -- and I don't think they will -- the political support for abortion rights should make that victory Pyrrhic."

If Roe is overturned, the victory will by Pyrrhic in some states -- but very real in others. I will have a problem if my Southern state outlaws abortion -- I don't anticipate having one, but what if I have pregnancy complications? Will I have to go before a judge to be able to take my doctor's advice? I want to live in a place where I control my uterus, not the state. Guess when JPS retires it might be time to move.

Alan said...

I agree, and I touched on this in my latest reply in the Giuliani thread.

CB said...

From the Act:
"Nothing in section 2 of this Act may be construed to prohibit the sale, use, prescription, or administration of a contraceptive measure, drug or chemical, if it is administered prior to the time when a pregnancy could be determined through conventional medical testing and if the contraceptive measure is sold, used, prescribed, or administered in accordance with manufacturer instructions."
This explicitly allows emergency contraception to be used in case of rape. However, I have a hard time reconciling this with the Act's assertion that life begins at the moment egg & sperm meet; it must be that, by administering the emergency contraception before it cannot be known whether the victim is pregnant, the "intentional" (or maybe it was "deliberate") requirement is not met.

CB said...

That is, before it can be known.

Goesh said...

- the banners are unfurled, the advance begins with murderers like Dave well in front of his camp...sorry, I couldn't resist that. I don't expect the SD Law will stand. I don't have a penis or a fetus in the fight so I will not be advancing with either camp. If I could work my will, women and women only would vote every 4 years to either allow by simple majority vote any and all forms of abortion or none at all.

CB said...

The language of the Act is "specific intent," which allows the use of emergency contraceptives.

Balfegor said...

I think Rounds and others sense that they are making a terrible misstep.

I think they do -- and I do too -- but I don't think this has anything at all to do with the harshness of the law. It is because if this comes before the Supreme Court as it is currently constituted (and it must be their intention to argue it up to the Supreme Court, because any Federal Court below the Supreme Court is going to strike it down), they will lose, and get another flat affirmation of the abortion precedent right before they potentially reach the five votes they need to overturn Roe.

I think their best outcome, now, is for the Supreme Court to deny certiorari.

proudtobealiberal said...

Extreme elements of the right to life movement do oppose emergency contraception. That's why Plan B -- an emergency contraceptive -- has not been approved for over the counter use. The right to life movement has also encouraged pharmacists to refuse to fill prescriptions for Plan B.

Thus, it may be impossible for women to get emergency contraception.

Also, a South Dakota legislator, Mr. Napoli, told PBS reporters that his vision of a rape victim who could get an abortion was a religious virgin who was waiting until marriage and was violently raped and sodomized and would be suicidal, therefore falling under the "life" exception. Obviously he has no compassion for women who are not virgins who are raped, including of course married women.

Jake said...

Maybe if we had a ruling on the abortion issue one way or another, the nation could have some closure on this issue.

peter hoh said...

Maybe they really want to have the court uphold Roe. I suspect that GOP strategists like the status quo. When Roe is overturned, all hell breaks loose.

PatCA said...

"the political support for abortion rights should make that victory Pyrrhic."

In a perfect, or better, world, both sides would get together and craft a law that would satisfy the vast majority of people who agree about the necessity for safe abortions and the necessity to get government out of our personal lives.

However, I think probably both sides will hammer away at each other in the courts. Each side will score a victory of sorts, which then will energize their opponents to do the same. And so it goes.

MadisonMan said...

...the Act's assertion that life begins at the moment egg & sperm meet

I've never understood this assertion with respect to identical twins. If life begins when the sperm breaks through the ovum wall -- when does life begin for the 2nd twin?

And as far as the implicit allowance of emergency contraception: I don't buy it, and it smells of Republicans who have gone too far in trying to ban abortions coming back to sugarcoat very poor legislation.

Alan said...

Jake,

I wish we could run two Constitutional Amendments side by side--one for and one against. My bet is the one "for" would be ratified overwhelmingly. Then the question regarding SC nominees would fall on how he or she would vote on Felo. :)

Ann Althouse said...

How does the morning after pill work for a young girl, who may not understand what has happened to her or is too frightened, perhaps overpowered by a father or brother, to tell anyone until she is conspicuously pregnant?

vbspurs said...

Maybe they really want to have the court uphold Roe. I suspect that GOP strategists like the status quo. When Roe is overturned, all hell breaks loose.

The SD bill is radioactive.

If Roe v. Wade should happen to be overturned before 2008, we Conservatives can kiss the presidency goodbye for many terms.

This may be why Ann mentioned that perhaps the President chose Harriet Miers (however much of a born-again Christian she was) because she was a total unknown on paper on Roe v. Wade -- an appointment which implied a certain nervousness about this overturning.

That's the practical side.

The moral side is without question: abortion is convenient murder.

So the question is, will the majority of Conservatives have the gumption of our convictions to carry this through, and possibly damage our political landscape, or not?

These next two years will be an griddle of anxiety...

Cheers,
Victoria

(Word verification: dzpwr! Dizzy with power is a good way to describe this)

me said...

I think one people overlook in this whole debate is what to do about genetic testing. Now that serious birth defects can be predicted in utero, outlawing aborting will require that mothers go forward with pregnancies no matter what. This is a significant fact to consider given the large number of older women having children.

Fundamentally, the practical problem with outlawing abortion is that women miscarry naturally. Thus, prosecuting women for abortions is inherently difficult. Given that abortions will continue no matter what, does it really make sense to make all abortions illegal.

Too Many Jims said...

I am just waiting for the lower court decisions where the judges will strike dwn the law. Then we will hear about the evils of "activist judges". Unless I am missing something, any lower court judge that would not throw this out, should be tossed off the bench.

Sean said...

I don't understand the theory that there will be a political backlash if Roe is overturned. That would only happen if state legislators started voting their consciences rather than doing the popular, politically useful thing. When was the last time a state legislator did that?

Of course, there may be some states (including perhaps South Dakota) where a total abortion ban is the popular, politically useful thing. If the theory is that Park Avenue matrons who support lower taxes will abandon the Republicans because abortion has become illegal in South Dakota, I simply don't believe it. As to what female law professors who sometimes vote Republican because of their concerns about national security will do, I must note that there aren't more than two or three of those in the entire country, so they can't produce a backlash.

CB said...

Madisonman:
The allowance of the emergency contraception is not implicit, it is explicit--read the section I quoted.
me:
Read the statute; it does not prosecute women. Also, the fact that miscarriages occur naturally has no bearing on abortion. People in their 80s die naturally all of the time--this does not make it OK or legal to kill them deliberately.
Ms. Althouse:
A good point--the best I can say now is that hard cases make bad law. I'm not sure whether legislation should be drafted to deal with a 1-in-1000+ situation

Marghlar said...
This comment has been removed by a blog administrator.
Marghlar said...

Marghlar said...
CB: you think that sibling or father rape are 1-in-1000+ of rape cases? Think again. Do some child welfare practice, and you'll see these kind of cases all the time.

A huge proportion of rape victims are young and confused. They make better targets.

When will people realize that stranger rape is the exception, not the rule? Probably the majority of rapes are by abusive partners -- and in these situations, the victim is often terrorized and unable to make positive choices such as seeking emergency contraception.

Also, since pharmacies are refusing to stock these drugs, there are real questions of access to RU-486 in rural areas. It could well be impossible for many victims to get the medication in time.

me said...

"Fundamentally, the practical problem with outlawing abortion is that women miscarry naturally. Thus, prosecuting women for abortions is inherently difficult. Given that abortions will continue no matter what, does it really make sense to make all abortions illegal."

Good point.

"Goodness Mr. Prosecutor, I didn't know tansy tea would do that! Its a natural herbal remedy!"

(but a very dangerous one)

CB said...

Marghlar,
The "1-in-1000+" I was referring to was the number of abortions by young girls who have been rapes/molested (I was referring to Ms. Althouse's comment). I don't know what the actual number is--I just meant that it is a very small percentage of abortions. I don't mean to sound dismissive about this, I know it is a very serious and difficult siuation--I'm just unsure how legislation should deal with situations on the maargins like this.
BTW, I am a law student planning to go into child advocacy.
Are there two "me's" or did "me" just say that his/her own comment was a good point?

Aspasia M. said...

me said....

If Roe is overturned, the victory will by Pyrrhic in some states -- but very real in others. I will have a problem if my Southern state outlaws abortion -- I don't anticipate having one, but what if I have pregnancy complications? Will I have to go before a judge to be able to take my doctor's advice? I want to live in a place where I control my uterus, not the state. Guess when JPS retires it might be time to move.

I hear you. And I also hear you about fetal deformity. (Why in the world do people think they are getting an amnio done?)

The next couple of years are (hopefully) going to be my child bearing years. Last night my husband said - Well, South Dakota is off the list of any national job search.

A political scientist on NPR last week asserted that "Roe is the gift that keeps on giving to Republicans."

Perhaps this is true, and it will be good, overall, for progressive political for abortion to be re-criminalized.

But I don't like to consider that before Roe was legalized Cook County Hospital in Chicago had 5,000 women per year in its septic abortion wards.

Aspasia M. said...

Are there two "me's" or did "me" just say that his/her own comment was a good point?

Me is ironically answering her own question with the bit about the Tansy tea.

The do-it-yourself situation is the natural consequence of the criminalization of abortion:

Oh Mr. Proecutor -
"I didn't know that ingesting certain types of herbs was a bad idea." (belladonna) or

"Why I didn't know that inserting a cathetor into my cervix was a problem!"

Actually, on the web there are detailed postings on how to do an illegal first trimester abortion. When abortion is outlawed, it'll be interesting to see the role played by the internets.

(WARNING - Don't do this at home! Go to a Doctor! It can cause your death and/or sterilizaton.)

me said...

there is more than one me...

MadisonMan said...

I don't know what the actual number is--I just meant that it is a very small percentage of abortions. I don't mean to sound dismissive about this, I know it is a very serious and difficult siuation--I'm just unsure how legislation should deal with situations on the maargins like this.

The answer is with compassion for the victim. Compassion that the legislation in South Dakota sorely lacks.

I'm reminded of the famous headline: Ford to City: Drop Dead. Instead it can read: South Dakota to incest victims: Tough luck.

me said...

