This is a continuation of my previous thread - http://www.politicalforum.com/abortion/363145-abortion-choice-consent.html - and as in that one I will apologies for its length, it is necessary to explain in detail the crux of the argument. On March 6, 2006, South Dakota Governor Mike Rounds signed into law the South Dakota Womens Health and Human Life Protection Act. This event drew a great deal of national attention, due in large part to the language of section 2 of the statute, which stated: No person may knowingly administer to, prescribe for, or procure for, or sell to any pregnant woman any medicine, drug, or other substance with the specific intent of causing or abetting the termination of the life of an unborn human being. No person may knowingly use or employ any instrument or procedure upon a pregnant woman with the specific intent of causing or abetting the termination of the life of an unborn human being As attorney Patricia Gray notes, the Act purports to allow an abortion to save the life of the mother, but even in that extremely restricted instance, the state directs that the attending physician shall make reasonable medical efforts under the circumstances to preserve . . . the life of . . . [the] unborn child. On November 7, 2006, South Dakota voters rejected this legislation in a referendum by a margin of 56% to 44%. However, the specter of such extraordinarily restrictive abortion legislation existing at the state level remains a serious threat to womens reproductive rights. For many, this threat has been heightened by the recent changes in the composition of the Supreme Court with the retirement of Justice Sandra Day OConnor and subsequent appointments of Chief Justice John Roberts and Justice Samuel Alito. These changes have fostered worry that if legislation similar to that passed by South Dakota were to survive state-level challenges and face federal review, the current Supreme Court would have no qualms about ruling that such restrictive state-level abortion legislation is constitutional, thereby overturning Roe v. Wade. A. Restrictive State-Level Abortion Legislation The question before us, therefore, is what is to be done? What can we do to protect womens reproductive rights in the context of their fundamental right to bodily autonomy and liberty in the wake of overly restrictive state-level abortion regulations that might very well be upheld as constitutional by the current Court? B. Adding Equal Protection to Due Process As many legal scholars have recommended for decades, the answer to the question of how to strengthen reproductive rights is to add constitutional guarantees under the Equal Protection Clause to the current foundation of abortion rights based upon the Due Process Clause.
Cont ... There are two models available to invoke equal protection analysis in the context of abortion rights: sex discrimination and fundamental rights. THE SEX DISCRIMINATION MODEL Many eminent scholars have advocated adding equal protection analysis to due process guarantees to strengthen abortion rights. They do so by applying the suspect classification model of the Equal Protection Clause to women’s right to choose an abortion. Under this construction, they argue that prohibiting a woman’s right to choose an abortion is an unconstitutional form of sex discrimination. As Reva Siegel argues, “state regulation of pregnant women is sex-based action,” and, as such, “regulation aimed at pregnant women may not be premised on stereotypical assumptions about the sexes or perpetuate second-class citizenship for women.” This is because, as Siegel notes, equal protection cases based on suspect classification analysis “prohibit the use of law to entrench family roles rooted in separate spheres ideology, not simply because this use of law restricts individual opportunity but also because this use of law enforces group inequality.” A. Abortion Restriction as Unconstitutional Sex Discrimination Though there have been disagreements about whether suspect classification analysis based on sex discrimination applies to classifications based on pregnancy, Siegel clearly demonstrates that it does. She forcefully and definitively establishes that “an assertedly benign interest in protecting unborn life cannot save an abortion ban from claims of sex discrimination, if government recites woman-protective justifications to secure the statute’s enactment.” This is because the Equal Protection Clause of the Fourteenth Amendment prohibits “government from pursuing a discriminatory purpose, not only when a discriminatory purpose is the sole purpose for the challenged action, but also when that purpose is a ‘motivating factor’ for the challenged action.” Therefore, abortion restrictions that intend to force women to assume their stereotypical roles as mothers by prohibiting the termination of their pregnancies by means of an abortion violate the Equal Protection Clause. Although the Constitution allows citizens to embrace freely traditional gender- differentiated roles if they so choose, the Equal Protection Clause does not allow the government to enforce those roles. Thus, even when the regulation of pregnant women is facially neutral, it is nevertheless unconstitutional, as Siegel explains, on Equal Protection grounds if and when “enforcing constitutionally proscribed views of women was a motivating factor in the law’s enactment.” Is Sex Discrimination “Safe” as a Suspect Classification? The use of the suspect classification approach under the sex discrimination prong of the equal protection analysis significantly contributes to the arsenal that is necessary for women to retain their reproductive rights in the wake of increasing state-level legislation that would annul those rights. Many scholars, including Siegel and others, have done much to develop this line of analysis. However, the possibility remains that such efforts will not be enough in the decades to come. The suspect classification analysis depends upon the acceptance of sex discrimination as a suspect classification in the context of the Equal Protection Clause in the first place. However, reliance on that crucial assumption may be jeopardized by the addition of Chief Justice Roberts to the Supreme Court. As the National Women’s Law Center noted in its August 2005 report on the nomination of Chief Justice Roberts to the Court, he has a history of objecting to and ignoring the heightened scrutiny of sex under the Equal Protection Clause.16 For example, he argued in 1981that “special constitutional protection should not be given to any classification other than race.” Similarly, others note that memoranda written by Chief Justice Roberts during the Reagan administration asserted that “there should be no ‘heightened scrutiny’ of government laws and policies that discriminate based on sex” because to do so would be “‘an unjustified intrusion into legislative affairs’ and a ‘degree of judicial intrusion not invited by the Constitution.’”
