A secular debate about abortion

[Seth]

The hypocrisy of the law as it stands now is that the man has absolutely no rights at all when it comes to the fetus, and is burdened with the responsibility of providing support for the child if the woman asserts her right to gestate the child.

I see that as a fundamental inequity in the law that must be rectified. The law is supposed to protect everyone's rights equally.

This is more like your "gravity" argument. The man has no right at all when it comes to the fetus because the fetus is in (and arguably part of) the woman's body. In order for him to have a meaningful say in the matter, the woman would have to be subjected to his will and her actions would have to be cleared by the father first. What that would result in would be involuntary servitude, peonage or slavery on the part of women because what they do with their bodies would be directed by others. If a man wants her to have the baby, she must have the baby (since withholding his consent to an abortion constitutes a requirement that she bear the child).

It's certainly servitude, but it's not involuntary because she consented to a term of voluntary servitude as the gestational parent by consenting to have sexual relations.

Moreover, you are just wrong when you say that the law is supposed to protect everyone's rights equally. Equal protection does not require that different things must be treated equally. In this case, there are fundamental differences between men and women - women have uteruses and bear children - men have cocks and balls. To suggest that a man ought to have the right to direct whether a woman has an abortion or not is analogous to saying that a wife ought to be able to veto a man's desire to have a vasectomy. She has an "interest" in whether he gets one because he's her husband and they may have been contemplating having children together - but, unfortunately for her, they're his testicles....

Yes, equal protection does not require that different things be treated equally, but it does require that the legal interests and rights of each party be given consideration and are afforded due process of law. In the case of abortion, many people feel that the fetus is an interested party in such considerations, and so does the State, as outlined in Roe v. Wade.

And I would argue, again from the civil contract perspective, that a husband who gets a vasectomy, or a wife who gets a tubal ligation, without the consent of his or her spouse engages in marital fraud which should (and likely does) justify either annulment or divorce, preferably the former, because annulment does not require division of the assets. This would apply if the expectation of the partner was that the marriage was formed in part for the purposes of procreation and raising children. Making oneself deliberately infertile in violation of that contractual agreement is a breach of contract.

So yes, I would argue that civil contract law and equity would indeed have some control over whether a spouse can sterilize themselves without the consent of the other spouse, and the matter of abortion is precisely the same, but to an even greater degree, particularly in a marriage where the contract under which the marriage was formed included (or rather failed to explicitly exclude, since child-rearing is a customary function of marriage in all civilized societies) the intention of either to have children. It's a fraudulent act to violate that contractual obligation, and there should rightfully be consequences for engaging in such fraud.

I'm not necessarily opposed to terminating fetuses, I have no religious beliefs in that regard, but I think that society should squarely face the issue and acknowledge that abortion terminates a human life.

Sure - abortion terminates human life, but not "a human being." Cutting off your thumb terminates human life, too.

Abortionist propaganda. This is merely a repetition of the "it ain't human" pro-abortion canard that is an essential part of the abortion propaganda. Only by denying the humanity of the fetus can abortionists even begin to ethically or morally support their position. But facts are facts, and from zygote to adult, it's a living human being. Only unreason and illogic can overcome the simple observations and dictionary definitions that show this to be true.

[Coito ergo sum]

... what's the principled ethical argument that absolves the woman of all responsibility for accepting the consequences of her poor reproductive judgment by allowing abortion at will merely because she does not wish to be inconvenienced? Should we repeal gravity because a woman throws herself off a cliff without a parachute and then changes her mind half-way down?

Yes - if there was a way to allow people who throw themselves off cliffs without parachutes and land safely and unharmed below, then absolutely, we why not do it? If your analogy is that having sex is like jumping off a cliff, and getting pregnant is like hitting the ground, then clearly if there is a way to either not get pregnant or not hit the ground, but still be allowed to fuck and jump off cliffs, then there is no principled reason why we ought to force people to have babies or hit the ground. Is there?

The principled, ethical argument that would permit a woman to have an abortion, and be the sole decision maker, is that it is her body and the medical procedure is done to her, not someone else. The same reason it is up to me, and me alone, that I have a tooth removed, or a vasectomy, the abortion is a medical procedure performed on an individual - that individual is the decision maker. To be otherwise - to give someone else the power over that decision - would be to (a) violate the woman's right to privacy in her own body, and (b) render her an involuntary servant, peon or slave.

This is about society refusing to facilitate bad behavior and bad judgment on the part of women who wish to engage in promiscuous sex without any regard for the consequences or the rights of others.

Whether a woman's behavior is "bad" is not the issue. She can get pregnant whenever she wants and is physically able. Even though it happens as a result of a man's sperm, it's not his body to control, it's hers. He does not have a right to compel her to either have an abortion or to not have an abortion.

The simple fact is that when a child is created, even a potential child (if you insist), other legal, moral and ethical interests come into being at the same time, and those interests are due respect and consideration even if it discommodes the mother, because she is a willing party to the act and has consented to the risks, and therefore has forfeited her absolute right to control her body in whatever manner she chooses.

I don't know where you get this idea that the woman "forfeits" her rights over her body because she has sex with a man. It seems to me that she has the same right everyone else has to do with her own body what she pleases and she may not be deprived of that liberty without due process of law. Surely it's not self-evidence that having sex means she cedes rights over her body to the man who she has sex with?

[Seth]

Well, this is where we disagree. In the common law, one can ratify a contract through performance, and implied contracts are everywhere in the law.

Yes - but, an implied contract is not just "whatever we choose it to be." A contract is implied when a party knowingly accepts a benefit from another party in circumstances where the benefit cannot be considered a gift. Therefore, the party accepting the benefit is under a legal obligation to give fair value for the benefit received. In the case of sex, there is no implication that a woman would pay fair value for some benefit received or vice versa.

Well, you're imprudently assuming that commercial contract law and general contract law and the common law are the same thing. They aren't. There is no exchange of things of value in the contract between the landlord and the invitee. Nice try though.

Go look at any warranty for a consumer good, which will disclaim any "implied warranty." A warranty is a contract.

In the area of consumer goods, an implied contract is like when you take stuff off the shelves at a supermarket there is an implied contract that you pay the price of the goods before taking them home. There is no "express" offer and acceptance. That's an implied contract.

