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  1. #11

    Default Re: Abortion As Justifiable Homicide

    As always, thank you TaxingMatters for the detailed response.
    I had not considered whether the Constitution forbids murder, as it always seemed implied in numerous ways (even knowing that the gov't alone is responsible for upholding the tenets of due process, it makes me think that a citizen would need justification/a lawful intent in order to deprive someone of their life and thus their freedom and property). Also, murder is a crime at common law and our Constitution derives from many; add to this the 9th Am's unenumerated rights clause and it seems that murder is outlawed in various ways. I would disagree that a state could repeal its homicide laws.. unless you're also saying they'd immediately be replaced with something that still regulates and defines murder.

    You mention the possibility of an equal-protection challenge with regard to a typical person-person murder versus an unborn person-person murder. A good point; the actors are very unique in a pregnancy. That's why I offered the "stranger falling off a cliff" scenario, because I couldn't think of anything else, even having been a pregnant woman myself. It reminds me of a case which I think comes the closest to showing how a defense-of-self justification to allow/necessitate the death of another has at least some precedent, see McFall v Shimp (1978) http://www.ucs.louisiana.edu/~ras277...ol/mcfall.html
    "In preserving such a society as we have, it is bound to happen that great moral conflicts will arise and will appear harsh in a given instance. In this case, the chancellor is being asked to force one member of society to undergo a medical procedure which would provide that part of that individual's body would be removed from him and given to another so that the other could live. Morally, this decision rests with the Defendant, and, in the view of the Court, the refusal of the Defendant is morally indefensible. For our law to COMPEL the Defendant to submit to an intrusion of his body would change the very concept and principle upon which our society is founded. To do so would defeat the sanctity of the individual and would impose a rule which would know no limits, and one could not imagine where the line would be drawn.

    "For a society which respects the rights of one individual, to sink its teeth into the jugular vein or neck of one of its members and suck from it sustenance for another member, is revolting to our hard-wrought concepts of jurisprudence. Forceible extraction of living body tissue causes revulsion to the judicial mind. Such would raise the spectre of the swastika and the Inquisition, reminiscent of the horrors this portends."

    You say in a pregnancy, the woman has no reasonable grounds to believe she is in imminent danger, and I'd have to disagree. There are a multitude of categorical dangers that increase drastically during and after pregnancy, anything from preeclampsia to postpartum depression, or escalated domestic violence and barriers to medical care. And the fact that a woman who delivers a live child will be thereafter duty-bound to provide care for a minimum of eighteen years, with the exception of adoption, either of which are often traumatic and life-altering. Freedom-altering. "..researchers calculated that in 2014, nearly 24 mothers died per every 100,000 live births across 48 states and Washington D.C., excluding California and Texas. The figure represented a 26.6 percent increase from the rate seen in 2000, which was nearly 19 deaths per 100,000 live births."https://www.google.com/amp/www.medicaldaily.com/maternal-death-rate-us-2016-its-only-gotten-worse-2000-new-study-finds-394630%3Famp%3D1I believe that these threats are reason enough to refuse saving the life of another.

    As to involuntary servitude, which “necessarily means a condition of servitude in which the victim is forced to work for the defendant by the use or threat of physical restraint or physical injury or by the use or threat of coercion through law or the legal process," I must ask:

    If abortion were illegal, how would the laws work? In practice, a woman who sought to kill her unborn child would probably need to be forcibly restrained, to prevent harm. Maybe even to prevent her from fleeing to another state where abortion is legal? Would she need to be restrained/monitored during childbirth? Would she have any say in medical options during such? How is that not a type of involuntary servitude contemplated by the 13th Am? And why make a distinction: "Neither slavery NOR involuntary servitude"? (Maybe it's to distinguish between territories where slavery was yet legal and those where slavery was unlawful but still practiced?) Even then, there have been comparisons drawn between the oppressive measures taken against African slaves and women of all ethnicities, as historically both were underrepresented and denied rights.

