Darrell Jordan, who also served as president of the Texas bar in that era, said the dispute transcended individuals' personal beliefs on abortion. Many lawyers, in Texas and elsewhere, he said, simply believed it was wrong for the national bar association to take a strong position on a political issue. Mr. Jordan said that even some supporters of abortion rights, including himself, shared the view that it was "inappropriate" to have that be the "official position of the legal profession," adding that many lawyers left the bar association over the issue.I wish we could be clearer in distinguishing abortion and abortion rights. It is possible to support abortion rights and still be opposed to abortion (in the sense of finding it morally wrong). And it is possible not to have a moral objection to abortion but nevertheless think that the Court went wrong when if found abortion rights in the Constitution. And there is complexity even within support for abortion rights. One could easily find no right in the Constitution, but think legislatures should not criminalize it. One could find a right in the Constitution, but think there is room for some regulation. And questions would still remain about whether that regulation is desirable or how much of it is appropriate.
Mr. Jordan said it would be "unfair" to read Ms. Miers's role in this effort as a sign of her opposition to abortion. He said, "I know Harriet as well as anyone could, and I'd have a hard time telling you what her beliefs are on that subject.
We hear so much from those who have black and white positions on abortion. I tend to think Miers is not one of them. Indeed, I think maybe Bush isn't one of them.
UPDATE: Talk Left on Miers and abortion:
[A]n interview with Pastor Ron Key, who until a few weeks ago, was Ms. Miers' pastor at the Valley View Christian Church in Dallas ... shows she's very faith based, and that her Church is pro-life and against gay marriages. But, Pastor Key admits he has not talked to her about those issues. On the other hand, he says she is the same kind of person as Priscilla Owen and that they are good friends.Well observed. And consider that Miers, unlike, say, Roberts, does not seem to have spent her life gunning for a Supreme Court appointment.
I don't think anyone really doubts that Ms. Miers is pro-life, but if she has gone through her career not publicly stating her view, maybe she will not let her personal views affect her rulings as a Judge. I'm also getting tired of the abortion debate. It's not the only important issue. I'm far more concerned with her position on criminal justice and civil liberties issues....
I have not seen any direct quote attributed to Ms. Miers in which she publicly states she is personally pro-life or believes Roe v. Wade was wrongly decided.
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We also know, according to NPR, that she was in favor of preserving the anti-sodomy law in Texas, which was recently ruled unconstitutional 6-3.
- she doesnt' look like the kind of person that would extract a fetus from a mother and cast it in a garbage can, or endorse such doings- but hey, looks can be deceiving -
I'm not quite sure how one can be opposed to abortion morally, but support abortion rights. It seems to me that the only really compelling reason to be pro-life is because you think that the unborn child is a valuable human life, and thus, that abortion the child constitutes murder. You may infer from the framing of this point that I'm pro-life. ;)
So anyway, although I suppose it's possible to be anti-abortion without having the above views, I would tend to find that an indefensibly mysoginist position. So if one is anti-abortion because one considers it to be murder, how can one possibly defend the position of being pro-choice politically? How is such a position distinguishable from a statement that murdering an adult is offensive to your own beliefs, but you wouldn't want to impose that view on anyone else with the force of law?
I think that it's important to note that there are differences between pro-life stances. My own view is that I don't know when life begins, and in the interest of erring on the side of life, I arbitrarily pick implantation as the point past which abortion becomes impermissable. Some pro-life people disagree - they believe in the whole anti-contraception life-begins-at-birth thing, which I don't agree with, for various reasons. Likewise, at the other end, there are people who think abortion should always and under all circumstances be forbidden, while my view is that there should always be the legal potential for an exception for the life of the mother. The angle, as far as I'm concerned, is this: to me, being pro-life is not a statement detracting from the worth of a woman's life or her choices; rather, it is a statement of the value of the child's life, which must also be taken into account rather than discarded. It isn't about choice - it ceases to be a unilateral choice the moment the choice will take the life of a child.
