Stanek weekend question III: Could Congress indirectly ban abortion with an exhorbitant tax?
Fascinating, provocative questions posed by Megan McArdle, business and economics editor for The Atlantic, on December 17. Never thought of this…
An interesting question emerges from one of my comment threads on whether or not congress should be able to use the taxing power to get over limits on its enumerated powers.
1) Can Congress enact a $50,000 tax on second term abortions?
2) Can Congress enact a $50,000 tax increase, which is then rebated to anyone who does not have an abortion?
3) If not, why not? I don’t want to hear any arguments about the social side: how necessary abortions are, how women would just have terrible back room abortions, how tragic this might be for women forced to carry a child to term. Nor do I want to hear any arguments that this doesn’t involve interstate commerce, as of course abortions are frequently purchased across state lines, while in many places, it is illegal to buy insurance from other states. Presuming that Congress is agreed that abortions are bad, and they want to discourage them, why shouldn’t they be able to use their taxing power to enact a ban that they could not enact more directly?
4) If yes, they can, how long do you think it will take before Republicans enact one?
As an aside, I don’t know why McArdle limited her $50,000 tax concept to second trimester abortions, although I’d certainly welcome a tax on late-term abortions as a start.
Thoughts?
[HT: moderator Chris]
Jill Stanek is a nurse turned speaker, columnist and blogger, a national figure in the effort to protect both preborn and postborn innocent human life.
Very interesting! After all its not about bodily autonomy and making one’s own “choice” when it comes to cigarettes. Not sure how it is in all states but in my state PA you can’t smoke in any restaurant or bar. And the taxes on cigarettes…yikes! I used to socially smoke in my early 20’s (dumb, I know) but who could afford it now with the taxes?
So if government can’t try and discourage certain behaviors by taxing them highly why NOT abortion? I love the idea! Use the liberals own behavior modificaton through taxation to destroy their own golden idol… abortion!
I think this a very dangerous road to go down, no matter how good the cause is that you’re going down it for. If this Congress enacts a de facto ban on [behavior] by taxing it out the wazoo, there will be nothing to stop future Congresses from doing the same thing, but for much worse reasons. The road to Hell, etc., etc. For example, pro-life protest permits in DC could carry heavy taxes, or demonstrations outside of clinics.
I think this sort of thing is a really bad idea.
Alice, so-called sin taxes are commonplace. For instance, as noted, cigarettes are heavily taxed, as is alcohol. The door has already been opened – by liberals.
Your example would quickly get shot down in the courts as a free speech inhibition.
The Supreme Court would strike it down as an “undue burden” on the “right” to an abortion.
This would be an unbelievably stupid and unconstitutional law ,and a blatant violation of women’s rights.
Robert,
“Stupid”? Please defend this claim.
“Unconstitutional”? The “right” to abortion was never in the Constitution. It was invented by legal wrangling.
Even so, our “right” to privacy certainly could be construed to include many things that the goverment either makes illegal (prostitution, drugs, security cameras) or inconvenient (cigarettes, alcohol). I agree with Kelsey that it would probably be struck down by SCOTUS but its actual constitutionality is another story.
Oops. I meant that security cameras are legal yet don’t seem to uphold the “right” to privacy, while prostitution and drugs seem to fall into the same category as abortion with respect to privacy, yet they are illegal. Bottom line: it’s all relative…
This would be an unbelievably stupid and unconstitutional law .
But the butchering of babies in the womb is somehow smart, enlightened, and in accord with the vision of our Founders?
I would think congress would have power…but the GOP is against raising taxes these days.
Plus, the whole name of the game these days is that it takes 60 votes to do anything…no chance it would get 60 votes in the Senate.
Wouldn’t work because it’s a poor-tax and thus, an unfair burden.
Amazing, Robert Berger and I agree, but for entirely different reasons.
I’m still thinking my way through this one but when I first began to contemplate its ramifications there was one aspect about it that didn’t sit well with me. Like my brethren in the Personhood Camp would point out, an exhuberant tax would carry with it an implied sanction to the act of killing a preborn child. In other words, it’s all right if you kill your little boy or girl, it’s just going to cost you.
I then began to wonder why I didn’t feel the same way about parental consent for minors or requiring the mother to view an ultrasound. In these cases, we’re conceding that young moms will find themselves under various societal pressures to kill their children. And while we’re working to get legalized child killing criminalized as it should be, we will utilize these measures to “deliver those who are drawn toward death, and hold back those stumbling to the slaughter.” Pr 24.11 We’re hoping that by consulting with their parents or by being visually confronted with the humanity of their children, moms may change their mind and babies might be saved. Like the PBA ban, by passing fetal pain legislation, the debate helps humanize preborn children, bringing us closer to a popular recognition of preborn personhood.
