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Roe vs Wade(43 posts)

Roe vs WadeDuane Gran
Jan 22, 2003 8:09 AM
I believe today is the anniversary of Roe Vs Wade, based on the amount of protesters I saw this morning going to work (I live and work in Washington DC), so I thought I would bring up this topic. Please be considerate and gentle, folks.

My interest in bringing up the court case is that I'm confused about something. I keep reading that this court case legalized abortion, but my understanding is that it actually prevents states from making it illegal. Prior to the ruling states had differing laws on the matter.

That said, a repeal of Roe vs Wade would not in itself make abortion illegal. My position is that I don't see a problem with this matter decided on a state by state basis, but I could be overlooking something obvious. Can anyone shed some light on this issue?
re: Roe vs WadeTJeanloz
Jan 22, 2003 8:19 AM
Speaking strictly in the "states rights" tone and trying to ignore the flammability of the topic, I believe the reasoning is that the right to have control over medical decisions is a basic human right that is protected at the Federal level. If we allowed it to be handled at the state level, it would be akin to allowing other human rights, such as racial or religious policy, to be determined by the states. The issue is whether or not being able to have an abortion is a basic human right.
Pretty good, TJean! The reasoning behind Roe is thatbill
Jan 22, 2003 8:42 AM
there is a right to privacy for reproductive decisions that the state cannot invade in the first trimester, that the state must show a compelling interest to invade in the second trimester, and that the state can regulate in the third trimester, subject to interest analysis and without taking away the right completely (the law has been refined over the years). For certain rights, the Supreme Court basically has never allowed a compelling state interest, so that the second trimester is essentially as inviolate as the first.
Critics say that the Constitution doesn't have a privacy right (literally true, but there's some reasonable precedent for it, going back at least to the recognized inability for states to prevent birth control in Griswold v. Connecticut and arguably much, much further). The better criticism for Roe, which is all but mooted by the acceptance it has received in longevity, is that the author of the opinion (who I believe was Stevens? or was it Blackmun?) did his own medical research into the trimester theory and based his reasoning on old common law concepts of "quickening" -- when the fetus is viable outside the womb -- which was not in the trial record, which is a no-no for appellate decisions. The Court thought that it was important enough to overlook, as, apparently, so did society.
the flaw in the lawFunston
Jan 22, 2003 11:20 AM
No consideration is given for any rights the father-to-be should have regarding the fetus. Privacy of the mother is mentioned, but unclear is the status of the fetus itself- whether it is the property of the mother, or whether the father has certain rights to it; and if so, to what extent.
Its not whether its property or not..butjrm
Jan 22, 2003 11:54 AM
Whether its a fetus or a child in the first trimester of the pregnancy, and whether the pregnancy jepordizes the ehalth of the woman who is pregnant.

Im thinking that because the father is the cause of the condition, could have taken precautions, and doesnt bear of the full burden of carrying a child to delivery his rights in terms of property are null.
was not an issue in RoeDougSloan
Jan 22, 2003 1:56 PM
In Roe, the issue was whether it was constitutional for a state to criminalize receiving or performing an abortion. The father was not as part of that picture.

Doug
I'm curiousKristin
Jan 22, 2003 2:23 PM
Have there been any cases involving women who wanted to have an abortion while the father of the child wanted to be born? What were the decisions?

To me this is one of the more interesting and neglected aspects of the debate. The father may not have been part of the picture in that case; but I believe that the father should be considered. This is my personal moral conviction, of course; but I think that we do men a disjustice when we claim that they have no right involving an unborn fetus. Though there are no studies as of yet; there are indications that post-abortive fathers go through a similar greeving process as post-abortive mothers. (Much in the same way that fathers of mis-carried children also must greeve.) I think that a mans role and greif in these cases is often masked for two reasons. One, society typically makes men out the be the villan in unwanted pregnancies. And two, men are taught to disconnect from their emotions (i.e. boys don't cry).
not sureDougSloan
Jan 22, 2003 2:37 PM
I'd bet there are cases in which these issues have arisen, but I'm not specifically aware of any.

I think the Supreme Court decided that the woman's right of privacy, that is, to control her body, is superior to everything else. It's superior to the right of a state to regulate it in any way, at least before late in the process. Therefore, I assume that they would decide that it is also superior to the right of the father. If I come across a decision, I'll post it.

