Equivalence
Equivalence
by
Ken Melvin
These two things are not the same.
Giving a woman the right of choice doesn’t deny others that right of choice; makes no imposition on the rights of others. Denying a woman the right of choice imposes the will of others upon her.
When is it lawful for some members of a society to impose their will upon others? What right has the State to impose its will upon its citizens? When it is the writ of law. A State can declare acts to be illegal, even criminal, by the enactment of laws, so long as such laws aren’t in conflict with the State’s constitution. Since at least the 13th century, advanced States’ constitutions have guaranteed certain individual rights. The US Constitution explicitly guarantees certain individual rights and freedoms in the first (8) of its first (10) Amendments. Other rights are implicitly granted with:
the 9th Amendment
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The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people —
and the 10th Amendment
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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 —
Succeeding ratified Amendments have explicitly, and implicitly, guaranteed other individual rights and freedoms. A citizen doesn’t have a constitutional right to steal from others, so it is constitutional to make stealing from others a crime; a case of society having the right to tell someone what they can not do.
So, it seems that the State might have the right to deny a woman the right of choice if women do not have the constitutional right of choice. It seems highly unlikely that such a right would be found in the Constitution or the Bill of Rights since women were but inhabitants, not even granted full citizenship, or even personhood, at the time, or even later when these first 10 Amendments were ratified. Women didn’t get the right to vote until 1920.
Since 1923, activists have been trying to pass the Equal Rights Amendment — an amendment that does not grant or even address a woman’s right of choice. The 1973 Supreme Court Roe vs Wade decision was premised on the right to privacy clause of the 14th Amendment; that the due process clause of the Amendment extended to a woman’s decision to have an abortion. But that this right must be balanced against the State’s interests in regulating abortions: protecting women’s health and protecting the potentiality of human life. As vestiges of serfdom and monarchies?
The Court acknowledges that the decision belongs to the woman, with the caveat that the State has the right to assert its interests; implying that such interests were to be centered around protecting the woman’s health and protecting the potentiality of human life, while implying that the State’s interests might bear the greater weight.
Though no mention was made of religion in the Roe V. Wade decision, in the United States, most arguments against the woman’s right to choose are premised on religious beliefs — this wont to impose one’s beliefs on others. Denying a woman the right of choice imposes the will of others upon her. Isn’t denying a woman the right of choice on the basis of a religious belief a violation of her first amendment rights.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Indeed it is. But in court, these with naught but disdain for science, choose to argue the science.
Does a licensed druggist, who, based on his or her religious beliefs, is opposed to birth control of any form, have the right of choice as to whether or not to sell contraceptives to the consuming public? By refusing to sell the consuming public contraceptives, isn’t the druggist imposing his or her will on others, denying others their right of choice to use contraceptives, by way of denying access? The druggist may be offended, anguished, by the use of contraceptives, but such sale does not deny him or her their right of choice in regards the use of contraceptives. For certain, this same druggist would certainly resist the imposition of the will of others requiring his or her use of contraceptives. Would this same druggist be offended if someone refused to provide them a service because this someone found the druggist’s closely held beliefs offensive?
Does a licensed Doctor have the right to refuse care to someone whose religious, or other closely held, beliefs they find offensive?
Aren’t both these examples instances of discrimination? Haven’t both the hypothetical druggist and doctor discriminated against others under the guise that they found others’ beliefs offensive? Isn’t the personal offense being taken the result of personal prejudice? Finding something offensive is not the same as being offended; one might be unintentionally offended. It is not, in most cases, illegal to offend someone. It can be illegal to discriminate against someone. Federal law prohibits discrimination on the basis of race, gender, pregnancy, national origin (including affiliation with a Native American tribe), religion, disability, citizenship status, genetic information, and age (if the person is at least 40 years old).
What are some other extensions, unintended consequences, of this claim of right of choice based on the taking of offense?
Some ritual practices of deeply held beliefs have been found to be unconstitutional, illegal. Surely the State’s denial of the right to practice such rituals causes those holding such deeply held beliefs anguish, gives those holding such beliefs reason to take offense. A group holding the deeply felt belief that an omnipotent deity created the earth 6,000 years ago would most likely find the scientific theory of evolution offensive. Would the taking of offense give them the right to demand that evolution not be taught in public schools? Would it not be discriminatory to deprive students of those schools access to the best scientific thinking? Does a deeply held religious belief give the holder the right to deny others the right to consider or hold a very different belief?
A slippery slope, this religious one. It is one thing to guarantee freedom of worship, freedom to worship as one sees fit; quite another to restrict the right of others lest they offend any religious sensitivities. Doesn’t the first amendment give us the right to not have religious beliefs imposed on us?
The right of a common defense is written in. Illegal taking, and all these supported by Due Process and later amendments.. I would stick with the right to protect ones self.
The problem occurs when we make fetus aquariums which are coming soon. If we have fetus aquariums then women and men have to allow the state to take the fetus alive.
Democrats and anyone favoring the woman’s right to make her own decisions have done a terrible job of distinguishing the constitutional issue from moral beliefs. Roe v Wade is totally consistent with moral disapproval of abortion. It should be framed as whether or not the power of the state, the government, should be used to enforce the beliefs of some people against people who do not share those beliefs. “Choice” is terrible terminology, because it makes what many people, including many who support abortion rights, consider to be a matter of sacred concern, think the advocate is implying the decision is no more important than what choice of clothing to wear today. It should always be framed as who has the right to make the decision for the woman, including the woman who believes abortion is morally wrong.
SW:
It sounds like an “On Liberty” argument to me. Will this be your forever moniker?
I’m beginning to think that Matty Yglesias is right, the US is doomed. That arguments over the fine points of a 250 year old constitution or 2000 year myth collections are the consuming passion, rather than new legislation is a sign of deep disfunction. Time to start again I’m afraid. Scholasticism isn’t science.
reason:
I am going to give you a C+ for content with one criticism. I believe you have spell check also when you comment? Please check your spelling so as to add credibility to what you write. 🙂
Actually on my phone it doesn’t work for some reason and that is where typos are more of a problem. Did you correct it? I don’t see any issues.
reason:
Yea, I took liberties. It is unusual for your wording to be poor.
Thanks, Reason for the new to me word. I thought of it more in terms of abortions being nearly as old as mankind; that much of the opposition was a fairly late development. Know that the Spanish Missionaries condoned rape but not abortion; bit subjective, all of it. This thing of authoritarian types wanting to impose their beliefs on others, bees my bonnet.
The real issue in this case is when rights are granted and which ones. For instance should a mother neglecting a baby while suffering from postnatal depression, resulting in death receive the same punishment as a deliberate murder of an adult by a stranger, or of dangerous driving resulting in death. If somebody kills a woman who is 2 months pregnant is that a double murder? These are complex issues better handled by well drafted legislation than by static constitutions or random judicial decisions. The reasons this is so passionately discussed in the US is that your political system is broken. It doesn’t work.
Reason,
Hmmm? Black or white? Or Gray?
Granted? — Isn’t it that they were to be protected from tyranny by a majority? Isn’t the First, in part, meant to protect us from having any religious belief imposed on us?
In re the 9th Amendment
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people —
Are some rights inherent?
Have you any doubt that, if the founders had included women, women would have had full citizenship, that there would have been protection for a woman’s right to choose?
You are born naked and powerless. All rights are granted. Granting rights is a good thong, but it is an exercise of power ( what it actually does is constrain the wctions of others). That is just the way it is.