Sunday, October 16, 2005

Miers Nomination: The Future for Abortion

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ROE V WADE, 1/22/73: State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy.

Fourteenth Amendment: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


One of my closest friends growing up was my cousin. Every other weekend we would spend our Saturday or Sunday together playing computer games and sharing our respective passions for soccer, and WWF Wrestling, usually bantering and teasing each other into the evening, while enjoying marathon gaming sessions on his Commodore 64. These times are some of my fondest childhood memories.

My cousin suffered from a congenital degenerative muscular disease that confined him to a wheel chair for most of his life, and after a period of illness he passed away in 1993. Without wishing to romanticize my relationship with him, which is the last thing my boisterous, cocky and down to earth friend would have wanted, he remains a very significant part of my soul, and he is always in my thoughts.

The nature of his congenital disease exists in my father's lineage and can be passed down by women born from that side of my family, but only to their sons. After the extent of his disease and suffering was clear (and he did suffer greatly), his parents tried again, hoping to have a girl who could, with certainty, not inherit this genealogical trait. Twice they conceived boys who, tragically, both exhibited characteristics of my cousin's disease and in both instances they chose to have abortions. They did this firstly for the sake of themselves, after their immense, brave, and eventually grief strickened struggle with my cousin, and secondly, because of their intimate first hand knowledge of the quality of life ahead for a child with this disease. This was their calculus in making their choice.

Recently, a friend of mine related to me a story of a close companion she knew who had chosen to have an abortion because of her age, and economic circumstances. It just wasn't the right time in her life, and she wasn't in a position, along with her partner, to cope financially with the burden of rearing a child. Her partner had absolved himself of responsibility for the decision by simply stating he would be supportive of her choice, regardless, which wasn't helpful. And, after the passage of time she grew more and more traumatized by the choice she had made. With deep sadness, guilt, and sorrow she could not forgive herself for ending a life force that she felt powerfully in her heart. The memory of the fetus that she aborted became quite human in her mind.

My point: Abortion is not just an abstract, two dimensional political debate. Those who have abortions are not evil-doers, and those who believe abortion is wrong are not religious fundamentalists. This is real life. The practical implications of criminalizing abortion has real life consequences that everybody, regardless of their point of view, should take time to reflect upon.

I find myself with a lot of personal doubts about my own views on abortion. I come from a nation with a clear cultural consensus on the issue and when I play Devils Advocate with my own belief system, usually in the midst of listening to right wing talk radio, or reading the columns of my favorite US Conservative writers, abortion is the one subject where I find myself consistently reaching ambiguous conclusions. All I know is that the famous "Violin Player" analogy resonated with me when I was at college studying philosophy and that ever since I've passionately felt that within a reasonable time period a woman should retain rights over her own body... Intuitively, for reasons that transcend my political views, that still means everything to me.

There are three main questions I have:

Is abortion ethical?
What are the practical consequences of criminalizing abortion?
Is the qualified right to an abortion guaranteed by the US constitution like Roe V Wade states?


As a side note, if you're not interested in my own ideas on these questions, which are quite lengthy and detailed, I would still love to hear your POV in my comments section.

ETHICS
By what criteria can we make an assessment of whether a fetus is deserving of rights that override the reproductive rights of the mother? Is the fetus a human being and what does it really mean to be human?

I've always felt that human life is defined fundamentally by our sentient awareness of ourselves... our open eyes receiving, digesting and being transformed by our environment, and our cogniscence, even on a basic level, that this process defines our existence. But when you think about it, I'm wrong... was I endowed with sentient awareness when I immediately exited the womb? Was I immediately sentient when I entered the physical world for the very first time?

I have no memories of being one month old, or six months old, and if I had to speculate, I would say that I didn't grasp my life, birth, and death, till much later. Isn't sentient awareness a process our mind takes, adjusting, and involving itself with others and our surroundings? Isn't it something a human being arrives at after it is born?

If that is true sentience cannot define what it means to be human. A newly born baby is still human despite its lack of psychological development. Hence, how can a lack of this be the basis upon which we say a fetus is not human? It can't be.

So what is it then? What is the criteria for determining at what stage life overrides the right to an abortion, if that right ever exists in the first place?

Is it God and the Bible? To many I'm sure it is, and while I respect their perspective it isn't the basis upon which I can determine my own value system. I can think and reason for myself, and this is how I like to arrive at my principles.

Is it the physiological dependence that the fetus has upon its host/mother? Is it the physical development of the fetus... the size of its heart, the appearance of fingers and thumbs, its ability to feel pain? I know... it's not an easy question.

The only way to answer it in my opinion is to work backwards...

To criminalize abortion you are legally compelling a woman to bring a fetus/child to term, because the legal rights of the life inside her womb override her reproductive rights. Hence, abortion is killing. Abortion is murder.

Is the “morning after pill” killing? Has a woman who swallows the “morning after pill” ended a human life? I imagine many people reading this, like me, would conclude "no" to that question. But why? The egg has been fertilized by sperm. The pill works only by preventing a woman’s ovaries from releasing that egg, and by affecting her womb lining to keep it from embedding there.

For me this is the huge question to ask if you honestly want to reflect upon your own beliefs on abortion. Does a woman have the reproductive right to stop a fertilized egg embedding itself in her womb? Is it murder? Does she have the right to consider her own life, studies or economic circumstances and ability to provide for a child etc, at that stage, and chose to swallow that pill and potentially end what could eventually be a child?

There are many who think she shouldn't and that the morning after pill is murder, and I totally respect that point of view? But, I personally don't think that, and I don't believe the majority of Americans think that.

So if we can establish upon consensus that the morning after pill is not murder, we are concluding that human life does not begin at fertilization, and we can begin to look ahead...

