Razorsharp, you misunderstand Roe v. Wade. As a fetus approaches viability (defined in Roe as the third trimester), the state’s interest in the health and safety of the fetus prevails over those of the mother’s interest (more correctly, the doctor*). Thus, if a state wishes to criminalize, and criminalize as murder, the killing of a fetus, they have every right to do so.
If you want to change this result, you’ve got to change the precedent set by Roe.
Sua
*Most people are not aware, but Roe v. Wade is much more about a doctor’s right to provide medical treatment free of government interference than about a woman’s right to choose.
Pardon the hijack - this debate is a bit too politically and religiously charged for my liking, and frankly I’m not convinced my own position is “correct”. So, I thought I’d throw in an interesting tidbit.
Patrick Henry, the man who is best known for the quote “Give me liberty, or give me death!”, also wrote the following: “Liberty, without restraint, is no liberty at all.”
A woman can have an operation to remove her kidney, and no harm, no foul.
If someone hurts the woman, and as a result, she loses one of her kidneys, then that should carry a penalty.
My question is, morally (not legally), if you don’t believe that life begins at conception, and that the fetus at, say, 3 weeks, is just tissue, how different is a kidney from a fetus?
That is, if you hurt a woman and she loses her 3-week old fetus or her kidney, should the punishment for the loss of the fetus be more than the punishment for the loss of the kidney?
Again, not according to Roe. Under Roe, the state always has an interest in the health and safety of the fetus. At different points in the pregnancy, those interests may be counterweighed by other interests, but they always exist. Thus, the killing of a fetus is a crime committed against the interests of the state.
One may quibble about calling it murder (and I agree that it is a poor choice of words), but the criminalization of the act is wholly proper without regard to the will of the woman carrying the fetus.
First off, we’ll just dispense with the notion that “Roe” was about a doctor’s right to provide medical treatment. Granted, the State of Texas had a law that fobade elective abortions, but no physicians were petitioning the courts for relief in the matter. Furthermore, this Texas law was not a violation of anyone’s “right to privacy”, anymore than a state’s law against gambling is not an infringement of one’s right to privately spend their own money as they see fit. “Roe” was about the politics of feminism.
The politics of feminism was in high-gear during the Supreme Court sessions of 1972 - 73, and being sympathetic to the feminist agenda, the Court agreed to hear Roe vs. Wade under the pretext of a violation of an individual’s “right of privacy”.
Now certainly, “privacy” is penumbral to the tenets of the Constitution, but that was not really being addressed in Roe, it was more or less an excuse put forth by plaintiff’s counsil that was used to justify both the Court’s agreeing to hear the case as a matter of a Constitutional violation, and the Court’s subsequent ruling to satisfy the politics of feminism.
And in fitting with the premise of this thread, “Another Blow to the Rule of Law”, Roe v Wade is a classic example of courts perverting law to legislate from the bench.
Hmmm… I thought that under Roe, the state was supposed to butt out, that the state had no interest in the fetus. The state had no right to protect the fetus by passing a law that forbade elective abortion. It was a private concern of the woman.
Um, here’s the problem, Razorsharp: if you read Roe v. Wade, you would discover that it is indeed about the doctor’s right to provide medical treatment. We can’t dispense with that notion solely because you would like to dispense with that notion.
Here is the part of Roe v. Wade that provides constitutional protection to first trimester abortions:
Well, you misunderstand this. Again from Roe:
So, under Roe, the state always has an interest in the fetus. Until viability, that interest is trumped when it competes with the interests of the mother and the physician. The interest is not trumped, however, by the interests of the third party that harms the fetus, as that third party has no valid countervailing interest. Thus, the state most certainly can criminalize the actions of the third party that harms the fetus at any time during the pregnancy.
Both SuaSponte and Captain Amazing have made legitimate points by quoting from the majority decision, and those Justices are compelling in their words, that’s what they are supposed to be. However, how much trust can be put into an institution that is willing to prostitute itself (By agreeing to hear a case under a false pretext?) for an agenda?
Hard to imagine that a Supreme Court Justice, when writing a majority decision, would include such an oxymoronic statement with a straight-face. But then, after agreeing to hear the case as a “privacy issue”, now “privacy” must be circumvented to arrive at the desired decision.
State’s interest, not privacy.
A “potentiality of human life” is present from the moment of conception, and if it is an interest of the state, again, there is no issue of privacy being addressed.
Now, to get this hijacked train back on its tracks. As the map reveals… http://www.sba-list.org/index.cfm/section/whatsnew/page/UVVA_map_2003.html … only four states rely on “viability” as a line of demarcation when prosecuting a defendant for the “murder” of a fetus. The rest, as SuaSponte correctly points out, “always has an interest in the fetus”.
