Abortion, From Choice to Consent

Discussion in 'Abortion' started by Fugazi, Jun 29, 2014.

  1. Fugazi

    Fugazi New Member Past Donor

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    Firstly I will apologize for the length of the forthcoming posts, it is required in order to explain the legal standings concerning abortion, and to show that the pro-life ideology of 'person at conception' actually strengthens the legality of abortion instead of weakening it.

    all of the following is based in current legislation, from court decisions and peer reviewed books and articles.

    Part 1.

    The distinction between a human being and a person is not arbitrary but refers to one's biological classification. Put simply, if you are conceived by human parents, you are human, leaving open the question of when you might become a person. Tristram Engelhardt notes that into the category human being, we can put the fetus, along with zygotes, embryos, brain-dead human life, and other forms of human life that "give no evidence of being person" - Source : Abortion and the Status of the Fetus - To say that a fetus is a human being, therefore, is not to say it is a person. From the standpoint of law one's species is important, for the courts protects the fetus precisely because it is, as potential life, a member of the human species that may become a child, if not a person. It is because the fetus is potential life that may become a child that it shares the attributes of a person. From a vantage place of the law, for the fetus to share the attributes of a person means that the behavior of the fetus, its movement and its effects on others, can be evaluated in terms of mens rea, or guilty mind. Clearly the fetus has no conscious intentions and cannot control its movements, for this reason, the law evaluates its mens rea as incompetent. To the degree that fetuses act, therefore, they'll act like a mentally incompetent human life.

    In its most general sense the verb to act refers to all bodily movements, including involuntary actions such as might occur when one is sleeping or unconscious. In its more narrow sense, to act only refers to voluntary bodily movements - Source : Wayne R. LaFave Criminal Law 2nd Edition Page 197 - The law recognizes that both involuntary and voluntary acts can cause harm and injury to other people and that involuntary characteristic of an action does not give its perpetrator any right to inflict harm or injury. As the Model Penal Code notes, "People whose involuntary movements threaten harm to others may present a public health or safety problem." - Source : Model Penal Code - Page 197 - In criminal cases the state itself initiates proceedings against perpetrators to protect the public interest, a person who causes harm through involuntary movement lack the mens rea to be held legally responsible for their behavior, furthermore an act cannot be deemed voluntary when the person is underage, for example, in common law, when children are younger than seven years of age they are presumed to be without criminal capacity, this does not mean it was not recognized that children can harm other people, it was merely that prior to the age of discretion, the law recognizes that youthful defendants did not have the ability "to distinguish between good and evil" and for this reason could not be legally held responsible for their actions, age, therefore, is also a factor much like unconsciousness, insanity, or any other involuntary act.
    When actions are involuntary, regardless of how seriously they might harm others, people are not held legally responsible for what they do, in this sense, the fetus is innocent. Its innocence does not mean that the fetus is a passive, inert mass of material that does nothing to a woman, to the contrary, it is vital, living, active entity with tremendous power. It alone has the power to transform a woman's body from a non-pregnant state to a pregnant one. The very fact that the fetus is portrayed as innocent underscores its status as human life, even though it is incompetent human life. fires that destroy vast areas are not called innocent, rather fires are seen as possessing no human attributes at all. When people describe the fetus as innocent, therefore, they are recognizing that it is in a category with other human beings, who though they seriously effect the well-being of others, remain innocent of the criminality. The law views such people as the objective cause of their actions, even though they cannot be held legally responsible for them eg. If one person shoots another, that person is the objective cause of the others death and, according to law, has committed homicide. Whether the person is is held criminally responsible for the homicide, however, depends on the "absence or presence of legal justification or excuse for the shooting." To decide that question, the legal system, asks three logical ordered questions : Did the defendant cause the death of the deceased? If yes, is the defendant criminally responsible for the homicide? If yes, what is the grade or degree of guilt of his guilt? The defendant must be acquitted if the answer to questions one or two are no - Source : Rollin. M. Perkins & Ronald N. Boyce, Criminal Law, 3rd Edition

    The fetus's behavior nonetheless falls into that category of action in which the law assigns objective fault even without the presence of conscious intention. In this sense, people can be objectively at fault whether or not they have the mental capacity or requisite knowledge to know that their behavior is criminal - Source : LaFave & Scott, Criminal Law Page 212-213 - In the same way the fetus's behavior is objectively at fault for causing pregnancy, even though it has no knowledge, consciousness, or intention of doing so.
    The portraying of the fetus as any type of actor, even an incompetent one, may offend those who see pregnancy as merely a set of biological processes more akin to other kinds of Physiological processes, such as focusing the eye, yet this is exactly how the court has defined pregnancy. Rather than a set of biological processes involving only one individual, a woman, the court in Roe established that pregnancy is a condition in which there are two recognizable entities, the woman and the fertilized ovum throughout its developmental stages. The state protects both of them. For this reason it is insufficient to think that pregnancy is merely a set of physiological processes void of human agency, to the extent that there are two human entities in pregnancy, the state protects two human interests and therefore two human actors, even if one of them, the fetus, is an incompetent actor.

