40 thoughts on “Roe V Wade

  1. Jeff Medcalf

    I still want to know how Roe v Wade and Obamacare can both be Constitutional. Can the government force and/or prohibit care or not?

  2. Daver

    Funny, I was thinking about RvW on the way home from work. It wouldn’t be too hard for a state to guarantee abortion rights by passing a law. Such a law would never be proposed by a D–RvW is too useful of a scare tactic (vote for an R and he’ll repeal RvW). It’d be funny if an R proposed the law just to take the wind out of the D’s sails.

  3. rickl

    I’ve never met a pro-choice person who would admit that Roe v. Wade was a bad decision. (I’m personally rather agnostic on the abortion issue.)

    To me, this illustrates the most important difference between conservatives and liberals: Conservatives place great importance on the process. They believe that there are right ways and wrong ways to do things; that there are rules which must be followed (e.g., the Constitution).

    Liberals tend to focus on their desired outcome, and will do whatever it takes to attain it (e.g., the end justifies the means).

  4. Hope Change

    Rand, I agree with you. Judicial atrocity. Well said.

    The states were working it out. Only the unprincipled would reach an utterly unconstitutional preference and result, and excuse it by saying that they found the right in the “penumbra” of the Constitution, when the plain language of the Constitution in no way gave the Court that authority.

  5. Alan K. Henderson

    The problem with Roe v. Wade is summed in this passage from Blackmun’s opinion (emphasis added):

    “We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.”

    Blackmun’s dishonesty is astounding. His ruling assumes a particular answer to that question. If human life begins at some point prior to birth, then the fetus at that point as the right to life as enumerated in the Declaration of Independence and buttressed by the Ninth Amendment and the Preamble’s “General Welfare” clause – all of which the ruling rejects.

    1. Larry J

      The Declaration of Independence has no force of law. The 4th and 14th Amendments state that a person can’t be denied life, liberty or property without due process of law. There is no due process required for an abortion (with the occassional exception for very young pregnant girls), so the pro-abortionists claim the fetus isn’t a person, just a “non-viable tissue mass” apparently of undetermined species (they deny it’s human).

      Part of Roe v. Wade is based on the right to privacy. Many conservatives have seized on the point that there is no mention of a right to privacy in the Constitution. This is true, but the 9th Amendment states that the people have rights beyond those enumerated in the Constitution. While the Founders didn’t explicitly claim that people have a right to privacy, the fact is we do and many other rights.

      Roe v. Wade was poorly decided. The matter should’ve remained with the states (10th Amendment) where some would’ve allowed abortion and some likely would not.

      1. Bob-1

        I don’t see how you can go from talking about the 4th and 14th amendments to saying that the matter should have remained with the states (10th amendments). If a fetus (or even just a fetus of a certain age past conception) is a person with a right to life, then that person is entitled to the same right to life in all 50 states, 10th amendment notwithstanding.

        – the above is my key comment. States Rights seems quite irrelevant if we’re talking about murder. —

        – but here are some more quibbles –

        I question whether the 4th or 14th amendments are even relevant. Are you arguing that 4th amendment is the basis for making murder of any person illegal in the united states? As for the 14th amendment, first it refers to any person born in the United States, first it refers to a person born in the united states, but a fetus hasn’t been born, and later it nor shall any State deprive any person of life, liberty, or property, without due process of law, but
        a) the state isn’t depriving anyone or anything of life — the doctor is.
        b) we still don’t know whether any fetus, of any age, is a person, which is the key issue.

        1. Larry J

          Murder has been illegal throughout human history including the thousands of years before the Constitution was written so your contention is absurd.

          I was responding to Alan’s reference to the Declaration’s reference, “We hold these truths to be self evident, that all men are created with certain inalienable rights among them life, liberty and the pursuit of happiness” in relation to Roe v. Wade. The Declaration has no force of law.

          1. Bob-1

            Ok, then why do you think the 4th amendment is relevant?
            And why did you say ” The matter should’ve remained with the states “? That’s an outcome that pleases no one.

