People v. State

Roderick Long links to a great cartoon asking: “What if war were treated the way abortion is now, and vice versa?”

Gene Callahan, who in the words of a critic is “apparently a former libertarian turned communitarian,” in a comment on Roderick’s post answers the cartoon’s question thusly: “Then some murder would be easier, and some murder harder.”

Roderick replies to Gene: “Killing a mindless collection of cells isn’t murder. And killing a person in self-defense isn’t murder.”

I replied to Roderick:

A one-day old baby is pretty mindless too, and it is not viable independently of external care and support, but killing it would be immoral. “Self-defense” against a child in the womb would apply only in cases of rape, where the mother isn’t responsible for the presence of the child within her body. A woman who engages in consensual sex and becomes pregnant is responsible for the presence of the child within her body, even if she uses birth control and the birth control fails. But since it would be unjust to prohibit abortion in cases of rape, and since rape is often very difficult to prove, and we don’t want to create a powerful motivation for false allegations of rape or force women who have been raped to make that allegation to “authorities,” for pragmatic reasons this necessary exception should be allowed to swallow and preempt any rule prohibiting abortion during the first trimester. And this rationale for not criminalizing abortion but limiting it to the first trimester (a woman who has been raped can be presumed to know that she was raped and to discover her pregnancy and to make a decision about whether to have an abortion within 12 weeks after the rape) rests on far more principled grounds than the currently extant “viability” rationale, which is a completely arbitrary line.

I outlined the above position at more length in an old post on this blog titled “Does the killer of Tiller the killer deserve to be killed?”.

Yesterday a federal district court issued a ruling granting in part and denying in part Planned Parenthood of Indiana’s motion for a preliminary injunction enjoining certain provisions of a new law enacted by the Indiana legislature:

U.S. District Judge Tanya Walton Pratt’s ruling Friday blocked parts of a tough new abortion law and granted Planned Parenthood of Indiana’s request for an injunction on the state’s move to defund the organization. The decision sides with federal officials who said states cannot restrict Medicaid recipients’ freedom to choose their health care provider or disqualify Medicaid providers merely because they also offer abortions.

. . .

Pratt’s ruling also addressed other provisions in Indiana’s law that require doctors to tell women seeking abortions that a fetus can feel pain at or before 20 weeks gestation and that “human physical life” begins at conception.

The judge found that because Planned Parenthood only provides first-trimester abortions, requiring its doctors to address fetal pain at or before 20 weeks gestation may be “false, misleading and irrelevant.” She issued a preliminary injunction on that part of the law as applied to Planned Parenthood only.

However, Pratt denied Planned Parenthood’s request to block the measure requiring doctors to tell women seeking abortions that “human physical life begins when a human ovum is fertilized by a human sperm.”

“The inclusion of the biology-based word ‘physical’ is significant, narrowing this statement to biological characteristics,” she wrote in her ruling. “When the statement is read as a whole, it does not require a physician to address whether the embryo or fetus is a ‘human life’ in the metaphysical sense.”

As much as I despise Planned Parenthood as an archly-hypocritical enemy of choice, I think that Judge Pratt in her ruling pretty much gets it right. If anything, I think that the provision of the new law requiring abortion providers to tell women seeking abortions that “human physical life begins when a human ovum is fertilized by a human sperm” is pretty sketchy from the standpoint of the First Amendment (even though I believe it is a scientific fact that life begins at conception), and that Judge Pratt might be justified in ultimately enjoining this provision too.

On the “defunding” issue, I concur with Wendy McElroy:

The consistent anti-abortionist must grant the same right of conscience in tax matters to others as he claims for himself. Otherwise, he is not arguing for conscience but for a special interest: his own. Indeed, the abortion objector is not arguing for rights at all. By their very nature, rights are universal; they apply to all people or to none. Unless the right of conscience in taxation is applied universally, the anti-abortionist is demanding a privilege. For most anti-abortionists, it is not even a privilege they are willing to extend to their anti-war counterparts who reject “the military tax.”

A universal right of conscience would revolutionize taxation by making payments virtually voluntary. It would immediately and radically limit the spending and size of government at all levels. Government would be forced to offer only the services that the public values. Now, that would be a glorious thing to see.

As far as I’m concerned, the “pro-life” Republicans in the Indiana legislature who passed this law and their “pro-life” cheerleaders are getting just what they deserve, for cravenly or cynically removing from the law the one provision in the original bill (after it had been passed by both houses of the legislature) that might have actually saved the lives of both mothers and babies: the provision that would have required abortion providers to inform women considering abortion about the scientific evidence linking induced abortion with increased breast cancer risk.

Just look at why the “fetal pain” provision got preliminarily enjoined:

The Commissioner presents evidence in the form of articles, affidavits, declarations, and reports relating to the present research and growing science of fetal pain perception. The Commissioner principally argues that in order to be “objective scientific information” as defined by the statute and therefore truthful and non-misleading, the statement need not be the ‘majority’ view within the scientific community. Instead, it need only be reasonably derived or supported by research in compliance with scientific methods. Gonzales v. Carhart, 550 U.S. 124, 129 (2007) (“Medical uncertainty does not foreclose the exercise of legislative power in the abortion context any more than it does in other contexts.”).

Although this argument has merit, the Court has been given no evidence to support the finding that within the scientific community even a minority view exists that contends pain perception is possible during the first trimester of pregnancy – the time during which PPIN exclusively performs its abortion services. The Commissioner’s evidence posits only preliminary evidence that may support the inference that pain is felt by a fetus at as early as sixteen (16) weeks postfertilization.

By contrast, the scientific evidence linking induced abortion with increased breast cancer risk would have easily survived such scrutiny.

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