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					Planet Debate 2009 – Medicaid Abortion Funding Affirmative
FYI .......................................................................................................................................................................... 6
1AC 1/ ..................................................................................................................................................................... 9
1AC 2/ ................................................................................................................................................................... 10
1AC 3/ ................................................................................................................................................................... 11
1AC 4/ ................................................................................................................................................................... 12
1AC 5/ ................................................................................................................................................................... 14
1AC 6/ ................................................................................................................................................................... 15
1AC 7/ ................................................................................................................................................................... 16
1AC 8/ ................................................................................................................................................................... 17
1AC 9/ ................................................................................................................................................................... 18
1AC 10/ ................................................................................................................................................................. 19
1AC 11/ ................................................................................................................................................................. 20
1AC 12/ ................................................................................................................................................................. 21
Hyde Amendment Inherency ................................................................................................................................ 22
Hyde Amendment Inherency ................................................................................................................................ 24
Courts Say No Public Abortion Funding Required ............................................................................................... 25
Courts Say No Public Abortion Funding is Required ........................................................................................... 26
States Restrict Abortion Funding .......................................................................................................................... 27
Equal Protection Inherency/Congress Solvency ................................................................................................... 28
Equal Protection Inherency/Solvency ................................................................................................................... 29
General Public Funding Solvency ......................................................................................................................... 30
Public Funding Key to Abortion Rights ................................................................................................................ 31
Federal Abortion Funding Critical to Women’s Rights ........................................................................................ 32
Women’s Health Advantage ................................................................................................................................. 34
Women’s Health Advantage ................................................................................................................................. 35
Women’s Health Advantage ................................................................................................................................. 36
Women’s Health Advantage ................................................................................................................................. 37
Women’s Health Advantage ................................................................................................................................. 38
Women’s Health Advantage ................................................................................................................................. 39
Privacy Advantage ................................................................................................................................................ 40
Establishment Clause Advantage .......................................................................................................................... 41
Establishment Clause Advantage .......................................................................................................................... 43
Establishment Clause Advantage .......................................................................................................................... 44
Establishment Clause Advantage .......................................................................................................................... 45
Establishment Clause Advantage .......................................................................................................................... 46
Racism Advantage ................................................................................................................................................ 48
Racism Advantage ................................................................................................................................................ 50
Poverty Advantage ................................................................................................................................................ 51
Poverty Advantage ................................................................................................................................................ 52
Poverty Advantage ................................................................................................................................................ 53
Human Rights Advantage ..................................................................................................................................... 54
Human Rights Advantage ..................................................................................................................................... 55
Human Rights Advantage ..................................................................................................................................... 56
Human Rights Advantage ..................................................................................................................................... 57
Public Funding Protects Women’s Rights ............................................................................................................ 58
Answers to: “Public Health Exemptions for Publicly Funded Abortion Now” .................................................... 59
Answers to: “Tax Payers Shouldn’t Have to Pay For Services They Disagree With” .......................................... 60
Banning Abortion Will Not Reduce Sex ............................................................................................................... 62
Answers to: “Abortion Encourages Promiscuity” ................................................................................................. 63
No Public Funding Means Back Alley Abortions ................................................................................................. 65
Courts/Equal Protection Solvency ........................................................................................................................ 66
Courts/Equal Protection Solvency ........................................................................................................................ 67
Courts/Equal Protection Solvency ........................................................................................................................ 73
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Planet Debate 2009 – Medicaid Abortion Funding Affirmative
Establishment Clause Solvency ............................................................................................................................ 74
Spending Answers................................................................................................................................................. 75
Spending Answers................................................................................................................................................. 76
Spending Answers................................................................................................................................................. 77
Statism Kritik Answers ......................................................................................................................................... 78
AT: STDs Turn ..................................................................................................................................................... 79
AT: Women Can Get Money for “Medically Necessary Abortions”.................................................................... 80
AT: Rights Are Negative, Not Positive ................................................................................................................. 81
AT: Rights Are Negative, Not Positive ................................................................................................................. 82
AT: Rights Are Negative, Not Positive ................................................................................................................. 83
AT: Rights Are Negative, Not Positive ................................................................................................................. 84
Congress Counterplan Answers ............................................................................................................................ 85
Sex Education Counterplan Answers .................................................................................................................... 86
Abortion Rights Critical for Women ..................................................................................................................... 87
AT: Women Consented to Sex .............................................................................................................................. 88
AT: Women Consented to Sex .............................................................................................................................. 89
AT: Women Consented to Sex .............................................................................................................................. 90
Abortion Rights Critical to Liberty ....................................................................................................................... 91
Abortion Rights Critical to Self-Defense .............................................................................................................. 92
AT: “It’s Equivaleent to Provoking an Attack, No Right to Self-Defense”.......................................................... 93
AT: Negligence on the Part of the Woman Means No Right to Self-Defense ...................................................... 93
AT: Abortion Rights Mean the Government Would Have to Protect Women from Private Actors ..................... 95
Equal Protection Shouldn’t Be Used to Protect Abortion Rights ......................................................................... 96
Bodily Integrity is a Fundamental Right ............................................................................................................... 97
AT: Fetus is a Person ............................................................................................................................................ 98
AT: “Pregnant Women Have a “Duty to Care” for the Fetus” ............................................................................. 99
AT: “The Fetus is an Innocent Bystander” ......................................................................................................... 100
AT: “The Use of Deadly Force Triggers State Scrutiny” ................................................................................... 101
AT: “A Woman who Engages in intercourse is Obligated to Continue that Benefit to the Fetus” ..................... 102
AT: “Relying on the Consent Doctrine Assumes the Fetus is a Person, Threatening Abortion Rights” ............ 103
AT: “Consent to Pregnancy Theory Results in the Coercion of Women” .......................................................... 104
AT: “Consent to Pregnancy Eliminates Father’s Responsibility”....................................................................... 105
AT: “Consent Doctrine Puts the Mother and Fetus in Conflict” ......................................................................... 106
AT: “Pregnancy Isn’t Unique, Equal Protection Doesn’t’ Apply” ..................................................................... 107
AT: “Prosecutorial Discretion Means the State Doesn’t HAVE to Act to Prevent Harm” ................................. 108
AT: “The State Has an Interest in Promoting Childbirth & Fetal Well-Being” .................................................. 109
AT: “The State Doesn’t Have an Obligation to Stop the Fetus From Harming A Woman” .............................. 110
AT: “The State Doesn’t Have an Obligation to Stop the Fetus From Harming A Woman” .............................. 111
AT: Adoption Solves........................................................................................................................................... 112
Back Alley Abortion ........................................................................................................................................... 113
Back Alley Abortion ........................................................................................................................................... 114
Equal Protection Solvency Evidence .................................................................................................................. 115
Legal Abortion Reduces Health Complications .................................................................................................. 116
Legal Abortion Reduces Health Complications .................................................................................................. 117
Quick Rights Frontline ........................................................................................................................................ 118
Slavery Frontline ................................................................................................................................................. 119
Privacy Frontline ................................................................................................................................................. 120
Citizenship Frontline ........................................................................................................................................... 121
Holocaust Answers – Frontline ........................................................................................................................... 122
Holocaust Answers – Frontline ........................................................................................................................... 123
David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 298..................... 123
Holocaust Answers – Frontline ........................................................................................................................... 124
Holocaust Answers – Frontline ........................................................................................................................... 125
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Planet Debate 2009 – Medicaid Abortion Funding Affirmative
Holocaust Answers – Frontline ........................................................................................................................... 126
Holocaust Answers – Frontline ........................................................................................................................... 127
Women’s Health Answers Frontline ................................................................................................................... 128
Answers to the Golden Rule Argument .............................................................................................................. 129
Answers to the Golden Rule Argument .............................................................................................................. 130
Answers to: “Glad My Mother Didn’t Abort Me” .............................................................................................. 131
Answers to: “Glad My Mother Didn’t Abort Me” ............................................................................................. 134
David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 287..................... 134
“Abortion is Selfish” Answers ............................................................................................................................ 135
Adoption Answers............................................................................................................................................... 136
Kant Answers - -Frontline ................................................................................................................................... 137
General Rights Extensions .................................................................................................................................. 138
General Rights Extensions .................................................................................................................................. 139
Freedom Extensions ............................................................................................................................................ 140
Bodily Integrity Impacts ..................................................................................................................................... 141
Abortion Protected By Privacy Rights ................................................................................................................ 142
Abortion Protected By Privacy Rights ................................................................................................................ 143
Abortion Protected By Privacy Rights ................................................................................................................ 144
Abortion Protected By Privacy Rights – Waiting Periods & Consent Specific .................................................. 145
Abortion Privacy Rights Don’t Hurt Women ..................................................................................................... 146
Privacy Impact -- Dignity.................................................................................................................................... 147
Abortion Isn’t Murder ......................................................................................................................................... 148
Abortion Isn’t Murder ......................................................................................................................................... 149
Our Advantages Outweigh the “Right to Life” ................................................................................................... 150
Answers to: “Abortion Wrong at Any Stage” ..................................................................................................... 151
Most Abortions Pre-Viability -- Extensions........................................................................................................ 152
Life at Conception Answers ................................................................................................................................ 153
Life at Conception Answers ................................................................................................................................ 154
Life At Conception Bans Birth Control .............................................................................................................. 155
Life Begins at Birth ............................................................................................................................................. 156
Extensions: Isn’t Murder ..................................................................................................................................... 157
Life Begins at Seven Months/Brain .................................................................................................................... 158
Brain Standard is Best ......................................................................................................................................... 159
“Fetal Personhood” Crushes Abortion Rights ..................................................................................................... 160
General Fetal Personhood Answers .................................................................................................................... 161
General Fetal Personhood Answers .................................................................................................................... 162
Irrelevant – No Duty to Help .............................................................................................................................. 164
Answers to: “Every Person of the Species Has the Capacity to Function as A Person” .................................... 165
Answers to: “Obligations to Members of Our Species”...................................................................................... 166
Answers to: “All Human if is Sacred” ................................................................................................................ 167
Answers to: “Slippery Slope Fetal Life Argument”............................................................................................ 169
Answers to: “Potential Life” ............................................................................................................................... 171
Answers to: “Potential Life” ............................................................................................................................... 172
Answers to: “The Fetus Has the Full Genetic Make-Up of A Human” .............................................................. 173
Answers to: “The Zygote Is Part of the Life Cycle” ........................................................................................... 174
Answers to: “The Fetus Has the Essential Properties of Human”...................................................................... 175
Answers to: “The Fetus Has the Essential Properties of Human”...................................................................... 176
Answers to: “Fetus Has the Same Genetic Makeup as A Person” ...................................................................... 177
Answers to: “We Don’t Afford the Fetus Rights Simply Because We Don’t Value It” ..................................... 178
Answers to: “The Fetus Will Have A ‘Future Like Our’s’” ............................................................................... 179
Answers to: “It’s Probably a Child” .................................................................................................................... 181
Answers to: “Life Begins at Implementation” .................................................................................................... 183
Answers to: “The Fetus Looks Like a Human” .................................................................................................. 184
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Planet Debate 2009 – Medicaid Abortion Funding Affirmative
Answers to: “The Fetus Looks Like a Human” .................................................................................................. 185
Answers to: “Fetal Movement/Quickening is When Life Begins” ..................................................................... 186
Answers to: “Must Uphold Life” ........................................................................................................................ 187
Answers to: “Religion Says Life Begins at Conception” .................................................................................... 188
Answers to: “No Right For A Fetus is Like No Rights For Slaves” ................................................................... 189
Answers to: “Fetus is Innocent – Hasn’t Sinned” ............................................................................................... 190
Answers to: “Fetus is Innocent – Can’t Commit Harm” ..................................................................................... 191
Answers to: “Woman Has an Obligation to Rescue the Fetus” .......................................................................... 192
Answers to: “Fetus Has a Right to Lead/Fulfill His/Her Life” ........................................................................... 193
Answers to: “Fetus Desires to Live” ................................................................................................................... 194
Answers to: “You Can’t Kill a Dog and A Dog Isn’t a Person” ......................................................................... 196
General Women’s Rights Extensions .................................................................................................................. 197
General Women’s Rights Extensions .................................................................................................................. 198
General Women’s Rights Extensions .................................................................................................................. 199
General Women’s Rights Extensions .................................................................................................................. 200
General Women’s Rights Extensions .................................................................................................................. 201
General Women’s Rights Extensions .................................................................................................................. 202
General Women’s Rights Extensions .................................................................................................................. 203
General Women’s Rights Extensions .................................................................................................................. 204
General Women’s Rights Extensions .................................................................................................................. 205
Answers to: “Feminism Opposes Violence” ....................................................................................................... 206
Answers to: “Abortion is Oppression” ............................................................................................................... 207
Answers to: “Abortion Undermines Feminist Goals” ........................................................................................ 208
Answers to: “Abortion Presents Women as Sex Objects” .................................................................................. 209
Answers to: “Devaluing the Fetus is the Same as Patriarchy” ........................................................................... 210
Answers to: “Abortion Capitulates to Male Norms”.......................................................................................... 211
Answers to: “Abortion Doesn’t Guarantee Women’s Equality”......................................................................... 212
Answers to: “The Woman Chose to Have Sex” ................................................................................................. 213
Slavery Outweighs .............................................................................................................................................. 214
Slavery Outweighs .............................................................................................................................................. 215
Bodily Integrity Outweighs ................................................................................................................................. 216
General Slavery Extensions ................................................................................................................................ 217
General Slavery Extensions ................................................................................................................................ 218
General Slavery Extensions ................................................................................................................................ 219
General Slavery Extensions ................................................................................................................................ 220
General Slavery Extensions ................................................................................................................................ 221
General Slavery Extensions ................................................................................................................................ 222
General Slavery Extensions ................................................................................................................................ 223
“Slavery” Rationale Superior to “Self-Defense”................................................................................................. 224
“Slavery” Rationale Superior to “Privacy” Rationale ......................................................................................... 225
Answers to: “Not Slavery if Not Life-Threatening” .......................................................................................... 226
Answers to: “Not Slavery Later in Pregnancy”................................................................................................... 227
Answers to: “Property Rights Discourse Bad” ................................................................................................... 228
Answers to: “The Woman Doesn’t Serve the Fetus’ Command” ....................................................................... 229
Answers to: “Motherhood Isn’t Slavery, It’s Joyous” ........................................................................................ 230
Answers to: “Pregnancy Isn’t Labor” ................................................................................................................. 231
Answers to: “Pregnancy Isn’t Labor” ................................................................................................................. 232
Answers to: “Libertarianism is Wrong” ............................................................................................................. 233
Answers to: “The Conscription/Draft is Constitutional” .................................................................................... 234
Answers to: “Society Has an Interest in Protecting the Fetus” ........................................................................... 235
Answers to: “Women Serve the State in Roles As Mothers”.............................................................................. 236
Answers to: “Failure to Act Can Be Criminal” ................................................................................................... 237
Answers to: “The Court Forced Sea Men to Return to Their Vessels” ............................................................... 238
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Planet Debate 2009 – Medicaid Abortion Funding Affirmative
Answers to: “Pregnancy Isn’t Life –Long” ......................................................................................................... 239
Answers to: “The Violinist Analogy is Bad” ...................................................................................................... 240
Answers to: “The Violinist Example is ‘Weird’” ............................................................................................... 243
Answers to: “The Woman Consented to Sex/The Pregnancy Risk” ................................................................... 244
Answers to: “The Woman Consented to Sex/The Pregnancy Risk” ................................................................... 245
Answers to: “The Woman Consented to Sex/The Pregnancy Risk” ................................................................... 246
Answers to: “The Woman Consented to Sex/The Pregnancy Risk” ................................................................... 247
Answers to: “The Woman Consented to Sex/The Pregnancy Risk” ................................................................... 248
Answers to: “The Woman Consented to Sex/The Pregnancy Risk” ................................................................... 250
Answers to: “Women Chose Not to Use Contraception”.................................................................................... 251
Answers to: ‘You Can’t Withdraw Consent to Pregnancy Along the Way” ...................................................... 252
Answers to: “Responsibility for the Fetus” ......................................................................................................... 253
Answers to: “We let the violinist die, we kill the fetus” ..................................................................................... 256
Answers to: “We let the violinist die, we kill the fetus” ..................................................................................... 257
Answers to: “The Violinist Was Sick Beforehand, The Fetus Wasn’t” .............................................................. 258
Answers to: “We let the violinist die, we kill the fetus” ..................................................................................... 259
Answers to: “We let the violinist die, we kill the fetus” ..................................................................................... 260
Answers to: “The Violinist Analogy Is About an Adult” ................................................................................... 261
Answers to: “You Have to Be Bedridden to Save the Violinist, Not to Save the Fetus” .................................... 262
Answers to: “The Woman’s Organs Also Belong to the Fetus” ......................................................................... 264
Answers to: “You Have to Provide Child Support to Your Kids ........................................................................ 266
Answers to: “You Have to Provide Child Support to Your Kids ........................................................................ 267
Answers to: “You Have to Provide Child Support to Your Kids ........................................................................ 271
Answers to: “You Have to Provide Child Support to Your Kids ........................................................................ 272
Answers to: “It’s a Defense of Extraction, Not Abortion”.................................................................................. 273
Answers to : “It’s Moral for You to Unplug the Violnist, but not for the doctor –the abstactor”....................... 276
Answers to: “Only Women Can Become Pregnant, Violinists Can Be Attached to Men”................................. 277
Answers to: “Reject the Argument – It’s Inherently Patriarchal Because it Uses a Male Analogy” .................. 278
Answers to: “Duty to Save the Violinist” ........................................................................................................... 280
Answers to: “Duty to Save the Violinist” ........................................................................................................... 281
Answers to: “Duty to Save the Violinist” ........................................................................................................... 282
Answers to: “You Could Be Compensated for Saving the Violinist/The ........................................................... 283
Answers to: “Inconsistency” Objection”............................................................................................................. 284
Answers to: “Children Can Be Adopted” ........................................................................................................... 285
Answers to: “Health Interests of the Fetus” ........................................................................................................ 286
Answers to: “Fetal Protection Benefits the Welfare of Children” ...................................................................... 287
Regulations that Substantially Reduce Abortion Violate the 13A ...................................................................... 288
Pre Viability Abortion is Safer than Childbirth .................................................................................................. 289
Abortion Doesn’t Threaten Mental Health.......................................................................................................... 290
Abortion Doesn’t Reduce Fertility ...................................................................................................................... 293
Abortion Is Safe and No Impediment to Future Fertility .................................................................................... 293
Abortion Doesn’t Cause Cancer.......................................................................................................................... 294
Abortion Doesn’t Cause Cancer.......................................................................................................................... 295
Abortion Doesn’t Cause Cancer.......................................................................................................................... 296
Abortion Doesn’t Cause Cancer.......................................................................................................................... 297
Abortion Doesn’t Cause Cancer.......................................................................................................................... 298
Abortion Doesn’t Cause Cancer.......................................................................................................................... 299
Abortion Doesn’t Cause Cancer.......................................................................................................................... 300
Answers to: “Abortion Threatens the Psychological Health of Women” ........................................................... 301