The other problem I have with this approach is that while it would be a great deterrent and babies would be saved, it would create a river of blood money into our government. We who know that abortion is genocide must see that under RICO, this tactic would make our government complicit in an ongoing criminal enterprise aimed at extorting money from desperate mothers and their serial killing ”doctors”. While it wouldn’t technically be extortion because it would be a legal tax, it still would at some level condone child killing.
We can’t go there.
What I have trouble understanding is how we can have multiple channels of religious programming on 24/7. Bible teachers pontificate on how to prosper, get healed, have a better marriage, improve your life…
Where is the 1/2 hour weekly show that continually hammers the truth about abortion? I tried to watch Fr. Pavone the other day and after 5-10 minutes of talking about some Cardinal’s career and his relationship to a Pope, I gave up.
Where is the cry of intercession for the thousands of babies being slaughtered every day in America? For the 10’s of thousands being slaughtered around the world? Where is the consistent, continual, articulation and passionate hammering of Pro-Life truths?
Where are the men and women of God that will stand in the gap and take a stand for these precious ones? I realize there are many, many of us fighting on the front lines, but where is the man or woman with the national television platform calling our country to repent?
If nothing else, this sort of tax is clearly discriminatory against women, especially if put into place in the fashion suggested in point 2, as men would be immune to this. Considering that women already represent a disproportionate number of people in poverty, this strikes me as bad on multiple levels.
How about we improve contraception access? Better childcare? Combat rape culture? Don’t put more burdens on people who are already in desperate situations.
A tax on the “procedure” itself would be easily shot down, I believe. Nonetheless, an exorbitant fee on the “doctor” would be better, much easier to pass.
Jayn,
This tax isn’t discriminatory against women. It’s not like implementing a blanket tax on every woman. If a woman chooses an abortion (because it’s her choice, after all, not an obligation) then the tax is paid by the person who pays for the abortion–man or woman. It’s not a tax against the poor, either. No one says poor people need to have abortions.
Likewise–are rape laws discriminatory against men because more men than women commit rape?
Yes, childcare is a need for mothers. But that doesn’t mean that we should stop fighting child-killing. Such poor logic… when will we learn?
Abortion is a constitutional right. With that in mind, asking this question is as dumb as asking if Congress could indirectly ban free speech by levying a $50,000 tax on holding a rally or publishing a book.
Gun possession is a constitutional right. So is gun control “dumb” too?
There is a difference between regulating something within reason and making it prohibitively expensive by placing a $50,000 tax on it. That’s to say nothing of the fact that the 2nd Amendment was incorporated only months ago in McDonald v. Chicago.
I agree that the two are not parallel. However, it stands that our government routinely makes constitutional “rights” difficult to exercise–or, in the case of gun control, completely illegal in some places and for some people.
There’s nothing quite so “prohibitive” as, well, outright prohibition.
Furthermore, the “reason” of either case is obviously open for debate..
“However, it stands that our government routinely makes constitutional “rights” difficult to exercise–or, in the case of gun control, completely illegal in some places and for some people.”
If the government is going to burden a constitutional right, it must have at the very least a legitimate governmental interest for doing so. Also, as I said before, the 2nd Amendment was only recently incorporated and previously did not apply to the states.
“There’s nothing quite so “prohibitive” as, well, outright prohibition.”
Alcohol usage is not a fundamental right. That’s why there are still jurisdictions in this country where it is outright banned.
Don’t a lot of our government officials talk about “reducing the number of abortions?” Sounds like somebody has an interest, which could probably be developed pretty rationally. I’d like to hear the pro-“choice” reasoning for wanting to reduce the number of abortions, actually.
Re: prohibition: Sorry for the lack of clarity. I didn’t mean prohibition specifically referring to alcohol in 1919-1933, I meant the general meaning of the word with reference to guns: prohibited in certain places and for certain people.
Restricting abortion in this way would really have to meet a standard of strict scrutiny under current 14th Amendment jurisprudence, meaning that it would not only have to be justified by a rational interest, but a compelling one as well, and it would also have to be narrowly tailored to meet that interest and the least restrictive means possible for doing so. A $50,000 tax on abortion would fail on each of those counts.
