Centerfield

Brian;
A couple of points:

Why? Why should that be the starting point? Why shouldn't the starting point be the right of an individual to make difficult personal decisions themselves without governmental interference?

Isn't it just as likely that going this route will make the red states redder, the blue states bluer, and result in 50 states that are each bitterly divided?

Finally, if Mitt's been waffling (and I'd leave it to folks in Ma. to confirm) I have little sympathy with the letter. Reminds me of the Cuomo "I'm personally against but..." statement that was meant to appeal to diverse sections of the electorate. If you beleive something, say it and let the political chips fall where they may. I'm not advocating harsh and hard positions on the abortion issue, just honest ones.

Well of course the people of the nation have NOT decided on how to handle the issue of abortion at the national level. Rather, a rule of law was imposed on us without our choice.

While there may be a larger policy debate on whether abortion policy should be consistent on a national level (today it is not, because each state has different rules on parental consent, partial birth abortions, etc.), that debate cannot be had today without talking about a constitutional amendment on abortion policy. The opposition to Roe v. Wade on federalist grounds is premised not on what the law should be but on what level of government has the power under our constitution to establish those laws.

And one premise of federalism is that there is not always a single right answer on any given question. As strongly as you argue that abortion is a difficult personal decision that should be left to the freedom of the individual, others argue with equal or greater passion and reasoning that allowing abortion is a fundamental violation of each individual human being's right to life, from the beginning. That you disagree with this characterization does not mean that it must come out of the political process, that it is illegitimate for other people, if they are in the majority, to decide the issue differently.

As a matter of practical politics, my own feeling is that the national tide of opinion is changing on abortion, and that if Congress were to pass a national rule right now (something Congress probably doesn't have the power to do, which is another reason there will be no single national policy), that policy would be far more restrictive on abortion than is currently the case. So if you want to preserve its availability, you should be preparing to advocate in individual state legislatures.

BK:

Are you advocating for a national law on abortion?

I, for one, have guarded respect for Romney's position. That being said, it does appear that he has shifted right in his public stance. Yes, he made a promise that he would not change the abortion laws while he was Governor, but abortion certainly wasn't something that he wanted to talk about durign the campaign...he didn't want it on the radar screen. Now, all of the sudden, it's important. Regardless of whatever stance he may now have, it's hard to view it as a principled one when placed in the context of a probable presidential run. (BTW...I view George H. W. Bush's transformation in much the same light.) I can't personally claim have insight into the sincerity of his conversion, I can say that it appears suspiciously timed.

I would agree with Pat's observation that a present day revisiting of abortion law on a national level might find the populace inclined towards tightening the restrictions. But, I don't think for one minute that the majority of the country would outlaw abortion completely. I wouldn't be surprised if we don't see the court allow states more leeway in the coming years, but I don't think they will allow any erosion of the basic right that was cited in Roe v. Wade.

This very question is at the heart of so many arguments about abortion. Now, just so you know, I'm pro-life. For whatever reason I tend to approach the issue from the "fetal" perspective. Is that wrong? I don't think so but I've noticied that that approach immediately puts me at odds with pro-choice folks.

Chris, I don't think so either. My point is to call attention to the fact that Romney was just making a declaration, and maybe trying to quickly sneak it in as fact. This IS the heart of the matter, and Romney is trying to make it not be the heart of the matter, and instead make federalism the heart of the matter. I'm suggesting that Romney's newfound emphasis upon the virtues of federalism here is a choice made from convenience.

Well of course the people of the nation have NOT decided on how to handle the issue of abortion at the national level. Rather, a rule of law was imposed on us without our choice.

Pat, I'm not sure why you're emphasising the "not," since I don't think I made the claim you seem to be challenging.

The opposition to Roe v. Wade on federalist grounds is premised not on what the law should be but on what level of government has the power under our constitution to establish those laws.
Very true. And I understand that, and it's a valid point, especially if you are someone who is well known to care about the issue and has a consistent position on it. But I'm not really talking about the mechanics of the federalism argument vis a vis "federal vs. state" enforcement. I'm interested in the extension I alluded to when I said this: If it's better for the states to decide than the feds, isn't it even better to let each and every person in each of the different states make their own choices on matters of controversy, thus avoiding the bitter battles engendered by all sorts of governmental ''one size fits all" pronouncements? Since you are tacitly granting that it would be OK for some states to decide that it's OK for abortion to be legal, why is it then wrong to let each individual make this choice?

That's a question I'd love Romney to answer. My point is that, if Romney believes as he has stated, then he has to really think that abortion is always wrong, which is why I think his elevation of federalist principles is born of convenience. How many honest pro-lifers will deny, that should Roe get overturned and abortion made illegal in some fraction of the states, they'll move on to an organized evangelical effort to change the law in the remaining states? This calls into question the idea that Mitt Romney just wants to foster national peace through fealty to a constitutional democratic process. That's misdirection. Mit Romney did not change the tone of his public pronouncements on abortion because he wanted a more peaceful union. That's BS.
As strongly as you argue that abortion is a difficult personal decision that should be left to the freedom of the individual, others argue with equal or greater passion and reasoning that allowing abortion is a fundamental violation of each individual human being's right to life, from the beginning. That you disagree with this characterization does not mean that it must come out of the political process, that it is illegitimate for other people, if they are in the majority, to decide the issue differently.

Constitutionally speaking, I absolutely agree. Nevertheless, it opens to door to serious questions about the nature of acting good and morally in situations in which you do not have the freedom to choose.

Regardless of the actual constitutional existence of a right to privacy, I think a solid majority of Americans wants it. They want the right to make agonizing decisions for themselves, and to free from the prying eyes and dictates of an intrusive government, be it federal, state, or local.

I totally acknowledge that many people feel they have a right to intervene in such a decision on behalf of what they view as a nascent life with full human rights upon conception. What this strong disagreement between people usually leads to, given fair-minded discourse, is the willingness to agree to disagree.

IMO, the fact that passions run so deeply and are also so divided is extremely strong evidence of the inherent wisdom and courage of the Roe ruling that dictated that this be a personal matter, one where it warranted protecting individuals from a situation where a minority might be oppressed by a tyrannical majority.

This of course leaves aside the issue of whether the SC overstepped the bounds that the founders intended to grant. IMO, it's a wise enough decision to accept.

And I think it's a virtually certainty that overturning Roe will lead to an increase in bitter divisiveness across the country.

And I think it's a virtually certainty that overturning Roe will lead to an increase in bitter divisiveness across the country.

I couldn't agree more. That's why I just don't think we'll see it. Modifications, yes. Annulment, no.

Carla, no. I'm curious what makes you think that. Please explain?

If anything, I'm arguing for the wisdom of the finding of a right to privacy in making decisions on controversial issues. The more controversial, the more evenly divided the people, the more I want people to be able to make their own decision without government interference.

Brian,

My point is that I disagree that calling for federalism is somehow tacitly admitting that it's really a matter of personal liberty. One can support the Constitution's separation of powers between the 3 branches and between the national government and the states without supporting in any way the policy choices made by the states in the exercise of that power. I support the death penalty. I also support the right of the people of New York or California to decide they don't want it.

It's not about rights, it's about who decides such issues. I can support the right of the people to make particular decisions while disagreeing, even disagreeing vigorously, with the decisions they make. Moreover, I think we will have greater national unity if California activists don't try to impose their morality on Louisianians and vice versa. There will be very little fighting in Louisiana over abortion when Roe is eventually overturned. We probably won't completely outlaw abortion, but we will impose significant restrictions, because that's what the vast majority of people in the state want. And I expect the opposite will be true in California or Massachusetts.

Again, as a practical matter, I would be very careful if you support personal choice over protection of a fetus in this matter by insisting that tolerance for states rights on the abortion issue equates to granting legitimacy to the practice. That will in the end only fuel the very strong right-to-life movement to insist on a national amendment protecting the right to life from conception, or the appointment of judges who will (with greater ease than the Roe court could muster) find that the equal protection clause guarantees that the unborn must be equally protected against murder as the born.

