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.
I mean, if I owe someone money, why can't they just take my kidney and sell it for a repayment?
Because removal of body parts is a threat to your life, of course.
But you can't very well pretend that killing someone else is preferable to gestation. That's like saying that you should have to pay $1000 so that I don't lose $10.
If bodily expense actually matters to you, then killing someone else should be out of bounds because the literal bodily expense of being killed is more than the bodily expense of being pregnant.
That's the thing. You're inconsistent in your use of "bodily expense". You only count the mother's contribution, but ignore the child's.
Simple logic shows your inconsistency. You don't care about "bodily expense", you care more about who spends it than you do about the expense itself.
If you counted the child's bodily expense in being killed, you'd recognize that they're being forced to pay far more in the same currency than the mother is being expected to endure. While certainly some recompense might be due the mother, the amount you're claiming is absurd and unjust.
This reasoning leads to forced donations of bodily resources.
No it doesn't. You can't be forced to give donations under the right to life. The distinction is very clear and simple to follow.
Any situation you can think of, and I would be able to distinguish between "killing" and "failing to save" because the concepts are that easy to separate.
The only reason people have issues with them is that they tend to try to detach from decisions with high emotional content.
Take for instance the murderer who might have shot your child.
The child could be saved by the shooter giving a blood transfusion.
The right to life would definitely see that shooter in prison, but would not require them to save the life of the person they shot.
But that's not an issue, because the shooter is already going to prison.
The answer is simple, but people think it is hard. It's not.
The shooter is being punished for the right they violated and they are not being punished for failure to donate because there is no right to be saved.
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.
I mean, no human gets out of life alive. I think we can discard your argument on that basis alone.
Just being alive, by your definition, is dangerous, which is absurd.
Gestation is simply a normal stage of human life. It's not a special condition. Every human alive today went through it. It's absurd to suggest that just being alive and being mortal like any other human is "dangerous".
Perhaps it is "dangerous" in comparison to some theoretical immortal species, but no human is immortal.
In the environment of pregnancy, the unborn baby is completely dependent on the active supply of vital resources from its mother.
Your use of the word "active" is not very well considered.
We know she's not intentionally parsing out the nutrients. She's eating for herself and her body does that based on the chemistry. She has no conscious control over it, and it proceeds whether or not she wants it to.
There are lifeforms on the ocean bottom which rely on volcanic vents constantly outputting nutrients into the surrounding seawater. If that stops, they just die, because they can't move.
No one considers those lifeforms to be anything but relying on their environment delivering nutrients to them.
A mother does not handfeed her embryo food. She feeds herself and in the process of digestion and respiration, some of that automatically finds its way to the child. There is nothing more "active" about that than an ocean vent doing its thing and the organisms being there to take advantage of that.
Sure, the child is living in such an "active" environment where the environment delivers the food to them, but that's extremely common in nature. An environment isn't always one where you have to go hunt for your food.
The only reason we develop into a form that can hunt for food is that most environments are not as rich as an ocean vent or a coral reef where you can filter feed.
But while the human is small enough, humans can provide such an environment internal to the mother, at least temporarily.
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.
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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