Here’s what I don’t understand about gay-marriage opponents. If gay marriage comes about via the courts, as in Massachussetts, they’re off demanding the heads of those "activist judges" saying that only through legislation can a social contract so significant be changed. But now that the California legislature has approved gay marriage, Republican Governor Arnold Schwarzenegger is threatening to veto it. His reason?
After the vote, Schwarzenegger spokeswoman Margita Thompson said: "The people spoke when they passed Proposition 22. The issue subsequently went to the courts. The governor believes the courts are the correct venue for this decision to be made. He will uphold whatever decision the court renders."
Silly me, I thought in a representational government, we assumed the "people spoke" when their elected officials succeeded in passing a law fair and square. For Arnold to rely on those "activist judges" to strike down this clearly legal advance for human rights is so beyond hypocritical, we need a new word for chutzpah.
UPDATE: As that killjoy Anderson — 😉 — rightly pointed out in the comments:
There seems to be a real issue whether or not a statute can legalize gay marriage in the face of Prop. 22. The constitutionality of that prop. is, I understand, in the courts.
If it’s unconstitutional, then the statute may be superfluous; if not, then the prop. may trump the statute.
So the quoted passage makes a little more sense than is being credited. Whether the state of confusion merits a veto is more of a political decision, of course.
For the record though, Arnold’s still a "girly man" for not just signing the damn thing.
Edward, the best comment I’ve seen came from someone over at Reason’s Hit & Run blog:
I heard on NPR this morning that Schwarzenegger said this was a matter for the courts, not the legislatures, to decide. But then when courts rule in favor of gay marriage, it becomes a matter best left to the legislatures.
The moral: the gay marriage decisions must remain in the hands of those who oppose it.
What a girly man. Good for the CA legislature though.
I bet it passes the New York legislature & is signed by governor Spitzer in the not-too-distant future.
What a girly man.
Indeed! 😉
Okay, far be it from me to attack gay marriage or defend the Governator, but …
There seems to be a real issue whether or not a statute can legalize gay marriage in the face of Prop. 22. The constitutionality of that prop. is, I understand, in the courts.
If it’s unconstitutional, then the statute may be superfluous; if not, then the prop. may trump the statute.
So the quoted passage makes a little more sense than is being credited. Whether the state of confusion merits a veto is more of a political decision, of course.
I knew someone was going to point that out, Anderson…I just didn’t know it would be so soon….all that righteous indignation deflated so unceremoniously… ;-(
Partisan talking points are wa-a-a-y overrated, if you ask me.
OK, so what impact might the legislation have on that court case though?
I don’t pretend to understand California law, but Joyner at OTB linked to this discussion by Vikram Amar. Short answer appears to be “nobody knows yet.”
I just finished emailing Gov. Schwarzenegger asking him not to veto so that the courts could decide the issue based on constitutional grounds rather than just dodging the question by saying that same-sex marriages were illegal well before Prop. 22 and that law has to be changed by the legislature. After all, Prop. 22 had nothing to do with the legality of same-sex marriages performed in California, and it would in any case be a matter for the Supreme Court to decide whether or not he vetoes the bill.
I assume that Sebastian can tell us if there is some greater constraint on the Governator that would preclude him from signing this bill or if my position in this is flawed in some way.
I just finished emailing Gov. Schwarzenegger asking him not to veto so that the courts could decide the issue based on constitutional grounds rather than just dodging the question by saying that same-sex marriages were illegal well before Prop. 22 and that law has to be changed by the legislature. After all, Prop. 22 had nothing to do with the legality of same-sex marriages performed in California, and it would in any case be a matter for the Supreme Court to decide whether or not he vetoes the bill.
I assume that Sebastian can tell us if there is some greater constraint on the Governator that would preclude him from signing this bill or if my position in this is flawed in some way.
oops–type pad error
sorry
“I bet it passes the New York legislature & is signed by governor Spitzer in the not-too-distant future.”
I’m more than a tad skeptical this happen while either Joseph L. Bruno is the Senate Majority Leader or the NY Senate remains in Republican hands. Would you like to name a date and make a non-monetary bet?
While I (most assuredly) am Not A Lawyer: most of the commentary I have seen about California’s Prop. 22 seems to indicate that AB 849, and/or any other subsequent legislation on the subject would negate that proposition’s no-recognition-of-gay-marriage function, on the grounds (I think) that later law trumps earlier law, or something like that.
