This is an excellent article from the New York Times on why safe and legal abortion is important. And it’s from from an interesting perspective . . . that of a retired pre-Roe-v-Wade gynecologist who saw first-hand the kind of damage homemade abortions could inflict. As you can imagine, the linked article is not for the faint of heart, so take care.
My favorite bit comes at the end:
It is important to remember that Roe v. Wade did not mean that abortions could be performed. They have always been done, dating from ancient Greek days.
What Roe said was that ending a pregnancy could be carried out by medical personnel, in a medically accepted setting, thus conferring on women, finally, the full rights of first-class citizens — and freeing their doctors to treat them as such.
Amen.
Responding to:
Bioethics says a lot of different things. It’s an entire field of study, not a religious doctrine (and indeed bioethics incorporates multiple religious as well as secular perspectives). If you don’t know this, I recommend that you do some basic reading in the field before venturing into debating the subject — here’s what I remember that would be relevant:
Essays:
Judith Jarvis Thomson, “A Defense of Abortion” (the famous violinist analogy, which accepts for the sake of argument that the fetus is a person, and then discusses why a woman should not be legally obligated to be a Good Samaritan to that fetus)
See generally the Catholic doctrine of double effect, which Bobby Jindal has cited in defense of medical interventions that may have the foreseeable effect of killing the fetus.
Books:
Principles of Biomedical Ethics (Beauchamp, does not focus on fetuses but is a great primer on the basic ideas underpinning the debates)
The Ethics of Reproductive Technology (Alpern)
Life’s Dominion : An Argument About Abortion, Euthanasia, and Individual Freedom (Dworkin, and one of the best I have read)
Children of Choice: Freedom and the New Reproductive Technologies (Robertson, much more libertarian than I am)
These books won’t discuss the very latest technology, as I studied this almost a decade ago, but I haven’t noticed any new paradigms in the thinking about “prenatal personhood.”
I’d also recommend learning about the rights that go with legal personhood aside from the right not to be killed, such as rights of inheritance when someone dies intestate. None of these rights ever have been applied to fetuses, because Anglo-American law (and so far as I know, French and German law) never have considered the fetus a legal person. Abortion was classed as an offense against public morality, like prostitution or sodomy; it was not among the homicide crimes. The rhetoric of prenatal personhood has arisen mainly since Roe v. Wade as an attempt to trump women’s liberties; when women didn’t have liberties, no one thought the fetus had rights.
Thomas Aquinas, one of the greatest Catholic natural law thinkers, did not consider a human being to have come into existence until the 24th week (the point at which several pro-choice commenters on this thread have said they would be comfortable with limiting abortion rights) and therefore Aquinas did not consider abortion to be homicide — i.e., the taking of a human life — though he thought it morally wrong because it expressed a homicidal will.
Post a comment in this thread when you’ve read up on the topic and we can have an informed discussion.
It pleases me no end to have this topic used for this purpose, PG.
:-)
—Myca
Is human being existence synonymous with personhood?
student has convinced me via her/his amazing debate, rhetoric and logic. Abortion should be illegal and we should harshly punish everybody who has ever been, is or ever will be involved with an abortion. I can’t thank you enough, student.
Is red existence synonymous with blood?
Hey student, I think that maybe people might be more interested in a conversation with you if you actually engaged in conversation, rather than asking question after question.
See, conversation involves back and forth, give and take, and thus far you haven’t really been giving when it comes to opinions and arguments.
—Myca
Is personhood a concept worth discussing absent context and definition, and even then can it be expected to serve as a genuine, holistic stand-in for the complex reality of the concept it theoretically gestures toward rather than acting as an imperfect representation because of the flaws of human language as a medium for discussing realities that don’t fit into neat little boxes?
student,
Post a comment in this thread when you’ve read up on the topic and we can have an informed discussion.
Really, try becoming informed first. If you come back and can explain why you find even just Thomson’s and Dworkin’s arguments (which are quite different from each other) to be wrong, then this will be worthwhile. What you’re doing isn’t.
I think you/we all should stop responding to ‘student,’ who is interested in nothing more than provocation of a particularly Socratic kind. He or she is not interested in becoming informed in the way PG is suggesting would be interesting. Rather, ‘student’ possesses a truth to which he or she would very much like to lead us through the bread-crumb questions being left in the comments threads here on Alas. What ‘student’ doesn’t realize is that the questions are, ultimately, truly crumbs–crumbled pieces of something else–and are therefore not at all satisfying. You/we really ought to let ‘student’ have the last word–which, in her or his humble and oh so deeply and sincerely self-deprecatory way, is really what he or she is after–so that we can move on to other more interesting and fruitful topics of conversation.
Oh, and PG, thanks for the reading list. When I will get to it, who knows, but I am glad I have the information.
Assuming Mandolin is correct that personhood is a suspect concept, is Roe v. Wade (depending on personhood concept) equally suspect?
Student, right now I am trying to determine if you count as a troll or not, and whether or not to ban you. There are a couple of different things that I am looking at in order to make this determination.
One is feedback from the other commenters here. I am paying attention to Richard Jeffrey Newman’s “Don’t feed the troll’ comment, for example . . . but I’m also paying attention to the part where PG wanted to carry on this conversation with you and put energy into putting together an Abortion Bioethics 101 reading list for you.
The other thing I’m looking at when it comes to figuring out if you’re a troll who doesn’t need to be here is how interested in engaging in conversation you are. So far, the answer has been, “not at all.” You can refer to my comment #5, Richard Jeffrey Newman ‘s comment #8, and PG’s comment #7 as comments that directly address this.
My advice to you:
1) Read at least some of the basic Bioethics of Abortion reading PG posted in comment #1.
2) Post commentary directly engaging these arguments. (1 & 2, taken together, are pretty much what PG meant in comment #7)
3) Make an argument of your own.
4) Recognize and engage objections to your argument.
5) Do Not make your next post another one-sentence question. This is a big one. Do not do it.
If you are banned now it will not be because of your political views, it will be because you have not made a good faith effort to engage in anything resembling a dialogue. The ball is now in your court.
—Myca
Oh, but I was having Socratic fun.
Is there any such thing as a concept which is not suspect?
I’ll get him to Nihilism in four moves.
Anyway, I don’t object to banning. I’d have done it myself a while ago on the basis of the stick rule.
?
My response would be to simply reply in kind:
Does Roe v Wade depend on personhood?