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative



                                                      FYI
A Brief History of State and Federal Funding for Abortions
Carol Corns, UNIVERSITY OF MICHIGAN JOURNAL OF LAW REFORM, 1994, “The impact of public
abortion funding decisions on indigent women: a proposal to reform state statutory and constitutional abortion
funding provisions,” p. 374-6
In 1965 Congress established the Medicaid program, a federal-state cost-sharing program designed to fund
medical care for indigent persons. Title XIX of the Social Security Act authorizes the use of federal funds to
reimburse states for expenditures for a broad range of medical services. States participating in the Medicaid
program are free to develop their own plans and consequently set their own limitations as long as they are
consistent with the objectives of the Medicaid program. If the state establishes a Medicaid plan that satisfies
certain statutory requirements and meets with federal approval, the federal government agrees to pay a
specified percentage of the total amount spent under the state plan. Public funding of abortions under the
Medicaid program began during the Nixon administration, when the Department of Health, Education and
Welfare (HEW) began to reimburse states for expenditures made to provide abortions to indigent women. The
federal government's decision to provide Medicaid funding for abortions reflected the administration's
recognition of abortion as a legitimate form of medical treatment. In addition to decriminalizing abortion, the
1973 United States Supreme Court decision of Roe v. Wade apparently legitimized the status of abortion as a
medical procedure within the context of the Medicaid program. Subsequently, the "pro-life" movement began
to lobby state and federal legislators, arguing that tax monies should not be used to finance abortions. The states
of Pennsylvania and Connecticut adopted regulations proscribing the funding of elective abortions but
permitting the funding of "medically necessary" abortions through their state Medicaid programs. In addition,
the Mayor of St. Louis, Missouri issued a policy directive prohibiting the use of municipal hospitals to provide
abortions, except where necessary to save the life of the pregnant woman or to protect her from grave physical
injury. In 1976, Representative Henry J. Hyde (R-Ill.) proposed an amendment to the fiscal year 1977
appropriations bill for the Departments of Labor and HEW (the "Hyde Amendment") that would have prevented
any funds under the act from being used "to pay for abortions or to promote or encourage abortions." The
House of Representatives passed the amendment by a vote of 209 to 165, but the Senate defeated it by a vote of
53 to 35. In response to the Senate defeat, Representative Silvio O. Conte (R-Mass.) proposed, and the House
approved a "compromise" amendment that proscribed federal funding for abortions except where the pregnancy
endangered the life of the pregnant woman. Apparently appeased by this exception, the Senate approved the
revised version of the Hyde Amendment. Three weeks after Congress adopted the appropriations bill, however,
a federal district judge, in McRae v. Mathews, n enjoined the enforcement of the Hyde Amendment, and
directed HEW to continue to provide federal Medicaid reimbursement to providers of elective abortions. Judge
John F. Dooling of the Eastern District of New York reasoned that withdrawing funds for elective abortions
resulted in denial of medical assistance to indigent women solely because of their choice to exercise a
constitutionally protected right. The following year, in a triumvirate of decisions, the Supreme Court upheld the
above-mentioned Pennsylvania and Connecticut regulations and the St. Louis policy directive. In the first case,
Beal v. Doe, the Court held that states participating in the Medicaid program had the discretion under the Social
Security Act to refuse to fund abortions that were not medically necessary. The Court next held, in Maher v.
Roe, that a state participating in the Medicaid program was not constitutionally compelled to fund elective
(nontherapeutic) abortions, even if the state chose to fund childbirth. The Court rejected the plaintiffs' due
process and equal protection claims, stating that indigency is not a suspect classification and that the
Pennsylvania and Connecticut regulations bore a rational relationship to each state's "'strong and legitimate
interest in encouraging normal childbirth.'" Finally, in Poelker v. Doe, the Court held that states and cities need
not provide public employees or facilities to perform nontherapeutic abortions. The district court in Mathews,
which broadly invalidated all funding restrictions imposed on abortions, had held that the constitutional right to
abortion would be frustrated even by the withholding of federal funds for elective abortions. Because the

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Planet Debate 2009 – Medicaid Abortion Funding Affirmative
Supreme Court's decisions in Beal and Maher clearly repudiated this argument, and because the district court
failed to distinguish between the funding of therapeutic and nontherapeutic abortions, the district court's order
could no longer stand. The Supreme Court vacated the district court's order and remanded the case for further
consideration in light of Maher and Beal. In conformance with the language of the Hyde Amendment, HEW
began to withhold Medicaid funding from all women seeking abortions unless the women's pregnancies were
life-threatening. Subsequent versions of the Hyde Amendment for most of fiscal year 1978 and all of fiscal
year 1979 were somewhat less restrictive, permitting the federal government to fund abortions when the life of
the pregnant woman was endangered; where two doctors certified that continuation of the pregnancy would
result in severe and long-lasting health damage; or when the pregnancy was the result of a reported rape or
incest. The 1980 version deleted the exception for severe and long lasting health damage. On January 15, 1980,
the federal district judge who decided Mathews enjoined once again the enforcement of the Hyde Amendment,
this time on the grounds that the denial of federal Medicaid funds for medically necessary abortions constituted
an "unduly burdensome interference with the pregnant woman's freedom to decide to terminate her pregnancy
when appropriate concern for her health makes that course medically necessary." Thus, the district court
eventually did distinguish between medically necessary and elective abortions in its attempt to sustain the
challenge to the Hyde Amendment This second injunction against enforcement of the Hyde Amendment,
however, was ultimately futile. On June 30, 1980, in Harris v. McRae, the Supreme Court upheld the
constitutionality of the Hyde Amendment, rejecting the argument that the restriction on funding obstructed the
exercise of a woman's interest in terminating her pregnancy and thus infringed on her personal liberty. Relying
on Maher , the majority held that the government, rather than obstructing a woman's right to an abortion, merely
"by means of unequal subsidization of abortion and other medical services, encourages alternative activity
deemed in the public interest." Finally, the Court held that Title XIX did not require states to pay for medically
necessary abortions for which federal reimbursement was unavailable. On the same day, in Williams v. Zbaraz,
the Supreme Court held that states imposing the same funding restrictions as the Hyde Amendment did not
violate the equal protection clause of the fourteenth amendment. Thus, states constitutionally could refuse to
fund medically necessary abortions that were not funded by the federal government. After the implementation
and enforcement of the Hyde Amendment, states had to decide whether to pay for medically necessary abortions
in non-life-threatening cases even though they would not be reimbursed by the federal government. Most states
responded by sharply restricting the funding of abortions under their respective Medicaid programs. Aside
from political pressure by "pro-life" groups, states were undoubtedly influenced by the cost of funding such
abortions themselves. Although the cost of funding abortions for indigent women is less than that of funding
expenses incident to birth and childcare, the difference in federal contribution toward these expenses is a crucial
factor: the state would be obliged to pay the entire bill for the former expense, while the federal government
would subsidize the latter expense heavily. The final version of the Hyde Amendment, passed in 1981,
contains the restrictive language of the original "compromise" Hyde Amendment. Since fiscal year 1981,
federal funding in the abortion context has been limited to situations in which the life of the pregnant woman is
endangered. State legislatures and Medicaid administrations have tended to follow the federal government's
lead; the majority of states have embraced the restrictive life-threatening only language of the most recent
version of the Hyde Amendment. A few have provided additional exceptions, such as terminations of
pregnancies resulting from rape or incest or involving fetal abnormality. Only eight states voluntarily use state
funds to finance all medically necessary abortions sought by indigent women. Courts in three additional states
have relied on state constitutions to invalidate restrictions on the funding of abortions that are medically
necessary but not life-threatening. California does not restrict the use of public funds for abortion and provides
funding for abortions even when they are purely elective and of no therapeutic value. In July 1989, the
Supreme Court decided Webster v. Reproductive Health Services, which dramatically broadened the power of
states to regulate abortions. Relying on Maher, Poelker, and Harris, the Court upheld Missouri's ban on the
use of public facilities for abortions and a prohibition against public employees performing abortions in the
scope of their employment. The Court held that the restrictions imposed upon the pregnant woman's access to
abortion were "rationally related to the legitimate governmental goal of encouraging childbirth" and placed "'no
governmental obstacle in the path of a woman who chooses to terminate her pregnancy.'" The Court further
observed that a woman's inability to obtain an abortion in a public hospital performed by a public employee was
"considerably less burdensome . . . than indigency," and implied that the restrictions imposed by the Missouri
law were not only consistent with, but more reasonable than, those previously upheld in Maher and Harris. On
                                                                                                                 7
Planet Debate 2009 – Medicaid Abortion Funding Affirmative
October 11, 1989, the House of Representatives concurred with a Senate amendment to its 1990
appropriations bill and voted to expand federal funding of abortions under Medicaid to cover those pregnancies
resulting from rape or incest. President Bush summarily vetoed the bill. The House attempted to override the
veto but failed to obtain the necessary two-thirds vote. As a result, appropriations measures for 1990, like those
of the previous nine years, permitted federal funding of an abortion only when the pregnancy endangered the
woman's life. The appropriations act for 1991 contained similar restrictions. In May 1991, the Supreme Court
handed down its decision in Rust v. Sullivan, which further extended the federal government's power to
regulate abortion by limiting public expenditures. Specifically, the Court upheld regulations promulgated by the
Secretary of Health and Human Services under Title X of the Public Health Service Act. One of the challenged
regulations prohibited abortion-related counseling or referrals by family planning projects receiving Title X
funds. The regulations, which remain effective, require a project funded by Title X to refer pregnant clients "'for
appropriate prenatal and/or social services by furnishing a list of available providers that promote the welfare of
the mother and the unborn child'" and expressly prohibit the project from referring pregnant clients to abortion
providers even on specific request. Relying on Maher, Harris, and Webster, the Rust Court rejected the
petitioners' challenge that the regulations violate a woman's fifth amendment right to choose whether to
terminate her pregnancy. The Court reasoned that: Congress' refusal to fund abortion counseling and advocacy
leaves a pregnant woman with the same choices as if the government had chosen not to fund family-planning
services at all. The difficulty that a woman encounters when a Title X project does not provide abortion
counseling or referral leaves her in no different position than she would have been if the government had not
enacted Title X.




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative



                                                    1AC 1/
Contention I -- Inherency

In 1976, Congress passed the Hyde Amendment to the Medicaid Act, denying indigent women on
Medicaid the ability to use Medicaid resources to obtain abortions

Sandra Berenknopf, Temple Law Review, Summer 1997, “Judicial and congressional back-door methods that
limit the effect of roe v. Wade: there is no choice if there is no access,” p p. 655-6

 In 1976, Congress passed the Hyde Amendment to the Medicaid Act. The Medicaid Act exists to help
low-income individuals pay for medically necessary procedures. Under the Medicaid Act, a state may
choose to receive federal funding to administer a Medicaid program. Although a state's participation in
the program is completely voluntary, the state's program must comport with various federal
requirements and meet with the approval of the Secretary of Health and Human Services ("Secretary").
If a state does not comply with the federal requirements, the Medicaid Act requires that it attend a hearing
before the Secretary. Although a state may provide funding for numerous optional health care categories, it
must provide funding for all of the federally-required categories once it chooses to participate. While
participating states are free to set their own eligibility requirements for the mandatory health services, they must
do so consistent with the purpose and objectives of the federal Medicaid program. Most importantly, a state
cannot set requirements that would deny an individual the mandatory services because of "diagnosis, type of
illness, or condition." Congress passed the Hyde Amendment to the Medicaid Act to limit Medicaid
funding of abortions to those abortions which Congress deems medically necessary. Though the text of
the amendment has changed throughout the years, its continuous effect has been to limit Medicaid
funding for abortions. For the first time since 1981, Congress in 1994 expanded the reach of the Hyde
Amendment by allocating funding for abortions when "the pregnancy is the result of an act of rape or incest"
and when the abortion is "necessary to save the life of the mother." Since first passing the Hyde amendment,
Congress has applied it to the appropriations bills for the Department of Health and Human Services ("HHS"),
authorizing the Secretary of HHS to oversee, enforce, and promulgate rules and regulations for the Medicaid
program. The Secretary delegates her power to the Health Care Financing Administration ("HCFA") which has
taken a variety of steps to carry out this delegated authority. The HCFA has promulgated regulations, and
issued correspondences to state Medicaid directors, addressing Medicaid funding for abortions.


Courts use the Hyde Amendment as a justification for accepting state limits on the public
funding of abortion

Sandra Berenknopf, Temple Law Review, Summer 1997, “Judicial and congressional back-door methods that
limit the effect of roe v. Wade: there is no choice if there is no access,” p. 655

Both Congress and the courts have consistently used the Hyde Amendment as a back-door method to
limit the force of Roe v. Wade. The Hyde Amendment is a back-door method for Congress because while
Congress passes it as an appropriations measure, the Hyde Amendment impermissibly imposes substantive
obligations. The Hyde Amendment is a back-door method for courts because courts use it to endorse
states' limits on Medicaid funding for abortions.




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                                                     1AC 2/
Many individuals under federal jurisdiction and who rely on federal health care are denied
public funding for abortion
Georgetown Journal on Poverty Law & Policy, Summer, 2003, “Restrictive State Abortion
Laws: Today's Most Powerful Conscience Clause,” p. 346
Since Roe, federal regulations have implemented limitations on performing and funding abortions. The Hyde
Amendment, first passed by Congress in 1976, excludes abortion from the healthcare coverage provided to low-
income women through Medicaid, except when the woman's life is in danger. Congress has amended the Hyde
Amendment to also allow coverage for abortions in cases of rape or incest. This federal rule sets a floor, but
permits states to use their own funds to underwrite abortions for low-income women. New York, Maryland,
Hawaii, and Washington are the only states, however, to voluntarily opt to fund abortions for low-income
women; several other states have done so under court order. States' use of federal dollars to fund their Medicaid
programs requires them to follow federal Medicaid law by funding abortions in a case of rape or incest as well
as when the woman's life is endangered. In the 1980s, Congress instituted laws similar to the Hyde
Amendment that excluded abortions from other federally funded health care plans, including coverage of
Native Americans, federal employees and their dependants; low-income residents of the District of
Columbia; Peace Corps volunteers; federal prisoners; and military personnel and their dependants.

The Supreme Court has ruled that the government is not obligated to provide funding for
abortions as part of Medicaid

Julie F. Kay, Brooklyn Law Review, Spring 1994, “If Men Could Get Pregnant: An Equal Protection Model For
Federal Funding Of Abortion Under A National Health Care Plan,” p. 350-1
These Hyde Amendment restrictions were upheld by the Supreme Court in Harris v. McRae. The Court
stated that denying Medicaid funding for even medically necessary abortions is rationally related to the
state's goals and, therefore, does not violate the Due Process or Equal Protection Clauses of the
Constitution.

The Court has refused to extend equal protection to protect public funding for abortion
Carol Corns, UNIVERSITY OF MICHIGAN JOURNAL OF LAW REFORM, 1994, “The impact of public
abortion funding decisions on indigent women: a proposal to reform state statutory and constitutional abortion
funding provisions,” p. 375
Specifically, the Court ruled that state governments, under their respective Medicaid plans, could
withhold funding from indigent women seeking elective abortions, even though the states continued to
provide for their childbirth-related expenses.                                                     Rejecting
                                                 Three years later, the Court ruled that the federal government could prohibit indigent women from using federal Medicaid funds for abortions.


equal protection challenges in both cases, the Court held that: 1) neither pregnancy nor poverty
constituted a suspect classification, so the State was not required to show a compelling interest to justify
its policy; the regulations at issue were rationally related to a legitimate governmental interest in
encouraging childbirth.




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                                                 1AC 3/
Contention II. Harms

    A. Reproductive Rights

Blocking the use of public funds for the poor to obtain abortions collapses abortion rights
Eileen L. McDonagh, Professor of Political Science, Northeastern University and Visiting Scholar, Radcliffe
College. Ph.D., Government Department, Harvard University, 1999, Albany Law Review, “My Body, My
Consent: Securing the Constitutional Right to Abortion Funding,” p. 1065-6
Access to an abortion is seriously impaired, for example, by the Court's ruling that one of the ways the
state is allowed "to persuade" a woman to choose childbirth instead of an abortion is by prohibiting the
use of public funds, facilities, and personnel for abortion services, even when a fetus is not yet viable and
even when the pregnancy in question is a medically abnormal one. As the Court reasoned in Harris v.
McRae, a case involving two indigent women, each of whom suffered from a medically abnormal
pregnancy: It simply does not follow that a woman's freedom of choice carries with it a constitutional
entitlement to the financial resources to avail herself of the full range of protected choices... Although
government may not place obstacles in the path of a woman's exercise of her freedom of choice, it need not
remove those not of its own creation. Indigency falls in the latter category. Most law scholars concur that,
by extension, it would be constitutional for a state to prohibit public resources to assist an indigent
pregnant woman suffering from a medically abnormal pregnancy threatening her with death.

Denying reproductive freedom to the poor essentially denies it to everyone

Gloria Feldt, President of Planned Parenthood, WAR ON CHOICE, 2004, p. 91

The common thread running through all of this welfare legislation is the denial of women’s most basic human
rights— the right to privacy, to economic equality, and to control over what happens with our own bodies.
Enforcing such policies against women on welfare— the most vulnerable among us— sets the stage for similar
abuses of power against women everywhere. If poor women can be denied sexual and reproductive freedom, so
can all women. If the government can control poor women’s sexuality, then it can control everyone’s
sexuality— men, women, gay, or straight.




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Providing public funding for abortion is critical to protect reproductive constitutional rights and
prevent the enslavement of women to the fetus
Laurence H. Tribe, law professor, Harvard, November 1985, “the abortion funding conundrum: inalienable
rights, affirmative duties, and the dilemma of dependence.,” p. 335-6
The right of a woman to terminate her pregnancy sheds light on all three of the dimensions under discussion --
the individual-collective dimension, the alienability-inalienability dimension, and the negative-affirmative
dimension. Unless the government guarantees to all women this basic power over their reproductive roles
and lives, it perpetuates a system of relationships repugnant to our constitutional values.                                                                                                                                                                                   Although the Supreme Court in Roe v. Wade
spoke as though it were protecting the "privacy" rights of both the woman and her physician, and indeed at times as though the physician's right were somehow primary, the right in question surely must belong to the individual woman, and must respond at least in part to the subordinate place women as a
group occupy as long as they confront unwanted pregnancy and unwanted motherhood -- as long, that is, as they lack the capacity to avoid these consequences. Is the right an alienable one? Seemingly not. A woman retains the right recognized in Roe v. Wade even if she voluntarily begins a pregnancy, or
voluntarily engages in sexual activity that risks pregnancy. The right upheld in Roe v. Wade is not, after all, limited to cases of rape, although Roe itself happened to involve a rape. Whatever the underlying circumstances, could a woman alienate her right by contracting (with the father, perhaps) not to
terminate the pregnancy? As one might expect of a right grounded in relational concerns -- more in concerns of power than in concerns of true "privacy" -- government enforcement of such a contract, the Supreme Court's cases indicate, would violate the fourteenth amendment. How about a woman too poor
to pay for an abortion? It might be supposed that her plight is not the government's doing but her own responsibility. We might even assume, for the sake of argument, that the impecunious woman deliberately chose to conduct herself so as to save too little to pay what an abortion costs -- by rejecting

                              the government obviously has the constitutional authority under such
available work, or by spending all her earnings on other things. Even so,


circumstances to make abortion available at no charge to the woman -- either in a public facility or by
public subsidy of an otherwise willing private provider. Its affirmative choice not to do so can be described,
without doing violence to the language, as a decision to "enforce" the woman's implied waiver -- her alienation,
if you will -- of the right she would otherwise have enjoyed: the right to end her pregnancy. After all, the
unavailability of abortion to such a woman follows from her lack of funds only by virtue of government's
quite conscious decision to treat the needed medical procedure as a purely private commodity available
only to those who can pay the market price. In Harris v. McRae, the Supreme Court described that decision
as one that the Constitution leaves the government entirely free to make, telling poor women that the
Constitution leaves them to fend for themselves in financing abortions. That holding was rendered especially
dubious by the government's simultaneous decision -- at considerable net public cost -- to take childbirth for
the same poor women off the private market by funding the necessary medical care within a comprehensive
medical benefits program. In my view, the most striking thing about governmental choices like the one
upheld in McRae -- choices that leave some women with no alternative to continuing an unwanted
pregnancy through childbirth -- is that they require those women to make affirmative use of their bodies
for childbearing purposes. Such governmental choices, in fact, require women to sacrifice their liberty,
and quite literally their labor, in order to enable others to survive and grow in circumstances likely to
create lifelong attachments and burdens. Indeed, there seems to me to be a strong parallel between a
woman's right not to remain pregnant and every person's inalienable right not to be enslaved. Even if we
view pre-viable fetuses as persons, a requirement of so intimate and positive a personal sacrifice is one
that our legal system almost never imposes. But women are uniquely vulnerable to its imposition
because they must call upon others to provide assistance if they would choose not to make this sort of
sacrifice. It is not as though, after engaging in sexual intercourse and conceiving a child, a woman could
simply               and safely decline, on her own, to make such a sacrifice the way a man could, for example, decline to provide a blood transfu sion to save the life of a fetus he had voluntarily fathered. What are we to say when a government agency, or a set of legal rules, exploits this special vulnerability
of women in such a way as to reinforce their subservience to men, and thus their lack of fully autonomous and equal roles in social and political life? Is this not precisely what government does when its rules permit doctors to withhold the requisite medical assistance from poor women, even though it could

