Who decides?

Comments

27 comments posted
Parenthetically

I add, parenthetically, that the report does appear to have some merit; Colorado, for example, has a worrying statute at S. 18-6-101:

(1) "Justified medical termination" means the intentional ending of the pregnancy of a woman at the request of said woman or, if said woman is under the age of eighteen years, then at the request of the woman and her then living parent or guardian, or, if the woman is married and living with her husband, at the request of said woman and her husband, by a licensed physician using accepted medical procedures in a licensed hospital upon written certification by all of the members of a special hospital board that:

(a) Continuation of the pregnancy, in their opinion, is likely to result in: The death of the woman; or the serious permanent impairment of the physical health of the woman; or the serious permanent impairment of the mental health of the woman as confirmed in writing under the signature of a licensed doctor of medicine specializing in psychiatry; or the birth of a child with grave and permanent physical deformity or mental retardation; or

(b) Less than sixteen weeks of gestation have passed and that the pregnancy resulted from conduct defined as criminal in sections 18-3-402 and 18-3-403, or if the female person is unmarried and has not reached her sixteenth birthday at the time of such conduct regardless of the age of the male, or incest, as defined in sections 18-6-301 and 18-6-302, and that the district attorney of the judicial district in which the alleged sexual assault or incest has occurred has informed the committee in writing over his signature that there is probable cause to believe that the alleged violation did occur.

I think it would be very helpful if this study included citations to the relevant statutes or some sort of tool that would allow somebody to display the text of his state's abortion statutes along with a critique or interpretation of those statutes.

--|PW|--

pennywit's picture
Posted by pennywit on 11 July 2005 - 10:44am
Here we agree

More diverse and specific arguments could really help. As we're contextualizing, though, the main issue is whether women are persons entitled to equal protection.

The assertion that some make that personhood begins at conception denies the entire journey the gamete makes in the womb as being a part of it. If the woman dies, the embryo dies. If the woman is very healthy, the embryo benefits. The embryo is part of the woman, and not a separate entity until birth -- the actual separation. Giving a fertilized egg personhood status is like granting MDs to kids who sign up for chemistry 101.

Legalistic arguments appeal to some folks, but ultimately this is a fundamental question of values and whether women are people or simply wombs owned by the state. In this context, any infringement is a violation.

A journalist is in jail over a fundamental question. The law is against her, and yet she holds to her fundamental values. Most journalists are rallying around her. On Romanesko you'd never know anything else was happening in the world. Sometimes the legal niceities aren't the heart of the matter.

media girl's picture
Posted by media girl on 11 July 2005 - 10:59am
'Legal Niceties'

Two problems with your criticism.

First, I'm not just looking at legal niceties. When I opine that a case is not well-supported by facts, I'm also looking at the broader question of whether the argument will hold up not by a legal standard, but by an objective standard.

Second, this is very much a legal issue. Since the cited study examines laws, and any legislature that takes action would change laws, then it behooves us to ensure that both the laws and the arguments supporting those laws have a sound factual footing.

Third, about Judith Miller. I would argue that she and the New York Times have been exceedingly foolish in protecting their source ... and that considering the information, they were exceedingly foolish in granting anonymity in the first place.

--|PW|--

pennywit's picture
Posted by pennywit on 11 July 2005 - 11:07am
There's this little detail

...of the people, who've not been involved in the dialog for decades.

Also I see no basis for insisting that laws must have "a sound factual footing." Laws have no such requirement. Why do we have the death penalty, for example? It doesn't deter crime. In fact, murder rates went down for the years that the death penalty was considered unconstitutional. There is no public benefit to capital punishment. And yet it continues. Where is the factual basis for this law?

Or the recently passed bankruptcy reform? Where is the factual basis for this? The rights of the poor were taken away while they were preserved for the wealthy. No facts needed, just political math.

As for Miller, I don't really admire her for how she beat the war drums reported on the war buildup, but I think it's a bit much to expect reporters to make categorical judgments as to whether a source is breaking the law by talking to them. And what if the source is? Again, without passing pre-emptive judgment, what makes some lawbreaking okay (like Deep Throat) and other lawbreaking not? And is the reporter to decide right there, in the heat of the moment?