Yes, there is more than one me, I am going to change my blogger name soon it gets too confusing.:)

Geoduck: yes, amnio's really should also be banned in S.D. because it doesn't matter what they show. Might encourage people to go to a different state and get an abortion. They can do tests after the baby is born to determine if it has any problems.

Aspasia M. said...

I agree with Marghlar about the common circumstances of rape.

But let's make sure everyone understands this:

Plan B is emergency contraception. Other wise known as the morning after pill. It needs to be taken very soon after a rape or an oopsie.

There's been a big debate in the FDA for political reasons about selling this pill over-the-counter. A scientist resigned over it, blah blah; the Bush administration appointees are opposing it blah blah and rejecting the scientific advice of the researchers.

Women can take a couple of the birth control pills at the same time to cause the same results as Plan B. You have to take particular brands of the pill - so research this if you're going to try it at home.

Plan B is not RU486

RU486 is a pill that causes a medical abortion in the 1st trimester. (The physical response is like a miscarriage.)

It causes cramps and bleeding and expels the embryo. Women take the pill and then go home to expel the embryo. They go back into the doctor for a check up to make sure there is no infection caused by tissue left in the uterus. It is left over tissue that can cause sepsis. If there's any placental tissue still in the uterus a doctor needs to do a D & C (scrape the uterus clean).

All right, sorry for the sex ed class if everyone already knew this information.

Aspasia M. said...

Yes, there is more than one me, I am going to change my blogger name soon it gets too confusing.:)

Uh oh - I thought you were being ironically self-referential!
You all could be meI and meII.

Marghlar said...

geoduck: thanks for setting me straight -- I too often use the terms interchangeably, although I realize when I think about it that Plan B is something different.

My main point is: the short time span of Plan B will not allow woman to avoid being forcibly present, in a significant amount of cases. Thus any consent rationale for prohibiting abortion falls by the wayside.

Aspasia M. said...

Marghlar,

Oh yes, totally agree with you on the rape issue.

I suppose after watching Mr. Napoli (A S. Dakota State Leglislator) go on, and on, about sodomized virgins in a News Hour interview I realized that common sense wasn't really an issue in this law.

That interview was fucked up. Nothing more could shock me after that.

Remember when the News Hour was staid?

37921 said...

But I don't like to consider that before Roe was legalized Cook County Hospital in Chicago had 5,000 women per year in its septic abortion wards.

Hey look, I am in favor of women having abortions if they need or desire one. But what I stand foursquare against is bogus statistics. It's amazing too how they seem to take on a life of their own. Do a web search on "5,000 women per year" and you'll see that it is a much-disputed estimate of the number of women who died every year from botched abortions in the U.S. before Roe vs. Wade. Now it's Cook County Hospital! That's real progress.

me said...

"I suppose after watching Mr. Napoli (A S. Dakota State Leglislator) go on, and on, about sodomized virgins in a News Hour interview I realized that common sense wasn't really an issue in this law.

That interview was fucked up. Nothing more could shock me after that. "

Geo -- I agree. Totally psycho. Here the quote:

"BILL NAPOLI: A real-life description to me would be a rape victim, brutally raped, savaged. The girl was a virgin. She was religious. She planned on saving her virginity until she was married. She was brutalized and raped, sodomized as bad as you can possibly make it, and is impregnated. I mean, that girl could be so messed up, physically and psychologically, that carrying that child could very well threaten her life."

GROSS. Its on www.crooksandliars.com, scroll about halfway down, if people want to watch it, its even better "in person." Only virgins saving themselves for marriage are really traumatized by rape, and then only if its really brutal. Then he might consider letting her have an abortion instead of being forced to bear her rapist's child. I think he would agree that since most (non-virgin) rape victims were just whores asking for it anyway, the rapist/father should get joint custody of the children resulting from the rape -- then the woman's violation will be truly complete.

The real question is, will the regular people out there, on both sides of the abortion issue, vote these fundamentalist crazies out of office? I devoutly hope so. Or, do the majority of people in S.D. really want this kind of thing?? I suppose only time will tell.

Dannyboy said...

I hesitate to post a comment, since the consensus seems to be pretty strong here... but I really think someone should offer a few of the common rebuttals to a few of the common arguments that appear in this thread.

Conception as origin point: Any mainstream embryologist will tell you that there is no other logical moment to regard as the origin of a distinct human organism. The twins quibble doesn't work because the early embryonic human simply is a distinct organism which has the potential to divide into two distinct organisms. That doesn't change its nature -- it is a natural potential of human individuals at that stage of development. The division doesn't negate the existence of the prior individual. Think of asexual reproduction among single-celled organisms. That quibble is only a stumbling block when we falsely assume that human organisms must always have the same abilities and characteristics at all stages of development.

About abortion for rape and incest: the position that abortion should be available for victims of rape and incest is only "harsh" or "barbaric" or uncompassionate if one does not consider an embryo or fetus to be human. If one does consider them to be human, the exception no longer makes any sense. Killing an innocent human does not seem like a genuinely compassionate way of responding to the tragic violations that have already occurred. Tragically enough, all the compassion in the world won't make the suffering of the mother a good enough reason to kill her innocent progeny. Two wrongs don't make a right.

Dannyboy said...
This comment has been removed by a blog administrator.
Dannyboy said...

One more about spontaneous abortion: This quibble doesn't really hold up to scrutiny when one recognizes the difference between allowing something over which one has no control to happen and actively causing it oneself. We would not try to argue that murder should be legal just because everyone will die some day, would we? An artificial abortion is a deliberate act which prematurely ends the life of a human, and so is qualitatively different from spontaneous abortions.

I hope this will reflect the saner side of the anti-abortion movement.

I'm no fan of the Bush administration, and I certainly have big doubts about the legal project underway in SD, casting your opponents as wicked, irrational, barbaric, or crazy doesn't do much to advance the debate or foster compromise.

By the way, the great majority of pro-life activists are female. If you are really interested in a more nuanced discussion, you might be want to take a look at www.feministsforlife.org.

me said...

I agree that life begins at conception. I don't know how anyone can argue otherwise from a scientific standpoint. Having said that, it is not a forgone conclusion that an embryo will survive for nine months, for a variety of reasons. Given that women will have abortions, legal or illegal, and that illegal abortions will be difficult to prosecute and potentially harmful for the mother, I think abortion should be legal during the first trimester, or maybe for four months. After that, there should be a clear line drawn legislatively. And the energy should be spent by both sides trying to make things better for everyone who is living.

Dannyboy said...

I think that my point about spontaneous abortion also applies to me's contention about infant mortality.

I can see why some might feel that the fact that women will obtain dangerous illegal abortions anyway is a reason to keep them legal, but if that is so, why limit them to the first trimester? Won't that force some women to obtain dangerous illegal abortions in the 2nd and 3rd trimesters?

I guess I just don't find the claim that people will endanger themselves by doing illegal things strong enough on its own to justify legalizing those things. It would need to be accompanied by the claim that the illegal thing doesn't cause any substantial harm to other humans, a claim that me doesn't seem to be making. Or maybe we would need to separate humanity from personhood to make the trimester argument more consistent.

Me, would you want to bolster your case by making an argument about the difference between humanity and legally-protected personhood? Though I would not be persuaded by it, that seems like a more secure argument.

Marghlar said...

The key issue is personhood, not life. We freely kill lots of things that are alive. The question is: when ought we to say that a human organism becomes a legal person? One approach is to do it categorically; another is to do it functionally. An embryo has very few of the characteristics we would normally associate with a person --especially as to those characteristics that distinguish people from animals. It has the same DNA, but that's about it. It cannot communicate, or reason, in any meaningful sense. It cannot fend for itself or survive outside the womb even on life support.

I think that an embryo is surely homo sapiens, but it is only a potential legal person. To say otherwise invites the inevitable corollary of why we feel free to treat creatures that are much smarter, more communicative and more independent than fetuses as disposable, while protecting the embryo absolutely.

MadisonMan said...

An artificial abortion is a deliberate act which prematurely ends the life of a human, and so is qualitatively different from spontaneous abortions.

Well, yes, but I believe you missed the point. If a woman drinks tansy tea, or pennyroyal (Don't try this at home!) and thereby induces an abortion -- should she be tried? Exactly how far should the government intrude?

And while I agree that calling opponents crazy, you must agree that the comments of Legislator Napoli are really beyond the pale! It reads like a bad Saturday Night Live! skit.

amba said...

Madison Man: pro-lifers wouldn't have a problem with your twins question. They'd still say life begins. Only it turns out to be two lives instead of one.

Just watch -- if JP Stevens falls into ill health (God forbid) and has to retire before this case gets to the Supreme Court, some Christian is going to say it's a sign from God that he wants us to outlaw abortion.

CB said...

Re: the quote by Mr. Napoli,
Wow--that is one of the most repugnant things I've read in a while. And the most annoying thing is that it's irrelevant to the statute. the thing that I find most interesting about this statute is that it directly addresses the issue of rape/incest and allows for a resulting pregnancy to be prevented/terminated if done in a timely manner (whether the victim is religious or not) In a perfect world, whether a person lives or dies wouldn't hinge on the circumstances of that person's conception (or on that person's physical or mental handicaps) but this is a step in what I believe is the right direction. (Of course, it's unconstitutional and will probably be invalidated anyway)

Dannyboy said...

Yeah, Napoli is eiter really silly, a terrible communicator, or a real nut job. I'll give you that. But he's a straw man.

I would rather take on the best representation of my opposition than the nut job wing of the pro-choice cause. Wouldn't you prefer to do the same?

Marghlar:

That is a more consistent point. Peter Singer makes a similar argument about self-consciousness, memory, and ability to plan for the future being the correct determinants of protected personhood.

However, a newborn doesn't differ in these respects from a late-term fetus. Newborns are neither truly self-aware nor capable of meaningful communication. Adult dogs are more able to do these things than human infants.

If you make this case, are you willing to bite the bullet and admit that infanticide in at least the first several months should be legal? Singer admits that this would be a necessary consequence of that way of defining personhood.

Viability is also an interesting factor. But no infant who is left on her own outside of the womb will survive either. She will still need nourishment and protection from her parents or from some other adult (or kindly wolves at least!). The main difference is that her location has changed.

