There is no constitutional right to life

“Would this reasoning also imply a federal ban on capital punishment?” – FredW

Only if you are intellectually consistent, which we know Republican’ts aren’t.

A quick history lesson for our new readers. Abortion was not banned in any part of this country until the 1840’s. Before that, and in the time of the founding fathers, common law allowed a woman to have an abortion before the fetus kicked or had a descernable heartbeat. That usually happens in the second trimester. The founding fathers would not have even thought about putting a ‘right to life’ into the constitution because for them the issue was settled law. It took the American Medical Assocation (yep, the AMA) to decide that abortions should be regulated and controlled…

…by them…

…and promote laws to take the decision away from women.

I guess that would also apply to doctor-assisted suicide and the rather draconian Texas law Bush signed that allows medical professionals to end life support for patients even against a family’s wishes. I would like to hear the verbal and mental gymnastics Republicans and Democrats will have to use to justify the death penalty with this logic.

The thing that strikes me about the Louisianna law is that it has no exceptions in the case of incest or rape. I guess the fetus’ rights trump the woman’s rights in all cases. At least they’re not shy about establishing second or third class citizenship for women.

The Fourteenth Amendment states that no state shall “deprive any person of life, liberty, or property, without due process of law.”

you’re getting into a slippery area, though, as to whether or not a fetus is a “person”. Historically our jurisprudence has placed the bar of being a “person” at BIRTH (funny concept, that). In just about all other areas of the law – property rights, inheritence, taxation, anything that counts toward having a “legal age” – the defining line is BIRTH. It’s only in the case of aboriton that some people want to pretend that BIRTH doesn’t count for anything in the legal scheme of things. When the Constitution talks about counting the number of “persons” every 10 years I guess in the brave new world we’re supposed to count fetuses too.

To follow up on my last post: I think that if unborn children were recognized as citizens with constitutional rights, a plausible argument could be made that the government cannot participate in their termination absent a compelling interest in doing so. This would not require a new amendment and would be consistent with the Supreme Court’s existing precedent under the Fifth and Fourteenth Amendments. However, that does not necessarily mean that abortion would have to be outlawed; the Constitution applies only to state, not private, action (which is why, among other things, private employers can restrict speech in the workplace). So, states could probably not finance or support abortion, but they wouldn’t necessarily have to prohibit it, either. I do think that such a decision would quite likely lead to the overruling of the Roe v. Wade line of cases, since it would be difficult to defend a fundamental constitutional right to deprive another of their fundamental constitutional rights. The issue would probably at that point be left to the states to resolve through legislative means.

However, I think it’s quite unlikely that the Court will ever recognize a developing fetus as a legal person, as such a view would be both philosophically and practically implausible.

A couple of years ago a 20 year old who go popped for underage drinking tried to argue that although he was only out of the womb 20 years and some odd months, his life started in the womb, making him legally able to drink.

It didn’t fly.

I can’t remember if I read this here or somewhere else. A conservative who insisted that life started when egg met sperm was asked if there was a fire at a lab and he had to choose between saving 5 zygotes or a 5 year old girl who would he choose.

I don’t remember the answer.

However, if a court were to rule that a fetus is a person,
if unborn children were recognized as citizens with constitutional rights

There’s a very simple legal reason why fetuses have never – in any society – been recognized as “persons” or “citizens” with “rights” and that is because of the very high incidence of natural miscarriage. Discussions of abortions and treating fetuses as “persons” generally fail to acknowledge the fairly high percentage of pregnancies that never make it to term. According to Wikpedia, “Up to 78% of all conceptions may fail, in most cases before the woman even knows she is pregnant. A fifth of confirmed pregnancies have some bleeding occurring in the first 20 weeks and in all 15% proceed to miscarriage. After the age of 35, the risk of miscarriage increases considerably: 1 in 5 or 6. After 40, the risk increases to 1 in 3, and after 45 it is 1 in 2.”

So imagine a fetus having “rights” and then there is a natural miscarriage. Suddenly someone is responsible for depriving that “person” of its “rights”. If your wife has the tragedy of a miscarriage do you want the fetus police to come sniffing around looking for someone to blame?
Any legal decision granting fetuses the status of “person” or “citizen” with “rights” would radically turn thousands of years of jurisprudence and legal precedent on its head. Funny how this position seems to be adopted by those who consider themselves “conservatives”.

