Abortion

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Virginia’s “Foolish” Personhood Law? A look under the hood

by Tom Van Dyke on February 20, 2012

Via LoOG regular Mr. Gregniak: Virginia’s House of Delegates has just passed a fetal personhood law.

Virginia’s Foolish Personhood Law

DOUG MATACONIS · SUNDAY, FEBRUARY 19, 2012 ·

Virginia’s legislature was very busy last week. Not only did they pass a bill that will require every woman seeking an abortion to undergo an unnecessary and invasive medical procedure, but the House of Delegates also passed a bill that purports to define life as beginning at the moment of conception…

Foolish? Let’s see.

First, it’s interesting to see the left sweating slippery slopes for a change. I rather like the law as an obstacle to “progress” in that monkey-wrench sort of way, granting the unborn a status above zero.

Now, I’m not big on the “personhood” tactic, which failed even in über-right Mississippi—it’s possible to oppose abortion without granting a zygote full citizenship. A zygote isn’t a baby, at least not yet, so it’s wack to pretend it is.

On the other hand, this Virginia law explicitly leaves Roe v. Wade unchallenged:

subject only to the Constitution of the United States and decisional interpretations thereof by the United States Supreme Court

Roe is in the clear, for now, even if the law goes through. This is not a direct, frontal assault by a state against the federal government. This tactic does not work.

What the law’s effect might actually be is hard for even its critics to say.

[Delegate Bob] Marshall said his bill, modeled after legislation in Missouri, would not affect birth control, miscarriages or abortions but would affect the way that courts define a person. For example, parents could receive damages for the death of a fetus in a wrongful death lawsuit.

Which is sort of like the Laci and Connor Peterson trial, where the Laci’s murderer husband Scott was also found guilty of second degree murder for killing Connor, the fetus, their child.

A fetus with a name, Connor, and accordingly, with a certain “personhood” status.

This law is all about philosophical positioning, it seems to me, and there’s nothing wrong with that. I expect the courts won’t allow the fetus all the way to “personhood,” but these things make it harder for the courts to allow the fetus zero status, like a fingernail.

There are very few pro-choicers who would accept the challenge of arguing this exposed position—the less defensible rhetorical and moral ground, the lower ground—and that the baby in Laci’s womb that Scott Peterson killed was a nothing, no more than a fingernail.

That simply will not ring true, no matter how great your rhetorical skill: Scott Peterson killed something of moral status and significance, a someone of some sort.

We’re all aware of the usual arguments about abortion and a “woman’s body” etc. and that line of argument and its accompanying rhetoric have been well-honed and road-tested, and bear up well if we stick to the script.

But I think there are few who would welcome having to argue that what—who?—Scott Peterson killed in his wife Laci’s womb was a nothing, of no moral significance. Few of us believe that, and this is the purpose of this new Virginia law, if I read their intent correctly, to oblige pro-choicers to argue exactly that, and to be put on the moral and philosophical back foot for a change.

Be it enacted by the General Assembly of Virginia:
1. § 1. The life of each human being begins at conception.

Well, actually, that’s indisputably true. This does not say that every zygote is a full-fledged American citizen.

§ 2. Unborn children have protectable interests in life, health, and well-being.

That’s rather tame on its face. But rather radical in the present controversy. It’s said that he who defines the debate tends to win it. As a formal debate topic, the Virginia legislature has framed it thus:

Proposed: Unborn children have protectable interests in life, health, and well-being.

This explicitly argues the pro-life position, not the anti-abortion one, and from firmer if not higher ground. These country bumpkins in the Commonwealth of Virginia are perhaps not as “foolish” as they look.

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Abortion and Eugenics

by Tom Van Dyke on December 31, 2011

Eugenics still exists. There’s no nice or PC way to say this, but we abort our imperfects now.

JP Morgan, a rich bastard everybody hated and for good reason, was drug up before the Senate for whatever. A flak for the Ringling-Barnum circus stuck a midget in his lap as a PR stunt.

