Abortion is Unconstitutional

[guitars_are_fly]

Besides considering the moral or ethical aspects of abortive procedures, and perhaps beyond those arguments, one must consider the legal aspect. At is simplest, abortion is the depravation of a human's right to life. Only through failing to acknowledge a fetus as uniquely human can this practice be constitutionally justifiable.

I, of course, reference the "Due Process Clause" of the Fourteenth Amendment: "...nor shall any State deprive any person of life, liberty, or property, without due process of law."

A careful review of the Amendment will show that, while a ban of abortion may not have been an intended prospect of the Amendment's scope, the text clearly defines a key boundary between the states' rights and peoples' rights: a person, in this sense, is given to the most general definition: a human being. The previous clause, which defines citizenship, deals only with those persons (human beings) "born or naturalized in the United States)." However, the "persons" of the "Due Process Clause" are left to liberal definiton.

Therefore, abortion -- which is the deprivation of a person's (human being's) right to life -- is unconstitutional.

[HelioPrime]

Pro choice supporters just define an unborn fetus as something other than human. By setting a limit it gives a free reign for people to choose an abortion.

With that in mind the only thing the constitution protects then is the rights of women to be free from government interference over their own bodies. Pro choice folks have already won as long as they can define an unborn fetus as something not human.

[guitars_are_fly]

Governments are instituted to defend peoples' three Principal Rights -- to life, to liberty, and to property. The government's only responsibility, therefore, is the defense of these rights. Beyond that capacity, the federal government excercises a degree of power whose scope was not contemplated by the Founding Fathers. Indeed, they left behind voluminous writings detailing their intent in framing the Constitution.

To address the "pro-choice" view of a fetus:

A fetus is not, by any rational definition, an extension of a woman's body. It is rather a tenant whose existance is a byproduct -- or result -- of the union of a man and woman. Consider this: a human is of the species Home sapiens. Regardless of the stage of its development, from conception to birth, from childhood to adolescence, and from adulthood to death, it is no less a member of the species Homo sapiens. To discredit this fact is to defy a scientific principle.

Refer to the Declaration of Independence: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain Inalienable rights, that among these rights are life, liberty, and the pursuit of happiness..."

"Man," in this sense, does not refer to a male, but to a member of the human family. Otherwise, woman would be excluded from these "inalienable rights" to life, to liberty, and to property. Unless it is scientifically provable that a fetus is not a member of the species Homo sapiens, one must conclude it is, in and of itself, inviolably "human."

[ShadowFox]

So any group of cells on a human, if purposely killed, should be considered murder? If you have your tonsils removed, are you a killer?
Also, the constitution doesn't apply to cells. If it did, we'd have HUGE problems.

[guitars_are_fly]

Quote by: Halofan48 So any group of cells on a human, if purposely killed, should be considered murder? If you have your tonsils removed, are you a killer? Also, the constitution doesn't apply to cells. If it did, we'd have HUGE problems.

No. Not all groups of cells on a human being are human beings themselves. A group of hair follicles left upon a hair brush will not develop into a cognescient entity. A fetilized zygote contains a totally unique genetic blueprint from every other living cell that composes a woman's body. In effect, a zygote (that's a fetilized egg) is very different from a skin cell, in that it is a separate entity.

The Constitution does apply to all members of the human family subject to its jurisdiction. Skin cells are not humans, but zygotes are. Embryos are. Fetuses are. Infants are. And we are.

[tivodan1116]

Quote by: guitars_are_fly To address the "pro-choice" view of a fetus: A fetus is not, by any rational definition, an extension of a woman's body. It is rather a tenant whose existance is a byproduct -- or result -- of the union of a man and woman. Consider this: a human is of the species Home sapiens. Regardless of the stage of its development, from conception to birth, from childhood to adolescence, and from adulthood to death, it is no less a member of the species Homo sapiens. To discredit this fact is to defy a scientific principle.

The problem is, you are saying that abortion is Unconstitutional, that is, against the law (supreme law of the land).

Legal definitions are not the same as moral, ethical, or even "rational" definitions.

By the common law definition of "person" a fetus is not a person. Every state has, for the purposes of their law, adopted a similar definition.