                                      ? When this is the thrust of a regime of public law, of the
require otherwise willing physicians to perform abortions in return for compensation out of public funds


constitutional norms precluding legally reinforced subordination come into play, leaving government
with a duty to justify the resulting destruction of women's rights. Once the rights of women to terminate
unwanted pregnancies are understood as relational and thus inalienable in character, it becomes difficult
indeed to justify the government's decision not to fund an impecunious woman's choice of abortion.                                                                                                                                                                                                               When the same
government has agreed to finance the same woman's even costlier choice of continuing her pregnancy to term and giving birth, no concern for conserving that government's limited resources could justify withholding the funds that a safe abortion would require. Nor could such withholding of public funds be
justified by the view that, if the state funded abortions, it would be affirmatively "killing" fetuses. In Roe v. Wade, after all, the Court held that, as between the fundamental liberty of the woman and the life of a being that many do not yet deem a "person" at all, the former must prevail until viability. Thus,
leaving aside the scientific, moral, and religious disputes over the "humanness" or "personhood" of the fetus at various stages of development, Roe treats the legal ordering of the competing claims of woman and fetus as resolved by the very conclusion that the woman's right to end her pregnancy indeed
prevails over the interest in preserving the non-viable fetus's life. The Court's description of the woman's right as grounded in "privacy," rather than in the relationship of women to men, might give a surface plausibility to a refusal to provide public funding.But this plausibility, as we have seen by recasting the
right in relational terms, dissolves upon analysis. To be sure, Roe ranked the relative interests of the fetus's survival and the mother's choice only in a situation in which the mother could a fford to obtain an abortion. But it would be odd, to put it mildly, to suggest that the result should differ -- that the fetus's
interest should carry greater weight than the woman's -- when, and only when, she must rely on the state's assistance to exercise the freedom to end her pregnancy. That result would rescue the helpless fetus only by exploiting the fortuitous helplessness of the woman. Clashes between competing
fundamental rights surely must be resolved on more principled grounds. Indeed, this realization constituted, in large part, the Court's most significant commitment in Roe. By Reviewing the statutes at issue in Roe, the Court refused to leave the abortion question to the wildly varying results of shifting political
majorities in the fifty state legislatures. Regardless of how it decided the merits, the Court thus ensured that, whatever the relative rights enjoyed by fetuses and women, these basic rights would be enjoyed consistently throughout the nation. A refusal to provide abortion funding for women who need it
ignores this commitment, ensuring in many cases that the interests of the fetus will be allowed, through a mere fortuity, to trump those of the woman. If the Court were to treat all relational rights in the same way that it has treated the right to abortion, it would have to proclaim that only solitary and self-
sufficient freedoms -- forms of liberty that all are able to exercise by themselves provided only that government stays its hand, such as liberty of personal worship or freedom from unreasonable seizure of the person -- will be fully and even-handedly protected within our constitutional order. This result would
leave essentially hollow (for all but the relatively wealthy) any form of liberty that, for reasons as devoid of moral content as physiological accident, require the affirmative help of others for their exercise. This consequence would in turn create a tilt far too arbitrary and quirky to be proclaimed an inevitable
corollary of our constitutional scheme. The grave moral or religious qualms that some people might entertain about performing, or even helping to finance, an abortion also seem irrelevant to the question of government funding of abortions through tax receipts. True, serious moral and religious objections at
times limit government's constitutional options. There may well be rights of "conscientious objectors" that government must respect even in circumstances as exigent as wartime; and there are surely rights of dissenters that it must respect under ordinary conditions, when doing so might entail difficulty but
would not prevent government from fulfilling its obligations. But these limits do not tie government's hands in the abortion funding context. For government is in a position fully to effectuate the rights of women under Roe v. Wade, even for the poorest, without extracting involuntary service from anyone,
without taking anyone's property without just compensation, and without necessarily using tax revenues traceable to objectors. Rectifying racial discrimination through affirmative action programs that cost some innocent whites their seniority could, and perhaps must, be accompanied by compensation for

those faultless white individuals who must be displaced in order to make room for the equally blameless minorities. In the same way       , ending a poor woman's unwanted pregnancy requires no

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Planet Debate 2009 – Medicaid Abortion Funding Affirmative
more than compensation for doctors' services -- compensation that government might provide, if required
to do so, without compelling anyone to contribute to a procedure he or she deems morally wrong.




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Every invasion of freedom must be rejected

Sylvester Petro, professor of law, Wake Forest University, Spring 1974, TOLEDO LAW REVIEW, p. 480.
   However, one may still insist, echoing Ernest Hemingway – “I believe in only one thing: liberty.” And it is always
   well to bear in mind David Hume’s observation: “It is seldom that liberty of any kind is lost all at once.” Thus, it is
   unacceptable to say that the invasion of one aspect of freedom is of no import because there have been invasions of
   so many other aspects. That road leads to chaos, tyranny, despotism, and the end of all human aspiration. Ask
   Solzhenitsyn. Ask Milovan Djilas. In sum, if one believes in freedom as a supreme value, and the proper ordering
   principle for any society aiming to maximize spiritual and material welfare, then every invasion of freedom must be
   emphatically identified and resisted with undying spirit.

The protection of individual rights is necessary to stop destruction from the nuclear state
George Kateb, Professor of Politics, Princeton, THE INNER OCEAN, 1992, p. 116-7

I have rehearsed platitudes. The justification is that these platitudes of individualism are not really platitudes.
They are fundamental considerations that can wither through complacent or irritable inattention. In their
withering, the way is eased for massive ruin and for the possibility of extinction. From these considerations—
presumably the considerations that guide our lives—the absolute impermissibility of using nuclear weapons
emerges. Individualism in the form of personal and political rights bars a government whose legitimacy rests on
acknowledging and protecting those rights from acting in any way that risks or causes massive ruin at home or
that threatens or inflicts it abroad. The emphasis is on the death of millions of individuals. The subjects of
illegitimate governments—for example, the people of despotic states—are covered equally by this imperative:
the claim to individual rights is not an enclosed, parochial matter, but universalist in nature. Kven though their
own government does not acknowledge and protect their rights, any legitimate government which has an effect
on them must do so insofar as it can. (Michael Walzer has already made this point in just and Unjust Wars[
1977].) Above all, in dealing with foreigners, a legitimate government must not inflict massive ruin. The theory
of the just war and elementary notions of common humanity may disallow any policy that risks or causes
massive ruin, but the underlying moral principles of the American political system independently and clearly do
so. If officials of a legitimate government use nuclear weapons or threaten to do so, and whether or not their
people suffer retaliation, the officials have so grossly violated the principles of the system that they must be
understood as having intended its moral destruction and therefore to have created a situation in which a
revolution against them is abstractly justified in behalf of the very system they have subverted. They are the real
revolutionaries. Notice what underlies the pretended right to use or threaten to use nuclear weapons. In the case
of the United States, government rhetoric invokes freedom as the value that may be defended by nuclear
weapons. Freedom is the term used to refer to all those rights to which the U.S. Constitution is devoted. Yet how
can there be consistent faith in rights when masses of people become passive victims? American citizens would
not be acting to defend their freedom; they would simply be enlisted in mass death. Further, how can there be
consistent faith in rights when mass death is inflicted on others? The theory of rights recognizes no difference
between one's fellows and foreigners so far as negative moral entitlements are concerned: everyone has an equal
claim not to have rights violated, even if positive claims to increased well-being may be nationally confined. If
political freedom institutionally survived the use of nuclear weapons, its essence would have been spiritually
maimed, perhaps destroyed irretrievably. The users of nuclear weapons would have engaged in a revolution
against freedom.




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                                                    1AC 6/
We win -- even if they win the fetus is a human life, abortion rights outweigh – it’s ok to kill to
escape enslavement
Andrew Kopplemen, University of Chicago, M.A., Political Science, Yale University,; J.D., Yale University,
1989; Ph.D. expected, Political Science, Yale University, “Legal Theory, Forced Labor: A Thirteenth
Amendment Defense of Abortion,” NORTHWESTERN UNIVERITY LAW REVIEW, Winter 1990, p. 511-2

Begin by noting that the right to be free from involuntary servitude is sometimes powerful enough to overcome
the interest in preserving human life. Consider the amendment's effect on pre-existing law. United States v.
Amistad provides the relevant precedent. In 1839, an American Navy ship seized the Spanish schooner Amistad
near Long Island. It was under the control of forty-nine Africans, who, during a slave-trading voyage between
two Cuban ports, had risen, killed the captain, and taken command of the ship. Since then they had been trying
to find their way back to Africa. Conflicting claims were filed by Americans for salvage; by the Spanish
owners of the ship for its cargo, including the Africans; by the United States government on behalf of the
Spanish government pursuant to treaty, supporting the owners' claim; and by the Africans themselves, claiming
their freedom. The district court freed the Africans, holding that their enslavement had been illegal under
Spanish law, which had abolished the African slave trade. Therefore, the American treaty with Spain, which
provided that merchandise rescued from the hands of pirates or robbers should be restored to the owners under
the laws of the treating countries, did not apply. Finally, the court ruled that mutiny by one wrongfully enslaved
did not constitute a crime under American law. On appeal to the Supreme Court, the majority opinion of Justice
Story "largely upheld and followed the reasoning of the district court." Because neither Spanish law nor the
treaty authorized the enslavement, Story wrote, "[t]he conflict of rights between the parties under such
circumstances, becomes positive and inevitable, and must be decided upon the eternal principles of justice and
international law." Because the Africans "were kidnapped and illegally carried to Cuba, and illegally detained
and restrained on board of the Amistad," their actions could not be condemned by the Court. "We may lament
the dreadful acts, by which they asserted their liberty, and took possession of the Amistad, and endeavoured to
regain their native country; but they cannot be deemed pirates or robbers in the sense of the law of nations. . . ."
However, these conservative implications rested on the fact that "nineteenth-century American slavery was
marked almost throughout by the stamp of legality." Since the adoption of the thirteenth amendment, this is, of
course, no longer the case. It follows that now the Amistad principle is not confined in any way. The United
States itself is in effect an Amistad, where involuntary servitude is denied the support of positive law and
rebellion against such servitude, even if it must involve the taking of life, is only the assertion of a legal right.




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                                                           1AC 7/
You must uphold the constitution
Stephen L. Carter, professor of law at Yale, 1-1986 66 B.U.L. Rev. 71, p. 83-4

The fact that any rule can constrain creative freedom is sometimes missed by those who assert that constitutional
theories fall into two categories, "interpretive" and "non-interpretive." The error is the assumption that one school
assigns to the Constitution a different importance than the other. This simply isn't so. When Aloysius cries "intent of the
Framers" and Bernadette ripostes "emergent moral consensus" their disagreement is not over the weight to be assigned
to the Constitution, but rather over the rules that will bind the interpreter in the creative act of transforming its symbols
into policy. Paul Brest and Laurence Tribe do not respect the Constitution any less than do Robert Bork and Raoul
Berger; their argument is over what demands that respect places on the interpreter. Each theorist's view on the best
means for channeling the creative imagination of the reader is put forth as a set of interpretive rules.] The crucial
question for many constitutional theorists is whether the rules governing interpretation can be set out with clarity
sufficient to render constitutional adjudication something other than the judge's imposition of her own value
preferences. Those I call "delegitimizers" are of the view that mainstream liberalism cannot resolve this question:
liberals, if they seek rules to cabin judicial freedom, are stuck with a Bickelean exaltation of process and a process that
occasionally produces repugnant results. The only answer liberals can come up with, so the argument goes, is the
fundamental rights form of judicial review, that is, to ignore the process -- and any coherent rules for interpretation that
the process might require -- and impose better results. But this of course is what classical liberalism forbids, for there
must, in liberal theory, be a way of recognizing law and distinguishing it from simple power. Judges in the liberal state
are to enforce this recognizable law. If they do something else -- for example, enforcing their preferences and calling
them law -- they are violating the rules that make liberal constitutional adjudication possible. Thus the essence of
the critique is not that the fundamental rights jurisprudence reaches substantive results that are good or bad -- such
notions are quite irrelevant 54 -- but rather, that liberal political theory cannot explain it. And if even liberals admit that
they must sometimes step outside their own system in order to avoid morally repugnant results, then their system must
on its own terms be immoral.




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   B. Gender discrimination
Anti-abortion laws are the foundation of sex discrimination against women

Andrew Kopplemen, University of Chicago, M.A., Political Science, Yale University,; J.D., Yale University,
1989; Ph.D. expected, Political Science, Yale University, “Legal Theory, Forced Labor: A Thirteenth
Amendment Defense of Abortion,” NORTHWESTERN UNIVERITY LAW REVIEW, Winter 1990, p. 506-7

If indeed "[t]here can be no doubt that our Nation has had a long and unfortunate history of sex discrimination,"
this discrimination has consisted primarily of the systematic use of motherhood to define and limit women's
social, economic, and political capacities. Anti-abortion laws would continue and ratify that practice even if
they could somehow be restricted to the women who really have consented to the compulsion -- that small (indeed, probably nonexistent) subset of women seeking abortions who had entered into surrogacy
                 The issue here is analogous to that of "badges of slavery." Because the subordination of women,
contracts which forbade it.

like that of blacks, has traditionally been reinforced by a complex pattern of symbols and practices, the
amendment's prohibition extends to those symbols and practices. While the Court reversed Bailey's conviction "[w]ithout imputing any actual motive to
oppress," and invidious intent is thus not a part of the burden a thirteenth amendment challenge to a statute must carry, the pervasive presence of such intent strengthens a thirteenth amendment challenge by
                                       . Sexism is as pervasive in the anti-abortion world view as racism
reinforcing the suspicion that the statute would ratify systematic oppression

was in the Southern peonage system. Just as Southern Whites typically assumed that blacks were lazy and irresponsible, the anti-abortion world view typically belittles
women's capacity for moral agency, often supposing that women who abort simply do not and cannot understand what they are doing. (George Bush seems to have reflected that idea in his hastily drafted
campaign proposal to impose criminal penalties, not on women who abort, but on the doctors who help them.) Again, the reliance on specious "consent" implies that it really does not matter whether this
servitude is voluntary or not. Just as the white landowners tended to think that agricultural labor, whether forced or willing, was a suitable role for blacks, so opponents of abortion tend to think that
motherhood, whether forced or willing, is a suitable role for women. The "right to life" position, which dismisses a woman's desire to control the course of her life as arising from "convenience, whim, or
caprice," is intimately linked to the traditional view that it is ridiculous and inappropriate for women to have or pursue such desires, and that the capacities of women, but not of men, are properly exercised
"not for self-development, but for self-renunciation." Laws against abortion place the state's imprimatur on that view by imposing criminal punishment on those who deviate from it. In both cases, the insult
        to the extent that either blacks or women are regarded as instruments for satisfying the needs of others
is the same:

rather than as autonomous agents, their dignity as free persons is violated.

Gender discrimination must be rejected

Haim Gordon & Riva Gordon, Ben-Gurion University Senior Lecturer, SARTRE & EVIL, 1995, p. 130

Consider the widespread oppression of women. Every compromise wit this oppression, any reconciliation with
the male oppressors is a sellout. Moreover, there is no Santa Clause who will bring women in the world justice,
equality, and freedom. What members of the women’s movement, and the men who support them, face is a
long, difficult, day-to-day struggle against the basic Evil of gender oppression and exploitation of women.
Therefore, women or men who believe in a Santa Clause who will bring women justice, freedom, and equality
are fools. And those who do not believe in Santa Clause, who continue to struggle for freedom and equality for
all women, must not flee from hating those men and those institutions that continue to exploite, debase, and
degrade women.




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                                                    1AC 9/
And we have a consequentialist impact, too – patriarchy is the root of the war system

Betty A. Reardon, Director of the Peace Education Program at Teacher’s College Columbia University, 1993,
Women and Peace: Feminist Visions of Global Security, p. 30-2 (PDNSS6401)

In an article entitled “Naming the Cultural Forces That Push Us toward War” (1983), Charlene Spretnak focused
on some of the fundamental cultural factors that deeply influence ways of thinking about security. She argues
that patriarchy encourages militarist tendencies. Since a major war now could easily bring on massive
annihilation of almost unthinkable proportions, why are discussions in our national forums addressing the
madness of the nuclear arms race limited to matters of hardware and statistics? A more comprehensive analysis
is badly needed . . . A clearly visible element in the escalating tensions among militarized nations is the macho
posturing and the patriarchal ideal of dominance, not parity, which motivates defense ministers and government
leaders to “strut their stuff” as we watch with increasing horror. Most men in our patriarchal culture are still
acting out old patterns that are radically inappropriate for the nuclear age. To prove dominance and control, to
distance one’s character from that of women, to survive the toughest violent initiation, to shed the sacred blood
of the hero, to collaborate with death in order to hold it at bay—all of these patriarchal pressures on men have
traditionally reached resolution in ritual fashion on the battlefield. But there is no longer any battlefield. Does
anyone seriously believe that if a nuclear power were losing a crucial, large-scale conventional war it would
refrain from using its multiple-warhead nuclear missiles because of some diplomatic agreement? The military
theater of a nuclear exchange today would extend, instantly or eventually, to all living things, all the air, all the
soil, all the water. If we believe that war is a “necessary evil,” that patriarchal assumptions are simply “human
nature,” then we are locked into a lie, paralyzed. The ultimate result of unchecked terminal patriarchy will be
nuclear holocaust. The causes of recurrent warfare are not biological. Neither are they solely economic. They
are also a result of patriarchal ways of thinking, which historically have generated considerable pressure for
standing armies to be used. (Spretnak 1983) These cultural tendencies have produced our current crisis of a
highly militarized, violent world that in spite of the decline of the cold war and the slowing of the military race
between the superpowers is still staring into the abyss of nuclear disaster, as described by a leading feminist in
an address to the Community Aid Abroad State Convention, Melbourne, Australia: These then are the outward
signs of militarism across the world today: weapons-building and trading in them; spheres of influence derived
from their supply; intervention—both overt and covert; torture; training of military personnel, and supply of
hardware to, and training of police; the positioning of military bases on foreign soil; the despoilation of the
planet; ‘intelligence’ networks; the rise in the number of national security states; more and more countries
coming under direct military rule; 13 the militarization of diplomacy, and the interlocking and the international
nature of the military order which even defines the major rifts in world politics. (Shelly 1983)




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative



                                                  1AC 10/
Plan: The United States Supreme Court should rule that the Hyde Amendment, and all similar laws, are
unconstitutional violations of equal protection

Or

Plan: Congress should repeal the Hyde Amendment

(Note: If you use this plan, you should substitute the included Congress solvency cards).




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative



                                                  1AC 11/
Contention III. Solvency

Striking down the Hyde Amendment on the grounds that it disproportionately impacts women
expands the equal protection rights of all women
Janessa L. Bernstein, law student, Brooklyn Law Review, Summer, 2008, “The Underground Railroad to
Reproductive Freedom: RESTRICTIVE ABORTION LAWS AND THE RESULTING BACKLASH,” p. 351-2
Part II of this Note proposes an alternative interpretation of the equal protection doctrine and applies it
to an analysis of abortion funding restrictions. The analysis emphasizes that the level of scrutiny that the
Court has employed to decide whether legislation violates reproductive rights is inadequate. The government's
goal of protecting the non-viable fetus without regard to a woman's well-being should not satisfy any equal
protection standard. Therefore, Part II concludes that federal funding of abortion services is required under a
modified equal protection analysis Specifically, the revised form of the equal protection guarantees
proposed in this Note would require the use of the highest level of scrutiny when considering legislation
that affects women as a class. This analysis also de-emphasizes a showing of purposeful discrimination,
instead focusing on the discriminatory effects of the challenged legislation. Using this analysis, the Court
would give greater weight to the discriminatory impact of legislation that on its face does not explicitly
classify people by gender. The result would be that if a statute considered facially neutral by the Court--
such as the Hyde Amendment--is shown to affect women as a class and does not serve a compelling state
interest, it would be struck as violative of equal protection guarantees. This analysis, based on the practical
effects of denying abortion funding, would expand equal protection rights for all women. Finally, Part III of this
Note looks toward the future of abortion-funding regulations and considers the possibility of restrictions on
reproductive health care within the proposed national health care plan. Legislative proposals that determine
funding of reproductive health care--the new national health care plan being the most imminent example--offer
an opportunity to reexamine abortion restrictions and to design legislative solutions to correct the Court's
support of limited access to abortion services. A new national health care plan must include funding for a full
range of reproductive health care services. To deny such funding constructs a major impediment to the right to
choose an abortion and, therefore, should be challenged as violative of equal protection guarantees. An analysis
of this harmful policy should begin with a look at the women who bear the brunt of a wrongful legislative
decision.