Implied warranties are warranties that are set by law - they are implied assurances that are made by the seller of a product or real estate. It's like - if I sell food at the store, it's implied that it's fit for human consumption. There is no similar implied warranty that is anything like your supposed "implied warranty that a woman will be solely responsible for all children born out of a particular sexual intercourse absent the father's express acceptance of support obligations some time prior to birth."

The example is merely that, an example of the fact that people may be bound to contracts without it being in writing or even orally agreed to. They may bind themselves to duties of specific performance merely by performing some act. Merely by opening my property to the presence of invitees, I bind myself to specific performance to protect my invitees from harm while therein.

If I invite you onto my property, there exists an implied contract between you and I that I will take due care not to expose you to hazardous conditions, like an icy sidewalk.

That's no mplied contract. That's tort law. You have a duty toward licensees and invitees to adhere to a certain standard of care. There is no contract, express or implied. If someone gets injured on your property you get sued for negligence (unless you also have an offer, acceptance and consideration to do X, Y or Z and you failed to do X, Y or Z).

It's a contract. I have a "duty" to perform that is created by the invitation, and my guests have a right to demand that I perform that duty. That's a contract. And it's "implied" because society says that duty exists through the common law. The law, including the common law, is a contract between members of a community to adhere to specific duties of action and inaction that can be enforced if any person fails to abide by those duties. The same rationale is used in my "contract for sex" thesis. When a party consents to a particular action, that party also consents to respect the rights of other parties to the action. When I consent to the presence of guests on my property, I consent to undertake a duty of reasonable care for their safety.

The duty undertaken by a woman who consents to have sex implies the duty to accept the known consequences of sexual congress, one of which is pregnancy. Another of which is failure to reach orgasm.

If you are a trespasser, however, my duty of care is "ordinary care," which means not to knowingly create a hazard that can harm you, but if you get injured by some ordinary hazard, I'm not responsible. These sorts of implied contracts can be based, as we see, in societal expectations and common practice.

That's wrong. You don't owe a duty of "ordinary care" to a trespasser. To an undiscovered trespasser you owe a duty not to trap or wilfully harm the trespasser. To the discovered trespasser you owe only the duty of common humanity to warn of hidden dangers of which the owner is aware.

But again -that's tort law - negligence - not "contract."

Tort liability to licensees, invitees and trespassers would have some analogous relevance if you were claiming that a woman should be liable for all the costs associated with the fetus/baby on a negligence theory - failure to adhere to a legal standard of care where she had a legal duty to exercise such care. But, you're taking a contract route. So, why you are arguing about negligence and tort law now is raising an inapplicable analogy.

I disagree. The common law, which includes torts, is nothing more or less than a complex series of contractual agreements and obligations between members of society. Torts are just one aspect of the common law that describes harms that one can do to another that are compensable. But the common law includes many other aspects of the social contract that binds people to specific performance. Some of the common law is codified as statutes, but not all. I argue that the obligations formed by consent to sex are part of the common law and comprise contractual obligations and rights that apply to all parties to the transaction.

My argument is that because pregnancy is a natural, ordinary, known and predictable (to some extent) result of sexual congress, society is free to acknowledge a common law contractual obligation on the part of both parties to the sex act in the interests of equity among the parties and in the interests of public policy, in the same way that the common law recognizes a contractual relationship between an invitee and a landowner, or a permitee and a landowner, or a trespasser and a landowner.

The common law does not recognize a contractual relationship between an invitee and landowner. It's a legal duty imposed by law based on the status of an injured person. It's no more a matter of 'contract' than any other negligence claim. If you are driving down the street in your car there is no contract, express or implied, that you not ram your car into mine. However, while operating your car on the roads you have a tort duty to act reasonably under the circumstances and if you breach that duty to act reasonably, and someone or something is injured as a proximate result of your failure to behave reasonably, then you are liable for negligence.

We disagree. The common law is, in fact, the codification of the social contract by which communities regulate behavior. From the legalistic perspective, as generally accepted by the courts, "contract" may not be the precisely correct term, but I'm arguing with laypersons, and I'm a layperson myself, and the use of the term "contract" is intended to illuminate the principles involved rather than be a legal brief for a court.

The entirety of tort law is in fact a whole series of implied contracts between members of society that require no oral or written ratification. The laws of libel, for example, apply whether or not the libelist has agreed to have his free speech constrained. The same is true of every other tort claim.

There is no agreement at all, whether express or implied. An implied contract is a contract - with contract terms - that is implied from the circumstances of a given transaction. Tort law is not a "series of implied contracts." Obligations have traditionally been divided into contracts, which are voluntarily undertaken and owed to a specific person or persons, and obligations in tort which are based on the wrongful infliction of harm to certain protected interests, primarily imposed by the law, and typically owed to a wider class of persons. Even implied contracts are "voluntary undertakings." The voluntariness is implied from the circumstances - example: you impliedly agree to pay for your stewed tomatoes before you exit the store. If you slip and fall on stewed tomatoes that had spilled on the floor of the supermarket, the supermarket may be liable to you in tort for negligence - they have no contractual duty to you, though (whether express or implied).

Just as I said, when a man and a woman agree to have sex, they voluntarily undertake actions that bind them to an implied contract. Having sex is not a wrongful action, it's a voluntary act. I'm saying that the voluntariness of the act, and the known and obvious risks associated therewith, create a contract. Not all contractual obligations must be specified in detail in every contract. Common presumptions based on the nature of the transaction also bind the individuals. That's why there is such a thing as an "unconscionable contract" which the courts will refuse to acknowledge.

And as we see in current legal interpretations there IS a common law implied contract of specific performance that burdens both parents to support THE CHILD. The child has not made a contract, the parents have not necessarily orally or in writing agreed to support the child, and yet it is universally true that the courts enforce that contractual liability that is created when a child is born. This is an implied contract acknowledged by all civilized societies, and it proves my point that such contracts DO exist.

There is no common law implied contract to support a child.

There is a legal duty imposed irrespective of the agreement of the parties under common law for parents to support their born children. It's not an implied contract.

Pettifoggery. It's a contract that may be enforced by either party on the failure of the other party to live up to the obligations of that agreement. That it's statutorily enforced is irrelevant. The agreement, the meeting of the minds as between the parents occurs when the child is born, or, in some interpretations, when the child is created.

