what is the state's interest in a woman's pregnancy?

[iverglas]

I'm reposting this from a thread on the recent US Sup Ct decision in LBN. It's the core question. It's something everybody needs to answer before forming or expressing an opinion on how the state and the law can and should deal with abortion.


_______________


Megahurtz wrote (I'm PMing directions to here):

what's the deal with one of the Supreme Court Justices (I think, have to look for a link)
that said in part something like:

"The Government has an interest in Fetal Life"

:wtf: :wtf: :wtf: :wtf: :wtf:

For what???

I heard this on a local News Station last night!!!

Sounds pretty sick to me and pretty weird to say the least. :wow:

Did anyone else hear that one?

On EDIT: Here it is:

>>>The majority (Conservative, emphasis mine) opinion written by Justice Anthony Kennedy rejected the argument the law must be struck down because it imposed an undue burden on a woman's right to abortion, that it was too vague or broad and it failed to provide an exception for abortions to protect the health of a pregnant woman.

"The government has a legitimate and substantial interest in preserving and promoting fetal life," Kennedy wrote in the 39-page opinion. He said the law would reduce the number of late-term abortions.<<<

http://www.reuters.com/article/newsOne/idUSWBT00684520070419

Now they want our Kids!

and I answered:




Well, I've been asking that forever -- because it actually comes from Roe v. Wade.

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0410_0113_ZO.html

From Blackmun:

Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the 19th century and to justify their continued existence.

... The third reason is the State's interest -- some phrase it in terms of duty -- in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception. The State's interest and general obligation to protect life then extends, it is argued, to prenatal life. Only when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail. Logically, of course, a legitimate state interest in this area need not stand or fall on acceptance of the belief that life begins at conception or at some other point prior to live birth. In assessing the State's interest, recognition may be given to the less rigid claim that as long as at least potential life is involved, the State may assert interests beyond the protection of the pregnant woman alone.

Alrighty then, what IS this interest?

The reason we need to know is that once an individual establishes that a law interferes with the exercise of a right or freedom, the state (in the generic sense; this is how it works in Canada too, e.g.) has to show that it has an interest that it is advancing by interfering in the exercise of that right or freedom.

If a law prohibited the eating of pizza for breakfast, the state would have to show that eating pizza for breakfast causes the trains to run late, or something.

The state then has to justify the interference. I'm most familiar with the Canadian tests, so I'll use them just for demonstration purposes (the US tests vary somewhat, but the principles are similar): the interest being advanced is important ("compelling", at the top of the scale), the interference with the exercise of the right or freedom is rationally connected and proportionate to the advancement of the interest, the interference is the least possible in order to achieve that goal, etc.

But it all starts with identifying and proving the state's interest.

On the basis of elements such as these, appellant and some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive. The Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision.

Can the state just say it has an interest in controlling what I eat for breakfast? If not, why can it just say it has an interest in protecting "prenatal life"?

Without knowing *what* that interest IS, how can we tell how important it is, or how any particular law is meant to advance that interest, or how any interference with an individual right or freedom is rationally connected to that interest, or whether any such interference is proportionate to the state's interest??

And then there's this utter nonsense:

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

Why on earth is the "compelling" point at viability?? If the state's interest is in perpetuating its population, for instance, what does (hypothetical, always remember) viability have to do with that? How can we know whether the state's interest is compelling if we don't know what it is?

To summarize and to repeat:

... (c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

... This holding, we feel, is consistent with the relative weights of the respective interests involved, with the lessons and examples of medical and legal history, with the lenity of the common law, and with the demands of the profound problems of the present day. The decision leaves the State free to place increasing restrictions on abortion as the period of pregnancy lengthens, so long as those restrictions are tailored to the recognized state interests.

The state's interest in "protecting prenatal life", or in "the potentiality of human life" -- which are not even the same thing, and the second of which doesn't even make sense -- is the lynchpin of the whole thing. Pull it out, and the whole construct collapses.

If you ask me, it was never there in the first place. Texas simply never established what its interest was in women's pregnancies.


In Canada, the criminal law provision on abortion was struck down in 1988 (by then, nobody was paying much attention to it) on an appeal of Dr. Henry Morgentaler's conviction. The decision was based on very different grounds from the US decision. Here, it was the procedure for authorizing abortions that was challenged. A woman's need for an abortion had to be certified by a hospital committee (rubber-stamping was the rule by 1988, but practice was uneven across the country). It was that procedure that was found to violate women's rights to life, liberty and security of the person in a way that was not in accordance of the rules of fundamental justice (which include, e.g., due process).

What happened then was nothing. The federal govt could have re-legislated, in an attempt to create a procedure that did comply with the rules, but it didn't. So we have no law on abortion. Life is just fine.

In point of fact, NO procedure for permitting/deying abortion could ever comply with those rules. Any woman can die, or be harmed, by pregnancy or delivery, unpredictably. So a woman who had been denied an abortion that she just wanted on a whim and who then died of post-partum haemorrhage would have had her right to life violated by the decision to deny the abortion, and there is no way that due process could have been met, since she had done absolutely nothing wrong to deserve a death sentence.

What I'm getting at, though, is that the Supreme Court of Canada decision contains some of the same foolishness as Roe.

Even the estimable former Madam Justice Bertha Wilson wrote:
http://scc.lexum.umontreal.ca/en/1988/1988rcs1-30/1988rcs1-30.html
(her reasons start at p. 161 there, and they should be read by all)

In my view, the primary objective of the impugned legislation must be seen as the protection of the foetus. It undoubtedly has other ancillary objectives, such as the protection of the life and health of pregnant women, but I believe that the main objective advanced to justify a restriction on the pregnant woman's s. 7 right is the protection of the foetus. I think this is a perfectly valid legislative objective.

Why???

And if it is a valid legislative objective, perhaps it could justify legislation prohibiting the selling of tuna with mercury in it -- but how could it justify violating a woman's right to life, liberty and security in such a way that she could DIE?


So yes, your question is the fundamental one. What is the state's interest in a woman's pregnancy?

Unless we have an answer to that, we can't assess the legitimacy of what the state does to advance that interest.

[CottonBear]

1. I don't know. I do know that Republics care nothing about babies

once they are born. They don't care about healthcare, education, public transporation or decent housing.

I suppose, they view the "unborn" as potential low wage workers. :(

[Atman]

2. More taxpayers?

:shrug:

.

[no_hypocrisy]

3. And cannon fodder.

[Hepburn]

6. My thoughts exactly ...

more to man the armies for some other freaking evil pre-emptive strike.

[MountainLaurel]

26. And laborers

We've already heard some of these arguments from certain parties (I'm vaguely recalling a Republican legislator from the south who made such comments) already in the debate over illegal immigration, that the legalization of abortion is why we have to import workers for the lower levels of jobs.

[rock]

4. None

But of course the state is run by politicians and therefore they are interested in it for political reasons.

[iverglas]

5. well, once it gets off the latest threads page

maybe we who actually think about these things can get to talking about them ...

On edit:

sorry, but I'm disgusted.

Four replies to this were posted within 5 minutes of posting. No one could have read the post in 5 minutes, frankly. Not one reply indicated even an iota of understanding of the question, or the slightest interest in understanding it, thus not indicating much in the way of concern about the problem to which it relates: the egregious and casual violation of women's fundamental rights.

What a symptom of the descent of DU into pointless nattering.

[Hepburn]

7. Actually, in the case of a fetus, I am amazed at the statement...

...that the court has some legit interest in it's "life." First of all, legally a fetus has no constitutional rights. So, as a lawyer, I am totally puzzled on how one protects the life of something which is not entitled to to protection....and at the same time, denies the rights of an entity ~~ the woman ~~ who has existing Constitutional rights associated with her life and has a right to have her life protected by getting necessary medical aid.

Boggles the mind that any of these five assholes actually went to law school. This was NOT a legal decision ~~ it is a bunch of RW moral BS hooey and one of the worst opinions I have read in a long time.

JMHO

[Warpy]

9. When it comes to women

any notion of intrinsic rights they were exposed to in law school takes flight. You see, after all these years of fighting for our human rights, we are still not quite human. That's why a fetus that might be male always trumps our rights to life, liberty and the pursuit of happiness in the right wing male mind.

[Hepburn]

11. I can tell you that I am totally disgusted with this ruling.

One entity, two bodies it in....and the one without Const rights according to those five women-hating bastards on the USSC, is entitled to protection over the life of the one which does have Const rights.

How in the hell can they sit there in that fucking ivory tower and say that they KNOW that a late term abortion is NEVER necessary to save the life of a woman? What utter bullshit.

[iverglas]

12. phew, substance!

I am amazed at the statement that the court <state> has some legit interest in it's "life." First of all, legally a fetus has no constitutional rights.

Exactly. But the state can have interests in things that don't have constitutional rights.

The state has an interest in preserving the environment to keep it fit to sustain human beings. This gives it an interest in old-growth forests, and in the trees in them. So the state could enact a law prohibiting the cutting of particular trees.

The state can advance an interest in biodiversity and, I would hope, establish it. This would give it an interest in bald eagles. It could therefore prohibit the killing of bald eagles. I think it already does, and nobody seems to mind -- it's just that nobody really thinks about what entitles the state to do that.

But the state could not successfully prosecute someone for killing and eating a bald eagle if the person's only alternative were to starve to death. The right to life comes first, and the law would be an unconstitutional deprivation of life if it were applied to do that.

Now, nobody can know for sure that s/he would starve to death without eating that eagle. But in some circumstances there may be a reasonable fear that s/he will.

No woman can know for sure that she will die as a result of pregnancy. But no woman can know for sure that she won't. And no woman can assess the risks of dying, because completely undiagnosed or unforeseen complications can arise for *any* woman.

Here's where we get to the "as-applied" business that one of the judges referred to in the most recent decision. (Remember that everything I quoted initially was actually from Roe v. Wade.)

http://www.csmonitor.com/2007/0419/p01s03-usju.html?page=2

Instead of a theoretical "facial" attack on the law, the court said such issues should be resolved in individual cases testing how the partial-birth abortion ban act was being applied to a particular woman.

"In an as-applied challenge the nature of the medical risk can be better quantified and balanced," Justice Kennedy writes.

He noted, "The prohibition in the act would be unconstitutional, under precedents we assume to be controlling, if it subjected women to significant health risks."

What that means is that you wait until a woman dies and take another look at it. If it looks like she would have survived if the procedure had been available, then we might have a problem, Houston.

Due process, due shmocess.

That's the thing. Even if the state has an interest, can it legislate to advance that interest without the legislation depriving someone of life w/o due process? I can't quite see how.

[Hepburn]

17. What it is going to come down to, IMO, is a test case...

...and unfortunately some woman is gonna have to freaking die to bring this case and these issues to light. There stands an MD who could save her life with a certain procedure...but is LEGALLY prohibited from doing the procedure...and a "substitute" procedure did NOT work.

The only other thing I can think of is that some judge might grant an exception to the procedure on an emergency application to allow the procedure to prevent the death of the mother. Judges CAN do things like that and they are immune from any prosecution for so acting...and so would the medical provider under those circumstances also have no exposure to criminal prosecution if a judge granted him/her permission for the procedure. And if the emergency order was NOT granted and the woman died....I could see a hell of a mess coming from this. Like a state legis passing a law that says as to late term abortions, there ARE medical exceptions for health reasons. Let them take it up to the USSC and have the law declared unConst. Maybe by the time reality sets in those five bastards will start to live in the real world...or maybe we will have a real POTUS who will appoint justices with legal minds.

IMO, unfortunately it is gonna take a few deaths for this to be righted. Just like with back alley abortions way back when. I thought those days were long behind us...but thanks to RW nuts, that is not the case.

Fuck those five assholes on the USSC...and that is a legal opinion on my part. Of anything I have seen in my long legal career, this decision probably makes me angrier than anything else I have seen. Not only as a lawyer, but as a woman, I am outraged!

[One_Life_To_Give]

18. For the sake of argument

A Beaver has no Constituional rights either. But if one is causing major inconvenience around my property. The law says it is protected and I can't kill it or transport it.

Which implies the Beaver has more rights than the Fetus.

[iverglas]

21. that's the point I made

Which implies the Beaver has more rights than the Fetus.

Not in this universe.

You may not burn your neighbour's house down, either. Does the house have rights?

The state has an interest in beavers. Beavers do not have rights. The state has an interest in maintaining biodiversity and ecological balance. It can legislate to prohibit you from doing something that would decrease biodiversity and upset the ecological balance. It can outlaw killing beavers. This does not recognize that beavers have rights, or give beavers rights. If it did, the beaver (assuming you were unsuccessful) could sue you. I don't think beavers have figured that out.

Trust me -- if you are lost in the forest and haven't eaten for 10 days and a beaver crosses your path and you choke it to death and eat it, you cannot be convicted. The defence of necessity will protect you: you have a right to life and you can act to preserve your life if it is endangered.

The beaver doesn't. If it tries to eat you, no matter how hungry it is, you can go ahead and choke it.

You would be entitled to whack the beavers chewing your trees if it weren't for the law prohibiting it. And the state would not have to make that law; it gets to decide whether it's necessary and wise to do so. If it were a five-year-old chewing your tree, or your mother-in-law, or the old guy down the street, the state would have to make a law prohibiting you from whacking them, because the state has a duty to protect them.

The state obviously doesn't have a duty to protect post-viability fetuses, because not all US states have:
http://members.aol.com/abtrbng/stablw.htm

Forty states and the District of Columbia have laws banning most post-viability abortions

(could be out of date, but the point remains: years after Roe v. Wade, numerous US states had not enacted legislation to advance their "compelling" interest in "the potentiality of human life")

[One_Life_To_Give]

24. Just because 10 states don't have a law

Doesn't mean there is not a "Compeling State Interest".
The state has an interest in all children growing up to be healthy contributing members of society.
They could also claim that it was necessary to the good and continuing functioning of society and hence the state. All of the states compelling interests in the health and well being of a child could be reasonably applied to a fetus. We don't not whack children just because they have a constitutional protection.