"At the same time, the starting point should be the innocence and vulnerability of the child waiting to be born. "

Why? Why should that be the starting point? Why shouldn't the starting point be the right of an individual to make difficult personal decisions themselves without governmental interference?

I think you can find the answer why, in your choice of words -- "right of an individual", "personal choice", "themselves".

These are words which would be appropriate if the decision maker was only impacting their own being in a victimless choice.

None of these words are fitting when a seperate entity is victimized by the decision to abort.

Abortion is not comparable to removing a benign tumor. Abortion kills a living being which is genetically, distinctly human. A being which unlike a tumor, may have its own beating heart and ability to perceive pain.

Killing should never be an absolute unrestricted right, and is rightly the sphere of government regulation.

Laws may restrict the "personal choice" of a person to put down their elderly parents when they become senile, helpless and burdensome. Laws rightly regulate the killing of pets and farm animals as well.

In all these cases the consideration of the vulnerable victim takes precedence over the "right of the individual to make difficult personal decisions themselves without governmental interference".

The idea that a fetus deserves less legal consideration than animals is a really amazing modern innovation of the Supreme Court.

What real reason is there to think that allowing each state to decide separately for all of its citizens will result in more peace

Maybe the status quo of the government sanctioning over a million abortions a year is not "peaceful".

Well said, Susan.

BK:

I guess it was this paragraph that prompted my question:

What real reason is there to think that allowing each state to decide separately for all of its citizens will result in more peace, and a nation less bitterly divided? Isn't it just as likely that going this route will make the red states redder, the blue states bluer, and result in 50 states that are each bitterly divided?

It didn't make a lot of sense in context with the rest of what you were saying so I guess I found it confusing.

I'm recovering from an infection so maybe my brain isn't processing it the way you meant it..?

Carla, that paragraph that confused you was composed as a response to Romney's suggestion that we wouldn't find peace until we went through a states rights process of determining the legality of abortion in each state.

I'm questioning whether there's any reason to think we'll have a less peaceful nation if we go down that road.

I'm questioning whether there's any reason to think we'll have a less peaceful nation if we go down that road.

Ah. I see now. Forgive me for not absorbing that. Still feeling a bit fuzzy.

I'm curious about Romney's real goal here. Is he truely interested in reducing the number of abortions? Does that really matter to him...?

I suppose I've watched this issue so long that I'm cynical. It seems to me that it's more about controlling individuals rather than being prolife (anti choice). If one is truely prolife, wouldn't one want to see what things are proven to reduce abortions and then implement them?

What's so interesting is that my Church, the Catholic Church, up until the 19th Century viewed early-term abortion as, well, something that was less than murder. The Church evoked lots of Aristotle-style pseudo-science, but both the Church and the good philosopher recognized something that so many don't seem to get today: that every human being starts out life as a clump of cells, comes out of the womb as a sentient being, and at some point in between, goes from being that clump of cells to that sentient being. As such, given the social and economic devastation that would come to many individuals without abortion, I think that reasonable people can disagree over whether taking a pill that stops cells from dividing or stops one thing from being "implanted" into something else is actually ending the life of a sentient being.

Of course, when it comes to later-term abortions, I favor giving the state as much leeway as possible to restrict them.

Further, I don't think that overturning the current judicially-mandated abortion policy would be the apocalypse for women's rights. To the contrary, with 65 percent of Americans supporting "Roe v. Wade," which, due to the lack of knowledge of regular Americans regarding the law, means that those Americans are really saying these support early-term abortion remaining legal, there will probably be all of 6 states that have near blanket bans on abortion. And since there's nothing to stop a woman from getting in her car and driving from Alabama to Tennessee, well, this will have little practical effect, especially on women who exercise moral responsibility and make this decision early (as opposed to changing their mind after the fetus is clearly a viable, sentient being with brain waves and such).

Now, here's the thing though. Pro-lifers will definitely feel cheated after seeing that 35 years of combating Roe has led to little more than a few late term abortion bans here and there. And they will definitely feel their next crusade is to ban abortion at the federal level. The thing is, anyone who hangs out inside the beltway knows that most "pro-life" Republicans in DC don't want to change the laws in this country on abortion, and pretty much every Democrat likes things the way they are. I doubt you could get more than half of Republicans in either house of Congress to vote for a nat'l abortion ban. It would be similar to trying to pass a nat'l gay marriage ban.

Point is, if pro-lifers ever do get what they want and Roe is overturned, you'll probably be seeing the beginning of a battle that will turn Washington upside down. The dirty little secret that no one in the GOP establishment is telling the so-cons is that their way of doing things is over. Gay rights in civil law, reproductive freedom, stem cell research, evolution accepted and taught as fact --- these are the ways of the future. Just talk to any Republican under 35 and see what he thinks of these policies. Chances are, he's on the "liberal" side of each one. As such, the generational shift is slowly but surely taking the country away from the so-cons, and that includes the most rabid pro-lifers. And when so-cons wake up and realize the GOP has been playing them all these years, you're going to see Washington turned on its head.

Pat

My point is that I disagree that calling for federalism is somehow tacitly admitting that it's really a matter of personal liberty.

I'm not going so far as suggest it's a tacit admission, I'm only raising the question, and I'm curious about what others think. Especially Romney.So I'm going to repeat it again, in hopes that some will address it more directly than by describing it and saying they disagree with it:

If it's better for the states to decide than the feds, isn't it even better to let each and every person in each of the different states make their own choices on matters of controversy, thus avoiding the bitter battles engendered by all sorts of governmental ''one size fits all" pronouncements?

Notice especially that this is just a slight moderation upon what Romney initally said himself. Further notice that it was something else that I called a "tacit admission":

Since you (Romney) are tacitly granting that it would be OK for some states to decide that it's OK for abortion to be legal, why is it then wrong to let each individual make this choice?

My point here is that Romney is now currently maintaining that he'd be happy with letting each state decide, so it's fair to presume that he must be OK with some states deciding to keep abortion legal. So I think it's legitimate to ask what the reasoning is by which letting each person decide is NOT even better. I'm not maintaining anything here. I'm just asking. I'm also wondering if Romney legitimately IS willing to accept interstate variance.

I think we will have greater national unity if California activists don't try to impose their morality on Louisianians and vice versa.
I find thisnaive, and maybe even disingenuous. Activists have been and will continue to try to impose their morality, and others imposing their morality is exactly what I'd love to avoid, and what the right to privacy encourages us to avoid.

There will be very little fighting in Louisiana over abortion when Roe is eventually overturned. We probably won't completely outlaw abortion, but we will impose significant restrictions, because that's what the vast majority of people in the state want. And I expect the opposite will be true in California or Massachusetts.
OK, that leaves 47 other states. I think you're engaging in wishful thinking.

Carla, from what i know of Romney, he's not opposed to other policies that would decrease the number of abortions. He's a solid conservative, but he's not an ideologue, IMO.

Susan, I have to ask: is your post going to be a stealth post where you glide in to score a few clever sidelong points and then fade away, or can I expect some genuine discourse?

None of these words are fitting when a seperate entity is victimized by the decision to abort.

Abortion is not comparable to removing a benign tumor. Abortion kills a living being which is genetically, distinctly human. A being which unlike a tumor, may have its own beating heart and ability to perceive pain.

Any two things are comparable. The relevant matter in a comparison is whether we can learn anything in making a comparison. You can make the black and white distinction that equates the value of each and every fetus with the value of all other lives until the cows come home, but now you're making your own faithful declaration. I notice particularly that you say this:

A being which unlike a tumor, may have its own beating heart and ability to perceive pain.

Yup: may. I think further investigation into the exact nature of that "may" is a good way to determine when and where an abortion crosses the line from a personal decision to one that also involves a 2nd individual in a meaningful sense. I'm not convinced that conception is that moment. Are you? If so, why?

