January 16, 2010

Let's take a careful look at what Martha Coakley said about abortion and religious freedom.

This dialogue — with interviewer Ken Pittman — took place on the radio last Thursday:
Pittman: Would you pass a health care bill that had a conscientious objector [sic] toward certain procedures including abortion.

Coakley: I don't believe that would be included in the health care bill. I don't understand exactly what the question is. I would not pass a bill, as Scott Brown filed an amendment, to say that if people believe that they don't want to provide services that are required under the law and under Roe v. Wade that they can individually decide to not follow the law. The answer to that question is no.
She's a lawyer, and she ought to know that Roe v. Wade — along with other abortion cases — does not require services. There is a world of difference between having a right to do something and having the power to make other people do things for you as you try to exercise that right. If you don't know the difference between those two things, you don't understand how rights work. Other people have rights too. Refusing to perform an abortion is not a violation of the constitutional right to privacy.

Now, Coakley said "under the law and under Roe v. Wade." By "the law" she could have meant the law that might be passed. The new statute might require health care workers to provide abortions. But the question is whether she would vote for that law. It doesn't make sense to say I'd vote for it because after it passes it will be the law and then individuals couldn't decide they don't want to follow it. The question is whether she would vote for that law, so slipping "the law" in there with Roe v. Wade was — if not a mistake — a trick to make you think a requirement was already in place.

Yet even if a law were already in place requiring health care workers to participate in abortions, there would be an argument that the right to the free exercise of religion trumps or should trump that requirement. There would be a legitimate conflict in the law that politicians would have opinions about, and it would be wrong to portray the workers as people who merely want to say they are above the law. Just as the right of privacy trumps laws that ban or impose harsh barriers on the access to abortion, religious freedom rights might trump some laws that require abortion services. It isn't lawless to prefer religious freedom. It is a position about what the law is or should be. It is the very question under discussion as the people of Massachusetts decide who, in the future, will have the power to vote on what the law is.
Coakley: And let's be clear, because Scott Brown filed an amendment to a bill in Massachusetts that would say that hospital and emergency room personnel could deny emergency contraception to a woman who came in and had been raped.
Coakley is choosing to press forward on the importance of abortion and contraception rights. It can be effective political argument to focus on rape victims. (Remember "Rape Gurney Joe"?) I imagine Coakley believed at this point that she was making a powerful argument that would win political support and make Scott Brown look like an unsympathetic lout and/or a right-wing extremist. But that was to be blind to the appeal of religious freedom.
Pittman: Right, if you are a Catholic, and believe what the Pope teaches that any form of birth control is a sin. You don't want to do that.

Coakley: No, but we have a separation of church and state here, Ken, let's be clear.
In American constitutional law, we have a proscription of federal laws "respecting an establishment of religion, or prohibiting the free exercise thereof." It is difficult to coordinate the Establishment Clause and the Free Exercise Clause, and anyone who serves in the United States Senate will need to have some idea of the meaning of both clauses. Coakley invokes the "separation of church and state" as if it has obvious meaning and a simple reminder should end the debate. But the meaning of religious freedom in America has been the subject of endless debate, a Senator will be an important participant in that debate, and the issue right now is whether Coakley should be a Senator.
Pittman: In the emergency room you still have your religious freedom.

Coakley: Uh, well, uck, u, uk, the, the law says that people are allowed to have that. And so then you.. you can have religious freedom. You probably shouldn't work in an emergency room.
Pittman: Wow.
Why the horrible stammering? The followup is utterly obvious. The answer should have been carefully prepared and couched in real sympathy for the workers who would be caught in the terrible dilemma between giving up their jobs and following their religion.

It is, in fact, permissible under the current interpretation of the Free Exercise Clause to make a general rule like this and impose it on people who will have to violate their religion or quit their jobs. There are also federal statutes — like the Religious Freedom Restoration Act — that give people a higher level of protection for their religious freedom, so that they do get special exemptions from generally applicable laws. So it's up to a Senator to have a position on what that law should be. A Senator will also have a vote on the confirmation of Supreme Court Justices, and that will have an impact on what the constitutional religion clauses mean in the future. Coakley has revealed how she balances free exercise and establishment clause values, and voters should take note.

It is especially important to think about these values in the context of an expanding government role in areas that were traditionally left to the private sphere — medical care, for example. It's the separation of church and state, so the dimension of the state is very important. A legislator who wants the state to run more of the economy and wants a strong separation of church is threatening to have a much greater effect on religious freedom than a legislator who believes in the strong separation of church and state but also believes in small government. Now, I want to give Coakley credit for bluntly stating the import of her position: You can have your religious freedom, but you'll have to give up your job. That elicits a "wow." That is, the truth is a slap in the face.

Tomorrow, the (purportedly) honey-tongued Barack Obama comes to Massachusetts to promote Coakley. I hope he submits to questioning and is asked what Pittman asked Coakley. Presumably, his position is the same, and presumably, he can say it in a less "wow"-eliciting way. But the truth is out, and his words — however elegant — can be distilled into the straight, stinging You can have religious freedom. You probably shouldn't work in an emergency room.

91 comments:

Fred4Pres said...

First let's look closely at what she said about Curt Schilling!

Curt Schilling responds to Martha Coakley:

I've been called a lot of things...but never, I mean never, could anyone make the mistake of calling me a Yankee fan. Well, check that, if you didn't know what the hell is going on in your own state maybe you could...

Seriously, this might push Matt Damon and Ben Affleck over the top for Scott Brown.