[Ind4now]

41. Question,

I am curious, how do you conclude that a fetus does not have any Constitutional rights?

[Scout]

44. what on earth makes you think a fetus DOES have Constitutional rights? n/t

[Megahurtz]

29. They really sad thing is

that while everyone was completely obsessing for days over the Virginia Tech shooting, the Supreme Court covertly passes this Law and issues this statement, and you barely hear about it from anyone. Most people are still hung up on a psychoanalisis of the VTech shooter and on and on. That's all they can focus on. Never mind that more of your rights just got taken away, or how many more people just got killed in Iraq etc. The U.S. News does a good job of distraction at the urge of the Higher-Ups, and the Citizens bite the bait. People are obsessed with Drama down here, iverglas. :(

[iverglas]

31. welllll

I have to admit that, having been away for a while, when I came back this week I posted on only two topics: the Virginia Tech shooting and abortion. And a lot more on the former. ;)

But of course I'm interested as a matter of public policy. Free abortion on demand; no gun without a licence, registration and a sturdy gun safe, and no handgun period.

[Megahurtz]

33. Lol!

Okay, so you were responsible for that! :silly::P

It just seems like almost everytime something really dramatic happens and the News hypes it up, our Government here takes advantage and pulls something sneaky behind our backs, such as passing this Law. Most people who are wrapped up in the Drama don't even notice.

I just wonder the Vtech shooting never happened, would more people take interest in this so very important Abortion issue? Of course I'm not discounting the issue over Gun Laws, because those are important too.

Anyway, with a statement such as the one that was made about the "interest in Fetal Life", they could make up a vague statement like that about anything without an explaination. I question their underlying motive.

Which one might be , setting a precedence so they can use this statment again to further chip away at Abortion Laws.

But I guess that still doesn't answer the question of what their "interest" is.

[foxsux]

89. But you know, she's right.....

I think Congress uses tragedies and other things our attention is on to pass legislation like this.

While I was in tears about the shooting, I do think I should have paid more attention to what
was going on.

[One_Life_To_Give]

8. Competing interests/rights

Well preserving Human life i would think we all agree is preatty important.

Abortion is essentially a case of two competing cases of trying to do the right thing.

A) To protect the rights and health of the mother

B) To protect the health of what will be a Human life.

Neither choice in and of itself is wrong. It is right to protect each of them. But since they are at odds with one another, you can only do one. While most on DU would agree that A is more important or more right than B. Those who oppose abortion feel it's more important to protect the potential life of a Fetus, or as they view it a Human Life. Than to protect the rights of the mother.

[Warpy]

10. One is already human. The other is only a possibility.

That is the difference.

[Hepburn]

13. That is what TRULY gets to me....

...let the mother die and maybe a potential life will survive. :mad:

[One_Life_To_Give]

16. Their position needs to be understood

If this issue is to ever get a permanent solution. Both sides need to be able to clearly understand each others point of view. I sincerely doubt that most of the anti crowd would support executing the mother to save the infant.

Much more likly that they think there is some conspiracy to call it medically necessary when it's only for the "convenience" of the mother.

[iverglas]

22. that's kind of what I'm asking

Both sides need to be able to clearly understand each others point of view.

And one side can't do that if the other side won't speak clearly.

Hence the question: what is the state's interest in a woman's pregnancy?

None of the other side ever seems to get around to answering that one.

[Ind4now]

42. Hay, maybe I found someone to talk to about this...

I get into many arguments with friends because I tend to agree with the "right wing" crew on this topic, which sucks. I like to think of it as protecting life. So I would love to talk to you about this!

My response to your question is that my interest, the interests of the state, lie in the fact (or what I perceive to be a fact) that their is a life in the womb during the later stages of pregnancy. As with all other human life, the state, and in my opinion the federal gov, has a Constitutional duty to protect it.

Edited to add: I wanted to point out that I ONLY agree with a ban on late term abortions if the life of the mother is not at serious risk or there is no serious birth defect discovered.

[iverglas]

19. not really

I know you're sincere, and I'm not trying to be rude in return. Just straightforward.


Well preserving Human life i would think we all agree is preatty important.

All people alive on earth are "human life". My big toe is "human life". A fetus is "human life". Eggs and sperm are "human life".

We need to speak much more clearly and precisely when discussing important public policy issues.


Abortion is essentially a case of two competing cases of trying to do the right thing.

We all want to do the right thing in our own lives, and our opinions about what the right thing is will vary widely in many cases.

When it comes to public policy, we have to have a consensus on what the state should do. Sometimes it will be unable to do what *we* think is the right thing, because the consequences of doing that will be very wrong to or for other people.


A) To protect the rights and health of the mother

This one's clear. It is a subset of the general duty of the state: to ensure that people are able to exercise their rights to life and liberty.

The state must not do things that interfere in that exercise, or that allow other people to interfere in it, without very good reason. And we have made rules to test whether the state has good reason.


B) To protect the health of what will be a Human life.

If we can use that clear and precise language I referred to, let's say "to protect the health of what will be a human being". "A human life" is what I have, not what I am.

I think we can agree that the state does have this interest. The state should not allow things to be done that cause birth defects, for instance -- at least when they're done by third parties. Pharmaceutical companies should not be allowed to market thalidomide, ranchers should not be allowed to feed cattle hormones that affect fetal development, etc. The state does have an interest in preventing birth defects, and also spontaneous abortions and other negative outcomes of pregnancies -- both because it has a legitimate interest in the children who are born being healthy and a legitimate interest in protecting women from losing pregnancies they want to keep.

Is abortion a negative outcome of pregnancy? If you say it is, why? What state interest is harmed by a woman having an abortion - by a child not being born? If we were living in a nuclear winter where only 1% of women can become pregnant and only 1% of the children born will survive, I might say that the state has that interest. Right now, I don't see it.


It is right to protect each of them. But since they are at odds with one another, you can only do one.

And here is the problem, still.

Two things can only be at odds if they both exist.

Doing the right thing, as I explained, is not the real issue. Doing what is acceptable or required, to protect an interest that the state is entitled or required to protect, is the real issue.

The state is entitled and required to protect the interests of pregnant women in their own lives and liberty and health. What interest does the state itself have in her pregnancy, or in the fetus, that it is entitled or required to protect?

It's interesting to note that all the US Sup Ct did in Roe v. Wade was allow individual states to prohibit abortion post-viability. It didn't require them to do that.

If a fetus actually had its own interest in its life, and a right to that life, the state would HAVE to protect that interest.

And if a state's interest in "the potentiality of human life" is actually "compelling" post-viability, why didn't all states immediately legislate to prohibit abortion at that stage?


The basic question remains. If you are going to say that there are two competing interests here, you still have to establish what the second one is.

[One_Life_To_Give]

25. Don't think negatives prove the case

Don't think negatives (Absence of regulations) prove the case other than they didn't want to deal with the issue at this time.

As for the basic question of what interest the state has. I think you could apply any of the states intersts in the health and well being of children as equally applying to a fetus. Also the state could site the needs of the labor force as we require immigrants to fill jobs presumably because we are not producing enough offspring. And of course the obvious, the state could not allow all pregnancies to end in an abortion. Which at the very least it could be argued that the state would need to set limits on the minimum birth rate/maximum abortion rate.


Although I suspect the right will come up with something more on the lines of. The fetus is endowed by it's creator with certain inalienable rights. The life begins at Conception argument. But that should probably be saved for a seperate thread.

[iverglas]

30. hooeee

I think you could apply any of the states intersts in the health and well being of children as equally applying to a fetus.

Well, why stop there? The state can just say it has an interest in anything it wants, I guess.

How can the "health and well-being" of a fetus be in issue if that fetus is never going to be a child?

I agree that the state has an interest in the health and well-being of children, of course, and that this means that the state can take certain protective measures to prevent harm to fetuses that will result in damaged or unhealthy children. But that has nothing to do with abortion.

Also the state could site the needs of the labor force as we require immigrants to fill jobs presumably because we are not producing enough offspring.

Good lord. Heil One_Life_To_Give. Kinder Küche Kirche. Barefoot and pregnant, and cover your head in church, women.

Okay, yes, I guess you're right. The state could assert that interest, and legislate to protect it. And obviously the state would be being governed by Adolf Hitler and his gang. Immigrants (who are not in short supply) aren't good enough; we need little 'murrican babies. Yeesh.

Tell me you don't think it could validly cite such a thing.

And of course the obvious, the state could not allow all pregnancies to end in an abortion.

Yes, well, and that's happening right now, right? You're missing the next part: the state has to prove its interest, but it also has to prove that the policy it is proposing is necessary for protecting that interest. I'm not seeing a dearth of births anywhere, myself.

Although I suspect the right will come up with something more on the lines of. The fetus is endowed by it's creator with certain inalienable rights. The life begins at Conception argument. But that should probably be saved for a seperate thread.

No need for a thread. All you have to say back is:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

and ask them to get back to you when they have a law drafted that will not compel women to give up their liberty, and assume a risk of death and in some cases die, when they have done nothing wrong.

None of them have given me an answer yet when I ask how's it gonna work, but we can keep trying.


Don't think negatives (Absence of regulations) prove the case other than they didn't want to deal with the issue at this time.

I wasn't suggesting that failure to legislate proves anything. I do suggest that it might make us question just how compelling this alleged interest is, when 1/5 of the states in the US don't seem to have bothered getting around to protecting it. Makes it look a little more like it's just something nasty, like misogyny, hiding under the respectable cloak of this alleged compelling interest.

[One_Life_To_Give]

34. Your the one who asked

You asked what if any interest the state had in the welfare of a Fetus. So I have been trying to give you what I think would be the opposite sides best answers. So please don't kill the messenger.

As I was trying to say above. The state has a interest in children. Protecting children and preventing undue harm from coming to them. They state also takes an interest in preventing cruelty to animals. Regulating when and how they may be culled or if it may be done at all. Sometimes for Biodiversity, sometimes just because people like it that way. e.g. We have seen hunts for certain species banned due to pressure from environmental groups.

I don't see where the state does not have an interest in regulating a Fetus just as much as any other animal. I suppose the RW would list it as the second most impotant animal after born people and just ahead of rapist's fetuses. Which always confused me that one fetus should have more rights than another. But thats another story.

At any rate you are likely fighting a loosing battle if your intent to defend a womans rights is by claiming the state does not have any "significant interest". Put a bunch of fundy lawyers in a room and they will likley come up with something. There heads likely explode every time they hear they can't shoot a varmit but a woman has a right to choose.


For the record my real position on this issue.
I have no right to tell someone else what to do regarding this issue.

[xchrom]

14. i'm only playing devil's advocate -- because i believe that a woman owns her body.

however -- laws are often made that can be said to be in society's interest rather than the state's interest -- you have educate your children -- lol -- you may have to VACCINATE your children -- you may have to wear a seat belt --


in some cases you can held criminally responsible for with holding medical treatment for your child -- you can't kill yourself{Except in oregon} etc --

laws like these whether made at the state or federal level aren't necessarily made because the STATE has an interest in them -- but they are thought of as corner stones for society and in that regard the state has an interest.

that's always been my understanding of laws like these -- -- and because of that laws against gay folk have that same heading.

i can't marry the person i love -- not because of the STATE -- but because of society.

[iverglas]

23. clarification

laws are often made that can be said to be in society's interest rather than the state's interest

Generally, the state stands in for "society" when we are talking about law-making. Society's interests are the state's interests in that context. The state must promote and advance society's interests, as well as promoting and advancing individual's interests in the exercise of their rights.

So, what interest does society have in a woman's pregnancy? ;)

[xchrom]

32. well, without getting into meaningless rhetoric that some pro-lifers get into --

i would say here that they believe they are advancing the stability of society by limiting the most ''outlandish'' of human practises -- not The Most -- just one of a number.

i.e. you must provide for the health of you child etc -- that of course assumes that the ''fetus'' is now extended the rights of a ''child''.

and this is where things get tricky of course.

remember for a long time i couldn't legally fuck my person of choice so -- the state at different times has extended itself into areas it believes ''beneficial'' -- somehow for these folk -- late term abortion is such a case.

[Deep13]

15. My suggestion to American women:

do not have children until the nations allows you complete reproductive autonomy.

[Ayesha]

20. My thoughts on the matter

In order to answer that question, we first have to define what the right to an abortion IS. Specifically, is it the right to not be pregnant, or the right to not have a living baby? In pre-viability abortions, a woman who chooses abortion undergoes a procedure which must, by necessity, result in the death of the fetus. In order to preserve the life of the fetus, the woman would have to carry a pregnancy she does not want for an extended period of time. It is very reasonable to conclude that doing so is a violation of her right to control her body. However, with a post-viability abortion, a woman CAN end the pregnancy without killing the fetus. It can be argued that since the fetus is capable of independent life, the procedure must be done in a way that preserves that life, unless to do so would kill the woman. In other words, the rights of two independent beings must be weighed and balanced against each other. The woman, being born and a functioning adult already, has more rights, but she does not have the right to kill the fetus if there is an alternative to doing so.

According to that logic, the state's interest in a woman's pregnancy would be protecting viable life by requiring that the woman preserve that life when ending the pregnancy, unless there are no other options. If the fetus is capable of independent life once removed from the womb, it does, in fact, have the rights of a citizen, same as any other human being. Therefore, an obligation exists that womb removal be performed without killing it, unless to do so would result in the death of another human being.

