South Dakota May Be Banning More Than Abortions
Ronald Bailey | February 27, 2006, 12:07pm
South Dakota's legislature made headlines last week by passing a statute that would essentially ban almost all abortions in that state. The bill's supporters are taking direct aim at the Supreme Court's Roe v. Wade decision that found that the constitutional right to privacy permitted women to control their reproductive lives including having access to abortions.
However, no commentators have looked at what other aspects of human reproduction that the bill might provoke the Supreme Court to rule on. For example, the bill defines "unborn human being" as an "individual living member of the species, homo sapiens, throughout the entire embryonic and fetal ages of the unborn child from fertilization to full gestation and childbirth; and "fertilization" as "that point in time when a male human sperm penetrates the zona pellucida of a female human ovum."
Prolifers on the Supreme Court (whoever they may be) could use this bill as an excuse to rule that all fertilized human eggs are people. Such a ruling would criminalize human embryonic stem cell and cloning research.
On a somewhat less consequential front, this bill would also seem to outlaw in vitro fertilzation in which not all embryos are implanted in a patient's womb. To get around this problem, the bill might be interpreted to require that all embryos produced by IVF be implanted even if they are genetically defective.
Additional Thought: Perhaps cloning would be OK because it doesn't involve human sperm. Does that mean that South Dakota legislators believe that a clone would not be human?
Captain Holly | February 27, 2006, 2:21pm | #
I'll give you another Inconvenient Fact, Captain Holly.
I'm a Republican.
I'm a conservative. And a pro-lifer, too.
And I will freely admit that this law makes no sense whatsoever as a political or a legal strategy. It's doomed from the start, and I can't see how it will do anything other than waste energy and time.
The only reasonable explanation I can come up with is that this law is the result of a bunch of state legislators trying to "out-life" each other during an election year in a pro-life state.
But whatever the reason for it, the "evil right-wingers" weren't the only ones supporting it.
So are lots of supporters of embryonic stem cell research, in the House and Senate. Just not quite enough.
In other words, they're in the minority. Want to change that? Convince the politicans -- or the voters who elected them -- that they're wrong.
Talk to someone whose kid is going blind from type-1 diabetes, though, and then we'll talk about hysterical.
Yes, but can you name one treatment produced by embryonic stem cell research that will cure that child? Or restore his sight?
You can't, because there isn't one, at least not yet. And therein lies the rub. Embryonic stem-cell research might indeed lead to miraculous cures. Or it might be a complete bust. There's no tangible benefits yet, only potential ones.
But to claim that persons who oppose it are "among the worst people in history" and are "Stupid. Irresponsible. Evil. Cowardly." and that any impediment to SCR is "going to kill alot of us" is just pure hysteria in my book.
It's something akin to what a snake-oil salesman of the 1800's would have said.
Or what a modern tobacco prohibitionist would say.
AML | February 27, 2006, 2:32pm | #
This is what the debate needs to be about.
Actually, no it doesn't. The where-does-it-begin question is largely unresolvable. I presented an argument a few minutes ago about where it sure as hell isn't - i.e., you ain't no full fledged human bein' without no brain - but the question of where IT BEGINS will always have a largely arbitrary answer. A good buddhist might say 40 days after conception, our puritan ancestors might say at point of quickening (generall 17-20 weeks, when the mother feels the fetus begin to move), and today we say (legally), birth. But there is no real answer because biologically, there is no sharply demarcated cut-off. Even South Dakota's answer has biological problems. The egg does not actually complete division until it has been penetrated by a sperm, and so at the point in time where the sperm first enters, the fertilized egg actually has an extra set of chromosomes - it's triploid. A third of the DNA at SD's moment of fertilization will have to be dumped. It's hardly a point of genetic completion.
To paraphrase my favorite philosopher, most problems in philosophy are actually problems of language, and this one is no different. In daily life, you and I do not interact with half-persons or seven-tenths persons - we know only whole persons and non-persons. Consquently, our linguistic concept of personhood is not adapted to dealing with shades of grey, so when confronted with questions of when personhood (in the non-legal sense) begins, we keep looking for an absolute moment, a switch to be flipped, the light to come on, the soul to spring into being. But the reality of the world does not have to match the constraints of our language or thought. My linguistic concepts for "particle" and "wave," for example, at not compatible, but such things as simultaneous wave particles do exist in the real world. The problem, dear Brutus, is not in our world but in ourselves.
However finely we try to cut, there will never be a clear point for personhood to begin, at least in the physical sense, and all such strong cut points have an edge of wacko mysticism to them (the sperm carries the soul into the egg!). We should find a practical cut point that takes into account the fact that there will always be demand for abortion, that banning it is going to be no more effective than banning sex, and that stem cells have the potential to offer tremendous good to unquestionably personny persons. There are no answers in biology.
Mr. F. Le Mur | February 27, 2006, 5:55pm | #
The critical question is not when you get a new human but when you get a new person.