As an example, a definition of "person" from the NYS Penal Law:

Quote by: McKinney's Penal Law of NY s.125.05(1) "Person" means a human being who has been born and is alive.

So, sorry, but you're making a legal argument, therefore you have to use legal definitions, and by legal definitions, a fetus is not a "person".

Thanks for playing, though.

[guitars_are_fly]

You cannot invalidate that entire argument by reference a state's legal definition, passed in pursuit of a provably irrational doctrine. By your logic, however, a state could define a "person" as only someone with blue eyes. There is no constitutional limitation on the scope of a state's authority to define "personhood."

The definition of "person" is a constant: there is only one acceptable dictionary definition that covers all aspects of the spectrum. A state's interpretation of that definition is, unlike a scientific definition, subject to change with each session of the legislature.

[guitars_are_fly]

PS: That actually reads:

"S 125.05 Homicide, abortion and related offenses; definitions of terms. The following definitions are applicable to this article:
1. "Person," when referring to the victim of a homicide, means a human
being who has been born and is alive."
FindLaw for Legal Professionals - Case Law, Federal and State Resources, Forms, and Code

[tivodan1116]

Quote by: guitars_are_fly You cannot invalidate that entire argument by reference a state's legal definition, passed in pursuit of a provably irrational doctrine.

You're not getting it. Legal definitions have nothing to do with rational/irrational lay-arguments.

By your logic, however, a state could define a "person" as only someone with blue eyes. There is no constitutional limitation on the scope of a state's authority to define "personhood."

That's correct. Unfortunately for your argument, everyone with the legal power to define the word has excluded fetuses from that definition.

The definition of "person" is a constant: there is only one acceptable dictionary definition that covers all aspects of the spectrum.

Courts and legislatures do not use dictionary definitions, they use legal definitions.

A state's interpretation of that definition is, unlike a scientific definition, subject to change with each session of the legislature.

Correct.

Your argument is a non-starter.

You say abortion is unconstitutional, when it has been found to be Constitutional repeatedly. Your argument doesn't contain any support for the notion that it is unconstitutional, you only make morality and ethics arguments, which are not legal arguments.

Make a legal argument that abortion is unconstitutional, using legal definitions.

If your argument is that abortion is morally or ethically wrong, start another thread or join one of the 10,000 threads already on here about that.

[guitars_are_fly]

Quote by: tivodan1116 That's correct. Unfortunately for your argument, everyone with the legal power to define the word has excluded fetuses from that definition. You say abortion is unconstitutional, when it has been found to be Constitutional repeatedly. Your argument doesn't contain any support for the notion that it is unconstitutional, you only make morality and ethics arguments, which are not legal arguments.

[Louisiana] LA R.S. 14:2 (7) "Person" includes a human being from the moment of fertilization and implantation and also includes a body of persons, whether incorporated or not.

[New York] S 125.05 Homicide, abortion and related offenses; definitions of terms. The following definitions are applicable to this article:
1. "Person," when referring to the victim of a homicide, means a human being who has been born and is alive."

Abortion has been found repeatedly constitutional based on a women's rights interpretation of the right to privacy concerning the biological functions of her body. Ultimately, the responsibility of the U.S. Supreme Court within its appelate capacity extends to the interpretation of the Constitution according not to its spirit, but to its meaning, which is unchanging. The definition of "person" as it was understood by the people who wrote the Fourteenth Amendment was "human being," specifically because of its implications against restrictive Black Codes or, later, De jure ("Jim Crowe") segregation. To interpret applicability in any manner inconsistent with the definition understood by the Amendment's writers would constitute a breach of the Supreme Court's jurisdiction. As the final arbiter of issues of Constitutionality, the full scope of the Constitution, which includes its Framers' intent, must take precedence. In effect, one must conclude that the Court interpretation of a woman's right to privacy -- the basis of the flawed Roe v. Wade decision -- erroneously placed emphasis on an individual's right to property over another individual's right to life, excercising a degree of latitude certainly not contemplated by the Framers. It is not within the scope of the Court's power to establish a superior definition for "personhood," or, through indirect action, establish a precedent for such a definition to evolve. That power must, by simple exclusion, belong to the states, who, deriving their power from the people, are subject to the jurisdiction of the same.