Killing should never be an absolute unrestricted right
Have you got that list of absolute unrestricted rights handy?

I don't see what is gained from the rest of your argument which makes a mockery of the notion of personal choice in the context of an unplanned pregnancy. The allusion to the rights of animals is particularly specious given the number of animals killed for food and euthanized. I'm far from an animal rights ideologue, but rationally, I acknowledge that animals are utterly at the mercy of human whim, and far less well treated and valued than fetuses.

In response to my question about the level of strife we can expect if Roe is overturned, you responded as follows:

Maybe the status quo of the government sanctioning over a million abortions a year is not "peaceful".

Unless you honestly think that's what Romney and I were talking about, that's just a clever albeit poignant dodge. Instead, why not give us your honest assessment of whether overturning Roe will lead to a nation of Americans less bitterly divided? If you don't think that's worth considering, say that.

Brian,

Fundamentally, you believe an embryo is just a collection of cells, and therefore getting rid of it is a "personal choice in the context of an unplanned pregnancy." Fundamentally, Susan believes that an embryo is a tiny human being, different from a born child only in stage of development and absolute biologic dependence on a particular mother. These two world views are in fundamental conflict.

One truly believes it is an issue of personal choice, the other truly believes it is morally equivalent to murder. Bridging that divide, finding a way for people with those two worldviews to live together in harmony is no easy task, made far worse when rules are imposed on them from above, without giving the people a say.

Further, we know from watching elections, statistics, and cultural observations that some parts of the country are more conservative and some more liberal on this issue in particular. It is reasonable to assume, therefore, that different areas (states) will settle on different rules, given the choice, and those rules will reflect the prevailing cultural attitudes. So in California or Massachusetts we will likely see few restrictions on abortion at all. In Louisiana, we will probably have major restrictions, if not an outright ban. In the other 47 states, we'll see a varying level of restrictions, would be my "naive" prediction.

As for my "naivete", of course activists will continue to agitate in various states. There are activists on all sides of many issues; the presence of activists alone doesn't make the issue divisive. Even difficult, contentious issues can be resolved when people are allowed open, fair debate to work things out.

And I think you continue to refuse to understand the difference between the merits of the substantive policy decision and how (and by whom) those policy decisions are made. Just because you say so does not make it inconsistent. I support civil unions equivalent legally to marriage by gay people, for example, but absolutely disagree that such a policy should be imposed by the courts. If you can't see the distinction, you are failing to understand some fundamental principles of political science.

And as a matter of centrism, by (essentially) calling Governor Romney a hypocrite for being prolife while also agreeing that abortion policy decisions should be left to the states, you are demanding that he be more ideological, more dogmatic. I don't see how that's a very centrist thing to do.

Fundamentally, you believe an embryo is just a collection of cells, and therefore getting rid of it is a "personal choice in the context of an unplanned pregnancy." Fundamentally, Susan believes that an embryo is a tiny human being, different from a born child only in stage of development and absolute biologic dependence on a particular mother. These two world views are in fundamental conflict.

Pat, I wholeheartedly agree that the views you describe are ones that are in fundamental conflict. However, the view which you ascribe to me does not represent what I think. I don't view all embryos/fetuses with equal regard. I think that as an embryo develops and becomes more like a human, it deserves more regard. If any of you is under the impression that I think abortion should be solely a personal choice for the entire 9 months of pregnancy, you are mistaken. As I suggested above, and which you all seem to either have missed or dismissed, I'd love to see a lot more research related to fetal development, so that we can better determine how to regard as nascent human life as worthy of substantial regard, in balance with a host of other factors. And I think we should acknowledge that this consideration should change policy as we learn more, and as we are able to DO more.

And I think you continue to refuse to understand the difference between the merits of the substantive policy decision and how (and by whom) those policy decisions are made. Just because you say so does not make it inconsistent. I support civil unions equivalent legally to marriage by gay people, for example, but absolutely disagree that such a policy should be imposed by the courts. If you can't see the distinction, you are failing to understand some fundamental principles of political science.

Actually, no I don't. I understand this distinction quite well. As you well know here's the thing: it's a distinction that those who lean towards originalism hold in highest regard, and one which those who are willing to live with occasional expansive interpretations don't trouble themselves over nearly as much. You concern is with how the policy was arrived at. I don't dismiss that, it merits concern. But I am more concerned with whether I believe the interpretation to have been the most wise and most just policy to have applied given the circumstances at the time the policy was made. I was under the impression that you at least partially agreed with me that there have been occasions in judicial history where judges were called upon to rule courageously and creatively. Given that, as previously sdtated, I think most Americans want and in fact belive they are entitled to a right to privacy in some form, I'm not especially troubled by the questionable nature by which it came, at least currently to be something that has been determined to exist constitutionally.

Please notice that I acknowledge the risks inherent in such judicial decision making, and also please notice that I've granted that the result is that it may foster ill-founded decisions that require fixing. My point, reiterated multiple times, is that I'm willing to run the risk for pragmatic reasons, especially in order to prevent people from being denied rights that I believe they deserve, because they are waiting for the legislature and 2/3 of the states to catch up.

And as a matter of centrism, by (essentially) calling Governor Romney a hypocrite for being prolife while also agreeing that abortion policy decisions should be left to the states, you are demanding that he be more ideological, more dogmatic. I don't see how that's a very centrist thing to do.

Well I neither called him a hypocrite nor demanded that he be more ideological. I simply posed a question that I'd l ike him to answer, because I find his reasoning to be inconsistent or at least incomplete. He has expressed what appears to me to be a newfound respect and admiration for the principles of federalism, and thinks states rights are a jolly great idea. Maybe they are. I'm wondering how far this new support goes. Does he find merit for rolling back interstate commerce jurisprudence as well? I'm curious why you think it's illegitimate to ask Romney to show that his support for states rights is principled, and not simply a chosen vehicle.

And I'm still waiting for anyone to speak to the following question, which i'm not repeating because I have a trick uo my sleeve or becuase I don't understand any of the points you've made. I'm simply wondering, not just in the context of abortion, but across the entire legal domain:

If it's better for the states to decide than the feds, isn't it even better to let each and every person in each of the different states make their own choices on matters of controversy, thus avoiding the bitter battles engendered by all sorts of governmental ''one size fits all" pronouncements?

And please notice that I'm speaking of matters on controversy, and only to the extent that they don't involve pretty direct infringements upon the rights of others. For example, it's uncontroversial to outlaw theft, most people agree it's a bad idea. In the case of abortion or gay marriage, there's a substantial component of the populace that disagrees vehemently on what's proper. That's WHY I think the government shouldn't choose a side by regulating propriety.

I have a couple of things to add about Romney's article, which will have to wait until a little later, but I wanted to respond to two things from Brian:

IMO, the fact that passions run so deeply and are also so divided is extremely strong evidence of the inherent wisdom and courage of the Roe ruling that dictated that this be a personal matter

We could make an argument, I suppose, that Dred Scott was a brave ruling which finally forced an issue that had lurked in the back halls of Congress into the open, finally deciding the issue once and for all in the crucible of Civil War. That's essentially what all those accounts which call the decision in that case one of the opening shots of the civil war are saying. But the case was still wrongly decided - and by the same logic, so was Lochner, so was Griswold, and so was Roe. "[P]rophylaxis built upon prophylaxis, producing a veritable fairyland castle of imagined constitutional restriction upon law enforcement." (Minnick v. Mississippi, 498 US 146 (1990) (Scalia, J., dissenting)). The "right" to abortion - which appears nowhere in the text of the Constitution (see my remarks here at June 23, 2005 08:49 PM - was created by "a democratic vote by nine lawyers, not on the question whether the text of the Constitution has anything to say about this subject (it obviously does not); nor even on the question (also appropriate for lawyers) whether the legal traditions of the American people would have sustained such a limitation upon abortion (they obviously would); but upon the pure policy question" (Stenberg v. Carhart, 530 U.S. 914, (2000) (Scalia, J., dissenting)) - the question being, "what do we, five inteligent lawyers, think about this?". As I noted a couple of days ago, in saying that the court made exactly the right decision in Texas v. Johnson, this is simply beyond the purview of the Supreme Court, a grotesque arrogation of power which even pro choice folks should oppose as bringing their argument into disrepute.

