Editore"s Note
Tilting at Windmills

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September 3, 2006
By: Kevin Drum

ABORTION IS MUR MILDLY DISAGREEABLE....Jonathan Rauch reviews Ramesh Ponnuru's Party of Death today in the New York Times. Over at NRO, Jonah Goldberg calls the review "fair and sensible" and says Rauch is "one of the sharpest minds and most decent souls around." Here's what Rauch says:

Eight-week-old fetuses do not differ from 10-day-old babies in any way that would justify killing the former, [Ponnuru] writes. The law will either treat the fetus as a human being with a right to be protected from unjust killing or it will not. If those are the only choices, and if the right position is that an early-term fetus is a full-fledged person, why not impose jail terms on women who seek abortions? After all, they are taking out a contract for murder. Instead of confronting that question, Ponnuru equivocates, mumbling that the pro-life movement does not necessarily seek jail time for women and that fining doctors and revoking medical licenses might suffice.

....Ponnuru says the issue should be returned to the states and abortion then banned in increments. He does not say what he thinks abortion law should finally look like, or how the hardest cases should be handled, or what to do about the surreptitious abortions that a ban would inevitably bring (though he does observe that antibiotics have made black-market abortions safer). One can be sure that if he were on the other side of the issue, he would zestfully denounce those omissions as tactical pirouettes.

This is pretty much precisely the question all the rest of us have been asking Ponnuru all along. But back when we were asking it we were berated for not taking the issue seriously and not confronting Ponnuru's razor-sharp moral logic. But now that Rauch brings it up, it's "fair and sensible."

Whatever. I'll take what I can get, I guess. But can we now finally get a straightforward answer to this question without the usual shilly shallying? In Ponnuru's world, why should people who murder fetuses or allow their fetuses to be murdered get off with nothing more than a stern warning?

Kevin Drum 1:20 PM Permalink | Trackbacks | Comments (173)

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Because Ramesh Ponnuru says so. Even if he does talk like a girl.

Posted by: Pamesh Ronnuru on September 3, 2006 at 1:27 PM | PERMALINK

In Ponnuru's world, why should people who murder fetuses or allow their fetuses to be murdered get off with nothing more than a stern warning?

Kevin, you're twisting Ponnuru's words. Ponnuru DID NOT say abortion was murder. What he did say was that life begins at conception and that abortions are a wrongful destruction of human life. Ponnuru believes because abortions are a wrongful destruction of human life, doctors should be punished, but because he does not believe abortions are murder, they and the fetus carriers should not be prosecuted for murder. It's a very simple difference. Of course, I don't expect a Ned Lamont Democrat like yourself to understand the difference.

Posted by: Al on September 3, 2006 at 1:38 PM | PERMALINK

This issue is a quandary for anti-abortion liberals like me.

Posted by: Vincent on September 3, 2006 at 1:41 PM | PERMALINK

"I did not have sex with that woman" (it was oral sex)

"Ponnuru DID NOT say abortion was murder" (he said it was an unjust killing)

Either both of these statements are deliberately misleading or neither is. It is immoral to condemn one and defend (or make) the other.

Posted by: George Dorn on September 3, 2006 at 1:50 PM | PERMALINK

If we can't equate a fertilized egg with King George, or call RU-486 the same as terrorists murdering us all, Al and I won't know what to think!

Give us black and white! (We're white, Al and me!)

Posted by: Freedom Phukher on September 3, 2006 at 2:05 PM | PERMALINK

Human beings breath air with their lungs. Fetuses do not, ergo they are not human. That logic is about as razor sharp as saying a 8 week old fetus is the same as 10 day old baby.

Posted by: Michael7843853 G-O in 08! on September 3, 2006 at 2:08 PM | PERMALINK

Presumably, the law should administer a party loyalty test. If the doctor and/or mother was a Democrat, then it's murder.

Posted by: craigie on September 3, 2006 at 2:10 PM | PERMALINK

Remember, Kevin's perspective is that an abortion is like an apendectomy, a medical procedure that raises no moral issues. So take everything he says trying to sound serious about the issue with a grain of salt. He definitely has not said what Rauch says in his review.

Rauch's critisim about Ponnuru's book is intellectually legitimate, basically that Ponnuru does not provide altogether consistent or satisfying answers with respect to the solution to abortion, but that is mostly an argument about practical tactics, not moral principles.

What is interesting is that Goldberg is willing to be honest about an issue such as the respect to be afforded Rauch's review, which is ultimately dismissive of Ponnuru's book. I cannot imagine a David Corn or even a Kevin Drum being that intellectually honest. It is a weakness of the left that they almost never will honestly acknowledge the reasonableness of an argument they do not agree with.

Even Lanny Davis, who has made a career of trying to come accross as honest, is basically dishonest. He said this morning on TV that "I believe the democrats will probably gain control of the Senate." He obviously does not really believe that. Neither he, nor anyone else, can come up with seven republican seats that are likely to flip. I guess Davis is just a performer, but why don't folks realize that once they lie about something, they will not be credible about anything else?

Posted by: brian on September 3, 2006 at 2:10 PM | PERMALINK

Ponnuru believes because abortions are a wrongful destruction of human life, doctors should be punished, but because he does not believe abortions are murder, they and the fetus carriers should not be prosecuted for murder.

My neck hurts just from reading this sentence. Damn anti-choice twisted-pretzel-logic.

Posted by: loop on September 3, 2006 at 2:16 PM | PERMALINK

An eight week old fetus can only live within its mother's body. A ten day old baby is dependendent, but can be supported by anyone. That is the difference -- the fetus is a part of the woman's body, which she has dominion over.

There's nothing wrong with being an anti-abortion liberal. You can be against abortion all you want, just keep the law off women's bodies.

Posted by: Krowe on September 3, 2006 at 2:16 PM | PERMALINK

"What is interesting is that Goldberg is willing to be honest about an issue...."

If, by interesting, you mean unprecedented, then yes.

Posted by: Roger Ailes on September 3, 2006 at 2:16 PM | PERMALINK

It is a weakness of the left that they almost never will honestly acknowledge the reasonableness of an argument they do not agree with.

HAHAHAHAHAHA!!!

Evidence? none
Projection of current conservaloony behavior onto opponents? total

but why don't folks realize that once they lie about something, they will not be credible about anything else?

Yes, indeed, why is that Mr Bush?

Posted by: craigie on September 3, 2006 at 2:17 PM | PERMALINK

I'm unclear about this, Al-bot. If "wrongful destruction of human life" is not "murder," what is "murder?" I guess "murder" is planned with malicious aforethought, separating it from manslaughter. Oh, but abortion is planned and all. There apparently no "justification" defense here. Is the embryo/fetus not a "person?" Is that the differential?

Now, apparently "The law will either treat the fetus as a human being with a right to be protected from unjust killing or it will not." But, one is murder with serious consequences. The other gives you a fine (if a state thinks that is appropriate -- it is up to them) and the primary wrongdoer (the woman who seeks out and pays the doctor) might not even have to get that.

Abortion less morally problematic than getting your appendix out? Bad. Penalizing abortion with less than a botched appendix operation might bring, including not even charging the key accessory, possibly quite legitimate.

Honestly, if one is pro-life, works of this sort ... including the patently partisan baiting title (given his absolutism, Republicans are full with blame too) ... should be distasteful. A fundamental thing like protecting life ... born and unborn ... is dealt with in a crappy way that invites ridicule and head shakes from conservatives, including an earlier review in the WSJ.

Party of sad hypocrisy, more like it.

Posted by: Joe on September 3, 2006 at 2:19 PM | PERMALINK

Great question with a simple answer - the anti-choice crowd are political cowards. If they advocated imprisoning the woman for MURDER, moderates would turn on their agenda. But since they can't advocate charging these women with murder, they have zero credibility.

Posted by: pgl on September 3, 2006 at 2:22 PM | PERMALINK

why should people who murder fetuses or allow their fetuses to be murdered get off with nothing more than a stern warning?

Oh, oh, I know...

Because Saddam was worse?

Do I win?

Posted by: craigie on September 3, 2006 at 2:23 PM | PERMALINK

Liberals just can't stand the fact that there exist a whole bunch of folks out there who are unwilling to ignore their consciences on the issue of abortion.

So, they eagerly hunt for "inconsistencies" in the positions of people like Ponnuru in an effort to demonstrate their own reasonableness.

But which stance is superior: to throw up one's arms and say the law can never protect the unborn, or, like Ponuru, grapple with some of these questions -- and their inevitable political ramifications -- even at the risk of being accused of -- heaven forbid -- inconsistency?

As we all know, Ponuru and others like him rightly or wrongly judge that the political consequences of advocating the prosecution of women seeking abortions would harm their cause. So, they opt not to.

This not terribly novel observation doesn't warrant 400 words from Kevin Drum.

Posted by: Esquire on September 3, 2006 at 2:23 PM | PERMALINK

You are so mean, Kevin. Like Al points out, Ponnru did not say that abortion was murder -- just that abortion is like killing a baby!

Mommy, hold me and Al!

Posted by: Freedom Phukher on September 3, 2006 at 2:24 PM | PERMALINK

An eight week old fetus can only live within its mother's body. A ten day old baby is dependendent, but can be supported by anyone. That is the difference -- the fetus is a part of the woman's body, which she has dominion over.

How does the quality of only being able to live within its mother's body make a fetus a part of that body? Dependency does not render the dependent entity a part of its provider.

Posted by: Esquire on September 3, 2006 at 2:28 PM | PERMALINK

I know that if I really thought abortion was the equivalent of murder, I wouldn't return it to the States. In fact, I might start arguing that allowing abortion was a state sanction of denial of life, and therefore the 14th Amendment should require the State to ban abortion. That, or it's not equal treatment under the law, and I would argue that the Equal Protection clause meant that fetuses should be protected.

Now, I don't believe those are good legal arguments. And I don't think abortion is murder. but if I did, I sure might be arguing this way. I certainly wouldn't be content with a State-by-State solution.

One thing I find astounding is the willful compromising conservatives are always willing to do for political convenience's sake. It's tragic that they're not willing to stand where their "convictions" lead.

Posted by: MDtoMN on September 3, 2006 at 2:29 PM | PERMALINK

I'd toss in that I dislike this consistent use of "fetal life" to include everything between implantation and birth. Medically, it is quite arguably wrong to speak of "embryos" until about the fourteenth day of development. "Fetal life" doesn't begin until around the twelvth week.

And, such lines roughly match ordinary beliefs as to value and rightness of abortion in various situations. Thus, few oppose preventing implantation or abortion in the first few weeks. Some are more wary when the fetal point approaches, but still think various things might enter the discussion. And, so forth.

"Fetal life" is wrong on a scientific and moral level if used cavalierly.

Posted by: Joe on September 3, 2006 at 2:29 PM | PERMALINK

And stop pointing out that the number of abortions went way down under Clinton (along with poverty) and way up under King George!

We are concerned with what is RIGHT, not actual results!

Posted by: Freedom Phukher on September 3, 2006 at 2:31 PM | PERMALINK

This is pretty much precisely the question all the rest of us have been asking Ponnuru all along.

Here's my question: Why are you excoriating Democrats when the entities mentioned in your subtitle are controlled by Republicans?

Posted by: Roddy McCorley on September 3, 2006 at 2:31 PM | PERMALINK

"But can we now finally get a straightforward answer to this question without the usual shilly shallying?"

As someone who has labored valiantly for the last year to get Kevin Drum to demur from the party line in just one instance, I found that quote rather humorous. Kind of like being called homely by a possum.

Posted by: minion of rove on September 3, 2006 at 2:32 PM | PERMALINK

The so-called "conservatives" like Ponnuru never face up to the philosphical paradox that lies at the heart of their convictions about abortion. If we accept that the state has a legitimate role in a personal issue as profound and intimate and sacred as bearing a child, then there is no area of life that is beyond the reach of the government, and all the holy tenets of conservatism are invalidated.

Posted by: global yokel on September 3, 2006 at 2:34 PM | PERMALINK

I actually have a lot more respect for the base conservatives I know who are unwilling to compromise on any of this "womb to tomb" etc. I would love for Conservative intellectuals to grapple with these issues, but I think that's exactly what the review is arguing the author failed to do - he doesn't explain WHY this is different than murder, he doesn't explain WHY the punishments are different, and he doesn't explain WHY he's willing to compromise so much. To the degree he (and conservative intellectuals generally) gives explanations, the reviewers (and many others) find them unsatisfactory. Meanwhile, it is certainly politically expedient to take his position, so that's what it looks like.

Goldberg is not worth dealing with - he is systematically dishonest, unserious, and idealogical in the worst sense - he openly seeks for facts to fit his theories rather than trying to create a theory that fits the facts (we all have this problem, but he seems to suffer the worst from it). To do that, he often engages in open lies or intellectual dishonesty. I don't see why people read him, except that he must be emotionally satisfying for conservatives.

Posted by: MDtoMN on September 3, 2006 at 2:35 PM | PERMALINK

Joe lays out the argument perfectly in his post a few above this one. Why can't our politicians lay out the hypocrises as clearly?

Push the punishment issue, because that is, and always has been, the weak underbelly of the argument.

Posted by: Jack Lindahl on September 3, 2006 at 2:39 PM | PERMALINK

FP: "We are concerned with what is RIGHT, not actual results!"

But we do not agree on what is right. That's the problem with abortion restriction. -- it's legislating some peoples' morality and imposing it on others.

I think killing animals for food is wrong, but I recognize that other people don't and so I don't think it should be illegal.

Posted by: Krowe on September 3, 2006 at 2:43 PM | PERMALINK

Since life without compromise is a pretty tough way to live, I'm not sure how ideal uncompromising people on any side really are.

Some are less so than others, but still (if they are honest) not uncompromising. It is therefore distasteful when they smear the other sides for not doing what they themselves don't do.

But, the publisher of this book is telling. Such nuance is not their bread and butter. R. is said to be a fair guy and all, but he is in bad company here.

Posted by: Joe on September 3, 2006 at 2:44 PM | PERMALINK

Abortion is moral. I am profoundly in favor of it.

Abortion chooses the woman over the child. That's fair. After all, the woman needs to have say over the use of her body for 9 months by a stranger. If she is pregnant accidently or by a rape or other problem, she should not be forced, like a slave, to carry the child to term.

If she wishes to terminate, let her terminate.

Posted by: dataguy on September 3, 2006 at 2:51 PM | PERMALINK

Really, this whole line of attack is, while rhetorically perhaps useful, a reflection of misplaced priorities: shouldn't we decide first if, all other things being equal, abortion is an issue of concern that should be combatted or not before trying to nail down what exactly should be done to combat it? Trying to pin someone down on the latter is merely a rhetorical trick to avoid discussion of the former question.

