# Federal Law Banning Abortion: Likely? **URL:** \ **Category:** Great Debates\ **Created:** [July 20, 2005, 9:09pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351 "2005-07-20T21:09:52Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Stephe96](https://avatars.discourse-cdn.com/v4/letter/s/bbe5ce/32.png) [@Stephe96](https://boards.straightdope.com/u/Stephe96)\ **Post date:** [July 21, 2005, 6:46pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/61 "2005-07-21T18:46:19Z")
> [@Kimstu](#): > > In the first place, as pointed out above, to state that abortion is “ending a human life” implies a personal, individual decision about when human life can meaningfully be said to begin: there’s no biological or medical consensus on the matter. > . A “personal, individual decision?” Try common sense. Next time a woman gets pregnant and doesn’t have an abortion, watch what happens. If the abortion isn’t what stopped that life from coming into existence, then what did? ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [July 21, 2005, 7:05pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/62 "2005-07-21T19:05:27Z")
> [@Kimstu](#): > > Hmm. You seem to be asserting that federal judges at the end of the18th century somehow couldn’t comprehend the “strict” meaning of the First Amendment , recently adopted by their own near-contemporaries, as well as you’re able to do a whole two centuries later. That doesn’t sound terribly plausible. I don’t see this as implausible. This kind of misinterpretation/ignoring the plain sense of the text/call it whatever is what they are doing right now, with stuff like Roe v. Wade and the interstate commerce clause. Why is it hard to believe they have done it in the past? SCOTUS makes stupid decisions all the time - every time they disagree with me, in fact. 🙂 As I mentioned, there is a large gray area, but if the Constitution says “Congress shall not abridge freedom of speech” and SCOTUS says “Congress can go ahead and abridge freedom of speech”, that is not an example of strict construction. Regards, Shodan ---
**Author:** ![Orbifold](https://avatars.discourse-cdn.com/v4/letter/o/779978/32.png) [@Orbifold](https://boards.straightdope.com/u/Orbifold)\ **Post date:** [July 21, 2005, 7:10pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/63 "2005-07-21T19:10:40Z")
> [@Stephe96](#): > > > [@](#): > > > > In the first place, as pointed out above, to state that abortion is “ending a human life” implies a personal, individual decision about when human life can meaningfully be said to begin: there’s no biological or medical consensus on the matter. > > A “personal, individual decision?” Try common sense. Next time a woman gets pregnant and doesn’t have an abortion, watch what happens. If the abortion isn’t what stopped that life from coming into existence, then what did? The next time a man has sex with a woman and doesn’t use a condom, watch what happens. If the condom isn’t what stopped that life from coming into existence, then what did? Therefore, using a condom is “ending a human life”. Hmm…no. Try harder. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [July 21, 2005, 7:14pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/64 "2005-07-21T19:14:23Z")
> [@alaricthegoth](#): > > This is an utterly “result oriented” supreme court. They will define interstate commerce as necessary to reach the conclusion they were pointed at before the analysis even commenced. What evidence do you have for this? ---
**Author:** ![Snickers](https://avatars.discourse-cdn.com/v4/letter/s/5daacb/32.png) [@Snickers](https://boards.straightdope.com/u/Snickers)\ **Post date:** [July 21, 2005, 7:20pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/65 "2005-07-21T19:20:10Z")
> [@smiling bandit](#): > > I thik you overestimate the support for abortion. And I think you underestimate the public’s opposition to legislating reproduction. ---
**Author:** ![Kimstu](https://avatars.discourse-cdn.com/v4/letter/k/ecd19e/32.png) [@Kimstu](https://boards.straightdope.com/u/Kimstu)\ **Post date:** [July 21, 2005, 7:25pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/66 "2005-07-21T19:25:40Z")
> [@Shodan](#): > > This kind of misinterpretation/ignoring the plain sense of the text/call it whatever is what they are doing right now, with stuff like Roe v. Wade and the interstate commerce clause. And who’s defining what counts as “misinterpretation” and “the plain sense of the text” ? You are. You’re not offering any objective standard for arriving at those definitions. You’re not accepting the reasonable-sounding premise that the people who were historically and culturally very close to the writers of the text had