State sanctioned murder? Abortion. (Long, long OP)

[Shaolinrabbit]

Having reviewed the case and found that under the right of privacy(Ability to do with your body as you so choose.) and the constitutional evidence, past cases judged by the court, and Justice Blackmun’s opinion of the court writing, I cannot fault the decision of the court. Below are some excerpts from the case, which can be found here, should anyone wish to review.

Justice Blackmun’s opinion of the court
All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word “person,” as used in the Fourteenth Amendment, does not include the unborn.

I cannot refute this.

Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.

I cannot see on the basis of Texas’ claim that the State would have an interest in the life of the fetus, which outweighed the interest in the life of the mother.

With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

I understand the complication of the court’s ruling, and the nature of the constitution’s protection of ‘born’ citizens, and according to the court, those which are viable for birth and can reasonably subsist outside of the mother’s womb. I certainly understand the havok that extending the protection of the constitution to ‘embryos concieved within the United States’ or some such, which is what they would have to do would reak upon our immigration and legal system. By even extending partial constitutional protection to an unborn fetus, the lawsuit market will no doubt feel pangs(Of joy?).
However, given the facts as presented by Blackmun of the history of abortion, I find the knowledge of pre-natal care in the founding father’s time somewhat lacking, and their knowledge of life before birth to be fairly dismal. Given a knowledge of the rates of stillbirth and miscarriage in the late 1700’s, and the fact that a midwife or physician of the time had no reasable way of determining the fetus’ viability short of it’s “quickening”(The evidence of fetal movement in utero.), I find that this may have dictated the constitutional terms of birth as protection. I find it interesting that as medical tests have improved and our ability to determine viability for birth have increased, this understanding has not been expanded by the courts.
I still maintain a chilly attitude towards this disussion, as I find the evidence of life’s beginnings at conception to be hardly lacking, being that once an ovum is fertilized and begins to develop, it begins to grow and maintain it’s life, which can be held genetically to be seperate and distinct from the mother or father. It is then, to my logic at least, a human life, unlike the mother and father which have produced it, that has begun. The distinction of human also being genetic, and is used as a differentiation between an embryo, and non-human developments of cellular growth such as tumors.
So, I find that both the judgement of who is to be considered a person, and when, to be dangerous, mainly because it strikes an image in my mind of the holocaust, but this is only an emotional reaction. Scientifically and logically, I cannot see this issue as anything but state endorsed termination of life. This decision, as I see it, is undermined by economic, social, and and legal baggage, which might have accompanied an opposing decision, placing the court in a position of poor standing, and unlikely to produce the unbiased legal result which Justice Blackmun states as the task of the court.

Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection.

[Shaolinrabbit]

Note: post entered before spelling and grammar check.

[Shaolinrabbit]

Geez, Mods can we pop the little [.i] and [/.i] things off the thread title please? It makes it a bit harder to read I think. I didn’t realize those things wouldn’t italicise on the title. My bad.

[Stratocaster]

I interpret the references to prior abortion practices as a counter to the belief in a long-established societal definition of “personhood.” The 18th century understanding of viability is not the issue for that particular point, I don’t think.

I do find it interesting that pro-choice lobbyists often frame any restiction of abortion rights as “overturning” the unencumbered right to abortion established via Roe v. Wade. Even a casual reading of that opinion makes clear that the SC did not consider the right to abortion absolute. The statutes they stuck down were not deemed unconstitutional because they restricted abortion, only because they did so too broadly.

Personally, I think the entire “we can’t determine the starting point of personhood, therefore let’s effectively assume it’s at viability, but then only if the state finds this compelling” an enormous stretch in any event. But if one buys Roe v. Wade, then one is buying the notion that abortion can be resticted over the wishes of the mother in a given circumstance.

