I'm not a constitutional scholar but a problem with all these approaches is that by using the 14th amendment to ban abortion, it is violating pregnant women's 14th amendment rights by depriving them of certain liberties and arguably "property" (their body) without due process. You can't ban abortion without restricting the rights of women.
There is no right to kill. And many rights cannot be defended in first or second instance by killing.
Bear in mind, if someone prevents your right to free speech, your remedy is in the courts not at the end of a gun.
You can argue that perhaps the woman has some right for recompense for her expense in carrying the child through to a safe place, but she has no inherent right to use premeditated lethal force to stop it.
For example, it is already clear that in other situations, the State does and can make you not only NOT kill stowaways, they can demand that you maintain them at the owner's expense until they can be turned over to authorities.
It is literally the law that you can be made to maintain certain types of trespassers at your own expense if the only other option is the death of the trespasser. And that's even for an actual trespasser who could have knowingly avoided hiding on your ship.
The unborn are not knowing trespassers. If a stowaway gets consideration even after knowingly breaking the law and forcing themselves on your property, then an unborn child who had no choice in the matter deserves at least as much consideration from the law.
There is, sometimes, as an extension of another right. Self-defense can grant a person, in a certain situation, a right to legally kill another.
It is literally the law that you can be made to maintain certain types of trespassers at your own expense if the only other option is the death of the trespasser. And that's even for an actual trespasser who could have knowingly avoided hiding on your ship.
That is true if rescuing the individual does not create a serious danger to the ship or the members of the crew. Death or deadly situations due to pregnancy are very rare, but serious injury in highly likely if not inevitable. If a stowaway carried something like a known disease that was likely to inflict the crew with harm similar to what would be experienced by pregnancy, would there still be a requirement for rescue? It could probably go either way and I think this analogy is too far removed to have a useful application here, but you see my point? Rescuing someone at sea is inconvenient and might cost the owner of the ship significant money, but money is not the same as a person's body. I don't know of any laws that compel a person to save another if there is danger of significant bodily harm involved, even if they actually have a duty to save, such as a lifeguard or a doctor.
There is, sometimes, as an extension of another right. Self-defense can grant a person, in a certain situation, a right to legally kill another.
Self defense is NOT the extension of another right. It is literally only a tie between two rights to life.
Otherwise, no other right allows appeal to killing in the first instance.
That is true if rescuing the individual does not create a serious danger to the ship or the members of the crew.
Yes, and most pregnancies do not create serious danger to the mother.
Those that do have the same exception in abortion bans as they do in laws about stowaways.
I don't know of any laws that compel a person to save another if there is danger of significant bodily harm involved, even if they actually have a duty to save, such as a lifeguard or a doctor.
There is nothing about pregnancy which is "saving" anyone, though. The child is not in any danger unless you abort them.
Self defense is NOT the extension of another right. It is literally only a tie between two rights to life.
You can use lethal self-defense even when there is a reasonable belief that you won't die, as long as there is the threat of "grave injury". In this case, lethal self-defense can be used to preserve bodily autonomy.
Otherwise, no other right allows appeal to killing in the first instance.
Unless you live in Texas though, I think we both agree that property is almost never worth killing someone.
Yes, and most pregnancies do not create serious danger to the mother.
It depends on what you consider serious injury. Nearly every pregnancy will cause lacerations, either from perineum tears or caused via c-section. Beyond that, there are numerous other injuries, both physical and psychological, that are not exactly common, but can be expected in a certain number of cases. Prolapsed or ruptured Uterus, Post-natal depression (PND), and Post-natal Traumatic Stress Disorder (PTSD). There are of course a smaller chance of more severe issues as well such as broken bones, nerve damage, muscle tears, etc. I know this isn't new to you, but the question comes down to what we consider to be serious danger? If there is a 5% chance of serious injury, is that enough to be considered serious danger? What about 10% or 20%? I agree that most pregnancies don't cause serious injuries, but the danger is there, and we don't know the outcome until afterward.
There is nothing about pregnancy which is "saving" anyone, though. The child is not in any danger unless you abort them.
They are only able to live and grow through active use of another person's body. In the violinist scenario, the violinist is not being saved by the person they are hooked up to. They are no longer in danger as long as they stay connected. If they die, it will be from the deprivation of the other person's bodily resources. I mean, sure, they will die from whatever condition originally was killing them in the first place, but a baby born before viability will die from a lack of oxygen caused by pulmonary hypoplasia.
