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Abortion and Constitutional government

The federal court sitting in (of course) San Francisco has struck down the recent federal ban on “partial-birth abortion.”

First, I agree with this decision, but on federalism grounds, not the privacy grounds cited by the Court. Nowhere does the US Constitution grant the national government the power to ban any medical procedure, as far as I can tell. It is interesting that this particular basis for overturning the statute apparently never occurred to the (liberal/statist) federal court in San Fran. Liberal statists are horrified by any reference to the fact that the Constitution grants the national government very limited powers, as taking these limitations seriously would probably require either extensive amendment of the Constitution or the junking of over half of what the national government does.

Second, it is interesting to observe the politics around this decision. The statement by the abortion rights spokesman that whether a fetus feels pain is irrelevant to a woman’s right to choose is utterly tone-deaf, and seems to be telegraphing a belief that at no point does a fetus acquire personhood that would negate or need to be balanced off against the woman’s right to choose. That is a losing position with the American electorate, and probably explains the rather noticeable silence from the Kerry camp.

The doctors probably have the law, and the morality of it, about right according to this article. The seminal Roe decision granted/recognized a right to choose abortion up until the point of viability, and was basically silent after that. I am no abortion scholar, but I do not think that the Supreme Court has ever really expanded on this time period in any explicit way, although it has danced around it in a number of decisions on ancillary and peripheral issues. Doubtless the inveterate Samizdata commenters will refine my understanding of the law, but I think that viability is not a bad place to draw a line on abortion rights. The difficulty is, of course, that technology constantly pushes the point of viability backwards, but that is a discussion for another day.

However, whether the common medical understanding of abortion rights is correct in turn begs the Constitutional question of whether the US Supreme Court had any business overturning state laws on abortion in the first place. The underlying reasoning, relying as it does on “emanations” and “penumbras,” has been endlessly mocked, and rightly so, for it signalled a Court that no longer cared much what the words on the page said, but rather what they wished the words on the page said.

This in turn showed a Court much less concerned with what the Constitution says than with what the Court says. This disregard for the plain meaning of the Constitution, although arguably employed in the service of individual rights in the abortion cases, paved the way for such utter travesties as a Court upholding extensive and explicit restrictions on political speech. Very little of the US Constitution’s substantive provisions concerning the powers of government and the rights of citizens are still operative in any meaningful way, because the primary enforcer of the Constitution no longer cares to apply the plain language of that document.

42 comments to Abortion and Constitutional government

  • Cydonia

    I am definitely no U.S. constitutional scholar, but as I understand it, the constitution was originally set up to define and limit the powers of the Federal Government. Classical liberal libertarians are therefore understandably concerned to read the constitution restrictively so as to limit those powers.

    But what about state law? There is ample potential for unlibertarian laws emanating from the several states. Does the constitution purport to limit state law so as to enable unlibertarian state laws to be struck down by the Federal courts? If yes, can this be done, consistently with a narrow approach to the powers of the Federal Government as per above?

  • First of all, calling abortion a “medical procedure” is a bit of a red-herring. While it technically is a medical procedure, so is breast enhancement. The fact is virtually all abortions in this country are on-demand, meaning they are elective, and are undertaken out of convenience.

    I am a libertarian and find it sad that, in the rush to ensure a mother has full liberty over her body, too many libertarians forget about the baby within her. Sure, we should be free to govern ourselves, but when our decisions infringe upon another’s most basic freedom – the freedom to live – government has a right to step in.

    Even in the libertarian world, if I place 12 foot high loud speakers on my front lawn and blare them 24/7, my neighbors have a right to seek redress before the local government in order to protect their liberties.

    In the case of abortion, the government must step in to protect the baby’s interests, especially since it cannot speak for itself.

    I wrote an article about this on my website. You can find it here:
    http://prudentpolitics.com/content/view/19/2/

    -Cody
    http://www.prudentpolitics.com

  • Geoffrey Davis

    As originally written, the Constitution applies only to the Federal Government, nothing therefore prevented any individual State from e.g limiting freedom of speech, provided the States own Constitution allowed it. (This is a hypothetical. All State Constitutions protect freedom of speech).