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative



                                                                                                                                              1AC 12/
Equal protection is a more stable framework to protect women’s rights and abortion rights
Ruth Colker, law professor, Duke Law Journal, April, 1991, An Equal Protection Analysis Of United States
Reproductive Health Policy: Gender, Race, Age, And Class, p. 328
Traditionally, the courts have used a privacy framework to resolve abortion cases. (That is the framework
used in Hodgson.) In Roe v. Wade, the Supreme Court found that the right of privacy was "broad enough
to encompass a woman's decision whether or not to terminate her pregnancy." The Court did not find an
absolute right of privacy, but rather held that the right of privacy should be "considered against important state
interests in regulation." In the fifteen years that followed, the Court applied this framework to invalidate
nearly all restrictions against abortion except: (1) Congressional and state limitations on Medicaid that
made it very difficult for poor people to obtain government-funded abortions, and (2) parental consent and
notification statutes that made it difficult for adolescents to preserve their privacy and obtain expeditious
abortions. Many feminists criticized the Court's privacy approach, because it could not protect the most
disadvantaged women from coercive anti-abortion regulations. Concurrently, they have credited the privacy
framework as being more rigorous than the intermediate scrutiny standard applied to sex-based equal protection
claims. In addition, feminist pro-choice litigators have continued to use the privacy approach because of
doctrinal problems with the equal protection approach. The Supreme Court has rejected the view that
discrimination against pregnant women constitutes per se sex-based intentional discrimination.                                                                                                                                                                                                      An argument that a
pregnancy-related distinction constituted intentional sex-based discrimination would therefore have to meet the difficult standard of proof for intentional discrimination as set forth in Personnel Administrator v. Feeney. In Feeney, the Supreme Court held that the discriminatory purpose test, which applies to
facially neutral policies that produce a disparate impact on the basis of gender, requires that the institution "selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable grou p." This test has proved almost impossible to meet;

                                       the privacy approach is no longer superior to the equal protection
thus, attempts to meet this standard in cases involving abortion-related restrictions have failed. Nevertheless,


approach. Although the Supreme Court denies that it has modified the Roe framework, it has watered
down the privacy standard by suggesting that the state need assert only a "legitimate" interest to sustain
an abortion-related restriction. This standard is less rigorous than the "compelling" state interest
standard used under Roe as well as the "important" state interest standard required under intermediate
scrutiny for sex-based equal protection cases. Given the controversial nature of privacy doctrine, the
development of equal protection doctrine might be politically and legally advantageous.




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative




                                  Hyde Amendment Inherency
The Hyde Amendment prohibits the use of federal Medicaid funds for abortion unless the life of
the mother is at-stake

Sara Gordon, Arizona Law Review, Winter, 2003, A Woman's Life, A Woman's Health: Equalizing Medicaid
Abortion Funding in Simat Corp. v. Arizona Health Care Cost Containment System,” p. 1128-31

 Popularly known as Medicaid, Title XIX of the Social Security Act was created in 1965 to provide federal
grants to states that furnish medical assistance to those who cannot afford necessary medical services. Each
state's Medicaid program must comply with the federal mandates and requirements specified in Title XIX.
Although the federal government issues general guidelines, states establish their own requirements for
Medicaid participation, thus retaining the flexibility to adopt provisions based on individual economic resources,
political and social climates, and state constitutions. Congress initially restricted Medicaid funding for abortions
when it enacted the Hyde Amendment in September 1976. Named after its original congressional sponsor,
Representative Henry Hyde, the amendment severely limits the use of federal funds to reimburse states for the
cost of abortions under Medicaid. The amendment contains a few narrow exceptions to the general ban on
federal abortion funding, which have varied over the years. In its current form, the Hyde Amendment authorizes
federal funding of abortions when a pregnant woman's life is endangered by the pregnancy, or when a
pregnancy results from a reported rape or incest. Federal funding is not available when abortion is recommended
for the treatment of other medical conditions where the woman's health, but not her life, is put at risk by
carrying the fetus to term. The Supreme Court has consistently upheld the constitutionality of Hyde Amendment
restrictions on federal abortion funding and removed the obligation of states to subsidize abortions when federal
funding is unavailable. In two major cases involving the constitutionality of the Hyde Amendment, the United
States Supreme Court has applied an equal protection analysis to state statutes that limit a Medicaid recipient's
access to funding for abortions. The Equal Protection Clause of the Fourteenth Amendment provides that no
state may "deny to any person within its jurisdiction the equal protection of the laws," n a mandate interpreted to
require that state governments treat all similarly situated persons alike.Citizens need not be treated identically,
however, and perfect equality is not required. The level of judicial scrutiny applied to equal protection
challenges varies based on the nature of the classifications or rights involved. If a classification does not involve
a suspect class or fundamental right, it is examined under the relatively lenient rational basis standard, and such
legislation will be upheld provided it is rationally related to a legitimate state interest. When the implicated right
is considered fundamental or the affected class is suspect, however, courts will apply a strict scrutiny analysis
and the discriminatory legislation will be upheld only if it serves a compelling state interest and is narrowly
tailored to achieve that interest. In Maher v. Roe, decided one year after passage of the Hyde Amendment, the
Court upheld a Connecticut statute denying funds for abortions for indigent women except when medically
necessary. The Plaintiff claimed an equal protection violation, arguing that abortion and childbirth should be
treated equally. After noting that indigence is not a suspect classification, the Court explained that Roe v. Wade
did not establish a fundamental constitutional right to abortion. Instead, the right at stake was that of a pregnant
woman to make a choice free from "unduly burdensome interference" by the government. The Court rejected the
argument that the statute placed obstacles in the path of an indigent woman's exercise of her right to choose
abortion, finding that the financial constraints that prevent a woman from exercising her choice are instead a
product of her indigency. Because a fundamental right was not involved, the statute passed rational basis muster.
The state's legitimate interest in protecting the life of the fetus was "rationally furthered" by Connecticut's
decision to subsidize only medical expenses incident to childbirth. A few years later, the Court reconsidered the
abortion funding issue in Harris v. McRae. Though the effective version of the Hyde Amendment was
substantially more restrictive than the version in force when Maher was decided, the Court again found no
infringement upon a fundamental right, nor impact on a suspect class. As concluded in Maher, the government's

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Planet Debate 2009 – Medicaid Abortion Funding Affirmative
legitimate interest in protecting potential life was rationally related to the Hyde Amendment's decision to
withhold funding for almost all abortions. ..continued (p. 1134): The Hyde Amendment disallows federal
Medicaid reimbursement to states for abortions that are necessary to protect the health, but not the life, of a
pregnant indigent woman. The Arizona Supreme Court's decision in Simat means that, notwithstanding the
unavailability of federal reimbursement, once the state undertakes to provide abortions for indigent women
where necessary to save their lives, it must provide such health care in a neutral manner and also provide
abortions when necessary to protect and preserve the health of these women. The state will therefore be required
to finance the procedures with its own funds The decision was a major victory for abortion rights advocates and
critics of the Hyde Amendment, who claimed that the law as it stood before Simat often presented pregnant,
indigent women with a string of bleak options: carry the pregnancy to term and face possibly serious health
consequences; attempt to procure an abortion through less expensive and more dangerous sources; or use their
own limited funds to finance the abortion, often at the expense of other children or necessary living expenses.
Others claim that the Hyde Amendment is a back-door attempt by Congress to limit abortions generally and to
deny poor women the protections espoused in Roe v. Wade.




                                                                                                             23
Planet Debate 2009 – Medicaid Abortion Funding Affirmative


                              Hyde Amendment Inherency
Courts use the Hyde Amendment as a justification for accepting state limits on the public
funding of abortion

Sandra Berenknopf, Temple Law Review, Summer 1997, “Judicial and congressional back-door methods that
limit the effect of roe v. Wade: there is no choice if there is no access,” p. 655

Both Congress and the courts have consistently used the Hyde Amendment as a back-door method to
limit the force of Roe v. Wade. The Hyde Amendment is a back-door method for Congress because while
Congress passes it as an appropriations measure, the Hyde Amendment impermissibly imposes substantive
obligations. The Hyde Amendment is a back-door method for courts because courts use it to endorse
states' limits on Medicaid funding for abortions.




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative


                Courts Say No Public Abortion Funding Required
The Supreme Court has ruled that the government is not obligated to provide funding for
abortions as part of Medicaid

Julie F. Kay, Brooklyn Law Review, Spring 1994, “If Men Could Get Pregnant: An Equal Protection Model For
Federal Funding Of Abortion Under A National Health Care Plan,” p. 350-1
These Hyde Amendment restrictions were upheld by the Supreme Court in Harris v. McRae. The Court
stated that denying Medicaid funding for even medically necessary abortions is rationally related to the
state's goals and, therefore, does not violate the Due Process or Equal Protection Clauses of the
Constitution.


The Supreme Court has ruled that even if a right to something exist there is no obligation on
behalf of the government to provide funding to make the exercise of the right possible

Eileen L. McDonagh, Professor of Political Science, Northeastern University and Visiting Scholar, Radcliffe
College. Ph.D., Government Department, Harvard University, 1999, Albany Law Review, “My Body, My
Consent: Securing the Constitutional Right to Abortion Funding,” p. 1118
The right of privacy to make a choice without interference from the state generally does not obligate the state to
provide a person with the means necessary to exercise that choice. See infra notes 6-9 (discussing cases in which
the Court ruled the state does not need to provide the resources to procure an abortion). The right of privacy, for
example, to choose to use contraceptives does not obligate the state to purchase them for you; the right to send
your child to a private school of your choice does not obligate the state to pay your child's tuition; and the right
to choose whom to marry obviously does not obligate the state to pay for your wedding. See Webster v.
Reproductive Health Servs., 492 U.S. 490, 507 (1989) (ruling that the Due Process Clause does not entitle a
person to governmental aid, even to secure rights the government would be prevented from depriving people).
Thus, it might have been anticipated that the Court would rule that the constitutional right to choose an abortion
without interference from the state did not include the constitutional right to state assistance in procuring one….
See Maher v. Roe, 432 U.S. 464, 479 (1977) (holding that there was no constitutional right to abortion funding
in the context of a medically normal pregnancy); see also Webster, 492 U.S. at 504, 522 (finding it constitutional
to prohibit public funding to perform an abortion)…. See Poelker v. Doe, 432 U.S. 519, 5 (1977) (ruling that
there was no constitutional right to use a publicly funded hospital to perform an abortion); see also Webster, 492
U.S. at 511 (holding that it was constitutional for the state to prohibit the use of public personnel for the
provision of an abortion)…. See Harris v. McRae, 448 U.S. 297, 326 (1980) (ruling that there was no
constitutional right to abortion funding even for an indigent woman suffering from a medically abnormal
pregnancy); Beal v. Doe, 432 U.S. 438, 444 (1977) (finding that a state law prohibiting Medicaid benefits in the
case of a medically normal pregnancy was not a violation of federal law).




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative


              Courts Say No Public Abortion Funding is Required
The Supreme Court has rejected finding for a constitutionally protected right to publicly funded
abortions
George Washington Law Review, June 2001, “Holding abortion speech hostage: conditions on federal
funding of private population planning activities,” p. 18

In the nearly twenty years since Roe v. Wade recognized a woman's right to choose to have an abortion,
federal courts have struggled to define the contours of that right. In Maher v. Roe and Harris v. McRae,
the Supreme Court declined to identify a concomitant right to federal or state funding for abortions, even
in the case of indigent women who otherwise would be denied access to that freedom. Another line of cases
has tested the extent to which the government may employ economic incentives to discourage abortion-related
services such as counseling and referral. The issue arises in the context of federal and state grants to private
organizations that are conditioned upon the recipient refraining from abortion-related speech.




                                                                                                             26
Planet Debate 2009 – Medicaid Abortion Funding Affirmative


                             States Restrict Abortion Funding
The majority of states restrict public funding for abortion
Sara Gordon, Arizona Law Review, Winter, 2003, A Woman's Life, A Woman's Health: Equalizing Medicaid
Abortion Funding in Simat Corp. v. Arizona Health Care Cost Containment System,” p. 1134
The majority of states have followed the federal government's lead in restricting public funding for
abortion. Thirty-two states pay for abortions for indigent women whose lives are endangered by the
pregnancy, as well as in cases of rape or incest, as mandated by federal Medicaid law and the Hyde
Amendment. (A few of these states also pay in cases of fetal impairment or when the pregnancy threatens
"severe" health problems, but none provide reimbursement for all medically necessary abortions for indigent
women.) Currently, only seventeen states fund abortions for indigent women on the same terms as other
pregnancy-related and general health services. Three of these states provide funding voluntarily (Hawaii, New
York, and Washington); in fourteen states, courts have interpreted their state constitutions to give broader
protection for reproductive choice than the United States Constitution and have ordered nondiscriminatory
public funding of abortions (Alaska, Arizona, California, Connecticut, Illinois, Indiana, Massachusetts,
Minnesota, Montana, New Jersey, New Mexico, Oregon, Vermont, and West Virginia). Finally, one state (South
Dakota) fails to comply with the Hyde Amendment, instead providing coverage only when necessary for
lifesaving abortions. See Am. Civil Liberties Union, Public Funding for Abortion (Jan. 15, 2003), available at
http://www.aclu.org/ReproductiveRights/ReproductiveRights.cfm?ID=9039&c=146.


States aligning with the Hyde Amendment; the number of publicly funded abortions is
decreasing
Carol Corns, UNIVERSITY OF MICHIGAN JOURNAL OF LAW REFORM, 1994, “The impact of public
abortion funding decisions on indigent women: a proposal to reform state statutory and constitutional abortion
funding provisions,” p. 385
A number of states with sizable populations of Medicaid-eligible women, including Colorado, Illinois, Ohio,
and Pennsylvania, have changed their funding policies between 1976 and 1987. Colorado, Illinois, and Ohio
have brought their policies in line with the 1981 Hyde Amendment policy, and Pennsylvania adopted the Hyde
language with exceptions for rape and incest. As Table I shows, as a result of these changes, the number of
publicly funded abortions in these states declined markedly between 1976 and 1987. As of 1991, Michigan and
the District of Columbia, both of which provided abortion funding in 1987, no longer do so. These two
jurisdictions accounted for 24 of the state-funded abortions performed in 1987.




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative


                                Equal Protection Inherency/Congress Solvency
The Court has not yet expanded the equal protection doctrine to fully protect women’s rights;
Congress should recognize the right of women to be treated equally and establish funding for
indigent women for abortions

Janessa L. Bernstein, law student, Brooklyn Law Review, Summer, 2008, “The Underground Railroad to
Reproductive Freedom: RESTRICTIVE ABORTION LAWS AND THE RESULTING BACKLASH,” p. 392
Unfortunately, the Supreme Court has a long history of failing to fully recognize women's rights,
particularly in the area of reproductive rights. One drawback to a revised equal protection standard that
relies on judicial discretion is that the Court may fail to recognize when legislation perpetuates harmful
stereotypes about women. Although the Supreme Court has made some progress in its understanding of the need
for greater protection of women's rights in some areas of law--such as in sexual harassment cases the Court
seems particularly slow to ensure women's full reproductive rights. Since Roe v. Wade, a series of Supreme Court
decisions have gradually restricted access to abortion by allowing the state to have an interest in the pre-viable fetus. Two of the Court's more recent
decisions, Webster v. Reproductive Health Services, and Planned Parenthood of Southeastern Pennsylvania v. Casey, are most relevant to the abortion
funding issue and the debate over women's reproductive health care in general. Although neither case directly addressed the issue of federal abortion
funding, both Webster and Casey further narrowed abortion access for low-income women by upholding abortion restrictions. Both decisions demonstrate
the Court's weakening commitment to reproductive rights. Yet neither decision grants the government the right to assert an unlimited interest in a first-
trimester fetus. The application of Casey's "undue burden" standard to abortion restrictions implies that the Court is willing to accept some obstacles to
abortion access. Yet the Casey decision did not clearly delineate a standard for determining which abortion restrictions would place an undue burden on
women choosing abortion. As a result, lower courts face considerable confusion as they try to address the issue of what constitutes an "undue burden."
Advocates challenging abortion restrictions under Casey must explore the factual impact of such restrictions in an effort to show how these restrictions
burden women. Although it has generally failed to recognize the economic realities faced by low-income women with unwanted pregnancies, the Court is
beginning to acknowledge the enormous impact of reproductive health laws on women's equality. Ultimately, the Court has failed to recognize that any
restriction on access to abortion will act as a total bar for some women. For a woman who lives in a rural area where a doctor performs abortions only one
day a week, a 24-hour waiting period may turn into a one-week delay. A one-week delay could make her pregnancy too advanced for a legal abortion.
Furthermore, what may not be an undue burden for an upper- or middle-income woman, may be a total bar to abortion access for low-income women or
teenagers. A woman forced to stay overnight in a hotel or travel home and return during a 24hour waiting period may find the additional cost too high to
afford an abortion and be forced to carry an unwanted pregnancy to term. Given the Court's previous disregard of the burdens faced by low-income
women trying to obtain abortion services, it is unlikely that the Court will consider additional expenses alone as constituting an undue burden. If the Court
is unwilling to recognize or elaborate on the extreme hardship of such restrictions as a 24-hour waiting period or parental consent, it is unlikely to find that
a complete denial of abortion funding places an undue burden upon low-income women. Although the Court has maintained some limits on the state's
interest in the fetus, thereby recognizing the detrimental effects the restrictions have on individual women, its most recent reproductive rights decisions do
not appear to offer any support for abortion funding for low-income women. Yet, the changing composition of the Supreme Court indicates that in the
future it may recognize the discriminatory impact of a challenged law. In addition, the Court appears affected by an increased societal awareness of how
sexism affects women's lives. The Court itself has not been insulated from such concerns. During the confirmation hearing of Justice Clarence Thomas,
the country focused its attention on the issue of sexual harassment and, since that time, the Court has ruled on this issue with increased awareness of the
impact of sexual harassment on women The Court's recent opinions reflect a growing awareness of women's rights, particularly in the workplace. For example, in Harris v.
Forklift Systems, Inc., the Court evolved in its Title VII analysis of a sex discrimination case, stating that a "discriminatorily abusive work environment, even one that does not seriously affect employees'
psychological well-being, can and often will detract from employees' job performance, discourage employees from remaining on the job, or keep them from advancing in their careers." Nonetheless, the
Court did not go as far as the standard proposed by Justice Ruth Bader Ginsburg, who noted that the "critical issue . . . is whether members of one sex are exposed to disadvantageous terms or conditions of
employment to which members of the other sex are not exposed." Despite its progress in the area of employment discrimination against women, the Court has been slow to combat gender discrimination in
the area of reproductive health law. The majority of the justices are not committed to women's rights and, indeed, those selected by then-Presidents Reagan and Bush were chosen in part because of their
anti-abortion viewpoints. The law traditionally has not been receptive to women's equality, particularly because it has excluded women and their experiences of pregnancy and childbearing. Although the
Court may be making some progress in the realm of gender equality, and will undoubtedly expand its recognition of women's interests with the addition of Justice Ginsburg's perspective, it cannot be relied
                                                            Instead of merely relying on the Court's slowly
upon to enact the type of sweeping equal protection reform needed to facilitate women's equality in society.

evolving recognition of gender discrimination, the legislature must recognize equal protection guarantees
in those areas in which such protection has been weak--for example, with laws governing reproduction.
The state's interest in the fetus is not "compelling" if proper emphasis is given to the amendment's
negative effects on women and the possibility of less-burdensome alternatives. But until women's interests
are valued, the detrimental effects of oppressive legislation will continue to be ignored. The proposed
national health care plan offers not only an opportunity, but an obligation to reconsider abortion funding
in the broader context of gender discrimination. Since the Court has been slow to grant women's rights, a
legislative solution may be a more effective--and more appropriate--method of facilitating social equality
for women.




