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Jack Sisson's Life Ethics Blog

We must find new ways through many ethical issues, especially regarding bioethics, medical ethics, and criminal justice. Jack Sisson's 'Life Ethics' blog focuses on numerous areas of concern, including the philosophical and ethical dilemmas surrounding stem-cell research, abortion, medical research, and health care.

 
From the National Right to Life site
Today’s News & Views June 23, 2005

Brownback (R-Ks.), whose speech to the NRLC national convention last week was frequently interrupted by applause, is convening the Senate Judiciary Committee's Constitution, Civil Rights and Property Rights subcommittee to examine the consequences of the 1970s-era Supreme Court decisions that unleashed abortion on demand. "A number of legal scholars both from the left and the right believe that Roe v. Wade is badly decided law, so we're going to start going at the core issue of Roe and this decision," Brownback told CitizenLink. "I believe you'll see Roe v. Wade overturned."

This is a bad omen. Overturning Roe v. Wade should not be an option. However, I do believe we can and should revisit our abortion laws from time to time. As civilized people, we need to ensure that, while those laws still protect women's right to choose, they also consider new medical and scientific discoveries about fetal pain and stages of development. For two differing opinions on fetal pain, read this article on the American Pain Society's Web site. AbortionFacts.com has more from the other side. I will revisit this topic soon.

Comments:
TLS, you need to better than this.

You said: "Overturning Roe v. Wade should not be an option."

Why? Because you favor legalized abortion? That's a bad way to interpret the Constitution.

Roe is not supporsed to be about whether one is for or against abortion. It is supposed to be about whether the Constitution prohibits states from preventing abortions. As a matter of Constitutional law, Roe is an awful decision because it invents a right that never existed and is nowhere in the Constitution, and a right which for 200 years no one thought was in the Constitution.

You also said: "However, I do believe we can and should revisit our abortion laws from time to time."

I agree that abortion laws should be revisited from time to time. That's what happens in a democracy. But this is precisely what Roe prevents the state and federal legislatures from doing!

You also said: "As civilized people, we need to ensure that, while those laws still protect women's right to choose, they also consider new medical and scientific discoveries about fetal pain and stages of development."

Look. Let's get rid of that "civilized people" language that dismisses the views of prior generations. Self-proclaimed "civilized people" have also given this country slavery, segregation, and the interrment of over 100,000 Japanese during World War II. The latter two were given us by "civilized people" on the Supreme Court.

In a Constitutional Democracy, the majority gets to imposes the laws it wants so long as they are consistent with the Constitution. Writing new rights into the Constitution does not further Democracy, it undermines it. This is because it means that the rights that are explicit in the Constitution will be that much easier to take away, and thus are not real protections in the first place. And instead of requiring a super-majority to amend the Constitution, all it will take is 5 Supreme Court Justices who think they are more "civilized" than the rest of us.

If you really want to debate The Beginning of Human Life (the title of this blog), you should oppose Roe v. Wade. It is Roe that is currently preventing society from engaging in that debate and from reflecting the conclusions from the debate into the law.
 
Will, you are correct that the right to an abortion was never in the Constitution. Have you ever considered that it may well have been if there had been any women involved with writing it? Have you considered that although women in this country could stand for election as early as 1788, they did not get the right to vote until 1920? Have you considered the number of women and young girls who died horrible deaths because there was no such thing as legalized abortion? Have you considered that no matter how open minded, no matter how sympathetic to a woman's plight a man might be, nature has ensured that that man can never be empathetic?

I disagree that Roe prevents us from revisiting abortion laws. Unlike more radical feminist thinking, I would like to see an end to third-trimester abortions. The only exception would be if the mother faced almost-certain death. Since there would be room for abuse of this restriction, a second medical opinion should be required.

I continue to have hope for "civilized people," althought that is becoming harder to maintain. Civilization is certainly an evolutionary concept, and I would think that our idea of "civilized people" is more, well, civilized, than that of our ancestors. It is distressing to me that our generation of civilized people has not evolved beyond capital punishment, war, the abuse of animals....

I fail to see how writing new rights into the Constituion leads inevitably to making it easier to remove rights. (Although under the so-called Patriot Act, it's already become too easy to remove some of those rights.)

I think we can still debate the beginning of human life with Roe on the books. It is just that debate that may lead to its being overthrown. Whether that would be "a good witch or a bad witch" is as open to debate as ever.
 
"[Y]ou are correct that the right to an abortion was never in the Constitution."

This admission alone proves that Roe is bad Constitutional law. The task of interpreting the Constitution is not to determine what the Constitution should have said or what it would have said (such as if women were allowed to vote).

The Constitution specifies how it is to be amended (and you have admitted that that it what Roe did), and it does not give a majority of the Supreme Court this power. No, the Constitution has a very difficult amendment process which requires 2/3 of Congress to approve an Amendment as well as have it ratified by 3/4 of the states.

The purpose of making the amendment process difficult is so that the rights enumerated in the Constitution cannot be taken away. When the Supreme Court views the Constitution as a "living Constitution" it can very easily take away one's rights. In Plessy v. Ferguson, the Court authorized segregation despite the Equal Protection Clause of the 14th Amendment. In Korematsu, the Court authorized the interrment of over 100,000 Japanese without Due Process of Law. In Roe, the Court took away the rights of the unborn as they determined that they were not persons under the Constitution. Just last week, the liberal justices of the Court ruled obliterated the meaning of the 5th Amendment Takings Clause's "public use" requirement when it ruled that local governments may take one's home by eminent domain in order to further "private" economic development.

Regarding your other questions (I consider the above to answered your first question), at the time Roe was enacted, nothing was preventing women from voting to allow legalized abortion, and in states like New York and California it had already happened. A recent NARAL survey determined that if Roe v. Wade were overturned today, 18 states would outlaw abortion in most circumstances. One of the reasons this is the case is because many women oppose legalized abortion. In fact, a large number of men support abortion precisely because it allows them to use women for sex and not have to deal with the consequences.

"Have you considered the number of women and young girls who died horrible deaths because there was no such thing as legalized abortion?"

But this question is irrelevant to the issue of whether Roe v. Wade is good constitutional law, and that is the point you addressed in your post and which I am rebutting.

"I disagree that Roe prevents us from revisiting abortion laws. Unlike more radical feminist thinking, I would like to see an end to third-trimester abortions. The only exception would be if the mother faced almost-certain death."

But the Supreme Court under Roe, Planned Parenthood, and Carhart disagrees with you on this point. No abortion may be prevented in this country under any federal or state law unless there is an exception to save the life and health of the mother. The abortions that you would outlaw may not be outlawed until Roe and its progeny are overturned.

One Roe is gone, the people will be able to outlaw abortion completely, outlaw it with exceptions for the life of the mother or for rape and incest, or outlaw it in the third trimester, etc. But until Roe is overturned, the nation's abortion law will remain what the Supreme Court says it is and it will not reflect the consensus of American men and women.
 
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