Simon: "I'm not quite sure how one can be opposed to abortion morally, but support abortion rights." Well, it's hard to talk about, but it happens to be the most commonly held position, I think.
I love this quote from the article from a "liberal Democrat" who used to be on the Dallas City Council,
"She's not a Scalia," Ms. Ragsdale said. "She's not going to legislate from the court. I believe she will follow the law."
Oh right: THAT'S what he does.
Simon:
It's possible to be anti-something on moral grounds and think that as a practical matter it can't or shouldn't be outlawed.
I happen to think abortion is (with some big exceptions) the killing of a human being so I would tend to agree with you.
However, I think smoking pot recreationally is immoral, but I think it should be legalized (or at least let the State's experiment). Sodomy, adultery, many of the old ecclesiastical offenses are immoralities, but they are unenforceable in practice especially in a pluralistic society.
We do of course legislate morality -- everyday. Unfortunately what we as a culture define as immoral is less the product of consensus.
You can also support abortion rights (which is another way to say that a fetus is not a human deserving of rights) but support the overturning of Roe because the decision is non-democratic and is based on false judicial reasoning. If you want to support "abortion rights," go to your state legislature and vote on it.
It is possible to support abortion rights and still be opposed to abortion (in the sense of finding it morally wrong).
I think I know what Ann is getting at here. I think a majority of women would say on this subject, "I would never personally have an abortion, but I think it's important that abortion remain legal." But I also agree with Simon and others, that such a position is morally inconsistent. It's another situation in which people, for whatever reason, are saying, "I believe X is morally correct, but only for me, and I wouldn't dream of imposing my beliefs on anyone else." I always want to ask people who think this way, why not? We're not talking about some superficial aspect of our culture like dress or eating habits -- we're talking about the most important aspect of our culture, life itself. Most people just ignore the issue and spend their lives ignoring that buzz of cognitive dissonance that starts up whenever the topic is broached.
And it is possible not to have a moral objection to abortion but nevertheless think that the Court went wrong when if found abortion rights in the Constitution.
Now this statement, I completely agree with. Regardless of your opinion on the morality of abortion, most anyone would recognize that Roe v Wade was a bad decision, scientifically/medically, and legally. The trimester distinction drawn in the decision is outdated now: younger and younger premies are surviving these days. The legal issues are too numerous to get into here.
Opposed to abortion morally but support abortion rights? Simple really: one can hold the position that they don't believe abortion is right, but that they also don't believe that have the right to decide other people's morality and prohibit them from having abortions.
I agree with Ann that this may be one of the most commonly held positions about abortion, and is a sensible position. Just because abortion is legal doesn't mean people will have an abortion if they believe it is wrong: it simply means people have a real choice
Comoing from a country where abortion is illiegal I can promise you it's far safer to have legal, clean abortion than to criminalise it. And of course you could have abortion without having a constitutional right to abortion, provided the same constitution didn't give the unborn child a right to life (which ours does here in Ireland)
The question for Supreme Court judges is whether or not they support the doctrine of precedent. If they do then Roe v Wade is safe.It's not about personal moral judgments, it's about acceptance of a basic tenet of the common law system
Fiona
I wouldn't presume to tell people how to think or what to believe.
I just don't think they should be allowed to kill babies.
But JBlog, saying you think they shouldn't be allowed to kill babies is equivalen enforcing your view that abortion=murder on people if you want that attitude to be put into law.
That's the difference between prohibiting something morally perilous and allowing it: if you prohibit it you enforce a moral judgment on people. If you allow it you allow for people to exercise their own moral judgment
fdelondras,
Yes, I think that's exactly the point. All law is moral judgment. Most pro-lifers have a hard time understanding how one person should have to right to decide whether another lives or dies, especially when the person in question is totally defenseless.
We criminalize bank robbery because we believe that it's wrong. There are people who disagree, but we don't allow them to choose for themselves the morality of robbery. And it's irrelevant whether robbery would be safer for the robbers without armed guards and police - if it's morally wrong and illegal, then anyone who chooses to break the law does so at their own risk.