                                                                                                                                                                                                          28
Planet Debate 2009 – Medicaid Abortion Funding Affirmative


                                                                        Equal Protection Inherency/Solvency
The courts rely on privacy frameworks to protect abortion rights, ignoring equal protection
approaches; Equal protection is a more stable framework to protect women’s rights and
abortion rights
Ruth Colker, law professor, Duke Law Journal, April, 1991, An Equal Protection Analysis Of United States
Reproductive Health Policy: Gender, Race, Age, And Class, p. 328
Traditionally, the courts have used a privacy framework to resolve abortion cases. (That is the framework
used in Hodgson.) In Roe v. Wade, the Supreme Court found that the right of privacy was "broad enough
to encompass a woman's decision whether or not to terminate her pregnancy." The Court did not find an
absolute right of privacy, but rather held that the right of privacy should be "considered against important state
interests in regulation." In the fifteen years that followed, the Court applied this framework to invalidate
nearly all restrictions against abortion except: (1) Congressional and state limitations on Medicaid that
made it very difficult for poor people to obtain government-funded abortions, and (2) parental consent and
notification statutes that made it difficult for adolescents to preserve their privacy and obtain expeditious
abortions. Many feminists criticized the Court's privacy approach, because it could not protect the most
disadvantaged women from coercive anti-abortion regulations. Concurrently, they have credited the privacy
framework as being more rigorous than the intermediate scrutiny standard applied to sex-based equal protection
claims. In addition, feminist pro-choice litigators have continued to use the privacy approach because of
doctrinal problems with the equal protection approach. The Supreme Court has rejected the view that
discrimination against pregnant women constitutes per se sex-based intentional discrimination.                                                                                                                                                                                                     An argument that a
pregnancy-related distinction constituted intentional sex-based discrimination would therefore have to meet the difficult standard of proof for intentional discrimination as set forth in Personnel Administrator v. Feeney. In Feeney, the Supreme Court held that the discriminatory purpose test, which applies to
facially neutral policies that produce a disparate impact on the basis of gender, requires that the institution "selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." This test has proved almost impossible to meet;

                                       the privacy approach is no longer superior to the equal protection
thus, attempts to meet this standard in cases involving abortion-related restrictions have failed. Nevertheless,


approach. Although the Supreme Court denies that it has modified the Roe framework, it has watered
down the privacy standard by suggesting that the state need assert only a "legitimate" interest to sustain
an abortion-related restriction. This standard is less rigorous than the "compelling" state interest
standard used under Roe as well as the "important" state interest standard required under intermediate
scrutiny for sex-based equal protection cases. Given the controversial nature of privacy doctrine, the
development of equal protection doctrine might be politically and legally advantageous.




                                                                                                                                                                                                                                                                                                                          29
Planet Debate 2009 – Medicaid Abortion Funding Affirmative


                             General Public Funding Solvency
Unintended pregnancies is largely a class-based problem that can be solved through public funds
Ruth Colker, law professor, Duke Law Journal, April, 1991, An Equal Protection Analysis Of United States
Reproductive Health Policy: Gender, Race, Age, And Class, p. 324
Because the problem of unwanted pregnancies is a class-based problem, which disproportionately affects female
adolescents, the expenditure of public funds targeted at adolescents could make a real difference in the lives of
women. Nevertheless, as I discuss, we have an entirely ineffective public program for limiting unwanted
adolescent pregnancies. In fact, our public policy encourages childbirth over contraception or abortion; we
facilitate the problem rather than solve it. To understand the magnitude of the problem of unintended
pregnancies for adolescents, we need to understand the impact on the physical health of the mother, as well as
the socioeconomic consequences stemming from early childbirth. Female adolescents face substantial negative
consequences from early childbirth, although the source of these problems may often be socioeconomic rather
than age-related. Early childbirth, in itself, need not cause negative physical and socioeconomic consequences.
It does, however, because adolescent mothers are disproportionately poor. In addition, they often are without
effective assistance from state-funded or other health care providers during their pregnancies and after their
children are born.




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative


                         Public Funding Key to Abortion Rights
Women have a fundamental right to abortion services
Eileen L. McDonagh, Professor of Political Science, Northeastern University and Visiting Scholar, Radcliffe
College. Ph.D., Government Department, Harvard University, 1999, Albany Law Review, “My Body, My
Consent: Securing the Constitutional Right to Abortion Funding,” p. 1083

 There is another avenue of equal protection analysis invoking fundamental rights, however, that has yet to be
applied to abortion rights. The Court ruled that strict scrutiny must apply when evaluating the constitutionality
of state policies that impinge upon fundamental rights. As the Court stated in Harris, "It is well settled that,
quite apart from the guarantee of equal protection, if a law "impinges upon a fundamental right explicitly or
implicitly secured by the Constitution [it] is presumptively unconstitutional.'" State policies involving
fundamental rights require the state to treat people who are similarly situated in a similar way. As the Court
stated in Reynolds v. Sims The concept of equal protection has been traditionally viewed as requiring the
uniform treatment of persons standing in the same relation to the governmental action questioned or challenged.
With respect to the allocation of legislative representation, all voters, as citizens of a State, stand in the same
relation regardless of where they live.




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative


             Federal Abortion Funding Critical to Women’s Rights
Articulating a federal right to public funding for abortion is critical to secure women’s rights
Eileen L. McDonagh, Professor of Political Science, Northeastern University and Visiting Scholar, Radcliffe
College. Ph.D., Government Department, Harvard University, 1999, Albany Law Review, “My Body, My
Consent: Securing the Constitutional Right to Abortion Funding,” p. 1114-5

 As law scholar Reval Siegel incisively argues, "the history of race relations in this country is generally
understood as a story of publicly and privately inflicted injury and imposition." However, the history of gender
relationscharacteristically "denies that publicly and privately inflicted injury ever occurred." This is because the
"conflict or coercion" that is a source of injury for women is "repressed" in stories depicting women to be
"figures who give of themselves selflessly and without protest." The Roe decision is a perfect illustration of the
repression of women's injury resulting from coercion and conflict. By recognizing only a woman's due process
right to be free of state interference when making a choice about her own life, the Court not only represses
recognition of the necessarily coercive and injurious effects of a fetus upon a woman's body in all
nonconsensual pregnancies, but denies the equal protection right to state assistance in defense of that harm equal
to that which the state provides to others whose bodily integrity and liberty are nonconsensually affected by
state-protected entities. Of course, Roe is a product of its time, and when it was legally constructed and argued
in the late 1960s and early 1970s, women's rights had been barely articulated and feminist jurisprudence had not
yet been developed. The constitutional right to use contraceptives had not been established by the Court until
1965 in Griswold v. Connecticut, 1 and, as law scholar Michael Klarman notes, the abortion issue did not even
appear as an agenda item for the ACLU until as late as 1964. 2 Even by 1967 "Planned Parenthood and the
National Organization for Women still found themselves deeply divided over whether to call for repeal of
abortion statutes... It seems safe to say that the justices would not have dreamed of invalidating abortion
restrictions even as few as a half dozen years before Roe." When pro-choice lawyer Sarah Weddington, who
argued Roe before the Supreme Court, applied for a credit card in those days, she could not obtain one without
her husband's signature, despite the fact that she was employed while he was still a student. 4 Until the mid-
1970s, no state even recognized marital rape as a crime, and sexual harassment was a term not yet defined, much
less litigated. 5 At the time of Roe it was still constitutional for a state to exclude all women from jury duty, on
the grounds that all women, whether they were married or not, whether they had children or not, needed to be
spared jury duty so that they might better execute their duties as wives and mothers. Thus, in 1973, when the
cul tural milieu and legal norms were still so saturated with traditional notions of women's roles, and when a
woman's right to consent to sexual intercourse with a man had not yet even been adequately established, 7 it
was too much to expect that the Court would have formulated a woman's right to an abortion in terms of her
right to consent to pregnancy. To advance women's rights, however, requires identifying sources of harm
characteristically relegated to scenes that are "private, consensual, and naturalized." In the last quarter century,
women have succeeded in gaining recognition that nonconsensual sexual relations, including those in marriage,
constitute serious harm and warrant state assistance for terminating that harm. Jurispru dential resources may
now extend those guarantees to pregnancy itself. As argued here, a woman's consent to sexual intercourse can be
disentangled from her right to consent to pregnancy; pregnancy need not be depicted as a naturalized condition
precluding a woman from calling upon the state to protect her bodily integrity and liberty from nonconsensual
effects resulting from the fetus; and the harm of a nonconsensual pregnancy resulting from a fetus can be viewed
as situating a woman with others the state protects so as to warrant state protection of her as well. As Lee
Epstein and Joseph Kobylka note, "the law and the legal arguments grounded in law matter, and they matter
dearly." The Justices listen to arguments, and it is the arguments that "seem to influence most clearly the
content and direction of the legal change that results." For this reason, how one frames legal arguments is
"important to the ultimate resolution of the issues." What is required to change constitutional doctrine is
"argumentational flexibility to adapt to new conditions" rather than to hold rigidly to past arguments. Consent,
by building upon choice, is a stronger cultural and constitutional principle for advancing women's reproductive
rights than is choice alone. As political activist Patricia Ireland, President of the National Organization for
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Planet Debate 2009 – Medicaid Abortion Funding Affirmative
Women (NOW), states, "I... do not think that there is any question that, in the war of rhetoric and politics,
consent is a much stronger concept [than choice]." And as Robin West surmises, if Roe were to be overturned
and we started all over again in a ""Post Roe World,'" the consent basis for abortion rights is "an easier legal,
moral, and political argument [than privacy and choice]." Choice without consent has proved to be an
inadequate constitutional doctrine for abortion rights because it is incomplete. Thefundamental right of all
people to bodily integrity and liberty includes both the right to make private choices regarding what to do with
their own body and the right to consent to the effects of others on their body andliberty. Thus, for over a quarter
of a century, basing a woman's right to an abortion on choice alone has guaranteed only half of what constitutes
one's fundamental right to bodily integrity and liberty, thereby denying to women the full legal and
constitutional spectrum which includes both choice and consent. To complete the project launched by Roe, we
must reframe abortion rights on consent and the equal protection right to state protection from the harm of a
nonconsensual pregnancy equal to that which the state provides to others. By so doing, we can secure for
women not only a constitutional right to choose an abortion, but also a constitutional right to state assistance in
obtaining one.

Lack of publicly funded abortions threatens the abortion rights of poor women

Georgetown Journal on Poverty Law & Policy, Summer, 2003, “Restrictive State Abortion Laws: Today's Most
Powerful Conscience Clause p. 347
Although access to abortions has been limited for all women, low-income women are significantly affected.
Naturally, being the population that depends most on public assistance, if publicly funded abortions are
prohibited, low-income women are often unable to access abortions or else are forced to spend money needed
for food and shelter. While some states fund abortions voluntarily or by court order for low-income women, the
majority of states do not provide public funding and often, in concert with several other restrictive laws, leave
these women no option but to carry unwanted pregnancies to term. States' restrictive abortion laws reduce
access to abortions for low-income and underserved women and result in negative public policy consequences,
such as increases in unwanted births to low-income women and increases in the number of children needing and
receiving public assistance. The combination of stringent limitations on funding and performing abortions in a
restrictive state effectively eliminates abortion access for low-income women. This denial of access is a virtual
reversal of Roe v. Wade for these women, extinguishing their right to reproductive choice. Legislators in
restrictive states have effectively imposed their own ethical and political beliefs about whether abortion should
be a choice that women may make. It is a battle over politics, but also over ethics. For instance, of South
Dakota's 105 state legislators, only eleven are pro-choice. When a state legislature passes legislation for the sole
purpose of redefining a "fetus" as an "unborn child," that legislation is clearly making a moral and ethical, as
well as a legal statement. States' restrictive abortion laws create a significant reduction in autonomy for low-
income women, and in addition, present a serious imbalance of equality and justice by reducing their right to
choose whether to carry a pregnancy to term.




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative


                                   Women’s Health Advantage
Poor women who postpone abortions increase their own economic hardships
Janessa L. Bernstein, law student, Brooklyn Law Review, Summer, 2008, “The Underground Railroad to
Reproductive Freedom: RESTRICTIVE ABORTION LAWS AND THE RESULTING BACKLASH,” p. 361-2
The hardships which low-income women encounter as a result of the government's refusal to provide abortion
funding fall into two categories: medical risks and personal suffering. The medical risks of pregnancy are well
known; the personal hardships are more difficult to quantify. Low-income women who, by definition, lack
access to funds, may try a variety of desperate methods to raise the money needed for an abortion. As public
funding for abortion has decreased and private funding sources are limited, however, many pregnant, low-
income women must waste vast amounts of time trying to locate organizations or individuals to provide such
services. Moreover, a woman who postpones her abortion while trying to raise funds increases the danger and
expense of her abortion. The cost of obtaining an abortion increases as the pregnancy progresses Indeed, the
cost of an abortion may act as a total bar to obtaining abortion services for low-income women. Several factors
influence the price of an abortion, including length of pregnancy, availability of local facilities, and the type of
facility and procedure used. Almost all abortion providers require payment in advance. The least expensive
abortion, a first-trimester, out-patient procedure, usually costs between $ 200 and Second trimester abortions
range from $ 350 to $ 450; after the 16th week the cost goes up approximately $ 100 per week, with a maximum
fee usually not over $ 1200. The fees especially burden poorer women, since the average cost of $ 250 for an
early pregnancy can be a significant portion of their income. In fact, an outpatient abortion costs nearly two-
thirds of the average maximum monthly AFDC payment for a family of three. Raising these funds severely
taxes Medicaid-eligible women.

Any delay in getting an abortion increases health risks
Janessa L. Bernstein, law student, Brooklyn Law Review, Summer, 2008, “The Underground Railroad to
Reproductive Freedom: RESTRICTIVE ABORTION LAWS AND THE RESULTING BACKLASH,” p. 363-4
Moreover, since earlier abortion is safer, any delay in obtaining abortion services increases health risks.
Research reaffirms the need for government funding and involvement in providing reproductive health care
services. According to one study, when abortion is not publicly funded, 20% of Medicaid eligible women who
would choose to have an abortion instead carry their pregnancy to term. Later-term abortions simply are less
safe. For example, women are sixteen times more likely to die of an abortion performed in the sixteenth week
than in the eighth week of pregnancy. An abortion past the thirteenth week may require a more complicated
and dangerous procedure than an abortion earlier in the pregnancy. It is more likely to require a hospital stay or
a higher dose of anesthesia. Because pregnancy may involve more of a health risk than abortion, a woman may
choose a first trimester abortion for health reasons. Safety is not a reason for every woman to choose to abort a
pregnancy rather than carry it to term. But a woman must be able to choose if she is willing to accept the health
risks of continuing her pregnancy, particularly if she has pre-existing medical conditions, such as diabetes or
multiple sclerosis, which would be exacerbated. The inequity is clear. By denying access to abortion funding,
the government forces a low-income woman to take a health risk which her wealthier counterpart need not take,
simply because she cannot afford the price of an abortion.




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative



                                  Women’s Health Advantage
Providing free reproductive health service builds ties between women & hospitals that can be
used to increase other health services
Janessa L. Bernstein, law student, Brooklyn Law Review, Summer, 2008, “The Underground Railroad to
Reproductive Freedom: RESTRICTIVE ABORTION LAWS AND THE RESULTING BACKLASH p. 349
A hospital's decision not to provide abortion services has a broad negative effect on women's health care.
Reproductive health services are often the only way for a hospital to make initial contact with women who may
need general health care but would not otherwise approach a hospital. Furthermore, it is inappropriate to allow a
hospital to make a decision as to whether women in the community will have access to abortion services. Any
individual physician who is personally opposed to abortion could be excused from performing them--for
instance, through a "conscience clause" provision. But to place such a decision in the hands of an individual
hospital further deprives women of decision-making power about their own reproductive health care and
impedes the exercise of a constitutional right. Therefore, the proposed national health care plan should facilitate
patient care without allowing a patchwork delivery of services based upon hospital politics.




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative


                                   Women’s Health Advantage
Access to abortion protects women’s health
Catholic University Law Review, Summer, 1990, p. 1305
"(b) The legislature finds as fact that: . . . (2) the medical, emotional and psychological consequences of abortion
are serious and can be lasting, particularly when the patient is immature. . . ." Ala. Code § 26--1 (1990). But cf.
Brief of Amicus Curiae American Pub. Health Ass'n, at 11, Webster v. Reproductive Health Servs., 109 S. Ct.
3040 (1989) (No. 88-605). According to the American Public Health Association (a group consisting of over
50,000 patients, physicians, and health professionals), a woman who carries a child to full term is sixteen times
more likely to die than a woman receiving a legal abortion. Thirty percent of women carrying a pregnancy to
full term experience major medical problems. Id. at 11-12. Also, 20% of all pregnancies require the major
surgical procedure of a cesarean section, thus exposing the woman to the additional risks accompanying major
surgery. Id. at 12. Only 0.2%-0.7% of women who have legal abortions experience any complications. Id. at
14; see also Brief of The American Medical Ass'n as Amicus Curiae at 9-10, Webster v. Reproductive Health
Servs., 109 S. Ct. 3040 (1989) (No. 88-605). The American Medical Association (over 280,000 physicians)
supports the comparative figures and believes they are even higher, saying "[t]he reported mortality figures may
understate the relative safety of abortion compared to childbirth. According to a number of studies, mortality
statistics published by the federal government underestimate the number of maternal deaths from childbirth by
as much as 37%-50%." Id. The American Medical Association also points out that there is no evidence that
having an abortion creates any significant mental problems. Id. at 20-22. What evidence they do have indicates
that women who have abortions are less likely to experience psychiatric disability than women who want, but
are denied, abortions. Id. at 22. But see DAUGHTERS OF ST. PAUL, PRO-LIFE CATECHISM 18 (1984)
(claiming that abortion causes significant mental problems for the mother).




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative


                                  Women’s Health Advantage
Adolescent mothers twice as likely to die from carrying children
Ruth Colker, law professor, Duke Law Journal, April, 1991, An Equal Protection Analysis Of United States
Reproductive Health Policy: Gender, Race, Age, And Class, p. 324
"[A]dolescent mothers between the ages of fifteen and nineteen years are twice as likely to die from hemorrhage
and miscarriage than mothers over twenty years of age." The maternal mortality and morbidity rate is sixty
percent higher for this group than for older women. Adolescent mothers are "23 percent more likely to
experience a premature birth with complications such as anemia, prolonged labor and nutritional deficiency,"
and ninety-two percent more likely to experience anemia than older mothers. The risk of health problems and
medical complications are even higher for African-American adolescents because of the inequitable distribution
of resources in society. Socioeconomic factors, rather than age, seem to contribute substantially to adverse
health consequences from teenage pregnancy. Recent research in the United States has shown that many of the
adverse health consequences of adolescent childbearing documented by earlier studies were overstated because
of a lack of adequate controls for socioeconomic status. Several studies suggest that pregnancy outcomes
among adolescents who receive good prenatal care are no different from, or are better than, those of older
women. Thus, the underlying problem is one of poverty. As we will see, our Medicaid policies do little to
assist women and their children during pregnancy. In countries where adverse health consequences were not
found for adolescents, an excellent prenatal care system was in place. Thus, it is not the age or race of the
adolescents that cause their pregnancy to coincide with adverse health consequences, but it is the lack of access
to adequate prenatal care that causes these adverse health consequences. In fact, some authors seem to believe
that adolescents would have healthier pregnancies than older women if they received adequate prenatal care.




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative


                                  Women’s Health Advantage
Cutitng funding for facilities that support aboriotn for poor women threatens women’s health
Sandra Berenknopf, Temple Law Review, Summer 1997, “Judicial and congressional back-door methods that
limit the effect of roe v. Wade: there is no choice if there is no access,” p p. 660-1
The most serious problem with the Hyde Amendment, however, is that it causes significant health risks to poor
women who need Medicaid funding to have an abortion. Primarily, Congress improperly uses the Hyde
Amendment to promote its "pro-motherhood" philosophy by favoring women who carry their fetuses to term
over those who do not. For example, while in 1977 Congress used the Hyde Amendment basically to cut off
Medicaid funding for women who sought abortions, in 1986 Congress expanded Medicaid funding for women
who carried the fetus to term. In addition, Congress, cognizant of the special needs of pregnant women,
currently allocates Medicaid funding for pregnancy testing, pre-natal care, and post-birth care. And while
Congress provides this funding without limitations from appropriations measures, the same cannot be said for
the aid it gives women who choose not to carry their pregnancies to term. Congress's use of the Hyde
Amendment also forces women who choose to abort a fetus to face severe economic consequences. Poor women
who cannot receive Medicaid funding for abortions are left searching for alternative means of funding. As
women search for funding, they waste valuable time. As women wait longer and longer to abort the fetus, the
abortion becomes more and more expensive. While roughly eighty percent of the Medicaid-eligible women
who are denied public funding find an alternative way to pay for the abortions on their own, many of them must
go without such staples as food, clothing, and shelter as a result. The average cost of an abortion in 1993 was $
250. Women who must self-fund these abortions are often left with no recourse but to use the money they
receive under the Aid to Families with Dependent Children [hereinafter AFDC] program. These are the same
AFDC payments which women would normally use to pay for food, clothing, rent, children's expenses,
household bills, and transportation. The Hyde Amendment thus forces women to deny themselves and their
families such essentials in order to safely exercise a constitutional right. Sometimes, even AFDC payments are
not enough to cover a safe abortion. Consequently, a pregnant woman may be forced to pursue alternative, and
possibly illegal, means to supplement the difference. Poor women who must invest the extra time into locating
money to pay for an abortion may also incur health risks which women who are able to pay for this service
outright would not incur. When Medicaid-eligible women experience delay, they have their abortions much later
than do other women. Consequently, a once safe procedure may become quite dangerous. In fact, women who
wait until their sixteenth week of pregnancy are sixteen times more likely to die from an abortion than those
women who obtain one within eight weeks of their pregnancy. Medicaid-eligible women who delay also may
need a more complicated procedure, a longer hospital stay, or a higher dose of anesthesia. Some women may be
forced to wait so long to have an abortion that by the time they are ready to do so, it is medically too late. In
fact, about twenty percent of the women denied public funding, many of whom are teenagers, bear unwanted
children. And since abortion is often safer than full-term pregnancy, when the government denies public
funding, it forces poor women to undergo unnecessary health risks. The government cannot, and does not,
impose these same health risks upon women who can pay for an abortion themselves.




