Reproductive Rights and Libertarianism

~by Sam Wilkinson

For reasons that I cannot understand, the threat posed by various conservative candidates to women’s reproductive rights rarely seem to warrant mention or concern amongst those who profess themselves to be most concerned with liberty.

Perhaps I travel in the wrong circles – with a two kids and a mortgage and a car payment and a career, it might be safer to say that I don’t travel in any circles – but when candidates are aggressively embracing governmental intervention into a woman’s personal medical decision making, I imagine based upon my understanding of libertarian thought that the that hackles everywhere would be raised to unimaginable degrees.

And yet, nothing.

I write off conservatives and tea-partiers, perhaps unfairly, because I understand that their idea of liberty most often involves individuals having the freedom to agree with conservatives and tea-partiers. Disagreeing, although theoretically allowed, isn’t encouraged. But what of the libertarians who stand strong against Obama? What is it
that makes this issue (one which Obama is stronger than any of the current crop of Mainstream Republican Candidates [MRC]) not only not a disqualifier, but a notstarter?

I worked at a newspaper when I was younger. One of the steadfast rules in selecting Letters to the Editor was that three issues were never to be touched: religion, homosexuality, and abortion. No matter the author’s intent, the institution would inevitably be deluged by the other side’s objections to whatever point was made. I understand the desire to stay away from topics that produce nightmarish and seemingly endless conversations that never actually get anywhere. Neither side ever gets closer to agreeing with the other; nobody is ever willing to speak peacefully and reasonably.

A shorter version of that is this: those conversations go to hell almost immediately.  Yet, what libertarians are doing when they endorse any of the MRCs is saying that they’re willing to accept a president who will openly and aggressively roll back liberty extended to more than half of the American population. And not only are they endorsing (some of) these candidates, they’re simply paying no mind to the obvious and egregious assault on liberty that these candidates are promising. Even Ron Paul, a man whose entire career is based upon his alleged loyalty to the concept of liberty, has no problem endorsing governmental intrusion into a woman’s medical decisions. He, like all of the other MRCs, simply rejects the notion that liberty for an American includes the right to make particular healthcare decisions.

Candidates are candidates, mad(wo)men whose political desires boggle my mind. But what of the sort of libertarians who gather here and elsewhere? How is it that any of the MRCs remain acceptable candidates given their willingness to expand government so as to allow it to intrude into such decision-making?

I recognize that there are numerous critiques to be made of these questions. I acknowledge that ahead of time. But if it all possible, please keep in mind that I’m asking out of a legitimate desire to understand why the issue doesn’t seem to warrant more attention when it comes to grading and endorsing candidates.

(A depressing question to consider on the side: would this issue be a bigger one for libertarians if all of the Republican candidates were proposing to aggressively use the government’s strength against a health decision made exclusively by men?)

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437 thoughts on “Reproductive Rights and Libertarianism

  1. Honestly, I think the answer to this is simply that for libertarians, abortion is a particularly thorny and difficult issue that ultimately comes down to a philosophical question of “what is life? Who has rights?”  Those are difficult philosophical questions, but different answers to those questions create diametrically opposed liberty interests.

    So that’s the first issue.  Because that first issue is so thorny and complicated from a libertarian perspective, it makes a poor candidate as a litmus test for an average libertarian’s vote.

    The second is that Roe v. Wade is now 40 years old.  We’ve had, in the meantime, more Republican Presidents than Democratic Presidents, and all of the Republican Presidents, to my knowledge, have stated adherence to the pro-life side of the debate, two quite passionately so.  And yet abortion is not noticeably more restricted today than it was 39 years ago.

    This leaves the impression that abortion is more of a culture war issue, at least on the federal level, than it is an issue of real policy.

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    • Abortion is more limited then it was at least 10 or 20 years ago. R v W hasn’t been repealed but constant pressure, much of in the form of violence and repeated threats, has led to clinics closing. In much of the country there is only one clinic for an entire state and doctors are flown in from distant areas. There has also been the constant drum beat of “minor” restrictions  such as forbidding state insurance exchanges for paying for abortions, age restrictions and the attempts at declaring fetuses people with rights.

      For many women abortion is a right they can’t use unless they have enough money to get away from where they live.

      Info on abortion restrictions in the last year:

      http://www.washingtonpost.com/blogs/ezra-klein/post/2011-the-year-of-the-abortion-restrictions/2011/12/29/gIQAbJqjOP_blog.html

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      • Everything greginak says is true.  The question is whether it’s really a long-term trend or whether it’s a side-effect of a temporary conservative swing that was actually based on economic factors.  If so, the new efforts to restrict it could even work up a backlash against conservatives.  Example, the South Dakota legislature’s effort a few years back to wholly ban abortion, which resulted in a) an abortion clinic being opened up on an Indian reservation, where the SD gov’t couldn’t touch it, and b) the citizens voting to repeal the ban before it took effect.

        This is merely suggestive; I don’t make this argument with confidence.  But I will note that public  opinion on abortion has been fairly consistent for some time now, and it’s a middle-ground position that doesn’t support either unlimited abortion-on-demand or a complete ban on it.  So I expect we’ll see continued fighting over this for at least a couple of more decades (perhaps longer), but with neither side ever able to secure a total victory.  If we were to base the policy purely on the median voter position, abortions would be available in the first trimester for sure, and in later trimesters in cases of rape or incest, but there would probably be a 24 hour waiting period, and minors would have to get parental or judicial approval.

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        • I hate the idea of minors needing parental permission. It’s still her body, dammit. If the kid’s ten years old, and she’s pregnant, do you really want to tell her parents? The odds of that being a “once and done” pregnancy is next to zero…

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          • I used to think the same, Kim.  Being a parent totally changed that.  (And I have boys!)

            BTW, this is not one of those “I have kids so I know better” comments… just an honest admission of how disconnected the “entirely theoretical” was to the “hopefully theoretical” for me.

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            • But reality is, that if you have anything close to a reasonably decent relationship with your kids, they’re either going to let you know something has happened or it’ll be fairly easy to know something has happened.

              To be blunt, I doubt the child of anybody on this site will be sneaking off to Planned Parenthood. OK, many Robert Cheeks, but outside of that.

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    • “And yet abortion is not noticeably more restricted today than it was 39 years ago.”

      What is this claim based on? State governments have made numerous laws in the past year alone designed specifically to make it more difficult for women to get an abortion, from enacting ridiculous licensing requirements for clinics to mandating waiting periods for women to give them the chance to “think it over” and defunding Planned Parenthood. More discussion is here. It seems to me that because these issues don’t effect men as obviously as they do women, we are freed from the immediate consequences of legislation.

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            • You can Michael Vick your dog. You just can’t be Michael Vick when you do it. And of course we define the limits of liberty all of the time, but I assumed (perhaps incorrectly) that you especially were a person who didn’t want third parties defining for you what you and weren’t allowed to do.

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              • That wouldn’t be something I would say, Sam.  I support laws against torturing animals, although there’s no “libertarian” justification for telling someone what they can and cannot do with their own property.

                But I can’t really penetrate the euphemisms and summary question begging of “reproductive health,” “women’s healthcare” and “what a woman does with her own body.”  These are formulaic attempts to evade if not shut down the real question.

                Who said it should be legal for doctors perform this “procedure?”  Are they also “free” to mutilate a woman’s body if that is her wish?

                There are a lot of “self-evident” presumptions at work here that aren’t self-evident atall.

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                    • I’ll second Sam here.  We do allow doctors to mutilate a woman’s body if it’s her wish.  Heck, we allow non-doctors to do it (piercings, tattoos, scarification, and branding).  If the focus shifts from an argument about fetuses being humans with right to a discussion of what women can do to their own body, with or without a doctor’s assistance, the pro-life side loses, hands down.

                      One of the worst arguments for choice is that the fetus is just like a tumor, but if the focus is just on what a woman can do, we de facto treat the fetus as nothing more than a tumor.

                      So Sam’s response is both sincere and on-point.

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                    • That’s not what I meant by “mutilation,” and I think we all know it.

                      No, Tom, and goddamit you do this all the time.  Just because you know what you mean does not mean you’ve explained it clearly so that we get your meaning.  You used the word “mutilation,” standing on its own, without further explanation; that gives us no basis for interpreting your restricted interpretation of it.

                      For the record, the lovely wife and I used to regularly pass by a piercing, etc., shop in San Francisco called “Body Manipulations,” which we (despite being somewhat favorable towards tats and piercings ourselves) always called “Body Mutilations.”

                      You have a duty to others, when using a word with a broad meaning, to specify your meaning, or at least not to selfishly assume they must know your limited intent.

                      (Also for the record, I would indeed let the doctor pluck out the woman’s eye, if that’s what she wanted.  But then I’m pretty radical on that type of thing.)

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                    • I expect the gentle reader knew exactly what I mean by “mutilation” after reading me for 2 minutes and from the context in which I used it in this discussion.

                      As for allowing a doctor to pluck a woman’s eye out if that’s what she wants, at least we have achieved clarity.  It was designed as a reductio ad absurdum, but as we see, no reductio is too absurd these days.

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                    • I expect the gentle reader knew exactly what I mean by “mutilation” after reading me for 2 minutes and from the context in which I used it in this discussion.

                      I believe you.  I am quite sure you do expect this.  What I am trying to tell you is that you employ this expectation far too often, on occasions when it is wholly inaccurate.  That is, I believe your expectation is sincere, but it is very often just dead wrong.

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                    • He knows what he means, and so do you.  Unfortunately, if you respond to his meaning in the way he means it, you lose the argument.  However, there’s nothing forcing you to respond he way he means it, which destroys the Socratic dialogue he’s trying to construct, and that’s very frustrating to him.

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                    • Okay, your next mutilation: excessivly large breasts, which will shortly distort a woman’s spine and cause neverending pain.

                      OKAY! because a woman Looks Better to American Eyes that way.

                      Let’s face it, we allow doctors to do many many things that are horrible to patients, so long as they consent.

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        • What most of this demonstrates is that there are few policies more harmful to pro-choice causes than generally pro-choice policy. Similarily I have no doubt that nothing would torpedo pro-life popularity and support more than enactment of pro-life policy.

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      • That was a poorly framed sentence on my part.

        What I was trying to get at is that Roe specifically has not been noticeably weakened over the years despite the best efforts of conservatives.  The legislation with which you are concerned is on the state level, and I had intended to acknowledge that legislation implicitly with my subsequent use of the phrase “at least on the federal level.”   The federal level is really all that matters here since we’re talking about the POTUS election, and AFAIK there hasn’t been any issue that has popped up as to whether any of the candidates will decline to enforce various federal abortion laws against the states in a new and different way.

         

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        • Paul has campaign on both the We The People Act (which prevents federal judges from intervening in abortion) and the Sanctity of Life Act (which defines life as beginning at conception, which for some has meant a ban on not only abortion, but birth control). How are these not plainly positions at odds with a woman’s individual freedom to make healthcare decisions about her own body?

           

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          • If he has, then shame on him.  If that is a significant and substantial basis for his popularity compared to other candidates in the GOP primary, it largely even undermines my rationale for being willing to vote for him, though I’m skeptical that it is such a basis since it is not materially different from what the other GOP candidates are campaigning on AFAIK.

            The We the People Act, to me, is deeply offensive to liberty (although mostly because it would apply to far more than just abortion).  The Sanctity of Life Act is less so, though I certainly have no shortage of objections to it.  To the extent that it would wind up preventing birth control, it would also go significantly further than merely attempting to answer a difficult philosophical question and would also be deeply offensive to liberty.

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              • There is intent behind the idea of removing certain questions from federal jurisdiction, and that has everything to do with steering legal questions to judges who will answer in a way that you want them too. (Which, of course, has always been my problem with Paul. He cheerleads liberty but endorses a system that will unquestionably be bad for liberty in many cases.)

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                  • Its this kind of response that leads people to think you are disingenuous Tom. The issue of abortion is in the hands of each individual woman right now. They can each decide what to do. Legislatures already can and do make laws about abortion, they just can’t outlaw it. And that seems to be what you are writing between the lines. You want states to be able to outlaw abortion, which is quite a bit different from taking it away from judges or giving it to people. Giving it to the “the people and legislature” as you frame it would take away rights from some people. But you don’t seem to want to directly discuss the rights of woman to control their own bodies, that is a diversion to you. It seems like the arguments you don’t want to have are diversions.

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                    • “What a woman does with her own body” is a slogan, not an argument, Mr. Gregniak, and is the disingenuousness here.

                      The formulation begs the question of whether there’s another body involved besides the woman’s.