    Recognition of the fertilized ovum as an incompetent actor who makes a woman pregnant opens the door to a new way of evaluation the legal significance of what the fetus does when it imposes even a medically normal pregnancy on a woman, to the degree that the fetus shares the attributes of a person, its imposition of normal pregnancy against a woman's will is an invasion of her right to be let alone from other private entities. The fetus acquires no entitlement to intrude on a woman simply because it lacks the mens rea to make it criminally responsible for what it does. - Note: We must remember the condition of pregnancy serves the immediate survival needs of the fetus, not the woman. It is the fetus whose development and continued existence depends on keeping the woman pregnant. While born people may wish to exercise the option to continue their presence in the form of offspring genetically and socially connected to them, the very fact they are born signifies that their own immediate lives do not require the condition of pregnancy to sustain them. By contrast, the fetus does not merely intrude upon a woman's body as an incompetent actor but as one who directly and specifically benefits from taking her body. As Philosopher Frances M. Kamn notes, this gives the woman more rather than less justification for terminating pregnancy with an abortion. - Source : Kamn. Creation and Abortion : A Study in Moral and Legal Philosophy

    Conclusion : If the state has a legitimate interest in protecting the fetus, on what grounds can it allow the fetus, as an incompetent actor, to intrude on the body integrity and liberty of another private party, the woman, as a means for attaining its objective?.
    The courts have not yet addressed the constitutionality of the states response to the intrusion, including the use of that intrusion as a means for accomplishing the state's goal : The protection of the fetus .
    The value of potential life as represented by the fetus, is similar to, if not the same as, the value placed on all born human life. The issue in abortion rights is, therefore, not the state's interest in protecting potential life, but rather the state;s justification for offering greater protection of potential life than born life. In other words, the issue is not the legitimacy of the state's interest in potential life but rather the state's justification for granting to pre-born potential life a greater right of access to another person's body than it grants born life.

    Part 2 Later.
     
  2. Fugazi

    Fugazi New Member Past Donor

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    The zef and mens Rea

    Mens Rea - As an element of criminal responsibility, a guilty mind; a guilty or wrongful purpose; a criminal intent. Guilty knowledge and wilfulness.

    A fundamental principle of Criminal Law is that a crime consists of both a mental and a physical element. Mens rea, a person's awareness of the fact that his or her conduct is criminal, is the mental element, and actus reus, the act itself, is the physical element.

    The concept of mens rea developed in England during the latter part of the common-law era (about the year 1600) when judges began to hold that an act alone could not create criminal liability unless it was accompanied by a guilty state of mind. The degree of mens rea required for a particular common-law crime varied. Murder, for example, required a malicious state of mind, whereas Larceny required a felonious state of mind.

    Today most crimes, including common-law crimes, are defined by statutes that usually contain a word or phrase indicating the mens rea requirement. A typical statute, for example, may require that a person act knowingly, purposely, or recklessly.

    Sometimes a statute creates criminal liability for the commission or omission of a particular act without designating a mens rea. These are called Strict Liability statutes. If such a statute is construed to purposely omit criminal intent, a person who commits the crime may be guilty even though he or she had no knowledge that his or her act was criminal and had no thought of committing a crime. All that is required under such statutes is that the act itself is voluntary, since involuntary acts are not criminal.

    Occasionally mens rea is used synonymously with the words general intent, although general intent is more commonly used to describe criminal liability when a defendant does not intend to bring about a particular result. Specific Intent, another term related to mens rea, describes a particular state of mind above and beyond what is generally required. - http://legal-dictionary.thefreedictionary.com/mens+rea

    As a fetus is a person, it also would have to be "assigned" a level of mens rea for legal purposes - this would be as a mentally incompetent person ie the fetus cannot legally be held responsible for it's actions, be they voluntary or involuntary actions. Even though a person who is mentally incompetent cannot be legally charged for any voluntary or involuntary action it does not mean that they are free to impose on another person, nor does it mean that a person being imposed upon by a mentally incompetent person cannot defend themselves up to an including deadly force and that the state has a legal duty to help protect all people from such imposition.
     
