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Abortion, the law, and morality — 27 Comments

1. Consensus is what we don’t have right now, on this issue or on many others. This is why the federal design of the nation was wise and efforts to override it should be resisted.

   Neo, would a lawsuit by a woman who was injured by the abortion drug be more successful? Or was the FDA approval so long ago that this would not succeed?

2. Kate:

   I don’t know, but my guess is that she could sue for actual damages but it wouldn’t make the pill illegal.

3. It is simply not true that prolife apologists often bring religion into the discussion. Maybe the people one knows do so, or those in comments sections. But not the ones who write most of the articles and make the podcasts. They usually use an argument along the lines of:

   The fetus is alive, and human. Both of which are verifiable without any religious, reference. I suppose if you wish to, you can claim “thou shalt not kill” has a religious provenance, but most atheist embrace it too.

   Another problem with the above is the unargued assumption that, because the woman is the one who is pregnant, she has sole and absolute rights over the life of the child.

   Finally, the notion that natural law involves bringing God into the question is not the classical Western view. It is modern, popularized by Locke. The earlier thinkers, deriving from Plato, Aristotle, or the Stoics, simply didn’t argue that way. Not even the Medieval scholastics. Locke gave lip service to Richard Hooker, but threw out his fundamental theories.

4. A man who impregnates a woman could certainly sustain an “injury in fact” through her decision to have an abortion, but that injury is not “redressable” by the court. There is no getting around the fact that the woman is the pregnant person and he is not, and he cannot force her to bear a child and continue a pregnancy in her own body against her will…

   I’m a little confused by this. I think it states the status quo, but not why it is that way nor if it could or couldn’t be changed.

   To begin with, suppose instead of a pregnant woman aborting a fetus, you had a mother who didn’t care for her infant and it died. Suppose the father to be deployed, temporarily reassigned across the country, maybe they’re divorced, but he’s not on the spot to prevent it. I find it hard to believe a court could not say that the father had suffered an injury of some kind that can be redressed by a court. (Quite aside from the criminal violation.) But she was the mother and present and he was not, and he cannot force her to care for a child against her will….

   Some states allow the prosecution of mothers who endanger their fetuses with drugs or alcohol. I find it hard to believe it’s impossible a father could be found to have been done a redressable injury by a substance-abusing mother.

   As for “force her to bear a child”, that is what normally happens unless someone actively intervenes to make it not happen. I don’t understand why a woman could not be enjoined against intervening in the normal course of her pregnancy. There are all kinds of laws about what people can and can’t do with their bodies, and courts do enjoin people from doing things that are legal. If it’s that there’s no precedent, well that’s always true until the first one. If the precedents all go the other way, well that’s true until they don’t.

   Men have rights in their children once they are born, of course, as well as responsibilities, and courts get involved in those things from time to time.

   But that’s because that’s where courts have decided to draw the line. They can decide differently. One of these days perhaps one of them will, though I wouldn’t venture to guess the nature or circumstances of that decision. There’s just a lot of “Hawaiian judges”.

5. “The fetus is alive, and human. Both of which are verifiable without any religious, reference”

   • 100% agree.

   • Also agree with folks that point to the changing popular attitudes on abortion are due in part to a better understanding of the unborn child’ development.

   • It will not surprise me if science continues to discover much more about the human that is the unborn child, and our descendants will wonder: How could they do that, How could they not understand, How could they believe that was OK. And our descendants may also come to understand that the science finally caught up to what religion already understood.

6. Fascinating subject with many layers. Sidestepping the morality of abortion aspect, I’ve been thinking about OBloofyHell’s comment,

   Religion is not, and should never be, a basis for The Law.

   I’m sympathetic, in that I clearly see the slippery slope involved, but I’m curious as to what you would have to say about John Adams’ famous quote:

   The rights of Englishmen are derived from God, not from king or Parliament, and would be secured by the study of history, law, and tradition.

7. The Left cannot win an argument that involves facts.

8. Niketas Choniates:

   You don’t seem to understand the difference between a pregnancy and a living child. Or perhaps you do understand it but don’t like the law’s attitude towards that difference. But it is that difference that makes the difference between the availability of legal redress and no legal redress.

   A woman cannot be forced to carry a pregnancy to term if she doesn’t want to and she lives in a place where abortion is legal. Period. It doesn’t matter who wants to do the stopping. All the other hypotheticals you posit are different from that fact situation.