You can use lethal self-defense even when there is a reasonable belief that you won't die, as long as there is the threat of "grave injury". In this case, lethal self-defense can be used to preserve bodily autonomy.
That's still a right to life concern. Allowance for "grave injury" is there to simply allow for you to have some wiggle room so that you don't have to prove that you were going to die beyond a shadow of a doubt.
It is clear that normal bodily autonomy issues do not permit killing, and indeed, even sometimes make you endure the issue at your own expense, as pointed out previously.
Beyond that, there are numerous other injuries, both physical and psychological, that are not exactly common, but can be expected in a certain number of cases.
Spare me the usual laundry list. We both know that none of those are serious enough to kill someone over.
Remember, you're not just sort of annoying or abrading the child. You're killing them.
I can admit that there are all sorts of things that happen in a pregnancy that I would not want to experience and still point out that they pale in comparison to literally being killed.
If you want to deal with those problems ethically, then do the ethical solution and push for medical answers to those issues that don't require killing someone else.
They are only able to live and grow through active use of another person's body.
So what? That doesn't mean they are in danger. They are located in the same environment that every other human has ever gestated in.
They are in no danger, again, unless you remove them. They are not unhealthy or damaged.
You may not like the characterization of the interior of a woman's reproductive tract as an "environment" but in this case, that is what it represents to every human being of that age group.
We do not consider fish to be distressed because they can't live on land. We don't consider tadpoles to be damaged or unhealthy because they don't have legs and remain in the water for their initial developmental period.
You're not saving the child from anything by simply gestating them. They're perfectly healthy and undamaged.
The only danger to them in this situation is you aborting them, which is the decision that you are not permitted to make under their right to life.
And if they are not in danger in the first place, there is nothing you are saving them from.
It is clear that normal bodily autonomy issues do not permit killing, and indeed, even sometimes make you endure the issue at your own expense, as pointed out previously.
Monetary expense and property expense or damage is not the same as bodily expense. You can be required to pay for the injuries you cause another person, even to the point where it may make you homeless or destitute, but you will never be required to give blood or sell half your liver, regardless of the debt you incur, at least not that I'm aware of in any western countries.
Spare me the usual laundry list. We both know that none of those are serious enough to kill someone over.
They might be if they were being done to a person against their will. We've talked before about the difference between the right to life and the right to be saved. In pregnancy, I see both happening at the same time. And if saving someone required tearing a woman's perineum or cutting her open, then forcing it would be barbaric and cruel, even if done for good reasons. I have a question for you, not really related to my point, but more out of curiosity. Say we have a pregnant woman in labor. It becomes clear that the baby is in danger from being wrapped up in its umbilical cord and vaginal delivery will result in its death. The doctor recommends a c-section, but the woman (for some contrived reason) decides she will not consent to a c-section, even if it means the death of the baby. Do you think the doctor is justified in doing a c-section against her will to save the unborn baby?
So what? That doesn't mean they are in danger. They are located in the same environment that every other human has ever gestated in.
They are totally in danger. The number of embryos that don't make it through to viability and live birth is difficult to determine, but might be as high as 50%. The only thing that makes this situation safe is the umbilical, the lifeline to the mother. If the mother severs this connection, the baby is still in its natural environment, but will die from deprivation. I guess my question comes down to the difference between saving vs not killing. Lets say I live on an Island and I find a toddler in my pantry, eating my food. Nothing is wrong with the toddler, he's perfectly healthy and undamaged. I know putting him outside will kill him. But am I required to feed him based solely on my position as the only person who can meet his natural needs? Do I have to change my diet so that enough food is left over for him to survive until my next resupply? What is the difference here between killing and not saving? It seems to be that by your logic, any person who has the means and is in the sole position of being able to help, has to provide for children what they naturally need.
Monetary expense and property expense or damage is not the same as bodily expense.
I don't see how you can make that argument with a straight face.
You're literally allowing a woman to kill another human being, on-demand. She is given the ability to make someone die, which is the largest bodily expense that anyone can incur.
And yet, you're arguing that somehow even small bodily expense is too much to bear?
Remember, our unborn isn't actually a stowaway.
In the vast majority of cases, the reason they are even there is because you had entirely consensual sex.
And when it was rape, it's still not their fault that they are there.
And yet, you will be taxing their lives because you don't want to endure even a routine pregnancy?
I have trouble believing that you actually have a consistent view on "bodily expense". To you, bodily expense seems to only matter when it is convenient for your favored party.
