When John McCain picked Sarah Palin as his running-mate, there was immediate controversy over her opposition to abortion. Much of this controversy is both confused and confusing, and after yet again explaining to a non-lawyer friend that overturning Roe v Wade would not result in an immediate ban on abortion across the US, I decided to make my attempt at clarification. This is, I suppose, the abortion post we had to have.
There is so much law in this post – including a breakdown of the various US state positions – that I’ve decided to split it in two. The first post deals with abortion as a subset of property rights and what – broadly – are likely to be the consequences if Roe is overturned. The second post addresses specific state positions and the intersection of abortion with other difficult public policy issues, including our attitude to the disabled, the extent to which access to abortion rights should be at the behest of the legislature, rather than the courts and the intersection with issues specific to US health insurance.
My view
As is only fair, I’ll outline my view of the issue. I do this in part to indicate that my opinion has no bearing on what follows.
First up, I use the terms ‘pro-abortion’ and ‘anti-abortion’. ‘Pro-choice’ and ‘pro-life’ serve only to obscure the issue, attempting to manoeuvre opponents into an untenable position through word-play. Who is anti-choice – apart from the most doctrinaire Marxist? And who is anti-life, aside from the odd serial killer? The politicised terms are meaningless and derogate from the issue at hand. I refuse to use either.
Next up, I note that Libertarians argue that personal rights have their origin in self-ownership. I own myself – as Robert Nozick argued – and anything that derogates from my self-ownership is automatically subject to great scrutiny. That rather Kantian point aside, there is considerable evidence that most rights worth having – particularly individual rights – have their origins in a robust property rights regime: life and liberty, therefore, depend to a large degree on property.
A woman – like a man – has property in her own body, and the right to evict or even kill trespassers on that property. Abortion rights, therefore, are a subset of property rights. The right to abortion is based on the woman’s ownership of her body, and every part thereof, including her uterus and her vaginal canal; this ownership entails the right to decide how to use that part of her body, in accordance with her conscience, and no one else’s. In American terms, to take away this basic ownership of one’s body would be the equivalent of forcing upon women ‘involuntary servitude’, which was outlawed in the 13th amendment of the Constitution. Yes, to compel a woman to have children against her will is a form of rape by the state and therefore a form of slavery.
You may think that ‘self-ownership’ is an odd way to ground property rights. If so, I invite you to argue against slavery without it. How, without self-ownership, do you argue against the moral wrongness of the ‘good’ slave-holder – the kindly Shelby family assayed in the first few chapters of Harriet Beecher Stowe’s Uncle Tom’s Cabin?
That said, the law of property recognises the doctrine of adverse possession. In short, the longer I permit someone – a trespasser – to remain on my land, the stronger their argument for a right of abode. The traditional limit in real property matters is twelve years, although courts often want more. Pregnancy as property operates by analogy: the longer a woman remains pregnant, the more onerous should be the conditions attached to her exercising her right to exclude. In a perverse way, the Roe court recognised this by dividing the standard nine month gestation period into three lots of three months each, with abortions in the so-called ‘third trimester’ being subject to the most onerous sanctions.
Roe v Wade and privacy
Unfortunately, by grounding abortion in a non-existent privacy right (14th Amendment? Huh?), the SCOTUS made its judgment vulnerable even for those of us who support abortion rights: it is emblematic of the old truism that hard cases make bad law. The court below, which grounded abortion rights in the 9th Amendment (the US Constitution’s ‘saving common law rights’ provision) was actually on surer ground. The 9th Amendment preserves common law rights not enumerated in the written document, and – ideally – is the locus for privacy-based arguments.
Roe is also vulnerable to the criticism that it represents judicial legislation – a derogation from the separation of powers. Nine justices changed laws that should be a matter for democratically elected legislatures. Before you accuse me of rampant populism, recall that this is exactly what happened in 2000, in Bush v Gore. Nine people – not hundreds of millions of voting Americans – made that decision. Regardless of your politics, this doesn’t represent a good outcome. In constitutional law, this sort of derogation from popular decision-making is referred to as a ‘democratic deficit’, and is comparable with the situation in those European countries (Ireland and Denmark apart) that prevented voting on the European Union’s Lisbon Treaty. There comes a point where it is necessary to ask the people. Every time you fail to do so is – in many respects – evidence of the extent to which you hold the people in contempt.
In short, I support abortion rights as an extension of property rights, but recognise arguments on the weakness of Roe‘s legal reasoning and the danger of judicial legislation. I accept (along with Camille Paglia) that abortion represents – at best – unlawful killing, and at worst, murder. However, the corollary of that position is that forcing a woman to term against her will is slavery.
May I remind readers that my standard position on matters like this is that PUBLIC POLICY IS HARD and that TO EVERY COMPLEX PROBLEM THERE IS ALWAYS A SIMPLE SOLUTION, AND IT IS ALWAYS WRONG. Slavery v Murder is a moral balancing act of some difficulty.
At this stage – and as a subsidiary point – I’ll draw attention to the libertarian linkage between abortion rights and self-defence rights. The right to defend against an intruder is at the heart of the Second Amendment right (to keep and bear arms); it is why juries, confronted with a householder who has killed a home invader seldom convict him. In those states with a strong libertarian tradition – like Alaska, Vermont, New Hampshire and Maine – there are both liberal abortion laws and liberal gun-ownership laws.
In uber-libertarian Vermont, there are no restrictions on either abortion rights or gun ownership. In almost equally uber-libertarian New Hampshire (‘live free or die’ is the state motto), there is only a parental notification law, introduced because there are actually considerable arguments in its favour (which I’ll outline later in this post). New Hampshire also has open carry in all public places save courtrooms. By contrast, in left-leaning states with little libertarian tradition, there are liberal abortion laws and restrictive gun-ownership laws (California). In right-leaning states with little libertarian tradition, there are liberal gun-ownership laws and illiberal abortion laws (South Dakota). This may be rather difficult to assimilate, but in many respects self-defence rights and abortion rights are the flip-side of the same coin: both are intimately tied to broader property rights.
Roe v Wade, and the state of US law
The important thing to remember here is that while the makeup of the Supreme Court is the focus of most of today’s political calculations about the future of abortion in America, the role of the states would become pivotal if the landmark decision were overturned. Any substantial weakening of Roe v. Wade would trigger an epic battle between abortion forces. This battle would be fought in state capitols – and perhaps also in Congress. In other words: roll Roe v Wade and abortion would devolve to the states, and there would be a really, really ugly shit-fight. And, by and large, the anti-abortion side would lose: it is clear that most people in the US (and elsewhere) support a version of the old common-law ‘quickening‘ rule.
It was a long time before common lawyers attached any criminal meaning to abortion before quickening, and even when they did, it was only at the level of a misdemeanor. Likewise, in civil matters, the old common law rule was always that – to bring a suit – a child had to be ‘born and born alive’. Death in the womb precludes a right to bring a claim in tort; changes to this principle have always been legislative. An interesting Australian case on point is Watt v Rama. The common law – with its fealty to juries – has always had to be sensitive to their verdicts, which have never been patriarchal in the way many feminists assume. Take infanticide, for example. As one article on recent proposed changes to the UK’s Infanticide Act notes:
Until 1922, the killing of a child was a capital offence, but juries had become so sympathetic to women accused in such cases that the first infanticide law was brought in to cover newborn babies. In 1938, it was extended to the killing by a mother of babies up to a year old.