a better idea of what they really meant by it than you do. You’re just claiming that you know what “the plain sense of the text” is, and earlier interpreters didn’t. Sez you [shrug]. > [@Shodan](#): > > As I mentioned, there is a large gray area, but if the Constitution says “Congress shall not abridge freedom of speech” and SCOTUS says “Congress can go ahead and abridge freedom of speech”, that is not an example of strict construction. But that isn’t what any Supreme Court ever **has** said. Earlier Courts simply interpreted the word “abridge” differently from the way you want to. **All** interpretations of the First Amendment place **some** restrictions on speech—for example, when the law prohibits the media from publishing military secrets, or outlaws that old classic example of shouting “Fire” in a crowded theater. You are just picking and choosing what you consider an unconstitutional “abridgement” versus a constitutional “restriction”, and you are calling your choices “strict interpretation”. Sez you, again. You’re absolutely right that there’s a gray area in constitutional interpretation. And so-called “strict constructionism” falls smack in the middle of it, along with all the other approaches to constitutional interpretation. ---
**Author:** ![Kimstu](https://avatars.discourse-cdn.com/v4/letter/k/ecd19e/32.png) [@Kimstu](https://boards.straightdope.com/u/Kimstu)\ **Post date:** [July 21, 2005, 7:38pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/67 "2005-07-21T19:38:20Z")
> [@Stephe96](#): > > Next time a woman gets pregnant and doesn’t have an abortion, watch what happens. If the abortion isn’t what stopped that life from coming into existence, then what did? But to “stop a life from coming into existence” is not the same thing as to “end a life” which **already** exists, which is how you were previously describing abortion. (As **Orbifold** pointed out, there are lots of other things that can “stop a life from coming into existence”, including condom use and celibacy.) As I said, it depends on when we consider the phenomenon we call “human life” actually to begin. Yes, we all agree that the development of human life takes place sometime during the interval between ejaculation\* and birth. But there is no compelling medical, biological, or legal reason to place the arbitrarily chosen moment of “the beginning of human life” at the point of zygote formation (aka conception) rather than, say, viability, or any point in between. \*Not to get too clinical here, but of course there’s also the possibility of impregnation via sperm in pre-ejaculatory fluid. ---
**Author:** ![Stephe96](https://avatars.discourse-cdn.com/v4/letter/s/bbe5ce/32.png) [@Stephe96](https://boards.straightdope.com/u/Stephe96)\ **Post date:** [July 21, 2005, 7:39pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/68 "2005-07-21T19:39:18Z")
> [@Orbifold](#): > > The next time a man has sex with a woman and doesn’t use a condom, watch what happens. If the condom isn’t what stopped that life from coming into existence, then what did? Therefore, using a condom is “ending a human life”. > > Hmm…no. Try harder. Um. OK. Plenty of guys don’t use condoms. It’s called The Pill. Or an IUD. Or the Sponge. ---
**Author:** ![Zakalwe](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/zakalwe/32/270_2.png) [@Zakalwe](https://boards.straightdope.com/u/Zakalwe)\ **Post date:** [July 21, 2005, 7:47pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/69 "2005-07-21T19:47:32Z")
> [@smiling bandit](#): > > It is true that Americans are willing to accept that. I don’t, however, think most believe strongly enough one way or the other to protest or cause significant political trouble one way or the other. From [here](http://www.heartland.org/Article.cfm?artId=3152) (reorganized a bit for clarity, poll was taken in 1994): For each issue, please tell me whether you agree strongly, agree somewhat, disagree somewhat, or disagree strongly. The government should not interfere with a woman’s ability to have an abortion. Strongly Agree: 53% Somewhat Agree: 17% Somewhat Disagree: 9% Strongly Disagree: 18% ---