Posted by: cmdicely on September 3, 2006 at 2:51 PM | PERMALINK
But we do not agree on what is right. That's the problem with abortion restriction. -- it's legislating some peoples' morality and imposing it on others.

That's hardly particular to abortion restrictions; there are very few areas subject to legal restrictions where all people subject to the restrictions agree on what is morally right. All law takes some peoples' morality and imposes it on others.

Posted by: cmdicely on September 3, 2006 at 2:53 PM | PERMALINK

They're not as much "pro fetus" as they're pro "die for having sex, bitch".

Posted by: Joshua Norton on September 3, 2006 at 3:00 PM | PERMALINK

Nonethless, there are some areas of morality that is left to individuals. Sure, one should explain the contours of these areas, but a majority understands questions like this fall into this class. Saying "all law" in some way touches morality is a bit too easy.

Anyway, generally, abortion is thought as an "issue of concern." One way or the other. As to the question of "should be combatted," I find this sort of attack tedious. Apparently each time some narrow area of a subject -- like slipshod arguments of an author put out by many conservatives as a much maligned person by lib blogs etc. -- we have misplaced priorities.

We have to go to the heart of the question each and every time. Don't think so.

Posted by: Joe on September 3, 2006 at 3:00 PM | PERMALINK

"Fetus carrier"?

Most people refer to us as, you know: women. Or people. Or even human.

Posted by: mg_65 on September 3, 2006 at 3:08 PM | PERMALINK

Liberals just can't stand the fact that there exist a whole bunch of folks out there who are unwilling to ignore their consciences on the issue of abortion.

I can't speak for "liberals" - I'm not even sure that I am one. I can only speak for myself.

People are completely free to follow their consciences about abortion. Nobody is MAKING people have abortions, except the Republicans in the Marianas, that is.

Nobody is forcing people to help, either. If you don't want to sell birth control pills, don't work in a pharmacy. There's always a choice.

What I object to is you forcing other people to follow your conscience.

Nobody gets up in the morning thinking, "Oh boy! I'm going to have an abortion today!" Nobody. If you think they are, you need to get out more.

This morning I saw a guy who had completely decorated his car with propaganda supporting vegetarianism. I'm not a vegetarian, but good for him. I feel much the same way about folks that would want to persuade people to not have abortions.

But persuasion is not what you are advocating. It's coercion, a far more onerous coercion than the taxation you probably denounce at every turn.

Posted by: Doctor Jay on September 3, 2006 at 3:09 PM | PERMALINK
Nonethless, there are some areas of morality that is left to individuals. Sure, one should explain the contours of these areas, but a majority understands questions like this fall into this class.

I don't think that's really the case. A large minority actively want it regulated for moral reasons, another large minority openly think it is a good that the government should subsidize. The number who think it is a matter of moral freedom in which the state should be neutral and not impose anyone's morality on anyone else seems to be a very small minority, and certainly they aren't the ones whose views are reflected in policy.

Posted by: cmdicely on September 3, 2006 at 3:11 PM | PERMALINK

If the physical act was called "making babies" instead of "making love", it would solve a lot of problems.

Posted by: Mer a Lago on September 3, 2006 at 3:17 PM | PERMALINK

In Ponnuru's world, why should people who murder fetuses or allow their fetuses to be murdered get off with nothing more than a stern warning?

Because the punishments that he would like to see can not be approved by any state legislature. Instead of giving up entirely, he is working for a small change. In light of your other thread, you might call it "incrementalist rhetoric". Opponents call it "the thin end of the wedge".

Posted by: republicrat on September 3, 2006 at 3:18 PM | PERMALINK

You can, however, get fined or go to jail for killing an endangered insect or rodent, and nobody thinks twice about it. What a world.

Posted by: potlatch on September 3, 2006 at 3:22 PM | PERMALINK

So, what level of punishment will act as a "deterrent" to abortion?

Posted by: Mooser on September 3, 2006 at 3:22 PM | PERMALINK

cmdicely:

It seems to be fairly obvious that murder is either the deliberate, premeditated termination of a human life for one's own purposes -- or it isn't.

It seems equally obvious that abortion isn't homicide or manslaughter, because the intent to kill is so clear. Neglect doesn't enter into it at all, and self-defense only applies in a tiny minority of cases when it's choice between the life of the mother or the life of the child.

If society can't be clear about what has been a clear prohibition throughout our culture's long history -- then perhaps we're talking about some different class of action altogether.

Bob

Posted by: rmck1 on September 3, 2006 at 3:46 PM | PERMALINK
It seems to be fairly obvious that murder is either the deliberate, premeditated termination of a human life for one's own purposes -- or it isn't.

I'm genuinely confused about what this is supposed to mean.

It seems equally obvious that abortion isn't homicide or manslaughter, because the intent to kill is so clear.

Homicide includes murder, manslaughter, and even non-culpable killings, so if it is murder, it is also manslaughter. Manslaughter does not exclude intent to kill (voluntary manslaughter, either of the intent through act of passion kind, or the "imperfect self-defense" kind), and killings that are not punished also can include intentional killings to serve one's own interests (self-defense). Its hardly impossible to conceive that abortion might be considered homicide and, notwithstanding being done with intent, be held to be either categorically or by some frequently encountered condition generally mitigated to some extent so as not to be rightly punished as "murder" per se.

If society can't be clear about what has been a clear prohibition throughout our culture's long history

The parameters and gradations of prohibition and punishment of homicide offenses have hardly been constant (even in the priority of offenses) "throughout our cultures long history".

The only thing that has been constant has been the broad rule that "Killing is wrong, in some degree, except when it isn't." The degree of wrongness of particular killings, and whether they fall into the "except when it isn't", has been far less consistent.

Posted by: cmdicely on September 3, 2006 at 3:58 PM | PERMALINK

The biggest problem with the so called 'pro-life' crowd is that the vast majority of them really aren't 'pro life'. They are pro-life in very specific and 'convenient' areas.

Dead children in Iraq, Afghanistan, Palestine and Lebanon are just... 'collateral damage'.

The thousands of babies and fetuses dying of starvation in Somalia and the Sudan are for the most part simply ignored.

To see a pro-life bumper sticker on one side of the car and a 'Re-elect Bush' plastered on the other side sends a rational mind reeling.

Posted by: Buford on September 3, 2006 at 4:03 PM | PERMALINK

Have you all seen this fellow (can't believe his friends call him "Ram") on the News Hour as summer replacement for BoBo? What a softie! He just sits there agreeing with Mark Shields' dissing of the Republicans.

Posted by: Hedley Lamarr on September 3, 2006 at 4:06 PM | PERMALINK

Al brings the moral clarity: "Ponnuru DID NOT say abortion was murder. What he did say was that life begins at conception and that abortions are a wrongful destruction of human life."

One is murder and the other the wrongful destruction of human life! How could the distinction be any more clear!?

Posted by: NBarnes on September 3, 2006 at 4:11 PM | PERMALINK

minion of rove
O.K. You get to put that one up as a gotcha.
I get tired of C. M. Dicely being the only one to put aside logic-chopping and go for the roots.
I realize this is a constantly insoluble but naggingly recurring topic. O.K. Warts are bad too.
Can someone give me a moral objection to abortion which is not rooted in religious text ?

Posted by: opit on September 3, 2006 at 4:21 PM | PERMALINK

I've got it! Women who are convicted of abortion should be punished by having their tubes tied!
That'll show 'em we mean business!
As for me, I swear by the full length of my penis (8" cut) I will never, never have an abortion!

Posted by: Mooser on September 3, 2006 at 4:21 PM | PERMALINK

Ponnnuru has a logic problem he can't solve, his pretzel logic proofs it is not about life, it is all about sex.

So he should start all over again. Religion or science, which is it?

Posted by: Renate on September 3, 2006 at 4:27 PM | PERMALINK
You claim that abortion is the killing of an innocent human being. Given that belief, why isn't abortion an "issue of concern that should be combatted" to you?

Where did I claim it wasn't? Are you under your quota of questions based on false premises today?

The last time Kevin raised the incoherence of Ponnuru's position on abortion and embryo-destruction ("It's murder, but the law should treat it merely as a form of medical malpractise"), you rushed to Ponnuru's defense (he even high-fived you by name in a post at The Corner) and then ran away when people started to dismantle your ridiculous "argument."

The only part of this characterization that is true is that Ponnuru did mention my post and name me on the Corner; I did not defend Ponnuru's position, I attacked Kevin's particular mode of criticism (just as here, I attacked Kevin's particular mode of criticism.)

I notice you're not even trying to defend him this time around.

I am defending his position no less than I was the time that you claim I was defending his position.

Posted by: cmdicely on September 3, 2006 at 4:27 PM | PERMALINK

How come I never screw up the blockquote tags that badly when I remember to hit preview?

Posted by: cmdicely on September 3, 2006 at 4:28 PM | PERMALINK
If induced abortion, and the intentional destruction of an embryo (as in IVF and stem cell research), is an intentional act of killing of a human being, as you and Ramesh Ponnuru claim it is, then abortion and embryo destruction should be subject to prosecution as the crime of murder.

This doesn't follow. By this standard, many self-defense killings and all instances of voluntary manslaughter (among others) should be punished as the crime of murder, as they are the intentional act of killing of a human being.

I think its clear that society has rejected your argument.

Whether mitigating circumstances exist in any particular act of abortion/embryo-destruction that would justify treating that particular act as a lesser crime than murder, or as an act of justifiable homicide, is a matter that would be decided on a case-by-case basis by prosecutors, judges and juries, just as it is in any other form of homicide.

Sure, but whether abortion itself ought to be a legally mitigating or justifying factor because it is intimately connected to (even if not entirely correlated with) morally mitigating or justfying factors is a judgement for legislators (and those in the public debating legislation) to make, as is whether or not the conditions necessary to abortion itself are a morally mitigating or justifying factor. (NB: by "legislation" here I include efforts to change the Constitution, as well.)

Aside from those who think abortion is not the taking of human life are those that think the position of the mother provides absolute license when it comes to abortion, even if the zygote/embryo/fetus is considered a human life; they don't seem at all uncommon on the pro-choice side. Ponnuru's position is similar, but more attenuated: he thinks that the position provides some mitigation but not absolute license.

Posted by: cmdicely on September 3, 2006 at 4:38 PM | PERMALINK

These discussions tend to focus on the 'murder' question without looking at the other necessary consequences of treating an 8 week fetus as a person.

If the fetus is a person, it has the right to prevent its mother from taking actions that can be construed as child abuse or neglect (e.g. smoking, drinking, sky-diving).

A fetus/person would have rights that can be pursued in civil actions. Like, for instance, the fetus' estate could bring a wrongful death action against the doctor who did the abortion. The mother, in this case would be the administrator of the estate and the likely beneficiary if there was a recovery.

A fetus/person can inherit. Mother dies in an auto accident while eight weeks pregnant. Who inherits? Well, it depends on whether the fetus survived the mother and for how long. That being the case, decisions about keeping the mother on life support can become a determinant as to whether the father inherits or the mother's relatives. One can imagine litigation over whether to terminate life support.

A large part of Anglo-American law is premised on the conclusion that a 'person' with separte rights comes into existence at birth. Change that and the unintended consequences will be extensive... and sometimes funny.

Posted by: ursus on September 3, 2006 at 4:39 PM | PERMALINK

cmdicely,

"Really, this whole line of attack is, while rhetorically perhaps useful, a reflection of misplaced priorities: shouldn't we decide first if, all other things being equal, abortion is an issue of concern that should be combatted or not before trying to nail down what exactly should be done to combat it?"

I actually really disagree that one can approach problems exactly this way. Whether or not something is an issue of political concern should OFTEN ride on how it can be combatted.

I think those people who sought to make all alcohol illegal had a valid, and useful point. The fact that the complete and absolute practical failure all suggest that trying to make alcohol illegal is very, very deeply bad policy, even if alcohol is an "issue of concern," which many people at the time agreed it was.

Seriously - the people who are opposed to abortion have very thoroughly made their moral & emotional case. Not everyone finds it compelling or convincing, but it's been made. It's about time they made their practical and reasonable case, or else the rest of us can dismiss them. It certainly feeds into the common belief that the intellectuals and party leaders who oppose abortion have no interest in a real ban and instead see it solely as an election year issue.

Posted by: MDtoMN on September 3, 2006 at 4:39 PM | PERMALINK

It's a really pathetic world when people own copyrights and intellectual property rights and defend those rights with greater vigor than they would defend a woman's right to own her body and dictate its use.

Posted by: Scorpio on September 3, 2006 at 4:43 PM | PERMALINK

sigh ... and her right to dictate its use.

Posted by: Scorpio on September 3, 2006 at 4:44 PM | PERMALINK
I didn't say you claimed it wasn't.

You asked a question that was unjustified if I hadn't.

Is abortion an "issue of concern that should be combatted" to you, or isn't it?

That's immaterial to what I am discussing on this thread. I do not exist to serve your curiousity.

I did not defend Ponnuru's position

Yes you did.

You are free to point to where I defended Ponnuru's position rather than (first) arguing that Kevin's particular line of attack against it was flawed, and (later) discussing other positions which had wandered off of Ponnuru's thesis (including, unsurprisingly, your attempt to change the subject from the issue at hand.) The thread is here for your reference.

You are also free, failing that, to quite lying.

Posted by: cmdicely on September 3, 2006 at 4:50 PM | PERMALINK

I really don't understand the extremes in the abortion issue.

Basically, if you are pro-life then it is a very slippery slope to imposing the death penalty on the doctors and women involved. AND various forms of manslaughter investigations for each miscarriage.

However, I really would not be suprised if we don't have 4 votes on the Court right now who believe that the Constitution prohibits abortion.

I also don't really understand the idea that having an abortion is like clipping your toenails.

Unfortunately the middle ground is pretty slippery and it is far easier to logically support the ban of all abortions or the legality of all abortions.

IF the fetus is just part of the woman's body, like her toenails, then how can you possibly regulate it? Or how can you have ANY regulations before the point of viability?

Maybe I am stupid, but there does not seem to be any easy answer.

Posted by: Neil Hecht on September 3, 2006 at 4:52 PM | PERMALINK

People should read the Rauch article. The article and book are nothing like Kevin Drum's snarky characterization.

Posted by: Perry on September 3, 2006 at 4:52 PM | PERMALINK

Let's end abortion and see how long it takes the neocons to sacrifice their morality in the interest of lowering welfare costs. Who's gonna pay for bring up baby that has no mamma, no papa? Maybe they can tax the already impoverished? Real fiscal conservatives were behind legalizing abortion at the time it was done so welfare could be reduced. hehehe What a team, cons and neocons.

There's an eye opener for the thinker at http://www.hoax-buster.org Time to separate the cons from the neocons.

