Amendment 1 on the Tennessee ballot in November would strip the right to abortion from the state’s constitution, the first time that any constitution in the U.S. would be amended to remove an established right. It would also be the first time the word abortion is added to any constitution and singled out as the only medical procedure outside the zone of privacy.Wait, how can both those propositions be true?
Oh, right. There is no right to abortion to be 'stripped' from the Tennessee constitution. Tennessee is just clarifying its constitution in light of Supreme Court meddling. It's not removing an established right: it's clarifying that no such right was ever intended to be established.
Doesn't matter if it's logical, or if it's actually written there- if they like and want it, it's a 'right'.
ReplyDeleteIt's tough to converse meaningfully about things, much less agree on anything when the terms have rather different meanings to the parties involved.
Tennessee courts have already struck down several state limits on abortion on the grounds that they violate the federal (not state) constitution.
ReplyDeleteHard to see how amending the state constitution changes the legal landscape (except to make the rhetorical point that no absolute 'right to abortion' is granted by the TN constitution), but certainly they ought to be free to amend their own constitution in any way they please. That's the way the system is supposed to work and since I happen to believe Roe was wrongly decided in the first place, good on them.
It's silly and dishonest to say this will empower TN to ban abortion outright. That would require a change to the federal constitution (or a reversal of Roe).
I would think the biggest objection to this would be that it's redundant, but that's for Tennesseans to decide.
I bring this to your attention because my (female) cousin is heavily promoting it. She's an evangelical Baptist.
ReplyDeleteWhat's the point of it, you ask? Well, one major part of the point is to demonstrate that a strong enough majority in Tennessee believes that the will of its people is being regularly violated by the Federal government. That may not achieve the victory by itself, but it is an important moral point. The Constitution of the United States claims in its opening lines to be based on the will of the People; if enough states show that it is directly out of order with the will of the people, the legitimacy of the Federal government under that Constitution is shown to have weakened. That may bring some pause for reflection.
Such popular movements may be persuasive, in other words, even if they aren't directly effective.
I need to disagree with something you said, Grim.
ReplyDeleteIt's not removing an established right: it's clarifying that no such right was ever intended to be established.
In fact, you have a right to everything not explicitly forbidden by the Constitution and the Courts. The Ninth Amendment says so.
Text of the Ninth Amendment of the US Constitution:
"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."
Now, that's where the debate on Roe v Wade really comes in. In this one case, the SCOTUS said "well, you have a right to this regardless of what the law says because... penumbras of the Ninth Amendment." But by that logic, I have a right to murder you with premeditation because of the Ninth Amendment. Which is why I REALLY do not get the legal justification for Roe v Wade. If all actions are rights unless forbidden by the Constitution, then there are very, VERY few things you don't have a right to. And claiming that the ending of another human being's life is a matter of privacy because it's in that woman's body, then how can the courts claim it is not a matter of privacy if that woman (or man) wants to take drugs? Or end their own life? Or ride a motorcycle without a helmet? After all, it's their body, their decision, right?
It's hard to make sense of a discussion of abortion "rights" that take account only of the mother's rights, and not the baby's.
ReplyDeleteMike,
ReplyDeleteIn fact, you have a right to everything not explicitly forbidden by the Constitution and the Courts. The Ninth Amendment says so.
That's not what the 9th says, surely. What it says is that enumerating certain specific rights doesn't mean that there aren't others non-enumerated. It doesn't say that everything else is an un-enumerated right.
This is the distinction between an existential claim and a universal claim.
Nx: x is an enumerated right.
Rx: x is a real right.
1) ∃(x) ~Nx&Rx
2) ∀(x) ~Nx->Rx
The claim being made is (1), not (2). There exists at least one (and maybe many) real right that is not enumerated. The claim is not that everything that is not an enumerated right is a real right.
I agree with you about this, Tex.