  3. Fugazi

    Fugazi New Member Past Donor

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    The Legal cause of pregnancy

    Pregnancy is not caused by a male. Pregnancy can only be caused by a fertilized ovum. There are two relationships, one is the sexual relationship between a man and a woman, the other is a pregnancy relationship between a zef and a woman.
    While a man can cause a woman to engage in a sexual relationship with him he cannot cause a woman's body to change from a non-pregnant state to a pregnant one, the only entity that can achieve that is a fertilized ovum when it implants itself into the uterus (which is the generally accepted start of pregnancy). Thus although a fetus and woman can have a pregnancy relationship they cannot have a sexual relationship, and obviously a man cannot have a pregnancy or sexual relationship with a fetus.
    So although a sexual relationship between a man and a woman usually precede a pregnancy relationship between a woman and a fetus the two relationships are by no means the same. what is more, not only is it the fertilized ovum, rather than the man, that joins with a woman in a pregnancy relationship, but it is the fertilized ovum, not the man, that is the primary cause of that relationship. The only way a woman will ever be pregnant id if a fertilized ovum implants itself and stays there, and the only way to terminate the condition of pregnancy in a woman's body is to remove the cause pf that pregnancy; the fertilized ovum (or fetus in later stages). Under the law, therefore, it is the fertilized ovum or fetus, not a man, that is the primary cause of pregnancy.
    How to assess causality, whether of pregnancy or any other matter, is one of the most complex questions in the legal field. Often the law must determine cause in order to assess who or what is responsible for events or damages. The law makes that determination by assessing casual links, that is, by identifying the sequence of events, or chains, that explain how or why an event occurred. The law tries to consider only the causes that are "so closely connected with the result" -Source : Prosser and Keeton on the Law of Torts - Page 264 that it makes sense to regard them as responsible for it. In the process, courts distinguish between two main types of causes; factual causes, which explains in a broad context why an event occurred, and legal causes, which constitute the sole or primary reason for an event's occurrence.
    A factual cause can be thought of as necessary but not sufficient cause of an event, there are two types of factual cause - 1. casual links, 2. "but for" causes, the former increases the chances that another event will occur but do not cause the actual event itself (Source : Calabresi - Concerning Cause and the Law of Torts - Page 71) and the latter are acts or activities "without which a particular injury would not have occurred", yet not sufficient in itself for its occurrence eg. If a woman jogs in Central Park at ten o-clock at night although such activity increases the chances they may be beaten, raped or murdered, it does not actually cause those events to occur; someone else has to do the beating, raping or murdering. Exposing oneself to the risk of injury, therefore, while it may be a necessary, factual cause of that injury, does not mean it is the sufficient, legal cause. The person who does the beating, raping or murdering are the necessary and sufficient cause of the injuries, and thus are the legal cause.
    Among the virtually infinite number of necessary factual causes the task of the law is to locate the one necessary and sufficient cause of the event, that is, the legal cause. The legal cause is "that which is nearest in the order of responsible causation .. the primary or moving cause ... the lat negligent act contributory to an injury, without which such an injury would not have resulted. The dominant, moving or producing cause" - Source : Black's Law Dictionary 6th Ed Page 1225, the legal cause is, therefore, both a necessary and sufficient condition to explain why an event occurred.

    This legal distinction between factual and legal causes relates to the distinction between sexual intercourse, cause by a man, and pregnancy, caused by a fertilized ovum. A man, by virtue of being the cause of sexual intercourse, becomes a factual cause of pregnancy. By moving his sperm into a woman's body through sexual intercourse, he provides a necessary but not sufficient condition for her body to change from a nonpregnant to a pregnant condition, not until a fertilized ovum is conceived does it's presence actually change her body from a nonpregnant to a pregnant state. For this reason, since pregnancy is condition that follows absolutely from the presence of a fertilized ovum in a woman's body, it can be identified as the fertilized ovum to be the legal cause of a woman's pregnancy state.
    In the case of most pregnancies, men and sexual intercourse are a necessary condition that increase the chances of pregnancy by putting a woman at risk to become pregnant, but the conception of a fertilized ovum in a woman's body and its implantation are the necessary and sufficient conditions that actually make her pregnant. What men cause in sexual intercourse is merely on or the factual sequential links involved in pregnancy; the transportation of sperm from their body to the body of a woman. Moving sperm into a woman's body, however, is not the legal, or most important, cause of a woman's pregnant condition, it is merely a preceding factual cause that puts her at risk of becoming pregnant. Once a man has ejaculated his sperm into the vagina of a woman there is nothing more he can do to affect the subsequent casual links that lead to pregnancy. There is no way he can cause his sperm to move, or not to move, to the site of fertilization, nor can he control whether the sperm will fuse with the ovum or not, for this reason is makes no sense to say a man causes conception, much less that a man causes pregnancy. Until a fertilized ovum conceives an implants itself into a woman's body pregnancy cannot occur. Sexual intercourse, therefore, although commonly a factual cause of pregnancy, cannot be viewed as the "controlling agency" or legal cause of pregnancy. The fertilized ovum's implantation accomplishes that task.
    While the man depositing his sperm inside the vagina may possibly set in motion a sequence of events that may or may not lead to the implantation of a fertilized ovum in the woman's uterus, the law does not identify events that set things in motion as the legal cause of eventual consequences.

