Senate Passes Bill Limiting Abortion

[Imran Siddiqui]

MtG: The vagueness I believe was put in because it was such a controversial ruling that going any further would have really killed the court's reputation. SCOTUS is very concerned about that.

The IC basis at a federal level is an interesting issue. Especially since the court has changed so much after Roe and Planned Parenthood, especially with the decision of Lopez and Morrison. However, I think the federal government may make the case that abortion clinics do sometimes do business with people from other states and advertise in other states (especially if they are on the border), especially Planned Parenthood clinics. Abortion clinics are businesses and thus may fall under Heart of Atlanta Motel.

How it will be ruled? *shrug* But SCOTUS may say this passes muster (and if it actually does limit it to after 'viability', probably will because clinics are businesses which at times have out of state buyers).

[Jaguar]

Standing up for those who can't stand up for themselves:

[MichaeltheGreat]

Originally posted by obiwan18
MtG:

Good points.

I'll start with the easy one.

Thanks. BTW, I'm personally opposed to abortion except in cases of rape or involuntary pregnancy, and serious medical risk to the mother or extreme deformity (i.e. conjoined twins with no hope of separation or long-term survival) of the fetus.

Where I differ from either the pro-life or pro-choice crowd is in what point the state has the right to assert it's legislated "values" in regulating personal conduct. Thus I don't personally approve of elective abortion, but at an early enough stage, I don't believe it's my or the state's place to make that decision for someone else.

Not really. Biology says that after conception, there are two individual bodies, the unborn child's and the mother's. Look at in-vitro fertilisation. How can an embryo be a part of the mother's body when we can see her outside of her mother's body?

Two bodies, but one not yet developed to the extent of being called a person - there is a distinct set of terminology for the specific stages of development, and clear distinctions between a zygote, and embryo, a fetus and an infant.

So if having a seperate body were the only issue, then we would have to recognise personhood beginning at conception.

Only if you ignore gross anatomical and developmental distinctions.

Not me you are arguing with, MtG. I never said here that one must be genetically unique from your parents in order to be a human person. In fact, I've said the opposite. That's why I drop the term 'unique' which many others use in this prolife argument.

I'm not arguing so much, as searching for a clear, objective, standard that will address all situations, and that has an undisputed scientific basis.

How is this different from an infant? An infant cannot survive without nourishment provided by the parents.
The unborn child draws nourishment from the mother's uterine wall, but the infant breastfeeds. Same source, just slightly different food composition.

Infants, whether full term, or even 25-26 week, can be supported and sustained independently of the biological mother. In some cases, albeit rarely, late-term fetuses have been delivered successfully when the mother is already dead - obviously there's a very short time frame due to oxygenation issues, but in theory, in event of mortal traumatic injury to the mother, the late term fetus can be saved with prompt medical intervention at an adequate level. This demonstrates true biological independence.

This is almost the standard form & function argument for personhood. A person is only a person if it looks like a person, or can act as one.

We don't base personhood on looks. What about someone horribly deformed? Could we not say by this standard that they are somewhat less then human?

It depends on how you define the standard. Certainly, limb deformities, blindness, profound retardation, etc. are impairments, but not in the same class as an infant with merged heart chambers (I had a cousin who died in infancy of critical heart and other defects when I was a little kid - even now, almost 40 years later, her conditions would be untreatable absent a neonate heart-lung transplant, which to my knowledge, has never been done successfully.

There are some differences of form and function which are inherently fatal, immediately, or short term. One lung or one kidney is a defect of form or function, but a survibable one. Zero lungs, or lungs so deficient in capacity that minimum necessary respiration is impossible is a fatal defects. So a standard of legally protectable "personhood" can be drawn, and redrawn if changes in medical technology permit, that does not negate the legal rights of the disabled in any way.

The problem with viability is that this is not a measure of the intrinsic qualities of the unborn child, but of extrinsic technology. We see this in the definition of Roe v. Wade. When SCOTUS set down the law, they established viability at the end of the second trimester, around 26 weeks. Now viability, due to improvements in technology, stands at 21 weeks.