It doesn’t really matter though, as apparently the Homophobia Lobby is already in full panic mode (complete with shrieking denunciations of the eeevil Cal Democrats “flouting the will of the public”, etc) – or, as one of the bill’s opponents put it quite succinctly:
“Marriage should be between a man and a woman, end of story. Next issue,” insisted Assemblyman Dennis Mountjoy (R-Monrovia). “It’s not about civil rights or personal rights, it’s about acceptance. They want to be accepted as normal. They are not normal.”
THIS, IMO, (not the legal/constitutional minutiae) is the “real” issue: the fundamental attitude expressed by Assemblyman Mountjoy is too prevelant over too large a percentage of the population (like it or not) for ANY gay issues to be rationally debated. Not today, anyway.
Does Arnold have any real political future? Californians seem to be souring on him, he isn’t eligible for the presidency (yet), and he’s got more scandals dogging him than J-Lo has paparazzi. Well, a number, anyways.
If he vetoes this in the hopes of demogoguing to a national audience, I just don’t see it working.
I’m more than a tad skeptical this happen while either Joseph L. Bruno is the Senate Majority Leader or the NY Senate remains in Republican hands.
I’d take you up on the bet, assuming a Spitzer win. New York Republicans, while there are still many reasons that I don’t vote for them, tend to run away from the national party on gay-rights issues. I wouldn’t bet much on it, but I’d call it more likely than not.
I hate to politicize this;), but shouldn’t we be talking about something with the power to hurt the Republicans now?
I’ve read that prop 22 is a statutory measure, not constitutional, so why on earth couldn’t the legislature override it? Is there some third category?
“Is there some third category?”
Only in California. It isn’t clearly a Constitutional issue, but it isn’t clear how the non-Constitutional propositions intersect with legislative pronouncements on the same topic. I would suspect that last-in-time wins, but there are complications that I don’t understand.
This is part of why my default position on propositions is to vote against them unless a very forceful case is made for them.
My understanding is that the CA legislature is forbidden to override propositions.
you guys are so weird out there…
Maybe propositions are a species of Specter’s Super-Precedent.
Democracy and the religious right
It’s clear what the religious right is moving toward: one day when gay marriage is approved by a majority of voters in a referendum, they’ll have worked through the progressive defenses of “activist judges” and “activist legislators,” and will eventu…
I saw them making fun of Specter at Volokhia, but surely some precedents are more precedential than others. Imagine the Court’s reversing Marbury, or only a little less drastic, McCulloch or Gibbons. Or, hell, Brown v. Bd. of Educ.—if that ain’t a super-precedent, what is?
He was being mocked for:
1) typically bizarre nomenclature–nothing new for “Scottish Law” Specter–and;
2) implying that Roe–a thirty-year old precedent that has been under attack both for its legal reasoning and results since the day it was issued–falls under the concept he was describing. I’m pro-choice, but any suggestion that Roe belongs in the untouchable category along with Marbury, McCulloch, and Brown is richly deserving of mockery.
Roe resembles Brown in being outcome-driven and based on flawed legal reasoning.
So the issue to me isn’t whether to sustain Roe as written, but whether to sustain it on different grounds.
Reversing Roe would seem to endanger the right to privacy which, scoffers aside, a good majority of Americans take for granted (they probably think it is in the Bill of Rights somewhere … Leno should do a spot on that).
The easiest way to distinguish Griswold, it seems to me, is to hold that the embryo/fetus is deserving of at least some protection, so that the issue isn’t “privacy” at all. But I am not sure whether I can expect that much nuance out of Scalia, Thomas … or Roberts.
(And your assumption that only “mockery” befits an equation of Roe and Brown would leave you mocking a whole lotta women, who have a bit more of a vested interest in this issue than you or I do.)
“the right to privacy which, scoffers aside, a good majority of Americans take for granted (they probably think it is in the Bill of Rights somewhere”
Like, say, the 9th Amendment?
Doesn’t the 9th Amendment protect my right to appropriate hundreds of millions of dollars from everyone to buy a personal jet fighter? That would make me a lot happier. Or is the 9th Amendment the one that protects my right to shave other people’s chin fuzz? Or that one that protects my right to murder other people? I always have trouble remembering which rights the 9th protects and which ones it doesn’t protect.
There might be historical context, but since that doesn’t help an alleged right to abortion I doubt that will help. Maybe it protects generally accepted rights held by the people (thus protecting against outrageous ‘rights’ like the ones I propose)?