It is NOT universally true that the courts enforce CONTRACTUAL liability created when a child is born. They enforce the common law (or actually today it's a statutory duty, because in all 50 states in the US the common law in this area has been superseded by statute) duty to support your born children. It's not a duty found in contract, and no court decision in United States or British history has ever stated that a father has a CONTRACTUAL obligation to support his born children.

Well, it's time to change that, isn't it?

Because they do, there is no reason not to extend the logic further.

Contracts are always best if expressed orally or in writing, but it is not legally necessary in all cases to do so for a contract to be ratified.

Right - an implied contract can be found from the facts and circumstances where the facts justify the conclusion that certain terms were agreed to by virtue of the circumstances. One example is the agreement to return a vehicle within a period of time after you borrow it for a test drive. Even if you don't agree expressly to return it, you have to return it because that's what test drives are for. Another example is that when you take the stewed tomatoes off the shelf of the supermarket you impliedly agree to pay for them at the cash register rather than walk out the door.

You're trying to suggest that there is an implied contract that when a woman consents to sex with a man, that unless she gets his agreement to support the fruit of their loins expressly, that she is impliedly contracting to be solely responsible for the support and upbringing of any children born alive of that union? Is that what you are really suggesting is "implied" by the fact of sexual intercourse between two people? If that is "logical" to you, then I have to simply respectfully disagree. Such an obligation is nothing like implied contracts in other circumstances. What you're doing is just picking a state of affairs you find palatable and decreeing that it be deemed "implied." That ain't how implied contract law works.

It's her uterus. She has absolute legal control over it, and therefore absolute legal liability for what goes into it and comes out of it. You're implying that the male has a duty to control his semen AFTER he's ejaculated and extracted his penis from her vagina. Since he's not in control of his semen once it's ejaculated, and indeed CANNOT control it even to the extent of demanding that it be returned to him or that the sperm be killed so as not to create a child, the woman necessarily is liable for what occurs in her uterus and fallopian tubes because it's impossible, not to mention unlawful for the man to interfere once he'd deposited his sperm by her invitation. The effects of that deposit don't typically take place for some hours or days after deposit, and the woman is in absolute control of whether conception occurs or not, both before and after the fact.

Equity demands that, this being the case, he be absolved from all liability or responsibility for what he cannot, and is legally forbidden to control once he's ejaculated. Because the woman invited him to ejaculate inside her, she bears the responsibility for whatever happens afterwords.

I want to add that you might be alluding to the law of "quasi-contract." But, that too doesn't apply because for there to be liability for quasi-contract, three things must happen: (1) Plaintiff furnished / rendered valuable goods / services to Defendant with a reasonable expectation of being compensated; (2) Defendant knowingly accepted the benefits of the goods / services; and (3) Defendant would be unfairly benefited by the services / receiving the goods if no compensation were paid to the Plaintiff. I trust you are not suggesting that quasi-contract law applies. But, you'll let me know.

Semen is a valuable good, as any sperm donor can tell you. He was compensated with sexual pleasure, which is a valuable consideration, which any prostitute can tell you. The woman invited him into her vagina in the expectation of orgasm, which includes ejaculation as a normal part of the service. The woman may choose to keep the resulting child, thereby burdening the man with a child support obligation, and thus unfairly benefits from the sperm donation. Or, the woman may kill the child, which denies the man the benefit of the sperm donation.

Yeah, I think there's a quasi-contract argument to be made. Thanks.

[Coito ergo sum]

The hypocrisy of the law as it stands now is that the man has absolutely no rights at all when it comes to the fetus, and is burdened with the responsibility of providing support for the child if the woman asserts her right to gestate the child.

I see that as a fundamental inequity in the law that must be rectified. The law is supposed to protect everyone's rights equally.

This is more like your "gravity" argument. The man has no right at all when it comes to the fetus because the fetus is in (and arguably part of) the woman's body. In order for him to have a meaningful say in the matter, the woman would have to be subjected to his will and her actions would have to be cleared by the father first. What that would result in would be involuntary servitude, peonage or slavery on the part of women because what they do with their bodies would be directed by others. If a man wants her to have the baby, she must have the baby (since withholding his consent to an abortion constitutes a requirement that she bear the child).

It's certainly servitude, but it's not involuntary because she consented to a term of voluntary servitude as the gestational parent by consenting to have sexual relations.

That she did not do. If she is required to bear a child at the command of another against her own will, then she is in involuntary servitude and peonage. The consent to the sexual act is not consent to have a baby.

Moreover, you are just wrong when you say that the law is supposed to protect everyone's rights equally. Equal protection does not require that different things must be treated equally. In this case, there are fundamental differences between men and women - women have uteruses and bear children - men have cocks and balls. To suggest that a man ought to have the right to direct whether a woman has an abortion or not is analogous to saying that a wife ought to be able to veto a man's desire to have a vasectomy. She has an "interest" in whether he gets one because he's her husband and they may have been contemplating having children together - but, unfortunately for her, they're his testicles....

Yes, equal protection does not require that different things be treated equally, but it does require that the legal interests and rights of each party be given consideration and are afforded due process of law. In the case of abortion, many people feel that the fetus is an interested party in such considerations, and so does the State, as outlined in Roe v. Wade.

That has nothing at all to do with the fact that women have uteruses and men don't. If men had uteruses, they'd be able to have abortions, but they don't. So, they don't. Men have balls, so they can have vasectomies with impunity. It's like gravity.

And I would argue, again from the civil contract perspective, that a husband who gets a vasectomy, or a wife who gets a tubal ligation, without the consent of his or her spouse engages in marital fraud which should (and likely does) justify either annulment or divorce, preferably the former, because annulment does not require division of the assets. This would apply if the expectation of the partner was that the marriage was formed in part for the purposes of procreation and raising children. Making oneself deliberately infertile in violation of that contractual agreement is a breach of contract.

Where do you get this stuff? You think that if someone gets married and 5 years later they get a vasectomy without consent that's grounds for "annulment?" That's ridiculous. It isn't.

Plus - annulments do too require a division of assets. Generally speaking, however, annulments occur very early on in a marriage because the grounds are very drastic, like a bigamy or underage marriage, etc. But, if they have merged their finances or accumulated assets together, the court will too engage in a division of assets, and the court will determine what assets were held by the parties before they married and what was accumulated after and conduct a distribution in accordance with the laws of the state in which the case is being decided.