Joan, the right to abort your unborn children is found NOWHERE in the US Constitution. Please before you post DUMB statements like that read the Constitution. While not found in the Constitution but in the Declaration of Independence you will find the right to NOT be aborted enshrined in America’s founding principles, you know LIFE, liberty and the pursuit of happiness? Can’t pursue happiness if you aren’t first able to retain your God-given right to be alive.
Here we go again. Not even bothering with another ranting ignoramus who doesn’t know the first thing about constitutional interpretation spouting off about what is and is not found in it (and bringing up the Declaration of Independence, an historical document that has no legal force, to boot).
constitutional interpretation? Is that the term you liberals use to shred the Constitution to fit your own immoral purposes? Its NOT a living document honey. Its black and white, plain and simple. Right there in front of your silly face if you care to read it. Can I “interpret” the Constitution to enshrine my right to beat my husband over the head with a frying pan? No? Why not? Its MY interpretation! This isn’t rocket science Joan though you labor under the impression that it is.
Of course, Sydney. You know much better than all those stupid Supreme Court justices that have spent major portions of their lives studying the Constitution.
Do tell, Joan. Where exactly is abortion named as a right in the Constitution? Section, paragraph?
The case citation for Roe v. Wade is 410 U.S. 113. The case citation for Planned Parenthood v. Casey is 505 U.S. 833. Feel free to look them up and read the majority opinions for yourself.
The SC invented the “right” to abortion based on the right of privacy mentioned in the Constitution, which is bad law to say the least. Since when does one person’s privacy justify the premeditated killing of another person?
The Constitution is really not about enumerating rights – it’s silly to proceed as if something has to be mentioned in the document in order to be allowed.
The Constitution is really about limiting the power of government over the people.
Before, during, and after the writing of the Constitution, abortion was legal, to a point in gestation. It was no secret to the writers nor to the “Founding Fathers.”
The “big tax on abortion” idea would not fly, of course, as several people have noted.
But how about the Death Penalty for driving slow in the fast lane while yakking on a cell phone?
The right to an abortion is found in the minds of mean people.
Hi Jillian,
I’d like to hear the pro-”choice” reasoning for wanting to reduce the number of abortions, actually.
In my opinion, if pregnancy is not desired, then preventing one is better than ending one, from a variety of standpoints – risk, cost, general hassle….
I know there are those who are opposed to pre-conception birth control, but I see it as a no-brainer.
This would never work. First, such a tax would pose an “undue burden” on women seeking abortions. And second, the Supreme Court has already recognized the obvious fact that “the power to tax is the power to destroy.” Read the Court’s opinion in McCulloch v. Maryland. If someone has a right or power under the Constitution, the government cannot tax the exercise of that right to the extent that the right is effectively destroyed.
Most pro-abortion liberals, progressives, statists, whatever you want to call yourself these days (because your old labels become soiled when people learn the truth of what you truly believe), see the US Constitution as a living breathing document – able to bend to the will of those who seek power – namely, themselves.
So, if what is in the Constitution is wanted (useful to your need for more power) then you’ll keep it – otherwise, just like your approach to unwanted children, you have no problem shredding and killing the U.S. Constitution.
Good question Jill, this is one tax liberals would not like!
joan, 10:16PM
So you agree with Supreme Court justices who found segregation and the imprisoning of Japanese-American citizens in concentration camps during WW2 constitutional? You would consider them to be greatly learned men who had studied the Constitution?
BTW joan, did you know that one of the learned men appointed to the bench was former klan lawyer Hugo Black? Franklin Roosevelt appointed him over the objections of Republican senators and with the support of Democrat senators.
Oh surprise, Black wrote the opinion supporting the constitutionality of depriving American citizens of their rights and throwing them in concentration camps.
The right to privacy gives us the right to dismember our children in the womb but doesn’t give us the right to not have to endure naked scans when trying to fly?
Jennifer
December 18th, 2010 at 10:41 pm
The SC invented the “right” to abortion based on the right of privacy mentioned in the Constitution, which is bad law to say the least. Since when does one person’s privacy justify the premeditated killing of another person?
Actually, there is no “right to privacy” mentioned in the Constitution. It is implied by the Ninth Amendment, and on this point I have no disagreement, as I do feel a reasonable expectation of privacy is something we have a right to. However, the SC tied that in to abortion using “emanations” from the “penumbra” of the Fourteenth Amendment. Clearly fixing abortion as a part of the right to privacy requires…a bit of a reach, Constitutionally, to say the least.
