Religious Views vs. Secular Views

Elizabeth Dale edale1 at
Sun Oct 9 14:31:33 PDT 2005

Well I am saddened by the apparent disagreement among the White Sox fans on
the list, but probably given the team's storied history we should expect no
I grant you, we are denied some privileges that some would argue fall under
the rubric of liberty, like assisted suicide perhaps, because they are not
deemed fundamental. But I'd argue that in those cases the judgment that a
particular activity or privilege was not fundamental rested, in large part,
on the determination that they also implicated actions that we deem wrong --
suicide is historically viewed as self murder after all, and is still
generally frowned on. In addition, there is serious concern among many
opponents of assisted suicide that it would enable doctors or unscrupulous
relatives to force people to chose to die  So the assisted suicide laws are
often justified as being intended to protect the life of the person who
seeks to commit suicide. That may be dubious logic, it may be an outcome
that can be achieved more economically by simply regulating assisted
suicide. But it is the logic, and it is a logic that rests, ultimately, on
the protection of the right to life. So I think the assisted suicide example
demonstrates that we always need something else to justify the conclusion
that it is not fundamental enough to consider it entitled to protection. 
And I doubt the argument that abortion is "just" an elective medical
procedure is enough to meet that requirement. We may regulate some elective
medical procedures, but I'm willing to bet we justify those regulations
because they implicate some other right or some other moral issue we
consider significant enough to trump the invasion of privacy (which even
John Roberts agrees is tied somehow to liberty) involved in limiting medical
decisions. We may regulate the medical decisions by minors because of our
interest in protecting parental authority over minor children. We may
regulate doctors and require them to be licensed to perform certain acts,
but we do so because we want to protect the patient from the harm that we
fear would result from inexpert medical treatment. We may regulate the sale
of drugs, and require they be dispensed only with a prescription, but we do
so because we are trying to protect people from addiction or the harm that
might result from improper use of the drug. And so on.
And in those cases, where we do regulate medical procedures, we do not, to
the best of my knowledge, regulate to the point of elimination. I'm not
persuaded that government can do so, in fact, I would be startled if the
country was not outraged if we began to regulate elective medical procedures
unless there were some other interest that was being protected by doing so.
Regulation of that sort smacks too much of the sort of threats popularly
believed to be posed by socialized medicine systems, or worse. I would guess
that there was a fairly broad consensus in the US that medical decisions
were personal decisions that were at the heart of what privacy protects. And
I think that's right. Why should government be able to decide a person can't
have a medical procedure? Especially a medical procedure, like abortion,
that does implicate the sort of family related decisions that are given
constitutional protections by Griswold and related cases?   
But even granting, which I do not, the idea that the state or federal
government can as a constitutional matter pass laws that significantly
restrict decisions to have elective surgery, that would not bar all
abortions, since some (to protect the life of the mother, in cases of rape
or incest) are elective in any legitimate sense of the term.  I think as a
practical matter that other abortions might also evade the elective
category, though I concede that reasonable people will probably differ about
where that line should be drawn. As a practical matter, it would probably
simply prompt creative arguments by doctors to try to persuade that this
particular abortion is not elective.  And that probably means rich women
would have abortions, while poor women cannot. And that raises another
collection of issues.
But the small part of me that became a Braves fan when I moved south of the
Mason-Dixon line has to stop this and go watch the rest of that game. 

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 
352-393-0271 ex 262 



From: JFN [mailto:jfnbl at] 
Sent: Sunday, October 09, 2005 4:29 PM
To: Elizabeth Dale; CONLAWPROF at
Subject: RE: Religious Views vs. Secular Views

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

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


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
352-393-0271 ex 262



From: conlawprof-bounces at
[mailto:conlawprof-bounces at] On Behalf Of JFN
Sent: Friday, October 07, 2005 10:38 PM
To: Rick Duncan; CONLAWPROF at
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

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

John Noble

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