[Shaolinrabbit]

I get where you’re coming from Bob, and I agree that the focus of the pro-choice lobby is largely misdirected. I think the justices involved have a good interpretation of the issue. Constitutionally, I would tend to agree with their interpretation, but I also contend that the definition of a person according to the constitution would not have included an unborn child either way, and could possibly have been inferred rather than directly stated. 95% of Roe V. Wade is the interpretation of the courts over the past century and a half of the legal rights of a fetus.
I was really focusing on the fact that it’s hard for a person to say that life begins at birth or at the viability of birth. I think that most people, if the politics were dropped for a moment, would have to say that the only period of life that could possibly show a clear indication of being a ‘beginning’ is at conception. ‘Personhood’ can certainly be attributed to a wide variety of places in life.
The disturbing aspect of this to me is that the ‘state’ is taking the responsibility onto themselves for determining who is a ‘person’ under the constitution, and weighing the interests of the state in favor of persons over human non-persons. So, non-person life is terminated at the request of persons, and the state is choosing who that will apply to because of a (perceived?) indecision on the part of the medical, philosophical, and theological institutions.
I also feel that the intensity of social and economic repercussions from an ‘in utero’ personhood might have weighed heavily on their attempt to provide a clean verdict.

[AHunter3]

Bob Cos

But if one buys Roe v. Wade, then one is buying the notion that abortion can be resticted over the wishes of the mother in a given circumstance.

I agree that this is a problem that needs addressing.

[MEBuckner]

I still maintain a chilly attitude towards this disussion, as I find the evidence of life’s beginnings at conception to be hardly lacking, being that once an ovum is fertilized and begins to develop, it begins to grow and maintain it’s life, which can be held genetically to be seperate and distinct from the mother or father. It is then, to my logic at least, a human life, unlike the mother and father which have produced it, that has begun. The distinction of human also being genetic, and is used as a differentiation between an embryo, and non-human developments of cellular growth such as tumors.

To me this smacks of genetic reductionism. A human person is more than just a separate and distinct set of genes. There are, after all, sets and groups of human persons walking around who aren’t genetically separate and distinct from each other, yet such people are each quite distinct human beings. The problem with such a genetically reductionist definition of human personhood is that it necessarily entails protecting even a single genetically distinct cell–once you’ve defined “human person” that way, it will inevitably be argued that killing that cell smacks of Nazism and so on–and yet if you define “human person” that way, you are putting a single cell on the same moral level as a human woman, with a whole lifetime of thoughts, memories, and actions.

I agree we should be careful to put a considerable safety zone around the taking of human life, or around things which might be the taking of human life. For that reason, I disagree with the occasional radical philosopher type who argues we should legalize infanticide, and I would even support severe restrictions on late-term abortions. (Nearly 90% of abortions performed in the United States occur in the first few months of pregnancy. And the earlier the better, says I.) But according a single cell (however genetically distinct it might be) the same status as a human person is going too far.

[MEBuckner]

Geez, Mods can we pop the little [.i] and [/.i] things off the thread title please? It makes it a bit harder to read I think. I didn’t realize those things wouldn’t italicise on the title. My bad.

Done.

[Stratocaster]

*Originally posted by MEBuckner *
The problem with such a genetically reductionist definition of human personhood is that it necessarily entails protecting even a single genetically distinct cell–once you’ve defined “human person” that way, it will inevitably be argued that killing that cell smacks of Nazism and so on–and yet if you define “human person” that way, you are putting a single cell on the same moral level as a human woman, with a whole lifetime of thoughts, memories, and actions.

MEBuckner, then why would you restrict late-term abortions or infanticide, in that both restrictions draw the same equivalency as you are describing it? In both instances the child certainly hasn’t a whole lifetime of thoughts, memories and actions.

Restrictions on abortion, IMO, do not place the mother in a lesser position relative to her child. They should, however, rest on a foundation that states that no right the mother has–self determination, etc.–can subjugate another’s right to live, just as no one else’s “lesser” right can subjugate the mother’s right to live. If the right to live does not exist, then all other rights are illusions, IMO.

[Stratocaster]

*Originally posted by Copaesthetic *
**I think the justices involved have a good interpretation of the issue. **

I disagree. In the same opinion, the court asserts that they will not, nor do they need to, establish the “personhood” of the unborn, AND indicates that viability is a boundary that can permit the state to restrict abortion against the mother’s wishes to protect the unborn. It is, IMO, a tortuous, disjointed piece of logic that advanced a political position that the court had no consititutional foundation for. I agree with Justice Rehnquist, in his dissenting opinion:**

Unless I misapprehend the consequences of this transplanting of the “compelling state interest test,” the Court’s opinion will accomplish the seemingly impossible feat of leaving this area of the law more confused than it found it.

