Political Crossfire Forums

[Obilisk18]

Gitana wrote: Quote:
The adoptions system is a completely different subject anyways.

Right - it has nothing to do with adding almost a million more unwanted babies annually to the system. That kind of blind stubborness is what got hundreds of Asian childrens' arms cut off when the US insisted on vaccinating them against their parent's will. Yup, that 'good intention without realistic consideration' worked out great, wouldn't you say?

Quite frankly, I'm bored with refuting this argument. I'll do so again, but after this thread, I plan to ignore all further like arguments.

We classify persons with value. We do so independent of status. The law makes no distinction, in the way of rights, between individuals on the basis of life situation. Morality, I suspect most would concede, also grants rights independent of one's race, color, creed, economic status, height, eye color, etc., etc. And it certainly has nothing whatsoever to say about depriving someone rights on the basis of an even more nebelous concept of "wantedness". Thus, to the extent that fetuses are persons, with a full cache of rights, their wantedness just doesn't come into play. Sorry.

[Gitana]

Quote: We classify persons with value. We do so independent of status. The law makes no distinction, in the way of rights, between individuals on the basis of life situation.
Of course it does, in practice, which is why Grandma loses her case in court, and corporate execs walk. It's often why Leroy goes to prison, and Brent gets probation - when they've committed the same crime. It's why we can bomb children in Iraq, and turn right around and laud the value of a fertilized egg. Poverty/bad/race/religion/alien social status is punished or looked down upon in this country - wealth/high social status/nationalistic/racial/religious membership (no matter how nefariously gained) is rewarded. Every facet of our system reflects this. It's completely hypocritical.

Quote: Morality, I suspect most would concede, also grants rights independent of one's race, color, creed, economic status, height, eye color, etc., etc.
Well - at least since the 14th Amendment & civil rights, it's on paper, anyway. ;) Morality doesn't grant rights - it has no power to do so. It does, however, assign subjective value (and judgements) to perceived rights. There's a difference.

Quote: And it certainly has nothing whatsoever to say about depriving someone rights on the basis of an even more nebelous concept of "wantedness". Thus, to the extent that fetuses are persons, with a full cache of rights, their wantedness just doesn't come into play

You appear to be arguing from a concrete set of 'morals.' Where did they originate? Are they common to all people, races, cultures and religions, or are they subjective?

Assuming full fetal rights, if a woman uses every contraceptive aid at her disposal and still becomes pregnant: she made every possible effort to avoid pregnancy, which, legally, would clearly establish her desire not to have a child. Does the fault then lie with the failure of the contraceptives, or the woman? The only place to go from there is to state that she should not have had sex, period. Which leads us to the unpleasant implication that, by accident of gender, women should not have sex for pleasure - only for procreation. (It's not a big leap.) Motive and intent are huge factors in our law; to not allow them in the abortion arguement is purely for the convenience of the prolife position, and would require yet another suspension of rights.

Obelisk, below, actually uses the exact reversal of your premise to reach the same conclusion; he argues that intent is everything.
............................................

Obilisk: You almost had me until I reached the "absurd examples of compelling the removal of one's organs for the benefit of another.", then your analogies began to break down, imo. Thompsons thesis was interesting, but also must be viewed as a product of her times, over 30 years ago. I do, however, stand firmly by the analogy that an acorn is not a tree; (which sadly, I thought I had invented until I read her paper. lol) It is the perfect analogy.

Quote: an act (sex) that has it's very raison d'etre in reproduction
If that were true, than we would only come into heat and experience desire when we were fertile, like many species. This is not true of humans, and at least chimps also. Sex is not only for procreation, even in the animal world. To state so is to leave out a huge area of human behavior for the sake of artificially limiting the parameters of an arguement in favor of your position.

Quote: You can imagine, for instance, the difference between a situation where I take the last parachute from a failing plane, leaving one individual to crash to his death, and situation whereby I forcibly push an individual out of a damaged plane, so as to keep it's weight down.

If I understand you correctly, you are arguing that intent matters to the end result?

[Selfish_Meme]

Obelisk, in his hasty dash for the finish, also glosses over a few things. His examples of bodily rights consist of scenarios where he attempts to connect ability to rights. Which is disenguous at best, a right is not something that you have an ability to do, battery is not a right just because you are capable of it.

[Gitana]

Right - I saw that, too, but was trying to limit the scope of my coverage.