I personally agree with the above logic, however I believe that the circumstances where a woman would seek to end pregnancy with a viable fetus are exceedingly rare. Therefore, I believe that it should be up to medical associations and boards to regulate doctors' behavior in these situations and to dictate that doctors not perform such procedures unless the woman's life is in danger. Due to anti-choice forces in our political system, the government cannot possibly regulate this through blanket bans on one procedure without endangering women who legitimately need it. In other words, while I agree with the logic behind the Supreme Court decision, I don't think it was their place to make that ruling, and I believe/worry that there is an agenda behind it to ban pre-viability abortions.

[iverglas]

27. very interesting

In order to answer that question, we first have to define what the right to an abortion IS. Specifically, is it the right to not be pregnant, or the right to not have a living baby?

Yuppers. In another format, the right to be not pregnant or the right to be not a mother. Which means that we have to determine not only what the state's interest in pregnancy is, but also what the woman's interest in non-pregnancy is.

Regardless of what it is, however, abortion it is still an exercise of the right to liberty: both being pregnant/not pregnant and being a mother/not a mother are choices that are exercises of the right of self-determination. If the right to an abortion is the right not to be pregnant, it is also an exercise of the right to life, since pregnancy is a risk to life.

I am with you on the question, but not on how you address it.

I do not believe that "viability" is an appropriate criterion for anything.

First of all, viability is always hypothetical.

A fetus delivered at full term, after a pregnancy in which no complications were identified, can simply fail to take breath. There could be an undiscovered fetal anomaly, or it could just be one of those things. A "viable" fetus can die in utero at 8 months. It's a dice roll; the odds are good for positive outcome, but there is no certainty.

A fetus delivered at 25 weeks may survive, with medical assistance; another may not. Birth weight is a factor, but essentially it's a dice roll with much worse odds.

Violating a fundamental right on a dice roll doesn't seem like a good idea to me, generally.

(There's also the fact that in early pre-term deliveries, the child born is very likely to have very serious problems. Brain bleeds causing cerebral palsy and blindness and severe intellectual developmental problems are common. Does the state have an interest in increasing the numbers of damaged children who require expensive life-long care and live in pain? That would be the result if a woman were allowed to terminate the pregnancy by delivering a live fetus at that stage, i.e. to be not pregnant but not to be not a mother.)

So when you say:

If the fetus is capable of independent life once removed from the womb, it does, in fact, have the rights of a citizen, same as any other human being.

I say nope. Human rights (these rights have nothing to do with citizenship) belong to human beings -- the born, alive and human. They do not belong to anything that does not meet all those criteria. If what you said were true, it would be murder to terminate a (hypothetically) viable fetus. Are you looking for that?

A fetus does not have rights, full stop. The state can still have an interest in a fetus.


Now, we're still not saying what the state's interest is. You say:

the state's interest in a woman's pregnancy would be protecting viable life by requiring that the woman preserve that life when ending the pregnancy, unless there are no other options.

but we can cut that short: the state's interest is in protecting viable life.

I think we should make it more accurate: in protecting a viable fetus. I get really annoyed by this "life" stuff. Life is a characteristic of an entity or substance, not an entity or substance. I think we fall into an anti-choice trap when we start using it.

So, who says the state has an interest in protecting a viable fetus? Fetuses are not an endangered species, or public property. Where does the state get an interest in them?

Here's where I muse aloud. I am not firmly decided as to whether the state has an interest in some fetuses.

If this were indeed a nuclear winter, with 99% of humanity dead and fetuses in very short supply in the remaining population, and life expectancy dismal, I am pretty sure I would say that the state had a compelling interest in *all* fetuses. I think we can agree that the state has an interest in the human race surviving. And I think I would agree to outlawing all abortions in that situation. Call me a collectivist.

The state does not have that interest at present. Another?

Well, we do outlaw some things that we just find icky. For religious or moral or even just aesthetic reasons. And we don't all have the same reasons for agreeing that some things should be outlawed -- all we agree on is that they should be outlawed. I'm in favour of outlawing polygamy, at present, because I think many women are vulnerable and in need of protection from exploitation and abuse. Some people support outlawing polygamy because some god doesn't like it. We only agree on the outcome, and I only agree provisionally.

Could we outlaw abortion at 8 months, per me?

I'm having a hard time framing what the state's interest at that point is. I'm not rejecting the idea out of hand. I feel like there's something there -- something that seems not quite right about an abortion at 8 months. If I were actually proposing that such abortions be outlawed (they are not in Canada, and for the purposes of this discussion the fact that they are in most US states is not relevant), I would have to do better than that. I would have to identify and prove the state interest. Let's assume for now that I have.

Next comes balancing that interest against the woman's interests. And here is where your question comes in: if her interest is in being not pregnant, that's one thing; if her interest is in being not a mother, that's another.

If her interest is in being not pregnant, that can be accomplished by delivery of the fetus. This might have to be done forcibly, if she did not agree to deliver at 8 months. Drugs to induce labour might have to be used against her will; she might have to be confined against her will. A Caesarian section might have to be performed against her will. Or, of course, she might just have to be compelled to continue the pregnancy to term, which might also mean confining her against her will, and of course means subjecting her to delivery or Caesarian section against her will. If the fetus is delivered at 8 months, she gets what she wants: to be not pregnant. If it isn't, she doesn't.

Things can be done to people against their will, even where they have done no wrong. People with infectious diseases can be quarantined, just as one example. There is no total bar on confining people or doing things to them they don't want done. There just has to be damned good reason.

How are the woman's interests advanced by allowing her to terminate the pregnancy at 8 months? She isn't really avoiding the risks of pregnancy. She's already been pregnant for 8 months, and so she's avoided some of them already, since they didn't happen. She's still going to have to go through some procedure to remove the fetus; is it riskier, at that point, than delivery or surgery to remove it alive? Not really, and at least not by much. So does she really have much of an interest in being not pregnant at that point? It seems not, at least not in the sense of it being an interest in physical well-being.

Women who have early abortions aren't generally doing it because of concern for their physical well-being, they are doing it for social or economic or emotional reasons, usually a combination. The thing is that their reasons for doing it don't matter, because they're entitled to do it, just as they're entitled to eat pizza for breakfast without justifying it to anyone. But if a woman is prevented from having an abortion that she wants because she doesn't want to miss tanning season, her rights are still being violated, because not only is her liberty being interfered with, she is also being compelled to accept a risk of death, illness and injury that she does not agree to accept.

A woman 8 months pregnant who was compelled to undergo delivery or to continue the pregnancy would be being compelled to accept those risks -- but they are little different from the risks she would be accepting, voluntarily, by terminating the pregnancy by abortion. Nonetheless, there is a difference. There are risks that are higher in the last month of pregnancy that she would be avoiding. Enough of a difference to outweigh the state's interest in the fetus?

What a woman would not be getting is the other thing she might want: to be not a mother. As you say, this point is when the question seems to need an answer -- if we say that the state has sufficiently compelling interest in a fetus at that point to override the woman's interests, then we also have to define her interests more precisely.

A woman certainly has a liberty interest in being not a mother. (I'm sure no one is going to suggest that she relinquish the child for adoption, since we know that doesn't make the fact that one has a child disappear.) Not wanting to be a mother is probably one of the most common reasons why women have abortions, it's just that the abortions they have don't have to be justified at present because the state has been told it does not have sufficiently compelling reason to override her choice (and compel her to put her health and life at risk) at the early stage, whatever the reasons for her choice.

My argument has always been that it matters not a whit what women's reasons for having abortions are, because the state has no valid reason to compel women to assume risks to their lives and health, and to interfere in their liberty, by compelling them not to have abortions.

If the risks to life and health that are present at 8 months are almost equivalent, and almost the same, whether the pregnancy is terminated early with live birth, terminated early by abortion, or continued to term, does that argument hold? If the state has a compelling interest, and thus a valid reason to prohibit the abortion unless the woman has a more important interest to protect, can the woman advance her interest in being not a mother to defeat the prohibition?

Oh look. I don't have an answer.

"That never happens" isn't an answer, and I won't fall back on that. I do think it's a good reason for not legislating -- a society can just say that this is not a subject that calls for legislation, because although the state has an interest, it is not in jeopardy -- but it's really not a rebuttal if a society wants to legislate.

And now I think it's time to go check out the tulips!

[Ayesha]

35. states interest cont'd

I think the state's interest is in protecting human life because human life is inherently valuable. Yes, I know, our state doesn't value human life enough to house our homeless, feed our hungry, and avoid futile wars, but I do believe that a government SHOULD value and protect life. The issue at hand, then, is when does a life become human and deserving of protection? Some people say that it's at conception. Obviously, few if any of us here believe that. There is no awareness at early stage fetal development, no ability to think or feel pain or pleasure. The fetus is alive, but it is not yet a functioning human with any of the major traits essential to humanity. As such, there is no way to argue (IMHO) that it has an interest in being alive, or in anything. The woman can have an abortion for any reason she wants without harming anyone.

Science doesn't have an answer yet as to exactly when that changes, and even if it did, it would still be unjust to force a woman to carry a pregnancy for months. However, we do have some idea of when viability begins, and a viable fetus can be removed as soon as a woman wants it to be. Since a viable fetus definitely has an interest in being alive, and has the traits essential to humanity, it is (again IMHO) deserving of protection from the state. The fact that it is not yet born is simply a matter of its current location. The state would therefore have the right to intervene to prevent the woman from intentionally killing the fetus during the removal process. It doesn't matter if she wants to be a mother or not, because the fetus has an independent interest and capability of living apart from her. She is not obligated to care for the fetus once it is removed from her body. I don't believe that the right to not be a mother gives the pregnant woman the right to kill a viable fetus, except in self-defense. Generally, self-defense includes protecting oneself from death or severe physical harm, so there DOES need to be a health exception.

BTW, I believe Scott Peterson was convicted of two counts of murder, as Conner was a viable fetus when the crime occured.

I do not believe that "viability" is an appropriate criterion for anything.

Perhaps "likely" viability is a better criterion. But in that sense, we're all "likely" viable as anyone could have a sudden heart attack or get hit by the proverbial bus at any time. Just because something COULD happen, doesn't mean it will. You have to look at the odds, and make a best determination. My understanding is that viability has changed a lot in recent years due to technology - babies born earlier can survive. That also means that borderline cases present a real dilemma; it's a very specific, case by case issue, and lends itself poorly to being legislated.

You also can't assume that babies with health problems are inherently against the state's interest. First of all, that is saying that some lives are more valuable than others, and second, you cannot assume what the baby's future capabilities will be. For example, I have severe cerebral palsy (not due to prematurity), and I have a Master's degree. A perfectly healthy baby can grow up to shoot 30 people on a college campus or become the worst president ever.

If the risks to life and health that are present at 8 months are almost equivalent, and almost the same, whether the pregnancy is terminated early with live birth, terminated early by abortion, or continued to term, does that argument hold? If the state has a compelling interest, and thus a valid reason to prohibit the abortion unless the woman has a more important interest to protect, can the woman advance her interest in being not a mother to defeat the prohibition?

I'm finding it hard to understand how an interest a woman has in "not being a mother" can be more compelling that the interest of an 8 month gestation fully viable fetus has in living. I'm sure it would be difficult to give up a baby for adoption, but as someone who would happily adopt that child (and hopes to one day), I think anyone who would rather kill the fetus at that stage has serious mental problems or is a sick human being. Much as I want to say, we should trust women, we should value women's choices and integrity, there are bad people out there, and that includes some women. The state's job is to protect human beings from those who would hurt them without due cause, and as such, it is justified for it to step in in these situations. The problem is that our government is run by right-wing thugs who don't actually care about women OR fetuses, and want to control, not protect. Therefore, any intervention by them is cause for fear that the clear-cut rights of choice will be taken away.

I think that this fear on the pro-choice side also loses us a lot of supporters who fall in the middle, people who consider late-term abortions wrong under most circumstances but fully accept and support the first-trimester abortion choice. A lot of pro-choice people seem to advocate abortion on demand at all trimesters, no limits or conditions, which frankly, comes across as extreme and nuts to much of America. Roe v. Wade was an attempt to strike a middle ground, and now both sides are battling it out over the details. But neither side is willing to compromise, and so we have an ugly mess.

[iverglas]

38. I have to stop you right there again

I think the state's interest is in protecting human life because human life is inherently valuable.

because I really don't know what that means.

My big toe is "human life". An egg is "human life", a sperm is "human life".

Actually, they aren't. They *have* human life, just as I do. I am not life. I have life. Just as I am not *a* life, I have a life.

An egg or sperm has life, but it doesn't have *a* life. A human being has a human life.

A fetus has human life, just as an egg or sperm or my big toe has human life. If the state has an interest in "protecting human life", what is it doing for my big toe and all the brazillians of eggs and sperm out there?

The issue at hand, then, is when does a life become human and deserving of protection?

No, the issue is when a fetus becomes a human being and thus authomatically deserving of protection.

And the answer is: when it is born.

If a fetus becomes a human being at some point before it is born, then anyone who "kills" it, without one of the standard excuses/justifications, is guilty of homicide.

The fetus is alive, but it is not yet a functioning human with any of the major traits essential to humanity.

Again -- and again, being straightforward with no intent to be rude -- so is my big toe, and so are egg and sperm: alive, and human.

Since a viable fetus definitely has an interest in being alive ...

This "interest" business can be confusing. Can one say that a cat has an interest in being alive? Presumably. But one can't say that a cat has a right to be alive. "Rights" is a concept invented by human beings that applies to human beings only. (We are talking about fundamental or "human" rights here, not the kinds of rights that corporations have.)

A human being has interests protected by rights by virtue of being a human being: of being born, human and alive, no matter how young, no matter how genetically defective, no matter how close to death.

If a fetus had an "interest" in being alive that had to be recognized by law, or that was recognized by law, our entire concept of rights would have to change. The right the fetus would have would be a human right, and human rights come as a package: no one has the right to life but not the right to liberty, for instance. And no one has the right to life in only some circumstances, or depending on what someone else's interests are.