ReplyDeleteI agree as well, Grim. But what the SCOTUS found (as I said) is that one of those unenumerated rights was a right to privacy (which included abortion for them) and was covered by the Ninth Amendment. I am saying that they are stretching it to mean that everything can be a right by virtue of the Ninth. That I was unclear in doing so is my fault.
ReplyDeleteIt's hard to make sense of a discussion of abortion "rights" that take account only of the mother's rights, and not the baby's.
ReplyDeleteAgreed, but what troubles many people is the presumption that those rights ought - by law - always to be equal. Or at least that troubles me.
Given a true lifeboat scenario (if pregnancy isn't terminated, both mother and child will almost certainly die), I don't want the Constitution preventing the states from passing laws that allow families to decide these matters for themselves. Obviously this doesn't describe the vast majority of cases, but there are a number of troubling cases that (IMO) would not make me inclined to support a one-size-fits-all rule in the federal Constitution.
I think the states should be free to decide these matters for themselves.
The Constitution of the United States claims in its opening lines to be based on the will of the People; if enough states show that it is directly out of order with the will of the people, the legitimacy of the Federal government under that Constitution is shown to have weakened. That may bring some pause for reflection.
I'm not sure it has been demonstrated that the current status quo conflicts with "the will of the people". After all, "the people" have had several decades to amend the Constitution and have not done so. But if there is sufficient support for doing so, how could I oppose the attempt?
I don't honestly know whether I would support an amendment to the federal Constitution or not - I would have to think the matter through very carefully. On the one hand, a federal amendment that protects the lives of unborn children has great appeal, but it also removes power from the States in the same way the current ruling does.
I think your preferred solution is actually what Amendment 1 (the TN amendment) is directed at securing. Here's the text of it:
ReplyDeleteShall Article I, of the Constitution of Tennessee be amended by adding the following language as a new, appropriately designated section:
Nothing in this Constitution secures or protects a right to abortion or requires the funding of an abortion. The people retain the right through their elected state representatives and state senators to enact, amend, or repeal statutes regarding abortion, including, but not limited to, circumstances of pregnancy resulting from rape or incest or when necessary to save the life of the mother.
So long as people refuse to kill the Left, nothing they do on paper will matter.
ReplyDeleteI think your preferred solution is actually what Amendment 1 (the TN amendment) is directed at securing.
ReplyDeleteYes, although it secures it only from the State of Tennessee :p
In this one case, the SCOTUS said "well, you have a right to this regardless of what the law says because... penumbras of the Ninth Amendment." But by that logic, I have a right to murder you with premeditation because of the Ninth Amendment.
I don't think this logically follows, though. The Constitution largely leaves to the states the power to decide what is or is not a crime. Murder laws are usually state laws. So in that sense, the Constitution doesn't protect the right to murder another adult. It doesn't have anything to say about murder at all. If anything, it protects the right of the States to decide what "murder" is.
Which is why I REALLY do not get the legal justification for Roe v Wade. If all actions are rights unless forbidden by the Constitution, then there are very, VERY few things you don't have a right to.
Again, I don't think this is an accurate interpretation of the Constitution. It identifies a limited number of individual rights that the States may not infringe upon (the right not to be bought/sold as a slave, for instance). But if the Constitution is silent on a matter, the States may then pass laws regarding it as they please. I'm not sure that's the same as "granting rights".
And claiming that the ending of another human being's life is a matter of privacy because it's in that woman's body, then how can the courts claim it is not a matter of privacy if that woman (or man) wants to take drugs?
The problem is the definition of "human being". At the moment of conception, we're not dealing with a life that is equivalent at that time to that of a baby, a child, or an adult. We're dealing with two cells. If allowed to grow and develop, those two cells may some day become a human being, but it's not clearly so at the moment of conception.
Or end their own life? Or ride a motorcycle without a helmet? After all, it's their body, their decision, right?
I don't read Roe as granting unlimited privacy. It arose from a case where a state criminalized the use of birth control between married people. The privacy aspect was that the court reasoned that if people have a Constitutional right to be secure in their homes from government intrusions (search/seizure, quartering of troops), then surely they had a right to make decisions about birth control in the privacy of their bedrooms.
