Abortion as a States Rights Issue

[whitehall]

Bad idea for a discussion about abortion to be posted on the "clean debate" forum?

 

[C_Clayton_Jones]

REGARDLESS of its merits, this issue is killing the GOP among a large group of American women voters. Short of ignoring the issue, which is a moral imperative for many people, the only other way to approach it in a salable manner is to make it a States Rights issue.

This would allow the 60% majority who favor some restrictions on abortions to express their views within their states while allowing a plausible escape hatch for the other 40% who could travel to another state if necessary. (Contrary to popular propaganda, state laws do not extend across borders to other states.)

The states, or other jurisdictions, do not have the authority to determine who will, or who will not, have his civil liberties. One’s civil rights are not determined by his state of residence. And one’s civil liberties are not subject to popular vote.

Laws banning abortion are consequently offensive to the Constitution, and a violation of the rule of law.

Moreover, presenting travel to another state to obtain an abortion is no ‘remedy,’ as it manifests an undue burden to the exercising of a fundamental right, the right to privacy.

The solution to the political problem republicans and conservatives face is quite simple: obey the Constitution and its case law, respect citizens’ right to privacy, and acknowledge the rule of law.

If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Eisenstadt v. Baird, 405 U. S., at 453 (emphasis in original). The Constitution protects individuals, men and women alike, from unjustified state interference, even when that interference is enacted into law for the benefit of their spouses.

Constitutional protection of the woman's decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall "deprive any person of life, liberty, or property, without due process of law." The controlling word in the case before us is "liberty."

The most familiar of the substantive liberties protected by the Fourteenth Amendment are those recognized by the Bill of Rights. We have held that the Due Process Clause of the Fourteenth Amendment incorporates most of the Bill of Rights against the States. See, e. g., Duncan v. Louisiana, 391 U.S. 145, 147-148 (1968). It is tempting, as a means of curbing the discretion of federal judges, to suppose that liberty encompasses no more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight amendments to the Constitution. See Adamson v. California, 332 U.S. 46, 68-92 (1947) (Black, J., dissenting). But of course this Court has never accepted that view.

Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)

 

[JakeStarkey]

whitehall, I believe you are right that the clean-debate forum is not the right venue for discussing abortion, and I am withdrawing.

 

[martybegan]

Bad idea for a discussion about abortion to be posted on the "clean debate" forum?

It is as long as people can try to look at the situation rationally. However like 2nd amendment rights, and racial relations people can be unable to look at the merits of differing opinions clinically.

Some issues just lend themselves to the "if you disagree with me even one iota, you must be a monster" paradigm.

Sad but true.

 

[arKangel]

You are absolutely right - States are the jurisdictions that write murder laws - I was just trying to point out that all of them do have laws against it.

And a great majority of states had properly classified abortion as murder before the federal government usurped a fundamental state right. Only 11 states allowed any form of abortion prior to the federal governments shredding of the 10th amendment.


Life is biologically evident to begin at conception. This is indisputable in any true scientific context. To which Blackmun blatantly ignored in his absurd bought-and-paid-for "judgment".

If you have trouble understanding when a person begins, I invite you to read a basic biology book.
Do you propose that the baby is merely a dead chicken living in there?

Biological FACT - the baby is human, at conception
Biological FACT - the baby is living, at conception
BIological FACT - the baby is a person, at conception

off topic - but I have to commend all for keeping in the spirit of the "clean debate" board. I know this is one of the most divisive and contentious issues in America today - and pretty much everyone has refrained from using demeaning and insulting language. Thanks all.

{derogatory comment towards liberals} - soft on terrorists.
Tough on fetuses.

Run with it, {vulgarity}

/\ This comment is in the wrong forum.
In clean debate, this such commentary is obviously promoting a pro war, anti life agenda.

Being pro war and posing as Pro Life is pure contradiction.

Hopefully this forum survives. It is very much needed.