Again, if we go with viability, we will have to extend the boundary of personhood pretty far beyond the womb. Really, how many of us would survive if left totally on our own in the wilderness? Seems to me that most of us are pretty socially dependent all the time. I don't think that diminishes our personhood.

Honestly, I'm not sure what to do about the location question. I can't really see how being located inside of someone necessarily gives that person total dominion over you. We don't usually say that having a part of someone else's body inside of us gives us total dominion over that part, so I'm not sure how one would make the argument for the whole body. Any suggestions about this? I'd really like to stay abreast of the very best arguments for the pro-choice cause.

Thanks all for responding without rancor.

Dannyboy said...

Sorry for all the posts. I'll shut up and listen after this.

Madisonman:

I don't think I missed the point. I was responding to a point that I considered more fundamental.

It is only an "intrusion" if we choose to assign total dominion to the adult, or if we do not recognize the personhood of the fetus. Protecting people from those who wish to kill them isn't usually thought of as excessively intrusive. Courts constantly deal with domestic abuse, neglect and murder cases like the one you describe.

How would we deal with a husband who says, "Oops, I didn't know that X would be fatal for my wife!", or a mother who said "Oops, I didn't know that leaving my kids locked in the car in a closed garage would be fatal!"? Same would go for infanticide, if we chose to define self-induced abortions in that way. That question is addressed by precedent once we have figured out the more fundamental questions.

Am I understanding your objection right?

MadisonMan said...

I would rather take on the best representation of my opposition than the nut job wing of the pro-choice cause. Wouldn't you prefer to do the same?

I do wonder exactly how Mr. Napoli came to be quoted. Was he a principle author of the bill? Its most outspoken advocate? Someone picked by the Main Stream Media 'cause they knew he'd make an outrageous comment that casts "his side" in an unfavorable light? All of the above?

Balfegor said...

Well, yes, but I believe you missed the point. If a woman drinks tansy tea, or pennyroyal (Don't try this at home!) and thereby induces an abortion -- should she be tried? Exactly how far should the government intrude?

I think when you ask "should she be tried," you touch on something we shouldn't lose sight of -- prosecutorial discretion. Traditionally, abortion statutes have targeted the abortion-provider, rather than the woman herself. And I expect that even in South Dakota, abortion prosecutions against the woman herself are going to be rather uncommon. It's almost certainly just going to be prosecutions of a bunch of people from Planned Parenthood, not a bunch of women getting abortions.

And even after that, there's always jury nullification. I don't think a jury is likely to go nullifying any laws when Planned Parenthood is on the line, but if it's a sympathetic female defendant -- say, a virginal young woman saving herself for marriage, but brutally raped by a close blood-relative or, uh, something like that -- then the jury may just decline to find beyond reasonable doubt that she acted with the requisite scienter.

MadisonMan said...

Sorry for all the posts. I'll shut up and listen after this.

Ditto.

My point re: self-induced herbal abortions. If a doctor cannot easily distinguish between a spontaneous abortion and an herbally-induced one, (Can one? I have no idea) should all miscarrying women be tested for the presence of toxic herbs in their blood stream? Are tansy and pennyroyal to be outlawed because they are potential abortifacients?

If the government bans abortions, how far does it intrude when an abortion/miscarriage occurs if it's difficult to distinguish between the two?

somross said...

This is a very different thread than the one I expected; it also reflects, I think, how much Roe has in fact become part of the culture. Does this mean conservatives support abortion (perhaps limited) than might be expected?

Aspasia M. said...

But I don't like to consider that before Roe was legalized Cook County Hospital in Chicago had 5,000 women per year in its septic abortion wards.

Hey look, I am in favor of women having abortions if they need or desire one. But what I stand foursquare against is bogus statistics. It's amazing too how they seem to take on a life of their own. Do a web search on "5,000 women per year" and you'll see that it is a much-disputed estimate of the number of women who died every year from botched abortions in the U.S. before Roe vs. Wade. Now it's Cook County Hospital! That's real progress.


Not deaths - 5000 cases of women/year housed in its septic abortion wards.

Is this surprising to us? Women didn't just die of abortion. Many got very sick. Many aborted sucessfully.

I reposted your comment because I think it is very important to have the facts in front of us. We are heading into history for which we have numbers and solid historical records.

I quoted Leslie J. Reagan's article title "Abortion as A Crime; A Nightmare Reborn". It was printed in the Mercury News on Sunday, March 5. Leslie Reagan is a historian who wrote a book on abortion in Chicago. I believe she is still a professor at Uniiversity of Illinois, Urbana-Champaign.

She used hospital records and coronor's reports, and her book is well footnoted.

If you still don't believe me about 5000 cases/ year (not deaths, cases of sepsis) in the septic ward of the Cook County Hospital - you can look up the evidence. Here are the sites:

p.307, footnote 29: "Obstetric staff records beginning in 1938 discuss the number of abortion cases in ward 41. "Staff Conference of the Obstetrics Department," 1938-1958, box 30, "Department of Obstetrics," Medical Director's Office, Cook County Hospital, Cook County Hospital Archives.

See also footnote 30 on the same page "Confidential Material Compiled for Joint Commission on Accreditation, June 1964," box 5, "Obstetrics Department -- Accreditation 1964" Office of the Administrator, Cook County Hospital Archives.

Or see page 210 (there's even graphs!). Reagan writes: "Physicians and nurses at Cook County Hospital saw nearly one hundred women come in every week for emergency treatment following their abortions.

or p. 210 - a comparison with Los Angelas in the mid 1950s: "Los Angeles General Hospital saw over two thousand abortion cases annually. D.C. General's septic abortion ward always had fifteen or twenty extremely ill women in it."

Read the footnotes yourself if you don't believe me. Go to Cook County Hospital (or to any hospital in a nearby city that operated in the 1950s and 1960s.)

Leslie J. Reagan's book is _When Abortion Was A Crime: Women, Medicine, and the Law in the United States, 1867-1973_.

Reagan's book details not just the health consequences, but the changing ways in which the police and the courts dealt with the medical profession (and women) in the century before Roe.

JodyTresidder said...

Dannyboy,
If Napoli is "your" pro-life nutjob and - by implication - someone with views likely to muddy the waters - may I nominate Singer as the nutjob for "my" pro-choice side? And leave him out too?

In the interests of mutual courtesy, naturally.

Balfegor said...

This is a very different thread than the one I expected

I think we had the thread you expected some time in the last week or two. I forget exactly where, and I cannot find it now. I suppose we could hash out the same arguments as before, but I think the participants are all basically the same as before, so there's no particular reason to. Different issues are coming up in the discussion this time, and that makes it more interesting. That's also one of the benefits, I think, of having a regular (but fairly small) set of commenters too.

tcd said...

Nice try Dannyboy, but I don't buy any of your arguments. I do not accept that a fetus has personhood and never will. As long as the fetus is dependent upon my womb for its development then my right to my body should trump any "rights" of the fetus. And I don't accept for one second your premise that abortion equals infanticide. That is a straw man argument if ever there was one.

Aspasia M. said...

Sorry my last post was so long.

Exactly how far should the government intrude?.....

Traditionally, abortion statutes have targeted the abortion-provider, rather than the woman herself....
-- say, a virginal young woman saving herself for marriage, but brutally raped by a close blood-relative or, uh, something like that -- then the jury may just decline to find beyond reasonable doubt that she acted with the requisite scienter.


Well, as a married woman, I'm obviously screwed & pregnant if I get raped. If that girl did it herself, she would either do it sucessfully, or end up in a hospital.

If no one helped her, she'd be safe from court prosecution. But if a friend or someone assisted her - the friend would be in big trouble. If a doctor helped her - the doctor would be in trouble.

I think the legal practices of the court and the police will vary with jurisdiction and with political pressure. In many places, pre-Roe, there was a look the other way attitude until around the 1940s and 1950s, when the courts and police became more active in surveillance.

It's such a political hot button right now, that I could see some police and courts get very involved in surveillance and prosecution activities. If a DA thought he could make a reputation with a case, I bet he'd go for it.

Anyways, according to Reagan's book, the police and courts targeted doctors. But they used women who sought medical help to testify against doctors.

Reagan used coroner reports for her study. The doctor had to get information from the woman before medically treating her - and then share that info. with the police. Otherwise the doctor could loose his license.

There was a big underground practice of abortion - ranging from do-it-yourself stuff to nighborhood gossip and help, to local doctors "helping" friends. In the 1960s a group of women started "Jane". They provided 11,000 illegal first trimester abortions to women in Chicago. They weren't doctors.

Clinics were raided during the 1950s. Patients were arrested and forced to submit to gynocological exams for evidence.

Aspasia M. said...

Dannyboy,

Welcome. I really appreciate your comments and your tone.

In terms of your questions about argumentation, and viability --

Well, it's not a new argument, but I'm comfortable with the logic of _Roe_ and _Casey_ that defines pregnancy as a process. As some point during the pregnancy the fetal life becomes "compelling".

I agree with the rationale in Roe, (see section X, Blackmun, majority opinion) which is:

"With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother."

I agree.

Mark Daniels said...

What's "hot button" as seen through the Althouse comments sections today: abortion, Rudy Giuliani.

What's not hot: what constitutes art, Dana Reeve.

Mark Daniels

Marghlar said...

dannyboy said: If you make this case, are you willing to bite the bullet and admit that infanticide in at least the first several months should be legal? Singer admits that this would be a necessary consequence of that way of defining personhood.

I differ from most on this issue in that I am willing to say that a newborn infant probably isn't definitionally a legal person. Now, note that that shouldn't in and of itself prevent the state from prohibiting the killing of newborn infants -- we can, and should, outlaw the killing of any life if we feel that the social values of permitting the killing don't outweigh the social harms. I think that the repugnance most people feel towards the killing of a healthy newborn is a good enough reason (probably -- I should probably consider this further) to outlaw such killings.

I would distinguish the killing of a severely disabled infant that can never become a person, and will suffer its whole life. In such cases, I think our social duty is probably to compassionately end that being's life -- both for reasons of compassion, and to minimize wasted medical resources.

I don't think that the costs of allowing abortions outweigh the social harm of prohibiting it. Thus, since I have no problem concluding that a fetus isn't a person, I think that we can rationally and reasonably permit abortions.

