A secular debate about abortion

[Hermit]

a zygote, blastocyst, embryo and fetus is a complete living organism in development.

Singalong time. Again.

[Coito ergo sum]

I think an even biggrin difference is that one lives inside of another persons body. I don't think that little factor can be dismissed, or, reasonably, compared to having a boarder. Really.

Why not? The fetus was invited to live there, and like any tenant, can have its rights of occupancy protected by the law.

Tenants are subject to their lease agreements. If there is no written lease, then the tenancy depends on the frequency of rent payments. If it's weekly, then the tenant can be evicted weekly, etc. If the lease is gratuitious, however, and the tenant pays no rent, then the landlord can evict anytime. Since fetuses have no written leases, and since they pay no rent, the fetus can be evicted at the pleasure of the landlord (mother).

That's why not.

That's all a matter of landlord/tenant law, isn't it? Which means the law can be changed to afford the fetus greater rights, particularly since the penalty for eviction is death. Hell, you can't get your crazy ex-girlfriend out of your house without going through the legal eviction process, even if she isn't paying rent, and that can take six months or more.

all laws can be changed - and eviction depends on the state. In mine, a tenant can be evicted in days, unless they have a reasonable defense and pay back rent into the registry of the court.

You're the one who analogized abortion to landlord-tenant law. You didn't say that you were analogizing it to some as yet unknown change in landlord-tenant law.

[Coito ergo sum]

I think an even biggrin difference is that one lives inside of another persons body. I don't think that little factor can be dismissed, or, reasonably, compared to having a boarder. Really.

Why not? The fetus was invited to live there, and like any tenant, can have its rights of occupancy protected by the law.

Tenants are subject to their lease agreements. If there is no written lease, then the tenancy depends on the frequency of rent payments. If it's weekly, then the tenant can be evicted weekly, etc. If the lease is gratuitious, however, and the tenant pays no rent, then the landlord can evict anytime. Since fetuses have no written leases, and since they pay no rent, the fetus can be evicted at the pleasure of the landlord (mother).

That's why not.

And, if it was rape, then the fetus was not invited to live there.

And in which case that fact must be taken into consideration by the court as it weighs the rights of the mother against the rights of the unborn child.

You like to switch between what "is" and what "could be" -- sure, we could have a system where courts evaluated every instance of abortion, but we don't. Your arguments start out trying to prove that there is some rock solid logical basis that requires abortion to be restricted in the way you assert. Then, when your analogies are challenged, you change the reason for your asserting the analogies from your attempt to prove the solid logical basis in fact that requires abortion to be restricted to some notion that all laws can be changed to something else. We all know laws can be changed. They could just as easily be changed to allow a free for all, where anyone can kill anyone or anything. So what?

In one case, it's normally an inconvenience of 9 months duration. In the other case it's death. The two actions are nowhere near equal in their impact, and the court may take this into consideration.

What court? If abortion is legal, they don't need a court. Oh, wait, you're suggesting that we could change the law to require court administration of abortions. Oh, o.k.

I don't favor forcing rape victims to bear the child, but again that's a legal matter, not a matter of rights. Or to put it another way, as MrJonno would say, a woman's right to an abortion is granted by government (according to him) and therefore may be taken away by the government. That's what you get when you subscribe to collectivism.

I think the brits largely accept majority rule in the case of rights. They don't see much of a problem with the majority voting to shut the minority up and such.

I'm not saying that abortion should be banned, only that it could be without violating anyone's "rights" (as they are currently defined).

I want the government to stay out of people's bodies as much as possible, so I would legalize it as much as we can, along with all other personal actions that effect bodily and mental autonomy.

[Coito ergo sum]

A human zygote can also make more than one human. In fact when it divides in two you can make two people by taking the two apart. You can do this again and again indefinately. So I'm not sure in what sense it makes sense to say that a zygote is an idividual.

Also there is the case of chimerism in which two separte zygotes (potential paternal twins) fuse together to become one individual with two populations of genetically distinct cells. Should these people be seen as two people?

Then there are zygotes frozen in IVF clinics awaiting plantation (or destruction if all the ones they'll need are taken). Should these be traeted as people and their parents be allowed to clain a tax deduction or benefit on each?

None of that matters. As long as the number of human beings is greater than zero, they, however many of them there are in whatever configuration, may be afforded rights if society chooses to do so.

Of course they can. They can decide to bring back hanging or criminalise homosexuality again also. I'm not sure what your point is.