 

[earthmuffin]

At what point do you believe a child goes from a "glob of protoplasm" to a human with rights?

Probably around the same time said "glob" becomes capable of surviving outside the womb.

 

[earthmuffin]

What about the rights of the as yet unborn? Should we as a society deny the most basic human right because birth has not yet occurred?

This is the question that gets to the heart of things. Ultimately, this has to become a moral question about who deserves rights and what rights they deserve.

I don't think an embryo/fetus deserves rights. Plain and simple. Why should it? (For purposes of discussion, this is for those before a state of viability.) It cannot think, it cannot feel pain, it cannot even survive without its mother. This is not comparable to other humans. The only thing it has is potential, but that does not put it on even footing with fully grown humans. I don't think we should be able to chip away at the rights of women for something that merely has potential.

 

[earthmuffin]

Bad idea for a discussion about abortion to be posted on the "clean debate" forum?

I'm glad it is. I understand people are more passionate about some things than others, but why does passion have to translate to white hot rage and an inability to be rational and fair?

Cliche as it sounds, if you can't take the heat, stay out of the kitchen.

 

[nodoginnafight]

Bad idea for a discussion about abortion to be posted on the "clean debate" forum?

I think it's a great place for the debate. If we can rationally and respectfully discuss THIS issue, then I believe we can tackle almost anything.

 

[Katzndogz]

At what point do you believe a child goes from a "glob of protoplasm" to a human with rights?

Probably around the same time said "glob" becomes capable of surviving outside the womb.

That would make third trimester and partial birth abortions completely illegal. Such a thing as post birth abortion would be unthinkable.

So what's the excuse for legalizing these?

 

[nodoginnafight]

I disagree with the notion that "what you do with your own body is no one's business but your own" in that I believe that right ends when you start using your body or doing things with your body begins to infringe upon the rights of others.

IMHO there aren't very clear-cut victims being created by the use of recreational drugs, by prostitution, by not wearing a seatbelt, etc And yet legislators have passed and courts have upheld laws restricting these activities. So obvioulsy the right to do whatever you want with your own body is far from absolute.

If, and I recognize the largeness of that "if," an unborn child is considered a person, then there isn't much justification in failing to offer that person protection under our legal system. So in order to defend abortion, I think you must withold this "person" status to an unborn child for at least a while.

So when does the fetus become a person with rights? SCOTUS used the term "viability" to mark that turning point. But with advances in medical science, isn't that a moving target? And if we aren't sure, shouldn't we err on the side of caution and on the side of life?

 

[martybegan]

REGARDLESS of its merits, this issue is killing the GOP among a large group of American women voters. Short of ignoring the issue, which is a moral imperative for many people, the only other way to approach it in a salable manner is to make it a States Rights issue.

This would allow the 60% majority who favor some restrictions on abortions to express their views within their states while allowing a plausible escape hatch for the other 40% who could travel to another state if necessary. (Contrary to popular propaganda, state laws do not extend across borders to other states.)

The states, or other jurisdictions, do not have the authority to determine who will, or who will not, have his civil liberties. One’s civil rights are not determined by his state of residence. And one’s civil liberties are not subject to popular vote.

Laws banning abortion are consequently offensive to the Constitution, and a violation of the rule of law.

Moreover, presenting travel to another state to obtain an abortion is no ‘remedy,’ as it manifests an undue burden to the exercising of a fundamental right, the right to privacy.

The solution to the political problem republicans and conservatives face is quite simple: obey the Constitution and its case law, respect citizens’ right to privacy, and acknowledge the rule of law.

If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Eisenstadt v. Baird, 405 U. S., at 453 (emphasis in original). The Constitution protects individuals, men and women alike, from unjustified state interference, even when that interference is enacted into law for the benefit of their spouses.

Constitutional protection of the woman's decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall "deprive any person of life, liberty, or property, without due process of law." The controlling word in the case before us is "liberty."