Hi Doug,
Before, during, and after the writing of the Constitution slavery was legal and was obviously no secret to the writers and the Founding Fathers as they owned slaves. Does this imply a Constitutional right to slave ownership?
I’d like to hear the pro-”choice” reasoning for wanting to reduce the number of abortions, actually.
Alright, I’ll bite. As I see things, by the time a woman is considering an abortion, the situation on some level sucks. Thus, I would like to prevent her from getting into that situation in the first place, if possible. Basically, I cannot think of any way in which having an abortion is preferable to not getting pregnant in the first place.
This is also why the proposal outlined above bothers me. I want to give women options that suck less, not more.
“So you agree with Supreme Court justices who found segregation and the imprisoning of Japanese-American citizens in concentration camps during WW2 constitutional? You would consider them to be greatly learned men who had studied the Constitution?”
You seem to have a problem acknowledging the legitimacy of the Court and its members because they have issued rulings that you personally disagree with, but what you don’t seem to realize is that nobody has ever agreed with every single decision the Court has made, and that includes the Justices themselves. I think the Citizens United and McDonald decisions, among others, are terrible, poorly-decided cases that will have harmful consequences, but I acknowledge them as the legitimate outcome of a governmental body that is absolutely fundamental to protecting liberty.
“BTW joan, did you know that one of the learned men appointed to the bench was former klan lawyer Hugo Black? Franklin Roosevelt appointed him over the objections of Republican senators and with the support of Democrat senators.”
Did you know that Justice Black also joined with the unanimous majority opinion in Brown v. Board? Did you also know that he wrote the following in a subsequent civil rights case, Alexander v. Holmes County Board of Education? “These cases, along with others, are the foundation of my belief that there is no longer the slightest excuse, reason, or justification for further postponement of the time when every public school system in the United States will be a unitary one, receiving and teaching students without discrimination on the basis of their race or color. In my opinion the phrase “with all deliberate speed” should no longer have any relevancy whatsoever in enforcing the constitutional rights of Negro students. The Fifth Circuit found that the Negro students in these school districts are being denied equal protection of the laws, and in my view they are entitled to have their constitutional rights vindicated now without postponement for any reason.”
“Oh surprise, Black wrote the opinion supporting the constitutionality of depriving American citizens of their rights and throwing them in concentration camps.”
Justice Black had some unusual ideas about judicial interpretation. His stance on the First Amendment, for example, was absolutist and he literally believed that speech could not be regulated, even for a clear and present danger such as yelling “fire” in a crowded theater. His opinion in Korematsu was made out of deference to the absolute ability of the executive branch to conduct war and provide for defense, which has some justification in the Constitution when considering that while Article I (legislative branch) contains explicit prohibitions on what Congress may do, Article II (executive branch) does not similarly restrict the actions of the President and instead simply states that the executive power is invested in the President. It’s not reasoning I agree with but I don’t believe it was racially motivated either.
“Actually, there is no “right to privacy” mentioned in the Constitution. It is implied by the Ninth Amendment, and on this point I have no disagreement, as I do feel a reasonable expectation of privacy is something we have a right to. However, the SC tied that in to abortion using “emanations” from the “penumbra” of the Fourteenth Amendment. Clearly fixing abortion as a part of the right to privacy requires…a bit of a reach, Constitutionally, to say the least.”
The penumbras are from the Bill of Rights, not the Fourteenth Amendment. And I don’t think it requires much of a reach at all. There is an undercurrent of respecting personal privacy throughout the entire Bill of Rights; I find it ridiculous to think that forcing the quartering of soldiers in a private residence, for example, would be unacceptable, yet forcing a woman to carry a fetus to term would not be.
It is a silly idea since the “right” to abortion does not come from the enumerated powers but from the rights provisions of the Bill of Rights. Until that “right” is found not to exist or is de minimus, such taxation would be struck down as an undue burden. If the “right’ is struck down or greatly limited, then heavy taxation would be possible, but then again so would banning or greatly restricting.
Regarding the “personhood” camp arguments that such a tax would sanction killing and bring blood money to the government, the argument does not hold. The federal government already taxes many things that are not legal, such as narcotics. The taxation (or stamp requirement) is the basis for federal enforcement of things that would not otherwise be a federal matter. The taxation is the vehicle for enforcement. So, taxing abortion would not necessarily mean approval of abortion.
Rights theory is just a tool abortionists use to promote their “product.” There is no right associated with killing children, but Jayn, Joan, DD, and all the rest have been thoroughly duped into the rights theory argument. Which proves once again that abortion advocates are sheeple. Abortion advocates have drunk their own kool aid.