The tone of this comment thread really is great...I've rarely seen a more civil, and thoughtful, discussion on this issue.

You are right to point out my debt to Singer on this point...I would probably say that some currently defined animals may be persons (I'm thinking of dolphins, some whales, etc...) whereas some severely disabled humans are not. Controversial? Sure. But it's the only rational conclusion about personhood I feel capable of reaching, as a materialist. I think that it is our capacity for symbolic, social and intellectual interaction that make us people, and not just human animals. It's the only line that makes any sense to me.

I'd agree with you that viability isn't that defensible...although if one takes my approach, it has some significance, as it demarcates a line after which the social costs of sustaining the infant life don't involve the physical subordination of the mother's body.

Ann Althouse said...

Mark: Thanks for noticing that. I notice that kind of thing too. Often, the posts that interest me the most are the ones that get the least comments, like the art one today.

37921 said...

geoduck: 5,000 women per year in the septic abortion ward at Cook County is believable, but just barely so. It took some searching, but I finally found that 11,000 babies were born at Cook County hospital in 1971. Nearly all were African American according to this article. The current abortion rate for African American women is 55 per 100 live births. If your number of 5,000 is correct, it means that the abortion rate among these women was nearly the same before Roe vs. Wade as after, and that a high percentage of women were admitted to the hospital after having an abortion. Possible, but I am always skeptical of numbers like 5,000 or 10,000. Those are SWAGs -- some wild-ass guess that somebody made.

me said...

"It is only an "intrusion" if we choose to assign total dominion to the adult, or if we do not recognize the personhood of the fetus. Protecting people from those who wish to kill them isn't usually thought of as excessively intrusive. Courts constantly deal with domestic abuse, neglect and murder cases like the one you describe. "

Yes, they do -- but they don't deal with the question of two equal people, one stuck inside the other's uterus for nine months, as I assume you see the fetus and the woman. The state cannot force you to support anyone with your body --the violinist argument. If I don't want to support my child, I can give it to the state. The fetus and woman, however, are inextricably bound together until birth -- they aren't separate beings, as your hypo posits. The ramifications of making abortion illegal from the moment the egg is fertilized are enormous from the legal standpoint -- depending on how far the state wants to go in regulating it. Death penalty for doctors? Death penalty for the woman (it is obviously first degree murder). Will we have pregnancy tests for women crossing state lines, or for minor girls crossing state lines (they might be getting abortions)? With the fetal life statutes, we won't be going back to the status quo before Roe. I don't think there will be a police state, but a few unlucky women and doctors will be caught each year, while the vast majority procure safe illegal abortions traveling to another state or by black market RU-486 or other home-use methods. Until women's bodies can be separated from the fetus (artificial wombs) we will continue to have this debate -- I come down on the side of the autonomy of the woman.

Aspasia M. said...

geoduck: 5,000 women per year in the septic abortion ward at Cook County is believable, but just barely so. It took some searching, but I finally found that 11,000 babies were born at Cook County hospital in 1971. Nearly all were African American according to this article. The current abortion rate for African American women is 55 per 100 live births. If your number of 5,000 is correct, it means that the abortion rate among these women was nearly the same before Roe vs. Wade as after, and that a high percentage of women were admitted to the hospital after having an abortion. Possible, but I am always skeptical of numbers like 5,000 or 10,000. Those are SWAGs -- some wild-ass guess that somebody made.

(Remember it's not my number - it's a historian's number; These numbers covered the late 1930s through the 1950s. Between the 1930s and the 1970s the race of the patients at Cook County probably changed dramatically.)

But remember, the number of women needing hospital care went up in the 1940s and 1950s because it was harder to get safe abortions in those years.)

It's always good to question things. And footnotes are very important in any scholarship, but especially in history.

The number over 5,000 was for a short newspaper article. The other quotes about Cook County from the book are more detailed & descriptive.

She's a reputable historian. It's the mark of a historian that readers should be able to follow her footnotes, and if so inclined, they should be able to fact check her evidence.

But the numbers are amazing, in the sense that it was a huge health problem. Botched abortions constituted a large percentage of maternal deaths. And we can see from the numbers how many women were treated at the hospital for sepsis.

Leslie Reagan's book is free on line with the University of California scholar (thingy/ I can't remember) system. Or if you're at law school her book is probably in the law library. Go look at her footnotes and look at her graphs on page 205,206, 210-213. Judge her evidence for yourself.

Why is this number so hard to believe? In the colonial era women used to have 12 to 15 live births.

And during the Depression lots of people were poor and desperate.
Women obviously used a variety of strategies to lower their birth rate before the pill.

Aspasia M. said...

Dear 37921,

I went and found the address:

http://ark.cdlib.org/ark:/13030/ft967nb5z5/

Leslie J. Reagan, _When Abortion Was A Crime: Women, Medicine, and Law in the United States, 1867-1973_.(1997)

It is free as an eScholarship edition form the University of California Press Digital Library.

You can read her "Note on Sources" and her footnotes.

The entire book is on-line. She references tons of secondary articles along with primary sources.

I would make it a link, but I am technologically inept and my husband isn't home.

It is also an excellent example of legal history. She looks at the law in practice, along with an examination of how the legal and medical community interacted.

The book won multiple awards, including, the President's Book Award, the Social Science History Association: Choice Outstanding Book, and the Law and Society Association's Willard Hurst Prize.

If you don't want to read it on-line - check it out of your Law School Library. It's in our Law library & it's a book I'd expect to be in there.

Cantankerous said...

What surprises me here is that so many people are operating under the assumption that the day after pill is easy to obtain. It is not. Especially not in South Dakota.

There are logistical difficulties in obtaining the day after pill that most men and a lot of economically sound women fail to notice.

Many women in South Dakota face pharmacists who refuse to give them the pill because South Dakota allows its pharmacists to withold medication if the medication conflicts with their moral beliefs.

Furthermore, this law assumes that a woman who has been raped has, at a minimum, the transportation and the financial means to make it to a doctor within 24 hours. This is an "economic sanction" of epic proportions.

Should only people with access to a doctor, and reliable transportation, and that live in a town with a pharmacist who will prescribe the day after pill be allowed to prevent a pregnancy? That is what South Dakota is saying. And I think it's wrong.

Effectively, this puts the fates of those women into the hands of their local pharmacist.

Twill said...

I believe that neither I nor any other woman should be forced to be an incubator against her will.

But what I fail to see pro-choice advocates acknowledge, ever, is that a right not to be an incubator is not synonymous with a right to a dead fetus.

When the overall health risk of a medical abortion were similar to (or worse than) the health risk of delivering a live child, society would have a right to demand the live child.

It would, of course, be the province of doctors and medical researchers to determine what those two risks were for any particular woman, and doctors can always be found to take coin for a favorable opinion.

amba said...

You know, we have potassium iodide pills here at home in New York in case of a dirty bomb or, God forbid, nuclear attack (that we should be unfortunate enought to survive).

Women ought to be acquiring and stockpiling either Plan B or the equivalent supply of the right kind of birth control pills in case of an emergency.

It's hard to imagine there won't be a lively black market in them.

Here's my life-begins-at-implantation argument, which is very pro-Plan B as part of a plan to move abortion towards obsolescence.

Marghlar said...

amba:

I took a look at your post on implantation...I have to ask, is this position basically driven by the concept that life is inviolate once a soul attaches to the embryo? If so, what basis do we have for determining when that attachment takes place? It seems like a lot of the arguments are revolving around whether it is convenient, from a human standpoint, for a soul to attach earlier or later.

If souls exist, do humans have any way of determining at what point they attach to us? Is the question answerable in any sensible way? Why couldn't it be at quickening (the old view), viability, birth, or even later (first words, maybe)?

This question seems to be assumed by much of the religious community. I myself am not religious, but I am interested to better understand the rationale at work here. How do believers go about answering a question like this?

chuck b. said...

From the link: "'In the history of the world, the true test of a civilization is how well people treat the most vulnerable and most helpless in their society,' the governor said."

This strikes me as a platitude strongly tinged with moralizing demagoguery. But it sounds good, doesn't it?--whether you're left or right on abortion choice.

When has anyone ever had a serious conversation about a historical civilization's treatment of its most helpless members? By this standard, every human society will always fail the test of civilization. The vulnerable and helpless never do well, do they?

So why use this standard when it fundamentally undercuts achievements made in every era of mankind's history? I shouldn't have to provide examples to historically literate Althouse readers.

I would not be inclined to invest much consideration on this claim from the governor.

Balfegor said...

So why use this standard when it fundamentally undercuts achievements made in every era of mankind's history?

Because it is an aspirational metric. It indicates the direction he wants society to progress. We may fall short today (of course we do), but we can work to remedy the defects we see today (e.g. abortion, in his view), and remedy the defects we find tomorrow as well.

Patrick said...

Even if they manage to get the Court to overturn Roe v. Wade -- and I don't think they will -- the political support for abortion rights should make that victory Pyrrhic.

Such a Pyrrhic victory is precisely the thing I wish for. I'm pro-choice as a matter of policy, but I don't think the US Constitution establishes my policy preference as the law of the land, and so I think Roe was wrongly decided. (I'm sure that's a minority viewpoint, but I do meet a lot of lawyers who share it, at least in private.) So, if Roe were overturned, and if its overturning created a political backlash that carried pro-choice legislation through as many state legislatures as conceivably possible, that would make me a happy camper. And, I would suggest, it would create the conditions necessary for finally coming to some sort of national resolution on the subject.

Our court system is based on the adversarial model, which serves us well most of the time, but which in the abortion context has exacerbated, if not created, the tendency toward polarization of leading opinion on the subject. Legislatures are in the business of hammering out compromises, and that is the spirit which, I believe, is sorely wanted on this issue at this time.

Synova said...

"The very harshness of this law will remind ordinary people why they have quietly, over the years, accepted the individual's right to make a private decision about whether to continue a pregnancy. More modest efforts at constraining the right may have been tolerated."

However, it seems that modest efforts aren't tolerated. Not even a little bit. Efforts to require minors, who need a parents permission for *aspirin*, to need a parent's permission for an abortion make the front pages and raise an all out effort against them. When has the pro-choice side of the argument *ever* said, "Well, I suppose that sounds reasonable... or, partial birth abortions *should* be banned"?