Well, hang on, meme - someone should blow through here soon to drop a snide one-liner instead of responding to any of the points raised. LOL

[Obilisk18]

Selfish_Meme wrote: Obelisk, in his hasty dash for the finish, also glosses over a few things. His examples of bodily rights consist of scenarios where he attempts to connect ability to rights. Which is disenguous at best, a right is not something that you have an ability to do, battery is not a right just because you are capable of it.

Selfish_Meme wrote: Obelisk, in his hasty dash for the finish, also glosses over a few things. His examples of bodily rights consist of scenarios where he attempts to connect ability to rights. Which is disenguous at best, a right is not something that you have an ability to do, battery is not a right just because you are capable of it.

Again, you are missing the point. I have a right to move my fist. This is a fundamental characteristic of my bodily sovereignty. You are quite right that I do not have the right to battery. But, this restriction stems from the fact that this right comes into conflict with someone elses fundamental right.

There is absolutely no difference between this and the scenarios Gitana presented. I have a fundamental right to life. Yet, I cannot remove another person's organs because this fundamental right to life comes into conflict with someone elses.

These rules have been created by our legislatures in accordance with our constitution (specifically here, the 5th amendment). Thus, the scenarios Gitana has proposed, would not be permissable, even if abortion was illegal.

[Gitana]

Well, those were actually the authors proposals from the '70's, not mine; I simply used them as a lead in.

What no one seems to want to tackle is that if a fetus is acknowledged to be a sovereign person, with full rights, than it is very, very possible that cases will arise assigning the father guardianship or rights of some sort over the fetus. How will these be enforced?

[Selfish_Meme]

There is no right to move your fist, only an ability, rights are enacted in law. The law can suspend rights as well, even the so-called right to move your fist. Just try it next time you are arrested and told to be still, do you still have the right to move? No you don't.

[Selfish_Meme]

Gitana wrote: Well, those were actually the authors proposals from the '70's, not mine; I simply used them as a lead in.

What no one seems to want to tackle is that if a fetus is acknowledged to be a sovereign person, with full rights, than it is very, very possible that cases will arise assigning the father guardianship or rights of some sort over the fetus. How will these be enforced?
What about citizenship also, I mean if born is no distinction to being a person as the pro-lifers would have us believe, would citizenship then be accorded by where you are concieved? How would you enforce no conception for visitors?

[Gitana]

Brilliant - never thought of that, and I should have, since it's key to citizenship in the Constitution... O, now wouldn't that be a can of worms.

It would have to be addressed legally, else how could a person-in-the-womb fall under US jurisdiction? I see very interesting potential for that arguement.

Going to think about that some more.

[LostSoul3412]

Gitana wrote: Brilliant - never thought of that, and I should have, since it's key to citizenship in the Constitution... O, now wouldn't that be a can of worms.

It would have to be addressed legally, else how could a person-in-the-womb fall under US jurisdiction? I see very interesting potential for that arguement.

Going to think about that some more.

Already has been decided. According to the precedent set forth by Roe v. Wade, unborn persons are not citizens of the United States, and thus are not subject to Constitutional protection.

[Gitana]

Well, than how does that affect all the laws that are being passed regarding a fetus, and fetal rights? If a fetus is not a citizen, how does the US have enforceable jurisdiction over assigning it rights?

[Obilisk18]

LostSoul3412 wrote: Gitana wrote: Brilliant - never thought of that, and I should have, since it's key to citizenship in the Constitution... O, now wouldn't that be a can of worms.

It would have to be addressed legally, else how could a person-in-the-womb fall under US jurisdiction? I see very interesting potential for that arguement.

Going to think about that some more.

Already has been decided. According to the precedent set forth by Roe v. Wade, unborn persons are not citizens of the United States, and thus are not subject to Constitutional protection.

While the majority opinion of Roe v. Wade concluded that fetuses were not persons, as defined under the constitution, it by no means claimed they weren't entitled to constitutional protection. Quite the opposite in fact. They specifically stipulated that the legislature had a legitimate and reasonable interest in protecting pre-natal life. The court ultimately decided, for unknowable reasons and based on no consitutional history, medical data, previous court precedent, or jurisdiction, that these state interests, with respect to pre-natal life, did not become "compelling" until after the first trimester. I do not believe I exaggerate when I call this the most fantastic overreach of court power since the days of Lochner. Previously, the court had held in numerous opinions, that the liberty emanating from the 14th amendment can be constrained merely if the law in question rationally promotes a valid state objective; that is to say, if the law actually relates to the objective. Even the majority opinion of Roe agreed that the Texas statute fit these provisions. In substituting this compelling interest test (which had been applied previously, but to different areas of the law) in Roe, and declaring by fiat the right to weigh these compelling interests, the court essentially abolished the legislature.