So yes, I would argue that civil contract law and equity would indeed have some control over whether a spouse can sterilize themselves without the consent of the other spouse, and the matter of abortion is precisely the same, but to an even greater degree, particularly in a marriage where the contract under which the marriage was formed included (or rather failed to explicitly exclude, since child-rearing is a customary function of marriage in all civilized societies) the intention of either to have children. It's a fraudulent act to violate that contractual obligation, and there should rightfully be consequences for engaging in such fraud.

Well, thankfully, the law is not as you say. If a man wants a vasectomy, he does not have to ask his wife first. She can file for divorce if she wants, but most if not all places are no fault states anyway, and in the states that recognize annulment if they qualify then the marriage can be annulled. He still doesn't need her permission.

Sure - abortion terminates human life, but not "a human being." Cutting off your thumb terminates human life, too.

Abortionist propaganda. This is merely a repetition of the "it ain't human" pro-abortion canard that is an essential part of the abortion propaganda. Only by denying the humanity of the fetus can abortionists even begin to ethically or morally support their position. But facts are facts, and from zygote to adult, it's a living human being. Only unreason and illogic can overcome the simple observations and dictionary definitions that show this to be true.

No it isn't. It is human. It's just not a human being. My hair is human. There is no mixing up my hair with the hair of a non-human creature. My semen is human, and so is my skin. My skin is alive. And, killing some of my skin is not killing a human being. My human sperm cells are alive, and killing them is no problem whatsoever.

I don't deny the fact that an embryo or a fetus is human. It's a human embryo or fetus.

[lordpasternack]

If you cared nought for the feelings of those you argue, then you wouldn't try to deliberately provocative, Seth. You admit to deliberately drawing visceral reactions out, and then trying to make people think, as you see it. If I bend over in front of you and squeeze my breasts together and wink at you, it's obviously a deliberate act to induce a certain effect in you. There's nothing necessarily wrong with that - but it's dishonest to both of us and disingenuous to you for me to claim never to have had any stake in a reaction from you. It's stupid for me to say it's for you to control whether or not your pupils dilate and penis becomes engorged and you start running impure thoughts through your mind (though it is, it goes without saying, completely your responsibility how you then approach me in light of that).

Where there is some conscious provocation for some basic reaction, and when your being convincingly deceptive or misleading, you can't just rework the situation where you're somehow passive and guileless. It's quite passive-aggressive. Fine. At least be plainly honest about it.

And I know stirring visceral reactions is a good way to provoke thought and instigate discussion sometimes. I'm no stranger to a bit of piss-taking, teasing, and galling blunt honesty myself. I just usually like to be more straightforward and upfront about my intent and frame of mind. I don't give a shit about offending people with what I think is a valid argument, either - but if I ever do take the tactic of deliberately riling people, I'm not going to paint myself as some noble crusader and paragon of intellect out to shake up the plebeians and make them think…

[Seth]

... what's the principled ethical argument that absolves the woman of all responsibility for accepting the consequences of her poor reproductive judgment by allowing abortion at will merely because she does not wish to be inconvenienced? Should we repeal gravity because a woman throws herself off a cliff without a parachute and then changes her mind half-way down?

Yes - if there was a way to allow people who throw themselves off cliffs without parachutes and land safely and unharmed below, then absolutely, we why not do it?

Why should we? Let me rephrase the analogy slightly to illuminate the principle under discussion: Is society OBLIGATED to repeal gravity, or for that matter provide safety nets at all cliffs, in order to relieve the woman of her responsibility for accepting the consequences of her imprudent behavior? I say no. If she wants to jump off a cliff and die, that's her RIGHT.

If your analogy is that having sex is like jumping off a cliff, and getting pregnant is like hitting the ground, then clearly if there is a way to either not get pregnant or not hit the ground, but still be allowed to fuck and jump off cliffs, then there is no principled reason why we ought to force people to have babies or hit the ground. Is there?

Sure there is, it's called the "Did it hurt when you did that? Yes? Then don't do that" principle of operative conditioning. Society has a legitimate interest in quelling unbridled promiscuity, and requiring women to accept and experience the consequences of promiscuity provides them with a valuable lesson in the merits of sexual self-control.

The principled, ethical argument that would permit a woman to have an abortion, and be the sole decision maker, is that it is her body and the medical procedure is done to her, not someone else.

But the argument here is that once she agrees to have sex, and a child is conceived, she is no longer the sole decision maker because she has voluntarily entered into a contract with other interested parties, and has therefore voluntarily forfeited her right to absolute control of the fetus and indeed her body.

The same reason it is up to me, and me alone, that I have a tooth removed, or a vasectomy, the abortion is a medical procedure performed on an individual - that individual is the decision maker.

Your tooth is not a separate, unique, living human being with its own DNA and developmental future. Nor was your tooth created as the result of a voluntary act involving another party whose rights and expectations are due consideration.

To be otherwise - to give someone else the power over that decision - would be to (a) violate the woman's right to privacy in her own body, and (b) render her an involuntary servant, peon or slave.

Nope. She is a VOLUNTARY gestational parent. Her consent was given through the act of allowing a man to ejaculate insider her and deposit sperm inside her. When she allowed that to happen, she accepted the know risks of pregnancy and took upon herself the risk of being obligated to nine months as a gestational parent. Unless she was raped, in which case I support her right to abort.

You are merely parroting the common canard that women ought to be absolved of all personal responsibility and consequences from the results of their poor sexual decision making. I don't buy that argument for an instant, and there is no principled ethical argument that supports this specious argument.

This is about society refusing to facilitate bad behavior and bad judgment on the part of women who wish to engage in promiscuous sex without any regard for the consequences or the rights of others.

Whether a woman's behavior is "bad" is not the issue.

It's exactly and precisely the issue.

She can get pregnant whenever she wants and is physically able.

Yup. But when she does, she incurs some obligations to the other party to the transaction, and thereby surrenders some part of her absolute autonomy over the products of conception, and therefore necessarily her body.

Even though it happens as a result of a man's sperm, it's not his body to control, it's hers. He does not have a right to compel her to either have an abortion or to not have an abortion.