New York said...

so slipping "the law" in there with Roe v. Wade was — if not a mistake — a trick to make you think a requirement was already in place.

Typical liberal sleazoid talk. Belongs in the New York Times.

Fred4Pres said...

And Ann, in a state were a significant number of hospitals are run by the Catholic Church, to say that a devote Catholic should not be working in an emergecy department is rather stupid. There is really no defending that comment in that context.

mrs whatsit said...

Put together everything Coakley has said on this subject and it adds up to this: she believes "separation of church and state" means that Congress can pass laws that require people to choose between their jobs and their religious beliefs -- and further, that's a good thing. In other words, she has it exactly backward. Where did she go to law school, again?

Fred4Pres said...

Ann, Obama cannot answer the question you posed. It is above his pay grade, remember?

Meade said...

"You can have religious freedom but you probably shouldn't work in the emergency room."

And after I help ram through the Democrats' health bill, you can still have your religious freedom... but you probably shouldn't work in the United States.

SteveR said...

"Wow" is right. OTOH with that level of thinking, she'll be above average for the Senate.

jayne_cobb said...

I have to wonder just how persuasive Obama will be.

He's campaigning on the Sunday of a 3 day weekend during the playoffs.

Between football and hangovers I can't imagine Obama is going to reach too many people, particularly those youths which remain his strongest supporters.

Skookum John said...

Some years ago, the left-wing types who control academic medicine tried to force all OB/GYN residents to perform abortions as part of their training. It was shot down almost immediately.

There are several northern European countries where there is no conscience clause whatsoever. If a doctor capable of performing an abortion is asked to do one, and refuses, she will be stripped of her medical license.

But in this country, really there is nobody but a tiny minority of hard-left baby killers, the kind who see abortion as a positive good, who object to a conscience clause for health care providers.

If that's the kind of country Martha Coakley really wants to live in, it was nice of her to say so as clearly and bluntly as she did, but it is a position that is alien and downright frightening to the VAST majority of Americans even in the blue states. It is a bald faced lie for her to equate opposition to this bloodthirsty tyranny with support for denying services to rape victims.

I do hope the faithful Roman Catholic Democrats of Massachusetts grasp the full implication of her statement and take it into account when they cast their votes.

garage mahal said...

So we dig through Coakleys record going back 10 yrs with a fine tooth comb,. And for Brown, we go as far as showing him in a semi nude spread in a magazine. He's hot! Way to keep it real Ann.

Ann Althouse said...

"So we dig through Coakleys record going back 10 yrs with a fine tooth comb..."

Suddenly, last Thursday is 10 years ago.

Lem said...

"You can have religious freedom but you probably shouldn't work in the emergency room."

Coakley would amend "Give to Caesar what is Caesar's, and to God what is God's." to read if you want to give to God go ahead.. but then don't come looking to work for Caesar.

Wow indeed

wv - slymi - and she is

Florida said...

"I mean never, could anyone make the mistake of calling me a Yankee fan. Well, check that, if you didn't know what the hell is going on in your own state maybe you could..."

This is a candidate and a campaign that cannot even spell the name of the Commonwealth of Massachusetts correctly in their campaign commercials.

And yet, millions of voters here will do as they are told by their union thug bosses and their supervisors at work in state government and go and pull the lever for this stupid bitch.

Welcome to Massachusettes.

Kev said...

(the other kev)

Suddenly, last Thursday is 10 years ago.

Some folks certainly wish it was.

Chef Mojo said...

So we dig through Palin's record going back pretty much for her entire life, as well as her family's, with a fine tooth comb,. And for Obama, we go as far as... well... I dunno. But he's hot!

There you go, garage. Fixed it for you.

And still you're silent on the actual facts of Coakley's background of Constitutional ignorance and prosecutorial misconduct.

How very typical of you.

AllenS said...

garage, sometimes you really crack me up.

Flexo said...

Roe and "abortion rights" are not about "rights." They have never been about rights -- they are about power.

traditionalguy said...

Tricks are so easy to do when one is a member of a legally protected species, like a labor union member or an African-American, or a female. Until now there was no push back for Coakley's easy tricks ...but that has changed this year. It used to be so confusing:1) If your religious conscious forbids killing enemy soldiers in war, then you were put into the combat medics and told to save lives, but 2) If your religious conscious forbids killing innocent babies, then you are told so what, those MUST be killed, and you will be fired without the chance to do the life saving ER job. It is all about protecting the Political Power of the species that is empowered to kill babies, which are females. Obama also demands protection in civilian criminal courts for the political power of Terrorist Killers of innocent civilians. And Obama's private health system destruction bill is first and foremost a cost saving mechanism aimed directly at early death for the Grandparents and the disabled, just like Sarah Palin spotted without politically correct fear or favor being granted to these honorable Killers who are now running our government under King Obama and his czars. And finally the faux moderate Senators like Ben Nelson and Evan Bayh have so easily proved to be the worst of them all, because they will allow this done to us for a few dollars of earmarks/bribe money.

Florida said...

"So we dig through Coakleys record going back 10 yrs with a fine tooth comb."

Yes, Garage. That's how we choose a candidate. We look at their history, what they claim ... what they've said, what they've done.

Then we decide whether they're worthy of public office.

Just like we'll be doing soon with Sarah Palin.

Coakley is unfit for public office. She has a loose grip on the law and an even looser grip on reality (really, I mean ... Kurt Shilling as a Yankee fan? That's ludicrous to anyone living and able to correctly spell Massachusetts.)

