Abortion and the Constitution--or, my support of States Rights

Great Debates
21

[QUOTE=Bricker]
Aye, there’s the rub.

You would contend that “control her reproductive options” is a right that women have, a natural right.

I would, of course, vigorously disagree. And I might even contend that every human being has a “right to life” and it applies to tiny little unborn human beings.

So which of us is correct? And how do we go about making that determination? If there were a Bog Book o’ Human Rights which we both agreed was definitive and unambiguous, there would be no problem. But there isn’t.
[/QUOTE]

Er…

Bog = Big

But you knew that.

22

[QUOTE=Bricker]
If you kill someone in Texas and move to Florida, should you expect to be arrested?

Well, yes - but only as a fugitive, not for the actual crime. Let’s put it another way - if you kill someone in Texas but Texas decides, for whatever reason, not to prosecute you, and you then move to Florida… you don’t imagine Florida will arrest you, do you?
[/QUOTE]
It’s not a perfectly analogous situation though, since it wouldn’t be a case of Texas being able to arrest and try me and choosing not to, but them not having that option at all. There isn’t a decision for them to make. I imagine though that that doesn’t make a difference.

Thanks for the answers, Sarahfeena and WhyNot (and Bricker).

23

No, a right is a right because it’s given to people by other people. If we all agree that we have a right, we might call it “inalienable” or “God-given”, but then we shouldn’t have a problem getting it into the Constitution via an Amendment. If it’s not that universally recognized, then it’s not worthy of universal protection.

24

[QUOTE=Bricker]
Aye, there’s the rub.

You would contend that “control her reproductive options” is a right that women have, a natural right.

I would, of course, vigorously disagree. And I might even contend that every human being has a “right to life” and it applies to tiny little unborn human beings.

So which of us is correct? And how do we go about making that determination? If there were a Bog Book o’ Human Rights which we both agreed was definitive and unambiguous, there would be no problem. But there isn’t.
[/QUOTE]
That’s the thing…even our Constitution, for as much weight as we give it, was conceived and written by men, who decided that we have certain rights. What constitutes a “right” is very ambiguous, and very, very often what one person would consider a right is directly contradictory to what someone else considers a right (how many pages did we have on the right for cabbies not to pick up someone carrying liquor vs. the right for people with liquor to get a ride?) Whose rights prevail is at issue in many ways. As I said before, I don’t think it would take too much for the Supreme Court to figure out a way to confer rights upon a fetus. So much of a decision like this depends on personal opinion, cultural mores, and a creative legal mind.

There were Supreme Court decisions in favor of slavery, once upon a time, after all.

25

[quoet=WhyNot] No, a right is a right because it’s given to people by other people. If we all agree that we have a right, we might call it “inalienable” or “God-given”, but then we shouldn’t have a problem getting it into the Constitution via an Amendment. If it’s not that universally recognized, then it’s not worthy of universal protection.
[/quote]

While I largely agree with this, I think it makes the case that abortion is not so much an issue of a woman’s rights as an issue of the definition of a person. We could probably universally agree that women (and men) have the right to remove clumps of cells from their bodies. But if that clump of cells might be a person, then that changes things. I have no problem considering a fetus not a person for most of a pregnancy, but I understand that other people don’t. There isn’t an objective way to determine that.

26

John Mace:

No it doesn’t. (I mean, while resolving that question might resolve the related question of abortion and abortion rights for some people, it would not do so for other people, leaving us collectively still in a state of non-agreement).

Several of us (pro-choice folks in various threads across the SDMB years) have stipulated from the outset: yeah, sure, yonder clump of cells is alive, human, and if you insist “a person”. Thus making abortion the killing of a person. Not all killing of persons is murder and we think abortion is one of the handful of situations where killing a person does not constitute murder, or does not necessarily constitute murder. We place the authority for determining whether a given specific elective abortion is necessary and appropriate (and therefore not murder) or not firmly and totally in the hands of the person with the pregnancy.

We hold that abortion is not permissible because it’s not killing / not a baby / not a person / not human / not ishmakabibble, but rather because we believe that it is immoral to force a person to become or remain pregnant involuntarily, and, from that, if a pregnant person finds it necessary and appropriate to terminate the pregnancy, that’s collateral damage, not murder or any other crime.

27

I don’t understand. Do women have an inalienable right to remove a mole from their skin-- ie, would almost everyone agree that the gov’t has no business inerfering? If not, and if we assume that the fetus is not a person, what’s the diff?