One can agree or disagree with this logic, but it's not crazy. Nor is it really inconsistent in theory with conservatism. The point of criminalizing the use of birth control was that couples couldn't even prevent those initial two cells from joining!
The unintended effects of this ruling have been, I would imagine, beyond what the court imagined. But ironically, I think the logic of recognizing a limit on ANY government interference with such a private matter is hard to assail.
It's just that the original ruling was a slippery slope.
Yes, although it secures it only from the State of Tennessee :p
ReplyDeleteBaby steps! :)
As far as I can see (and with the very limited time I've had to reflect on this) I don't have any problem with the proposed state amendment.
ReplyDeleteBut that's the beauty of federalism - even if I did, my opinion is beside the point b/c I'm not a citizen of TN :p
"We're dealing with two cells. If allowed to grow and develop, those two cells may some day become a human being, but it's not clearly so at the moment of conception."
ReplyDeleteCertainly it's not clear to some, but then there are some who deny we landed on the moon. This argument has become popular, but really, has no reasonable basis in science. The DNA of those two cells is unique, clearly descended from the mother, but at the same time different (and not just in the way a cancer cell is mutated or a cell infected by a virus is corrupted). We use DNA as identification worthy of sentencing one to death under the right circumstances- how does it not work so here?
Douglas,
ReplyDeleteI was actually in this position at a time in my life when I had no moral objection to abortion. Frankly, I hadn't even thought about it. DNA had nothing to do with my decision not to have an abortion.
Abortion does take a potential human life, but I place it along a moral spectrum in which (to me) preventing a tiny group of cells from eventually developing into a human being is not the same as pulling out a gun and shooting a full-fledged person. One has a life, and loved ones, and consciousness. The other doesn't, yet. It can't even survive on its own.
You could scrape a bunch of cells from my epidermis and the DNA would be human. But it ain't a person yet.
These are not trivial differences.
I say this because it's quite possible to recognize (on the one hand) that a recently fertilized egg looks nothing like a human being and yet also feel that it's dangerous to disrespect or dismiss that spark of potential humanity. A fertilized egg looks nothing like a human being and won't for months. It has no awareness at that stage.
The reason I say "may" is that a lot can go wrong from fertilization to birth. The literal truth is that that fertilized egg may not make it. It may not attach properly, may not grow properly, may never become a person. The miscarriage rate is highest in the beginning and decreases throughout pregnancy.
Yet for many women, even an early miscarriage is emotionally devastating. We mourn the loss of that potential person. I'm one of those women who often gets tears in her eyes just looking at a baby. Or even a fetus in utero. I feel a sense of reverence. But those are emotions.
One second before fertilization, that clump of two cells is also a potential human life. An egg, if allowed to be fertilized is a potential human life. So in that sense the Catholic Church's ban on birth control makes a lot of sense. The moment of conception is one place to draw that bright line everyone wants. Viability is another. The end of the first trimester is another.
None of this, despite my feelings or my faith, is crystal clear.
I agree with Cass. There may be sound practical reasons to draw a bright line early in conception, or even pre-conception, but that's not because the bright line is so obvious. It's more like the Jewish tradition of "building a fence around the Torah": deliberately setting the limits far back from the necessary point, to prevent blundering across them. That's a strategy to trade individual discretion against the chance of harm.
ReplyDeleteIf you've ever tried, and failed, to become pregnant, the moment of conception becomes a very meaningful dividing line. That doesn't mean I think society must make the decision that everyone will be required to honor that meaningful dividing line as the fence around the Torah.
On the flip side, drawing the dividing line at birth is kind of nuts. I'm completely comfortable with society requiring everyone to draw it much earlier. Yes, it's an imposition on personal choice, but so is the prohibition on murder. Lots of fine laws are impositions on personal choice.