**

[Stratocaster]

*Originally posted by AHunter3 *
**

But if one buys Roe v. Wade, then one is buying the notion that abortion can be resticted over the wishes of the mother in a given circumstance.

I agree that this is a problem that needs addressing. **

Allow me to be the first person to sign your “Overturn Roe v. Wade” petition.

[MEBuckner]

*Originally posted by Bob Cos *
MEBuckner, then why would you restrict late-term abortions or infanticide, in that both restrictions draw the same equivalency as you are describing it? In both instances the child certainly hasn’t a whole lifetime of thoughts, memories and actions.

*Originally posted by MEBuckner *
I agree we should be careful to put a considerable safety zone around the taking of human life, or around things which might be the taking of human life. For that reason, I disagree with the occasional radical philosopher type who argues we should legalize infanticide, and I would even support severe restrictions on late-term abortions. (Nearly 90% of abortions performed in the United States occur in the first few months of pregnancy. And the earlier the better, says I.) But according a single cell (however genetically distinct it might be) the same status as a human person is going too far.

[Stratocaster]

OK, let’s try again. Why do you place the “considerable safety zone” boundaries where you do, since they seem to surround an entity that has the same attributes you previously described as less than compelling?

[MEBuckner]

*Originally posted by Bob Cos *
OK, let’s try again. Why do you place the “considerable safety zone” boundaries where you do, since they seem to surround an entity that has the same attributes you previously described as less than compelling?

I’m not following you. My “safety zone” surrounds a child, who is capable of recognizing her mother, laughing at things that strike her as funny, learning about the world, and saying her first word. I don’t want to kill that child. However, if her parents had refrained from having sex at the time which led to her conception, or if they had successfully used birth control, they wouldn’t have been killing that child, they would have been preventing her from ever having come into existence. I don’t think a single, mindless, insentient cell–however genetically unique–is a child; a newly fertilized zygote is still only the potential for a child. Kill a child, and you murder a human being. Kill a newly fertilized zygote, and you kill a single cell. There is, unfortunately, no single bright line between the single cell and the child. The process of turning a cell into a child is a gradual and evolutionary one. So, on the one hand, we have things which are clearly murder, and on the other hand we have things which are clearly preventing a potentiality from become an actuality, and we have a gray area in between–abortions beyond a certain stage of development.

[Stratocaster]

*Originally posted by MEBuckner *
I’m not following you. My “safety zone” surrounds a child, who is capable of recognizing her mother, laughing at things that strike her as funny, learning about the world, and saying her first word. I don’t want to kill that child.

Then I’m not following you. Even a late-term child is not capable, at that point, of these acts, yet you would restrict those abortions. I understood your first post to state that drawing a moral equivalency between a single-celled entity and an adult was wrong, in that the adult had a “a whole lifetime of thoughts, memories, and actions.” Neither a newborn nor a late-term child has such a history of experience.

So, it’s still not clear to me why you draw the restrictions where you do, why your “illegal zone” is “clearly murder” or something that approaches it. One could argue that both a late-term child and a single fertilized cell has the potential for “recognizing her mother, laughing at things that strike her as funny, learning about the world, and saying her first word”; neither currently does (hell, we can probably say as much of a newborn).

So, I’m not asking for a single bright line. I’m asking what attributes distinguish the “clearly murder” territory from the “clearly not.”

I’ll also ask if you agree that your philosophy allows for the possibility of “real” children being killed. The gray area you describe seems to be a contemplation of exactly that possibility. And last, since you would support restrictions–i.e., draw a developmental line that cannot be crossed–can that line move? And aren’t there other reasonable arguments that can place a different boundary? And don’t both arguments (i.e., inclusive of yours) rest on the assumption that a mother does NOT have an unencumbered right to abortion, nor should she? Put another way, doesn’t the argument (by itself) that abortion restrictions are wrong because they restrict choice collapse of its own weight?

Hope this clarifies.