As such, there is no way to argue (IMHO) that it has an interest in being alive, or in anything.

And the same applies until delivery. A fetus simply does not have interests, except inchoate interests -- interests that it will have in future, once it is born. If it is never born, its interests never materialized. An example, in practice, is that people can will property to a child not yet born, if there is a fetus in utero at the time the testator dies. But if the fetus in question is not born alive, its share of the estate does not go to its heirs: it was never a human being capable of inheriting, therefore it never inherited.

Science doesn't have an answer yet as to exactly when that changes

And here is the big point. "Science" just does not tell us who or what has interests, and when or how. "Interests" is not a scientific concept. We use scientific concepts to determine whether something qualifies as that-which-has-interests -- is it born, alive and human? -- but sciences does not dictate the criteria we apply for doing that.

We decide those criteria, collectively, as human beings. And we have never, anywhere, decided that fetuses qualify as that-which-has-interests, and therefore as that-which-has-rights that protect those interests.

The fact that it is not yet born is simply a matter of its current location.

Actually, no, it is no such simple matter. It is a matter of a very complex physciological process, for one thing. The physiological processes that occur at birth are profound. A successfully born child is no longer a fetus. It could not move back into the uterus it came out of and survive. It breathes air now, and performs a host of other processes for itself that it did not, and could not, do as a fetus. If it fails to perform those processes, it is not successfully born.

Here's how the Criminal Code of Canada expresses this:

223. (1) A child becomes a human being within the meaning of this Act when it has completely proceeded, in a living state, from the body of its mother, whether or not

(a) it has breathed;
(b) it has an independent circulation; or
(c) the navel string is severed.

Precisely because a fetus is *not* a human being, for the purposes of long-standing criminal law that reflects widespread and time-hallowed human consensus, but this society has decided that killing the fetus in the process of birth should not be permitted, the law then *deems* the fetus to be a human being at a certain point:

(2) A person commits homicide when he causes injury to a child before or during its birth as a result of which the child dies after becoming a human being.

I happen to think that law is bad law. The act described could indeed be defined as an offence, but to define it as homicide is wrong.

Saying that the difference between a fetus and a child is a matter of "location" is part of the simplistic, deceptive argument used by the anti-choice brigade.

BTW, I believe Scott Peterson was convicted of two counts of murder, as Conner was a viable fetus when the crime occured.

Indeed. And slavery was once legal. The existence of a law does not make the law good, or constitutional. I have long argued that laws that define/punish causing an abortion as homicide are very bad and very unconstitutional laws (in the US, as they would be in Canada, were anyone to pass such bizarre and appalling laws). If a legislature can define/punish causing an abortion as homicide, why not just define shoplifting as homicide?

Perhaps "likely" viability is a better criterion. But in that sense, we're all "likely" viable as anyone could have a sudden heart attack or get hit by the proverbial bus at any time.

Uh, no. I'm not viable at all; I'm alive. I'm not "capable of living", I'm living. And born, and human, and as such, on the "rights" side of the line that divides that-which-has from that-which-doesn't-have rights.

You also can't assume that babies with health problems are inherently against the state's interest. First of all, that is saying that some lives are more valuable than others, and second, you cannot assume what the baby's future capabilities will be.

Well, I certainly didn't mean to say any such thing. I didn't say it was not in the state's interest to have babies with health problems born. What my question meant was: can the state advance an interest in having babies with severe, debilitating, expensive health problems born? Not whether it could advance and interest in them *not* being born. I'm not proposing that the state be able to compel anyone to terminate a pregnancy where that is going to happen; I'm proposing that it not be able to compel a birth, *including* where that is going to happen.

A perfectly healthy baby can grow up to shoot 30 people on a college campus or become the worst president ever.

I'm sorry, but you're getting specious here. We are not talking about deciding which fetuses should or should not be permitted to be born. We are talking about which fetuses the state should be able to compel someone to bear.

I'm finding it hard to understand how an interest a woman has in "not being a mother" can be more compelling that the interest of an 8 month gestation fully viable fetus has in living.

Well, now we're arguing in a circle, and on a tangent.

It has not been established that a fetus has an interest in anything. In fact, a fetus does *not* have any interest in anything.

And we are not talking about the interests of the fetus, non-existent as they are. We are talking about the interests of the state.

Indeed, the state could have an interest in protecting the fetus's interests, if such there were, just as it has an interest in protecting my interests. But until we establish that the fetus has such interests, we have not established that the state has that particular interest in late-term fetuses.

If the fetus has a protectable interest, it is in its life, then it has a right to life. And then killing it is homicide. And, as I've asked in this thread I think, is this where we want to go?

Never mind Scott Peterson. Imagine trying to get a doctor to terminate a pregnancy where the woman *might* die otherwise.

A woman's interest in "being not a mother" is a liberty interest: the right to liberty, and (in the US) not to be deprived thereof without due process. You folks would probably also call it a privacy interest. Up here, we would call it a security of the person interest -- ours reads "life, liberty and security of the person" -- since that concept includes psychological security, for instance.

And it can't be overridden without justification, according to the rules that apply.

Which means that the state has to state and prove its interest in, to put it more coherently than Blackmun J. did, for the purposes of discussion here, a pregnancy in which the fetus is hypothetically viable being carried to term and delivered, or delivered early by medical intervention, rather than terminated by abortion.

I think anyone who would rather kill the fetus at that stage has serious mental problems or is a sick human being.

I think the same of anyone who calls young women "nappy-headed hos" on television, but I'm not proposing that it be a criminal offence to do so.

The state's job is to protect human beings from those who would hurt them without due cause, and as such, it is justified for it to step in in these situations.

The circle, once again. A fetus is not, at present, a human being -- "human being" being a concept, with a definition, that does not at present include fetuses.

And anyone who wants to redefine "human being" to include fetuses really needs to think long and hard about the implications, because they are legion. They might start with imprisoning women who decline in-utero surgery to correct fetal defects, without which the fetus will not survive to term, and forcibly slicing them open. Certainly people in civilized societies are not permitted to deny such surgery to other human beings under their care; why should pregnant women be?

A lot of pro-choice people seem to advocate abortion on demand at all trimesters, no limits or conditions, which frankly, comes across as extreme and nuts to much of America.

I don't think I need to name other things that much of America has regarded, and does regard, as extreme and nuts, that might not assist this argument.

Roe v. Wade was an attempt to strike a middle ground, and now both sides are battling it out over the details. But neither side is willing to compromise, and so we have an ugly mess.

"Compromise" is not a concept that applies to rights -- especially someone else's. I don't get to bargain away another woman's rights so that someone doesn't think I'm an extreme nutter.

[Megahurtz]

28. Thanks for posting this iverglas!

I tried posting it on General Discussion too, but didn't get that much response. More people really need to really see and think about this statement. By the time I posted it over there I was really mad lol!:

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=389x709147

I'm glad you're a Lawyer :) because this is a really good and valid argument
(you can word it in ways in which I am unable ;))
this should have been presented to the Supreme Court when they were passing this bogus Law.:grr:

It should be mandatory that they specifically state what their "interest" is in Fetal Life. If not, I fear they could make more adjustments in their "interest" and keep chipping away at our rights. Why wouldn't they just come back and make the same claim on a six-week old Fetus, for example?

Yes, what exactly is their interest in Fetal Life???

And why have they no interst in Human Life (The life of the potential Mother???)
Being a Woman, it's just way too creepy to me.:scared:

I mean what is this, an episode of the Twighlight Zone or the X-Files or something?

[HockeyMom]

36. Potential Life?

That term really worries me. Doesn't that go back to the state's argument in not Roe, but GRISWOLD? When you start on that slippery slope, you go back to birth control. Potential life? The state has an interest in seeing that children are born, so the state can ban the use of contraceptives, as well as abortion, to insure that "potential" children are born.

I am not an attorney, but with those words, you can not only ban abortions, but all birth control.

Am I wrong on this?

[Ayesha]

37. Yes and no

Our country was founded on the concept of individual liberty. If a life is only potential, and it does not have those qualities which make one human AND the ability to survive outside the womb, it's an unfair restriction of individual liberty to require that another person host that life inside of them. The state does have an interest in children being born in general, but not in any SPECIFIC woman having a baby, except to prevent ending a viable life as I outlined above. There are better ways to encourage more births (such as social programs, tax credits, etc.) than banning all abortion and/or birth control.

[iverglas]

39. in a nutshell, indeed

It might be possible to rule out the example you give -- contraceptives -- but it's just impossible to know what this "potentiality of human life" (and the two other equally meaningless terms used by Blackmun J.) rules *in*.

You raise a very interesting point, though. Mine was that
(1) the state had simply failed to assert what it's interest is, and the US Sup Ct didn't require it to do so, or do so itself; and
(2) the state can't demonstrate that its interest overrides another interest unless we know what the state's interest is.

Yours is that a slippery slope has been created -- once this "interest" is essentially assumed to exist, that being what the Court seems to have done, but has not been defined, why can't someone else come along and say that it covers X or Y as well?

In actual fact, the Court has already said in Roe that the state *does* have this interest at all stages of a woman's pregnancy, it's just that it only becomes *compelling* at (hypothetical) viability.

Scarier than it seems at first glance, isn't it??

[HockeyMom]

40. That is the reason I brought up Griswold

Whose interests take precedence? The state's or the individual's? Second, if they start with "all stages of life", as in Fundie terms "from conception on", might they not argue that the Morning After Pill and plain old birth control pills, MIGHT, although in rare numbers,prevent implantation and thus, prevent "life" from continuing?

This is a MAJOR slippery slope they are going down.

[Ind4now]

43. It is vary unfortunate that you live in Canada!

I wish I could find someone as intelligent as you that live here in the US. They might be able to sway my thoughts on the subject. You might as well if you know as much about US law as you do about Canadian law. Is there anywhere, that you know of, in US law where your argument has standing? I am referring to all of the points you laid out throughout this thread. (Thanks for the very enjoyable reading by the way)

There are so many things you guys talked about there is no way I’ll catch them all.

As you pointed out, in Canada it is spelled out that a fetus is not a human being until it is born. Therefore, the fetus has no rights as a human.

That is not spelled out in the US that I know of. The only thing we have to go off of is the right to “life, liberty, and the pursuit of happiness,” in the US Constitution. I believe that a fetus, at 9 and ½ month’s gestation, is a “life,” under the US Constitution, and therefore has rights. I don’t see how anyone can say that literally one day it is just a fetus with no rights and the next it is a life worth protecting just because it is born. You and Ayesha had a very interesting conversation about this. I think that the state (in the US) does have a compelling mandate to protect all human life, including that which is not yet born. I do not think that a fetus that is two days old has life as protected by the US Constitution. So this means there must be a point between 2 days and 9 and ½ months that the fetus becomes a life as protected in the Constitution.

This whole argument is such a hard gray area…I am reminded of something I just learned. In the US, an individual has the right to deny medical treatment. And in practice, many people have signed DNR’s. (Do Not Resuscitate Orders) This means that they wish that if something happens, medical personnel are not to use extra means to try to bring them back to life, such as CPR, an AED or others. This DNR, however, is null and void when that person dies because all contracts cancel when someone dies. So if that person stops breathing and their heart stops, medical personnel could try anything to revive them. An interesting twist in legal mumbo jumbo.

[iverglas]

45. not for me!

Sorry bout that.

Is there anywhere, that you know of, in US law where your argument has standing?

I'm not sure which argument you mean. The whole concept of the interest of the state in the subject matter of legislation is fundamental to law in the US, and to law itself in any country that adheres to the rule of law. You can get an overview of the constitutional scrutiny process here, e.g.:

http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/epcscrutiny.htm
"Levels of Scrutiny under the Equal Protection Clause"

1. STRICT SCRUTINY (The government must show that the challenged classification serves a compelling state interest and that the classification is necessary to serve that interest.): ...

2. MIDDLE-TIER SCRUTINY (The government must show that the challenged classification serves an important state interest and that the classification is at least substantially related to serving that interest.): ...

3. MINIMUM (OR RATIONAL BASIS) SCRUTINY (The govenment need only show that the challenged classification is rationally related to serving a legitimate state interest.) ...

Unless we're specifically arguing equal protection, those particular items don't apply, but you get the idea of "state interest".

The state can't just go around legislating willy-nilly about whatever it feels like. It must demonstrate that it has an interest to advance or protect.

Here's another good illustration from that site, with respect to individuals' interests:
http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/rightofprivacy.html

The Burger Court extended the right of privacy to include a woman's right to have an abortion in Roe v Wade (1972), but thereafter resisted several invitations to expand the right. Kelley v Johnson (1976), in which the Court upheld a grooming regulation for police officers, illustrates the trend toward limiting the scope of the "zone of privacy." (The Court left open, however, the question of whether government could apply a grooming law to members of the general public, who it assumed would have some sort of liberty interest in matters of personal appearance.)

-- which kind of brings us to the point that what is called "privacy" in the US is really liberty.

And to what I hear Ruth Bader Ginsburg J. had to say in the current case (Stevens, Souter and Breyer JJ. concurring), which it's about time I read -- here, starting at p. 49 of 73:
http://www.supremecourtus.gov/opinions/06pdf/05-380.pdf
Bits and pieces on a quick skim (omitting italics and some citation details, boldface mine):

As Casey comprehended, at stake in cases challenging abortion restrictions is a woman’s “control over her (own) destiny.”

Women, it is now acknowledged, have the talent, capacity, and right “to participate equally in the economic and social life of the Nation.” Their ability to realize their full potential, the Court recognized, is intimately connected to “their ability to control their reproductive lives.” Thus, legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.