Are you smarter than this stick?
If YES, then CONTINUE.
If NO, then GOODBYE.
(Stick rule shamelessly stolen from Pandagon.)
Yeah, I’m tending towards banning as well, but I figure he’s got one more post. If he determines that he gets it, then awesome.
Honestly, half of it comes from consideration for the handle ‘student’, which may indicate that he’s young, and is used to ranking the quality of his posts against the other Youtube comments or something.
—Myca
Oh, i thought it might be some reference to OOTS. Lol.
See, ‘student’ set off my bullshit radar early on. Given the nature of the questions ‘student’ has been asking, I think it is supposed to signify that he or she is someone who does not claim to “know,” but only has questions, and so he or she is not presuming to tell us what to think; rather we are supposed to learn from the questions that are asked, questions that are supposed to show us where we have missed something in our thinking, so that we come to the conclusion that ‘student’ is trying to lead us to. ‘Student’s’ questions have been subtly and not so subtly leading and manipulative; a true student, of whatever political persuasion, would have engaged this conversation long ago in a way that this ‘student’ has not. Her or his willful withholding of any personal engagement, therefore, smells to me of someone who thinks there is some absolute truth out there that we are just not getting. Anyway, just my two cents.
Sailorman, what’s OOTS?
The Order of the Stick (aka OOTS)
I read the name the way that RJN did.
I took student’s very first question (Does “fetal personhood” change as pregnancy progresses?) in good faith because the conversation PG and I were having was focused so intensely on late-term abortion, which, admittedly, raises difficult ethical questions. But it became immediately apparent after that that student did not want a real dialogue.
I found this comment:
pretty amusing. All I could think of was, “You can’t handle the truth!”
But student has become tedious. Not necessarily offensive, but definitely tiresome.
I often feel conflicted about kicking in my 2 cents regarding the conversation about the conversation. First, I don’t mean to derail the discussion. Second, I don’t mean to tread on a moderator’s prerogative. Of course, these feelings do not always discourage my contributions. As now:
I see no harm in student’s questions, and therefore I see no need to ban student. I similarly see no harm in inviting a different kind of discussion with student. But as far as I can tell, student has no duty to accept the invitation, just as the rest of us have no duty to respond to student’s questions.
Of course, I sense what others have sensed: PG moved the discussion here in the hope of having a discussion, but with the possibility that other participants merely desire combat. I encourage everyone to resist the urge to reduce a discussion to combat, regardless of what any other person says. In particular, please resist the urge to belittle people with whom you disagree.
And above all, please resist the urge to vindicate your point of view. Sometimes people say things simply for rhetorical purposes, not to convey anything substantive. I sometimes respond to these statements with clarifying questions, attempting to solicit substantive information. More often I simply ignore them. I generally hold the commentors on this blog in high esteem. I have confidence that the they can interpret anther person’s remarks as well as I, and will not confuse my restraint with acquiescence. I hope we all can have the same confidence.
On the other hand, I don’t get the stick thing. So don’t get too confident.
Nobody.really:
Seems inappropriate to call you by such a name. Thank you.
Sailorman:
Though I may have a missed concept of the case, Roe v. Wade seems to depend on personhood.
Considering abortion is as much a political as legal issue, is it wrong to delve into the personhood question as bloggers think, not just experts?
nobody.really,
I’m not sure when one would see harm in anyone’s questions unless those questions were insinuating falsehoods of some sort. However, all commenters at Alas seem to be expected to make a contribution to discussion in good faith. People will get shut down or moved into another thread even if they are not causing “harm” if they are perceived not to be commenting in good faith. Good faith is a necessary component of a civil society, whether online or off.
Part of good faith in asking a series of questions is exhibiting a sincere desire to learn from the answers. My husband occasionally gets exasperated with me when we have a discussion because I’ll often ask a series of questions, but it’s always with a sincere interest in the answers: I want to know what he, specifically, thinks about a topic, and therefore am trying to delineate his opinions as clearly as possible for myself. A kind of interview-style discussion is appropriate when attempting to discover what a particular person thinks about something.
In contrast, I have seen nothing from student thus far that reveals an interest in any particular person’s views on fetal personhood. Instead, student seems to be trying to have a debate through a series of questions. That’s pointless and rather annoying. If student doesn’t really want to discuss the matter but just wants his/her questions posted and left unanswered, that’s fine, but that’s not what student has said. I have done my best to point student to sources of information about the fetal personhood question, and student has indicated that s/he is uninterested in learning more about this in any organized fashion.
Oh hell — in for a penny, in for a pound. Having stuck my nose in this far, let me mix a few more metaphors in an effort to kick this can down the road and maybe get this stone rolling.
At the outset I’ll concede that I have not read all the stuff listed by PG, nor have I recently read any abortion-related legal decisions, so I will not be surprised if others decline to join in a discussion aimed at my level of understanding. For people schooled in the nuances of the abortion debate, I don’t suspect there’s much new to say anyway.
Anyway, to the extent that legal decisions rest solely on the person/non-person distinction, I find them lacking. I regard the concept of “personhood” to reflect an appeal to status, as opposed to principle. People tend to apply different reasoning to different nouns depending on the status we accord those nouns.
I generally disfavor arguments based on status. I often find that phrasing arguments on the basis of status 1) creates abstractions, needlessly obscuring the discussion, and 2) conceals the interests that would become plain when arguments are phrased in terms of principle/consequences/policy. That said, I don’t always succeed in reducing status arguments to arguments based on principle/consequences/policy, so I try to exercise humility in my criticism.
That’s a long way of saying that I question how far a discussion can go that is grounded solely on status distinctions. I try not to interrupt when people discuss existential questions: Is beauty truth and truth beauty? Is Obama a real black man? Is rap music? Is a fetus a person? But I rarely see anything useful come of them. People tend to exchange definitions, and the conversation bogs down there.
I favor discussions based on somewhat less abstract propositions: What consequences have followed from different means of regulating abortion? At what age can a fetus sustain its own life outside of the womb? What burdens does pregnancy impose on a woman? What would happen if we accorded the same treatment to the termination of each sperm-egg combination as we do to the death of each 30-yr-old? What would happen if each human pregnancy resulted in a live birth? I can wrap my head around these kinds of questions.
