(no subject)

[stonebender]

I had a little brain fart. I think I got McCain confused with Romney to be honest. You are more right than I am, but after a quick search I did come up with this:

http://blogs.abcnews.com/politicalradar/2008/08/mccain-backs-aw.html

which seems to suggest that McCain in 2000 was a little less anti-choice than he is now.

Comments

[johnpalmer.livejournal.com]

In 2000, I believe McCain was explicitly opposed to overturning RvW. Today, he is explicitly in favor.

What's scary is, what's this with needing to *add* an exception to save the woman's life? Are they seriously saying "no abortion, even if the pregnancy is killing her"?

I mean, that's just crazy.

[leback.livejournal.com]

Are they seriously saying "no abortion, even if the pregnancy is killing her"?

I think the operative principle is that it's never okay to intentionally kill one person in order to save another -- even when the likely outcome of letting nature take its course is that both will die. A non-pregnancy-related analogy: You're stranded at sea, and starving, but by killing and eating the guy with whom you're stranded, you can probably hold out long enough to get to shore. This actually happened, several hundred years ago under the jurisdiction of the British Crown, and the verdict of the resulting murder trial still gets debated in US law-school classes.

Having said all that, I am myself strongly pro-choice -- but the argument doesn't strike me as crazy, so much as I just disagree with some of its premises.

[johnpalmer.livejournal.com]

It strikes me as crazy for an appropriate value of the word. But I grant that it doesn't work for some values of the word.

Re: the analogy, I see the analogy as closer to "if someone jumps into your lifeboat, and puts your life in danger thereby, and you want to kick them out", which is a far cry from murder to enable cannibalism.

But I grant you, I know some people, who generally seem reasonable, would make the argument you gave.

[leback.livejournal.com]

I think a lot of the people who are uncomfortable with abortion to save the mother's life would also be uncomfortable with the idea of kicking someone out of the lifeboat when they're then sure to drown. Especially presuming that they *didn't* "jump in" -- at best, they washed into it unconsciously, or maybe you even invited them in. At that point, the lifeboat may in some sense belong to you -- but the fact that you own a functioning lifeboat and they don't is just a product of luck, and meanwhile, you're both equally dependent on this one. Under those circumstances, it's by no means clear that ownership carries particular moral weight.

[johnpalmer.livejournal.com]

I think any non-sociopath would be *uncomfortable* kicking someone out of a lifeboat. But the question isn't "is it a good and fine thing that leaves people feeling comfortable?" but "would you think that a person who does that when their life is in clear danger should be put in jail?"

[leback.livejournal.com]

Eh, the act of criminalizing something is more nuanced than that. It may be that no jury would ever actually convict the person who pushed the other out of the lifeboat, when the desperation of their situation was clear. Nonetheless, one might still hope, by pronouncing the act unlawful and subject to punishment, to make the emphatic statement that it is *never* a morally appropriate thing -- and thereby to counsel people out of doing it, to scare them out of doing it, to remove their opportunities to do it...to minimize, essentially, the possibility of its occurrence in the first instance. There are plenty of instances in which existing laws make no exception for dire circumstances, but in which prosecutors or judges or juries will quietly decline to punish certain violators. I think many (though certainly not all) people in the "no exceptions" camp on abortion laws would choose to excuse some women who aborted under some circumstances, but would prefer that the law take a strict moral stance on the issue.

For that matter, returning to the lifeboat example, I'm not aware of any murder statute that makes an explicit exception for shoving someone out of a lifeboat in a moment of desperation (or for the analogous general case) -- so I expect that the anti-choice extremists would question the appropriateness of listing an analogous exception in this instance, unless the intent were to express that such an act *is* a good and fine thing, and one for which people should even be entitled to medical assistance. And heck, since I actually do think those things, and want them expressed in the law, I don't exactly think it's a mistake to infer that intent.

[johnpalmer.livejournal.com]

It's true, the act of criminalizing something *may* be intended to be more nuanced than that, but that is the result of criminalization. Criminal law is too blunt and heavy an object to be used to express societal disapproval. The price of living in a free society is the loss of the ability to show that kind of disapproval.

(NB: Obviously, this is my belief, and not a reflection of actual reality; we live in a society many will call free, but where you can be put in jail for many acts that don't harm others.)

As for "murder statutes not making exceptions for pushing people out of lifeboats", it's true, they don't.