          2. Larry J

            Working from memory, I reversed the 4th and 5th Amendments. It’s the 5th Amendment that states (emphasis added):

            Amendment 5 – Trial and Punishment, Compensation for Takings. Ratified 12/15/1791.

            No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

            The 14th Amendment also states that “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.”

            Those amendments have the force of law. There is no due process required for an abortion, so if society believes a fetus (pre-born human) is a person, then abortion is denying them life without due process of law. The pro-aborts do everything possible to deny that a fetus is a person.

          3. Bob-1

            I’m fine with it, so clearly you’re mistaken.

            Ha! Ok, I am.

            What I was really getting at: pro-choice people want everyone in all states to have a choice. Pro-life people who believe abortion to be murder would not want some states allow murder. Even strict constitutional originalists who believe in “states rights” should not want one state to judge an act to be murder while another state judges the act to be perfectly legal. Wouldn’t you have murderers fleeing across state lines?

            Hmmm, there is Article 4, section 2:
            http://www.law.cornell.edu/constitution/articleiv

            “A person charged in any state with treason, felony, or other crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.”

            Look, I don’t want to win the argument – I want to learn something. If you could explain further how it would work if one state viewed abortion as murder and another didn’t, I would be very interested.

          4. Rand Simberg Post author

            Even strict constitutional originalists who believe in “states rights” should not want one state to judge an act to be murder while another state judges the act to be perfectly legal.

            Whether I “want it” or not is irrelevant to its constitutionality. If I’m unhappy enough about it, I’ll try to amend the Constitution, something that “progressives” find too onerous in the pursuit of their perfect society.

            That constitutional provision applies to someone fleeing from a state after having committed a murder there. It doesn’t apply to someone fleeing to a state in which to have a (legal) abortion.

          5. Bob-1

            I was talking about what would preferable, not what is legal. And yes, I was thinking of extradition, after an abortion has taken place. I was imagining a wanted abortionist looking for asylum in a pro-choice state, and getting it. You’d be back to pre-civil war like conditions — very bad for the economy (what company with thousands of employees would want to locate in a pro-life state, or even want to choose where to locate), very bad for national cohesion. A bad economy and lack of cohesion are constitutional, but undesirable.

            If a fetus is a person, the constitution protects every fetus, regardless of the US state it is in. So, you’re taking the position that a fetus isn’t a person, right?

          6. Rand Simberg Post author

            If an abortionist performs an abortion in a state in which it is illegal, and flees to a state in which it is not, he should be extradited back to the state in which it is.

            you’re taking the position that a fetus isn’t a person, right?

            I’m taking the position that it’s a complicated question, and that there is not necessarily a bright line, but that a third-trimester abortion is clearly over it.

          7. Bob-1

            Yes, there might not be a bright line, and I completely agree that you needn’t have a bright line to know when something is over it. The quote I like is “I may not be able to tell when exactly sunset has occurred, but I can tell noon from midnight.”

            But now your position is baffling to me! If an 8 month old fetus is a person, then why don’t you think the US Constitution protects it sufficiently that its right to life should not be left to the states?!

          8. Rand Simberg Post author

            If an 8 month old fetus is a person, then why don’t you think the US Constitution protects it sufficiently that its right to life should not be left to the states?!

            Because laws on murder should be left to the states, not the federal government. And if there is a constitutional justification for the federal government getting involved, it should be based on something like the Fourteenth amendment, not emanations of penumbras about privacy.

          9. Bob-1

            So, do you reject Larry J’s argument above, or not? If you accept Larry’s argument (as you hint at, with your mention of the 14th amendment), then it must not be left to the states. I understand that you wanted to make a point about Roe vs Wade, but I was replying to Larry J’s comment about the Constitution, and I just figured you’d have a specific opinion about Larry’s argument.