My point is that all your (meaning the pro abortion crowd) arguments are based in notions of "rights" that don't apply and never have. A woman does not have a "right" to have an abortion, as we can see in the caselaw, she has the permission of government to have an abortion under limited circumstances, which can be changed at any time.

Women's wombs are no more sacrosanct than anything else the government chooses to regulate.

Your right -- a woman does not have a 'right' to an abortion in the sense of a US constitutional right to an abortion -- a fundamental right of mankind. However, she may have a civil right, granted by law, which is the kind of rights Brits and other Yerpeeins generally are referring to. They generally don't have unrestricted abortion rights.

In the US there is no per se right to an 'abortion' either -- you're right about that. But, there is a right to privacy found in the penumbra of other rights in the bill of rights. This privacy right extends to some, but not all, abortions. State has a compelling interest in the preservation and protection of life, and as such later term abortions can be restricted and even banned (with exceptions for the life of the mother and such). However, early term abortions where development is at very early stages, the state's interest is not as high due to a variety of reasons (some of which have been pointed out here - like the fact that many or even most don't make it under natural circumstances, and there is no pain consciousness, no brain functioning at a meaningful level, no thought processes, etc.)

So -- in the US we're not really talking about a right an "abortion" as much as the right to privacy, which includes many things, like licking various body parts in one's own home and such. One does not have a "right" to lick balls or clitorises and such - but, one does have a right of privacy in one's home where one may lick all the balls and clitorises whose owners allow them to be so licked. Savvy?

[mistermack]

A fetus has no rights. A baby has full rights as a citizen. The only difference is that the baby is air breathing. But one is judged a human, the other not.

The romans had the right idea. Babies had the same rights as a fetus. If you didn't want it, you just left it on a rock.
Equal rights.

[Coito ergo sum]

A fetus has no rights. A baby has full rights as a citizen.

Also wrong, under both British and US law. If a fetus has no rights then abortion would be lawful up through birth. It isn't.

The only difference is that the baby is air breathing. But one is judged a human, the other not.

False again, under both British and US law. A human fetus is human.

[Seth]

I think an even biggrin difference is that one lives inside of another persons body. I don't think that little factor can be dismissed, or, reasonably, compared to having a boarder. Really.

Why not? The fetus was invited to live there, and like any tenant, can have its rights of occupancy protected by the law.

Ah but we go to the constitution. Nowhere does it say a fetus has rights. Even blacks were not humans back then.

They were not legally "persons." They are now, by virtue of a change in the laws of the land. Nothing inhibits the law from defining a zygote as a person if that's what the People demand.

In another thread, we're discussing a change in law that has the support of the majority, but the minority side declares that majority rule isn't sufficient enough for a law change because the majority of people are sheeple. So, which is it?

You're referring to the 2nd Amendment and the right to keep and bear arms. The difference is that the right to keep and bear arms is an enumerated right that is explicitly protected against government infringement. There is no enumerated right to have an abortion. The Supreme Court, in Roe v. Wade, couched its ruling on a "right to privacy" it "discovered" in the "penumbra of rights" that surround the Constitution. This "penumbra" consists of rights that are not explicitly mentioned in the Constitution by which exist as a function of social custom and practice. The Court went to exhaustive lengths in analyzing the history of childbearing and abortion, and it's interesting historical reading I highly recommend. But their conclusion was not that abortion is a right, but rather that up to the point of viability (Roe as amended by Planned Parenthood v. Casey) the Due Process Clause prevents the government from interfering in a woman's decision to have an abortion.

But the state's interest in protecting a viable fetus was upheld. So what you have is at best a "qualified right" to abort a non-viable fetus that is based in an analysis of privacy rights of the citizen against unreasonable government intrusion on their liberty interests.

This clearly implies that after fetal viability, the mother's privacy right diminishes and the State's authority to protect human life grows until it subsumes the privacy implications. Thus, the states are free to regulate abortion within the framework set up by the Court.

That's far different from the language of the 2nd Amendment, which states "...the right of the people to keep and bear arms shall not be infringed."

"...shall not be infringed" is a tremendously high standard for the government to overcome, and it requires more than just social opinion or even democratic decision making, it requires a "compelling government interest" at the very least before the government is permitted to "reasonably regulate" the exercise of the right.

And the other argument doesn't have anything to do with "...because they are sheeple," it has to do with the very heart of our Constitution, which protects the rights of minorities against the tyranny of the majority, particularly when they are "enumerated" rights like the RKBA.

[Coito ergo sum]

Why not? The fetus was invited to live there, and like any tenant, can have its rights of occupancy protected by the law.