The most familiar of the substantive liberties protected by the Fourteenth Amendment are those recognized by the Bill of Rights. We have held that the Due Process Clause of the Fourteenth Amendment incorporates most of the Bill of Rights against the States. See, e. g., Duncan v. Louisiana, 391 U.S. 145, 147-148 (1968). It is tempting, as a means of curbing the discretion of federal judges, to suppose that liberty encompasses no more than those rights already guaranteed to the individual against federal interference by the express provisions of the first eight amendments to the Constitution. See Adamson v. California, 332 U.S. 46, 68-92 (1947) (Black, J., dissenting). But of course this Court has never accepted that view.

Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)

What you ignore is the fact that legislation is considered due process, and that infringments on certain forms of liberty can be justified for the common good. They key here is they be applied equally, and that the flow from the legislative process.

Due process is the realm of a judiciary in the application of laws, not its creation, and only when the law involves criminal acts. When abortion was banned, it was not conviction by fiat, you were placed in front of a court, and allowed to plea your case. Again due process is satisfied.

I still see no right to an abortion in the consitution, just as I do not see a ban on abortions in the consitution. If the constitution is silent on an issue, then it is up to the legislatures, both federal, and more likely, state. If someone doesnt like that, they should add an amendment banning legislative action on abortion. At that point, i would agree it is a consitutional right.

 

[George Costanza]

"State's Rights" is Right Wing code for: "Leave us alone so we can discriminate to our heart's content."

 

[martybegan]

"State's Rights" is Right Wing code for: "Leave us alone so we can discriminate to our heart's content."

Why does discrimination have to come into it? The concept of states can allow for differening levels of government intervention in ones life, within the framework of the federal consitution of course, without impinging on others who may think differently.

If people feel so strongly that the feds should have a given power, it should be done the right way, via the amendment process, where it can be added as an enumerated power.

Why shouldnt Mississipi be able to ban abortion if it so feels? I dont see the right in the consitution. To be fair, they did allow for the virtual rape of the 14th and 15th amendments for 80 years, so I can understand some misgivings about it, but that wrong was authorized by the supreme court in plessey v feurgeson (which by the way is proof the court isnt always right, and a "right" granted by court fiat can always be taken away).

Meanwhile cities like NY limit the right to bear arms to government agents only, and even though that wording IS in the consitution, many progressives seem OK with it.

 

[Borillar]

Oh I diodn't mean to imply I thought you were calling me a liberal. It just struck me that there are probably a lot of posters on the boards that would keel over if they saw me defending a "conservative" position.

But imho it's not an issue of conservative, or liberal, or of religion. To me, it's a simple question of law. At what point do human beings merit the protections of our legal system?

Why are some eager to defend the rights of a glob of protoplasm while ignoring or refusing the rights of children who are here, hungry and homeless?

This is a major reason why I have little use for the bible thumping types who SAY they are upholding some right of the unborn while voting to take, oh, say, school lunches, away from poor children.

And yes, its the most radical, bible thumping rw's who are doing exactly that and at the same time, congratulating themselves because they go sit in a tax free church, tithe their 10% but wouldn't get their hands dirty helping children.

But, all of that aside, abortion is simply no one's business but the woman's.

Well, I believe it's the child's business. And since the child is unable to protect himself or herself - I believe it is the role of government to defend them.

I take a little offense at your suggestion that I do not care for living children. I know there are many "Bible-thumpers" whose positions I also find difficult to reconcile. I am a Christian, but I am a Christian who firmly believes in the seperation of church and state. I think that's what Jesus was talking about when he said "Give unto Caesar ..."

My position is NOT a religious one - it's a legal one.

At what point do you believe a child goes from a "glob of protoplasm" to a human with rights?

The moment it is born. They aren't citizens with rights until then.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.

 

[earthmuffin]

That would make third trimester and partial birth abortions completely illegal. Such a thing as post birth abortion would be unthinkable.