If the harshness of this law is a response to anything it's the absolute way the issue is polarized. If it's all or nothing, then that's what it is. Pro-life activists have been pushing for those small moderations for years. But any limit at all is seen as entirely unacceptable. Small moderations haven't worked.

Birth isn't a reasonable point to decide that a fetus/baby has rights. Common sense tells us there isn't any meaningful difference other than the location of the child.

Surely, there is some point between "mass of cells" and "baby" that is logical and makes sense?

Several people here are arguing for the rape situation or other event... would a less drastic ban be acceptable to you? Or is it a case of my body, at any point, my choice?

The pro-life side of the argument isn't the only side that may regret taking an extreme position.

tcd said...

Synova,

What is a reasonable point then? I suspect if it were up to pro-life people, the definition of reasonable would keep retrograding to ova & sperm until which time, a prison term or monetary fine would be imposed on all menstrating women. Because after all, every month that I menstrate, is another half human life that I am destroying. Right? You think that's absurd? I think your argument is absurd. The issue of abortion is never about a woman's right over her body to pro-life people, it's always "for the sake of the children". I really don't care about the children. Is it too much to expect parents to have control over their children? Why should some parents' concerns about their children's sexual behavior effect my right to make a medical decision that should only concern me, my husband and my doctor? If you and all of America get to make decisions regarding my pregnancy, can I have a say in how and when and if you get to have heart surgery?

Marghlar said...

Synova said: Surely, there is some point between "mass of cells" and "baby" that is logical and makes sense?

Arguably, the Roe court identified the best available such line -- the line of viability. Once a life can be sustained outside of the womb, Roe would have permitted substantial restrictions on the woman's ability to terminate the pregnancy. The trimester framework was arguably a way to draw some clear, easy lines around the problems of maternal rights v. fetal rights.

This will obviously never satisfy those who assert that the embryonic right to be gestated trumps the woman's right not to be a vessel for such gestation, but for the majority of the country, which favors reasonable access to early term abortions, the line the Court drew is arguably a good one.

Another possible line is the one the Catholic church drew for centuries: births can be terminated without sin until "quickening," the first detectable movement of the fetus within the womb. The quickening was thought to indicate the introduction of a soul into the developing fetus. This is, of course, just as arbitrary as any other solution, but it did draw an intelligible bright-line around the problem that didn't require a lot of medical technology to patrol.

Another commenter proposed the implantation standard, which I think is hard to distinguish from the birth/pre-birth scenario you proposed. Why does the embryo suddenly become sacred at the moment it implants in the cell wall?

Aspasia M. said...

I agree with Marghlar. Roe and Casey both draw the line at viability. After viability, there's exceptions for the mother's life and health. (Although, it looks like next fall SCOTUS will revisit the health exception.)

As to the projected politics:

First of all, I do think that Roe is the gift that keeps on giving to Republicans. I think overturning Roe is probably the best thing that could happen to the Democratic party, and for liberal & moderate Republicans at the national level.

However, I think it will result in major health and civil rights issues for women.

I know some people believe that if Roe is overturned, it will calm the argument and the state legislatures will find a compromise position. I am doubtful of this result.

I think it is more likely that it will remain a continuous political football in many state legislatures and on the referendums. Rather then calming the issue, it will inflame it.

Because it is such a political football, there will be no unofficial compromise between the police and respectible doctors who are offering illegal abortions. Clinics and doctor's offices will be raided. The state will be more active in searching for illegal abortions then they were pre-Roe.

The laws will be more stringent in the states in which they are illegal then pre-Roe. It was unheard of for a state not to allow exceptions in the case of health and rape.

The feminist movement will radicalize. It took until the late 1960s for the movement to radicalize in the United States. Pro-choice advocates will begin learning how to give illegal abortions. They know that secrecy will be important. The underground sale of RU486 will skyrocket.

If the pro-life crowd wants to enforce its will legally, they will have to impose something like Romania. They will have to push it that far to have any hope of lowering the abortion rate. (Restrict women's travel out of the states with illegal abortion; monitor mentral periods; investigate miscarriages; suprise monitoring of hospitals and doctor's offices.)

Think 1969-1972 in terms of what the feminist pro-choice movement will look like. The pro-choice movement has been fairly sleepy since _Casey_ was passed. What all this ultimately means for the "abortion wars" and legal resolutions, I have no idea. All bets are off. But it's sure going to be interesting.

chuck b. said...

"Because it is an aspirational metric. It indicates the direction he wants society to progress. We may fall short today (of course we do), but we can work to remedy the defects we see today (e.g. abortion, in his view), and remedy the defects we find tomorrow as well."

Indeed--and what a fine aspiration to be very concerned with remedying the "defects" besetting all the "vulnerable" and "helpless".

So let's imagine a world where we score really high on remedying the situations of the vulnerable and helpless. Would vulnerability and helplessness even exist in such a world? More importantly, what sacrifices did society make in other spheres of civilization in order to get the high score on vulnerable and helpless? Was it worth it?

me said...

"If the pro-life crowd wants to enforce its will legally, they will have to impose something like Romania. They will have to push it that far to have any hope of lowering the abortion rate. (Restrict women's travel out of the states with illegal abortion; monitor mentral periods; investigate miscarriages; suprise monitoring of hospitals and doctor's offices.)"

I agree, if the forced birthers want to enforce the idea that a fertilized egg is a human being, they will have do all of the above. But, I don't think they will. They SAY they believe that, but they obviously don't, else they'd be picketing IVF facilities -- think how many frozen embryos get discarded there all the time! If abortion becomes illegal in different states, I predict there won't be many prosecutions. There won't be any more clinics to picket, so all former protesters will be happy and go along with their lives, knowing in the back of their minds that women are probably still having abortions, and more dangerously, but not really caring all that much (despite their previous impassioned advocacy for the millions of murdered children). I predict a large market for black market RU-486 and underground networks for women to get help in money, transport, etc. to the closest state where abortion is legal, and lax prosecution by the police. Do the police really want pregnancy wards where they lock up all the potential murderers until they give birth? Do they really want to be arresting women for "conspiracy to commit murder" if they give their friend a book about herbs (including tansy, pennyroyal, etc.)? They might not care about arresting doctors, but I predict doctors will stay far away from doing surgical abortions if they can be charged with first degree murder for doing one - herbal methods and RU-486 will become much more common, and those are much harder to prosecute. Americans don't want a police state, which would be required to enforce this kind of ideology. But, the hypocricy sickens me.

Balfegor said...

else they'd be picketing IVF facilities -- think how many frozen embryos get discarded there all the time!

They don't picket them as much, probably because consciousness of the frozen embryos being discarded is not as widespread. However, there are a fair number of people in the pro-life movement who are quite concerned about this, and who do protest IVF facilities, and who have been attempting to adopt these embryos until they can be implanted in a willing host. There's a piece in Slate about this that I linked to in another thread.

Balfegor said...

So let's imagine a world where we score really high on remedying the situations of the vulnerable and helpless. Would vulnerability and helplessness even exist in such a world? More importantly, what sacrifices did society make in other spheres of civilization in order to get the high score on vulnerable and helpless? Was it worth it?

Uh, okay. Well, if you're a libertarian, and that's our sole criterion, then almost certainly no, it was not worth it, because you are probably living in a Communist nightmare. But if you're a particular kind of communitarian, it looks like you've reached the final perfect form of civilisation.

Is it somehow shocking to you that there are fundamental disagreements about values and the good society?

My own view is that future civilisation will not consider much of what we have spent the 20th century obsessing over (whether social justice, economic equality, personal liberty, or whatever else) particularly important, and may even find them a touch childish and quaint, the way we think of Victorian notions about duty. Or they might see them as naive and ennervating, as I suspect the Romans would have found them.

But however future generations judge us, the yardstick by which we measure past societies is, more often than not, their treatment of the most vulnerable -- of slaves, of women, of the poor, of children, of the untouchables, etc. And we judge them wanting, for having employed child labour, practiced infanticide, confined women behind screens, tortured their slaves, starved their poor, and treated their untouchables shabbily all around. And the fellow there is just taking that yardstick and applying it a bit further.

me said...

"these embryos until they can be implanted in a willing host"

Don't you mean a willing woman? She's not just a "host," she's a person who will be taking health risk and undergoing permanent bodily changes to be a "host" for otherwise discarded embryos.

me said...

"They don't picket them as much, probably because consciousness of the frozen embryos being discarded is not as widespread."

So, you really think forced birth groups who believe an embryo is a human being would have as much passion in picketing IVF clinics as they do abortion clinics, if more of them just knew about the embryos being discarded? And do you think, even against the wishes of the parents, IVF clinics should be forced to keep the embryos indefinitely, on the chance a woman will want to use one in an attempt to get pregnant (as the embryo is a person who should get a chance to live, even if you implant 5 embryos almost inevitably only or two will survive)? What about the old question: If a fertility clinic is burning down, who do you save -- a two y/o child or the freezer with the embryos (assuming you can only save one)? Say there's 100 embryos in the freezer -- maybe 25 of them would be born if they were all implanted in women. That's 1 two year old/100 embryopeople, or 1 two year old/25 possible babies depending on how you view it. Personally I'd go with the two year old.

Balfegor said...

So, you really think forced birth groups who believe an embryo is a human being would have as much passion in picketing IVF clinics as they do abortion clinics

Yes, actually. They're pretty vehement about stem cell research, which is roughly as abstract. There are also well established protest groups and structures for abortion already, because they've been developing and gathering their power since the mid-70s. Not so for IVF, yet.

On the other hand, they may be making a reasonable judgment that women going for an abortion are far more susceptible to protest pressure than workers at an IVF facility, since the women are genetically related to their embryo, and may already have moral qualms about the procedure. This is almost certainly not true for people working at an IVF facility -- it would be like protesting the Planned Parenthood staff. It might make the protesters feel good, I suppose -- protesters engage in dumb protests all the time -- but it's unlikely to lead to any productive result.

What about the old question: If a fertility clinic is burning down, who do you save -- a two y/o child or the freezer with the embryos (assuming you can only save one)? Say there's 100 embryos in the freezer -- maybe 25 of them would be born if they were all implanted in women. That's 1 two year old/100 embryopeople, or 1 two year old/25 possible babies depending on how you view it. Personally I'd go with the two year old.