    The Constitution says nothing of Africans specifically, it can only be inferred that at the time, their aim was to free African slaves. The certainty of the Amendment rests in the prohibition against slavery and involuntary servitude of any person, not just Africans.

    Please recall also that during a time when women were not allowed to vote, keep their own wages if married, have bank accounts or own real estate, it was often a woman's prerogative to survive by securing a husband. In many many jurisdictions, refusing one's marital duties, like having sex, was and grounds for divorce. Thus, a woman's greatest prospect was in granting a man unfettered access to her body, often resulting in perpetual child-rearing. Woe be to the religious household that typically condemned birth-control and abortion. A woman's rightful place in society was that of a silent servant until "radicals" demanded equality, most basically resulting in women having a CHOICE to pursue their own happiness, whether through a career or family.

    But please tell me about the real mechanics of oppression and forced servitude, as I have no doubt that the men who wrote the Constitution failed to consider the plight of their own American wives as they left open to future interpretation the meaning of involuntary servitude.

    It becomes involuntary when the woman changes her mind about carrying the pregnancy to term. Same way sex can become rape. The Constitution embraces individual freedom, and that must include an assurance that one's new legal decisions will be respected inasmuch as they should mitigate the final result. No one else endures such risk and finality as in this apparent contract between woman and child.

  2. #12
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    Default Re: Abortion As Justifiable Homicide

    Quote Quoting LexNonScripta
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    As always, thank you TaxingMatters for the detailed response.
    I had not considered whether the Constitution forbids murder, as it always seemed implied in numerous ways (even knowing that the gov't alone is responsible for upholding the tenets of due process, it makes me think that a citizen would need justification/a lawful intent in order to deprive someone of their life and thus their freedom and property). Also, murder is a crime at common law and our Constitution derives from many; add to this the 9th Am's unenumerated rights clause and it seems that murder is outlawed in various ways. I would disagree that a state could repeal its homicide laws.. unless you're also saying they'd immediately be replaced with something that still regulates and defines murder.
    There is nothing in the Constitution that says that any state must have a law prohibiting murder or that it have any criminal code at all. I am quite confident that no state would repeal its laws against murder, theft, assault, rape, and similar crimes of violence because the voters would not stand for it. But the fact remains that the Constitution does not itself prohibit a state from doing that should it choose to do so. I understand why that notion seems strange, but that is currently the state of the law. No express provision of the Constitution requires and no federal court has ever held that some implied provision of the Constitution requires it. I think the framers intended it that way as, at the time of its adoption, the states were each considered sovereign entities in their own right akins to being separate nations and they intended the states to be free of federal intrusion in dictating what laws the states ought to have.

    I think it extremely unlikely that a state would repeal its laws against murder. The point, however, is that it could. Similarly, no provision of the Constitution requires a state to have a law outlawing abortion (assuming Roe v. Wade were overturned). Thus, a state would be free to make the choice not to criminalize abortion. If the fetus were given the rights of a person, I think the only issue that then comes up is whether it violates the right to equal protection for the state not to criminalize abortion (which results in the homicide of the person) when other homicides are criminalized. I have stated my view that pregnancy and abortion is a unique situation without parallel to other homicide situations and that difference may be enough to survive any equal protection challenge. We’d have to wait and see how any court challenges come out to know if I am correct on that.

    The cases you cited involve very different situations in which one part of his/her body is to be extracted to benefit another. That is clearly not the case in abortion. In abortion, the body of another person (if a fetus is defined as a person) is being killed to benefit another. If anything, the case law you cited would work against allowing abortion.



    Quote Quoting LexNonScripta
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    You say in a pregnancy, the woman has no reasonable grounds to believe she is in imminent danger, and I'd have to disagree.
    In a normal pregnancy, there is no imminent risk of death to the mother. She might suffer various conditions, from morning sickness to other things that may be more serious, but most of those things do not put the mother’s life in immient jeopardy or run the risk of serious harm. So those things would not amount to the kind of harm that would justify using deadly force. In order to justify using deadly force in self defense under the laws of most states, there must be a reasonable fear of immediate death or serious injury. So for the typical abortion decision your self-defense argument fails. I will note that nearly everyone seems to agree that abortion should be permitted in the case where there is an immediate threat to the life of the mother, and indeed the laws of most states banning abortion prior to Roe had just that sort of provision. That kind of provision will take care of your self-defense concern.