I think it's a virtually certainty that overturning Roe will lead to an increase in bitter divisiveness across the country.

How could it possibly lead to MORE divisiveness than Roe has already created?

By engendering 50 separate battles in 50 states, and by encouraging activists to carry the moral battle from their state to other states. The bus companies and the intiative signature companies must be absolutely licking their chops. And please note that I brought this point up in response to Romney's implying that the path he was advocating was the proper path to a more peaceful nation. Should Roe be overturned, I really don't know whether the nation will be more divided, or how much more divided. I'm speculating, just like the rest of us. But I have serious doubts about the contention that the nation will be less divided if policies vary widely from state to state.

There is simply no doubt in my mind that Roe was wrongly decided, whether the result is a fantastically good thing for society or an absolutely terrible thing for society.
Which we already know and have gone over many times. Duly noted. I suppose I am as guilty as Simon of reiterating my views on this. Simon cares most deeply about the process, and believes that the means to making a legal decision is a very important end, in and of itself. My view, pragmatically, is that if the end is reasonably just, I can live with imperfect means, on a case by case basis.

My view, pragmatically, is that if the end is reasonably just, I can live with imperfect means, on a case by case basis.

In truth, this is the view of the majority on both sides of the political spectrum today. People on the pro-life side of this debate view Roe as an "activist" decision, thus playing into their denunciations of "activist judges." On the other hand, you'd be hard pressed to get any to acknowledge that they have issues with the Brown or Scott decisions. But, in reality, if Roe is viewed as an out of line activist decision, how could Brown or Scott be viewed any differently?

IMHO, these decisions reflect the brilliance of the government our founding fathers designed. If a majority of the country disagreed with the courts decision in Roe, we would have seen something done legislatively on the national nevel. The same goes for the Bush v Gore decision. In reality, the majority of Americans seem to be willing to let the SCOTUS decide such matters, and when something disturbs the majority, we'll see the Legislature(s) step up to the plate to force an issue. (Which we are seeing somewhat with the Kelo decision.)

On the other hand, you'd be hard pressed to get any to acknowledge that they have issues with the Brown or Scott decisions. But, in reality, if Roe is viewed as an out of line activist decision, how could Brown or Scott be viewed any differently?

"Activism" - ac·tiv·ism (n.) - The use of direct, often confrontational action, such as a demonstration or strike, in opposition to or support of a cause.

"Action" - ac·tion (n.) - The state or process of acting or doing.

See more extensive comments here regarding what judicial activism is and isn't.

IMHO, these decisions reflect the brilliance of the government our founding fathers designed. If a majority of the country disagreed with the courts decision in Roe, we would have seen something done legislatively on the national nevel.

For god's sake, Simon, cut a guy a break. Sometimes we try to do too many things at the same time, something that I was doing when I typed that post. It should read that you would be far pressed to find many who agree with Scott and disagree with Brown. You know I've been on this board for quite some time and would never justify Scott. There's a polite way to point out an apparent error, and then there's another way...

The counter argument is, if the majority of the country had agreed with Roe, why didn't they just enact the same policy democratically? Answer: because they couldn't.

You seem to be trying to say that the majority of the country was opposed to the Roe decision. If that was indeed the case, then why wasn't something done about it at the time? That's my point. Hell, yes, they could have done something. If it riled up the country enough, they would have pressured Congress to immediately pass an amendment. They weren't riled and Congress did not act.

Abel, to overturn the Roe decision with an amendment would not take just a simple majority. The pro-choice side could have implemented all of their policies on a state-by-state basis with simple majorities in each state. Once the Supreme Court elevated it to a constitutional issue, it could only be overturned by a complex process requiring supermajority support.

the counter argument is, if the majority of the country had agreed with Roe, why didn't they just enact the same policy democratically? Answer: because they couldn't.

Better answer: because they were insufficiently activist. The failure to pass an amendment is not necessarily a headcount failure, but a passion deficit. And let's notice that if you expect a living constitutionalist court to make mostly reasonable decisions, you are only moved rarely moved to passion. Notice, pragmatically, how much better this works. We don't have to get all riled up and invoke a multi-decade process every time the instruction manual is vague. We let 9 trusted people with vast leagl experience do it, and historically, they do a pretty good job. Then, we only have to get riled up when they mess up.

Abel:IMHO, these decisions reflect the brilliance of the government our founding fathers designed. If a majority of the country disagreed with the courts decision in Roe, we would have seen something done legislatively on the national nevel.

Simon: This ISN'T the system the Framers designed.

Brian: Abel, Simon is right. these decisions only reflect the pragmatic brilliance of our system in terms of the way it has actuaslly functioned in everyday reality, regardless of the actual intent of the founders. This is not the first time that a system has worked better than the designers intended, by fortuitous accident. Some of us would prefer the wrong decision arrived at via the proper process.

"Some of us would prefer the wrong decision arrived at via the proper process."

And some of us don't purport to know what the "right" decision is, and are content to let the people decide what is and is not right through the democratic process. That is to say, the "right" decision in this instance is defined as whatever decision is reached through the proper process.

Leaving aside issues of process for a moment, I think a good clarification of stances on this issue is the following: (1) One group feels that on moral issues that bitterly divide the public the government should butt out, and there is much to be said for that. (2) Another groups feels that in questions of life, law should err on the side of life which also has its merits. So really it's a debate between which good is the greater: freedom or life. As an aside, it is interesting that conservatives who choose life on this issue frequently choose freedom in foreign policy. They are willing to risk people's lives for the sake of freedom. As Patrick Henry said, "Give me liberty or give me death."

But I think centrists ought to focus as well on the practical issues. A major question I have is: if abortion were outlawed how would that affect abortion rates? Wouldn't wealthy people just go to Canada and wouldn't a black market open up in inner cities? In this way it's similar to the drug issue. Does banning really drive usage down?

A friend of mine has, throughout his many relationships, never been involved with one woman who hasn't had an abortion. His ex-wife had multiple abortions. So another question I have is are women "abusing the privilege"? I am pro-choice but I really think it should be a matter of last resort. Is it actually been used responsibly or not?

Although I consider myself pro-choice, I would really like to drop the abortion rate dramatically. Although I think our sex education has to be much better and favor plan B, what do people think if we fined women, proportionate to their income, for having more than one abortion (outide of rape, incest, or life or the mother) or for having a late-term abortion? I know it sounds loony, but I sort of feel sometimes economics are the best motivators for people to be as responsible as possible. We could use the tax to help fund methods to reduce unwanted pregnancies. But is this possible on a national level? Could we pass these kinds of policies?

Adam,

I agree that centrists can helpfully focus on issues such as whether a ban will reduce the abortion rate or simply leave it the same while driving it underground or to Canada. However, your suggestion for fines wouldn't work because it would require registration of women seeking abortions. The government wouldn't know if Ms. Roe was on her first, second, or third abortion without keeping a registry of each and every abortion performed. The country (properly in my view) wouldn't go for that.

If we were to try to regulate it by simply taxing it, then we hit the difficulty of either making it inaccessible to poor women or needing to subsidize the poor's access. And tax-payer subsidized abortions will never, ever fly.

There are good, common sense regulations that could be implemented. I've heard horror stories, for example, of for-profit abortion clinics actively promoting abortions and encouraging them. I'd like to see abortion providers relegated to the non-profit realm to remove this profit incentive.

But the problem (to return to process) is that the Supreme Court yanked almost all decisions on this subject out of the hands of the legislatures. The validity and enforceability of each and every single regulation on abortion remains utterly uncertain until the Court takes up that regulation and gives it the royal thumbs-up or thumbs-down. When the Court overturns or vastly limits Roe and lets the people decide the issue again, then I am quite certain that centrists will be vital in finding workable compromises between the two extreme positions.