He does if she consented to it, which she does by inviting his semen inside her vagina. Consent to the sex act is what creates these obligations that she may be compelled to adhere to. Because she has absolute control over who and what gets into her womb, it's her responsibility to deal with the consequences, and accept that when a child is formed, there are other legal, moral and ethical interests in play. If she doesn't want to take those risks or subscribe to that implied contract, then she can simply refuse to have sex, as is her right. But society is not obligated to relieve her of the natural consequences of her voluntary decision to have sex.

The simple fact is that when a child is created, even a potential child (if you insist), other legal, moral and ethical interests come into being at the same time, and those interests are due respect and consideration even if it discommodes the mother, because she is a willing party to the act and has consented to the risks, and therefore has forfeited her absolute right to control her body in whatever manner she chooses.

I don't know where you get this idea that the woman "forfeits" her rights over her body because she has sex with a man.

That would be the result of logic and reason.

It seems to me that she has the same right everyone else has to do with her own body what she pleases and she may not be deprived of that liberty without due process of law.

She does, but once she voluntarily agrees to have those rights constrained, she can be held to that agreement. Consent negates any argument that her liberty is being infringed. She has SURRENDERED some liberty in return for sexual pleasure. She's not compelled to do that, but there's no reason she cannot be compelled to accept the consequences of doing so.

Surely it's not self-evidence that having sex means she cedes rights over her body to the man who she has sex with?

If a child is conceived, then yes, she cedes certain rights over her body to the other interested parties in the transaction, and she does so voluntarily. On the other hand, if she's going to argue for plenary authority over her body no matter what, then she cedes her right to demand anything at all from the other party to the transaction, like child support.

She can't have her cake and eat it too. Either she's sovereign over her body and thereby accepts ALL the natural consequences of human life, including pregnancy that results from voluntary sexual activity, or she cedes certain rights when she contracts with a man to have sex and a baby is made. One or the other, not both.

[Seth]

If you cared nought for the feelings of those you argue, then you wouldn't try to deliberately provocative, Seth. You admit to deliberately drawing visceral reactions out, and then trying to make people think, as you see it. If I bend over in front of you and squeeze my breasts together and wink at you, it's obviously a deliberate act to induce a certain effect in you. There's nothing necessarily wrong with that - but it's dishonest to both of us and disingenuous to you for me to claim never to have had any stake in a reaction from you. It's stupid for me to say it's for you to control whether or not your pupils dilate and penis becomes engorged and you start running impure thoughts through your mind (though it is, it goes without saying, completely your responsibility how you then approach me in light of that).

You misconstrue the phrase. I care nought that you are annoyed or alarmed by my provocations, because such emotions are beyond my control. I do care that I succeed in being provocative, because that's the genesis of debate. Like your butt-wiggling and breast squeezing, the intention is to provoke a response, but like a girl showing her boobs and bush to a gay guy, one cannot predict or control exactly what that response will be.

Where there is some conscious provocation for some basic reaction, and when your being convincingly deceptive or misleading, you can't just rework the situation where you're somehow passive and guileless. It's quite passive-aggressive. Fine. At least be plainly honest about it.

I was under the impression that I'd been painfully obvious about it. I did publish rather a long screed in my welcome thread to that effect. It's my my lookout that you failed to recognize that the lure you're nibbling at has a sharp hook inside. I prefer to give my intellectual opponents the benefit of the doubt and assume that they are adult, rational, reasonable and perceptive human beings, not children. Please excuse me if I made a mistake.

And I know stirring visceral reactions is a good way to provoke thought and instigate discussion sometimes.

Isn't it just!

I'm no stranger to a bit of piss-taking, teasing, and galling blunt honesty myself. I just usually like to be more straightforward and upfront about my intent and frame of mind.

Glad to hear it. I've been developing my procedures for almost 20 years now, so I'll stick with what I know, thanks.

I don't give a shit about offending people with what I think is a valid argument, either - but if I ever do take the tactic of deliberately riling people, I'm not going to paint myself as some noble crusader and paragon of intellect out to shake up the plebeians and make them think…

That's fine, I'll be the noble crusader and paragon of intellect in your stead. Probably better that way anyway, I'm better at it than you are.

[Coito ergo sum]

Well, this is where we disagree. In the common law, one can ratify a contract through performance, and implied contracts are everywhere in the law.

Yes - but, an implied contract is not just "whatever we choose it to be." A contract is implied when a party knowingly accepts a benefit from another party in circumstances where the benefit cannot be considered a gift. Therefore, the party accepting the benefit is under a legal obligation to give fair value for the benefit received. In the case of sex, there is no implication that a woman would pay fair value for some benefit received or vice versa.

Well, you're imprudently assuming that commercial contract law and general contract law and the common law are the same thing. They aren't. There is no exchange of things of value in the contract between the landlord and the invitee. Nice try though.

I know there is no exchange of things of value. That was precisely my point. It's not contract at all. It's tort law. There is no contract, express or implied.

Go look at any warranty for a consumer good, which will disclaim any "implied warranty." A warranty is a contract.

In the area of consumer goods, an implied contract is like when you take stuff off the shelves at a supermarket there is an implied contract that you pay the price of the goods before taking them home. There is no "express" offer and acceptance. That's an implied contract.

Implied warranties are warranties that are set by law - they are implied assurances that are made by the seller of a product or real estate. It's like - if I sell food at the store, it's implied that it's fit for human consumption. There is no similar implied warranty that is anything like your supposed "implied warranty that a woman will be solely responsible for all children born out of a particular sexual intercourse absent the father's express acceptance of support obligations some time prior to birth."

The example is merely that, an example of the fact that people may be bound to contracts without it being in writing or even orally agreed to. They may bind themselves to duties of specific performance merely by performing some act. Merely by opening my property to the presence of invitees, I bind myself to specific performance to protect my invitees from harm while therein.

Yes, but that doesn't mean that whatever you dream up can be an implied contract. That's not the law and never was the law. Contracts that are implied contracts are implied FROM THE FACTS AND CIRCUMSTANCES such that the circumstances of a transaction necessitate that certain terms apply. It's still a contract. It's just "implied in fact," as opposed to "express." Nothing in the circumstances of having sex implies that either (a) a woman must bear the entire burden of raising the born child, or (b) that the man has veto power over whether she gets an abortion.