And if the reporter then does not run a story, does he or she still face prosecution simply for having investigated?

Is it Judith Miller's job to decide legally whether Karl Rove deserves the confidentiality she promised? (For the record, I think Rove and Novak are the ones who should be in jail.)

media girl's picture
Posted by media girl on 11 July 2005 - 11:22am
Responsibility
Is it Judith Miller's job to decide legally whether Karl Rove deserves the confidentiality she promised? (For the record, I think Rove and Novak are the ones who should be in jail.)

Actually, yes, it is Miller's job to decide whether her source desrves the confidentiality ... and she should make that determination before extending the guarantee of confidentiality.

--|PW|--

pennywit's picture
Posted by pennywit on 11 July 2005 - 12:25pm
Arguments

Slight detail, MG. I didn't demand that a law have a sound factual footing, but that a fact offered in support of an argument be a sound fact.

--|PW|--

pennywit's picture
Posted by pennywit on 11 July 2005 - 12:24pm
Lacks credibility

[[Sorry --- Double post]]]

pennywit's picture
Posted by pennywit on 11 July 2005 - 6:40am
Lacks credibility

MG --

The site, unfortunately, lacks credibility because of its hyperbole.

First, it refers to the federal partial-birth abortion ban as a "Federal Abortion Ban," which is rhetorical sleight-of-hand.

Second, I found curious its insistence that certain states have laws that would ban abortions throughout pregnancy. I checked into Arizona's laws, and I found this statute, which bans the abortion of a viable fetus, this statute, which criminalizes partial-birth abortions (except for life/health of the mother)

The site would be more credible if it abandoned hyperbole and provided citations.

--|PW|--

pennywit's picture
Posted by pennywit on 11 July 2005 - 6:38am
But isn't the real issue one of freedom?

The camel's nose goes under the tent when the state makes a woman carry a fetus to term. We can drown in the details of the various laws and citings. Focus on the basic premise - states rights in a woman's uterus.

There was a movie I saw with a feminist friend. It was about a virus that wiped everyone out except those who lived in the cold, cold, South Pole. The men realized they could not return and die like the others of the world and they were stuck. There were two women at the South Pole site. A man - a "leader" - stands up and declares, "we will now have to have a new sexual morality," meaning the two women would now "serve" all the men.

My friend elbowed me. "Ya, and then men better get used to gay relationships."

Silly joke, yes, but it goes to the heart of how men take things so much for granted - that these women would be "legislated" into whoredom. Silly movie, but it shows how easily some men can gloss over something so fundamental - the right to choose.

Matsu's picture
Posted by Matsu on 11 July 2005 - 7:11am
Real Issues

Matsu:

You ask:

Focus on the basic premise - states rights in a woman's uterus.

No, I cannot.

You're not just trying to build the case that the state should not regulate/prohibit abortions. The specific issue here is that certain states already attempt to do so, and therefore actions X, Y, and Z shoudl be taken.

But that sort of case loses credibility if it is based on hyperbole and inaccurate information. Of course, no one little bit of inaccuracy will destroy a case, any more than a single faulty support beam will destroy a building.

But if too much of an argument is based on hyperbole and inaccuracies, then the entire case comes crashing down, undermining your effort to bend public policy toward your cause.

--|PW|--

pennywit's picture
Posted by pennywit on 11 July 2005 - 7:34am
Women's rights

This conversation reminds me of Dread Scott. It wasn't about whether slavery was wrong, it just had to do with which states would limit slaves how.

If in 1846 I has said, "Focus on the basic premise - ownership of someone else - slavery" there could have been an argument that "You're not just trying to build the case that the state should or can sanction slavery."

And,

"The specific issue here is that certain states already attempt to do so, and therefore actions X, Y, and Z shoudl be taken."

The political climate cannot shift until people of conscience reject the premise that the state has this kind of right - to enslave its citizens - be it laboring in the cotton fields or in the labor and delivery room.