    The XIV Amendment extended the US Constitution to cover the States. Under this Amendment, Rights laid down in the US Constitution cannot be infringed by the States. (This was intended to force the State Governments to respect the rights of the newly freed blacks). Other than this, the powers of any State Government are still defined and limited by the Constitution of that State.

  • If you have a right to anything as a US citizen, it is that you not be deprived of life without due process of law. If a fetus that is halfway out of the woman’s body has already acquired this most basic of rights, the civil war amendments permit the federal government to prevent a state government or any subsidiary government from infringing on this most basic of rights.

    You can agree with the argument or not but please don’t pretend that there is no readily conceivable justification. As usual, the fundamental civil question of abortion is when do you acquire rights. Lovers of freedom can honorably fall on both sides of this question. As for myself, I am pro-life.

  • Duncan S 3

    Cody Hatch wrote – “The fact is virtually all abortions in this country are on-demand, meaning they are elective, and are undertaken out of convenience. ”

    I won’t disagree that the majority of abortions are indeed elective, though I think writing it off as a “convenience” is a bit in the wrong.

    Unlike breast augmentations, getting an abortion is not a cosmetic procedure and certainly isn’t done to boost ones self esteem or percieved desirablity. Though I wouldn’t dare talk absolutes, I would venture that most are undertaken to pervent having a child that a woman is ill perpared mentally and or financially to care for, and would there by be leaving the burden on the rest of us. No thanks. I respect one’s right to take responsibility for themselves.

    I am pro abortion and but understand and respect the grounds for debate.

  • Julian Morrison

    I personally see this situation as comparable to the following: you own an intensive-care bed, and somebody else through no fault of their own is “squatting” it, and will die if removed. Does their right to life impose upon you a duty to let them use your property at your expense? No it does not, and you could at will forcibly disconnect them unless there is some way they can be harmlessly moved. It would be unkind but ought not to be illegal. Need is not a claim.

    So, I say abortions ought to be legal up to “viability”, and eviction legal thereafter. Meanwhile, people offended by abortion ought to fund research to move viability earlier, and to seek ways of keeping a “non viable” baby alive eg: baby transplants.

  • S. Weasel

    You analogy breaks down, Julian, if you are responsible for the person squatting in your bed — then your obligation is clear. I’m in favor of legal abortion, too, but it’s a non-trivial process for both parties. And I think you’re a complete shit if you use it because you can’t be bothered to use birth control.

  • toolkien

    Children are the property of the parents until they are old enough to contract on their own behalf. Using viability as the point of gaining legal rights simply sets the table for unilateral transfer, i.e. I am legally bound to support an entity that cannot perform the same function in return (e.g. the parents choose not to support it, interfere on behalf of the child in relation to their parents). Children come into existence exclusively by the value judgements of the parents who brought it into existence, and remains so until it is completely viable as a member of the State. I’d much rather have a system by which the parents (or the mother alone) can decide, through their/her value system that it is no longer wanted. I operate under the assumption that it will likely be much sooner than later that they will decide to end the fetus’ existence fairly quickly.

    And yes, I realize that this sets the table for all sorts of remote instances of a parent killing their 5 year old, or sexually abusing their child, or a list of other instances. But these are, by and large, much rarer than the State acting as quasi-guardian of all children, much of time forcing upon child and parent realities they would not choose for themselves. Appealing to parents to raise their children according to some guideline is best left to culture and private association.

  • Wow. What about this analogy:

    Your mother is badly injured in a car accident. She is being kept alive by life support and so badly disfigured that you cannot recognize her. The doctor, however, tells you that she will make a full recovery in 9 months, but at some expense to you.

    Do you pull the plug?

    Abortion, in almost all cases, is used as a convenience. The vast majority of folks having an abortion are having one because they cannot or will not provide for the child. I’m sorry, but having sex has its consequences, and pregnancy is one of them. If you choose to remove your pants, you’ve exercised your “right to choose.”