I started writing this last night, and never got around to finishing it. I have to quibble with something in Romney's comments; this is really an exceptionally tough issue to bring up, but I think it's right to put it out there. The Governor writes:

I am prolife. I believe that abortion is the wrong choice except in cases of incest, rape, and to save the life of the mother.

As it seems to me, the underlying cause (or at least, the only legitimate one of which I can think) of one's views on abortion is your view of what it is that's growing in a woman's uterus. If you believe, as I do, that it's a human child, then you are handcuffed by that view to being pro life. It is inescapable; there is no other morally consistent position to take. (n1) If, on the other hand, you believe that it is nothing more than a collection of lifeless cells with the potential to be a human being, then a fortiori, you must be pro choice; any other positition would essentially be mysoginistic claptrap. (n2)

Let's just dispose of the last part of Romney's statement before we come back to the controversial part; there is a quasi-escape clause for the life or health of the mother, although it's not really an escape clause. Rather, the pro life argument, in my view, simply states that the child and the mother are BOTH of worth, and therefore, just as doctors attempt to save the lives of both siamese twins, but must often make a difficult and heart-breaking choice to save the one with the better chance of living, so it seems to me that any legislation on abortion must always contain an exception for the life of the mother. (n3) Obviously, though, abortion must be the absolute last option, and partial birth abortion is simply never acceptable under any circumstances. (n4)

The other part of the Governor's comment is repeated - learned rote, even - by virtually every person who has ever proposed or supported a law restricting abortion. But remember - the logic is, it's a child, which means that it has rights too. There is a difficulty with this logic, however, and Romney repeats it in his article. If the rationale for being pro life is that the life of the child is important, and therefore abortion isn't simply a question of reproductive freedom, then it is also wrong to punish the child on account of the identity of the father. There is no escape clause in that logic for rape or incest.

I would welcome - more than you can believe - correction on this point, because it is a singularly difficult thing to defend, but it seems to me that any logic which could lead one to be pro life in the first place must also demand that one is pro life in ALL cases, no matter how terrible the circumstances of conception.

~sjd

n1. That isn't to say, of course, that you have to be an abortion doctor killing, placard-carrying single-issue voter who thinks about nothing else. I'm fairly moderate by pro life standards insofar as I argue that we not only can, but must reach a pro life legal regime incrementally, not instantly.

n2. Being pro life is a statement of the child's worth, not the mother's rights; if there is no child, there is no worth - and therefore, abortion must be solely a reproductive choice within the sole purview of the woman (not mother, woman).

n3. Health is a slightly trickier one. One hesitates to use the term "physical health"; that term not only suggests that there is no level of mental damage which would be sufficient to demand termination (by premature delivery or abortion), which I do not accept, but also, "physical heath" is far too broad a term. There must be, in my view, a serious threat of significant, major and irrecoverable damage to the physical or mental wellbeing of the woman before an abortion could be considered valid.

n4. A description of the physical mechanism of D&E abortion should explain why. A breach birth is induced, which means that the shoulders are born; the skull is then punctured, the brain vacated, the skull crushed and the remains delivered. Ask any woman who has given birth what was more difficult to deliver: the head or the shoulders.

Simon;

If the rationale for being pro life is that the life of the child is important, and therefore abortion isn't simply a question of reproductive freedom, then it is also wrong to punish the child on account of the identity of the father. There is no escape clause in that logic for rape or incest.

Susan, I have to ask: is your post going to be a stealth post where you glide in to score a few clever sidelong points and then fade away, or can I expect some genuine discourse?

Your last attempt at "serious discourse" consisted of asking me to distance myself from Fred Phelps -- a person I had just explicitly called a "maniac" and suggested resisting. Rightly ignored.

Any two things are comparable. The relevant matter in a comparison is whether we can learn anything in making a comparison.

You didn't learn anything from my comparison of a benign tumor operation with an abortion? I'll try again. You asked why we shouldn't think of abortion foremost as the "right of an individual", a "personal choice" which they make for "themselves".

I explained that the answer to your question, can be found in your choice of words. Words like "right of an individual" and "personal choice" are appropriate when an action affects only the individual, as would be the case with an operation to remove a benign tumor. These words are not appropriate when another living entity is victimized by the action, as happens in an abortion. Abortion results in the death of a living being. Adopting one of your sentences, abortion is the direct infringement of the life of another living being.

You can make the black and white distinction that equates the value of each and every fetus with the value of all other lives until the cows come home, but now you're making your own faithful declaration.

It makes me smile to see that BK thinks I'm an animal rights activist. I didn't bring up pets and farm animals to suggest they deserve consideration and legal protection on par with humans. I brought them up precisely because they don't, yet still merit laws and government agencies protecting them. This is far from a black and white declaration, I am specifically discussing and allowing for those who assign different value to different life.

Even if you don't assign full human rights to a human fetus, they still merit some level of legal protection as a living being. Perhaps more than a horse or dolphin? There is no constitutional right to kill a horse or dolphin, it is a valid area for government regulation. Even when slaves were deemed unworthy of full human rights, there were laws against killing them outright, and one did not have a constitutional right to kill them. Some people say a human fetus doesn't merit legal protection because of its dependency and mental faculties, yet we have laws protecting utterly dependent and senile elderly persons.

"A being which unlike a tumor, may have its own beating heart and ability to perceive pain."

Yup: may. I think further investigation into the exact nature of that "may" is a good way to determine when and where an abortion crosses the line from a personal decision to one that also involves a 2nd individual in a meaningful sense. I'm not convinced that conception is that moment.

Whatever criteria you decide to use, I'm just glad you are thinking about the question.

A human fetal heart typically first beats between gestational day 18 and 22.

Try sticking an infant with a pin and you know what happens. She opens her mouth to cry and also pulls away.

Try sticking an 8 week old human fetus in the palm of his hand. He opens his mouth and pulls his hand away.

A more technical description would add that changes in heart rate and fetal movement also suggest that intrauterine manipulations are painful to the fetus." ---Volman & Pearson, "What the Fetus Feels," British Med. Journal, Jan. 26, 1980, pp. 233-234.

I don't see what is gained from the rest of your argument which makes a mockery of the notion of personal choice in the context of an unplanned pregnancy.

The notion of abortion being a "personal choice" is self mocking, because abortion is not a choice that solely affects the decision maker. Abortion ends the life of another living being. It is the direct infringement of the life of another being. Is killing really a "personal choice"?

The allusion to the rights of animals is particularly specious given the number of animals killed for food and euthanized. I'm far from an animal rights ideologue, but rationally, I acknowledge that animals are utterly at the mercy of human whim, and far less well treated and valued than fetuses.

Incorrect, because there are a large number of laws regulating human treatment of animals, while (thanks to the inventive Roe decision) laws regulating the killing of fetuses are regularly stricken down by courts. Animals receive a far greater degree of legal protection than a human fetus. You can't legally starve to death your own horses, you can't torture your pets, you can't catch and kill fish that are too young (small).

Even a slaughterhouse is required to kill humanely -- how often is fetal anesthesia legally required during abortions? An animal shelter is often legally required to offer a pet for adoption before putting it down, that's a whole lot more consideration than a fetus gets today. Partial birth abortion, in which a baby's skull is crushed by having its brains sucked out just before birth, has been deemed constitutionally protected by some federal judges -- I think you would get prison time for attempting this on an animal.

In response to my question about the level of strife we can expect if Roe is overturned, you responded as follows:

Maybe the status quo of the government sanctioning over a million abortions a year is not "peaceful".

Unless you honestly think that's what Romney and I were talking about, that's just a clever albeit poignant dodge.

Your question about levels of political strife is quite unimportant, contrasted with the ongoing attrocity of over a million abortions a year. That's my point. Should the USA have preserved the status quo on slavery and civil rights, to avoid political strife? I think some degree of political strife over what is right and wrong, over the treatment of the innocent and helpless, is a very good thing. Our nation wouldn't have made so much progress if we neglected such important questions in the name of avoiding political strife.