What is important to remember here is that the juries that forced this change to UK law were comprised entirely of males – at that point women could not serve. Both anti and pro abortion advocates are dealing with very old and entrenched cultural and social attitudes to life and its relative ‘worth’ in their attempt to change attitudes to abortion. Sure, it may be possible to change those old attitudes, but some honesty in appreciating the difficulty of any such change is merited. A degree of both infanticide and abortion has been widely tolerated – including by all-male juries – across all the cultures that have fed both common and civil law conceptions of life and the preservation of life, not to mention many cultures outside these traditions. This means – in practice – easy access to abortion prior to ‘quickening’, with greater restrictions (including the view that late abortions are homicide) later in the pregnancy.
Before Roe
In the early 1960s, five trendsetting states revised their laws to make abortion available in a variety of circumstances. Mississippi legalized the procedure in cases of rape, and Alabama followed by Colorado, New Mexico and Massachusetts were the first to permit abortion when a woman’s physical or mental health was in jeopardy. Gradually, other states made minimal changes to their 19th century abortion laws, but most continued to allow the procedure only in life-threatening situations. As a result, hundreds of thousands of women resorted to illegal, self-induced – and sometimes deadly – abortions. It is important to remember, however, that restrictions on abortion prior to ‘quickening’ only became widespread in the 19th century.
The American Law Institute (ALI), a group of lawyers, scholars and jurists, began to call for abortion reform in 1962, urging states to permit abortion when a woman’s health was at risk, in cases of rape or incest, or if the fetus had a severe defect. In 1967, California became the first state to adopt ALI’s model law, and by 1972, Arkansas, Colorado, Delaware, Florida, Georgia, Kansas, Maryland, New Mexico, North Carolina, Oregon, South Carolina and Virginia had followed. In 1970, four states – Alaska, Hawaii, New York and Washington – adopted the most liberal laws in the country, allowing a woman to have an abortion whenever she and her doctor decided it was needed. These are the ‘pre-Roe‘ states that allow statistical comparisons for researchers like Levitt and Dubner, with their groundbreaking study showing strong links between liberal abortion laws and large reductions in rates of violent crime.
If Roe v Wade were overturned
Lawyers differ on how many states are likely to make abortion illegal if Roe v. Wade were overturned. Whether a state chooses to ban abortion will depend on what party controls the governor’s mansion and the legislature and on the social leanings of its citizens – if and when federal restrictions are lifted. There isn’t always a neat correlation between party and abortion positions, either. Think of Texas’ Republican, pro-abortion Kay Bailey Hutchinson or Louisiana’s anti-abortion former Democratic Governor (Kathleen Blanco).
Signs can be gleaned from states’ recent records on the issue, however. On the anti-abortion side, six states already have in place so-called ‘trigger laws’, designed to make abortion illegal if federal policy permits. Three other states have passed laws called statements of policy, establishing the illegality of abortion as an overriding state philosophy.
In addition, a few states have pre-1973 abortion bans still on the books, which legal experts say could be reinstated. Abortion bans passed by Louisiana and Utah in 1991 that were immediately struck down by federal courts also remain on the books in both states and may take effect if Roe v Wade fell. On the abortion-rights side, seven states have codified the principles of Roe v Wade in state law, and high courts in nine other states have interpreted the state constitution as independently ensuring a woman’s right to an abortion. It is also important to remember that any law – pro or anti – passed by a previous administration and thus not debated by the current state legislature and governor is vulnerable – even in otherwise very doctrinaire states.
96 Comments
Law will never solve (or absolve) these questions.
Positing women’s bodies as property, albeit their own, is deeply problematic for a many reasons, not least that women do not think of their bodies as personal commodified property.
Hahahahahahahahahahahahahahahahahahahahahahahahahaha
Hilarious.
A question: Was Roe v Wade really judicial legislation or simply the correct reading of the founding documents of the United States as in a recognition of the ownership of self and body you refer to.
In any case it seems that the anti-abortion advocates will simply repeat that life begins at conception and therefore such rights are to be enjoyed by the foetus. They’ll also scoff at the idea that a foetus is ‘an intruder’.
There’s tapestry of positions on this issue. Catholic Democrats may lean left on many issues except this one for example. Dry Republicans may cross the floor here as well.
But they’re exceptional cases of idiosyncratic principle.
The real battle is between those who seek to retroactively interpret the constitution as an inherently theocratic document. This sounds hyperbolous. I suppose it is. But not as ridiculous at it might seem. Taken in tandem with an intolerance for any sex education that is not abstinence only, the PR struggle to present the insertion of pseudo-scientific theology into biology classes and the rather grim rhetoric of various avatars of evangelism gladly talking scripture in their living room simulacra of a TV studio and enthusiastically embracing all Middle East conflict as a fulfilment of scripture: that it a herald of global war in which Israeli Jews convert or die and the Forces of Satan (ie Muslims) are wiped from the Earth I’d tend to say you aren’t dealing with people who’re too troubled by the finer points of jurisprudence.
The struggle here is between modern secular society with all the pagan/libertine trimmings and those who see all that as The End seeking to blame everything that happened after 1700 (except TV) for it.
This struggle is increasingly bitter. I don’t see it being solved in the courts or in any other place where people resolve their problems in a civilized fashion.
Funnily enough there are Muslims who believe the exact same things as Evangelical Christianity. Except for them the Forces of Satan are not Muslims but Evangelical Christianity. Funny old world innit?
Apocalypse doesn’t just means the end, it also denotes revelation. What will be revealed I wonder. Our stupidity?
“A woman – like a man – has property in her own body, and the right to evict or even kill trespassers on that property. Abortion rights, therefore, are a subset of property rights.”
I’m no lawyer, but i’m pretty sure you are not allowed to kill someone just because they are trespassing. I’m almost certain you are not allow to kill babies that wander onto your property.
Likewise, I’m not entirely convinced about the property analogy. Yes, in a certain sense, we do “own” our bodies. In some ways, that ownership is more fundamental than ownership of any other kind of property.
I think Kant would say that our control over our body is more than a property right – insofar as I understand him, he argues that people cannot be both person and thing.
However, the body is not necessarily treated as property by the law. If I wanted to sell my kidney, I could not do so. Take, for example, the famous US case of Moore v Regents of the University of California noted in my post here. A majority of the Court did not recognise Moore’s asserted proprietary right in his excised cancerous spleen cells.
Further, unlike a person expelled from someone’s land or personal property, a foetus will generally not survive when expelled from its mother, and therefore expulsion almost inevitably means death. This means that it is fundamentally different to other kinds of trespass and can be distinguished on that basis.
One still has to grapple with the question of when expulsion of a foetus is allowable because it results in almost certain death, and a property analogy doesn’t really help with that question.
Still, I’ll wait to see the next interesting installment…it may be that you deal with some of my qualms there.