Lya Graf didn’t like the world spotlight, retired back to Germany. She was decreed a “useless person” by the Nazi state, arrested in 1937, sent to Auschwitz in 1941. The rest is obvious.

In the 21st century, we tend to make sure that such persons are never born in the first place. This is progress.

____________________

At the request of Christopher Carr and Brother Rufus—and spurred by some of the thought-provoking comments, I did think there was interest in discussing this further.

Eugenics, of course, was one of the first very big and very lousy ideas of post-Darwin modernity. When man came down from his self-built pedestal and became just another animal, there seemed no logical or scientific reason why he couldn’t breed himself into something more perfect: smarter, stronger, more beautiful. This also meant that some individuals or groups were considered better breeding stock than others—and it made sense to breed more of the better and less of the worse.

We look back with disgust on the 1927 Supreme Court forced-sterilization case Buck v. Bell, where Oliver Wendell Holmes infamously ruled that “three generations of imbeciles are enough,” that

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.

Nazism took these modern ideas to the absurd extreme, a self-anointed “master race,” and suppression and extermination of the lesser ones. Lya Graf wasn’t only a midget, she was half-Jewish, born Lia Schwartz. She had no chance.

We are properly revolted at Nazi eugenics, and we are agreed, Never Again.

But as Brother Rufus pointed out, in the Western world, we now routinely abort over 90% of Down Syndrome pregnancies. In the UK, where abortions are more restricted than in the US, spina bifida, cleft palate and club feet are still reasonable grounds for abortion.

And in the developing world, in India and particularly China, pregnancies are aborted for gender selection: in China, so much so that among those under 20, there are now 123 boys for every 100 girls [the natural ratio is 106 to 100].

The Western world is largely appalled. However, under our own rightstalk, abortion is a “choice,” but as we see, it’s only a legitimate and allowable choice if “we” agree with the reasons.

An interesting play of some years back was called “Twilight of the Golds.” In some not-distant future the “gay gene” has been identified [it has not been, so far], and a family is faced with the choice whether to abort.

“Choice” was seen as a solution to our legal and moral conundrum, as if it’s the last word on the subject. But all it has done is mask the dilemma—we have not yet begun to think about the question at all, we’ve simply buried it under a single facile word. We remain moral imbeciles.

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Say It Ain’t So, Joe

by Tom Van Dyke on October 23, 2011

Biden in 2016. You’re freaking kidding me, right?

WTF?

Give me 3 points and I’ll take the spread on him being more ignorant than Michele Bachmann, favorite whipping girl of people who hate the GOP but must resort to flogging its worst instead of its best.

The difference being that Rep. Bachmann is about to return to well-earned backbencher obscurity, but Vice President Biden will again be on the Big Ticket in 2012.

This is the guy who lost his debate with Sarah Palin, a dilettante who makes Rep. Bachmann look like Bill Clinton.

The world is a strange place…

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Uncivil Tongues: The Bad Manners of the Babykillers

by Tom Van Dyke on October 14, 2011

Calling abortion rights advocates “babykillers” is pretty much a no-no in our civil society, and for good reason. Such talk only serves to inflame: nobody likes being demonized so they get pissed and return fire; on the other side, demonization and over-the-top rhetoric just opens the gates for more of the same from the maddened crowd.

On yet another 50-50 issue in a 50-50 country, we just don’t need the noise.

I’m not one to troll the news or the internet for the dumbest, loudest MFers on the other side of the aisle [I'm a gentleperson of the right and I don't mind] to rail against, but Nancy Pelosi is no mere blogger or even backbencher—the erstwhile Speaker of the House is still the House Minority Leader.

“Under this bill, when the Republicans vote for this bill today. They will be voting to say that women can die on the floor and health care providers don’t have to intervene if this bill is passed. It’s just appalling.”

Huh? Not just me, but somebody on her side of the aisle is obliged to say, WTF? If there’s a rhetorical or substantive difference between “babykiller” and “[Republicans] will be voting to say that women can die on the floor” I’d like to know what it is.