    -Cody
    http://www.prudentpolitics.com

  • Ken

    “Though I wouldn’t dare talk absolutes, I would venture that most are undertaken to pervent having a child that a woman is ill perpared mentally and or financially to care for, and would there by be leaving the burden on the rest of us.”

    Actually, she could be leaving the burden on voluntary adoptive parents, who currently form a long waiting list for the opportunity to take on this burden.

  • R C Dean

    Children are the property of the parents until they are old enough to contract on their own behalf.

    Well, no. No human being is anyone’s property, ever, period, full stop. Children are the wards of their parents until they are old enough to make decisions (which go beyond contracting) on their own behalf.

    Examples of parents abusing their children, sexually, economically, and otherwise, are very much more common historically and in other cultures, than toolkien seems to think. Children are persons, not subhumans or property, and experience shows that treating them otherwise opens the door to horrendous abuses.

    Appealing to parents to raise their children according to some guideline is best left to culture and private association.

    Sure, but there is still a minimum baseline of security that it is the proper business of the state to guarantee. Children, as wards of their parents, are (or should be) subject to the authority of their parents, within certain humane limits.

  • Julian Morrison

    toolkien: “and remains so until it is completely viable as a member of the State”… erm, fascism much? Besides, I’m not a member of any state, I’m an anarchist. And if my folks think they own my ass, they can sue me and see where it gets them. No, I don’t in the least susbscribe to the children as property thing. Any sapient lifeform is a self-owner, and all children are sapient.

  • toolkien

    Wow. What about this analogy:

    Your mother is badly injured in a car accident. She is being kept alive by life support and so badly disfigured that you cannot recognize her. The doctor, however, tells you that she will make a full recovery in 9 months, but at some expense to you.

    Do you pull the plug?

    I don’t know if this is directed at me, but I’ll answer anyway.

    My mother has a living will which describes what care she is to receive and under what circumstances. She has appointed my brother as executor, so I have little say in its exection. Regardless, I may choose to voluntarily use my resources to pay for treatments necessary. But that is my choice and does not use the Force of the State in any way. I would not Force you to pay a cent, nor do I feel any obligation if it is your mother.

    As for sex having consequences, it surely does. I used to be anti-abortion. I used to gnash my teeth over how people were so casual about their lives and their actions the extending consequences. But then I realized that until we license and regulate sexual activity, and license the act of becoming a parent, I could have gotten bent out of shape all I wanted it got me nowhere. I still may hold people in low regard personally, but I limit my chagrin where the State begins.

    The essence of the question reduces to when a fetus/child is bestowed rights, protected by the State and consequently the individuals who make it up. And under every situation, other than using an average age of approximately 13, it created a (potential or real) unilateral obligation on my part eminating from actions beyond my control or purview. Through no action of my own, or using my own intellect or value judgement, I became unilaterally obligated. When a child reaches the age of ~13, we become mutually obligated to each other in the same manner we are obligated to each other through the Social Contract. Until then ithe child exists under the umbrella of its parents.

    And I’ll leave it there. I’m sure this blog hardly needs a lengthy thread on abortion.

  • Julian Morrison

    Modifying the my comment above, infants are not sapient, yet. I’d say anyone who can talk back and make sense is sapient. But if they aren’t, they will be, and Cody Hatch’s get-well-soon analogy applies. A person who will be sapient but is presently indisposed, should be treated as though they were already sapient. Hence, all children from conception are self-owners.

  • toolkien

    toolkien: “and remains so until it is completely viable as a member of the State”… erm, fascism much?

    Actually it is the exact opposite. The child is a member of the State as we all are when it reaches the age to held to the standards of an adult. I said the child is the property of the parent until such time as it stands on its own before the State. Under Nazi Germany the children were the property of the State and treated as such. If the parents acted in a way that was verboten the children were taken away. Under my system, the reality is the exact opposite. The parent’s value system prevails until the child reaches the age of self-ownership.

