Posted on 11/18/2008 12:56:20 PM PST by MeanWestTexan
A common refrain we all hear about abortion is “I don’t want to force my [generally religious] beliefs on another person.” This is a respectable position, at least to a point — after all, the United States enshrines freedom of religion in its very foundational documents and religious people — and irreligious people — are certainly free in the United States to believe as they want on the issue, answerable only to their Creator [or lack thereof].
And while we, as United States Citizens, are free to disagree on things religious, we do all concur (indeed are bound, as part of the social contract that is to be a United States Citizen to agree) that the United States Constitution and the protections thereof apply to all persons within our borders — even criminals and illegal entrants to use some of the harder examples.
Thus, instead of looking to religious sources, which is where this debate usually reaches impasse, let us look to the founding documents of the United States, and see if we can reach agreement on a purely secular level.
So, what do the founding documents of the United States say?
Of course, our Declaration of Independence begins with the promise “that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.”
The Fifth Amendment (among others) enshrines this Declaration with the promise that “no person shall . . . deprived of life, liberty, or property, without due process of law.” Reading this, it becomes clear that a “person” certainly cannot be executed without due process.
Unfortunately, neither founding document defines “person.”
So, what does one do next? Well, two hundred plus years of common law hold that Fifth Amendment to impose certain burdens on the State to when seeking to potentially deprive one of life, liberty or property:
(1) that the State has the burden of proof and
(2) that the standard of proof is “beyond a reasonable doubt” — so strong a burden that twelve random peers can agree that the proof is conclusive.
This is the level of due process protection granted to the [potentially] most heinous of society, and certainly appropriate for a [potential] person who is wholly innocent of any crime.
Which brings us to the proper question to ask, which is, “Has the State proven, beyond a reasonable doubt, that a fetus is not a person?”
If your answer to whether a fetus is a person is “I don’t know,” or “it’s above my pay scale,” the answer is the same as a juror sitting in the jury room debating whether an accused is guilty of some crime — if you “don’t know,” the State has not met the burden of proof, and the accused must go free.
I would posit that, on a secular level, it is impossible for the State to prove, beyond a reasonable doubt, that, at any given time, a fetus is not a person.
Ergo, the true Constitutional position — on a purely secular level — is to oppose abortion.
I was pretty proud of this, and figured it was a good thing to share.
Perhaps suitable for a ping, maybe not.
Yes! To get more support, We need to stop identifying this position as “religious” and use the Constitution!!!! Good job!
Thank you!
Feel free to cut, paste, email, plagerize without attribution.
I’ve actually been stewing on this since Obama’s “it’s above my pay scale” statement.
I mean, if you are in doubt about taking a life, err on the side of avoiding taking it.
Alternative, we can base personhood on a scientifically verifiable concept: being a member of the species Homo sapiens. In that case abortion should be prohibited because a fetus is a member of the species Homo sapiens. That's scientific fact.
Well, they have the burden of proof, beyond a reasonable doubt, to prove a fetus is not a person.
Let’s hear their arguments.
I like that approach but, has it been tried before that you know of?
Not that I know of.
I would also add that the law already recognizes unborn children as persons in some circumstances: if I leave my estate to my as-yet-unborn child, that unborn child has legal standing as a person in a probate proceeding.
The common law background on all this is ambiguous, because before the twentieth century society's attitudes were generally quite normal.
The concept of a woman intentionally murdering her own child - as opposed to an angry man killing a woman who bore his illegitmate child in order to avoid future claims on his property - was fairly alien.
Only unmarried women of high social rank had much to fear from illegitimate pregnancy. Married women of high social rank generally bore their illegitimate offspring and passed them off as legitimate. Women of lower social rank, married or unmarried, bore their illegitimate children and passed them off as relatives' children or left them as foundlings.
It wasn't until the twentieth century - when there emerged a large urban upwardly-aspiring middle class of leisured women as well as surgically less-risky abortion - that abortion became popular.
The common law was not formulated in an age when there were millions of unmarried women in their twenties who thought that motherhood was an avoidable inconvenience.
Sure, it’s not the same thing, but there is no reason why the analysis should not work for both parts of the sentence.
Science, through an understanding of DNA, teaches that at the moment of conception, a unique human being is created. In short, there is no "fish period" to an embryo, it is always a singular human being.
The issue of whether Roe v. Wade is good law has nothing whatsoever to do with religion and never has. The issue of abortion can certainly be argued on religious grounds, but it has never been necessary to resort to religious argument to argue the legal issue.
The question is: Does the Constitution prohibit the state governments from making abortion illegal? In other words, is there a Constitutionally protected right to have an abortion which cannot be abridged by state (or federal) law?
The correct answer is (or should be): Such a right does not exist in the Constitution. It is not in there. I checked. Read the whole thing. Not in there.
Roe v. Wade holds that the Bill of Rights (the first 10 Amendments) taken as a whole, create a "penumbra" (or emanation) of other, non-defined rights such as a right to privacy from state intrusion in a personal decision such as abortion--and Voila!-- no state can prohibit abortion. It is really just mumbo-jumbo concocted for the convenience of liberal, activist judges to impose social policy.
You win by framing the issue.
I think the way we frame it is “Can they prove, beyond a reasonable doubt, that a fetus is not a person?”
If the burden is not met, err on the side of caution.
It cuts the whole “it’s above my pay grade” argument right out.
Not sure that one can “logically” start with the assumption that the fetus IS a person and then force the State prove it is not.
I used the “secure the blessings of Liberty for ourselves and our POSTERITY” arguement on a Moonbat. She said the Pre-Amble doesn’t really count. I said, you mean the “WE THE PEOPLE” part!
E Plebnista - Cloud William
“Abortion does not involve the State taking a life, so the 5th Amendment does not apply.”
If done on the taxpayers dime.....
Their “argument” would be to pass a bill stating “for all matters of law in the State of ‘X’, ‘person’ shall be defined as ‘one that can live outside the mother’”....or something to that affect of legally defining “person” as a viable child outside the mother.
End of argument.
Well, they have the burden to prove guilt in order to take a life.
No logical reason they would not have the burden in all the other parts.
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