[MEBuckner]

Who is arguing that a woman has an “unencumbered right to abortion”? From Roe v. Wade:

State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother’s behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman’s qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman’s health and the potentiality of human life, each of which interests grows and reaches a “compelling” point at various stages of the woman’s approach to term. Pp. 147-164.

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician. Pp. 163, 164.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. Pp. 163, 164.

© For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. Pp. 163-164; 164-165.

I might disagree with the standards set forth in Roe at some points, and the question of whether a judicial decision was the right way to decide the question is another issue, but the general principles seem sound.

We have a spectrum. On one end, we have fertilized zygotes–single cells. I really don’t have any moral qualms about killing single cells. At the other end of the spectrum we have children. I don’t want the law to permit any children to be murdered.

ZYGOTE–>BLASTOCYST–>EMBRYO–>EARLY TERM FETUS–>MIDDLE TERM FETUS–>LATE TERM FETUS–>NEWBORN INFANT–>TODDLER–>…

Now, since there is no bright line, any standard we set will inevitably err one way or the other–we will either allow for the killing of some beings we ought not to, or we will unjustly treat as homicide the taking of some life which does not rightfully fall under that category. (Suppose we punished masturbation as mass murder, say.) I would much prefer to err on the side of preventing the taking of some life which hasn’t really attained personhood, as opposed to erring on the side of allowing the killing of a person. But that doesn’t mean I want to treat the killing of a single cell as murder. Newborn babies actually show quite a bit of cognitive ability at birth–they immediately begin the process of recognizing and bonding with their mothers, for example. They aren’t just lumps of flesh. And I know of nothing which says that the process of inhaling oxygen magically effects some great intellectual transformation. So, severe restrictions, verging on prohibition, of late-term abortions is fine by me. I still don’t support criminalizing the 88% of abortions in the U.S. which are performed during the first 12 weeks of pregnancy.

We should do things to safeguard human life, yes. Even “bend over backwards” a bit to safeguard human life. But we don’t outlaw tobacco and alcohol; we don’t have mandatory state-supervised diets and exercise sessions for all citizens; we don’t put all pregnant women in state institutions to ensure they get proper prenatal care and diet and so on; we haven’t totally outlawed guns and knives and cars and nasty caustic drain opening chemicals and ladders and bleach and jumping out of airplanes for fun and lots and lots of other things which may harm people–and some of those things may even harm innocent bystanders.

[Shaolinrabbit]

Bob: By saying that the justices here have made a good interpretation, I’m saying that the constitution would have to be interpreted, since it obviously doesn’t go there. That’s not to say that there aren’t other interpretations, simply that theirs(the majority) was valid based on what criteria they had.

MEBuckner: As I see it, the only clear line that could exist is conception. The weight that I place on the bundle of cells is that they logically comprise a life, as a whole. You can scratch more than that off of my arm with your fingernails and not be a murderer, because my arm cells do not comprise a life, which a zygote or embryo do. By selecting a place to draw that line with a less clear definition, you fall into the murky area of personhood in which a sort of Nazist philosophy flourishes. ‘This is where the state shall draw the line of personhood’ is a dangerous argument for any court to make. I think that the court was weighed heavily upon by other factors in their decision that made such a decision necessary. Given that a group of people dissent on either side, one being backed by severe social and economic consequences, and the other with maintaining the status quo, it makes the interpretation suspect.

[Stratocaster]

MEBuckner, then you draw the line where certain cognitive functions exist…thanks for the clarification. That’s not the inference I took from your first post. I don’t happen to agree with your boundary, but I think I understand it better now.

[E-Sabbath]

Copaesthetic, do you support proscecuting mothers who have stillbirths as murders?

[Shaolinrabbit]

*Originally posted by E-Sabbath *
**Copaesthetic, do you support proscecuting mothers who have stillbirths as murders? **

No. Do you want me to explain the distiction? I don’t call people who die of natural causes ‘suicides’ either. If you’re asking me whether a mother physically killed her child in the womb, and evidence that would stand up to the scrutiny of the court were presented, then I would pose a return question:

Do you support the prosecution of mothers who have terminated their children after they have left the womb? Based on what do you make that call?