I think the question ultimately is: What are the unborn?
If they're not human, then no justification for abortion is needed. If the unborn are human beings, then what justification for abortion is possible (absent extreme circumstances)? Think through what would justify a mother killing her child in any other circumstance...
I think Joan and Henry are pretty much on the money. I mean, I don't think it's satisfactory to simply say "it's a choice I wouldn't want to make, but I wouldn't want to force it on others." Why wouldn't you want to make that choice yourself? What's the reason? What possible rationale could there be for being anti-abortion OTHER than because EITHER you want to control what women do with their bodies, OR because you think that it is the murder of a child. What else is there to offer as a rationale for why one might oppose abortion?
It logically follows that, if the only valid reason to oppose abortion is a belief that it is murder, a) how can you possibly countenance it in the wider context of society, and b) how can you possibly compare the act of abortion, which murders a defenseless child, to smoking pot, which is a victimless act, which I would personally support the legalization of. If one believes that abortion is killing a child, explain how a refusal to speak out against it is not a tacit acceptance of what is quite literally genocide?
I would never kill someone in cold blood, and I don't believe anyone else ought to either. I don't think that's a very controversial position to take. How is that to be distinguished from being "personally opposed but politically latitudinarian"? I could scarcely believe it when Kerry said those words during the debates, and at that moment, what remained of my goodwill for him flew out of the window.
I don't want to sound too doctrinaire about this; most of the questions I asked above are not meant to be rhetorical. I think they are all reasonable questions to be asked, and to which an answer is warranted.
To have an abortion would be the most difficult choice I would ever demand to have the right to make.
I'm a true believer in the power of language, and in the utility we as humans find in it as a way to relate to each other on all knids of matters. The abortion controversy stretches this power almost to its limits, however. The key is, as I've heard many times, that we all continue to strive to discuss it with all our intellectual might, but with none of our personal weakness.
We hear so much from those who have black and white positions on abortion. I tend to think Miers is not one of them.
Indeed, few people have black and white positions on anything anymore. One of the earlier commenters said something to the effect of "I wouldn't do X myself, but I wouldn't tell anyone else that it's wrong for them." Not that I'm saying it's wrong, but doesn't that pretty much sum up American views on morality?
It's as though we've abandoned a house infested with the squirrels of dogma, only to be chased by the bear of relativism into a pit of moral quicksand.
I was the one who brought up the "I wouldn't do X myself..." business, my point being, it depends on what X is, of course. If X is "get a tattoo" or "wear plaid", then X is really something that should not be imposed on others. But many Americans today push acceptance of "diversity" past all limits, to the point where we are expected to never render judgement against anything, including things we clearly ought to be condemning.
So I'll go out on that limb and say yes, sometimes it is wrong to refrain from imposing our morals on others. This tendency to accept anything and everything has mushroomed into a huge societal problem.
It's as though we've abandoned a house infested with the squirrels of dogma, only to be chased by the bear of relativism into a pit of moral quicksand.
Brilliant!
By the way, I wanted to add to my previous comments: it wouldn't satisfy me even if Miers was staunchly pro-life. It's not enough to prefer one kind of results rather than another; a nominee has to be willing to overturn Roe, but a nominee also has to be willing to overturn a Federal ban on abortion as ultra vires. Accord In Re Harriet Miers, 10/3/05, part I.
tcd,
I've seen those t-shirts and signs, too: "Keep your laws off my body!" I always want to ask: "Which laws?" The law against rape? Murder? Assault?
Laws restrict choice, yes - but that's not always a bad thing. Nobody has an absoute right to do whatever they want with their own body. But even if we did, that argument neglects an important fact:
The fetus is not part of the woman's body.
Every fetus is genetically unique from its mother. Many have a different blood type, and at least half are a different sex. This isn't tonsils or an appendix: it's a living being that if not killed will grow to human adulthood. "Fetus" is simply a term (like baby, toddler, or teen) for a human at a different stage of development than you or I.