Wow
Great piece SL. Best one I’ve ever seen.
Question (Sort of):
Once saw the argument drafted this way.
Sure a woman has the right to her body as it’s her property. However there are laws protecting tenants from being killed by the landlord. What do you make of that argument. It’s not mine by the way.
oops saw just saw the others ask.
Sorry.
I’m currently computerless so having to borrow DEX’s equipment to post stuff, but I do address these in the second post. Also don’t apologise JC as by phrasing the question so simply you force the issues out into the open.
Just on a preliminary basis, I’ll point out the following:
I think the property-rights analogy is stronger than the privacy-rights analogy, not that the property-rights analogy is perfect. Rights of exclusion, adverse possession and self-defence often turn on what is ‘reasonable’ in context. My submission that reasonableness in abortion will almost inevitably turn on the old common law ‘quickening’ argument.
“However, the corollary of that position is that forcing a woman to term against her will is slavery.”
No it is not. Half of that foetus IS from that woman. The WHOLE of that foetus only exists due to being sustained by that woman. Why is this always overlooked? Can you be both a slave and master?
I’m pro-choice up to conception. Women have a myriad of means to avoid pregnancy. Half of aborted foetus are female.
Given a foetus / baby can survive outside the womb from 20 weeks now, this whole debate of when life starts is getting sillier and sillier.
We’re still dealing with things over which people have no control (being female). Attaching onerous obligations to those things is fraught with danger: we’re saying to a woman that she has to sustain a trespasser she does not want on her property. Think want that means.
I realise that this topic excites passions, but in trying to respect the legitimate points that anti-abortion advocates make (and there are serious problems with the reasoning in Roe), I’m also trying to make clear the weakness of their position politically, even in a country as divided as the US.
Now – as I’ll enumerate in the next part of this post – part of the reason for that terrible social division is the presence of the decision in Roe, but even taking that into account, anti-abortion advocates need to appreciate that a combination of juries and politics will tear any doctrinaire ‘life from conception’ statute to pieces. UK juries destroyed the country’s infanticide law; abortion would go the same way, to an extent that would bring both that specific law and the Law into disrepute.
In a sense Greta’s first comment – that the law cannot solve this – is correct. But the law is all we have, our last best hope. People on both sides need honestly to fight the battles they can win – a point well made by one astute anti-abortion poster over at NRO online.
No it is not. Half of that foetus IS from that woman. The WHOLE of that foetus only exists due to being sustained by that woman. Why is this always overlooked? Can you be both a slave and master?
It’s certainly possible biologically. The developing foetus is essentially parasitical in nature and hijacks the woman’s body to prioritise its own needs.
I’m in favour of a woman’s right to abortion but to discuss it like it is a mere property dispute is obscene. Sorry SL but your argument is disturbing and dehumanising and reflects very badly on you.
DEM – the parasite attacks the body and circumvents cells. The womb, on the other hand, is built to house the foetus and provides the essential cord to allow it to survive. It is not a parasite at all.
There is no hijacking going on. That is too colourful.
MEL – have a cold shower. SL is trying (and doing very well) to explain how the law can treat this issue. She is not responsible for how the law recognises rights. Your ignorance reflects very badly on you.
Those bloody Imaginary Friends again: we own our bodies. We own that which we are. No body, no you. One could even argue that since you are impossible without your body, your body owns you. There can be a body but no you but there cannot be a you and no body.
Have just glanced at this, very good SL.
Just briefly, the first problem is that there isn’t a right answer. The choice to have an abortion is a personal one, we can only clumsily try to legislate when a life begins, a life that should be protected from harm from those charged by nature with its care in the first instant. Very few I believe make the choice to have an abortion easily and I believe that one of the benefits of the debate is that society continues to make sure its never easy.
The question is about when a self aware being is brought forth. If it is about when life begins then God really is a huge prick because the vast majority of fertilisations proceed to natural miscarriages.
John, I agree – the question is really about sentience again. I don’t regard a bundle of cells as life, just a potential life. Therefore, something like the “morning after” pill is perfectly legitimate according to my own beliefs (and indeed, preferable to an abortion at a later stage).
John -
Ask a cleric, a philosopher & a scientist when life begins and you’ll likely get three different answers.
One of the main controversies with Roe v. Wade is that the court took a health approach rather than a life approach This is understandably I would say given the different concepts of life. Keep In mind SCOTUS doesn’t do opinions, it decides cases.
I haven’t read the courts decision in a long while, but the decision is based on the fundamental protections of a persons rights (life liberty etc.), the emphasis was on the viability of the fetus [to be a person] and the health of the mother, neither of which are well defined.
Nanu,
The problem with the underlying assumption in Roe Wade is that today we can with medical intervention keep many alive that otherwise would have perished. So what constitutes “life”: unaided by modern medicine? Underneath all this bickering is a ghost: life is something special. Don’t tell Mother Nature that, the bitch kills without compunction.
I often wonder what would happen if the law was challenged in a way that where termination is unlawful due to the viability of the fetus, the fetus becomes a the responsibility of the state. Could the state be required to pay the living & medical expenses of both mother & child in uterus, and thereafter be required to pay for the medical & living expenses of the child after birth?
SL -
Ok , I’ve had a think about it.
Your self -ownership argument doesn’t work unless ‘life begins’ is defined.
Allowing for a woman’s body being her own, the often-recited ‘abortion as an eviction’ argument must take into account how reasonable force would come into play with respect to taking the life [of a 'potential' person].
Adverse possession, while clever to making a point doesn’t play. The court (from memory) struggled with establishing constitutional protection of the embryo/foetus. Rights of a person were protected (slavery is a person argument not property argument), but nowhere I believe, was the unborn child established as being a person. Hence the ‘viability of the foetus’ came into play as a way of addressing the issue as to ‘its’ ability to be a person.
The question for the court was when does ‘personhood’ begin, and I believe they knew that that the Constitution/Law fell short in this respect so they just made their best attempt at it making the ability of the foetus to exist outside the uterus with the capability of having “meaningful life” the litmus test. I’m sure in many respects, their own consciences were a driving force to creating this personhood test. Certainly, the maxim a hard case makes for bad law is most definitely applicable in this case.
There is no right answer or at least one society can agree on!
Pete M says:
“MEL – have a cold shower. SL is trying (and doing very well) to explain how the law can treat this issue. She is not responsible for how the law recognises rights. Your ignorance reflects very badly on you.”
The law doesn’t treat life as a property issue in any liberal democratic jurisdiction as far as I’m aware, nor will it I’d wager. There is nothing ignorant in pointing this out or in pointing out how vile and inhuman it is to reduce issues of life and death to the level of a mere property dispute.
Does this look like an evicted tenant to you? http://impiousdigest.com/abortedbaby05.jpg
Mel -
The link was unnecessary, you could also play “the Silent Scream” video. I don’t know anyone who is “pro-abortion” for the sake of it. Try adding to the discussion rather that being a sensationalist.
Excellent idea. And it’s been tried so successfully by that nice man Ceausescu. He was such a barrel of laughs. No contraception, no sex education, no abortion.