    And this is the last, I promise, I couldn’t let the fascism reference go by.

  • Julian Morrison

    toolkien, the fascism reference was to your supposing only two states, “chattel slave to parents” and “viable member of a state”. (I admit to playing fast and loose with the precise definition of fascism.)

    Basically, though, I think you’re possibly making a more subtle either-or mistake here. You seem to think the only choices are “parents do as they please” or “parents bossed by the state”. You’re missing the third choice: children with full legal standing as individuals, with rights to life, liberty and property.

  • Duncan S 3

    “Actually, she could be leaving the burden on voluntary adoptive parents, who currently form a long waiting list for the opportunity to take on this burden.”

    Yes Ken in many instances that is probably the case, and I’d argue for losing alot of the govt. bearuacracy that goes into that process that we *do* pay for.

    I personally have no problem with abortion up to the moment of birth. There is the *potential* for a conscious, reasoning being, but at that point (and beyond really) I say the infant has less cognition of their own existance than many animals we put down… not that I’m a bleeding heart animal activist…

    Adoption *is* a good thing, but it’s the mothers choice.

  • R C Dean

    As originally written, the Constitution applies only to the Federal Government, nothing therefore prevented any individual State from e.g limiting freedom of speech, provided the States own Constitution allowed it.

    This isn’t entirely accurate. Some provisions of the Consitution restricted the powers of states (the Supremacy Clause, the Interstate Commerce Clause, others giving the federal government sole responsibility for things like foreign policy).

    Although most provisions of the Bill of Rights are drafted as if they secure the rights of citizens against any government interference, I believe it is accurate to say that it is the Bill of Rights has been applied to the states only through the incorporation doctrine (i.e., the argument that the 14th Amendment references to “privileges and immunities” or to “due process” effectively incorporates the Bill of Rights and applies them to the states).

  • Duncan, why compare an infant to a non-human animal? It is a human, and we all know it. You could use similar arguments to feed your child dog-food or train it to use cat-litter. I live with my twelve-week-old puppy and my fifteen-month-old niece. The puppy is far more intelligent and self-recognising than my niece was at that age. Fascinating from a biological point of view, but I’m baffled by anyone who thinks this tells us anything about human rights or the law.

    I have no problem with abortion up to the moment of birth in order to save the life (or severe disablement) of the mother. But for any other reason, no. Libertarians are supposed to support individual responsibility, and responsibility involves decision-making. No woman (or family) should need nine months to make a reasonable decision about whether she wants a baby. Any woman who spends nine months faffing around before realising, at the very last minute, that she doesn’t want a baby is just being totally irresponsible. And actions have consequences. The usual consequence of not making a decision in a reasonable amount of time is that it ends up being too late.

    And why should adoption be the mother’s choice? Whether to keep the baby is the mother’s choice, sure. Once she’s decided she doesn’t want it, though, the baby’s no longer hers. I mean, what you’re saying here is that the biological mother of a healthy baby with prospective adoptive parents has the right to demand the baby be killed. This sort of sentiment is exactly what keeps libertarians out of Parliament, unfortunately.

  • Duncan: I cannot believe folks believe the stuff you said. We had a baby boy not even two weeks ago. You’re telling me that it’s okay to kill him while his head is in the birth canal, but it’s not okay to kill him once it’s out?

    If you claim that they don’t know what’s going on, you could not have ever witnessed an actual birth in person – let alone one of your own children. To claim that they are not living people, let alone to compare them to a horse that needs to be put down, is plain dumb.

    Besides, many of those who are pro-abortion would wet their pants if we killed puppies, kittens, or any other animal the way we kill children. It’s sad that we have more concern over a cracked Spotted Owl egg than we do human babies.

    -Cody
    http://www.prudentpolitics.com

  • Seems our government is legislating away all the checks and balances that were placed there to protect American citizens against just this type of thing.

  • Duncan S 3

    Squander, Cody,

    I wouldn’t approve of a woman waiting till the last minute to choose, and I doubt many woman would choose to wait that long. But I rather err that direction than restrict it with possibility of making the option illegal for someone who might.