Doug
Speaking of villians. . .czardonic
Jan 22, 2003 2:38 PM
. . .isn't it the women who get tarred as murderers when they don't want to forfeit their dreams and aspirations to bear and raise some deadbeat's spawn?
By a select few perhapsKristin
Jan 22, 2003 2:47 PM
There are a select few F350 driving rednecks who label you as a spandex-prancing fairy who illegally drive on their roads, slowing them down on their way to pick-up a fresh case of beer... do you listen to them? Your response sound really triggered...did something about my post upset you?
I think its more than a few.czardonic
Jan 22, 2003 2:54 PM
Many might moderate their language, but this concept is a central tenet to the the whold pro-life movement: abortion is tantamount to killing babies. No?

Nothing upsetting about your post.
I think many make the mistake of over-simplifyingKristin
Jan 22, 2003 3:25 PM
To call abortion "killing babies" or "murder" is to extensively over simplifies things. Most of the people who resort to name calling have not seriously pondered the issue--or they have emotional issues of their own that compel them villanize others. One other small minority within the vocal anti-abortion movment are post-abortive women who are reacting to their own unresolved trauma or greif.

The people I encounter who have intelligently studied and considered the debate, do not resort to name calling and minimizing. In fact, anyone who has thought about this HAS to realize that its a supremely complex issue that envelops entire lives and alters futures. I used to fall into the category above. Labeling abortion as murder. Why? Well I went to a nice conservative church and was taught that. And I wasn't thinking for myself. Today, I do think for myself and I would never call someone a murderer for having an abortion. Abortion doesn't fit the legal definition of murder.

Not every father of an unplanned pregnancy is a deadbeat who would force a woman unwilling raise his brood. I think that we confuse the issue when we try to generalize and label people.
That's very true.czardonic
Jan 22, 2003 3:46 PM
Nonetheless it is sometimes necessary to get down to brass tacks. Whatever one's personal convictions, and however complex their motivations may be, the stakes here are fairly simple. Either women have the choice to do with their bodies and their lives what they want, or they don't.
that's an over simplification, tooDougSloan
Jan 22, 2003 4:08 PM
"Either women have the choice to do with their bodies and their lives what they want, or they don't."

It's not that simple, either.

1. The choice does not affect only them and their body. However you want to define it, there is an unborn person, a/k/a a fetus, involved, as well as a father.

2. Some argue that they did make a choice (disregarding rape), and now they must live with the consequences of that choice.

I'm not debating the merits of these issues, but only point out that it is not as simple as the "brass tacks" you describe.

Doug
Ultimately, it is that simple.czardonic
Jan 22, 2003 4:25 PM
Whatever your take on the issues of fetal or paternal rights, the woman's right to choose is fundamental. It is the only thing that is not a matter of opinion. There is no way to be pro-life to the point of advocating a policy change without wanting to limit women's rights over their own body in favor of someone else's.
?Funston
Jan 22, 2003 7:32 PM
i the woman's right to choose is fundamental.

I'm not sure what you mean by this. Abortion is a fetal issue first, not a body issue. As the fetus was created by both a father and a mother, the "right to choose" must not exempt the father's contribution to that choice. THAT is not a matter of opinion. What is a matter for debate is how much weight should the father's wishes carry.

BTW, I don't see "pro-choice" as meaning "women's right to choose", but rather, I see its meaning as "maintaining abortion as a legal choice". Given the latter meaning, I'd say I am pro-choice.
I was thinking about this last nightKristin
Jan 23, 2003 6:56 AM
What if the act of conception is not a simple physical act? What if it someone bonds you to the other person on an emotion level--even when you try not to let that happen? If, by its design, it bonds two people together emotionally and the natural outcome of that act is the creation of a new human being; then, at the time that conception occurs, on some level, you are not dealing with two individuals but one. If the outcome is pregnancy, can we simply decide later to sever that bond?

I hear what your saying about it being the womans body. But I disagree with your comment that its simple. It will never be simple. The tables can be turned any number of ways. What if the woman wanted to carry to term and raise the child and the man wanted her to have an abortion? Should he have a say in that? Could he force her to have it? I think the answer to that question is easy. Yet, then can we say that he has the right to force her to carry to term? Wow, tough issue. But he may genuinely want the child even if she does not. See, nothing simple about this. I think ultimately you're right, and what the courts decided was probably best. The woman has the final say...it is her body and she's the one who has to carry the child. But how tragic for the man who didn't agree with her choice.

