The obvious question of course, is how you decide that the democratic process has "malfunctioned"; It can't be as simple as the legislature not doing what a judge would do in their place, or else you might as well admit you're advocating rule by judges, and leave it at that.
I think you could make a strong case for process-type arguments to keep abortion legal for those under 18. but it's harder to use that argument for policies that effect women of voting age.
i gotta run - but i'll elaborate on this later.
That's curious; What other laws of general application would you waive for minors? Traffic laws? They don't get to vote for the people enacting those, either...
If laws against abortion are justifiable, (And I think they are in at least some cases.) it's pretty hard to explain why people who are legally regarded as incompetent to manage their own affairs would be specially exempted from them, while people who are legally considered capable of making their own decisions would thus be especially liable to having their decisions over-ridden.
I think the obvious comparison with this point of view where an appointed body gets to override democracy is Iran. The ruling mullahs allow the people to vote, but just overturn anything they don't like. Democracy may be ugly, and fundamental rights do need to have bright lines drawn to protect the individual, but those bright lines need to be drawn from a clear and compelling source. The Constitution generally provides this, but the right to abortion based on privacy is not clear and compelling.
After this Supreme Court refused to address political Gerrymandering, I think this particular justification has already been rejected.
Isn't Gerrymandering protected by the same stare decisis that may protect Roe? It seems to me that the Court has decided that the Federal legislature has dominion over those issues.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
--A window for abortion rights.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
--One such power is the right to decide whether to carry a child to term. Can a State decide that?
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
--If carrying a child to term involuntarily can be equated with involuntary servitude: case closed; no need for finding "democracy malfunctions." (Shades of Janet Jackson!)
I think it can. I suppose others don't. I recoil at late-term abortions myself, and I suppose this puts me back in balancing a mother's rights with the nascent baby's. But I'm surprised legal scholars have such difficulty identifying *any* right to choice here, maybe I'm misunderstanding something. I'll study publius' post more carefully.
I'm surprised the 13thAamendment argument does not get more play. When the state says that a woman cannot have an abortion, they are forcing her to be pregnant and deliver the baby - what we call labor, for good reason.
So it's literally forced labor. Involuntary servitude to the state's interest of preserving the life of its potential future taxpayer or whatever.
It's nice and textual, and there are no federalism problems either. That doesn't make it an absolute right, of course, but I think at least it prohibits state interference before viability (apart from the state's interest in protecting the health of the mother by regulating abortion procedures).
Nah, actually that's pretty pathetic; It's not like a woman, once pregnant, has to do something to stay that way. And it's never been considered a form of slavery to prohibit you from doing something.
I think Steve Brady's got a point. One moral philosopher I read gave this example. Imagine there is a concert violinist who will die of some rare disease if he isn't hooked up to you and your cardiovascular and gastrointestinal system for nine months, at which time you will have to go through an excrutiatingly painful and possibly life-threatening process to remove him from dependence. Where the moral philosopher fails is that she neglects to mention that you will then have to pay for his upkeep for the next 20 years or so.
Interesting point about the thirteenth amendment--I'd never thought of it, but I see where you're going.
The upkeep is irrelevant - there is adoption. The argument loses on textualism also - "involuntary." Pregnancy, absent rape, is involuntary like being force to perform on a conditional contract. Of course you disagree, but based on moral reasons not legal ones. This argument takes you right back to the beginning.
Furthermore, the state often imposes duties upon its citizens - that doesn't mean it is slavery. A strict textualist will look at the context the law was made in and what it addressed.
We all have a duty to not kill each other, to pay our taxes. We are forced to do things. This could be expanded. In short the 13th Amendment is a fantastic intellectual exercise - but a terrible legal argument.
PS - and I'm as Fawell would say, "Pro-abortion."
It's not like a woman, once pregnant, has to do something to stay that way.
Are you kidding? A pregnant woman faces pain, suffering, risks to her health, future fertility, life, and ag the end, either an excrutiatingly painful and prolonged ordeal (or taking drugs to alleviate it), or surgery. Not to mention changes she must make in her life, lifestyle, diet, etc. She is also generally expected to raise the child.