I’ve always thought that the generally accepted rights theory of the 9th amendment was at least non-awful, but it doesn’t really apply to abortion discussions (especially with respect to 1973 Supreme Court decisions).
Maybe it is just me, but after New Orleans, this sort of gay marriage-with-Roe-coming-up-as-part-of-it comment thread sort of, well, quaint.
BTW, just so I’m clear, I think the CA legislative action is exactly how gay marriage should come about in the US.
Like, say, the 9th Amendment?
Oh, I’m a big fan of the 9th Amendment argument, but I just meant that the words “right to privacy” aren’t found in the Constitution.
I can see Jay Leno asking passersby “what amendment is the right to privacy in?” & getting lots of answers.
(And snark aside, I doubt that Sebastian really doubts that he does have some “right to privacy,” whether or not it includes abortion.)
I think the CA legislative action is exactly how gay marriage should come about in the US.
I agree completely.
Unfortunately, just as in the case of statutes banning interracial marriage, some states will stay mired in bigotry and deny equal protection to productive and law abiding citizens. They will do so while citing the many benefits to society that marriage affords, rejecting without irony the wish of others to participate in those benefits, offering nothing but cliche and prejudice to justify the assertion that somehow the benefits to society that marriage provides will be lost and/or diminished by extending them to those additional citizens.
In those states that insist on denying equal protection, without the ability to present a non-frivolous rational basis, it’ll have to come from the courts. Someday. Not soon, though.
“Maybe it protects generally accepted rights held by the people (thus protecting against outrageous ‘rights’ like the ones I propose)?”
Myself, I think that the 4th and 5th Amendments indicate quite clearly that the Founders had a profound sense of a right to privacy, and I think simple familiarity with the literature and milieu of the day entirely supports that and entirely contradict any notion that they didn’t feel a general right of privacy.
But that’s me. I also have a few anecdotes about the grandson of Erwin Griswold, whom I knew extremely slightly when I was a pseudo-Yalie, but I can’t say anywhere Google might find them. They don’t pertain to the Constitution, though.
“Myself, I think that the 4th and 5th Amendments indicate quite clearly that the Founders had a profound sense of a right to privacy, and I think simple familiarity with the literature and milieu of the day entirely supports that and entirely contradict any notion that they didn’t feel a general right of privacy.”
But the flip side of historical inquiry would certainly acknowledge that they certainly didn’t conceive of ‘privacy’ in a sense that would require a hands-off concept of abortion. In fact there were a broad swath of things we think as crucial ‘privacy’ issues that they actively legislated against. So if you want to tackle ‘privacy’ from a generally accepted societal sense to shoehorn the 9th amendment(at the time of ratification or in 1973) in neither case do you get to Roe v. Wade.
I think Gary’s right to a large extent, and we have to remember that the Founders simply didn’t conceive of a government as invasive in many respects as ours today can be.
OTOH, I also think that a lot of things we think are “private” would be to them perverted/sick/etc. and not worthy of legal protection. So I don’t think they’re reliable guides.
We have an Enlightenment constitution that just precedes the Romantic change in sensibility, and I think the expanded “right to privacy” is in some ways a right to Romantic individuality.
What it boils down to is the conflict between our common law system from England and our written Constitution. The Brits don’t HAVE a Sacred Text Constitution like we do; theirs, unquestionably, evolves, the glory & frustration of the common law. We’re stuck with the uneasy juxtaposition of an evolutionary common law and an allegedly graven-in-stone Constitution.
The answer being, take the Constitution as part of a common-law system and admit that it does indeed change & grow. But you might as well suggest to Scalia that the Bible isn’t God’s word taken down by dictation.
We have an Enlightenment constitution that just precedes the Romantic change in sensibility, and I think the expanded “right to privacy” is in some ways a right to Romantic individuality.
That is a very neat observation. I may be spinning off into free association realm, but I think you can really see that with the problems we have as a society with child pornography and defining it. I’m recalling when there was a move to prosecute for some fashion billboards in NY that portrayed models (who looked like underage teens) in underwear. I find myself very disturbed when it is suggested that people who _draw_ these sorts of images (and with computer software, the realism that can be obtained is frightening) should be prosecuted. To me, what goes on inside a person’s head is pretty much off-limits (and I think there is a reflexive sharing of that basis by many here by the way mind-reading violations are invoked). Certainly, the problems of the notion of intent and responsibility can be seen as reflections of this.