Posted by: BG on September 3, 2006 at 4:54 PM | PERMALINK
I actually really disagree that one can approach problems exactly this way. Whether or not something is an issue of political concern should OFTEN ride on how it can be combatted.

I don't disagree with this; but I think the question of whether it is an issue of moral concern still necessarily precedes this: of course, if it is a question of moral concern, there may be no effective action that you can take, and if ther eis any, it may not be through public policy but instead through (say) person to person moral persuasion. But whether you should hope to reduce it, hope to increase it, or just ignore it depends on answering the moral question, and then the question of viable and justified means opens up.

(Of course, arguing that a proposed policy response is not a viable and practical public policy response even if it is assumed that the moral position is as those proposing a response present is a valid approach.)

Posted by: cmdicely on September 3, 2006 at 4:56 PM | PERMALINK

Of course, another question is whether a six month old* baby in the womb which could survive outside the womb should have its brains sucked out and skull crushed so the doctor can perform the abortion more quickly. But hey, let's not tax ourselves with the difficult moral questions on either side of this issue.

Instead, let's focus on the lack of seriousness of the other side.

*Or five and a half months. Or five. Or whenever the earliest premie becomes viable.

*********************************

ursus,

You mean funny results in the law like the fertile octagenarian of Rule Against Perpetuities fame? And you think the law couldn't handle your hypothetical?

Posted by: Birkel on September 3, 2006 at 4:56 PM | PERMALINK
I said subject to prosecution as the crime of murder.

Anything is, in that sense, subject to prosecution as the crime of murder, whether or not any of the elements (including an actual homicide) are in fact present.

Your claim, as you try to frame it here, becomes a nullity.

As I said, if induced abortion and embryo-destruction are homicide, as you claim, then abortion and embryo-destruction should be subject to prosecution as murder just like any other type of homicide is.

As you have cast "subject to", they would be under Ponnuru's position and, in fact, are "subject to" such prosecution in the status quo.

Posted by: cmdicely on September 3, 2006 at 5:01 PM | PERMALINK

"However, I really would not be suprised if we don't have 4 votes on the Court right now who believe that the Constitution prohibits abortion."

I would.

OTOH, I wouldn't be surprised if we have at least four votes on the Court right now who believe that the Constitution permits states to regulate abortion, up to and including a ban.

Posted by: Joel on September 3, 2006 at 5:10 PM | PERMALINK

Mooser,

PREGNANCY is the PUNISHMENT for sex, for the woman only. The punishment deters sex. That is the point, not life. Based on religion it is or is not life.
That is also why the opposition to contraceptives.

Posted by: Renate on September 3, 2006 at 5:11 PM | PERMALINK

Of course, another question is whether a six month old* baby in the womb which could survive outside the womb should have its brains sucked out and skull crushed so the doctor can perform the abortion more quickly. But hey, let's not tax ourselves with the difficult moral questions on either side of this issue.

Yes, completely skip the argument to go for the guttural and visceral. Bravo.

Meanwhile, outside of the Birkelverse, not every abortion is done in or near the last trimester.

Posted by: Dustbin Of History on September 3, 2006 at 5:13 PM | PERMALINK

cmdicely:

Since you're the law student and I'm not, before we proceed on the thread topic, let me ask you a specific question:

What is the legal distinction between murder (and between the degrees of muder, if you're so inclined) and voluntary manslaughter?

Bob

Posted by: rmck1 on September 3, 2006 at 5:23 PM | PERMALINK

I'm stepping into to this discussion late, but if we were to adopt Ponnuru's 8 week fetus = 10 day baby, wouldn't every fetal "death" have to be investigated by the authorities to determine cause of death and, when appropriate, legal action taken against anyone who might have contributed to the death?

Since about 50% if all pregnancies end with spontaneous abortions (http://www.infertilitytutorials.com/miscarriage_members/incidence.cfm), that would be alot of investigations.

I'm sure that most women would not mind being asked to come down to the precinct house to answer a few questions about their miscarriage. With their lawyers, of course.

Posted by: arkie on September 3, 2006 at 5:26 PM | PERMALINK

This thread reinforces what a tough issue abortion is, without shedding much light on the issue. People just talk right past each other. The debate about whether to call it murder is silly. The question is whether as a matter of the law and morality of our society, it should be prohibited/regulated. The Supreme Court decision was lame as a matter of constitutional law and short circuited a legislative debate over the issue that probably would have produced a less contentious middle ground.

An unrelated oddity about abortion is that the democrats became pro-abortion rights and the republicans anti-abortion. That was not a given in 1973 [?] when Roe was handed down. Democrats like Kennedy, Jackson, Gephardt and others were vocal against abortion. I don't think many would have predicted the extreme and virtually complete party divide on the issue. I guess the cause of democrats being pro-abortion rights is the influence of the "feminist" lobby in the party. I'm not sure about the republicans, because the "religious right" lobby came late to the political debate.

Taranto over at the WSJ also has an interesting idea about the "Roe Effect." He claims that since liberal pro-abortion rights people have most of the arbortions, the exercise of abortion rights diminishes the voting strength of liberals (the assumption being that parents are the most influencial effect on a child's politics). The effect is probably less than Taranto suggests, but it has to have had some effect on voting (no doubt enough to make Bush president in 2000). Talk about unintended counsequences.

Posted by: brian on September 3, 2006 at 5:27 PM | PERMALINK

". . . but it has to have had some effect on voting (no doubt enough to make Bush president in 2000). Talk about unintended counsequences."

This is beyond stupid.

As a geneticist, I spend a lot of time reading the literature in human genetics and genomics. To the best of my knowledge, there is not a molecule of evidence that voting preference is inherited.

Posted by: Joel on September 3, 2006 at 5:37 PM | PERMALINK

Tax credits and outright bonuses should be paid to women and doctors who choose abortion and perform it. Tax penalties should be given to those who have more than one child and maybe even get prison if they have more than two children.

Posted by: e7 on September 3, 2006 at 5:47 PM | PERMALINK

Joel,

I assume you are joking. But in the unlikely event you are not, the theory is not that voting preference is "inherited," it is the common sense proposition that parents influence the political thinking of their children. I know Taranto cites some studies for the premise, but even without studies, it is obviously true.

If you really want to ruin your day, you can think about the proposition that the generally favorable reviews Bush received for his selection of Cheney as VP in 2000 also probably was sufficient to be the difference in the 2000 election.

Posted by: brian on September 3, 2006 at 5:57 PM | PERMALINK
Nonsense. Only acts of homicide are subject to prosecution as murder.

No, only acts that are proven to meet all the legal criteria for murder (including the occurrence of a homicide with the requisite mental state, adn without mitigation, excuse, or justification) are punishable as murder; its quite possible to prosecute an act as murder when in fact no homicide has taken place.

As you have defined "subject to prosecution" so broad as to include any act which can provoke a prosecution whether the act is, in fact, a crime of the type prosecuted, or a crime at all, it is, as I said, a nullity.

Ponnuru's "position" is that murder requires malice and that embryo-destruction and abortion do not involve malice, therefore abortion and embryo-destruction are not murder.

Do you agree with him?

Given that "malice" is a fairly malleable concept that has historically expanded and contracted based on the moral disapprobation society ascribed to particular attitudes underlying an intent to kill, I don't think this means substantively anything more than that Ponnuru thinks that there is a distinct, and less wrong, mental attitude generally underlying the killing that occurs in such homicides compared to the one he sees in what he would consider murder, and that it would be best to draw the malice line so that this mental state was not included in it.

Do I agree with this piece of Ponnuru's position? No, not really. Insofar as I think abortion should be legally excused even if accepted as homicide, I think the rationale for that would come from treating the right to take any steps reasonably necessary to terminate pregnancy as a positive right akin to (perhaps included in a broader conception of) self-defense, rather than mucking around with the boundaries of the legal concept of malice, malleable though it has been. This concept doesn't really admit to treatment as mitigation-but-not-excuse, except perhaps in an "imperfect" case if the right is viewed as extending only to reasonably necessary means, and abortion is committed post-viability where one or more of those reasonable unreasonably believed that the fetus was not viable: such a scenario would be analogous to or subsumed within imperfect self-defense.

I do agree with Ponnuru's apparent position to the extent that I would think that generally there is less untoward motive in such acts than what is usually associated with murder, but I don't think either that it is consistently enough true to be a sound basis for categorical laws, nor is it demonstrable enough to be a good area of case-by-case analysis.

Posted by: cmdicely on September 3, 2006 at 6:08 PM | PERMALINK
Taranto over at the WSJ also has an interesting idea about the "Roe Effect." He claims that since liberal pro-abortion rights people have most of the arbortions,

Even if survey research showed that, there is a high risk of non-sampling error from the fact that "liberal pro-abortion rights people" would seem to be most likely to admit having an abortion if they had one, that I have to question whether there is really a strong reason to believe the premise other than the irrational assumption that people aren't generally hypocritical.

Posted by: cmdicely on September 3, 2006 at 6:11 PM | PERMALINK

In Ponnuru's world, why should people who murder fetuses or allow their fetuses to be murdered get off with nothing more than a stern warning?

A complementary question: Why did Clinton want abortion to be legal, safe, and rare ?

Clinton seems to think that abortion is somehow wrong, but not punishable, whereas Ponnuru thinks that it is murder but only mildly punishable.

Well, to start with, they are working from opposite ends of the debate, but trying to win political support in the middle. It isn't like that is new in American politics.

Posted by: republicrat on September 3, 2006 at 6:13 PM | PERMALINK
What is the legal distinction between murder (and between the degrees of muder, if you're so inclined) and voluntary manslaughter?

The really short version is that, among intentional homicides, murder (of the "intent to kill" variety; there are various other forms—felony-murder, etc., that are mostly beside the point, here, I think) is separated from voluntary manslaughter because the intent to kill is formed without extreme provocation or maintained despite an opportunity for "cooling off"; alternatively, what would otherwise be murder may also be mitigated to voluntary manslaughter by an "imperfect" excuse or justification, notably "imperfect self-defense", where the belief in the threat to one's own life is a real subjective belief, but not reasonable.

Between degrees of murder, there is less consistency, but "intent to kill" murder is pretty much universally in the first degree.

Posted by: cmdicely on September 3, 2006 at 6:20 PM | PERMALINK

Ponnuru's "position" is that murder requires malice and that embryo-destruction and abortion do not involve malice, therefore abortion and embryo-destruction are not murder...Do you agree with him?

I can't answer for cmdicely, but I think this is a perfectly reasonable, logical position on the part of Ponnuru. He undoubtedly believes that restricting abortion through the legislative process will result in a net reduction in the killing of the unborn. He also undoubtedly believes that pushing for the prosecution of (formerly) pregant women would backfire politically and make the aforementioned restrictions more difficult to enact. So, arguably, he is being truer to his cause (if that cause genuinely is saving the lives of the unborn) than if he were to take a purist, "consistent" approach.

It's not even a stretch to speculate that his conscience requires him to take the position he does. Or, to put it another way, one suspects Ponnuru cares more about reducing the number of abortions than he does about being respected as "consistent" by his political adversaries.

Posted by: Esquire on September 3, 2006 at 6:26 PM | PERMALINK

cm,

Whether or not there is sampling error, I think it still follows that if those persons who "admit" (interesting choice of words) having an abortion are mostly liberal pro-abortion rights people, their abotions would result in some diminution of liberal pro-abortion rights voters. Mothers with "secret" abortions are not as likely to have children who turn out to liberal pro-abortion right voters.

I think as a matter of common sense, the million plus abortions each year diminish at least somewhat the democrat vote 18 years down the road and thereafter.

Posted by: brian on September 3, 2006 at 6:27 PM | PERMALINK

cmdicely:

How does malice factor in? Someone could kill out of envy, lust or greed, clearly.

But, presuming (arguendo) a fetus is a fully legal person, the desire to terminate it might well be done with the best of motives -- even out of a mother's heartfelt desire to provide a good home for her child which she knows at this moment for whatever reason she can't -- and can't face the emotional trauma of giving her child up for adoption.

Whatever these kinds of motives are, they certainly don't sound malicious in the sense that you and GOP have been describing which defines murder.

Bob

Posted by: rmck1 on September 3, 2006 at 6:34 PM | PERMALINK

I wish Bush would stop murdering all of those young children in Iraq and executing all of those mentally retarded prisoners. He is most definitely going to hell. I sure wouldn't want to have all that blood on my hands when I stand before the Creator on Judgment Day!

Posted by: Bernie on September 3, 2006 at 6:42 PM | PERMALINK

I wish Bush would stop murdering all of those young children in Iraq and executing all of those mentally retarded prisoners. He is most definitely going to hell. I sure wouldn't want to have all that blood on my hands when I stand before the Creator on Judgment Day!

Posted by: Bernie on September 3, 2006 at 6:44 PM | PERMALINK

cmdicely:

I read your response to GOP. I understand why the absence-of-malice argument is essentially Ponnuru's view, and I think I understand why you don't believe it's sufficient to draw a hard and fast line ("malice" having been a pretty malleable concept down the years).

But even in the realm of lesser offenses, manslaughter carries a much larger penalty than what Ponnuru seems to be advocating even for abortion providers, let alone the women themselves who've made the decision.

A fine? For the ending of a human life?

How can anyone square this while pretending that what they're talking about is the taking of the life of a legally-defined person?

Bob

Posted by: rmck1 on September 3, 2006 at 6:50 PM | PERMALINK

When is Bush going to come clean with the American public about the abortion/murder he was an accessory to? The filthy, lying, stinking criminal murderer!

Posted by: Dave's left toe on September 3, 2006 at 6:52 PM | PERMALINK

manslaughter = homicide

Posted by: rmck1 on September 3, 2006 at 6:53 PM | PERMALINK

A complementary question: Why did Clinton want abortion to be legal, safe, and rare ?

Perhaps Clinton has Southern Christian roots and wrestles with the religious implications of the issue, OR Perhaps Clinton realized that abortion can a physical, emotional, and psychological trauma. Perhaps he believed that prevention and avoidance were the best approaches to abortion, but if it had to be, let it be rarely.

I do not speak for Clinton, of course, but this is a best guess.

Posted by: jcricket on September 3, 2006 at 6:56 PM | PERMALINK

Digby had a great post about this some time back. Here's a couple of grafs (he's referencing a video where abortion protestors are asked whether or not women should be a jailed for having an abortion):

Picture if you will a poll in which Americans are asked if women should be jailed for murdering their unborn child with an illegal abortion. What do you think they would say? Considering the fact that even the anti-abortion picketers in that video don't know what to say, I think it's fair to assume that it would be rejected by more than 90 percent of the population.

That's because it's clear that there is almost nobody who believes that abortion is murder in the legal sense of the word. How can there be a law against "murder" where the main perpetrator is not punished? How can it be murder if these people don't believe that the person who planned it, hired someone to do and paid for it is not legally culpable?

