Roe V. Wade to be Overturned - Page 37 - Politics Forum.org | PoFo

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#15228933
@wat0n

Your attempt at a rebuttal suggests that US citizens are now going to be subject to a law that was considered normal by people who thought women were biologically inferior.

And frankly, Hale was a liar who simply invented laws on the spot to hurt women, so his views on abortion may be the same.

Alito seems to think that using a misogynist from an inegalitarian era makes sense.

You and @Drlee seem to agree with him. Can you explain why the UsA should base legal policy on a Cromwell era woman hater that made stuff up?
#15228935
Pants-of-dog wrote:@wat0n

Your attempt at a rebuttal suggests that US citizens are now going to be subject to a law that was considered normal by people who thought women were biologically inferior.

And frankly, Hale was a liar who simply invented laws on the spot to hurt women, so his views on abortion may be the same.

Alito seems to think that using a misogynist from an inegalitarian era makes sense.

You and @Drlee seem to agree with him. Can you explain why the UsA should base legal policy on a Cromwell era woman hater that made stuff up?


So now you are having a problem with the fact that the US (and Canada, for that matter) consider common law as a source of law?

Do you have any logical arguments to make or you'll just limit yourself to attacking a 17th century jurist?

And by the way, I don't think either he or I said anything like what you're suggesting. Maybe you are the one who's having anger management issues :)
#15228936
@wat0n

Since you were not even aware of who Sir Matthew Hale was until I told you, it is illogical for you to assume that you understand his works better than I.

You apparently do not even know that he invented the law that men cannot be held accountable for raping their spouses.

Also, not all of Canada (or the USA) uses the common law system. And you are misunderstanding the use of precedence (or stare decisis for those who want to sound confusing).
#15228937
@Pants-of-dog Did you intend to present your evidence for the allegation you made? You seem to challenge others to present evidence but rarely do it yourself.

Note to board. Watch how POD tries to avoid the simple and perfectly correct request.
#15228938
Pants-of-dog wrote:@wat0n

Since you were not even aware of who Sir Matthew Hale was until I told you, it is illogical for you to assume that you understand his works better than I.

You apparently do not even know that he invented the law that men cannot be held accountable for raping their spouses.

Also, not all of Canada (or the USA) uses the common law system. And you are misunderstanding the use of precedence (or stare decisis for those who want to sound confusing).


None of that has any bearing on the fact that you are getting offended over the quoting of a 17th century English jurist who had an outlook like that of typical 17th century Englishmen.

Perhaps you could read the draft and see if you can find some of the flaws I mentioned, such as the blatant straw man I caught regarding Roe v Wade.
#15228945
@wat0n

If you have an argument to make, feel free to quote the text that supports your claim.

Now, back to my argument, note that Alito really leans into his fallacy of tradition. Not only does he cite 17th century misogynists and witch burners (note the plural) but also claims that US citizens have no rights unless those rights are traditional. By this logic, we can expect Alito to want to overturn things like women voting, and black people going to the same schools as white people.

——————

@Drlee

You have correctly used the notification system. Well done.
#15228946
Pants-of-dog wrote:@wat0n

If you have an argument to make, feel free to quote the text that supports your claim.

Now, back to my argument, note that Alito really leans into his fallacy of tradition. Not only does he cite 17th century misogynists and witch burners (note the plural) but also claims that US citizens have no rights unless those rights are traditional. By this logic, we can expect Alito to want to overturn things like women voting, and black people going to the same schools as white people.


No, Alito states explicitly that his opinion is only relevant for abortion.

Have you actually read it?
#15228947
wat0n wrote:No, Alito states explicitly that his opinion is only relevant for abortion.

Have you actually read it?


Why should Hale’s opinion be relevant?

How do we know that Hale did not just make something up?

Do you think Hale is a good source for law?
#15228950
@Pants-of-dog

Those references? You have slandered Alito. The least you can do is support your claim.
#15228953
Drlee wrote:@Pants-of-dog

Those references? You have slandered Alito. The least you can do is support your claim.


https://www.politico.com/news/2022/05/0 ... f-00029504

There you go.

Now, explain why your top court is referencing a man who made up a law that men cannot be charged for raping their wife. Pay special attention to why he is a good source for reproductive rights.

Or you can ignore this and tacitly concede that the SCOTUS is basing its legal opinions on outdated and misogynist sources.
#15228955
Drlee wrote:I
Do you have some evidence of this? I see no move to kill women who are pregnant. Every state law has a "health of the mother" provision. You simply cannot refrain from engaging in empty rhetorical devices.