    I place value on Human life over animal life. However I hold the right of a self aware, reasoning woman over that of a fetus that as far as I’m concerned doesn’t possess those qualities yet.

    Just my opinion. I respect your views and no, I havn’t watched an actual birth so who knows.

    And I’m from the US so I’m not keeping anyone out or parliment.

  • Doug Collins

    As this is specifically about partial birth abortion (I won’t go through the gruesome definition-I imagine everyone has heard it by now), I have to ask:

    Why can’t it be prohibited based on the illegality of cruel and unusual punishment? It certainly is cruel and unusual. Is punishment only punishment when there is a legal conviction? What about punishment of a non-person? Were there restrictions on the means used to punish slaves for example?

  • Steve in Houston

    “However I hold the right of a self aware, reasoning woman”

    This presupposes that a woman about to get an abortion is self-aware and reasoning.

    The reason this is such an agonizing discussion is that – deep down at least – we all know that a human fetus is human (despite attempts to legalize that fact out of the equation); and that there are numerous instances where a woman might be incapable of raising a child (poverty, substance abuse, physical abuse, etc.).

    In my barren male singlehood, though, I tend towards the chauvanistic belief that women are much more capable of raising a child than they may led to believe.

    Anyway, that’s not the end of the debate, because then you start getting into the sticky area of who will provide funding and support for the child – and more importantly, how we propose to go about enforcing that.

  • Findlay Dunachie

    Is the US Constitution such a sacred cow that you lot in the US will be shocked at someone in the UK who questions its utility? We get along without a written one – at least so far, if we can avoid the EU one which I gather is a book-length 250-odd pages long.

    The US Constitution has clocked up two big failures – the first to face up to slavery and then to solve the problem of secession. The Civil War was the result.
    The Constutional Amendment bringing in Prohibition was also a mistake.

    The Legislature is a more democratic source of law than the judiciary, not least because it is responsible to the electorate. Handing decisions to interpreters of the Constitution is a cop-out – and dangerous.

    As for the abortion controversy, which should plainly be a matter for legislators not lawyers to decide, it is flying in the face of common sense to deny a fetus (foetus) especially a viable one, at least some rights. The means to keep it alive, to have it adopted, to bring it up to a good life are infinitely greater than they have ever been – and here we have people quibbling about how advanced and enlightened our civilization is that it gives a woman “the right to choose” to put it to death when actually in the process of being born.

    What on earth would the Founders of the Constitution have thought of this behaviour? But then, of course, your lawyers have decided that “original intent” is irrevelant.

  • Nick Timms

    As I understand it in the UK it is unusual, except on medical grounds, for an abortion to be permitted after 16 weeks gestation. Most unwanted pregnancies are aborted long before the 16 week deadline at around 12 weeks and would be aborted even sooner were the NHS able to process the paperwork and get the procedure organised more quickly. I find it incredible that people on this blog are actually saying that abortion should be acceptable at any time up to birth. These people have obviously never held a new-born baby in their arms.

    An abortion is a tradegy at any time but mistakes do happen and an unwanted pregnancy can happen to anyone, even those who are being rigorous about contraception. But as an earlier commenter said the mother (and father hopefully) should be able to make their decision within a couple of weeks at the most. What issue could be more important at the time?

  • Daniel

    Roe v. Wade is one of the most poorly reasoned SCOTUS decisions in the modern era. Even commentators who agree with the outcome note that it contradicts itself (at times in the same paragraph) on the obvious tension between choice and the life of the fetus. Even the most liberal reading gives no answers as to whether the CONSTITUTION has anything to say on the matter. In Planned Parenthood v. Casey, which essentially upheld Roe, subject to certain limitations, the Court all but admits that they’re being politicians and that abortion rights have very little to do with the Constitution.

    As to the issue of whether the Federal Government can regulate abortion, if it were ever controverted I’d imagine that you’d get an 8-1 decision (Thomas being the only dissenter) that the Commerce Clause gives the Federal Government the power to do so, notwithstanding 14th Amendment issues. Basically anything that remotely touches on commercial/economic activity these days can be regulated by the Federal Government. Not saying it’s right, but that’s the way it is.

