Monday, April 03, 2006

The Thin End Of The Wedge? South Dakota's Abortion Ban

Let it never be said that I agree with much of anything said or professed by Rush Limbaugh. He did, however, make a statement long ago about abortion being the "next civil war." While this sort of hyperbole is out of line (and also a large part of Limbaugh's schtick), this seems like one of those issues that will just not go away and there is no solution in sight.

Then comes, at the end of last month, a development in South Dakota that forced the issue back to the fore. The South Dakota State Senate passed what would be the strictest anti-abortion legislation in the nation. Governor Mike Rounds (R) is expected to sign the bill into law. Basically (if you did not read the above links) the law would outlaw abortion in every case unless the life of the mother was demonstrably at risk.

There are, naturally, many issues involved here. First, this seems to challenge the 1973 Roe v. Wade decision in the U.S. Supreme Court that protects the right to access to an abortion from the interference of the government. In this way, there does seem to be a challenge from a state to a pronouncement of a federal branch decision. This introduces problems of federalism and the issue of the legitimacy of judicial review, a precedent in American and British jurisprudence, but not a constitutional power accorded to the Supreme Court.

As to these issues, I think that it should be the states and not the federal government that makes these decisions and this is based on my conviction that the idea of judicial review, as instituted in the 1803 Marbury v. Madison decision is counter to the spirit of the Constitution and its delineation of the powers of the judiciary and also the separation of powers that lies at the heart of the federal system (as defined in the Tenth Amendment). So, in summary, I do not believe that it is within the power of the federal government, owing to the shaky precedent of judicial review, to enact legislation that is beyond the purview of the powers outlined in the Constitution. In this sense, I agree that South Dakota has the right to make its own laws concerning abortion.

I do not, however, in any way agree with the text or spirit of the law as passed in South Dakota. These sorts of laws, aiming at prohibiting what the state (or its rulers at the time) feel to be deleterious or morally wrong, strike at the very heart of our conception of human rights. If we consider property rights, what does a person own without question? It can be argued that there is no justification for private property as we (and the framers of our system) understood it. O.K., for now let's take that as stipulated. So, what do we REALLY own?

The answer, and I think this is plain to see, is ourselves, our bodies and minds. If this is not the case, then we are slaves in theory and in reality. This is not the case...at least not yet.

I believe, therefore, that while South Dakota may make such laws as they see fit, it is wrong to deprive people of sole province and dominion over the dispensation and condition of their person. People should be able to do whatever they want to their bodies, provided that it harms no-one else.

Then the issue becomes, if the foetus is indeed a "person," does this not require that it be protected from the above mentioned liberty of the person over, well, their person. I think not and it is because can a foetus truly be said to have full, conscious and abiding control over its person? This cannot be the case when it is dependent on another for everything. When they become viable apart from the mother, then they are indeed people and subject to the natural rights that are possessed by all people.

How can a baby have rights? It can have rights because it can suffer a wrong, such as neglect or abuse. Does this not then prohibit the killing of a foetus before it is born? No, simply because a foetus cannot survive without its mother but a baby, wether in it's parents care or someone elses, can.

Does this settle the issue. Of course not. It comes down to a matter of principle, and these can always be tricky.

One interesting "market reaction" to this law came from, of all places, the Oglala Sioux Tribe. The chief of the tribe wants to open up an abortion clinic on tribal lands, stating (rightly so) that tribal lands have a measure of sovereignty beyond that of the U.S. government or any state or locale. I say to that, good show. Way to react to a need and desire of the people that is taken away by the state.

May your venture flourish in these tough times where the rights to basic personal dominion are threatened by moralizing politicos who favor an exclusive religion from the inclusion of basic human rights.

4 comments:

Lost A Sock said...

Really, Will, it’s not about morality mixing with government. It’s about such a very basic right – if the government supports and protects – going as far as to give money, food, and a place to live to those who choose not to take care of themselves, patrolling the neighborhoods where people are known to randomly shoot and beat the hell out of each other, then why the hell shouldn’t it protect the unborn? From the moment that baby comes out of its 15-year-old, dirt poor, inexperienced mother who has no health insurance to pay the medical bills, no money to feed the baby, the government will step in and provide for the baby. When the mother beats the baby, the government will take the baby away. But let her kill it while it’s in her body, because most naturally, it’s hers. And don’t tell her parents. That would infringe on her privacy. And she’ll do it again next month, because it’s her chosen form of birth control – and she has no one to answer to.

What is the difference between my three month old now, and what he was four months ago? I’ll tell you, not much. He smiles, and he has a bit of head control. That changes everything? It’s such a messy argument. I could choose to kill my baby until the day before he was born, but kill him the next day and it would send me to prison. But if *you* kill my baby while he is in my womb, you will be imprisoned and labeled a cold blooded killer. Why? Because I wanted the baby? Would you serve no time if I told the judge I didn’t really want the baby, and you were saving me money on an abortion? Why is it a baby if it is wanted, but something else – something disposable – if it’s not?

How sad to live in a country full of endless opportunities, where you are only entitled to pursue them if your mother chooses not to prematurely rip you from her womb and have your brain scrambled. It boils down to being irresponsible, and holding ourselves to bullshit standards.

In the end, I really could give a crap about the government’s role in all of this. There’s no question about the value of life, and whether it exists in the darkness of a uterus. If you kill it, before or after its birth, you will answer for it.

Frema said...

Wow, Molly!

And I agree, although I am scared as to what other areas of control the government may venture into if Roe vs. Wade is overturned.

Lost A Sock said...

Re-reading this morning I realize that I came off sounding harsh. That was not at all intended, and is possibly why I so rarely speak up on the issue. (Way to be vague on my feelings, eh?)

Yes, Frema - the "big brother" thing scares me too.

$ K-Diddy $ said...

Will you had me until the end. I believe that abortion is moral relativism at its worst; by dehumanizing a dependent fetus we allow our selves to draw artificial distinctions of life. The idea of life being preserved only when it becomes sufficent to sustain itself is a flawed principle based upon even our scientific reality. Even on a purley scientific level water is not water if it is only hydrogen and water is not water if it is only oxygen. When 2 hydrogen molecules combine with 1 oxygen molecule we are told water is created, why not then when a sperm and an egg combine is life not created. I loved the post but respectfully disagree with the conclusion.

Your Friend $ K-Diddy $