---

If fetuses are human and have the same rights as the women in whom they live, then a woman who has an abortion must logically be subject to the full force of the law. It would be a premeditated act of murder no different than if she hired a hit man to kill her five year old. The law will eventually be able to make no logical moral distinction. Is everybody ready for that?

Posted by: sa rose on September 3, 2006 at 6:57 PM | PERMALINK

In El Salvador, they DO jail the women.
It's a pro-life paradise down there. Someone has got to tell Ramesh about this so he can extol the moral purity of a society that will send a young woman to prison for 30 years for having an abortion.

In fact, if abortion restrictions are put into law by the GOP, punishments will be doled out
through cronyism, and the non-Republicans will be the ones to suffer most, while the Republican doyennes will get all the abortions they want, in secret.

Posted by: Marky on September 3, 2006 at 7:01 PM | PERMALINK

so the doctor can perform the abortion more quickly

The particular procedure described is done not to be cruel to the fetus. It is done as the safest measure for the MOTHER.

And on another thought as to why people are reluctant to blame the mother and punish her with jail time or murder charges. The continued infantilization of women. Any woman who has an abortion surely didn't make that decision on her own...she was tricked into it by the evil doctor! Poor little female. Didn't know any better. We don't know how to manage our own bodies, oh no. Must have an authority figure TELL us what to do.

Posted by: sa rose on September 3, 2006 at 7:10 PM | PERMALINK
But even in the realm of lesser offenses, manslaughter carries a much larger penalty than what Ponnuru seems to be advocating even for abortion providers, let alone the women themselves who've made the decision.

A fine? For the ending of a human life?

How can anyone square this while pretending that what they're talking about is the taking of the life of a legally-defined person?

Very easily, I would think, if they aren't an adherent to the retributive theory of punishment, which is the only model in which the moral magnitude of the offense alone, rather than considerations of the consequences of punishment, demands a certain minimum punishment for the crime.

I haven't read enough of Ponnuru on other crime-related issues (does he write on them at all?) to know if this applies to Ponnuru or not; though it wouldn't be entirely hard to see a Catholic conservative to be less enthusiastic for the retributive theory of punishment than other right-wingers.

Posted by: cmdicely on September 3, 2006 at 7:10 PM | PERMALINK

Of course one can turn this around.

Why should someone who kills a preemie born at 7 months a week after birth be prosecuted for murder while someone who aborts a fetus at 8 months (which is more developed and more fully human than that preemie) is not committing any crime at all?

Posted by: Mike Fridman on September 3, 2006 at 7:22 PM | PERMALINK

cmdicely:

What are the alternatives to a retributive theory of punishment? Strikes me that that's what those scales are about that Dame Justice is holding blindfolded.

Bob

Posted by: rmck1 on September 3, 2006 at 7:23 PM | PERMALINK

For consistency, pro-life people should be advocating allowing an unborn child to be claimed as a dependent on his/her parents' tax forms.

Posted by: JoAnn C. on September 3, 2006 at 7:24 PM | PERMALINK

Mike Fridman:

Because there's an ontological difference between being born and not-born.

Bob

Posted by: rmck1 on September 3, 2006 at 7:24 PM | PERMALINK
Whether a killing is a justifiable homicide in self-defense is a question that is decided on a case-by-case basis by prosecutors, judges and juries.

Yes, and what defines "a justifiable homicide", whether in self-defense or by any other justification is a decision for legislatures. The people you refer to only decide whether to prosecute (prosecutors) an offense, decide what facts are proven in a prosecution (jury), and apply the law given them by legislators (judges).

ou think a stem-cell scientist or a fertility doctor could successfully argue that his killing of an embryo in a petri dish was an act of "self-defense," do you?

I'm not sure where you got that from the excerpt you were responding to, to wit: I think the rationale for that would come from treating the right to take any steps reasonably necessary to terminate pregnancy as a positive right akin to (perhaps included in a broader conception of) self-defense,

Even applied to abortion your argument is absurd. The risk of death or serious injury to a woman from completing a normal pregnancy is tiny.

So? That has nothing to do with my argument. The right to self-defense includes more than the right to protect against the threat of death, it includes the right to protect against reasonably feared serious physical injury, as well. As I noted, the justification would come from an expansion of this concept to include at least reasonably necessary force to end pregnancy, which produces a serious and extended physical impairment.

If the self-defense doctrine is expanded so that a killing is to be treated as a justified act of self-defense so long as it further reduces an already tiny statistical risk of death or injury to the killer,

Since that's not how I said a right analogous too or included in an expanded concept of self-defense should be constructed, it doesn't really matter what conclusions you draw from the irrelevant premise.

Posted by: cmdicely on September 3, 2006 at 7:25 PM | PERMALINK
What are the alternatives to a retributive theory of punishment?

The three major theories of criminal punishment are, in summary:
1) Retributive: that the severity of the punishment should be dictated to inflict harm on the perpetrator proportional to the "wrongness" of the act;
2) Deterrence: that the punishment should be scaled based on the goal of deterring future offenses, either ("specific deterrence") by the same offender, or ("generally deterrence") by others.
3) Incapacitation: that the punishment ought to be designed to remove from the wrongdoer the capacity to do wrong again so long as he poses a threat to do wrong. (Proponents of the retributive theory like to claim that those who favor a combination of the other two without retribution are really dishonest, since they usually advocate that the degree of the offense still be cnsidered to set the outer limit for punishment guided by the other theories; those others tend to respond that there is an important distinction between retribution, which seems the degree of offense as a basis for punishment, and proportionality, which sees the degree of offense as setting an outer limit on punishment which must, however, be justified by something other than the degree of wrongdoing.)

I am, lest there be any doubt, firmly in the anti-retributive camp.

Posted by: cmdicely on September 3, 2006 at 7:34 PM | PERMALINK
The maternal mortality rate in the United States in 2000 was 17 deaths per 100,000 live births. That's a chance of death of about 1 in 6,000.

For the second time in this thread, I've never claimed that the degree of statistical risk of death would be the basis for the legal right analogous to or included in an expanded conception of self-defense that I have suggested. Self-defense, as it is, is not limited to risks of death, nor based on specific statistical thresholds where risk of death is what is avoided. Stop erecting strawmen.

Posted by: cmdicely on September 3, 2006 at 7:36 PM | PERMALINK
cmdicely seems to (finally) recognize this, so he's come up with his equally absurd "justifiable homicide in self-defense" argument for exempting abortion and embryo-destruction from murder laws.

The argument for a right analogous to or included in an expansion of self-defense that I make here isn't a new one for me, even in discussions with you here on Political Animal. As usual, your characterizations are based on outright lies.

Posted by: cmdicely on September 3, 2006 at 7:38 PM | PERMALINK

I am a developmental neurobiologist.

Brain circuit formation is not a significant feature in humans embryos at 8-weeks gestation.

For what its worth.

Posted by: Ba'al on September 3, 2006 at 7:40 PM | PERMALINK
Because there's an ontological difference between being born and not-born.

That seems to be a fairly fundamental a priori assumption, rather than something supportable. (I'm not arguing, right here, that you are wrong, only pointing out that that's the kind of irresolvable point of fundamental disagreement which can stop debate dead.)

Posted by: cmdicely on September 3, 2006 at 7:43 PM | PERMALINK

To all those opposed to abortion and research uses for stem cells:

Please explain to me why, in the anti-abortion world, it has not been a bigger priority to make IVF technology illegal? From a "pro-life" POV that insists on the "human-ness" of the tiniest embryo, is not the production of large numbers of embryos via artificial means, the vast majority of which are simply discarded (if not used for research purposes), like, a really big problem? Even worse, ethically, than abortion-on-demand, seems to me? I know a few activists focus on this, but it really does mystify me why the "pro-life" movement doesn't attack the rampant use of IVF more stridently--it certainly isn't biblically-sanctioned, it kills more "babies" than abortion clinics do every year, it is now leading toward something disturbingly close to eugenics according to today's NYT:

http://www.nytimes.com/2006/09/03/health/03gene.web.html?ei=5094&en=56d2e2bde7909ba7&hp=&ex=1157342400&partner=homepage&pagewanted=all


I honestly don't understand why IVF itself (not the stem cell research it makes possible) is not more of a target. If abortion is made illegal, then would IVF be next? I really wish someone of this persuasion would explain it to me. I suspect it's b/c even anti-abortion zealots know a prominent anti-IVF campaign (protests in front of IVF clinics, targeting IVF Dr's) would be very unpopular. Also, I guess, the main goal is to get women to keep having as many children as possible, even if they have to kill a lot of embryos to do it (but does this make sense)?

I'm pro-choice, but frankly am distrubed by many of the implications of IVF technology. I just can't believe all those who profess to care about the fate of embryos aren't attacking IVF and its practicioners more vociferously . . .

Posted by: trixi on September 3, 2006 at 7:53 PM | PERMALINK

Abortion is tragic. It is the destruction of a fetus. Some say that's okay. Some don't. As I said it is tragic. Suppose it is made illegal. What is the punishment, you ask? Is it the woman, or the person performing the abortion? Both, neither? Illegal but no penalty? Suppose the doctor, how long does he go to the can for? Life? If not life, what? 6 months, a year? If abortion is illegal because it is the destruction of a life to be, that is a killing, then one would think you would not want to trivialize that act with a short sentence.

Perhaps, if we look at it from the person or persons we would punish; and then decide what the penalty should be; then perhaps we can consider the question of making it illegal.

I never understood people calling it murder. Surely, if one believed, truly believed, it was a murder, you would want to hope the person would be motivated to stop the murders by physical intervention. Poor John Salvi thought the abortion clinics in Brookline were murdering people and he took a gun and actually murdered people. All were outraged. But logically, was not Salvi operating in defense of those feti that he believed were being murdered and should he have not benefited from a self-defense defense?

Truth is, few, other than the sick, believe actual murders are taking place. So that is why I say go backwards to the penalty and work forward and then decide what is the real issue.

Posted by: Mattxq on September 3, 2006 at 7:59 PM | PERMALINK

Pamesh Ronnuru: "Because Ramesh Ponnuru says so. Even if he does talk like a girl.

He does not talk like a girl! He just wears jockey shorts that are three sizes too small.

Posted by: Donald from Hawaii on September 3, 2006 at 8:38 PM | PERMALINK

I don't understand all the focus on the appropirate penalty. We don't first focus on the appropriate penalty in deciding whether any other conduct should be illegal. We first determine whether the conduct should be prohibited or regulated, then we decide on the penalty.

Why should abortion be different?

Posted by: brian on September 3, 2006 at 8:40 PM | PERMALINK

cmdicely:

Well, I probably should have avoided the highfalutin' term "ontological." No sense getting into a debate over the nature of Being that even Heidegger and Sartre couldn't adequately address *in toto* :)

But I think it's plain as the nose on a six-year-old's face that there's a distinct status difference between someone born and someone not born.

And that's been the hard-and-fast line, as GOP has pointed out many times, that most cultures draw to determine the origin of legal personhood.

For my money (and YMMV; I'm not attempting to rewrite Aquinas or Aristotle here), the key distinction is autonomy. While the infant is of course wholly dependent, it is not dependent on a single individual which dominates its existence as its mother does prior to birth.

This to me signals a complete lack of personal autonomy, and I consider autonomy the sine qua non of personhood.

That's the distinction that has allowed me to sleep peacefully at night after I spend time contemplating the abortion issue.

Again, YMMV.

Bob

Posted by: rmck1 on September 3, 2006 at 9:04 PM | PERMALINK

"A complementary question: Why did Clinton want abortion to be legal, safe, and rare ?

Clinton seems to think that abortion is somehow wrong, but not punishable."

This has always seemed to me to be the dumbest of questions, because it takes about two seconds of thought to come up with an answer, and it's obvious that those who pose it felt that that was just too much of an investment of their time.

Put simply, one can believe that something is bad and unfortunate without thinking that it is illegal or even immoral. Having to go through an abortion is not fun times. It isn't something you'd wish that someone would have to go through. Likewise, knowing it's controversial to many people, it makes perfect sense to wish for a solution that doesn't piss people off.

Posted by: plunge on September 3, 2006 at 9:06 PM | PERMALINK
The particular procedure described is done not to be cruel to the fetus. It is done as the safest measure for the MOTHER.

And let's not forget that, in a significant proportion of such late-term abortions, there are no brains to be sucked out. I've yet to see any actual credible argument or data, to support the contention that any significant number of late-term abortions are for convenience, rather than because the mother's safety is greatly at risk if an abortion is not done.

Posted by: Mithrandir on September 3, 2006 at 9:12 PM | PERMALINK
The items you listed are not "theories of criminal punishment," they're theories or goals of criminal justice.

Huh? You make a distinction without a difference. Different sources will call them "theories of criminal punishment", "theories of criminal justice", "goals of criminal justice", "goals of criminal punishment", all have the same thrust.

And you omitted a fourth major goal: rehabilitation.

And a fifth, if one follows Judge Frankel's typology, denunciation;, but as Frankel notes the number of categories and their precise definitions will differ among different scholars; I personally find that denunciation is largely redundant with retribution (as both focus on societies judgement of the moral gravity of the offense as the benchmark), and to the extent that it is not, it is really a form of general deterrence (its putting the public mark of disapproval on the act is generally argued for, aside from retributive purposes, as a means to discourage behavior societies doesn't want, which makes it a means of general deterrence, rather than an independent end); likewise, I see rehabilitation and specific (or "special") deterrence as largely expressions of the same goal (both focus on making the individual offender less prone to re-offend; the goal is the same, though the two terms have different emotional charges that suggest different approaches.) The list I provided was a brief list of the frequently cited components of a basically orthogonal "basis set" of aims.

Perhaps you were confused because I wasn't copying someone else's list but was applying original thought, something you've never seemed to be very good at.

Posted by: cmdicely on September 3, 2006 at 9:30 PM | PERMALINK

I've been reading When Abortion Was a Crime
Women, Medicine, and Law in the United States, 1867-1973
by Leslie J. Reagan. It's actually available in its entirety online. For free. It's a great historical read and offers up reminders of what the realities were before Roe v. Wade. Ironic that while we talk about criminalizing doctors for performing abortions that it was the medical establishment that started the anti-abortion campaign here in the US and helped it become a political issue. The med establishment successfully created a link between midwives and abortion and suppressed women's ability to make decisions regarding their health. Power. Control. Authority.