You started as an embryo then grew to be a fetus and a newborn. When did your mother lose the right to kill you? When you were born? Should women have the unrestricted right to abortion until the moment of delivery?
Can the fetus develop independently of the woman's body? Can the fetus survive outside the woman's womb?
Did Christopher Reeve deserve all that life-saving technology when he couldn't breathe on his own?
Do you have a uterus, Jeff?
I wasn't aware that in a constituional republic one had to be part of a special group to make laws. I know - It's a ueterine thing. I wouldn't understand.
Don't presume to give me a biology lesson.
Your comment about a woman's body clearly suggested that you think the fetus is part of the woman and belongs to her, part and parcel. You didn't answer my question: At what point is this no longer true? Only at the moment of delivery? You have to draw the line somewhere - where is it?
Do you really think it's reasonable that a woman can go to the hospital to deliver her baby at 39 weeks then change her mind at the last minute and request an abortion instead? Why does the mother's intent towards the baby determine its right to life?
Maybe there should be laws to legislate what you do with your penis.
I seem to recall there are quite a few of those already, and a good number which protect your body while limiting my use of mine.
I would love to continue the discussion but I have to take the kids to soccer games - that is, assuming their mother hasn't killed them. Don't think there aren't days...
Have we all seen this report of a brief from Gonzales to the Supreme Court re: the 8th circuit decision on the Parital-Birth Abortion Ban Act??
http://news.findlaw.com/andrews/h/hea/20051004/20051004gonzales.html
Jim,
I haven't missed why Roe is wrong. From the discussions on Althouse, it seems that just about everyone agrees that it was terrible jurisprudence. The separate argument here is about the moral issue of abortion.
Would I have wanted Dred Scott overturned because it was legally wrong or because it was morally wrong? Yes. Both.
The nation was founded on the basis of the laws of Nature and Nature's God and the belief that all men are endowed by their Creator with inalienable rights to life, liberty and the pursuit of happiness. Governments are established to secure and maintain these rights, and secondary laws flow down from those.
tcd,
What questions?
Perhaps my illustration wasnt't clear. Forget Christopher Reeve. Do newborns have a right to food and protection? If so, why? They can't provide for themselves. They are totally dependent on others. Can I kill a 1-year old because it isn't self-sufficient? Why not?
At the point when the fetus no longer depends on the woman's uterus for survival, when it is viable outside of the womb, when it is actually outside of the womb.
Three different things. Which is it? A fetus is viable at 24 weeks. Can the mother still kill it then?
Every OB-GYN we've known says that most gestations are 40 weeks (9 months is 40 weeks). Why does the mother have a right to kill the child up until then?
Fetuses are parasites? You mean, like bacteria? Can you really believe that?
Your snide ad hominems add nothing to your argument and simply demonstrate intellectual bankruptcy. Now if you'll excuse me again, I have to pick up the kids from soccer since my "barefoot" wife (who graduated with honors from a top national university) is following her own pursuits this evening (gasp!).
tcd,
I only mentioned my wife's education because you automatically (and wrongly) assumed things about her and me that are not true. I'm not the one attacking other people's character, assigning false motives, or making snide, scornful, and uninformed comments.
I mentioned Christopher Reeve to take your argument to its logical conclusion. Your point is that a person's ability to survive self-sufficiently is what gives them the right to life. Fetuses, newborns, quadraplegics, the comatose, and those dependent on medicines or medical technology to survive are not self-supporting and by your argument thus have no right to life.
You want to apply a standard to one unique category of people but not to others. This is totally inconsistent. You've put "fetus" in a special category that doesn't deserve life unless it is self-sufficient, but you refuse to apply that criterion to others. Why? Why is self-sufficiency what determines a right to life for some people but not for others?
You've told me that I have no right to make laws that affect others' lives without being part of that group. What country are you from?
Jim,
Slavery was both immoral and a betrayal of the founding legal principles of our nation.
Your repsonse is a complete non sequitur. Explain how you get that from what I wrote.
tcd,
Are we talking about rape or women who are pregnant because of choices they voluntarily made? You want the right to do whatever you want with your body but not the responsibility to deal with the consequences of that free choice. Welcome to adulthood.