Cont ... Additional concerns regarding the confirmation of Chief Justice Roberts were raised by Congresswoman Rosa L. DeLauro in a letter to Senators Arlen Specter and Patrick Leahy, former Chair and former Ranking Member, respectively, of the Senate Judiciary Committee: As part of the Reagan Department of Justice, Roberts wrote legal memoranda that objected to giving special scrutiny to sex discrimination under the Equal Protection Clause and he ignored Supreme Court precedent. He also urged the Attorney General not to allow the Department of Justice to intervene in a blatant case of sex discrimination in the Kentucky prison system—in part, because heightened scrutiny would be applied . . . . If Roberts’s view of the Equal Protection Clause were to prevail, laws and policies based on stereotypes about women’s abilities or role in society would not be struck down. Worries that the current Supreme Court could overturn Roe go hand in hand with worries that the current Court could overturn sex discrimination as a suspect classification under the Equal Protection Clause. Of course, this has not yet happened. At present, it remains fruitful to continue to develop this model of equal protection analysis in the context of abortion rights. However, the vulnerability of this approach in light of Chief Justice Roberts’s addition to the Court also makes it prudent to pursue the second model of equal protection analysis: fundamental rights. III. THE FUNDAMENTAL RIGHTS MODEL No Affirmative Right to State Protection It is well recognized that the Supreme Court has not interpreted the Due Process Clause to impose an affirmative obligation on the state to act to protect people from private injury. This interpretation can clearly be seen in DeShaney and Gonzales, both of which were argued on due process grounds. DeShaney involved the tragic case of a seven year old boy, Joshua, whose father had all but beaten him to death, leaving the child with permanent brain damage. Joshua’s mother sued the state on due process grounds, claiming that it should have acted to protect Joshua from his abusive father. However, the Court held that the right to due process confers “no affirmative right to governmental aid, even where such aid may be necessary to secure life, liberty, or property interests of which the government itself may not deprive the individual.” For this reason, the state is not required “to protect the life, liberty, and property of its citizens against invasion by private actors.” In Gonzales, a father abducted his three young daughters in violation of a state issued restraining order. The police refused to respond to the mother’s request that law enforcement officials find the father and the three children. Instead, the father, left to his own devices, eventually drove up to the police station at approximately 3:20 a.m. and opened fire with a semi-automatic weapon. The police fired back, killing the father. When authorities looked inside the father’s car, they found the bodies of the three children, whom the father had already murdered. The children’s mother sued the state on due process grounds, claiming that the “town violated the Due Process Clause because its police department had ‘an official policy or custom of failing to respond properly to complaints of restraining order violations’ and ‘tolerated[d] the non-enforcement of restraining orders by its police officers.’” The Supreme Court ruled, consistent with its finding in DeShaney, that due process principles do not mandate that the state must act. Thus, the enforcement of restraining orders on due process grounds is not mandatory. The bottom line is that when it comes to the Due Process Clause, its primary power is in protecting people from the interference of government in their lives rather than obligating the government to act to provide benefits, protections, or privileges to people. Thus, although the Constitution empowers the state to act in many ways, if the state so chooses, there is (apparently) nothing on due process grounds and very little of anything in the Constitution that mandates that the state must act. This means that the government at the state and national levels, for example, may provide educational and health benefits; may provide for public safety by means of establishing a police force, fire department, armed services, and other such institutions; and may build roads and other such public works. However, on due process grounds alone, the American Constitution does not require government at the state and national levels to act in these ways. Rather, it merely permits the state to act in these ways. B. Similarly Situated There is one very important context in which the state does have an obligation to act. This exception refers to a context in which the state has already acted in a way that involves a fundamental right. Specifically, when the state acts to provide a benefit, protection, or privilege to people that involves a fundamental right, such as bodily integrity or liberty, then the state is required by the Equal Protection Clause to act to provide that benefit, protection, or privilege to other similarly situated people. As Jack Balkin states, “[F]undamental rights secured by our Constitution belong to the people of the United States, not to the government, and the people are the continuing source of both their content and their meaning.” Balkin further explains that when the government unduly burdens fundamental liberties, it is in violation of the Due Process Clause. However, if and when governments “make arbitrary distinctions that burden the exercise of fundamental liberties for some persons but not others, they violate the guarantee of equal protection of the laws.” Balkin includes in the list of fundamental liberties the right “to bodily security, family, reproduction, and childrearing.” In Gonzales, for example, instead of pointing out how poorly the police customarily enforce restraining orders, as cited above, a more effective argument using the fundamental rights prong of the Equal Protection Clause would have been for the plaintiff to find cases in which the police did act to enforce a restraining order. Then, on fundamental rights, equal protection grounds, the plaintiff could argue that she was similarly situated with others whom the state did act to protect, which then obligated the state also to act on her behalf and that of her daughters, since fundamental rights to bodily integrity and liberty were involved. Although state officials have a certain amount of discretion, it would be the burden of the state to justify why police in one particular instance provided protection to one victim but did not do so to other similarly situated victims. C. Applying Fundamental Rights, Equal Protection Analysis to Abortion Rights How does the fundamental rights model of equal protection analysis apply to women’s right to choose an abortion as a means for terminating a pregnancy? The answer to that question entails recognition of a woman’s right not only to choose an abortion, but even more fundamentally, her right to consent to pregnancy as a condition in her body resulting from the fetus’s presence and implantation in her body. Briefly, the argument is as follows: 1. Pregnancy is a condition in a woman’s body resulting from the presence of a fetus. Consent to sexual intercourse does not imply or necessarily entail consent to pregnancy. 2. Due to the massive transformation of a woman’s body and liberty resulting from the fetus’s presence in her body, if a woman does not consent to the massive transformation of her body and liberty resulting from the fetus, the woman is the victim of serious harm to her body and to her liberty resulting from the fetus. 3. The fetus has no conscious intentions or control over how its presence transforms a woman’s body and liberty. Thus, if and when the state defines the fetus to be an unborn person with the same rights as a born person, and a woman does not consent to the condition of pregnancy, then the woman is the victim of harm resulting from a mentally incompetent unborn human being, who has the same limitations, not just rights, as a born human being. 4. As such, a woman who does not consent to pregnancy is similarly situated with other victims who suffered serious harm to their bodies and liberties inflicted by mentally incompetent human beings. 5. The degree of harm to a woman’s body and liberty, if she does not consent to pregnancy, justifies her right to use deadly force to protect herself from this harm. This is established by state-level “use of deadly force” legislation. 6. Thus, women have a private right of self-defense to use deadly force to protect themselves against the harm of a nonconsensual pregnancy that entails massive transformations of their bodies and liberties as a result of a fetus. That is, women have a right to choose an abortion as the only means available to stop the harm of a nonconsensual pregnancy. 7. However, the state already does act to stop human beings, mentally incompetent or otherwise, from massively transforming the bodies and liberties of other people without consent. 8. Thus, once the state defines the fetus to be an unborn human being with the same rights and, hence, limitations as a born human being, the fundamental rights model of equal protection analysis obligates the state also to act to stop the fetus as an unborn human being from massively transforming the body and liberty of a woman without her consent. 9. Thus, since the state already does act to provide protection to people who are victims of harm resulting from other human beings, mentally incompetent or otherwise, women have a right to state assistance to protect themselves from the harm of a nonconsensual pregnancy resulting from an unborn human being. That is, women have a right to public funding of their abortions. 10. Therefore, to summarize, a promising way to combat restrictive state-level legislation, such as that ultimately rejected by South Dakota residents, entails reframing abortion rights as the right of a woman to consent to pregnancy; invoking state-level self-defense legislation to establish the right of a woman to use deadly force to defend herself from the serious harm of a nonconsensual pregnancy; and, finally, invoking the fundamental rights model of equal protection analysis to establish that once the state acts to stop human beings from harming other human beings and the state defines the fetus to be an unborn human being, then the state must act to stop the fetus from harming a woman. More to follow ...