Perhaps someone will try to defend her out of culture war loyalty, but on substance, Politico tells us that the bill still provides the customary exceptions for “cases of rape, incest or the health of the mother.” If accurate, that puts Rep. Pelosi’s charge in the neighborhood of a dirty lie, since it wouldn’t permit anyone to “die on the floor.”

And even if Politico isn’t quite accurate here, surely there’s a more statesmanlike way for a top Congressional leader to convince the American people that the bill is imprudent.

[The bill is an attempt to restore the status quo ante Obamacare, where the 1976 Hyde Amendment bans government money being spent on abortions---a position still held by more Americans than not. It was also the goal of the late, great Stupak Amendment, the last gasp of the last Democrat pro-lifers in congress.]

Now, I’m used to overstatement, demonization and over-the-top rhetoric like this from the Pelosis of America: I know even her supporters are inured to it, so numb they barely notice. We barely raise an eyebrow, perhaps whimper a faint protest. But this isn’t right, unless it’s OK for me to start calling her and hers demagoging partisan hack babykillers.

Which I’d rather not. I’m a civil fellow, a good citizen, play by the rules. I’d rather the gentlepersons of the left get their own house in order. Because if they can be held responsible for the incivility and divisive rhetoric of anyone, surely it’s ex-Speaker Pelosi, only months removed from the third-highest office in the land per the 25th Amendment.

There are cynically partisan reasons to hope she just keeps digging deeper and her supporters help: I like to think that the American voter is as repulsed by this sort of talk as they would be by “babykiller,” the sort of rhetoric that’s the last resort of the unreasonable. Abortion is perhaps our most difficult issue of conscience of all, and I do believe that the vast majority of Americans have searched the souls on it good and hard, regardless of their eventual position on the spectrum.

Each side seeks to coax the conscience of the other; “babykillers,” or letting women “die on the floor” are of the same stripe, divisive enemies of the clarity of good conscience that we all seek.

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Abortion, Infanticide, Murder, and Slippery Slopes

by Tim Kowal on September 14, 2011

From Huffington Post back in November 2009, waiving off the accusation that abortion is a slippery slope to murder:

The [South Carolina State House "born alive"] bill legitimizes the myth of the baby-killing doctor and seizes upon a fictional abortion scenario to imply that, even if the abortion is first-trimester and the fetus is palm-sized, it’s a slippery slope from abortion to murder. And the kind of people involved with abortion — doctors, women, activists — are so morally reprehensible that they can’t be trusted to observe the boundaries between a legal medical procedure and a crime.

Then, less than two years later, there’s this story from CBC News in Canada (via Mark Steyn):

The Wetaskiwin, Alta., woman convicted of infanticide for killing her newborn son, was given a three-year suspended sentence Friday by an Edmonton Court of Queen’s Bench judge.

Katrina Effert was 19 on April 13, 2005, when she secretly gave birth in her parents’ home, strangled the baby boy with her underwear and threw the body over a fence into a neighbour’s yard.

She silently wept as Justice Joanne Veit outlined the reasons for the suspended sentence. Effert will have to abide by conditions for the next three years but she won’t spend time behind bars for strangling her newborn son.

. . . .

The fact that Canada has no abortion laws reflects that "while many Canadians undoubtedly view abortion as a less than ideal solution to unprotected sex and unwanted pregnancy, they generally understand, accept and sympathize with the onerous demands pregnancy and childbirth exact from mothers, especially mothers without support," she writes.

. . . .

"Naturally, Canadians are grieved by an infant’s death, especially at the hands of the infant’s mother, but Canadians also grieve for the mother."

The girl who killed her baby only faces actual jail time “for throwing her baby’s body over the fence.”