You're back to this invitees nonsense - look - there is no contract between a property owner and the invitees or licensees. It's tort law. Tort law is not contract law and it is not based on contracts, whether express or implied.

If I invite you onto my property, there exists an implied contract between you and I that I will take due care not to expose you to hazardous conditions, like an icy sidewalk.

That's no mplied contract. That's tort law. You have a duty toward licensees and invitees to adhere to a certain standard of care. There is no contract, express or implied. If someone gets injured on your property you get sued for negligence (unless you also have an offer, acceptance and consideration to do X, Y or Z and you failed to do X, Y or Z).

It's a contract. I have a "duty" to perform that is created by the invitation, and my guests have a right to demand that I perform that duty. That's a contract. And it's "implied" because society says that duty exists through the common law. The law, including the common law, is a contract between members of a community to adhere to specific duties of action and inaction that can be enforced if any person fails to abide by those duties. The same rationale is used in my "contract for sex" thesis. When a party consents to a particular action, that party also consents to respect the rights of other parties to the action. When I consent to the presence of guests on my property, I consent to undertake a duty of reasonable care for their safety.

You've got your law wrong. It's tort law. It's not a contract. If you'd like to find me a single case ever in the US or England that states that the duty of a property owner toward an invitee or licensee is contractual, I will eat my hat.

The duty undertaken by a woman who consents to have sex implies the duty to accept the known consequences of sexual congress, one of which is pregnancy. Another of which is failure to reach orgasm.

Yes, she must accept the known consequences of the sexual congress, one of which is pregnancy. However, pregnancy may terminate by abortion, and since she is the one with the uterus, then the right to privacy gives her say so over the goings on within it, and the right to be free from involuntary servitude keeps her free of the commands of the guy who provided the semen.

If you are a trespasser, however, my duty of care is "ordinary care," which means not to knowingly create a hazard that can harm you, but if you get injured by some ordinary hazard, I'm not responsible. These sorts of implied contracts can be based, as we see, in societal expectations and common practice.

That's wrong. You don't owe a duty of "ordinary care" to a trespasser. To an undiscovered trespasser you owe a duty not to trap or wilfully harm the trespasser. To the discovered trespasser you owe only the duty of common humanity to warn of hidden dangers of which the owner is aware.

But again -that's tort law - negligence - not "contract."

Tort liability to licensees, invitees and trespassers would have some analogous relevance if you were claiming that a woman should be liable for all the costs associated with the fetus/baby on a negligence theory - failure to adhere to a legal standard of care where she had a legal duty to exercise such care. But, you're taking a contract route. So, why you are arguing about negligence and tort law now is raising an inapplicable analogy.

I disagree. The common law, which includes torts, is nothing more or less than a complex series of contractual agreements and obligations between members of society. Torts are just one aspect of the common law that describes harms that one can do to another that are compensable. But the common law includes many other aspects of the social contract that binds people to specific performance. Some of the common law is codified as statutes, but not all. I argue that the obligations formed by consent to sex are part of the common law and comprise contractual obligations and rights that apply to all parties to the transaction.

You disagree, I know. But, you're dead wrong. Absolutely, positively dead wrong. If you can provide one shred of evidence that tort law is a series of complex contractual agreements, I'd love to see it. If that is the common law, then you'll find it in court opinions freely available on-line. Do you have one somewhere in the last 300 odd years that suggests what you are are arguing? If not, then stop saying it's the common law, and correctly phrase it that what you're arguing for is what you want the law to be.

My argument is that because pregnancy is a natural, ordinary, known and predictable (to some extent) result of sexual congress, society is free to acknowledge a common law contractual obligation on the part of both parties to the sex act in the interests of equity among the parties and in the interests of public policy, in the same way that the common law recognizes a contractual relationship between an invitee and a landowner, or a permitee and a landowner, or a trespasser and a landowner.

The common law does not recognize a contractual relationship between an invitee and landowner. It's a legal duty imposed by law based on the status of an injured person. It's no more a matter of 'contract' than any other negligence claim. If you are driving down the street in your car there is no contract, express or implied, that you not ram your car into mine. However, while operating your car on the roads you have a tort duty to act reasonably under the circumstances and if you breach that duty to act reasonably, and someone or something is injured as a proximate result of your failure to behave reasonably, then you are liable for negligence.

We disagree. The common law is, in fact, the codification of the social contract by which communities regulate behavior. From the legalistic perspective, as generally accepted by the courts, "contract" may not be the precisely correct term, but I'm arguing with laypersons, and I'm a layperson myself, and the use of the term "contract" is intended to illuminate the principles involved rather than be a legal brief for a court.

Yes, of course we disagree. But, if you open up a first semester law school Torts book and a first semester law school Contracts book, you'll see they've had this covered for centuries now. Tort and contract are different things, and tort law is not contractual. I don't know how much clearer I can make it - the damages recoverable in tort are different than contract damages, the basis for liability is different and the persons to whom the duties are owed are different. Common law tort law is not based on a series of contracts or on the philosophical theory of a "social contract."

The entirety of tort law is in fact a whole series of implied contracts between members of society that require no oral or written ratification. The laws of libel, for example, apply whether or not the libelist has agreed to have his free speech constrained. The same is true of every other tort claim.

There is no agreement at all, whether express or implied. An implied contract is a contract - with contract terms - that is implied from the circumstances of a given transaction. Tort law is not a "series of implied contracts." Obligations have traditionally been divided into contracts, which are voluntarily undertaken and owed to a specific person or persons, and obligations in tort which are based on the wrongful infliction of harm to certain protected interests, primarily imposed by the law, and typically owed to a wider class of persons. Even implied contracts are "voluntary undertakings." The voluntariness is implied from the circumstances - example: you impliedly agree to pay for your stewed tomatoes before you exit the store. If you slip and fall on stewed tomatoes that had spilled on the floor of the supermarket, the supermarket may be liable to you in tort for negligence - they have no contractual duty to you, though (whether express or implied).

Just as I said, when a man and a woman agree to have sex, they voluntarily undertake actions that bind them to an implied contract. Having sex is not a wrongful action, it's a voluntary act. I'm saying that the voluntariness of the act, and the known and obvious risks associated therewith, create a contract. Not all contractual obligations must be specified in detail in every contract. Common presumptions based on the nature of the transaction also bind the individuals. That's why there is such a thing as an "unconscionable contract" which the courts will refuse to acknowledge.