    Quote Quoting LexNonScripta
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    And the fact that a woman who delivers a live child will be thereafter duty-bound to provide care for a minimum of eighteen years, with the exception of adoption, either of which are often traumatic and life-altering.
    The mother is not bound to support the child for 18 years. She is not bound to support it for even a day. She may put the child up for adoption. And putting up a child for adoption is not necessarily any more traumatic than having an abortion. You won’t win an involuntary servitude argument on this. As the federal courts have said, involuntary servitude is the condition “in which the victim is forced to work for the defendant by the use or threat of physical restraint or physical injury or by the use or threat of coercion through law or the legal process.” It is thus akin to the conditions that African slaves faced in this country prior to emancipation: they were forcibly brought here against their will or born into the condition of slavery and thereafter forced to work for their master — they had no choice in whether to work for the master or not. The fetus makes absolutely no demand that the mother work at all. Indeed, the fetus is incapable of articulating any demands on the mother. The fetus forces nothing on the mother. And the mother is perfectly free to give up the child for adoption the moment it is born. She never has to work even one day to support the child. (Indeed, even if she kept the child no law obligates her to work to support the child. She could go on public assistance for the child, in which case everyone else other than the mother is paying to support it.)

    You also, I note, didn't address the point I made before that, absent rape, the mother’s condition is not involuntary. She voluntarily had sex. She therefore assumed the very well known risk that pregnancy may result. Having done that, she is in a poor position to then argue that she should not have to endure the consequences of her actions. She created a person (along with the father) who did not ask to be there in the first place. So it certainly was not involuntary servitude.

    As between the mother and child, whose choice was it that caused the child to be there? It was the mother’s choice, she was the one that had control over whether pregnancy would result or not. The child had no say. Yet you would give the mother the right to kill another person (the child) when it was the mother’s fault that the child was there in the first place and the child had no choice about it. You have been only focusing on the mother and deliberately avoiding the rights of the child — the other person, if the fetus is defined as a child. That makes sense because it makes your arguments a lot harder when you take into account the other person, but the rights of both people would have to be considered and balanced, would they not?

    In short, there is nothing about pregnancy that is even remotely like involuntary servitude. The argument is, frankly, absurd and I think that is exactly what the courts would say should a mother try to make that argument to support her abortion (again assuming abortion was illegal).

    Finally, you also skated over the other important point: even in cases of involuntary servitude, the slave does not have the right to simply kill his master. He has the right to get out of the slavery arrangement and avoid being compelled to work for the master. So even if we allowed for your absurd notion that the child is a master inflicting slavery on the mother, that would not give the mother the right to kill her master. She could, however, end the slavery arrangement by giving up the child for adoption.


    Quote Quoting LexNonScripta
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    If abortion were illegal, how would the laws work? In practice, a woman who sought to kill her unborn child would probably need to be forcibly restrained, to prevent harm. Maybe even to prevent her from fleeing to another state where abortion is legal?
    They would work much like they did before Roe made such criminal laws unconstitutional. If the mother had an abortion she and/or the doctor who performed the abortion would be subject to criminal prosecution. The laws did not require any kind of constant monitoring of the mother to ensure she does not commit abortion, just as no law requires that each of us be constantly monitored to ensure we do not commit murder (or any other crime). It would simply impose punishment after the act had been committed.

    Quote Quoting LexNonScripta
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    Would she need to be restrained/monitored during childbirth? Would she have any say in medical options during such? How is that not a type of involuntary servitude contemplated by the 13th Am?
    She would not have to be restrained during childbirth simply because of an abortion law. She would have the same choices for medical decisions during childbirth that she has now. And any restrictions on her choices for medical care might violate her right to privacy but it would not be a involuntary servitude. Read the definition I gave from the courts again until you understand it: involuntary servitude is forcing a person to work for another. If it doesn't fit that definition, if it doesn’t look something like the forced labor that slaves had to endure, it is not involuntary servitude. It might be illegal for other reasons, but it is not involuntary servitude.