Theoretical viability, i.e. the infant may have a chance of survival if everything goes well. This is a problem in defining a legal standard, though, and is one reason I would like to find an earlier, fixed, anatomical standard. (other than conception, which is not universally agreed as anything more than being a human zygote. )

(note, you admit this yourself, so current ability to survive outside the womb is irrelevant to personhood.)

Current viability is relevant - but it is a changing standard, so in 1973, a 21 week fetus would not be a legal person, but today it could be. Just like legislatively changing the age of majority, but in this case, dependent on technology.

How does the brain develop over time in the womb? Incrementally. There is no one point where the child can be said to change from a completely undeveloped brain to a developed one. The ultrasound you saw was a snapshot of one moment of fetal development, showing that your child had a brain at that moment. But what about a few days before? The brain would still be there, just not as well formed.

Agreed, although one could still adopt a standard based on the presence (even in immature form) of all the essential structures of the brain. A brain stem, medulla and cerebellum, with no cortical structure, isn't yet a human brain. FEEG's should provide some help in determining an objective standard of brain function.

This is why I feel the conception standard is superior because this is a decisive moment. One moment we can see an egg surrounded by sperm, while the next, the egg has been fertilised forming the zygote.

It is "decisive" except for the fact that it is estimated that only about 50% of these zygotes ever implant. Also, you get into another legal argument here about non-barrier contraception - if the unimplanted zygote is a legal human being, then non-barrier contraceptives such as the pill and IUDs could then be considered homicide. Although I'm Catholic, I don't think Congress deciding to legislate Humanae Vitae is likely to pass constitutional muster.

Now you're quoting SCOTUS!

Actually, paraphrasing a quote from Justice Stevens from a seminar on constitutional law at the University of Chicago school of law. Since the discussion is of a legal standard in the US, then meeting SCOTUS' criteria is critical to successfully dealing with this issue legislatively.

Scientific consensus sets human life beginning at conception. Society must decide when legal personhood occurs. This is why the scientists say that it is righfully the domain of the legislatures and the judiciary to decide this question.

Actually, I haven't heard anything like a universal, or even near universal consensus.

Now the toughy.

Ownership should be extended, in that you can will your property to an unborn child, in the expectation that they will be able to inherit when they are born.

Sue or be sued? We had a case in Canada where a child damaged by a botched abortion sued the doctor and won. So again, you have the right for a born person to sue someone for damages incurred while unborn.

Be sued doesn't see like a substantive case. Has a child younger than 5 been sued for their actions? In such a case, would not the parents be liable?

Would these distinctions be impermissible according to the constitution, while maintaining a right to life within the womb?

Since the Constitution is silent as to defining human life, or legal majority, it is likely that there would be an issue such that any statutory definition of life would grant full legal rights to property, etc. At the very least, the legislatures would have to address all the ancillary rights issues.

The type of suit you're talking about is known as a "wrongful life" tort action in the US - I don't know if you have a different name in Canada. That isn't helpful on the "personhood" issue, because the basis for the suit is that the damage caused carries forward into the life of the child after birth.

Wrongful death actions involving death of in utero fetuses might be more helpful, but there's no Federal constitutional issue in civil law, so it would be more a matter of interest, and not any form of primary authority.

[MichaeltheGreat]

Originally posted by Imran Siddiqui
MtG: The vagueness I believe was put in because it was such a controversial ruling that going any further would have really killed the court's reputation. SCOTUS is very concerned about that.

The IC basis at a federal level is an interesting issue. Especially since the court has changed so much after Roe and Planned Parenthood, especially with the decision of Lopez and Morrison. However, I think the federal government may make the case that abortion clinics do sometimes do business with people from other states and advertise in other states (especially if they are on the border), especially Planned Parenthood clinics. Abortion clinics are businesses and thus may fall under Heart of Atlanta Motel.

How it will be ruled? *shrug* But SCOTUS may say this passes muster (and if it actually does limit it to after 'viability', probably will because clinics are businesses which at times have out of state buyers).