I also value policy questions that may not always reflect such a fact-based analysis: What interest does government/society have in maintaining a pregnancy against a woman’s wishes? What discretion and duties should the man have relative to the question to maintain or abort a fetus? To what extent should government/society have an interest in terminating a pregnancy against a woman’s wishes? What information may a pregnant woman consider in deciding whether to terminate a pregnancy, and what information may a physician provide? (May/should a physician help deaf parent take extraordinary measures to ensure that their child is born deaf?) Would we rather rescue a petri dish full of 20 sperm/egg combinations, or a single 3-yr-old? While I don’t anticipate that facts would greatly influence these discussions, the discussions don’t seem to hang on something as amorphous and irreducible as “personhood.”
Status is central to law. If we’re only interested in fetal personhood as a social/ ethical/ personal concept (e.g. is it socially appropriate to have a memorial service for a miscarriage? what about a stillbirth?), it’s fine to avoid status. But I’ve never heard of an abortion debate based on the social meaning of a fetus, and you can’t write a law based on the principle of “respect for human life.” It doesn’t mean anything. Every person will tell you that their preferred set of laws upholds all the good principles you can imagine.
It’s like saying that you’d want to write tax law without defining what a corporation, “related party” or heir is. If we don’t know what status a person or thing has, we don’t know what its legal entitlements and responsibilities are. It is lovely to have a principle that loving adults ought to feel responsibility for children, but in the absence of the status of “parent” or “guardian,” one doesn’t know who bears the ultimate responsibility for ensuring that the child is fed, sheltered and schooled.
I favor discussions based on somewhat less abstract propositions: What consequences have followed from different means of regulating abortion?
Regulations such as prohibitions on spending Medicaid dollars on abortions and heavier regulations on later term abortions have increased the number of unsafe, non-medical abortions, but also decreased the overall number of abortions. What consequences do you care about?
At what age can a fetus sustain its own life outside of the womb?
As noted in the prior thread, the absolute earliest documented has been 22 weeks, but this is highly exceptional; you don’t have a majority of fetuses capable of surviving until at least 24 weeks. Moreover, as you probably know from the March of Dimes, early-delivered babies inevitably have low birthweight and often have a disproportionate level of lifelong problems with their physical health and intellectual capacities.
What burdens does pregnancy impose on a woman?
Depends on the woman and the level of care she gives to the pregnancy. A woman who is very concerned and educated about maximizing the fetus’s health will assume larger voluntary burdens than a woman who doesn’t. As for involuntary burdens: all women will become much heavier and put stress on their organs and bones, most women will feel sick, some women will endanger their health due to this stress, a few women’s lives are endangered by pregnancy. And that’s just pregnancy — there’s also the question of delivery.
What would happen if we accorded the same treatment to the termination of each sperm-egg combination as we do to the death of each 30-yr-old?
It would be a hell of a boon to the death industry, as we have mandatory requirements for how to dispose of the remains of a person but no requirement that women sift through their toilet each time they go to the bathroom to check for any embryos that failed to implant, or for what looks like a late, heavy period but actually is a very early miscarriage.
What would happen if each human pregnancy resulted in a live birth?
The planet would be even more severely over-populated than it is right now. Despite the immense human toll and tragedy wrought by China’s one-child policy, bringing its population to a level that the country can afford to feed means that it has managed to meet its goals for reducing malnutrition a decade before the deadline, whereas India almost certainly will fail to meet its goals. If we’re looking for people’s gut reactions, my heart aches a lot more for these kids (http://www.nytimes.com/2009/03/13/world/asia/13malnutrition.html) than for however many millions of petri dishes get dumped.
Nope.
Yep.
So long, student.
—Myca
Ah, well. Worth a try.
Regarding the principle/status distinction:
Great! Then we’d have something to talk about – principles. As opposed to a discussion consisting of “I define ‘person’ to mean….”
An employee’s status under the “employment at will” doctrine was perfectly clear, and if you felt sexually harassed at work you’re options were to endure it or quit. That was the state of the law long after the adoption of the Civil Rights Act of 1964, including Title VII’s prohibitions on employment discrimination based on an individual’s sex, race, color, religion, or national origin. But then courts began extending the principles of that act to the practice of sexual discrimination in the workplace, and behold, principle carried the day.
Tax laws are famously ambiguous; any study of the federal income tax code begins with a lengthy review of cases articulating principles for measuring “income.” And corporate law is similar. (One famous case declares that the principle that the distinctive feature of equity is that it confers a measure of control in the corporate enterprise. My professor then abruptly turned to the student next to me – who had not been paying attention – and asked, “And in this case, who controlled the enterprise?” The student blinked and quietly answered, “Uh… Capt. Kirk?”)
Similarly, we could quote citations to each other all day about how different jurisdictions have interpreted the concept of “guardian” to include or exclude the homosexual partner of a child’s parent. I find the choice to include or exclude to be arbitrary. But the consequences of the choice are not, especially when appealing to principles such as promoting the best interest of the child. Thus I find a discussion of consequences and principles more interesting than a discussion of status.
As a guy who drafts for a living, I find definitions often do more harm than good. Yes, definitions lend precision to law. But they often lend a destructive precision because they get applied in unforeseen circumstances. The more precise the letter of the law, the better clever practitioners can devise ways to evade the spirit; the more general and principle-based the law, the greater discretion tribunals have to clamp down on people seeking to evade the spirit. I hate to see a law applicable to all “persons” evaded because the law defines person to include everything under the sun – and then the legislature creates a new entity called a Family Limited Liability Partnership Association Trust Thingy, and therefore this entity is exempt from the law because it was not specifically mentioned in the definition. We’re better off when we articulate the principles we’re trying to vindicate, and leaving the details to be resolved in enforcement actions.
Status reflects a social/legal convention. We can presumably change the status to conform to policies and principles; we can’t change policies and principles to conform to status.
the more general and principle-based the law, the greater discretion tribunals have to clamp down on people seeking to evade the spirit
As a litigator who’s aware of the impact litigation has on our society (cost to business, government and individuals), I’d say that expecting tribunals to clean up someone’s principles-based drafting is
a) dumping the drafter’s job onto someone else; and
b) imposing the cost of clarity on citizens who have to pay taxes to support the cost of civil litigation (judges, juries, courtrooms, etc.).
I would think the obligation of a drafter — whether a legislator or a lawyer — would be to make the contract as clear as possible, in part by defining terms to the extent possible in a way the parties agree upon, instead of leaving it for a court to puzzle out 5 years later what was meant. Same goes for a legislator: say what the law is supposed to cover so judges won’t have to fight over the legislative intent vs. plain meaning.
