Bitching Brew

Friday, November 04, 2005

Let's create more stupid and offensive laws. Sure why not?

A lengthy post lies ahead: beware!

I've been reading bits and pieces about the Alito nomination (to the US Supreme Court). I tend to read analyses from across the political spectrum, and in doing so this time, I came across an Ann Coulter column on the affair.

Now, firstly, I'm not here to discuss Alito's merits and demerits. One of the hot topics about Alito is his dissenting opinion in a 1992 case, Planned Parenthood v. Casey. He voted to uphold a Pennsylvania law requiring women to notify their husbands before having an abortion. I find such a law - criminalising those women who don't (or can't) - reprehensible. But Alito is, from what I've read, a brilliant and fair jurist. So I'll accept that he reached that conclusion in good faith, on his interpretation of the law - influenced as that was by his philosophy. All judges have a particular judicial and political philosophy (some are more consistent than others), but what we hope for is that the political end doesn't enter into decision-making. Hopefully it didn't in this case.
Alito argued that such a requirement did not impose an "undue burden" on a woman. I couldn't agree less; leaving aside all moral arguments, it's logically flawed. Fortunately, the US Supreme Court shared my opinion. I haven't space to elucidate here, but there's a good analysis in American Prospect of this very issue.

To my mind, laws should not be enacted where not strictly necessary, and should be designed so that the infringements of personal liberty are the bare minimum required. In her column, Ann Coulter comes out in favour of such a notification law - though she's careful to be implicit in lending her support. She cites a Gallup poll, claiming that "72 percent of respondents favored a law requiring the husband of a woman to be notified if she decides to have an abortion". I'll take that statistic on good faith too. But the fact that 72% of a sampling group support a putative law does not justify said law. Laws should be justified. This isn't justification - it's a statistic with little moral (and no legal) weight.

I have grave problems with this proposed 'law' as outlined by Coulter, and with apparent public opinion on the issue. Have people lost the ability to distinguish between disapproving of an act and criminalising it? The view that women should inform their husbands prior to an abortion is a reasonable opinion - despite the fact that I disagree, particularly with its directive force. The view that a woman should be criminalised for not following this moral precept is not reasonable.

If you do hold this view, then answer these questions for me:

(1) There are two grounds for supporting this 'law'. One is that husbands have some kind of authority over their wives, or at the minimum, a right to complete information about them. The other ground is that the father of an embryo has some rights pertaining to it - 'reproductive rights' is what the right seem to call them here. (Bloody ironic, eh?!) On which of these grounds do you support this 'law'?

(2) If the former: do you believe the reverse holds true? If 'yes', you cannot consistently recognise either a legal or a moral right to privacy. Thus you hold a position I fundamentally disagree with, but at least I know where you stand. If 'no', you are asserting, de facto, that women are subordinate to their husbands. Frankly, I find that nauseating. Yet you're entitled to your opinion, offensive and archaic as it is.

(3) If the latter: how far do these 'reproductive rights' extend? If you favour criminalising this, then you must be consistent and support the criminalisation of any other infringements of these 'reproductive rights'. Do you support a law mandating that a woman notify her husband of any pregnancy? Do you support a law mandating that a pregnant woman notify the father of the foetus? Do you support a law requiring that a woman (man) notify her (his) husband (wife) before undergoing sterilisation, or any medical procedure which could potentially result in sterilisation? Finally, do you realise that failure to comply with any of these laws would be a criminal offence?

These shouldn't be questions about abortion per se; these are fundamental questions of liberty and privacy. Yet the proponents of such a law have no other intention than to reduce abortion. They're cloaking their ultimate intentions under the misappropriated banner of 'reproductive rights'. It's a pretty thin cloak though...

I'm not asking for your moral judgment. I'm asking whether you think these should be laws, because, ipso facto, failure to comply would be a crime.

Repsonses and comments are very welcome.

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  • Evening Martin,

    I don't have a comment (there's not enough space for me to write my thoughts on this particular matter and quite frankly I'd probably bore the living buhjaysus out of anyone reading it), I just want to say thank you for providing intelligent text on here. It is comforting to find that there's still people out there who actually have a brain. Ooppss...methinks that was a comment.
    Keep up the good work!


    By Blogger Henry & Willy, at Sun Nov 06, 10:16:00 p.m.  

  • Thanks for that Vanja! :)

    By Blogger Martin, at Tue Nov 08, 02:42:00 p.m.  

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