rape exception to abortion restrictions

[J. Noble]

I agree that it isn't particularly helpful -- I was only offering a 
different slant on the unhelpfulness of the law of rescue than the 
one Bobby offered. But there are only two parties on my lifeboat, 
which might sustain two -- by design, if not comfortably, without 
sacrifice, or by choice. Your variation adapts the analogy to the 
circumstance where child-bearing presents a threat to the life of the 
mother, which would not only vitiate any duty to rescue, but very 
arguably justify extinguishing the innocent threat as a matter of 
self-defense, as you point out.

Perhaps the discussion has strayed from constitutional principles, 
but both Talmudic scholarship and Common Law reflect understandings 
of Justice that are not wholly irrelevant to the interpretation of an 
"authoritative constitutional text" that is not authoritatively 
plain, and they are not at all at odds with the embrace of a "living" 
constitution.

John Noble

At 7:41 AM -0600 3/23/06, Howard Schweber wrote:
>John Noble's version of the lifeboat analogy, below, is false by 
>virtue of its employment of three rather than two parties.  To be a 
>useful analogy, the situation would have to be one in which a person 
>is perched on a raft capable of sustaining only one, and a second 
>person tries to pull him into the water in order to take his place. 
>Or perhaps the analogy might be someone perched halfway up a cliff, 
>with another, equally innocent climber hanging from his neck.  In 
>that situation, so far as I know, common law would not identify 
>either party as a criminal, regardless of who was victorious in the 
>struggle.  There is no situation in the common law in which one 
>person is required to suffer harm to themselves in order to secure 
>the interests of another.
>
>The analogies above, incidentally, are consistent with the rabbinic 
>attitude concerning abortion (the Hebrew biblical text does not 
>mention abortion, although in Exodus there is a passage requiring 
>payment of monetary damages for causing a miscarriage); in a 
>situation in which the welfare of the fetus and the welfare of the 
>pregnant women come into conflict, the fetus is considered a 
>"rodef," literally a "pursuer" after the life of the pregnant woman, 
>who is therefore entitled to an abortion as a matter of 
>self-defense.  Various (Orthodox) rabbinic authorities have extended 
>the idea of "rodef" to include a risk of psychological or emotional 
>harm, which applies to cases of rape and incest, although there is 
>disagreement among authorities over what degree of threatened harm 
>is required. 
>
>I am also unsure why the common law is relevant in any discussion of 
>constitutional principles, since the whole point of a common law 
>tradition is precisely that it does *not* include an authoritative 
>constitutional text!  The version of originalism that says that the 
>Constitution was designed to articulate common law principles as of 
>the time of the text's drafting rely on assuming a version of the 
>Framers as common lawyers who reject the basic principles of common 
>lawyering while creating a Constitution for the purpose of not 
>altering the law that was in place before the Constitution was 
>created. 
>
>And applied to the Fourteenth Amendment, of course, the argument 
>gets to be truly complicated.  I get quite dizzy trying to follow 
>that particular argument.  (Perhaps the XIVth Amendment should have 
>read "no state shall infringe upon any right that would have been 
>guaranteed against state intrusion by the common law of England as 
>applied in County ___ and as of  January 1st of the year 1791.")
>
>Howard Schweber
>Dept. of Political Science
>Affiliate Factuly: Law School, Legal Studies, Integrated Liberal Studies
>UW-Madison
>
>
>
>
>
>
>At 08:03 AM 3/23/2006 -0500, J. Noble wrote:
>
>>Or from another perspective ... however blameless the bystander, 
>>however much risk and suffering he confronts, however defensible 
>>and even understandable a refusal to rescue in some circumstance, 
>>the law does not in any circumstance countenance killing an 
>>innocent. If the law requires pulling a floater out of the water 
>>onto an overloaded life-raft only when there is absolutely no doubt 
>>that the floater is a person, the law might still forbid throwing 
>>any cargo overboard unless there is absolutely no doubt that the 
>>cargo is not a person. Whether anyone ever consented to sharing the 
>>lifeboat would probably be a red herring.
>>
>>John Noble
>>
>>At 6:36 AM -0500 3/23/06, RJLipkin at aol.com wrote:
>>
>>>         Although the invocation of the common-law of rescue might 
>>>be coherent, I do not believe it's at all plausible. The sui 
>>>generis character of pregnancy virtually precludes its 
>>>plausibility. In no other rescue example, as far as I am aware, 
>>>does the common law or the state require to use one's body--to 
>>>house the rescuee, supply it would nourishment, and generally live 
>>>off the body of the rescuer--for the rescue of another in the way 
>>>it would in the case of pregnancy. Further, applying the law of 
>>>rescue begs the question of the status of the unborn.  The law of 
>>>rescue requires, when it does require rescue, that there is 
>>>absolutely no doubt that the rescuee is a person.  Finally, the 
>>>notion of "consent" to sexual relations, especially in the context 
>>>of teenage sexual relations or abusive or even domineering 
>>>spouses, is more complex in the case of abortion than in the case 
>>>of rescue.
>>>
>>>Bobby
>>>
>>>Robert Justin Lipkin
>>>Professor of Law
>>>Widener University School of Law
>>>Delaware
>>>
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>>
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