Matsu's picture
Posted by Matsu on 11 July 2005 - 7:50am
Rhetoric

I'm afraid you and I are back to our old argument. But Dred Scott analogies aside, let me put something to you.

Let's say that you and I are legislators in State A, and we're debating a measure that restricts abortions. In your remarks, you cite to several faulty studies and conclude with a passionate, even eloquent proclamation that the bill would signal "the end of women's rights."

Now, if I'm a pro-life legislator, you've just given me all the ammunition I need. First, I undermine your studies. Second, I cite the Planned Parenthood "undue burden" test. Then, I smile and say that while my attitudes on abortion are well-known (prompting a laugh from the chamber), I know that the people of State A don't want abortion outlawed, and I respect both the law AND the people's wisdom.

And then I say that the measure before us doesn't place an "undue burden," that it doesn't prohibit abortion ... and ... game, set and match to me, as I've just given moderates the cover they need to support the bill.

You can't just focus on the premise. If your supporting arguments are faulty or inaccurate, then your premise will collapse.

--|PW|--

pennywit's picture
Posted by pennywit on 11 July 2005 - 8:06am
All fine and dandy in the abstract

It's a bit easier to be blasé about it when it's not ones own rights on the firing line, but if one starts to look at the real implications of this trend, one may find cause for personal alarm and not simply a theoretical outrage of ones principles.

We're talking about the State assuming authority over a woman's body and making decisions. Once that authority is established, then the State has the power to require abortions (like in Chna's one-child policy), and order sterilization. And of course because we're a country that recognizes equality (wink wink), the State can castrate men. Maybe it's because the man misbehaved. Maybe it'll be because he carries the wrong genes.

Pennywit, you talk about rhetoric and then dance around "partial birth abortion" as if that were a real thing, instead of an attempt at a populist label for an arcane and rare procedure, a term that's rather vague and not at all medical in nature or description. This rhetorical stance has no moral purpose except, as Matsu says, to get the camel's nose under the tent. And you take issue with an advocacy group's rhetoric while imbibing in your own.

Now you can say I (being the woman) must debate within the frame set up by you (being the man), but why must I simply defer to your frame as a matter of course? It's as if I were to ask you, "When did you stop beating your wife?" and any answer that does not address the question I can call an evasion or simply "rhetoric."

I wonder what the rhetoric would be like if it were men's testicles that radicals were seeking the State to seize.

media girl's picture
Posted by media girl on 11 July 2005 - 9:15am
Irrelevancies

MG:

Most of your post is irrelevant to the overall point I'm trying to make. Definitions of "partial birth abortion" are neither here nor there; I simply chose that particular issue because it was convenient and because I could use it to illustrate the folly of, for example, calling the federal partial-birth abortion ban a "Federal Abortion Ban."

The only "frame" I insist on here is the use of accurate information rather than hyperbole when making a case on the issue one way or the other. Basing a case on inaccuracies, as I said earlier, makes the case exceptionally vulnerable to counterattack.

And I specifically reject Matsu's earliest question to me -- regarding the "overall premise" of the report. I cannot in good conscience endore a report or accept it when I know that it is false.

--|PW|--

pennywit's picture
Posted by pennywit on 11 July 2005 - 9:41am
You're under the mistaken assumption

...that this is a legal issue first and foremost. The thing is, it's not. The Supreme Court will do its thing. The ideologues Scalia and Thomas are the most predictable, but the rest are more unknown quantities (especially the unnamed replacements).

But we're talking about a political issue here, and it's an issue of the people. Even debate in the capitols around the country is not at issue here -- the politicos have made their bargains, and few if any minds will be swayed during the bilateral speechifying that is called "debate."

The partial birth abortion ban was a federal abortion ban in that it bans abortions on a federal level. The fact that it only applies to a small percentage of cases (usually the ones where the woman's life and health are in jeopardy) is a matter only of degree. It sounds to me that if only 99% of abortions were banned on the federal level, you'd still object to the "federal abortion ban" label.