A tax would be bad because politicians get addicted to their tax revenues and thus would keep promoting abortion for the tax revenue.
No joan,
I have a problem with people who think the rulings of the Supreme Court are the equivalent of Divine decrees. Its been made obvious time and again that SC justices do not always make the wisest decisions and they are as influenced by their biases as the rest of us mere mortals.
Yes I am aware of Justice Black’s future rulings. But tell me joan, would you advocate a former Klan attorney being nominated to the Supreme Court in this day and age? Perhaps Roosevelt and the Democrats were endowed with the gift of prophecy and could predict how Black would rule. The Republicans unfortunately were not so endowed and could not predict how a klan attorney, who undoubtedly help free more than a few klan terrorists and lynchers, would rule.
joan I will give you this. You are definitely far more charitable than I am. However, I must agree that rounding up US citizens, based solely on their ethnic heritage, confiscating their businesses and property, and imprisoning them in concentration camps, is definitely an “unusual idea about judicial interpretation”. One might also call it an appalling violation of the Constitutional rights of American citizens. His deference to the executive branch was likely more due to the fact FDR appointed him than it was much else. FDR had an inclination to appoint justices he knew would kowtow to him.
You don’t believe it was racially motivated? Of course, why would anyone ever think that round up and imprisoning American citizens on the basis of their race or ethnicity is racially motivated? joan, I’ve got some ocean front property in Montana to sell you.
joan, what is now seen as respecting “personal privacy” had more to do with protecting us from the government breaking down our door any time they want. Our founding fathers were from an era when people could be dragged from their homes and imprisoned, property could be confiscated, etc. What’s “implied” is in the eye of the beholder, as we have seen with some pretty dismal past rulings by the Supreme Courts.
So you agree the “right to abortion” is derived from smoke and shadows?
As Jill notes the libs have no problem taxing everything that moves so why can’t we do the same? The thought occured: if Obama wanted to tax rich people $50,000 on buying a SUV (ostensibly to “save” the environment) the libs/greens would not be able to contain their glee. Of course we know how the same crowd would react to the abortion tax.
The realist in me says: ”nice thought” on the abortion tax but as noted the “right” to abortion is such a sacred cow that even if it were to get through a pro-life congress and signed into law by a pro-life president (a lot of “ifs” here) it would still have to get through the courts and would probably be enjoined immediately. Besides, if pro-lifers were to lobby for such a law would it send the wrong signals about our commitment to the sacredness of life?
Abortion is a medical procedure. (Right, it’s “murdering” “babies” except that, according to the present law, it isn’t). If abortion is taxed, the door is open for taxing of other surgical procedures. The anti-choice movement argues, despite the reality, that abortion is unnecessary. The same argument could be made, with a rational basis, for cosmetic surgery. Given that even the most stalwart Catholic, anti-choice, SCOTUS judges claim that abortion is “stare decisis,” the odds of abortion being re-criminalized are slim to none. But I do find the idea that social conservatives, who abhor taxes, would actually consider an abortion tax.
Hi Jerry,
Good point about the SUV. Let’s not forget Crap and Tax, I mean Cap and Trade.
a hodgepodge of responses:
In my opinion, if pregnancy is not desired, then preventing one is better than ending one, from a variety of standpoints – risk, cost, general hassle… (doug)
I see your logic. I tend to think that pro-abortion politicians say things like “reduce the number” just because anti-abortion voters find it so unpalatable when politicians accept abortion wholesale with their rhetoric, if not their voting…
I find it ridiculous to think that forcing the quartering of soldiers in a private residence, for example, would be unacceptable, yet forcing a woman to carry a fetus to term would not be. (joan)
This is problematic. No one forces a woman to get pregnant. I realize it happens when we don’t try–been there. But pregnancy is not the action of the state.
The anti-choice movement argues, despite the reality, that abortion is unnecessary. The same argument could be made, with a rational basis, for cosmetic surgery. (DD)
Abortion is unnecessary. Even barring truly life threatening cases, the vast majority are elective. I realize the connection to cosmetic surgery, which is logical. But if we’re talking elective medical procedures here, well, I’d take the bad with the good on this one.
DD, I don’t think it will happen nor do I think its a necessarily good idea for the reason Ninek listed but still, its a pretty funny idea to me. Because yes, taxes are a liberal thing and abortion is a liberal thing, so taxing abortion? What a hoot!