How do they violate the Equal protection clause? You violate the Equal protection clause when you let one group do something another group cant do. Since theres no equivalent to men getting pregnant and wanting an abortion, banning abortion doesnt violate equal protection (Cont). - - - Updated - - - I disagree. the motivating factor to ban abortion (regardless if you agree with it or not) is the concept of the unborns right to life.
As Reva Siegel argues, state regulation of pregnant women is sex-based action, and, as such, regulation aimed at pregnant women may not be premised on stereotypical assumptions about the sexes or perpetuate second-class citizenship for women. This is because, as Siegel notes, equal protection cases based on suspect classification analysis prohibit the use of law to entrench family roles rooted in separate spheres ideology, not simply because this use of law restricts individual opportunity but also because this use of law enforces group inequality. You are perfectly entitled to your opinion, now why don't you actually put forward your rationale and evidence to support it.
The reason I believe abortoin should be illegal has nothing to do with gender sterotypes I may believe
That's fine, still doesn't change the reality of the legal position, or are you, yet again, advocating ignoring your Constitution?
Reproductive rights reads like the right of a woman to have children. Who wouldn't be in favor of that? We know Red China has laws that restrict reproductive rights of families to have children, but I do not know of anywhere else in the world that a woman's reproductive rights are restricted. I understand the contest is about whether or not a woman's decision to kill her unborn child in utero should be exempt from being classified as a homicide. Courts have typically decided in cases of the death of a pregnant woman to bring two counts of criminal homicide and both deaths are used during sentencing. The best analogy I have heard is one where pointing a loaded rifle at your neighbor then pulling the trigger, you can not change your mind about your action before the bullet hits him in the head. After both choices your actions affect other persons.
How does it? I told you that you are misrepresenting what pro lifers (including me) motivations are. I am not ignoring the Constitution itself-but SOME PEOPLES interperation of it.
Cont ... South Dakota Task Force As Reva Siegel notes, the South Dakota legislation was based on a seventy- one page report provided to the Governor of South Dakota and the Legislature in December 2005. This report, which is the legislative history for the restrictive abortion regulation that eventually passed the legislature and was signed by the Governor, argues that abortions need to be restricted in order to protect the fetus; the report asserts that it is a matter of scientific fact [that] an abortion terminates the life of a whole separate unique living human being. However, as Siegel points out, what is not as expected is that over half of the report (approximately forty pages) focuses on how abortions must be prohibited in order to protect women. The Task Force report asserts that the abortion procedure is inherently dangerous to the psychological and physical health of the pregnant mother.56 In this form of argument, abortion not only harms the fetus, but also women. As David Reardon writes, From a natural law perspective, we can know in advance that abortion is inherently harmful to women. It is simply impossible to rip a child from the womb of a mother without tearing out a part of the woman herselfa part of her heart, a part of her job, a part of her maternity . . . . If there is a single principle, then, which lies at the heart of the pro-woman/pro-life agenda, it would have to be this: the best interests of the child and the mother are always joined. However, as Hern noted decades ago, we must critically examine the assumption that human pregnancy is not only a normal but is an especially desirable event from the viewpoint of womans physiological, psychological and social functioning, and that failure (or, worse, refusal) to become or remain pregnant is, therefore, pathological. Hern continues his critique of the assumption of the normality and desirability of the pregnant condition for women by clarifying that what is meant medically by a normal pregnancy is that it is a relatively uncomplicated pregnancy compared to an abnormal pregnancy that does pose serious medical complications to attending physicians. To say that a pregnancy is uncomplicated, however, is not to say that it is medically normal in the sense that it poses no complications. To the contrary, as Hern emphasizes, a pregnant woman is, should, and must be, for her own sake, considered a patient of a physician when she is pregnant. This is because the manifold changes which occur in the maternal organism when a woman is pregnant render her especially vulnerable to pathologic conditions which may seriously threaten the life of the mother . . . . It accordingly becomes necessary to keep pregnant patients under strict supervision and to be constantly on the alert for the appearance of untoward symptoms . . . . Indeed, antepartum care is an absolute necessity if a substantial number of women are to avoid disaster [when pregnant]. Hern discusses the way culture determines the meaning of normal. In the context of pregnancy, he argues that in Western-oriented societies, viewing pregnancy as normal had instrumental advantages for human beings as a group, even though pregnancy might entail disadvantages for individual women. However, as Hern emphasizes, given todays current worldwide population growth, it is dubious, indeed, to view unlimited human reproduction as an instrumental advantage even for human beings as a group and much less so for each and every individual woman. To the contrary, unlimited human population growth if anything, endangers survival of the species. Hern proposes that a woman seeking an abortion is making a circumstantial self- definition of pregnancy as an illness for which she considered the appropriate treatment to be abortion . . . . Similarly, the woman who perceives the signs and symptoms of a wanted pregnancy may also display illness behavior and seek medical attention in the form of prenatal care. The point is, in both caseswhether the woman seeks to terminate her pregnancy by means of an abortion or to continue her pregnancya pregnant woman is in anything but a normal condition. To the contrary, she is in a medically vulnerable position in which risks to her health and life are greater than when she is in a nonpregnant condition. The medical risks to a pregnant womans health and life can be evaluated on a continuum from relatively uncomplicated to very complicated, but all pregnancies are conditions in a womans body that pose risks to her health and life over and above risks posed when her body is in a nonpregnant condition. As Hern notes, in the beginning of the twentieth century, a very high proportion of deaths of women of childbearing age occurred as a result of causes associated with pregnancy and with puerperium. Even by 1930, for example, 11% of the deaths of women in the age group 15 to 45 were directly or indirectly related to maternity, and by 1959, this figure was still 3%. However, even as early as the 1970s, with the improvement of medical care, the number of cases of morbidity associated with maternity for women was steadily decreasing. According to Hern, it is up to the woman to decide how to deal with the risks to her health and life entailed by the condition of pregnancy. She can refuse to consent to experiencing those medical risks by obtaining an abortion or she can consent to experiencing those risks by maintaining her pregnant condition. If she does not consent, all abortions are therapeutic terminations of the risk of harm to the womans body and liberty resulting from a pregnant condition.