   You say that courts enjoin people from doing things to their own bodies that are legal? I’m trying to think what that would be, if the person is an adult and legally competent in the mental sense. Perhaps they can’t sell body parts for profit – but that really is a limit on what the buyer does, because it’s an illegal transaction, which is a different thing. If abortion is legal, a woman gets to make the decision whether to have one or not, within the parameters of the time frame that’s legal.

   What’s more, a man – the father – cannot force a woman to have an abortion against her will, either. I can well imagine a case where he would want to do so. But it is 100% her decision as long as she acts legally. There is no redress for him possible in a court because it would be an unconscionable intrusion to force her to either desist from abortion or have an abortion against her will.

9. The Constitution neither guarantees a right to abortion – Roe – nor supports its ban on the federal level through courts or even as an act of Congres. States can decide for themselves. But if either side wishes a national requirement that abortion be made legal everywhere – the left’s position, for the most part – or wishes a national ban or strong limitation (the stance of some on the right), there is a remedy: a Constitutional amendment.

   I agree with this, but the problem is that it’s not limited to abortion. The Constitution doesn’t empower the federal government to do most of what it currently does anyway. They justify it by the general welfare clause or the commerce clause. I’d prefer a much more narrow reading of those clauses (and therefore a much more limited government), but given the precedents, it’s not obvious to me why they can’t use them as a justification to legislate on abortion too.

10. The problem with Roe vs Wade is that it de facto wrote a law. And a key flaw in that lawmaking was the word ‘viability’. It was never defined, and that has led to a lot of the current mess. Tossing out the terrible Roe vs Wade decision and returning it back to the states means that eventually a consensus of what ‘viability’ in fact means will form which is what is needed.

    As an aside, I think both extremes: the no abortion ever or the abortions whenever during pregnancy, are hindrances to getting the issue resolved. Both extremes are unreasonable.

11. Jimmy:

    Of course they will try to do that. Actually, both sides who want to pass a federal law on abortion want to do that. I am stating my opinion of the law, however.

12. This might not have been gone on so long if oconnor hadnt adopted privacy as a rationale in casey over the other one in roe if memory serves

    I am skeptical that miprestone (sic) doesnt have side effects we will find out later like with the vaccines and when they are discovered well too bad

13. A woman is forced, by law, to give birth past a fluid age of viability… a human life unsupported through acts of charity, welfare, a womb, etc. The wicked problem is that a human life can be aborted, curtailed, murdered… demos-cracy dies in darkness. The wicked solution is to sequester the “burden” of evidence under the color of law, the established Pro-Choice ethical religion of progressive sects prosecuted through liberal license. All’s fair in lust and abortion.

14. n.n.:

    That’s because in most states abortion is illegal after a certain point in pregnancy. That’s a completely different situation from the one posited here, which is that the man who impregnated the woman would have the right to stop her from having a legal abortion. His suit would be a civil one, by the way, and he is estopped from what’s known as “specific performance” – that is, forcing her to bear the child against her will.

    I can imagine that a court might award him compensatory money damages if she aborts, however, although I very much doubt it. It would have to be a money compensation for mental anguish, because an abortion wouldn’t cause him any financial harm.

15. The Rule of Law — whoever controls it gets to decide who the “criminals” will be. *BIG* Government proponents love the law—the more laws the better. The only difference between the Progressive DEMs & the MAGA REPs is their talking points…

16. Miguel cervantes:

    All drugs have side effects, but it is a matter of weighing the advantages against the dangers.

17. @neo:You don’t seem to understand the difference between a pregnancy and a living child

    Lol. I have borne children, for all you know….

    Or perhaps you do understand it

    Thanks for giving me credit for that much…

    but don’t like the law’s attitude towards that difference.

    It’s neither. I’m trying to understand how the law arrived at that attitude and what keeps that attitude from changing. If it’s precedent or statute, both those things change, so is it something else?

    A woman cannot be forced to carry a pregnancy to term

    Here we have a really important difference in how we’re using words. A woman WILL, barring accident or disease, normally carry a pregnancy to term, unless someone actively intervenes. There is no “force” involved in this, any more than someone “forces” an adult to grow older. The only “force” can come from terminating the pregnancy. If the law forbids assisted suicide, are we “forcing people to grow older”?

    All the other hypotheticals you posit are different from that fact situation.