Yes, the evidence has already been presented and I will repeat it:

1. Prenatal medicine is woefully underfunded. Maternal mortality rates in the USA rank as the worst in the industrialized countries. This is a combination of underfunding health and the ongoing "war on women" by Republicans.

2. Abortion bans do not reduce abortion but do increase the number of illegal and unsafe abortions. This is a direct attack on the right to life of pregnant people.

Worldwide, unsafe abortions account for a large percentage of these deaths, mostly in the developing world. The USA is poised to join them.
#15228956
wat0n wrote:OK.

If someone was carrying an explosive, chemical and/or biological weapon in his stomach, and threatened to detonate it killing 1 or more persons in the process, I'd have no trouble if a SWAT team cut his belly wide open and deactivated it, and I would not care if they did it while he was alive.

How about you? Would you respect this suicide bomber's bodily autonomy?



Are you implying that the mother seeking an abortion is a terrorist? :lol:
No man, you got it all wrong. The example you provide is ludicrous, the people this "terrorist" is threatening are not dependent on him/her. The terrorist is actively trying to kill independent people each of which have their own body autonomy.
Think about it this way, if the water company cuts the water to your house, and you die of thirst... did the water company murder you?

No, I mean a human newborn.

I already went through this already. Society/the goverment recognizes birth as a new entity coming into play. You are not issued a "fornication certificate" when your parents have the sex that resulted in your existence, you are not issued a "fertilization certificate" when the egg is fertilized by the sperm, you are not issued a "heartbeat certificate" nor a "first trimester"/"2nd trimester"/"third trimester"/"Viability" certificates. What you are issue, is a birth certificate.

So it is arbitrary after all. By the way, I'd not say lacking a birth certificate means you can be killed at will.

No. It is not the paper, but rather that now you are 2 independent individuals, each with their own interest and body autonomy.

In the scenario I provided at the beginning of this post, if I was chained to this suicide bomber, would I also be out of luck?

I mean probably, next to a biological, chemical, explosive weapon and chained to the maniac that has all of that... I wouldn't want to be you.
But besides that, I don't know how this example comes into play at all.

If fetuses are not persons I can see why we could just have a more laid back attitude than if they are.

I don't think we should have a "laid back" attitude at all. We can consider them people if you wish, it does not change the equations at all for the reasons I have explained priorly.
I think it is sad, I think we should try to minimize abortions. I think we should prevent teen pregnacies. I think we should educate our youth about safe-sex practices (both for birth control but also for STDs), I think we should provide safe anti-conceptive and reproductive health advise. I think we should de-stigmatize sexual intercourse as to promote teenagers and young adults to seek advise and care early on, I think we should strengthen our social support network so that no mother-to-be feels she needs to have an abortion to move forward with her life because she does not have a husband to help finantially, because she does not have any way to provide child care, etc. I think we should provide assistance for those suffering with substance abuse and/or domestic violence that think raising up a kid in these situations is impossible.
I think there is plenty we can and should do to avoid abortions. I don't think forcing a woman to complete a pregnancy and deliver an unwanted baby is one of those things that we should do.

In that case, I agree. I'm not sure about abortion in general however.

Good, I am glad we agree on something.

So why would you provide that as an example? That's just a stillbirth.

It is not a still birth until it dies. Sometimes it might die hours, sometimes days.
There is a case report of an infant with "anencephaly" that survived 2years+ (although perhaps it was not a true anencephaly but rather microencephaly, not sure, not my specialty).

Now here I beg to disagree, a newborn is clearly a human being (biology is clear) but under a strict definition of "person" based on currently possessing "consciousness" or individuality it's not that clear if it's a person or when does it become one.

I don't understand which part you disagree with.
I think we can both agree a newborn is a human being.
From what you say, it seems that you are tentatively agreeing that consciousness and thus personhood is achieved at some point in the future of this baby but not necessarily at birth. If so... then we agree.
The little that I have read in the matter says that around 5-6 months we start to see early signals of what might be considered conciousness but the caveat is that we are really scratching the surface here. We can probably say with certainty that for a normal infant, it would happen sometime between birth and ~1 year old (at this time it is quite clear they already have personalities and memories and have a degree of awareness about their surroundings). And we can also say with a degree of certainty that prior to birth, when the nervous system is either undeveloped and/or under sedation is unlikely it achieve anything that we can meaningful call conciousness. As to where in that 1 year span things happen, I don't know, I don't know if anyone knows, but I don't think it is important for our discussion given that at birth, the life of the infant is no longer dependent on the mother and an abortion no longer threatens to terminate this life.