                      So I don’t blame you for attacking my objection [and me personally] because you do not have an answer.  I should probably cry foul more often myself to deflect these attacks on me, but I prefer to discuss the topic.  Were I to play sophistry cop, I would have time for little else.

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                  • This calculation from libertarians always amazes me – federal government = the greatest threat to liberty and the buggest tyrant ever, but state government = the will of the people, puppies, ponies, roses and all those other good stuff. What makes the politicians running for state office rather than federal ones better and more worthy of trust when it comes to liberty? There’s a magical rainbow somewhere that turns all state politicians into angels, but the minute they run for national office, they magically become the devil?

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                  • Why is it “the will of the people” and “returning the questions to the people” only applies for state level? Do the PEOPLE not vote for national elections? Hey, if we REALLY want to follow the will of the people. maybe even the state is too large a unit, how about each district having its own abortion law, or any kind of laws? Surely that’s more representative of “the will of the people”, no? What’s so great about the states that liberartarians put all their faith on the state government to protect liberty, but not federal government or local city government?

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                • Sam: <i>There is intent behind the idea of removing certain questions from federal jurisdiction, and that has everything to do with steering legal questions to judges who will answer in a [particular] way …</i>

                  Tom: <i>No, Sam, the intention is to return these moral questions to the people and legislatures of the states, not to another set of judges.</i>

                  You are both correct.  The intent is to return the questions to the states, where it is known that some of those states’ legislatures will further restrict or even ban abortion, and where it is known that those policies will be scrutinized by a different set of judges than those who sit on the Supreme Court, with the expectation that at least in some of those states where the legislature restricts/bans abortion that set of judges will uphold the law.

                  If pro-life advocates did not anticipate state judges upholding these laws, they would have less incentive to federalize the abortion question.

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                  • The Roe court upheld no existing laws: it subsumed them.

                    At the state level, judges “upholding” abortion restrictions or prohibitions is not quite an analogous issue—state constitutions are fairly easy to amend, trumping the judges.

                    [Or in the case of Iowa recently, to vote out the judges who created a right to SSM.]

                    On the federal level, with lifelong tenure, and with a constitution that’s notoriously difficult to amend*, the We the People Act barks up the correct tree.  In fact, it would also strip the Supreme Court [if it were inclined to] from stripping SSM from a state like NY that quite legally and properly established SSM through its legislature.

                     

                    * I don’t expect the US Constitution to be amended again, in our lifetimes at least.

                     

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              • Tom: I looked that up before responding (hence my reference to issues other than abortion). My problem is that it takes issues that to me are indisputably questions of individual liberty and indeed are what might be called natural rights, and says that the states can override those liberties. That places state rights over individual liberty in a way that would lay waste to the 14th Amendment, which is a huge problem for me as a libertarian.

                That it has no chance of passing is not very relevant if Paul has been campaigning on it, since any vote I make for Paul is intended to send a very specific message; if his advocacy of the We the People Act significantly distracts from that message, then that significantly reduces the ability of a vote for Paul to send that message.

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                    • Yes, Mr. Still, it’s a very interesting question and one that I don’t know if I’ve ever seen addressed in these things, since the familiar arguments are run and rerun instead.

                      The concept behind exceptions for rape and incest are precisely based on this point: there was no consent on the part of the woman [or girl] to the sexual act.

                      In cases of consensual sex where a pregnancy results, yes, the argument is that the woman has indeed incurred a [natural] obligation and has no “natural right” to free herself from it.

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                    • Whynmake that different from rape? Especially when many people’s acceptance or abortion in the case of incest are less focused on consent and more on the “depravity” and risk to the fetus of even consentual incest amongst adults?
                      So, yes, let us be clear: if you accept abortion in the case of incest on the grounds that one partner was non-consenting, would younalso extend abortion in the case of incest to consenting adult incest? If not, then your exclusion is solely for rape. If yes, then my point stands and demands addressing.

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                    • You have no standing to “demand” any courtesy of a reply from me, BSK, or demand anything else.  I like Thrasymachus in Plato’s Republic a lot because he’s my kind of asshole, but he’s rude and Socrates would have been more justified bouncing a goblet off his head instead of answering him.

                      [That would have been fun.  If they made a movie of it, the screenwriter would have been forgiven for taking that liberty.]

                      I’m making justifiable exceptions on abortion based on moral reasoning: there was no consent to the sexual act that created the pregnancy, no moral obligation incurred.

                      If you’ve noticed, BSK, and mebbe you haven’t—many participants in this discussion have given ground based on moral reasoning, not on their leanings, druthers, and actual positions, at arm’s length, not policy prescriptions.

                      [I’m obliged to embarrass my customary foil Dr. James Hanley here—an endorsement from TVD being a kiss of death hereabouts—who has argued the pro-life position despite being in agreement with not an ounce of it.  So too, the pro-choice MarkT, who elegantly noted that a “libertarian” can be either pro-choice or pro-life depending on his moral judgment about where human life begins.

                      The possibility that both positions might be ethically principled tends to escape the Bumper Sticker Brigade.  “A woman’s right to her own body” is no better than “It’s a baby, not a choice.”]

                      As for “adult incest,” you’ve fallen off the GPS and driven into the lake.

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                    • Tom, I have to take exception to some of this. First, BSK’s demand wasn’t out of line: his demand was for a response to a legitimate question in a line of inquiry, not a personal affront to your  by sovereignty. Second, James H and Mart T have been presenting – not making – arguments from the pro-life side of things. They’re both pretty clearly on the side of ‘choice’, and primarily because they think that insofar as the abortion issue can’t be decided definitively by any metric, they opt for freedom rather than coercion.

                      But also, when you say that “a woman’s right to her own body” is a bumper sticker rather than an argument, you reveal yourself as someone who hasn’t thought about, or read, or talked about, these issues in any determinative way. The claim that a woman has a right to her own body is not a trivial catch-phrase, for many people – presumably half the population – it’s the starting point of the abortion discussion.

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                    • First of all Still, BSK has no right to “demand” anything, especially rudely.  Second, I was writing in appreciation of JamesH and MarkT stating fairly the arguments from the other side when I have read them carefully enough to know they don’t endorse them.

                      who has argued the pro-life position despite being in agreement with not an ounce of it. 

                      Third, I have only heard the “woman’s right to her own body” at least a thousand times and understand it.  It’s a bumper sticker, for reasons already given today, that it begs the question of whether there’s another “body” involved.  It asserts there is not, and attempts to shut down any further discussion.

                      So if there’s nothing else, Still, I’ve had my say, and having to say it twice is once more than I should need to.

                       

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                    • I didn’t demand anything.  The point I made did.  You can choose to ignore it, which does nothing but cement your reputation as a duck-and-dodge artist.  Or you can address it, genuinely and honestly, and continue the conversation.  You have clearly chosen the former, putting me and my methodology on blast instead of the issue at hand.

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                    • TVD,

                      I don’t see the anti-choice people as willing, able, or intending to ever keep holes like “rape or incest” open…

                      I recognize their personalities — and a rat remains a rat (herein used in the Chinese zodiac, not in the American sense).

                      After all, it becomes entirely too easy to blame the victim.

                      But hell, if you outlaw abortion, women die. girls die. Already, one of the main causes for women leaving their homes to wander on the streets is abuse. If you don’t give them a way to “hide the evidence” I’m certain more would be kicked out.

                      And that’s not even counting anything else.

                      You say that a woman is obligated to carry a child to term. I say that a woman may choose. Because its her body at risk, sometimes at rather severe risk of developmental defects.

                      But hell, for you, a baby outweighs the potential risks to its mother (herein seen developmentally, not a “life or death” scenario).

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                    • We’re not having a “conversation,”. BSK.  You inserted yourself into one with an irrelevant objection.  And just because I walk away from a fight with a rude person who isn’t getting it doesn’t mean I’m “dodging,” so you can stuff that slander, too.

                      Sir.

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                    • Kim, we’ve been discussing the issue at arm’s length, or many have.  I haven’t promulgated my position, nor do I particularly want to: the discussion’s the thing, re-examining our starting premises and preconceptions.

                      Yes, I do argue there’s an ethical obligation incurred when one [or two people, really] conceive a child through consensual sex.  Whether that necessarily leads to bringing the child to term is a further question.

                      Or whether we should make it legal for a doctor or other third party to take up the forceps and erase that obligation.  That doesn’t necessarily follow either.

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                    • You said objectionsin the case of incest are predicated on a lack of consent. I pointed out that incest does not imply a lackof consent since it can be between consenting adults. I asked you to clarify. You’ve refused. It is not slander when it’s true. It is inconvenient for ou to deal with facts that you cannot distort so you go ad hominem. I’m sorry that your point on this specific issue has been exposed as fraudulent. I was hoping your supposed belief in the integritof language would make you open to considering the sloppinessof your own use. But, alas, your ego won out and the dodging continues.

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                    • Nice rant Kim, but with all due respect, you don’t know me or recognise my personality. You also don’t make arguments, you just spew accusations and insults. Were you intending to call some folks ‘rats’ because they might disagree with you? Or more accurately, actually discuss points that don’t completely support your own dogma?

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                    • John,

                      back down, boy. You’re taking insults where none are meant — and I just said that Explicitly. I have previously defined what Rat means, in terms of sexual personality, in the Chinese/Japanese system. Rats are actually considered diligent beasts over there, not horrible ones.

                      Also, when I talk about anti-choice people, I more primarily refer to what used to be called the Christian Coalition (and now is partially Dominionists, and people who remove birth control from their ideal communities).

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                  • Tom- this is why I’m exempting abortion from my problems with the We the People Act.  My problems are that it seems to go much further than simply taking questions of abortion out of the purview of the courts.  It seems to have been in no small part a response to Lawrence v. Texas, for example.

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                    • MarkT, it’s definitely a reaction to Roe, and I think to the real possibility that SS marriages from other states will be ordered by the SC to be recognized in states that don’t have it, and don’t want it.

                      Lawrence v. Texas was rather an anomaly, since sodomy laws have been largely ignored for decades anyway.  I’m not inclined to re-litigate it here.

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  2. Gosh, I don’t see any links in that post at all.  Surely it shouldn’t be difficult to find a bunch of juicy red-meat quotes from every Republican candidate about how they’re totally gonna ban abortion first thing, eight o’clock, day one.  I mean, you’ve got that big long blog post, surely you must have some support behind it, right?

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        • Tom, if I wrote in a post that Republican candidates suggested lower taxes, would you really call foul if I didn’t cite my sources?  In a blog post, I get that you might demand that someone back up a claim that, say, Ron Paul wouldn’t support civil rights at the state level.  But making someone source that the GOP candidates have been declaring themselves anti-abortion – in a blog post – seems a bit silly, like you’re just looking for something to quibble about.

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          • “Tom, if I wrote in a post that Republican candidates suggested lower taxes, would you really call foul if I didn’t cite my sources?”

            That depends.  Is your entire post based on the premise that every Republican in the world wants to lower every tax that exists, and that this is bad and should be prevented by voting for Democrats in November?

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                • You did; you also didn’t need to.  Any claim that you were making up the candidates’ position on abortion was silliness; I suspect that DD responded to what he mistakenly assumed you said rather than what you actually did.

                  I find with this issue in particular, people quickly discern what side of the aisle you sit on, and then stop listening and come up with pre-dtermenied arguments for whatever they have decided you are going to say.

                  That there was so little of this in these threads is really a testament to the post.  Approaching it the way you did forced most to use a system of rights inherent in their political philosophies as a jumping off point, and (as has been said by others here) led to a much, much better conversation than I might have predicted.

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              • :rolleyes:  If that’s honestly what you’re upset about, then fine; the unsupported assertion didn’t refer to all Republicans, merely to all the Republican Presidential candidates we’re likely to be voting for.  Is that better?  It still doesn’t make there have been supporting links in the post.

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  3. Mark beat me to it, on both counts. But I’ll expand anyway.

    I understand liberals’ fear that Roe v. Wade will be repealed.  It’s not a ridiculous fear by any means, and looking at the number of Supreme Court justices who are conservative and liberal demonstrates the reasonableness of the fear.  And yet that close balance has been there for decades, without being tipped.  That doesn’t mean it can’t or won’t be tipped–the next appointee may be substantially different than a Sandra Day O’Connor, and Kennedy may not continue to play her role.  But, for good or ill, constant worrying about a threat that could happen but never has, tends to wear down the patience of those who are sympathetic but not wholly committed.

