29
Sep
10

Questions & Abortion

During this election cycle, it is a more prominent position for candidates to advocate the outright ban, without exception, of abortions. Exceptions which are currently legal include the cases of incest or rape.

This is not the limit of reproductive control. Abortion is defined as occurring after implantation of a zygote on the placenta. Some activists and politicians also advocate banning the destruction of a zygote prior to implantation.

I have several questions regarding either of these total bans of abortions.

Abortions occur with the participation or involvement of one or more people. Examples of individual participation would be: a pregnant woman who intentionally or neglectfully does something which results in abortion; a doctor who intentionally or neglectfully does something, without knowledge of the pregnant woman, which results in abortion. Examples of multiple participation would be: a standard abortion, with a consenting pregnant woman, an attending doctor, and nurses, assistants, and staff.

In the case of a violation of law, who is the responsible party?
For a standard abortion, would the doctor (who overtly performs the proscribed act)
be the responsible party, with others as accessories?

The proponents of Colorado’s proposed ‘Amendment 62‘ to their Constitution write,

“It won’t threaten the death penalty on doctors who do legitimate invasive surgery that could unintentionally harm a child in the womb.”

The proposed amendment does not specify such a limitation – the proponents refer to how existing law is implemented.

To what penalties, ostensibly less than death, might such doctors be subject in Colorado
– or in other jurisdictions which might have either of these total bans of abortions?

The proponents of Amendment 62 also write,

It won’t open the door to criminal investigations of women who miscarry. …miscarriages are completely unintentional…
It won’t ban surgeries for women who have tubal pregnancies, also known as ectopic pregnancies. The crucial issue in criminal law is always intent.

Establishing or eliminating intent or negligence requires investigation by government prosecutors. They do not have the discretion, under comparable current statutes, to dismiss investigations without even a perfunctory investigation. Miscarriages, for example, have resulted from stress, alcohol consumption, and abuse as well as from unintended causes.

Do proponents of either of these total bans of abortions want state or federal governments
to investigate episodes which are currently regarded as medical conditions?
Do proponents of either of these total bans of abortions want state or federal governments
to investigate such episodes beyond the current practice of investigating the situation
as it regards the pregnant woman’s welfare?

Many criminal statutes are written to both outlaw a specific act, and also ancillary acts. These ancillary acts include conspiracy, aiding & abetting, etc. Some prosecutions for conspiracy are successful despite an inability to prosecute for direct violation of statute. Assuming statutes written in conformance with such common practice:

Would even non-medical staff of a doctor who performed an abortion be subject to prosecution?
Would people be prosecuted for planning an abortion – perhaps to be conducted outside of legal jurisdiction
– regardless of whether or not an abortion occurred?

For pregnancies that are the result of rape or incest, the pregnant woman would, with the total ban of abortions, necessarily carry for nine months and give birth to the child of a blood relative or of an attacker.

The Colorado state Constitution states:

[Section 3.] All persons have certain natural, essential and inalienable rights, … the right of enjoying … their lives … and of seeking and obtaining their safety and happiness.
[Section 25.] No person shall be deprived of life, liberty or property, without due process of law.

A pregnancy due to rape or incest would be a arduous experience. It would often be psychologically (and even physically) damaging to the pregnant woman.

What consideration do the proponents of abortion bans give
to the effects of such pregnancies upon a woman?
Does a ban’s “due process of law” obliterate the damage done to a woman’s rights under Section 3?

That potential for harm that a pregnant woman faces also exists for a child who is the result of a criminal act. It can be shattering to learn, for instance, that Grandfather is also Father.

Who decides for the yet-unborn child?
Does government decide that a pregnant woman must always either abort or not abort?
Or should the pregnant woman decide – sometimes to abort, sometimes to carry for adoption,
or sometimes to actually carry, birth, and parent the child?

Abortion bans often are proposed in the form of defining personhood for a zygote or embryo. That is, they would make abortion legally indistinguishable from the killing of any other person.

What would the legal penalties be for violations of an abortion ban?
Is there any way, consistent with the Equal Protection clause of the U.S. Constitution, for penalties
(compared to post-birth killings) to be reduced or for death penalties to be proscribed?

The proponents of abortion bans have never specified how they believe that total bans could be implemented. I do not know whether they have not considered the need to write implementing legislation (as is required for all other legislative or constitutional initiatives) or they choose to avoid the subject.

What might be some unintended consequences of this amendment?

Are people who support efforts to totally ban abortions buying the proverbial pig in a poke?
Do they have the slightest notion of the significant ramifications of such laws?
Do they want such laws to apply to themselves, their family, their doctors, and others?

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3 Responses to “Questions & Abortion”


  1. October 1, 2010 at 8:20 pm

    Indeed Jim 1, if anti-choicers weren’t so quick to dismiss off-message information, they probably wouldn’t be anti-choicers.

    We don’t stop asking these questions, because some anti-choicers have been merely roped in by the “pro-life” nonsense of the movement heads (who are usually beyond redemption), and they still have working brains underneath the fresh coat of brainwash.

    Also, for both of you, I swore to myself to stick to more local issues and lay off rehashing blogposts I like, BUT STILL you both might enjoy this Pandagon article.

    http://pandagon.net/index.php/site/why_the_term_anti_choice_is_so_perfect/

    Amanda Marcotte, BTW, is going to be at Springfield’s Skepticon November 21st. Can’t wait can’t wait can’t wait.

  2. 2 Jim
    September 30, 2010 at 12:12 pm

    A commenter on my cross-post at DailyKOS noted that child welfare services can act separately from prosecutors. Consider yet another thought and but one question which arises:

    Suppose that a pregnant woman were traveling thru the COLO of Amendment 62 with the intent of continuing to another state to have an abortion. Amendment 62 consequently defines a fetus as an underage child.

    Would application of the Interstate Commerce clause of the U.S. Constitution be likely to circumvent COLO child welfare services attempts to block such a person from exiting the state?

  3. September 30, 2010 at 11:54 am

    Jim Too,

    Any right-winger who might choose to reflect on these would surely be disturbed, but I predict that most will choose to dismiss without absorbing.

    It is ironic that conservatives take positions on abortion that by implication enormously expand government power and intrusion into private lives. The ultimate extension of their position equates to the Religious Police of Iran and Saudi Arabia, IMHO.

    Excellent post with profound thoughts and questions.

    Jim 1


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