There could be national standards, but then again this type of problem already exists for other medical procedures. Using substituted judgment for tissue "donation" is one of them, for example, and those tend to end up in court either way.

The complexities of this are even greater, specially when dealing with minors. Luckily this is rare enough that teams of physicians can potentially directly deal with legal teams and/or judges.

Just not in that elevator, you mean. It seems to me that ordinance applies to all elevators, including those that are meant for the public.

You can also extend it to jurisdictions that ban smoking inside restaurants, regardless of whatever the owner thinks. Or smoking bans in all closed spaces, including those that are not privately owned.

Those are all justified, of course, but they definitely limit bodily autonomy.

No they don't, you don't "have" to be on those places.
I have not given you permision to piss on my bathroom's toilet. I am not limiting your body's autonomy... you can piss on your own, or in a hotel's or in a public restroom or at starbucks, or you can just piss your pants.

I'm okay with a doctor determining that in good faith.

The courts are going to flat out ban it lol. It is not like this is leading towards "doctors and patients making the decisions". There are states that have just one or 2 clinics for the whole state and even those are being threatened.

It's a general question. You can consider the scenario at the beginning of this post for an example, where you are in fact somehow chained to this suicide bomber (I don't know, maybe he's a radical anti-abortion guy who showed up at your workplace).

The scenario is not remotely similar. A pregnant woman is akin a dog with a tick, you remove the tick, the tick dies without blood. You are not going to kill ticks, you are just removing them from your dog. (well perhaps you also want to kill the tick, but thats besides the point :lol: )
#15228974
XogGyux wrote:Are you implying that the mother seeking an abortion is a terrorist? :lol:
No man, you got it all wrong. The example you provide is ludicrous, the people this "terrorist" is threatening are not dependent on him/her. The terrorist is actively trying to kill independent people each of which have their own body autonomy.
Think about it this way, if the water company cuts the water to your house, and you die of thirst... did the water company murder you?


Oh, so in this case bodily autonomy is not so absolute after all! Then why wouldn't that extend to, say, vaccination?

As for the fetus: Would you say this dependency on the pregnant woman means it is not a person?

XogGyux wrote:I already went through this already. Society/the goverment recognizes birth as a new entity coming into play. You are not issued a "fornication certificate" when your parents have the sex that resulted in your existence, you are not issued a "fertilization certificate" when the egg is fertilized by the sperm, you are not issued a "heartbeat certificate" nor a "first trimester"/"2nd trimester"/"third trimester"/"Viability" certificates. What you are issue, is a birth certificate.


All of which are arbitrary choices, ultimately. If we wanted, we could issue certificates for fetuses.

XogGyux wrote:No. It is not the paper, but rather that now you are 2 independent individuals, each with their own interest and body autonomy.


Even in that case, why wouldn't you just let the fetus be born the day before? That is, if you know a e.g. 37-week old fetus is not wanted by the mother anymore, why would an abortion be more justified than just inducing birth?

XogGyux wrote:I mean probably, next to a biological, chemical, explosive weapon and chained to the maniac that has all of that... I wouldn't want to be you.
But besides that, I don't know how this example comes into play at all.


XogGyux wrote:The scenario is not remotely similar. A pregnant woman is akin a dog with a tick, you remove the tick, the tick dies without blood. You are not going to kill ticks, you are just removing them from your dog. (well perhaps you also want to kill the tick, but thats besides the point :lol: )


It's an extreme example, but serves to show the limits of an absolute position regarding bodily autonomy. Of course there is a proportionality assessment involved there, opening this terrorist's belly up to deactivate the bomb is justified (even if he's, alive, conscious and without anesthesia) because of all the other people he will affect (many of them, killed) if he fulfills his threat.

And yes, this proportionality is not obvious when it comes to terminating pregnancy. But it's there and there's room for legitimate discussion either way.