You have a right to life, unless your poor and black living in the 9th Ward.

Then you’re on your own

Dammit! Would someone please explain to me how to italicize things on here, so that I can stop embarrassing myself with posts such as the one above?

For help on italics click here.

Can someone please explain to me how it is that people are successfully prosecuted for TWO counts of murder when they murder a pregnant woman? The first case that comes to mind it the Laci Peterson case, but I know I’ve read about this phenomenon in other cases in the newspapers. I’ve never understood how prosecutors can get a “guilty” verdict for these charges.

Perhaps I was a little too flippant. The analysis proceeds: 1) the 14th and 5th amendments (as is the entirety of the constitution) aren’t relevant because it is private action; and 2) even accepting the applicability of the 14th and 5th amendments, under certain circumstances, the government can deprive even legal persons of life. Then it comes down to semantics: how are the classes and rights partitioned? Is it a “right to life” or a “right to life after natural birth”? Is the government’s interest in perserving choice (i.e. the mother’s liberty) more compelling, an interest in an economically efficient society, or the right to be born (ie. life) more compelling? Does the relative balance even matter? These questions are constitutionally answered already by Roe v. Wade, which indicates that the interests of all parties shift through the nine month gestation period: strongly compelling towards the mother in the beginning, and then slowly giving way to the state’s compelling interest in preserving the lives of its citizens, reaching its apex at birth. It appears to me Roe v. Wade survives regardless of whether the fetus is a legal person or not, by virtue of this second point.

Not that I don’t love the discussion going on here, but we’re missing a big point. Blanco and other Democrats were all for this even though it excludes any rape/incest exclusions. Blanco even mentioned that those would be nice to have, but far be it from her to hold up any legislation just because she thought there was something wrong with it.

Why is this the most important thing for LA to be doing now? Shouldn’t they be, oh, I dunno, REBUILDING AND PREPARING FOR THIS HURRICANE SEASON! I’m sure some will make the argument that they are capable of handling more than one thing at once, but I’ve yet to see any anecdotal evidence that any part of our government is capable of multi-tasking.

Piss poor state and federal planning and response resulted in one of the worst disasters in American history. Nearly the entire coast is devastated by mother nature, 40%-60% of a major cities residents are displaced, but let’s not focus on that.

Good job LA gov’t. Keep up the good waste.

You said it doubtful. Every day that goes by I think that moving from LA was the best decision I could make for my family.

Which also provides the base or basis for why our jurisprudence likely had never previously considered an unborn fetus a person

Uhhhh… not really. There’s virtually nothing in our jurisprudence or legal historythat goes back to the bible. Our jurisprudence is based on Anglo-Saxon common law which basically was all about how how the king related to his subjects and how his subjects related to each other. For example, murder was a criminal offense (and is a crime against the state, not against the indiviidual killed) not because the bible said so, but because killing someone deprived the king of the services of his subject. (Obviously someone not born yet, with a good chance of miscarrying, could not yet be considered a subject of the king and couldn’t provide services – so it was absurd to even consider that someone unborn could be a “person”.) The law was enforced and disputes ajudicated through varous types of courts depending on the type of case and the remedy sought, most noteably the courts of law and equity. There was a type of court system (the “Ecclesiastical” courts) which concerned itself with religious and church matters and ruled according to church law, and, because of the official status of the church had the power and weight of the state behind it. The entire system was transplanted to America with the colonists. The Ecclesiastical courts of Maryland (where Roman Catholiciism was the official state religion), for example, are often cited in early colonial abortion cases, which ruled according to church law as opposed to common law.

However, look at Article 3 Section 2 of the Constitution – “The judicial power shall extend to all cases, in law and equity…” . The Ecclesiastical courts and the whole idea of church law having anything to do with the power of the state or the judicial system was deliberately rejected by the Founders.and jettisoned. Also look at the 7th Amendment which guarantees jury trials “according to the rules of common law”.and enshrines the common law as the basis of our legal system. The point is that nothing in our legal system comes from the bible, the Founders deliberately made that distinction. Any religionist who tries to argue that our laws are “based on the bible” is speaking either from ignorance (not surprising – they know way more about their bible than they do about their own country) or speaking with an agenda. Either way they’re wrong.