A contract, though, is a voluntary exchange - offer, acceptance and consideration with a meeting of the minds. With sex, at best, unless we assume some verbal agreement was reached, the conduct of the parties reflects an agreement to fuck each other. There is no agreement to have a baby implied by having sex, and no implied promise on the part of a woman that if she gets pregnant she will have the baby inside her for 9 months and then give birth to it. There is no common presumption or assumption based on having sex that there will be a baby or that the woman will either have or not have the baby if she does happen to get pregnant. In fact, it's relatively rare that sex results in pregnancy, therefore the logical common presumption associated with any given sexual liaison would be that pregnancy likely will not ensue.

[Coito ergo sum]

I'd like Seth to address this specifically: Under his contract theory - I would think a woman could make a good argument - using his logic - that the man, by agreeing to have sex with her, is agreeing to fully satisfy her, and that if he does not bring her to sufficient orgasm, then she is either entitled to specific performance or money damages for the bad experience. I find it very interesting that Seth can imagine a contract term that "if the sex results in pregnancy the man has veto power over the abortion decision, or can disclaim any obligation to support a child born of the pregnancy", but he discounted and tossed right out the woman's expectation that by having sex she ought to have an orgasm.

Surely, orgasms in sex are more common than pregnancies, so the parties certainly have a higher expectation of orgasm than pregnancy. Why isn't the man impliedly contractually liable to provide orgasms or he must pay money damages for the woman's inconvenience, time and emotional distress?

[Coito ergo sum]

Surely it's not self-evidence that having sex means she cedes rights over her body to the man who she has sex with?

If a child is conceived, then yes, she cedes certain rights over her body to the other interested parties in the transaction, and she does so voluntarily. On the other hand, if she's going to argue for plenary authority over her body no matter what, then she cedes her right to demand anything at all from the other party to the transaction, like child support.

She can't have her cake and eat it too. Either she's sovereign over her body and thereby accepts ALL the natural consequences of human life, including pregnancy that results from voluntary sexual activity, or she cedes certain rights when she contracts with a man to have sex and a baby is made. One or the other, not both.

1. It's not a "transaction."
2. And, even if it is a transaction, you don't cede rights to the other parties of the transaction, except to the extent that you agree to do so. She hasn't agreed.
3. She's not the one demanding child support - the child is. You keep forgetting this bit. The child support is not the mother's right - it's the child's right to receive support from the father, whether the mother likes it or not. That's why if the mother looks for State support, the State will look for the father whether the mother wants to pursue him for support or not. The State generally brings a paternity action against the father to have a support order entered on behalf of the child. This is one area where your argument breaks down - even if we were to agree that the mother ceded her right to demand child support from the father, that doesn't mean the child has ceded that right.
4. Nobody is having their cake and eating it too. We're not talking about the father paying alimony to the mother, or supporting the mother. Child support is owed to the child. Isn't it?

[Seth]

The hypocrisy of the law as it stands now is that the man has absolutely no rights at all when it comes to the fetus, and is burdened with the responsibility of providing support for the child if the woman asserts her right to gestate the child.

I see that as a fundamental inequity in the law that must be rectified. The law is supposed to protect everyone's rights equally.

This is more like your "gravity" argument. The man has no right at all when it comes to the fetus because the fetus is in (and arguably part of) the woman's body. In order for him to have a meaningful say in the matter, the woman would have to be subjected to his will and her actions would have to be cleared by the father first. What that would result in would be involuntary servitude, peonage or slavery on the part of women because what they do with their bodies would be directed by others. If a man wants her to have the baby, she must have the baby (since withholding his consent to an abortion constitutes a requirement that she bear the child).

It's certainly servitude, but it's not involuntary because she consented to a term of voluntary servitude as the gestational parent by consenting to have sexual relations.

That she did not do. If she is required to bear a child at the command of another against her own will, then she is in involuntary servitude and peonage. The consent to the sexual act is not consent to have a baby.

It may well be. But it's at least consent to due process and consideration for the other parties to the transaction. Whether that means having a baby is a matter for a court to decide, based on an equitable examination of the facts.

Moreover, you are just wrong when you say that the law is supposed to protect everyone's rights equally. Equal protection does not require that different things must be treated equally. In this case, there are fundamental differences between men and women - women have uteruses and bear children - men have cocks and balls. To suggest that a man ought to have the right to direct whether a woman has an abortion or not is analogous to saying that a wife ought to be able to veto a man's desire to have a vasectomy. She has an "interest" in whether he gets one because he's her husband and they may have been contemplating having children together - but, unfortunately for her, they're his testicles....

Yes, equal protection does not require that different things be treated equally, but it does require that the legal interests and rights of each party be given consideration and are afforded due process of law. In the case of abortion, many people feel that the fetus is an interested party in such considerations, and so does the State, as outlined in Roe v. Wade.

That has nothing at all to do with the fact that women have uteruses and men don't. If men had uteruses, they'd be able to have abortions, but they don't. So, they don't. Men have balls, so they can have vasectomies with impunity. It's like gravity.

Go bitch to Mother Nature about that.

And I would argue, again from the civil contract perspective, that a husband who gets a vasectomy, or a wife who gets a tubal ligation, without the consent of his or her spouse engages in marital fraud which should (and likely does) justify either annulment or divorce, preferably the former, because annulment does not require division of the assets. This would apply if the expectation of the partner was that the marriage was formed in part for the purposes of procreation and raising children. Making oneself deliberately infertile in violation of that contractual agreement is a breach of contract.

Where do you get this stuff? You think that if someone gets married and 5 years later they get a vasectomy without consent that's grounds for "annulment?" That's ridiculous. It isn't.

If it isn't, it should be. If they do it without the consent of their spouse, it's fraud.

Plus - annulments do too require a division of assets. Generally speaking, however, annulments occur very early on in a marriage because the grounds are very drastic, like a bigamy or underage marriage, etc. But, if they have merged their finances or accumulated assets together, the court will too engage in a division of assets, and the court will determine what assets were held by the parties before they married and what was accumulated after and conduct a distribution in accordance with the laws of the state in which the case is being decided.