    Sexual intercourse falls therefore under the "but for" factual cause ie without men there would be no sperm; "but for" sperm, there would be no fertilized ova; "but for" fertilized ova, there would be no implantation in the uterus; "but for" implantation by fertilized ova in a woman's uterus, there would be no sustained pregnancies.

    A man is a necessary factual cause in the chain of events that can lead to pregnancy .. but a man is not the legal cause
    A man depositing sperm into the vagina is- for the most - a necessary factual cause in the chain of events that can lead to pregnancy .. but is not the legal cause.
    The sperm fertilizing the ova is a necessary and significant cause in the chain of events that can lead to pregnancy, this is the legal cause.

    Factual Cause - http://definitions.uslegal.com/a/actual-cause/
    Legal Cause - http://definitions.uslegal.com/l/legal-cause/
     
  4. Fugazi

    Fugazi New Member Past Donor

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    Consent

    Consent means legally to "express consent," or that which is "directly given, either viva voce or in writing" - Source : Henry Campbell Black, Black's Law Dictionary, 6th ed Page 305 - such consent "is positive, direct, unequivocal ... requiring no inference or implication to supply its meaning." - Source : Henry Campbell Black, Black's Law Dictionary, 6th ed Page 305 - Consent is an "act of reason," which must be a "voluntary agreement by a person in the possession and exercise of sufficient mental capacity to make an intelligent choice to do something proposed by another." - Source : Henry Campbell Black, Black's Law Dictionary, 6th ed Page 305 - More simply consent is the willingness that "an act or invasion of interest shall take place" based on "a choice between resistance and assent." - Source : Henry Campbell Black, Black's Law Dictionary, 6th ed Page 305 - In the context of pregnancy, consent means a woman's explicit willingness, based on her choice between resistance and assent, for the fertilized ovum to implant itself and cause her body to change from a nonpregnant to a pregnant condition.
    A woman's right to consent to the physical intrusion by a fertilized ovum is based on the pro-lifer ideology of the personhood attributes of the fetus. If the fertilized ovum were merely a physiological 'mass of cells', like a force of nature, the legal meaning of consent, defined as a concurrence of wills, would become an unnecessary, and a meaningless concept. It makes no sense, for example, to say that people consent to the way in which their blood circulates or their eyes focus or that they consent to rain. If people want to re-route their blood circulation, as in bypass surgery, or to alter surgically the way their eyes focus, they are not restricted by the right of the blood to circulate in their bodies in a particular way, similarly, if physiological masses of cells are identified by people as alien to their bodies, as in the case of cancer, no one is going to restrict people's right to eradicate the presence and actions of those cells, because of the cells "right to life" or right to use people's bodies. The same applies to a fetus IF it is viewed as a natural force, natural forces cannot break laws. The law is only relevant only to people, the state, or juridical entities such as corporations, and only when entities such as these become involved in the damage ot injuries caused by natural forces as laws applicable - as Mary Anne Case notes, "Law is precisely that which fights nature, If something were all that natural, a law would not be needed to bring it about," - Harvard Journal of Law and Public Policy : Page 375.
    As a pro-life bumper sticker proclaims "The Natural choice is life", by which they mean that pregnancy is not only a normal but also a natural process, yet the word natural refers to processes that occur without human intervention, like hurricanes, earthquakes and death. If a person becomes involved in these processes they are no longer legally considered natural but are caused, at least in part, by human agency, for example, even if a person is insane, a fire set by that person is no longer regarded by the law as the result of natural forces; it is rather an event that obliges the involvement of the police, even if the mentally incompetent person cannot be legally held responsible for their actions.