Ah but we go to the constitution. Nowhere does it say a fetus has rights. Even blacks were not humans back then.

They were not legally "persons." They are now, by virtue of a change in the laws of the land. Nothing inhibits the law from defining a zygote as a person if that's what the People demand.

In another thread, we're discussing a change in law that has the support of the majority, but the minority side declares that majority rule isn't sufficient enough for a law change because the majority of people are sheeple. So, which is it?

You're referring to the 2nd Amendment and the right to keep and bear arms. The difference is that the right to keep and bear arms is an enumerated right that is explicitly protected against government infringement. There is no enumerated right to have an abortion.

but if rights are not granted by the government, then they don't have to be enumerated. and, the enumeration of some rights does not disparage or limit the existence of other rights. Amendment 9.

The Supreme Court, in Roe v. Wade, couched its ruling on a "right to privacy" it "discovered" in the "penumbra of rights" that surround the Constitution. This "penumbra" consists of rights that are not explicitly mentioned in the Constitution by which exist as a function of social custom and practice.

it's a right that wasn't denied or disparaged, according to the 9th amendment.

The Court went to exhaustive lengths in analyzing the history of childbearing and abortion, and it's interesting historical reading I highly recommend. But their conclusion was not that abortion is a right, but rather that up to the point of viability (Roe as amended by Planned Parenthood v. Casey) the Due Process Clause prevents the government from interfering in a woman's decision to have an abortion.

No - it applied the right of privacy to the States through the 14th amendment due process clause, which is the same way that all other rights were incorporated into the 14th amendment and applied against the States. Until the 14th amendment, State governemnts were not restricted in their behavior by the federal bill of rights.

But the state's interest in protecting a viable fetus was upheld. So what you have is at best a "qualified right" to abort a non-viable fetus that is based in an analysis of privacy rights of the citizen against unreasonable government intrusion on their liberty interests.

Of course -- as I said above - roe v wade found a right of privacy, NOT a 'right to an abortion.' The right to abortion extends to where the right of privacy extends, which is not full term.

This clearly implies that after fetal viability, the mother's privacy right diminishes and the State's authority to protect human life grows until it subsumes the privacy implications. Thus, the states are free to regulate abortion within the framework set up by the Court.

Roe v Wade doesn't imply it -- it says it outright, when it sets forth its trimester test.

[Seth]

I want the government to stay out of people's bodies as much as possible, so I would legalize it as much as we can, along with all other personal actions that effect bodily and mental autonomy.

So do I. I'm a Libertarian after all. The problem is how we define "people's bodies." I'm arguing that a "person" exists in the law far earlier than most abortion proponents are willing to concede. Therefore, I'm arguing that while government ought to stay out of people's bodies (and lives) as much as possible, government still has a legitimate role in PROTECTING the bodies and lives of people who happen to still be in utero. Radial abortion proponents choose to blithely discount the humanity and "personhood" of a fetus, but they have no legitimate or rational rebuttal other than their personal opinion about what a "person" is. That's arbitrary and capricious, and the Court recognized that, which is why it qualified the privacy right as it did, which is a pretty reasonable balance in my view.

[Coito ergo sum]

I want the government to stay out of people's bodies as much as possible, so I would legalize it as much as we can, along with all other personal actions that effect bodily and mental autonomy.

So do I. I'm a Libertarian after all. The problem is how we define "people's bodies." I'm arguing that a "person" exists in the law far earlier than most abortion proponents are willing to concede.

Your opinion is noted.

Therefore, I'm arguing that while government ought to stay out of people's bodies (and lives) as much as possible, government still has a legitimate role in PROTECTING the bodies and lives of people who happen to still be in utero.

sure, but there is a difference between a 1st month uterus resident and a 9th month uterus resident, and that difference is where the right to privacy comes in. Certainly, if we were talking about abortions on the first day of pregnancy, wouldn't you admit a difference that could rationally warrant different treatment?

Radial abortion proponents choose to blithely discount the humanity and "personhood" of a fetus, but they have no legitimate or rational rebuttal other than their personal opinion about what a "person" is. That's arbitrary and capricious, and the Court recognized that, which is why it qualified the privacy right as it did, which is a pretty reasonable balance in my view.

Yes, but your personal opinion about what a person is is no less arbitrary or capricious. Yours is not the real definition and everyone else's the arbitrary one.