The argument is still: What are the unborn? You think they're "parasites" so there's probably not much room for discussion here.
But in the exact same way as it has with fetuses, nature has equipped babies to need clothing, food and protection, and for mothers to provide them. Does the mother of a newborn have any moral responsibility to care for a completely dependent being, or can she chuck it in the garbage? If not, why not? Why is she free to kill a totally dependent child in her womb but not a totally dependent child in her arms?
And just like a fetus, the diabled person's existence most certainly does weigh against another person's rights and freedom. Who cares for the disabled? People who surrender their freedom and autonomy to care for them.
I'm from a country where 5 male justices created a right to abortion. I guess Roe shouldn't stand since uterine-less males imposed their morality on the rest of us.
All law is the imposition of a moral view. And in the US, you don't have to be black to make laws that affect blacks, nor have a uterus to make laws that affect women.
BTW - Does the news that preemies can survive at 24 weeks mean you're in favor of outlawing abortion after that point?
Jim,
Okay, I understand where you're coming from. But "You don't believe in the rule of law," and "Have you read the Constitution?" That's just needlessly inflammatory.
Anyway, I would argue that slavery was unconstitutional due to rights guaranteed in the 1st, 2nd, 4th, 9th and 10th amendments which slavery would necessarily deprive; but most especially in the 5th:
"No person shall ... be deprived of life, liberty, or property, without due process of law."
Unless there was a federal law specifically guaranteeing a right of slavery, slavery was clearly unconstitutional according to a plain reading of the 5th Admt.
Jim,
Oh, and the rights guaranteed in the 3rd, 6th, 7th and 8th amendments were all denied to slaves, too. I'm not sure that any amendment in the Bill of Rights could not be in direct conflict with slavery.
What difference does it make if it's rape or voluntary choice?
Because you keep saying that the unborn are "parasites" that no woman is obligated to care for. The problem is, the mother (and father) freely chose to create life, but don't want the responsibility of caring for the child they've created. The child didn't ask to be conceived. Why punish it?
What the hell do you know about women and the choices that they make?
I know that abortion is ending a human life.
Why the hell should you or anyone else have a say in regards to the consequences of my or another person's personal choices such as reproductive choices.
We're not talking about birth control but ending a human life. The law traditionally has had something to say about that.
What do the consequences of my pregnancy or abortion have to do with you or your family? How is a woman deciding to terminate her pregnancy affect you and your family? Why should you have a say in her decision?
See above. We're not talking about removing a "parasite" but ending a life. You think that's a private decision that nobody else has any vested interest in? How cavalier and condescending can you be? If nothing else, we're 40 million citizens short, thanks to Roe - citizens who could be voting, paying taxes, writing symphonies, building businesses or whatever they wanted - if they hadn't been killed before they had a chance to.
Are you paying for her abortion?
Irrelevant, but in point of fact, I am forced to subsidize women's abortions through government redistribution of taxes to Planned Parenthood. It's quite a money-maker for PP. Check out the facts some time.
Will you be supporting her baby?
Irrelevant as to whether one has a right to live. "I'll kill this child unless you pay me not to." What kind of logic is that?
As for preemies, if they are already birthed (outside of the womb), then you really can't abort them can you?
Thankfully, no. But you didn't answer the question. If survivability and lack of dependence on others are your criteria for right to life, 24-week conception fetuses meet them. So should there be a right to abortion after fetal viability? If so, on what grounds?
Please also answer my question about newborns. They are just as totally dependent, demanding and inconvenient as fetuses. They cannot survive without their mothers caring for them at loss of their independence. Why do they have a right to life?
What difference does it make if it's rape or voluntary choice?
This is the hardest question to which being pro life requires an answer. The answer, I fear, is morally compelled, despite its repugnance to all common sense. If abortion is a statement of the worth of a child's life, born or unborn, then that statement exists independent of the parentage or the circumstances of conception. Sadly, the answer to your question must be, "none."