For some, that barrier is expanded to be one’s body and in New Orleans, I think we are going to see the ‘Your house is your castle’ notion be the focus of some difficult questions.
“But the flip side of historical inquiry would certainly acknowledge that they certainly didn’t conceive of ‘privacy’ in a sense that would require a hands-off concept of abortion.”
Obviously not, and some thought slavery a splendid thing and enough thought it important enough to be preserved for “now” as to acknowledge it in the Constitution. We don’t take all our cues from what the Founders thought about policy at the time, and there’s no reason we should be so limited, when it’s clear from the Federalist papers that the Constitution was intended to be interpreted by future generations, not considered a document that prescribed all rights and wrongs and methodologies or policies. Which is why the 9th Amendment exists.
“Obviously not, and some thought slavery a splendid thing and enough thought it important enough to be preserved for “now” as to acknowledge it in the Constitution. We don’t take all our cues from what the Founders thought about policy at the time, and there’s no reason we should be so limited, when it’s clear from the Federalist papers that the Constitution was intended to be interpreted by future generations, not considered a document that prescribed all rights and wrongs and methodologies or policies. Which is why the 9th Amendment exists.”
Sure, amending the Constitution is always an excellent option to vindicate new rights. I highly recommend that option. Unfortunately nobody bothers with that anymore.
“not considered a document that prescribed all rights and wrongs and methodologies or policies.”
This isn’t quite right. The Constitution does prescribe the methodology for choosing which rights and wrongs get addressed at which level and who gets to decide which policies.
We have an Enlightenment constitution that just precedes the Romantic change in sensibility, and I think the expanded “right to privacy” is in some ways a right to Romantic individuality.
LJ, you might be interested in the strange, strange novels of the early American writer Charles Brockden Brown. Start with the almost Godwinian Wieland (1798), then check out the dark fantasias Arthur Mervyn (1799, 1800) and Edgar Huntly (1799). The five-book oeuvre of CB Brown documents a kind of fall from egalitarian liberalism into Romantic subjectivity right after the writing of the Constitution.
I remember that move to try to criminalize virtual child pr0n, and thinking to myself how removed it was from some act I could identify as directly harmful. Between the thought and the harm are so many layers of medical and social theory! It likely does fit into this historical shift, which our Constitution didn’t really address.
Perhaps vaguely related: ETA Hoffmann, the Fantastic author, was a magistrate in Germany in the mid to late eighteenth century; one of more interesting legal decisions was his ruling against the insanity defense. He thought that it was very dangerous to ask courts to determine and judge states of mind. It was kind of a last stand against that trend, from someone whose non-judicial writings were key inspirations for the Romantics–and for Freud, later.
Let the courts decide, Arnold!
Between the penultimate paragraph and the last insert closing tags for seriously OT lame lit history.
I don’t believe I’ve seen you comment on this anywhere, Sebastian, so would you mind saying whether you approve of this legislation or not? And do you approve of Arnold’s “let the courts decide” stance or not?
Anarch: I think that sort of answers your question directed towards Sebastian, at least generally re: approval of legislation.
It’s not in the online version, but the Washington Posts’s “Engagements, Weddings and Anniversaries” section had among its listings today a lesbian couple, married in Canada in 2003, announcing their 20th year together as a monogamous couple. I hope we see more and more of that, because the more visible it is, the more we’ll hopefully see acceptance of it. That the elimination of religion. (Kidding!) (Mostly.)
matttbastard: This is why I shouldn’t post with a fever 😉
Sebastian, I thought I got you to say original application was NOT binding original meaning once? Oh well. They were useful discussions to clarify my views, even if they did not affect yours at all. It always frustrated me: pulling TEETH to find some common ground, only to find out that my arguments had magically disappeared from everyone’s memory the next time the topic arose, and the same Scalia talking points repeated.
“Sebastian, I thought I got you to say original application was NOT binding original meaning once?”
To be honest I’m not sure what this sentence means now, much less whether or not I agreed to it at some point in the past. Are you talking about original application like “If you listen to someone’s phone conversation is it a search even though phones didn’t exist in 1790?” I’ll buy that. Are you talking about application like “The death penalty as a whole can be considered Constitutionally cruel and unusual punishment even though the Constitution specifically outlines methods for cases where the death penalty is an option.”? I’m not buying that kind of statement at all.