  • S. Weasel

    Is the US Constitution such a sacred cow that you lot in the US will be shocked at someone in the UK who questions its utility?

    It isn’t that we mindlessly revere our constitution, or the utility of any written constitution. It’s the particulars of our constitution that we treasure. Ours was basically written by a bunch of crabby, cynical, argumentative political junkies, dilettantes, cafe intellectuals, rabble-rousers and gentlemen farmers who disliked and distrusted government and people who seek power. There’s some stupid stuff in there (it’s been a while since we worried about having troops billetted in our homes), but it’s held up remarkably well because it’s not about particulars, it’s about human nature. The checks and balances thing, for example, is a blueprint for pitting groups of vain ambitious men against each other in the hopes that none of them get much done.

    How often do people who dislike government get to build one?

    We began to disobey it before the ink was dry. So, as you point out, it’s hardly an ironclad defense of liberty. But it helps. It’s significant that when they want to break free of its restraints, our public figures are still compelled to pretend to see something in it that isn’t there, and write heavily-footnoted rulings about how the thing that isn’t there really is if you squint and turn your head on one side.

  • Julian Morrison

    Nick Timms: “I find it incredible that people on this blog are actually saying that abortion should be acceptable at any time up to birth.” – well I at least say “up to viability” which is quite different. If the baby can survive outside, nobody has any business killing it.

    S. Weasel: while you’re going after stupid stuff in the constitution, why not aim for the biggie: amend and repeal the “inter-state commerce” clause. You’d erase the excuse for 99% of the fedgov and its many alphabet-agencies.

  • R C Dean

    Why can’t [partial birth abortion] be prohibited based on the illegality of cruel and unusual punishment?

    Because the prohibition on cruel and unusual punishment applies only to state action, and a private person aborting her child is not state action.

    The US Constitution has clocked up two big failures – the first to face up to slavery and then to solve the problem of secession. The Civil War was the result. The Constutional Amendment bringing in
    Prohibition was also a mistake.

    Well, given the Brits blood-soaked history of suppressing “secession”/rebellion in Ireland and Scotland, not to mention various imperial possessions, I am not so sure that our Civil War can be held against our written Constitution.

    The amendment allowing Prohibition was a mistake, sure, but it was the result of legislative/popular will having to clear a constitutional as well as a merely legislative hurdle. In England, Prohibition could have been enacted much more easily than in the US, if enough sober Parliamentarians could have been rounded up back when Prohibition was fashionable.

    Written Constitutions can be, by historical evidence, very useful in restraining the leviathan state. They are not a panacea, but nothing is, in the long run. Certainly, at least some of what the Brits complain about in this blog would be much more difficult for the state to achieve in the US due to our Constitution, and would be bloody impossible if we had courts that would enforce the Constitution as written.

  • Walter Wallis

    Since the father is obligated to provide for his child until age 18, or until college graduation, does it not violate father’s privacy to deny his right to kill inconvenient children at any time?
    Any body want to buy a circuit court cheap? Intellectually virgin, hasn’t thought yet?

  • cj

    Wow. Just Wow. Did I read that right? Aborting children is no different than euthanasia of pets?

    1– I’m not aware of any medical study that claims that the act of partial birth abortion can be deemed medically necessary for the mother’s health.

    2 — How is this different from infanticide?

    3 — Extrapolate this to “human sacrifice.” How would this be morally or legally justifiable? In fact, the child is being killed as it is being born.

    4 — There is a stipulated basis of law, in that your right to excercise your rights end at my nose — i.e., I can’t claim “free speech” to yell fire in a theatre (I know, this is a cliche, bear with me). Simply saying that partial birth abortion limits a “women’s right to choice” is, in my opinion, saying that I have the right to scream “fire” in a theatre. If you can “birth” a baby 3/4 of the way and then kill it, why can’t you birth it 4/4 of the way and then kill it? You are not performing a medically necessary function — that is simply indefensible. You are performing infanticide, and I, for one, would like to think that in the 21st Century we realize that for what it is. And while it may have been defensible for Neanderthals, it certainly is not defensible in this day.