But of course as a communist he’s completely different to the Fundamentalist Right in the USA. He uses a completely different brand of lighter fluid to burn his books.
There’s this thing called reality. In reality people fuck. They do it a lot. Sometimes a pregnancy occurs, sometimes despite using contraception. It happens.
In reality likewise human animals take about two decades before they can fend for themselves: their expensive and require a lot of care. If they don’t get proper care they turn feral and dong other human animals on the head.
Terminating a pregnancy isn’t fun, it isn’t pleasant, it is killing.
And it’s necessary.
Apologies to those with genuine humanitarian concerns for the foetus and all. But the anti-abortion thing is mostly the product of deranged totalitarian minds and joyless souls who want to repress human sexuality for the same reasons as usual: pent up frustration creates hate loaded energy which is really useful if you’re a demagogue oligarch in a political and/or religious cult.
Move to the Moon and leave us alone. You’d like it there. It’s barren and lifeless just like you.
Mel, may I suggest you read the decision in Roe (as Nanu has done – it’s linked in the post). There you will find an equally cool appraisal of abortion as a privacy dispute. I don’t think the privacy argument is on sure ground, partly because it has to co-opt property law (the trimester system) and health (the ‘health of the mother’) in order to work, but mainly because the 14th Amendment (the due process clause) won’t sustain it. That said, the 9th Amendment does provide room for a privacy argument. It’s a basket provision where the Constitution drops all the rights preserved at common law that aren’t enumerated elsewhere in the document.
I do recommend reading the link in my comment at 9. It’s a very honest assessment of the state of play in the US at present.
“The link was unnecessary, you could also play “the Silent Scream” video. I don’t know anyone who is “pro-abortion” for the sake of it. Try adding to the discussion rather that being a sensationalist.”
Nonsense. Anyone who is pro-abortion should have the honesty and courage to see what an abortion is. Likewise, anyone who supports a war they deem just should see the suffering and misery, including mutilated bodies, that a just war entails.
I support both abortion and a just war doctrine as a lesser of evils but I’m not prepared to use polite weasel words or practice self-censorship to make something ugly look pretty.
By the way, I give SL a tick for honesty for using the term pro-abortion rather than the disingenuous term pro-choice.
I won’t humour either side on the labelling issue, Mel – ‘pro-life’ is a furphy, too. Both – as I discussed in the post – represent attempts to manoeuvre opponents into an untenable position through word-play.
I’m anti-Mel
I’m pro-Me
Heh. But yes, that’s about the strength of it – label your opponent with an ugly word and hope that it’ll stick.
SL -
I’m a bit sketchy on Roe v. Wade as its been a while since I read it, so feel free to tell me about any errors.
btw, isn’t Palin’s youngest adorable! She’s been fun to watch during the appearances.
Pete, I love the expression on her face in the above photo.
The whole positivist approach of law as found object, objectively reached through dry legal reasoning.
The quandraries come from treating bubs as trespassers, concluding that the right to kill derives from this, and even more fundamentally- to apply a crit line of reasoning- from privileging the property rights of the woman over her body from those of the baby over its.
I think, as with most things, the law should follow the policy on this one. And it would be best to develop that policy from the foundational recognition of the fact that multiple, difficult, painful and competing imperatives are being resolved in what could be called a ‘wicked problem’ (to use the latest policy lingo).
On that note I’m pro choice, and as a lawyer I have to pick you up on the fact that there is a huge difference between being pro CHOICE and pro ABORTION.
Further, as a libertarian, you might recognise that it is not only plausible but very reasonable to adopt the position that you yourself would prefer not to have one, and don’t like abortions, but that this doesn’t justify making them against the law. As with a hundred other issues that may lend themselves to legislation and criminality.
Likewise, in civil matters, the old common law rule was always that – to bring a suit – a child had to be ‘born and born alive’. Death in the womb precludes a right to bring a claim in tort; changes to this principle have always been legislative.
Interesting, so the legal precedent there is that life isn’t recognised until after birth? Would be interested to know on what grounds subsequent legislation has challenged this long established precedent.
Unfortunately, by grounding abortion in a non-existent privacy right (14th Amendment? Huh?), the SCOTUS made its judgment vulnerable even for those of us who support abortion rights: it is emblematic of the old truism that hard cases make bad law.
Probably true. But the court had to use what it had, and by 1960s the doctrine of substantive due process (the doctrine that underlies the protection of the right to privacy) had been well established, and from what I understand the use of the ninth amendment has be spotty at best. Plus, lets face it, any constitutional protection of right to abortion no matter where or how it is found, is going to be decried as judicial legislating.
Though to be honest, I am agnostic over substantive due process. On one hand it seems patently silly and undemocratic, on the other it has been, in recent history, used to support policy ends that I agree with.
Pete & LE: All Palin’s kids are gorgeous. Several people were clearly at the front of the queue when good looks were being handed out.
AJ: The judicial legislating point is well made. The problem – as has been pointed out by people on both sides of the divide – is that by denying the democratic impulse, it has produced all sorts of really perverse reactions in the electorate. People are always pointing out how abortion is so fraught in the US compared to Australia and Europe. Scalia’s argument (and on this point I agree with him) is that Europe and Australia resolved the issue more slowly. This process occurred through a mixture of legislative intervention, juries refusing to play along and public debate. The US leapfrogged that process, which has the merit of clarity (and believe me, lawyers love clarity), but has had to pay very heavily for it thanks to ‘democratic deficit’. Day O’Connor – although supportive of Roe in Planned Parenthood v Casey – also pointed out that Roe likely killed a nascent democratic movement towards abortion rights in the several states. I think she’s right, although whether the situation is retrievable now is a rather moot.
Armagnac: I don’t buy the ‘pro-choice’ is better than ‘pro-abortion’ line. It’s fudging, so we’ll just have to agree to disagree. I’m a libertarian, and heartily pro-choice in pretty much everything (the ‘choice’ metaphor is very much a child of libertarian philosophy – it first appeared in Hayek and Von Mises, but applied to the free market, not sexuality). You may want to claim ‘pro-choice’ as a lawyer, but I think economists probably have a better claim on the term. Feminists and lawyers pinched it – and took it out of its economic context.
And there may be bigger piles of steaming turd than the jurisprudence produced by the crits, but I can’t think of many. Pre-Aquinan natural law, perhaps? I’m not a doctrinaire positivist (indeed, Hayekian reasoning owes quite a bit to elements in the natural law tradition), but no reasonable legal philosopher is only a positivist; positivism is, however, the best toolkit we lawyers have to make the law actually work (pace the crits). Very often objects are simply found, and very often we have to sort through the rubble in order to reach them. In undertaking that process, I’d much prefer dry legal reasoning to reasoning of any other sort.
my computer is giving me small print on the web…HELP!
The problem is that I’ve made sure that my kids can’t surf to easily…but now I’m f**ked!
My 2 year old made the screen font massive the other day. Luckily, I worked out how to reverse it after a few false tries. Another time, when she was only 4 months old, she hit the keyboard randomly and suddenly everything I typed was backwards…very strange.
Mel – Anyone who is pro-abortion should have the honesty and courage to see what an abortion is.