    It is ironic therefore that the pro-life forces and others that say the fetus must be considered to be a person that contradicts any depiction of pregnancy as natural. To the extent that pregnancy is initiated and maintained by an entity that is a person, it is a product of human agency, not the product of a force of nature. Similarly, although it might seem as natural for a man and a woman to have sexual intercourse, from the standpoint of law, sexual intercourse between people is the product of their human agency, not the product of natural forces, if a woman refuses to consent to sexual intercourse, it is not lawful for a man to impose himself sexually on her by claiming that he is a natural force or that he is mentally incompetent. His imposition of sexual intercourse on a woman without her consent is the crime of rape, whatever may be our cultural attitudes toward the naturalness of heterosexual relationships, much less the rights of those who are mentally incompetent. So, too, with pregnancy. The condition of pregnancy is initiated and maintained by an entity that the Court has declared to be human life under the protection of the state. Pro-life forces insist that the fertilized ovum from the moment of conception is an actual person, just like a born person. Some states such as Missouri, have declared that a fetus is a person from the moment of conception onward.
    Because a fetus cannot be a person and a force of nature at the same time, to the extent that when a fetus attains human status it loses its status as a natural force. When it causes pregnancy it acts more like a mentally incompetent person than like a natural force - Tristram Engelhardt notes that modern technology transforms what we might think of as the "blind forces of nature" into processes under the human control of the medical field -Source : Engelhardt, "Concluding Remarks" in Abortion and the Status of the Fetus : Page 335
    From the standpoint of law, therefore, pregnancy is not a natural process precisely because it is initiated and maintained by an entity, the fetus, that is protected by the state as human life, regardless of whether that human life has attained the status of a person. A woman's right to consent to what a fetus does to her when it makes her pregnant, therefore, derives directly from the state's designation of the fetus as protected human life, and while it makes no sense to say that you consent to a natural force, such as fire, to burn your house, it does make sense to talk about whether you consent to let a person, or some other juridical agent, burn your house. Equally important should you not consent, it is appropriate to call not only the fire department to put out the fire but also the police department to stop the person from breaking the law.
    If the state were to categorize the fetus as a mass of living cells void of human identity, of course, the issue of consent disappears, but so, too, would the state's removal of abortion funding from health policies as a means to protect the fetus as human life disappears. Once the state declares the fetus to be under its protection as a form of human life, however, the issue no longer is merely the woman's right to chose what to do with her own body, but rather the woman's right to consent to what the fetus as a form of state protected human life does to her body. This is because whereas choice refers to only one individual (or entity, such as a corporation) consent necessarily refers to a relationship between two entities, both of whom have at least some attributes of a person or a juridical system. Consent is an agreement between two such entities that signifies that one agrees to let the other invade, her, his or its interests.
    Not only does consent subsume choice, but it is also the basic concept underlying the USA form of government - Source : Kim Lane Scheppele & Jeremy Waldron : "Contractarian Methods in Political & Legal Evaluation"; Yale Journal of Law and the Humanities : Page 196 Modern conceptions of the state following the Enlightenment are built on the idea that the only way to make the exercise of power legitimate is to base it on the consent of the governed. "In this sense, consent is a value prior to any constitution, for ir is the value upon which the legitimacy of the state and the constitution itself rests" - Source : Daniel R. Ortiz, "Privacy, Autonomy, and Consent," : Harvard Journal of Law and Public Policy : Pages 93-94 - For the laws and government of the United States to be legitimate people must consent to them, the electoral process gives people the opportunity to express their choice of whom to elect, for an election to be valid, there must be a real choice between candidates, but the rationale for elections also provides a mechanism by which those who govern by holding office do do on the basis of the consent of the governed.
    Since consent legally is an agreement for a person's interests to be invaded by another, a person must have the choice of whether to consent or not. If people do not have a choice, the invasion of their interests is coercive, which is the antithesis of consent. Although there can be a choice without consent, as when people make decisions that refer only to themselves, there can be no consent without choice because consent refers to a relationship between two people one of whom invades the interest of the other. Without choice, that invasion is necessarily coercive, not consensual.
     