In any case I think we have only had at most two discussions on the 9th amendment, I seem to remember you had an interesting (though not accepted in jurisprudence) view on it somewhere but I can’t find it. My point regarding that amendment is that it cannot vindicate all things that anyone personally feels is a right. I find it difficult to believe that it protects rights that are NEITHER accepted by the majority nor historically grounded (if a ‘right’ was at least one of those two things I think you might have a colorable argument, with neither I don’t see how you can). Trying to defend abortion rights under the 9th (as above) doesn’t make much sense. That was my only point.
Sebastian: I thought about jumping in here before to say something about this, but didn’t, mostly because things seemed to have gotten off into CA law, which while interesting is something I know nothing about. However:
If I were making Katherine’s point, I’d say: if you search history to try to find what’s historically grounded, you might find several things. One is a conception of the sort of rights that people have, and that should be protected (under, say, the 9th amendment.) This might (I am making this up here) be something like: the right to make up your own mind about those matters that involve your personal and freedom most intimately, and that do not harm others directly, except in the way that other protected things (e.g., speech and religion) do (e.g., by your providing a supposedly bad example for others.)
The second is the particular list of things that were, historically, thought to satisfy this description.
The first thing is: the definition of the set of protected rights; the second is: what was historically taken to be the extension of that set. Here’s where my earlier example of ‘carcinogen’ comes in: if carcinogens are prohibited, but at the time the law was written X was not thought to be a carcinogen, pointing that out does not begin to mean that we should not now interpret the law to prohibit X. What the law prohibits is: things that meet a certain description. If we now learn that something that wasn’t previously thought to meet that description actually does, then it is prohibited by the very same law, and it requires no change in meaning or interpretation to reach this conclusion.
Now: when you say: historically, x, y, and z were not protected, you’re presumably saying that they were not part of the extension of the set of protected rights, however defined. What I take K. to be saying is: what matters, if one is into some sort of originalism, is getting the historically accurate view of what sorts of rights were protected, not getting the historically accurate extension of the set of protected rights. And your examples speak to extension, not definition.
My take on “what matters, if one is into some sort of originalism, is getting the historically accurate view of what sorts of rights were protected, not getting the historically accurate extension of the set of protected rights.” is that extension analysis is about analyzing “terms”. Terms are analyzable under such an analysis when they actually appear in the Constitution. When they don’t, there can be huge fights over what an accurate framing of the “term” ought to be. Extension analysis cannot resolve that framing debate because until you agree on what “term” you are talking about, extension analysis has nothing to say.
Even with specific terms, the problem is that your extension analysis is pretty easy with purely scientific questions, but not particularly useful in mixed questions of science and morality, while having extremely limited application in non-scientific areas of societal moral judgment. Morality in a multicultural society isn’t easily reducible outside of traditional practice and/or societal consensus yet the idea of who we can kill and who we can’t is still rather important. This intersects with law because you want to apply it well beyond the scientific questions (like carcinogen). Such questions are decided by the society, not by scientific proof.
This is where it gets thorny. I am perfectly willing to accept extension analysis on phone-taps and the term ‘search’. Phones didn’t exist at the time of ratification, yet a phone-tap is clearly a type of search. Hiding in someone’s home to listen to his conversations would be a search so insinuating yourself into his phone conversations is too. That is great for things that didn’t exist at the time. It doesn’t work well for things that were commonplace at the time of ratification however. I would be very skeptical of an argument that a policeman looking at a person on a public street and noting the color of his clothes is a search. Such an ‘interpretation’ could be plausible if you analyze the word “search” as a platonic entity, divorced from its historical usage. Once you add the historical context–the fact that looking at someone’s clothes on a public street was both legal and a well known possibility at the time of ratificatio–such an ‘extension’ looks silly. If you want to make such things illegal, your proper method is to appeal to the legislature or to propose a Constitutional amendment. Your proper remedy is not to redefine the term to suit a desire to keep policeman from noting clothing color. Trying to ‘extend’ rights is deeply problematic on the host of issues where scientific analysis is not available.
“and that do not harm others directly”
is the whole question in the abortion debate. It can’t be resolved by an extension analysis at this time (and certainly not in 1973) because there is no societal consensus (in legislative expression or other expression) about when during a pregnancy it is appropriate to say “does not harm others directly”. It isn’t a scientific question like “carcinogen”. “Harm” is not a scientific question, “Others” is not a scientific question and “Directly” is a mixed question of science and morality (some scientifically direct causes have moral implications while others seemingly do not).