    It is an ugly, brutual act that has no place in our society. There is no individual right to perform this killing. The defense of it by the “right to choice” groups minimizes legitimate arguments for abortion in the first trimester.

  • David Gillies

    The whole debate is intractable. Ultimately it comes down to a value judgement. We can all agree that ‘aborting’ a healthy three week old baby is murder. We can all agree, outside the fringe, that wearing a condom is not (and yes, I count the Pope and his adherents as fringe). Somewhere in between there is an ill-defined (possibly undefinable) boundary. This is a Sorites paradox, which is still an immensely thorny problem in fundamental philosophy.

    My personal viewpoint (and I stress that this is nothing more than that) is that abortion prior to the point where a foetus can survive outside the womb without heroic medical science should be legal, and afterwards it should not. It is not clear to me that the mother’s right to life trumps that of the baby. If ever a clear illustration of the maxim ‘hard cases make bad law’ were needed, then this is it.

  • Louis Wheeler

    There is in operation on both sides of the abortion issue a considerable amount of fuzzy, moralistic or opportunistic thinking.

    The Pro-Life people claim to know God’s WILL, but that WILL was not evident prior to the 1840’s when the Catholic Church put out an encyclical. These people proclaim that the Ten Commandments in the Bible tell us God’s WILL; they use “Thou shall not kill” as a reason. But, the original sixth commandment is, “You shall not murder.” That is good advise, but is abortion murder? Not historically. It and infanticide were often ignored by the authorities. True, the Church from its inception, opposed the exposing of deformed or excessive infants on hillsides, but subtle forms of family management took its place. Accidental death, falls down stairwells etc., were popular a century ago. A child then had only one chance in five of surviving to adulthood.

    The interesting question is why the Church interfered in family size. Politics is the most reasonable answer; it was a means of competing with the Protestant North. The Catholic countries could never as wealthy, but they could still have higher populations. But, even this reasoning has failed. Italy has one of the lowest birth rates in Europe, and Europe is well below zero population growth– Because of abortion? No, birth control.

    The Pro-choice people champion the right of women to be irresponsible; a woman’s right to be sexually active yet escape the consequences of her behavior. Having a child is a serious matter; it is an arduous task taking several decades; Not one that a woman alone can do well. But, you would never get a pro-choice person to agree to that. All their arguments are selfish. Their interest in abortion is secondary; it is really to support their Bohemian sexual practices.

    The real question about abortion is, “Who should decide?” The answer of both the Pro-Choice and the Pro-Life people is the same, “The State should decide.” But, that answer promotes irresponsibility. There are people who shouldn’t have children, forcing those people to have them constitutes child abuse. Children are an enormous responsibility; one that people might reasonably refuse to shoulder. If you want people to accept that responsibility willingly then you should give those people control. That way the children that do survive would be cherished. But, does either side care about that?

  • Doug Collins

    Earlier, I asked why the cruel and unusual punishment prohibition couldn’t apply to partial birth abortion. R.C. Dean answered, reasonably, that it only applies to state actions so it wouldn’t apply here.

    While I’m sure that is the way everyone would interpret it, I am not so sure that there absolutely cannot be an application to individuals.

    Two arguments:

    1.) There are ‘citizen’s arrests. Presumably they are bound by the Constitution. For example, I doubt you could imprison someone as part of a citizen’s arrest and then escape a kidnapping charge by claiming that the right to either release or a speedy trial didn’t apply because you aren’t a state.

    2.) The text of the Eighth Amendment:

    Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

    says nothing about governments or individuals. It’s a little like the controversy over the second amendment applying only to militias or to individuals.

    Also, the ninth amendment:

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    implies that there are rights (retained by the people) that ARE enumerated which do involve denial or disparagement.

    Or am I just stretching this all too far?