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative


                                  Women’s Health Advantage
Medicaid funding restrictions reduce access to health care, increasing neo-natal fatality
Jonn Merz & Catherine Jackson, economists, Rand, Women's Rights Law Reporter, Winter, 1995,
“A Review of Abortion Policy: Legality, Medicaid Funding, and Parental Involvement, 1967-1994
,” p.
Findings of this body of empirical research suggest that restrictive payment policies limit access to abortion,
perhaps contributing to lower abortion rates, higher fertility, and delays in the stage of pregnancy when
abortions are performed. Perhaps because women are carrying to term children who are unwanted and
because such women may be less likely to get proper prenatal care - placing them and their fetuses at increased
risk (but which may not qualify them for financial assistance, even if an abortion is medically indicated) -
restrictive Medicaid funding has been found to be associated with lower birth weights and increased neonatal
mortality. Several researchers have sought to explain restrictive payment policies with political and religious
demographic variables. In addition, empirical assessments of the functioning of parental involvement laws
suggest that procedural hurdles erected by these statutes may be avoided by travel to another state, if one having
more liberal abortion policies is nearby.




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative


                                          Privacy Advantage
Denying public funding for abortion collapses reproductive privacy rights
Georgetown Journal on Poverty Law & Policy, Summer, 2003, “Restrictive State Abortion Laws: Today's Most
Powerful Conscience Clause,” p. 361
Unquestionably, the abortion debate is one of the largest moral and ethical conundrums dividing the nation. This
Note does not attempt to debate the morality of abortion. Roe v. Wade, however, established that in the United
States, a woman's right to have an abortion is part of the fundamental right to privacy guaranteed by the
Constitution. Consequently, when legislators pass a set of laws that effectively eliminate a woman's access to
abortion, they are effectively imposing their own ethical beliefs about whether abortion is a choice that all
women may make. While motivations are both political as well as ethical, anti-abortion legislators and judges
are imposing their own ethical beliefs on whomever they can control. In most instances, low-income women and
minors are those with the least bargaining power and are thus easiest to control. If these anti-abortion legislators
impose their moral beliefs about abortion on low-income women, by removing their access to abortion, these
women's reproductive right to privacy is terminated.




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative


                               Establishment Clause Advantage
The Hyde Amendment infringes on the Establishment clauses and threatens the separation of
church & state

Catholic University Law Review, Summer, 1990, p. 17-8
As for the establishment clause challenge, the Court, in a cursory fashion, rejected a claim that the Hyde
amendment, by incorporating doctrines of the Roman Catholic Church into law, violated the establishment
clause. Specifically, the Court stated that a statute does not "violate[] the Establishment Clause because it
'happens to coincide or harmonize with the tenets of some or all religions.'" To illustrate its point, the Court
reasoned "that [although] the Judaeo-Christian religions oppose stealing [that] does not mean that a State . . .
may not, consistent with the Establishment Clause, enact laws prohibiting larceny." This rationale, however,
tended to indicate the weakness of the Court's approach to this particular establishment clause challenge. First,
because the challenge alleged a denominational basis, under Larson, the Court should have utilized strict
scrutiny. At a minimum, using Lemon, the Court should have looked for a clearly secular purpose, asked who
received the primary benefit of limiting abortion funds, and examined whether the Hyde amendment
unnecessarily entangled church and state. The Court, in attempting to justify its failure to apply the Lemon test,
stated that "the fact that the funding restrictions in the Hyde Amendment may coincide with the religious tenets
does not, without more, contravene the Establishment Clause." The logical question to be asked was what
"more" did the Court require. It appears from the Court's language that a successful establishment clause
challenge would have to demonstrate that the statute did more than "coincide or harmonize" with religious
tenets. Ironically, the district court in McRae found more: [T]he record indicates, only the Roman Catholic
Church, among the institutional religions, has sought to secure the enactment of legislation that would forbid
abortion, has organized educational and lobbying efforts to that end, and acted to mobilize popular support for
its legislative goals. . . . [T]hat the efforts of the Roman Catholic clergy and laity have produced the [Hyde
amendment is not a fact], but it is more likely than not that those efforts have been a factor that cannot be
eliminated from the chain of causation. The Church's active role in the creation of the Hyde amendment
indicates that the statute's similarity to the religious tenets of the Roman Catholic Church was more than mere
coincidence.
    B. Completing the Task of Harris v. McRae: Why Present Antiabortion Statutes Cannot Survive a Thorough
Establishment Clause Analysis
1. States Do Not Have a Clearly Secular Purpose on Which to Base Antiabortion Statutes
     Decisions such as Edwards v. Aguillard and Wallace v. Jaffree indicate the willingness of the Court to
question the motives of state legislators. As the Lemon Court indicated, the Court will allow a statute to stand
only if "we find nothing . . . that undermines the stated legislative intent." According to the Aguillard Court, if
the actual intention of the legislature is to promote religion, the claimed secular purpose is undermined and will
be disregarded by the Court. An intention to promote religion may be "evidenced by promotion of religion in
general . . . or by advancement of a particular religious belief." Even if there is some valid, secular purpose,
under Lynch, the "requirement [of a secular purpose] is not satisfied . . . by the mere existence of some secular
purpose, however dominated by religious purposes." As the Aguillard Court indicated, while "the Court is
normally deferential to a State's articulation of a secular purpose, it is required that the statement of such
purpose be sincere and not a sham." The secular purpose of antiabortion legislation must be measured against
this framework. In the context of abortion, the issue of secular purpose turns on one central issue: Whether a
fetus is a human life. Undoubtedly, if a fetus is a human life, a state would have a secular interest in protecting
that life, and any action taken to protect that life would pass the first prong of the Lemon test. Often, however,
the individual legislator's method of defining life can invoke the need for establishment clause analysis. If the
definition of life is motivated by religious beliefs, and incorporated into law, the resulting law cannot withstand
establishment clause examination. Arguably, however, a state could pass such regulations based solely on a
secular belief that life begins at conception. While some medical opinions appear contrary to this proposition,

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Planet Debate 2009 – Medicaid Abortion Funding Affirmative
the question of whether a state can pass antiabortion laws based on a purely secular belief merits examination.
In enacting the regulation, the state would attempt to maximize the preservation of fetal life. Regulations based
on secular beliefs would likely be evidenced by the existence of legal protections for state citizens in all
substantive areas of state law from the moment of conception. Alternatively, if the view that life begins at
conception is confined exclusively to abortion regulation, the absence of such a consistent legislative scheme
would tend to undermine a claim that the legislature's intent in enacting an antiabortion regulation was clearly
secular. For example, four states have antiabortion regulations that tacitly or implicitly reflect a desire to protect
life from the moment of conception: Kentucky, Nebraska, Pennsylvania , and Missouri. If a state has based its
laws on a secular belief that life begins at conception, then comparing the state antiabortion statutes to the state's
homicide and wrongful death statutes should indicate the presence of an internal consistency indicative of a
statutory scheme designed to protect a secularly based definition of life as beginning at conception. In such a
system, the fetus, from the moment of conception, would be protected by state law. If the fetus were murdered,
its killer could be prosecuted for homicide. If the fetus died as the result of another's negligent act, the relatives
of the fetus could sue the negligent party under the state's wrongful death statute. Thus, this system, based on a
secular belief that life begins at conception, would not only protect, within constitutional limits, the fetus from
being aborted, but would also extend to the fetus the full protection of all state laws, including protection under
the state's wrongful death and homicide laws. Absent such a consistent scheme, however, the actual intention of
the legislature is suspect, and may be exposed as promoting a particular religious belief, thereby undermining
the claimed secular purpose and offending the establishment clause.




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative


                              Establishment Clause Advantage
Anti-abortion statues engangle church & state
Catholic University Law Review, Summer, 1990, p 1231-2
Under Lemon, the Court determines excessive entanglement by examining the organizations that are benefited,
the type of state support, and the resulting relationship between church and state. The major force behind the
antiabortion movement is a large and well organized group of religious organizations. The goal of these groups
is to outlaw abortion, which they perceive as the taking of a life; their beliefs define life as beginning at
conception. The nature of the aid conferred upon these religious groups when a state adopts its views is without
doubt "a fusion of governmental and religious functions." Such a fusion places the police power of the state in
a supporting role for the enforcement of religious ideals. Additionally, because religious diversity on the issue
of abortion seems, at times, limitless, antiabortion regulations can create a "selective legislative imposition of
burdens and advantages upon particular denominations." Active involvement of the state in legitimizing
particular religious views is clearly one of the primary evils which the Framers of the establishment clause
sought to avoid. Finally, by basing its laws on religious views, the state is subjugated to those views, which are
constantly changing. Moreover, the state becomes the protector of the denomination's stance on life, thus
creating "a concert or dependency of one upon the other to the end that official support of the State or Federal
Government would be placed behind the tenets of one or of all orthodoxies." Such a dependency of churches
upon the state threatens "wholesome" neutrality, the intended guarantee of the establishment clause.

Anti-Abortion states involve the state in a political issue that is divided on religious lines
Catholic University Law Review, Summer, 1990, p. 1232-3
Throughout its history, religious diversity has been an attribute of American society. Such diversity appears to
preclude a unanimous sectarian view of when life begins. It is within and across denominational lines that the
dispute regarding the beginning of life has centered. The resulting battle over when life begins can thus be cast
as an ecclesiastical dispute. In Lemon, the court warned of such a dispute. After pointing out that legislators
faced with issues implicating religion will often "find their votes aligned with their faith," the Lemon Court
warned that while ordinarily vigorous political debate is a sign of a healthy democracy, "political division along
religious lines was one of the principal evils against which the First Amendment was intended to protect." The
goal of the anti-abortion movement has been to gain the support of government officials to enforce its view of
when life begins. The extent of this attempt is alarming. As the Court noted in Everson, civil strife is likely to
result when religion seeks or maintains the support of government. As the Court has indicated, government
support of religious causes results in the diversion of secular resources from secular needs and into ecclesiastical
disputes. The current debate regarding abortion is unquestionably diverting time, money, and effort from the
advancement of crucial secular policies.




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative


                              Establishment Clause Advantage
Antiabortion Statutes Do Not Fall within the Historical Exemption to the Establishment Clause
Catholic University Law Review, Summer, 1990, p. 1233-4
While a statute need fail only one prong of the Lemon test to be considered unconstitutional, some antiabortion
statutes would seem to violate all three prongs of the Lemon test, as well as the political divisiveness test. The
remaining factor for the court's consideration of such a statute in the establishment clause context is whether the
abortion regulation has a historical basis. Under Lynch and Marsh, if abortion regulations based on the belief
that life begins at conception had a long history of coexistence with secular institutions, such statutes would be
allowed to stand regardless of their outcome under the Lemon test. Antiabortion statutes seem to fail the
historical element of the establishment clause analysis as well. This does not mean, however, that states must
adopt a complete hands-off approach to abortion.




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative


                              Establishment Clause Advantage
Denial of public funding for abortion threatens the Establishment Clause
Georgia Law Review, WINTER 1990, “An Establishment Clause Analysis of Webster v. Reproductive Health
Services,” p. 414-5
The Court has addressed few challenges of abortion regulations as violations of the establishment clause. In
McRae v. Califano the district court evaluated an extensive record substantiating the plaintiffs' claim that the
religious beliefs of the supporters were responsible for the Hyde Amendment, a 1978 amendment to the
Medicaid Act which withheld federal reimbursements for abortions to women otherwise qualified for Medicaid
assistance. The Supreme Court relied on the district court's finding that secular justifications for the Act
outweighed the plaintiff's allegations of religious motivations, and that the restriction on Medicaid "is as much a
reflection of traditionalist values towards abortion, as it is the embodiment of the views of any particular
religion." The Court apparently assumed that "traditionalist values" were not "religious values" and were in
fact valid "secular purposes." Fortunately, the manner in which the Allegheny test incorporates the secular
purpose requirement in its "appearance of endorsement of religion to an objective observer" standard
minimizes the relevance of the Court's balancing approach in McRae. Furthermore, the Court in McRae stated
that its rejection of the establishment clause challenge was due to an insufficient factual basis. Therefore, if the
plaintiff's case in McRae failed due to a factual, instead of a legal, inadequacy, then sufficient proof of
overwhelming religious influence at the legislative and judicial levels would form grounds to invalidate abortion
legislation for its lack of secular purpose. The Webster facts would seem to provide sufficient proof. Like
Allegheny, where the Court applied its establishment clause standard by asking whether the general public
would perceive the challenged holiday displays as an endorsement of a particular religion or of religion over
nonreligion, the Missouri legislature in Webster acted with the intent to endorse a religious belief, and created
the perception of such endorsement. With the preamble, Missouri established as the law of the land the
conservative theological view that a fetus is protected under the Constitution from the time it is conceived. It is
true that the comparison of a holiday display and the rights of the unborn in an attempt to preserve abortion
rights seems inappropriate. Despite this argument, the difference in facts does not change the Allegheny "no
appearance of endorsement" test. By adopting the theologically conservative view on abortion, Missouri
invited Roman Catholics and fundamentalist Christians to believe that they were political "insiders." Other
religious and nonreligious groups were led to believe that they were political "outsiders." An objective
observer, not holding a conservative theological belief that abortion is the moral equivalent of homicide, would
feel alienated by the state of Missouri and condemned by its laws for their personal conclusions on the religious
question of when life begins. This interpretation by the people of favoritism along religious lines was
objectively foreseeable, considering the religious forum in which the abortion debate has taken place.
Therefore, under an establishment clause analysis identical to that used in Allegheny v. ACLU, the Missouri
abortion statute is unconstitutional.




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative


                               Establishment Clause Advantage
Striking down the Hyde Amendment on Establishment Clauses grounds strengthens the abortion
rights movement
Catholic University Law Review, Summer, 1990, p. 1233-5
While there appears to be little agreement as to whether life begins at conception, the test of viability appears a
more logical basis for state regulation of abortion. Unlike problems posed by statutes based on potentially
religious definitions of when life begins, statutes based on viability pose a stronger argument that the state is
attempting to protect the life of a citizen. Because viability is, by definition, the point at which a fetus may
survive on its own, the state can establish an independent, medical basis for claiming a right to protect life. A
viability test derived from uniform application of a secular definition of when life begins would not only be
consistent with the establishment clause, but would also have positive implications for both supporters and
opponents of abortion. Judges, however, are the most likely to benefit. For judges, the use of a viability test,
derived from application of the establishment clause, has important implications, providing an alternative
analysis on the abortion issue; this analysis is not associated with substantive due process rights and
constitutional penumbras. First, the establishment clause offers judges a textual basis on which to ground their
opinions. Also, unlike the presumptions underlying Roe, the establishment clause offers clear and thorough tests
on which sound and consistent decisions may rest. The result offers a rational and legally supportable
alternative with which to judicially resolve the abortion debate. It must be acknowledged that while this test is
unlikely to eliminate debate surrounding the abortion issue, it allows the courts to remove themselves from the
controversy. Courts have been likely targets in the abortion debate because of the weak legal arguments
underlying Roe. The use of the establishment clause would remove this magnet for criticism, allowing judges
to declare that their decisions are based on sound precedent and should stand under the doctrine of stare decisis.
While at least one leading scholar has rejected this approach, it appears that there is growing judicial support
for an expanded role for the establishment clause in deciding challenges to antiabortion statutes. For abortion
rights advocates, use of the establishment clause would continue to allow women to have abortions up to the
point of viability. Abortion rights advocates, however, under a scheme focusing on viability as a result of a
secular decision to protect viable life, might have to concede the right of the state to require abortions occurring
late in the second trimester to be carried on in a medical facility, as well as the right to require examinations to
determine viability. Such legislation, however, would have to be motivated by the secular purpose of protecting
viable human life, not by an attempt to protect a religiously defined life. The use of the establishment clause to
adjudicate abortion cases also offers benefits to antiabortion advocates. First, one of the major objections posed
by antiabortion advocates, that the Court's current abortion pronouncements, based on Roe, lack a textual basis,
is resolved by relying on the text of the first amendment's establishment clause. Second, the development of a
comprehensive series of laws focusing on viability, thus consistent with the establishment clause, would
mandate that a state exercise its interest in the viable fetus not only in the area of abortion, but also in the areas
of wrongful death actions and homicide prosecutions. This might not be the case if a state were permitted to
regulate abortion based on the religious views of its voters. Under the Court's decision in Roe, while the state
was entitled to exercise its compelling state interest at the time of viability, the state was by no means required
to do so. Under current law, therefore, it would be possible to pass, consistent with some religious views, a law
that permitted abortion until the time of live birth. The establishment clause, unlike current law, would
invalidate such a statute because it would be based on the advancement of a particular religious belief. Thus,
unlike traditional arguments regarding abortion, the establishment clause viability test assures comprehensive
protection of fetal life which reaches the point of viability. Third, by focusing on viability, if, as Justice
O'Connor predicts, medical technology shortens the period between conception and viability, the number of
abortions would continue to decrease over time. Fourth, the use of the viability test would not coerce those who
believe that life begins at conception into compromising those beliefs; as they can under Roe, those religiously
opposed to abortion could continue to refuse to have abortions. Finally, the continuing strength of the
establishment clause also strongly benefits religious institutions that oppose abortions by preventing the
preference of one religion over another, thus assuring the ability of all denominations to seek new members. As
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Planet Debate 2009 – Medicaid Abortion Funding Affirmative
the recent growth in the prestige of Christian groups indicates, antiabortion advocates have an effective
alternative to legislatively imposing their views on the public, gaining support for the proposition that life begins
at conception through increased membership. Indeed, one of the major principles underlying the establishment
clause was that voluntary acceptance of a religious creed is more likely to increase membership than is coercion.




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                                          Racism Advantage
Bans on public funding for abortion disproportionately affect minorities

Janessa L. Bernstein, law student, Brooklyn Law Review, Summer, 2008, “The Underground Railroad to
Reproductive Freedom: RESTRICTIVE ABORTION LAWS AND THE RESULTING BACKLASH,” p. 365-6
The denial of abortion funding does not affect women of all races equally. Bans on abortion funding affect
women of color more than white women because they are more likely to be in poverty and more likely to seek
an abortion. Specifically, women of color are "vastly overrepresented among the poor," with families of color
more than three times as likely to live in poverty as are white families. Additionally, although white women
account for 65% of all abortions, women of color have an abortion rate more than twice the rate for white
women. Therefore, though women of color represent only a third of all Medicaid recipients, they are
disproportionately burdened by the elimination of Medicaid funding for abortion. Women of color are also more
likely to die from illegal abortions, which are often sought for financial reasons or because of the poverty-
induced delays mentioned above. As a result of poor medical conditions or teenage pregnancy, women of
color are also more likely to need very late abortions, because they face more of the hardships caused by a
denial of federally funded abortion services.

Denial of funding for abortion proves that minority women are invisible
Janessa L. Bernstein, law student, Brooklyn Law Review, Summer, 2008, “The Underground Railroad to
Reproductive Freedom: RESTRICTIVE ABORTION LAWS AND THE RESULTING BACKLASH p. 104
     The denial of federal funding of abortion poignantly demonstrates that the needs of large groups of women-
-particularly low-income and women of color--have been overlooked in the abortion debate. Within the
framework of the current abortion debate, even if the right to abortion is won, the more pressing issues of access
to abortion and reducing the need for abortion are not adequately addressed.