  5. Fugazi

    Fugazi New Member Past Donor

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    Cont ...

    While there can be meaningful choice without consent, there can be no meaningful consent without choice. People can make individual choices without the process of consenting with others. On one hand if you choose to use contraceptives, that act refers only to yourself and is meaningful to the extent that you have a real choice of whether to do so or not. If, on the other hand, you consent to use contraceptives, it implies not only that you have a real choice of whether to use them or not but also that you have chosen to use them as part of an agreement with others. Specifically, you have agreed to an invasion of your interests by others, based on a valid choice between assenting or not.
    Consent, is therefore, built on choice. There can be no valid consent unless there is a valid choice, when choices are undermined, so too is the validity of consent eg. when cash incentives are offered in order to gain acquiescence from people their ability to make a choice without coercion is diminished.
    The abortion debate needs to take into account the fact that a woman's submission is not necessarily a sign of consent, when submission is the very opposite of what is meant by consent.

    While we have established that it is not the man that legally makes a woman pregnant but the fertilized ovum, the common mistake is also made that a woman's consent to sex is also consent to pregnancy, whether this is based in religious or puritan views or other views, many people identify sexual intercourse with pregnancy not only empirically but also normatively, they think that a woman who consents to sexual intercourse has actually consented to pregnancy and, moreover, that the should. This is one of the reasons that the abortion issue stands for much more than merely protection of the fetus; it also stands for protection of sexual mores assumed to be vital to the well-being of society.
    Yet despite the range of cultural attitudes about the connection between sex and pregnancy, there are still two relationships involved for a woman, not one. A woman has a sexual relationship with a man and a pregnancy relationship with a fetus and as such her relationship with the fetus, as a person, is distinct from her sexual relationship with a man. Her body integrity and liberty must, therefore, be assessed in the context of two relationships, each with a different private party, not one relationship with one private party.
    A woman must have the right to consent to the way in which a man necessarily intrudes upon her body and liberty when he has a sexual relationship with her, and so, too, must she have a comparable right to consent to how a fetus necessarily intrudes on her body and liberty when it has a pregnancy relationship with her, and while people may hold philosophical and religious views that connect consent to sexual relationships with consent to pregnancy relationships such beliefs do not alter the reality that each of these relationships involves different private parties, men and fetuses, respectively. For this reason, women must consent to two relationships, not one, that are involved in their experience of reproduction.
    The Supreme Court affirms the separation of sex and pregnancy, even in the absence of explicit consent-to-pregnancy doctrine, by ruling that people have a constitutional right to disaggregate consent to one from consent to the other. - Source : Griswold vs Connecticut & Eisenstadt vs Baird - A woman who consents to sexual intercourse need not consent to pregnancy, and the constitutional right to use contraceptives is evidence of the legal recognition of her right to separate the two. Another way is for a woman simply to voice her lack of consent to pregnancy, much as she might voice her lack of consent to sexual intercourse. Seeking an abortion explicitly expresses a woman's lack of consent to pregnancy, much as a woman's call to the police to stop a man from raping her explicitly expresses her lack of consent to sexual intercourse.
    While consent to sexual intercourse merely causes the risk that pregnancy will occur, consent to expose oneself to risk that one will be injured by a private party is not a legal proxy for consent to the actual injuries should they occur. On the contrary, the law recognizes the exact opposite. consent to jog alone at night in central park does not stand as a proxy for consent to be mugged and/or raped, should others attack you. The law instead recognizes in many ways how people can consent to factual, necessary causes of accidents and injuries imposed by other people without consenting to the legal causes of accidents. The "mere fact that one is willing to incur a risk that conduct in a deliberate violent act will be committed", for example, "does not mean one is willing for such conduct to be committed" - Source : W. Page Keeton, Dan B. Dobbs, Robert E. Keeton, and David G. Owen; Prosser and Keeton on the Law of Torts, 5th Ed, Page 113 - What this means is that just because normal consensual sexual intercourse usually precedes pregnancy does not mean that a woman has consented to pregnancy in much the same way as consensual jogging in the park after dark precedes a mugging and/or rape does not mean the jogger has consented to be mugged and/or raped.

    The assumption of risk can, and is, often tied into contributory negligence where the actions of a person can bring harm to themselves but even so those people who consent to risk do not lose the right to be free of non consensual injuries from others eg. Consent to incur the risks of rack climbing pertains only to the danger incurred by one's own skill, or lack thereof, in rock climbing, but not to be thrown off the mountain and injured by another person.
    The distinction between the assumption of risk and contributory negligence is that the former is viewed as serving one's interests, while the latter is action that does not serve one's interests, so while it might serve one's interests to be involved in a dangerous sport it does not serve one's interests to engage in dangerous activities such as stepping in front of a moving car. For this reason the former is seen as an assumption of risk should they harm themselves while engaging in a dangerous sport, the latter is seen as contributory negligence should they be hit by a moving car.
    Women who assume the risk of pregnancy must there for be seen as acting in their own interest, one way is for them to have given their express consent to that condition, in this case the woman is not being harmed by the fetus imposing pregnancy on to her against her will, she may be harmed by the pregnancy, but she does not endure harm by virtue of imposition of pregnancy upon her against her will. This is like a boxer who enter the ring, knowing full well that his opponent will make no effort to protect them from harm, this relationship gives consent to be harmed, however implicitly or tacitly it may be given .. however, that consent can be revoked at any point thus breaking the consensual relationship to be harmed, should the opponent continue to inflict harm after the relationship is broken, the victim would be entitled at that point to state assistance to stop the attack.
    It is noted that the vast majority of pregnancies are terminated at the earliest point possible prior to any relationship being established with the fertilized ovum, no tacit agreement therefore ever existed between the woman and the fetus because the woman never consented to the pregnant condition imposed upon her, and even if there were a relationship, and the woman decided to rescind her assumption of risk, she would be entitled to do so. The fertilized ovum's imposition on the woman would be unjustified because she no longer agrees to assume the risks of being harmed.
    The assumption of risk can also be seen in cases where people realize that others have created risks yet they voluntarily exposes themselves to those risks, in the context of a pregnant woman it would mean if she has voluntarily agreed to be pregnant, she cannot hold the fetus responsible for harming her, on the other hand, of course, should she not agree to be pregnant, the fetuses harm to her falls outside the parameters of her assumption of risk.
    In general even if a woman can be said to have assumed the risk that a fertilized ovum will harm her, since people are not bound to continue their assumption of risk, neither would she be bound ergo even if we were to apply an assumption of risk analysis to pregnancy it would not entitle a fertilized ovum to harm a woman unless she has consented to that harm.
     