“taxes are a liberal thing and abortion is a liberal thing, so taxing abortion? What a hoot”
Taxes on those who can afford them (i.e. the top 1% who control about 30% of the country’s wealth) are a liberal position. So taxes on abortion – the rich (who get lots of abortions and have no qualms about it) can afford it. The poor, on the other hand, can’t. “The rich get rich and the poor get babies. Ain’t we got fun!”
A woman with $5 million in the bank and a dead child is poorer than a woman cradling her baby who lives paycheck to paycheck.
You are poor DD no matter how much material goods and money you have just for the fact you advocate killing of the offspring of those who have little money.
How much money per year should one make before you believe they no longer should kill their child?
“The rich get rich and the poor get babies. Ain’t we got fun!”
Isn’t that always the way? And then our conservative buddies will talk about how the poor could stop being so poor if they’d just work harder, nevermind all the ways that they continually tweak the system to work against poor people.
Hey Mary,
Before, during, and after the writing of the Constitution slavery was legal and was obviously no secret to the writers and the Founding Fathers as they owned slaves. Does this imply a Constitutional right to slave ownership?
Actually, it was not legal, per English Common Law, which was received in the Colonies prior to the U.S. Constitution. Slavery being illegal in England went back quite a few hundred years, and while it was not prosecuted in some US states, and even conducted as if legal, in reality it was not. Later on, the 14th Amendment cleared things up and overruled the Dred Scott court decision as to citizenship (and the rights we accord to citizens).
Oh Jayn, stop believing such nonsense. Read Star Parker’s books in which she details how being on the government welfare teat led to a miserable life with no opportunities and she felt like a slave to the white politician but once she DID start working harder she found endless benefits and finally felt like her own master.
DD, ya know what? My husband and I work very very hard. and yet we’re still poor. Oh well. I don’t hate “the rich” or anyone who has more than me. And I wish wish WISH I could have another baby right now. you act like children are burden and not an incredible blessing. What a fool you are! Makes me sad you’re so blind to the blessing children are.
Jillian,
“In my opinion, if pregnancy is not desired, then preventing one is better than ending one, from a variety of standpoints – risk, cost, general hassle…” (Doug)
I see your logic. I tend to think that pro-abortion politicians say things like “reduce the number” just because anti-abortion voters find it so unpalatable when politicians accept abortion wholesale with their rhetoric, if not their voting…
Seems obvious to me that it’s better to prevent an unwanted pregnancy than to end one via abortion, and I’d say those politicians would agree. But yeah, I agree with you – those politicians will say that, but very often they’re fine with the status quo on the abortion issue, and are focused on other things.
The older I get, the more disgusted with Congress I become, without regard to political affiliation. I don’t really know if the past 10 or 20 years have “objectively” featured worse political performances or if it’s just that the decades are sinking in to me, along with the realization that pretty much across the board almost nobody in Congress will do anything but the normal political BS rather than what the country truly needs. Not talking about the abortion issue here, but there’s certainly “BS” that comes out of Congressional mouths on that topic, along with just about every other topic there is…. : /
Sydney–And if we all just exercise more and eat healthier we can all be thin and healthy!
Yeah, things are rarely that simple.
you act like children are burden and not an incredible blessing.
Did it ever occur to you that they could be both? For some people they are a blessing (obviously, your’e one of them), for others they’re a burden. I suspect for most people, they’re a bit of each. Just remember, what is a blessing to one person may be a curse to another.
Hi Doug,
By whatever law, slavery was legal and practiced in the colonies, the first Africans arrived in 1619 and the first black slave was declared in 1640, and in various states until the mid 1860’s. The 14th Amendment was not passed until 1868, long after the passing of our Founding Fathers and 3 years after the end of the Civil War and the defeat of states in which slavery was legal.
Mary,
Nope – while it (obviously) was not prosecuted everywhere in the Colonies/the U.S. – that alone in no way made it legal. “Whatever law”? Hey, the law was the common law, and per that slavery was illegal. Nothing in the Constitution changed that, and in northern states court decisions affirmed that.
DD says:
“The rich get rich and the poor get babies. Ain’t we got fun!”
Are you saying abortion kills babies?
Doug,
We can engage in all the semantic gymnastics we want but the fact remains slavery existed free of prosecution i.e. legally, in parts of the colonies and the United States for over two centuries and took a brutal civil war to end it.
The fact remains that both abortion and slavery were practiced free of prosecution at the time of the writing of the Constitution but that made neither of them a Constitutional right.
Doug we can settle this argument very easily. Where does the Constitution specifically mention abortion?