Bottom line, for me. I believe that if two people aren't prepared to commit to parenting a child together, then sex is not appropriate for their relationship. This is my PERSONAL opinion. Mine. I'm sure many of you will disagree, and that's all right. But all this mess starts when two people who aren't prepared to parent get pregnant. Am I right?
Whatever your opinion, from a policy point of view. . .czardonic
Jan 23, 2003 10:55 AM
. . .you have to draw the line somewhere. I guess that's what I am getting at by "over-simplifying" the issue.

Once we enter the Brave New World when babies can be raised from the point of conception outside of the female body, I'd say it would be perfectly fair to let a father insist that a pregnancy be carried to term regardless of the mothers desire to keep that child. Until then, even if we free the mother of responsibility for a child that she does not want but the father does, the physical and financial burden of bearing that child falls almost entirely on the mother. Perhaps if the eager father were required to compensate the mother for this service. . .

Then again, it is pretty uniformly recognized that children are ill served by single parents and by unhappy married parents.
Contributing is not creating.czardonic
Jan 23, 2003 10:45 AM
A man contributes his DNA, but the material that a fetus is composed of, including any further copies of the father's DNA, are created solely by the mother.
Contributing is not creating.DJB
Jan 23, 2003 12:36 PM
Correction. The material that a baby uses to build itself is contributed by the mother. Mom is just the Home Depot (no offense Mom!).
Incorrect.czardonic
Jan 23, 2003 12:46 PM
The mother plays a much greater physiological role in development than simply providing raw materials. The father plays absolutely none beyond providing half of the blueprint.
Please give detailsDJB
Jan 23, 2003 12:59 PM
"...including any further copies of the father's DNA..."

How does the mother do that?
It seems pretty obvious to me.czardonic
Jan 23, 2003 1:09 PM
During pregnancy, the molecular components of DNA in newly created cells are drawn from the mother's body.
That's what I was saying.DJB
Jan 23, 2003 1:21 PM
The molecular components of DNA are the raw materials. Before the cell divides, it duplicates the DNA using the raw materials. But the raw materials are useless unless they are put in the proper order. The cells (baby) do that, not the mother.
That's a fraction of the story.czardonic
Jan 23, 2003 2:05 PM
For starters, you are ignoring the physiological components and processes that are exclusive to the mother.

Second, suppose we gave DNA the sole credit for development. Once fertilization is complete, can one really refer to the father's or mother's DNA? Hasn't it become the child's DNA?

Either way, the father's role is done at the point of insemination.
Exactly!!DJB
Jan 24, 2003 8:27 AM
"Once fertilization is complete, can one really refer to the father's or mother's DNA? Hasn't it become the child's DNA?"

Whether or not you realize it (or will admit it). Your statement is the foundation of the pro-life argument.

After an egg is fertilized, it is a new person. An individual. It is neither the father's or mother's DNA. The DNA has all the information necessary to create the child. It has the information to create muscle, kidneys, brain and skin, etc, (in the proper sequence) as well as the information necessary for those parts to function. It has the information that specifies the color of the eyes, shape of the nose, and what the fingerprint pattern will be.

This is not to say that the mother is a passive participant("ignoring the physiological components...", nor were my comments really about the role of the father, but rather are about the mindset that says that a mother 'creates' or 'gives life to' the child. This mindset gives the mother 'ownership' of the child as if it is her property.
Unarguably individual. "Person" is another matter.czardonic
Jan 24, 2003 9:38 AM
Personally, I think that potentiality is a moot point. After all, from the first twinkle in a man's eye in the presence of an ammenable woman, all of the "information to create muscle, kidneys, brain and skin, etc, (in the proper sequence) as well as the information necessary for those parts to function" is present. Moreover, many feel that it is morally wrong to intervene in this forgone conclusion with such means as birth control. I myself draw the line at the point when the new individual can be seperated from the unwelcoming mother and dropped in lap of someone such as yourself.