PG: It is lovely to have a principle that loving adults ought to feel responsibility for children, but in the absence of the status of “parent” or “guardian,” one doesn’t know who bears the ultimate responsibility for ensuring that the child is fed, sheltered and schooled.
PG, this is what we lobbed shots about regarding alternative marriage. It is strange but you often say things I agree with, then we end up disagreeing.
Three men and three women have three children. All three children have generally the same needs, but all six adults can have different opinions about how much they have, how long they have and if they have responsibility for them.
I want the definition of family and marriage, but not civil unions, to be the same for everyone for largely this very reason. If we can all select our own definitions, then as you said, when a child is born one doesn’t know who bears the ultimate responsibility for ensuring that the child is fed, sheltered and schooled. I would also add “accepts them as human beings”.
I really apologize if it is a pain to hear this from me one more time, but this is my stumbling block, my aphasia, my cognitive abyss, and I am trying to understand it. It is the impediment for me not only for gay marriage but many kinds of alternative marital practice and all sort of other modern sex and family agendas and questions that broadly, change what Judeo-Christian traditions say in favor of what we loosely call “alternative lifestyle choices”. Every time I start getting into it, a red light and brakes screeching goes off in my cortex saying “So I don’t have to acknowledge my children/wife/husband/parents if I don’t want to?”
Maco,
I find your comments as baffling here as I found them on the other thread. I can’t understand why people getting married and creating stable homes that protect their legal ties to their children would result in some epidemic of child abandonment.
Aaaaaaa! Discretion!!!! Run screaming!!!!!
whew.
Let me sum up my worry simply: The more we rely on discretion, the more we put power in the hands of people who may misuse it, and the more problems we cause on the ground.
To use a simple hypothetical: Cops are there to protect us, and they know we like our Constitutional rights. Should we let cops use their discretion about what are currently constitutional issues, or should we continue to have limits set by the legislature?
This is correct. You don’t have to acknowledge your parents or your spouse (divorce) or your children (adoption, should your co-parent agree).
I admit that I’m confused about how you see SSM having anything to do with your worry. I think that we can all agree that one is not required to acknowledge one’s parents. There is no law that makes us responsible for our parents well-being. I think we can also all agree that the existence of divorce makes it possible, under law, to not acknowledge one’s spouse.
So, it seems to me, that your problem is with responsibility for children. We do have laws that cover that. Those laws succeed, on the whole, in assigning responsibility (parent or guardian) regardless of whether marriage exists or does not exist, whether marriage allows for OSM or SSM or miscegenation or poly or any other version of marriage you might think of. Admittedly, the laws would have to be clarified in the case of poly marriages.
Your thought process regarding responsibility for children and its relationship to SSM has, quite frankly, left me in the dust. I am unable to follow. There must be some step that you left out of your comment that gets you from here to there. Either that or you believe, for some unspoken reason, that SSM changes existing laws concerning parental/guardian determination and responsibility.
Forgot to ask:
What does discretion say about bioethics?
What do bioethicists think of sticks?
Are sticks discreet? Are they discrete?
Quiet, you.
:-P
—Myca
Maco,
The legal default is that the gestational mother and the person she denotes as the father of a child are responsible for it until either the state deems them to be incapable or they voluntarily choose to pass responsibility to someone else. This works fine in about 85% of cases, whether it’s a single mother who nonetheless can make a claim for financial child support on the man who impregnated her, your favored two opposite-sex parents who conceived the child through sex, John and Elizabeth Edwards using an egg donor, etc. Where the parents are unwilling or unfit to care for the child, the state finds alternative parents who are not blood relatives. Your preference for allowing only blood-relative family relationships means that neglected/abused kids either would have to stay in bad homes or remain family-less wards of the state.
But there are more possibilities that the law can accommodate just fine. For example, when a homeless young woman became pregnant by her homeless boyfriend and both felt unable from the beginning to raise the child, she could find a loving same-sex couple to adopt the baby instead of her having aborted it (if you want the whole story, read Dan Savage’s book The Kid). If that same-sex couple had the legal recognition of marriage, they would have an easier time of it in marginal situations (e.g. if one of them became hospitalized in Florida, which doesn’t require that visitation be permitted for non-spouses).
I want the definition of family and marriage, but not civil unions, to be the same for everyone for largely this very reason.
I want it to be “the same for everyone,” in the sense that it should be put into law and the law is applicable to everyone. I don’t have your obsession with sex/gender as the locus of what family and marriage are (and the law is not supposed to discriminate on the basis of sex/gender, and indeed family and marriage law has been reformed so that it no longer does except with regard to who can marry whom). Family and marriage should be based on the assumption of legally-binding responsibilities toward one another, and those who are failed in these responsibilities — for example, the child or spouse who is abused — should be able to get out. The ability to assume legally-binding responsibilities shouldn’t be conditioned on race, sex, religion, etc.
If we can all select our own definitions,
This is a red herring. I’m not calling for everyone’s “selecting their own definitions.” I’m calling for the law to erase the last vestige of sex/gender discrimination by allowing people to marry regardless of whether they or their spouse is male or female.
Hey Maco.
I’m taking your question seriously, in part because you are expressing such frustration about it. In the past I have not taken it seriously, mostly because it simply made zero sense to me (and still doesn’t). This is part of why on the other thread I decided to ignore you. But, taking it seriously, here’s my take. Assuming that your main concern is the welfare of children and avoiding child abandonment:
Families headed by gay and lesbian couples already exist. That’s not a political opinion or a utopian ideal, it’s a fact. Some of these families already have children. Also a fact.
Bearing these facts in mind, we can either grant legal status to the relationships between the gay and lesbian couples, or we can deny them legal status. Right now, through most of the USA, we’re denying them legal status.
If they’re granted legal status, then that comes with certain rights and responsibilities. Much of the conversation about SSM has been around the rights, but the same responsibilities would apply to same sex couples vis-a-vis their children that would apply to any opposite sex-couple. This would include things like child support, inheritance, etc.
As it stands now, many of these things either do not apply or apply only on a case-by-case as determined by the courts basis.
Thus, if what you are really, truly concerned with is child welfare and avoiding child abandonment, embrace same sex marriage. It will strengthen protection for children in these families.
—Myca
Also, yeah, I’m with PG on this. It’s a straw man, and you’re the only one making this claim.