Does human life begin when the fertilized egg embeds itself in the womb? Is an action to terminate the pregnancy at that stage murder? The majority of people who are against abortion would say yes at this stage. But ask yourself, what difference is there between the fertilized egg before it embeds itself in the womb, and a few moments after? Virtually nothing. There is no immediate change. The difference is that the womb facilitates the physical development of the fertilized egg into a fetus. It's the DEVELOPMENT of that fetus, and not its position in the womb, which should characterize our decision as a society about female reproductive rights...

After spending the last week or so re-considering my views, and talking to the people around me about their experiences and ideas, the conclusion I’ve reached is this:

Abortion is fundamentally a judgment we have to make about when the physical development of a fetus compromises a woman's reproductive rights. And as a society, we have to face up to this reality... there is a time frame to be determined... be it modern scientific standards... be it twenty weeks, twelve weeks, eight weeks. I understand how emotive the sight of an aborted fetus is, and some of the pictures I've seen online reading about this issue will be burned in my brain for quite some time... But, I recognize that it is irrational to call a woman who has an abortion a murderer, or the act itself killing, while thinking that the stage of her pregnancy doesn't makes any difference to the ethical questions involved. Of course it does, unless you believe life begins once the egg has been fertilized.

CRIMINALIZING ABORTION
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What are the real life practical consequences of criminalizing abortion?

Should my uncle and aunt have been prosecuted for murder for having abortions after their experiences with my cousin? Should a young woman studying at University attempting to create financial security for the sake of the children she will have be prosecuted for saying now is not the right time? Should a single woman, unemployed, be prosecuted for deciding that she is not in a financial or emotional position to bring a child to term, nor raise it?

Their possible punishments: Jail sentences up to life in prison + the Death Penalty.

A Pro-Life supporter might say:“Surely if you take the risk, there are consequences that are your responsibility, and if you don't want those consequences you possess the power to avoid them.”

And yet, in terms of the criminal implications, it's interesting how this responsibility rests solely upon the shoulders of women. I am sure that if Roe V Wade gets overturned you won't see any men, just as responsible for the act in question, being held legally accountable for an abortion that has taken place.

Criminalizing abortion basically comes down to criminalizing female sexual behavior that doesn't correspond to childbearing. It serves to de-sexualize them again in a society, where finally, they've emerged from the shackles of domesticity to freely express themselves in ways that they should never have been ashamed of in the first place. In a state where abortion is illegal the message will be clear to all women: SEX = motherhood or jail time or something potentially worse...

Would you even want to take a 2% risk when the stakes are that high?

THE NON-EXISTENT DEMOCRATIC DILEMMA
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I hope that even if you reach different conclusions to my own this post will help provoke a re-examination of your values, and the impending reality of abortion's criminalization in certain states. For instance, do you really think my uncle and aunt should have to defend themselves in a court of law for the choices they made? Aren't we just returning to an age of backstreet abortions, in terrible conditions for the poorest women in the nation?

Harriet Miers is passionately pro life and almost certainly will vote to overturn Roe V Wade. The SCOTUS will now say that abortion as a right is not guaranteed by the US constitution and, consequently, it will return the power to states to criminalize abortion if they so choose.

The truth is that I'm not in a position to judge whether the constitutional right to privacy guarantees a woman's qualified right to terminate her pregnancy as stated by Roe V Wade. I learned everything I know about the Supreme Court from the C-Span archives, I'm not well informed, and this is something I would definitely appreciate your viewpoints on...

But, what I do know well is politics... I know that from a Democratic perspective supporting Harriet Miers serves the party’s political aspirations for the 2006 mid-terms… I know it puts President Bush at greater risk with his own party at a time when he’s publicly struggling for the very first time.

I also know that Harriet Miers is the best justice Democrats can possibly hope for, and that if her nomination fails, she will be replaced by a more strident, intelligent, confident, and experienced Conservative who will undoubtedly wield more power in the context of the Supreme Court’s collegiate process.

The reality is that this battle has already been fought… and it has already been lost.

There is no question to me that in 2004 the Democratic Party failed the millions of Americans who will suffer if Roe V Wade is overturned. I have always been supportive of John Kerry. I supported him two years before the 04’ primary and I still support much of his platform as the best alternative to some of the problems we are currently experiencing. But, his failure, and the Democratic Party’s failure to articulate to the American people the reality of criminalizing abortion, while fairly discussing the constitutional issues surrounding Roe V Wade, and the ethical issues surrounding abortion… has threatened the liberty and privacy of millions of women in the United States.

Do you not think this was an argument Democrats could have won? And if we had lost, would it not have been better to have at least fought, and lost, rather than to now watch powerlessly on as the cultural foundations of the nation are transformed for a generation.

Democrats have an awful dilemma ahead of them with Harriet Miers. I'm sure it will weigh heavily on Democratic Senators over the coming weeks. But, the sad reality is that the choice they make doesn’t really matter now. It doesn’t really change anything... It is a non-existent dilemma. What really mattered isn't even in play.

Because when it really mattered on the issue of abortion and women's reproductive rights in the United States… the Democratic Party didn’t even put up a fight. We didn't even make an argument. We didn't even try.

George Bush ran in 2000 and 2004 to make appointments to the Supreme Court in the mold of Scalia and Thomas, to overturn Roe V Wade and return the power to states to criminalize abortion...

...I believe history will remember that Democrats didn't even call him on it when they had the chance.

Related News Articles
WSJ: Assurances to Conservatives that Miers will oppose Roe.
Daily Kos: Dobson and Miers.
Rush Limbaugh: Holding Court.
David Brooks: In her own muddled words.

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