From the epilogue of the book:

The legalization of abortion was a positive development for all women, not just those who seek abortions. Legal abortion represents an expansion of women's actual ability to control their reproduction, their sexuality, and their lives. The very availability of legal abortion provides a measure of freedom and control even for women who never use it, both because it can be counted on as a backup and because it symbolizes female sexual autonomy. The legal right to abortion sends the message to all women (and to men) that women have power over their own lives and are not controlled by men, the state, or the church. Finally, the ability to avoid motherhood helps to create new meanings for motherhood and fatherhoodas chosen and desirable life experiences rather than roles forced on women and men, willing or unwilling. The restriction or reversal of abortion rights sends the opposite message: women cannot be trusted to make moral decisions about children and family, but must be overseen and regulated by men; procreation is a state mandate not a choice; women's lives, sexuality, and bodies are not their own.

Posted by: sa rose on September 3, 2006 at 9:35 PM | PERMALINK

Although I am sure that this point has been made at least once before in the 123 preceding messages, I had to comment on Kevin Drum's entry on abortion because I think he has underlined the weakest link in the "abortion is murder/taking-of-human-life" argument: No model abortion law treats abortion as murder or any kind of "wrongful death."

An abortion statute which followed the logic of the anti-abortion movement would include the following:

a) An attempt by a woman to seek an abortion would result in an indictment for solicitation for murder;
b) In the case of an actual abortion, the doctor would be treated by prosecutors as a contract killer, who would be turned to testify against the real felon, the woman;
c) As abortion clinics disappear, more women would attempt to end the pregnancy by themselves. An attempt to do so would be prosecuted for attempted murder; a successful attempt would be prosecuted as murder.
d) In the latter case, in order to guarantee the safety of unborn children, all pregnancies would be registered with the state, and women would be accountable for the successful birth of their babies.
e) Of course, since most anti-abortion legislators are Republicans, these draconian statutes would not be accompanied by additional support for pre-natal care for indigent or lower-middle class mothers. After all, the sanctity of human life should not be considered an entitlement to taxpayers' money, but rather a moral obligation that the state is enforcing.

You will not see such statutes enacted by most state legislatures, not because right-wing legislators are morally repulsed at the extension of the state's intrusion into the autonomy of its citizens, but because it would be inexpedient to enact laws that 90-95% of the citizens would find tyrannical.

Therefore, remember that when right-wingers argue that "abortion is murder," and that "fetuses enjoy human rights as much as fully-formed humans," what they really mean is that these equations are actually metaphors, even though the jail time for doctors and the trauma of unwanted pregancies are real.

Posted by: David Ross on September 3, 2006 at 9:38 PM | PERMALINK

forced birth...fodder for republican wars.
.

Posted by: gak on September 3, 2006 at 9:55 PM | PERMALINK
t's not a strawman at all.

Yes, it is.

You cited "self-defense."

No, I suggested that the legitimation of abortion if the fetus was recognized in law as a person would best come through recognition of a new right, analogous to self-defense, which might be encompassed in a broader conception of self-defense.

The idea that that meant that instead of a new right I simply favored expanding self-defense by lowering the (fictitious) set numerical risk-of-death threshold that defines self-defense was your strawman, entirely, and entirely inconsistent with what I actually said.

So you're not talking about "self-defense" at all.

It should have been obvious that I as talking about something different from self-defense as currently understood when I said it would be a recognition of a new right analogous to self-defense, which might perhaps be included in a broadened conception of self-defense.

You finally realized that wouldn't work, so now you've switched to an argument based on burden ("a serious and extended physical impairment") rather than "self-defense."

No, that was the argument all along (just as it was the last time we had this discussion), which is why I referred to it being a new right analogous to self-defense, not a simple application of the existing doctrine of self-defense.


Your expressions of surprise when it turns out that contrary to your attempts to twist my words I mean exactly what I said in the first place are tiring.

You're crawling your way to the standard pro-choice defense of the right to abortion (the same defense you explicitly rejected a couple years ago), although you still have a ways to go.

I don't see how I'm moving toward any privilege toward any position I've previously expressly rejected, could you point to this express rejection and the evidence of movement?

And there is no one "standard" pro-choice defense of the right to abortion, there are at least two: (1) the fetus is not a person until birth and thus has no rights to way against the mother's right to do with her own body whatever she wants as long as no one else's rights are negatively impacted, and (2) whether or not the fetus is a person, the mother has a right to bodily autonomy which licenses abortion. I've rather expressly, for some time, held something like the latter view, for instance in December 2005 I wrote in another comment thread here:

My personal view -- and its pretty much an a priori view, and one which, even so, could certainly use further definition in its parameters -- is that there is an inherent and essential right -- at least in the sense of necessary freedom from state action, if not an actual moral right -- to use necessary force in defense against severe and persistent intrusions into one's bodily autonomy. This includes deadly force if and only if less deadly means are not available that would deal with the intrusion without substantial additional risk to the life or health of the person acting in their own defense. Even if it could be taken without substantial risk of killing you, and even if it could be restored without killing you, the state should not be empowered to compel you to allow your kidney to be borrowed, either intentionally or not, without your consent.

This, it seems to me, is an essential component of the concept of liberty, a value not less important than the right to life itself. It would justify abortion, regardless of fetal personhood, at any time before viability, and in most cases after as well (except where induced live delivery wouldn't pose additional risks to the mother).

And later in the same thread:

...I think it is a defect and intrusion on essential liberty for "defense" exemptions to turn on the guilt of the party against whom defensive action is taken, rather, they ought to turn on the absence of legal privilege. Its something of a fine point, to be sure, but a significant one. Certainly a guilty party is acting without privilege, but an intrusion w/o privilege may occur without culpability. . . . I see a right, in the relevant sense, as an area principally free from government intrusion. It may also be an area where the government ought to affirmatively protect one's interests against others, but there is more of a balancing test here. In the case here, I don't think the fetus should be "punished" for its intrusion by the state, for it clearly hasn't committed a culpable wrong. It had no ability to choose any other action. And if the woman decides to carry the fetus to term, she shouldn't acquire, for instance, a cause of action in law for damages against the fetus, either, for the same reason. That would be beyond ridiculous.

At the same time, however, the government should not punish her action in defending her bodily autonomy against the unwelcome pregnancy, using reasonably necessary force, if she elects not to tolerate the pregnancy. Even if that extends to means which produce the death of the fetus. This does not imply that it is morally right for her to pursue the action, only that it is morally wrong for the state to punish it.

Posted by: cmdicely on September 3, 2006 at 10:09 PM | PERMALINK

cmdicely:

I remember the first time we discussed the issue, those were the arguments you used.

Heh, maybe in the same thread, come to think of it ...

Bob

Posted by: rmck1 on September 3, 2006 at 11:06 PM | PERMALINK

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Posted by: 联通铃声下载 on September 3, 2006 at 11:08 PM | PERMALINK

cmdicely nicely articulates my own view of abortion, so much so that I'm going to repeat it here:

My personal view -- and its pretty much an a priori view, and one which, even so, could certainly use further definition in its parameters -- is that there is an inherent and essential right -- at least in the sense of necessary freedom from state action, if not an actual moral right -- to use necessary force in defense against severe and persistent intrusions into one's bodily autonomy. This includes deadly force if and only if less deadly means are not available that would deal with the intrusion without substantial additional risk to the life or health of the person acting in their own defense. Even if it could be taken without substantial risk of killing you, and even if it could be restored without killing you, the state should not be empowered to compel you to allow your kidney to be borrowed, either intentionally or not, without your consent.

I am 26 weeks pregnant with my second child. Before I had my first child, people told me I would feel more squeamish about abortion after having a baby. The opposite has happened. Both my pregnancies have been very difficult. Right now I have many days in which I cannot walk across a room without my heart rate shooting up as though I've run a marathon. I get faint and need to lie down on the floor. I can't walk to the corner store. I can't play with my three-year-old. And I puke all the time. This is severe physical impairment, but it is 'normal': my midwife assures me that neither I nor my fetus are suffering serious physical harm from what she tells me, sympathetically, are just really bad pregnancy symptoms.

I want this baby, so terminating the pregnancy is not an option for me (and if it had been, I would have terminated it far, far earlier). So my family and I suffer through. But no one should be forced to suffer through the hijacking of their body for, essentially, a year (3 months recovery time). Sure, my fetus isn't deliberately trying to make my life a living hell. It's not being malicious. But if I didn't want to have a baby, (and even if I did, but couldn't take the physical impairment -- for example if I had a job I could not afford to lose...) I shouldn't have to suffer the burden. It's slavery.

I have to go vomit now.

Posted by: biscuit on September 3, 2006 at 11:25 PM | PERMALINK

The single biggest problem with the abortion debate is the hypocrisy coming from the anti choice crowd. How is abortion okay in cases of rape and incest but not if a woman accidentally gets pregnant?
How is this the protection of the fetus? How involved was said fetus in how it got conceived?

Posted by: shelly on September 4, 2006 at 12:04 AM | PERMALINK

How might the prosecution of abortion go? Let's look at history, when abortion WAS a crime. First off, it would be mighty hard to prosecute any abortions that "go OK" -- easier if the illegal abortion is botched -- and easiest if the woman actually dies (uttering the name of the doctor as her final High C) and a post mortem confirms it.

From the book I linked to above:

In the first stage of an investigation, a woman was questioned by her doctor and might be questioned again by police or special investigators sent by the coroner. Each interrogation was an attempt to obtain a legally valid dying declaration, in which the woman admitted her abortion and named her abortionist. A dying declaration not only led police to suspects, but was itself a crucial piece of evidence that could be introduced at criminal trials. As one lawyer observed, it was almost "impossible" to obtain evidence of criminal abortion any other way.

If the woman died, the abortion investigation proceeded to a second stage: an autopsy performed by coroner's physicians and an official coroner's inquest into the woman's death. During the inquest, the coroner or his deputy questioned a series of witnesses and attempted to collect the facts in the case. Police presented for the first time the dying statements they had collected and any other information or individuals uncovered during their investigation. Family members, lovers, friends, midwives, physicians, and hospital staff all testified at these inquests. A coroner's jury then deliberated and decided the cause of death.

Although the legal purpose of an inquest was limited to determining the cause of death, the coroner, in fact, wielded significant power. The coroner's inquest was a highly important stage in the legal process since it generally determined whether anyone would be criminally prosecuted. The jury decided the guilt or innocence of various people involved in a case, and, if the jury determined that the woman's death was the result of "murder by abortion," it ordered the police to hold the suspected abortionist and accomplices. Suspects remained in jail or out on bail until the case was concluded. After the inquest, prosecutors brought the case before the grand jury, which then indicted the suspects. Both prosecutors and the grand jury tended to follow the findings of the coroner's jury; if the coroner's jury failed to accuse anyone of criminal abortion, then prosecutors generally dropped the case. Abortion cases did not come to trial solely after inquests into abortion-related deaths, but most cases in this period followed the death or injury of a woman.

And what about physicians who just try to help patients not bleed to death after a botched abortion? Let's read on:

The state needed medical cooperation to investigate abortion cases, and state officials won that cooperation by threatening physicians with arrests and prosecution. Physicians learned that if they failed to report criminal abortion cases, the investigative process could be turned against them.

Coroner's inquests into abortion deaths, and the negative publicity the coroner could cause, helped enmesh doctors and hospitals within the enforcement system. At inquests into abortion deaths, the coroner regularly reminded attending physicians of "the rule" to call the police or coroner whenever there was evidence that a woman had been "tampered with" and reprimanded those who failed to follow this policy.[26] The fragile reputations of hospitals and physicians could be damaged simply if they were named and associated with an abortion case in the newspapers.

Physicians advised each other to deny medical care to a woman who had had an abortion until she made a statement. In 1902, the editors of JAMA endorsed this policy of (mis)treating abortion patients. JAMA quoted a physician who counseled his colleagues to "refuse all responsibility for the patient unless a confession exonerating him from any connection with the crime is given." Twenty years later, Dr. Palmer Findley gave the same advice to obstetricians and gynecologists. "It is common experience," he reported, "that the patient will tell all she knows when made to realize her danger and a double purpose is attainedthe physician in charge is protected and the guilty party is revealed."[33]

If a woman refused to give information, the smart doctor, according to these advisers, would walk out and refuse to attend her.

Fear of undeserved prosecution encouraged physicians to distrust their female patients. The illegality of abortion compelled doctors to regard all miscarriages as suspect; a woman who claimed to have miscarried might actually have had an illegal abortion in which the attending physician could be implicated. New York attorney Vandiver warned doctors, "Unscrupulous women and their accomplices have it within their power . . . to successfully blackmail the reputable practitioner, who omits the essential precautions for his protection."

And we can all see history replaying itself if we make abortion illegal again.

Posted by: sa rose on September 4, 2006 at 12:35 AM | PERMALINK

Who would have guessed? ?????? has the perfect solution to the abortion issue . . .

(Ah, were it that easy!)

Ba'al: "I am a developmental neurobiologist.
Brain circuit formation is not a significant feature in humans embryos at 8-weeks gestation.
For what its worth.
"

To anti-abortion advocates? Presumably nothing. Rather like expert opinion on the state of Terri Schiavo's brain and general prognosis during that pathetic sideshow.

Brian: "I don't understand all the focus on the appropirate penalty. We don't first focus on the appropriate penalty in deciding whether any other conduct should be illegal. We first determine whether the conduct should be prohibited or regulated, then we decide on the penalty.

Why should abortion be different?"

I've heard this argument before. It's nonsense - while technically true, it ignores the real point. Which is, of course, that the anti-abortion movement presents itself as having no questions about if this conduct should be prohibited or regulated, yet members either appear completely clueless about penalties - 'wow, I never thought about that before' (see the video linked above at digby's)- or suggest measures - informally or in model/actual legislation - that are massively out of step with their basic rhetoric.

It would be one thing is this was an issue that is largely the domain of policy wonks - ag. subsidies or something, where it would be understandable if people left the details to experts, and just pushed a general view. It's not - it is, according to anti-abortion rhetoric, the constant mass slaughter of countless innocent babies. People holding this view could argue about the exact penalty, but that's the point - in that case, they would be arguing, or at least discussing. The fact that asking 'well, what would the penalty be?' consistently elicits:
a) a blank stares and confusion,
b) attempts to dance around the question , question its relevance, or claims of inappropriateness,
c) utter vagueness
d) proposals that are not just illogical but morally incoherent, given the basic claims.

As pointed out above, this is an entirely fair question, one that could be asked of any person or movement making similarly significant - really, rather less significant - demands. (To do otherwise sounds too much like the characters in so many folk tales, fables, and stories who don't bother to ask the important questions before making a wish or a deal or signing something provided by a gentleman with a faint whiff of sulfur about him.) The responses above - well, in this game of high-stakes political poker, I can only think of them as a tell.

"What did you expect?" asked the snake. "You knew what I was when you picked me up."

Posted by: Dan S. on September 4, 2006 at 12:38 AM | PERMALINK

biscuit:

Take care of yourself, and thanks for sharing your thoughts.