So what's the excuse for legalizing these?

Third trimester abortions ARE illegal. The ONLY time they are legal is when the health of the mother or child is an issue.

Post birth abortion? Infanticide, you mean? Who's advocating for the legalization of that?

 

[jwoodie]

At what point do you believe a child goes from a "glob of protoplasm" to a human with rights?[/QUOTE]

The moment it is born. They aren't citizens with rights until then.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; 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.[/QUOTE]

A very interesting point, although I have not seen it referred to in court decisions on this subject. Reliance on Roe v. Wade is less convincing since it was based on faulty logic and is, in the words of Sandra Day O'Connor, "on a collision course with itself" (i.e., the safety of having an abortion is overlapping the point of fetal viability). I wonder how the erstwhile defenders of SCOTUS decisions will feel if this case is overturned?

On a practical level, it is not desirable for a large portion of the population to feel that it has been muzzled by a small group of unelected ideologues. Such feelings of injustice can lead to irredeemable divisions in our society and give credibility to the use of force. A little "undue burden" may be a bargain price for avoiding this potentiality.

 

[PaulS1950]

The legal definition of a life is very complex, to say the least.
If a fetus was legally a life then pregnant women could use the HOV lanes - they can't without another person in the car.
If a BABY is born and never takes a breath it is not considered a birth.
If a woman's fetus is killed in a car accident there is cause for a wrongful death litigation.
The circumstances and the mother's and, to a lesser degree, the fahter's feelings about the child seem to take precedence over most legal definitions.

Nowhere in the constitution does the fed have the power to legislate morality but there is a place in the constitution that says that abortion is up to the states or to the people - see the 10th amendment!
I personally hold that the definition of "when life begins" has to be up to the mother followed closely by the father. If an unmarried woman becomes pregnant then for at least the first three months the decision should be hers. No one else can know what will harm her or the life that may come from her. It should, IMHO, be her choice as to whether she seeks an abortion or not. It should also be up to the doctor if he will perform the abortion because only he knows his own ability to deal with the moral reprocussions of his actions.
It should be up to the individul as to whether they wish their money to assist in paying for an abortion.

In a perfect world that may be how it is done. In our world we have to decide what our own limits are because we aren't perfect people living in a perfect world. Let's at least make it as compassionate as we can.

 

[jwoodie]

The legal definition of a life is very complex, to say the least.
If a fetus was legally a life then pregnant women could use the HOV lanes - they can't without another person in the car.
If a BABY is born and never takes a breath it is not considered a birth.
If a woman's fetus is killed in a car accident there is cause for a wrongful death litigation.
The circumstances and the mother's and, to a lesser degree, the fahter's feelings about the child seem to take precedence over most legal definitions.

Nowhere in the constitution does the fed have the power to legislate morality but there is a place in the constitution that says that abortion is up to the states or to the people - see the 10th amendment!
I personally hold that the definition of "when life begins" has to be up to the mother followed closely by the father. If an unmarried woman becomes pregnant then for at least the first three months the decision should be hers. No one else can know what will harm her or the life that may come from her. It should, IMHO, be her choice as to whether she seeks an abortion or not. It should also be up to the doctor if he will perform the abortion because only he knows his own ability to deal with the moral reprocussions of his actions.
It should be up to the individul as to whether they wish their money to assist in paying for an abortion.

In a perfect world that may be how it is done. In our world we have to decide what our own limits are because we aren't perfect people living in a perfect world. Let's at least make it as compassionate as we can.

I respect your opinion even if I don't completely agree with it. Unfortunately, it doesn't count under the present circumstances.

 

[PaulS1950]

I respect your opinion even if I don't completely agree with it. Unfortunately, it doesn't count under the present circumstances.

What doesn't count and under what circumstances?
As I recall the 10th amendment is still in effect.
You don't have to agree with me or even respect my opinion but the legalities still count.