            Also, murder can’t be left solely to the states. I’ll quote the first paragraph of this wikipedia article. Note that very first thing addressed in an article about murder is when federal jurisdiction applies.

            http://en.wikipedia.org/wiki/Murder_(United_States_law)

            In the United States, the principle of dual sovereignty applies to homicide, as to other crimes. If murder is committed within the borders of a state, that state has jurisdiction. Similarly, if the crime is committed in the District of Columbia, the D.C Superior Court (the equivalent of a state court in the District) retains jurisdiction, though in some cases involving U.S. government property or personnel, the federal courts may have exclusive jurisdiction.[1] If the victim is a federal official, an ambassador, consul or other foreign official under the protection of the United States, or if the crime took place on federal property or involved crossing state lines, or in a manner that substantially affects interstate commerce or national security, then the federal government also has jurisdiction. If a crime is not committed within any state, then Federal jurisdiction is exclusive: examples include naval or U.S.-flagged merchant vessels in international waters and U.S. military bases worldwide. In addition, murder by a member of the United States military anywhere in the world is a violation of Article 118 of the Uniform Code of Military Justice and can result in a servicemember suspected of murder being tried by a general court-martial.

      2. Alan K. Henderson

        “The Declaration of Independence has no force of law.”

        The official founding of the country is July 4, 1776, therefore the Declaration is a legal document. It is a first of a kind, perhaps best (and paradoxically) described as a unilateral treaty. If the grievances against the Crown stipulate the legal reasons for founding the country in the first place, those grievances MUST be among the “rights retained by the people” as stated in the Ninth Amendment.

  6. Al

    1) Allow the mother the choice of a complete legal and physical separation at any point.

    But.

    2) Provide the fetus with the best medical care available under the plausibility that it ‘is alive’.

    This leads to direct and indirect funding and interest in extreme neo-natal care, and the sci-fi futuresque ‘uterine replicator’. Eventually.

    Never had a pro-choice type accept this position.

    1. Titus

      Never had a pro-choice type accept this position.

      That’s because they really just want the baby to die.

      A living child would be a constant reminder — a never-ending source of guilt for most women.

      1. Bob-1

        Al,

        I am pro-choice.

        I am in favor of sci-i futuristic artificial wombs and I am in favor of allowing the mother to put the fetus “up for adoption”.

        So, there, you’ve now “had a pro-choice type accept this position”.

        However If Titus thinks he is onto some universal truth about someone might want a fetus (not a baby) to die, he is wrong.

        When my wife was pregnant, as soon as we possibly could, we tested for various genetic diseases. We were particularly concerned about Tay-Sachs, since we are both Jewish (by long descent, as opposed to conversion), and because it is a painful and otherwise horrible incurable death sentence that kills by age 4, but there were of other death sentence-type diseases to test for. We were more ambivalent about a non-death-sentence diseases like Downs Syndrome. We didn’t expect to be ambivalent – before she was pregnant, we thought it was obviously a good idea to abort in that case too as long as the abortion was done early in the pregnancy but we found ourselves more ambivalent after it was a real fetus. I think we would have aborted in that case too, but I’m not sure. What I am sure about is this: not all foetuses (sp?) are people. Before a certain age, they most certainly are human (if we’re talking about human reproduction), but they aren’t people yet, because of a lack of cognitive development. Before sufficient cognitive development occurs, it isn’t murder to kill the fetus. (This doesn’t mean that it is always moral or ethical or lawful, but sometimes it is. This comment is long enough without me enumerating various times that it is or isn’t.) The situation is not unlike “pulling the plug” after a person is brain dead. A sobering situation, but not murder.

        I’m posting I see you guys ascribe motivations and beliefs to pro-choice people that aren’t necessarily there, and I thought you might want to be educated.

        1. Bob-1

          Al, just to be clear, were you also offering a woman a choice of abortion? Because my full position is: “allow putting the fetus up for adoption after it is a person, but allow abortion before it develops into a person.” Let neuroscience (as it progresses) tell us where the line is (it might even be different for different foetuses, based on their health.