I think roe v wade is a reasonable balance too, and most abortion proponents don't advocate for unrestricted abortion. It's very few of them who think you should be able to take 38 week unborn baby and kill it without a serious medical reason to do so and no alternative. Those are the crazies.

[Seth]

but if rights are not granted by the government, then they don't have to be enumerated. and, the enumeration of some rights does not disparage or limit the existence of other rights. Amendment 9.

Correct. But there also exists a hierarchy of rights where one right may be subordinate to another.

This clearly implies that after fetal viability, the mother's privacy right diminishes and the State's authority to protect human life grows until it subsumes the privacy implications. Thus, the states are free to regulate abortion within the framework set up by the Court.

Roe v Wade doesn't imply it -- it says it outright, when it sets forth its trimester test.

Roe no longer obtains in that regard, it's been overruled by PP v. Casey, which sets both a "fetal viability" test and lowers the bar from "compelling need" to "unreasonably obstructs."

[Coito ergo sum]

but if rights are not granted by the government, then they don't have to be enumerated. and, the enumeration of some rights does not disparage or limit the existence of other rights. Amendment 9.

Correct. But there also exists a hierarchy of rights where one right may be subordinate to another.

If you claim that such a hierarchy applies in this case, you'll have to make your case (other than that you personally feel that one right is more important than another).

This clearly implies that after fetal viability, the mother's privacy right diminishes and the State's authority to protect human life grows until it subsumes the privacy implications. Thus, the states are free to regulate abortion within the framework set up by the Court.

the issue is the state's 'interest.' -- The state's interest becomes more "compelling" as the fetus develops. the state may legislate in the area of a fundamental right when it's legislation is substantially related to a compelling state interest. In the first trimester, R v W said the state's interest is not compelling.

Roe v Wade doesn't imply it -- it says it outright, when it sets forth its trimester test.

Roe no longer obtains in that regard, it's been overruled by PP v. Casey, which sets both a "fetal viability" test and lowers the bar from "compelling need" to "unreasonably obstructs."

Sure but that doesn't change what roe v wade said. It also didn't exactly change the applicable rule -- It was a 'plurality' opinion, not a majority. The plurality recognized viability as the point at which the state interest in the life of the fetus outweighs the rights of the woman and abortion may be banned entirely "except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother".

but either way -- this illustrates my point exactly, which is that the right of privacy found in the federal constition is incorporated into the 14th amendment due process clause, and is therefore applicable to the States. The issue, then is whether the State can legislate in this area where the woman has a right of privacy. The answer is yes, if the State's interest is compelling enough to outweigh the mother's right to privacy in her bodily autonomy. For the reasons explained in PP v Casey, before viability, according to the plurality, the state's interest isn't compelling enough. after viability it is.

Chance of survival after 22 weeks (5.2 months) is 0 to 10%. http://en.wikipedia.org/wiki/Fetal_viability

It works out about the same as Roe, because Roe called for unrestricted abortion through 3 months. then the next three months there could be restrictions and regulations, but not bans, and then after 6 months you could have bans. Since PP v Casey's plurality talked about viability, it is probable that viability would not be considered to exist until something past the 22 week mark - is having a 10% survival chance "viable?" I don't know, but even if it is, it's only 3 weeks shy of the Roe cutoff anyway.

[Seth]

but if rights are not granted by the government, then they don't have to be enumerated. and, the enumeration of some rights does not disparage or limit the existence of other rights. Amendment 9.

Correct. But there also exists a hierarchy of rights where one right may be subordinate to another.

If you claim that such a hierarchy applies in this case, you'll have to make your case (other than that you personally feel that one right is more important than another).

Clearly that's what the Court enunciated in both Roe and Casey. At some point in gestation the importance of the mother's privacy right pales in comparison to the more fundamental right to life of the fetus.

This clearly implies that after fetal viability, the mother's privacy right diminishes and the State's authority to protect human life grows until it subsumes the privacy implications. Thus, the states are free to regulate abortion within the framework set up by the Court.

the issue is the state's 'interest.' -- The state's interest becomes more "compelling" as the fetus develops. the state may legislate in the area of a fundamental right when it's legislation is substantially related to a compelling state interest. In the first trimester, R v W said the state's interest is not compelling.

And in Casey it discarded that test and replaced it with fetal viability. But you have to also consider the state's interest in what? Specifically it's the State's interest in protecting developing human life. This obviously means that the right to life is more important than the right to medical privacy...in some situations. Thus a hierarchy of rights. Your right to swing your fist ends at my nose because my right to keep my nose intact and uninjured outweighs your right to swing your fist. Hierarchy.