Now you may want the dialog to be other. That's fine. Have it. But the first thing you should admit to yourself is that you do not have the personal perspective or political objective that NARAL has. NARAL is battling, above all else, complacency. It is an advocacy organization, not your trick pony. And it is taking on an issue that its leaders feel is the #1 issue in this country. You may disagree. Fine. Don't send them money.

Overall I find your assumption of privilege of passing categorical judgment on NARAL to be very curious. Do you hold the same kinds of views about the NAACP?

media girl's picture
Posted by media girl on 11 July 2005 - 10:18am
Words and words

Alright, let's run down the line on this:

The partial birth abortion ban was a federal abortion ban in that it bans abortions on a federal level. The fact that it only applies to a small percentage of cases (usually the ones where the woman's life and health are in jeopardy) is a matter only of degree.

Yout statement, unfortunately, is inaccurate. First, the phrase "Federal Abortion Ban" has a clear meaning: that the legislation so named is a ban on all abortions. Your counterargument (that it is a federal abortion ban "to a degree") smacks of the same hypocrisy as conservatives who defended Roves' recent remarks about liberals as applying only to "some liberals" and pointing out that he never said "all Democrats" were the targets of his remarks.

In fact, the phrase "federal abortion ban" is specifically calculated to arouse fear and passion in its audiences ... and it does so by distorting the effect of a federal law.

Now you may want the dialog to be other. That's fine. Have it. But the first thing you should admit to yourself is that you do not have the personal perspective or political objective that NARAL has. NARAL is battling, above all else, complacency. It is an advocacy organization, not your trick pony. And it is taking on an issue that its leaders feel is the #1 issue in this country. You may disagree. Fine. Don't send them money.

And I don't send them money. But at the same time, if I see an advocacy group deploying deception as it fights the good fight, then I feel free to point out those deceptions. And even an advocacy organization needs to get its facts right, or its doing a disservice to those for whom it advocates.

Overall I find your assumption of privilege of passing categorical judgment on NARAL to be very curious. Do you hold the same kinds of views about the NAACP?

I didn't pass categorical judgment on NARAL. Rather, I criticized a particular bit of information in the report, criticized the rhetoric, and projected that if certain bits of information in the report were inaccurate, other bit were as well. Therefore, I reasoned, the report itself is fundamentally flawed.

To answer your question: If the NAACP releases a report or position paper, and I examine the report or position paper and find that it is based on faulty information, then, yes, I reserve the right to judge that report or position paper to be inadequate, regardless of whether I agree with its conclusion.

Incidentally, have you ever seen oral arguments at the appellate level? Judges are absolutely merciless. Even if they are given to agree with a lawyer's conclusion, judges will mercilessly pound a lawyer who comes to court with an insufficiently researched case.

--|PW|--

pennywit's picture
Posted by pennywit on 11 July 2005 - 10:36am
It's a federal ban

It's a ban if you need a medical procedure and federal law prohibits it. You treat it like it's a matter of deciding what flavor ice cream you want. Sure, if only strawberry ice cream is banned, you can't say ice cream is banned.

But with abortion you don't typically have a menu. "Oh, let's see, I'll have a partial birth abortion, please!" It's a rare procedure that is used when it's medically indicated. Banning it is indeed banning a form of abortion. Just because other people can have other kinds of abortions doesn't mean that this woman facing this type of procedure isn't having autonomy over her body taken away by the state.

You also seem to harp on legal debates. I can read the writing on the wall. Roe is going to be overturned and the courts will endorse lack of any right of liberty for women.

The real battle will be in passing new laws. A majority of people support reproductive rights, including access to birth control, emergency contraception and abortion. A majority also support realistic sex education in schools and reproductive rights for minors. The anti-choice politicians are in the minority of public opinion, but are well funded and well connected with the media.

The battleground for organizations like NARAL is not in the courts -- there are attorneys who do that -- but in the public debate, most of which comes in the form of paid advertisements, direct mail campaigns and the like, without which no politicians will listen.

media girl's picture
Posted by media girl on 11 July 2005 - 11:11am
Dismissal?