Fair enough. Presented with the immediate choice, most of us would probably find ourselves acting on the more narrow conception of valuable human life our prejudices incline us to, rather than the broader conceptions we may have reached by more philosophic reflection. That doesn't mean that choice is right, though; nor does it mean that the outcome of our reasoning is wrong. It means only that, in the hue and cry of the event, we are human, and thus, the flawed, narrow creatures you might expect.

That said, I suspect there are any number of fervent anti-abortionists who would go for the embryos in an flash.

In either case, though, because I'm an atheist who thinks abortion is a barbaric procedure, I'm probably not the best person to go to for a representative meditation on this kind of question.

Dannyboy said...

Thanks all for the interesting discussion. I really admire the moderate and rational tone of most of the post-ers. Sorry for another long post, but there is so much to respond to.

I have to agree that viability will probably be the best ground for compromise. From the polls I've looked at, it seems that most people would vote for that limit if there were a referendum. Several European countries have adopted that as the standard, without the super-broad interpretations of "health" legitimized by Casey.

Reaching way back, I want to defend the introduction of Singer into the debate. Singer is one of the most influential living philosophers in America. He is hardly a straw man -- his arguments are among the most logical advanced by the pro-choice side. He in no way resembles the gibbering foolishness of our man from South Dakota. Just because one may be uncomfortable with the fact that he actually draws the pro-choice arguments out to their real logical conclusions is no reason to consider his arguments to be straw men, easily blown away. I brought him in because he seems to me to be one of the most rational advocates of abortion rights out there. He avoids most of the logical pitfalls that open up in the more common arguments for abortion rights while pursuing a nearly perfectly consistent logical argument of his own. If one accepts his materialist premises and his definition of personhood, his arguments seem logically irrefutable.

I'm really not sure how to respond to tcd's posts, since their vehemence is not matched by their rational consistency. Do you really want to legitimize infanticide? Do you really see no broader social interest in the lives of fetuses? Our society actually does regulate who can and can't get heart surgery, by the way.

So, when we talk about being FORCED to carry a child, are we talking about rape? If not, I'm not sure that we've considered the whole equation. There is a difference between requiring someone to do something about which they had no choice and requiring someone to deal with the consequences of a choice that they made.

Except in cases of rape, a woman does have a choice about whether to engage in an activity which tends to lead to the creation of a new human organism. Once that organism is created, it seems to me that the question is really whether or not a woman should have to suffer the normal consequences of an activity in which she chose to engage.

I'm all for taking choices seriously, but I think we shouldn't forget the choice that led to the creation of a new human in the first place. If one doesn't want a new human to be generated, one can choose not to do the things that will lead to the generation of that human. I know this is far from a conclusive argument, but I think it is really important to keep in mind.

As for viability, well, I can see how there is a significant change at that point (a point which gets earlier and earlier all the time). At that point, the other people who have an interest in the life of the fetus can take over if the mother doesn't want to bring the fetus to term. But then, what compelling reason is there to not require women to host the fetus up to the point of viability? Is it a serious threat to health? Even though this would be an exception rather than the regular situation, I would be willing to accept an exception in cases where the mother's life is in danger.

(A tangent: Since when was "host" considered a necessarily negative word? We host unwanted visitors all the time in this country, don't we? Hospitality is not dehumanizing, and the women who host unused IVF embryos count it to be a mark of honor to be hospitable to those lives).

Can someone explain to me the logical case for why, aside from a direct threat to the woman's life, a woman shouldn't be required to deal with the serious discomfort and social disadvantages which result from her choice to engage in "risky" behaviors? Is it something to do with the unfairness involved in men not having to carry the same burden? Why not make laws requiring the men to bear some requisite burden, financial or otherwise, up to the point of viability? I'm all for forcing men to take more responsibility for their sexual decisions. I think it would improve lots of things in our society, including the culture of our inner cities.

I'll stop for the moment and see what I've missed.

Dannyboy said...

Oh, regulation and all the nasty fantasies of totalitarian police. We have fairly functional ways of working out, over time, reasonable measures of enforcing whatever laws we determine to be just. This argument seems like a bit of a red herring to me.

I think we should enforce abortion regulations in whatever way seems most just, but that is a rather different question from whether or not abortion regulations themselves are just.

Balfegor said...

Since when was "host" considered a necessarily negative word?

In all honesty, I've been chosing the word "host" consciously because I get a bit of a frisson from the transgressive dirty-Tleilaxu / Aliens / Bodysnatchers vibe it gives off when you say "find a willing host." And that's probably exactly why people think it's creepy and wrong. And negative.

Balfegor said...

Oh wait "implanted in a willing host" is what I said. Even creepier! Doesn't that just conjure up images of men in white coats performing unspeakable experiments in violation of all the laws of man and nature?

Dannyboy said...

About outlawing abortion not actually lowering the rate of abortions:

I'm not sure what the logic of this argument looks like. Nobody seriously imagines that outlawing abortions will suddenly make abortion disappear, any more than a person trying to establish laws against hate crimes actually expects to eradicate hatred.

At the same time, making something illegal has a powerful effect on many people's attitudes toward it. Many of the post-abortive women with whom I've spoken say that they figured abortion couldn't possibly be that bad because it is legal. Laws have a pedagogical function.

Yes, sadly, there will still be people who try to obtain illegal abortions and put themselves at risk doing it. This is one reason why a just society can't simply regulate abortions without doing its best to provide real alternatives to women in desperate situations. Again, I'll refer you to www.feministsforlife.org for a group that is working hard to open new paths to real choices.

As another poster said, it is likely that the main focus of enforcement will be more on those performing abortions than on the women who come to them for help. In the case of RU-486, this could mean that the focus will be on dealers, not on users.

me, I'm really not sure what hypocrisy sickens you so much. Not everyone is a consistent thinker, but any consistent pro-life advocate will be as much opposed to IVF as to embryonic stem cell research and abortion. Keep in mind, though, that currently abortion ends about 1 million human lives per year, while the other two do not. Pro-life advocates tend to see all of them as connected to each other, but abortion as the most serious priority.

I mean, try to put yourself into the shoes of someone who thinks that one's body and one's personhood are inextricably linked. That number of 1 million persons killed per year looms pretty large. A pro-lifer might compare it to World War II. When we went to war against the Axiz powers, we had to focus on that for a while. That doesn't mean we weren't also against the totalitarianism in other parts of the world. Choosing priorities doesn't necessarily make one a hypocrite.

Dannyboy said...

OK, I see what you mean about "host". But to me that just goes to show how odd our thinking about fertility can be. Don't you think it is strange to immediately think of nasty aliens and parasites when one thinks of unborn humans? But then, I guess these days we find lots of things about our bodies to be "creepy".

Dannyboy said...

One more thing:

Marghlar, I'd like to see your documentation for the claim that the Catholic Church ever tolerated abortions. Many influential people in the Church did accept the idea that quickening didn't occur until a while after conception, but as far as I know the Church still condemned abortions before quickening.

I have heard that idea tossed out as fact before, but I have never seen any actual evidence supporting the claim that the Catholic Church has ever permitted abortions at any stage for any reason other than things like tubal implantation (which would inevitably kill both woman and fetus if left alone).

By the way, in response to the descoveries of modern fetology and embryology, the Catholic Church has taken the opportunity to sharpen up its teachings about the relationship between conception and the soul. The Church has always taught that a person is both body and soul, and that the two are fundamentally intertwined. At the end, the dead will be rejoined with their bodies for eternity. The Church sees a real harmony between this and the findings of modern embryology. While the old idea of 'ensoulment' left some odd gaps between body and soul, the idea that a distinct, living begins as soon as conception is complete fits much better with the idea of a human as body and soul utterly fundamentally intertwined with each other.

Does that answer your earlier questions about how a person who believes in souls might understand their relationship to bodies?

OK, I'll shut up and listen again. Thanks for your patience all. I suppose this thread will be dead soon, but I appreciate the dialogue.

Balfegor said...

Don't you think it is strange to immediately think of nasty aliens and parasites when one thinks of unborn humans? But then, I guess these days we find lots of things about our bodies to be "creepy".

It's actually just a trick of language. If you Google implant with the phrase "willing host", about half the results are from Stargate, apparently discussing some kind of alien symbiote that implants in you and takes control. Sort of the way "pale horse" doesn't mean "Death" outright, but does suggest it pretty strongly. It's an unusual phrase (the usual would be "white horse" or "light-coloured horse") that appears prominently in connexion with Death. So when the words appear together, we think of Death.

Marghlar said...

Sorry, Dannyboy, I erred. You are correct to point out that the Catholic church seems always to have viewed abortions as sinful -- however, from the time of Pope Innocent III until Pius IX (more than 600 years, with a brief gap from 1588 to 1591), the Church accepted the position of Aristotle and St. Augustine, that pre-quickening abortion was not murder, but a lesser sin, because the fetus was not yet a person with a soul. See here for a source on the web -- I couldn't, off the top of my head, think of a more authoritative source. This is stuff I read a while ago.

And yes, this position was not without dissent within the Church. I was just trying to highlight that even among religious authorities, the notion that a fertilized embryo has been ensouled has been far from a universal phenomenon. And given that, despite advances in medical science, it is doubtful that we are in a better position that those in the past to determine when ensoulment occurs, this casts some doubt on the notion that it can be confidently asserted that ensoulment-at-conception is somehow logically inherent in religious doctrine or theology.

Now, on to your question:

Can someone explain to me the logical case for why, aside from a direct threat to the woman's life, a woman shouldn't be required to deal with the serious discomfort and social disadvantages which result from her choice to engage in "risky" behaviors?

Well, I'll try. I haven't considered this in any deep way, but I think there are several angles from which one can approach the question.

First, there is the libertarian position that no person should be forced to labor for another. Many hard-core libertarians might reject the notion that a woman must lease out her body without compensation to an unwanted fetus, even if she was negligent or reckless in becoming pregnant.