As I understand it, the supreme court, when challenged that a tax was regualtry and in fact regulated things outside the jurisdiction of the Federal Goverunemt just asked “did it raise money?”
While not a big problem in the 19th Century this oconcept was much abused in the 20th.
If the SC doe not reverse itself abortion could be taxed. However given are current court we could just end up with getting rid of the lessor evil (using the taxing power to regulate outside of the feds jurisdiction) to keep the greater (abortion).
Just for the record, McArdle’s post is just a thought experiment to show how the individual mandate in Obamacare is poorly disguised as a tax but is really an attempt to get around enumerated powers limitations.
She picked abortion, because abortion is held dear by liberals. What she is really trying to do is get them to think through how they are arguing.
OK, OK
The biggest touted thingy all humans (including Doug, & DD, joan, etc) is freedom. Why do you insist on a definition of freedom (= pro-choice only) that is by definition, limiting? Could THIS not be untrue/faulty? ‘Free’ of excuse, blame, price … just how is this about ‘freedom’?
I am severely physically disabled (so much so, that robbing banks – would mean ‘running’ from the scene – is definitely OUT)! According to you, I must be limited/lacking-in-freedom. Crap!! I am more free than you, because I understand that it is not the ‘power to choose’ that makes a person ‘free’, but rather ‘what/who’ a person chooses, that makes one ‘free’.
I call this extending-my-being, or I BECOME MORE THAN I AM. Although I can’t move much, I can sail (or even fly), into another heart/space. Can you? WHY KILL???
I, as a human, am called to love others and myself. Where does killing another = any kind of love? And I ain’t going to let (coach)Doug off, either. Where does even mentoring a girl to kill her kid, make it as a ‘loving act’?
I am severely physically disabled (so much so, that robbing banks – would mean ‘running’ from the scene – is definitely OUT)! According to you, I must be limited/lacking-in-freedom. Crap!! I am more free than you, because I understand that it is not the ‘power to choose’ that makes a person ‘free’, but rather ‘what/who’ a person chooses, that makes one ‘free’. (Johnny Mac)
John, the question is if the woman will continue to be legally free in her choices or not.
I hear you on your disability, but we all have limitations and capabilities. It is not public policy nor our laws which we are discussing that determine your getaway speed or the fact that I can’t jump high enough to be a pro basketball player. It’s just physical reality.
Whereas the legality of abortion *is* a question, and a matter of public policy.
I also don’t think you actually see anybody here “mentoring a girl to kill her kid.” When it comes to the choice of ending a pregnancy or not, it’s not up to us, it’s up to her.
Is abortion a loving act? With respect to the unborn, no; and assuming we’re talking about the woman or couple’s free choice, then it’s because kids aren’t wanted, at least at that time, and the desire for the unborn, if any, is less than the desire for the pregnancy to end.
The fact remains that both abortion and slavery were practiced free of prosecution at the time of the writing of the Constitution but that made neither of them a Constitutional right. (Mary)
Mary, in some states, yes. No doubt. Slavery, while not legal, was certainly practiced in those places and it was that practice that abolition was aimed at. Abortion was legal to quickening, (and there is also not much evidence that it was prosecuted after that point in gestation). If you are saying that something has to be specifically mentioned in the Constitution to be a right, or a Constitutional right, then you are mistaken, however.
Doug we can settle this argument very easily. Where does the Constitution specifically mention abortion?
That’s not the argument. You and I have done this exact same thing before, Mary, and you’re looking for the Constitution to be something it’s not. It’s not a list of all the legal stuff we can do. It’s about limiting governmental powers over the people.
When it came to abolishing slavery, Lincoln didn’t feel the Emancipation Proclamation was strong enough, and he pushed for a Constitutional Amendment, which was eventually passed, the 13th. The idea was, “Hey, it’s not legal to do what you’re doing to these people/citizens (the slaves), per Constitutional principles, and we’re going to codify it in the document, to strengthen the legal force behind it.” The movement for a Freedom of Choice Amendment is the same deal.
When it came to Roe versus Wade, the idea was the same – “Hey, it’s not legal to do what you’re doing to these people/citizens (women), per Constitutional principles.”
Doug,
I’m not certain where this argument is going. I am saying abortion is not a Constitutional right. The Constitution can imply anything the beholder wants it to, that’s how we got segregation and the imprisonment of Japanese American citizens in concentration camps.