Laws undermining abortion access disproportionately impact women

Janessa L. Bernstein, law student, Brooklyn Law Review, Summer, 2008, “The Underground Railroad to
Reproductive Freedom: RESTRICTIVE ABORTION LAWS AND THE RESULTING BACKLASH
The statutory rape law at issue in Michael M. applied a double standard by which teenage males under age 18
were considered mature enough to consent to sexual activity while females of the same ages were deemed
incapable of giving consent. In Michael M., the Court recognized that "only women may become pregnant,",
and that "she alone endures the medical risks of pregnancy or abortion. She suffers disproportionately the social,
educational, and emotional consequences of pregnancy." The Court was willing to acknowledge that pregnancy
is a gender-specific condition in order to uphold a discriminatory statute based on stereotypes of women as
sexual victims. The Court subsequently has resisted extending recognition of biological differences to
regulations affecting pregnancy, contraception and abortion. Women are at a particular disadvantage when laws
discriminating on the basis of biological differences are upheld. The Court should be especially wary of the
impact of such laws. As Professor Sylvia Law states Because there are no escapees from biology, no pregnant
men, or women sperm donors, a standard focusing solely on comparative equality does not provide a helpful
tool for evaluating laws governing ways in which men and women categorically, biologically differ. . . . An
equality doctrine that ignores the unique quality of these experiences implicitly says that women can claim
equality only insofar as they are like men." "Laws restricting abortion so dramatically shape the lives of women,
and only of women, that their denial of equality hardly needs a detailed elaboration. While men retain the right
to sexual and reproductive autonomy, restrictions on abortion deny that autonomy to women.". "No men are
damaged in the way women are harmed by an abortion prohibition . . . . Abortion is, in essence, a female
procedure, a procedure only women need," and abortion restrictions are created "with the clear aim of keeping
women and only women from access to it." Women may also bear a disproportionate responsibility in
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Planet Debate 2009 – Medicaid Abortion Funding Affirmative
childrearing, but such differences are generally socially constructed and are not based on immutable
characteristics as is the case with childbearing. Since this cultural norm has been changing, with women now
composing 45% of the employed workforce, Bureau of Labor Statistics, U.S. Dep't of Labor, Working Women:
A Chartbook 2 (Aug. 1991), and 55% of women with children under age three are working, there has been
some redistribution in child care responsibilities. These changes are reflected in legislative initiatives, such as
the Family and Medical Leave Act of 1993, Pub. L. No. 103-3, 29 C.F.R. section 825 (1993). Because of the
biological reality that women bear children, an equal protection argument can be firmly based upon biological
differences, although an equivalent argument could be made based upon a cultural history of women's
oppression.




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                                          Racism Advantage
Reproductive rights are important civil rights for African-American women
Melanie Lee, Washington and Lee Race and Ethnic Ancestry Law Journal, Spring, 2000, “Defining the Agenda:
A New Struggle for African-American Women in the Fight for Reproductive Self-Determination,” p. 92-3
In addition to the historical legacy of slavery, racism has created inequalities in African American wome's
stuggle to obtain reproductive rights. Therefore, to African American women, reproductive rights are civil
rights. Reproductive freedoms are as important as the freedom to choose a seat on a public bus, to attend a
public school, or to live or work without restriction. African American women view reproductive rights as a
struggle against the oppressive forces that denied them other civil rights. While not all African-American and
other women of color are poor, a disproportionate number of these women either live near or below the poverty
line. A lack of financial resources often hinder poor women from obtaining some reproductive options
Congress reeninforced this inequity by denying poor women federal funds for abortions. In addition, a lack of
finances can bar access to many contraceptive devices and basic reproductive health care. Thus, regardless of
the status of the law, or or the "legally" available reproductive options, the financial resources needed to secure
reproductive rights limit, and often prohibit, African American women from obtaining the reproductive rights to
which all women are "entitled".




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                                         Poverty Advantage
Lack of access to abortion by poor women increases poverty
Georgetown Journal on Poverty Law & Policy, Summer, 2003, “Restrictive State Abortion Laws: Today's Most
Powerful Conscience Clause p. 349
Section II of this Note will show how a reduction of access to abortions for low income women can contribute to
negative public policy consequences, such as more unwanted births among low-income women, more children
living in poverty, and more children receiving public assistance. Part A will discuss the current state of abortion
restrictions in the country including federal laws and the range of limitations that states can place on a woman's
right to choose. Part B discusses studies that show how reduced access causes some of these unwanted public
policy consequences. Part C uses South Dakota, a state with particularly restrictive abortion laws, to
demonstrate this reduced access theory. In this Part, South Dakota's statistics are analyzed in comparison to
those of Connecticut and Vermont, two states that are supportive of reproductive freedom, to provide more
support that reduced abortion access can contribute to high child poverty rates and more unwanted births among
underserved women. Part D proposes that states with restrictive abortion laws effectively eliminate access for
underserved women, infringing on the autonomy of these women and violating principles of equality.

Poor women must spend income needed for basic life necessities to obtain abortions
Georgetown Journal on Poverty Law & Policy, Summer, 2003, “Restrictive State Abortion Laws: Today's Most
Powerful Conscience Clause p. 351
States' restrictive abortion laws have the strongest impact on underserved and low-income women. As the
population relying most on government assistance, individuals who rely on state assistance bear the brunt of
state-promoted efforts to reduce access to abortions. In many states, low-income women must struggle to obtain
abortions, often spending money designated for basic living expenses, and in many cases are forced to carry
unwanted pregnancies to term. Even if these women are able to eventually save enough money for the abortion,
it is often late enough in the pregnancy to cause danger to the health of the woman and cost twice the price.




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative


                                        Poverty Advantage
Lack of public funding for abortion increase the number of female-only households and poverty
Georgetown Journal on Poverty Law & Policy, Summer, 2003, “Restrictive State Abortion Laws: Today's Most
Powerful Conscience Clause p. 351
A number of national studies have shown that restrictive abortion laws often cause a reduction in access to
abortions, which result in unwanted public policy consequences. For instance, a 1998 study for Family Planning
Perspectives showed that the decline in geographic access to abortion providers in the 1980s accounted for a
small but significant 2% increase in the number of woman-headed families. The study concluded that state
restrictions on Medicaid funding for abortions caused more increases in births to single mothers among the
black population than in others. The study also concluded that welfare reform legislation and efforts to reduce
access to abortion may be working against each other, because the combination resulted in an increase of
woman-headed households and an increase in the need for public assistance. When access to abortion became
limited, these women of lesser means resorted to carrying the unintended and unwanted pregnancies to term.
The Journal of Health Economics conducted a study in 1999 that examined the effect of interruptions in public
funding for abortion in North Carolina. The study documented that in five instances between 1978 and 1993,
the state's abortion fund ran out before the end of the fiscal year, and on those five occasions, 37% of the
women that carried pregnancies to term would have had an abortion had the funds been available. This study
shows that prohibiting public funding of abortion truly limits the reproductive choice of low-income women A
1998 study conducted at the National Bureau of Economic Research found that restrictions on funding abortion
through Medicaid resulted in lower aggregate in-state abortions and higher incidence of abortions in neighboring
states. The study also found that low-income women are the group most affected by funding restrictions,
estimating that 22% of the abortions currently occurring among low-income women would not take place if
stronger restrictions were implemented.




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                                         Poverty Advantage
Abortion access for the poor lowers birth rates
Georgetown Journal on Poverty Law & Policy, Summer, 2003, “Restrictive State Abortion Laws: Today's Most
Powerful Conscience Clause p. 357-8
In 2000, the birth rate in the United States rose by 3% from 1999 data. It was the third straight increase,
following almost a decade decline between 1990 and 1997. In the past decade, the birth rate among teens (age
15-19) declined throughout the country. In 2000, the teen birth rate had declined by 23% since its record high in
1991. Birth rates increased for non-married women, in all age groups except teens, making up more than one
third of the births in 2000. The percentage of births to women receiving late or no prenatal care decreased from
6.1% in 1990 to 3.9% in 2000. The decrease in births with late or no prenatal care occurred across all races.
These national birth rate trends are useful to compare to the state-specific data detailed below. In South Dakota,
like much of the country, birth rates declined overall since 1990, but not among the most underserved
populations of women. Birth rates consistently rose among teens (a trend opposite to the rest of the country), all
minority women in the state, unmarried women, and women with less than twelve years of education. In 1998,
33% of the births were financed by Medicaid, implying that at least one-third of the births were to low-income
mothers. According to the figures in the above-referenced studies, perhaps 22% to 37% of these low-income
mothers might have chosen abortion over bringing their children into poverty, given the choice. Since 1990,
Vermont and Connecticut also experienced an overall decrease in birth rates. In contrast to South Dakota,
however, each of these states was able to lower birth rates among various populations of underserved women. In
addition to lower birth rates among its white population, Connecticut's birth rate decreased for teens, teens with
previous children, and women with less than twelve years of education. Vermont's birth rate declined for teens
with previous children and mothers with less than twelve years of education. As with all statistics, several
reasons can cause birth rates to fluctuate. But it should not be ignored, however, that since 1990, the two states
with a commitment to protect women's reproductive freedom were able to lower their birth rates among
underserved women. Most everyone would agree that reducing the number of children in poverty is a
worthwhile goal. While people of all means should have the choice to bear children and a poor child is as
valuable as a child born to financially-stable parents, this decrease in births to poor women serves the public
policy goal of allowing poor women a choice to not bring more children into poverty.




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative


                                   Human Rights Advantage
Recognition of abortion as a human right is critical for women to develop social, economic, and
political equality

Melanie Lee, Washington and Lee Race and Ethnic Ancestry Law Journal, Spring, 2000,
“Defining the Agenda: A New Struggle for African-American Women in the Fight for
Reproductive Self-Determination,” p. 87-8
African American women must work for reproductive self-determination's classification as a human right.
Without the ability to determine their reproductive destinies, women will never achieve an equal role in
social, economic and political life and will continue to be politically subordinate to and economically
dependent upon men. While feminist thought recognizes the importance of reproductive rights, the
feminist definition of reproductive rights is too narrow because it excludes the voices of women of color
and divides women in their efforts to achieve reproductive rights. Although the feminist movement
embraces reproductive rights, it fails to establish a broad reproductive rights agenda around which all women
can rally. This article proposes to remedy the under inclusive agenda by reclassifying reproductive self-
determination as a human right. Self-determination is the right of people to freely pursue their economic,
social and cultural development. A human right is neither "engendered" nor race conscience; it is an
individual's valid and justified claim on society. The effect of reclassifying reproductive self-determination
as a human right will ultimately provide a unified political platform for women in the struggle for reproductive
rights. In part II, this article traces the history of the mainstream reproductive rights movement and presents
non-minority women's perspective of this movement. Part III explores the impact of slavery on the reproductive
rights movement for African American women and argues that the historical horror of that repugnant institution
and modern racist motives shape African American women's perspective of reproductive rights. Part III also
examines how the evolution of contraceptives has disproportionately and adversely affected African American
women. Part IV advocates for racial equality in the area of reproductive rights because the current movement is
unable to address the needs of African American women. By shaping reproductive rights around abortion and
contraception, the current movement ignores the history and unique experience of African American women.
Classifying reproductive self-determination as a human right will ensure that the reproductive rights of
African American women are protected.




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                                     Human Rights Advantage
Turn – Focusing only on abortion access undermines reproductive rights for African American
women
Melanie Lee, Washington and Lee Race and Ethnic Ancestry Law Journal, Spring, 2000, “Defining the Agenda:
A New Struggle for African-American Women in the Fight for Reproductive Self-Determination,” p. 95-6
Feminists have defined the fight for reproductive freedom around access to contraception and the right to a safe
and legal abortion. This narrow definition, ignores general health issues that are important to African American
women. In general, most minority women view the abortion rights movement to be "white woman-led and
white woman-defined. Consequently, the 'colored' reproductive rights movement has fought to expand the
feminist movement's definition of reproductive rights and to include women of color in the mainstream
reproductive rights movement. Critical race feminist scholars have long petitioned for a broader definition of
reproductive freedom that includes the ability of women to bear children, to conceive, to carry a fetus, to have
an abortion, to deliver a baby, and to care for a child. Similarly, African American women involved in
reproductive health issues propose that reproductive rights for African American women must encompass a
broad definition of reproductive health issues, rather than a narrow focus on access to abortion services. They
contend that providing all women with reproductive freedom necessitates addressing concerns about
sterilization, medical treatment, and access to fertilization, to access prenatal care, and access to per-natal care.
This broader definition called upon by many scholars demands that race and class be considerations in the fight
for reproductive rights. The call for a broader definition of reproductive rights implicates a wider scope of
issues. Moreover, this new definition will require white women's organizations to fight for causes that do not
directly affect affluent white women. While understanding how reproductive rights affect all women are
essential to a unifying movement, a movement is only unified when all parties find a common thread or
platform. Therefore, the definition of reproductive rights must change before the reproductive rights movement
can address the needs of poor women and women of color. A better agenda for African American women in the
struggle for reproductive rights is to fight for reproductive self-determination to be classified as a human right.
Several reasons exist for classifying reproductive self-determination as a human right. First, if African
American women work for a broader definition of reproductive rights within the current feminist structure, then
they are jumping on a sinking ship. The reproductive rights movement is "sinking" because its abortion right
foundation is endanger of being lost. It is unlikely that a reproductive rights movement based on the abortion
controversy will succeed in unifying the movement. Second, even if women of color are successful at
broadening the definition of reproductive rights within feminism, reproductive harms that result solely from
racism and classism will go unaddressed.




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative


                                   Human Rights Advantage
Turn – The Reproductive rights movement ignores racism and classism
Melanie Lee, Washington and Lee Race and Ethnic Ancestry Law Journal, Spring, 2000, “Defining the Agenda:
A New Struggle for African-American Women in the Fight for Reproductive Self-Determination,” p. 98
In additon, the current structure of the reproductive rights movement ignores the societial harms of racism and
classism that affect reproductive rights. However, merely changing the definition of reproductive rights within
the existing doctrine of feminism will not change society or the current patricarical power stucture. Therefore,
any new approach must account for the feminist movement's limited ability to change wider society. Currently,
the reproductive rights movement only reacts when abortion or contraceptive rights are threaten. In effect, by
ignoring racist and classist attacks, the mainstream reproductive rights movement devalues the reproductive
rights of poor and African American women. A human rights agenda would elminate racial divisions within the
feminist movement.




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                                    Human Rights Advantage
Turn – Classifying reproductive rights as a human right solve classism and racism concerns
Melanie Lee, Washington and Lee Race and Ethnic Ancestry Law Journal, Spring, 2000, “Defining the Agenda:
A New Struggle for African-American Women in the Fight for Reproductive Self-Determination,” p. 99-100
The feminist movement should classify reproductive self-determination as a human right. This classification will
benefit women regardless of race and will establish an agenda around which all women can rally. Furthermore, a
unified reproductive rights movement will increase the political power and voting strength for women's issues.
To diversify the mainstream movement, African American women must ensure that their voices are not diluted.
Thus, coalition building is an invaluable tool for African American women because it promotes a universal
agenda without compromising distinct groups individualism. Although the number of women of color joining
mainstream pro-choice organizations has grown in the past decade, most women of color will continue to join
their own political formations. African American women traditionally believe in inter-racial coalitions, not inter-
racial organizations. A coalition working for a human rights agenda would aid all women in pursing
reproductive rights. Why A Human Rights Agenda? Human rights are rights of individuals in society.
Classifiying reproductive self-determination as a human right would guarantee the basic conditions necessary
for reproductive autonomy. A human right does not require the assertion that the benefits of reproductive
freedom are desirable or necessary. The term "right" implies that it is the duty of society to provide benefits or
respect the immunity of the right. Under a human rights theory, society must respect the reproductive autonomy
and liberty of women as a matter of entitlement. The theory of human rights is important because of the
rhetorical power it would give a political strategy for the reproductive rights movement. By reclassifying
reproductive self-determination, the reproductive rights movement will gain a more effective political strategy to
effectuate change concerning the treatment of reproductive rights. A strong political strategy is important
because in the area of reproductive rights the courts often follow the social and political arenas. Even if a
constitutional argument exists, the concept must first gain political acceptance. Therefore, the reproductive
rights movement must adopt a two fold approach. First, the movement must move internally for a stronger
political strategy. Second, the movement must advocate for a constitutional remedy.




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative



                     Public Funding Protects Women’s Rights
FAILURE TO PROVIDE PUBLIC FUNDING FOR ABORTION CREATES DISTRIBUTIVE INEQUALITY
(equal protection MAY increase publicly funding abortion, the the non-underlined part of this card says the
court may not come to that conclusion)

Anita Allen, Law professor, Georgetown, STANFORD LAW REVIEW, November 2001, “Tribe’s Judicious
Feminism,” p. 200-1

Tribe takes particular exception to the abortion funding "compromise," which, with Supreme Court approval,
restricts public support for poor women's abortions. Because the Court in Roe focused on the "negative" concept
of privacy, rather than the "positive" concept of equal protection, Tribe deems it "unsurprising that the Court
later held that government has no constitutional duty to help women exercise [the right to obtain an abortion]." It
is not clear, however, that the privacy rationale of Roe is the true culprit. Surely the Court could read equal
protection, no less than privacy, as merely a "negative" right of noninterference rather than a positive right to
government assistance. Tribe nonetheless correctly argues that denial of public funding for abortions in states
where public assistance is available for childbirth but not for abortion creates a situation of inequality respecting
indigent and affluent women and their families. This situation of distributive inequity, "is really no compromise
at all and seems particularly immoral." Reproductive freedom is too important to be allowed to depend on so
random a characteristic as the extent of a woman's wealth.


FUNDING SHOULD BE PROVIDED FOR PUBLIC ABORTION SERVICES

Center for Reproductive Rights, SAFE ABORTION: A PUBLIC HEALTH IMPERATIVE, September
2005, p. http://www.crlp.org/pdf/pub_bp_tk_safe_abortion.pdf

The benefits of ensuring access to safe abortion—to women, children, and society —far outweigh the
minimal costs. In some low- and middle-income countries, up to 50% of hospital budgets are used
to treat complications of unsafe abortion.20 The treatment of abortion complications uses a
disproportionate share of resources, including hospital beds, blood supply, antibiotics, medication,
operation rooms and services, anesthesia, and medical specialists. 21 Making abortion more
accessible does not increase demand for the procedure.22 For example, Barbados, Canada, Tunisia,
and Turkey all liberalized their laws to increase access to legal abortion, but they did not experience
an increase in abortion rates.23 The Netherlands, with a non-restrictive abortion law, widely accessible
contraceptives, and free abortion services, has one of the lowest annual abortion rates in the world.24
Investing in abortion safety brings long-term benefits for the next generation. Most women who seek
abortions already have children.25 Young children who lose their mothers to unsafe abortion are likely
to have serious health problems of their own. When a mother dies, surviving children tend to receive
less health care and education than children with both parents and are much more likely to die than
children who live with both parents.26




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative

    Answers to: “Public Health Exemptions for Publicly Funded
                         Abortion Now”
THIS IGNORES THREATS TO THE MENTAL HEALTH OF THE WOMAN

John SwomleyM graduate of Dickinson CollegeM Ph.D. in Political Science from the University of Colorado,
ST. LOUIS UNIVERSITY PUBLIC LAW REVIEW, 1993, p. 419


There is violence also in the idea embodied in some legislation that a poor woman may have a publicly funded
abortion only if the pregnancy endangers her life. This means that any damage to a woman's health short of
death is "acceptable" violence; suffering brought by exacerbation of existing health problems such as diabetes or
heart disease and the shortening of her life thereby are "acceptable" violence. The imperiling of a woman's
mental health is also a type of violence.