The Court offers flimsy and transparent justifications for upholding a nationwide ban on intact D&E sans any exception to safeguard a women’s health. Today’s ruling, the Court declares, advances “a premise central to (Casey’s) conclusion”—i.e., the Government’s “legitimate and substantial interest in preserving and promoting fetal life.” See also ante, at 15 (“(W)e must determine whether the Act furthers the legitimate interest of the Government in protecting the life of the fetus that may become a child.”). But the Act scarcely furthers that interest: The law saves not a single fetus from destruction, for it targets only a method of performing abortion. See Stenberg. And surely the statute was not designed to protect the lives or health of pregnant women. Id., at 951 (GINSBURG, J., concurring); cf. Casey, 505 U. S., at 846 (recognizing along with the State’s legitimate interest in the life of the fetus, its “legitimate interes(t) ... in protecting the health of the woman” (emphasis added)). In short, the Court upholds a law that, while doing nothing to “preserv(e) ... fetal life,” ante, at 14, bars a woman from choosing intact D&E although her doctor “reasonably believes (that procedure) will best protect (her).” Stenberg (STEVENS, J., concurring).

Ultimately, the Court admits that “moral concerns” are at work, concerns that could yield prohibitions on any abortion. See ante, at 28 (“Congress could ... conclude that the type of abortion proscribed by the Act requires specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition.”). Notably, the concerns expressed are untethered to any ground genuinely serving the Government’s interest in preserving life. By allowing such concerns to carry the day and case, overriding fundamental rights, the Court dishonors our precedent. See, e.g., Casey, 505 U. S., at 850 (“Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.”); Lawrence v. Texas (Though “(f)or many persons (objections to homosexual conduct) are not trivial concerns but profound and deep convictions accepted as ethical and moral principles,” the power of the State may not be used “to enforce these views on the whole society through operation of the criminal law.” (citing Casey)).


Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from “(s)evere depression and loss of esteem.”

This way of thinking reflects ancient notions about women’s place in the family and under the Constitution—ideas that have long since been discredited.

Though today’s majority may regard women’s feelings on the matter as “self-evident,” ante, at 29, this Court has repeatedly confirmed that “(t)he destiny of the woman must be shaped ... on her own conception of her spiritual imperatives and her place in society.” Casey.

In cases on a “woman’s liberty to determine whether to (continue) her pregnancy,” this Court has identified viability as a critical consideration. See Casey, (plurality opinion). “(T)here is no line (more workable) than viability,” the Court explained in Casey, for viability is “the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the woman. ... Insome broad sense it might be said that a woman who fails to act before viability has consented to the State’s intervention on behalf of the developing child.” Today, the Court blurs that line, maintaining that “(t)he Act (legitimately) appl(ies) both previability and postviability because ... a fetus is a living organism while within the womb, whether or not it is viable outside the womb.”

In sum, the notion that the Partial-Birth Abortion Ban Act furthers any legitimate governmental interest is, quite simply, irrational. The Court’s defense of the statute provides no saving explanation. In candor, the Act, and the Court’s defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court—and with increasing comprehension of its centrality to women’s lives. See supra, at 3, n. 2; supra, at 7, n. 4. When “a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostility to those rights, the burden is undue.” Stenberg, 530 U. S., at 952 (GINSBURG, J., concurring) (quoting Hope Clinic v. Ryan (Posner, C. J., dissenting)).

I hope that clarifies the concept of "state interest" being applied.

I'll address other things in a separate post.

[Ind4now]

47. Sorry,

that's my fault for not being clear. What I was referring to was the actual quoting of law (in Canada) that defines a "human being," thereby defining when someone has rights.

[iverglas]

46. more

As you pointed out, in Canada it is spelled out that a fetus is not a human being until it is born. Therefore, the fetus has no rights as a human.

Actually, what is spelled out in Canada is pretty much universal and applies pretty much everywhere.

The only reason that some US states have provisions in their criminal laws that call causing an abortion "homicide" is that it isn't. If it were, they would not have enacted those provisions.

Homicide is the killing of a human being. That includes me, you, your mother-in-law and the infants in the local NICU. Nobody's laws say that it is homicide to kill one's mother-in-law; by definition, killing one's mother-in-law is homicide, because one's mother-in-law is a human being.

If a fetus were a human being, Scott Peterson could have been charged with homicide for "killing" his wife's fetus without any law saying that "killing" a fetus was to be treated as if it were homicide. The ordinary law of homicide would have applied.

It is the fact that a fetus is not a human being that the California legislature (and other US state legislatures) have expressly recognized, by passing special laws to treat "killing" fetuses as if it were homicide.


That is not spelled out in the US that I know of.

Perhaps not -- are you sure? Do state criminal codes not contain any definition of "human being"?

Such definitions would only apply to criminal law, of course. But my point is that such definitions reflect reality -- that no one regards fetuses as falling within the general definition of "human being", a concept applied in many realms of life.

And that by enacting laws to treat the destruction of a fetus as if it were a homicide, legislatures are in fact "spelling out" that a fetus is not a human being, by necessary and obvious implication.


The only thing we have to go off of is the right to “life, liberty, and the pursuit of happiness,” in the US Constitution.

And of course those rights obviously belong to human beings, called "persons" in the legal context. The rights actually in question are set out in your Bill of Rights: No person shall be deprived of life, liberty, or property, without due process of law. I think that pursuit of happiness stuff comes from your Declaration of Independence, not a law.

Those rights don't belong to cats or dogs or maple trees or office buildings. They don't belong to anything that is not a human being. And something either is a human being or is not; there are no sorta human beings or partial human beings.


I believe that a fetus, at (8) and ½ month’s gestation, is a “life,” under the US Constitution, and therefore has rights.

And what you've just said makes not a stitch of sense.

"A life" does not have rights under your constitution. Persons do. One of the rights they have, under your Constitution and by general agreement of members of the human species, is the right not to be deprived of life without due process. (The right itself, the right to life, is generally stated more explicitly in more modern documents.)

So you'll be needing to rethink that one. There isn't much more I can say about what you've said, except that it makes no sense at all.


I don’t see how anyone can say that literally one day it is just a fetus with no rights and the next it is a life worth protecting just because it is born.

Well, it certainly works that way at the other end. One day you're a human being / person with rights, the next you're a dead body with no rights.

"Just because" you're dead, why shouldn't you have rights?

"Just because" you're born is precisely why you have rights, along with the fact that you're alive and human. Not born, or not alive, or not human: no rights.

If you can
(a) find some example of a time or place where it has ever been different, or
(b) explain how the world would work if fetuses had rights,
I'll be very interested.

In any event, neither do I -- see how anyone can say that one day it is just a fetus with no rights and the next it is a life worth protecting. Because, once again, it makes no sense.

What is "worth protecting", i.e. deserving or protection by the state because it has a right to life, is a human being / a person.

There are other things worth protecting, for other reasons -- i.e. that the state may have an interest in, and that it may be entitled to override some individual rights in order to protect. Old-growth redwoods. Some say: fetuses. Still waiting for an argument to establish what the state's interest in protecting fetuses is, and how it overrides women's interests, whatever those interests are.


You and Ayesha had a very interesting conversation about this. I think that the state (in the US) does have a compelling mandate to protect all human life, including that which is not yet born.

So how come you're just saying what's already been said all over again, and not responding two what I've already said in response?

My big toe is "human life", eggs and sperm are "human life". What is the state doing to protect them?

"Life" is not born. Entities are born. Life is a quality of an entity, or a thing or substance. I have human life, a fetus has human life, my big toe and eggs and sperm and organ tissue or cells in a petri dish have human life.


I do not think that a fetus that is two days old has life as protected by the US Constitution.

(I'm assuming that you're referring to a zygote, the product of fertilization of an egg by a sperm, 2 days after conception.) You're right, except that what it is that it doesn't have is a life. Your Constitution really, really, really does not protect "life". The "life" that is protected by the US Constitution is a life of a human being / person.


So this means there must be a point between 2 days and and 9 and ½ months that the fetus becomes a life as protected in the Constitution.

See what you did?

You accurately referred to the "life" that a fetus does not have, and then you immediately switched horses and said that the fetus becomes "a life". It doesn't become a life. If it is successfully born, it becomes a human being, which has a life.

We all have a responsibility to use clear language to convey precise meanings, when discussing matters of such importance -- that being what the US Sup Ct pretty much failed to do, in this instance. This sort of fuddle-duddlery just doesn't work. Sometimes it's used intentionally to try to muddy the waters, unfortunately, and when that happens, sometimes people who aren't expecting their interlocutors to be engaging in verbal trickery slide off the track.

It certainly doesn't work on someone who's been discussing these issues for all the years I have been, anyhow!



In the US, an individual has the right to deny medical treatment. And in practice, many people have signed DNR’s. ... This DNR, however, is null and void when that person dies because all contracts cancel when someone dies. So if that person stops breathing and their heart stops, medical personnel could try anything to revive them.

Well, that's just weird, and looks like something more likely to be encountered on a law school exam than in real life. ;) (I don't think stoppage of breathing and heartbeat is regarded as sufficient for determination of death in all cases, these days.)

Btw, just fyi in case it's of interest (and because people tend to cite laws against suicide as allegedly proving something relevant to the abortion debate), there is no law against suicide in Canada, as there should not be in any society that values and protects the right to liberty.

[Ind4now]

48. I would like to start by saying

I approach this conversation lacking in education compared to you. I will do my best. In that, you point out that humans are not lives, but have “a life.” When I said life, I was referring to the life that we as humans have. I understand your desire to keep the words we use specific and well defined, so I will try. 

The only reason that some US states have provisions in their criminal laws that call causing an abortion "homicide" is that it isn't. If it were, they would not have enacted those provisions.

I would reject this argument because that would be like saying the only reason why the 13th Amendment was put into the US Constitution abolishing slavery was because blacks are not equals and do not have equal rights. If they did, the amendment would not have been needed. The fact is they always have been equal under the Constitution. They were just denied those rights and the amendment was needed to focus the attention on the fact that “all men” are equal. As you pointed out, just because slavery used to be, does not mean it was the right thing. Just because the need to define a fetus as having a life worthy of protection did not used to exist, and therefore never came up, does not mean that it shouldn’t now have that protection.



Perhaps not -- are you sure? Do state criminal codes not contain any definition of "human being"?

The best source for legal terminology is the “Black’s Law Dictionary,” which the most resent version I have is the 6th edition from 1991. It defines “person” instead of “human being,” including that a person is “In general usage, a human being…” Now, I admit that this definition says that the word “person,” as used in the Fourteenth amendment does not include the unborn ” However, that is because the 14th Am. Starts with “All persons born or naturalized in the United States…” This would specifically eliminate those not born. That definition of person also refers the reader to the definition “children,” and more specifically “Rights of the unborn.”

When I look that up, I find children defined as, “Progeny; offspring of parentage. Unborn or recently born human being.” This, the start of the long definition, seems to directly include an unborn child in the group of human being which addresses your statement, “…no one regards fetuses as falling within the general definition of "human being… It also says, “The rights of an unborn child are recognized in various different legal contexts; e.g. in criminal law, murder includes the unlawful killing of a fetus (Cal.Penal Code 187),” which, even in 1991, means that the courts have acknowledged rights of the unborn child.

Black’s Law Dictionary does define “life” as “That state of animals, humans, and plants or of an organized being, in which its natural functions and motions are performed, or in which its organs are capable of performing their functions.”

Also, under “Viability, it says in part, “…That stage of fetal development when the life of the unborn child may be continued indefinitely…” All italics added.

All of these tell me that a fetus is considered a “human being” with a “human life.”



I think that pursuit of happiness stuff comes from your Declaration of Independence, not a law.

Sorry. You are of course correct here. I let my typing get away from my thinking.



So how come you're just saying what's already been said all over again, and not responding two what I've already said in response?

My big toe is "human life", eggs and sperm are "human life". What is the state doing to protect them?

Just to address this directly, as I stated above this is just a mater of semantics. By saying “life,” I generally mean “a human life.”



You accurately referred to the "life" that a fetus does not have, and then you immediately switched horses and said that the fetus becomes "a life". It doesn't become a life. If it is successfully born, it becomes a human being, which has a life.

To try to say this correctly, I feel that a fetus has a human life, and that the zygote does not. Therefore at some point between the two times, the fetus has a life, and therefore should be protected. I don’t believe that the act of birth is, or should be, the legal line for when the unborn child gets a life.



…there is no law against suicide in Canada, as there should not be in any society that values and protects the right to liberty.

That is interesting. I agree that legal suicide should be allowed, but it should be regulated. I don’t know how it works in Canada, but in the US, the fact that suicide is illegal is the only thing that allows the government (police and medical personnel) to intervene if someone just tries to shot themselves in the head. If you go through counseling, and still want to die, go ahead. In the US the large majority of suicide attempts are rightfully considered cries for help. Without suicide being illegal, we would not be able to help.

[Justitia]

49. correction: Suicide is not illegal. Assisting in a suicide is illegal, except in OR. -eom

[iverglas]

50. as I understand it

In at least some US states, *attempting* suicide is illegal. (Not much point in suicide being illegal. ;) )

It is argued that this is the only way to get some people the psychological or medical help they need. But the criminal law is the biggest club a society has, and is simply not the appropriate tool for getting people help. Mental health statutes and procedures are the way to do that.

Assisting suicide is still illegal in Canada. The Sue Rodriguez case, decided by the Supreme Court in 1993, upheld that law.
http://scc.lexum.umontreal.ca/en/1993/1993rcs3-519/1993rcs3-519.html
It was a 5-4 decision. Ultimately, Rodriguez did commit suicide, with assistance, probably from the NDP member of Parliament who had long advocated for her and her cause. Whether the decision would be different 15 or 20 years later, don't know.