XogGyux wrote:I don't think we should have a "laid back" attitude at all. We can consider them people if you wish, it does not change the equations at all for the reasons I have explained priorly.
I think it is sad, I think we should try to minimize abortions. I think we should prevent teen pregnacies. I think we should educate our youth about safe-sex practices (both for birth control but also for STDs), I think we should provide safe anti-conceptive and reproductive health advise. I think we should de-stigmatize sexual intercourse as to promote teenagers and young adults to seek advise and care early on, I think we should strengthen our social support network so that no mother-to-be feels she needs to have an abortion to move forward with her life because she does not have a husband to help finantially, because she does not have any way to provide child care, etc. I think we should provide assistance for those suffering with substance abuse and/or domestic violence that think raising up a kid in these situations is impossible.
I think there is plenty we can and should do to avoid abortions. I don't think forcing a woman to complete a pregnancy and deliver an unwanted baby is one of those things that we should do.


I don't disagree with you here, at all. I'd add too that even leaving all the morality aside, birth control will also be cheaper than abortion.

But if fetuses are not people, well, yes of course we can regard abortion as just another, expensive, psychologically costly and inefficient birth control method and that's it. Not something like murder, which is what some people believe since they do think fetuses are people.

XogGyux wrote:It is not a still birth until it dies. Sometimes it might die hours, sometimes days.
There is a case report of an infant with "anencephaly" that survived 2years+ (although perhaps it was not a true anencephaly but rather microencephaly, not sure, not my specialty).


Wouldn't it be dead in the same way a brain dead person is dead?

XogGyux wrote:I don't understand which part you disagree with.
I think we can both agree a newborn is a human being.


From a strictly biological point of view, yes.

XogGyux wrote:From what you say, it seems that you are tentatively agreeing that consciousness and thus personhood is achieved at some point in the future of this baby but not necessarily at birth. If so... then we agree.
The little that I have read in the matter says that around 5-6 months we start to see early signals of what might be considered conciousness but the caveat is that we are really scratching the surface here. We can probably say with certainty that for a normal infant, it would happen sometime between birth and ~1 year old (at this time it is quite clear they already have personalities and memories and have a degree of awareness about their surroundings). And we can also say with a degree of certainty that prior to birth, when the nervous system is either undeveloped and/or under sedation is unlikely it achieve anything that we can meaningful call conciousness. As to where in that 1 year span things happen, I don't know, I don't know if anyone knows, but I don't think it is important for our discussion given that at birth, the life of the infant is no longer dependent on the mother and an abortion no longer threatens to terminate this life.


I'd say it's actually at birth or earlier. I mean, it depends on what you count as being "conscious". But for example a newborn can feel pain, cold and hunger can't it? Why wouldn't these also count as a form of consciousness? If the newborn is hungry it will cry, and parents will often be able to tell why.

I don't think you need to be able to verbalize concepts to be conscious, you also don't need to be able to verbalize preference to have them. I'm willing to accept a broad definition of that term.

XogGyux wrote:The complexities of this are even greater, specially when dealing with minors. Luckily this is rare enough that teams of physicians can potentially directly deal with legal teams and/or judges.


Indeed.

XogGyux wrote:No they don't, you don't "have" to be on those places.
I have not given you permision to piss on my bathroom's toilet. I am not limiting your body's autonomy... you can piss on your own, or in a hotel's or in a public restroom or at starbucks, or you can just piss your pants.


You don't have to, but if I'm barring you from being in a public area (not private property) if you smoke I am barring you from making a decision on that matter should you want to fully exercise your right to be in areas open to the public.

XogGyux wrote:The courts are going to flat out ban it lol. It is not like this is leading towards "doctors and patients making the decisions". There are states that have just one or 2 clinics for the whole state and even those are being threatened.


Doctors can already make plenty of decisions in good faith, particularly involving minors as you said. Yes, of course there can be litigation, but it would not be radically different from what can happen when treating children.

@Pants-of-dog Alito is quoting a 17th century jurist because he's talking about common law. What's so hard to understand about it?
#15228991
wat0n wrote:As for the fetus: Would you say this dependency on the pregnant woman means it is not a person?

You depend on water and food, an injured person might depend on a ventilator or a pacemaker. The dependency does not interfere with you being an individual.

All of which are arbitrary choices, ultimately. If we wanted, we could issue certificates for fetuses.

You misunderstand. You are still stuck in this loop that personhood is what determines whether you should be protected from being killed off and/or aborted. It is not.
It is not personhood.
It is not a certificate.
I am simply stating, that once you are out of your mom's body, we don't have to go through her, to analyze what is and is not on your best interest. Up to the point the cord is cut, what you do to the mother and/the fetus is almost certain to affect the other, they are interconnected. And once it is out, the paths separate and at this point you can analyze what affects the woman separately from what affects the infant, this is regardless of whether the infant is a person or not, has a certificate or not, etc.