    Quote Quoting LexNonScripta
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    Please recall also that during a time when women were not allowed to vote, keep their own wages if married, have bank accounts or own real estate, it was often a woman's prerogative to survive by securing a husband. In many many jurisdictions, refusing one's marital duties, like having sex, was and grounds for divorce. Thus, a woman's greatest prospect was in granting a man unfettered access to her body, often resulting in perpetual child-rearing. Woe be to the religious household that typically condemned birth-control and abortion. A woman's rightful place in society was that of a silent servant until "radicals" demanded equality, most basically resulting in women having a CHOICE to pursue their own happiness, whether through a career or family.
    There is no doubt that women long suffered from inequality under the law. But while they did not enjoy many of rights men had, they were not subject to involuntary servitude. To the extent you argue historically they were, I would point out that is not the case today so the point is moot. None of this has any bearing on the abortion issue. It is red herring. If men could get pregnant, the laws on abortion would apply equally to them. Blame God (or mother nature or whomever) for the fact that only women get pregnant.

    Quote Quoting LexNonScripta
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    It becomes involuntary when the woman changes her mind about carrying the pregnancy to term. Same way sex can become rape. The Constitution embraces individual freedom, and that must include an assurance that one's new legal decisions will be respected inasmuch as they should mitigate the final result. No one else endures such risk and finality as in this apparent contract between woman and child.
    Again, blame God (or whomever) for the fact that only women can get pregnant. So far, science has not allowed us to change that fundamental feature of human design. She might change her mind after having sex, but as I pointed out earlier, at that point her decision does not just affect her — it affects the fetus, too. And if that fetus is person, its rights have to be considered too. It was the mother’s choice to engage in the act that created the fetus, the child had no choice. So it certainly NOT a contract between them. The child did not voluntarily enter into a contract to rent space in the mother’s womb. And yet you would have the right solely to the mother to kill off the fetus. If that fetus is a person, how is it that only her decision matters and that rights of the other person matter not at all.

    I get that you evidenlty are a strong abortion supporter and want to deparately find some other provision in the Constitution that might preserve that right should a fetus be defined as a person. But grasping at absurd notions like pregnancy being involuntary servitude won’t get you there. If it is clear that in amending the Constitution to give person status to a fetus the intent was to allow Congress and the states to ban abortion then that Constitutional provision, being the latest addition, would override any interpetation relying on other parts of the Constitution that would protect the right to abortion. Just as any newly enacted law may repeal or replace an older one. This is perhaps the biggest problem you face. Even if you can find some other argument to support a right to abortion other than the right to privacy that is the basis for Roe, if the Constitution is amended to overturn Roe and allwo Congress and the states to ban abortion, that becomes the new Constitutional rule. Thus, if you support the right to abortion, what you’d want to do is oppose adoption of any amendment that would do a way with it. Trying legal theories like the ones you’ve tossed out here after the adoption of such an amendment is grasping at straws.

  3. #13

    Default Re: Abortion As Justifiable Homicide

    TaxingMatters, I would not describe myself at all as a strong abortion supporter. Such terminology is misleading and insulting. I am deeply troubled by abortion statistics and wish very much that no abortions took place at all. I've actually got to make dinner for my family right now, so I will respond to the rest shortly.

  4. #14
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    Default Re: Abortion As Justifiable Homicide

    Quote Quoting LexNonScripta
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    TaxingMatters, I would not describe myself at all as a strong abortion supporter. Such terminology is misleading and insulting. I am deeply troubled by abortion statistics and wish very much that no abortions took place at all. I've actually got to make dinner for my family right now, so I will respond to the rest shortly.
    I had no intention to offend and apologize for the choice of words. Perhaps “pro choice” would be the better term to apply here, or simply a “supporter of the right to abortion.” I think a lot of people, including those that support the right to abortion, wish it were possible that no abortions would occur. Ideally, there would never be any unwanted pregnancies, but so far we haven’t managed to achieve that.