    While I see you asserting that they are, I’m sorry I am not seeing why they’re not analogous cases.

    You say that courts enjoin people from doing things to their own bodies that are legal?

    Sorry, I did not. I said the courts enjoin people from doing all sorts of legal things, not just legal things to their own bodies. At any rate, I’m not sure where the law says that one’s own body is some kind of bright line that it’s not allowed to cross. Especially when you consider something like suicide. Suicide is not to my knowledge illegal in any US state, yet you can be involuntarily committed to prevent you doing it. Then there’s sterilization. There were laws in some states that required spousal consent to sterilization, and that’s done on one’s own body, I don’t believe the Supreme Court ever ruled them unconstitutional.

    If abortion is legal, a woman gets to make the decision whether to have one or not, within the parameters of the time frame that’s legal.

    What I’m not seeing, and what you haven’t explained, is how “a woman gets to make the decision” is legally entailed by “if abortion is legal”. I see that our laws do now work that way. I don’t see that they are constrained to work that way. For example, I don’t see why a court could not rule that both parents have to agree before taking action to terminate a pregnancy. I can see that they do not, and I can see that they have not, but I don’t see what prevents such a ruling from coming to pass in the future. Our laws have required in the past that spouses consent to things like sterilization, so it wouldn’t be some novel legal theory.

18. Laws, what would humans do w/o them?

    Only the woman/mother is allowed to make the choice of aborting the baby. The man/father is then forced to abide by her decision, e.g, if she keeps the baby the man/father didn’t want, the man/father will be forced to support that child until it reaches adulthood 18-years or so. (am not sure what the law is now on that, but men used to be tossed into jail for missing child support payments).

    Maybe the Rule of Law should bring back “the scarlet letter ‘A’ (for “adultery”)”?

19. Karmi thy motto is license.

20. Republicans need to win elections or else the Democrats’ abortion on demand position will rule. we know that the Democrats will hammer the abortion issue hard, so Republicans need to craft arguments to keep this from being a dealbreaker with persuadable voters. I have a Democrat friend who trots out articles from the left media, claiming that Republican states will not allow women to travel to other states to get abortions. The Florida after six week ban has also been hammered hard. I asked her for links to the stories and I am able to point out that even left leaning articles vetting websites give them false ratings. I do not think my friend is persuadable so I don’t try too hard. Neo, what arguments can we use to reach the persuadable ones?

21. Neo, thank you for clarifying the concept of legal standing, and your other expanded comments. And to others for their commentary – very informative.
    I was still struggling to understand “redress” so I found this definition on-line: “Redress means to set right, relief or remedy or a means of seeking relief or remedy. It can be putting right a wrong by compensation or compensation for injuries sustained; recovery or restitution for harm or injury; damages or equitable relief.
    Right to redress refers to the right to a relief or remedy.”

    You mention civil redress as mental anguish and potentially receiving money damages, etc. at 5:59pm. I think that is along the lines of my thinking, but really I brought up the male’s standing as (part of the) justification for making abortion illegal [with selective exceptions]. I am generally in sync and sympathy with Niketas’s remarks, but if your points apply to where it is still legal, then we are not yet discussing quite the same thing.
    And I see Niketas has also raised the parallel issue from the male side: “Our laws have required in the past that spouses consent to things like sterilization, so it wouldn’t be some novel legal theory.” Not quite the same thing, but similar “harms” might be claimed, and equally justified demands for redress if that kind of law was violated. I suspect some religions also assert such sterilization to be a sin?

22. “The Constitution neither guarantees a right to abortion – Roe – nor supports its ban on the federal level through courts or even as an act of Congress.”

    At conception, a human being begins the process that leads to adulthood. Its entirely arbitrary to decide that prior to birth, human beings have no rights. Labeling a baby a ‘fetus’ is a categorical medical term and it is sheer pretense to claim that one stage in an individual’s life possesses a ‘right’ to life but not at another stage in that person’s life. Note: to assert that personhood begins at birth, is to essentially deny the existence of the spirit/soul. But if they don’t exist, then there’s nothing to take into an afterlife and we all just face obliteration. In which case, make merry while you can and hedonist/nihilism becomes the highest value.

    There’s a label for the taking of an innocent life and the Sixth Commandment directly addresses it; “Thou shalt not… murder”.