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Consistency Check: Torture, Abortion, & the Individual Mandate

by Tim Kowal on May 16, 2011

It’s easy to take an indignant moral position on a single issue.  “Torture is wrong.”  “Abortion is wrong.”  “Coerced transactions are wrong.”  Such positions aren’t rare, and thus not particularly interesting.  What is rare, however, is the ability to demonstrate consistency in taking several unequivocal moral positions.  That is, those who take an unequivocal moral stand with respect to torture, or abortion, or the individual mandate are less likely to purport to take such a fervent an unequivocal a position as to all three.  Yet, if we’re talking about objective morality and deontology—which we almost always are when we’re taking absolute, unequivocal positions—then we really have no excuse. 

For instance, a prototypical conservative might take unequivocal positions against abortion and the individual mandate, yet refrains from taking absolutist positions on the torture question, and instead offers ticking time bomb scenarios and subtle nuances as to why waterboarding isn’t torture, etc.1  Similarly, a prototypical libertarian might take unequivocal positions against torture and the individual mandate, yet offers subtle nuances explaining why a fetus isn’t a person, or why rights do not extend into the womb.  The prototypical liberal, like the libertarian, might categorically reject all mitigating factors offered in support of coercive interrogations, yet makes “the greater good” the centerpiece of his justification of the coercive individual mandate. 

On these and most every other important issue, we scoff at one another for pledging to principle on certain things, and excoriate one another for parsing principle on others.  This phenomenon—at work in many other examples, some of which I’ve listed previously—demonstrates how our underlying judgments about what is objective and what is merely instrumental define our reality.  For example, is economic liberty an end in itself, or merely an instrumentality?  I submit that the deviations in these sorts of judgments are the key to many if not most of our moral and political disagreements, and explain why we parse some principles yet stand indignant on others.  

[1] You can probably put me in this camp as to “enhanced interrogation techniques.”  I acknowledge that certain techniques that cross the line into “torture” are always morally unacceptable.  Assuming an appropriate showing is made that the interogatee is in possession of information concerning a threat to national security, one might say that interrogation techniques that are not torture are justified because, although they amount to coercion, it is coercion against a thing the interrogatee has no moral right to do in the first place: withhold information about immoral and illegal acts to harm or kill others.  This same approach permits one also to say that abortion is wrong (excepting certain extreme cases) because, while it arguably amounts to coercion, it is coercion against a thing no person has a moral right to do: kill an human being conceived through natural consensual relations. 

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Arizona’s Law Prohibiting Race/Gender-Motivated Abortions

by Tim Kowal on April 4, 2011

Last week, Arizona enacted a new law prohibiting abortions carried out on the basis of race or gender.  The new law makes it unlawful for physicians to perform or induce such abortions, and requires physicians to obtain an affidavit from the patient that the abortion is not being obtained “because of the child’s sex or race.”  The law does not penalize the women obtaining such abortions.  The law also provides that a woman’s husband, or parents if she is a minor, may file a suit for civil damages and attorneys’ fees for violations of the law.

Specifically, the text of HB-2443 provides, in relevant part:

13-3603.02.  Abortion: sex and race selection: injunctive and civil relief; failure to report; classification; definition
A. A person who knowingly does any of the following is guilty of a class 3 felony:
1. Performs an abortion knowing that the abortion is sought based on the sex or race of the child or the race of a parent of that child.
2. Uses force of the threat of force to intentionally injure or intimidate any person for the purpose of coercing a sex-selection or race-selection abortion.
3. Solicits or accepts monies to finance a sex-selection or race-selection abortion.

. . . .

36-2156.  Affidavit
A person shall not knowingly perform or induce an abortion before that person completes and signs an affidavit that:
1. States that the child to be aborted is not being aborted because of the child’s sex or race.
2. Is signed by the woman on whom the abortion is to be performed or induced.
3. Is signed by the person performing or inducing the abortion.

Although Reuters reports the new law makes Arizona “the first state in the nation to outlaw abortions performed on the basis of the race or gender of the fetus,” Constitutional Law Profs Blog indicates this isn’t true as to sex-selective abortions:

Arizona is not the first state with a statute prohibiting so called sex-selective abortion. Oklahoma, Pennsylvania, and Illinois all have such statutes passed in 2010.  For example, the Oklahoma statute provides:

No person shall knowingly or recklessly perform or attempt to perform an abortion with knowledge that the pregnant female is seeking the abortion solely on account of the sex of the unborn child. Nothing in this section shall be construed to proscribe the performance of an abortion because the unborn child has a genetic disorder that is sex-linked.