Even in that case, why wouldn't you just let the fetus be born the day before? That is, if you know a e.g. 37-week old fetus is not wanted by the mother anymore, why would an abortion be more justified than just inducing birth?

It does not matter when the baby is born. A premature baby at 30 weeks, it is when it is out, that the cord is cut, that it is separated from the mother, that the interests of the two individuals start to separate.
As to wether there is some sort of developmental difference between a 37W or a 37W+1D, probably minimal and unlikely to make a difference. What you are suggesting is unrealistic except perhaps on cases were the fetus has already died or death is inminent. A pregnant woman that waits until 37 week for "an elective abortion" would probably be taken to the psychiatrist for evaluation rather than to an abortion clinic.

It's an extreme example, but serves to show the limits of an absolute position regarding bodily autonomy. Of course there is a proportionality assessment involved there, opening this terrorist's belly up to deactivate the bomb is justified (even if he's, alive, conscious and without anesthesia) because of all the other people he will affect (many of them, killed) if he fulfills his threat.

And yes, this proportionality is not obvious when it comes to terminating pregnancy. But it's there and there's room for legitimate discussion either way.

Well, if you are comparing the fetus with a chemical/biological bomb, then you seem to be arguing in favor of removing such bomb out of the woman's body as expeditiously as possible. I am surprised you wouldnt be mandating universal abortions in such cases. :lol:
But if fetuses are not people, well, yes of course we can regard abortion as just another, expensive, psychologically costly and inefficient birth control method and that's it. Not something like murder, which is what some people believe since they do think fetuses are people.

Whether fetuses are people or not is irrelevant.

Wouldn't it be dead in the same way a brain dead person is dead?

When we use the term brain death we also include the brainstem which controls many "automatic" functions of the body, breathing, some reflexes, etc.
With anencephaly, you might still have some function, usually, it is minimal and causes death very shortly after birth (hours to days) assuming it is not a stillbirth.

From a strictly biological point of view, yes.

Is there any other point of view other than biological when considering if a baby is a human being? :lol:

I'd say it's actually at birth or earlier. I mean, it depends on what you count as being "conscious". But for example a newborn can feel pain, cold and hunger can't it? Why wouldn't these also count as a form of consciousness? If the newborn is hungry it will cry, and parents will often be able to tell why.

Pain is not the definition of consciousness. You can in fact have pain while unconscious. And you can be conscious without necessarily being able to feel pain (think local anesthesia).

Why wouldn't these also count as a form of consciousness?

Consciousness is more than just reacting to a stimuli. A worm might move towards the light, that does not mean it is conscious. An intubated, sedated patient can still withdraw his or her hand when the nails are pressed very hard (painful stimuli), is this person concious?

If the newborn is hungry it will cry, and parents will often be able to tell why.

Maybe it is such that there is a degree of consciousness on a newborn, we simply don't know. However, crying when "hungry" is not evidence for consciousness. Babies are born with "pre-programed" pathways and stereotypical reflexes that are evolutionary imprinting for survival that does not imply consciousness. Moving is not the same as consciousness. Kicking inside the uterus does not imply you are conscious, you kick while sleeping at night. Again, the portions of the brain that are involved in consciousness in adults, dont even begin to form until 20+ weeks and through pregnancy the fetus is inside a soup of chemicals that basically keeps it unconscious throughout the pregnancy. It is biologically implausible to have much if any activity that we would understand as "consciousness" prior to delivery.
#15228995
@wat0n

That is a poor defence for supporting a lawyer who legalised marital rape just because he also thinks abortion is murder.

Again, you do not even know if he was telling the truth. Hale did lie about the marital rape law, after all.
#15229007
XogGyux wrote:You depend on water and food, an injured person might depend on a ventilator or a pacemaker. The dependency does not interfere with you being an individual.


No disagreement here.

XogGyux wrote:You misunderstand. You are still stuck in this loop that personhood is what determines whether you should be protected from being killed off and/or aborted. It is not.
It is not personhood.
It is not a certificate.
I am simply stating, that once you are out of your mom's body, we don't have to go through her, to analyze what is and is not on your best interest. Up to the point the cord is cut, what you do to the mother and/the fetus is almost certain to affect the other, they are interconnected. And once it is out, the paths separate and at this point you can analyze what affects the woman separately from what affects the infant, this is regardless of whether the infant is a person or not, has a certificate or not, etc.