Cont ... What Happens to a Pregnant Woman? From a legal point of view, it needs to be established that a medically uncomplicated pregnancy is an intrusion upon a womans bodily integrity and liberty that is profound enough that, if she does not consent to the pregnancy condition in the first place, she is justified in using deadly force to end the pregnancy. To assess adequately what happens to a womans bodily integrity, not to mention her liberty, when she is pregnant would require serious study of medical texts. However, even a brief review discloses that every major system in a womans body is affected by pregnancy, and in most cases, dramatically so. Obstetric text books often devote an entire chapter to each major system in a womans body that undergoes profound transformation. For our purposes here, however, we can discern the massive way pregnancy transforms a womans body by even a cursory consideration of those changes, the answer to the question, What happens to a pregnant woman? is a lot. Every major system in a womans body is affected by the pregnant condition: her cardiovascular system, respiratory system, gastrointestinal system, metabolism, renal physiology, and endocrine system are all affected.76 Blood volume increases by 50%; stroke volume of the heart by 35%; size and position of the heart change; lung volume decreases by 20%; respiratory rate by 15% (23 breaths per minute); the enlarging uterus displaces the stomach and intestines, causing the stomach, for example, to move from a horizontal to a vertical position. Metabolically speaking, a pregnant woman is in a state of accelerated starvation due to the nutritional demands of a growing fetus; renal functions increase 5060%; the pituitary gland enlarges by 135%; growth hormones dramatically increase; and, of course, a new organ, the placenta, is grown in the womans body as a result of the fetuss presence. Were these changes to occur over an extended period of time as the result of Person As nonconsensual imposition on the body of Person B, most would recognize that Person A was imposing a condition of serious bodily injury upon Person B as well as a serious intrusion upon Person Bs liberty. Without consent, such intrusion on ones body and liberty would constitute serious bodily harm. For example, in the case of the growth of a new organthe placentathe harm to a woman, should she not consent to this new organ in her body, immediately constitutes grounds for her right to use deadly force to remove it. The placenta, let us remember, is an organ that grows to serve the developmental needs of the fetus and the fetus alone. No born human being needs a placenta; only unborn human beings need the organ for their survival and growth. When the placenta grows in a womans body as a result of the fetuss presence, the placenta alone would constitute grounds for the use of deadly force to stop the growth and presence of the placenta. Even a cursory look at state self-defense statutes, such as those in South Dakota, supplies ample proof that no born person would be obligated to allow another born person to introduce new organs into their bodies without their consent, regardless of whether the person in question was a family member, including a biological child.
Cont .. Killing the Fetus At the time of Roe, the American Bar Association defined abortion as the termination of a human pregnancy with an intention other than to produce a live birth or to remove a dead fetus. If it is not the intention of an abortion to terminate pregnancy by producing a live birth, then the implication of an abortion is that it will terminate pregnancy by killing the fetus. The key to abortion rights, therefore, is not a womans right to terminate a pregnancy per se. All pregnancies, after all, must terminate one way or another. The real problem for establishing womens abortion rights is what justifies terminating a pregnancy with the knowledge that doing so will kill the fetus. This problem becomes crucial in the due process context, if and when the fetus is defined to be a person, as was acknowledged in Roe. What the Fetus Is The lead lawyer arguing for abortion rights in Roe, Sarah Weddington, conceded in oral argument before the Court in 1971 that there was a privacy right to kill the fetus by means of an abortion because the state did not treat the fetus as a person with legal rights. Later, in 1972, she was pressed on this point when Roe was reargued before the Court. As Justice Stewart pointedly asked Weddington, fit were established that an unborn fetus is a person within the protection of the Fourteenth Amendment, you would have almost an impossible case . . . would you not? Weddington agreed, responding that I would have a very difficult case because if the fetus were a person, an abortion would be equivalent to killing a born child. Justice Stewart followed up by asking Weddington, So . . . youd have to say that this [having an abortion when the fetus has the protection of a born human being] would be equivalent after the child was born if the mother thought it bothered her health [by] . . . having the child around, she could have it killed. Isnt that correct. Weddington responded, Thats correct. Of course, Assistant Attorney General of Texas, Robert Flowers, who was in charge of arguing against Roe, immediately picked up on Weddingtons admission that what the fetus is determines abortion rights. Flowers asserted that it is the position of the State of Texas that upon conception we have a human being, a person within the concept of the Constitution of the United States and that of Texas, also. Significantly, Justices Stewart and White affirmed Flowerss contention. As Justice Stewart stated, if the fetus is a person, Flowers can sit down [because] youve won your case. Underscoring this point, Justice White reversed the question by asking Flowers, Youve lost your case, then, if the fetus or embryo is not a person, is that it? Flowers replied, Yes, sir, I would say so. An important component of Roe, therefore, is recognition by both parties that the Due Process Clause itself does not justify the use of deadly force to harm or to kill a human being while implementing ones fundamental right to make choices about ones body or life. The right to read a book, for example, does not include a right to use a book to hit other people on the head with it. Similarly, the right to use contraceptives does not include the right to use them as a means for committing suicide or for otherwise harming oneself or another individual. For this reason, as long as abortion rights are founded upon the Due Process Clause alone, it is imperative that any legal definitions of the fetus as a human being be clearly separated from the use of those definitions to determine womens right to an abortion on privacy grounds. The Court ordered as much in Roe. As Justice Blackmun noted, there are distinctly varied historical and contemporary definitions of what the fetus is and when human life begins. For