The Nazis used similar verbal tricks in their (perfectly legal!) dealings with the Jews and Poles.
http://dictionary.law.com/
person
n. 1) a human being. 2) a corporation treated as...
My question to you is, if you make fertilized ova persons with all pertaining legal rights and privileges, what happens with miscarriages? Are they to be investigated? This is a very common event. What happens?
It doesn't matter.
Do you ban the pill? The pill works principally by preventing ovulation, but in some percentage of cases it simply prevents implantation of a zygote.
Does anyone have an obligation to provide a zygote with a place to implant itself?
Do we prohibit breeding-age women from engaging in these activities in order to protect fetuses? If fetuses are persons, we don't have a choice, we will have to make such prohihitions.
I don't see that it follows.
However for anyone who thinks a fetus has rights I would like to see them answer these questions.
Does a fetus have rights?
If it's a human, and *if* humans have rights, yes.
Does a potential mother have rights?
See above.
Does the rights of the fetus outweigh that of the potential mothers and why?
A good question, and one which applies to many forms of human interaction, such as why should I have to put up with an inconvenient neighbor when I can just kill him? After all, he might do something that'll contribute to me becoming paralyzed in the future.
And FLM, the fact that embryos are counted as persons due to pro-lifer pressure, not pro-choicers.
Actually they're not "counted as persons" except in special circumstances.
Although Mr. Le Mur would certainly disagree, there’s a good case for abolishing paternity suits, which oppress men in the same way that laws against abortion oppress women.
I agree that paternity suits should be abolished. Family courts should also be abolished.
Ignoring the parenthetical nutcasisms, I think it's at least sensible to point out that human life has, like most things, neither a firm beginning nor a firm ending.
Heh. Someone's getting close!
Perhaps these questions don't really have suitable answers because:
- we really don't yet know enough about "life" to define what it really is, and far more importantly;
- people who can't, or won't, enforce their rights by force don't have any rights.
Fetuses and the brain-dead can't protect themselves, so they're up for grabs. 'Tis pretty damned simple. Think "sociobiology."
I love yanking peoples' chains on this issue because most pro-abortion people and their self-serving doubletalk are damned lame to the point of being simple minded.
Bonar Law | February 27, 2006, 10:06pm | #
"I've always wondered... are there any pro-life atheists?"
Yes, there's Libertarians for Life; see a list of their literature at
http://l4l.org/library/index.html
From the discussion of the group's founding:
"In 1976, when she became pro-life, Doris Gordon founded Libertarians for Life 'because some libertarian had to blow the whistle.'
"As libertarians, LFL's interest in the abortion debate is in everyone's unalienable rights. LFL's reasoning is philosophical, not religious. Some LFL associates are religious; *others, such as Gordon, are atheists*." [emphasis added]
This thread has been very educational, since I learned that the bill in South Dakota specifically would *not* (a) make birth control a crime, (b) put mothers in prison for miscarriages (or even for abortion), (c) punish doctors for normal medical procedures which inadverdently kill an unborn child, (d) inaugurate a Protestant Reign of Terror. This is reassuring, given some of the (how shall I say) strong language denouncing the bill.
Even if the Supremes end up striking down the bill, there's the chance that it will do so by a narrower margin, thus sending the message that *Roe* is not sacred. The original *Roe* decision was 7-2. *Casey* was narrower. Even after Justices White and Rehnquists -- the dissenters in 1973 -- were replaced by pro-abortionists, there are still dissenters, whose ranks may have been swelled by Roberts and Alito. This means that the Court might go from 7-2 to 5-4, which could send the message that overruling the decision is still possible.
*Plessy v. Ferguson* (as one of the sponsors noted in the article) was passed in 1896 -- starting in 1938, the Supremes chipped away at it without overruling it. In 1954, the decision was *de facto* overruled, and it was overruled *de jure* shortly thereafter. It took over half a century, but the case was overruled. *Roe* is younger than *Plessy,* and it's more beleagured than Plessy was when Plessy was the same age.
So of course it's worth constantly taking the case to the Supreme Court until they get it right!
Akira MacKenzie | February 27, 2006, 11:37pm | #
Exodus 21:22-25 KJV
Ah, typical Fundie tactic; cherry pick the Scriptures to find excuses for your mixed up logic as if The Bible was any sort of authority on anything. What's worse, you cleverly edited the quote to make it seem that the punishment for causing a miscarriage was death. It wasn't:
"And if men struggle and strike a woman with child so that she has a miscarriage, yet there is no further injury, he shall be fined as the woman's husband may demand of him, and he shall pay as the judges decide. But if there is any further injury, then you shall appoint as a penalty life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise."
Exodus 21:22-25
The only penalty for death is if the
mother dies in the attack. The ancient Hebrews may have treated women as chattle, but at least they knew that they were necessary to make future ancient Hebrews, thus the harsher penalty. On the other hand, if the woman miscarries, then the man only has to pay a fine.