True. But they don’t. From Skeptic’s link to Camille Paglia’s Salon column, she writes:
I have always frankly admitted that abortion is murder
It’s actually not murder, speaking strictly, but it is killing – terminating life. She also writes:
I have never understood the standard Democratic combo of support for abortion and yet opposition to the death penalty. Surely it is the guilty rather than the innocent who deserve execution?
PJ O’Rourke’s also commented on this the other way somewhere (viz the Religious Right). A Christian he says, should be against both the death penalty and abortion. Frequently the standard Christian conservative combo is the other way around.
Altho’ it’s as inconsistent, it is more justifiable logically. After all those who are executed (miscarriages aside) are guilty of something awful.
However I’m both generally anti-death penalty and pro-abortion. This position is inconsistent I admit. But I prefer it anyway because dealing with the real consequences of policy I simply don;t want the State to be able to execute. I do believe some people do things they deserve to die for, however I still don’t want ‘em to be executed.
With abortion, it’s unpleasant and to be avoided. But sometimes you can’t. And the consequeces of making it illegal are that women will still seek to terminate pregnancies and suffer the consequences. That and the work of Stephen Levitt provide strong evidence for the necessity of legal abortion.
I should also admit that there is strong evidence that provided it is swift, the death penalty works as a deterrent. My opposition is purely aesthetic (ie Romantic and irrational) nevertheless it stays. It’s simply barbaric.
BTW – It seems there’s an attempt by the anti-abortion lobby to get to University students. The Melb Uni and RMIT campuses are covered with posters, very well designed and effective, promoting their cause and their website. I don’t have the link. I’ll supply it sometime.
And Skeptic, I agree with Steve, bravo for not buying into the pro-life, pro-choice bullshit. Anyone who needs to use language to lie to themselves and everyone else isn’t fit to be a citizen in a democratic polity.
Adrien
I am also anti death-penalty and pro-abortion. The latter so much so that I think it should be compulsorily retroactive for many, many people.
But Camille is being disingenuous: for a good cause to be sure – attention – but disingenuous nevertheless. A fetus cannot advocate for itself, whereas a person facing the death penalty can and many others besides. The decision to “kill” a fetus is not subject to any ‘rational’ concerns for ‘justice’ or even made in light of the fetus having ‘wronged,’ so the comparison is as odious as it is silly.
You are right that it is not ‘murder;’ it is ‘only’ killing. All murders involve killing, but not all killing involves murder.
Qld’s Criminla Code:
“CRIMINAL CODE 1899 – SECT 292
292 When a child becomes a human being
A child becomes a person capable of being killed when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, and whether it has an independent circulation or not, and whether the navel-string is severed or not. ”
&
CRIMINAL CODE 1899 – SECT 313
313 Killing unborn child
(1) Any person who, when a female is about to be delivered of a child, prevents the child from being born alive by any act or omission of such a nature that, if the child had been born alive and had then died, the person would be deemed to have unlawfully killed the child, is guilty of a crime, and is liable to imprisonment for life.
(2) Any person who unlawfully assaults a female pregnant with a child and destroys the life of, or does grievous bodily harm to, or transmits a serious disease to, the child before its birth, commits a crime.
Maximum penalty–imprisonment for life.
So a foetus is not a child until extracted from the womb, but killing the foetus inside the womb equals the same punishment as if it were a child.
Does this help? Seems a political solution to avoid the issue of the right to life of the foetus.
btw Adrien – I’m anti death penalty and anti abortion. For the exact same reason – life is precious.
Under the proposed Victoria, “ABORTION LAW REFORM BILL”
Despite any conscientious objection to abortion…
a registered medical practitioner is under a duty to perform an abortion in an emergency where the abortion is necessary to preserve the life of the pregnant woman.
AND…
a registered nurse is under a duty to assist
Interestingly, this will be of coarse a conscience in State Parliament.
Hmmm… a “conscience vote” in State Parliament.
We all remember the “Meat is murder” slogans. What do vegans / vegetarians think when it comes to abortion?
All murders involve killing, but not all killing involves murder.
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The law defines murder. That’s the debate really.
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We all remember the “Meat is murder” slogans. What do vegans / vegetarians think when it comes to abortion?
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Funnily enough there’s an anti-abortion website Voice4Voiceless dot net which is almost exactly the same as the anti-carnivore website voice4voiceless dot com.
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Animals mostly do have voices. They just aren’t very articulate.
SL, I understand your reasoning and agree with you when you say ‘pro-choice’ is fudging, just as ‘pro-life’ is, but ‘pro-abortion’ is just inaccurate, implying, as it does, a degree of actual enthusiasm. Nobody wants to have an abortion (though I thank Goddess regularly that it’s not a choice I’ve ever had to make). The anti-abortionists — and ‘anti-abortion’ is an accurate description of that position — have a lot invested in pretending that women just gaily get pregnant on purpose so they can go out and enjoy having a nice abortion, tra la. And if that were the case, then ‘pro-abortion’ would be accurate. But it’s not, and it’s not. Somebody needs to come up with a less emotive and less misleading term.
Pete M at #7: ‘Women have a myriad of means to avoid pregnancy.’
So do men. And it is very often the case that it’s the father who is pushing for the abortion. Let’s apportion responsibility accurately, shall we?
“… but ‘pro-abortion’ is just inaccurate, implying, as it does, a degree of actual enthusiasm.”
It implies nothing of the sort since pro as a prefix can simply mean “in favour of”. No unbiased reader is likely to read pro-abortion as meaning someone who enjoys abortion as a hobby.
As far as weasel words go, pro-choice is right up there with collateral damage.
Abortion, which I happen to support, involves the clinical killing of an unborn child. Let’s be adult enough not to sugarcoat the truth to make ourselves feel nice about it, mmkay?
“You are right that it is not ‘murder;’ it is ‘only’ killing. All murders involve killing, but not all killing involves murder.”
‘Tis the law and/or our code of ethics that decide when killing is murder.
Actually if God wasn’t such an ass he would’ve given women the ability to put fetuses into a kind of suspended animation as per many marsupial species, including most kangaroos.
The big bearded fella has a lot to answer for.
“but ‘pro-abortion’ is just inaccurate”
On this we can agree, but.. “anti-abortion” at least from my experience is for ‘most’ the first consideration. You need to get off your “those with sperm are evil” shit and look at the discussion. Its pretty 50/50 even on this thread. The norm is a for a couple to discuss their particular circumstances…but I expect you’ll seek the emotional argument as usual.
Adrien -
I think even for those without a particular faith apart from seeking as the view it the most “kindly” act or “humanistic” act, the voice for the voiceless is crucial. I may be stepping beyond the rational but I think for most in this debate who’ve never had to make that choice they should put themselves in a position of not having a voice. I know what I’d say…NEVER make it easy, make sure no matter how pragmatic or “obvious” the decision is..NEVER MAKE IT EASY. Thankfully, I don’t think it ever will be. If we lose that I think in a lot of respects, we’ll have lost everything.
I should add, as someone who’d want to put the unborn & voiceless first in an ideal world… I don’t believe that abortions under proper medical supervision should ever be unlawful. As bad as society can be, on this I’m confident.