Even if the "child" is not her property, her own body is. Isn't doing with our bodies what we please the most fundamental of freedoms?
Unarguably individual. "Person" is another matter.DJB
Jan 24, 2003 10:56 AM
"from the first twinkle in a man's eye in the presence of an ammenable woman, all of the "information to create muscle, kidneys, brain and skin, etc, (in the proper sequence) as well as the information necessary for those parts to function" is present"

I'd say that the two necessary halves of the information are at least in the same room;) But until that lucky sperm enters the egg and the two halves of the DNA join together like a zipper, it is all speculation. It's hardly "forgone".

"Isn't doing with our bodies what we please the most fundamental of freedoms"

It isn't what she's doing to her own body that's the issue, it's what she's doing to someone else's body.
Or put another way. . .czardonic
Jan 24, 2003 11:20 AM
. . .what that someone else is doing to her body. How about this: every life that you "save" from abortion becomes your responsibility. Sound fair?

The continuation of life is never a forgone conclusion.
Read more53T
Jan 23, 2003 6:23 PM
In constitutional arguments, "fundamental" has a definition, and it snot how you are using it. A fundamental right in the context of the federal government (which is the subject matter of the Constitution) is a right that exists due to the formation of the union from several soverign states. The right of free travel between the states for instance.
We left the realm of the constitutional about 6 levels up.czardonic
Jan 23, 2003 6:31 PM
I was stating my views from a physiological point of view.
Second thoughtKristin
Jan 22, 2003 2:54 PM
kristin6@hotmail.com
I think your view is discriminatoryFunston
Jan 22, 2003 2:15 PM
i because the father is the cause of the condition...

That implies the woman as a helpless victim, which is hardly the case with consensual intercourse. The law should be gender-neutral here, and recognize that pregnancy is a shared responsibility between a man and a woman, barring rape.

i (the father) could have taken precautions...

Again, the implication is that a woman is helpless and irresponsible in the matter, and the man is fully responsible. We all know that birth control is available to both men and women; therefore the responsibility of insuring that precautions are taken is shared.

i (the father) doesnt bear of the full burden of carrying a child to delivery......

True, and this should be strongly considered in a scenario where the father-to-be opts for birth while the mother chooses abortion. However, in a scenario where the father-to-be opts for abortion while the mother chooses birth, this should not be a considered issue.

i his rights...are null.

Fellow men, it's time to stand up and be counted.
Wow53T
Jan 22, 2003 2:11 PM
I've studied civil rights and the history of the Supreme Court at Chamelot High. I've never seen a recital of the privacy theory (Blackmun) or a correct reference to Griswold in a forum like this. Kind of restores my faith in humanity, just a little.

The central concept that the Americans have problems with is the role of the Supreme Court. Almost all of their decisions are based on Constitutionality of the actions of another government agency, be it federal or state. The Court does not generally create "rights". (although in Roe they found a right in the Constitution that nobody had noticed before).

The following arguments about he father's rights are a good example of this problem. The discussion will continue for days without a rational examination of the role of the state, the court, or the law. They will talk about the right of the father to detremine the future of his unborn child, despite the fact that no important court has found that any such right exists. The right of the pregnant woman to bodily privacy is the right that the Supremes found to be the most important one in the case.

I'd be interested to hear your take on Webster v. Reproductive Health (1989?) as a dilution of the right of privacy established in Roe.

BTW, Blackmun did legal research on quickening, not medical. The medical field as we know it did not really exist when the Common Law concept of quickening was established. Germ Theory had not been introduced, and what preceded it was out-and-out voodoo.
The right to bodily privacyFunston
Jan 22, 2003 2:42 PM
The government says you cannot use marijuana without any clear basis to justify its illegality; couldn't one use the 14th amendment to assert their right to smoke it?

I would argue that pregnancy is a special circumstance where the involvement and responsibility of a second party (the father) in the issue cannot be ignored. The second party should therefore have some measure of consideration in the matter of termination/continuation of the pregnancy.