That's fundamentally my position as well.

shelly:

Some anti-abortionists insist that no exception be made. Others would concede an exception only to save the life (not potential health) of the mother, but rule out an exception for rape and incest.

These views are prevalent in the *cough* clinic rescue movement.

Bob

Posted by: rmck1 on September 4, 2006 at 12:39 AM | PERMALINK

Love 'em or hate 'em, I agree with Bill Clinton on abortion: It ought to be safe, legal, and rare. Think about that a bit, and you'll find it the only real way.

And before you roll your eyes, my girlfriend aborted almost 30 years ago. I'm as liberal as the day is long, but I still remember that day, and I wish it'd never happened. But I will fight to the death to keep it legal and safe.

Those who kill doctors and picket or bomb clinics are terrorists, and nothing more.

Posted by: a_retrogrouch on September 4, 2006 at 12:58 AM | PERMALINK

Those "??????"s were an attempt to cut and paste the the Chinese (?) characters from the spam post above, specifically the erstwhile name - huh, thought it would work, silly me.

"How is abortion okay in cases of rape and incest but not if a woman accidentally gets pregnant?"

I've heard quite a few anti-abortion folk (the more dedicated and/or clueless) go on about how unborn babies that were the product of rape are innocent (this is a general theme, in fact, in both a metaphysical and almost legal sense; at least some of these folks seem to think women are having abortions to punish the "baby" for some imagined wrong) and that having the child of one's rapist is in general a good, healing, and life-affirming thing. They rarely if even can be pinned down in how they see this translating into practical action - is this just something to urge? to be legally enforced? what? Of course, the pro-choice movement supports a woman's right to do so if she wishes - but also to not do so, if she very, very understandably prefers not to.

Incidentally, my wife caught a bit of an on-air interview with Ponnuru - on Colbert, maybe? - and she's fairly convinced that he has Asperger's or something along those lines.

Huh.

Posted by: Dan S. on September 4, 2006 at 1:05 AM | PERMALINK

So treat the 8-week old fetus exactly as you would a baby. Put it in a crib with a lovely quilt or give it away.

The difference is that the fetus is INSIDE.

I am aware of the killing of many human beings that I do nothing to save (e.g. Darfur). The issue with the fetus is not its humanity but what demands can be placed on the woman who is playing host to this parasite. "Roe" decided that if she only had a couple of months to wait until it went away it was reasonable to demand that she do so; if she had a long time to go it was too much to expect. In between is in between.

If one of my kids needed a kidney and I did not volunteer mine, folks might look down at me but would (I hope) not legally compel me. The humanity of my children is not in question; the issue is my responsibility.

Posted by: Andrea on September 4, 2006 at 1:35 AM | PERMALINK

David Ross, above, has it right, especially this point:

d) In the latter case, in order to guarantee the safety of unborn children, all pregnancies would be registered with the state, and women would be accountable for the successful birth of their babies.

What's more, in order to make this possible, all home pregnancy testing kits would become illegal, and be withdrawn from sale - only a doctor could determine if a woman were pregnant, so that the pregnancy could be registered with the government.

I imagine that, once the pregnancy was registered, the woman would receive a visit from the State - the nice men in suits and ties would explain that if she did not deliver a baby in 30ish weeks, or a doctor's note explaining a "legitimate" miscarriage, she would be prosecuted for murder, and if convicted, under the "We Love Life So Much Act" of 2008, she would be executed.

Still on board, "conservatives"?

Posted by: craigie on September 4, 2006 at 2:24 AM | PERMALINK

The following links support cmdicely's claim in describing what are commonly known as the three major theories of "criminal punishment," not "criminal justice."

http://www.altlawforum.org/Resources/lexlib/devance

http://en.wikipedia.org/wiki/Punishment#Possible_reasons_for_punishment

http://www.ivr-enc.info/en/article.php?id=17

http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/golash305.htm

He doesn't need to "hit the law books" after all.

Posted by: yep on September 4, 2006 at 2:41 AM | PERMALINK

Liberals just can't stand the fact that there exist a whole bunch of folks out there who are unwilling to ignore their consciences on the issue of abortion.

If you don't want an abortion, don't have one. That applies to women, too.

(You want to legislate matters of conscience? Bring it on, because my conscience tells me all sorts of things about conservatives.)

Posted by: ahem on September 4, 2006 at 2:46 AM | PERMALINK

The real issue is not abortion, it is having a political argument. Right now, paid operatives like Ponnuru (and he is well paid by rich GOP backers, who for all I know, could be buying up the books) are lassoing votes from the clueless rednecks (many of whom still think Saddam was behind 9/11) on this issue. If abortion is found to equal murder, with penalties up to and including death, there will be a collective gasp, and no one will vote for the GOP. Make no mistake about it, that is what is going on here. Want an example? George Bush Sr was for abortion rights before he was against them (as a presidential candidate). And then of course, Barb Bush got on TV and said he was wrong about this, allowing the GOP standard bearer to have it both ways.

Posted by: jhh on September 4, 2006 at 4:15 AM | PERMALINK

The distinction between "murder" and "unjust killing" is nil. Abortion is murder, and the disinclination to label it so is a political one.

The question of punishment for various kinds of murder is a political issue. The law has anciently done this. 1st degree murder. 2nd degree. Voluntary and involuntary manslaughter. Vehicular homicide. How abortion should be punished or whether it is punished at all are political and legal questions. What is important is to not have the state condonining the practice and to not lose sight of the individuals affected by it.

Posted by: Jeffrey Davis on September 4, 2006 at 8:46 AM | PERMALINK

the words "fair and sensible" sound to much like "fair and balanced" and when it comes the "party of death", one should ask why Republicans like wars that kill so many of living and speak of WWIII with hope of bring WWIII about.

The question that comes to my mind is WHERE is press on how the Iraq oil being pump from Iraq is anyway benefiting the Iraqis?

Iraqis must wait for gasoline in lines for sometimes as lone as 12 hours, have only electricity in very small amounts for very short periods during the day and yet ther press has seen no recent to report on how Iraqi oil is benefitting Iraqis. It appears to me that the food for oil program, as flawed as it may have been, benefitted Iraqis far better then letting those so-call Christian rightwings handle the Iraq oil.

In old words of Howard Dean, "What I want to know" is exactly what is happening to all that oil in Iraq that the Bushies control it? There are still thousands of barrels of oil coming out of Iraq. When is the dead press body doing to let US citizens know exactly what the Bushies are doing with the money for those barrels of oil and why do Iraqis not benefit first from it?

Posted by: Cheryl on September 4, 2006 at 8:52 AM | PERMALINK

Eight-week-old fetuses do not differ from 10-day-old babies in any way that would justify killing the former,

Well, a simple google search raises some doubts on Ponnuru's statement. Here's what I found within seconds:

"Week Eight

* Cartilage and bones begin to form - At the end of this week your baby will have already completed 1/5th of the journey 'til his birthday!
* The basic structure of the eye is well underway - The position is more "newborn" like already!
* The tongue begins to develop
* Intestines move out of the umbilical cord into the abdomen.
* Body grows and makes room - Two months along and this little one is growing inside and out by leaps and bounds!
* The fingers and toes have appeared but are webbed and short
* Baby's length (crown to rump) is 0.61 inch (1.6cm) and weight is 0.04 ounce (1gm)"
http://www.pregnancy.org/pregnancy/fetaldevelopment1.php#week8

Well, imho something with undeveloped "Cartilage and bones" and a size of 0.61 inch does differ from a 10 days old in many important ways.

Posted by: Gray on September 4, 2006 at 9:19 AM | PERMALINK

"And second, there are at least four such major goals, not only three as you falsely claimed."

GOP, it's already bad enough that you're a rethuglican, but this leaves the impression that you're also a lawyer. Ugh...

:-[

Posted by: Gray on September 4, 2006 at 9:28 AM | PERMALINK

All liberals, and others besides, value human liberty. In the classic sense, this means a certain area of freedom of action in which one can act without coercion by others. The central question has always been how wide an area of liberty was necessary without being unlimited, which would lead to chaos, and without being so restrictive that one could not exercise political choices and develop ones own natural faculties. This last point, that of personal liberty and the liberty to choose ones own path, is what the culture wars have generally been about.

If we are to imagine that we have a sphere of personal liberty that should remain unassailable by the state, it is hard to imagine something more intimate, more close to the self, and more private (not part of political life) than pregnancy and abortion. From this perspective it is monstrous to suggest the state has the power to extend a condition of human rights and, therefore, law into the body of an individual. In essence this makes the body an agent of the state, charged with protecting the well-being of a ciitzen of the state. If this is possible, the natural claim to other personal liberties falls away. If something I grow and nurture with my own body, with my own substance, is not mine to do with as I wish but the province of the state and open to regulation by the state, than how can I claim other actions and parts of my body as my own?

If one is opposed to abortion on moral grounds it does not mean one must be opposed to it on political grounds. But it is this very article of personal liberty that so called conservatives are in the buisiness of undermining.

Posted by: bellumregio on September 4, 2006 at 9:28 AM | PERMALINK

Abortion debate--unbridgable gap? Methinks no. Here's the solution.

Camp 1: Unrestricted abortion on demand in the name of freedom (right to choose).

Camp 2: Criminalization (no exceptions, please).

Camp 1 has never really effectively dealt with the charge that abortion is "murder" since the procedure unambiguously ends "something". The queasiness of soft supporters of choice is all too apparent.

Camp 2 has never really faced up to the implications of criminalization. Just ask any one of them what the punishment should be, and watch them stare at the ground. One cannot but conclude that, politically, abortion foes do not really desire to "win" this debate politically.

Solution: Make abortion an 8th degree voluntary manslaughter offence. Penalties should be severe, such as gift certificates to Sam's Club that must be used as a condition of parole. Parole must be carried to term.

Nothing to this problem that a little creativity can't address. Carry on.

Posted by: bobbyp on September 4, 2006 at 10:51 AM | PERMALINK

When it comes to abortion, there are a lot of pro-life people who's main focus is helping unborn children, and punishing abortionists and women is secondary to that. Fighting for harsh punishments for abortion may be a legally accurate reflection of the belief that unborn children are human beings, but it may not save as many unborn lives as "fines" and "stern warnings". The reason is that lesser punishments may pass through Congress and some abortions may be deterred. Harsher punishments would not pass, and the status quo would remain. Which would help unborn children? Which would save unborn children? Most pro-life people ask this question first and the punishment question later.

Posted by: brian on September 4, 2006 at 10:52 AM | PERMALINK

the link between the wingnut insistence in forcing women to birth unwanted zygotes and fetuses, not to mention the wingnut run-up to war against contraceptives is that they need all the expendable breathing bodies possible to fuel their insatiable desire for unending world war. An unwanted person is certainly a very valuable and necessary commodity to an ideology of all war all the time.
.

Posted by: justfred on September 4, 2006 at 10:53 AM | PERMALINK

Which would help unborn children? Which would save unborn children? Most pro-life people ask this question first....

No, they do not. If that were the "first" question, then since it is couched in terms of a social policy, then an effective social policy investigation should follow (available, safe, rare). In the case of anti-abortionists, this is obviously not so. They always pose it as a moral question (i.e., murder).

There is no doubting the authenticity of the beliefs here, but the counterfactual is rather simple: Where was all this concern about "murder" when abortion laws were on the books, and pretty much ignored? Out of sight, out of mind?

For several reasons, I find this comfortable belief rather disturbing.

Posted by: bobbyp on September 4, 2006 at 11:02 AM | PERMALINK

The Reason Ramesh's argument falls apart is he is trying to have it both ways;
He argues that abortion is morally the same as infanticide to establish that abortion should be likewise banned.
He then turns around and argues that abortion is morally different from infanticide to establish that it need not be punished as a serious crime.
You can't logically do this. You could argue that abortion is a wrong that should be banned even though it is not as bad as infanticide, but then you can't use the ban on infanticide as support for your argument.
Ramesh does not explain why the mitigating factors that make abortion not punishable as murder don't also make it right to legalize abortion.

Posted by: TomO on September 4, 2006 at 11:53 AM | PERMALINK

Thomas1:

I can make a disingenous rhetorical point against any point you bring up. Aren't I clever!

Posted by: bobbyp on September 4, 2006 at 11:57 AM | PERMALINK

As to those making the argument that saving lives comes first and that justifies the lesser punishment of a fine two points;
1. The point of asking would you be willing to put the woman in prison is to show that abortion is distinct from infanticide -- unless you would be willing to punish abortion to that degree, assuming you were King of the U.S. and your whims were automatically politically feasible, then you agree that abortion isn't the same as infanticide. If we win the above then your argument that abortion should be banned (which is almost always abortion is just like infanticide) is invalid. That many pro-lifers just can't stomach the idea, even if it were feasible, of punishing the women who have abortions as serious criminals shows the weakness of this argument.
2. Assuming that pro-lifers are justified in taking the politically feasible approach why is the Clinton position of working on rareness through better sex education and social welfare bad? Its not like any ban on abortion is politically on the table in about 1/2 to 2/3s of the states even if Roe were gone.

Posted by: TomO on September 4, 2006 at 12:05 PM | PERMALINK

"When it comes to abortion, there are a lot of pro-life people who's main focus is helping unborn children, and punishing abortionists and women is secondary to that"

Crud, I erased my comment just as I was about to post it. Anyway, my basic point
(beside the fact that for many of these folks - whom I otherwise would have to respect, despite differences - also put providing accurate information and not misleading women second, see what Rep. Waxman's staff found when they called 23 federally funded 'pregnancy resource centers')
is that these same people will almost always express support for banning abortion, yet when asked about penalties with astounding frequency one gets blank stares, or what sounds very much like intentional evasion - or at least confusion. Those - especially in more influential positions than the rank and file who would accept at best wrist-slapping for supposed babykillers and infanticidal women if that would help save unborns nevertheless show none of this seemingly almost-desperate pragmatism when it comes to almost any practical measure that could significantly reduce unwanted pregnancies, ignoring or actively opposing them - sex ed. and access to contraception, yes, but also policies that would help women who feel compelled by economic or similar reasons to have an abortion (there are individual exceptions, but these are so rare as to prove the point). Read Christina Page's recent and slightly-misleadingly-titled book How the Pro-choice Movement Saved America or this Alternet interview
here. As an anthropologist by (undergrad) training, my take on that is slightly different from the general view expressed by Page and others, but for all practical purposes the outcome is the same.

"While I would easily support a ban on 95% of abortions, and still work on the 5%, they can't agree to that. "

Gee, Thomas1, I wonder why?