As someone with a vaunted knowledge of United States case law and criminal codes in their applicability to the legal definition of "personhood," you surely must recognize that nearly every state's pro-abortion stance followed in pursuit of Roe v. Wade. You must also consider that only California, Connecticut, Hawaii, Maine, Maryland, Nevada and Washington have enacted legislation to preserve the legality of abortion if the Roe v. Wade ruling is overturned.

[Chris the Chees]

You must also consider that only California, Connecticut, Hawaii, Maine, Maryland, Nevada and Washington have enacted legislation to preserve the legality of abortion if the Roe v. Wade ruling is overturned.

Forgive my ignorance of US law (as a foreigner it is often unavoidable), but surely if some states have enacted laws which render Roe v. Wade being overturned irrelevent in their state, it makes overturning Roe v. Wade somewhat irrelevent? Presumably if abortion were to be made illegal in say Nevada, its pregnant citizens could just corss the border into California and have the abortion there and then just turn about and go home. Or am i mistaken in making that assumption? I raise that point because something similar has been the case in Ireland.

[guitars_are_fly]

Interesting question, and certainly a valid point.

Simply speaking, were Roe v. Wade overturned, only those seven states would preserve the legal institution of abortion based on the Supreme Court's prior interpretation of the Fourteenth Amendment's restriction of infringements of the intrinsic right to privacy (an extension of the Lockeian Principal Right to property). In that respect, only 14% of the states would instantaneously protect that institution, and abortions in other states, who might then act to withdraw any obligations of state funding of abortions, may be rendered economically impractical -- that is, prohibitively expensive, considering transportation costs and hospitalization fees.

The question of states' jurisdiction has been consistently debated. Consider Mississippi's restrictive alcohol laws, which forbid the sale of alcohol on Sundays. Were a Mississippi citizen to travel to Louisiana, purchase two cases of Bud Light, and travel back to Mississippi, would they be in violation of these laws? Simply put, yes. Mississippi highway patrol officers could confiscate the alcohol or punish the infraction according to a number of penal codes. Similarly, consider this fictional situation. Mississippi declared automobile theft a legal practice. Could a Louisiana citizen travel to Mississippi, steal a car, and then travel back to Mississippi without consequence?

The issue is very complicated. Depending on a state's interpretation of the constitutional prohibition of ex post facto laws, the Supreme Court of the United States must act in its most direct faculty: judge between the states. Were the Court to uphold a Nevada citizen's right to abortion in California, then, yes -- such a thing is, apparently, constitutional. Were the Court to rule that Nevada citizens are subject to the authority of the state of Nevada, regardless of where the travel, then, no -- an abortion would still be illegal for a Nevada citzen to pursue. In that instance, existing laws and their consequence are not classifiable as ex post facto, and would be quite puishable.

In short, a Constitutional amendment defining "personhood" would be the surest effective ban of all abortions. However, interpreting the Constitution as it appears seems to suggest that practice is already unconsitutional.

[Chris the Chees]

In short, a Constitutional amendment defining "personhood" would be the surest effective ban of all abortions.

Unless of course amendment defined 'personhood' as beginning at birth, or alternatively at some point during pregnancy. The latter is the system used in the UK which has banned abortions (though I believe with certain exceptions) after 24 weeks of pregnancy.

[guitars_are_fly]

Quote by: Chris the Chees Unless of course amendment defined 'personhood' as beginning at birth, or alternatively at some point during pregnancy.

I meant that, if abortion is to be effectively banned from America, it would have to be through a constitutional amendment that defined "personhood" according to the scientific principle, when it took on fully human characteristics -- that is, at conception.

Roe w. Wade established a precedent, that no fetus be aborted past its point of viability -- that is, the point at which it could survive outside the uterus. The medical sense of "viability" has, however, been disputed. Some scientists reason that ordinary brain wave patterns, and the beginnings of what we recognize and define as "consciousness" actually begin much, much sooner than the point of physical viability. In fact, in the exceptional case of Amilia Taylor, who was born prematurely, science was able to show a fetus is able to survive after as little as twenty-one weeks after fertilization. The point of viability, therefore, appears to be heavily relative, with the closest generalizations placing it between 24 and 28 weeks.