—Myca
My final chapter in contracts text involved fashioning tests for enforcement and remedies. To be sure, there are a lot of lazy-assed lawyers out there. Rather than specifying every detail of a building contract for a sky-scraper, right down to the quality of the grout in the marble tile, those lazy-assed punks say goofy things like “according to prevailing industry standards,” and designate some arbitrator to provide the details about what those standards are in the event of a dispute. Hard to believe that rank amateur drafting like that make it into to contracts text books. But hey, that’s the sort of stuff we learned in law school.
Ok, admittedly, construction contracts are matters of private law, not public law. Nevertheless, how exactly would we expect private parties to behave if they had to actually specify in detail every component of a construction contract? The Uniform Commercial Code (and similar laws) came into existence to specify the typically unspecified terms of commercial relationships. Just one more example of private parties foisting onto government the burden of filling in the blanks. And yet, the system seems to work.
Legal drafting expert Bryan Garner notes the perils of “rigorous drafting.” If you really want to specify things in a rigorous manner, you look in drafting form books for language that has already withstood interpretation by a court. But what kind of language gets tested in court? Really clear drafting is unlikely to end up being litigated, because one side or the other will see that they don’t have a chance of winning. No, the language that is most likely to get litigated all the way to resolution is language that is so vague that both sides believed they had a credible chance of winning. THAT is the language you find in form books! And you wonder why legal language reads the way it does….
Agreed.
Disagreed. Problems arise both from over-specification and from under-specification. Undeniably problems arise from government officials exercising unbounded discretion. But I can’t tell, in the abstract, whether those problems are greater than the problems that arise from government officials having insufficient discretion.
To be sure, many people in the Federalist Society argue that the 14th Amendment was drafted to deal with the problems of former slaves AND ONLY THOSE PROBLEMS, and if Congress had meant to extend the equal protection of the laws more broadly it should have enumerated the circumstances to be remedied; generalizing from the principles of the 14th Amendment would be wrong, wrong, wrong. And returning to the them of this thread, some people have even gone so far as to suggest that the entire right to privacy underlying Roe v. Wade represents a wrongful extension of general principles, and that only a much more particularized articulation should justify a court’s decision.
These are well-worn arguments. I’m a little surprised to see how much traction they’re getting here.
Should cops exercise discretion over constitutional issues? How could they not?
The very act of making someone a cop is an act of bestowing upon a mere mortal the power to threaten and wield force in untold numbers of circumstances, foreseen and unforeseen, on behalf of the state. Try as you like, you will never, ever, ever draft rules addressing all the circumstances that cop will encounter. And even if you could, the cop would never be able to memorize them, let alone apply them in a timely fashion. Whatever your ideal, we inevitably end up with cops making moment-by-moment decisions on the basis of a few broad principles. And then we have enforcement actions in which the cop’s conduct is subject to review. Like it or lump it, I can’t envision any better system.
Now, sure, the legislature can attempt to influence a cop’s behavior in real time by establishing the standards by which we review the cop’s behavior in retrospect. “Don’t stop people just for failure to wear a seatbelt.” “Don’t use lethal force to stop a fleeing suspect.” “Don’t engage in a high-speed chase in urban areas.” But none of that determines what the cop actually does in real time. The cop acts. And then we review.
So if enforcement actions are an unavoidable part of the process regardless of how much we micro-manage cops, how much do we gain through micro-management?
To be sure, we gain something. In acknowledgment of the very dynamics I’ve been discussing, courts generally grant a degree of immunity to government actions taken in fulfillment of official duties. So if the legislature wants to establish certain bright line no-nos, it may make sense for the legislature to do so. (“Doing X is outside the scope of your employment and not protected by official immunity”)
But consider the example of Sentencing Guidelines. Here is an explicit effort to limit a judge’s discretion to deviate from the formula set down by the legislature, to anticipate all contingencies and provide for them. But far from eliminating official discretion, it has merely concentrated the power of that discretion in the hands of the prosecutor. The result has been wildly unequal, arbitrary sentences. More unequal than before? Dunno. But clearly still unequal and arbitrary.
“prevailing industry standards” is not a principle. “Prevailing” is a status. A principle would be something like “contractors should do jobs they can be proud of and that won’t cause injury.”
Except the FedSoc is arguing that the default in interpretation should be to limit the rights granted as much as possible, which I don’t think is the philosophy of interpretation either Sailorman or I have advocated here. So that’s a bit of a strawman.
Instead, if the language is clear and definitional instead of being based on principles, you don’t end up in these arguments about the framer’s intent. You can stick to the language itself. “Congress shall make no law” works nicely; you still have to define what “speech” is (flag burning? monetary contributions?), but at least courts aren’t in the position of protecting unpopular minorities from the wrath of the majority with a pansy-assed principle like “Freedom of conscience is important.”
Also, a clear law frontloads the cost on to a relatively small number of legislators, and provides supplementary benefits for all citizens.
Take a contract. I do a fair bit of contract drafting. As I tell my clients, there is always a balance between risk and functionality. I can draft a “bulletproof” contract, but it will be 100 pages long and cost them $150,000. In many respects, they are better off relying on a cheaper contract and absorbing some risk of dispute.*
Clients have cost to consider.
But for government, the balance changes because of the vast population affected by the laws. So what if it takes 10,000 hours to decide on the perfect abortion definition? If it lasts 10 years it will cover 10 million abortions.
*And BTW, I don’t necessarily agree with you about “prevailing standards” language existing only to save time. That isn’t necessarily a copout. In many industries, there ARE prevailing standards: codes, regulations, boards, licenses, and the like. Moreover, those standards are constantly being updated and are otherwise evolving. The “prevailing standards” language allows you to access the most current standards in your language without the need to become familiar with every standard. Of course, it also saves time: I don’t want to read the Plumbers and Gas Fitters Codebook, and I’m happy to be able to incorporate it by reference, thank you very much.
Jake Squid: This is correct. You don’t have to acknowledge your parents or your spouse (divorce) or your children (adoption, should your co-parent agree).
Aren’t you putting our obligations to our sons and daughters and mothers and fathers on the same level as our obligations to strangers? Before, I tried to elaborate on the security and sense of individual value my family derived from its interconnectedness across many generations, a feat that does not appear compatible with that particular sentence, as contrasted with some of my peer’s security and sense of personal value, whose lack of a family seems to exemplify it.
