George Will: The Abortion Argument We Missed

Washington Post Writers Group ^ | December 1, 2005 | George F. Will

[Yaelle]

Is there a way to trip up the pro-abortion crowd with a definition of "personhood" that would force them to see the unborn as people? I wonder if that is not the way to go.

The way it stands now, a fetus is a person legally IF IT WAS WANTED by the woman carrying it. And it is NOT a person if it was not wanted. This is proven by the case of Connor Peterson, RIP, and the fact that people still obtain 2nd trimester abortions any day of the week.

We need a definition of person that stands up. Under their definition, most of the homeless do not constitute persons. No one is saying we should put them to death because they aren't "wanted" by anyone.

[dirtboy]

Does anyone here think this would -- or SHOULD -- pass Constitutional muster?

There is an equal protection argument there - however, that argument has seldom been used by SCOTUS (and wrongly used, IMO, in Bush v. Gore.

I see what you are saying - but IMO if abortion was returned to the states, we can win the battle there for good except for a couple of states such as NY and Massachussets, as well as striking a blow for federalism, which would also help to reduce the fedgov.

Trying to simply reverse the role of federal usurped power leaves that weapon available for liberals should they re-gain control of SCOTUS at a later date.

[Alberta's Child]

So you either have to convince these people that it IS murder, or you have to convince enough legislators to say it's murder no matter what others believe.

Actually, you don't. You simply need a basic determination -- either through scientific means or through cultural acceptance -- that an unborn child is a person. That's exactly why the Federal government would have the power -- actually the obligation -- to outlaw abortion under the 14th Amendment.

[MeanWestTexan]

Then it is the "Slaughterhouse" cases. Like I said, don't recall the exact name.

[Alberta's Child]

There's no way to "trip up" the pro-abortion crowd at all -- and an irrational, absurd legal scenario like the one you described in the Connor Peterson case has never been an impediment in the U.S.

Consider the legal and cultural framework in which slavery survived for years in the South. The basic premise of slavery -- reaffirmed in the Dred Scott decision -- was that slaves were basically no different than animals or property and therefore had no standing in Federal court and no legal protection under the U.S. Constitution. And yet many (if not most) of these states in the South had laws on the books that made it a crime to teach slaves to read and write -- laws which only had any meaning if slaves were, in fact, capable of learning to read and write -- i.e., persons and not animals or pieces of property.

Logical thought and rational legal principles are utterly meaningless to people or special interest groups who are hell-bent on legalizing and promoting morally reprehensible ideas.

[LWalk18]

Actually, you don't. You simply need a basic determination -- either through scientific means or through cultural acceptance -- that an unborn child is a person. That's exactly why the Federal government would have the power -- actually the obligation -- to outlaw abortion under the 14th Amendment.

So you support the Court creating a right merely based on science? I would argue that is for the legislature and state to do via Constitional Amendment.

[MeanWestTexan]

Plessy v. Fergeson (cited above by Ditto) is what I was thinking of.

Basically, judicially activism defeating the clear intent of the Constitution.

[wideawake]

there's a fair percentage of people who do NOT consider an abortion, particularly in the early weeks, murder at all

Fundamental rights are not a matter of public opinion.

[Alberta's Child]

Every law has some basis in "science" whether we recognize it or not. The mere fact that a medical examiner is needed to determine the time or manner of death in a murder case makes this obvious.

[Fatalist]

The 13th and 14th were added 80 years after the Founders drafted the constitution. The constitution of 1787 made absolutly no mention of race although it did recognize the institution of slavery. Not until the 14th amendment was race mentioned in the Constitution.

Aside from the phrase "Indians not taxed" (which was included in the Constitution of 1787 as well), race is never mention in the 14th amendment.

[Fatalist]

So you support the Court creating a right merely based on science? I would argue that is for the legislature and state to do via Constitional Amendment.

They wouldn't be creating a new right, but rather using science to determine whether an existing right applied to a given group.

[wideawake]

Even in today's irrational legal climate a dog or an oak tree can't file suit in Federal court.

There is an ongoing project at a number of US law schools to devise a way to give individual great apes and dolphins legal standing in American courts.

I wish I was kidding.

Predictably, they are predicating their arguments on the fact that severely disabled human beings (sometimes) have standing in American courts.

[Aquinasfan]

General welfare is a clause used to justify all kinds of federal government expansionism.

It's a synonym for "common good," which is the first principle of government.

[dirtboy]

It's a synonym for "common good," which is the first principle of government.

Then who defines the common good? To Lenin, people existed for the common good of the state. Liberals aren't much different.

So is it better to rely on nebulous terms? Or instead look at clearly enumerated powers? If you rely on "general welfare" or "common good" for your guideance, then we might as well throw out the rest of the Constitution - which is what basically has been done over the last sixty years, because of notions of the common good.

[Aquinasfan]

Then who defines the common good?

The notion has a long history in philosophy and law.

This is the best essay that I've ever read regarding philosophy of government. It's wonderfully brief considering the nature of the subject.

[Ditto]

Sorry. I should have said the 15th Amendment

Amendment XV

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.

[Caleb1411]

Ping

[edsheppa]

The judicial branch ... has no power to enforce its own decisions.

This is a non sequitur. I said there is no effective check which I think is historically obvious. Prove me wrong. Show me how the court's lack of enforcement power has checked Roe.

[AuH2ORepublican]

"But, post-Civil War, there was an amendment to the Constitution specifically designed to protect blacks and a political US Supreme Court twisted the interpretation of the amendment in such a way as to unduly limit its protections to federal, and not individual state, actions."

---

Those were The Slaughterhouse Cases (1875 IIRC), which said that the Privileges or Immunities Clause of the 14th Amendment (the clause that was most controversial when the 14th Amendment was approved by Congress because it prevented states from denying to any person, including blacks, the protections afforded by the individual-right provisions of the Bill of Rights (basically everything in Amendments 1-8 except for the Establishment Clause) and the "privileges and immunities of citizenship" enumerated by Judge Bushrod Washington in a prominent 19th Century case) did not actually stand for anything, since it protected "federal privileges and immunities" (of which there were none of importance), not "state privileges and immunities" (which were actually the ones that Congress intended to protect for all Americans).

The Supreme Court eventually incorporated some of the Bill of Rights against the states through the Due Process Clause of the 14th Amendment, but it has never returned the Privileges or Immunities Clause to the prominence it deserves nor incorporated the individual rights that should be incorporated (and, by incorporating the Establishment Clause against the states, turned the clause on its head).

[MeanWestTexan]

See my post 44.