‘You need to get off your “those with sperm are evil” shit and look at the discussion.’
WTF?
PC – I agree on the men being responsible too part, but here we seem to be focusing on the woman’s right to decide. Hence I restricted my comment to that.
If you want men to accept the responsibility, well you just opened a can of worms – where is the male’s right in the abortion non abortion decision? While you say it is men who pressure women about it, it also goes the other way. Men who want to keep the baby but have no right to insist. Even if they accept 100% responsibility for that child, the woman can refuse to carry it for 6-8 months needed for birth. It is one of those cases of partnership where a decision must be made, and a non-decision is still a decision. Usually in partnership law a 50-50 split means the nays win. ie should we buy that new photocopier – if 1 says no, the decision is no.
Doesn’t apply to well to this issue.
So yeah, I agree men have just as much responsibility and a plethora of means to avoid conception, but on the contrary, as it is not their body, have 0 choice about the consequences, despite the fact that with a birth, they suddenly then are expected to be responsible again!
conception – responsible – check
abortion – not responsible and no say – wtf?
baby – responsbie – lifetime of responsibility
Stalker #52 – Good point.
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Pete M – It’s worth considering that often women seek abortions because they are pregnant because the dudes don’t take responsibility and refuse to let them do so. Just sayin’.
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PC – Every sperm is sacred. Every sperm is great. If a sperm is wasted God gets quite irate.
Adrien -
I’m glad you were able to work through my signature typos & grammatical errors!
I apologize if this is a tad off topic, but your discussion is quite serendipitous, as I recently wrote about this issue in a non-Lawyerly, profanity laced manner.
You have to look at the abortion issue in its much larger context.
If you look at the entire agenda from the Right, there is far more involved than abortion.
They’re not trying to save “Life,” as much as they’re attempting to define when life begins so they can control Sex.
Gay marriage, stem cells, birth control, abstinence only, and abortion are all components of the same agenda.
I’d love for an attorney (Hint, hint) to discuss the ramifications of what I call the Right’s “Sex Based Initiative.”
As far as I can tell, if they ever got their way, the Federal Government would have complete control over human sexual behavior.
the Right’s “Sex Based Initiative.”
You’re taking the piss surely! LOL!
“The US leapfrogged that process, which has the merit of clarity (and believe me, lawyers love clarity), but has had to pay very heavily for it thanks to ‘democratic deficit’. Day O’Connor – although supportive of Roe in Planned Parenthood v Casey – also pointed out that Roe likely killed a nascent democratic movement towards abortion rights in the several states. I think she’s right, although whether the situation is retrievable now is a rather moot.”
Then again, when the Supreme Court shut the democratic door on segregation, Jim Crow, miscegenation, etc. laws (that in their day were more controversial and divisive than abortion) America moved on pretty well, even though they didn’t get to work through it democratically. Who knows how things would have developed if the Court just completely avoided ruling on controversial political issues in America. Maybe things would have turned out better, maybe they’d be a lot worse or maybe they’d be the same.
That said, my preference for the judiciary’s constitutional role is pretty much the same as the one espoused in John Ely Harts’ Democracy and Distrust , i.e. the court should concern itself with the venue for decision making and the integrity of the democratic process and leave the outcome of substantive issues well alone. However, I disagree with him on whether there is much textual support for such a reading of the US constitution. Moreover, even if there was, it doesn’t seem that mainstream liberal or conservative judicial thought, US political institutions or either major political party wants such an approach. Both the left and the right are happy to have the judiciary legislate when they agree with them.
Both the left and the right are happy to have the judiciary legislate when they agree with them.
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I’m not. One of my first acts of heresy was a heated debate I got into viz some liberal law firm in the States that set out to establish ‘progressive’ precedent.
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The trouble, despite the obvious, is that ‘the other side’ will do it too. And then the courts become an extension of party politics. SCOTUS seem to going there.
Nanu-
I assure you, I’m not “taking the piss,” nor am I buggering about.
I’m very serious.
We have a VP candidate who not only believes abortion should be illegal, she also believes birth control should be as well, because they’re “Abortifacients.”
She believes the earth is 6000 years old, that dinosaurs lived with people, that Anthropogenic Global Warming is a untrue, and that we are living in the “End Times.”
Her running mate is 379 years old with an extensive history of Melanoma.
Oh, she’s also about as incurious as a mud slide.
Okay, maybe I’m taking the piss, a bit.
But I would love to hear an attorney’s point of view on the issues I presented in my previous comment.
And since LE is the only attorney I trust (possibly because she lives on another continent), I thought I’d ask.
Fairlane -
Legally, you should get laid as much as you can while you still can. The Sexocracy is on its way.
Apparently Sarah Palin supports the court’s finding of a consitutional right to privacy… I think… Maybe. I dunno:
“COURIC: Do you think there’s an inherent right to privacy in the Constitution?
PALIN: I do. Yeah, I do.
COURIC: That’s the cornerstone of Roe v Wade
PALIN: I do. And I believe that –individual states can handle what the people within the different constituencies in the 50 states would like to see their will ushered in in an issue like that.
COURIC: What other Supreme Court decisions do you disagree with?
PALIN: Well, let’s see. There’s –of course –in the great history of America rulings there have been rulings, that’s never going to be absolute consensus by every American. And there are–those issues, again, like Roe v Wade where I believe are best held on a state level and addressed there. So you know–going through the history of America, there would be others but–
COURIC: Can you think of any?
PALIN: Well, I could think of–of any again, that could be best dealt with on a more local level. Maybe I would take issue with. But you know, as mayor, and then as governor and even as a Vice President, if I’m so privileged to serve, wouldn’t be in a position of changing those things but in supporting the law of the land as it reads today.”
AJ -
I “think” Palin was just saying that she can’t change the law and that as an elected official she must support the law as it reads today. Effectively she confirmed that her personal views are separate from her public obligations regardless of the fact they are opposite.
______________________________________
With regard to Roe v. Wade, I’ve always regarded the decision as having created a ‘questionable’ right to life for the foetus under the Constitution. Its not a person so it actually doesn’t seem to fit into the Constitution in terms of a person or citizen that has any rights whatsoever. Likewise, I find the right to an abortion due to the right to privacy to be equally suspect.
The Roe v. Wade decision in my view was political/moral compromise by the Supreme Court, it was in no-mans land and the Judges knew it. Considering that abortion existed when the Constitution was drawn up, why was the question of the abortion never addressed. I bet the founding fathers didn’t want to touch it.
Fairlane, definitely the debate is about where the state should intervene on sexual behaviour (both legally and on a policy basis).
Let’s start from a premise that there has to be some kind of control over sexual behaviour…most people believe, for example, that paedophilia is wrong and should be outlawed. Or rape.
The conservative side of politics wants to draw that line in a way which controls sexual behaviour far more (sex within marriage only, heterosexual sex only, less promiscuity etc). Libertarians and the left want to draw that line in a way which controls sexual behaviour rather less (homosexual relationships are okay, sex outside marriage is okay etc).
The way in which we decide whether or not to intervene on matters sexual generally relates to whether we consider a particular kind of behaviour harmful (so with the paedophilia and rape examples, about 99.9% of the population hopefully think such behaviour is harmful and should be outlawed).