But I believe murder statutes don't tend to apply in the first place, when another person is killing you (albeit inadvertently), and you kill them because it's the only way to save your own life, in circumstances in which it is impossible to save you both.

If they do, in fact, apply in those circumstances, then I'll grant that people can be reasonable in an attempt to outlaw abortion, even to save the life of the mother, but it won't change my mind that they're completely wrong, given the special circumstances (i.e.: a pre-viability fetus).

In other circumstances - where, say, one person puts a gun to another's head to force the latter to kill a third person - I'd want judicial discretion, where we hope the prosecutor would choose not to prosecute, or the jury would refuse to convict. But in the case where only one party can be consulted, and the other is causing the first party's death, I think the law should allow the first party to make the call, even if we might disagree with it, depending on the circumstances.

[leback.livejournal.com]

The legal definition of self-defense (which I believe is the exception you're thinking of) is indeed too narrow to encompass the lifeboat case. The law permits you to defend yourself against attackers who are themselves violating the law, not to harm people who just happen to be so positioned as to threaten your safety.

Anyway, I don't disagree with you on policy here; I'm just questioning whether the opposing view is actually "crazy," or merely built on a different value system from my own.

On the point about whether criminal law can be used to express disapproval, there is some difference I think you're overlooking between expressing "We disapprove of this act" and "We have a legitimate interest in preventing this act, and that interest can only be adequately protected if there are as many legal barriers as possible in the way of its violation."

For example, the Israeli Supreme Court a few years back dealt with a case pertaining to whether Israeli law could permit torture (which was absolutely forbidden by human rights treaties) under specific circumstances. The argument was that the ban ought to be excepted in situations where, for example, numerous lives were immediately threatened, torture was likely to be effective (and no alternative was), and the torturee was known to be the responsible party. The court decided that no generalized exception was appropriate -- that if anybody did violate the law under such circumstances, they should still be subjected to the criminal justice process, and if it wasn't appropriate to convict, that had to be determined on the facts of that case. The law could not contain any generalized allowance for torture, even if very specific circumstances might be sufficiently compelling to justify non-enforcement.

Truth be told, I think it's a fine result. There are probably circumstances under which I'd decline to punish someone for acts of torture, but I think a blanket prohibition is a perfectly appropriate starting point. In particular, I think an individual who chooses to torture someone should know that he's violating the law, and that he'll be forced to plead for mercy only on the facts of his own situation. I think a law that imposed *any* lesser degree of restraint on him would not be doing its job.

And I don't think that stance is at all incompatible with a free society.

[johnpalmer.livejournal.com]

The legal definition of self-defense (which I believe is the exception you're thinking of)

It isn't.

On the point about whether criminal law can be used to express disapproval, there is some difference I think you're overlooking between expressing "We disapprove of this act" and "We have a legitimate interest in preventing this act, and that interest can only be adequately protected if there are as many legal barriers as possible in the way of its violation."


Excuse me?

Did you really just say that you think I'm overlooking the difference between "we don't like this" and "we have a legitimate interest in preventing this"?

[leback.livejournal.com]

No, I didn't. I said I think you're overlooking the difference between seeking to express one or the other of the views I described in the law. I think that because the points you made give no indication that you're addressing the latter type of expression, only the former. And while I realize that you *don't* believe society has a legitimate interest in protecting pre-viable fetuses, I'm still responding to the part where you called "crazy" a position rooted in the belief that it does. Unless all you mean is that that belief is itself crazy (which I think would be far beneath you), I don't see the applicability of your arguments about what a free society can and can't do via its criminal law. Thus, I guessed that you misunderstood the type of expressive function to which I was referring.

Anyhow, you sound like you're beginning to be upset by this discussion, so I'd like to bow out before I offend you further. I do get email comment notifications, so I'll still see any response you might choose to make, but unless you require further clarification, I don't think it's wise for me to continue responding.

[johnpalmer.livejournal.com]

No, I didn't. I said I think you're overlooking the difference between seeking to express one or the other of the views I described in the law. I think that because the points you made give no indication that you're addressing the latter type of expression, only the former. And while I realize that you *don't* believe society has a legitimate interest in protecting pre-viable fetuses, I'm still responding to the part where you called "crazy" a position rooted in the belief that it does.

Yes, that clarifies things.

I had conceded that, if my understanding of the law was incorrect, the original statement was "reasonable" - i.e., "not crazy", but still, IMHO, wrong due to other circumstances.