Furthermore, it does not follow that if fetuses are not persons, the legislature may not take steps to protect them, and in so doing constrain the liberty of the people. The legislature can, and does, construct regulations which prohibit harm to animals (especially the domesticated and endangered varieties). The legislature can, and does, construct regulations prohibiting the destruction of art.

[Gitana]

Quote: The court ultimately decided, for unknowable reasons and based on no consitutional history, medical data, previous court precedent, or jurisdiction, that these state interests, with respect to pre-natal life, did not become "compelling" until after the first trimester.

That's not accurate. The court specifically included viability/non-viability as a factor in it's contemplation.

Domestic animals are a food source, endangered species are at risk of extermination -hence their protection. I don't see the relevance.

[LostSoul3412]

Gitana wrote: Well, than how does that affect all the laws that are being passed regarding a fetus, and fetal rights? If a fetus is not a citizen, how does the US have enforceable jurisdiction over assigning it rights?

Rights are never assigned by law, only taken away. However, state governments do have the power to limit citizen's rights against a fetus, and that is what's happening. The unborn person is not being granted rights, the rights of born persons are being limited.

[LostSoul3412]

Obilisk18 wrote: While the majority opinion of Roe v. Wade concluded that fetuses were not persons, as defined under the constitution, it by no means claimed they weren't entitled to constitutional protection. Quite the opposite in fact. They specifically stipulated that the legislature had a legitimate and reasonable interest in protecting pre-natal life.

Yet those are not the same things, and unborn person is not a citizen, and thus is not subject to any laws in place. However, government does have the power to limit the liberties of citizens, so that their liberties do not bring harm to an unborn person.

Obilisk18 wrote: The court ultimately decided, for unknowable reasons and based on no consitutional history, medical data, previous court precedent, or jurisdiction, that these state interests, with respect to pre-natal life, did not become "compelling" until after the first trimester.

Thus the power to regulate second trimester abortions, and the power to restrict third trimester abortions.

Obilisk18 wrote: I do not believe I exaggerate when I call this the most fantastic overreach of court power since the days of Lochner. Previously, the court had held in numerous opinions, that the liberty emanating from the 14th amendment can be constrained merely if the law in question rationally promotes a valid state objective; that is to say, if the law actually relates to the objective. Even the majority opinion of Roe agreed that the Texas statute fit these provisions. In substituting this compelling interest test (which had been applied previously, but to different areas of the law) in Roe, and declaring by fiat the right to weigh these compelling interests, the court essentially abolished the legislature.

As, unfortunately, is done under judicial review. Would I personally like to see such power revoked? Absolutely. However, such is the law of the land until it is overturned.

Obilisk18 wrote: Furthermore, it does not follow that if fetuses are not persons, the legislature may not take steps to protect them, and in so doing constrain the liberty of the people.

Protection cannot be granted to non-citizens. However, the power to limit the legal actions of citizens upon non-citizens can, and such is being done though unborn "protection" laws.

Obilisk18 wrote: The legislature can, and does, construct regulations which prohibit harm to animals (especially the domesticated and endangered varieties). The legislature can, and does, construct regulations prohibiting the destruction of art.

Domesticated animals and art are property, and thus protected under property laws. Endangered animals are essentially wards of the state, and are thus protected by the government.

[Gitana]

I think we may reasonably anticipate a day when a father takes his unwilling-to-be pregnant girlfriend to court to try to gain custody of the fetus.

Edit: And thank you for the reasoned opinions. :)

[gemma]

Selfish_Meme wrote: Gitana wrote: Well, those were actually the authors proposals from the '70's, not mine; I simply used them as a lead in.

What no one seems to want to tackle is that if a fetus is acknowledged to be a sovereign person, with full rights, than it is very, very possible that cases will arise assigning the father guardianship or rights of some sort over the fetus. How will these be enforced?
What about citizenship also, I mean if born is no distinction to being a person as the pro-lifers would have us believe, would citizenship then be accorded by where you are concieved? How would you enforce no conception for visitors?

Conception certificates?