How bad will this "political strife" really be for us as a nation? Our political institutions are well equipped to handle the differing opinions of the populace. People will vote as they like for their representatives, laws will be passed, judges will be appointed, and life goes on. Each state will have its own approach, and states can learn from the experience of other states to see what works and doesn't. I don't envision widespread violent riots, but I do expect somewhat less violence in the form of abortions.

Susan,

As always, very well and passionately stated...

Simon,

I think you're being too dichotomous in your thinking. First off, there have yet to be created universally accepted criteria for establishing personhood. So in cases of doubt, one can juggle the various values. In the case of incest, if you're not sure whether the fetus is a child or not, you can favor the woman's right to self-determination.

I hold the view that personhood emerges gradually. (Though I am not so confident that I wouldn't encourage being as responsible as possible.)There are two reasons to think this. First, the idea that a cell or a group of cells is a person (meaning possesses consciousness) is a bit crazy. Certainly, from the moment of conception you have an example of homo sapiens, you have a human being. However, at a certain level of brain complexity, awareness emerges. At this point, you could say you have a person.

Looking at things from a spiritual view, if you believe in life after death, you have to accept that a soul exists, and that it is not the body. Therefore, at some point the soul has to intergrate with the body. (It may sound loony, but I think this is inescapable if you hold such beliefs.) You could say that the soul is fully intergrated at the moment of birth or later. If you were to adopt a Hindu perspective (Christianity is notoriously imprecise on this issue I think), you would favor a gradual integration.

To muddy the waters further, from this perspective, though, one would have to favor the life of an older child over a younger child in that one is more conscious, and one might favor an adult over a senile person. Although this sounds horribly cruel, one human life does not have infinite value, though a very high one to be sure.

(We would not give up our freedoms merely to spare one life. And many people who are pro-life favor the death penalty. And many liberals favor the right to die. I think a problem in these debates is a tendency to favor one value higher than any other. Say freedom vs. life. Both are highly valuable.)

To muddy the waters even further, one could make the argument that even if a zygote is not conscious, it will become so, and so we shouldn't kill it. But what if bearing a child would make both the mother and the child miserable? Is a life of misery better than no life at all? Many people do choose suicide after all.

My point is Simon, on these matters, there are a whole host of competing values, and we have to intuit which are more important. If we believe in God, we have to search our "soul" in each case. If not, our conscience. You yourself make an exception for the physical health (in extreme circumstances). (For instance, what if the only way to save the child left the woman alive but severely brain damaged?)

I think in this case, in addition to passing laws to restrict abortion in clearer cases, we also have to foster a culture of responsibility. That people realize the gravity of the situation and really do try to be as responsible as possible.

So in conclusion we have to sort out the value of
(1)personal autonomy
(2)the value of life: is all human life equally valuable
(3)what is personhood
(4)what is consciousness
(5)does quality of life have a role to play

I try to come up with a solution in each case that would produce the most human happiness, dignity, and flourishing very broadly contrued. And I also consider that having a general principle might actually satisfy the above criteria. So I am a utilitarian that considers whether deontological ethics might lead to a happier society, at least in certain cases.

Adam,

I would be careful using the label "utilatarian" for yourself in this context, because it is often seen as a view which allows euthanasia of the useless, sterilization of the unfit, and other similar horrors. The context of your post generally shows, I think, that you don't support such things, but that label might be misconstrued.

One question, Pat and Susan; do you date your lives from the day you were born or the day you were conceived?

My dad once almost told me about the time I was conceived, but I stuck my fingers in my ear and went "lalalalalalalal" until he stopped talking...

The notion of abortion being a "personal choice" is self mocking, because abortion is not a choice that solely affects the decision maker. Abortion ends the life of another living being. It is the direct infringement of the life of another being. Is killing really a "personal choice"?

Adam,
Just to clarify, my willingness to make an exception for life and health (within the limitations of my comments above, at n3) actually has nothing to do with a conditional willingness to defer to the reproductive choice of the mother. I don't see how that position could be consistent, because as mentioned before, and as Susan eloquently re-iterated, "reproductive choice" is a loaded term intended to imply that abortion is a question of "choice". You might have seen those bumper stickers, with a photograph of an unborn child bearing the legend "what about my choice?". Crude, but accurate. It has everything to do with balancing the competing interests of two valuable human lives.

I think that the other points you make are valid, but they more relate to the process of buying in to one or the other view, which I would contend chronologically precedes the statement I made. But then, I might be biased - as you folks may have noticed, I'm big on certainty. ;)

As far as "Christianity is notoriously imprecise on this issue I think", I'm not a Christian (what can I say, I have issues), but I would think that from a Christian perspective, the answer is fairly adequately covered. See, e.g., http://www.probe.org/content/view/1142/47/ and http://www.bible.com/answers/aabort.html. I also commented on my bemusement at a selective reading of the Bible here at July 22, 2005 04:51 ¶6.

By the way, speaking of my desire for certainty, you'll imagine how disappointed I was to read this from my preferred GOP primary candidate saying here:

"Frankly, I value the importance [in a Supreme Court nominee] of being flexible and open and unpredictable."

My dad once almost told me about the time I was conceived, but I stuck my fingers in my ear and went "lalalalalalalal" until he stopped talking.

LMAO, Patrick! I like that. Though I wonder what your dad was thinking. (or is that drinking?) ;-)

As they say in Dr. Frankenstein movies, there are some things that man (and woman) was not meant to know.

[T]here are a large number of laws regulating human treatment of animals, while (thanks to the inventive Roe decision) laws regulating the killing of fetuses are regularly stricken down by courts. Animals receive a far greater degree of legal protection than a human fetus. You can't legally starve to death your own horses, you can't torture your pets, you can't catch and kill fish that are too young (small).

Susan, many people would say that you are trying to compare apples and oranges. You are trying to compare legal protection between live animals (living, breathing, moving, functioning independent of anyone else) with a human fetus. I have often hear this argument made and it just doesn't make sense to me. If you were trying to compare a dolphin fetus with a human fetus there would be a little more basis to your argument.

Personally, I have respect for someone that holds a pure pro-life position such as how Chris (C3) has described his. I have also been one of those who never understood how someone could harbor such deeply held beliefs about the existance of life, but be willing to compromise those beliefs in cases of "rape or incest."

None of us like abortion and we'd all like to live in a world where people become more responsible in their actions. This is exactly why I think sex education should be more widely taught in our public schools.

You are trying to compare legal protection between live animals (living, breathing, moving, functioning independent of anyone else) with a human fetus. I have often hear this argument made and it just doesn't make sense to me

None of us like abortion and we'd all like to live in a world where people become more responsible in their actions. This is exactly why I think sex education should be more widely taught in our public schools.

"Some of us would prefer the wrong decision arrived at via the proper process."

Some of us think that, had Rehnquist's opinion carried the day in Roe, and Black's in Griswold, those would have been the right decisions arrived at via the proper process.

Very true Simon, but your argument, over and over, is that the process is what is of primary importance. And you have also conceded that the originalist philosphy does not guarantee error free perfection. Given this, it logically follows that given a choice between the right decision made via a flawed process and a wrong decision arrived at via the proper process, you'd choose the latter and not the former. Right?

So while it may not be the case that abortion and Roe represent such a choice, it IS the case that, should you be faced with such a choice, you'd choose process over product. Right? The corollary you'd rush to add is that you believe that originalism limits such errors and indeed makes them astonishly rare, but I belive that I am describing you position accurately based on your previous statements.

it logically follows that given a choice between the right decision made via a flawed process and a wrong decision arrived at via the proper process, you'd choose the latter and not the former. Right?