Whine on, dude.

Old Dad said...

Q. How do you eff up a cake walk?

A. Let Martha do it.

Flexo said...

"you can have religious freedom. You probably shouldn't work in an emergency room"

Here in D.C., when the D.C. government passed the "gay marriage" law, the Archdiocese of Washington announced exactly that -- that because it could be construed to force Catholic organizations with city contracts to be involved in conduct contrary to the faith, they were going to withdraw from those contracts (which were to provide services to the poor, etc.). And, of course, the left has jumped all over the Archdiocese for doing this.

The Archdiocese still provides services on its own, separate from the city-contracted services, as it always has, but without the funding, it of course is doing less. That is the left for you.

Chase said...

Coakley's's toast!

I can rail all I want about the lack of principle and moral center of Democrats and liberals in general, but this week that deficiency is on such public display that even the media can't cover it up!


Still waiting for the "principled" liberals who stated that Sarah Palin was scary because among other things she was "stupid" to say the same about Coakley:




. . . uh, any liberal, principled or not? . . .



. . . sound of crickets . . .


Bad day to be a liberal. Bad day to be a Democrat.

EVERY poll (Gallup, CBS, Rasmussen, Quinnipac) has Obama below 50% approval.

Now where the hell is that guy that used to always quote here about how bad Bush's approval ratings were?

Jeremy?


Oh, Jeremy?



I can rail all I want anout the lack of principal and moral center of Democrats and liberals in general, but this week it's on display and even the media can't cover it up!

Delicious!!!!




C'mon November!

garage mahal said...

Yes, Garage. That's how we choose a candidate. We look at their history, what they claim ... what they've said, what they've done.

Great. And Brown? Looks great with a hairy crotch? Good 'nuff?

AllenS said...

Come on, garage, that was 10 years ago.

El Pollo Real said...

Coakley would amend "Give to Caesar what is Caesar's, and to God what is God's." to read if you want to give to God go ahead.. but then don't come looking to work for Caesar.

To the Coakley and her ilk, all that God stuff should really just go away eventually. To the Coakleyites, all there really is in the end is Ceasar anyway- they just dare not come out and say it.

Old Dad said...

Garage,

Hillary's moustache didn't seem to hurt her. What do you have against body hair?

Brian Day said...

I second what F4P said about Catholic hospitals.

It is not a good time for anyone who has a conscientious objection to work in the health care field, be it in the hospitals, Ob-Gyn, or pharmacies.

Paul said...

"And Brown? Looks great with a hairy crotch."

Well at least we know what garage likes in a man now......

garage mahal said...

*icky face*

paul a'barge said...

I don't see how you can use the words presumably and Barack Obama in the same sentence.

lucid said...

Nice analysis, Ann.

Coakley has that disregard and disrepect for other peoples' views that has come to characterize the liberal/left in recent years. They think of people who disagree with them as underdeveloped and immoral ("bitter, cling to guns and religion") in a characteristically Marxist-false-consciousness kind of way. This is why Obama is instinctively so hyper-partisan and why it is okay with him to disenfranchise rather than negotiate and compromise with people on the other sides of issues.

(Another example: Chuck Schumer has just sent out a letter supporting Coakley that actually calls people tea-baggers. Using a term that means constituents who happen to disagree with you lick other peoples' testicles is simply an astonishing thing for a US senator to do. Even Anderson Cooper offered an apology, albeit a half-assed and contemptuous one.)

andrew said...

Brian Day:

hmm....

Price ceilings + increased demand + conscientiously objecting doctors and med staff that have to leave the country to satisfy their conscience = Medical service shortage.

That would add up quite nicely for me, as I plan on setting up a travel agency in a few years that happens to book trips to vacation hot spots that also have great medical care. Get a referral system going, get kickbacks from the doctors, and move to Russia (can't be extradited under constitutional law) when facilitating medical tourism is made illegal here and still do business online.

As a patriot I refute the authority of a belligerent government. Coakley is the epitome of liberal belligerence, and must lose this election for the sake of the nation.

Rialby said...

Something tells me she would not answer the question the same way if it were posed in a way that made it clear that a Muslim (or other protected religion) was the one objecting to providing a procedure.

rhhardin said...

Thoman Mann characterized Kafka as a religious humorist.

David said...

Ann, that was a admirably sophisticated and intelligent analysis of Coakley's statements on abortion and religious freedom.

Here's my analysis: She be stupid.

Chip Ahoy said...

The signal I'm in for an Althouse takedown is [sic] in the first sentence.

No, srsly. Thank you for this exposition. It is most helpful to my understanding of the situation. Until now all I had was the quote considered self-evidently damaging applied to a state with so many Catholic hospitals. I thought, "well, she's vocalizing what a lot of her supporters already think."

Kelly said...

I'm skipping the comments on this, but I wanted to say thanks for addressing this.

I've always thought that was an important distinction. Just because Plan B is legal, doesn't mean that private businesses are required to dispense it. If Wal-Mart can decide not to carry music with explicit lyrics, then they can do so without violating Freedom of Speech, right?

If private businesses and charitable institutions want to not provide certain services, or hire pharmacists who don't provide them, then it should be up to the free market system to deal with that, right? Either people will boycott them and they'll go under, or people will rally around them and they'll stay afloat.

I don't see why the government needs to get involved, other than declaring whether or not the service is legal.

edutcher said...