28

[QUOTE=Bricker]
Aye, there’s the rub.

You would contend that “control her reproductive options” is a right that women have, a natural right.

I would, of course, vigorously disagree. And I might even contend that every human being has a “right to life” and it applies to tiny little unborn human beings.

So which of us is correct? And how do we go about making that determination? If there were a Bog Book o’ Human Rights which we both agreed was definitive and unambiguous, there would be no problem. But there isn’t.
[/QUOTE]

Your disagreement stands on the issue of human right to life, which you are extending to the fetus. I absolutely agree that humans have a right to life, but what we are differing on is the criteria for “human life.” (For the record, and not to completely derail the thread, I only think abortion should be allowed within the first trimester, likely for similar reasons to your complete opposition to abortion.)

Instead of a Big Book O’Rights, which would be convenient, I admit, we have to rely on logic, the scientific method, and our ability to reason.

Personally, I only see a clash of rights—that is, the right to life v. reproductive rights—after the formation of the cortex and the beginings of cognition on the part of the fetus. At that point, the fetus’ right to life usurps the mother’s reproductive rights (barring medical emergency, of course).

[We can debate this in another thread, I’m already derailing it…]

Anyway, outside of our disagreement on this issue, would you agree that, if something were to be universally considered a “right” within all reason, that no government, federal or otherwise, and no majority, no matter how vast, can remove that right?

I think the establishment of rights (the Bill of Rights in particular) exists to protect us from all forms of tyranny. The tyranny of government as well as the tyranny of an ignorant majority.

29

I’m not terribly interested in engaging in an abortion debate in this thread (although if one continues, I’ll undoubtedly be unable to control myself eventually :smiley: ). Suffice it to say (for now), that if anything is very, very controversial - SO controversial, in fact, that people can’t agree on simple things like the meanings of words, then it’s too controversial to be governed by the federal government. There are too many people, with too many ideas and too many cultures to all be best served by the same rules. If this were not the case, we wouldn’t need states at all, we’d just all lockstep under one federal government.

The feds should take the easy, we-can-all-agree (“all” meaning “enough to get an Amendment passed”) stuff, and states the tricker “this is right for us, if not for those other folks in that other place/culture” stuff.

Thus, IMHO, controversial should by definition not be federal.

30

[QUOTE=John Mace]
I don’t understand. Do women have an inalienable right to remove a mole from their skin-- ie, would almost everyone agree that the gov’t has no business inerfering? If not, and if we assume that the fetus is not a person, what’s the diff?
[/QUOTE]

I’d expect unanimity, as you say, if we get everyone to agree that a fetus is akin to a skin-mole.

Where you don’t get unanimity is if we get everyone to agree, instead, that the fetus is a person. Many of us would still fervently support abortion rights. (And after 8 zillion threads we get kinda tired of re-debating whether or not a fetus is a person).

31

[QUOTE=WhyNot]
I’m not terribly interested in engaging in an abortion debate in this thread (although if one continues, I’ll undoubtedly be unable to control myself eventually :smiley: ). Suffice it to say (for now), that if anything is very, very controversial - SO controversial, in fact, that people can’t agree on simple things like the meanings of words, then it’s too controversial to be governed by the federal government. There are too many people, with too many ideas and too many cultures to all be best served by the same rules. If this were not the case, we wouldn’t need states at all, we’d just all lockstep under one federal government.

The feds should take the easy, we-can-all-agree (“all” meaning “enough to get an Amendment passed”) stuff, and states the tricker “this is right for us, if not for those other folks in that other place/culture” stuff.

Thus, IMHO, controversial should by definition not be federal.
[/QUOTE]
That’s exactly right…this is the entire point of engendering power in the states separately from the feds. It’s actually a blessing (not to use a loaded word!) to have the ability for states to make decisions & laws separately from the others, and not dictated by the feds. I sometimes wonder at the lack of appreciation there seems to be for this system, and the ability & freedom to control life at the local level.

32

(And I’m with you, WhyNot…I don’t think this is a good place for an abortion debate! But it is a great example to use in this case, simply because the opinions are so varied and the language is so ambiguous.)

33

[QUOTE=AHunter3]
I’d expect unanimity, as you say, if we get everyone to agree that a fetus is akin to a skin-mole.