**Author:** ![Kimstu](https://avatars.discourse-cdn.com/v4/letter/k/ecd19e/32.png) [@Kimstu](https://boards.straightdope.com/u/Kimstu)\ **Post date:** [July 21, 2005, 8:01pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/70 "2005-07-21T20:01:00Z")
> [@smiling bandit](#): > > I don’t, however, think most believe strongly enough one way or the other to protest or cause significant political trouble one way or the other. Hmm. You wouldn’t describe the US anti-abortion movement as “protesting” or “causing significant political trouble”? You wouldn’t call the May 2004 “March for Women’s Lives” on Washington D.C., with an estimated turnout of 1 million, “protesting”? Maybe what you mean is that as long as abortion is legal and reasonably accessible, most of the pro-choicers will be content and fairly apathetic, while as long as abortion is legally somewhat restricted and socially somewhat frowned upon, most of the pro-lifers will be content and fairly apathetic. That, I would more or less agree with. However, if we were to see a significant change in the status quo, such as an actual ban on all abortions, I think we’d get a **lot** of political mobilization from a **lot** of people very quickly. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 21, 2005, 8:15pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/71 "2005-07-21T20:15:08Z")
> [@Kimstu](#): > > Yeah? So you consider it constitutional to legally prohibit seditious speech? > > Because that’s what a [strict interpretation of the First Amendment](http://www.nybooks.com/articles/18111) would seem to imply, judging from early judicial acceptance of the 1798 Sedition Act: The “early judicial acceptance” of the Sedition Act doesn’t mean much, since the Act was born and died prior to 1803’s _Marbury v. Madison_, the case that gave life to the very idea od judicial review. Prior to that, there was simply no practice of the judiciary finding acts of Congress unconstitutional and overturning them. We can thus conclude absolutely nothing from your example. > [@](#): > > This is one of the reasons why, as I’ve said before, I’m always skeptical about claims for “strict constructionism” or “original intent”. Strict constructionism, ISTM, is a lot like Biblical literalism: it’s always strict on some points and loose on others, depending on the individual ideas of whoever happens to be professing it. No, it isn’t. On what scholarly or formal description of strict construction are you relying in forming this opinion? Where, for example, in Scalia’s “A Matter of Interpretation” do you find his support “loose on others?” ---
**Author:** ![Orbifold](https://avatars.discourse-cdn.com/v4/letter/o/779978/32.png) [@Orbifold](https://boards.straightdope.com/u/Orbifold)\ **Post date:** [July 21, 2005, 8:16pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/72 "2005-07-21T20:16:48Z")
> [@Stephe96](#): > > Um. OK. Plenty of guys don’t use condoms. It’s called The Pill. Or an IUD. Or the Sponge. A swing and a miss! Let me pitch it to you again: if I don’t agree that a fetus is a human being at the time when an abortion takes place, then the abortion isn’t “ending a human life” any more than slapping on a condom is “ending a human life”. You can’t end something which hasn’t already started. See, also, **Kimstu** ’s post just above yours. ---
**Author:** ![Stephe96](https://avatars.discourse-cdn.com/v4/letter/s/bbe5ce/32.png) [@Stephe96](https://boards.straightdope.com/u/Stephe96)\ **Post date:** [July 21, 2005, 8:22pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/73 "2005-07-21T20:22:24Z")
> [@Orbifold](#): > > A swing and a miss! Let me pitch it to you again: if I don’t agree that a fetus is a human being at the time when an abortion takes place, then the abortion isn’t “ending a human life” any more than slapping on a condom is “ending a human life”. You can’t end something which hasn’t already started. > > See, also, **Kimstu** ’s post just above yours. I’ll try and make it simple for you: a sperm or an egg will NOT become a fetus on its own. Do a lot of women have abortions before they become pregnant? I’ve never heard of it. Maybe you have. Support abortion but at least be honest about it. It \*is \* terminating a life. By the way, some of the euphemisms you guys come up with for ‘abortion’ are absolutely priceless. “Reproductive freedom?” I love that…just call it “abortion freedom.” ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [July 21, 2005, 8:42pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/74 "2005-07-21T20:42:08Z")