  6. Fugazi

    Fugazi New Member Past Donor

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    Implied Consent

    The law recognizes the idea of implied consent as involving "an inference arising from a course of conduct or relationship between the parties, in which there is a mutual acquiescence or a lack of objection under circumstances signifying assent" - Source : Allstate Insurance Co. v. State Farm Mutual Automobile Insurance Co. : Page 713 - If a woman does not explicitly say no to sexual intercourse, for example, her lack of objection can signify her implicit consent to sexual intercourse. So, too, with pregnancy. If a woman acquiesces to the way in which a fetus makes her pregnant and expresses no objection, one can infer her implicit consent to that pregnancy relationship.
    Yet once a woman does say no to sexual intercourse, it is no longer possible to infer her implicit consent - Source : Prosser v Keeton Page 114 - Once people indicate their lack of consent, even when on might reasonably infer consent, the law no longer recognizes consent as being present. Once a woman indicates her lack of consent to engage in a sexual relationship with a man, one can no longer infer from her behavior an implicit consent to do so. Even though a "continued course of practical joking" between people, for example, "may permit the inference that there is leave to continue it further ... once notice is given that all such conduct will no longer be tolerated," people are "no longer free to assume consent." - Source : Prosser v Keeton : Page 114 - To the contrary "no means no" and at that point a man imposing sexual intercourse on her is committing the felony of rape. So, too, with pregnancy. A woman who seeks and abortion by definition is seeking the termination of the pregnant condition imposed on her body by the fetus. Such a woman explicitly is saying no to pregnancy; she does not consent to be made pregnant by a fertilized ovum, and just as "no means no" in relation to sexual intercourse, so, too, does "no mean no" in relation to a pregnancy. - Source : The law recognizes that "conditional or limited consent is no consent at all beyond the terms of the condition or the boundries indicated" : Rolland M. Perkins and Ronald N. Boyce, Criminal Law, 3rd Ed. Page 1076
    As there are two relationships, the sexual relationship with the man and the pregnancy relationship with the fetus, consent to one does not stand for consent to the other - Source : Consent to one thing does not necessarily signify implied consent to a "different or additional thing," for this reason, "consent to prolonged kissing and hugging is not consent to sexual intercourse," particularly when a woman explicitly indicates her lack of consent, "If a man forces sex upon an unwilling female, it is no defense to rape that she did not object to his lesser advances." : Perkins & Boyce, Criminal Law Pages 1076-1077, citing as an example State v Myers, holding that a woman who engaged in "necking" with the defendant before he raped her did not "consent" to the rape. - Each relationship requires a woman's specific consent; the woman must explicitly consent to engage in sexual intercourse with a man, and she must explicitly consent to engage in pregnancy with the fertilized ovum. A woman's consent to pregnancy means she agrees to allow the fetus to invade her interests as represented by her body and liberty, a woman who seeks an abortion gives explicit notice that she does not consent to engage in a pregnancy relationship with a fetus. By seeking an abortion, she is actively expressing her explicit objection, not her implicit assent. Once a woman objects to a relationship with the fetus, there is no longer any grounds for inferring from her conduct that she implicitly consents to that relationship. Quite the opposite is true; her conduct explicitly asserts that she dos not consent to a pregnancy relationship with the fetus.
     
  7. The Amazing Sam's Ego

    The Amazing Sam's Ego Banned at Members Request

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    That analogy doesn't work. There is a direct cause and effect relationship between sex and fertilization and pregnancy. Is there a direct cause and effect relationship between the other two actions? Nope.
     
  8. Pasithea

    Pasithea Banned at Members Request Past Donor

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    Direct cause and effect? Nope.

    My best friend has been trying to get pregnant for a year now and has had no luck from all the multiple times she's had unprotected sex with her husband. You'd think if it was a DIRECT cause and affect she'd already be pregnant by now. lmao
     
  9. The Amazing Sam's Ego

    The Amazing Sam's Ego Banned at Members Request

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    The woman and the man, in an unwanted pregnancy, are responsible for the woman being pregnant. Fugazi argues that "sex is not the direct pregnancy", but that does not diminish the fact that the woman is responsible for getting pregnant-especially from a moral POV, with regards to abortion.
     
  10. FoxHastings

    FoxHastings Well-Known Member

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    There ya go again with YOUR morals.....YOUR morals do not rule everyone on earth...just like everyone's morals don't rule YOU, ...you should be glad for that !!!!