The woman has the brains of a piece of furniture and, no, that would not make her a cut above the rest of the world's greatest deliberative body.

Consider Dingy Harry, Lurch Kerry, Don't Call Me Madam Boxer, or Halo Joe Biden.

Chase said...

Coakley's's toast!

I'll say; she now has the curse of Clinton. In an appearance, Willie told the assembled multitude that a vote for Brown is a vote against Haitian relief.

Another Maatha moment brought to you all the way from Li'l Rock.

Tell me again how savvy and smooth and skillful a politician the former Rapist-In-Chief is. And how all the so-called conservatives miss him.

My God, he makes his wife look adept.

tom swift said...

There is no way I'm voting for Coakley, but this particular statement isn't her problem. I think that (so far as I understand her meaning) she's right this time. A pro can only serve one master - so does a doctor follow Hippocrates, or does he follow the Pope? I know were to go if I want someone who follows the Pope, and that someone isn't in a hospital. I don't want to have to ask if a medical type is a Catholic, or for that matter follows Muhammad, or Buddha, or Mithras, before I decide whether to trust his advice and workmanship on purely medical issues.

Maguro said...

A pro can only serve one master - so does a doctor follow Hippocrates, or does he follow the Pope?

In this case, Hippocrates and the Pope are in agreement. The Hippocratic Oath reads as follows:

I swear by Apollo, the healer, Asclepius, Hygieia, and Panacea, and I take to witness all the gods, all the goddesses, to keep according to my ability and my judgment, the following Oath and agreement:
To consider dear to me, as my parents, him who taught me this art; to live in common with him and, if necessary, to share my goods with him; To look upon his children as my own brothers, to teach them this art.

I will prescribe regimens for the good of my patients according to my ability and my judgment and never do harm to anyone.

I will not give a lethal drug to anyone if I am asked, nor will I advise such a plan; and similarly I will not give a woman a pessary to cause an abortion.

But I will preserve the purity of my life and my arts.

I will not cut for stone, even for patients in whom the disease is manifest; I will leave this operation to be performed by practitioners, specialists in this art.

In every house where I come I will enter only for the good of my patients, keeping myself far from all intentional ill-doing and all seduction and especially from the pleasures of love with women or with men, be they free or slaves.

All that may come to my knowledge in the exercise of my profession or in daily commerce with men, which ought not to be spread abroad, I will keep secret and will never reveal.

If I keep this oath faithfully, may I enjoy my life and practice my art, respected by all men and in all times; but if I swerve from it or violate it, may the reverse be my lot.

dbp said...

"...I will not give a lethal drug to anyone if I am asked, nor will I advise such a plan; and similarly I will not give a woman a pessary to cause an abortion..."

The pope and the Hippocratic oath are not in conflict.

Meade said...

"So we dig through Coakleys record going back 10 yrs with a fine tooth comb,"

And if by "fine tooth comb," you mean stuff printed in the same newspaper that endorsed her, then, yes, how very unfair. Really unfair!

dbp said...

I bow to Maguro's superior speed.

master cylinder said...

any women here posting?
I'm a woman first, Catholic second.
[tell me that is not hell]
As I have had to explain to my 9 year old, abortion is legal in this country, as is divorce, birth control, being gay [pretty much] and putting people to death for crimes. So glad our female reproductive rights are protected in this country. Keeping church and state apart is hard for adults too.

rhhardin said...

What you need for a thorough vetting is the bamboo cat rotating fine tooth comb, though I question the modifier order.

vbspurs said...

Lucid wrote:

Coakley has that disregard and disrepect for other peoples' views that has come to characterize the liberal/left in recent years. They think of people who disagree with them as underdeveloped and immoral ("bitter, cling to guns and religion") in a characteristically Marxist-false-consciousness kind of way.

That's it, that's her attitude in a nutshell. And I go further, I'll bet you any amount of donuts that people who heard her say what she did, who agree with her point of view, are completely scratching their heads at the furore her interviewed caused.

"But if you ARE against performing abortions, maybe you SHOULD not work in places where you could be forced to participate in one"

To them, their position is no less illogical than suggesting that a haemophiliac should perhaps abstain from taking up jiu-jitsu.

She doesn't want to understand (because I refuse to believe that a lawyer and Attorney-General of a State just plain DOESN'T understand) that separation of church and State means you are not forced to do something if it's against your religion, not that it's incumbent on you not to practise your religion at given times.

Put it this way.

If Coakley were talking of the rights of the handicapped in the workplace, not only would she have been much more caring that their rights be protected by their employer, but she wouldn't EVER suggest their ambitions be curtailed. She would've even have tripped over her not so nimble tongue to mention "reasonable accomodation", whereby the handicapped have their rights taken into account, even if it means changing things around in a workplace which can ill afford it.

Cheers,
Victoria

Ken Begg said...

Why is this even necessarily a religious issue? What if examining the scientific evidence makes you believe an abortion takes a human life? Are all atheists pro-abortion? And if you have non-religious qualms against abortion, does that mean you can't work in health care?

We allow conscientious objectors to serve in the military. One needn't claim a religious rational to be awarded this status, but can seek it on grounds of freedom of thought or conscience. Apparently Ms. Coakley believes the government should have greater regulatory power over the private health care industry than it does over the military.

Peter V. Bella said...

Like most Democrats, she is projecting what she believes the law should be and what the Constitution should mean. Democrats have a great deal of trouble with reality.

In light of the tax on health plans and everything else, how come no one has asked her if it would be legal to tax abortions?

vbspurs said...