this reason, the Court refused to rule in Roe whether the fetus is a human being or when life begins. However, the Blackmun decision also stated that states may not use a particular definition of when life begins to undermine womens right to an abortion. Thus, in Roe, the Court disallowed a state from adopting a theory of life that may override the rights of pregnant women. Since Roe A lot has happened since 1973 in the development of mans knowledge about when human life begins and what the law allows in terms of defining the beginning of life. In reference to mans knowledge, it is now common for fetal sonograms and other depictions of the fetus to adorn the office walls of pro-choice and pro-life advocates alike as medical science permits early personifications of a fetus. Surgical procedures in utero are now possible for even very young fetuses, and it is common for medical practitioners to view the management of pregnancy as a task that involves two patientsthe mother and the unborn child. In reference to the law, the pattern since 1973 at the state and federal levels has been to grant increasing legal recognition to fetal personhood, particularly in cases where the fetus is injured in the context of an injury to a pregnant woman. As of 2006, when a fetus dies or is harmed as a result of injuries imposed upon its mother, at least thirty-six states have some type of fetal homicide laws. In thirty-one states, fetal homicide is defined by means of state statute, and in three by means of case law. In addition, in fifteen of these states, fetal homicide laws apply even to the earliest stages of pregnancy, defined as any state of gestation, conception, fertilization, or post- fertilization. At the federal level, we also have witnessed, since 1973, a growing recognition of the legal status of the fetus in terms of protections granted that are similar, or the same, as protections granted to a born person. In 2004, for example, Congress passed, and President Bush signed into law the Unborn Victims of Violence Act (UVVA). This legislation makes it a separate crime to injure or kill a fetus while committing a federal or a military crime against a pregnant woman on the grounds that the fetus is an unborn child from the moment of conception. This legislation defines an unborn child as a child in utero where that term refers to a member of the species homo sapiens, at any stage of development, who is carried in the womb. However, it is significant that the UVVA specifically exempts legal abortions. As the statue states, Nothing in this section [protection of unborn children] shall be construed to permit the prosecution of . . . any person for conduct relating to an abortion for which the consent of the pregnant woman, or a person authorized by law to act on her behalf, has been obtained or for which such consent is implied by law. Nevertheless, pro-choice advocates vehemently opposed the passage of the UVVA on the grounds that the mere designation of the fetus as an unborn child from the moment of conception threatened womens abortion rights as established by Roe. For example, Senator John Kerry (DMass.) stated, This legislation elevates the legal status of a zygote, an embryo and a fetus by treating the child in utero as a human being separate from its mother regardless of its stage of development . . . . Although this legislation exempts performing abortions from prosecution, this bill would clearly impact a womans right to choose to terminate her pregnancy, as that right is set forth in Roe v. Wade . . . . I have serious concerns about this legislation because the law cannot simultaneously provide that a fetus is a human being and protect the right of the mother to choose to terminate her pregnancy. Planned Parenthood President Gloria Feldt said this legislation is part of a deceptive anti-choice strategy to make womens bodies mere vessels by creating legal personhood for the fetus. Planned Parenthoods press release stated that the bill . . . is part of ongoing attempts to bestow personhood on the fetus by granting it separate legal rights equal to and independent of those of the pregnant woman. Reporter Julie Rovner noted that expanding rights to the fetus would restrict those of the pregnant woman, and according to President Feldt, if the fetus is a person, then a woman becomes a vessel for the bearing of children rather than a human being with equal status in the law to men.
There are people who would ban either all forms of contraception or certain ones. The war on Planned Parenthood has caused some women to be without contraception (when clinics close). This all falls under the term 'reproductive rights'. It has never been classed as a homicide in your country or mine. Your point....? This has what to do with the topic of abortion?
Cont ... South Dakota Legislation What is particularly significant about the South Dakota legislation that voters rejected in the November 2006 election, however, is the explicit joining of the definition of the fetus as a person with abortion restrictions. Attention, for the most part, has been directed to section 6 of that statute because it restricts abortions unless it is necessary to preserve the life of the woman, or if there is serious risk of substantial and irreversible impairment of major bodily function of the pregnant woman. However, another problem with legislation like South Dakotas is the way it defines the fetus to be an unborn human being with the same rights as a born human being in the context of state regulation of abortion rights. The following illustrate the ways the unborn human being, that is, fetus, was referenced or defined in the defeated South Dakota law: Section 1: life begins at the time of conception, a conclusion confirmed by scientific advances since the 1973 decision of Roe v. Wade, including the fact that each human being is totally unique immediately at fertilization. to fully protect . . . the rights, interest, and life of her unborn child which applies equally to born and unborn human beings, and that under the Constitution of South Dakota, a pregnant mother and her unborn child, each possess a natural and inalienable right to life. Section 2: When describing prohibited procedures, the termination of the life of an unborn human being is used twice. Section 4: the physician shall make reasonable medical efforts under the circumstances to preserve both the life of the mother and the life of her unborn child or the accidental or unintentional injury or death to the unborn child. Section 5: Terms used in this Act mean: (1) Pregnant, the human female reproductive condition, of having a living unborn human being within her body throughout the entire embryonic and fetal ages of the unborn child from fertilization to full gestation and child birth; (2) Unborn human being, an individual living member of the species, homo sapiens, throughout the entire embryonic and fetal ages of the unborn child from fertilization to full gestation and childbirth.
