Please let me know if you want on or off my Pro-Life Ping List.
Posted on 02/13/2006 1:53:48 PM PST by Coleus
One reason that Roe v. Wade is still with us is that legal scholars and jurists argue about the wrong issue. The question isn’t whether the Constitution contains any reference to a right to privacy. Let’s assume it does. Let’s assume that the Ninth Amendment, as argued in Griswold v. Connecticut and some other cases, implicitly refers to the right to privacy every human being has. Why would this be relevant?
Some might argue that if one has the right to privacy, a woman who has an abortion is doing something private, something no one else has the authority to regulate or ban. But this simply will not do.
If a pregnant woman is carrying a child — as anti-abortion people call it, "an unborn child" — she has no authority to have a procedure that will kill this child. Wherever one locates a human being, inside the pregnant woman or in a crib or at some hotel, unless he has threatened to attack someone, no one is justified killing him. Only self-defense justifies killing another human being, period. (I leave aside the death penalty for now — some argue that it, too, is simply the extension of self-defense, though I doubt this.)
But one might say, the pregnant woman’s womb is certainly as private a place as you can find. Well, yes, provided it hasn’t been made the home of this "unborn baby." If the "unborn baby" is indeed a new, budding human being from the moment of conception or thereabouts, the pregnant woman’s womb is not private any longer. The body is now being shared — some of it is occupied by this new human being, some by the woman’s insides.
Privacy, then, is really quite irrelevant to the debate surrounding Roe v. Wade. The relevant question to be answered is, "Is the being to be killed in an abortion a human being or is it human only potentially?" If the former, then abortions are killings, unless they amount to self-defense — say the "unborn baby" poses a fatal hazard to the pregnant woman. And such killings are a form of murder — infanticide.
But if in the early stages of pregnancy the woman is carrying a potential human being, then abortions performed in those stages are not infanticide because they are not homicide. They do not amount to the unjustified killing of a human being.
The debate here is not unlike that about the very sick and incapacitated at the end of life. Without a brain that can function as those of normal human beings do — without its capacity to think, to have ideas, to imagine, to envision and so forth which human beings as such are distinctive for in the living world — arguably no human being exists any longer. So removing life supports and similar acts that terminate life do not constitute homicide.
Exactly when that point comes about is where the debate needs to focus in the end-of-life discussion, while when a human being comes into existence is the point that needs to be debated in the abortion issue.
Of course, discussing abortion in terms of when a human life comes into existence raises tough issues. What is it to be a human being? What attributes or faculties or capacities must something possess to be such a being? Is it human at the beginning of its life or at some later point when certain faculties have emerged? Is there anything like a precise enough point during pregnancy that this occurs? Could it be conception, at which point no single entity exists that will become the baby but several might? Could it be when the cerebral cortex develops where thinking is made possible?
But at the edges of the law there will always be difficulties. Who is an adult? Who is still a child or juvenile? Similar ones can be found throughout human affairs.
Still, to pretend that the issue isn’t about when human beings come into being but about the right to privacy is to confuse matters and postpone a reasonable solution.
--- Tibor Machan holds the R.C. Hoiles Professorship in business ethics and free enterprise at Chapman University in Orange, Calif., and is co-author of "Libertarianism, For and Against" (Rowman & Littlefield). He advises Freedom Communications, parent company of this newspaper. E-mail him at TMachan@link.freedom.com
Ninth Amendment is a beautiful Amendment, but unfortuantly for liberal whacko justices it conveys no personal rights.
No Amendments convey rights. The Constitution has nothing to do with individual rights; all individual rights are assumed; the Constitution only specifies how much ability the government has to limit those rights. It is impossible for me, as a citizen, to violate the Constitution. Only the government can.
Press Release: Conviction of Scott Peterson for the Murder of Both ...CHICAGO, November 12, 2004 – Today's conviction of Scott Peterson for the double homicide of both Laci Peterson and her unborn son, Conner, shows that fetal ...
www.unitedforlife.org/press_releases/ 041112_conviction_of_scott_peterson.htm
Not clear of your point. Maybe I was unclear.
-"Is the being to be killed in an abortion a human being or is it human only potentially?"-
Could it end up an alien? A puppy? A cardboard box? I'm gonna say...no.