    And as Ron Paul shows, you can be a libertarian and be a principled opponent of abortion.  Yes, it requires government involvement in an individual choice, but so do laws against battery and murder, and libertarians don’t oppose those.  If a libertarian has concluded that the fetus is a human life with human rights, then it is morally monstrous to not at least struggle with the issue.  I come down on it differently from Ron Paul, largely because I remain unconvinced the fetus has rights, but even I am uncomfortable with abortion on demand, even though I unequivocally support it as policy.

    A third reason may be that libertarians tend to be favorable toward federalism, and the repeal of Roe v. Wade would not mean abortion is banned nationwide, but is returned to the states as a policy issue.  For those who see choice as a fundamental right, this is as monstrous as returning the choice of racial discrimination to the states, and given their position on abortion rights, rightfully so.  But for those who are torn between the issue of whose rights, the mothers or the fetus’s, should trump (or which trumps in which types of cases), returning the issue to the states for continued political debate and experimentation is reasonable.

    For my part, Paul’s pro-liferism is one of my critiques of him, although I am guilty as charged of not speaking up much about it (at least this time around; I have in the past).  Any of the moderate Republican candidates could satisfy me on this issue if they would say;

    “I am strongly pro-life, but also strongly opposed to government dictating individual’s most crucial and personal choices.  As president I would defend Roe v. Wade, but would encourage comprehensive sex education and support programs to give pregnant mothers alternatives to abortion that would give them an incentive not to abort.  Yes, there would still be abortions, but there would also be abortions if we banned them, as the history of prohibition of everything we’ve ever tried to prohibit shows, and the human wreckage of a ban is an unacceptable cost to such a policy.

    But none of them have said that; and since the unyielding pro-lifers are a much more prominent voice in the party than the yielding pro-lifers, I don’t expect any of them will.

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    • James, do you deny that the Court’s composition has been trending closer and closer to one that might take the step?  If not, how can one take issue with maintained and escalating concern on the part of advocates?  We require what they view as an apocalypse to actually take place in order not to lose “patience” with their continuing concern?  Under those circumstances, I have a hard time knowing how I’d suggest to them that they should be concerned with whether your patience with them has run out.

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      • do you deny that the Court’s composition has been trending closer and closer to one that might take the step?

        It depends on the time frame we’re talking about.  Sure, closer than the 1973 Court.  But trending “closer and closer”?  I think you can make a reasonable argument for it, but I don’t think you can make an indisputable argument.

        And let me make a mild correction if I came across as “taking issue” with liberals’ concern.  I intended to emphasize that I thought their concern was entirely reasonable, but then explain (not argue for, but just explain) the “loss of patience” on the part of those who are generally sympathetic, but not as deeply committed, to the issue.

        That’s why I wrote, ” That doesn’t mean it can’t or won’t be tipped…  But, for good or ill…”  I am not discounting the possibility that the loss of patience with the less committed may in fact turn out to be a bad thing.

         

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        • I wouldn’t say it’s indisputable, either; it’s certainly not the easiest thing to quantify. But I would say that if it’s not trending closer and closer, that’s because Democrats occasionally win national elections.  And that goes directly to the point on which you were moved to say you lose your patience: that this matter determines voting for many liberals to the exclusion of so much else.  I’d have no issue with your taking issue with that value ordering, but instead you chose to question the empirical basis for their concern, and I think the basis is quite clearly established.

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          • you were moved to say you lose your patience

            Michael,  I’ve already clarified that I wasn’t talking about myself, but making a general explanation about what some people’s motivations might be.  You cannot justify your statement attributing this position to me.

            instead you chose to question the empirical basis for their concern,

            I wrote, “It’s not a ridiculous fear by any means, and looking at the number of Supreme Court justices who are conservative and liberal demonstrates the reasonableness of the fear,” and ” I intended to emphasize that I thought their concern was entirely reasonable,” and you somehow got out of that “questioning the empirical basis for their concern”?

            Really?  Are you arguing in bad faith or are you just not reading carefully?  I want to assume the latter (because I want to act in good faith myself), but it’s pretty egregious.

            I would say that if it’s not trending closer and closer, that’s because Democrats occasionally win national elections.

            I agree.  Although I didn’t make that point myself, it’s perfectly congruent with everything I’ve said.  Of course I also expect Democrats to continue to at least occasionally win national elections (and if the Republicans persist in making themselves an ideological, rather than umbrella party, I expect the frequency to increase).

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            • Well, I just don’t get what leads to the loss of patience, then.  I think you did question it – whether the threat as it actually exists justifies the level of priority given to it.  Saying that you questioned it is not to say that you denied it outright.  I’m not sure how it’s bad faith or failure to read accurately to say so.

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              • Michael,

                Put yourself in the position of someone who is not as deeply committed to the issue as I’m guessing you are (please correct me if wrong).  They are likely to think differently about the issue than you, and to understand them you have to grant that different thinking.

                I see at least two ways they could be approaching this differently.  One, a person who’s not deeply committed to the issue may only be focusing on the big picture outcome, not on the details of how that outcome has come about.  You are focusing on the details–and that makes for better understanding of the policy outcome, to be sure–but they may not be.

                The other way is to look at the details of how we got to the policy outcomes and to see normal and predictable political patterns; to assume that “yes, conservatives will always attack abortion rights, but liberals will always defend them, so I expect that something around the status quo will be maintained.”  From that perspective, repeated strong emphases that “this time we really might lose,” could be seen as crying wolf.

                The irony of this latter position, of course, is that this “normal” politics may happen only because the deeply committed folks stay on high alert all the time.  But if they can be expected to stay on high alert, then the not-committed aren’t wrong in not sharing the high-alert status themselves.  But still the deeply committed aren’t wrong to continue to be concerned, because if they don’t maintain their high alert, they could lose.  It’s ironic, yes, but understandable if you can mentally shift back and forth between the viewpoints of two allied but distinct groups.

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                • The irony of this latter position, of course, is that this “normal” politics may happen only because the deeply committed folks stay on high alert all the time.  But if they can be expected to stay on high alert, then the not-committed aren’t wrong in not sharing the high-alert status themselves.

                  We could call this the Efficient Politics Hypothesis. Except of course it isn’t …

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                • Ok. Not sharing the high-alert seems to be different from losing patience with people who do, but if that’s what you meant I get it now.

                  How about addressing that as always you went after my good faith and/or intelligence (raising both amounts to going after both, to tell the truth) and I explained why that was baseless, or at least addressed it (I may not have perfectly understood you but I hardly grossly mischaracterized you in a way that would justify that kind of comity-rupturing response) and now you just let it drop?  Does it stand or will you retract?

                  And for that matter, why do you do that at the drop of a hat all the time?  It really kills the atmosphere.

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                  • Not sharing the high-alert seems to be different from losing patience with people who do, but if that’s what you meant I get it now.

                    “Losing patience” was a bad phrase, I see now.  While not entirely incorrect, it gives a different impression than I intended.  What I meant was that after repeated warnings that don’t come to fruition (even if they don’t solely because the warnings roused people), some people will get jaded and become harder to rouse.  They’ll adopt a “you’re just crying wolf” attitude, even if that’s an unfair characterization of what the committed folks are doing.

                    How about addressing that as always you went after my good faith and/or intelligence

                    Not lack of intelligence, but lack of careful reading (intelligent people, particularly on blogs, are also apt to not always read closely).  But note that  I didn’t do so the first time you mischaracterized me.  I accepted that I may not have been clear.  But after I have twice said the concern is reasonable and you still accuse me of attacking its justification, I do get a bit irritable.

                    And if I came across as rather annoyed, it’s also because you attributed the position to me personally a second time, after I responded to the first attribution by accepting responsibility for lack of clarity and emphasizing that it was not my own view.  So in two ways you mischaracterized me even after I disavowed the characterization.

                    I don’t want to assume bad faith.  And I categorically don’t assume lack of intelligence.  But unless there’s a fourth option I’m missing, that leaves only careless reading.

                    Of course there remains the alternative that I was still unclear.  But I don’t see how my calling the fear “reasonable” (twice) would be unclear enough to suggest that I was questioning the legitimacy of its basis.  But perhaps I’m failing to see something here.

                     

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                    • I really wasn’t following that you weren’t referring to yourself, and if I am locating where you say you clarify that you were not correctly, I think that your language remains very confusing.

                      I do read quickly here; I’m trying to manage the amount of time suck this place imposes on me.  It’s on me to not mischaracterize you in bad faith, but I think I should be able to ask that you meet the requirement of writing clearly before launching to the kind of personal attacks relating to “reading comprehension” (a univerally understood internet tradition of rank insult of another’s intelligence)  or bad faith you tend to.  I think you were pretty unclear on all of these things here, and in any case it’s an odd thing to try to explain what other people might feel about someone’s else’s political views to yet another person – I think it’s not unreasonable that I didn’t immediately understand that you meant this, since many times when some one says, “It’s like this for people who look at things this way..” they do happen to be including themselves.  It wasn’t clear one way or another.  And it’s odd that you would be so moved to explained the feelings of unnamed others with whom you don’t identify to us.

                      What’s more, you responded in various places.  As I do frequently as well. But you need to keep in mind the nested comment system here that causes comments to post in places that we chronologically might not expect to see them.  But the solution is really just to not skip to being insulting to other commenters at an early point in an interaction and without confirming that they’ve done something that warrants it.  If someone misunderstands just say, ‘You’ve misunderstood me in this way.’  It gets the job done just as well. You don’t have to fall on your sword the way Mark Thompson nearly always does when there is some misunderstanding about what he’s written (though you could). Give being a nice guy a try, in other words. Cuz in this interaction, and in many others, you aren’t.

                      Happy New Year. Congrats to your Ducks.

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                    • Michael,

                      OK, I’ll accept that I could have been clearer.

                      It’s such a common thing in political discussion on the internets to either purposely or carelessly (and I mean that in the sense of truly not caring) misinterpreting one’s debate opponents, that I probably too quickly assume that’s what’s happening  (which, of course, is to do the same thing; sigh).

                      My apologies for being a bit of a dick about it.  I could have re-asserted my point without going there.

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        • …And I guess I just don’t understand why you would lose patience in the forst place.  Because Roe hasn’t been overturned, even if we can agree it’s very conceivable?  I’m not getting where you’re coming from.  What does your patience ride on here?

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    • You’re right, James, that no GOP candidate courting the votes of pro-lifers will say such a thing, especially as a lot of pro-lifers define being pro-life as being a proponent of the prohibition of abortion.  They would say such a candidate is by definition not pro-life.

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  4. I am a libertarian pleased to support no candidate, and this is a great reason. Obama is fine with keeping Plan B away from those who most desperately need it, and fine with insurers being forbidden to pay for abortions because of their new need to be involved in universal health care. They can all go to hell.

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    • Now, this is the sort of thing that I don’t understand.
      In no other policy consideration can I think of, other than primary education, is a personal right expected to be fully funded by the government.
      And so, what if I need a gun? Surely, libertarians would never trample on my Second Amendment rights.
      So, why can’t I get the government to ship me out a nice Ruger?
      Maybe even partially fund it, as we do with higher education?

      Where does this thing about, “Pay for it yourself,” equate to restricted access?

      I just want to see some consistency.

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      • The problem–and if I misapprehend the situation, someone please tell me–is that if I am a private insurer perfectly happy to pay for abortions (in total or in part), I now have to choose between eliminating that option or not playing with the new 800-pound economic gorilla in the room. That could well be business suicide for an insurer.

        The fungibility of money + gov’t involvement + “not with my money you dont” = crowding out private options.

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  5. As Mark and James have noted (I want a hug too!), some libertarians don’t approach the abortion issue exclusively or primarily as an issue of women’s liberty, not because they’re really not proponents of women’s liberty, but because the issue is, to their mind, more complex than that.

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    • You know, I always find this argument problematic; at its simplest you, Mark, James and others like you are saying that abortion is “too complex a problem” to leave to a woman and her personal physician. You and others like you seem to have no trust that women can make the best decision on how to deal with their body – nanny state at its worst – something Libertarians are supposed to abhor.

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      • Not exactly.  I’m pro-life (or anti-choice, if you prefer), but not because abortion is too complex a problem to leave to women (in or not in consultation with her physician).  The complexity of this issue refers to competing and incompatible moral/political claims of the nascent life and the woman.  On the one hand, you have the claim that a women should not be forced by the state to remain pregnant against her will; on the other hand you have the claim that the state should protect the nascent life by prohibiting abortion.  To see the issue as complex is to recognize that the issue involves both these competing claims.  To see it as simple is to recognize the involvement of only one of these claims.