Cont ... What Would the Supreme Court Say Today? In 1973, at the time of Roe, it was clear that the Court sought to disentangle the issue of what the fetus is from womens right to choose an abortion within the framework established by the Court. However, it is also apparent in Roe that the Court did this with the full recognition that if the fetus were to be legally defined to be a person in the context of abortion legislation, then there would be no due process right to kill it as a means to implement ones personal choice about how to live ones life or what to do with ones body. It is for this reason, we infer, that the Court ruled in Roe that a state may not use the definition of a fetus as a human being as a means for undermining womens right to choose an abortion within the constitutional framework established by the Court. Now, the question becomes: will the current Court be bound by this restriction in Roe? Not likely. What is more likely is that the Court could simply say that if and when the fetus is legally defined to be a human being in the context of abortion regulation legislation, then it is constitutional for a state to prohibit a womans right to choose an abortion as a right of privacy to make choices about her own body, her own reproductive options, or her own liberty, since such a choice entails the use of deadly force in relation to a human being, the fetus, albeit an unborn human being. The reason such a possibility is so serious is because such a ruling by the Court would not require a total rejection of Roe. Rather, it would only be a rejection of the caveat the Court included in Roe that restricts a state from defining the fetus to be a person as a means to restrict a womans right to choose an abortion. It is conceivable that the Court could rule that the sequence is backward. Namely, the first issue is the personhood status of the fetus; given that personhood status, the second issue is a womans right to use deadly force in relation to the fetus. If and when the fetus is not defined as an unborn human being with the same rights as a born person, then a woman has a due process constitutional right to choose what to do with her body and her liberty, since exercising that right does not entail harm, much less death, to a human being. If or when, however, a state defines a fetus to be a human being in the context of abortion regulations, then a woman has no right to use deadly force to harm, much less to kill, the fetus. What the Court could do, therefore, is leave Roe standing, but eviscerate Roes intent by allowing states to define the fetus to be an unborn human being with the same rights as a born human being in the context of abortion restrictions, thereby rendering the right to choose an abortion on the basis of a due process right of privacy moot. The presumption is that the Court decides in good faith on the merits of the constitutional arguments provided in abortion cases. That being said, it would be easy for the Court to overturn Roe de facto without actually overturning Roe de jure by allowing states to define the fetus to be an unborn human being with the same rights as a born human being in the context of abortion regulations. WHAT THE FETUS DOES To date, pro-choice strategy has been to oppose state- and national-level legislation that moves in the direction of defining the fetus as an unborn person with the same rights as a born person or even as a state-protected entity for which it is a criminal offense to kill in the context of a third party. However, there is another way to approach the problem of what the fetus is, and that is to distinguish between what is done to a fetus without the consent of the pregnant woman, such as a third-party injuring or killing the fetus, from what the fetus does to the woman in the context of whether she consents to the pregnant condition of her body. To put it another way, if and when the Court allows states to define the fetus as an unborn human being in the context of abortion regulations, then what justifies a womans right to use deadly force to kill the fetus becomes one and the same as what justifies a persons right to use deadly force to kill another person. What that means is that we must begin to scrutinize state-level self-defense legislation that specifies when it is permissible to use deadly force in defense of ones bodily integrity and liberty. When we do, we find that at the very least, states across the country permit the use of deadly force in self- defense when a persons life, bodily integrity, or liberty is sufficiently threatened by another person. And, in many states, such as South Dakota, the right to use deadly force extends to the defense of ones home or place of business. That is, state-level legislation provides wide latitude for the use of deadly force to defend oneself, to defend others, and to defend ones property or the property of others. Defense of Self, Others, and Property South Dakota self-defense legislation justifies the use of deadly force not only in the case of a threat to ones life, but also to prevent an illegal attempt by force to take or injure property in his lawful possession. It further specifies that [h]omicide is justifiable when committed by a person when resisting any attempt . . . to commit any felony upon him or her, or upon or in any dwelling house in which such person is and when committed by any person in the lawful defense of such person, or of his or her husband, wife, parent, child, master, mistress, or servant when there is reasonable ground to apprehend a design to commit a felony, or to do some great personal injury. State-Level Stand Your Ground Legislation On Friday, February 17, 2006, South Dakota Governor Mike Rounds (Republican) signed House Bill 1134, Citizens Right to Self Defense, which removes a duty to retreat when a person is threatened in their home or in their place or work or any place where that person has a right to be. This legislation reads, Any person is justified in the use of force or violence against another person when, and to the extent that, the person reasonably believes that such conduct is necessary to prevent or terminate the other persons trespass on, or other tortuous or criminal interference with real property or personal property . . . . A person does not have a duty to retreat if the person is in a place where he or she has a right to be. By passing this legislation, South Dakota followed in the footsteps of Florida, which was the first state to enact what is termed stand your ground legislation or shoot-first laws. These are statutes that allow the use of deadly force to defend against forcible unlawful entry or attack. These laws expand the latitude allowed for the legal use of deadly force in self- defense. For example, Floridas law grants civil and criminal immunity to those who use deadly force in self-defense and who reasonably believe that such force is necessary to prevent the commission of a forcible felony, such as treason; murder; manslaughter; sexual battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; [and] any other felony which involves the use or threat of physical force or violence against any individual. In addition to South Dakota, other states that have adopted such legislation in the wake of Florida are Alabama, Alaska, Arizona, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Michigan, Oklahoma, and South Carolina. The power of this type of legislation is not so much that it removes the duty-to- retreat component of self-defense legislation, which has slowly been eroding over the years as a result of judicial decisions. Rather, what is new about stand your ground self-defense legislation is that it is no longer necessary for people who use deadly force to prove that they feared for their safety, only that the person they killed had intruded unlawfully and forcefully on their property, including their vehicle. Thus, as Anthony J. Sebok, a professor at Brooklyn Law School stated, this type of legislation expands the right to shoot intruders who pose no threat to the occupants safety . . . In effect . . . the law allows citizens to kill other citizens in defense of property. In a recent application of this type of law, for example, Florida police failed to arrest a man who had shot his neighbor twice in the course of an argument about how many garbage bags his neighbor had put out. Although the police are still reviewing the evidence, the shooter was not arrested, exemplifying how fewer people who claim self-defense are being charged or convicted once this type of law is in place. No Exceptions for Family Members Equally telling, state-level self-defense legislation makes no exceptions for family members. That is, being married to a person or being the child or parent of a person gives no more right to impose serious bodily injury or an intrusion upon a basic liberty of another person because of ones family- kinship relationship to that person. Thus, born children have no more right to impose serious injury upon their parents bodies nor to intrude upon their parents basic liberty than do any other born human beings. By extension, even if the fetus is to be defined legally as an unborn human being with the same rights as a born human being, it would have no more right to impose serious injury upon its mothers bodily integrity or to intrude upon her basic liberties than a born human being would havewhich is to say, no right at all. Currently, for example, parents duty to care for their born children includes providing adequate food, shelter, clothing, and education. However, state laws do not include legal mandates that parents duty of care includes the donation of body parts requiring even minimally invasive procedures, such as the donation of a pint of blood, much less the donation of body parts requiring more extensive intrusion, such as bone marrow or kidneys. This holds even when such donations are necessary to preserve the health or life of their children. Concomitantly, not only do parents have a right to refuse to give their bodies to their children, but also no child has a right to take a parents body or body parts without consent. Not only would current state-level self-defense legislation recognize parents right to use deadly force to stop a childs nonconsensual intrusion of their bodies and liberty without consent, but also the state itself would act to stop a child from so intruding. Applying the Legal Right of Self-Defense to Nonconsensual Pregnancies Self-defense statutes distinguish the right to life of a human being from the right to impose upon another persons bodily integrity or basic liberties. We can all agree that all human beings have a basic right to life. Once fetuses are defined to be unborn human beings with the same rights as born human beings, fetuses also can be deemed to have a basic right to life. However, possessing a basic right to life as a human being does not include any right to impose serious bodily injury upon another person or to intrude nonconsensually upon that persons basic liberties. That is what is made clear by self-defense legislation. Not only does no born person have a right to intrude nonconsensually upon the body or liberty of another person, but the person intruded upon has a right to use deadly force in relation to a born person who even threatens to do so, much less actually does so. Self-defense legislation, therefore, testifies to the separation between a right to life, which all human beings have, and the right to intrude upon the bodily integrity and liberty of another person without consent, which no human being has, including unborn human beings. The contention here is that if a person does not consent to having a new organ located in his or her body, or does not consent to having his or her body radically transformed in a way that involves all primary bodily systems, including ones cardiovascular system, respiratory system, gastrointestinal system, metabolism, renal physiology, and endocrine system, then such alteration of a persons body constitutes great personal injury as well as a great intrusion on ones liberty. When such a personal injury results from the presence and attachment of a fetus, and when a state, such as South Dakota, defines the fetus to be an unborn person with the same rights as a born person, then the great personal injury resulting from the fetus results from an unborn person with the same rights as a born person. Since no born person has the right to transform a persons body so radically without the consent of the person involved, it follows that no unborn person has such a right.