I think there are two agendas going on behind the anti-abortion campaign.
The first strand, which I have rather more respect for, is that abortion is harmful (and indeed fatal) to an unborn foetus, and therefore should not be condoned. I have to say that, although I believe abortion should be legal in certain circumstances, I would have a great deal of trouble having an abortion myself (unless my child were severely congenitally deformed or something like that). For me, it’s a last resort, but one which should be available (and even if you ban it, it’s always going to be available).
The second strand is the one you have identified, Fairlane. It’s mixed up with this “no sex before marriage”, sex for procreation only moral campaign. So people campaign for abstinence rather than birth control. Surely if you wanted to prevent unwanted abortions you should be in favour of birth control on a logical level?
Personally I’m a big fan of the “morning after” pill – gets rid of any unwanted child before it even implants and before it gets any sentience or real existence. But most anti-abortion campaigners would be against this as “killing an unborn child”. Seems to me that getting rid of a bundle of cells that may or may not implant successfully is far less culpable than getting rid of an implanted foetus. The reason why many anti-abortionists are anti contraception and anti morning after pill is not really about life, as far as I see it. It’s about controlling sexual behaviour (ie, “if we let people take contraception and the like, they will be really promiscuous!”) I know I’d have a Catholic friend who would disagree with me (he believes in the sanctity of human life from the moment of fertilization). But I think it is really about controlling sexual behaviour, and thus measures which could prevent abortion (contraception and the like) are also opposed by anti-abortionist for entirely different reasons.
Anyway, great point Fairlane – really made me think (as usual).
She believes the earth is 6000 years old, that dinosaurs lived with people, that Anthropogenic Global Warming is a untrue, and that we are living in the “End Times.”
Her running mate is 379 years old with an extensive history of Melanoma.
What’s wrong with that? We need someone with a stern morality in control of the Bomb. Who better than with a man like McCain whose about to kick and whose fondest memory of life appears be the years he spent as a Viet Cong prisoner and a woman who thinks she’s going up to Heaven three seconds before the world blows up.
That’s the trouble with commies like you, you’re so irrational.
it’s always going to be available
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Exactly.
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The morality of the situation is between yourself, yourself and God (should S/he exist and if so care). Conservatives are attempting to reintroduce the moral consensus that existed supposedly before the 1960s by legislation which won’t work and, in the event that it could, is wrong anyway.
The Religious Right are a bunch of neo-Calvinists who want to fulfil the Herd’s millenia long mission to turn us all into sheep. Earth to them: you can be sheep, we’re human beings (ie apes who’re trying to emulate more elegant animals). The irony of the creationists is that in denying their true nature they’re condemning themselves to be forever subject to it. Bill Hicks once observed that it was funny how they often look unevolved.
The question is: what are the consequences of public policy? There the evidence is very clear. I think conservatives have a point about freewheeling self-indulgence and the lack of sexual decorum apparent these days (and coming from me that’s saying something) but the solution is in the ethical realm not the political one.
Hmmm…LE what was that waffle?
I knew you’d find a substantial although not entirely substantiated response for Fairlane! 
My two cents…it not a sex based initiative, its not new Fairlane, its plain old fundalmentalism. Count your blessing you have your rights enshrined in your Constitution, we in Australia don’t have such protections.
By the way they ain’t Right- wing or Left- wing, they have their own special wing all to themselves and much like the Hotel California “You can check out any time you like but you can never leave.”!
Stalker, I’m never happy with the labels “Left wing” and “Right wing” myself.
I’m afraid I got on a bit of a flight of fancy there – thinking through stuff out aloud…
I agree it’s fundamentalism, but I do think the religious fundamentalists do have a sexual morality based agenda as much as they have a “pro-life” agenda.
Adrien, I also think total freewheeling sexual self-indulgence ain’t always a good thing. There doesn’t have to be any commitment these days because one can avoid many consequences of sexual encounters. Sometimes this leaves one party to the relationship feeling pretty betrayed when they realise that for the other party, it was just a “fling” with no real emotion.
I guess part of the rationale behind the moral crusaders is that if the consequences of sex are very serious (ie, a child) then people will think twice. But then I think people will still do the deed anyway. At heart we are just animals really.
There’s a tendency to think it must have been different in the past, but interestingly, when my mother looked back through our family tree, there were a few children out of wedlock and other scandals. These realisations led one of my relatives to exclaim, “I always wondered why Uncle Ray looked so different to the rest of us!”
LE, I appreciate your comment, and I understand your ambivalence when it comes to the “abortion issue,” as I am also unsure of where I stand.
But I attribute that to the black, and white nature of the debate.
Neither side offers a real solution other than “No abortions, period,” or “Status quo.”
As far as the “Sex Based Initiative” goes, I don’t think the average “Fundamentalist, Conservative,” whatever, is in favor of controlling sex, however, when you put all these issues together, instead of looking at them piece meal, the potential consequences are ominous. In fact, they’re straight out of some Orwellian nightmare- Control Sex, Kill Humanity.
Yes, we have a Constitution, but, as we’ve seen, the Constitution can be circumvented.
Bush said it was nothing but, “A Goddamned piece of paper.”
The next president will be able to shape the Supreme Court for decades to come, and that’s exactly what the “Fundies” are counting on, control of our highest court.
I think people underestimate just how “Conservative” (Backward) the United States really is, and as proof, I offer this nugget- 38% of Americans believe Creationism should replace Evolution in science classes. 64% believe it should be taught alongside Evolution.
We’re drowning in stupid, and we have Nukes.
I’m pro-abortion access and anti-death penalty but I don’t see that as contradictory as both my arguments are based on lack of perfection rather than idealisation of what does or does not constitute life.
I’m pro-abortion access because there is no such thing as 100% effective contraception – even the most responsible belt-and-braces couples can have an accidental pregnancy.
I’m anti-death penalty because I believe that absolute sanction requires absolute justice – and I don’t think that’s even possible in a human legal system.
Fairlane -
I bag Americans all the time, its a hobby the rest of the world enjoys especially bagging the red-necks. But you do have a great legal system…not perfect OK, but the founding fathers engraved rights in its constitution that have stood up against attacks in modern times when the administration is in conflict with the judice system.
{Too lazy to correct spelling & grammar if needed..sorry, but thats me being me! :_) }
Shit I can’t even do a smiley right
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“I’m pro-abortion access” …thats the way to put it. Good call.
I bet Uncle Ray will be pleased about that comment..LOL!
BTW..this is a really good blog, really good (& well written) posts and a really good discourse. Well done SL & LE.
I asked this on the LP thread but never got an answer:
I’m curious about what feminists who view abortion as a right, and anybody who’s somewhat militant in their opposition to Catholic doctrine in relation abortion, view of ‘female foeticide’ in the third world & developing countries.
You appear somewhat obsessed Nanu.
You won’t find the LP femtrolls answering a question like that because all cultures are equal and it would be racist to criticise The Other. As you would know if you weren’t a bloody male WASP, we should never judge The Other by our imperial racist classist standards. Or something Ed Said said. Or thereabouts.