    “a Constitutional amendment. That is the way to establish a national right or to take it away”

    If a Constitutional amendment can take away a national right, then we have no ‘rights’ for to be a right it must possess the quality of unalterableness. So If a Constitutional amendment can take away a “national’ right… what we actually have are privileges, ones determined by the current consensus of the mob. Which is what the mob did when it enacted Prohibition.
    This is why the founders stated that, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights”. And regardless of the fact that those words are not contained within the Constitution, they are the underlying rationale of the Constitution.

    That’s also why the only lasting basis for ‘natural’ rights, i.e. “unalienable” rights is if they are granted to us by a creator. Absent that precept, we’re left with the chaos of disparate individual’s subjective opinions. The ongoing societal dissolution in America is directly attributable to a society that imagines that it can retain societal cohesion absent theological precepts.

    John Adams wrote directly of this point when he observed that, “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other”

    Politics is indeed downstream from culture and culture is downstream from a culture’s theological precepts. So ultimately, laws extend down from those precepts.

23. Neo: “Why don’t people talk much about this remedy, the amendment process? Because it requires a great deal of consensus. The Founders made amendments difficult to pass, for very good reason.”

    I agree with them that amendments should not be made for transient and modest needs or desires. Plus the constitution is intended to define HOW the government works, rather than what legal positions it should take [BOR aside?]. Many positions should be obtained via normal legislative procedures and consensus, not amendments — something that is all too common in many state constitutional amendments (such as in FL).

    And yet I wonder if the Founders did not end up making it too difficult, such that candidate amendments never get put on the table for wider national debate and “official” consideration. This is why I have suggested previously that perhaps we need an amendment that would make it mandatory that a Convention of the States be called every (say) 50 (or 60) years. We may well need something to side step the Congress when they are in fact creating the problem under consideration. It also provides an opportunity at least once per normal lifetime for a citizen to vote for convention delegates and possibly for ratification of proposed amendments as well.

    I gather there are several proposals out there for controlling or restricting the COS agenda under consideration, or preselecting the set of candidate amendments to be addressed. The argument about a potential for a runaway convention can be handled, I believe — both in the beginning and at ratification if necessary.

    If there really were no viable candidate amendments to be debated, then the COS meets, says things are great, we have checked the constitutional box, and we will see your grandchildren in 50 years.

24. Eeyore on June 14, 2024 at 3:52 pm
    I am not sufficiently versed in ancient or modern philosophy to argue with you about natural law possibly being provided via God, … or not. I had just read some short extracts of Aristotle and Aquinas about natural law and saw the word God used, along with a sense of a “self evident” nature of humans. I interpret that nature to involve some of our evolved instincts; others assert a divine source. But people writing before Darwin, genetics, etc. can be forgiven if they postulate some spirit, elan vitale, or whatever as a source of our core humanity, “created in the image of God”.

25. R2L:

    “Natural Law” MEANS that law that man can see without revelation; what is common to Christians, Jews, and Pagans alike. That’s what makes it “natural”. Aristotle doesn’t mention God here; Aquinas cites God only as an explanation, not as evidence or proof in arguing with Pagans.

    Another thing to note is that if rights come from the Constitution only, then they are civil, not natural. (A distinction blurred because people associate “civil” with “minority rights.)

    Darwin simply has nothing to do with it. Many people before Darwin were believers in materialism. Democritus long before, Hobbes most notably more recently. Arguments that we have a soul are just as valid since Darwin as they were before. They operate on a different plane.

26. While a man may not have legal standing, it is arguable that the unborn baby may have legal standing that could be asserted by a guardian ad litem. To my knowledge, no cases have accepted this argument in the context of seeking to stop an abortion. This is not surprising since common law developed with the rule that a baby isn’t a person until born. There have been cases where guardians have been appointed to represent the interest of the unborn child in where the mother plans to carry the baby to term but is engaging in acts that harm the health of the baby. These cases go both ways. But time marches on, and the argument that science shows that the baby is not simply tissue of the mother, but has its own unique DNA, responds to painful stimulus, and shows other evidence of consciousness in the womb may make this argument worth raising again in the future.

27. Those who do not wish religion to dictate law should make it clear whether they object to the laws passed by a movement heavily led by ministers. One prominent minister directed them:

    “Let us march on ballot boxes (Let us march) until we send to our city councils (Yes, sir), state legislatures, (Yes, sir) and the United States Congress, (Yes, sir) men who will not fear to do justly, love mercy, and walk humbly with thy God.”

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