Because of undifferentiated respiratory and nervous systems as a result of underdevelopment, younger fetuses are unable to survive outside the womb, even with the artificial aid. However, in as little as nine weeks, the fetus has taken on nearly every aspect of what is human; it is a sentient being, and an inviolable member of the human family. The ban of abortions in the "third trimester" (partial-birth abortions) fails to account for the sentience and individual characteristics of the fetus, which had become its own "person" at the moment of fertilization. It is, however, while simply a restriction on the extent of the Roe v. Wade ruling, a step in the right direction

[ShadowFox]

For the state line thing, they aren't bringing it back. Like, lets say your 16. You travel to a European country. There , you can drink alcohol. If you drink it, they aren't going to punish you when you come back (unless you brought some back). Since someone isn't going to bring a fetus back home with them, there'd be difficulty in prosecuting them. Or, if it gets real bad, maybe the people would feel like your denying them their rights and move to the states that do allow it. Hopefully California is one of them, it'll give us even more say in government affairs

Also, the last time i checked, the constitution and amendments are for how the government is to be run, what it can and can't do, not to decide what the people can and can't do. An amendment defining "personhood" as you put it is silly.

[ShadowFox]

ah, a similar to the argument to that of the heartbeat argument. Well, what if the lungs don't work. It'd die if born right then. What if it's bones haven't fully developed. Etc.

[Sonart]

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Quote by: guitars_are_fly A fetilized zygote contains a totally unique genetic blueprint from every other living cell that composes a woman's body. In effect, a zygote (that's a fetilized egg) is very different from a skin cell, in that it is a separate entity.

Then it's a potential human being.

Quote by: guitars_are_fly Skin cells are not humans, but zygotes are. Embryos are. Fetuses are.

No, they're not. And here we are.

.

[guitars_are_fly]

Quote by: Halofan48 Or, if it gets real bad, maybe the people would feel like your denying them their rights and move to the states that do allow it. Hopefully California is one of them, it'll give us even more say in government affairs. Also, the last time i checked, the constitution and amendments are for how the government is to be run, what it can and can't do, not to decide what the people can and can't do. An amendment defining "personhood" as you put it is silly.

You're absolutely 100% correct. The Constitution limits the power of the federal and state governments. The federal and state governments, however, dictate the power of the people. Consider that murder is not discussed in the Constitution, because the authority to prohibit murder is not a power of the federal government. It is, however, the obligation of the federal governement, by virtue of its foregoing powers, to oblige the states themselves to prohibit murder. If the responsibility of the states, then, is considered consistent with the virtues of just government, states are required to defend their interests by defense of their people's rights to life, to liberty, and to property.

What you fail to understand, then, is that an amendment defining personhood consistent with a rational, logical, scientific definition -- that is, when the organism is a member of the human family, at fetilization -- would act to directly prohibit a state's sanctioning any action that deprived such a "person" of his or her Principal Rights. Through the "Due Process Clause" of the Fourteenth Amendment, no state could consciously set into motion, condone, support, fund, or in any other way legalize a series of events that would, directly or indirectly, lead to a violate of the Principal Rights. It's not "silly." It's elegant, and it's foolproof.

[tivodan1116]

Quote by: guitars_are_fly Abortion has been found repeatedly constitutional based on a women's rights interpretation of the right to privacy concerning the biological functions of her body.

And yet the title of your thread, strangely, is "Abortion is unconstitutional".

The argument that a fetus is a person was made, unsuccessfully, in Roe v. Wade. Therefore, your argument has been litigated to its fullest extent unsuccessfully. The issue is settled - abortion is constitutional until the Supreme Court decides otherwise.

Ultimately, the responsibility of the U.S. Supreme Court within its appelate capacity extends to the interpretation of the Constitution according not to its spirit, but to its meaning, which is unchanging.

In your opinion. That is one valid argument for a method of interpreting the Constitution. Since the Constitution does not contain instructions for interpretation, there are many methods of interpretation that could be considered to be valid.

The definition of "person" as it was understood by the people who wrote the Fourteenth Amendment was "human being," specifically because of its implications against restrictive Black Codes or, later, De jure ("Jim Crowe") segregation.