MG --

You're trying to dismiss my point by saying "well, that's just a legal argument." But I'm hardly the only person who thinks like a lawyer; if you haven't noticed, you've got a lot of lawyers in Congress and in state legislatures, too.

But my point isn't that legalistic. Rather, it's a permutation of the old "ends and means" doctrine, phrased like so:

Should the right to abortion be secured by employing false or questionable information?

--|PW|--

pennywit's picture
Posted by pennywit on 11 July 2005 - 11:20am
And you leave thinking like a lawyer

One of the great "tragedies" of the American Republic in the last part of the 20th century was that the "Lawyers' Guild" started to take over the government. We would recoil if it were handful of Snake Handling "Christians" or a cadre of "Total Immersion" Baptists, or even our beloved Hasid.

The founding fathers were not lawyers in the modern sense. Lincoln never went to "Law School." The reason there is a "Bar Exam," let alone a "Bar" is that lawyers were usually "journeymen" and they worked as apprentices and proved their mastery of the law through the Bar Exam. The Bar is a quaint throwback (and a check on the overproduction of Sugarfoot Law School graduates) that meant a dear pupil would not be waved through just because the "old man" had a soft spot for his "A-for-effort" pupil.

Lawyers have no more (and no less) business in government nor on the Supreme Court than does any other profession - so long as the person has a logical mind.

The Constitution does not require a learned curia of mystagogues to figure it out. Lawyers, it seems, are claiming a sort of Divine Right.

Don't get me wrong. Lawyers are important and it is a noble profession and I do not share the detain many do, nor do I relish to tell "lawyer jokes." However, just as accountants should not exclusively run corporations, and generals should not have exclusive control of the military, I think we are ill-served to say lawyers have the exclusive corner on the interpretation of the Constitution.

It seems that this discourse is about trivia - a typical legal pitfall. Instead of looking for the truth, we focus on the credibility of a "witness."

The web site - inaccurate or not - is not the issue. Women's rights are the issue. Most, although by no means all, men simply do NOT comprehend what it means to carry a baby to term. You think we are all such dolts and have no human emotions about what it means to have an abortion - like you're going to tell us about the agony of the decision and what it means to be a woman when so much of that is wrapped up in bearing a baby...ya right.

Arguing that some web site has some wrong information-and that therefore invalids women's rights-is lawyer logic, but alas in the end, does not lead to justice or Blue State values.

Matsu's picture
Posted by Matsu on 11 July 2005 - 5:47pm
Lawyers, etc.

Matsu --

If I come across as a lawyer would, it's because I'm in the process of becoming one. In fact, I graduated (in May) from a rather conservative law school where the graduation speaker gave such a blatantly recycled, talking-point filled speech that he may have inspired an entire generation of conservatives to become liberal lawyers.

But that's neither here nor there.

That said, I have a great deal of difficulty with what I'm being told here. Essentially, it boils down to two items:

  1. I should not subject a study offered as fact to even a cursory examination because the underlying facts are irrelevant to the greater need to secure the right of abortion; and,
  2. I should be quiet anyway because of my plumbing.

I find neither precept palatable.

--|PW|--

pennywit's picture
Posted by pennywit on 11 July 2005 - 8:58pm
Plumbing the depths

You write well and with passions and insight. No one here, so far as I know, disparages your plumbing.

I am sad for all of you who never heard, as it happened in the moment, Presidents like Eisenhower, Kennedy - even Johnson or Truman. Reagan was but a pale shadow compared to them, but that's all you have.

Many of you are too young to remember Eisenhower, Kennedy, Truman and Johnson in context - never realizing that "W" does not set the standard and that at one time men of great intelligence held Press Conferences.

It was something President Kennedy said when he asked the nation to embrace the rights of blacks when he said that progress was too slow and then he asked every white American to think what it would mean for him/her to be black-that gradualism would be something that President Kennedy, himself, would find lacking.

Presidents no longer ask us to place ourselves in the shoes of the oppressed. They ask us to look at things from the oppressors view-point.