  • Louis, not all pro-life people claim to know God’s will. Christopher Hitchens, for example, is a pro-life atheist, and he’s not the only one.

    Also, your little historical summary misses one of the main reasons why birth control was banned by the church: it was believed that sperm was embryonic and that women provided no more than a womb for the foetus. If it were true that sperm were embryonic, then, for instance, masturbation would amount to throwing away human beings. A lot of the church’s beliefs can be understood better in that light. Why they can’t change their doctrines in the light of discoveries that are now centuries old, though, I don’t know.

    I have to say that I disagree with you that forcing certain people to have children constitutes child abuse. Forcing them to raise the children does, yes, but I see no problem with forcing them to have the children and give them up for adoption to a loving home.

  • Cydonia

    Julian:

    “I personally see this situation as comparable to the following: you own an intensive-care bed, and somebody else through no fault of their own is “squatting” it, and will die if removed. Does their right to life impose upon you a duty to let them use your property at your expense? No it does not, and you could at will forcibly disconnect them unless there is some way they can be harmlessly moved.”

    I have yet to make up my mind about the abortion issue, but the trouble with your analogy is that it seems to conflate rights and remedies. The fact that you are trespassing on my property does not entail the conclusion that I may do whatever is necessary to evict you, including acts which will result in your death or some other harm which far exceeds the damage done by the rights violator to the property owner.

    That would surely be a bizarre result. Any reasonable legal system would either limit the remedy to damages or at least allow the trespasser a reasonable time within which to leave, if the alternative is his inevitable death or some other disproportionate harm. This has always been the approach of the common law and I think it is far preferable to the strict propertarian approach which you seem to be endorsing.

    Cydonia

  • Julian Morrison

    Cydonia: I’m not totally being a strict propertarian. I’m using a similar approach to trespass law in saying that it’s reasonable to put up with the baby briefly while afforts are made to harmlesly evict or (future medical tech allowing) to transplant it. But there’s a difference between reasonable brief inconvenience, and months-long forced pregnancy.

  • Cydonia

    I never thought you were a strict propertarian :-)

    I guess the problem is that abortion raises issues that are sui generis. Hence general libertarian principles just don’t work well in this area and any property rights analogy will just break down before it yields a useful answer.

  • Julian Morrison

    Well, I am one, mostly!

    You’re right that childhood issues tend to be complex as hell to apply raw property calculations to. In any libertarian society they’d probably be amongst the hottest topics. Abortion, custody, consent, the limits of parental autority, what constitutes abuse…

  • If someone is ill-prepared to define and protect the rights of an unwanted unborn child, it has to be the government. Abortion may be elective. It may be called convenient by some. But it is also an act of rejection by the mother. Would society be better off with millions of unwanted children ? How many moe single moms do we need ? A mother knows better than the state or the church what is good for her and her unborn child.

    The notion that the pro-choice argument is all about supporting “Bohemian sexual practices” is not only caricatural, it is historically wrong and confuses cause and consequence. Abortion and contraceptives have made it easier for women to have an active sex life, not the other way around. And I do not see why preserving this bit of individual freedom from state regulation would be in any way more selfish and immoral than mandating the use of the state’s coercive power to enforce some religious moral imperative on others. Which, in the past, only resulted in clandestine butchery and either the death of child and mother, or the birth of yet another orphan. The notion that this would be a better outcome is simply baffling.

  • Cydonia

    Sylain:

    “Would society be better off with millions of unwanted children ? How many moe single moms do we need”

    This is true for our society but would not be true for a more libertarian society. Such a society, unlike our own, would permit the sale and purchase of custody rights at freely agreed prices (ok – selling babies, to put it crudely). Since there is a huge demand amongst childless couples for babies, the problem of unwanted babies would hardly arise.

    And as a nice side-effect, the high value of babies in such a society would mean that abortion would be much rarer anyway. So everybody wins.

    Incidentally, this is of course yet another example of how contemporary social problems are largely State-manufactured and would be insignificant in a more libertarian world.