The Court's reasoning is interesting in the abortion context, as another example of how an interference in the exercise of fundamental rights can (or can't, depending on whether one finds those reasons persuasive) be justified. Interesting how the "sanctity of life" is used to prevent people from choosing how to live their own lives, and how the majority's subsequent yammering about respecting "human life" sounds so much like the anti-choice chorus, and serves the same purpose.

(summary of majority reasons)
The appellant's claim under s. 7 of the Charter is based on an alleged violation of her liberty and security of the person interests. These interests cannot be divorced from the sanctity of life, which is the third value protected by s. 7. Even when death appears imminent, seeking to control the manner and timing of one's death constitutes a conscious choice of death over life. It follows that life as a value is also engaged in the present case. Appellant's security of the person interest must be considered in light of the other values mentioned in s. 7.

Security of the person in s. 7 encompasses notions of personal autonomy (at least with respect to the right to make choices concerning one's own body), control over one's physical and psychological integrity which is free from state interference, and basic human dignity. The prohibition in s. 241(b), which is a sufficient interaction with the justice system to engage the provisions of s. 7, deprives the appellant of autonomy over her person and causes her physical pain and psychological stress in a manner which impinges on the security of her person. Any resulting deprivation, however, is not contrary to the principles of fundamental justice. The same conclusion is applicable with respect to any liberty interest which may be involved.

... To the extent that there is a consensus, it is that human life must be respected. This consensus finds legal expression in our legal system which prohibits capital punishment. The prohibition against assisted suicide serves a similar purpose. Parliament's repeal of the offence of attempted suicide from the Criminal Code was not a recognition that suicide was to be accepted within Canadian society. Rather, this action merely reflected the recognition that the criminal law was an ineffectual and inappropriate tool for dealing with suicide attempts. Given the concerns about abuse and the great difficulty in creating appropriate safeguards, the blanket prohibition on assisted suicide is not arbitrary or unfair. The prohibition relates to the state's interest in protecting the vulnerable and is reflective of fundamental values at play in our society. Section 241(b) therefore does not infringe s. 7 of the Charter. ...

(summary of L'Heureux-Dubé/McLachlin dissent)
Section 241(b) of the Code is not justified under s. 1 of the Charter. The practical objective of s. 241(b) is to eliminate the fear of lawful assisted suicide's being abused and resulting in the killing of persons not truly and willingly consenting to death. However, neither the fear that unless assisted suicide is prohibited, it will be used for murder, nor the fear that consent to death may not in fact be given voluntarily, is sufficient to override appellant's entitlement under s. 7 to end her life in the manner and at the time of her choosing. The safeguards in the existing provisions of the Criminal Code largely meet the concerns about consent. The Code provisions, supplemented, by way of remedy, by a stipulation requiring a court order to permit the assistance of suicide in a particular case only when the judge is satisfied that the consent is freely given, will ensure that only those who truly desire to bring their lives to an end obtain assistance.

(summary of Lamer dissent)
Section 241(b) of the Code is not justifiable under s. 1 of the Charter. While the objective of protecting vulnerable persons from being pressured or coerced into committing suicide is sufficiently important to warrant overriding a constitutional right, s. 241(b) fails to meet the proportionality test. The prohibition of assisted suicide is rationally connected to the legislative objective, but the means chosen to carry out the objective do not impair the appellant's equality rights as little as reasonably possible. The vulnerable are effectively protected under s. 241(b) but the section is over‑inclusive. Those who are not vulnerable or do not wish the state's protection are also brought within the operation of s. 241(b) solely as a result of a physical disability. An absolute prohibition that is indifferent to the individual or the circumstances cannot satisfy the constitutional duty on the government to impair the rights of persons with physical disabilities as little as reasonably possible. The fear that the decriminalization of assisted suicide will increase the risk of persons with physical disabilities being manipulated by others does not justify the over‑inclusive reach of s. 241(b).

(summary of Cory dissent -- he focused on the discriminatory aspect of the law)
Section 7 of the Charter, which grants Canadians a constitutional right to life, liberty and the security of the person, is a provision which emphasizes the innate dignity of human existence. Dying is an integral part of living and, as a part of life, is entitled to the protection of s. 7. It follows that the right to die with dignity should be as well protected as is any other aspect of the right to life. State prohibitions that would force a dreadful, painful death on a rational but incapacitated terminally ill patient are an affront to human dignity.

There is no difference between permitting a patient of sound mind to choose death with dignity by refusing treatment and permitting a patient of sound mind who is terminally ill to choose death with dignity by terminating life preserving treatment, even if, because of incapacity, that step has to be physically taken by another on her instructions. Nor is there any reason for failing to extend that same permission so that a terminally ill patient facing death may put an end to her life through the intermediary of another. Since the right to choose death is open to patients who are not physically handicapped, there is no reason for denying that choice to those that are. This choice for a terminally ill patient would be subject to conditions. With those conditions in place, s. 7 of the Charter can be applied to enable a court to grant the relief proposed by Lamer C.J.

The majority's concerns are all very well, but Sue Rodriguez (who had ALH, Lou Gehrig's disease) was not "vulnerable" in the sense meant by the Court. She was intelligent, articulate and aware, and had access to all of the supports she needed for living/dying with the disease.

"Innate dignity of human existence", or "sanctity of human life"? And interesting and important shift of focus.

Interesting to note the Court's breakdown in Rodriguez
(5-4 to uphold):
La Forest, Sopinka, Gonthier, Iacobucci and Major JJ. -- upheld the prohibition on assisted suicide
Lamer C.J. and L'Heureux‑Dubé, Cory and McLachlin JJ -- dissented

In the Morgentaler decision striking down the restrictive abortion law five years earler
(5-4 to strike down):
Dickson C.J. and Beetz, Estey, Lamer, and Wilson JJ. -- struck down the prohibition on abortion
McIntyre and La Forest JJ. -- dissented

The Court's composition had changed so much in 5 years that little comparison remains, but of the two judges who sat on both cases:

La Forest: strike down abortion prohibition, uphold assisted suicide prohibition
Lamer: strike down abortion prohibition, strike down assisted suicide prohibition

They are both men. Of the female judges:

L'Heureux-Dubé: strike down assisted suicide prohibition
McLachlin (now Chief Justice): strike down assisted suicide prohibition
Wilson (first female SCC judge): strike down abortion prohibition

A very small sample to draw any conclusions from, but interesting.

[Justitia]

54. Attempted suicide is not prosecuted or punished in any state, it may still be "illegal" in a few

(maybe 6? But that may have since changed, not sure).

In any event, I wanted to let you know, iverglas, how much I appreciate your contributions on this thread. I have read every word, very carefully and slowly digested all your points.
Your questions about "what is the State's interest?" and "how is it justified?" are truly compelling.
It is the very first time I began to think we should throw out Roe completely and start over.

Of course, I cannot advocate that due to a fear of what little protection we will lose in the meantime. It blows my mind that we even have to look to any gov't entity for permission about our own autonomy, self-determination, etc.

However, I see that path ahead for us, and not by our own choice. I think Roe WILL be overturned and then American women in every corner of the nation will have to fight tooth-and-nail to retain dominion over our own bodies. The end result may be satisfying, but I'm afraid many, many women will suffer, even die, in the process.

I cannot tell you how this enrages me! I will no longer be silent or civil to the casual controller, however - FUCK THEM. If they want to back us into a corner, prepare to see teeth. And I am committed to my fellow women everywhere, in helping them however I can, to preserve their natural rights over their own bodies and futures. This is how it has been since women first got pregnant, at the dawn of man. We will take care of and protect each other.

Thank you for your thoroughly comprehensive analysis!

[iverglas]

55. I know, eh?

It is the very first time I began to think we should throw out Roe completely and start over.
Of course, I cannot advocate that due to a fear of what little protection we will lose in the meantime.

Stuck with the ungood, which is a roadblock to the better, but a dam against the horrible. ;)

Do read Ginsburg J.'s dissent in the recent case, though, if you haven't. Light may be visible at the end of that tunnel. Even if the tunnel is longer than it was a while ago ...

http://www.supremecourtus.gov/opinions/06pdf/05-380.pdf
(starts at page 49 of the pdf doc)

... the centrality of “the decision whether to bear ... a child,” ... to a woman’s“dignity and autonomy,” her “personhood” and “destiny,” her “conception of ... her place in society. ...


And thank you for being fierce. ;)

[iverglas]

51. problems

I approach this conversation lacking in education compared to you.

Well, here's where I may sound élitist, but: why do you think that you are entitled to advocate that women's rights be violated when you don't really know what you're talking about?

If you are going to advocate a public policy position, do you not have a responsibility to educate and inform yourself about the issues and facts involved *first*?

If I speak out in public to advocate building more coal-burning power plants to solve the energy shortage, should I not expect to be met with facts and arguments about global warming and air pollution, and to be criticized for advocating a policy that will cause those sorts of harms? Would it be okay for me to just say "oh, I didn't know about that stuff"? When I might already have swayed public opinion by painting a nightmare picture of the dangers of nuclear power, for instance?


I would reject this argument because that would be like saying the only reason why the 13th Amendment was put into the US Constitution abolishing slavery was because blacks are not equals and do not have equal rights. If they did, the amendment would not have been needed. The fact is they always have been equal under the Constitution. They were just denied those rights and the amendment was needed to focus the attention on the fact that “all men” are equal.

A constitution is not a law. There are very important distinctions.

We may all have the right to life, say, whether because god said so or our experience as members of a human group tells us so, or because we all get together and write it down. For most of our purposes, we just take it for granted that we all agree that we all have the right to life, these days.

For the purposes of the laws that govern us, we make constitutions that set out what those laws may and may not do. Those are the fundamental rules. We can't go behind them. We just have to hope they're coherent, so they can be applied rationally. (An example of incoherency would be an amendment to the US Constitution prohibiting same-sex marriage, where the constitution also guarantees liberty and "the equal protection of the law" and, by interpretation, privacy and some degree of substantive due process. At that point, the Constitution becomes a pointless piece of paper.)

The US Constitution was incoherent to the extent that it had been interpreted as not guaranteeing rights equally to all persons, based on race/colour. That needed fixing, or the courts in the US would have presumably have had to continue following their own precedents and interpreting the constitution as denying equality.

The thing with criminal laws is that they do not do things like define "human being" other than for the purposes of those laws. A law can deem something to be something it is not, for sure -- it can deem an apple to be an orange, for the purpose of anti-trust legislation or whatnot. But *not* if doing so violates someone's rights without justification. Treating anything other than homicide as homicide violates rights, in my opinion (and in this case the opinion of the ACLU and others) without justification. It violates the offender's right to equal treatment under the law, for instance: doctors who perform abortions are not charged with "fetal homicide" and treated as if they have committed homicide, the biggest arrow in the criminal, law's quiver, subject to the harshest penalty; people who cause spontaneous abortions by punching pregnant women are.

So treating a fetus as a human being -- or, more accurately, someone who causes an abortion as someone who has committed homicide -- *creates* an incoherency in the law, and oversteps the legislature's authority.

Just because the need to define a fetus as having a life worthy of protection did not used to exist, and therefore never came up, does not mean that it shouldn’t now have that protection.

It does mean that if a society feels that need, it can't fulfil it by changing one law. It is going to have to change all its laws. It is going to have to count fetuses in censuses and allow tax deductions for them; it is going to have to issue them passports; it is going to have to decide custody issues concerning them; it is going to have to require them to be given medical treatment and surgery when they need it, just as it does for children, and it is going to have to punish people who do things that amount to assaults on them, just as it does for anyone else.

A human being is a human being, a person is a person, and there are no in-betweens. Unless you want to invent one -- something that doesn't have ALL human rights, just some -- and then we enter the realm of insanity.

The best source for legal terminology is the “Black’s Law Dictionary,” ...

No, actually, the best source for what a law says is the law. I was asking specifically about whether there are definitions in US criminal laws.

What California's Penal Code actually says about "fetal homicide" (and note that "malice aforethought" doesn't mean nastiness, it means intent):
http://caselaw.lp.findlaw.com/cacodes/pen.html

187. (a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.

See? It specifically says that a fetus is *not* a human being, and yet it defines killing a fetus as killing a human being. Why not -- and I am serious -- just define every bad act as murder?

The thing is, really (and I've wandered myself in a bit of a circle here, sorry), that laws tend not to define "human being" unless they are defining it as something other than what it is understood, by universal consensus, to be. The Cdn Criminal Code doesn't define "human being", it just deems a fetus to be one during that tiny grey area before it draws breath and the cord is cut. The Code contains a completely separate provision for injuring/killing a fetus during the process of birth.

So yes indeed, Black's is a good starting point for understanding what legal terms mean, but of course is not always correct. And "human being" isn't a legal term. That's why It defines “person” instead of “human being,” including that a person is “In general usage, a human being…”

Now, I admit that this definition says that the word “person,” as used in the Fourteenth amendment does not include the unborn ” However, that is because the 14th Am. Starts with “All persons born or naturalized in the United States…”

Oh, aargh, this red herring just can't be whacked dead.

Your fifth amendment is the one actually in issue here. The fourteenth amendment clarifies that the duties in the fifth amendment apply to the states as well as the central government. The relevant part of the fourteenth is:

nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Those rights -- the right to life, the right to liberty -- have nothing to do with citizenship or the rights of citizenship, under the US Constitution. As a tourist, I am as entitled to life and liberty as you are.

Quoting Black's:
It also says, “The rights of an unborn child are recognized in various different legal contexts; e.g. in criminal law, murder includes the unlawful killing of a fetus (Cal.Penal Code 187),” which, even in 1991, means that the courts have acknowledged rights of the unborn child.

No, no, no, it does not. The courts had nothing to do with it. It was the legislature that passed the law.

If the legislature passes a law prohibiting the cutting of old-growth trees, does this mean that the legislature has "recognized" the rights of trees?