> [@Kimstu](#): > > And who’s defining what counts as “misinterpretation” and “the plain sense of the text” ? You are. You’re not offering any objective standard for arriving at those definitions. Well, if by that you mean “there is no way to prove what words mean”, then you are correct that SCOTUS can take the Constitution to mean anything they like. Anything at all. So the First Amendment says “Congress is free to impose whatever restrictions they like on any speech they like”. > [@Kimstu](#): > > You’re not accepting the reasonable-sounding premise that the people who were historically and culturally very close to the writers of the text had a better idea of what they really meant by it than you do. You’re just claiming that you know what “the plain sense of the text” is, and earlier interpreters didn’t. Sez you [shrug]. Well, you just got finished denying that there is any way to determine what the Constitution says at all. It says whatever SCOTUS says, and nothing else, and if they want it to say “Bush is president regardless of how many votes he got” or “abortions are mandatory for black women” or anything else at all, then SCOTUS has spoken. And all legal argument is pointless, since it cannot be based on any standard. There is nothing in the Constitution to outlaw discrimination, or restrictions on free speech, or freedom of the press, or anything else, since there is no way to be sure that the clauses guaranteeing all these things really mean what the words they use usually mean. “Not” might mean "is required to; “people” could mean “household furniture”. There is no objective standard. As far as I can tell, you are saying that the Constitution has no meaning at all. OK, then no other language does at all, and everything you have posted in this thread means “By golly, **Shodan** is absolutely right!” Regards, Shodan ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [July 21, 2005, 8:45pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/75 "2005-07-21T20:45:20Z")
> [@Orbifold](#): > > A swing and a miss! Let me pitch it to you again: if I don’t agree that a fetus is a human being at the time when an abortion takes place, then the abortion isn’t “ending a human life” any more than slapping on a condom is “ending a human life”. You can’t end something which hasn’t already started. Correct. Key to this discussion is defining what is, and is not, a human life. (Or, perhaps, what is a human life worthy of legal protection, since I have heard people evince a belief that a fetus is a human being, but not one that is worthy of legal protection due to his or her uniquely dependent circumstances). If you don’t agree that a fetus is human, then you can hardly be expected to agree that abortion is ending a human life. ---
**Author:** ![Kimstu](https://avatars.discourse-cdn.com/v4/letter/k/ecd19e/32.png) [@Kimstu](https://boards.straightdope.com/u/Kimstu)\ **Post date:** [July 21, 2005, 8:55pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/76 "2005-07-21T20:55:02Z")
> [@Bricker](#): > > The “early judicial acceptance” of the Sedition Act doesn’t mean much, since the Act was born and died prior to 1803’s Marbury v. Madison, the case that gave life to the very idea od judicial review. Prior to that, there was simply no practice of the judiciary finding acts of Congress unconstitutional and overturning them. So does that mean that the very concept of having the Supreme Court interpret laws constitutionally **at all** is a post-original-intent invention? In that case, how can anybody, “strict constructionist” or otherwise, claim to be applying constitutional principles to law as originally intended? ISTM that then it’s **all** “modern judicial activism”, some parts a little less modern than others. > [@Bricker](#): > > On what scholarly or formal description of strict construction are you relying in forming this opinion? None: I have never seen a “scholarly or formal description of strict constructionism” that seems to me to provide an actual objective standard for determining what is “strict” and what isn’t. (I asked **Shodan** for his definition, but so far haven’t seen it.) I don’t understand, for example, how Scalia’s “textualist” position “A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means” could in any way be used as an objective standard of interpretation: it seems to me perfectly circular. Remember that IANAL, and I haven’t read all of _A Matter of Interpretation_; speaking as a layperson, though, what I have seen of the positions called “strict constructionism” and “original intent” and “textualism” and so forth seems to me significantly ambiguous and arbitrary. > [@Stephe96](#): > > Support abortion but at least be honest about it. It is terminating a life. You’re still missing the point. Yes, everybody agrees that abortion is, at the very least, terminating **something** which will at some point **become** something that everybody agrees is human life. But the decision about where to define that “some point” is to a large extent arbitrary. Yes, a zygote is different from a sperm and ovum pair. But then, an embryo is different from a zygote, and a fetus is different from an embryo, and a viable fetus is different from a pre-viable one, and a baby is different from a viable fetus. The question is, where in this long process of continual change and development do we as a society draw