“if a right to life, liberty and property only applies to the states how come murder is illegal?” – Joe King

Because the Constitution is written to define the restrictions and powers of the Government. The laws are written to define what is and is not illegal for a person (or corporation) to do. Murder has been illegal for a very long time. In fact, the definition of Murder is the illegal killing of a human being, since there are occasions where killing a human being is not illegal (self-defense, war, first trimester abortion, etc.).

Upthread, Danny asked, “Can someone please explain to me how it is that people are successfully prosecuted for TWO counts of murder when they murder a pregnant woman?” and James Dillon answered, “]There’s a simple explanation for that: legal inconsistency. States often treat unborn fetuses as “persons” for purposes of prosecuting their murderers, even while denying them legal recognotion for other purposes. The federal Unborn Victims of Violence Act codifies the same rule for federal crimes. So, a fetus is a legal person for some purposes, but not for others.”]

These sorts of charges have been pushed by anti-abortionists precisely to establish the precedent that fetuses are legally persons, so that abortion can be outlawed. The former lack of treatment of the fetus as a legal person in other parts of the law was one of the arguments that made Roe v. Wade a supportable position.

This is why I have vehemently disagreed with the position that it won’t be so bad if Roe v. Wade is overturned, because the issue would be sent back to the states and there’d be a huge counterreaction. I’d expect the court to declare that fetuses are persons, and abortions would become illegal throughout the US.

Tricky, no doubt. I hate to throw spanners in works, I really do, but I see the whole thing in a different way. Of course, I have that freedom because I’m not directly involved in your legal issues (which I do enjoy reading, however – as an act of meditational discipline).
Maybe I should show a hint of my colors here. As a scientist I have found the Buddhist metaphysic the most persuasive in terms of understanding Life, Death, The Universe and Everything. Karma (= cause, condition, result) and rebirth are essential cornerstones of a comprehensive science of human life and potential. Without an understanding of these fundamental principles, in my experience, one lacks an adequate starting point for looking at issues like abortion, innocence, ‘acts of God’, whatever. It’s like trying to understand the solar system without gravity.
We take incarnation as a human being at conception: we leave the bardo of becoming and enter the bardo of conception. Circumstances permitting, we become accessible to ordinary vision by birth (= other human beings can now see us). Following that we go through all the stages of infancy, childhood, adulthood, old-age and, again, death. The experiences we have between birth and death and death and birth are categorised in six broad states of mind called bardos.
So, from this point of view, life and death are relative – not absolute – states of being or, more accurately, of mind. What we do, how we behave, what we imagine, and what we say are constantly accumulating the causes of future experiences, actions and intentions, over which we have more or less volitional influence.
This, for me, completely clarifies all issues involved in abortion and its corollary the death penalty. Killing is a negative act involving negative consequences. To take a life is to deny that being its currently available opportunity to develop and improve. That’s why, for me, the death penalty is very ignorant and not remotely comparable to incarceration for life.
On the issue of abortion, there is no doubt that it involves the termination of a life. However, circumstances in a womb are substantially different from those encountered outside, as most of the above posts have recognised. A profound karmic connection exists between a mother and child. It is of a nature incomparable to any other and, during gestation, to any other epoch in life. For that reason it is indubitably a special case requiring special consideration.
So, what should this special consideration be? It should be, IMHO, to respect as sacrosanct the supremely intimate relationship that exists between a mother and her foetus. They are in communication beyond any other that exists. No other person, even the father, is as close to the child as its mother. No other person is remotely better qualified than the mother to commune with the child about its future and its fate.
I have read of cases counselled by Dr Carolyn Meiss in which the mother, who felt that circumstances did not favour a successful childhood, entered dialogue with her baby explaining the situation and contracting to take responsibility for its rebirth at a future time. In each case the unborn child spontaneously aborted. I also counselled a mother in a similar way with a similar result.
A woman who knows that she is the bearer of a living being, whatever scientists or lawyers may say, will not terminate that life under any but the direst of circumstances. And even then she has non-intrusive methods of resolving their predicament. The trouble is that little if anything in our education persuades us sympathetically and convincingly, without dogma or threat, that, of course, incarnation begins at conception. With that knowledge a person will not casually seek abortion.
So, you see, for me the whole dilemma is predicated on erroneous or inadequate education compounded by a narrowness of comprehension. That said, I do love the exhaustive grinding of legal minutiae.

In El Salvador, doctors can’t legally even intervene to save a woman’s life threatened by ectopic (tubal) pregnancy, until she actually *ruptures*.