Do you have any proof of this? Once you show proof that they considered person=human being, then show that those writers considered fetus=human being. I'm particularly interested in that part, considering the state of medical science at that time...

To interpret applicability in any manner inconsistent with the definition understood by the Amendment's writers would constitute a breach of the Supreme Court's jurisdiction. As the final arbiter of issues of Constitutionality, the full scope of the Constitution, which includes its Framers' intent, must take precedence.

In your opinion. Again, that is one possible method for interpreting the Constitution. There are many.

In effect, one must conclude that the Court interpretation of a woman's right to privacy -- the basis of the flawed Roe v. Wade decision -- erroneously placed emphasis on an individual's right to property over another individual's right to life, excercising a degree of latitude certainly not contemplated by the Framers.

No, one must not conclude this. One could just as easily conclude that fetus' are not people and so therefore do not have Constitutional rights. In fact, that is part of what a majority of the Supreme Court concluded in Roe v. Wade.

It is not within the scope of the Court's power to establish a superior definition for "personhood," or, through indirect action, establish a precedent for such a definition to evolve. That power must, by simple exclusion, belong to the states, who, deriving their power from the people, are subject to the jurisdiction of the same.

Regardless of whether they did that or not, it is precisely their job to determine what those words mean in respect to the Constitution. Therefore, again, in relation to your argument that abortion is "unconstitutional", it is not. Supremacy and incorporation dictate that the Constitution provides a "floor" of personal rights which the states must provide at a minimum. Since the Court has determined that privacy with respect to abortions is one of those rights incorporated to the states, they cannot override that decision.

Incidentally, the Federal government also derives its power from the people, so I don't see how that is a distinction of the states.

As someone with a vaunted knowledge of United States case law and criminal codes in their applicability to the legal definition of "personhood," you surely must recognize that nearly every state's pro-abortion stance followed in pursuit of Roe v. Wade. You must also consider that only California, Connecticut, Hawaii, Maine, Maryland, Nevada and Washington have enacted legislation to preserve the legality of abortion if the Roe v. Wade ruling is overturned.

I don't see what either of those statements has to do with whether or not abortion is Constitutional. Please stick to either attempting to prove your wholly futile argument, or start another thread about the morality of abortion, which is what you seem to want to argue anyway.

[guitars_are_fly]

Your argument is seriously flawed.

Quote by: Halofan48 For the state line thing, they aren't bringing it back. Like, lets say your 16. You travel to a European country. There , you can drink alcohol. If you drink it, they aren't going to punish you when you come back (unless you brought some back). Since someone isn't going to bring a fetus back home with them, there'd be difficulty in prosecuting them.

.
First: The UK and the United States are different countries with different sets of laws. Also, the consumption of alcohol by minors is rarely prohibited in the United States, provided it is within reasonable perimeters. Consider Louisiana, where the drinking age is, of course, twenty-one. The term "drinking age" is a bit counter-intuitive. It is not the age at which a person is legally able to drink alcohol, but the age at which a person is legally able to purchase alcohol. There's a significant difference between drinking a beer at your older brother's bachelor party and trying to buy a case of beer from Wal-Mart.
The item, here, is not the illegality of the subject, but the illegality of the practice. Purchasing alcohol when one is underage is against the law. Drinking it is not necessarily illegal. Possessing an aborted fetus is not prohibited (although, they are classified as "medical waste"). Aborting the fetus in the first place would be illegal. If you went to Europe and had the abortion performed, however, you would be subject not the United States laws, but to Europe's laws. To conflict with Europe's laws would be to conflict with the enumerated powers of the various states. Recall that the federal government should have no distinct power in this matter, so the states must, then, be the violators of an international law.

Quote by: Halofan48 Or, if it gets real bad, maybe the people would feel like your denying them their rights and move to the states that do allow it. Hopefully California is one of them, it'll give us even more say in government affairs.

People elect the state legislatures, who, in turn, vote in conventions to ratify amendments to the Constitution already accepted by a similar number in the legislature. You must ask yourself if a significant number exists to displace a statistically substantial margin of concerned persons who would obviate the ban of abortion in their state by circumventing it and moving to a different state. 33% of the country cannot up and move to California.