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      • at its simplest you, Mark, James and others like you are saying that abortion is “too complex a problem” to leave to a woman and her personal physician. You and others like you seem to have no trust that women can make the best decision on how to deal with their body

        No, this is absolutely wrong.  The critical issue is whether someone views a fetus as a human with rights equivalent to every other person’s.  I don’t, as I suspect you don’t, which is why you and I do trust the woman with the choice.

        But if someone does view the fetus as having equal rights, then to say “we trust the woman to make the right choice” becomes (imperfectly) analogous to saying “we trust the woman to make the right choice about whether to kill another person or not.”

        We can only deny the legitimacy of that by refusing to recognize their belief in the fetus’s personhood as being a legitimate belief.  Many people on the pro-choice side do, I think because it makes their position easier.  While I disagree with the belief in fetal personhood, I don’t think it’s an illegitimate belief, and I don’t think a sincere person can say so.

        That granted, though, the analogy suggested above is, as I noted, imperfect, because when we disallow letting a woman kill some already birthed person we are not imposing any positive duties on her, whereas when we disallow letting her kill the fetus, we are imposing positive duties on her.  So even when we grant the fetal personhood position, I don’t think it creates an automatic moral win for pro-lifers.  But reducing fetal personhood to paternalism over the woman reflects either a misunderstanding of the position or a purposeful misrepresentation.

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        • Right – the “complexity” is not with respect to whether “women can make the best decision on how to deal with their body.”  I don’t think any libertarian, whether pro-life or pro-choice, would disagree with that statement.

          The “complexity” comes in the difficulty of determining whether, and at what point, the zygote/fetus/child is “their body” at all.

          This is an extraordinarily difficult and philosophical question that science can inform, but cannot answer.  I, like James, am more or less fully pro-choice.  I’m increasingly even coming to the opinion that the answer to me is something approaching “when the cord is cut.”  But I can’t say that this answer is any less arbitrary than “when the heart beats,” “when the fingers form,” or indeed even “at conception.”

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          • Mark and James,

            Would you feel the issue was so complex if there was any chance that it was going to be your body instead of a woman’s? Surely the fact that we’re simply not capable of being pregnant makes it easier to take positions on this issue, one way or the other?

            There is obviously no analogous health care decision that only men make that women seek to have dominion over.

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            • Would you feel the issue was so complex if there was any chance that it was going to be your body instead of a woman’s?

              I certainly think that women’s attitudes on this question are inherently worthy of more weight than men’s.  What’s more, I will even readily acknowledge that on a philosophical level, women, particularly women who have been pregnant at some point in their lives, are far better situated to come to an answer as to when life begins, as they have experience to draw from that I could never hope to have. However, it is clear that this question is just as, or at least nearly as, complex for women as it is for men.

              Surely the fact that we’re simply not capable of being pregnant makes it easier to take positions on this issue, one way or the other?

              That’s just it, though – we’re arguing that it’s extraordinarily difficult to take positions on this issue.  This is indeed in no small part because we’re men.

              There is obviously no analogous health care decision that only men make that women seek to have dominion over.

              But I do not seek to have dominion over this.  I am as close to fully pro-choice as one can be.  Regardless, are you saying that only women have the right to an opinion as to when life begins?

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                • This isnt a ‘domination over others’ argument. I know of no one who is pro life because they want to boss women around. The vast majority, i would say are pro life because they believe abortion to be the killing of a human being. Whether this applies only to certain terms in the pregnancy or is absolute is really just a question of when life begins.  If you do not believe that the unborn are human beings with rights then there really is no pro life or anti abortion argument left.

                   

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                  • Yeah, but if we begin from the position that abortion is the killing of a life, it’s a lot easier to argue for a ban on it if you’re comfortable bossing women around.  The less comfortable a person is with that–that is, the more sincerely a person thinks that the women’s interests and autonomy deserve serious consideration, too–the less comfortable a person is advocating strict controls on abortion.

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                    • That’s nonsense  James, if you will forgive my saying so. If I believe abortion is murder then it makes no difference whether you are a woman or a man, you should be prevented from doing it. I will boss both sexes and all races equally. Rape is committed mostly by men, i have no problems supporting laws against it and severe punishment for it.

                          A person’s view on the killing of children (we are proceeding from understanding that I see it as such ) do not reflect on their respect for women’s rights, interests and autonomy. They are two different issues entirely. To spell it out: women do not, in my view have a right to kill their children. The point of argument is when the child becomes a child.

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                    • John,

                      No, not nonsense.  I grant your point that if you see abortion as killing, it’s hard to grant any limits on banning it.  But even then we can recognize that the woman “the killer” is affected by a ban in a way that most killers aren’t affected by a ban on their action.  The ban on you killing me doesn’t really impose any costs on you, whereas the ban on a pregnant woman killing her fetus does impose costs on her.

                      I’m not saying that those costs trump fetal rights.  I’m saying that different people will weigh those costs differently, some giving them less weight and some giving them more weight.  And one of the factors that will determine how much weight someone gives them is how much or little they respect a woman’s autonomy.  For some, even great respect for a woman’s autonomy, and a general discomfort with “commanding” women, will not trump the fetus’s rights, but it will make such a person less comfortable in supporting a ban on abortion.

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                    • James:  It`s true, ones concerns for people autonomy, suffering, etc. will likely temper ones atitudes towards crime and punishment. However, it is the suggestion that someone who is against abortion must somehow be less concerned for womens right, autonomy than pro choice people that gets me. I do place more importance on the lives of the innocent than i do on the personal freedom of choice and autonomy of others. Thus my concern for a womans right to chose is subjugated to my concern that we are allowing unborn people to be killed. This does not quantify my concern for either issue, it merely means i feel more strongly about one than the other.

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                  • “I know of no one”…

                    I know of many. For a considerable amount of men, it is a biological victory to quietly rape a woman (compel her, psychologically manipulate her) and force her to carry the baby to term. Many of these people exist in positions of power. They like to boss women around.

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        • Thank you so much for saying this.  I’m pro-life, and have been in far too many debates where the issue has been reduced by pro-choicers to simply “If you’re pro-life, it’s because you hate women.”

          Having taken developmental biology, I can say that a fetus is more than just “a clump of cells”.  It’s an incredibly complex, individual organism that is undergoing the process of development from the moment of conception.  That’s what makes the issue so complex, and so hard to discuss.

          The precise policy answers are something I haven’t settled on (though I’d like to see abortion more regulated), but I can say that Canada has sex ed and social supports more than the US does, and has roughly the same abortion rate: “safe and legal” doesn’t seem to lead to “rare”.  I’d still like to see stronger supports for single mothers – it’s a good idea for any number of other reasons – but alone it doesn’t seem to be the answer to reducing abortion rates.

          Felt this was a good place to put my two cents in, as you were all saying that women’s views on this had more weight.

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          • what does more regulated mean to you? Some sort of “undue burden”-less regulation? (bearing in mind that if you have to drive 16 hours to get to an abortion practitioner, you’re increasing the cost if you have a 24 hour waiting period)

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          • Will,

            No, not ignoring it.  It’s pretty much my own position.  I’ve just been making devil’s advocate arguments here, saying that if you see the fetus as a person, then it’s no longer solely a question of women’s rights, but a more complex one of competing rights.

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  6. Wouldn’t a more libertarian position on abortion amount to something along the lines of, “Although I do not personally agree with abortion, I do not believe government should make healthcare decisions for individual women. As such, I will spend my time trying to convince women not to get abortions, but will not use the government to do that work for me.”

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      • Respectfully, I wasn’t making that assumption when I posted my question. I was trying to write something similar to libertarian positions/talking points on other issues (like poverty and charitable giving, for example). But just so I’m clear, are you arguing that because we cannot objectively determine when life begins, abortion is thus an issue that would allow for government intervention? (Not necessarily for yourself, but in the minds of libertarians who are simultaneously pro-life.)

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        • are you arguing that because we cannot objectively determine when life begins, abortion is thus an issue that would allow for government intervention?

          I wouldn’t put it quite that way, as it’s a much stronger statement than I’d make, and indeed I’m trying to make a very weak statement.  Your formulation would mean that I thought merely uttering the word “abortion” would justify or at least legitimize government intervention, which I would not be willing to sign on to.

          What I’m saying is that:

          The question of when life begins is not a question to which libertarianism purports to provide an answer.  Moreover, it is a question for which no objective answer is possible, and reasonable people will come up with vastly different definitions.  Worse, it is a question that is incredibly important to any system of government, so it’s not a question that can just be ignored as a political matter. In such circumstances, it is likely appropriate for the question to be answered democratically.

          2.  Once one has answered this question, a libertarian can and should adopt policy preferences consistent with this answer, but only insofar as necessary to do so.  A libertarian who comes down on the “life begins around the cutting of the chord” should be pretty firmly pro-choice.  But a libertarian who comes down on the other side should be pretty firmly pro-life.

          3.  Because “liberty” does not and cannot provide an answer to this question, it is a question that is largely outside the scope of how a candidate should be evaluated, at least if you are doing the evaluation on purely libertarian grounds.

          Of course, I see no reason why it should be necessary to evaluate a candidate on purely libertarian grounds, even for an ardent libertarian.  But if libertarian grounds are your metric, the fact that this is ultimately dependent on an objectively unanswerable question makes it a pretty low priority.

          Ultimately, my answer to your question is probably something along the lines of “yes, if you define life as beginning at an earlier point than the cutting of the chord; no, if you do not.  But on purely libertarian grounds it should be a pretty low priority one way or another.”

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          • If reasonable people will come up with wildly different definitions, why throw the answer into a democracy, which by its nature is designed to make decisions about which is and isn’t the correct answer? If anything, it would seem to me that because the issue cannot be answer, the solution is to leave it a decision made by individuals, one in which other individual can attempt to intervene via persuasive, peaceful means if they feel it necessary.

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            • That’s a reasonable policy argument.  But it’s not  an argument that  stands or falls on libertarian grounds or addresses the problem; it is surely not an argument that applies to whether the issue should be a higher priority issue on libertarian grounds.

              Indeed, if one comes down on the “life begins pretty early on” side of the equation, then it goes to the very core purpose of the State that those lives should be protected and that efforts should be made to ensure that those lives are eligible for protection by the State.

              Most importantly, though, the question of who/what is and is not a “person” goes directly to the essence of the State’s authority to the extent that such is legitimate.  Surely the State, if it is to be legitimate at all, must have a clear definition of who/what is and is not within its jurisdiction.

              Here’s a good analogue, and indeed something that you can even use against libertarians in the future: property rights.  Property rights are simply not possible to define or determine a priori – there are countless competing philosophical definitions of what is and is not property, what is and is not ownership, and how one may obtain legitimate title.  If there are competing legitimate philosophical claims of property rights, how does one determine the superior claim?  The answer, of course, is that the State establishes rules defining property rights, ideally through resort to some sort of democratic principle.

              For the State to remain agnostic about this question of property rights for it to leave it to the individual to decide because it is so impossible to define, would be for the State to take the de facto position that property rights are entirely a matter of possession. Whoever possesses, owns, and vice versa. This is obviously problematic, and so we need to find a solution.  That solution, ultimately, is that the State has to define property rights; the question at that point becomes whether it will be a monarch, a despot, or a democracy that determines such rights, which is another issue entirely.

              The abortion issue is exactly the same type of issue.  Indeed, I could even argue that it is part and parcel of the question of property rights: is a zygote/fetus/infant an independent human with its own rights, or is it the property of the mother with her possessing the right to exercise dominion and control over it as she desires?

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              • I agree completely. The point, it seems is for the state to define the issue as best it can, based on it`s founding principles and the moral attitudes of it`s people. A referendum would be held in which the populace would make a majority decision. Rinse and repeat as technology or other factors merit.

                  At any rate, the question involves overlapping questions of rights and responsibilities. I had never thought of it as a property right before….

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              • Perhaps I’m misreading what you’re saying, but I’ve always gotten the impression from discussions with libertarians that property rights, and specifically ownership were considered to be natural rights, rather than derived rights. That is the moment you say the state’s required to define property rights, then we’re already off the reservation of libertarianism and classical liberalism and into some other murky territory.

                If property rights aren’t innate, and instead require state intervention, doesn’t this begin to erode the entire basis on which libertarian philosophy is based? Or am I being led astray by the fact that many anarchists like to use the language of libertarianism to justify their views?

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                • Most libertarians have a natural rights view of property rights, but it’s not a requirement. So viewing property rights as involving state recognition (or as I would put it, social recognition; property rights can be real in a stateless community) certainly erodes the basis of a particular–and very prominent–strain of libertarianism, but not necessarily of libertarianism per se.