If the Laws of Moses are divinely inspired and the Christian God vehemently disaproves of abortion, then why tell Moses to let the man off with a slap on the wrist as oppose to being executed? Could it be that the so-called God of Abraham doesn't really care about a fetus?
Or, it's a bullshit law that reflects the property model of male/female relations of a barbaric nomad culture?
I wonder which it is.
DB | February 28, 2006, 2:52am | #
I direct your attention to the Bill of Rights of the Constitution of the United States?
The Constitution makes no mention, implicitly or explicitly, of a right to privacy.
You may be interested in Amendments IV
... which mentions no right to privacy, and deals with the permissible penalties and procedures of criminal justice, which have no bearing on the abortion issue.
[Amendment] X
... which, the Constitution not giving the federal government the power to regulate matters of abortion, leaves the abortion issue in the hands of the states...
and [Amendment] IX
... which no more protects the "right to privacy" than it protects the "right to commit rape", the "right to steal", or the "right to murder". Remember, ALL laws violate what some people consider their right. The Ninth amendment says "if you have a right, we're not taking it away" -- not "you have every right you think you're entitled to". There was no "right to private use of your own body in the manner of your choosing", then OR now, that was recognized either by the public or by the courts.
This is, of course, all moot, because even if the Constitution did protect a right to privacy, the right to privacy does not equal the right to an abortion. The right to privacy doesn't, for example, give me the right to murder somebody in my basement and say "what I do in my house is my private business". The right to privacy only protects abortion if it is given that fetuses have no rights of their own.
That's what is really shocking about Roe vs Wade -- not that the court found a spurious "right to privacy" that it has studiously ignored in far-more-applicable situations (drug use, prostitution, etc), but that the court arrogated to itself the power to find that a class of organisms the legislature had declared to be human were, in fact, NOT human and not entitled to any rights at all. If some future court takes it upon itself to declare that women aren't people and thus aren't entitled to Constitutional protects, what exactly are Roe supporters -- having granted the Courts the power to make such declarations -- going to use to argue that the Courts are wrong? It's not like there isn't plenty of precedent, going back thousands of years, for treating women as less than fully human.
Is it not possible to believe in a right to privacy and still wish to outlaw abortion?
It is possible to believe in a right to privacy and recognize that the Constitution doesn't protect it, and to believe that abortion should be legal while realizing that the process which MADE it legal was flagrantly undemocratic and unconstitutional.
DB | February 28, 2006, 11:46pm | #
--"The Constitution makes no mention, implicitly or explicitly, of a right to privacy."
Thank you for the selective reading. Note the "Bill of Rights" segment of the comment. I'll repeat Mark's comment about implicitly.
It is ironic that you criticize my "selective reading", given that I specifically addressed the Bill of Rights in the post you're quoting. And incidently, the Bill of Rights, like all amendments, is part of the Constitution. So when I say "the Constitution doesn't contain that right", I am obviously referring to the Bill of Rights as well.
There is no implicit right to privacy in the Constitution -- quite the opposite. The Constitution, in the 4th amendment, quite explicitly refers to the right of the government to *violate* your privacy provided they do so in a reasonable manner and without violating due process.
Protection from being searched has nothing to do with privacy then? Am I understanding your contention correctly?
You aren't protected from being searched. You're protected from unreasonable and warrantless searches. Laws banning abortion do not constitute searches at all, let alone unreasonable ones. The only relevance of "privacy" is that by definition anything that needs to be searched must have been private, otherwise its contents would have been publically known already. But, as noted above, there is no "right to privacy" implied here, as the government is clearly granted the right to invade your privacy in the service of the law.
"leaves the abortion issue in the hands of the states.
Correct, as far as it goes.
No -- correct, period. Laws banning abortion violate no Constitutional rights, and regulation of abortion is not among the enumerated powers of Congress, ergo this is a matter for the states.
"which no more protects the "right to privacy" than it protects the "right to commit rape", the "right to steal", or the "right to murder"."
And now you equate privacy with murder, theft and rape.
I can see how a sufficiently stupid person would think I equated those three things, but I in fact did not. My point is that none of those three "rights" has any Constitutional basis. The Ninth only protects rights that already existed, not every right that pops into somebody's head. There was and is no "right to privacy" that extended to cover what individuals did with their bodies. That's why laws against everything from sodomy to drug use were (and in most cases still are) Constitutional for centuries, until the Court decided to invent a new right and apply it inconsistently to cases of its choosing.
Thank you for your well-reasoned arguments.
Your argument consists of "there's a right to privacy, because I say so. And it somehow protects abortion, because I say so. And the states can't regulate it, because I say so". You're not really in a position to criticize other peoples' arguments. Come back when you have an argument of your own to defend.
People making that argument would be well served by reading the Federalist Papers (IIRC #84 would be a good place to start)
People making THAT argument should pause to remember that the Federalist Papers represent the opinions of only some of the people who put together the Constitution, and have no force of law.
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