          1. Titus

            If Titus thinks he is onto some universal truth about someone might want a fetus (not a baby) to die, he is wrong.

            Far from universal, but majority of abortions are performed for convenience.

            Also, apropos of the discussion of “scientism”, I wouldn’t rely so heavily on neuroscience to answer this moral question. After all, a fetus is a person who could retroactively assert his or her rights in a way that a terminally ill patient may not.

          2. Bob-1

            I don’t know if your claim about the majority of abortions is true or not, but I do know that dead people assert legal claims via a will, whereas I’ve never heard of a someone asserting their rights from before they were born. Do you know of an example?

            Also, if you’re just talking about the majority of abortions, there is this:

            “In the United States, 9 out of 10 abortions are performed in the first 12 weeks (first trimester) of pregnancy. Most of these are done within the first 9 weeks of pregnancy.”

            From http://women.webmd.com/tc/abortion-reasons-women-choose-abortion
            You can tell from the URL why google led me there, but it only listed the reasons, it didn’t explicitly rank them.

          3. Bob-1

            Anyway, if I consider cognitive abilities to be the test of personhood, why wouldn’t I be interested in neuroscience? You think I’d be better talking to a religious leader or a philosopher to figure out what kind of cognitive abilities an 11 week old fetus has?

            Although, I think I should have said “cognitive science” instead of neuroscience, to allow for a computer programs or an alien-without-a-brain to be considered a person if it had certain cognitive abilities.

          4. Titus

            I’ve never heard of a someone asserting their rights from before they were born. Do you know of an example?

            Google does:

            “Police charged a Charleston man with murder late Tuesday after he allegedly punched his girlfriend in the stomach so hard that it killed her unborn baby.

            The woman, who was three months pregnant…”

            There you go — the state has upheld the fetus’s right to live same as yours or mine.

            If you have the stomach for it, you can research abortion survivors. I, frankly, do not, nor do I see any reason: we both know that law in practice is quite arbitrary as Roe demonstrates.

            Really, if you’re interested, you should study-up on the concept of personhood — you’ll find it doesn’t easily fit your (presumably) Pragmatic worldview.

          5. Bob-1

            I’ve studied personhood quite a bit. Lets get into the philosophy. Why is cognitive ability not a good non-religious test of personhood.

          6. Bob-1

            That was a question: Why is cognitive ability not a good non-religious test of personhood?

            I would really like to know what you were getting at when you said I should study up. I may have read whatever it is that you’re referencing — but perhaps I came to different conclusions. So what theory of personhood were you getting at?

          7. Al

            No Bob, I absolutely was not. An immediate physical and legal separation … where the doctor is not ordered to kill the fetus, but is instead responsible for keeping the fetus alive.

            My personal view of life is that if the fetus survives the process, it was obviously alive. And if the fetus dies it’s still a tragedy.

            You don’t test whether a baby is alive by handing it a Calculus final. It’s an alive person if: (a) human DNA, (b) consumes nutrition, (c) excretes waste. Cognition isn’t required, or we’d call the pound over the OWS types.

          8. Al

            Expanding on the ‘cognition defense’. If an adult -fails-, they’re considered non compos mentos and receive a legal guardian who is charged with upholding their rights.

            I don’t think that’s you intent, but I’ll accept your change: After the mother declares legal-and-physical separation, of course the fetus gets a new legal guardian responsible for, for example, suing for malpractice as needed.

          9. Bob-1

            Al, I wasn’t testing whether a fetus was alive or a human, I was testing whether a fetus is a person.

            Here’s two assertions:

            1) alive != human

            2) alive human != person.

            The first assertion seems obvious enough! A dog can be alive, but a dog is not a human.

            The second assertion seems to give you trouble. A heart ready for transplant has human DNA and is clearly alive. If you want to call it an alive human, that’s fine by me. But a heart is not a person because it doesn’t have a personality (or more technically, it doesn’t have certain cognitive capabilities. ) A human who is “brain dead” is still an alive human too — he or she breathes (even if assistance is required), he or she excretes waste, certainly has human DNA, etc.
            But with a permanent loss of certain cognitive capabilities, he or she isn’t a person anymore, which is why it is both legal and arguably moral to “pull the plug.”