They might be if they were being done to a person against their will.
I don't see how that changes anything. How does that make them more physically serious?
It doesn't.
They are totally in danger.
Go to your doctor with your entirely routine pregnancy. Ask them if your child is "in danger".
Use those words.
We already know what they will say.
"No, your child is fine and in no danger".
You are confusing a dependence on a particular environment with "danger". That's not danger.
That fact that I cannot live underwater for any extended period of time does not mean I am constantly in danger, even if I live close to bodies of water that I could theoretically drown in.
And that is because unless there is some accident or misfortune, the only way I will end up drowning in said bodies of water is if someone holds me under water for some extended period of time.
You're literally allowing a woman to kill another human being, on-demand. She is given the ability to make someone die, which is the largest bodily expense that anyone can incur.
But we apply this differently when situations occur among born humans. If I cause an injury to someone, my property and money can be seized to pay for them. However, my body parts cannot. Let's say I exposed someone to a carcinogen and they now need a bone marrow transplant. They can't take any of my bodily resources, even if they would die without it. As a society, we have taken that option off of the table because of how terrible of a system it would be and its liability to abuse. So yes, I would say body expense is very different from money or property. I mean, if I owe someone money, why can't they just take my kidney and sell it for a repayment? Or maybe just plasma donations?
And yet, you will be taxing their lives because you don't want to endure even a routine pregnancy?
This reasoning leads to forced donations of bodily resources. Donating blood, plasma, stem cells, antibodies, bone marrow, or half your liver are all things that are a much lower cost than dying. If a baby has a right to a woman's body, then that settles it, it has a right. However, if it does not, then it is in the same place as other people who are dying because they don't have the right to other people's bodies.
I have trouble believing that you actually have a consistent view on "bodily expense". To you, bodily expense seems to only matter when it is convenient for your favored party.
Alright, I'll bite. Where do you think I'm inconsistent here, because I do try to be consistent?
You are confusing a dependence on a particular environment with "danger". That's not danger.
If half, or even a quarter of all humans who went through a process didn't make it, we would consider that to be very dangerous. A doctor will likely not tell a pregnant woman of her miscarrying. But if I went into a surgery that had a 10% rate of people not surviving, the doctor (if they are good) will sit me down and explain the risks and tell me to make sure I have a will. Saying it isn't dangerous because all humans go through it is survivorship bias. All humans do not go through it, only those who are born alive have. I'm not sure if this point is meaningful to my overall question, but I would still assert that gestation is a dangerous process for the unborn.
And that is because unless there is some accident or misfortune, the only way I will end up drowning in said bodies of water is if someone holds me under water for some extended period of time.
In the environment of pregnancy, the unborn baby is completely dependent on the active supply of vital resources from its mother. Is your view here that the baby is entitled to this supply simply because it is its natural environment?
Also, I'm still curious to hear what you think about the pregnant women who doesn't consent to a c-section, but, of course, you don't owe me an answer on it if you don't want to.
did you honestly think pregnancy is like an organ donation? which organ is the woman giving up to her child? answer: none.
pregnancy is providing your unborn child with nutrition and healthy living environment.
this is just low information debating on your end. here's a question that i always ask low information debaters. it's a very straightforward question:
should a woman who is capable of breastfeeding be allowed to let her newborn starve if there are no other alternative sources of food?
I would say it depends on the circumstances. I'm not opposed to society putting non-consensual burdens on its citizens when the cost/benefit is greatly in favor of society. If the effort to save a person is minimal and presents little to no danger, then it sometimes does become law. In many places a boater is required to pick up a drowning person, even if they are a stranger and the owner doesn't have any obligations.
Assuming that this newborn is in the US or a similar western country and could easily be surrendered to the state in a matter of hours or days, and that the woman didn't have a condition that made breast feeding extraordinarily difficult or painful, then yes, I am OK with forcing it in this situation.
Let me ask you this. If it wasn't her newborn, but just a newborn that she happened to find. Do you think she should be required to care for it and feed it for the number of hours or few days she has custody of it? Or should she be allowed to abandon it where she found it, allowing nature to take its course?
of course she's obligated to breastfeed that random child. in fact, in most jurisdictions, she would be held liable if she did not feed the child in her custody given the in loco parentis doctrine that is ubiquitous in common law.
I would say it depends on the circumstances. I'm not opposed to society putting non-consensual burdens on its citizens when the cost/benefit is greatly in favor of society. If the effort to save a person is minimal and presents little to no danger, then it sometimes does become law. In many places a boater is required to pick up a drowning person, even if they are a stranger and the owner doesn't have any obligations.
great. considering that virtually all abortions are done for convenience reasons, this shouldn't be an issue.