Kenn Begg wrote:

We allow conscientious objectors to serve in the military.

Exactly! Good point.

In Germany, all males over the age of 18 must serve 9 months in the Bundeswehr. But conscientious objectors* get to do their "Dienst" in the civilian sector.

This, then, would be the equivalent in Mundo Martha:

If Coakley were in charge of German conscription, she would tell those conscientious objectors that perhaps they should emigrate to another country before the age of 18, because their their deeply-held beliefs impairs their ability to serve in the military.

Cheers,
Victoria

The Drill SGT said...

Just out of curiosity?

Coakley is a professed Catholic. yes?

She thinks that faithful Catholics should not work in ER's, and by implication, the Catholic church should not run ER's.

Now in Boston, the Church has a large medical presence.

Question: with her clear views on abortion and anti-religious freedom on the topic, has any Catholic Bishop taken her to task?

Kirby Olson said...

Translation of Coakley: "You should not be allowed to have any responsible position. You are allowed to walk free, but if you ever say anything like that in public again I will pound nails into your hands and feet and put a crown of thorns on your head, got it, asswipe?"

Titus said...

Boots on the Ground here fellow republicans.

Things are hot, white hot.

I can't even tell you how hot it is.

I am hot too.

former law student said...

Not that it would matter to a Catholic strictly following the dictates of the Church, but "emergency contraception" is just contraception; it is not an abortifacient.

vbspurs said...

Good question, Drill Sgt. I'll go further.

Has anyone asked the pointedly obvious question of just how much Roman Catholics have contributed to the field of medicine?

If Martha had her druthers, Michael DeBakey would never have been near an operating room, inventing the technique of heart bypasses, because he was a Maronite Catholic.

How about Louis Pasteur? How about Alois Alzheimer? How about Gabriele Fallopio? All Catholics.

Not to mention that the organisation of modern hospitals was entirely a Catholic invention, with religious men and women entering speciality "Hospital Orders", and the endless number of Catholics like St. Elizabeth of Hungary, who founded hospitals, going on two millenia now.

Cheers,
Victoria

vbspurs said...

...and really, why stop at ERs? Maybe Catholics shouldn't serve in the Supreme Court either. Their faith may prevent them from objectively looking at abortion laws.

6p00e5501528028834 said...

fls,

Not that it would matter to a Catholic strictly following the dictates of the Church, but "emergency contraception" is just contraception; it is not an abortifacient.

Are you sure? I was under the impression that it prevented implantation of an already-fertilized ovum.

Peter V. Bella said...

Coakley's idea of civil rights and civil liberties are rather, how shall we say- extremely discriminatory.

She reminds me of some people from history. Hmmmm? Hitler, Mao, Stalin, Roosevelt...

Big Mike said...

I had been hoping to see a top law school professor parse this -- and, frankly, a few other campaign trail topics. Thanks for the analysis.

Johanna Lapp said...

Wait a minute ... the law says I'm ALLOWED to have religious freedom?

Funny, I thought the law ACKNOWLEDGED that human beings already had that inalienable freedom long before that law was written. And the federal government isn't ALLOWED to take that freedom from me or diminish it one iota.

And this from a law school graduate? What the hell are law schools teaching these chowds, Anne?

Johanna Lapp said...

Ann Althouse, same question.

Jason said...

I am a woman first, Catholic second.

Then you are not Catholic.

former law student said...

From womenshealth.gov, they used to think that one of three effects of emergency contraception was thinning the uterine lining, making fertilized eggs less likely to implant. But work done between 1995 and 2000 shows that EC doesn't work that way. Here's a nice summary of the state of research from Princeton.

http://ec.princeton.edu/questions/MOA.pdf

And the federal government isn't ALLOWED to take that freedom from me or diminish it one iota.

Scalia scotched that notion in Employment Division v. Smith. Kennedy hammered the nail in its coffin in City of Boerne v. Flores. Basically laws not targeting religious practice are Constitutional.

Fr Martin Fox said...

Translation: No Catholic need apply.

One hopes more than Catholics have reason to object to this.

JAL said...

Thanks Professor. Good lesson for us non-lawyers here. And, actually for the the MA Attorney General.

Remarkably shallow thinker. (Coakley, that is.)

Now in review -- I may have the exact facts wrong below (correct me with references):

This Coakley is the person who tried to strip an American citizen of their right to a lawyer of their choice and appeal by trying to negotiate his recommended release on parole based on his lawyer's removing himself from the case forever.

This AG Coakley is the person who previously had issued a gag order to two women so if they ever spoke about their trial, conviction and the whole ordeal they went through they would be imprisoned again. (Is Miss Amirault still living with that order? How can that be Consitutional?)

This is the DA who wanted a murder conviction, so she withheld a heart donor's heart -- and life -- from some dying recipient, lest the perp *might* try to cop a manslaughter conviction.

This is the DA who left a family and their 23 month old toddler who was severely burned in her genital area by a sadistic uncle without justice until the mother's legal actions forced her into action. 10 months after the crime.

(Funny how the severe burns and the presence of the uncle were "circumstantial evidence" not to be connected because the child was 2, when the sheer implausibility and bizarreness in with the Amiraults' case didn't deserve a second look.)

And Coakley is now trying to make someone who allows people to have freedom of conscience the bad guy?

This America the Dems seem hell bent to create is some place we don't want to be.

JAL said...

garage So we dig through Coakleys record going back 10 yrs with a fine tooth comb,. And for Brown, we go as far as showing him in a semi nude spread in a magazine. He's hot! Way to keep it real Ann.