    Like I think it's immoral to lie about your age to get in a chat room/forum.....
     
  11. Fugazi

    Fugazi New Member Past Donor

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    Actually there isn't a direct cause and effect relationship between sex and pregnancy, no more so than the other two examples.
     
  12. The Amazing Sam's Ego

    The Amazing Sam's Ego Banned at Members Request

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    I never said abortion should be illegal solely based on morals alone.
     
  13. Fugazi

    Fugazi New Member Past Donor

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    Except that the OP is not about a moral POV, do try to stay on topic and not derail as usual.
     
  14. The Amazing Sam's Ego

    The Amazing Sam's Ego Banned at Members Request

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    The woman is responsible for the pregnancy, because of her actions, regardless of how you view the semantics. I am NOT saying "abortion should be illegal on the sole basis it's wrong". I'm saying the fetus should get more rights than a grown man. (you used that comparison.)
     
  15. FoxHastings

    FoxHastings Well-Known Member

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    And I never said you did. Lying is immoral IMO......

    but you DID post , "especially from a moral POV.""
     
  16. Fugazi

    Fugazi New Member Past Donor

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    and everything I have put in the OP proves you legally wrong, now if you want to argue the legalities then we just might be able to have a conversation, if not then you have nothing of any relevance to the OP to listen to.

    I will make one point though, to your one item that does have a little bearing on the OP. You have stated " I'm saying the fetus should get more rights than a grown man. (you used that comparison.)" so you are advocating that a zef not to be just a person as all others but a super-person with rights that exceed all other people. ... bang goes the US equal under the law ideology then.
     
  17. The Amazing Sam's Ego

    The Amazing Sam's Ego Banned at Members Request

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    That's only because (as Pasithea said) pregnancy is a very unique situation that cannot be compared to any other situation.
     
  18. Fugazi

    Fugazi New Member Past Donor

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    not in the eyes of the law it isn't, and make no mistake it is in the courts that the issue of abortion will be decided and as such both sides with make their legal arguments in order to provide enough proof to ensure that abortion either remains legal or becomes illegal, or how else would you want the decision to be made?
     
  19. The Amazing Sam's Ego

    The Amazing Sam's Ego Banned at Members Request

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    With legal arguements, but the legal standards regarding pregnancy should be different from your legal standards regarding whether or not abortion should be legal.
     
  20. Fugazi

    Fugazi New Member Past Donor

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    Should they, ok explain exactly how they should be different so that they don't deem the zef as a person with greater rights than any other person?

    It is the same old thing time after time with pro-lifers, they keep calling for a zef to be declared a person equal to all others as they think that will give them the ammunition they need to make abortion illegal, but when it is pointed out to them that it actually strengthens the argument for abortion they suddenly don't want the zef to be equal anymore they want it to be more than equal.

    This just shows me that the pro-life argument has little to do with equality for the zef and is far more about controlling others.
     
  21. The Amazing Sam's Ego

    The Amazing Sam's Ego Banned at Members Request

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    I am willing to debate the legalities of this issue, but please explain why you believe pregnancy is not a unique situation. Pregnancy being a unique situation is the basis of my arguements about abortion.
     
  22. Fugazi

    Fugazi New Member Past Donor

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    Simple, the legal standings surrounding what constitutes a person or not are well established and pro-lifers are trying to achieve that status for the zef using the courts. .therefore it is logically to assume that the courts would use the established parameters in making their decisions.

    The uniqueness of the issue does not negate that lawyers and courts will use decisions from other cases in their arguments, deliberations and judgements, and any judgement made would have to be constitutional, self-defence has already been deemed constitutional - "The U.S. Supreme Court held that the Second and Fourteenth Amendments "protect[] the right to possess a handgun in the home for the purpose of self-defense." And, "stressed that the right was also valued because the possession of firearms was thought to be essential for self-defense. As we put it, self-defense was 'the central component of the right itself.'”; The Constitution, they wrote, secured "the right to keep and bear arms for self-defense." - so the courts would have to decide if the rights of the zef were stronger than the rights of the woman to defend herself against non consented injury, and has it has been proven the right to life does not over rule the right to self defense.
     
  23. The Amazing Sam's Ego

    The Amazing Sam's Ego Banned at Members Request

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    Some lawyers have argued that pregnancy is not an injury.
     
  24. Cady

    Cady Well-Known Member Past Donor

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    Do you believe that stretching and tearing of skin and other tissue is not an injury?
     
  25. The Amazing Sam's Ego

    The Amazing Sam's Ego Banned at Members Request

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    Do most women who have abortions and unwanted pregnancies care about tearing of skin and tissue from the pregnancy? Or are they more worried about the convenience aspect of it? I am not denying the merits of your arguements-it's just that most women do not abort for the reasons you mentioned above.
     

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