Jewel

Ron -- spot on as always! That is exactly what I've wanted to tell people for years, but I'm not nearly so eloquent.

Ron Garrett

Thanks Dan. Ditto.

Ron

Ron Garrett

Sure you are. You're just a lot more patient with these fetal facists than I am.

StrictSeperationist

Sorry to focus on one minor point here, but I don't know of any Supreme Court case related to abortion in which a "Lochner" was a party. Perhaps you could provide a citation for or link to the case you mentioned? Thanks.

Stephen Maturin

I think SLD was referring to Lochner v. New York, 198 U.S. 45 (1905). Though not an abortion case, it's the forerunner of the modern-day substantive due process jurisprudence on which Roe et al. are based.

StrictSeparationist

I suspected he was referring to that well-known Lochner both because of the context of substantive due process and because it's probably the only significant Supreme Court case where one party's name was "Lochner" (or at least Oyez doesn't turn up any others ). Though Lochner and Roe are much closer jurisprudential cousins than some would like to admit, calling the former a "decisio[n] on abortion" is a bit of a stretch.

SLD

You are correct, of course. It isn't an abortion decision, but it is one of the most important decisions by SCOTUS. Who'd of thought that about a little bakery regulation?

SLD

StrictSeparationist

On the contrary. Lochner was only one in a long line of "liberty of contract" cases decided by the Court around the turn of the century. The reason it receives so much attention is twofold, I think: first, it does showcase very well the fallacious "natural law" argument that was used again and again to impose the economic views of plutocratic, behind-the-times Supreme Court justices on the nation at large, but second, and this is the real reason that the case has been studied by law students for decades- the influential and eloquent Holmes dissent, perhaps his best ever, in which he exposes for all to see the underlying flaws in the majority's reasoning. So while Lochner receives quite a bit of attention in a traditional substantive due process or economic due process historical analysis, it's really no more significant than many other cases decided at or around that time. I'll see if I can come up with a few good examples and post them later.

hezekiah jones

Originally posted by StrictSeparationist
So while Lochner receives quite a bit of attention in a traditional substantive due process or economic due process historical analysis, it's really no more significant than many other cases decided at or around that time.

Lochner is pivotal, a watershed case in the truest sense. There are some seriously heavy duty constitutional issues at play in Lochner. The verb "Lochnerize" even appears in Black's Law Dictionary.

Originally posted by StrictSeparationist
I'll see if I can come up with a few good examples and post them later.

Please do. Come, let us argue in a gratuitous manner.

DMB

Ron: I personally agree wholeheartedly with what you posted. I do think, however, that there is another issue here. Some opponents of abortion genuinely believe that abortion is murder, and society does normally prohibit murder.

I don't buy that particular argument because I don't think that a foetus should normally be considered a person or a member of the community, and that's who homicide laws aim to protect. OTOH, I find it a bit uncomfortable to consider the status of a foetus one day short of delivery. It is undoubtedly viable and once born on the following day will be accepted as a person and entitled to the full protection of the law.

The legal argument is much easier than the moral one. Laws always have an arbitrary element and so you can simply decide that abortions will be legal up to a particular time limit or in particular circumstances. Morally, however, arbitrary lines have no place.

I think if one looks at the benefit to the community, we ought to lean towards the interests of the mother rather than the unborn foetus. The mother is already a developed and useful member of the community and can in any case presumably get pregnant again at some later date. The child when born represents a potential rather than an actual benefit to the community and will in fact be something of a liability for a number of years.

Perhaps because I am a woman, I find particularly repugnant the argument that a woman with an unwanted pregnancy has a duty to bring it to full term and have the baby adopted. This is treating the woman as an incubator, not a person.