Perhaps because the equivalent would appear to be you agreeing with a pro-choice* person who would easily support the continued legalization of 95% of abortions, but is still willing to work on the remaining 5%?
(Although indeed, that is problematic - the only abortions one could pull out of the bunch and argue for specific and unique ban status are post-viability ones,** and even including the major health risks to mother and/or baby will be so damaged as to essentially have almost no chance of survival, let alone meaningful life cases, we're still way under 5%.

* I sometimes break the unspoken agreement and refer to the anti-abortion movement, etc. instead of a pro-life one. However, to my mind that is a rather more descriptive term than 'pro-abortion' - the movement is, in fact, against abortion is at least the vast majority of circumstances, while not being generically pro-life - ie, specifically anti-war, anti-death penalty vegetarians. While the pro-choice movement is likewise not generically pro-any choice in the world (random killing of neighhbors, etc.), its main goal is to continue ensuring that women get to choose whether or not they will in each instance become pregnant and give birth - not making sure that all women must have abortions. While prochoice folks accept - actually, require - continued availability of safe, legal abortion, the label "pro-abortion" is rather more a propaganda term than "anti-abortion" is.

"Undermining" only when you completely discount any rights to human liberty on the part of the unborn child -- see above -- I prefer to think of it as a balancing test. "

Indeed, so do I - except for me the balance tilts towards women getting to choose whether to have or not have an abortion until very very late along (I oppose literally-full term abortions, if any exist).

But let's go with this idea. Imagine, Thomas1, that you go driving and as a result of poor judgement or merely chance you cause an accident. Now some other poor slob is unable to survive unassisted, and basically comatose (although doctors promise that as long as he can make it that long - no guarantee - he'll be ok in about nine months time.) (In a small but nevetheless real number of cases, another driver collided with you, leaving aforementioned poor slob unable, etc.)

However, in this hypothetical world, we don't have machines that could keep him alive. The only option is to hook him up to you - you're going to have to eat, breathe, etc, for him. There will be side effects - bearable, but possibly extremely unpleasant - and a small but real risk to your health or even life.

At the end of these nine months, the poor guy's condition will improve, but he will be almost entirely dependent for some time, and requiring care and financial assistance for years. While you could shuffle him off to a rather less-than-ideal state facility where other people may or may not show up to provide private care, society pretty much expects you to take up this responsibility yourself (or with a partner), even though all kinds of assistance you can receive are pretty minimal by comparison with other, similar countries

Now, this might be an admirable thing to do - but is it something we should legally force you to do?

This is, of course, for someone who had a life - there is an actual individual to help, rather than a potential individual. And yes, there are many people who want to have kids - as opposed to those who want to act as life support for some car accident victim. But whatever.

And this whole no important difference between an embryo and a newborn, or whatever? I'll consider giving it some thought when prolifers all start celebrating their conceptionday rather than their birthday. Deal?

Posted by: Dan S. on September 4, 2006 at 1:32 PM | PERMALINK

Pretty disturbing thread.

Somehow cmdicely & GOP have managed to lead the entire thread down their rabbit hole. If you really look at what cmdicely is proposing, it is to make post sex, mingling of fluids, a human being. Termination of that pregnancy a homicide. Though hes offering a fig leaf to women by saying they would be able to defend themselves, (presumably in court) with certain types of legal defense.

If this Idea where to become the law of the land, then prosecutors would be able to seek murder charges in the first degree, women could use whatever defense they like. Self defense among them. But the prosecutor could haul in the husband, boyfriend, or a loving grandmother who would have been willing to have taken care of the terminated pregnancy had it become a child. And thusly try to establish malicious intent.

This is exactly what the religious right is after. They want to change the legal definition of human life, so they can get their day in court.

The point is that co-mingling fluids is not a person. Semi-developed fetuses are not people. And everyone knows it.

Terminating a pregnancy is not homicide. Wearing a condom during sex is not murder, though many fundamentalist religious people believe that it is.

That is exactly why 90% of people believe cmdicely should never get his day in court.

Because there are those who want to put women and doctors in the slammer for abortions.

Simple as that. Dont listen to their Bullshit.

- troll_bait

Posted by: troll_bait on September 4, 2006 at 1:37 PM | PERMALINK

Ok, oops. Must remember to preview. Here's that Alternet interview with Page. And if I had checked I would have seen that TomO made my main point much better and with far fewer words. Cool.

(And it should be 'Also the thing is that these same people . . ." - got eaten in my html messup

Did I drink decaf by mistake?

Posted by: Dan S. on September 4, 2006 at 1:39 PM | PERMALINK

I Just had unprotected sex an hour ago, without a pill or other birth control. I might have to use the morning after pill tomorrow. That is not murder. That is good clean sex. And I am perfectly comfortable with that.

Thomas1,

If you think that what I've just done is "Murder". Murder... You know, like if someone comes to your house hog ties your wife, marches upstairs to brutally murder your 2 beautiful children before returning to rape your wife, and then killing her like an animal. YOu know like REAL murder.

Then rest assured, it is you that needs to see the shrink, not I.

Troll_Bait

Posted by: troll_bait on September 4, 2006 at 2:02 PM | PERMALINK

bobbyp:

What is "disingenuous" about thinking that the punishment for abortion should be exactly the same as for murder of born babies?

What is wrong with that thomas1? Well, for starters, you imply I advocate a position that they are the same thing....I do not--you do. Stop projecting please.

Answer the question: What social policy should be adopted if abortion is morally equivalent to premeditated murder?

If you can provide a straightforward answer to that question, then we can proceed to a discussion. But I suspect you will not.

Posted by: bobbyp on September 4, 2006 at 2:06 PM | PERMALINK

"In any other context, that is still called The Holocaust."

Actually, it isn't, unless one is responsible for the intentionally genocidal killing of ~6 million Jews over several years in Europe during the 20th Century (would Goodwin's Law apply in that case?)

"I'm interested in any option that does not actually INCREASE abortions."

Well, good on you! Well, maybe - leaving it this wide open suggests you're ok with chaining pregnant women to beds and such, or perhaps even some very public executions. But anyway, if you consider yourself pro-life, your movement doesn't support you here. Unless, of course that "INCREASE" is part one of an escape clause, with the second half being

"- you can't claim credit for a slight decrease after INCREASING [known] abortions to over 1 million per year."

And of course, we can. And do. Rightly so.

Posted by: Dan S. on September 4, 2006 at 2:11 PM | PERMALINK

thomas1: "If you really just had sex an hour ago, perhaps you should be doing something else besides posting on-line."

Ah, another finely honed moral judgement well within the artificially proscribed, but strict, boundaries of Puritanism.

Posted by: bobbyp on September 4, 2006 at 2:22 PM | PERMALINK

Thomas1 Writes: No one is accusing you of that until you take the life of a fertilized zygote

Actually, no rational person would ever accuse me or my wife of murder, if we got rid of an unwanted pregnancy. Or used contraception to prevent pregnancy. Or decided that we wanted to Go the distance and let our co-mingling fluids to develop into a beautiful baby. That is exactly why your holocaust talk is so ridiculous.

Murder is murder, bud. Its killing people. Not zygotes. Not sperm cells. Not throwing away fertilized eggs at the clinic. That mumbo jumbo cheapens the meaning of the word, LIFE. It makes humans less than human. And real holocaust victims, equal to fertilized eggs.

There is a real debate to be had about abortion. But this is not it. This is rhetorical nonsense.

Troll_Bait

Posted by: troll_bait on September 4, 2006 at 2:26 PM | PERMALINK

thomas1: "I didn't imply that you advocate a position that they are the same thing--"

Well, yes you did, or your first retort to my first post cannot be seen to make any sense.

But no matter. So what should this policy be? Prison? Execution? Who gets punished? The initiator (the woman) or the abortion performer? Both? What social outcomes do you forsee from such a policy? Will it work? Are you willing to pay all the tax increases to build more prisons? What about those who go abroad to get abortions? What do we do with fertilized frozen embryos?

Oh, so many questions, so little time.

Posted by: bobbyp on September 4, 2006 at 2:30 PM | PERMALINK

Thomas1,

Oh, and while you mention it.

- If you really just had sex an hour ago, perhaps you should be doing something else besides posting on-line.

Post porn blogging is where it's at man. It relaxes you. It loosens the kinks in the shoulders and stress in the mind. Makes you think like a normal person. You should try it. Post porn blogging, or maybe even just some bi-weekly sex.

You could really stand to loosen up.


Troll_Bait

Posted by: troll_bait on September 4, 2006 at 2:34 PM | PERMALINK

thomas1: "Do you ever considering how "disturbing" it is to advocate the unjustified killing of human beings in any other context? If not, please see a shrink ASAP.

Emphasis mine. More quibbles and bits, please.

Posted by: bobbyp on September 4, 2006 at 2:37 PM | PERMALINK

"That's right, bobbyp. I understand that some like you prefer to post DURING sex -- maybe even broadcast it via Web cam -- the rest of us are normal. And we have to actually go enjoy Labor Day now."

Huh? You really DO need to get out more, thomas1. Enjoy Labor Day--you've obviously been working too hard, at what, I'm not sure, but you are well past the point of diminishing marginal returns.

Posted by: bobbyp on September 4, 2006 at 2:41 PM | PERMALINK

I was wondering when this topic was going to crop up again. As you may recall, back in July of last year, AT Center Network released a video of anti-abortion protestors being asked their feelings on what should happen to women who have abortions. (Go to their website, ATCenterNetwork dot com, and search for "Libertyville Abortion Demonstration"). The brouhaha was updated in March of this year by, among others, Digby and The Talent Show. I also commented on it on my blog, on March 9, under the title "Should The Women Be Charged?"

As was demonstrated in the AT Center video, virtually NONE of the anti-abortion protestors wanted the women charged with any criminal wrong-doing. The cynic in me said that was because they wanted to leave a loophole, just in case they, or their daughters, got "in the family way" unexpectedly.

The short version: anti-abortion protestors, in general, do NOT favor criminal penalties, at least not for the women, although many would like to see the doctors charged with murder (I have what I believe to be a pair of useful scenarios to illustrate the point). Of course, if the doctor is to be charged with murder, it seems only logical (under the American legal system) that the mother must also be charged, either with conspiracy to commit murder or, at the very least, soliticitation of murder.

But the right-wingers don't want to risk Buffy getting nailed (again, although in a different context).

Posted by: andrew on September 4, 2006 at 2:47 PM | PERMALINK

Thomas1 Writes: That's right, bobbyp. I understand that some like you prefer to post DURING sex -- maybe even broadcast it via Web cam -- the rest of us are normal.

And now we come to it. The man accusing, womans those who believe in a womans right to choose, as of being enablers of a holocaust. Hes normal. Were depraved.

At the end of the day, isn't this what it's all about for the right wing? Moralizing about sex? All this nonsense with the day after pill. Hyperventilating about Contraception. Wanting to get sex education out of schools. Wanting to promote George Bushs chastity cult. And in this thread knocking around legalize, for turning women and doctors into murders.

If normal is demonstrated by the mainstream. Youre not in it dude.

Troll_Bait.

Posted by: troll_bait on September 4, 2006 at 2:51 PM | PERMALINK

But can we now finally get a straightforward answer to this question without the usual shilly shallying? In Ponnuru's world, why should people who murder fetuses or allow their fetuses to be murdered get off with nothing more than a stern warning?

Ooh, I dunno about that, Kevin. It's not like Ponneru's shilly shallying is the sole tactic of the anti-choicer. They tag team off of each other's ballyhoo and folderol every couple of months. Keep talking like this, and it helps them to take the charge and shock out of what the logical conclusion to outlawing abortion is - It certainly seems reminiscent of the change in drug laws starting in the 1960s (the Rockefeller laws) and then later Nixon's Operation Intercept (and paraquat) and the massive prison building of the last 20 years to house non-violent drug offenders. At the rate we're going, we're going to have to build more of these gated communities for women (for having abortions and the (unintended) victims (largest population of those screwed over by the minimum sentencing laws). Yeah, it wasn't the drug cartel kingpins so much who have been put away under those laws - first-time women offenders trying to find ways to survive financially, acting as mules were put away, 4-fold increase in their numbers in prison now.

We kill people, fully born, with decades of life's experiences under their belts, every day in America. Not only is it legal (to allow it to happen), it's required. To withhold treatment from people who may have a terminal illness, but who get sick with something else that isn't life-threatening, a treatable infection, for example, is only one of the ways it's being done. We legally kill innocent life each day in this country, actively (with morphine) or passively (withholding nutrition and hydration), and with the exception of one Terri Schiavo, the anti-choicers remain silent.

We can argue about when life begins, but we don't ever go near to the basic premise of American laws upon which Roe vs. Wade were predicated: The presumption of privacy that the founders envisioned was a no-brainer concept of what was necessary for a people's republic, and that "All people are born equal" and yet fetuses (unborn) are more equal than others (born). Fetuses are essentially parasites living off of a host (an already born American citizen whose rights seem to be suspended for the duration of a pregnancy. The State (the majority) has usurped the right of the individual when it comes to what's in the "best interest of the state." How is overpopulation in the best interest of State, or of the world? Overpopulation is only providing the rich with cheap labor, most of whom aren't having much fun "at the party. Overpopulation is straining the earth's resources and putting us and future generations at risk of destroying our ability to live on the planet. When have we had that debate?:

In the year 1900 the Earth was home to about 1.6 billion people. The total had grown by 600 million in the 100 years since 1800, the year that the first billion was reached; but the change in the 19th century gave no hint of things to come. By the middle of the present century another billion had been added, in the remarkably short span of only 50 years. Moreover, and significantly, 80 percent of the growth had taken place in the world's poorer, or "developing," nations. In 1995, but 45 years later, world population had risen by an additional three billion (Fig. 1), with most of the increase, as before, in Asia, Africa, and Latin America (Table 1).

The dramatic fashion in which new numbers have been added to the world's population since 1950 is shown in Table 2. While it took the several million years of human history to reach the first billion, and 130 years to reach the second, today each new billion is added in but 11 years.

There is no problem on the planet where the solution has been "More people, please."

Denying a woman's right to choose also creates a whole other set of problems along the "equal rights" clause - it's only women who must submit to this "special consideration" because men can't become pregnant. A fetus is essentially a parasite living off of a host (the woman, as a life-support machine). The argument that a woman consents to the arrangement every time she has coitus presumes a fact nobody, especially not most American men would agree to: That sex would only be allowed, legal, for procreation.

So if we're forcing looking to force taking arguments to their conclusions, ridiculous and other, I'd like to see the entire debate opened up. In some smart directions.

Most of the time, I think we liberals waste time and effort by responding to conservative op-eds and blogs. Instead, we should be ignoring conservatives' tired, old dogma and lay out our world views and solutions for today's and tomorrow's problems irrespective of what conservatives have to say on these matters. All Republicans have to say about liberal, progressive solutions to today's problems is rhetorical ad hominem and name-calling.