[Obilisk18]

LostSoul3412 wrote: Obilisk18 wrote: While the majority opinion of Roe v. Wade concluded that fetuses were not persons, as defined under the constitution, it by no means claimed they weren't entitled to constitutional protection. Quite the opposite in fact. They specifically stipulated that the legislature had a legitimate and reasonable interest in protecting pre-natal life.

Yet those are not the same things, and unborn person is not a citizen, and thus is not subject to any laws in place. However, government does have the power to limit the liberties of citizens, so that their liberties do not bring harm to an unborn person.

It seems, on the last part, we at least agree. It is unclear to me then what your argument is? How is Roe v. Wade a valid decision (leaving out your personal pro-choice stance)? I'll explain part of my opposition to it in the rest of the post. You can respond there if you like.

LostSoul3412 wrote: Obilisk18 wrote: The court ultimately decided, for unknowable reasons and based on no consitutional history, medical data, previous court precedent, or jurisdiction, that these state interests, with respect to pre-natal life, did not become "compelling" until after the first trimester.

Thus the power to regulate second trimester abortions, and the power to restrict third trimester abortions.

The Supreme Court, even under the most wide interpretation of judicial review, does not have the power to invalidate the legislatures right to weigh competing interests, when all interests involved are adjudged by the court itself as reasonable and legitimate. Not without effectively abolishing the legislature. The first, second, and third trimester distinctions are completely invalid.

LostSoul3412 wrote: Obilisk18 wrote: I do not believe I exaggerate when I call this the most fantastic overreach of court power since the days of Lochner. Previously, the court had held in numerous opinions, that the liberty emanating from the 14th amendment can be constrained merely if the law in question rationally promotes a valid state objective; that is to say, if the law actually relates to the objective. Even the majority opinion of Roe agreed that the Texas statute fit these provisions. In substituting this compelling interest test (which had been applied previously, but to different areas of the law) in Roe, and declaring by fiat the right to weigh these compelling interests, the court essentially abolished the legislature.

As, unfortunately, is done under judicial review. Would I personally like to see such power revoked? Absolutely. However, such is the law of the land until it is overturned.

Judicial review has never been a broad mandate to dismiss the regulatory power of the states where those states are acknowledged to have a legitimate interest. Judicial review has never been construed to mean that it is the province of judges, as opposed to democratically elected representatives, to make the law. Roe v. Wade essentially said "you cannot do this because you cannot do this." Judicial review is used to invalidate state regulatory laws when, A) They conflict with federal law, B). They directly conflict with the constitution, or C) The state has no legitimate interest in the regulating the action it is attempting to regulate. Abortion restrictions, by the own standards and language tacit in Roe, fail to meet any of these restrictions. Again, there is no proviso in the notion of judicial review that allow the court to invalidate state laws simply because they believe the state has marshalled values "wrongly".

LostSoul3412 wrote: Obilisk18 wrote: Furthermore, it does not follow that if fetuses are not persons, the legislature may not take steps to protect them, and in so doing constrain the liberty of the people.

Protection cannot be granted to non-citizens. However, the power to limit the legal actions of citizens upon non-citizens can, and such is being done though unborn "protection" laws.

There are absolutely no restrictions limiting what citizens can, or cannot, do to fetuses. The few laws currently legal, parental consent, mandatory waiting periods, have nothing whatsoever to do with the fetus. To compound the absurdity, in Roe, the court did in fact declare that the state had a legitimate interest in protecting the fetus. Just not legitimate enough apparently. Gotta love those democratically elected justices making legislative decisions that affect the very fabric of our constitutional system...oh wait...

LostSoul3412 wrote: Obilisk18 wrote: The legislature can, and does, construct regulations which prohibit harm to animals (especially the domesticated and endangered varieties). The legislature can, and does, construct regulations prohibiting the destruction of art.

Domesticated animals and art are property, and thus protected under property laws. Endangered animals are essentially wards of the state, and are thus protected by the government.

Stray dogs are just as protected, under the law, as owned dogs (there are obvious exceptions for licensed veternarians). Thus, the protection they enjoy cannot hinge on their status as property. Endangered animals are afforded protection because the government has a legitimate and reasonable interest in protecting it's eco-system. It has nothing to do with them being wards of the state.