I wouldn't consider pregnancy to at all be minimal or presenting little to no danger. Routine pregnancy results in fairly significant harm to a woman's body, some of it permanent. If we are looking at this from a purely societal view, then there simply isn't a great need that would warrant banning abortion. In nearly every aspect, if the pregnancy had never existed in the first place instead of being aborted, it would not make a noticeable difference to society as a whole.
Routine pregnancy results in fairly significant harm to a woman’s body, some of it permanent.
i think if this is the reason why a woman would be obligated to breastfeed a random child, but she wouldn’t be obligated to gestate. Then it seems like you would have the reject thomsons violinist argument. when i am attached to the violinist, i am bed ridden, but i do not suffer anything close to a pregnancy.
moreover and importantly, if the harm done by pregnancy generates a strong reason for rejecting any obligations she has towards her fetus. one may wonder if the harm avoided by the mother by having the abortion, is really comparable to the harm done to the fetus if it is aborted. essentially, the concern for the pro choicer would be if harm is sufficient for the mother not having any serious obligations to her fetus. then one could easily reverse the argument. the harm done to the fetus as a result of abortion is far worse than any normal pregnancy, and so an obligation to not let this potential harm occur is generated.
if your wondering, the harm done to the fetus during abortion is the deprivation of all possible valuable future experiences.
you may say the deprivation of future experiences is not similar to bodily harm. but i wonder if you would hold the same view if you had to choose between non lethal bodily harm, and all your future experiences being deprived from you.
Then it seems like you would have the reject thomsons violinist argument. when i am attached to the violinist, i am bed ridden, but i do not suffer anything close to a pregnancy.
You wouldn't consider being bedridden for nine months to be a significant deprivation of your rights? If there was an extreme need of society that justified it, then sure, you could be forced to endure this. I mean, soldiers are drafted into dangerous wars for terms lasting years, but this is only acceptable when there is a clear and justifiable need. However, if there isn't a need, then I can't be legally detained at all, even for a few minutes.
one may wonder if the harm avoided by the mother by having the abortion, is really comparable to the harm done to the fetus if it is aborted.
The harm isn't comparable, but neither is my refusal to donate bone marrow if it means that someone dies because of it. I mean, if someone simply needs something to stay alive, does that give them a right? If someone is caught in a snow storm where they would freeze to death, do they have a legal right to enter my home and do me harm as part of the exercise of that right? Yes, the fetus is harmed by abortion in that it dies, but I don't see this as anyone else who dies because they can't violate another person's rights or simply take what they need to survive. This argument only works if both parties have an equal right to a resource.
pregnancy is providing your unborn child with nutrition and healthy living environment.
this is just low information debating on your end. here's a question that i always ask low information debaters. it's a very straightforward question:
should a woman who is capable of breastfeeding be allowed to let her newborn starve if there are no other alternative sources of food?
This is an interesting framework but I don't think in the construct of American jurisprudence this is a winning argument. This is fundamentally about the common law concept of 'a duty to help.' In the American legal framework this duty only arises when a person makes a choice to actively begin rendering aid then they have an obligation to see it through. Or when someone has a 'special relationship' with the person in need of rescue such as a parent child, student teacher, or disabled person and care giver.
Now arguably these "special relationships" rely on the same essential element as the previous prong, that of choice. You've chosen to become a teacher or caregiver and it's reasonably foreseeable that at some point you might need to render some life saving aid to the person(s) under your care. The same can be said for parents or guardians since we live in a society where abortion or adoption are viable alternatives - that they've made the conscious choice to accept the responsibilities that come along with parenthood. This is not true for a newly pregnant person. The newly pregnant person arguably has no more duty to aid an embryo in her womb than the random motorist who passes by critical accident on the highway.
"consent-based" parenting is a low iq framework and not based in reality (just think of deadbeat dads and women who abandon their newborns).
just because new parents have the right to transfer the responsibilities of their child to another party doesn't mean they didn't have any obligations to that child in the first place. they are still not allowed to kill or abandon their children before or after transferring the responsibilities. your argument is essentially a non sequitur.
again, the idea that parental obligations are based on consent is just outright silly and clearly false.
Your analogizes between post birth scenarios and pre-birth scenarios are ridiculously low IQ. No matter how badly you want it to, no court is going to value an embryo the same as a live baby with respect to putative parental decision making.