I would prefer it if there was another answer available. I would welcome someone offering an alternative view in which an exception could be made in such circumstances. But the same logic which leads one to be pro-life in the first place, in my view, inexorably leads one to reject exceptions for rape.
It's not a nice aspect, I just don't see where the escape clause lies, and thus how one can honestly and consistently hold any other position.
tcd,
"What we got here is ... failure to communicate."
I'm simply asking you to consider the criteria you've established for a right to life and apply it to others to see if it is consistent.
As I understand it, your criteria are survivability and self-sufficiency. Fetuses don't meet those criteria, so they don't have a right to life. I've pointed out that newborns don't meet your criteria either, and asked you, based on your criteria, why newborns have a right to life.
This is not irrelevant at all. I'm trying to get you to explain on what basis you determine whether someone has a right to live. You've said it has to do with being self-sufficient and not depending on others to exist. But those criteria would also condemn newborns, the diabled and many others.
Can you explain to me why fetuses who are dependent do not have a right to life while newborns and the disabled who are dependent do?
Similarly, I've pointed out that fetuses reach viability (ability for life outside the womb) at around 24 weeks. Since fetuses at 24 weeks can survive without living inside their mothers, why would some fetuses have a right to life and others not? Why would the location determine whether a fetus is a person or a parasite?
No, I just think no woman should have the right of control over anothers' body.
But if your argument is inconsistent and logically flawed, you can always resort to ad hominems, as you've done several times already.
It sounds like you have no answers to the questions I've raised, so I think this ends the discussion.
Jim:
As to your assertion that "slavery was clearly unconstitutional according to a plain reading of the 5th Admt." I assume you are talking about the Constitution as it was prior to the civil war amendments. If so, (sorry I don't know how to say this in a "needlessly inflammatory" manner) you are wrong.
One thing I'd say regarding this issue is to look to the textual and structural evidence available. The first thing to note is that the bill of rights applied only to the Federal government prior to the 14th amendment, i.e., its provisions were not enforcable against the states. Barron v. Baltimore, 32 U.S. 243, 250-1 (1833) ("We are of opinion, that the provision in the fifth amendment to the constitution...is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states"). Therefore, if the bill of rights made slavery unconstitutional, it made it so only in territory occupied by the Federal government, principally the District of Columbia, and the pre-statehood territories.
Having established that we are dealing only with those areas outside of the sovereignty of individual states, let us consider the language of the 5th amendment:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
(Emphasis added). Note: the protections of the fifth amendment apply to persons, not citizens. Cf. Art. I §2 Cl. 3:
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.
(Emphasis added). There seems little doubt that the "other persons" referred to slaves, which would seem to my mind to suggest that slaves were considered persons in the lexicon of the time.
This is far from a conclusive analysis, but at first glance, I would have to say that Jeff's argument survives initial scrutiny, to a certain extent.
I do not see how one can construct an originalist argument against slavery.
I think you can construct several originalist arguments for such a proposition. You could construct an original intent argument - which I would reject, because I don't buy into original intent - that several of the framers were vehemently opposed to slavery, and fully intended to do everything possible to abolish slavery, including slipping language which might subtly do so. Of course, that argument then runs afoul of the fact that many other Framers were vehemently in favor of slavery. There isn't a coherent original intent, which is precisely why no serious originalist believes in the original intent as controlling.
Or, you could construct an original meaning argument. To do this, it seems to me, you would need to establish only that the term "persons" included slaves, and if so, provide some sort of support for the proposition that the fifth amendment can be read reasonably to apply to all persons, not just all white male property owners (for example, demonstrating that the fifth amendment in practise protected women, foreigners and the like, if indeed it did). It is not necessary to ask why the pro-slavery forces would allow such language into the bill of rights, any more than it is necessary to ask why the pro-segregation forces would allow language that outlawed segregation into the 14th amendment.
I'm not saying that such an analysis would ultimately be consistent or convincing, but it's certainly possible to set out what information one would need to construct the argument.
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