Paging John Greenfield …
On this immediate association of pro-life with right-wing/conservative/baddies I have an interesting data point. An old friend of mine is a practicing Roman Catholic – actually, she’s quite a pro by now – who would not have an abortion under any circumsatnces, however will riot in the street if the state were to try to deny OTHER women access to appropriate technology. Why? She says Jesus Christ does not require her to go marauding about the shop dispensing justice, that is god’s job. Matthew 22:21 and all that.
I know another bloke – American Roman Catholic priest – who thinks the US should legalise gay marriage. Why? 28:21, church/state. He, himself, would never marry gays in his own church, and fiercely opposes any liberalisation by the Catholic Church on such matters. What he really worries about is those who marry in the Catholic church and do not take their vows seriously enough.
Mel
For the good of all bloggers here, don’t get me started.
It’s an interesting question – if in the West we decide that people can abort a child because it would cost too much to bring it up, should we point the finger at people in other countries who abort girls? Part of the reason why they do not want girl children, on my understanding, is that there are large dowries to be paid when the girl marries. Therefore, one could say it’s for financial reasons.
Nonetheless, I don’t think the answer is to allow female foetuses to be aborted. I find the idea repugnant. I think the answer is to try to change the culture which produces that outcome. Yes, I know that makes me a fascist imperialist, but there you go.
JG, your friends sound like the kind of conservatives I would respect. I’ve got no problem whatsoever with people having conservative beliefs. What I do have a problem with is people forcing them on to me when I don’t share their faith or beliefs. If your friend would not personally have an abortion, but would support the right of others to make that choice, I salute her.
Nanu’s question is actually a good one, and is also relevant to the aborting of disabled babies in the developed world. Lots of abortion legislation world-wide (including that in the UK) permits abortion in the last trimester when the foetus is disabled, but not when it is ‘healthy’; the eugenic element is unmissable.
Also JG: tone down the gay boy bitchies, please; we do value your input, but you may just have to leave that feather boa at the door – Mel manages to
‘Nanu’s question is actually a good one’
I agree. To answer it, one would first have to ask oneself why it’s the female foetuses that get aborted. If the answer is the large dowries, one must then ask why that. As if one did not know the answer to both questions.
Personally I think a societal tendency to abort female foetuses contains the seeds of its own destruction and requires no intervention from other cultures, only the passage of time.
PC, I think you’re right that such practices contain the seeds of their own destruction. For one thing, it will mean that there won’t be enough women to go around. And then maybe they will start being treated like valued human beings rather than property to be passed from man to man. Scarcity economics…
The scarcity argument is a good one. There is a close link between women enjoying enhanced rights (particularly in relationships) when there are fewer of them, although once again most of the research has been in developed countries, or the ‘upper’ end of the developing world.
The gap only needs to be small, too – 100 men to every 99 women produces some very interesting distortions in the marriage ‘market’. My suspicion, however, is that for the numerically smaller group of women to get the economic benefit, there needs to be a ‘rule of law’ framework in place – relatively easy access to divorce, for example, and the ability to choose one’s marriage partner. If there was something you wanted to be imperialistic about – even if only with immigrant cultures – it would be working to undermine arranged marriages, as they prevent women in places with sex-specific abortion making use of their scarcity power.
As to when the positions are reversed, Charles and Luoh have done terrific research on what high rates of male incarceration have done to black women’s relationship options in the US (where there are – as a result of incarceration – slightly more black women than men).
I think India has made dowries illegal ‘officially’ but of course, this has been impossible to police at local levels because the police themselves support the local culture (Pakistan is notorious for this same problem).
It definitely still happens. Regardless of whether it’s outlawed or not. At least some people in India are actually speaking out against unfair practices with regard to dowries these days.
I remember a few years back, a talented, intelligent gorgeous girl had an arranged marriage with a guy, but the guy’s parents pulled the plug at the last minute because her parents wouldn’t accede to their extortionate demands for more dowry. At one time it would have been shameful for her to admit this publicly, but she went on television to point out how ridiculous the whole thing was.
To be honest it isn’t a question, its a deliberate argument destroyer. A line gets drawn somewhere. The Abortion argument as I’ve said before is innately personal, we just have to make the best of a raw deal. As Deus said before “I’m pro-abortion access” is the position, nobody is pro-abortion, it stinks but its a necessary evil even to when something as shallow as economics comes into play.
I also think total freewheeling sexual self-indulgence ain’t always a good thing. There doesn’t have to be any commitment these days because one can avoid many consequences of sexual encounters. Sometimes this leaves one party to the relationship feeling pretty betrayed when they realise that for the other party, it was just a “fling” with no real emotion.
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I tend to agree. There’s a certain free-for-all in the sexual culture at the moment,. There’s a pretty clear procession from at least the 1960s echoed in the ’20s and the 1800 generation. I don’t agree with Conservative when they say the ’60s was the End of the World. But liberating oneself en masse from previous repressions does lead to a period of turmoil. We’re at the tail-end of that now.
Viz casual sex, there’s ethical requirements for honesty and consideration and the rest. I do find it puzzling that anyone would go to a singles’ bar say to look for emotional commitment. But that said there’s a huge range of options for the conduct of sexual life between marriage for life and Disco Stu One-Night-Stand revue.
The Religious Right are, in the main, anti-sexual freedom. Sex for them in extremis is a necessary evil. To receive pleasure from it; to explore it a la Anais Nin say, is evil. I’m repulsed by this self-imposed poverty of imagination.
Still I regard the current sexual ethos vulgar and venal. There’s a complete lack of decorum, of manners, of style. There’s no tenderness. As Paglia has said where sexual freedom goes sado-masochism follows.
Still I believe there must be an ethical culture that a. is honest about human sexuality and b. seeks to do more with it than use it to create property-progeny structures.
Disco Stu doesn’t advertise.
Skeptic – The scarcity argument is a good one.
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There’s man-drought in Melbourne apparently. Women are complaining there aren’t any eligible men. But there’s lots of single men. I don’t see what they’re complaining about.
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Oh you want a guy that has more than ten bucks and washes on a daily basis.
SL
Surely demanding one leave one’s feather boa at the door on Sleaze weekend is an egregious offence against some sort of human rights, or at least bitchy gay-boy rights!?
Hello,
I agree entirely with the men who protest against abortion. They should approach women who are abt to have an abortion to offer them to raise at their own expenses the future child until adulthood. Bunch of idiots. Most women who have abortion performed, are some times in a difficult financial position. Are we going back to the middle ages or what? Such an hypocrisy. I am 66 years old, a woman. I realize America is quite backward in many ways just like the muslim world. Control of women men cannot help it. Men control your dick.
Best Regards
Evelyne Casteres
Men control your dick.
No. No man nooooo.
The whole set-up is based on the idea that we can’t. If the truth gets out and the chicks realize that’s bullshit then it’ll blow the whole deal.
We’ll have to be, like, responsible n’ shit.
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[...] in part because the ruling took the decision away from the legislature, thereby producing serious democratic deficit). Creationism, by contrast (even in its muted ‘intelligent design’ form) simply [...]