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                • This is one of those areas where I disagree with most libertarians. It’s also one where I think most libertarians are not only wrong, but demonstrably so. I tend to view property rights and respect therefor much more as a rule of law issue than as a natural rights/negative liberty issue.

                  If we’re talking very very generally, I can understand the claim that property rights are natural rights. My objection arises when you then try to figure out the contours of those property rights. How does one prove that a Lockean theory or system of property rights is just, but a first possession theory is not? Even if you accept a Lockean view as being the only natural rights view, it doesn’t get you very far before you wind up having to resolve conflicts in a way that just can’t be done a priori. Ultimately the contours of those rights have to be defined by an entity with legitimacy.

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                  • Even if you accept a Lockean view as being the only natural rights view, it doesn’t get you very far before you wind up having to resolve conflicts in a way that just can’t be done a priori. Ultimately the contours of those rights have to be defined by an entity with legitimacy.

                    This statement, I would submit, is not only a pretty decisive argument against a priori Grand Vision Libertarianism. It’s the fundamental premise justifying what we in we currently call ‘liberalism’.

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  7. Excellent post, Sam.  I’m not a libertarian, of course, but the arguments that Mark, James and Kyle voice do seem to me to ring true, and allow for what you see as a disconnect.  However, I also think your recognition of said disconnect is true as well.

    If I might tie this post in with Erik’s post on labels, one of the things I have learned by hang in out here is that at the end of the day most of us are pretty much on the same page, even though we like to think we are at opposite ends of the spectrum.  Position by position, Jason and I (I have found) disagree on almost nothing (maybe nothing period?) – except that using the “libertarian” mantle is the proper way to get to those positions.

    We are all far more alike than we like to think.

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  8. One thing that I find to be wacky… if you asked folks in the US if they thought that the US had more restrictive abortion laws than, say, Europe or if Europe had more restrictive abortion laws, I would tend to suspect that we’d get mostly answers that said that the US was more restrictive than Europe… well, more restrictive than Northern Europe, maybe on par with Southern Europe.

    When, according to this, the US has among the most liberal abortion law in the world. Seriously: We’re up there with Russia.

    The attitude that if we tighten abortion law, at all, we’ll suddenly have women dying in back alleys and we’ll all be stuck living in 1940’s America again seems… well, to lack nuance.

    There is room between where we are and 1940. There’s Sweden, for example.

    (Now, keep in mind, I say that as someone who feels that abortion should be legal up to and including the moment of crowning for reasons as trivial as eye color selection.)

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  9. Of course there is a fetus involved and what we think or believe about its existence is important. However there is a woman involved. Not a slogan but a person. That is where there is a conflict because the woman definitely has certain rights while the rights of the fetus are widely disagreed upon. You appear unwilling to acknowledge the woman in the equation. In fact i think you explicitly said there was no conflict over the rights of women and/or fetuses in a different thread.

    You still seem to be talking around what you want. You talk about returning the issue to the people and legislatures when what you want is to send it to states where you think you will be able to outlaw abortion at the state level. Getting rid of abortion seems like your goal but you are dressing it up in the language of freedom.

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    • If I may, greg…  I think for some, because of when they believe “life” begins, this argument is tantamount to saying that an infant being killed is a woman’s rights issue because there is a mom that needs to care for it.  I don’t see it as pretending a woman isn’t there so much as thinking that the scales of rights infringement are inherently tipped far, far in one direction.

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      • Tod- I don’t have a problem if a person says human life  with rights beings at conception. I don’t agree but thats fine. The line of argument that says just send it back to the “states and people” is simply arguing for , what they feel, is a change of venue to a place where they can have more success. If somebody wants to argue federalism is the bestest i don’t agree but thats fine. But there is a disingenuous that argues for sending it to the states based on all this freedom talk when the issue they think they can win there.

        I think its fair to say there is rights conflict between a fetus and a woman. For many people the age of fetus matters a lot to the rights it/he/she will have. What i don’t see is a discussion of the woman side of the conflict. Its not just a woman has to care for the baby but a woman has to be pregnant. Tom has explicitly said the womans body argument is a distraction. That is not what i would call addressing the issue.

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        • FWIW, I agree with you, but I also get where those that don’t are coming from.

          In fact, this is one of the reasons why I think this issue has become more about continuing the war than trying to come to a conclusion.  Were I pro-life, and my number one concern was getting enough people to agree with me that abortion was wrong, the very first thing I would do is try to lay out some proposed system that reduces or eliminates abortion while still appeasing those for whom women’s rights issues are a genuine concern. (And historically, those are very real issues.)

          Instead, I see these issues mocked.  And I see accusations (even here, by the writing staff) that those that are pro choice are OK with killing 6 month olds.  And constant dialogue only with those who we already agree with.

          This suggests to me that we have reached that stage where continuing the war we feel empowered fighting has become our real mission.

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  10. Sam, you’re suggesting that libertarians must defend a woman’s right to choose based on personal liberties but you base that on an assumption that they don’t see the fetus as a life with it’s own rights.

    Mark beat me to this. He’s exactly right about libertarian support (or lack thereof) being based on the determination of when life begins. If life begins at conception, for example, a libertarian would defend the child’s right to live as a personal freedom.

    You say in your post:

    “…intervention into a woman’s personal medical decision making…”

    So that seems to indicate a very liberal view of abortion. Many would say, “Intervention into a woman’s attempt at killing her unborn child.” If you can’t acknowledge that reality then you will of course be unable to understand pro-choice libertarians.

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    • I think I assume that, for the libertarian, the right to do with your own body trumps all other concerns. There is something intimate about the idea that a third party could tell you what obligations you do and don’t have. But your argument is that when a pregnancy is involved, that right stops, and in fact, that right is eliminated entirely by the need to give birth to that child?

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      • But your argument is that when a pregnancy is involved, that right stops, and in fact, that right is eliminated entirely by the need to give birth to that child?

        I think his argument is that pro-life libertarians would be inclined to view things that way. Which I think leads precisely to the issue you bring up: on what grounds is simply being pregnant a sufficient condition for the abrogation of a woman’s otherwise existing rights?

        Personally, I think that’s the correct question to be asking here – not only to pro-life libertarians, but all pro-life advocates: on what grounds is the right to life of a fetus justified as a trumping right? Personally, I don’t see that there’s a sound argument for this conclusion. At a minimum, the fetus and the mother have competing rights. So on my view, anyone who skips over the right’s-conflict part of the issue simply cannot coherently sustain a pro-life position. (They are, of course, entitled to their opinion.)

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        • Because in the vast majority of cases the mother has some degree of responsibility for the fact that the fetus is in a situation where it cannot survive without the use of her womb, whereas the fetus has none. Only in the case of rape would you have genuinely conflicting rights.

          Granted, I don’t buy the premise that a fetus has rights. But the argument for banning abortions except in the case of rape (the mother had no choice) or non-trivial risk to the mother’s life (which she could not have reasonably foreseen) seems pretty solid to me provided that you do accept that premise.

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          • I’m not entirely disagreeing, but I think this argument is precisely what freaks out the pro-choice side, because it comes across as a rationale for saying women shouldn’t have sex (birth control does occasionally fail), or that if they do, everything that happens thereafter is their own fault.  In contrast, there are no remotely similar repercussions to sex that men face, and very few people make the argument to men that they shouldn’t ever have sex outside of marriage because they might inadvertently conceive a child.

            The “choosing to have sex” = “choosing to become pregnant” concept skeeves out a lot of people, and I can understand why.  This isn’t at the heart of the pro-life argument – the heart of it is that you can’t kill a person just because that person’s existence makes your life more difficult.

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            • Indeed Katherine, this is a very important point. I always find myself rankled when this line of argument ‘the woman is responsible for the fetus being inside her” is deployed. More adamant feminists generally refer to this as ‘Slut Shaming’ and while I wouldn’t subscribe to that incendiary level of rhetoric I feel there is a salience to it.

              What users of this female responsibility argument always seem to ignore or scuttle away from is that it generally does take two people to cause a fetus to appear in a woman’s body (or a person and a God in one scenario I read about somewhere).  This also ignores the historical, sociological and psychologically unhappy fact that at least 95% of the arts; 50% of economics; 50% of society; 95% of athletics and large proportions of every other human activity in existence is pursued with the express or implicit purpose of overriding any given woman’s disinclination to get pregnant and convince her to open the drawbridge so to speak.

              So yeah I really don’t like the whole “well it’s her fault for having sex” thing.

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              • But if the sex was consensual, Mr. North, a [natural] obligation has been created.  It just didn’t “happen.”  We are responsible for the consequences of our actions by any ethical code imaginable, even if the consequences were unforeseen, even if not explicitly negligent.

                It’s not about guilt, or slut-shaming. It’s about ethics, and we cannot change the natural order—that it’s women and not men who get pregnant—with abstract theorizing about “rights.”

                The men don’t get off scot-free, either.  They have a price to pay for consensual sex too, if it results in a pregnancy.  18 years of child support payments, and he doesn’t even get the “choice” of giving the child up for adoption.

                [Let’s not digress into that legal swamp, how deadbeat dads duck out.  The fact is, he has an 18-yr obligation, one that cannot even be discharged through bankruptcy.]

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                • “… and he doesn’t even get the “choice” of giving the child up for adoption.”

                  Yeah, I don’t think we want to go down the road of a father having the right to put a child up for adoption just because he doesn’t want to pay child support. Snatching the baby from his mother’s bosom and giving him to someone else just because the father is too cheap.

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                    • Yeah, this is as hilarious as Murali calling himself a liberaltarian. FYI,  most women don’t actually want people to acknowledge women as “the better human beings”. That just lead to things like putting women up on a pedestal and then treating them like slutty, slutty sluts when they do anything that men disapprove of. We just want equality, and that equality includes the right to screw up, just like men, without being given an extra hard time, because – yo, you the ladies, you should be better human beings than men!

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                    • Yeah, this is as hilarious as Murali calling himself a liberaltarian

                      So, what. I like free markets and efficient safety nets because that is what would benefit the worst off, endorse personal and civil liberties.

                      I think democracy sucks and that the right to vote is over-rated, I think that marriages would last longer and be better for all the parties involved if people just stopped trying to get married when in the throes of romantic love though I offer no concrete policy proposals except perhaps the legalisation of marriages of conveniance. I think for reasons that liberals should take seriously, that abortion should be severely restricted. and suddenly I’m not liberal-tarian?

                      Get real.

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                • Arguably Tom, but any weight I would give to the arguement that “the sex created a “natural” obligation” is negated by the weight that I give to the arguement that any given woman is faced by almost 50% of the entire species turning a considerable amount of their entire waking attention to the matter of persuading, cajoling, tricking or otherwise coaxing women into having sex with them.

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                  • That’s an argument, Mr. North. I don’t think it holds up as more than poetic, but it’s an argument, so I’m good with that.

                    But ethical reasoning demands we move one square back, that putting herself in that position in the first place [getting drunk with the type of guys mom and dad warn you about] still incurs moral obligations.

                    And there is a way to fulfill that moral obligation that gets left by the door in these discussions, giving the baby up for adoption.  You must have noticed that that choice has not been mentioned much in all this.

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                    • Jesse, you mutated “ethical obligation” into “a single bad decision,” which takes us off the same page.

                      Further, “a single bad decision” has changed many a life forever, as have ethical obligations. It’s what real life is made of.

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                    •  

                      As with all things abortion related Tom it boils back down to questions of personhood. If a woman has unprotected sex with a scofflaw or even has sex with a fine fellow but suffers a contraception failure then you (and pro-lifers) assert that there’s a natural moral obligation (presumably to the zygote thus formed). Since neither I (nor pro-choicers generally) consider a zygote a person (or persons- some zygotes turn into more than one person) we don’t feel that the woman owes a moral obligation to anyone but herself.

                      Personally I concede that as the pregnancy progresses at a certain stage a very small moral obligation develops and then increases and intensifies as the woman continues to permit the pregnancy to progress until at the stage where the infant is capable of surviving outside of the woman she does have considerable moral claims competing against her own. But for the overwhelming majority of all abortions that take place I view nothing morally problematic to have occurred.

                      As always, being Canadian by upbringing, I find the abortion debate in America bemusing in how it inverts the normal MO’s of the respective sides. Left wingers and liberals develop a keen appreciation for individual rights, personal sovereignty and personal property rights; right wingers and conservatives turn into positive rights endorsers to an intrusive and intimate degree that’d make them scream socialism to the heavens if the subject in question was anything other than a pre-viability fetus.

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                    • Mr. North, there are a lot of miles in between “personhood” and nothing more than a toenail.  I think we need a better microscope.