Okla. Stat. tit. 63, § 1-731.2.B (2010).

Arizona’s bill is based on the finding of the Arizona Legislature as follows:

Evidence shows that minorities are targeted for abortion and that sex-selection abortion is also occurring in our country. There is no place for such discrimination and inequality in human society. Sex-selection and race-selection abortions are elective procedures that do not in any way implicate a woman’s health. The purpose of this legislation is to protect unborn children from prenatal discrimination in the form of being subjected to abortion based on the child’s sex or race by prohibiting sex-selection or race-selection abortions.

There does seem to be some evidence to support this.  Joe Carter shares the stats about the escalating gender ratio at birth in various Chinese provinces.  Where a natural ratio typically sits between 103 and 106 boys to every 100 girls at birth, several of China’s provinces are seeing rates upwards of 130 and even 140 boys per 100 girls.  And while far less pronounced, the ratio has also climbed in the U.S. between 1975 and 2002, most drastically among Japanese Americans:

Sex Ratio at Birth, Asian Americans

The race-selective component of Arizona’s new law has generated considerably more controversy, though there seems to be little if any data of any trends in abortions rates based on the race of the unborn child.  This has led some to argue that “[t]he politicians in Arizona should just be honest and admit this is about limiting abortion rights, instead of inventing a problem to trick people into backing their cause.”

With that basic setup, here are my initial opinions about Arizona’s prohibition on gender- and race-based abortions:

First, the law probably would have been better off if it prohibited only gender-based abortions, as it appears there is at least a modicum of evidence to support taking action on that point.  This does not seem to be the case as to race-based abortions.  In fact, the race-based selection issue will likely (and probably by design) foment more hostile rhetoric over the abortion-as-genocide issue.  Without engaging the merits of that particular debate, rhetorically speaking, I don’t think it helps the pro-life cause.

Second, at least as to the gender-based selection component, I think this is a good law politically speaking.  In the long view, abortion in the U.S. is a political question.  The Supreme Court’s decisions in Roe and its progeny are rightly criticized as politically motivated, grounded in extra-constitutional doctrine, and thus representing the nadir of judicial legitimacy. Notwithstanding the constitutional and moral questions underlying abortion, as a practical matter the 28 years since Roe have proven that a judicially-imposed one-size-fits-all national abortion policy just does not make sense.  Unlike watershed Supreme Court cases concerning the Commerce Clause or the Non-Delegation Doctrine, for example, Roe could be overturned without severely impacting national economic and regulatory policy.  This is why Roe is always one of the most closely scrutinized topics for Supreme Court nominees:  it is well understood that the court-created right to abortion hangs not by the force of the judicial and constitutional reasoning supporting it, but by the political makeup of the Court.  Thus, state laws that push back against that unwise judicial regime are helpful in moving forward toward establishing a more legitimate, a more robust legal and policy framework on abortion.

Finally, and again as to the gender-based selection component only, I also think it is a good law substantively speaking.  Consider that perhaps the best argument against the law is that it “polices women’s thoughts”—i.e., it purports to tell women what sorts of reasons for having an abortion are impermissible.  But this begs the question.  Of course it is telling women what sorts of reasons for having an abortion are impermissible.  This is what the abortion debate is all about:  pro-life advocates think there are limited permissible reasons; pro-choice advocates think there are limited impermissible reasons, or perhaps, no impermissible reasons at all.  To object to the Arizona law because it limits the permissible reasons for abortion simply announces which side of the argument you’re on—it does nothing to advance the argument itself.  For pro-life advocates, then, Arizona’s law represents a fine political victory for the view that abortions should be more limited than they are currently.

http://www.azleg.gov/legtext/50leg/1r/bills/hb2443p.pdf

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