Many women of course feel that this is all worth it. How is the state legislature in a better position to weigh the costs and benefits?
Hypo: a state writes a statute requiring all women to bear at least two children. What in the Constitution would you point to in order to strike that down? (I understand there is a difference between not beginning a pregnancy and terminating one).
We all have a duty to not kill each other, to pay our taxes. We are forced to do things.
Although I'm sure there may be a rare example of someone's life or health being threatened by their obligation to pay taxes, it is clearly not the norm. Every pregnancy, however, bears significant risk.
Look - you ignored the rest of the argument and picked on the noted to be not fully fleshed out. The 13th is worthless.
Every human owes their life to that risk: further, an abortion carries a high risk for the child too. Hell, a baby that is 11 lbs and 2 weeks past due is riskier than anything. Abort it!!
My point isn't to be an ass - the arguments you make to the other side are important tho. You toss garbage up like this for them - They'll hit it out of the park everytime... can you imagine the headlines...
you ignored the rest of the argument
Frankly, I didn't understand your "pregnancy as contract" analogy.
The state didn't force the sex. That is why I removed the rape. There was a voluntary risk (the condition), pregnancy. The woman assumed the risk, and upon the full-fillment of the condition, "life" of some sort in her uterus, she is bound by the laws of the land. It isn't forced - it is a foreseeable consequence of behavior. Now if the Government when out and impregnated you - that could get you into slavery. If the government allowed women to be "forced" (rape - is the only way?) then it would be involuntary. But foreseeable consequences for voluntary behavior? Slavery? No way! Now you may fight the conclusion - "it should be considered slavery." But once you start stating "why," we are right back to where we started.
That is why its like a conditional contract - you are bound by your behavior once you free enter into the contract, should the event occur.
Now - I don't believe for a moment that analogy holds across the board in a moral sense. I'm just talking about regulation.
This is not slavery.
And at the most basic level - isn't obvious that this argument is too clever by half? No textualist, or originalist will buy this interpretation. This is just not what people had in mind when the 13th was past.
For instance - suppose it were totally clear nothing else in the Constitution supported the idea that regulating abortion was beyond the scope of the government. Is it sensible to argue that the people that added the 13th Amendment "accidently" took away the governments power to regulate abortion? No.
Fun exercise - just no basis for it actually working. Plus just making the argument would create a backlash that would last for years. Pregnant Republicans marching with "Liberals call me a slave." "Murder will set me free."
All that the slavery thing does it try to bring in terrible, terrible imagery. Those that appose abortion get to cry "Murder!" We look foolish yelling "Slavery!"
(This ignores the fact that the argument trivalizes what the 13th Amendment really stood for. "I'm just as oppressed." Like I said - No way we come out looking good (or winning.))
I never said slavery. The 13th says
"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."
Calling unintended pregnancy voluntary of course goes straight back to the real purpose of anti-abortion laws, which is not to protect fetal life but to regulate sexual behavior. No state, not even Texas (the state in Roe), completely banned abortion. All had at least a life of the mother exception.
And while voluntary sex = voluntary pregnancy might be a reasonable position, it is not the only position. What of a woman who is told by her doctor that she would not be able survive a pregnancy. So she takes every available precaution - pill, condom, IUD, diaphram, tubes tied, spermicide, etc., and still becomes pregnant. She has voluntary subserviated herself to the state's interests?
I also never said an originalist would buy this. You can be a textualist without being an originalist.
No on is buying this. The point is what the 13th stands for - it has a real history. No judge is going to come in and just read the words and see if some argument is close enough to making sense. It is too clever by half.
So you're hanging your hat on "involuntary servitude?" I guess at this point I'm just upset - I just don't think someone can honestly say this idea has any chance of winning in a court. Its just clever word play. Good luck with it.
n & Steve-
just a little note to add that there was a case recently in which a national guardsman sued the military to avoid being re-activated after his "contract" ended. The basis of his suit was the 13th amendment, involuntary servitude. The case was settled on the eve of the trial, in his favor, so the challenge didn't go before the court in a trial. I think that the military didn't want to take the risk of setting this particular precedent.
Clearly the amendment was not originally written with this in mind, but would that stop it from being interpreted in this manner?
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