Your “carcinogen” question comes up much more directly in the question of “viability”. The precise location of viability (if you accept that it is a proper legal cut-off point for something) is an extension analysis. What should be done post-viability is not. What should be done pre-viability is not. What constitutes a ‘person’ is not a purely extension analysis concept subject to scientific proof–and on the issue of abortion the Democratic Party wouldn’t want it to be because if it were purely analyzed on that level, it would prove too much one way or another–it would either suggest that 8th month fetuses are persons or 1-day-old babies aren’t. Neither finding is acceptable to the modern Democratic Party as it currently functions.
In short the question of viability is a scientific question subject to extension analysis, but the question of what to do with that information is not.
I think that one of the better arguments for legalized abortion is that, where definitions are so fuzzy, the gov’t should let people decide the metaphysics for themselves.
But honestly, Sebastian, I don’t think that many Democrats would support aborting an 8-mo.-old fetus. Bit of a straw Dem there.
(I don’t doubt that you can find an example on the Internet, but I have proclaimed Anderson’s Law: You can find an example of anybody believing anything on the Internet.)
Yeeeeessss. I’d like to get that bronzed and featured prominently right under the kitten.
But honestly, Sebastian, I don’t think that many Democrats would support aborting an 8-mo.-old fetus. Bit of a straw Dem there.
Given some more context, I might. Suppose the fetus is irretrievably damaged, and will certainly live no more than a few days after birth. Suppose further that continuation of the pregnancy poses grave risks to the mother — to her future fertility, if not her life. There’s no happy ending here for anyone, but I’d prefer to leave this kind of situation up to the people involved, and keep the government out of it.
Now Sebastian will think (if not respond) that even if an abortion should be permitted on these facts, it’s too difficult to write a statute that permits abortion in these circumstances, but not of nearly any old 8 month old fetus that comes along. I’m not sure he’s right, but even if he is, I’d still prefer, on balance, that the state stay out of situations like my hypothetical, even at the cost of some few non-tragic pregnancies being terminated so late.
“But honestly, Sebastian, I don’t think that many Democrats would support aborting an 8-mo.-old fetus. Bit of a straw Dem there.”
Number of Democrats doesn’t equal the general position of the Democratic Party. (Strange but true fact about party politics). I would be surprised if ‘many’ people of either party support farm subsidies yet they persist quite well becuase the Party position of both Parties caters to them. The Democratic Party position on abortion is to resist any restriction on any abortion. The only time Democrats get major vote support otherwise is when they know the bill cannot pass (see Reid’s counter-bill on partial birth abortion). And I don’t think NARAL counts as a random internet-crazy group. Thankfully CharleyCarp comes to my rescue anyway:
This is pretty much what I would expect from a run-of-the-mill Democrat (not that I’m saying you are one, just that if I polled lots of Democrats I would expect to see this view). It essentially says “I’m willing to risk the deaths of fully viable fetuses in the 8th month because I don’t want to risk the births of non-viable fetuses that the mother might want to abort. My original statement that the Democratic Party wouldn’t be interested in a finding of personhood for an 8th-month fetus doesn’t seem like a straw-man to me. And I assume that most people won’t argue that my assumption that the Democratic party wouldn’t be politically thrilled with a judicial finding of non-personhood for a 1-day post-birth baby is non-controversial.
“And I assume that most people won’t argue that my assumption that the Democratic party wouldn’t be politically thrilled with a judicial finding of non-personhood for a 1-day post-birth baby is non-controversial.”
Umm, with all due respect, this is ludicrous verging on unhinged.
“The Democratic Party position on abortion is to resist any restriction on any abortion.”
No, the party’s position is to resist any crazy, vindictive, narrow-minded, overintrusive, unrealistic, or unreasonable restrictions on legal abortion. That this is a distinction without a difference is not the Democrats’ fault.
Sebastian Holsclaw: It essentially says “I’m willing to risk the deaths of fully viable fetuses in the 8th month because I don’t want to risk the births of non-viable fetuses that the mother might want to abort.
This is a little like saying gun control opponents are willing to risk the accidental deaths of curious toddlers because they don’t want to risk any burglars not getting shot.