One instance where a father's consideration should carry major weight is when an accidental pregnancy occurs with a couple who, prior to the pregnancy, had agreed to an abortion in the eventuality of such an accident occurring. In this scenario, should the woman change her mind after the pregnancy and opt for birth without the man's agreement, then the man should have legal rights that could lead to the pregnancy being terminated.
The real double standard that punishes fathers.czardonic
Jan 22, 2003 2:49 PM
As it stands, a father can't force a woman to bear and raise a child that she doesn't want, but a woman can force a father to contribute to the support of children that he doesn't want. Let each party bear the sole responsibility for their own choices. Nobody relishes the idea of termiating a pregnancy, but its a fact of life that coercing people into parenthood serves nobody, least of all the unwanted child.
different levels of rightsDougSloan
Jan 22, 2003 2:52 PM
Certain rights, "fundamental rights", require the government to show a compelling interest necessary to abridge them, and subject the government to "strict scrutiny" while doing so. Examples of fundamental rights include free speech, voting, those specifially enumerated in the Constitution, and privacy. It's rare that the government can do this.

Ordinary rights, for example, the right to travel, are subjected to lower levels of scrutiny, and the government must only show that abridgment is rationally related to a legitimate state interest to abridge them. The government is almost always able to do this.

There is an intermediate level, too, but it's not common.
different levels of rights53T
Jan 23, 2003 6:45 PM
Since the early 60s there have been created at least 4 levels of scrutiny for the actions of State governments that tend to restrict individual liberties. The level of scrutiny is not cleary tied to the right being abridged, but rather to the group of people who's rights are being abridged. For instance a state law that discriminates against blacks in favor of whites will recieve strict scrutiny and never stand (nothing can really stand up to strict scrutiny). A law that favors blacks over whites will recieve a lower level of scrutiny (until recently almost all affirmative action laws survived "medium scrutiny level 2") A state that moves to deny deadbeat dads a drivers licence will meet with a little scrutiny, but will usually not a have a problem, if they can point to how this protects their citizens health, safety and morality. A state that wants to retest drivers who are over 70 before they renew thier license would get ?? scrutiny. The public safety argument is strong, but old people are a traditionally opressed group, but not as traditionally oppressed as blacks or native Americans.

The Court is a facinating institution. Once you grasp the central concepts, every case reads like a new chapter in the history of a young country experimenting with democracy for 220 some odd years.

Also, be careful with fundamental rights, the definition is misleading. The rights in the Bill of rights are from the creator, fundamental rights arise from the formation of the union. These are different. You had a right free expression long before there was a United States, but you had the right to travel freely between states and to ship goods without tarrif between states only upon the formation of the union.
Pot?53T
Jan 23, 2003 6:30 PM
I can't support the federal government's prohibition of pot smoking, I'm not even sure there is one. However, A soverign state has a compeling intrest to protect the public health, safety an morals (who said that, Brandeis?). In civil rights discussions it is necessary to state whether you are refering to state government or federal government, since the rules are different. Unless of course you are trying to make a point that you can't justify, then it is OK to be obtuse.
re: Roe vs WadeJon Billheimer
Jan 22, 2003 8:53 AM
This is a little off-topic, but there was an item this morning in the Edmonton Journal about Roe vs Wade. It seems that Roe's lawyer is still a fervent pro-choice advocate. However, Roe (her name has been changed) converted to Catholicism and is now an anti-abortion activist. She has said, also, that she lied about requiring an abortion because she had been raped.
RoeDougSloan
Jan 22, 2003 9:58 AM
FYI, "Roe" is a made up name, like "John Doe."
here's the actual opinionDougSloan
Jan 22, 2003 10:25 AM
http://www.tourolaw.edu/patch/Roe/
I think many miss the point of the decisionDougSloan
Jan 24, 2003 10:11 AM
Roe had nothing to do with Constitutional analysis, viability, criminal law, or morality. It was a political decision, or at best, a pragmatic one. Sure, there are lots of political and pragmatic decisions from the Supreme Court.

Basically, the Court recognized that: 1. half the country is women; 2. many of them want to be free to have abortions, and will one way or another. They can do so illegally and/or dangerously, or they can do so more safely, with their conscious as their guide.

It was appeasement, pure and simple. The Court created a special right just for this case (I think this was the first recognition of privacy as a fundamental right, at least in a bodily context), to placate many women (half the population).

The Court cannot come out and admit what it did. It would lose credibility. So, it must cloak the decision in Constitutional context. Personally, I think the Court made a somewhat wise decision as a practical matter, even if wrong according to it's authority and the Constitution. It essentially created a right out of thin air and ignored the 10th Amendment ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.")

Doug