To sanction the willful destroying of a fetus in one instance and label it “freedom of choice” and punish the demise of a fetus in another instance and label it “murder” is repugnant to the rule of law and is more closely akin to the tyranny of rule by decree.
It seems like the discussion has moved on from the OP, but I couldn’t let this pass.
It sounds like what Razorsharp was referring to here is the “rule of dictionary” rather than “the rule of law.” So sorry that people, rather than Webster’s, run our government.
It could be, just as it could be made a worse crime to knock someone down onto the subway tracks and cause them to need to have their legs amputated than to knock them down and cause them to skin their knees. I don’t have any formal research studies but lots of anecdotal evidence to support the premise that the fetus she carries can be of overwhelming importance to a a pregnant woman, and the loss of it extremely traumatic.
BTW, I agree that the logic in Roe v Wade is clumsy and problematic for people on both sides of the issue. I would be happy to see it overturned if what replaced it established that a woman herself has the right to abort, and that other people with relevant and sufficient medical training have the right to provide medical treatment geared towards helping her do so.
I think there is a “right to privacy” and I like the fact that the Supreme Court has officially acknowledged it somewhere along the way, but as a compelling reason to keep abortion legal it kind of flunks. My right to privacy doesn’t appear to guarantee the right of my LSD dealer to sell me LSD (although maybe it should), and doesn’t protect my right to inflict horrible puppy torture on my puppy either (and my puppy isn’t a person by law either).
While we’re poking pins in the pretended reasoning and justification for Supreme Court decisions, though — identifying pro-feminist sympathies rather than an apolitical conclusion that the Texas abortion law contradicted an existing right to privacy or that the state had no interest in a fetus prior to viability — let’s stick a few in the notion that any substantial portion of the folks who want to overturn Roe are merely outraged at “judicial activism” or want “strict constructionism” to be the rule of the day at the Supremes. Horseshit. They want abortion to be illegal.
And the “politics of feminism” are the belief that the principles of fairness and equal justice should not discriminate based on gender. Those principles have even more support now than they did in 1972. They haven’t gone away. They aren’t going to go away. Both sexes participate in the feminist movement and both genders benefit from changes.
Throughout the history of our country, “the rule of law” has been unfairly withheld from some groups. Thanks heavens that all three branches of government are responsible for actively pursuing these principles of fairness. The SCOTUS does it by hearing arguments and then ruling on the cases which are brought before them and which they then choose to hear. There is nothing new about that.
Someone who doesn’t like some of their rulings came up with a new label “activist Court” and claims that the Justices are “making laws.” Five years ago I had never heard that accusation. (Yet Roe v Wade is over 30 years old.)
What you are actually a witness to is the balance of power at work. I assume that your earlier posts on “the politics of feminism” were not meant to imply that you support the rule of law for men only.
I agree with you that there are times when men should have a choice about aborting a child. Even though I am anti-abortion, I am also pro-choice. Pregnant men should have the same rights as pregnant women. If a man is diabetic, for example, and his life is endangered if he carries a child to full term, then he should have the right to terminate the pregnancy and neither his wife nor the State should be able to over-rule his decision.
In fact, the very idea of a woman telling a man what he can and cannot do with his body is an affront to all of the principles of our Founding Fathers. He is subservient to no one. His body is himself. There can be nothing more private and no life deemed more valuable.
See, I am a business owner. When employees take time off for pregnancy related issues, it puts an undue strain on the business and the other employees that have to take up the slack for the absent employee.
Therefore, my only option is to initiate non-discriminatory policy. All employees, both men and women, who become pregnant, will be terminated immediately.
The term has been in use for a long time, and generally NOT applied merely to “rulings that are not liked” but to rulings arrived at through the use of particular analytical tools - “substantive due process” being the key offender in this area.
Lochner v. New York was an activist decision, and it was handed down in 1905.
The Restraint to Liberty is in All and Equality. Liberty does not deny another’s Liberty.
The Anti-Abortionists create the situation where unwanted pregnancies are more likely to occur. Then they want to give Special Rights to the Fetus.
No one has the Right to use another’s Body without that person’s Permission. If someone wishes to give that Right to the Unborn, I Demand that Right for the Born. I Demand the Right to Use Your Body As I Please and Without Your Permission.
Right to Lifers: I Demand my Equal Right to Life. Please Forward your Blood Types, I may need your Blood or one of your Organs someday. If you resist, I might die. By your standards, you will have committed Murder.
The point was that wasn’t called an “activist decision” in 1905. The term is a relatively recent buzzword invented by the right so the red sheeple will know who to oppose.