Overturn Roe v. Wade?
by John Semmens
Now that John Roberts has been nominated to the Supreme Court, partisans on both the left and right are demanding to know where he stands on the issue of abortion. Would he vote to uphold the 1973 Roe v. Wade Supreme Court decision that overturned state laws restricting abortions?
Under a properly functioning judiciary, it is improper for judges to be asked how they will rule on a case prior to hearing the evidence specifically pertaining to that case. The idea is that a judge is to weigh this evidence in order to render a just verdict.
Wanting to know how someone will vote prior to taking office is appropriate when that office is one designated as part of the lawmaking portion of government. We want to know what kind of new laws candidates for the legislature might enact. We want to know what kind of laws candidates for the presidency might ask the legislature to pass and that he would sign.
That advance information on policy positions is being sought from a prospective new member of the Supreme Court is an indication that the courts have been diverted from their intended function of rendering justice according to existing law to an unconstitutional role of making law.
The Roe v. Wade Supreme Court decision is representative of a court diverted into a lawmaking role. Justice Harry Blackmun wrote the majority opinion that struck down a Texas law limiting abortions to cases where the life of the mother was endangered. The grounds cited were that “the right of personal privacy includes the abortion decision.”
Some critics of the Roe v. Wade decision have assailed Blackmun’s assertion that there is a Constitutionally protected right to privacy. Indeed, the word “privacy” does not appear in the Constitution. The word “private” does appear, but only in conjunction with the word property in the Fifth Amendment.
This line of criticism misconstrues the purpose of the Constitution. The Constitution is a document designed to limit government. The absence of an explicit mention of a right to privacy in the document should not be interpreted to mean people do not possess such a right. To do so implies that the Constitution itself is a grant of privileges from the government to the people and that any privilege not expressly granted is not protected from government encroachment.
The Founders anticipated this possible misunderstanding and inserted the Ninth Amendment. This amendment states that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Quite simply, the right to privacy is one of those retained rights.
Does this then mean that Roe v. Wade was correctly decided? I think not. The issue with abortion is not invasion of privacy by the government. The issue is harm to another person. Namely, abortion is the taking of another person’s life. That a person intent on committing such a deed would prefer to do so in private is understandable.
The government, however, has an obligation to protect an individual’s life. Laws against abortion are a means of fulfilling this fundamental obligation. The Roe v. Wade decision impedes state governments from carrying out this obligation.
A just and humane government is incompatible with the carnage unleashed by this 1973 Supreme Court decision. Roe v. Wade ought to be overturned. Maybe John Roberts can play a role in achieving this.
As hatellary rodhamster prepares for her run at the highest elected office, watch for democrat 'worker bees' to try and reshape the argument regarding abortion just as this writer has done, seeking to focus the debate upon a 'new perspective regarding the humanity of the unborn': are they yet human when they are slaughtered? Are they yet fully human? Is the writer of the article yet fully huamn? [At what age did the writer become fully human? You see, any dissembled escape clause will do for blood drenched democrat leaders in order to divert from the Truth and continue being empowered politicially by the slaughter of the alive unborn.]
With the approaching elections, we will be bombarded with classic triangulation and senator clinton's degenerate husband and his minions are the masters of this form of deceit. The nation is in for a very bad time leading up to 2008, almost as delicate as the nation faced over the slavery issue, the exception being that the societal engineers have thoroughly prepared the voters over the past decades, dumbing them down in 'public schools' and encouraging millions of women to avail themselves of murder inc. at a government funded abortuary.
Please let me know if you want on or off my Pro-Life Ping List.
Privacy is not, nor should be an abortion issue. I have always been amazed at how rights groups, and federal judges have gone through great lengths to protect species like the “Spotted Owl,” while in the next breath, toss a human life in the scrap heap. The fertilization of an animal or human egg is exactly that, the beginning of life.
Letting a bird, turtle, or any egg drop and smash on the ground, or in the case of a human, abort a fetus is the same scenario. That life has been killed, destroyed, ended. Shamefully, since Roe v. Wade, over 45 million abortions have been performed.
In fact, it's worse: Except in the 1.3% of abortions performed in rape cases, the very presense of the child in the first place is a result of a man and woman's actions - not the child's.
Abortion is not a privacy issue. It is not a medical issue. It is a criminal justice issue because it involves the brutal execution of another human being. In a just society, that human being needs first be tried and convicted of a capital crime before being dismembed sans anasthesia.
LOVELY!!
Good post SmartA
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