Roe v Wade doesn't imply it -- it says it outright, when it sets forth its trimester test.

Roe no longer obtains in that regard, it's been overruled by PP v. Casey, which sets both a "fetal viability" test and lowers the bar from "compelling need" to "unreasonably obstructs."

Sure but that doesn't change what roe v wade said. It also didn't exactly change the applicable rule -- It was a 'plurality' opinion, not a majority. The plurality recognized viability as the point at which the state interest in the life of the fetus outweighs the rights of the woman and abortion may be banned entirely "except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother".

but either way -- this illustrates my point exactly, which is that the right of privacy found in the federal constition is incorporated into the 14th amendment due process clause, and is therefore applicable to the States. The issue, then is whether the State can legislate in this area where the woman has a right of privacy. The answer is yes, if the State's interest is compelling enough to outweigh the mother's right to privacy in her bodily autonomy. For the reasons explained in PP v Casey, before viability, according to the plurality, the state's interest isn't compelling enough. after viability it is.[/quote]

I'm unsure why we're arguing this point, that's what I said.

Chance of survival after 22 weeks (5.2 months) is 0 to 10%. http://en.wikipedia.org/wiki/Fetal_viability

It works out about the same as Roe, because Roe called for unrestricted abortion through 3 months. then the next three months there could be restrictions and regulations, but not bans, and then after 6 months you could have bans. Since PP v Casey's plurality talked about viability, it is probable that viability would not be considered to exist until something past the 22 week mark - is having a 10% survival chance "viable?" I don't know, but even if it is, it's only 3 weeks shy of the Roe cutoff anyway.

Right. One point I'd like to amplify however is that "viability" is not a static point in time, it varies with both culture and medical science. Thus, viability in an area where advanced neonatal medical care is unavailable may be different from where such care is available, all of which could be figured in during a court hearing on whether an abortion will be allowed. Someday "fetal viability" may be very early in the pregnancy due to the availability of artificial wombs that can gestate a fetus from the zygote stage. At that point, abortion should disappear as an option, and should be replaced with medical removal of the fetus and implantation in an artificial womb, in order to respect the fetus' right to life versus the inconvenience of the mother.

[Blind groper]

Kind of interesting how this debate has moved on to American law. That has never impressed me. The best and most pithy comment ever made about the law was that from Charles Dickens, in his book David Copperfield, when Mr. McCawber stated : "The law is an ass."

One of the reasons the law is an ass is that it is inevitably out of date. Society changes, and the law struggles to keep up. Laws are often decades out of date. You can see that in the current gay marriage debate. Gays have been 'out of the closet' and living as marriage partners for decades now, and the law is only just starting to catch up.

For this reason, when someone quotes the law, and uses that as an argument for why something is supposedly correct, it impresses me not at all.

One of the principles that strongly affects my own code of beliefs is simply that, if you cannot stop something, it is better to keep it legal. Gay marriage is a case in point. Gays will live as marriage partners, regardless of the law, so it is better to recognise that. Ditto for prostitution. Better to make it legal, and provide for sex workers rights and welfare. It has always been pointless trying to make smoking marijuana illegal for the same reason.

So how does this affect abortion?
Well, I remember a newspaper article which stated that New Zealand had its highest rate of abortion on a per capita basis in the 1930's. The reporter who stated that, got the data from police, not medical, records. Of course, abortion was illegal in the 1930's. But there was no contraceptive pill and people loved bonking then just as much as they do today. Inevitably a lot of unmarried women got pregnant. Back then this was a major disgrace. As a result, the back street abortionists got a lot of trade. Lots of women died or became infertile, due to the fact that those guys were not doctors and often blundered. Butchers more than doctors.

Eventually, the law caught up, and made proper abortions legal, and set up proper clinics, so that the women did not suffer.

But my real point is that abortion is inevitable. You can argue whether it is right or wrong, sinful or otherwise. But it will always happen. Thus, rather than trying to push shit uphill, it is much better to recognise the reality, and make it available, with professional clinics.

[JimC]

BG wrote:

But my real point is that abortion is inevitable. You can argue whether it is right or wrong, sinful or otherwise. But it will always happen. Thus, rather than trying to push shit uphill, it is much better to recognise the reality, and make it available, with professional clinics.

I accept this, but add that the right set of policies in regard to the availability of contraception and sex education have the promise of reducing unwanted pregnancies to a bare minimum. One can agree that abortion should be legal, while still wanting to minimise its incidence as far as humanly possible.