What it in fact says or does not say is another matter altogether and it says absolutely nothing about abortion. You are right it is about limiting gov’t intrusion but one could argue the Founding Fathers were more concerned about keeping the gov’t out of our homes, literally, than it was about privacy per se. I find it interesting that abortion advocates have actually argued the fact the Constitution says nothing about the fetus being human means the fetus is not human. I guess at times it does matter what the Constitution actually says or does not say.
BTW, not all historians view Lincoln’s Emancipation Proclamation as motivated by any desire to end slavery but rather to give some “morality” to a horribly brutal and very unpopular Civil War. It was also hoped that it would motivate freed blacks to join the Union Army.
Mary, hardly anything is specifically mentioned in the Constitution, thus you could say that an infinite number of things are not Constitutional rights, even though some of them have already been held to be Constitutional, with little or no disagreement from the populace.
On slavery, the Supreme Court says, in effect, “The gov’t can’t allow this restriction of freedom.” Same for banning or restricting abortion to a point in gestation.
Doug,
Well I’m glad we agree hardly anything is mentioned in the Constitution. We could also see how this leaves the Constitution open to be interpreted as one sees fit, such in Plesey vs. Ferguson which found segregation constitutional. Certainly the death penalty issue has been batted back and forth as to whether or not it is Constitutional.
What is not mentioned, which includes abortion, marriage, specific punishments, is left to the discretion of the state and the elected representatives of the people. Each state has its own marriage laws, though one could argue marriage is a Constitutional right. In fact it is not mentioned at all. Some states execute, others do not.
I fail to see your connection between slavery and abortion and when did the SC make such a comment concerning slavery? In Dred Scott the SC ruled a black slave could indeed be denied his freedom. State marriage laws could be seen as restricting the freedom to marry, could they not? Would you agree to a SC ruling overturning state marriage laws?
Mary,
I wouldn’t change the marriage laws I know of. I do see a lot of idiots getting married where I think, “Yeah, *that* will last….” : P
But I wouldn’t mess with it.
And yes, Dred Scott, etc., but it ended up with the Supreme Court not allowing states to permit slavery. Same with it ending up not allowing the states to ban or restrict abortion past a point.
Well Doug,
Then it looks like the point is made. Do we know what our Founding Fathers thought of marriage? I’m sure they approved of it and felt people should marry. The Law permitted it. However, they left this matter out of the Constitution and to the states to decide. BTW I agree with you concerning marriage laws and marriage itself.
Again I don’t see your jump from slavery to Roe. The Civil War and the 14th Amendment ended slavery. The SC would go on to sanction segregation as Constitutional. Jill wouldn’t like for me to say on her blog where they seemed to have pulled that ruling out of, but it certainly wasn’t from the Constitution.
Mary, it’s no “jump.”
Eventually, the Supreme Court was against slavery, which, though it had been practiced in some states, was illegal before, during and after the writing of the Constitution.
‘Tis no great leap, nor should it be any surprise, that the SC eventually was against the states banning or restricting abortion past a point, which was *legal* in the 1700’s.
In both cases, it’s acting as a check on government, and acting in support of the rights of people/citizens, where insufficient Constitutional grounds for government being unchecked in the matters are present.
Doug,
The SC didn’t have much choice after the Civil War and the 14th Amendment. Certainly Plesey vs. Ferguson had nothing to do with promoting equality for black people. If anything it sounds like a variation of slavery. Black Americans would be subjected to every kind of indignity, inequality, and injustice, with the full blessing of the SC.
OK, well then why doesn’t the SC end all state marriage laws and decree that they will be as they were in the 1700s? Why don’t we put punishment for crimes back to what they were in the 1700s? Certainly our Founding Fathers supported marriage. Certainly they supported execution, or did they?? Why just abortion?
OK, well then why doesn’t the SC end all state marriage laws and decree that they will be as they were in the 1700s? Why don’t we put punishment for crimes back to what they were in the 1700s? Certainly our Founding Fathers supported marriage. Certainly they supported execution, or did they?? Why just abortion?
Mary, call ’em up and ask ’em. ; )
Haven’t been court cases that resulted in the ending of state marriage laws, etc.
Hi Doug,
“Haven’t been court cases that resulted in the ending of state marriage laws, etc.
Lol, Just wait long enough and who knows :)
Always enjoy talking with you Doug.
No, they can’t.. Just like it would be unconstitutional to require a $50000 license to own a gun or a $50000 license to be allowed to have freedom of speech.. The supreme court would throw out such legislation as would all the lower courts.. It’s an infringement on constitutional rights.