Imran - it would pass muster with interstate abortions - someone travelling to another state to receive an abortion clearly is engaging in interstate commerce. However, the law would not be a blanket prohibition on the procedure, and that would put it into more of an exercise, than any really substantive change.

[DinoDoc]

MtG: You seem to be about the only on that can answer this question for me in the absence of Strangelove. Is the procedure the Congress is talking about banning ever medically justified? If so under what circumstances?

PS Why such a narrow interpretation of the IC in this case given the substantial number of SCOTUS cases taking a much broader view?

[MichaeltheGreat]

Actually, that's one I can't answer. I've never heard of a compelling reason - certainly there are medically necessary reasons to abort a fetus late term - traumatic injury of some types being one.

I've just never heard any argument that this procedure itself is ever medically necessary - as it could be if there were no alternative abortion procedures at this late stage of pregnancy, or if the alternatives involved higher risk to the mother.

As far as the IC clause goes, the Rehnquist court doesn't pick many of these cases (or issues aren't challenged on IC clause grounds) but they have struck down several - the absurd Federal law about guns within 1000 feet of local schools, for example.

I'm a state's rightist, anyway, so I cast a rather jaundiced eye on IC clause invocation by an activist Congress (of either party) that wants to Federalize matters that ought properly to be regulated at the state level.

[MRT144]

Originally posted by Sprayber


Such is life in our disposable culture. Everyone talks about "my rights" but most remain silent when it comes to "my responsibility" We teach our kids that pregnancy is a mistake that can be fixed with a simple medical procedure. No responsibility, no black marks and in a lot of cases, your parents don’t even have to know. No sense in taking responsibility for your body because modern American can fix all ills and keep you safe from the tyranny of the family.

Do you really want someone considering abortion to be a parent though? Do you really think that someone who wants an easy out will make a better parent if they are forced to care for the child?

sometimes you have to duck responsibility for the greater good of society, and in many cases an abortion is better for society.

[Imran Siddiqui]

Imran - it would pass muster with interstate abortions - someone travelling to another state to receive an abortion clearly is engaging in interstate commerce. However, the law would not be a blanket prohibition on the procedure, and that would put it into more of an exercise, than any really substantive change.

SCOTUS hasn't taken your view yet. The SCOTUS has said if it is a commerical activity that deals with interstate commerce in any way, then it can be regulated, even affecting those commerical dealings with in state buyers or sellers.

If interstate commerce comes into play at all, the entire commerical enterprise can be regulated by Congress, not just the specific acts of interstate commerce.

What makes this law probably valid under the IC is the fact that they are regulating businesses that sometimes engage in interstate commerce.

[MichaeltheGreat]

The workaround to that is to simply have private practice physicians who take referrals.

Hospitals and some clinics are clearly interstate commerce parties, but it's a pretty far stretch to say that all doctor-patient relationships are IC activities, because the doctor gets some supply or prescribes some pill that was made in another state, etc.

Where that sort of issue gets fun is when a future liberal Congress takes the same rationale and uses it to create authority to regulate all commercial activity on any scale.

For example, COBRA (1986) exempted companies of less than 20 employees from it's post-severance insurance requirements, on the basis that most companies of that size or less could be considered (absent a case-by-case test) to have little or no impact on interstate commerce.

If you take the position that any doctor is subject to Federal regulation (and the whole Supremacy Clause can of worms that comes with that, vis-a-vis state licensing and regulatory authority), regardless of size or type of practice, it's pretty hard to claim that the same rationale applies to any individual engaging in any form of work.

Another aspect of this law I don't like is the notion of legislatively regulating specific medical procedures, which should really fall under FDA and state guidelines. I'd much rather see a clear rationale limiting the timeframe for abortions based on a concept of state interest in fetal well-being, than some cobbled together sham of regulating one specific procedure, that does nothing to regulate late term abortions by other methods, but opens a whole can of worms on Congressional regulatory authority.

[Imran Siddiqui]

MtG: The IC has been streached to a great degree. Even though the current court has tried to contract it, the past precedents of Wickard v. Filburn and Heart of Atlanta Motel, Inc. v. US have not been overturned. HELL, I agree with you on how the IC SHOULD be read, but precedent and SCOTUS' love for precedent will prevent our prefered method of reading the IC in the future, IMO.