Cont .. CONCLUDING CONSIDERATIONS: FETAL INNOCENCE AND CONSENT TO SEX The Innocent Fetus As discussed above, all pregnancies, even medically normal ones, constitute an enormous transformation of a womans body resulting from the presence and attachment of a fetus in her body, including the growth of a new organ in her body, the placenta. Due to the enormity of these transformations, every pregnancy constitutes some risk of harm to the woman. However, without consent, all pregnancies constitute serious bodily harm and a serious intrusion of a womans liberty resulting from the fetus. This is because legally what defines harm is not so much what transformations occur in peoples bodies as much as whether people consent to those transformations. For example, if person A takes a sharp instrument and cuts deeply into the body of person B, we do not know if this is legally a harm to person B until we know if person B consented to that transformation of her body. Even if we know that person A is a surgeon, for example, who cut into person Bs body to perform a life saving operation, we still do not know whether that transformation of person Bs body is legally a serious injury because we do not know whether person B consented to the transformation of her body. If we apply that principle to pregnancy, we immediately see that the key to whether pregnancy constitutes serious harm to a womans body and liberty is whether a woman consents to the pregnant condition. Of course, the fetus is unconscious of how its presence and attachment dramatically transforms a womans body. Regardless of whether a fetus knows about or can control the transformations in a womans body and liberty resulting from its presence and attachment, a fetus is the only entity that can produce a pregnant condition in a womans body. Thus, if the fetus is declared legally to be an unborn person with the same rights as a born person, then the fetus is an unborn human being lacking the mens rea to be legally responsible for the impact it has on a womans body and liberty. Fetuses, therefore, would be like born people who are mentally incompetent due to lack of mental capacity, the influence of drugs, insanity, or any other such attribute that rendered them unable to be knowledgeable or to control their impacts upon other people. Such people are legally innocent of a crime because they lack agency. However, peoples mental incompetence does not excuse them from state restrictions prohibiting nonconsensual intrusion upon the bodies and liberties of other people. Hence, declaring fetuses to be unborn human beings with the same rights as born human beings does not excuse fetuses from state restrictions prohibiting nonconsensual transformation of a persons (womans) body and liberty. What is more, the state stops mentally incompetent people from harming other people with the full recognition that such people are legally innocent of criminal behavior. Consent to Sex Versus Consent to Pregnancy Some, of course, will say that if a woman consents to sexual intercourse with a man, then she has consented to the condition of pregnancy that may be subsequent to sexual intercourse if or when a sperm joins with an ovum and the fertilized ovum then attaches itself to the womans uterus, thereby triggering the condition of pregnancy in a womans body. However, the law does not require that people who consent to an action must necessarily consent to conditions that are subsequent to that action. For example, people who consent to sexual intercourse and subsequently contract HIV are not deemed to have consented to contracting HIV. To the contrary, they are free to eradicate HIV from their bodies. Similarly, people who consent to smoke and then find that they have lung cancer in their bodies are not required to consent to lung cancer in their bodies. Much to the contrary, they are free to eradicate the lung cancer. Of course, the state does not have an interest in protecting the AIDS virus or cancer cells. However, as noted above, the fact that the fetus is a state- protected entity, or even legally declared to be an unborn human being with the same rights as a born human being, does not give the fetus a right to transform radically a womans body and liberty, since no born person has such a right. To the contrary, a woman has a right to eradicate the pregnant condition in her body even if she consented to an actionsexual intercoursethat was an action upon which acquiring the condition depended.