Now, I don't actually like that first argument very much. I am not any kind of libertarian -- I think that we should have a lot of personal liberty, but I also think we have communitarian duties to care for each other, at a moral level. But that doesn't exclude abortion from consideration. If one takes the position that a fetus is not a legal or moral person (which I do, being a materialist and buying some of Singer's ideas), then one can believe that we have communal duties to other people, but not think that we owe any to human non-persons such as fetuses. Thus, we can choose, weighing the factors of social harm and benefit, to allow or not allow the killing of fetuses and embryos. I deal with some of the implications of that view above, and am happy to keep discussing it.

Another problem with your position is that it excludes from consideration the notion of good-faith use of birth control. If a woman chooses to engage in sexual activity but takes prudent steps to avoid fertilization, she certainly isn't "choosing" to be pregnant. To say that she is choosing pregancy is like saying that, by driving my car, I am choosing to get into car accidents. Clearly, this isn't the case. I am engaging in an activity that certainly creates an otherwise non-existent risk of traffic accidents, because of other benefits that the activity brings to me. Should we prohibit tort recovery for all car collisions, on the theory that all drivers assume the risk of accidents, even if they drive safely? Most of us would say no.

Now, let me know how that strikes you. Obviously, there are some pretty profound gaps in our starting points in this area. Still, I am interested to know why you think ensoulment must occur at conception. What does this mean for the status of souls created at fertilization but never implanted into the uterine wall (the vast majority)? Obviously, such "persons" have never been baptised -- what does this mean for their status in the Christian afterlife? Since modern science would indicate that probably no more than 30% of embryos actuall implant and develop as pregancies, does that mean that the majority of human souls in the afterlife never had a conscious existence on earth?

Balfegor: I am particularly interested in why you, as an atheist, find abortion repugnant. (Note -- I am not saying that you shouldn't think that -- I am just curious as to why you think it). Are you a materialist? If so, on what basis do you object to abortion? I'm really curious...

Great discussion all -- I was worried that this might be grinding to a halt, but I'm glad to see that people are still into it.

Aspasia M. said...

Dannyboy,

RE: Does illegality correspond to lower rates of abortion?

Follow the numbers. (Or the abortion rates / 1000 women both in the United States pre-1972 and in other countries.)

Look at the number of legal abortions in the United States in the 1930s-1960s. Then look at the estimated illegal abortions for the same time period.

Also - compare the rates of abortion in the Netherlands and Sweden to the estimated rates of abortion in Brazil.

RE: Romania and criminal policing.

I don't know for sure what will happen. It's anybodys guess. But I can say that the unofficial "comprises" worked out between the police and doctors about abortions pre Roe is gone.

People are worried that the health exception is "sneaky." The hospital theraputic abortions that were performed will be investigated in a way they never were pre-Roe. Doctors has more latitude pre-Roe to abort middle-class women legally.

In the years before Roe, in Chicago, there was a group called "Jane." This group, in the late 1960s and early 1970s performed 11,000 illegal safe abortions. At first they brought women to doctors. Then the woman learned how to do abortions themselves. When New York legalized abortion, the more well-off women began to travel out-of-state for legal abortions. At that point the patients of "jane" changed to mostly poor women. The police mostly left the women alone, except for right before Roe passed. At that time some people were arrested, and then freed after Roe passed.

I very much doubt that a state that makes abortion illegal will permit a group like Jane to operate.

I think we could very much have a situation like Romania. Espcially if it becomes a political advantage in some states to "capture" and prosecute the "abortionists."

I am always amazed that people think the abortion rate will fall. I suppose it is because I can easily imagine someone desprate enough to try anything to stop a pregnancy. I'm also aware of the historic reactions to pregnancy in the 19th and 20th centuries.

Aborting a first trimester pregnancy actually isn't that hard if you know what you're doing. We're not talking about open heart surgery here. You don't need to cut into any tissue to abort in the first trimester. You just dialate the cervix and scrape out the uterus. (DON'T TRY THIS AT HOME - DANGER SEPSIS) Often times women don't know that boiling water isn't enough to kill all the germs. But, apparently a pressure cooker will sterilize instruments. Antibiotics are important too - which you can get now, in Mexico.

Seriously, no one try this at home - it is dangerous. But my point is that the information, right now, is on the internet. Anyone can find it. If abortion is made illegal, women will do it at home. (GO TO A DOCTOR)

I also think that the younger or more uninformed someone is, the more likely they are to not be aware of the dangers of unsanitary abortions.

"these embryos until they can be implanted in a willing host"

Don't you mean a willing woman? She's not just a "host," she's a person who will be taking health risk and undergoing permanent bodily changes to be a "host" for otherwise discarded embryos.


On the word host:

It makes pregnancy sound like an easy thing to do. It devalues the act of growing a embryo/fetus inside of you. Actually, it makes it sound like a fetus has checked into a hotel for nine months, which is rather absurd.

To parody our president: Pregnancy is hard work!

Pregnancy is nine months of labor. For many, it is a labor of love. For the unwilling who are forced to bear a child - pregnacy would simply be a nightmare.

Perhaps imagine it happening to your body. Everything you eat and everything you do becomes important. Are you going to ride a bicycle? What if you fall?

If your pregnancy is healthy - then you still will likely have morning sickness and fatigue. It is also possible to get a pregnancy onset of diabetes (one of my friends has this) or high blood pressure. You may be put on bed rest.

Anyways - in all pregnancies there are emotional, physical and social costs associated with pregnancy.

The miracle is that many women are actually willing to go through with pregnancy and continue the human race.

Although I guess pregnancy will soon not be defined as a voluntary labor of love, but a labor that women owe to the state.

Marghlar said...

geoduck: couldn't agree more on the linguistic devaluing of the effort of pregnancy. Use of the word host does tend to connote that this is an easy process, instead of one that carries significant health risks, is exhausting physically and emotionally, etc.

For an interesting constitutional argument that flows from the forced labor premise, see Koppelman, A Thirteenth Amendment Defense of Abortion, 84 Nw. U.L. Rev. 480 (1990). Koppelman writes:

This Article will argue that there is a provision in the Constitution which is not vulnerable to any of these objections. 23 This provision is the thirteenth amendment, which reads as follows: "1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the [*484] party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. 2. Congress shall have the power to enforce this article by appropriate legislation." When women are compelled to carry and bear children, they are subjected to "involuntary servitude" in violation of the thirteenth amendment. 24 Abortion prohibitions violate the amendment's guarantee of personal liberty, because forced pregnancy and childbirth, by compelling the woman to serve the fetus, creates "that control by which the personal service of one man [sic] is disposed of or coerced for another's benefit which is the essence of involuntary servitude." 25 Such laws violate the amendment's guarantee of equality, because forcing women to be mothers makes them into a servant caste, a group which, by virtue of a status of birth, is held subject to a special duty to serve others and not themselves.

This argument makes available two responses to the objection that the fetus is a person. The first is that, even if this is so, the fetus' right to continued aid from the woman does not automatically follow. As Thomson observes, "having a right to life does not guarantee having either a right to be given the use of or a right to be allowed continued use of another person's body -- even if one needs it for life itself." 26 Quite the [*485] reverse, giving fetuses a legal right to the continued use of their mothers' bodies would be precisely what the thirteenth amendment forbids. The second response is that since abortion prohibitions infringe on the fundamental right to be free of involuntary servitude, the state bears the burden of having to show that the violation of this right is justified. The State cannot carry this burden, because no one knows how to prove (or disprove) that a fetus is, or should be considered, a person. The mere possibility that it might be is not enough to justify violating women's Thirteenth Amendment rights by forcing them to be mothers.


This argument, interestingly enough, also provides a neat response to the "consent" argument -- that is, that women have no interest in abortion when they become pregnant as the result of a voluntary sex act. Since we do not allow people to sell themselves into slavery (the 13th Am. would make any such contract void), a woman's arguable prior consent cannot operate to place her into a condition of involuntary servitude.

Balfegor said...

Balfegor: I am particularly interested in why you, as an atheist, find abortion repugnant. (Note -- I am not saying that you shouldn't think that -- I am just curious as to why you think it). Are you a materialist? If so, on what basis do you object to abortion? I'm really curious...

I'm at most some sort of quasi-materialist, I suppose, as I do think there are transcendant values, and believe in a species of "natural law," which I think can be derived by "right reason," as it were, from the patterns of human existence. Mostly, I'm a materialist who thinks that because of the finitude of human knowledge and understanding, tradition must be carefully preserved, seeing as it contains the only long-term empirically tested insights human civilisation is yet capable of.

That doesn't really have much to do with my conclusion on abortion though, which derives from a simpler thought that when in real doubt as to what is meaningfully human life for the purposes of our moral calculus, we ought to err on the side of a broader conception of humanity, rather than privileging one particular theoretical criterion (e.g. genetic likeness, sentience, reasoning ability, etc.) above all others. So when presented with the question of when a fetus "becomes" human (as we know it eventually will, if it lives), I just push that point back to the earliest plausible starting point, which would be conception. This doesn't mean that life of the fetus necessarily bears the same moral weight as any other life -- forced to choose between the embryo and the mother, for example, I'd go for the mother, even at an early stage where there is only an amorphous but substantial likelihood that the birth process will result in significant danger to the mother's life, say -- but it does mean that the vast majority of abortions strike me as flatly wrong.

Marghlar said...

Balfegor: I get what you are saying on the difficulty of defining personhood, and not wanting to screw things up. But my worry is that your approach tends toward arbitrariness. After all, the only thing that separates a human embryo from a chicken embryo is its DNA. Why should a biochemical difference determine what forms of life get legal rights, and what forms of life do not? To push the point further: a human being born with only a brain stem could be kept alive for some time, but there would be no meaningful criterion other than its chemistry and shape by which we could distinguish it from lots of types of life which we feel like we can freely kill when it serves our purposes.

In other words, I'm worried that your approach, although seeking to avoid making arbitrary choices between definitions of personhood, in fact makes the most arbitrary choice I can envision. Where it matters, I want the law to make minded choices, even if we have to puzzle through some conundrums in order to do so.

Another question for you: do you generally support affirmative duties to aid in the law? Abortion prohibitions, in my mind, can be easily seen as forcing one person to aid another against their will. What do you think about such laws in the larger sense?

tcd said...