  5. #15

    Default Re: Abortion As Justifiable Homicide

    Taxing, in reference to my offer of McFall v Shimp, you state that "the body of another person (if a fetus is defined as a person) is being killed to benefit another." That's a misrepresentation; the mother isn't seeking to benefit from an abortion but is likely seeking to preserve her life as it would be without the pregnancy.

    I'm not hellbent on making a self-defense approach work. I come here to learn, test out ideas, and hopefully find out what doesn't work. Neither of us– none of us are proud that abortion rights mean millions of abortions per year. That must mean that we are all looking for a way to reduce them, make it stop. What we are doing here is good, it's a sober conversation about something that often inspires absurdity (think of some recent anti-choice legislation).

    I just don't know whom other than the mother is best able to perceive and thereafter decide on the amount of danger inherent in her own particular pregnancy. Are you (or any of us) more qualified than her?
    A police officer can be frightened by a quick movement or a two second delay in response to a command and most often be justified in shooting a civilian dead. State of mind plays a large role in justification defenses, yes?

    I did not mean to gloss over your point that the woman's voluntary act put the child there. I acknowledge that completely, but ask: can a woman change her mind? And as a sub-question: What other classification of person (in the US) is duty-bound to honor their choice, no matter what? Ex: corporations can breach contracts and pay damages. In fact, most everyone I can think of retains the ability to change their mind and THEN they suffer a consequence, usually reduced to money. That is not a consequence on par with being pregnant for nine months and then giving birth to a human. Put another way: can the State force someone to give birth? As a penalty? Or shall we call it nature?

    Question remains... is it a protected personal freedom to change one's mind and knowingly accept the consequences?
    Or is there perhaps something in the Constitution that can be interpreted as "mothers are duty-bound to give birth if they get pregnant" ? In which case, women would legally have to do everything possible to make sure the result is a live baby; extreme caution... because a miscarriage could invite a criminal investigation. In practice, I think making abortion illegal would necessitate absolute tyranny against women.
    Worth mentioning here, as slavery was brought up before: some slaves chose to stay with the families that enslaved them even after 1865. What does this tell us? Freedom didn't mean much if it meant you were going to starve.
    Women still face similar obstacles in choices concerning family, career and personal freedom/health. For too many women, having one of those things necessarily suffers the progress of others. Thus developed a norm of women breeding and cooking at home while men worked and changed the world– because women struggled without male representation but marriage almost always meant motherhood.
    Abortion helped many women break free of this cycle. Generations of women, now educated and in control of their destinies. Women started to change the world (civil rights and such).
    I truly believe that if society and the law continue to embrace women's independence, the need for abortion will be reduced until finally it is a thing of the past.
    Embrace means... first and foremost, it means educating women about planning for a child. Or planning how to avoid pregnancy. Our country isn't doing this; we have laws that permit doctors to lie to female patients, our schools teach embarrassingly outdated sex Ed courses that border on lies, and we set up barriers to contraceptive&abortion services. The typical young woman in America has basically a second grader's concept of reproduction and dual-survivability; her choices are uneducated and cannot be expected to produce perfect results, like a happy family with 2.5 kids, a career and no abortions by age 27.

    Back to some of what you've said– I see you believe I have focused entirely on the mother's rights and not those of the equally right-bearing fetus. I certainly didn't mean to do that.. please believe, I've got another post for EL all about feticide (criminalizing the third-party non-consensual termination of an unborn child) because I am very invested in the idea of the unborn having cognizable rights. What I'm trying to do is mitigate them, but as you said, the unborn cannot articulate their needs. I'm trying to be realistic about what practicable rights could be given the unborn.

    As to the other point I skated over: that a slave does not have the right to kill his master... well, once the former-slave decides to leave, sure he can go. And sure, the woman can give the child up for adoption.
    What you skated over was the nine months that woman is pregnant. If the former slave-master is hostile to his at-will former-slave employee, I would argue that the now free, legal person/former-slave has the right to defend himself, perhaps with deadly force if necessary. Am I wrong?