Right, and if the fetus is a person this analysis has to consider both the mother and the fetus while if the fetus isn't a person, it doesn't.

The comparison between an "old" fetus (in terms of gestational age) and a newborn is then relevant to see why would or wouldn't the fetus be a person. I can see good arguments for both positions.

XogGyux wrote:It does not matter when the baby is born. A premature baby at 30 weeks, it is when it is out, that the cord is cut, that it is separated from the mother, that the interests of the two individuals start to separate.
As to wether there is some sort of developmental difference between a 37W or a 37W+1D, probably minimal and unlikely to make a difference. What you are suggesting is unrealistic except perhaps on cases were the fetus has already died or death is inminent. A pregnant woman that waits until 37 week for "an elective abortion" would probably be taken to the psychiatrist for evaluation rather than to an abortion clinic.


That's my point. In this case, you'd just tell her an induced birth would be better and (why not) more ethical. Am I correct here?

She can still end the pregnancy, it's just done in a way that doesn't kill the fetus.

XogGyux wrote:Well, if you are comparing the fetus with a chemical/biological bomb, then you seem to be arguing in favor of removing such bomb out of the woman's body as expeditiously as possible. I am surprised you wouldnt be mandating universal abortions in such cases. :lol:

Whether fetuses are people or not is irrelevant.


I'm not. I think I explained why I set up that situation quite clearly.

Although, if the fetus was indeed a time bomb for the mother (as in, continued pregnancy will kill her) I'd not just be okay with terminating the pregnancy, but I'd recommend it even if that means killing the fetus.

XogGyux wrote:When we use the term brain death we also include the brainstem which controls many "automatic" functions of the body, breathing, some reflexes, etc.
With anencephaly, you might still have some function, usually, it is minimal and causes death very shortly after birth (hours to days) assuming it is not a stillbirth.


Okay, fair. I'd still count it in the proportionality stuff.

XogGyux wrote:Is there any other point of view other than biological when considering if a baby is a human being? :lol:


No.

XogGyux wrote:Pain is not the definition of consciousness. You can in fact have pain while unconscious. And you can be conscious without necessarily being able to feel pain (think local anesthesia).


XogGyux wrote:Consciousness is more than just reacting to a stimuli. A worm might move towards the light, that does not mean it is conscious. An intubated, sedated patient can still withdraw his or her hand when the nails are pressed very hard (painful stimuli), is this person concious?


No, certainly not. But a newborn has more capabilities than mechanical reactions to stimuli, I'd say.

XogGyux wrote:Maybe it is such that there is a degree of consciousness on a newborn, we simply don't know. However, crying when "hungry" is not evidence for consciousness. Babies are born with "pre-programed" pathways and stereotypical reflexes that are evolutionary imprinting for survival that does not imply consciousness. Moving is not the same as consciousness. Kicking inside the uterus does not imply you are conscious, you kick while sleeping at night. Again, the portions of the brain that are involved in consciousness in adults, dont even begin to form until 20+ weeks and through pregnancy the fetus is inside a soup of chemicals that basically keeps it unconscious throughout the pregnancy. It is biologically implausible to have much if any activity that we would understand as "consciousness" prior to delivery.


Hold on. Would you say an animal can be said to be conscious? That instinctive part you mention, could be considered to be evidence of conscience. That instinctive part is not purely mechanical either, and is more like how your cat acts when it wants food.

@Pants-of-dog I don't know if marital rape was legal under 17th century common law, but I doubt you'd want to read what Blackstone's Commentary says about the rights a husband has to "discipline" his wife. It would seem it was though since I think it would only become illegal in England in 1990, by statute.

Not that it has much to do with abortion, which is the topic at hand. I elaborate further but for clarity I'll have it inside a spoiler since it might be a bit long:

Spoiler: show
Even if some may not like 17th century common law, I did a quick check and even Canada's Supreme Court cited Blackstone's Commentary in its ruling to legalize abortion, in a context similar to how the SCOTUS did in Roe - it says explicitly abortion after quickening was a serious misdemeanor and that life was not considered to have started prior to quickening, and I don't think Alito has a particularly strong basis to just ignore this when it reads:

Sir William Blackstone wrote:1. Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother's womb. For if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb; or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the antient law homicide or manslaughter[o]. But at present it is not looked upon in quite so-126- atrocious a light, though it remains a very heinous misdemesnor


It's pretty clear to me Blackstone did not regard life as starting before quickening, hence it's hard to see why was abortion a crime before the fetus was quick.