the arbitrary line marking the “beginning of human life”? There really is no one obvious point where “common sense” requires us to put that boundary. > [@Stephe96](#): > > By the way, some of the euphemisms you guys come up with for ‘abortion’ are absolutely priceless. Some of the euphemisms that the “pro-life” folks come up with for criminalizing abortion are pretty priceless too. > [@Stephe96](#): > > “Reproductive freedom?” I love that…just call it “abortion freedom.” Actually, “reproductive freedom” has a broader meaning, because many of the same people who are opposed to abortion are opposed to birth control too. “Reproductive freedom” in its widest sense stands for the position that adults should make their own individual choices about sex and reproduction in general, not just about abortion. ---
**Author:** ![Loopydude](https://avatars.discourse-cdn.com/v4/letter/l/e56c9b/32.png) [@Loopydude](https://boards.straightdope.com/u/Loopydude)\ **Post date:** [July 21, 2005, 8:59pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/77 "2005-07-21T20:59:45Z")
Just a disclaimer: I’m gonna be out of town for a few days, and probably won’t be able to contribute while away. But it’s a good discussion, and I don’t wish to make out like a deadbeat OPer (which annoys the Hell out of some people, it seems). I’ll be sure to be back, hopefully with something thoughtful to say; but back in any event. ---
**Author:** ![Kimstu](https://avatars.discourse-cdn.com/v4/letter/k/ecd19e/32.png) [@Kimstu](https://boards.straightdope.com/u/Kimstu)\ **Post date:** [July 21, 2005, 9:03pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/78 "2005-07-21T21:03:27Z")
> [@Shodan](#): > > Well, you just got finished denying that there is any way to determine what the Constitution says at all. It says whatever SCOTUS says, and nothing else […] And all legal argument is pointless, since it cannot be based on any standard. Nope. Of course legal argument can be based on standards. I’m just pointing out that I’ve seen no convincing argument that anybody’s got any kind of **objective, universal** standard for determining what a text “really means”. Sure, we can say “We’re going to try to interpret the Constitution according to this or that set of judicial principles”, and argue about which set of principles it’s best to use and why. There’s nothing pointless about that at all. But you can’t just skip that step and say “I’m simply going to apply the **plain sense of the text** , instead of misinterpreting it the way all those judicial activists do!” Claiming to have identified “the plain sense of the text” is **in itself** an act of interpretation, and therefore to some extent arbitrary, unless you can produce that **objective, universal** standard I’ve been asking about… ---
**Author:** ![Driver8](https://avatars.discourse-cdn.com/v4/letter/d/b5a626/32.png) [@Driver8](https://boards.straightdope.com/u/Driver8)\ **Post date:** [July 21, 2005, 9:04pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/79 "2005-07-21T21:04:50Z")
> [@Stephe96](#): > > Support abortion but at least be honest about it. It \*is \* terminating a life. This is a key misunderstanding. I believe that most people who support legal abortions do so precisely because they do not believe a life is being terminated. They don’t think a human being is formed yet. Nobody (nobody sane, anyway) is supporting the legal right to terminate life, any more than you see anyone supporting the legalization of terminating two year olds. I completely understand where people who are against any abortion are coming from. They do believe that the fetus is a human life. If I felt this to be true, I would be 100% against abortion as well. (My personal view is that I am undecided. I just can’t say either way, life or not life. As such, I find abortion a nasty business, but wouldn’t really be too judgemental of someone who supports or has had one [in rape or medical cases I’m especially in no position to judge]. I plan to avoid the situation completely in my personal life.) ---
**Author:** ![Stephe96](https://avatars.discourse-cdn.com/v4/letter/s/bbe5ce/32.png) [@Stephe96](https://boards.straightdope.com/u/Stephe96)\ **Post date:** [July 21, 2005, 9:24pm UTC](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351/80 "2005-07-21T21:24:17Z")
I know a few women who’ve had abortions. One of them is consumed with guilt and regret. Somehow I don’t get the feeling she’s upset over the ‘pre-viable tissue mass’ that might have been. [Previous page](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351.md?page=3) [Next page](https://boards.straightdope.com/t/federal-law-banning-abortion-likely/313351.md?page=5)