Religious Views vs. Secular Views

[JFN]

I think Rick is in mourning and I can only speak for one White Sox 
fan. You can fail to discover the right to an abortion in the 14th 
Amendment without discovering an off-setting or overwhelming right to 
life on behalf of the unborn. We are denied liberties, such as 
assisted suicide, because those liberties are not held fundamental, 
without regard to whether their exercise would infringe another 
person's fundamental rights. You can characterize abortion as an 
elective medical procedure, rather than "violently taking the life of 
a living human being," and still conclude that the liberty interest 
in electing the procedure is not a fundamental right protected by the 
14th Amendment.

John Noble

At 2:20 PM -0400 10/8/05, Elizabeth Dale wrote:
>I'm not sure I follow the logic of Rick's and (apparently 
>John's) first approach, below. If the court is saying there is no 
>liberty interest that protects "violently taking the life of a 
>living human being in the womb" how is that not, implicitly if not 
>explicitly, a determination that a fetus is a person and thus 
>protected by the Fourteenth Amendment?
>
>I'm not sure I see the distinction between a "living human being" 
>and a "person" as anything other than a fairly unconvincing example 
>of legal hair splitting (particularly in light of case law that says 
>a corporation, which is neither living nor a human, is a person 
>within the Fourteenth Amendment).
>
>If a "living human being" is not a "legal person," we have serious 
>problems with the meaning of legal personhood (I can see some 
>interesting problems with right to die cases raised by this sort of 
>distinction, just when and how does one shift from being a legal 
>person with a right to life to a living human being without the 
>right to life?). And I have to say, if I believed that life began at 
>conception, I would not accept the logic that allowed the states to 
>decide, one by one, whether they wished to outlaw abortion.
>
>And I am also not sure I understand the grounds used to deny the 
>liberty interest in this case, if not on the grounds that the 
>abortion that harms "a living human being" deprives a "person" of a 
>right to life. Or, to put it another way, if the argument is that 
>the woman does not have a liberty interest that extends to abortion 
>(not because a person is being aborted, but because of something 
>else), what is that something else?  Is it that the act is violent? 
>I grant you that we do not obviously have a liberty interest in 
>acting violently, but presumably the emphasis on violence means we 
>can (perhaps must?) allow abortions at any stage of the pregnancy, 
>if we come up with a manner that is sufficiently non-violent (the 
>abortion equivalent of lethal injection).
>
>Or is the idea in possibility number one below that a woman does not 
>have the ability to make judgments that deprive another living thing 
>of life? Surely not, we all of us, male and female, young and old, 
>kill living things, or make judgments that require someone else to 
>kill living things for us, with some regularity -- plants, pets, 
>animals, etc. So unless this is an argument against the destruction 
>of any form of life, an argument that would quickly become a defense 
>of pacifism and total vegetarianism, there has to be some other 
>justification involved here that I am not seeing.
>
>
>
>Elizabeth Dale
>
>Associate Professor, US Legal History, Department of History,
>Affiliate Professor of Legal History, Levin College of Law
>
>University of Florida
>PO Box 17320
>Gainesville, Florida 32611
>
>edale at history.ufl.edu
><http://plaza.ufl.edu/edale>http://plaza.ufl.edu/edale
>352-393-0271 ex 262
>
>
>
>
>From: conlawprof-bounces at lists.ucla.edu 
>[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of JFN
>Sent: Friday, October 07, 2005 10:38 PM
>To: Rick Duncan; CONLAWPROF at lists.ucla.edu
>Subject: Re: Religious Views vs. Secular Views
>
>At 9:08 AM -0700 10/7/05, Rick Duncan wrote:
>
>>One further point on this secular/religious/legal personhood question.
>>
>>
>>
>>There are two ways to overrule Roe, one going much further than the other.
>>
>>
>>
>>One way, is to say that SDP, whatever it might extend to, does not 
>>include a liberty to violently take the life of a living human 
>>being in the womb. This approach does not require the Court to hold 
>>that the fetus is a person under the 14th. All the Court need do is 
>>deny that an abortion liberty exists, and this would send the issue 
>>back to state legislatures and Congress to decide whether to 
>>prohibit abortion. Most social conservatives (including, perhaps, 
>>Miers) would take this approach to reversing Roe.
>>
>
>There are social liberals (including me) who would agree, and 
>welcome the return of state regulation and our political right to 
>decide whether it's a medical procedure or a violent crime. 
>Abortions would remain available in New York and bus tickets would 
>remain available in Mississippi.
>
>>
>>
>>The second approach is to say that not only is there no SDP liberty 
>>to abort, but what is more the fetus is a  constitutional "person" 
>>whose equal right to life is explicitly protecetd by the 14th 
>>Amendment. This would be a way to constitutionalize the right to 
>>life and require states to protect the unborn from violent death in 
>>abortion clinics. I would go this way, myself, and I would get 
>>there through a secular process of giving the status of legal 
>>personhood an inclusive interpretation.
>>
>>
>>
>
>What would equal protection of the unborn person entail? Let's 
>suppose that equal protection requires the treatment of abortion as 
>felony murder. The partial birth abortion law that caps the 
>punishment of the doctor at 2 years imprisonment, absolves the 
>mother of complicity, and allows an exception to protect the life of 
>the mother, plainly denies equal protection as against the law that 
>deters the contract killing of a 5 year-old with the possible 
>execution of both contractor and killer. But as you frame it -- "to 
>protect the unborn from violent death" -- the right is as 
>fundamental as it can be, and abortion is premeditated murder, and 
>we won't have to lock up any mothers because we will have deterred 
>the doctors, and the rich will still have access to abortions in 
>Canada.
>
>But doesn't equal protection require that the state protect the 
>unborn child against more than just premeditated murder? When a 
>mother's behavior threatens the life of her 5 year-old child, the 
>state terminates custody and assumes the duty to sustain life. In 
>the case of an unborn child, doesn't equal protection require the 
>state to not only recognize a legal obligation to sustain the unborn 
>life, but to impose that duty upon an unwilling woman, and to 
>regulate her behavior to enforce it? A drunk presents a more 
>immediate and provable threat to the physical health and welfare of 
>her unborn child than to the children who learn to cope with her 
>psychological abuse.
>
>I don't know how you would define the scope of the unborn person's 
>right to life, but I expect that neither of us would be happy after 
>the Supreme Court swapped the invented SDP right to an abortion for 
>the unborn child's textually more plausible EP right to life, and 
>then began legislating its contours on review of state pregnancy 
>regulations -- according to trimesters perhaps.
>
>John Noble
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