Dannyboy,
I would not respond with such vehemence if I actually believed that people like you and Synova were arguing in good faith. You are not. In response to my posts, you write: "Do you really want to legitimize infanticide? Do you really see no broader social interest in the lives of fetuses? Our society actually does regulate who can and can't get heart surgery, by the way." One, where did I state that I want to legitimize infanticide? My statement was that I do not believe abortion is infanticide. Secondly, you are misrepresenting your argument regarding abortion. People like you do not just want regulated abortion, you want to criminalize abortion. So when you compare "regulating abortion" (i.e. criminalizing abortion) to health regulations for heart surgery, you are being disingenuous. The two are not the same. I remember visiting my mother-in-law at the hospital, after her quadruple bypass, and I don't recall seeing protestors picketing outside the hospital. I also remember that the legality of her surgery was not an issue up for discussion whatsoever. And the decision to have her heart surgery was made by her and the surgeon. Funny, isn't it?

After reading your many posts, I am convinced that I would rather not leave the fate of my health nor medical decisions regarding my health in the hands of self-righteous people like you. The antagonism for other's individual liberties is somewhat telling in your posts.

Marghler and geoduck2,
Bravo to the two of you! You both have exhibited the patience of a Buddha.

Balfegor said...

After all, the only thing that separates a human embryo from a chicken embryo is its DNA. Why should a biochemical difference determine what forms of life get legal rights, and what forms of life do not?

We're coming up on the end of the useful life of this thread, so possibly this discussion would be better postponed to the next time abortion comes up here (as it surely will). But that aside --

The distinction between the human embryo and the chicken embryo is that the human embryo is human. To consider them as essentially the same is to adopt a perspective that considers things only as they are at that particular moment, without taking into account the totality of their distinct existence throughout time. That's a perfectly valid perspective to hold, but are we certain it is the correct perspective to hold? I think there is arguable and nontrivial doubt here -- the nontriviality of that doubt is the bare minimal "mindedness" I hope is adequately incorporated into my approach.

To sketch an argument -- we make judgements on the basis of just such an apprehension of the full distinct existence of a being through time all the time. To bring back the embryo/baby burning building problem, suppose it is instead a Nobel prizewinner in middle-age, and a 2-year old infant. In determining which one to save (in this highly artificial circumstance), we'll likely be moved by the infant's youth and future potential, and also by the prizewinner's past achievements. We don't weigh their immediate worth as organisms or personalities existing now, but take into account much, much more. Now, you can say that this approach is inappropriate with the embryo -- that there is some cutoff before which such an approach is no longer proper. But it seems to me there really is meaningful doubt on this point. We know the human embryo, as a human embryo, will, if things go right, develop into what we commonly think of as human. The chicken embryo will not. And that seems to me a pretty significant difference.

To push the point further: a human being born with only a brain stem could be kept alive for some time, but there would be no meaningful criterion other than its chemistry and shape by which we could distinguish it from lots of types of life which we feel like we can freely kill when it serves our purposes.

Yes . . . and? The argument is incomplete here -- you need to argue that genes and form (and public perception) are incorrect as bases for delineating the boundaries of what is and is not meaningfully human in our moral calculus. Put within the hazy framework I've sketched out here, you need to remove our doubts.

In other words, I'm worried that your approach, although seeking to avoid making arbitrary choices between definitions of personhood, in fact makes the most arbitrary choice I can envision.

In some sense, yes. I see your point. But I view it as more of a meta thing, like shifting an evidentiary burden, and in that sense, arbitrariness is almost built in, since it does not, of itself, lead to a firm conclusion -- doubt is subjective, after all.

Consider democracy, though, just as a comparison. Democracy gives us a few starting principles, but the actual conclusions we reach are not determined at all; they're subject to the arbitrary whims of a large and diverse population, after all. That's a criticism often made of democracy (that because it is arbitrary, the population get it wrong) but democracy, as a system, is trying to maximise other values.

For my part, my notion about adopting expansive definitions of humanity when in doubt arises not so much out of the fear of making arbitrary definitional choices, as from the sense (the fear) of a terrible moral cost involved should we make those choices wrong.

Where it matters, I want the law to make minded choices, even if we have to puzzle through some conundrums in order to do so.

I have a secondary reason for thinking abortion is wrong -- an affirmative reason engaging with the "conundrum," as you put it, directly -- but the argument is much weaker, and less strongly felt (by me), in this particular context. But I've already said I think you can extract normative "natural law"-type conclusions from the structure and pattern of human existence, so you can probably see the basic outline of the argument (and the basic weaknesses of the argument) without my plodding through it.

Another question for you: do you generally support affirmative duties to aid in the law?

Not arbitrary duties to strangers. I do support parents' affirmative duties to aid, rescue, etc. their children, though, and I think that's about all you need to dispose of the affirmative duty for the abortion question.

Abortion prohibitions, in my mind, can be easily seen as forcing one person to aid another against their will. What do you think about such laws in the larger sense?

In a larger sense, though, outside of particular relations -- mostly kinship, if I think about it (though not restricted to parent-child) -- I don't think there should be such affirmative duties.

Well, such affirmative duties to rescue, that is. As far as generalised duties of due care to foreseeable whatsits, to ensure that you don't take a course of action that is going to negatively impact other people, and also to ensure that you bear the costs if and when you do, I think that particular extremely general affirmative duty is proper.

Marghlar said...

tcd said to dannyboy: People like you do not just want regulated abortion, you want to criminalize abortion. So when you compare "regulating abortion" (i.e. criminalizing abortion) to health regulations for heart surgery, you are being disingenuous.

Tcd: as you know, I agree with you that abortion restrictions (especially like the very broad one that SD is enacting) are bad ideas. However, I think you do yourself a disservice by adopting this sort of a tone. It's important, I think, to spend time understanding the other side's arguments, and letting them know that you treat them seriously. When you get ad hominem the way this quote demonstrates, I think you are going to lose persuasive force. And in the end, don't you want to try to persuade people towards your point of view?

But to respond to the content of the above quote: to regulate something (meaningfullY) necessarily means attaching a penalty somewhere. A law that says something is illegal, but attaches no penalites to the conduct, isn't really a law. Now, we don't know what penalties dannyboy would like to see attached to abortion, and who he'd like to target with those penalties.

Now, I think Dannyboy quite explicitly said that he isn't sure what penalties he would attach to violation of proper abortion regulations. Maybe they would be criminal, maybe they would be regulatory fines or licensing proceedings against doctors. I don't know, and you don't know. But the ad hominem argument doesn't help your case, and it detracts from the credibility of your very defensible postition, which I agree with.

Balfegor: you might be right that we are reaching the end of this thread. So, to respond briefly to your points:

I think that your notion of wholistically viewing the "full distinct existence of a being through time all the time" is to presume a decision not to abort a fetus. After all, a fetus only has a future if we decide it is entitled to one. Now, I think that one can quite comfortably say that an embryo might be a potential person, just as unfertilized ova might be -- but absent a coherent definition of personhood, that is no more than speculation.

To deal with your comment on my human vegetable example: the law often defines braindead humans as non-persons, even though they have a human form, human DNA and a pulse. Across our culture, we allow withdrawal of life support when the EEG is flat. Thus, to say that human form and DNA is determinative is at odds with our culture's treatement of braindead humans -- there is clearly something about such humans that we feel exempts them from a notion of personhood. And whatever that is, it isn't their DNA or form.

Onward to the duty to aid: if you limit the duty to parent/child, I think you run into a problem. A parent has generally developed a relationship with the child, expressing a desire to assume the kind of duties you are talking about. A woman seeking to abort a fetus, by contrast, expresses precisely the opposite desire. Is an accidental conception really enough to establish the onerous duties of pregnancy and labor? After all, at no point did the woman express any desire to assume a relationship with the embryo.

To take it a step further: what is it about parentage that you think creates such duties to aid? It can't just be genes, because I'm sure you'd say that parents also have a duty to children they have adopted. Is it based on a prior choice by the parents to be parents? If not, then what is it based upon?

tcd said...

Marghler,
If you think you can persuade people like Dannyboy, then you are a much better person than I. I repeat, you have the patience of a Buddha.
BTW, I'm not the only one engaging in "ad hominem". I quote Dannyboy,"I'm really not sure how to respond to tcd's posts, since their vehemence is not matched by their rational consistency." He calls me irrational, I say he's disingenuous. This is entrenched warfare.

amba said...

Marghlar,

Sorry to be so late in answering your question about my "People Seeds"post, which for the record was about frozen embryos for IVF as well as about Plan B.

The point of the post was that embryos can be frozen and their development suspended up to the blastocyst stage, when the embryo is ready to implant; but not after. It is also believed that in nature, many (no one knows how many, but estimates range as high as 50%) blastocysts fail to implant, either because there is something wrong with the embryo or because the mother's body is in some way unreceptive.

Therefore, the pre-implantation embryo, whether in the fallopian tube or the test tube, can be regarded as a "people seed," not all of which, in the normal course of things, get planted. Taking Plan B, which might, among other things, cause the uterus to be unreceptive to implantation, would then be one more of a number of possible factors preventing any possible "seed" from implanting.

The strict Catholic position is that human will or choice or judgment of unreadiness should never be a factor in determining who gets here and who doesn't: that should be entirely up to God. If you believe that, then you should not use birth control or Plan B, but to prevent others from using them is fanatical. (The South Dakota law, as has been widely noted, is ambiguous on this point, saying that life begins at conception but also that a woman cannot be forbidden to use any "contraceptive" agent before pregnancy can be medically detected.)

To answer your question, finally, Marghlar, my proposition about when life begins has nothing to do with a soul, which is an unprovable article of faith. It has to do with a relationship. The embryo's "handshake signal," if you will, has to be met by one from the mother, or there is no life. This is an embodied metaphor for the fact that there is no such thing as human life outside of relationship. (We get our name, our language, our sustenance, our culture from other people.)

At this crucial moment, it takes two. Withhold the "handshake signal," and life doesn't happen. But once mother's body and embryo have "shaken hands," a relationship has begun (though the mother may not be consciously aware of it) and with it, a life. That's why we have a sense of two-edged violation even about early abortion, though that feeling may be weak and gets stronger with every day that the embryo develops further into a fetus.

That's why I think preventing conception (by abstinence and/or contraception) and then implantation is the way to go, with legal early abortion as a rare backup.