            Your reference to “the pound” is quite relevant! I keep referring to “certain cognitive capabilities” but I don’t list them. We both might feel queasy about killing a dog for no reason, but we don’t call it murder. Why not? A dog has a “personality”, but not enough of one to grant it personhood status. This seems rather arbitrary to me. While I’m quite pro-choice for early abortion, I’m also pro animal rights. I’m not sure whether animals should have any kind of personhood status, but I’m quite sure that if a human alive fetus has much less cognitive capacity than a dog (or even, say, an mature frog), then it shouldn’t have personhood status, despite it being a living human.

            In short, I view a fetus before a certain age as rather more similar to a heart, a brain dead human, or an unintelligent animal than a person.

          10. Bob-1

            Sorry – I got off track. What I wanted to say is that it is cognitive capabilities which separate people from hearts, brain-dead humans, and unintelligent animals, and I don’t know of a non-religious argument to the contrary.

          11. Al

            With nothing but nutrients and a non-hostile environment, a fetus can make it to ‘personhood’ though. I’m not asking for it to -vote-, and there’s no ‘must pass’ cognitive testing between a normal fetus and receiving a valid ballot.

            There is simply no reason to play games here unless you actively want the fetus dead. And we’re the heartless ones.

          12. Bob-1

            It sounds like we almost agree. I certainly agree that a fetus can make it to personhood — that’s the whole point of having a fetus! But if the fetus isn’t a person yet, and the person that it will become will suffer from Tay Sachs, I believe it is much more heartless to allow the fetus to continue and become a person. Once the fetus is a person, we have an obligation to care for the person, of course. But before that point, there might good reasons to want the fetus dead, just as there are good reasons to want a terminally ill dog to be dead, or we might want a gangrenous arm to be dead. Euthanizing a dog or amputating an arm is a sobering experience – not a case of playing games – and not necessarily immoral.

            Still, I’m sure we both look forward to the day when Tay Sachs is cured, just as we both look forward to the day when artificial wombs are a safe and practical option.

          13. Al

            The vast majority of abortions have not the slightest thing to do with euthanasia.

            The entire argument in that direction is a red herring, much like the rape and incest arguments: There aren’t enough of any of these categories that they should dominate the discussion.

            Under the theory that the fetus isn’t a person, it should clearly be removed for experimentation into the several plausible routes to a Tay Sachs cure.

          14. Bob-1

            I’m in favor of working on cures, and if pre-personhood fetuses would help, then great – use them. Fetal stem cells too.

            About motivations: I’m sorry if I’ve mixed my response to you with my response to Titus. Titus was concerned with motivations, and so I wanted to explain that the only reason my wife and I would choose abortion has to do with the suffering of the baby. But you’re right — the relevant issue is legality and freedom. Liberty means that my motivations are irrelevant, and none of anyone else’s business if I don’t want to talk about them.

            So that makes the rest of the argument simple, and it should be recognizable to libertarians: Before the fetus becomes a person, there isn’t any basis to ban abortion, and so people should be free to choose abortion.

      2. Ken

        They don’t just want that baby to die. They want all babies to die. Watch Bill Maher sometime. You’ll see what I mean. Look at the way every one of them hated Sarah Palin for not killing her child.

        Republicans desperately need to realize that Democrats aren’t just evil in some abstract philosophical sense. They are evil in their own personal lives, and not just in the parts of their lives related directly to politics. Democrat women use abortion as their primary means of birth control. Most of them have at least three; in the case of Madonna, she had eleven. They literally spend their evenings in bathroom nightclubs getting gang-banged, and their days getting scraped in abortion clinics. They are not a legitimate part of our nation; they are foreign matter and need to be expunged from our nation one way or the other. If you do not feel utter revulsion–utter, yes, hatred–for them, you are evil as well.

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