So in point of fact, Black's completely misstates what the California law does. That law in no way supports the statement "The rights of an unborn child are recognized". The California legislature has decided that it has some interest in fetuses that it has chosen to protect by prohibiting the killing of SOME fetuses. If it were "recognizing" the rights of fetuses, it could hardly say:

(b) This section shall not apply to any person who commits an act
that results in the death of a fetus if any of the following apply:

(1) The act complied with the Therapeutic Abortion Act, Article 2 (commencing with Section 123400) of Chapter 2 of Part 2 of Division 106 of the Health and Safety Code.
(2) The act was committed by a holder of a physician's and surgeon' s certificate, as defined in the Business and Professions Code, in a case where, to a medical certainty, the result of childbirth would be death of the mother of the fetus or where her death from childbirth, although not medically certain, would be substantially certain or more likely than not.
(3) The act was solicited, aided, abetted, or consented to by the mother of the fetus.

If it recognized the rights of men, could it say that it was okay to kill a man as long as he was wearing white socks?

Also, under “Viability, it says in part, “…That stage of fetal development when the life of the unborn child may be continued indefinitely…”

A lot of people are fond of citing "science" and "medicine" when saying that (some) fetuses are human beings. I wonder why no one would take issue with that silly statement.

No one knows whether the life of any fetus "may be continued indefinitely". No one, in no case. It happens all the time that fetuses die before birth or fail to survive birth, even when they were "viable". NO fetus can ever be said to be viable; the best any fetus is, is hypothetically viable -- and if it survives birth, then we know it *was* viable.

I won't be relying on Black's for my scientific/medical info.

All of these tell me that a fetus is considered a “human being” with a “human life.”

Well, your premises are a big old dog's breakfast, as we have seen -- not a single one of them being accurate, and so they offer no assistance for your conclusion. This, of course, does not make your conclusion incorrect, it just means that you haven't presented a sound or valid argument for it.

(I'm a dud as a philosophy major; I can never remember which is which. Invalid argument: premises are true but do not support the conclusion, i.e. are irrelevant. Unsound argument: premises support the conclusion but at least one premise is false.)

I don’t believe that the act of birth is, or should be, the legal line for when the unborn child gets a life.

I can see you're trying ... but for this to be a useful statement in argument, the "belief" has to be a conclusion based on true and relevant premises.

[joshcryer]

52. It's called infanticide...

...western countries have to distance themselves from such barbaric practices. Humans are one of the few mammels who no longer do the practice (or at least their society has laws against it).

If you support, say, killing a perfectly viable fetus at 7 months, in a mother who is going through an expected, normal, pregnancy, then you support infanticide. You could just induce labor and have a living breathing human being. Of course, that would be unhealthy as women should go through a natural pregnancy.

6 months is the grey area because we have been able to keep fetuses alive at that point.

[Justitia]

53. No, anti-choice zealots like YOU call it that. Speak for yourself. -eom

[joshcryer]

56. I had plenty of "pro-choice" people in another thread calling for...

...doctors not allowing late term abortions if the mother and fetus was perfectly healthy.

I'm pro-choice.

I'm not pro-killing-viable-fetuses-instead-of-aborting-6-months-earlier when the mother and childs health is perfectly within norms.

[Justitia]

57. So, you are still for forced birth. That's hardly "pro-choice".

"Late-term" in most states is 2nd trimester - IOW, 13 weeks.

No matter how you parse it, you still believe a woman has less control over her own body than a fetus whose "viability" cannot be determined at any point prior to actual birth.

Sorry, I believe the only legitimate authority over a woman's body rests with that individual woman.

Period.

[joshcryer]

58. 13 weeks is too early, The American Journal of Medicine places it at 20.

22 weeks is the earliest we have been able to maintain a premature birth. The technology is getting better and better. 28 weeks is third trimester and almost all premature births at this stage are viable. My brother was born at 28 weeks. And this was almost 30 years ago.

20 is a good metric because it is beyond the grey area of technology.

D&E induces labor in cases, especially the further along you go. So you're giving birth anyway. Only to a dead fetus.

I would support the 13 week limit being raised to 20 weeks (no limit for abnormal health concerns). But I am not going to look at this as a black and white issue. If a fetus can survive outside of the womb and you are killing it to get it out of that womb, you are committing infanticide. If you cannot understand this simple line of reasoning then you are for forced murder.

Some people were saying doctors won't give a woman an abortion after 20 weeks in another thread I was in (again, American Journal of Medicine point of viablity), unless the mothers life was at stake.

[iverglas]

59. stick a fork in "viability"

22 weeks is the earliest we have been able to maintain a premature birth. ... 20 is a good metric because it is beyond the grey area of technology.

There has never been and will never be a successful birth at 20 weeks. Not until we have perfected that robot uterus thing, and then we wouldn't be calling it a "birth".

Do you have a clue what the survival rate at 22 weeks is?

http://www.bma.org.uk/ap.nsf/Content/AbortionTimeLimits~Factors~viability

Summary of outcomes among extremely preterm children

Outcome. . . . . . . . . . . . . 22 wk.....23 wk.....24 wk.....25wk
. . . . . . . . . . . . . . . . . . . . . .Number (per cent)

Died in delivery room ...........116 (84)...10 (46)...84 (22)...67 (16)
Admitted for intensive care.......22 (16)..131 (54)..298 (78)..357 (84)
Died in NICU......................20 (14)..105 (44)..198 (52)..171 (40)
Survived to discharge..............2 (1)....26 (11)..100 (26)..186 (44) <<<<<<
Deaths post-discharge..............0.........1 (.4)....2 (.5)....3 (.7) <<<<<<
Lost to follow-up..................0.........3 (1)....25 (7)....39 (9)

At 6 years of age:
Survived w/ severe disability......1 (.7)....5 (2)....21 (5)....26 (6)
Survived w/ moderate disability....0.........9 (4)....16 (4)....32 (8)
Survived w/ mild disability........1 (.7)....5 (2)....26 (7)....51 (12)
Survived w/ no impairment..........0.........3 (1)....10 (3)....35 (8)

2 out of 158 fetuses delivered at 22 weeks were "viable" -- in hindsight. The other 156 weren't "viable" -- in hindsight -- given as how they died.

2 out of 158 is under 1.3%.

186 out of 784 fetuses delivered at 25 weeks where the outcome was known survived to discharge: under 24%. 109 of 144 checked at 6 years had disabilities.


http://www.stillnomore.org/faq.htm

Stillbirths are as random as raindrops, occurring for no apparent cause even in the case of mothers who lead a healthy lifestyle during pregnancy. Most late and full term stillborn babies are born to mothers who experienced no problems with their pregnancy, who were healthy, and who led substance-free lifestyles. Rarely is a stillbirth caused by something the mother did. Until better data is available, and until autopsies are routinely offered to all stillbirth families, the causes, and thus, any new risk reduction measures, will continue to elude doctors.

http://news.bbc.co.uk/1/hi/health/6588377.stm

Tuesday, 24 April 2007, 22:40 GMT 23:40 UK

Stillbirth numbers not reducing
A third of stillbirths occur at the end of pregnancy

Just over one in 200 pregnancies ends in a stillbirth, a figure which has remained unchanged since the early 1990s, a survey has revealed.

Stillbirths are deaths of unborn babies after the 24th week of pregnancy. ...

... Stillbirths declined steadily from the 1950s to the 1990s. Since then, there has been some success in reducing the number of stillbirths in multiple pregnancies, and in babies born prematurely, but the incidence in singleton pregnancies has remained level.

... Overall, the stillbirth rate was 5.5 per 1,000 births. A third of stillbirths occurred when a baby had reached full-term. For women under 20, the rate is 6.6 per 1,000 and for those over 40 it is 7.2 per 1,000 births.

... In over 50% of cases, doctors do not know why a baby is stillborn, although there is a theory that many of the cases could be linked to a baby failing to grow properly in the womb. Known causes of stillbirth include congenital malformations, where a baby's brain, heart or other organ have failed to develop properly; maternal haemorrhage; or asphyxiation during childbirth.

Now tell us again ... which fetuses are viable?

So 1 in 200 women forced to continue a pregnancy will deliver a dead baby/fetus (and that's not counting miscarriages before 24 weeks). In 1 in 200 cases of "viable" fetuses, oh look -- the fetus wasn't viable.

I don't think I want to rely on your crystal ball to decide when or why a woman may exercise her rights.

[joshcryer]

60. Your very stats destroy your argument.

One more week viablity goes up almost exponentially. A week after that it almost quadruples. You're walking a very fine line of murder here. Is 1.3% excusable for murder?

This proves that fetuses are viable at this early stage, and as technology improves the stats will undeniably go up.

No one has a right to kill another human being.

[iverglas]

61. you are ignorant and nasty

and I suggest you take your ignorance and nastiness and go home.

I would suggest that you take your ignorance and make an effort to turn it into enlightenment, and your nastiness and turn it into goodwill, but I know it would be pointless.

Meanwhile, I'm done talking to teenaged boys about women's rights.

[joshcryer]

63. How am I being ignorant or nasty?

Is it so bad that I would prefer there not be a question of vialibty? Your stats show that viablity is an issue at that time level. I think you'd prefer the issue not even be a question.

[uppityperson]

68. abortion is murder, infanticide. I'd call that ignorant and nasty.

[Justitia]

62. well, I guess it's a damn good thing it will never happen to YOU, huh?

But you go ahead and feel all superior lording your OPINIONS over women who have nothing to do with YOU.

Your opinions are less than worthless.

[joshcryer]

64. I am here to provide constructive debate...

...not take away choice from women. I highly doubt the vast majority of sane women would say that evacuating a perfectly healthy fetus at 7-9 months with a perfectly healthy pregnancy is a "womans right." It's only people like iverglas who seemingly think that women should have that right. I merely suggest we push the date of viablity back to scientific measures that way no one, not even me, can come into the debate and make any arguments at all.

I'm helping the case, not hurting it.

[Kool Kitty]

65. I think that perhaps a good "rule of thumb" would be

that unless you were intimately involved with the woman who was pregnant and were indeed the procreator, it's really none of your business. And it's not the government's business, either.

[joshcryer]

66. I find it unlikely that many here would even consider it my business...

...if I was the procreator, actually. This is more about myself not associating with those in society who would perform such drastic procedures with no rhyme or reason other than it's "their right."

Mind you we're not talking about medically necessary procedures here, we're talking about perfectly healthy pregnancies in a late stage.

If you expect me to associate with profiteering doctors or associate with those who do, then that's just not how society works. If my friend 6 years ago got a late term abortion on her beautiful little daughter (with the very healthy pregnancy and fetus that she had) you can bet you I would've simply never talked to her again.

[Kool Kitty]

67. I don't expect anything of you, associate with whomever you

please. I just don't think that what I choose to do with my reproductive matters is not any of your business.

[joshcryer]

69. I don't want to know about your reproductive matters.

But I don't see anything wrong with wanting to know doctors' practices.

[Kool Kitty]

70. Then take this up with doctors.

If you have a problem with the medical profession, take it up with them. Your posts don't seem to show that.

Oh, no. I just read your post about the meanness and hatred on some of these threads. I hope I didn't add myself to the list of flamers. Really. If your problem is with doctors, you should say that more clearly, because that isn't the way it is coming across.

[joshcryer]

71. Doctors tend to have to adhere to regulations.

I would wholeheartedly have those regulations lifted greatly, and would hope that the doctors adhere to American Journal of Medicine guidelines about viablity. Then I could have a system that I could respect on a moral and scientific basis. I just wish others could respect that, too.

[JetCityLiberal]

72. No you are not helping the case and you know it

there is NOTHING constructive about the right wing viability bullshit you spew.

It is NONE of your fucking business EVER.

Keep on disrupting with your 'constructive debate' bullshit.

You are not pro choice. Period.

[iverglas]

83. ah, there you are

I was just advising you elsewhere to read the post to which you have responded to here ... forgetting that you had posted this, and that I had deemed it unworthy of response.

Still no evidence that you read the post you purported to respond to, of course, let alone began to grasp what it was about and what it said ...

[Mr. Blonde]

73. I would say it is

Like others have said society acting through the state. While the state exactly may have no interest in a woman's pregnancy, society does. A society has to continue, and so far pregnancy is the only way to achieve that goal.

Society is enforcing its demand to continue on the people.

[iverglas]

74. yes, well

Like others have said society acting through the state. While the state exactly may have no interest in a woman's pregnancy, society does.

This has been addressed in the thread, you see.

"The state" is the form a society takes for the purpose of making and enforcing rules. The state represents the collective interests of the society, and is also responsible for protecting individual interests, in our conception of the state in a liberal democracy.

While the state exactly may have no interest in a woman's pregnancy, society does. A society has to continue, and so far pregnancy is the only way to achieve that goal.

Yup. I'm not sure whether I've said in this thread, but I'm pretty sure that if we were living in a nuclear winter, and only 1% of women were able to conceive, and only 1% of pregnancies could be successfully carried to term, I would support legislation prohibiting abortion. I do hold "perpetuation of the species" as a value. Just because. Others might not, and I wouldn't have much to offer to win the argument. One argument they might make is that a species that compels women to assume the risks and accept the loss of liberty involved in pregnancy isn't worth perpetuating. Who am I to say?

Society is enforcing its demand to continue on the people.

Now, since this is not a nuclear winter, and there is no shortage of fertile women or children produced by them, I'm failing to see a compelling state interest in forcing women to continue pregnancies and bear children, just at present.

So this really does not amount to justification for interfering in the exercise of women's individual rights just at present.

What it does do, and why I usually offer up my nuclear winter scenario, is show that there is a point at which almost everyone would agree that the state is entitled to interfere in the exercise of reproductive rights. Just as there is a point at which almost everyone would agree that the state is entitled to interfere in the exercise of free speech rights.