Nice to know, which means that we need another category of separation that sanctions the person engaging in marital fraud, like self-sterilization without the spouse's consent, or adultery, or any other form of marital fraud, by depriving them of any division of community property assets. The aggrieved party should get it all, and the fraudster should get nothing but what they walked into the marriage with. "No fault divorce" has been incredibly destructive to society and should be done away with forthwith. If you're not willing to commit to honest conduct within a marriage, don't get married.

So yes, I would argue that civil contract law and equity would indeed have some control over whether a spouse can sterilize themselves without the consent of the other spouse, and the matter of abortion is precisely the same, but to an even greater degree, particularly in a marriage where the contract under which the marriage was formed included (or rather failed to explicitly exclude, since child-rearing is a customary function of marriage in all civilized societies) the intention of either to have children. It's a fraudulent act to violate that contractual obligation, and there should rightfully be consequences for engaging in such fraud.

Well, thankfully, the law is not as you say. If a man wants a vasectomy, he does not have to ask his wife first. She can file for divorce if she wants, but most if not all places are no fault states anyway, and in the states that recognize annulment if they qualify then the marriage can be annulled. He still doesn't need her permission.

Clearly that need to be changed. And all laws can be changed.

Sure - abortion terminates human life, but not "a human being." Cutting off your thumb terminates human life, too.

Abortionist propaganda. This is merely a repetition of the "it ain't human" pro-abortion canard that is an essential part of the abortion propaganda. Only by denying the humanity of the fetus can abortionists even begin to ethically or morally support their position. But facts are facts, and from zygote to adult, it's a living human being. Only unreason and illogic can overcome the simple observations and dictionary definitions that show this to be true.

No it isn't. It is human. It's just not a human being. My hair is human. There is no mixing up my hair with the hair of a non-human creature. My semen is human, and so is my skin. My skin is alive. And, killing some of my skin is not killing a human being. My human sperm cells are alive, and killing them is no problem whatsoever.

None of those parts of your body have a separate, distinct, unique DNA code or the ability and normal function of developing into a completely different and genetically unique adult human, therefore your argument is a red herring sophistry.

I don't deny the fact that an embryo or a fetus is human. It's a human embryo or fetus.

"Zygote," "blastocyst," "embryo," and "fetus" are all descriptions of the stages of development of a human being, they are not some genus, phylum or species that evolves in the womb into a human being when the fetus leaves the birth canal and becomes an infant, as morons like Peter Singer and other pro-abortion ideologues insist. At all times after the formation of the zygote, which every credible medical and scientific authority acknowledges as "the first cell of a new organism" the organism remains a human being. It's never a chicken, or a rat, or the mother's thumb or the father's eyelash, it's a distinct, separate, genetically-unique living human being at a particular stage of development. To deny this scientific fact is simply irrational or ignorant or deliberately mendacious, which is the case with pro-abortion propaganda.

[Seth]

Gotta shower, get some lunch and do some actual work. I'll return later to continue this illuminating and enjoyable discussion.

[Coito ergo sum]

Even though it happens as a result of a man's sperm, it's not his body to control, it's hers. He does not have a right to compel her to either have an abortion or to not have an abortion.

He does if she consented to it, which she does by inviting his semen inside her vagina. Consent to the sex act is what creates these obligations that she may be compelled to adhere to. Because she has absolute control over who and what gets into her womb, it's her responsibility to deal with the consequences, and accept that when a child is formed, there are other legal, moral and ethical interests in play. If she doesn't want to take those risks or subscribe to that implied contract, then she can simply refuse to have sex, as is her right. But society is not obligated to relieve her of the natural consequences of her voluntary decision to have sex.

1. She didn't consent to it. Merely inviting his semen inside her vagina is not consent to cede control of her body to him. It's more logical to say that he cedes control of his sperm to her, and that by voluntarily shooting his load into her vagina he is giving her a gift of sperm. Unless he specifically conditions that gift in some way, then she can do with the sperm gift what she likes - whether it be swallowing it, spitting it in the sink, holding in her uterus, or whatever. It's certainly not more reasonable to assume that by accepting his gift of sperm that she is giving him control of her uterus for 9 months. What maniac would make that trade?
2. Yes - and he has absolute control over where he shoots his load. If he chooses to shoot it in her hand, she is free to take that load and do what she wants with it. If he shoots it on her, then it's hers. He's giving her a gift. He is impliedly ceding his authority over that sperm to the woman, and if she uses it to fertilize an egg, then the natural consequence of that - of which he is fully aware is a distinct possibility when he gives his sperm to the woman - is that she will be pregnant. If, for whatever reason, the fetus survives to birth, then it's his baby.
3. If he doesn't want to take those risks or make the unconditional gift of sperm, then he can condition the gift by asking the woman to agree to a limited use license agreement for the sperm, or to merely rent the sperm, such that it could not be permanently used for fertilization purposes. Absent such agreement, though, he's made an unconditional gift.

[Coito ergo sum]

That has nothing at all to do with the fact that women have uteruses and men don't. If men had uteruses, they'd be able to have abortions, but they don't. So, they don't. Men have balls, so they can have vasectomies with impunity. It's like gravity.

Go bitch to Mother Nature about that.

You're the one who is seeking to wrest the natural control that a person has over their own body, created by Mother Nature, and hand it over to someone else, or the State. It appears that you are the one that is bitching.

[Warren Dew]

Warren, I can't help but feel that you're cherry-picking certain bits of my posts a bit too much without addressing the wider spirit of my argument. Or maybe you're failing to see my full argument?

I can only read words, not spirits. That said:

I think it should be a legal statute that men can go to some official place or other and wash their hands clean of responsibility for a pregnancy in a way that reduces them to the legal equivalent of donors to sperm banks - part of the deal being that the respective females are consulted and have the choice to terminate or continue and accept full responsibility.

Ah, you seem to be saying that the man should be able to do this after the pregnancy starts, rather than making a choice before the pregnancy starts. If you meant that before, I didn't see it. Is that what you're talking about?

I think the practical effect of that would be to go back to the situation before the middle of the 20th century, where women are reluctant to have sex before marriage or some kind of commitment on the man's part. I don't object to that as long as it's clear that that's the new default and as long as the man and the woman can agree before having sex to an exception where the man will take part of the responsibility.

Basically, I think there needs to be a clearly defined default, and I don't care strongly what it is, as long as the man and the woman can agree on something different from the default before having sex.