                      “Personhood” for the zygote was even voted down in Mississippi, and even if it had passed, it would be an extreme outlier.

                      But you touch on the mileposts in between toenail and person, and it’s on them that the great majority of us hang our hats.

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                    • Most assuredly Tom, the problem then steps on out of the moral to the mere practical. Pregnancy stage estimating is an imprecise science. Is the fetus a week old? Two weeks old? How many months? There are some concrete indicators at certain developmental stages but beyond that one is pretty much out of luck. So the questions of aborting then become pretty much yes/no in general.

                      And with respect most pro-lifers who I read online generally view banning of abortion entirely to be the end game to which incremental bans of certain stages of abortions are mere waystations. It’s one reason why pro-choicers fight so fervently over the least defensible abortions; if we fight em over there we don’t have to fight em over here. An arguement with impeccable neocon credentials that one.

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                    • To pile on North’s point, I don’t remember who made the point about Europe having more actual legal restrictions than the US does on abortions, but I guess it comes back to this.

                      In Europe, there’s no massive movement to ban and criminalize abortion. Yes, abortion is restricted after the first trimester or whatever, but there’s no major parties in Western Europe who want to limit abortion further.

                      So yeah, if the end-game for pro-life folks was European restrictions, I wouldn’t be happy about it, but I’d accept that deal for something else from conservatives. More funding for Medicaid or something. On the other hand, there’s no evidence that pro-lifer’s would stop there. So, we fight.

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                    • Mr. North, I don’t think it’s a ban/don’t ban thing atall, and we need an update from 1973 on the science badly.  We know so much more about the prenatal world than we did then.

                      Roe was greeted with a sigh of relief by most Americans, I think, taking an agonizing ethical dilemma out of our hands.  We never did the ethics on it on a personal level, content to leave it to theoretical essays we didn’t read, because Roe sealed the question on a practical level.

                      But our consciences have been nagging at us, as they should.  Perhaps in the end we’ll come to the same place as Roe, but through hard work of ethical reasoning and not constitutional sophistries.

                      Or perhaps we won’t come to the same place.  It could happen, but it won’t if we leave it to the extremists on either side of ban/don’t ban.

                       

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                    • Sure, if was a national plebiscite with multiple options, required voting, and a ban on any further legislation after the plebiscite was over.

                      But in a representative democracy where the pro-restriction (and to a lesser extent, the anti-restriction) side each have such control over their respective parties and the American people don’t get nuance and consensus on any issue.

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                    •  Perhaps in the end we’ll come to the same place as Roe, but through hard work of ethical reasoning and not constitutional sophistries.

                      Constitutional sophistries? What are you talking about Tom? Most people hold the view endorsed by the Roe decision, not because of it. I mean, you keep suggesting in a devious way that if people only thought about this stuff more, and really wrestled with all the moral problems in play, they wouldn’t be inclined to agree with Roe. How is that not insulting on some level?

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                    • Still, Gallup says most don’t agree with Roe completely [above].  Constitutional sophistries admitted even by Roe supporters [below].  May I go now?  I don’t mean to be brusque, really, and you’ve been a faithful interlocutor, which I appreciate.  But I’m not speaking in code, or even from the fringe.

                      _________________

                      Laurence Tribe — Harvard Law School. Lawyer for Al Gore in 2000.

                      “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”

                      “The Supreme Court, 1972 Term—Foreword: Toward a Model of Roles in the Due Process of Life and Law,” 87 Harvard Law Review 1, 7 (1973).


                      Ruth Bader Ginsburg — Associate Justice of the U.S. Supreme Court

                      Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the court. … Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.”

                      North Carolina Law Review, 1985


                      Edward Lazarus — Former clerk to Harry Blackmun.

                      “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose, as someone who believes such a right has grounding elsewhere in the Constitution instead of where Roe placed it, and as someone who loved Roe’s author like a grandfather.”
                      ….

                      “What, exactly, is the problem with Roe? The problem, I believe, is that it has little connection to the Constitutional right it purportedly interpreted. A constitutional right to privacy broad enough to include abortion has no meaningful foundation in constitutional text, history, or precedent – at least, it does not if those sources are fairly described and reasonably faithfully followed.”

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                    • Tom,

                      Thank you.  I appreciate it when you actually develop an argument instead of just dropping a phrase and acting as though it is sufficient in itself. Because such phrases rarely are, and especially given conservatives’ tendency to denounce as “activist” any judicial outcome they dislike, while liberals tend to persistently confuse judicial interpretation for policy preferences, this is an area where such little tropes are always suspect.

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                    • TVD, I’ll second James in thanking you for presenting an argument here rather than simply asserting objections. But from what you’ve presented, and given your previous comments about this, I would be inclined to think your beef with Roe isn’t the outcome – that women were granted a protected right to choose – but rather the merits of the case and the justifications for the decision. If so, then Roe is entirely incidental to any discussion we’re having here and really needs to be addressed in a con law thread.

                      But I don’t think this is what you’re doing here. You’re using the procedural arguments justifying Roe as an entry-point into the abortion debate, and suggesting that the argument supporting choice isn’t as a matter of fact justified. So if anyone is hiding behind judicial interpretations here, I think it’s you. You want to reduce the abortion debate to a dispute over conflicting interpretations of constitutional principles rather than whether women – independently of constitutional principles! – do or do not have the right to terminate unwanted pregnancies. I think that gets things backwards, and if you can’t see that then I’ll explain in more detail.

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                    • Mr. Stillwater, Roe isn’t my entry point.  You asked what I meant by “constitutional sophistries,” and I believe I gave a satisfactory answer.

                      Yes, Still, you certainly have the floor to make the moral case for the “right” to abortion.  I don’t even know what the foundation of rights is or means in your moral universe.

                      Few even attempt to make the case for a non-legal or non-political right to abortion, so I’m encouraged you want to try.  Mostly, they argue that it’s a constitutional right, but as we see, the constitutional case is no slam dunk.

                      Since you found yrself obliged to ask me what I meant by “constitutional sophistries,” I trust I have added to your knowledge of the subject.

                      “You want to reduce the abortion debate to a dispute over conflicting interpretations of constitutional principles rather than whether women – independently of constitutional principles! – do or do not have the right to terminate unwanted pregnancies. I think that gets things backwards, and if you can’t see that then I’ll explain in more detail.”

                      I hope this makes it clear I don’t want to reduce the abortion debate atall: I want to expand it.  So pls do explain in more detail what your point is.

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                    • Gladly. On the one hand, it seems to me your unwilling to engage in the debate over the limits and extensions of individual rights as they relate to the abortion debate. To this point, I haven’t yet seen you offer your own take on the subject. You’ve refrained from putting skin in the game. On the other hand, you’ve continually accused people of intellectual laziness and/or willful ignorance of … something … so it stands to reason that you have another argument up your sleeve which you think decisive (or disruptive) here, and if unleashed would put those unfortunate ignorants to shame.

                      Well, what is that argument? It appears to be that several legal scholars have concluded that the arguments upon which Roe was decided are unsound. To you, this is some sort of death-blow to the entire pro-choice argument. Why? Because apparently you believe that the right to choose follows from constitutional principles. Well fair enough (maybe). But disputes about how constitutional provisions or legislation ought to be interpreted aren’t noteworthy in and of themselves.

                      Which leads to the cart-before-the-horse stuff comes in. On your own view, constitutional rights follow from natural rights and are codified in the language of the Constitution. What the pro-choice advocates argue is that the right of a woman to make decisions about her own body is a natural right. I mean, what could be more natural than that?  But you apparently object to that line of argument because the language codifying natural rights in the Constitution doesn’t unambiguously accord that right. So even on your own terms, you’re (conveniently, it seems to me) placing a higher emphasis on the specific, literal language of the constitution than the rights ostensibly codified therein.

                       

                       

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                  • JamesH, I’m intensely curious whether you were aware of constitutional criticisms of Roe even by its supporters such as Ruth Bader Ginsburg.

                    I’ve been heeding yr advice that I should explain myself more often to my fans/inquisitors.  I had given up b/c they seldom acknowledge it when I provide the factual evidence and links to support my claims, and just switch to biting on my other ankle.

                    The acknowledgments here by you and Mr. Stillwater are the rarest of exceptions.

                     

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                    • I’ve been heeding yr advice that I should explain myself more often to my fans/inquisitors.

                      I think this is good advice to follow Tom. I’d love (LOVE!) to hear more on the explanation side of things. How are we supposed to learn where we’re wrong if you don’t explain it to us?

                       

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                    • Seconded.  I contend Roe is the weirdest case since Plessy and just as dispositive.   If ever there was an argument for a Constitutional Convention, it would be on the basis of Roe.

                      Really, the present Constitution is grossly inadequate.  It doesn’t serve the nation as it stands today.   I’ve been watching you as you make your case and find in it a certain grim integrity lacking in almost everything I’ve seen in the blogosphere on this tendentious subject.

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                    • Tom,

                      Yes, back in grad school, before I gave up on the study of constitutional law as being far too much of a post-modern enterprise (even among conservatives, despite their pretenses that there is a “true” meaning, constitutional interpretation is a pure social construction), I spent some time pouring through some of the literature on Roe.

                      But frankly I was never that impressed by the criticisms.  One the one hand it’s a classic case of hard cases making for bad law.  On the other, I think there’s stronger logic to it than its detractors admit.  It all goes back to Griswold, of course, and I think Douglas was absolutely right about his much-mocked penumbras and emanations, because I think it’s silly to proof-text the Constitution, pulling chunks out and examining them de-contextualized from the whole she-bang.  The document is, in important ways, a whole, not a collection of discrete bits.

                      I also think that the criticism of Blackmun’s trimester scheme is overworked.  Abortion is, as someone here suggested, a sorites problem (unless we really are going to go all the way to conception and criminalize the taking of the morning after pill).  In such cases the Court has a duty to try to impose some kind of distinctions on a system that inherently has none, and it’s a bit much to criticize them for not doing perfectly what is impossible to perfectly do.  The trimester system, for its flaws, at least has the benefit of working off some reasonable focal points.  Of course that doesn’t keep its central premise of viability from coming into conflict with advancing technology, but like I said, constitutional interpretation is a social construct, and Blackmun’s construction has worked reasonably well, despite all the criticisms of it.

                      But my view aside, in addition to the direct critiques of Roe’s reasoning. there is an extensive cottage industry of trying to devise better constitutional reasonings (mostly notable, IMO, for actually being inferior to Roe), which does indicate that even supporters aren’t fully persuaded by the logic.  And no honest defender of Roe can pretend it ain’t so.

                      (But for my money, the Constitution gives us no indication that it contemplates fetal personhood.  The best we can dredge from it is a recognition of an individual having rights extant from birth.  Add that to the penumbras and emanations, and I struggle to find authority for government to interfere. And I’m a guy who disdains a former roommate for being that proverbial person who used abortion as birth control (couldn’t take the pill because she smoked, she said) and who was stunned into reverential awe at the sound of my fetal daughter’s heartbeat. I’m not too far off Jaybird’s stance.)

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                    • Mr. Stillwater, I gave up debate for discussion some years back.  The former is unpleasant at best; the latter is what makes life worth living.

                      I’ve found that people value only those conclusions they come to on their own, not from listening to somebody speechify.  And I think that’s the way it should be.  So I put out the best arguments and facts from my readings, for people to make of them what they may.

                      What, do you think I expect to convince anybody of anything around here, or that I’m running for something?  I’d take a different tack, that’s for sure.  I’m lucky to get out of discussing a controversy with my skin and good name reasonably intact.

                      That’s what I consider “winning an argument” around here, Mr. Stillwater, no lie, mere survival.

                      Jeez, Socrates didn’t even manage that much.  Pass the hemlock, brother.  And mebbe a Guinness to wash it down with, por favor.

                       

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                    • Our LoOG morning torrent will likely bury it, but the irony & beauty of 4 foils who find themselves alternately at each other’s throats [in all combinations] finding themselves together and still at this is Finest Kind.  There is hope.

                      Mr. Stillwater, for insisting on clarity; Dr. Hanley for his erudition [I do think Greenwald set one bookend permanently] as well as his consistency in stating the “other side’s” case fairly here; and on a personal note, brother Blaise’s “grim integrity,” which is the furthest thing from prosaic.  It makes one wish he were dead, just to hear it in his eulogy, and to live from this day forward not to belie it.

                      Although I need to keep punching up my copy.  Just not on this. It makes them think you’re joking.

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                    • Really, Tom has done yeoman’s work making his case.  We mustn’t allow the essence of his hard-wrung argument to be lost among the encomiums we afford ourselves.

                      May I state for the record how I feel about this place, writing here?