However, to put it a little more broadly - what is the "right" answer? The right answer in Roe is that the Constitution contains no right to abortion. But that isn't the right answer because I'm pro life, it's the right answer because the constitution contains no right to abortion. The right answer in another case might be that the Constitution contains no right which I can find - and believe me, I've been looking - for the Federal government to prohibit abortion. That constitutional knife is damned sharp, and it cuts both ways. This is not a "liberal v. conservative" thing. (n2) The "right" answer is the answer which the Constitution (or law) provides, not the answer which one or more subsets of the population would like it to say.

So it's not entirely accurate to say that I prefer process over result, because in my view, a Judge who thinks about a result is not doing their job. It "assumes that it is up to the judge to find THE correct answer. And I deny that. I think it is up to the judge to say what the Constitution provided, even if what it provided is not the best answer, even if you think it should be amended. If that's what it says, that's what it says."

~sjd

n1. I'm going to plug Julian Zelizer's compendium of essays on the development of Congress, The American Congress: the Building of Democracy, which includes a superb discussion of the development of the prohibition movement, among other topics.

n2. I can almost guarantee that if the 2006 midterms give the GOP a 65 vote majority in the Senate, and Justices Stevens and Ginsberg are forced off the bench, to be replaced by justices who really ARE clones of Clarence Thomas, and it turns out to be President Brownback in 2008 with a similar majority, liberals will undergo a conversion on the road to damascus of the virtues of judicial restraint, originalism and limited government, when they realize what it's like to be on the sharp end of that constitutional knife.

Susan, you are a very skilled rhetorician, managing always to focus upon my weakest points of argument and ignoring the strongest points. This is paticularly vexing becuase it's the strong points that I care about most, and the weakest ones where I am usually speaking most quickly and making generalizations in order to get at the heart of what ireally care about

Even if you don't assign full human rights to a human fetus, they still merit some level of legal protection as a living being.... Some people say a human fetus doesn't merit legal protection because of its dependency and mental faculties, yet we have laws protecting utterly dependent and senile elderly persons.
Not me. I agree with your first sentence. I agree that they deserve some protection, subject to the details of the particular case.

B: Any two things are comparable. The relevant matter in a comparison is whether we can learn anything in making a comparison.

S: You didn't learn anything from my comparison of a benign tumor operation with an abortion? I'll try again. You asked why we shouldn't think of abortion foremost as the "right of an individual", a "personal choice" which they make for "themselves".

B: Susan, the reason for the statement you're quarreling with here is that you said the two things weren't comparable. I explicitly addressed your benign tumor comparison in the following exchange, which is one of my strong points.

S: A being which unlike a tumor, may have its own beating heart and ability to perceive pain.

B: Yup: may. I think further investigation into the exact nature of that "may" is a good way to determine when and where an abortion crosses the line from a personal decision to one that also involves a 2nd individual in a meaningful sense. I'm not convinced that conception is that moment. Are you? If so, why?

Note that to this, you responded "Whatever criteria you decide to use, I'm just glad you are thinking about the question." In case it has escaped you,(I can't expect to to have read my every post, after all) it has been my feeling for some time that this is near the heart of the matter. Please notice further that the questions I posed are ones that I felt Mitt Romney was glossing over. I didn't ask any of those questions above because I believe that abortion should be unrestricted and solely within the domain of personal choice in all instances. The reason I was asking, was because, rhetorically, I feel we deserve to know how Mitt Romney thinks about this. I now know how you feel, and you've represented yourself well. Thanks. I am still, however hoping you'll discuss the following question I posed, which, in my view, if also close to the heart of the matter:I'm not convinced that conception is the point where an abortion crosses the line from a personal decision to one that also involves a 2nd individual in a meaningful sense. Are you? If so, why? If not, what do you think that point is?

B: The allusion to the rights of animals is particularly specious given the number of animals killed for food and euthanized. I'm far from an animal rights ideologue, but rationally, I acknowledge that animals are utterly at the mercy of human whim, and far less well treated and valued than fetuses.

S: Incorrect, because there are a large number of laws regulating human treatment of animals, while (thanks to the inventive Roe decision) laws regulating the killing of fetuses are regularly stricken down by courts. Animals receive a far greater degree of legal protection than a human fetus. You can't legally starve to death your own horses, you can't torture your pets, you can't catch and kill fish that are too young (small).

You are correct only insofar as you take the law to be the sole proxy for how highly a nascent life is valued. My point is that humans as a group take human life much seriously than they do animals. It's true that we have some legal protections for various animals, but it's also true that we routinely euthanize them, and not just their fetuses, and that we millions of them, and that most of us consider this OK to do. My point is that, even with the law as it is, we still seem to be blithely slaughtering a whole lot of animals to meet our own ends. So I'd say that at minimum, if we want to compare the relative worth of animals and fetues, we'd have to consdier the relative sentience of whatever we're slaghtering. Of course, we'd probably also have to consider the disparity in potential future sentience.

Your question about levels of political strife is quite unimportant, contrasted with the ongoing attrocity of over a million abortions a year. That's my point.

Fair enough. But once again, please notice that my post was crafted as a criticism of Mitt Romney's statement. And my point, as related to that statement, is that it's very questionable to claim that the route he's advocating is a route towards less public strife. Personally, I'm not anti-strife as a rule, so I agree with you there. Your point is really, "no justice, no peace," right? But Romney is suggesting his route promises peace, and I'm just pointing out that this seems very unlikely to me.

How bad will this "political strife" really be for us as a nation? Our political institutions are well equipped to handle the differing opinions of the populace. People will vote as they like for their representatives, laws will be passed, judges will be appointed, and life goes on. Each state will have its own approach, and states can learn from the experience of other states to see what works and doesn't. I don't envision widespread violent riots, but I do expect somewhat less violence in the form of abortions.
I hope you are right. And I expect that we can withstand this. But I do expect deeper divisions, and I do belief that they are a threat to the union. At least over the short term, I believe that overturning Roe v. wade will result in a less stable union of the 50 states. Maybe it's necessary, and maybe in the end we'll be better off. There is indeed only one way to find out.

Please know that I share the goal of making abortions rarer. My preferred outcome is that in doing so, we not also make unwanted pregancies leading to messed up families even more common. It is really in relation to that latter dynamic that I am inclined to allow pregnant women to make the choice, even though some form of nascent life is involved.

I'd prefer the choice to be left to the individual pregnant woman and her family, but I feel that society has the right to expect that they make the choice in a responsible and timely fashion.

I really don't like the idea of forcing every pregnant woman to bear her fetus to term, or even the idea of forcing some or even many women to do so. What do you think about the idea of forcing women to bear fetuses up to birth?

Susan, I now realize i botched part of my post above. Obviously, you can't have an abortion prior to conception.

My question really is, do you think that all abortions should be outlawed because life begins at conception, and because at that particular point in time, the nascent human life merits so much value that each and every pregnant woman should be forced to bear the fetus to full term?

And if not, what DO you think about how and under what circumstances abortion should be regulated?

Simon,

I guess my major point is that there are competing values and in each particular case, you DO have to favor some over others, but I don't think you necessarily have to do it generally.
For instance, I may think a life is precious but that the mother's life is more precious than the infant's and that furthermore this preciousness increases as the fetus matures. I may also feel that if a woman were raped, that it would be horrific to force her to bear a child that could be a constant reminder of her trauma. Depending on the extent of emotional trauma she was experiencing and would experience and the particular level of "preciousness" of the fetus's life, you could "calculate" which value predominates. In early pregnancy, I would likely choose the woman's "right" to determine what grows in her own body.

In the case of say Iraq, we are willing to sacrifice lives in order to promote democracy and security in the Middle East, but we're not willing to sacrifice the entire American population to do so. So at some point, the loss of life becomes too much for us to bear. In another example, would you be willing to cause serious brain damage to a woman so that her child may live? If not, then you're making a decision that preferences the quality of life of the mother over the life of her child.

I think the mistake some people make is to assign human life an infinite value and thus to forget all other goods. I think it has a very, very high value, but not so great that all other ethical "goods" vanish.