Sebastian, you misstate the risk calculation I am making (and I think I’m pretty much run-of-the-mill on this one). I don’t want the state to force the woman to risk infertility/death to take a non-viable* fetus to term. I think a statute can be made narrow enough to accomplish my goal without leading to the harm you’re afraid of. If I’m wrong, and it can’t be done, then I’d rather a statute accomodate that woman, even at the risk of some few pregnancies being terminated outside of this kind of risk to the mother.
Your side, though, would rather try to ban all abortion than sincerely try to accomodate my hypothetical. Since you can’t have that, you’d rather permit all abortions, than limit them as I (and a huge majority, including a current majority on the USSC) would be willing to do.
* You used the term non-viable for this, and I’m comfortable with it. There are those who would not use this term to describe a fetus that will result in a live birth, and life for at least a couple of days.
“I think a statute can be made narrow enough to accomplish my goal without leading to the harm you’re afraid of. If I’m wrong, and it can’t be done, then I’d rather a statute accomodate that woman, even at the risk of some few pregnancies being terminated outside of this kind of risk to the mother.”
I’m sure it could in theory. In reality it isn’t. Health exceptions become gaping holes that 100% of abortions can get approved under. Even trying to check whether or not existing health exception laws are being complied with is made impossible. That is most specifically not an accident. That most specifically is not Republican action.
Also, please note that the Democratic Party does not take the position of trying to do so any time in the 32 year history of Roe when they have been in legislative power. (Which by my calculation has been about 2/3 of the time depending on how you calculate it). So I think it is safe to say that the Democratic Party isn’t practically too interested in it. (Just as it is safe to say that rhetoric aside the modern Republican Party isn’t very committed to reducing the overall size of the federal governmen–which is too bad in my opinion). The Reid partial-birth abortion counter-bill is perhaps the only exception to this, and I don’t believe for a second that it would have received the support it did (which is not at all to say the support of a majority of the Democratic Party) if it had a chance in hell of passing. It was mainly an exercise in tactical voting of the “voted for it before I voted against it” variety.
Sebastian, in a thread about whether or not you should have the legal right to get married, why did you bring up the issue about whether or not women should have the legal right to privacy with regard to their own bodies? Legally depriving women of the right to make decisions in such an important aspect of their lives is something dear to the heart of many a right-wing Christian, but these are the same people who find it very important that you shouldn’t be permitted full civil rights. It is very weird, really, to see you in the same camp with them – not merely that you agree women shouldn’t be permitted full legal privacy over their own bodies, but that you consider depriving women of full civil rights such an important issue that you bring it up even on a thread that’s about granting you fuller civil rights. Irony, irony, irony.
Jesurgislac, don’t you think it is ironic that after thousands of years of gay people getting killed merely for inconveniently being, you don’t support the rights of a fetus to not get killed for annoying its mother? I realize that hedonism can be a defining characteristic of the modern left, but isn’t (ahem) intentionally targeting fetuses taking it a bit too far? Oh, maybe that isn’t a totally fair characterization…
In any case, the relation between the two topics is court action to engineer social change without bothering with the legislature. It is also about the alleged “right to privacy”.
This bill is a good thing–neither side can successfully hide behind the courts for very long if we are actually debating it in the legislature. I’m all for vindicating new rights through the proper channels.
“- not merely that you agree women shouldn’t be permitted full legal privacy over their own bodies, but that you consider depriving women of full civil rights such an important issue that you bring it up even on a thread that’s about granting you fuller civil rights.”
I only brought it up in the ‘super-precedent’ joke. I did continue the conversation that went on after that, but I suspect trying to analyze my psyche based on the idea that I feel some deep need to bring up Roe (which is in fact intimately tied to the privacy jurisprudence being discussed) is pushing just a bit far.
BTW in case it wasn’t clear, the first paragraph of my last comment was very over-the-top/unfair hyperbole. It should not be interpreted as my actual understanding of the pro-choice position.
Jesurgislac, why do you insist on pretending that a fetus is nothing more than an extra, temporary body part and that the only people opposing abortion are right-wing Christians who are intent on keeping women down?
And the idea that just because group X holds one position that is contrary to person Y’s interests, s/he should therefore also oppose every position that that group holds is ridiculous. It works only as a manipulative tactic, not as a cogent argument.
I think I may be to blame for bringing up Roe here … 20 lashes with a wet noodle for me …
Must concur with kenB. I find myself in the anomalous position of thinking abortion is terrible, but having no reason to believe that outlawing abortion would save more lives than the present scheme.