I believe the court might say it follows the IC because it is a commercial practice that includes interstate commerce, and therefore Congress can regulate it.

The recent SCOTUS limitation on Congress' power relating to the IC in Lopez and Morrison dealt with non-commerical activities (carrying a gun 1000 yards from a school and rape). This law does concern a commerical activity.

Personally I'd like to see the Court overturn Wickard and Heart of Atlanta, but it doesn't seem like it'll happen anytime soon.

[MichaeltheGreat]

Heart of Atlanta is a pretty clear IC case - even though the specific hotel wasn't commonly used in interstate commerce, it certainly didn't check people for state of origin, and metropolitan area room vacancy rates are a driving force in room pricing. Since most hotels clearly are part of interstate commerce as a component of interstate movement and transportation, (now much more than in 1972), it would be very hard to distinguish "intrastate" hotels from "interstate" hotels in a consistent way.

Wickard is another huge reach in Federal regulatory power, and smells of too much vodka to boot , so I agree with you there.

[Ben Kenobi]

The type of suit you're talking about is known as a "wrongful life" tort action in the US - I don't know if you have a different name in Canada. That isn't helpful on the "personhood" issue, because the basis for the suit is that the damage caused carries forward into the life of the child after birth.

MtG:
I'm talking about a different case entirely. The child sued for the injuries incurred in a botched abortion. She liked her life, agreed with the outcome, but argued that her injuries were due to medical malpractice.

I'll see if I can't dig up the case.

obviously there's a very short time frame due to oxygenation issues, but in theory, in event of mortal traumatic injury to the mother, the late term fetus can be saved with prompt medical intervention at an adequate level. This demonstrates true biological independence.

This independence requires medical intervention. In places that lack this standard of care, the child will be unable to assert their 'biological independence.' Therefore, this standard has more to do with the technology than with any intrinsic qualities of the unborn child.

I had a cousin who died in infancy of critical heart and other defects when I was a little kid - even now, almost 40 years later, her conditions would be untreatable absent a neonate heart-lung transplant, which to my knowledge, has never been done successfully.

Go here, MtG:

http://www.ctsnet.org/doc/56

Actually, I haven't heard anything like a universal, or even near universal consensus.

Most medical textbooks, and non-abortion doctors will say something to the effect that human life begins at conception. Look at my example with in-vitro fertilisation. For many doctors, this has provided the evidence they need to see conception as where human life begins. Which sources conflict for you, and what do they say?

It is "decisive" except for the fact that it is estimated that only about 50% of these zygotes ever implant. Also, you get into another legal argument here about non-barrier contraception - if the unimplanted zygote is a legal human being, then non-barrier contraceptives such as the pill and IUDs could then be considered homicide. Although I'm Catholic, I don't think Congress deciding to legislate Humanae Vitae is likely to pass constitutional muster.

Couple points. If you are Catholic, you should believe that human life is a continuum from conception to natural death. What problems do you have with the Catholic definition, from a personal standpoint?

Secondly, you have argued that the state has a viable interest in protecting the life of vunerable persons. One does not need to read Humanae Vitae to be prolife, or to believe that the unborn child is a living human person. All you have to do is examine the medical evidence of fetal development to see how the unborn child develops in the womb.

Regarding contraception:

I agree that legal means are probably not the best way, but if there are other effective alternatives, such as barrier methods, why do we need the others?

[MichaeltheGreat]

Originally posted by Lincoln

There is much more if you really want meto do your homework for you.

What I find interesting about that claim is how such actions are not already felony homicide, as well as grounds for revocation of medical licenses. It seems something is fishy, unless there's collaboration between all involved hospital personnel, state medical licensing boards, and the Cook County DA's office.

[MichaeltheGreat]

obiwan - interesting dialog, so I'll edit this post later to respond substantively.

Right now, I've got to get my butt out of work and down south to México, since, speaking of fetuses, I'm about to become an uncle tonight or early in the morning.

[Ben Kenobi]

Godspeed, MtG