Cosmo 1982 garage.

howzerdo said...

Thanks for this excellent post.

Peter V. Bella said...

JAL,
In a radio interview her brother, who was also convicted and is now on parole- no thanks to Coakley- stated that she wants to forget the whole nightmare. She has a good job, a family, and is getting on with her life.

amba said...

A legislator who wants the state to run more of the economy and wants a strong separation of church is threatening to have a much greater effect on religion freedom than a legislator who believes in the strong separation of church and state but also believes in small government.

EXCELLENT point.

Opus One Media said...

I gather Ann wants what's his name to be senator rather than Coakley.

Well and good but all this "as a lawyer she should..." is just crap. If she ran toward a constituency of lawyers she wouldn't get a normal vote and all the others would be stolen.

Separation of church and state of course means something in the legal world but that something is often unclear and totally befuddling to the lay person. Lay people however get the idea that if elected, you rise above your personal religious interests and represent the will of the people who elected you. That's easy for folks to understand and the nuance of separation of church and state in strict legal terms is lost on the populace.

Ann Althouse said...

@Opus I criticized Coakley for assuming separation of church and state was something simple and obvious and uncontested. You're acting like I said the opposite!

Reliapundit said...

U VOTED FOR THIS TURKEY!

Y SO SMART NOW AND SO DUMB ALL LAST YEAR!?!?!?

Synova said...

I think that a lot of people think that they can push the issue and Catholics (and others) will fold. That it's "no big deal" and thus, "no big deal."

Is it really that hard to accommodate those who are religiously opposed to abortion, or even if it's not religion and they just decide on their own that it's murder, is it really *that hard* to accommodate them in an ER? As if there is not someone else available? In what ER would there be no one to administer the pill? It's not like someone working in an ER that is opposed to giving *emergency* care of any sort. There are not moments only between life and death and this religious person refusing to save a life.

The crisis itself is bogus.

But I suppose it's possible that someday someone will pass a law or win an lawsuit saying that will compel a hospital or an individual to go against their religious faith... and when that happens, if it stands, expect the hospitals to close rather than cave, and expect individuals to quit rather than cave, and expect patients to refuse care rather than go to hospitals that murder babies and have them at home instead. And if midwives are compelled by the state to be abortionists, expect people to do without licensed midwives. Because it's a different sort of thing once people no longer have freedom, and Christians are really *good* at being martyrs.

Count on it.

Quaestor said...
This comment has been removed by the author.
Charlie Martin said...

nd Brown? Looks great with a hairy crotch? Good 'nuff?

Garage, are you suggesting that politicians shouldn't have pubic hair, or are under the impression (I assume from personal experience) that having pubic hair is unusual, or is it you're suggesting posing for Cosmopolitan 20 years ago (not 10) is disqualifying but that keeping an innocent man in prison for two more years is not?

Or are you merely saying "Oh God we're losing, maybe this talking point will stick!"

Quaestor said...

I am unsettled on the issue of abortion. (And in case anybody wants to pick a faith-based argument with me one way or the other, I'm an atheist and so that won't wash with me, sorry.) I see merit on both sides.

It seems reasonable to conclude that the sperm, the egg, the zygote, and the embryo up to around six weeks along are not persons. The Pill, condoms, IUDs, RU-486 and other birth control methods which act to forestall pregnancy before implantation have no moral significance whatever. I don't believe in the soul so that doesn't enter into my calculations at all.

As an atheist I don't believe in magic, so the trip down the birth canal has no magic about it -- no miracle occurs during that trip we all have made that confers person-hood. A baby in the womb a few days from natural birth is no less and no more a person than a neonate who has just taken its first breath. Consequently, that which starts out as clearly not a person but achieves person-hood by the time nine months have elapsed from conception must acquire that status gradually. In other words at some point in a pregnancy the fetus is a partial person, i.e. not fully protected but not wantonly kill-able either.

This leads me to further conclude that partial persons have a stake in the abortion issue, a stake which is not addressed in law, except obliquely. Since our legal tradition doesn't admit to the existence of a partial person (except in outdated legal concepts regarding slavery) the fetus has a status much like a animal. In the first trimester the fetus is vermin, kill-able at the whim of the mother. Later on the unborn become more like a game species, like a deer or grouse, kill-able under certain conditions.

By my way of thinking this is wrong. The partial person which is the fetus has a natural and primary interest which is ignored by current law, specifically the imperative to survive and be born.

I don't want to bore the group by stating my entire case here. So let me sum up this way: Currently we have two camps, pro-life and pro-choice. The pro-life oppose abortion in general though some may favor birth control generally and abortion in rare and exception circumstances. The pro-choice side says in effect "if a woman wants an abortion for any reason she should have it," though they are willing to permit some minor restrictions to appease the sensibilities of the public (no blatant infanticide, for example).

My position I have called anti-choice, by which I mean, not that I favor forced abortions, but that I maintain that a woman's desire for an abortion is necessary but NOT SUFFICIENT to obtain same.

Jim said...

You are obviously confusing the old system -- the rule of law -- with the fundamental transformation the Stalinist promised. The new system is the rule of force.

Get used to it. It's only just begun.

JeanneB said...

As Johanna Lapp said above, the most troubling thing Coakley said was that we are "ALLOWED to have that [religious freedom]".

Someone should ask her to explain the words "endowed by their Creator". I imagine her answer would be even more entertaining than the Curt Schilling remarks.

vbspurs said...