                      I have the odd disadvantage of English being my second language, not my first. Others have overcompensated as I have done:   Joseph Conrad was a Pole and did the same.

                      English is a uniquely rich and bizarre language, the linguistic equivalent of the plate tectonics which thrust India against China, raising the Himalayan mountain range with the Battle of Hastings.   French formed all the polite words, Saxon all the four letter words, the Tudors made Shakespeare and James gave us the King James Bible.   But only France could give the world Molière and Racine.

                      I make grammatical errors, see them, regret them, this place has no editing facility.   I have the comma disease.  My prose is, frankly, weird and pedantic.   I don’t have a fixed linguistic identity, I’m now an old man and can’t work it out in my own mind, where I stand.   It is the language of the world now.   I suppose English will lapse into what Chinese has become, a least common denominator among many peoples.  I regret the death of every great writer in English.  Though I never much liked their politics, I mourn Christopher Hitchens and William F Buckley intensely.   The Liberals have not raised up many men of letters lately, though the poets give voice to what they meant.

                      Would that I might convey to you all what you mean to me.   The League of Ordinary Gentlemen has raised the bar on what it means to be a blogger in America.   Though no special bar has been raised, the level of debate is so obviously superior even I felt intimidated at first and lurked for some great while.   You are collectively so much better than you might suppose, if only for the level of the prose you generate.

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                • TVD,

                  Here’s the deal: most virgin girls Don’t Consent to their first sexual experience. Most girls have sex before 18, and most girls don’t have a steady boyfriend before then. Even of those who did, the emotional manipulation (or physical torture — sleep deprivation and whining…) is often enough. If you asked most girls, “A day before having sex for the first time, did you want to do it?” and asked them “during/slightly before sex, did you want to do it?” and asked them “when you first thought about pregnancy did you want to do it?”

                  You’d get a no to one of those three, I’d suspect. In fact, judging by frat parties, you’d get a no to at least the last one for a lot of teenage sexual encounters. “The Walk Of Shame” indeed!

                  Those are rapes. Maybe not legally, but one should not be able to take advantage of an altered state of consciousness (particularly one unfamiliar enough to cause marked behavior abberations), in order to press oneself on someone else.

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                  • Kim, you’ve redefined rape then.  I’ll agree that there are varying degrees of consent, but what you describe is not I Don’t Consent.

                    I Don’t Consent is rape, and needs no redefining.

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                    • Tom,

                      “I don’t consent” — how the FUCK are you defining that? It DOES need defining, SIR.

                      1) Girl has sex while conscious and not realizing it’s going on. Is RAPE? [Yes, person not within bounds of informed consent]

                      2) Girl is unable to speak, due to being too aroused, boy takes advantage of a situation he’s deliberately caused, that she doesn’t want… Is RAPE? [Yes, person unable to give informed consent]

                      3) Either party has sex while sleeping… Is RAPE? [This one’s obvious, isn’t it?]

                      4) Boy engages in torture, before finally getting someone to agree… Is RAPE? [Yes, altered state of consciousness voids informed consent]

                      I don’t think I was terribly clear above.

                       

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                  • most virgin girls Don’t Consent to their first sexual experience. Most girls have sex before 18, and most girls don’t have a steady boyfriend before then.

                    If this were true it would be appalling (and your society would be like something out of some third wourld hell hole in sub sahran africa) But, Kim, you’re going to have to give figures on this. You cant just throw this around. (The issue is not about regret. A lot of us regret a great many things that we consented to. The issue is rape and how robust their consent was)

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                    • I hate to say it Kim but I must reluctantly agree with Murali that the claim he highlighted is hair raising and probably needs either substantiating or possibly walking back. As a fellow commenter who often finds himself indulging in the heady liquor of hyperbole I would suggest there’s no shame in that.

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          • Granted, I don’t buy the premise that a fetus has rights. But the argument for banning abortions except in the case of rape (the mother had no choice) or non-trivial risk to the mother’s life (which she could not have reasonably foreseen) seems pretty solid to me provided that you do accept that premise.

            Yes, this is the argument. I’d say that even on the assumption that the fetus has robust rights at the time of conception and that the mother engaged in consensual sex, the argument doesn’t entail that the fetus’ right to life is a fully trumping right. All the argument shows is that the fetus has a rights claim against the mother. For the stronger claim to follow an additional premise needs to be included: that the mother’s relevant rights (to self determination, say) are abrogated by the mere presence of a fetus in her womb (because the fetus isn’t viable outside the womb, say).

            But that premise clearly begs the question. So, to return to the original question: Why think that the fetus’s right to life is not merely a rights’ claim against the mother, but a trumping claim against her? It seems to me that the only rationale for this is viewing rights as entailing ceteris paribus obligations. But the obligations entailed by the right to life of a fetus aren’t ceteris paribus, and stipulating that they are begs the question.

             

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        • The fetus has a `trumping `right because the right to life trumps most other rights. Thus your right to life trumps my right to fire my gun at you, or my right to otherwise deprive you of your rights in order to live life the way i see fit.  I have no right to kill you in order to move into your house, or to kill my kids in order to live free. I am not suggesting some folks here are in favour of legalizing murder. I am suggesting that you are failing to fully grasp the pro life argument. If the fetus is alive, and has human rights then there isnt any difference between killing it and killing your 2 year old.  If it helps, when you are talking about competing rights, substitute the word `baby`for `fetus`and you can avoid misreading the pro life point of view.  This isnt a viability argument, though i would submit that ones right to kill ones baby does not rest on the ability of said baby to survive alone, else it would be open season on any baby riding in a car on a cold winter night.

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          • What if the mother’s life is in danger? Which “life” has the greater “right to life”? Would you expect a cancer-ridden pregnant woman to forgo chemo until after she delivers, for example, even if the delay in treatment might end up killing her? Whose “right to life” trumps whose?

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              • Why? I mean, I can make the argument that the women has had a life and in fact, in the scenario outlined, is the near the end. That fetus may be the next MLK, Gandhi, or whoever. Why should she get an extra few months instead of the possibly 80 years of the fetus?

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                • I dont htink i want to get too deep into that last one, though i acknowledge that the same kind of argument is made on a daily basis as regards the value of human lives between different nations, say.  I am not in favour of rating lives’ relative value as it is a quagmire bottomless corruption. 

                   

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                    • That might be even true, but that’s not saying there isn’t an argument to be made that the fetus might consider it self-defense to kill the mother so it can live. Again, I disagree, but it’s a reasonable argument to make, especially since those same people talking about “life of the mother” exceptions would tell you how precious that fetus was for the previous 8.9 months.

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                    • No, killing the mother would not be a legit defense, as the danger to the mother was posed by the continued developement of the baby. the life of the mother was not engangering the baby. Your point would be very similar to claiming that a man could plead not guilty of murdering  the man he tried to kill because the intended victim fought back.  Are fetus and baby buzzwords? I am trying to be neutral in my terms to ill effect it seems. I try to  give folks on both sides the benefit of using their positive sounding titles.

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                    • If for the mother to live, the kid has to die, then yes, the baby is a threat to the mother’s life. It’s not your murder example. It’s more like you’re tied up to somebody about to jump out a plane without a parachute that can hold two people.

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                    • you misunderstood me. my murderer, in my rather crass example would represent the fetus, whom you claimed might consider it self defense to kill the mother. In establishing which person, fetus or mother had the right to live , i suggest that the mother gets the right as the baby threatened her with its very existence/developement, whereas the threat to the fetus originated from the fetus itself. So i stand by my murderous fetus analogy. The mother’s right in that case is the one to protect, and this does not create a differential in the relative value of the lives involved, just the circumstances involved with the choice to be made.

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          • But that’s just it, not everyone agress that baby = fetus, so why WOULD they make that substitution? You’re using your belief (baby = fetus) to tar other people as the equivalent to the murderers of 2-year-olds.

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            • JohnS, you have a viable enough argument without the word “murder.”  It actually detracts from the force of your arguments.

              In fact, abortion need not rise to the level of “murder” to be morally or even legally unacceptable.  We can ban—and we do—what Michael Vick did to his dogs without calling it murder, yes?

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              • True enough. I think homicide is better.  We didnt actually ban killing dogs though did we, we banned making them fight first I believe. I would go with killing but really, the requirement that the unborn have human rights (ie qualify as human) would make it homicide.

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            • Um… no I am not. If you read the post carefully i suggested the substitution as an aid to understanding the pro-life position of fetal rights. Such an aid was, in my view advisable as some people were arguing on the relative weight of fetal vs human rights, when a pro lifer generally sees it as an issue of human rights, period.

               

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          • The fetus has a `trumping `right because the right to life trumps most other rights.

            True. In an ‘all other things being equal’ sorta way. So, you can’t kill someone to take their house, but you can kill someone who’s trying to take yours. The right creates standalone negative obligations – to refrain from unjustifiably killing someone. (Actually, one of the most compelling arguments for abortion is based on the analogy of someone trying to take your house.)

            The problem is that the right to life of the fetus entails positive obligations on the mother – presumably the obligation to carry the fetus to term or at least viability outside the womb. So it seems to that the right to life of the fetus can’t be understood on the paradigm of the right to life of an adult, where the right entails only negative obligations. That’s why I’m saying that even if the fetus has a right to life, further argument must be made for that right to trump the rights of the mother (to self-determination, say, or the right to reject the positive obligations imposed on her by the fetus).

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            • The problem is that the right to life of the fetus entails positive obligations on the mother – presumably the obligation to carry the fetus to term or at least viability outside the womb. So it seems to that the right to life of the fetus can’t be understood on the paradigm of the right to life of an adult, where the right entails only negative obligations. That’s why I’m saying that even if the fetus has a right to life, further argument must be made for that right to trump the rights of the mother (to self-determination, say, or the right to reject the positive obligations imposed on her by the fetus).

              The most insightful sentence of this paragraph is, “So it seems to that the right to life of the fetus can’t be understood on the paradigm of the right to life of an adult, where the right entails only negative obligations.”

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                  • Ahhhh. Good. I’m glad you liked it. And I should say that, consistently with the premises I’ve accepted here, I don’t know definitively where I stand on the issue. In the absence of further argument, I think that insofar as the rights issue is determinative (which it isn’t, other issues are in play), my inclination is to prioritize the mother’s rights until pretty close to viability, at which point the most of the abortion debate is more-or-less moot.

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              • I dont know about the right to kill someone who is trying to take your house. In canada we do not have any such right, nor do i support such a thing, since it opens up the door to justifiable homicide on a very subjective scale. Could i kill someone for stealing my car? My TV?  In canada you can kill someone if you can show that it was necessary to protect your life (or at least that you thought it was) thats about it.

                   Be that as it may, I would point out that the precedent for maternal obligations trumping a mothers (or parents) rights is already in place and is widely accepted. Once born the responsibility of the parents to ensure the childs survival is entrenched in law and in our broder social code. Thus it is illegal and immoral to allow your child to die or suffer because you didnt want to cancel your vacation, prepare food, etc. I realize this is not the same as carrying a child but  it does speak to the idea of positive obligations.

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      • I think I assume that, for the libertarian, the right to do with your own body trumps all other concerns.

        But again, that assumes only the woman’s “right to do with [her] own body” is all that’s being counted, and not the fetus’s “right to do with [its] own body.”  If we grant the latter, its no longer so straightforward.

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          • Morally distinct, not physically.   If the fetus has an innate right to life like post-natal folks are assumed to have, then it has to be considered as having a moral reality that is not synonymous with, nor wholly subordinate to, the women’s moral reality.

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          • Wait, I thought it was fairly obvious that a foetus was a distinct entity (whether or not we thought it was a full or even semi person). I mean it may be intimately connected to the woman’s body, but it is still not just another part of her.

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                • It is potential. I don’t remember much about physics, but I do remember potential energy. Energy was required to create it, energy is expected to come of it, but in the interim it is simply potential energy. Likewise, a fetus is potential life. Mit is borne from life amd will one day be life but, in its current state, is not yet life realized.

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                  • Welcome to the tall weeds, BSK. Kudos on even finding them.

                    Potential and potentiality are not synonymous, as the author illustrates.  We could say that sperms and eggs separately are “potential” human beings, but a blank sheet of paper was also a ‘potential” manuscript score for Mozart’s The Magic Flute.

                    The blank paper holds no potentiality.

                    [I note this to save someone the trouble of concocting a reductio ad sophomorium.]

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                    • Fair enough.  That was far from a well-thought-out response to the question.  Analogizing it to physics/energy was probably just a poor direction to go in.  I guess such is the case when answering the seeming unanswerable.