PG: Your preference for allowing only blood-relative family relationships means that neglected/abused kids either would have to stay in bad homes or remain family-less wards of the state.
No, that is not true. I want to be clear. Relationships other than blood-family relationships can exist absolutely, but I feel a blood relationship can never be denied without valid cause. I can adopt. You can adopt. I cannot give my child up to you to adopt. Not without a very good reason.
Honestly, my mother would slap my face to the far side of my head (figuratively) if I expressed the thought that the absense of sexual desire altered my fidelity to my children and their mother, and I have to say I’ve always agreed with that sentiment.
PG/Myca: This is a red herring. I’m not calling for everyone’s “selecting their own definitions.” / It’s a straw man, and you’re the only one making this claim.
Okay, two of you feel I’m off base on this, but I’m experiencing dissonance again. The way I was raised, I do not select my definitions wrt my kids. You know without asking who bears responsibility for their feeding and clothing and schooling.
You said the legal default is to attach obligation to the gestational mother and the person she denotes as the other, if she denotes another, but only until she, he or they find someone else to take over or relinquishes responsibility to the state. Are they not selecting their own definitions?
I am reflecting on these and other poster’s responses. See you tomorrow.
but I feel a blood relationship can never be denied without valid cause. I can adopt. You can adopt. I cannot give my child up to you to adopt. Not without a very good reason.
OK, what constitutes “a very good reason”? Do you condemn Melissa (the young woman from whom Dan Savage and his boyfriend Terry adopted their son) for having her son adopted because she lives on the street and didn’t want that life for him?
Honestly, my mother would slap my face to the far side of my head (figuratively) if I expressed the thought that the absense of sexual desire altered my fidelity to my children and their mother, and I have to say I’ve always agreed with that sentiment.
Who’s ever said that absence of sexual desire alters one’s obligations to one’s children? Yuck.
You said the legal default is to attach obligation to the gestational mother and the person she denotes as the other, if she denotes another, but only until she, he or they find someone else to take over or relinquishes responsibility to the state. Are they not selecting their own definitions?
I think we’re experiencing confusion over what you mean by “definitions.” To me, the definition of a parent is a person who assumes legal responsibility for a minor — ensuring that the minor is safe, healthy, educated and cared about — until the minor is an adult. The parent can be a person with a genetic or gestational relationship to the child, but that’s neither necessary nor sufficient. Someone isn’t a lesser parent for lacking that biological relationship, and the biological relationship is not sufficient to make someone a parent if she fails to assume the responsibility of parenthood.
Jake Squid:
Maco:
You’re still making no sense to me. The “value your family derived from its interconnectedness across many generations” is not legally mandated. How is this incompatible with what you quoted from me? It’s great that your family has derived value from its interconnectedness. I’m happy that this choice worked for all of you. But it’s still a choice and not legally mandated.
I replied to your statement of position by showing how permitting SSM, or a variety of other forms of marriage, in no way legally impacts the current status of your concerns. You respond with, what seems to me, a non sequitur or diversion or tangent. What’s the connection between my refutation of your opinion on the legal effects of SSM and your response to my refutation? I don’t see it.
I’m certainly putting our obligations to our parents on the same level as our obligations to strangers or, more properly, people not related to us. That is to say, the level of my obligations to my parents, siblings, aunts and uncles, grandparents, cousins, etc. is my choice. There is no law laying out my responsibilities to relatives who are not my spouse or children. SSM does not change this.
Our obligations to our children, OTOH, are codified into our legal system. SSM does not change this either.
I still have no idea how you come to the conclusion that SSM changes any of our familial obligations, legally or otherwise. Perhaps you can clarify how you think SSM changes the law with regards to obligations to family?
Maco,
Honestly, my mother would slap my face to the far side of my head (figuratively) if I expressed the thought that the absense of sexual desire altered my fidelity to my children and their mother, and I have to say I’ve always agreed with that sentiment.
This has zero relevance for same-sex marriage. No one’s sex drive has any bearing on their obligations to their kids, whether it’s a straight couple in a sexless marriage, a gay or lesbian couple in a sexless marriage, or any other possible permutation, no one’s sexual desires have any bearing on their parental responsibilities. Furthermore, divorce and break-ups have no bearing on parental responsibilities. No one has claimed otherwise.
But once again, this has nothing whatsoever to do with same-sex marriage. You’re already married to your wife, and therefore bound to her, and your kids are already born, so you have parental responsibilities. This goes for any married parent regardless of gender or sexual orientation. We’re not talking about letting married parents out of their obligations, we’re talking about letting single folks take on the responsibilities of marriage!
Why shouldn’t I have the same opportunity to marry someone I love as you? (I can only assume that, whatever your feelings about your wife now or later, you married in the first place out of love. Once married, people are obligated to each other, but I hope we can agree that people should be able to choose their spouses.)
Why shouldn’t my future wife and I be able to adopt kids who need homes? Why don’t you want orphans to get new homes? I apologize for the melodrama, but seriously.
By the way, I’m totally baffled that you and I disagree (we dialogued in another thread awhile back), as I do feel strongly that we’re morally obligated to our parents and other relatives (except in cases of abuse), I’m extremely disturbed and disgusted by irresponsibility when it comes to providing for children and the elderly, and I derive great personal meaning from my family and family history. (Though I don’t have a huge family like you, because my ancestral community was destroyed in the Holocaust. This is one reason I’m grateful to be able to form a family of friends in addition to my family by birth, because there simply aren’t very many of us.)
Jake, Myca, PG, Daisy and chingona, almost any question could be answered with a post of great length. I’ll try to find the best points to carry on with when I have the time. If I don’t get around to every point, I’ll thank you now for your thoughtful responses. I appreciate your opinions.
What would happen if we accorded the same treatment to the termination of each sperm-egg combination as we do to the death of each 30-yr-old?
Warning: Shameless ranting about an out of context quote ahead…
If we treated every sperm-egg combination in the same way we treat 30 year olds with respect to our desire to keep them alive then abortion is the least of our problems.
If a thirty year old dies, it is, in general, considered a tragedy whether s/he died of “natural causes” or not. A thirty year old being murdered is a tragedy. So is a thirty year old dying of leukemia or hypertrophic cardiomyopathy or pregnancy complications. Because we consider the death of a young person to be a tragedy, whether human malice was involved in that death or not, we take steps to reduce the chances of death at age 30. We encourage people to use seatbelts when they drive and helmets when they bike (or ski). We spend huge amounts of money trying to keep sick 30 year olds from dying. We spend huge amounts of money trying to convert currently incurable illnesses to curable illnesses.