Cont .. THE NEXT STEP The constitutional power of reframing abortion rights as a woman’s act of self-defense as a means to stop the serious harm of a nonconsensual pregnancy increases in relation to the degree to which the state defines the fetus to be an unborn human being in conjunction with the latitude the state gives to the right to use deadly force in self-defense. Interestingly, states such as South Dakota do both. Ironically, therefore, it is in precisely states such as South Dakota that the fundamental rights model of equal protection is particularly applicable. The conjunction of restrictive abortion rights legislation with the increase in the latitude recognized by states for the use of deadly force in self-defense, therefore, promises a way out of the box that has been Roe. Crucial to implementing this new foundation for abortion rights in the wake of contemporary state-level challenges, however, is recognition that what is at stake is not merely a new way to frame abortion rights constitutionally, but also a new way to frame abortion rights politically. This is particularly true due to the way abortion advocates until now have used the strategy of invoking traditional imagery to obtain nontraditional rights for women. Using Conservative Arguments to Obtain Abortion Rights The current challenge to strengthen abortion rights follows in the wake of a long period in which pro-choice advocates used traditional, conservative, pro- choice arguments for the nontraditional right to obtain an abortion. Journalist William Saletan chronicles this process in his extraordinary book, Bearing Right: How Conservatives Won the Abortion War. As Saletan explains, by the mid-1980s, pro-choice strategists believed that it was crucial to women’s interests to preserve abortion rights. However, they also noted that this was not a view shared by the general public. To the contrary, what most aggravated the public were conservative worries about what was perceived to be “big government” and the intrusion of government into people’s private lives, for example, by imposing taxes and busing to achieve racial balance in educational institutions. The solution for abortion rights activists at this time was to join conservative, traditional views of limited government with the nontraditional goal of preserving a woman’s right to choose an abortion. Many mainstream pro-choice activists embraced this combination of traditional, conservative arguments to obtain nontraditional reproductive rights for women by arguing that the main reason women had a right to an abortion was because government should not intrude upon the private lives of people, including pregnant women, the husbands of pregnant women, and the physicians advising pregnant women. As Saletan puts it, pro-choice activists perceived that they could escape the unpopularity of promoting nontraditional goals for women—abortion rights—“by bearing right.” Of course, there were some pro-choice activists—such as Patricia Ireland (President of the National Organization of Women), Pat Schroeder (a Colorado Democratic in the House), and Kathryn Kolbert (an attorney with the ACLU Reproductive Freedom Project )—who resisted this conservative solution to what the public considered to be the “radical” goal of retaining women’s right to an abortion. Among other things, they believed that education could sway the public to support abortion rights on more clearly feminist grounds. However, those advocating a more direct, feminist approach to abortion rights rather than the conservative “get the government out of my uterus” approach were viewed by the pragmatists concentrated in the National Abortion Rights Action League (NARAL), Planned Parenthood, the National Women’s Political Caucus, the National Women’s Law Center, and the Women’s Legal Defense Fund, as hopeless “purists” who did not have a clue about the reality of passing (or defeating) bills in Congress much less electing politicians to office in the first place. Thus, during the crucial years leading up to today, the dominant message delivered by pro-choice activists was an “anti-government, profamily rhetoric” that, while preserving the right of women to choose an abortion, gave up on related issues, such as abortion funding or resistance to parental consent regulations. As Saletan reports, everywhere, politicians “proclaimed that abortion decisions ‘should remain in the family,’ where they could be made according to ‘traditional values.’” Switching to Nontraditional Premises Once the state defines the fetus to be an unborn human being with the same rights as a born human being, however, traditional, conservative arguments for abortion rights are moot because to the degree that the state acts to protect born human beings, the state is all but obligated to act to protect unborn human beings. For this reason, it is time to fight fire with fire, however untraditional the resulting framing of women’s right to an abortion may be. For if the state acts to protect born people from harm resulting from mentally incompetent born human beings, and the state acts to protect unborn human beings from harm resulting from third party attacks on pregnant women, then it follows— from the fundamental rights model of equal protection analysis—that the state is obligated to act to protect women from the harm of a nonconsensual pregnancy resulting from the fetus itself, as discussed above. Entailed in fighting fire with fire, however, is not merely the implementation of the fundamental rights model of equal protection analysis, but also the equally compelling requirement to expand the way we think of women—all women, including pregnant women—as fundamentally being the “same” as men. True, men do not have the capacity to be pregnant or to give birth. However, the doctrine of self-defense derives from the way society and the law accepts the right—and the needs—of men (in particular) to protect themselves, and their “castle”—a castle most often envisioned with a wife and family inside—from nonconsensual intrusion by others. This new, fundamental rights model of equal protection analysis as applied to abortion rights requires that we view women as having the same rights as men in relation to their bodies—their “castles.” Thinking of women’s bodies as “castles” means that women not only have the right to consent to the access of men to their bodies, but also the access of fetuses—unborn human beings—to their bodies. It is true that when women consent to sexual intercourse or to pregnancy, presumably, it is the best of all possible worlds for all involved. However, when women do not consent to sexual access to their bodies by men or to pregnancy access to their bodies by fetuses, then although men and fetuses respectively may be benefiting from nonconsensual access to women’s bodies and liberties, the major point is that women are not benefiting from that nonconsensual access. Thus, women’s bodies and their liberties need to be viewed not only in terms of women’s special difference from men, that is, women’s capacity “to give” to others, including “to give” birth to babies, but also in terms of a property right to defend their bodies and their liberties from nonconsensual intrusion by others—all others—including fetuses. Of course, it took many years to achieve legal and political support in the courts of law and of public opinion respectively for women to have the right to consent to access to their bodies in relation to men. The “next step”—constitutionally and politically— is to obtain for women that same right to consent to access to their bodies in relation to fetuses. With the likelihood that state-level restrictive abortion legislation will continue to be passed, the time to start taking that next step is now. Many, many thanks to Eileen McDonagh (Ph.D., Harvard University, Government Department; Professor, Northeastern University, Department of Political Science; Visiting Scholar, Harvard University, Institute for Quantitative Social Science. Founder and Director of the Pro-consent Coalition, http://www.proconsent.org) for taking the time to answer my many questions and for allowing me to use her research.
I couldn't careless what you motivation is, I am only interested in the legal standings, and yes you are ignoring the constitution as everything in this thread is covered by the Constitution and State laws, now if you want to dispute them please go ahead, otherwise your contribution doesn't mean diddly-squat.
Do you think every Supreme Court Justice thinks that pro lifers are motivated by gender sterotypes? No.
The legal standings are based on a misunderstanding of pro life beliefs. Some of the things they said about the constituon and equal protection are technically factually correct, but the main thing they were saying-which is the core eccense of what this thread debate is about-were false.
I didn't say they were, neither did I say they are not .. so please stop trying to place words into my mouth.
Like "evil women", Sam? http://www.politicalforum.com/showthread.php?t=322479&page=7 Or "selfish jerk women", Sam? http://www.politicalforum.com/abortion/266369-abortion-facts-71.html
Then show how they are misunderstandings, and please do link to the actual quotes when you do this, you will find that not a single quoted item here is incorrect or taken out of context or any form of misunderstanding. You quote the items you think are "misunderstandings" and I'll link you to the actual quotes.