When I said that a discussion of "rights" must include those of the baby as well as those of the mother in order to make sense, I didn't mean that I thought the dividing line between "clump of cells" and "human being" was universally obvious. I only meant that it's crazy to talk about someone "removing rights from the Constitution" by limiting abortion. You might equally complain that the 14th Amendment removed rights from the Constitution, because it took away slaveholders' property rights.
What you're calling 'a fence around the Torah' is similar to a concept from the British legal scholar (and Law Lord) Patrick Devlin. He talks about moral laws in terms of "fortresses" and "outworks," the latter of which may sometimes defend something that isn't of obvious importance -- like not allowing children into bars, which he said is completely trivial -- in order to protect a 'fortress' of great importance -- such as limiting alcoholism.
ReplyDeleteYou could scrape a bunch of cells from my epidermis and the DNA would be human. But it ain't a person yet.
That's distinctly different from Douglas' example, though, for several crucial reasons.
A) Cells on your epidermis are already dead.
B) Even in the dermis itself, where they are not dead, they are part of you in the strong sense that he means: the DNA is exactly the same as yours, was produced exclusively by you, and is therefore part of you.
C) The cells from your dermis won't ever produce an independent human being. They don't actually have the same potential as the child post-conception at all.
D) The child not only may potentially become an independent human life, it already is one. It's doing what it is doing in terms of growing, taking in nutrition and ordering it into new cells, etc., strictly in accord with the instructions of its own DNA. It's not yours; it's not you. It has its own purpose and intent written in the independent code that Douglas identifies.
The cells from your dermis won't ever produce an independent human being. They don't actually have the same potential as the child post-conception at all.
ReplyDeleteActually they do, or at least may well in the near future. Cloning.
And a fetus is NOT an independent human life. Sever it from the mother and it quickly dies. That's the very essence of "independence".
It's doing what it is doing in terms of growing, taking in nutrition and ordering it into new cells, etc., strictly in accord with the instructions of its own DNA.
ReplyDeletePregnancy isn't nearly that simple, Grim. There's a ton more interaction (and dependence) between a fetus and the body of the mother. You could even say, "host" but I dislike that term.
An intestinal parasite does all those things too - grows, takes in nutrients, etc. So that's really not a terribly useful distinction :p
An intestinal parasite does, but no one would argue that you are your parasites! The argument is whether there is an independent life at stake, and clearly there is in either of those cases.
ReplyDeleteAnd a fetus is NOT an independent human life. Sever it from the mother and it quickly dies. That's the very essence of "independence".
No, independence doesn't require the ability to live outside of a specific environment -- otherwise you aren't an independent life either, because you'll die if moved from Earth to Mars (or outer space generally).
I take independence to be simply that you have a separate principle of organization. The principle that organizes you -- that continues to make sure your physical body is renewed -- is clearly not the same as the principle that orders the child. Interaction is fine -- separate members of any ecosystem interact in a host of ways -- but a particular being is separate from another if that being is self-organizing (as through DNA, though other life forms have other mechanisms). In that way, the child's independence is clear and indisputable.
Actually they do, or at least may well in the near future. Cloning.
Well, if you want to talk about future technologies, artificial wombs. If a child of two cells could be removed from the woman and safely grown in a separate environment, would the woman still have the right to kill a child she didn't want? Or is that right really not the 'right to kill,' but the right to control her own body -- which, when the technology exists to eliminate that problem for her, means that the exercise of that right is limited to removal of the child from herself and not the right to order the death of the child?
If a child of two cells could be removed from the woman and safely grown in a separate environment, would the woman still have the right to kill a child she didn't want?
ReplyDeleteDifferent situation, though. A child growing in outside the mother places no physical burden upon her the way pregnancy absolutely does. It doesn't change her body, won't damage it, doesn't subject her to the known risks of pregnancy and childbirth.
If she were to be diagnosed with cancer, she could safely take chemo without impacting the growing embryo or fetus. She can take medication, or drink alcohol.
Being pregnant necessarily impacts a woman's ability to control her own body.
And frankly, the idea of The State ordering the kind of thing you describe is terrifying. Or ought to be.