So, if every conceptus is to be treated as a 30 year old, first consider medical research. As many as 80% of concepti fail to implant. Think about that: 80% of people are dying in the first hours or days of their lives! That’s a bigger problem than HIV, isn’t it? Or heart disease, cancer, SIDS, etc. Or even later miscarriage. And we have no idea–none whatsoever–of how to prevent it from happening. Thus, the majority of our medical research funds should go to prevention of implantation failure. If the death of a conceptus is the same as the death of a 30 year old.
Then there’s the problem of medical care. Ok, we don’t really know what causes failure to implant and early miscarriage, so there’s not a lot to be done now, but some things are known. For example, if you conceive during the lower fertility period (i.e. use rhythm method and “miss”) then you’re more likely to miscarry very early on (before or just after implantation.) So clearly sex should be prohibited during the lower fertility periods. Certainly intentionally having sex only in the low fertility periods is out. Absolutely maliciously placing people in harm’s way. Whether conception is intended or not. Arguably whether birth control is used or not.
Then we need to consider the question of what it means for someone to die. The current standard definition is brain death. Clearly, this is unsuitable because how can you determine brain death in an undifferentiated ball of cells? You can’t. So what’s the new definition? Maybe last cell in the body dying. Ok, so much for cadaveric organ donation–can’t steal organs from a living person no matter how dead their brains are. And if all concepti must be kept alive if at all possible regardless of their health then all people must be as well. No hospice, no compassionate care only, no do not recessitate orders. No taking someone off a ventilator when they’re brain dead. Keep going til the last cell dies. Or be charged with murder.
And speaking of murders, what about chimeras? It’s presumably not their fault that they absorbed their twin, but they did. Should they be sent to reform school at birth? Be taken from the mother who provided the dangerous environment? How are we even going to know it happened? Screen all pregnant women for number of embryos early on? Screen all women of child bearing age for pregnancy regardless of their history of birth control use or even sexual activity? You never know…
In short, treating the death of a newly conceived embryo as equal to that of a 30 year old has profound implications for health care, medical research, law, civil rights, and even the definition of what a “living person” is. Abortion is the least of it.
I’ll start answering some fair questions made by Jake Squid.
Jake: I think that we can all agree that one is not required to acknowledge one’s parents. There is no law that makes us responsible for our parents well-being. I think we can also all agree that the existence of divorce makes it possible, under law, to not acknowledge one’s spouse.
So, it seems to me, that your problem is with responsibility for children. We do have laws that cover that. Those laws succeed, on the whole, in assigning responsibility (parent or guardian) regardless of whether marriage exists or does not exist, whether marriage allows for OSM or SSM or miscegenation or poly or any other version of marriage you might think of.
Your first paragraph may be technically correct regarding our laws, but it is my personal Tao that I believe in balance in all things, that to endure, what is given must be given back (and if not given back, passed forward) and to understand a thing requires that we see the whole thing, not part of it.
Our children are not just children. They are adults and they are elderly. They are wise and foolish. They are sick and healthy. My baby cousin Heather, my sister-in-law Grace and my great-aunt Esther, youngest and oldest and middling among my living relatives, are identical in nature and in importance to me. A system of family values that you claim covers Heather but not Grace or my mother or Esther, is of very little value to me.
If my son is gay, you offer him a marriage that doesn’t envision his right to inclusion in a family as an adult or his place among one when he is old.
From the day she was born, Esther has been surrounded by family. Heather has just begun her life and my brother’s new child is almost here, but I feel I can trust implicitly that they will end their days the same way. This is of value to me. This is what I want for my son, if he were gay or straight.
I began exploring armchair politics like blogging strongly in favor of gay marriage, believe it or not. I am considered a very unbiased man in daily life. But I assumed what was generally meant by marriage and family was what I mean by it.
I still have no idea how you come to the conclusion that SSM changes any of our familial obligations, legally or otherwise. Perhaps you can clarify how you think SSM changes the law with regards to obligations to family?
SSM and other alternative lifestyles do not change existing laws, they are derived from them. They are based on what you think our legal responsibilities are, and I think they are rubbish. I am not a creature of law, Jake. The beating heart matters to me more than the black and white.
I have struggled to find a way to incorporate same-sex unions into the kind of pattern I value, one which I respect and appreciate and want desperately for the people I love the most in life, but at some point there comes a time when I have to say “this is something you must do for this person” and I have to be able to trust that you will do it. After years of having people simultaneously tell me “Oh, I’d never do that, why don’t you trust me” and simultaneously “I’ll do it if I like, it’s my legal right”, I retreated into a traditionalist stance and have been considering my options ever since.
I have no time for more thoughts, but to all of you who asked, I have given your arguments every consideration and intend to answer.
Daisy, I do want you to be able to adopt, but your desire to adopt does not strengthen your right to marry a woman, since I assume you would agree that, if you didn’t want to adopt, your right to marry a woman would not be weakened. So I feel there is a scent of red herring there.
Maco, my point was not that I should be able to get married because I want to adopt; my point was that there is more than one way to have a loving, responsible, committed family. A same-sex couple who adopts kids and is deeply devoted to each other, their children, their parents, siblings, and all their other relatives fits seamlessly into the framework of familial devotion that you’re talking about. I’m dumbfounded as to how you could possibly disagree.
I get that you don’t think we can choose our obligations or our families — and I agree with you! But you don’t believe in arranged marriage, right? You got married because you fell in love? If you believe we can choose our spouses, there is no reason we can’t choose a spouse of a gender we’re actually attracted to* and continue to fulfill our obligations to the rest of our families, and raise children in a way that’s completely congruent with your value system (i.e. adoption — look, I know it’s really unfortunate that there are kids out their who need to be adopted in the first place, but that’s the reality).
* A marriage that becomes sexless is one thing; it’s entirely different to suggest people marry someone with whom they were never in love in the first place.
So, if I understand you correctly, Maco, you’re saying that everybody needs to live according to the rules that you do. You’re saying that deviation from your chosen morals and ethics must not be permitted. All for reasons of your own. Reasons that I, and I’m sure others, find entirely without logic. I can’t allow that to become the rule of the land without fighting against you tooth and nail. You are basically advocating a totalitarian culture based on your interpretation of tao. That’s no better than trying to impose Islamic or Jewish or Christian laws on everybody. I find that to be truly against all that is good.