Alito did cite Hale, but have you read how exactly? He cited so to accept the above idea that abortion after quickening was regarded as homicide, but then uses his (and Blackstone's) analyses of what happens if a woman dies as a result of an abortion and claims they conclude that abortion was not permissible even before quickening, even if it wasn't seen as a form of homicide, because in that case the doctor would be regarded as having committed something like a felony-murder:

Samuel Alito wrote:We begin with the common law, under which abortion was a crime at least after "quickening"—i.e., the first felt movement of the fetus in the womb, which usually occurs between the 16th and 18th week of pregnancy.[24]

The "eminent common-law authorities (Blackstone, Coke, Hale, and the like)," Kahler v. Kansas, 589 U.S. __, __ (2020) (slip op., at 7), all describe abortion after quickening as criminal. Henry de Bracton's 13th-century treatise explained that if a person has "struck a pregnant woman, or has given her poison, whereby he has caused an abortion, if the foetus be already formed and animated, and particularly if it be animated, he commits homicide." H. Bracton, De Legibus et Consuetudinibus Angliae 279 (T. Twiss ed. 1879); see also 1 Fleta ch. 20, reprinted in 53 Selden Soc'y 60–61 (H.G. Richardson & G.O Sayles eds. 1953) (13th century treatise).[25]

Sir Edward Coke's 17th-century treatise likewise asserted that abortion of a quick child was "murder" if the "childe be born alive" and a "great misprision" if the "childe dieth in her body." 3 Institutes of the Laws of England 50–51 (1644). ("Misprision" referred to "some heynous offence under the degree of felony." Id., at 139.) Two treatises by Sir Matthew Hale likewise described abortion of a quick child who died in the womb as a "great crime" and a "great misprision." See M. Hale, Pleas of the Crown: Or, A Methodical Summary of the Principal Matters Relating to that Subject 53 (1673) (P. R. Glazebrook, ed., 1973); 1 M. Hale, History of Pleas of the Crown 433 (1736) (Hale). And writing near the time of the adoption of our Constitution, Blackstone explained that abortion of a "quick" child was "by the ancient law homicide or manslaughter" (citing Bracton), and at least "a very heinous misdemeanor" (citing Coke)." 1 Blackstone, Commentaries on the Laws of England *129–*130 (7th ed. 1775) (Blackstone).

English cases dating all the way back to the 13th century corroborate the treatises' statements that abortion was a crime. See generally J. Dellapenna, Dispelling the Myths of Abortion History 126 & n. 16, 134–142, 188–194 & nn.84–86 (2005) (Dellapenna); J. Keown, Abortion, Doctors, and the Law 3–12 (1988) (Keown). In 1732, for example, Eleanor Beare was convicted of "destroying the Foetus in the Womb" of another woman and "there-by causing her to miscarry."[26] For that crime and another "misdemeanor," Beare was sentenced to two days in the pillory and three years' imprisonment.[27]

Although a pre-quickening abortion was not itself considered homicide, it does not follow that abortion was permissible at common law—much less that abortion was a legal right. Cf. Washington v. Glucksberg, 521 U. S. 702, 713 (1997) (removal of "common law's harsh sanctions did not represent an acceptance" of suicide). Quite to the contrary, in the 1732 case mentioned above, the judge said of the charge of abortion (with no mention of quickening) that he had "never met with a case so barbarous and unnatural."[28] Similarly, an indictment from 1602, which did not distinguish between a pre-quickening and post-quickening abortion, described abortion as "pernicious" and "against the peace of our Lady the Queen, her crown and dignity." Keown 7 (discussing R. v. Webb, Calendar of Assize Records, Surrey Indictments 512 (1980)).

That the common law did not condone even pre-quickening abortions is confirmed by what one might call a proto-felony-murder rule. Hale and Blackstone explained a way in which a pre-quickening abortion could rise to the level of a homicide. Hale wrote that if a physician gave a woman "with child" a "potion" to cause an abortion, and the woman died, it was "murder" because the potion was given "unlawfully to destroy her child within her." 1 Hale 429–430 (emphasis added). As Blackstone explained, to be "murder" a killing had to be done with "malice aforethought, either express or implied." 4 Blackstone 198, 199. In the case of an abortionist, Blackstone wrote, "the law will imply [malice]" for the same reason that it would imply malice if a person who intended to kill one person accidentally killed a different person:

"[I]f one shoots at A and misses him, but kills B, this is murder; because of the previous felonious intent, which the law transfers from one to the other. The same is the case, where one lays poison for A; and B, against whom the prisoner had no malicious intent, takes it, and it kills him; this is likewise murder. So also, if one gives a woman with child a medicine to procure abortion, and it operates so violently as to kill the woman, this is murder in the person who gave it." 4 Blackstone 200 (emphasis added).[29]
Notably, Blackstone, like Hale, did not state that this proto-felony-murder rule required that the woman be "with quick child"—only that she be "with child." Ibid. And it is revealing that Hale and Blackstone treated abortionists differently from other physicians or surgeons who caused the death of a patient "without any intent of doing [the patient] any bodily hurt." Hale 429; see 4 Blackstone 197. These other physicians—even if "unlicensed"—would not be "guilty of murder or manslaughter." Hale 429. But a physician performing an abortion would, precisely because his aim was an "unlawful" one.

In sum, although common law authorities differed on the severity of punishment for abortions committed at different points in pregnancy, none endorsed the practice. Moreover, we are aware of no common law case or authority, and the parties have not pointed to any, that remotely suggests a positive right to procure an abortion at any stage of pregnancy.


Alito would then cite Hale and Blackstone again but repeating the same points as above, and mentioned American courts (colonial and after Independence) would use the quickening standard.

One problem with Alito's idea, if you ask me, is that if abortion before quickening was in fact illegal, why didn't it have a clear classification and corresponding penalty? The fact that a physician who ended up killing a woman as a result of an abortion could be charged for murder, without drawing distinctions between quick and non-quick fetuses doesn't really explain this. It's not clear people like Hale or Blackstone would feel the need to make the distinction between a quick and non-quick fetuses at all if they believed there is no life before quickening. That is, if they did not believe pregnancy and the corresponding existence of an unborn child could be proven or established before quickening, just as it was done until the 19th century when advances in medicine would show this view was scientifically incorrect, then it's reasonable to believe they did not feel a need to draw the distinction and that when speaking of "child" they were referring to a quick fetus.

I also don't know if one could also argue that since abortion was inherently risky, keeping in mind the state of 17th century medicine, then it would make sense to charge the physician for murder regardless of whether the fetus was quick or not, or if there was even a fetus to begin with. Maybe I'm wrong, but it seems to me there were no good and safe ways to confirm a pregnancy, hence doing a risky procedure potentially for nothing could have been regarded as so reckless as to be murder... I don't know. I ignore what was the common law punishment, if any, for gross medical malpractice at the time.


Now, you may not like to see a justice citing some 17th century source to justify a ruling but as things are it turns out the common law system does consider that type of thing into account. Even if a court wants to overturn a precedent, they can't do it without a "good" reason in this system, and to have a "good" reason of course it makes perfect sense to look at history and precedent. Perhaps that's even the first step, if anything.
#15229058
Pants-of-dog wrote:https://www.politico.com/news/2022/05/02/read-justice-alito-initial-abortion-opinion-overturn-roe-v-wade-pdf-00029504

There you go.

Now, explain why your top court is referencing a man who made up a law that men cannot be charged for raping their wife. Pay special attention to why he is a good source for reproductive rights.

Or you can ignore this and tacitly concede that the SCOTUS is basing its legal opinions on outdated and misogynist sources.


Nope. That was not your claim. You said he ignored modern sources. He did not. Now post the evidence that he ignored modern sources as was your claim.

You may think it is cute to post the opinion but it is not. You are not as clever as you think you are. Post your source for your claim.
#15229059
OK you two.

A question for @wat0n : What would be the effect on these new state laws if we all agreed that a fetus is a person?



@XogGyux What would be the effect on these laws if your side carried the day and we all agreed that a fetus was not a person until it cried?

My answer is "none".
#15229066
@Pants-of-dog why don't you prove your claim? And while at it, why don't you explain what does it have to do with how Alito cited Hale to discuss his stance on abortion?

Drlee wrote:OK you two.

A question for @wat0n : What would be the effect on these new state laws if we all agreed that a fetus is a person?


If we all did? I'd bet there would be pressure to ban abortion in all states, and federally.

There would also be a clear right under the Constitution for states to ban abortion if they wished.

And this assumes a special statute to ban abortion would be necessary. I could also imagine courts deciding to effectively ban abortion by using the regular homicide/murder laws and treat it on those grounds if no laws specifically banning abortion were passed.
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