My objections go beyond my mere objections to abortion, which I have not specified in this post. The objections to Roe are mounting by legal scholars of all political persuasions. It is significant that the two latest tests to Roe have been confirmed by narrower majorities then the initial decision. This is in stark contrast to usual tendency of precident to strengthen the decision. Read John Hart Ely's (perhaps the most noted legal scholar of the last century and noted pro-choice liberal) article, Wages of Crying Wolf, for further expansion on more of the unreconciliable failure that is Roe.

[Lumina]

Obilisk, I just want to thank you for your reasoned contributions in this forum and your refusal to respond to baiting. I appreciate your input.

[LostSoul3412]

Obilisk18 wrote: It seems, on the last part, we at least agree. It is unclear to me then what your argument is? How is Roe v. Wade a valid decision (leaving out your personal pro-choice stance)? I'll explain part of my opposition to it in the rest of the post. You can respond there if you like.

My point was that the legislation in place do not protect the unborn person so much as they limit the liberties of the citizen.

Obilisk18 wrote: The Supreme Court, even under the most wide interpretation of judicial review, does not have the power to invalidate the legislatures right to weigh competing interests, when all interests involved are adjudged by the court itself as reasonable and legitimate. Not without effectively abolishing the legislature. The first, second, and third trimester distinctions are completely invalid.

I would absolutely agree. The judiciary does not have the Constitutional power to preemptively override legislation, nor does it have the power to issue policy under the Constitution, however, this is what's accepted. Is it a Constitutional power? No. Should they have it? No. However, unfortunately, this is the power that the Supreme Court holds.

Obilisk18 wrote: Judicial review has never been a broad mandate to dismiss the regulatory power of the states where those states are acknowledged to have a legitimate interest. Judicial review has never been construed to mean that it is the province of judges, as opposed to democratically elected representatives, to make the law.

Judicial review isn't even a Constitutional power of the Supreme Court, let's start there. After that, the Court unfortunately has the implied power to determine legislation though the cases that it persides over.

Obilisk18 wrote: Roe v. Wade essentially said "you cannot do this because you cannot do this." Judicial review is used to invalidate state regulatory laws when, A) They conflict with federal law, B). They directly conflict with the constitution, or C) The state has no legitimate interest in the regulating the action it is attempting to regulate. Abortion restrictions, by the own standards and language tacit in Roe, fail to meet any of these restrictions. Again, there is no proviso in the notion of judicial review that allow the court to invalidate state laws simply because they believe the state has marshalled values "wrongly".

Essentially, the deciding factor in the case of Roe v. Wade was the right to privacy. It was determined that to prevent a woman the right to an abortion is violating her privacy to terminate her pregnancy. However, it was determined that after the first trimester, the state has interest in "protecting" such unborn person, and so can issue restrictions after the first trimester.

Obilisk18 wrote: There are absolutely no restrictions limiting what citizens can, or cannot, do to fetuses. The few laws currently legal, parental consent, mandatory waiting periods, have nothing whatsoever to do with the fetus. To compound the absurdity, in Roe, the court did in fact declare that the state had a legitimate interest in protecting the fetus. Just not legitimate enough apparently. Got love those democratically elected justices making legislative decisions that affect the very fabric of our constitutional system...oh wait...

Many people fear we're becoming a dictatorship under the President... I'm concerned about becoming an oligarchy under the Supreme Court.

Obilisk18 wrote: Stray dogs are just as protected, under the law, as owned dogs (there are obvious exceptions for licensed veternarians). Thus, the protection they enjoy cannot hinge on their status as property. Endangered animals are afforded protection because the government has a legitimate and reasonable interest in protecting it's eco-system. It has nothing to do with them being wards of the state.

Perhaps, I suppose that a healthy eco-system would support the government's duty to promote "general welfare".

Obilisk18 wrote: My objections go beyond my mere objections to abortion, which I have not specified in this post. The objections to Roe are mounting by legal scholars of all political persuasions. It is significant that the two latest tests to Roe have been confirmed by narrower majorities then the initial decision. This is in stark contrast to usual tendency of precident to strengthen the decision. Read John Hart Ely's (perhaps the most noted legal scholar of the last century and noted pro-choice liberal) article, Wages of Crying Wolf, for further expansion on more of the unreconciliable failure that is Roe.

Not just Roe v. Wade, but a wave of judicially reviewed cases that resulted in legislation. The greatest threat to our republic is judicial review, and activist judging. While I may be pro-choice in my personal ideals, I am even more so pro-republic, and as such I am personally against Roe v. Wade as a legal standard. Unfortunately, despite my personal opinions, such is the law of the land until stated otherwise.