Where you don’t get unanimity is if we get everyone to agree, instead, that the fetus is a person. Many of us would still fervently support abortion rights. (And after 8 zillion threads we get kinda tired of re-debating whether or not a fetus is a person).
[/QUOTE]
On the other hand, with the risk of dragging this into some kind of abortion debate, this seems to illustrate to me what I was saying about the ease of turning “the rights of the mother” into the “rights of the fetus.” Yes, many people, even given some scientificly valid definition that the fetus is a person, would still favor abortion rights. BUT…once that valid definition was made, how much MORE likely is it that the Supreme Court would find that the fetus’ right to life now trumps the mother’s right to her body? This is where the concept of deciding these things at the Federal level, and in the courts, could very well work AGAINST abortion rights. It would only take a few people to have the opinion that the fetus now has its own inalienable right to live, vs. all those many people you are talking about who believe the mother’s rights still comes first. Would you rather have a country where such an issue is NOT decided at the federal level, leaving it more than likely that some states would end the woman’s right to choose, and some would protect the woman’s right to choose, or would you rather have a country where it’s legal everywhere at one moment in time, and could very well become illegal everywhere at the next moment in time?

34

Agreed.

35

[QUOTE=AHunter3]
Agreed.
[/QUOTE]
Sorry…I know you do, since we pretty much agreed from the beginning! Didn’t mean to imply that I was arguing your point…just trying to use it as an illustration.

36

[QUOTE=AHunter3]
I’d expect unanimity, as you say, if we get everyone to agree that a fetus is akin to a skin-mole.

Where you don’t get unanimity is if we get everyone to agree, instead, that the fetus is a person. Many of us would still fervently support abortion rights. (And after 8 zillion threads we get kinda tired of re-debating whether or not a fetus is a person).
[/QUOTE]

No, because inalienable rights apply to all persons. If you say a fetus is a person, it automatically gets the right to life. If it doesn’t, then it isn’t a person. The tricky part is when the life of the mother is threatened by the fetus, but generally speaking, I think we’d still be OK in deciding in favor of the mother.

37

[QUOTE=WhyNot]
No, a right is a right because it’s given to people by other people. If we all agree that we have a right, we might call it “inalienable” or “God-given”, but then we shouldn’t have a problem getting it into the Constitution via an Amendment. If it’s not that universally recognized, then it’s not worthy of universal protection.
[/QUOTE]
I agree with this. Once something is enshrined in the Constitution, it may develop an aura of sacredness, but that’s effect, not cause. As far as society and government are concerned, something is a right because enough people recognize it. Period. Morality and legality may overlap, but they needn’t. That was my bitch with Roe v. Wade, BTW. There is no sane reading of the Constitution that supports this decision.

That’s not the same as saying that there are no strong philosophical arguments in favor of abortion rights (I don’t believe there are, but that’s a matter for another thread ;)). It just means that as far as the Constitution was concerned, the issue of abortions was not addressed and consequently was a matter for the states. If the right to abortions was important enough to enough people to make it the law of the entire land, then an amendment would have rectified that void. Would that have been appropriate? Again, from a legal perspective, from a “voice of the people” perspective, yes, by definition it would have been constitutionally satisfactory, as much as I would have been dismayed by the outcome.

38

[QUOTE=Sarahfeena]
I sometimes wonder at the lack of appreciation there seems to be for this system, and the ability & freedom to control life at the local level.
[/QUOTE]

It cuts both ways, though. States could (and did) have vastly different laws relating to racial segragation, gay rights, and protections for women. Are you willing to accept that states have the right to set up those kind of laws without the interference of the Federal government?

39

[QUOTE=Telemark]
It cuts both ways, though. States could (and did) have vastly different laws relating to racial segragation, gay rights, and protections for women. Are you willing to accept that states have the right to set up those kind of laws without the interference of the Federal government?
[/QUOTE]

Yes, until enough support is found nationwide to make a Constitutional Amendment about it, as the 14th Amendment did.

Or unless, of course, it’s written in the opening lines of the Declaration of Independance: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

Catchy tune, innit?

40

[QUOTE=John Mace]
No, because inalienable rights apply to all persons. If you say a fetus is a person, it automatically gets the right to life. If it doesn’t, then it isn’t a person. The tricky part is when the life of the mother is threatened by the fetus, but generally speaking, I think we’d still be OK in deciding in favor of the mother.
[/QUOTE]

But the even-more-inalienable right of a woman to decide to terminate a pregnancy is one I find more fundamental than that, see?

There are many rights more fundamental than the mere right to life based on being a person. I might feel, for instance, that I have not merely a right but a moral obligation to stop you from torturing someone, even if the only way to accomplish that is to kill you, even if the person you were torturing were not at significant risk of being killed by what you were doing to them.