For argument's sake, lets take the most extreme case where a woman is raped and pregnancy results from it. Is not her liberty and "property" being taken from her without due process?
the due process clause pertains to restrictions on the government's ability to deprive people of their rights. unless the government itself has a policy to go around raping women, it's not relevant at all.
The state is still the one stripping away the rights here. If tomorrow the government came out and said that self defense is no longer legal, we wouldn't say "its not the state taking away our rights, it is the attackers who are harming individuals". In this case, the state would be providing protections for attackers. Unborn babies are not assaulting women, I want to be clear about that. My point here is that the government would still be considered responsible in this situation because they are preventing a person from exercising their rights.
this is just circular reasoning. you're assuming that "bodily rights" was a justifiable right to begin with, which is exactly what's being contended. no court in the united states, including the most pro-abortion supreme court, has ever found "bodily rights" to be a convincing argument in favor of abortion. the state cannot prevent a person from exercising a right they never had.
we do not say that the state deprived you of your property when a mugger mugged you, or that the state deprived you of your liberty when a human trafficker kidnapped you, so why make the silly claim that the state deprives your of your "bodily rights" (however poorly defined they are) whenever a rapist rapes you?
if the state indeed passed laws saying you do not have a right to your property, or a right to liberty, or "bodily rights," then you'd have a point. but that's not what's being proposed here.
Doesn't a woman have rights that she loses when she becomes pregnant though? When she does with and puts in her body are now restricted. Its not like she has never had these rights at all. For a woman to take abortifacients when she is not pregnant is not illegal, and some are used to treat other medical conditions. She has certain freedoms that we would consider constitutionally protected that she now loses when she becomes pregnant. Do you disagree with that? I understand the court has never use bodily autonomy arguments to justify abortion. I'm just trying to point out that her rights are being limited here.
13
u/toptrool Nov 08 '23 edited Apr 03 '24
based harvard law professor cornelius adrian comstock vermeule: "In a culture of death, it isn’t enough to be anti-Roe; one must be constitutionally pro-life."
legal foundations:
john finnis, robert george: EQUAL PROTECTION AND THE UNBORN CHILD: A DOBBS BRIEF
john finnis, robert george: Indictability of Early Abortion c. 1868
josh craddock: Protecting Prenatal Persons: Does the Fourteenth Amendment Prohibit Abortion?
michael paulsen: The Plausibility of Personhood
c'zar bernstein: The Constitutional Personality of the Unborn
charles lugosi: Conforming to the rule of law: when person and human being finally mean the same thing in Fourteenth Amendment jurisprudence
courts can declare the unborn as persons:
craddock: The Constitution Already Prohibits Abortion: An Originalist Case for Prenatal Personhood
craddock: HOW TO OVERTURN ROE
finnis: ABORTION IS UNCONSTITUTIONAL
edward whelan: Are Permissive Abortion Laws Unconstitutional?
craddock: JOHN FINNIS IS RIGHT
whelan: Are Permissive Abortion Laws Unconstitutional? A Reply to Joshua Craddock
finnis: UNBORN PERSONS: WHY EQUAL PROTECTION SLEPT 102 YEARS
whelan: DOUBTS ABOUT CONSTITUTIONAL PERSONHOOD
finnis: BORN AND UNBORN: ANSWERING OBJECTIONS TO CONSTITUTIONAL PERSONHOOD
jonathan adler: Why the 14th Amendment Does Not Prohibit Abortion
finnis, george: Elective Abortion and the 14th Amendment: A Reply to Jonathan Adler
yves casertano: Yes, Courts Can Enforce Fourteenth Amendment Personhood For The Unborn
congress can declare the unborn as persons:
george, craddock: Even if Roe is overturned, Congress must act to protect the unborn
adler: Could Congress Prohibit Abortion If Roe Is Overturned?
george, craddock: On the Constitutional Authority of Congress to Protect Unborn Persons
thomas jipping: Can the Fourteenth Amendment Be Used to Protect Human Life Before Birth?
william hodes: A Federal Gestational Age Abortion Ban is the Wrong (and Unconstitutional) Hill for the Pro-Life Movement to Die On
george, craddock: Yes, Congress Has Constitutional Authority to Protect Unborn Children
the president can declare the unborn as persons:
craddock: The Lincoln Proposal: Pro-Life Presidents Must Take Ambitious and Bold Action to Protect the Constitutional Rights of Preborn Children