I don't want to bore the group by stating my entire case here. So let me sum up this way:

I for one read all of it, and found it very interesting, though my heart stopped when I read "vermin". Still, thanks for the write-up, Quaestor.

Quaestor said...

I hope that you did not conclude that my use of the term implies that I hold any form of human life to be verminous. Far from it. However, in the eyes of the law the first trimester unborn are as nearly defenseless as the most despised animal life.

By way of contrast consider the eggs of certain birds. The newly laid egg of a peregrine falcon has more protection under law than any unborn human in the United States. Simply "disturbing" one of those eggs is a felony. I don't wish to imply that falcon eggs aren't worth the protection afforded by current law, but I do think we do damage to society when we regard our own offspring so callously that the killing of a three month old fetus has the same legal consequence as the death of a rat in a trap.

Brian Macker said...

Martha Coakley is concerned about having the morning after pill available in emergency situations. I was with her that emergency personnel should not be able to withhold this drug in the case of an emergency. That is until I learned that the morning after pill is available as an over the counter drug. I don't think there is an issue here as long as the rape victim can get the drug over the counter, at least in NY, not sure about MA.

Abortions themselves are not emergency situations and that issue can be handled by proper planning.

master cylinder said...

Thanks Jason, I am glad things are so black and white in your world.

Brian Macker said...

Quaestor,

I have some problems with the idea that a very young fetus should be considered something that can be terminated at will by the mother.

Suppose I invent a microwave gun that can be pointed at the stomach of a woman to induce abortion at will. Would you find it disturbing if I sold this gun to white racists and they went around zapping minorities in the stomach with this gun?

I think we can agree that if the mother wants the baby that this has the same effect as murder of the baby after it has grown. In fact, with enough such microwave guns you could commit genocide on an entire race.

Suppose now that this gun was in the hands of the biological father. Would it be right for him to point the gun to terminate the zygote residing in the womb of the mother against her will?

Societies rest on legal conventions and I think our current system is lopsided. I think that killing a fetus without the consent of the biological father is problematic, in the same way that doing so without the mothers consent is.

There are differences due to the fact that the mother carries the child, and the fact that a real abortion is invasive unlike the gun.

So I can see where if the couple is unmarried and were having sex recreationally the default assumption should be that the baby is unintentional and the mother should be able to terminate, but maybe the same is true for the father. Maybe that should be the default agreement. If the woman has casual sex we should assume she agrees to an abortion in the case of a pregnancy.

Furthermore in the case of marriage, then perhaps it should be the other way round. That termination of the pregnancy, except in cases where the mothers health is in jeopardy should require the consent of the father also. That should be the default agreement if the marriage contract doesn't specify otherwise.

former law student said...

If the woman has casual sex we should assume she agrees to an abortion in the case of a pregnancy.

Furthermore in the case of marriage ...the termination of the pregnancy, except in cases where the mothers health is in jeopardy should require the consent of the father also.


In the case of marriage, when husband and wife disagree about terminating their pregnancy, the embryo should immediately be transferred to the husband's uterus.

In the case of -- oxymoronic -- casual sex, the act of penis insertion establishes the man's willingness to support any child produced by that act for the next 22 years.

Brian Macker said...

Former law student,

I guess you'd also be of the opinion that when a renter and a landlord have a current disagreement, despite a prior legal contract, that the renter should be thrown out onto the street. After all he doesn't own a home either.

Maybe the man should be able to get his own uterus, there are surrogate mothers, just like a renter could seek a new apartment. He should also be able to sue the wife for breach of contract, just like the renter can sue the landlord.

"In the case of -- oxymoronic -- casual sex, the act of penis insertion establishes the man's willingness to support any child produced by that act for the next 22 years."

Really, so why doesn't it establish the woman's willingness to support any child produced by the act for 22 years?

Why the double standard?

Brian Macker said...

Also strange that you are willing to conscript the male body to 22 years of labor but not the female body for 9 months.

Quaestor said...

Brian, my reply is somewhat lengthy and will cover new ground vis. my thesis regarding abortion. Please be patient.

My point about the zygote is that it is not a person, while the newborn is clearly person and is so recognized by law. As I wrote in my opening paragraph I consider the abortion question to have merit on both sides. The Pro-choice people say a woman should have control of her own body, to which I reply, agreed, but not absolutely.

No one has absolute control over his own body, and an argument for abortion based on such a claim is bound to collapse, which is why that particular pro-choice talking point is mere bumper sticker stuff. The legal argument is quite different. (BTW, I've coined a few phrases over the years which I hope will outlive me as aphorisms. One of them is "Never trust a political philosophy that can be summarized on a bumper sticker." No one earns my contempt faster than the owner of a car with a tailgate plastered with glib half-witticisms.)

Roe v. Wade turns on the question of privacy. Robert Bork made the mistake of pointing out to the Senate Judiciary Committee that a right to privacy is not explicit in the Constitution. His opponents then used his simple statement of fact to demolish his character and reputation. A right of privacy is implicit in American law and its foundation, English Common Law, going right back to Henry II. A privacy claim weakens, however, when a second party is involved, hence my thesis of the partial person. As the pregnancy advances the partial person in the womb progresses toward person-hood, and consequently the mother's privacy-based Roe v. Wade right to abort diminishes. Or at least, that's what I conclude.