While I fully support your choice to live according to a philosophy you find fulfilling, that support ends when you try to force that philosophy on others.
Also, this
is wrong, wrong, wrong. How does offering your fictional gay son the ability to marry his lover NOT “envision his right to inclusion in a family as an adult or his place among one when he is old?” It does not do that. In fact, it explicitly does the opposite. It envisions for your fictional gay son his right to inclusion in a family as an adult, along with all the rights and responsibilities that go with inclusion in a family as an adult, and his place among a family when he is old. In other words, it offers him exactly what it offers those among us who are heterosexual. As it stands now in most of this country, your fictional gay son is prohibited from “envision[ing] his right to inclusion in a family as an adult or his place among one when he is old.” Your position continues to deny what you feel is necessary.
Pretending that SSM actually has relevance to this quote, which it doesn’t:
So you have decided, because you can’t incorporate SSM into your valued pattern, that nobody, not even people you’ll never meet, can live in a way that doesn’t match your valued pattern.
The problem here is that you can see no validity in families that don’t match your utopian view of what a family should be like. The problem is that SSM doesn’t fit the way that you would like to live. You can’t even see validity in a family that differs from your ideal only in the matter of genders involved. Your imagination is so limited that you actually find alternative versions of family threatening. You are afraid that some family members of yours would use it as an excuse to abandon their obligations? It doesn’t seem like you trust your family. I would pity you if it weren’t for the fact that you’re actively working to hurt others.
Feh. Gah.
Maco,
You write:
and
There are gay people who share your values and straight people who don’t. The gay people who share your values are barred from marrying and creating families that you would admire and respect in every way, and the straight people who don’t are free to create marriages that violate everything you consider valuable to that institution.
I assure you that every single one of us has values that we wish everyone would follow but that cannot be legislated. You cannot legislate a good family or kindness or responsibility. Indeed, even parental responsibility cannot be legislated. Every day parents abuse and torture and even kill their children, and every day thousands of other children are removed from their biological families because the adults who should have been responsible for them were not. This is a terrible state of affairs, but it has ALWAYS existed. You say our legal responsibilities are “rubbish” and that gay marriage would reflect that tainted origin. Do you wish to ban straight marriage because it, too, is based on these “rubbish” responsibilities?
Like Jake, I reject this as strongly as I possibly can. If your son is gay, and you have taught him your values and he has accepted them, he will create relationships that reflect and include those values. If your son is straight and he has rejected your values, he will not.
You speak of responsibility to each other. Imagine your hypothetical gay son and his partner adopting a child, a child they both love and cherish, a child who sees both of them as his parents, the only parents he can ever remember. But because they cannot marry, only one of them can be his legal parent. If your son’s partner were the legal parent and he were to die, your grandchild could be removed from your son because he is not the legal parent, because the child legally would be an orphan and your son – the child’s father – would be nothing to him under the law. Your son could be prevented from fulfilling the obligations you hold so dear. But if your son and his partner could marry, your grandson could remain with his family, growing up with that interconnectedness between the generations you claim to value.
Of even if they do not have a child together, and your son’s partner were to fall ill and be hospitalized, your son could be prevented from visiting him, caring for him, making medical decisions for him – in short, fulfilling all the obligations that spouses have toward each other. Prevented not by his own irresponsibility, but by outside forces.
You seem to have a tremendous amount of anxiety, fear and sorrow about what you perceive as a change in the level of responsibility we have toward each other, in the level of interconnectedness we have. My own view is that there have always been good and bad families, responsible and irresponsible people, but there are a lot of things people used to hide and paper over and not talk about, and now it’s out in the open. There is, also, more social space for individuals be their true selves. Sometimes, this causes family members to reject someone who loves the wrong person, follows the wrong religion or none at all, or whatever. To my mind the fault in not living up to familial obligations is with the person who does the rejecting, not with the person who is rejected.
But regardless of what you or I see as the cause, this state of affairs already exists. It exists without gay marriage. Gay marriage does not cause of any of this. But the lack of gay marriage means that gay people who share your values are prevented from following through on their obligations.
I feel sorry for you. But that pity is tempered by the knowledge that people who think like you are responsible for laws and policies that hurt families.
Maco, It sounds like the way in which you value your relatives, all identically as you say, depends on the way they live in your imagination. You envision their entire lives and their being enmeshed in a web of love and obligations that intersects with your own life, and for you that’s the ideal version of a family. And for a reason that’s not clear to me at all, your imagination can’t encompass SSM. What is strange to me is that your imaginary Heather, your imaginary Esther seem to be more important than the real girl and real woman. How can you be certain that the lives they lead, they led, and they will lead accord perfectly with your heterosexualized version? Should I be terribly disturbed if my son becomes a doctor (or an accountant, or a cowboy) rather than the poet I envisioned he’d be? I can’t escape my world, in which I love people for who they are rather than for the entire lives I imagine they have led and will lead.
I had answers for questions and rebuttals to answers and attempts at clarification and requests for clarification and an occasional oh sod off all set to go, but there is no need.
Ladies and gentlemen, you have convinced me. I thank you for your debate, I apologize for any insult you might have felt as a homosexual or on behalf of homosexuals. Some of you commented on my odd anxiety. I will admit some of what I was expressing did come from a place of fear. Fears need to be explored as much as hopes, though. I had to go there.
Myca, different underlying axioms would certainly make my questions appear quite senseless. I disagree with you on a thing or two, but generally I like where you stand on the issues. Thanks for ignoring me only 80% of the time.
PG, thank you for your plain approach and clear arguments, and for taking seriously my crazy talk.
Daisy, I hope your marriage makes you insanely happy. Your civility when something of such personal importance was at stake was especially appreciated.
Jake, thanks for your candor. The reason I comment less than I read is that I tend to agree with you a lot. You were right this time.
Eh, mostly ;)
Chingona, ditto.
Yusi, you got imaginary people are more important to me than real ones? What imaginary people? I was trying to articulate how no kind of person they are right now or might be later, or what kind of life I can imagine them living, alter how I feel about them as a family, including whether they were straight or homosexual.
Perhaps I’ll run my drafts by PG for polishing and review from now on, she has a clean and efficient approach to writing. I bet you wouldn’t have got that if she’d proofread my work.