    You say that women would not have to undergo forcible medical treatment. That is false. It is already happening, most especially in hospitals or with providers that promote religious belief over medical science and free choice. Women are currently, at reported rates in the thousands per year, being forced into medical procedures that benefit only the unborn while putting the mother at risk. No, maybe not risk of death. But risk of physical and emotional harm. If someone asked you to risk your health for a stranger, how would you respond? Assume there's some established duty to rescue or render aid. Do you think a law should make your answer a resounding Yes in every case? Moreover, should you be disallowed from changing your mind?

    And..Fine, ok. Let's not call thousands of years of forced child-birth anything so taboo as "involuntary servitude." I'm not hung up on that point either. Some may see a similarity and some may not, i.e. the Courts would likely not. I believe that.

    I'm not desperate to find Constitutional support for abortion. And if I am grasping at straws, I really don't mind. We're all exploring the landscape and I happen to not have a compass (law degree). Your advice and opinions are gold to me.

    I just want.. women to no longer need abortion. Abortion was in reaction to an oppressive cycle and if we have the power to end that cycle, we can end abortion. If we make the battle to end abortion all about restrictive laws, it will not stop.
    If we make it clear to certain interest groups and legislators that abortion will never be illegal, maybe their focus will shift toward education and prevention.
    Imagine those vast resources going straight to the young girl– she now understands the immense, unequivocal power and beauty of creating life, she understands the value of choosing a righteous partner, and she desires greatly to succeed, that she might provide for her child while giving something positive to the world through work outside the home.
    A beautiful world.
    When I was pregnant, I was terrified it would be a girl. This is not the way it should be for us.

  6. #16
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    Default Re: Abortion As Justifiable Homicide

    Quote Quoting LexNonScripta
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    I truly believe that if society and the law continue to embrace women's independence, the need for abortion will be reduced until finally it is a thing of the
    This will never happen. Abortion has been around for a very long time and always will be. There will always be unplanned/unwanted pregnancies. There will always be medically necessary abortions to save the mother.

    Quote Quoting LexNonScripta
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    You say that women would not have to undergo forcible medical treatment. That is false. It is already happening, most especially in hospitals or with providers that promote religious belief over medical science and free choice. Women are currently, at reported rates in the thousands per year, being forced into medical procedures that benefit only the unborn while putting the mother at risk.
    Source? If the woman doesn't like what a doctor says, they can go to another. No one can FORCE them to undergo medical treatment.

  7. #17

    Default Re: Abortion As Justifiable Homicide

    Free9man you are correct, abortion will always be around, as medically necessary to necessary in some situations. Instead of saying "abortion should be reduced" I should have said "the number of unintended pregnancies should be reduced." Those are the type of abortions that are performed not of medical necessity, but in, ahem, something like self-defense of the body and associated freedoms. They are avoidable but it is incumbent on the individual to avoid them.

    No one should be able to force a pregnant woman to undergo medical treatments, but that doesn't stop them (hospitals, doctors, and sometimes Courts) from doing it anyway. Here is a small collection of cases that gained traction in court and/or media:
    https://www.aclu.org/other/coercive-...ring-pregnancy

    FYI this is still happening. Not every female victim of forced medical treatment ends up in court. They're often traumatized, like a rape victim. I'm saying this is something researchers know is underreported because of stigma and trauma.

    I remember my attending doctor asked me at least four times during labor if I wanted a particular option that I had already consented to and signed for. Now I see what a kindness that was. He was prepared to change course if I changed my mind. I was able to trust the doctor at this critical time in my baby's and my life because I knew that no religious affiliation nor backward law would permit him to lie to me, or to do something without my consent.

    Also, as to going to another hospital: might be difficult if you're in the throes of labor, or if there's only one hospital in your town. Insurance might trim down options even more. This is what's known as a "barrier to medical care."

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