Another problem with this infinite valuation, is I think some people want it ALL their way. I, for instance, could live with a blanket ban on abortion (save for incest, life of mother, etc.) IF we phased it in, and we were rigorously committed to a full-fledged effort to reduce unwanted pregnanices by all (reasonable) means possible and if there were good homes willing to adopt (maybe). The problem with some social conservatives is that, sure they're willing to use data to support their cause, IF the data works for them. But if the data doesn't, they still hold to their position that say abstinence only education is the best way to go. THIS is the problem with excess certainty and rigidity. You can't have it all. I know you support good sex ed, but I think you get my point.

That is a question though, are good homes available to any woman gives a child up for adoption? Even if she's black and on crack?

I, for one, don't have a problem with aborting a child who is likely to be a profound burden on society: profoundly retarded, seriously deformed, on life support. But again, you have to make a judgment about how "screwed-up" is screwed-up enough? Mourn the child, regret the action, but I don't necessarily see that the mother is obligated to bring such a child into the world. However, if it were MY child, maybe I'd feel differently.

I'm just not willing to make an a priori judgment that life is always the greatest good that trumps all others. Maybe I would make that judgment in 99% percent of case, but . . .

Don't get me wrong, I'm not a relativist. I believe that there is an objectively best decision, or at least several equallly good options, but I don't have certainty that I will be able to recognize them. Speaking loosely, I believe that God can make these calculations and figure out what is best, but I have doubts in my own ability to always discern them.

Finally, recall that while I lambasted you for nuancing it all up in the "Spiral Dynamics" thread, but here I'm lambasting you for not being nuanced enough. So I'm not a permanent John Kerry :-)

I think that the argument made there is that our laws are more latitudinarian when it comes to the slaughter of our own young than they are towards the treatment, in their lives and deaths, of animals. That is surely a strange situation.

Only if you count fetuses as among "our young." You're just glossing over the main point of contention, which is about the relative worth of maternal autonomy and fetal rights.

If the rationale for being pro life is that the life of the child is important, and therefore abortion isn't simply a question of reproductive freedom, then it is also wrong to punish the child on account of the identity of the father. There is no escape clause in that logic for rape or incest.

Right. This once again suggests, at least to me, that the conflict lies in the declaration of worth of each and every fetus as equal, and the further declaration of that worth to be so great s to justify to the negation or diminishment of the autonomy of the mother. The question here for me is why, in order to be pro-life, you must declare that each and every human life, in any form that could conceivably considered a human life, must be regarded as being of equal worth.

Every time I manage to bring an abortion discussion around to this point, many pro-lifers seem to somehow spit the bit. I share a lot with those pro-lifers who simply supply the idea that we should grant that each human life must be regarded to have some worth, but I just can't get on board with the equation that a human life = a human life = a human life = a human life ...

I share a lot with those pro-lifers who simply supply the idea that we should grant that each human life must be regarded to have some worth, but I just can't get on board with the equation that a human life = a human life = a human life = a human life ...

"Given this, it logically follows that given a choice between the right decision made via a flawed process and a wrong decision arrived at via the proper process, you'd choose the latter and not the former. Right?"

I won't answer for Simon, but my own rationale for favoring process over outcome devolves to a very practical consideration. In any given case likely to be presented there will be an inherent disagreement between which decision is the "right" one and which one is the "wrong" one. I will posit that you will likely never get the sides to agree which decision is "right" and which one is "wrong" (hence the need to bring the matter before a Court) no matter what the Court rules. For particulary controversial decisions, each side is also likely to have a significant number of supporters.

What you MAY be able to achieve is an agreement between the differing sides about a PROCESS that is fair and equitable for deciding which outcome is "right" and which is "wrong". The side which is decided against will undoubtedly be dissapointed but if they can observe that a fair process was scrupulously observed in the decision at least they may come away from the case with the belief that the system in general "works" and can be relied upon to resolve future disputes. They may well believe that the issue was mistakenly decided but an "honest mistake" no matter how tragic the results is generaly forgivable and is not a condemnation of the system as whole. People are generaly willing to accept that a fair and reliable process will generaly result in fair and correct decisions, even if may occasionaly result in mistakes that are not.

On the contrary, if the loosing party in a decision percieves that the agreed upon process was NOT fairly and scrupulously followed THEN they are not likely to accept the result as an "honest mistake" and are not likely to have confidence that they are likely to recieve "just rulings" in any future disputes they might be involved in. In fact, I would go so far as to posit that they would be encouraged and feel justified in circumventing the system to achieve thier desired end by any means they fealt they could get away with it.... and would in fact work to sabatouge the system at any opportunity presented.

I very much tend to favor process over outcome because it is PROCESS, NOT outcome which maintains the societal contract which we (theoriticaly) live under, a contract which says we live by a set of laws not by who carries the biggest spear. In my opinion, favoring outcome over process is just an abstract way of saying to the other guy "My Spear (the Court) is bigger then yours so I win" whereupon the other guy may start to feel compelled to test out just how big that spear really is.

There may indeed have been instances in our history where justices or public officials have bent the process to arrive at "courageous and just decisions".... but those sort of decisions also tend to do things like start civil wars and erode respect for the rule of law. Because for every "courageous and just decision" we see there is a guy on the other side of the table seeing "a villanous and capricious fiat".... and there really is no telling which side might ultimately be factualy correct (i.e. there have been plenty of instances where officials have bent the law to arrive at an unjust end).

Bottom line, I'd much rather see a case decided as a "Narrow and technicaly accurate interpretation of the law" becuase chances are if I'm seeing that, what the guy on the other side of the table is seeing can't be THAT sinister.
Then again, I am only human.... so I'm sure you can find some issues that I care enough about that I want decided my way no matter how flawed the decision.... but I don't think that invalidates the general point... just makes me susceptible to hypocracy :)

Cengel, it's not my sense that we are as far apart as it seems. It's not the case that I'm arguing that process is unimportant. All I'm arguing for is that it not be utterly sacrosanct. My point is that the process is a means to a higher good, one that we acknowledged by creating the process in the first place.

There may indeed have been instances in our history where justices or public officials have bent the process to arrive at "courageous and just decisions".... but those sort of decisions also tend to do things like start civil wars and erode respect for the rule of law.

Absolutely, and certainly, such factors should be weighed heavily when such decisions are made. But notice also that a narrow technically accurate decision is also one that can engender civil unrest.

I find the SC decision on the 2000 election to be a curious instance as it relates to such decisions. Now, of course, you can argue that this decision was a narrow and technically accurate decision. But you can also argue that there was a great deal of creativity used in deciding which parts of the constitution applied most relevantly to the decision. I believe that Simon(Simon, correct me if I'm putting words in you mouth), alluded to this recently.

The reason that I accepted the SC decision was that i felt that the judges were primarily informed by their judgement of what was best for the country, and used this info to decide which part of the law applied here. They decided to call "game over" because things had gone on too long. I doubt that it would have been unconstitutional constructionism to to rule that the legitimate will of the people of Florida had not been conclusively revealed, so that in order to protect the due process rights of the plaintiff and the franchise of the people, a do-over should have been ordered.

I found the decision curiouslt fragmented, with sensible strains but without any sort of overarching obvious principle. That was a clue to me that they decided what made sense for the country, and then found a way. YMMV, of course.

And notice the point that judges have substantial leeway in some cases when they decide that, say, a case is a commerce clause issue vs. a free speech issue vs some other issue.

In my view, it is entirely possible that a future "originalist" court will come to issue a series of narrow and technically accurate decisions that somehow virtually always find the constitution unable to provide remedy to individuals against large moneyed interests. Should such a pattern emerge, the narrow technical accuracy will in no sense re-inforce the people's perception that a rigid process is fostering justice.

The people will decide whether the process is providing justice based on the outcomes, based on who they think is or isn't getting screwed or getting a sweet deal.

And yes, of course Simon, in that case conceivably remedies could eventually emerge via the amendment process shouild the people be sufficiently roused.