"We win because our ideas are better."

They really are, and American citizens know the truth when they hear it.

Posted by: Maeven on September 4, 2006 at 3:53 PM | PERMALINK

the forced birthers are caught no matter what they do or so. Wherever they draw the line: fetus, zygote, inception, IF, all eggs and sperm, etc., it is a HUMAN decision when life begins. There is NO GOD ORDAINED anyting in terms of when life begins - they knew nothing of zygotes and embryos when the bible stories were written.

There is only HUMAN prognostication of God's will - which is bullshit because any and all can argue God's will until the cows come home and never agree. When life begins is wholly a human invention which is forever subject to differences of OPINION.

On the other hand, there can be no denying the existence of a women and their right to exercise dominion over her life and her body. This is exactly what charges the forced-birthers - that a woman, every woman can, should, and must has and can exercise free will over her own life which includes her body and any temporary residents.

Posted by: pluege on September 4, 2006 at 5:33 PM | PERMALINK

Goddamn there is nothing more nauseating than a man getting all righteous over abortion.

Posted by: Mooser on September 4, 2006 at 5:47 PM | PERMALINK

Goddamn there is nothing more nauseating than a man getting all righteous over abortion.

Posted by: Mooser on September 4, 2006 at 6:06 PM | PERMALINK
I'm not "following Judge Frankel's typology."

I didn't say you were, I was pointing out how his five categories, which by name match my original three plus your one plus another, are included in the descriptions of the three I referred to.

I'm telling you that your statement "The three major theories of criminal punishment are..." is false.

I realize that you are claiming that. I was explaining why that claim is wrong.

First, the "theories" you cite are goals or purposes of criminal justice, not "criminal punishment."

Again, as I said before, the distinction you draw is meaningless. Either description accurately describes what they are. You may have seen them described in the way you phrase it (I've seen them described many ways, including yours, mine, and others), but there is not a substantial relevant differences in meaning in those description.

And second, there are at least four such major goals, not only three as you falsely claimed.

As I've already explained the fourth "goal" you listed is completely included in one of the goals I described, insofar as some writers draw a distinction between the theories, it is in the presumed intermediary mechanism by which the same goal is achieved.

Posted by: cmdicely on September 4, 2006 at 11:08 PM | PERMALINK

"Nazis used the 'overpopulation' argument too."

No, thomas1, actually they did not. Their theories were intimately tied to expanding the number of racially pure volk.

To imply otherwise is, well there you go again, disingenuous.

Posted by: bobbyp on September 4, 2006 at 11:08 PM | PERMALINK
If you're not suggesting "self-defense" would justify "legally excusing" the killing of an embryo in a petri dish by a stem-cell scientist, then what justification do you propose for legally excusing that killing?

I'm not proposing anything along those lines at this time. If you'd like to start a discussion about that topic by, you know, making an argument about what you believe, then I may or may not be interested in responding. But if you just want to be a lazy debater trolling for someone to take the affirmative side of an issue because you think you are prepared to take the negative, well, too bad.

It's not "analogous to self-defense." It has nothing to do with self-defense.

Your opinion is noted, though not effectively supported.

Your argument that abortion is legally justifiable because unwanted pregnancy imposes a "a serious and extended physical impairment" on a woman is an expression of the woman's liberty right that is the basis of Roe v. Wade.

No, its not. Or certainly not of anything clearly articulated in the mess of legal "reasoning" in that decision. Sure, its similar in that it asserts that some right fundamental necessary freedom from government intervention exists where a person acts reasonably to protect a certain interest (which is, after all, the theoretical underpinning of the right of self-defense as well.) But in terms of the precedent and argument cited in Roe, well its not much like it.

To impose the "serious and extended physical impairment" of unwanted pregnancy and childbirth on a woman by denying her abortion is a violation of her right to liberty as protected by the Ninth and Fourteenth Amendments.

The Ninth Amendment's reservations would be, I would argue, inapplicable, because such a freedom from government (morally necessary as I think it is) was clearly not a right established even in outline at the time of the Constitution's adoption as a personal right, and the Ninth Amendment was clearly intended to preserve such rights, not to create new rights. OTOH, one might more convincingly, IMO, make a substantive due process argument under the 5th and 14th Amendments, but it wouldn't look much like the meandering argument in Roe referencing cases concerning marital privacy.

"Self-defense" has nothing to do with it.

Sure it does; its almost exactly self-defense as currently understood (which applies to reasonable fear of serious injury, not only death), except that the duration of the insult the body would suffer is expressly considered an important component of its severity.

Posted by: cmdicely on September 4, 2006 at 11:33 PM | PERMALINK

plunge: Put simply, one can believe that something is bad and unfortunate without thinking that it is illegal or even immoral. Having to go through an abortion is not fun times. It isn't something you'd wish that someone would have to go through. Likewise, knowing it's controversial to many people, it makes perfect sense to wish for a solution that doesn't piss people off.

I agree. Ponnuru wants to go an extra step and call it immoral, and hence illegal, but recognize that punishment can make the unfortunate situation worse. Note however that if the mother dies as a consequence of an abortion, a death that occurs in the commission of a crime is more serious legally than an equivalent death that occures purely by accident. This puts extra pressure on doctors to perform the abortions at the highest professional standard.

However, if abortion is not immoral, or in some way reprehensible, how can it be considered "unfortunate"? Just because it costs money? Or is there actually something "wrong" with killing a fetus? Does one mean merely that abortion should be rare because the money might have been used more productively?

Posted by: republicrat on September 4, 2006 at 11:38 PM | PERMALINK

and actually, charlie, that's is EXACTLY bobbyp's point ... that it isn't about overpopulation per se, but about racial-specific policies.

... incidentally, the nazi disdain for "elites" and "intellectuals" (read Jews) parallels the scorn red staters and the republic posters here generally display for liberals.

makes you think ... or it would make you think, if you weren't a conservative incapable of thought.

Posted by: Nads on September 5, 2006 at 12:31 AM | PERMALINK

The punishment for abortion should be exactly the same as for murder of born babies. Next question?

Is your preferred punishment for the death of children is to laugh at their parents, Charlie?

Because that's what you practice, oh devout Christian that you are.

Posted by: ahem on September 5, 2006 at 3:32 AM | PERMALINK

There are plenty of secular reasons to ban abortion -- think seat belt laws.

Are you now in the business of selling teeny-tiny seatbelts for zygotes, Charlie? Or are you still in the business of lauding it over people who fuck like the embodiment of God Almighty?

Posted by: ahem on September 5, 2006 at 3:36 AM | PERMALINK

Attention, lets leave the mumbo jumbo, legalese moralizing, proselitizing behind for a moment and take a closer look and some ugly scientific fact That 8 week old fetus is indeed a collection of human tissue not a person...guess what..so is Cancer. And it performs in much of the same way as does cancer. The fetus extracts blood, vitamins and nutrients from the host (mother) and at the expense of here body. It leaches Calcium and magnesium from her bones setting her up for future osteoporoses. It may cause hair loss, diabetes, and toxemia. All this without giving anything in return while in utero. And like cancer, it could kill her. This by definition is a Paracite. Therefore, ONLY the potential mother can decide wheter or not to allow her body to be hijacked in this manner since it is her health and life that are in jeopardy.

Posted by: Merg on September 5, 2006 at 7:25 AM | PERMALINK
However, if abortion is not immoral, or in some way reprehensible, how can it be considered "unfortunate"?

It could (I'm not arguing that it is, here, only that the idea that it is could explain the characterization) be the least bad option in an unfortunate circumstance, which would make it, in a sense, unfortunate without being reprehensible or immoral.

Posted by: cmdicely on September 5, 2006 at 11:04 AM | PERMALINK
You know they don't even think it is "unfortunate"

"They" who? Plenty of people I know who oppose prohibitions on abortion, and even who think that the choice to abort is not immoral, especially those who have had abortions, seem to think that abortion is, at least, unfortunate.

Posted by: cmdicely on September 5, 2006 at 12:20 PM | PERMALINK
We're already discussing that topic.

No, we aren't.

Ramesh Ponnuru's incoherence applies to both his position on abortion and his position on embryo-destruction through stem cell research.

So? I'm not discussing Ponnuru's position except in respect to Kevin's criticism of it as it relates to abortion.

Ponnuru himself specifically discusses embryo-destroying stem cell research.

Good for him. You are, of course, free to do your best to solicit a defense of his position on stem cell research from him.

I'm not his agent or representative, and have no interest in defending his position.

And also for the umpteenth time, answer your own question, the question you asked in your very first post in this thread.

Er, I didn't ask a question. I suggested that it was wrong to discuss one question without a common position on a another question which logically framed the response to the first question (or whether the first question was even meaningful at all.)

Do you consider abortion to be "an issue of concern that should be combatted," or don't you?

I think I've made my position on that pretty clear in our previous discussions of this issue. I'm not really interested in repeating discussions we've already had when there is nothing new to add.


Posted by: cmdicely on September 5, 2006 at 2:12 PM | PERMALINK

cmdicely: the least bad option in an unfortunate circumstance,

It can't be "least bad" unless it is "bad". You think that "reprehensible" is something it might not be, but "bad" is close enough to my intention.

Clinton wanted abortion to be rare because it is bad, but he didn't want it to be illegal. Ponnuru wants it to be illegal because it is bad, but he doesn't want it to be punishable. There are pro-choice advocates who do not even want abortion to be labelled "bad". Indeed, some pro-choice advocates objected to making infanticide illegal. Ponnuru does not want their view on abortion to be the de facto legal standard.

Clinton and Ponnuru are pragmatists, willing to give up trying to achieve all their goals in order to advance a step in what they perceive to be the right direction.

Posted by: republicrat on September 5, 2006 at 4:23 PM | PERMALINK

According to medical sources:

At 8 weeks a human baby is 6/10 of an inch long and weighs 1/25 of an ounce.

Its cartilage and bones are still forming.

Some of its organs are outside its body in the placenta.

Its sex cannot be determined.

Nails, ears, fingers and toes are not fully formed.

It has neither tooth buds nor sweat glands.

Its skin is transparent.

The 8 week old fetus cannot survive outside its mother's body. It is in NO WAY even close to identical to a 10 day old baby.

Anyone who says it is either has no idea what he/she is talking about or is lying through their teeth.

Posted by: Lew Wolkoff on September 5, 2006 at 4:52 PM | PERMALINK
Since you claim to believe that embryo-destruction is the killing of a human being

Where do I claim this?

I'll repeat what I said to you on July 6, when you were posting as "Atheist", and claimed that I had endorsed the Catholic heirarchy's position on the issue:

"Atheist": You also claim to assent to Catholic teaching about the morality of abortion and embryo-destruction (that it is essentially a form of murder),

Me: To be more accurate, I've claimed to assent to the teaching, with reservationsby which I mean doubts, not specific disagreementconcerning when personhood morally applies, insofar as it is an application of the broader Catholic teaching on homicide

Posted by: cmdicely on September 5, 2006 at 7:07 PM | PERMALINK

An answer, and a question.

To the question of "why not impose jail terms on women who seek abortions?" the answer would seem to be that the question is a digression to a separate topic. This is a dodge, of course, but a legitimate one. When discussing topic X it is entirely appropriate to dodge questions on topic Y.

How the law responds to an offense (say, a premeditated killing, a murder) turns on questions of purpose: is the response of the law meant to punish, or to rehabilitate, or to deter? Your chosen answer to that trilemma leads to follow-on questions (what determines the severity of a just response, what rehabilitation strategies are most effective, what threats most deterring?) and a rapid digression from the question that Ponnuru seeks to answer, namely, is abortion an offense of any kind (e.g. a murder) in the first place?

Saying that Ponnuru is ducking an implication of his position in not addressing why we don't throw mothers in jail is simply invalid. Establishment of the implication that Ponnuru is supposedly ducking (that finding abortion to be deliberate killing implies that we should incarcerate mothers) requires auxiliary assumptions that Ponnuru is not known to hold, about a topic that Ponnuru is not trying to address.

The question:

Previously, Kevin has stated "I figure it takes more than a few strands of DNA and some protoplasm to be truly human. Inevitably, that means I take a fuzzy view of when human life begins, but I'm willing to accept that. The real world is a fuzzy place".

Now I agree about the fuzziness of the real world. But it seems to me that Kevin is confusing personhood, which may be fuzzy (or even fictional) with life and humanity (i.e. homo-sapienness), both of which clearly inhere in a fetus in a scientific, nonfuzzy way.

So, can any of you abortophiles (or mere regulatophobes) point out to interested readers a clear presentation of the pro-choice argument that turns on the possibly fuzzy (or fully denied) personhood of a fetus, while acknowledging the clear humanity and life thereof?

Posted by: Kristo Miettinen on September 6, 2006 at 2:43 AM | PERMALINK

"But even in the realm of lesser offenses, manslaughter carries a much larger penalty than what Ponnuru seems to be advocating even for abortion providers, let alone the women themselves who've made the decision."
"A fine? For the ending of a human life?"

"How can anyone square this while pretending that what they're talking about is the taking of the life of a legally-defined person?"


So many messages ... yet, isn't the quote above really what this is all about in a nutshell? Ponnuru's argument seems to be that abortion is controversial and doctors performing abortion may have noble (but misguided) reasons to help women end unwanted pregnancies. Hence it ought to be punished less severely than other forms of homicide. Fair enough, but *if* one assumes "Abortion" = "taking an innocent life" then the punishment favored by Ponnuru still seems ridiculously lenient... Homicide is homicide: if I kill an abortion doctor because I want to "save the unborn", my intentions may be "good" according to some definition. But I will certainly end up in jail as a result of it! Society will not punish me any less harshly simply because a significant number of voters have problems with abortion...

---

If society really does not make this distinction in other cases (sure, some forms of manslaughter *are* considered *somewhat* less severe but the punishment is always far more harsh than a mere penalty fine), why should "killing an unborn child" be treated differently than other cases of "taking a human life?"


MARCU$

Posted by: MARCU$ on September 6, 2006 at 7:39 AM | PERMALINK

Since a woman rarely gets pregnant without the help of a man, then if a woman is going to be charged with murder for an abortion, then the father of that baby should be charged for murder also. It takes two to tango.

Posted by: Mazurka on September 6, 2006 at 11:06 AM | PERMALINK

No, but, perhaps he should have been charged.

Posted by: Mazurka on September 6, 2006 at 6:15 PM | PERMALINK

Oh, thomas1, thomas1, thomas1....and what of the case where a couple repeatedly get the female pregnant just to "kill" those little zygotes for sport? Hang 'em high, right?

It must be comfy to sit in your little hole and pretend to be god.

Posted by: bobbyp on September 6, 2006 at 11:23 PM | PERMALINK




 

 

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