To clarify, the past few responses have been clearly on the legal side. The fundamental nature of a crime is not, per se, that the state is interested in the victim, but rather that the crime is offensive to the state. That’s why the government is the prosecuting party in criminal cases, instead of the victim.
But morally, yeah. Yet another reason that I distinguish legal authority from moral authority. Laws embed moral commitments, and Alabama is admittedly hypocritical.
~Max
That interest, that “moral” decision, is, IMO, being based by those states entirely on a definition of “a human life begins at conception” which is entirely based on religious belief.
Yes, I’m saying there’s no “unborn child.” A pregnant person can certainly call it that, but it’s a fetus – that’s the scientific, non-religious, neutral term, which is the only term that the law should care about. Children have rights that fetuses don’t have.
I agree with you that this SCOTUS disagrees with me, and they’re the controlling opinion, obviously, but this thread is about what should be, not what is.
Jews have sued about abortion bans in general. Here’s an example:
https://www.npr.org/2024/06/29/nx-s1-5023662/kentucky-judge-jewish-abortion-lawsuit
Admitted for the sake of argument. So what?
~Max
So, it becomes, arguably, a violation of the First Amendment.
You mean the Fourteenth Amendment?
~Max
No, I don’t, I don’t think, though you are clearly more of a constitutional scholar than I am. By creating a law which as, as its underpinning, a religious belief, a state is thus imposing that religious belief on those whose religions have different beliefs, and those who have no religion at all.
I agree – just like a law that says that I can’t be open because it’s the Sabbath may impinge on my beliefs or non-beliefs, a law that says I can’t have an abortion because of a religious concept like an unborn child seems to equally impinge.
Here’s the First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The unfortunate reality is that on its own, it only prohibits Congress from doing stuff. Even then, Congress had the power to prohibit bigamy. Congress did so and by legislative fiat, disincorporated (destroyed the legal entity of) the Mormon Church and claimed all of its land in the Utah Territory for the federal government. Enter the Fourteenth Amendment, section 1:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The Supreme Court has held that some liberties are so fundamental that State denial would mean the end of democratically ordered society–specifically, the rule of law necessary to have process of law to begin with. The right to abortion care is not such a liberty. The right to freedom of religious belief is such a liberty. The right to free exercise of religion can be such a liberty, if the State’s interests in exercising its police powers (to protect public morals, safety, and health) do not override the individual liberty interest. The State’s interests prevail when: (1) the law is neutral and (2) generally applicable. Hence, the State may ban peyote across the board and Native American groups who use peyote for religious purposes may be held criminally liable; but where the State allows for exceptions, and is thus not generally applicable, it may not force a foster care agency to certify same-sex couples as foster parents.
~Max
Thanks for the clarification. So, yeah, then, how does a state ban on abortions, based on what is clearly a religiously-held belief* that “life begins at conception,” not violate the 14th?
*- I note that the pro-life side does try to provide scientific support for their case, but that, IMHO, is simply looking for a fig leaf for such laws.
Plus there’s the living constitution thing. If somehow an amendment passed, SCOTUS could get clever and read in something almost wholly unimagined by the framer, such as that the amendment isn’t self-executing.
The Dobbs Court held that a woman’s right to abortion wasn’t fundamental to our concept of ordered liberty in a democratic society. It performed a “history and traditions” test–how objective their analysis was is hotly debated. Women very early on in pregnancy (pre-quickening) had access to abortions for a long time, even if it was frowned upon. Women could drink while pregnant without facing criminal liability. But the basic idea is that society won’t break down without a federal right to abortion because history says so. It’s a high bar, and not a backdoor to make the law comply with modern morality. Society didn’t break down when women couldn’t vote. Society did break down due to State-sanctioned chattel slavery.
Suppose a woman has a religious duty to perform an abortion, or to destroy fertilized eggs in the context of IVF, then that falls under the liberty to the two-part test I mentioned above. Is the State law neutral and generally applicable? If so, the State wins; if not, the woman wins.
Suppose a citizen believes that life begins at quickening rather than conception. The State says life begins at conception. This is much more difficult because the State, by saying things, is not violating the citizen’s liberty to believe whatever they want. The general line is that the State may acknowledge religion, but it may not delegate power to religious bodies nor coerce people to participate. There are a couple potential liberty interests involved. One, if the State compels or coerces a citizen to do or say something, then that implicates the citizen’s interest as above. For conduct, like attending a religious service, the courts apply the above-mentioned two-part test. Freedom of expression is considered a more fundamental liberty interest that can only be overcome in very narrow circumstances, such as a condition of government employment. States cannot force people to recite religious creeds. Two, if the State’s declaration is within the bounds of history and tradition, it is allowed; if it is not, the State must provide a rational, secular basis. Thus, courts have upheld State practices of opening legislative sessions with a prayer invoking God, displaying religious monuments on public property, providing tax breaks for non-profits who happened to be religious institutions, and invoking God in ceremonial situations; courts have struck down State practices mandating prayer in public school, posting religious materials in public classrooms, religious tests for office, bans on teaching evolution, and empowering a church to ‘veto’ liquor licenses. I’m very confident that a State can declare life begins at conception, or that its policy is to protect “unborn children.” There’s a lot of history where states defined personhood for purposes of inheritance, tort, and homicide. There would be more of a problem if the State said life begins when God ensouls a child at conception, and required people to affirm this statement of faith.
~Max
If kratos holds regardless of consent, then it isn’t just the “realism beneath” the compact, it’s the real foundation, and the compact is just … decoration or even better, a cover story. It can’t be an actual moral foundation at all if it’s a fiction.
If “legitimacy” just means “moral” and morality doesn’t constrain power, then you’ve saying authority is just successful domination with a flattering label. So your answer is actually “No” and “No”.
Quite the opposite. Legitimacy just means successful domination; morality only constrains power when individuals so choose. You can have legitimate authority which is immoral, moral authority which is illegitimate, legitimate authority which is moral, and moral authority which is legitimate.
~Max
So basically we should forget about the law and democracy and all that, and base law on who is willing and able to kill and destroy more? Because this line of argument doesn’t support “democracy”, it supports terrorism and implicitly argues that the mistake women are making is that they don’t have a reputation for bombings and assassinations to get their way.
Law is based on who is willing and able to kill and destroy more, but that is not my argument for following the law. That’s my starting point of what law is, fundamentally.
~Max
If all that matters is the willingness to kill, then democracy is beside the point and there’s no reason to follow the law other than fear that the other side will kill you.
I do not think “all that matters is the willingness to kill.” While I think kratos is the foundation of political legitimacy, and law is an expression of sovereign political will, a lot more than fear of death goes into the law. Especially in democratic societies where the structure of government itself attempts to make the lawmaking process more responsive to the moral judgements of the governed.
~Max
If “democracy” means people can be tortured and killed by bigots with the backing of the government, then it is simply evil and should not exist. A government that is simply a tool of sadism is worse than none at all.
I prefer a version of democracy that isn’t evil.
Oh, but I agree. Except…
I’m not there. At least not yet. On the whole, I still think the U.S. is better than no government at all.
~Max