The point being that the point that is chosen, for limiting the exercise of any right, has to be justified. And since we have not reached the point where the human species is in danger of extinction (and in fact are at a point where over-reproduction, not under-reproduction, would provide much better justification for interfering in the exercise of reproductive rights), the state's interest in perpetuating the species just doesn't justify any such interference at all.

[Mr. Blonde]

75. I wasn't speaking of

the species as a whole, but our society in particular. There are a number of ways of life I would prefer didn't envelop us and become the dominant society and way of life. And without nuclear winter we are just barely hanging in at the replacement rate. Now if we actually need 300 million people in this country is another discussion.

This, I think, is why people find a state interest in pregnancies. To some people it wouldn't take a nuclear winter to end our society just enough women not having children to make us too weak to fight off enemies. Notice how well this fits in with our already more war-like countrymen.

Their nationalism is what aids them in finding this state interest. And while this is the most emotionally charged issue where the state interest is in doubt, there are certainly others. The more dominant ideology of the time (or at least on the SC) can find a state interest to justify their meddling when they want it. It may not be right, but until the dominant ideology changes it will be accepted as that way. I'm sure there used to be a state interest in separate but equal. Unfortunately changes in public thought take time, but eventually this battle will be won too.

[iverglas]

76. oh well then

There are a number of ways of life I would prefer didn't envelop us and become the dominant society and way of life. And without nuclear winter we are just barely hanging in at the replacement rate. Now if we actually need 300 million people in this country is another discussion.

I see. So the state, in the US, has an interest in ensuring that its population is perpetuated by births, rather than by immigration. (Leaving aside, as you say, the entire question of whether there is any need, let alone justification, for the US to have a population of 300 million.)

Well, I say no. And I say that anyone who says yes is obviously, well, any number of a number of unpleasant things.

But in any event, I say that the state, in the US, could not prove that it has sufficient interest in ensuring that its population is perpetuated by births, rather than by immigration, to override women's interest in not assuming the risks to life and accepting the limitations on liberty that are inherent in pregnancy when they don't want to. Women simply are not brood mares for the "ways of life" that some people happen to prefer.

This, I think, is why people find a state interest in pregnancies.

No, really, I don't think it is. It certainly isn't a reason that many people state out loud, anyhow.

To some people it wouldn't take a nuclear winter to end our society just enough women not having children to make us too weak to fight off enemies. Notice how well this fits in with our already more war-like countrymen.

Well, I'd prefer to leave it to the more war-like countrymen and countrywomen to voice their own alleged justifications for rights violations. I have no problem inferring the plain evil implications of nicer-sounding things they say, but I'm not finding this particular implication very plain from what they do say.

Their nationalism is what aids them in finding this state interest.

And if they choose to voice it, or plainly imply it, I'll address it. But what I was really asking for here was people's own statements of what the state's interest in women's pregnancy is, so as to justify their own support for whatever interferences in the exercise of women's rights they may approve of. (Or just a coherent statement of the state interest found by the Roe Court to exist, and the reasons why it is compelling.)

The more dominant ideology of the time (or at least on the SC) can find a state interest to justify their meddling when they want it. It may not be right, but until the dominant ideology changes it will be accepted as that way.

The problem here is that the US Sup Ct hasn't actually managed to find such a state interest in this case; that was what I was trying to explain in my initial post. The Court asserted the interest (on behalf of the State of Texas), and claimed to find that interest compelling at a certain point, but it just didn't ever say what that interest was or what made it compelling.

Unfortunately changes in public thought take time, but eventually this battle will be won too.

My whole aim here is to arm the side of right. When you're fighting something, you need to know what it is -- and what you're fighting for, and why.

What is being fought for here is women's right to make reproductive choices without state interference unless it is justified. Just as, in your "separate but equal" example, what was being fought for was the right of people of colour to attend the schools of their choice, etc., without state interference unless it was justified.

From a quickie google:
http://classes.lls.edu/archive/manheimk/114d3/echarts/frames/eqpro3x.htm

2. Race - Legislation that classifies according to race must further a compelling state interest and must be the least restrictive means. However, rarely will a compelling state interest be found valid. For example, in almost all cases, the underlying interest is white supremacy.

That kinda nails it. And "white supremacy" is *not* a legitimate, let alone compelling, state interest.

The sort of interest claimed in the case of pregnancies usually isn't as nasty as "white supremacy", certainly. But that doesn't make it real, let alone compelling.

[lukasahero]

77. Wow - so should society be able to force me to have a child?

"To continue on the people"? I'm childless by choice - should society execute me or just banish me because I'm not living up to my expectations as a woman? Given your rationale, if society can force women to not have abortions, what is to stop it from forcing women to have children?

"Handmaid's Tale" here we fucking come... Good god.

[HockeyMom]

78. Lebensborn?

Children for the Fatherland, er, State.

What it makes me think of.

[iverglas]

79. Indeed, eh?

I forgot that I'd already addressed this, er, argument, in post 30.

One_Life_To_Give:
Also the state could site the needs of the labor force as we require immigrants to fill jobs presumably because we are not producing enough offspring.

Me:
Good lord. Heil One_Life_To_Give. Kinder Küche Kirche. Barefoot and pregnant, and cover your head in church, women.

Okay, yes, I guess you're right. The state could assert that interest, and legislate to protect it. And obviously the state would be being governed by Adolf Hitler and his gang. Immigrants (who are not in short supply) aren't good enough; we need little 'murrican babies. Yeesh.

Tell me you don't think it could validly cite such a thing.

And I really haven't been asking what "a bunch of fundie lawyers" might come up with, which was what the next response in that exchange was about, or what specious argument a government might offer to justify gross interference in women's rights, to the detriment of women. I've been asking what DUers might think the Roe Court was talking about when it asserted that the state had an interest in fetuses/pregnancies, and/or what interest DUers might think the state has in fetuses/pregnancies and whether/when DUers might think such an interest is sufficiently compelling to override women's rights ...

[HockeyMom]

80. Again, the argument in Griswold

The State had an interest in births even BEFORE they were conceived, i.e., crime to give out birth control information to married couples.

Absolutely absurdity given the fact that I am an only child (by choice) born in 1948. Married couples knew FULL WELL for decades about birth control, and PRACTICED it.

People really need to know that it is not just Roe and abortion that is being attacked, but Griswold and birth control also.

[iverglas]

81. some of us who were there, even

You and I were both unable to buy contraceptives legally at an age when we could have needed them. The big-busted girl down the street from me, in high school, was rumoured to have got a prescription for the pill "to regulate her periods". I developed an interest in such things not long after it stopped being a crime in Canada to exercise prudence when doing them -- the Criminal Code was amended in 1968.

In 1972, four of us got a friend with a VW van to drive us to Buffalo to get a newfangled thing that Dr. Lippes was offering: the copper-T IUD, not yet approved in Canada. US customs officer sees VW van driven by classic mustachioed guy with headband in rumpled army jacket, with four women passengers who repond to question of why they are travelling to the US by saying "to see a doctor". Are you sick? he asked. No, we said. What's wrong with you? he asked. Nothing, we said. He gave up and let us in. I realized afterward he figured we were going to NY state for abortions, which had recently been decriminalized there.

I had been taking the pill at that point, and didn't like it. But imagine if that were the sort of thing one had to do, to get *any* birth control. Bad enough I had to submit to the questioning of the campus clinic doctor wanting to know whether I was married, had a steady boyfriend, blah blah. When I inquired as to why he asked, he said it was because it wasn't good to be on the pill for too long, so I said he should really just say that. I was 17, and had long since stopped putting up with shit.

Griswold is in the best tradition of old judgments -- short.
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0381_0479_ZO.html
It isn't clear from the reasons exactly what interest the state was claiming to have, and to be advancing by prohibiting the provision of contraception.

It has some tidbits for the strict constructionists among us, though:

The association of people is not mentioned in the Constitution nor in the Bill of Rights. The right to educate a child in a school of the parents' choice -- whether public or private or parochial -- is also not mentioned. Nor is the right to study any particular subject or any foreign language. Yet the First Amendment has been construed to include certain of those rights.

Nor is the right to eat pizza, and yet somebody thinks a government could validly prohibit it ...

In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion. In like context, we have protected forms of "association" that are not political in the customary sense, but pertain to the social, legal, and economic benefit of the members. NAACP v. Button, ... In Schware v. Board of Bar Examiners, ... we held it not permissible to bar a lawyer from practice because he had once been a member of the Communist Party. The man's "association with that Party" was not shown to be "anything more than a political faith in a political party" ..., and was not action of a kind proving bad moral character.

Someday, the strict constructionists may just be glad to have these penumbral protections. Not that right-wingers are likely ever to be in need of protection from somebody trying to persecute them for associating with Republicans ...

[uppityperson]

82. Indeed. I was at the end of no bc for unmarried women, no legal abs unless had money.

There are a lot of people born since then that just do not understand what it was like, do not understand how it could be again. MrUP is a few yrs younger, grew up where legalized abortions and contraception were available and even he sometimes surprises me in his attitudes. Also, many people do not understand the interpretation of the law, precedents, interpretation of legislation, biases, in making Supreme Court Rulings.

Then you add abortion rights are not a simplistic issue and things get really complicated. Sometimes I feel old, sometimes tired watching and reading and listening to all this and want to yell "you just don't understand". My mother became an avid pro-choicer her last yrs, told me while she wished no one ever had to have an abortion, she was going to contribute money and energy into making sure it was kept legal.

[DemBones DemBones]

84. The state's interest is in preventing the killing of human beings

before birth, just as it has an interest in preventing the killing of human beings after birth.

We forbid cruelty to animals and are outraged when someone drowns a litter of kittens or shoots a dog but we accept the destruction of 1.6 million unborn human babies every year. There is something wrong with this picture.

Since abortion was legalized in the U.S., we have more child abuse, more domestic abuse, more divorce, more children born out of wedlock and more teenage pregnancies. We also have more incivility and less empathy for others, especially among the younger generations who've grown up knowing about abortion, knowing their mother could have killed them, and that a third of their generation was killed by abortion.

We also have an incredible number of people who believe the pro-abortion propaganda that abortion just destroys "a bunch of cells," or "a blob" or even "a scab." People also often claim that skin cells are alive just like an embryo, which is completely false.

Pro-lifers don't want women to die. A pregnant woman who needs medical treatment that may kill her unborn baby certainly has a right to receive the treatment. A cancerous uterus could be removed, for example, before the baby is viable, if that was necessary to save the mother's life. Ideally, both lives should be saved but that's not always possible. In ectopic pregnancies, it's very, very rare for the baby to be able to survive beyond 2-3 months and the mother's life is endangered so the baby must be removed.
There are times when a baby must die in order to treat the mother. But choosing to deliberately kill unborn humans is a different matter.

The time for "choice" is before having sex.

Choose to use barrier methods (condoms, diaphragms, contraceptive sponges) and spermicide every time you have sex. No "Let's skip it, just this once." Or choose to use oral contraceptives but be aware that you must use a back-up barrier method and spermicide if you miss a pill or two, or when you take antibiotics. I would not advise choosing an IUD because so many women whom I know personally have conceived with IUDs properly in place. No woman I've ever known has conceived on the pill or using a barrier method and spermicide unless she missed a pill or two or she and her partner chose not to use contraceptives a time or two,

[Scout]

85. nice anti-choice rant, however you have not said what the state's interest IS...

simply spewed your opinion that the state does have an interest...

[musette_sf]

86. after seeing some of the posts here this AM

i am SOOOOOOOOOOOOOOO glad we have the pro-choice group.

[Control-Z]

87. You took the words

right out of my mouth. Thank you!

[iverglas]

88. Please Leave Anti-Choice Views

at the DUoor.

placv ... it can stand for so many things. (In joke, folks; my interlocutor knows.)


The state's interest is in preventing the killing of human beings before birth, just as it has an interest in preventing the killing of human beings after birth.

Damn. That's just fascinating. I guess youve settle it. If only you'd understood or addressed the actual question, of course, you might have made a worthwhile contribution to the discussion.

I wonder what the state's interest in human beings after death is now. Must be quite similar to what its interest in human beings before birth is. Perhaps you can enlighten us. I'm interested in knowing how my rights can be protected once I'm dead.

[Katherine Brengle]

92. From my own observations, it seems the state is quite comfortable with

killing fully grown humans.

[foxsux]

90. To answer your original question, sort of.....

I am also interested in the state and abortion rights as a choicer. It's been
argued for so long that abortion should be up to the states. If that happens with an overturn of
Roe, I want to be ready. I'd like to have state amendments passed protecting choice or something else protecting choice on a state level. The anti-choicers are trying to get the state to back their
ideas. I think choicers should as well.

[defendandprotect]

91. Let's look at the VATICAN's interest . . . and they're recognized as a state -- !!!!

The last pope -- about four years ago went before the Italian Parliament and called for them to make Italian women have babies -- !!!!

Basically it came down to his concern for corporate labor --

I'll see if I can find the article again --

Edited:
There are a number of articles on this --
None I've seen in a quick scan as telling and frank as what originally appeared --
The Pope was calling on the government to make Italian women have more babies -- !!!

Nor was he suggesting that his motives were for the sake of "family" or anything else we might identify with. He was concerned about population growth/capitalism, basically --

This is all I can find right now . . .

Pope visits Italian parliament, calls for Italians to have more children. (The Church and State).(Brief Article)
From: Conscience Date: December 22, 2002

POPE JOHN PAUL II MADE the first ever speech by a head of the Catholic church to the Italian parliament, and used the opportunity to call on Italians to have more children. Included in his 45-minute speech were comments on the central role of the family, and a description of the Italian birth rate--one of the lowest in the world--as "another grave threat" to their future. Some Italian lawmakers boycotted the visit, arguing that it undermined the ...
http://www.highbeam.com/doc/1G1-97173459.html