Arguing that someone's plumbing makes him a victim is not a strong argument.

Again, I do not fault with you. You have only had the vapid rhetoric of pale men like Reagan. What a joke! But I suggest - go to the achieves and listen to what once was the standard - where leaders spoke instead of men like our latest guy who is but a step away from Howdy Doodie.

We have lost much only you all don't even know how little we are getting.

Matsu's picture
Posted by Matsu on 12 July 2005 - 1:16am
You think how you want

But political decisions are not based on legalisms but on public sentiments -- especially when it comes to Constitutional amendments.

As I said, Congress and legislatures have already dug in. A majority in Congress is eager to go against the majority of the people on this issue, and that's not a matter of legal arguments but simply a matter of power, political power.

Your last question is just total bullshit. Either women are equal under the law or not. I shouldn't have to prove it to you. They are inalienable rights. That they are yours to grant or not is frankly pretty damned offensive.

media girl's picture
Posted by media girl on 11 July 2005 - 11:27am
Passing Laws

I am aware that many laws are decided on the basis of sentiment, rather than a factual footing. However, I believe that the exploitation of that sentiment is one of several ailments of the American body politic.

Your last question is just total bullshit. Either women are equal under the law or not. I shouldn't have to prove it to you. They are inalienable rights. That they are yours to grant or not is frankly pretty damned offensive.

Whether the rights are inalienable or not, there remains the small manner of securing them, in whatever form, in the legislatures. And if one is to convince a fence-sitting legislator to support the security of that right ... then, yes, one must sometimes make an argument that will persuade that legislator.

--|PW|--

pennywit's picture
Posted by pennywit on 11 July 2005 - 12:22pm
Forget existing legislators

Existing "fence-sitting" legislators are rare, especially on this issue. This is not a matter of convicing existing men in office to vote a certain way, but to engage the people to elect men and women who reflect their own values.

media girl's picture
Posted by media girl on 11 July 2005 - 12:46pm
ego te absolvo

I have to agree with media girl on this one. The tissue growing inside the woman is not a person in a legal sense and cannot exist independently of the woman and it is part of the woman's body. To call this a "baby" is stating the conclusion as part of the question.

There is a religious view that says God puts a soul into the ovum at the moment a sperm enters it, but that is a religious view and has no basis in biology.

Personally I am not looking for sympathy. I am looking to control my own body and if you call that a "cause," then so be it.

The language of "baby" and "killing" and a "voice" are words intended to push the religious view. Notice that other emotionally charged words "rape," "incest," "endangering the life of the pregnant female" are phrases rarely, if ever, mentioned in the above argument.

Whether I choose to terminate a pregnancy is up to me. It is a tough choice that can only be made by the woman. Making a woman carry a fetus to term is a form of involuntary servitude and there is an existing constitutional amendment against that.

Let me end on the same note as Kelly McNeill. I forgive you that your view does not square with my view, but you don't have to live my life and I'll stay out of your church if you stay out of my womb.

Deal?

Matsu's picture
Posted by Matsu on 11 July 2005 - 4:50am
A part of the woman's body

Until there's a baby outside of the womb, it's a part of the woman's body, not a person socially, biologically or legally. You can talk about hypotheticals, but women are people and have rights.

media girl's picture
Posted by media girl on 10 July 2005 - 11:47pm
Forgive me if I don't sympathize with your cause

"showing how women's control over their own bodies"

I hear this all the time, but all you women who spout this rhetoric forget that it is *NOT* just your lives being spoken of here but also that of another. Another who's voice can't be heard and is being represented by a woman who is not only working adamantly so that a 3rd party can't speak on his or her behalf, but also working adamantly so that this 3rd party can't speak on their behalf so that she can *kill* him or her.

I feel so sorry for those so unfortunate to be attached to women who have such disregard for life that they go out of their way to try to invoke sympathy from others because the law is restricting them from killing their baby.

Forgive me if I don't sympathize with your cause.

Kelly McNeill's picture
Posted by Kelly McNeill (not verified) on 10 July 2005 - 11:22pm