This weakness in Roe v. Wade is understood by the leaders of the abortion rights movement, which is why they oppose in principle any restrictions on abortion. It's quite analogous to the legal position of the slaveholders before the Civil War. They argued that the slave is property, specifically a chattel, over which an owner has absolute right of disposal. Any proposed legislation which might ameliorate the condition of the slaves or touch the slaveholders' claim of absolute property rights over them had to opposed with all necessary vigor and, if need be, violence. They realized that any restriction on slavery would eventually collapse the whole institution. Similar thinking motivates the
abortions right lobby.

Addressing your criticism, Brian, I think your argument bears on the contractual aspects of pregnancy. In some countries a married women cannot obtain a legal abortion without the consent of her husband, the assumption being that the marriage is a contract between a man and a woman to produce a child, and that each has an undivided interest in that child to see that it survives to autonomous adulthood. I agreed that with you in so far as the father ought to have his stake in the pregnancy acknowledged by the law. But unfortunately our culture has decayed to the point that men are virtual supernumeraries, the modern family being a women and her offspring, the father (or increasingly the fathers) being merely a tolerated third party with almost no voice that is his by right.

Brian Macker said...

Quaestor,

No need to apologize about length.

I don't think we are fundamentally at odds over issues you've already covered. I'm just sharing ideas, and am sort of in the same position as you. The issue is complex and the answers are unclear.

I don't think a zygote is a person. I also however do not think it is merely a cell, like a skin cell. It has the potential to become a person, and would so under a natural course of development without intervention.

I think parents owe their child a duty because their actions put the child into a position of vulnerability. Similar to the responsibility you owe someone when your actions disable them. You owe it to them to get them to the point of self sufficiency.

Whether a zygote is considered a child or not is an issue of agreement, more than biology. The fact that a zygote is not self sufficient is no different than the fact a baby that has been born is not self sufficient.

So I see the argument made from lack of self sufficiency to be a non-starter. The fact that a zygote would die without the mother is no different than the fact that a baby would die without it's parents, except for the issue of the ability to transfer care to others.

One could take two views on the issue of transfer of care. One could barbarically say that if a parent decides to abandon a baby to die then even if someone else takes up it's care they cannot sue the parents to provide support. The other view is that the parents owe a duty to the child and can be force to pay for it's upkeep.

If there is such a duty and the parents were the only possible caretakers, as is true when the baby is in the womb, then an abortion cannot be justified on the idea of transfer or abandonment of care.

I think one can then get into how this duty of care arises, and how it can be terminated. Is the duty due to the need to prevent the reasonably expected suffering the parents actions could cause.

It is clear that if you have a baby that is born and it is not fed that it will suffer. The parents that do this are full responsible for the position the baby is in. The baby didn't ask to be born, and took no action it had control of to put it in such a precarious situation.

So perhaps it is the suffering that establishes the duty. If so, then, if a zygote does not suffer when terminated, perhaps the duty can be terminated at that point.

I don't thing a zygote has a right to it's potential anymore than an egg or a sperm does. Every egg and sperm is living and has a potential participation in a lifetime as a human.

I will go one further. Let's suppose that sperm do suffer when they die. Since men have no control over sperm production they are in fact not culpable in causing the suffering. It is in fact a consequence of evolution, not personal action.

Thus any such suffering would NOT cause a corresponding duty to prevent it. There is no causal link between the mental processes and actions of the man with the resulting suffering of the sperm. Men are not guilty of any suffering real or imagined that sperm have.

There is no evidence that sperm, eggs, or zygotes suffer. Suffering is a product of a nervous system. So at this point I do not think any duty falls upon the parents to the zygote prior to it's forming a nervous system capable of suffering.

Thus I have no rational objection to abortion prior to such capability to suffer.

On the other hand an abortion after such capability has arisen seem to me to be a act of cruelty upon a victim who was not responsible for the situation they were place in.

Brian Macker said...

Of course, it might be possible to anesthetize the fetus before abortion, but the same then could be said of a baby that has been born.

These questions do not seem to lead to any clear moral, or legal foundation upon which to make a decision at the boundary cases. Sure a zygote shouldn't be morally wrong to abort, but it's not clear at what stage it becomes wrong, or when it becomes a crime.

Issues of harm to and endangering others also should be taken into account. A parent has a duty to raise his child into a functioning member of society for the sake of harm and endangerment to others. One justification for preventing child abuse and neglect is that the child becomes an unwanted burden and danger to others.

I think that is a moot point in the case where the child is killed by the parents. We cannot outlaw the execution of zygotes, fetuses, or even born children on that account.

Of course, we have other reasons for considering child abuse a crime. Issues that however rest upon the foundation of personhood which it is not clear a fetus has.

Quaestor said...

Brian wrote:

Of course, we have other reasons for considering child abuse a crime. Issues that however rest upon the foundation of personhood which it is not clear a fetus has.

I think we're in 99% agreement. However, I argue that a fetus clearly possesses some degree of person-hood.

Jason said...

master cylinder:

Thanks Jason, I am glad things are so black and white in your world.

Some things are not black and white. Some things are. And I'm perfectly comfortable dealing in shades of grey.

But here's one thing that is black and white:

If you consider yourself a woman first, and a Catholic second, then you are not Catholic.

master cylinder said...

Jason, thanks again. I am well acquainted with the dogmatic Catholic, as most of my family skews that way. Then have it your way, Im not a Catholic.
For me, it feels like an ethnicity, and I just am.
I have done a lot of thinking about it, and I think women have as many rights as men. It is hard to reconcile that with the church.