It never ceases to amaze me how government power is such a big problem until it's employed to do something we support. We talk of "force" and "coercion", but somehow in this instance we're incapable of recognizing those aspects.
Brave new world... not.
Woah, who said anything about the government ordering anything? I'm asking about the right of the individual, not the powers of government. You've said many things I agree with -- indeed, it's why I brought up the example:
ReplyDelete...a child growing in outside the mother places no physical burden upon her the way pregnancy absolutely does. It doesn't change her body, won't damage it, doesn't subject her to the known risks of pregnancy and childbirth. If she were to be diagnosed with cancer, she could safely take chemo without impacting the growing embryo or fetus. She can take medication, or drink alcohol. Being pregnant necessarily impacts a woman's ability to control her own body.
Exactly. That's just so.
So, let's take another look at the right. Are we really talking about a "right to an abortion," or a "right not to have her body used to incubate a child without her permission"?
What I think the example proves is that it's the latter. That's not to say that the state should be able to force her to whatever; I'm not sure where you got the idea that was being advocated. It's a question of what right she has that she's free to exercise or not at her discretion.
Right now there's no way to do the one thing (remove the child at this stage) without doing the other (killing her child). So we have to balance her rights and the child's rights in some way. But if the technology improves to where that is no longer a problem, well: as you say, a child outside her places no burden on her or her rights. So would she still have a right to demand her child be killed if she did not want the child?
The bright line to me is conception. No one, I believe, argues that contraception is killing a human being. The Catholic Church considers it unnatural and harmful, but not homicide.
ReplyDeleteBut after conception, having an abortion might be committing homicide. That's the first point where you might be dealing with another human being.
Speaking of government control of our bodies, what's the Hall's view on conscription?
ReplyDeleteIf you want "the Hall" to give a view on it, as opposed to me declaring a view ex Cathedra, you should make a second post. If you don't have posting rights already, drop me an email at grimbeornr -at- yahoo -dot- com.
ReplyDeleteAre we really talking about a "right to an abortion," or a "right not to have her body used to incubate a child without her permission"?
ReplyDeleteThanks for the clarification.
I think it's absolutely the latter. There are physical as well as emotional costs to pregnancy (not the least of which is being forced into a level of intimacy and connection with another life that is unlike anything you will ever experience.
But there would be costs to the fetus to removing it and putting it in an artificial womb that ought to be considered. This is the hard part - at first, we're dealing with a group of cells.
But as gestation progresses, that group of cells becomes aware of/reacts to its surroundings: first on the level of an animal, later it will feel some emotions (fright, anxiety, comfort).
How much are we willing to experiment with someone else's well being - because we're talking about allowing that clump of cells to develop into a person, but not in the way nature or God intended - to prove a point?
To elaborate on this point, there are intangibles that should be considered that are beyond the scope of technology.
ReplyDeleteStudies have shown that abused children are often worse off after being removed from the home and placed with someone they're not related to. It's not logical. A lot of nonverbal communication takes place between a pregnant woman and the fetus. How does technology replicate that?
Well, it's a thought experiment, so we can either stipulate that the technology can somehow do it, or that it can't. We can do both, for that matter, and see if we get different results.
ReplyDeleteBy the same token:
How much are we willing to experiment with someone else's well being - because we're talking about allowing that clump of cells to develop into a person, but not in the way nature or God intended - to prove a point?
If we're talking about the thought experiment, we don't actually have to be willing to do it at all -- we're just using the experiment to clarify the question of exactly what right the woman possesses.
On the other hand, if such a technology did exist, its use wouldn't be "to prove a point," but to save a life. Well, a whole lot of lives.
According to this piece by Dr. Suzanne Trupin, 40% of American women elect to abort a child at some point in their lives (well over a million times a year). About 98% of these are elective, with only around 2% for medical reasons, rape, or fetal health issues.
Forty percent! I had no idea it was so many. I knew that 98% of them were for non medical reasons, and not rape or incest, but that so many American women would be personally involved in the practice is almost reason to despair.