                      I remember my stepfather, a scientiest by trade, once saying, “Why do people wonder where life starts?  There wasn’t something that ended previously, so why do we assume something starts anew?”  I don’t remember the rest of the argument, as I was young when he stated this, but it has always been an interesting perspective.  From this angle, it appears there always was life.  I suppose the follow up question would be when does one life (or two, if we are counting mother and father) become two (or three… mother, father, and child)?  I don’t know that this is a better way of looking at it… but it is a way.  And demonstrates the limitations of our language (life vs alive; life vs living; etc.)…

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  11. Perhaps I could try this, based upon what I’ve seen elsewhere in this thread: what rights does a woman have to make decisions about her own body? And if those decisions are limited by pregnancy, what is the proposed enforcement mechanism?

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    • A woman has an absolute right to make decisions about her own body. The question, however, is whether a zygote/fetus/infant should be considered part of the woman’s body or a separate entity altogether. The way you keep framing your questions and comments dodges this issue.

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      • Mark,

        If we’re going to consider the zygote/fetus a separate entity, can we go further, by mandating the woman take particular vitamins, receive particular healthcare, etc?

        I am not intending to dodge anything; I may be betraying my biases with my questions, but then, we all are. (To put that another way: I find it difficult to introduce a theory of “separate” when we’re talking about something dependent upon and ensconced within.)

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          • Hit reply just a bit too quickly there although I was being accurate when I said I wrote that I don’t believe in rights. Or, perhaps, at best I struggle with the idea of rights. But in any case, I think there are cases in which abortion is the “right” answer right up until birth, regardless of the notion of “human rights.”. However, I am troubled by the idea that my opinion matters here at all. Why am I, a person who will never be pregnant, dictating policy to people that will be? I also can’t get ovarian cancer, and I’d never dare tell women what treatment I did and didn’t find acceptable.

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              • Because there isn’t an analogous situation that exists in the opposite (one in which women weigh in vociferously on a healthcare issue specific only to men), it doesn’t trouble you in the slightest that men’s opinions are given incredible weight on this?

                And again, my assumption about libertarianism generally is that the opinion expressed would be one in which somebody would say, “If it isn’t my body, I do not want to be involved.” Thus my own position holding that this doesn’t seem like something I should have a say in is consistent, isn’t it? (I understand better now that there are libertarians saying that the fetus has its own rights that overwhelm the rights of the woman.)

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                • my assumption about libertarianism generally is that the opinion expressed would be one in which somebody would say, “If it isn’t my body, I do not want to be involved.”

                  I get the argument about the lack of a good analogue going the other direction.  But the quote above misses the point that the libertarian only says that in reference to a person doing something that affects only their own body.  Bring another body into the mix and it gets less straightforward, because libertarians place great emphasis on the issue of consent.  For example, if some adult is raping a child, or torturing a mentally retarded person, the libertarian doesn’t say “it’s not my body, so I don’t want to be involved.”  So the moment the fetus is considered to be a human, the libertarian who views it as such can legitimately ask whether the fetus has consented to the mother’s actions in regard to it.

                  I don’t hold that view myself, but I can’t see how it violates any libertarian motives at all.

                  Consider this (imperfect, of course) example.  We have conjoined twins.  One wants to be separated, but the operation will kill the other.  In this case the humanity of the other is not in dispute, so would it be un-libertarian to oppose the operation on the grounds that the one’s control of their own body does not  extend that far?  I can’t see that it would be.  So for a libertarian for whom the humanity of the fetus is not in dispute, a similar logic comes into play.

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            • Sam,

              Again, it’s because in the view of some people, it’s not only the rights of the women that matter.  A fetus is the very definition of a defenseless individual, and don’t defenseless individuals need someone to step up for them?

              (Again, policywise I stand with you, and I’m not making a normative argument for limits on abortion.  I just think it’s important to recognize that pro-life people are basing their decisions on something different than you are, and that while you may never agree with them, their policy preferences aren’t hard to understand once you recognize that their decision-making incorporates the assumption that the fetus’s rights are real.)

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        • If we’re going to consider the zygote/fetus a separate entity, can we go further, by mandating the woman take particular vitamins, receive particular healthcare, etc?

          Sam, that’s a legitimate question, but may I respectfully submit that it’s premature?  It’s value is that it shows you recognizing the view of the fetus as an independent entity (in moral terms, of course, not physical).  But the first step then is to consider your own question from the perspective of someone who holds that view.  That’s the question we’ve been trying to answer here.

          That said, I think your question is one that pro-life advocates rarely grapple with, but ought to.

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          • This, basically, though it’s also worth mentioning that at that point you either have a conflict of rights, if you accept the notion-as most do- that children have positive liberties of some nature, or if not the answer is straightforwardly that there are only negative liberties and so the mother has no obligation to the child other than to not actively abort it.

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          • rules against abuse of unborn are a legitimate question, but lets not single out the pro life side. Answer me first whether laws against abuse/nglect of children are a good idea (they do, after all affect teh rights of the parents).  Does the state have a role in ensuring kids are not starved or beaten or exposed to alcohol or drugs? If they do, then would they not have such a role where late term pregnancy is concerned (where abortion is not legal)?  If the answer is yes, then by logical extension,  the states role would have to extend all the way back to the beginnnig of the childs life,  no?

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            • When pro-choicers bring up this and that nightmare scenario about abortion restrictions, some pro-lifers would say, no, you’re being paranoid, you’re trying to paint us in the worst possible light. I think these pro-lifers need to listen to people like JOHN S, whose opinions and beliefs seem to confirm all the worst fears and paranoia of the pro-choice side. In the course of this thread, he’s basically call pro-choicers the equivalent to murderers of 2-year-old kids, and argue that in fact, the state does have a responsibility to control a pregnant woman’s body from the earliest stage of pregnancy.

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              • Really? Have I done that? I believe I answered your concerns in the posts you are referring to. However, if you are actually afraid of my views, let me calm you a little: Sonmi, your reading comprehension leaves a little to be desired.  If you don’t agree with my views, that’s fair enough. If you are afraid of them, well what can i say?

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  12. In general I’ll second (third) what Mark and James have said above. The question of when life actually begins is one where we can have legitimate and unresolvable differences of opinion that can’t be answered by appealing to Liberty and the views of libertarians therefore differ. On that specific question, I tend towards an answer that would actually imply a more restrictive abortion regime that the present one in the US.

    However, isn’t there a second consideration for libertarians (at least for more consequentialist libertarians) that can trump this? The consequence of banning X, after all, is not to make X disappear – its to face the people who do X with social disapproval and state sponsored violence, which are often wholly disproportionate to whatever it was they did wrong to begin with. When X is something that’s not particularly hard, and which some subset of people are likely to want to do anyway, like smoking pot or aborting a pregnancy, some people will keep right on doing it, with all the negative repercussions that happen when large numbers of people act outside of the law.

    Do we really want this? Do we want to try and imprison women for murder when they procure abortions? Most pro-lifers seem squeamish on this point, so will we just arrest and imprison those who help abort a pregnancy? How exactly are we going to enforce that? What level of aid is necessary for a prosecution? Will prostaglandin have to become a controlled substance? Can women be protected against abuse under such a regime? The ramifications seem almost entirely undesirable for everyone (except, debatably, the fetus, of course).

    I’m not arguing that 24 hour waiting periods lead inevitably to back street abortionists. They don’t. But any abortion regime sufficiently strict to actually prevent a significant fraction of present-day abortions likely would. Is the consequent increase in violence and relative loss of freedom for women and doctors still not something on which liberty has anything to say?

     

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    • SO you are suggestint that even IF one sees abortion as murder we ought to consider how hard it would be to enforce the law?  If, as I do, one sees abortion as murder then one has to support the imprisonment of people who commit that crime. Wow, would i want to see women in prison for getting an abortion? Those poor porr women! Nope. just like i don’t want to see anyone else there. But i would put them there. I think most people on both sides do not do enough heavy thinking on this issue, hence their folding on rather simple questions.

      As has already been stated, this is a question of when life begins, period. The rest is all hogwash, or are you saying murder is ok sometimes, like when  the victim was going to negatively affect another persons freedom? Or perhaps when the victim was probably not going to be loved or properly cared for in the future (all those unwanted kids, we might as well kill them)? I am not being silly here, just pointing out that all the classic lines of argument are superceded by the question of when life begins. Once that question is answered , the rest are moot. And yes, that includes rape, incest, etc.

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      • If we were somehow able to come upon an undeniable and broadly accepted answer to the question of when an embryo becomes a human being then no, we should not consider the difficulty of enforcing the law. Or rather, we would have established that the cost of not enforcing it was devastating and justified the human wreckage resulting from enforcement. Such a discovery necessarily would also result in rather different societal mores that would make enforcement easier anyway.

        The consequentialist argument above applies only because we’re operating under uncertainty, or actually under undecidability. We do not know when an embryo becomes a human being and as far as we know we have no way to know. Its at this point we’re faced with the question of what is least bad.

        Given that this is the situation, arguments about what would be justified we if we not only had a consensus on when life began but were absolutely certain of it are not that useful to anyone.

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        • I agree with your final point, except that it is necessary to define the whole discussion in proper terms. I guess my point is that abortion is not a libertarian talking point, but is instead a moral/ethical issue  which , depending on your view point is pretty cut and dry one way or another. As for that undeniable, braodly accepted thing, well that is never going to happen and has rarely occurred on any contentious issue.

              The real danger is that the issue is constantly being sidestepped. In Canada we have NO law regarding abortion. When the subject comes up we get the same ‘womans right’ obfustication. We need to focus on the question at the heart of the issue, rather than proceed down the ‘given the current laws/definitions, what should the libertarian think ‘  road.

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            • no, her right to her body continues, but her responsibility to her unborn child also exists, just as it does for new borns. Thats  my opinion.

               The obfustication is that this is a choice or libertarian issue. It isnt. It is a question of when life (and hence right to life) begins for the unborn. Once this is defined, there will be no choice issue left to debate.  Unless that is, you agree with the canadian judge who let a mother walk after killing her newborn because canadian laws regarding abortion suggested this was not really murder.

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          • Is it not possible for the key question we need to answer to resolve an ethical issue to be unanswerable, even for an individual? Isn’t there a contradiction in believing both that we’ll never be able to demonstrate to one another when the beginning of life occurs, and at the same time that one’s personal view on the matter must be “cut and dry, one way or the other”? There are no many issues were we can reach such strong conclusions for ourselves but cannot demonstrate them to one another.

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            • I would say that it is possible to come to the conclusion on a personal level. However, i think it requires some actual thought. Most people i know have simply not bothered. As for consensus, probably never, but a majority opinion, based on the countries founding principles would be a good idea. As such it would likely be mutable as time and technology changed the parameters.  Many state have this already, though they are very reluctant to re-examine the issue as they should. As for Canada ; we have no laws re abortion at all. A problem which has begun to leak into the area of infanticide.

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    • All valid and good points. My response to this is that these are all consequentialist arguments based on the at-this-point hypothetical effect of banning abortion.  Because there is not, on the federal level and thanks to Roe v Wade, a specific proposal with a serious chance of success pending at this very moment to ban abortions in a particularly severe or large scale fashion, arguments about abortion are basically confined to the hypothetical.  It is very difficult to argue that such arguments warrant prioritizing abortion on libertarian grounds for pro-choice libertarians.  This is especially true given that there are a wide array of policy possibilities fitting within the rubric of “pro-life,” some of which are far less subject to these types of as-applied concerns than others.

      In essence, with the way that our national debate on abortion occurs, the consequentialist argument is not very powerful on libertarian grounds since on the national level, the debate is almost entirely in the hypothetical.  That doesn’t make it irrelevant; it’s just that it doesn’t do much to increase prioritization of abortion for pro-choice libertarians.  If Roe v Wade were ever overturned, I would expect that we’d see such hypothetical policies seriously proposed; at that point, I would also expect the consequentialist argument to become quite powerful indeed.

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    • No, I’m asking why this issue – which to me (and my biases and feelings and other weak human frailties) is a remarkably intimate one when it comes to liberty – seems to be a nonissue for some libertarians when it comes to evaluating candidates. Ron Paul, for example, is terrible on this issue, as he has no problem with a state government dictating to a woman precisely what she does with her body; some libertarians don’t seem bothered by that in the slightest. That’s what I’m trying to understand.

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  13. I only wish we could get the pro-life people to get serious about squaring their moral positions with the death penalty.   It would also be useful to see how they propose to care for those unwanted children after they are born.

    These questions won’t get answered, of course.  But I can hope, can’t I?

    (bitter laughter)

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