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative


    Answers to: “Tax Payers Shouldn’t Have to Pay For Services
                       They Disagree With”

INDIVIDUALS HAVE NO RIGHT TO WITHOLD FUNDS FOR PROGRAMS THEY DISAGREE WITH

Laurence Tribe, law professor, Harvard, ABORTION: THE CLASH OF ABSOLUTES, 1992, p. 206

To begin with, it is odd to suggest that any individual has a "right" not to pay for those governmental programs
with which he or she morally disagrees. Recall former Senator Birch Bayh's comparison with the Vietnam War:
We certainly had a right, as a matter of collective will, to stop that war altogether, but while the war went on, no
citizen had a right on moral grounds to keep his or her tax dollars from being used in its prosecution. Our system
of government could hardly function if the law were otherwise. Besides, any supposed right not to help pay for
abortions would in a sense be frustrated so long as any public money contributes to that end. For public money
spent on abortions in, say, California or New York is public money not available to meet the other needs of
those states, some of which will then be met through federal taxes collected from everyone, including taxpayers
in, say, Missouri. And anybody who believes in an imagined right to withhold his tax support from abortion
could have no quarrel with a possible system in which the dollars spent on abortion would come only from
individuals who affirmatively agreed to allow their taxes to be used in this manner, perhaps by a tax return
checkoff like that for presidential campaign funds. Thus, the withholding of all public support is either largely
pointless or a form of overkill from the perspective of any supposed right of objecting taxpayers. i




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative

                     Banning Abortion Will Not Reduce Sex


OUTLAWING ABORTION WILL NOT REDUCE SEX

Andrew Kopplemen, University of Chicago, M.A., Political Science, Yale University,; J.D., Yale
University, 1989; Ph.D. expected, Political Science, Yale University, “Legal Theory, Forced Labor: A
Thirteenth Amendment Defense of Abortion,” NORTHWESTERN UNIVERITY LAW REVIEW,
Winter 1990, p. 509-10

The stress, however, is crucial. This may be illustrated by contrasting my argument with the fourteenth
amendment argument made by Calabresi, who concludes that the abortion controversy is a difficult
one because "while fundamental values are at stake on both sides, the values on neither side are
presented in their most dramatic, incontrovertible forms." I suspect that one of the reasons he's as
troubled as he is -- he carefully takes no position on the correctness of Roe -- is because he understates
the equality value that abortion vindicates. He thinks that "the right at stake is the right of women to
participate equally in sex without bearing burdens not put on men." But does he imagine that if
abortion is illegal, women will stop having sex? Will married women? One can imagine an
antiabortion legal regime in which, unlike the United States before Roe, energetic law enforcement
would make abortions genuinely hard to get, for the middle class as well as for the poor. It is harder to
imagine a world in which women simply do not have sex unless they plan to become pregnant.
Outlawing abortion won't bring that world into being; what it will do is systematically force women to
be mothers.




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             Answers to: “Abortion Encourages Promiscuity”


NOPE – 29% OF ABORTIONS PERFORMED ON MARRIED WOMEN

Andrew Kopplemen, University of Chicago, M.A., Political Science, Yale University,; J.D., Yale University,
1989; Ph.D. expected, Political Science, Yale University, “Legal Theory, Forced Labor: A Thirteenth
Amendment Defense of Abortion,” NORTHWESTERN UNIVERITY LAW REVIEW, Winter 1990,

n130 Michael Levin provides a more lurid example of this kind of mistake when he declares that
abortion rights imply "the universal acceptance of all forms of sexual behavior." M. LEVIN,
FEMINISM AND FREEDOM 286 (1987). He apparently supposes that if people follow only
traditional forms of sexual behavior, the demand for abortion will disappear. But in 1973, the year Roe
was decided, 29% of legal abortions were performed on married women. That proportion has been
steadily falling, but was still as high as 18.7% in 1983. In actual numbers, abortions for married
women increased from 216,000 in 1973 to 295,000 in 1983, reaching a peak of 331,000 in 1978.
Tietze, Forrest & Henshaw, United States of America, in INTERNATIONAL HANDBOOK ON
ABORTION 473, 488 (P. Sachdev ed. 1988).




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                  No Public Funding Means Back Alley Abortions
Lack of public funding for abortion leads to underground abortions

Janessa L. Bernstein, law student, Brooklyn Law Review, Summer, 2008, “The Underground Railroad to
Reproductive Freedom: RESTRICTIVE ABORTION LAWS AND THE RESULTING BACKLASH,” p. 351

Sheila's case is typical. Denial of Medicaid funding curtails access to abortion for low-income women and may
completely bar them from the power to choose abortion. Worse, it propels them to even more desperate
"choices": facing the risk of an inexpensive illegal abortion or the danger of trying to self-abort. Other
alternatives include attempting to raise funds for an abortion, going without food or other necessities, or putting
one's health at risk by carrying the unwanted or unsafe pregnancy to term. When the practical effects of
denying federal funding are considered, the true hardships and health risks for women like Sheila become
apparent.

Public funding restrictions on abortion force women to delay getting abortions, threatening their
health

Janessa L. Bernstein, law student, Brooklyn Law Review, Summer, 2008, “The Underground Railroad to
Reproductive Freedom: RESTRICTIVE ABORTION LAWS AND THE RESULTING BACKLASH,” p. 351
Part I of this Note examines the practical effects of the Hyde Amendment's denial of abortion funding, with an
emphasis on how it endangers women's lives, restricts reproductive health care choices for low-income women,
and disproportionately harms women from minority groups. This Note argues that restrictions on access to
abortion, such as funding bans, force women to delay securing abortion services, thereby endangering their
physical and mental health, and increasing the cost and hardship of abortion. Furthermore, this Note argues that
when low-income women are denied abortion funding, the constitutional right to choose abortion becomes mere
rhetoric.

Delaying abortion increases the risk of women getting an illegal abortions

Janessa L. Bernstein, law student, Brooklyn Law Review, Summer, 2008, “The Underground Railroad to
Reproductive Freedom: RESTRICTIVE ABORTION LAWS AND THE RESULTING BACKLASH,” p. 362
A delay in obtaining an abortion may also force a woman to carry her pregnancy to term if it causes her to
postpone her abortion until it becomes too advanced to get a legal abortion. Moreover, forced pregnancy
imposes undue physical and psychological burdens on women and their families. When abortion funding is
unavailable or is delayed too long, some women may "in desperation, undergo unsafe illegal or self-induced
abortions, or even attempt suicide." Thus, the detrimental psychological, medical and financial effects of
denying Medicaid funding for abortion services for low-income women multiply.




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                             Courts/Equal Protection Solvency
A modified equal protection analysis proves that indigent women have the right to a publicly-
funded abortion
Janessa L. Bernstein, law student, Brooklyn Law Review, Summer, 2008, “The Underground Railroad to
Reproductive Freedom: RESTRICTIVE ABORTION LAWS AND THE RESULTING BACKLASH,” p. 367-8
In 1980, in Harris v. McRae, the Supreme Court used a traditional equal protection analysis to uphold the Hyde
Amendment. That version of the Hyde Amendment denied Medicaid funding for abortion, except in cases
where a woman's life was endangered or the pregnancy was a result of a reported rape or incest. As a result,
Congress has been allowed to renew a similar version of the Hyde Amendment every year since its enactment.
In general, when the Supreme Court has considered the issue of access to abortion it has largely ignored the
practical effects of these restrictions and has failed to offer genuine equal protection guarantees to women. The
Court has based its decisions concerning reproductive rights on the doctrine of privacy. Reproductive health
rights, however, should be more heavily scrutinized to ensure equal protection guarantees. The Court in Harris
failed to properly scrutinize the legislation by refusing to adequately use equal protection doctrine to protect
women's rights. The Supreme Court's equal protection analysis mistakenly insists upon applying an
intermediate level of scrutiny to all gender classifications. The Court should apply a modified version of the
equal protection doctrine to scrutinize more closely legislation that negatively affects women as a class--
particularly in the area of reproductive health laws. The modified equal protection analysis discussed below
could appropriately be applied to the question of abortion funding since these restrictions affect all women, and
only women, as a class. This modified analysis acknowledges that women are a suspect class. Traditional
equal protection analysis emphasizes the intent of the legislation more than its practical impact. In contrast, a
revised equal protection analysis focuses on the practical effects of such legislation and concludes that bans on
abortion funding are violative of equal protection guarantees. If the equal protection guarantee is going to offer
any legitimate protection to women, the doctrine must be changed to reflect the realities of gender
discrimination.




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                              Courts/Equal Protection Solvency
A “Revised Purposeful” test should be adopted by the Court and used to strike-down laws that
prohibit public funding for abortions
Janessa L. Bernstein, law student, Brooklyn Law Review, Summer, 2008, “The Underground Railroad to
Reproductive Freedom: RESTRICTIVE ABORTION LAWS AND THE RESULTING BACKLASH,” p. 370-4

A. Traditional Equal Protection Doctrine
 The traditional equal protection doctrine guarantees that the government will treat all similar individuals in a
similar fashion. Although the government may classify individuals or "draw lines" when creating and
implementing certain laws, such groupings cannot be arbitrary or based upon impermissible criteria. Once the
court determines that a classification has been made, it applies one of three "tiers," or levels of scrutiny to test
whether the classification is proper. These levels of scrutiny are: the rational relation standard, under which the
legislative means must be rationally related to the legislative goal; intermediate or heightened scrutiny, under
which the government must show that the legislation is closely related to an important objective; and, strict
scrutiny, where the government must show a compelling reason for the legislative classification. The Court's use
of three different levels of scrutiny demonstrates that equal protection guarantees do not forbid classifications of
every kind. The purpose of the equal protection analysis is to "measure the basic validity of the legislative
classification." Some classifications--such as, race, national origin or alienage--will require extraordinary
justification for the legislation and the Court will strike any legislation created with the purpose of
discriminating against such a suspect class. But when a non-suspect classification is reasonably based, the
court will not be concerned if a law unevenly affects a particular group. The Court decides which level of
scrutiny it will apply based upon either the status of the group that the legislation classifies or the right it affects.
The Supreme Court has held that only the groupings or classifications that are "inherently suspect," specifically
those based upon race, alienage, or national origin, are entitled to strict scrutiny. Legislation that classifies
individuals by race, alienage or national origin will be subject to the highest level of scrutiny; that is, the Court
will be most skeptical of whether laws in this category satisfy equal protection guarantees. When applying the
strict scrutiny test, the Court requires the government to show that its challenged legislation is narrowly tailored
to a "compelling" or "overriding" end that justifies treatment of the protected individuals as a class. In practice,
when the Court employs strict scrutiny the legislation has fairly little chance of surviving. By contrast, when
the Court employs the " lowest tier' of scrutiny" --the rational relation test--it will not invalidate a law unless it is
" patently arbitrary' and bears no rational relationship to a legitimate governmental interest." Thus, if the Court
applies a rational relation test, there is little chance it will invalidate the legislation. When scrutinizing
classification by gender, the Court has wavered but ultimately has resisted treating gender as a suspect class.
The Court has designed a standard of review of gender classifications that falls between the strict scrutiny and
rational relation standards of review. This "intermediate" standard of review of gender classifications requires
the government to show "at least that the classification serves important governmental objectives and that the
discriminatory means employed' are substantially related to the achievement of those objectives.' This
intermediate standard of scrutiny is
a non-solution. Intermediate scrutiny has not provided a clear and consistent standard and has failed to
adequately protect women from gender discrimination. Under the Court's analysis, legislation may violate
equal protection guarantees even if discriminatory classifications are not apparent on the face of the legislation.
If the legislation does not explicitly classify individuals in a discriminatory manner, the Court attempts to
discern whether the intent in implementing the legislation was to discriminate. Specifically, when a law is
facially neutral--showing no suspect classification in its plain language--it violates equal protection guarantees
only if it was enacted for a discriminatory purpose or is applied in a discriminatory manner. In contrast, when
legislation does plainly create a suspect classification, then proof of a disparate impact is not necessary and the
Court merely determines whether the legislative classification, is appropriate. Since legislatures rarely, if ever,
disclose an intent to classify in a suspect manner, under current equal protection doctrine it is far easier to
challenge facially neutral legislation by demonstrating discriminatory administration of the law than to prove a
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legislative intent to discriminate. B. Applying Strict Scrutiny to Gender Classifications If the Court is to
provide legitimate equal protection for women through the current "tiered" system, it must acknowl edge first
that gender is a suspect classification and second, that reproductive health legislation affects women as a class.
The Court should recognize gender classifications as suspect because of a history of disparate legal treatment of
women. "Suspect class" status is granted to groups that are considered part of a "discrete and insular" minority.
The Court has allowed only race, national origin and alienage into this protected category, and has denied that
women as a class share the characteristics of these minority groups; characteristics that would entitle them to
additional legal protection. Historically, women of all races have been in an inferior position to men socially,
economically and legally. In the area of employment, women continue to earn less than men for comparable or
identical work. Women also face many forms of discrimination in the workplace, including sexual harassment,
limited opportunities for advancement to upper-level positions, pregnancy discrimination, and assumptions
about women with children. Although women have gained access to the workplace and other traditionally male
institutions, they are still forced to conform with the "male" prototypes, while simultaneously maintaining
responsibility for the "female" realm of home and family. This economic discrimination has denied women the
opportunity to become economically selfsufficient, thereby contributing to the "feminization of poverty" in the
United States. Women have historically been denied full protection by the legislative and legal systems. Until
fairly recently many crimes against women--including raping or assaulting one's wife--were sanctioned by the
legal system or were considered "private" or "domestic" issues in which the legal system would not interfere.
Women continue to exercise limited political power--despite such proclamations as "the Year of the Woman"
during the 1992 elections. Women of color have faced additional barriers to equality and, in many ways, these
additional concerns have been overlooked even by the feminist movement. Although gender discrimination has
been welldocumented by the women's movement, the courts and legislatures historically have resisted legal
remedies, requiring hardfought battles for even incremental changes. In its 1973 decision, Frontiero v.
Richardson, the Supreme Court correctly recognized the practical reality of women's "minority" status: "It is
true, of course, that when viewed in the abstract, women do not constitute a small and powerless minority.
Nevertheless, in part because of past discrimination, women are vastly under-represented in this Nation's
decisionmaking councils." The Fronteiro Court noted that gender, like race and national origin, is "an
immutable characteristic determined solely by the accident of birth," and as a result, designated women a
suspect class. The plurality's reasoning in Frontiero clearly conveys that a strict scrutiny standard for gender
classifications is not only possible, but is logical and desirable. Discrimination because of a person's gender, the
Court noted, would violate "the basic concept of our system that legal burdens should bear some relationship to
individual responsibility." Because the Court found that characterizations by gender "frequently bear$ ( $ ) no
relation to ability to perform or contribute to society," it concluded that classifications based upon gender, like
"classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be
subjected to strict judicial scrutiny." Yet, three years after it annunciated this standard, the Court reverted to an
intermediate scrutiny test for gender classifications and, since that time, has adhered to this inter mediate, and
mediocre, level of equal protection for women. The Court has not only failed to classify gender
characterizations as suspect, but also has denied that legislation concerning pregnancy and abortion affects
women as a class. Worse yet, in a number of decisions since it retreated from applying strict scrutiny, the Court
has used biological differences as a rationale for employing an intermediate level of scrutiny. In doing so, the
Court often has failed to distinguish between genuine biological differences and biological rationales
constructed to justify social stereotypes that oppress women. Indeed, the Court generally has recognized
biological differences only to the detriment of women. For example, in Geduldig v. Aiello, a pregnancy
discrimination case, the Court rejected the notion of pregnancy as a gender-related condition and ruled that
regulations affecting pregnant women did not affect women as a class. Seven years later, however, in In re
Michael M., the Court recognized the biological differences between men and women in order to justify
upholding a discriminatory statutory rape law. The law allowed men to consent to sexual intercourse at a
younger age than women. The Court acknowledged that women are affected by pregnancy in ways men are not.
This selective acknowledgment of biological differences to achieve results which perpetuate gender stereotypes
demonstrates the need for strict scrutiny. Particularly in the area of biological differences, it is important for the
Court to recognize women's "minority" status and the need for a higher level of scrutiny to guarantee equal
protection to women. The Court must fully acknowledge that only women become pregnant and that women
bear a disproportionate burden in childbearing. Therefore, the Court must recognize that regulation of
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Planet Debate 2009 – Medicaid Abortion Funding Affirmative
reproductive health affects all women as a class, regardless of whether they are seeking abortion services or
abortion funding. A denial of access to abortion services for any woman serves to perpetuate gender stereotypes
of women as "breeders" whose primary function is to bear and rear children. Such gender stereotypes,
perpetuated by legislation regulating abortion, negatively affect all women regardless of income level or
whether they are capable of conceiving children. Restrictions on access to abortion limit women's ability to
control both their biological condition and their position in society. Women as a class have been excluded from
the workforce because of their very capacity to become pregnant, irrespective of whether an individual woman
intends to become pregnant. The very possibility of becoming unexpectedly pregnant affects women's
capacity to enjoy sexuality and threatens their health and their ability to participate equally in all aspects of life.
Specific regulations and restrictions on abortion reinforce certain gender-based stereotypes. For instance,
requiring a twenty-four hour waiting period before a woman can obtain an abortion implies that women as a
group are incapable of independently making a decision without being told to "go home and sleep on it."
Requiring a woman to consult with, and often to obtain the permission of her husband before obtaining an
abortion--so-called "spousal notification" laws--implies that women and the fetuses they carry are the property
of their husbands since actions affecting either must be subject to his notice and, implicitly, his approval. Such
laws also ignore the reality of abusive marriages, often with extremely damaging consequences for women.
Similarly, parental notification or parental consent laws, even those which include a judicialbypass option, are
based on the myth of the "Father-KnowsBest" model of parenting and often ignore the reality of absent or
abusive parents, and an insensitive and patriarchial judiciary. Until legislation based on gender stereotypes is
eradicated, even women who are not directly subject to immediate regulation will feel its effects. Although the
Court at one time considered gender classifications suspect, it has shown a greater reluctance to recognize the
social implications of abortion restrictions and their discriminatory purpose. Once the Court acknowledges that
gender classifications should be granted suspect-class status, it must examine more carefully such classifications
to determine if the purpose of the legislation is to discriminate against women.
 C. Application of a Revised Purposeful Requirement
     Under a traditional equal protection model, a challenge to the ban on federal funding of abortion faces two
doctrinal obstacles. These obstacles are a result of earlier Supreme Court decisions that tolerated sex
discrimination. First, as discussed earlier, the Court has rejected the notion that pregnancy is a sex-based
characteristic; and, second, the required showing of a discriminatory legislative intent is extremely difficult to
surmount. Equal protection standards should concentrate on the situation of those who are discriminated
against, rather than reviewing the intentions of the discriminator. A more practical purposeful requirement
would focus on the impact of the legislation at issue, not on congressional intent. A revised analysis simply
would ask whether the state's interest in protecting the fetus is being promoted in a manner that directly harms
the welfare of women as a class. The court could therefore "examine what the state is doing to women, and not
simply why it does it." Currently, the Court refuses to acknowledge that legislation restricting access to
abortion affects women as a class, and therefore is not facially neutral and not subject to a showing of
purposefulness. Consequently, the requirement that a purposeful intent to discriminate must be shown for a
"facially neutral" statute should be revised to reflect the reality of the subtle sexism in the law. The
characteristics of abortion legislation demonstrate the need and opportunity for a revised form of equal
protection analysis. The Hyde Amendment on its face applies only to that group of individuals who can become
pregnant: women. To illustrate this point, suppose that the legislature declared that anyone who developed
testicular cancer would not be covered by Medicaid for particular treatments--those disapproved by the
legislature. The denial of cancer treatment funding would not immediately impact all men, only those with
cancer, or with the possibility of developing cancer. Certainly some men could minimize their chances of
developing cancer through a healthy lifestyle and good luck. But since there is no totally reliable method for
either staying healthy enough to avoid cancer or wealthy enough to avoid the need for Medicaid funding, this
legislation would impact all men as a group. Therefore, this legislation would not be gender neutral on its face.
The biological reality is that, for obvious reasons, only men can develop cancer of the testes. Similarly, only
women can become pregnant. Even if the Court insists that the fact that only women become pregnant is
insufficient to declare legislation facially discriminatory, the Court cannot deny that in practice such legislation
primarily affects women. Without elaborate statistical surveying, it is obvious that 100% of the people directly
affected by the Hyde Amendment will be women because only women have abortions. Although men may be
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Planet Debate 2009 – Medicaid Abortion Funding Affirmative
affected secondarily by the Hyde Amendment's denial of abortion funding, this legislation is targeted solely at
pregnant women. Demonstrating that the legislation has a greater effect on a certain group of people, however,
is not considered conclusive proof that the legislation violates traditional equal protection guarantees. Although
statistical evidence of the effects of legislation may indicate discriminatory application of a law, the Court will
rarely consider such evidence alone to be absolute proof of a violation of equal protection. Instead, the Court
has minimized the importance of the discriminatory impact of pregnancy legislation. The Court has noted that
when the discriminatory impact is "essentially an unavoidable consequence of a legislative policy that has in
itself always been deemed to be legitimate, and when . . . the statutory history and all of the available evidence
affirmatively demonstrate the opposite, the inference simply fails to ripen into proof." Such an argument is
completely circular. The Court is using an equal protection analysis to determine whether legislation serves a
purpose so legitimate that its discriminatory impact may be ignored. Thus, the Court validates legislation by
saying it has a legitimate purpose when this is exactly what the Court is trying to determine by its analysis. The
Court, however, does concede that in instances where "the statistical proof is overwhelming, it may be sufficient
to establish a prima facie case." The effects of regulation of pregnancy and abortion are almost exclusively felt
by women. Thus, even if the Court denies that pregnancy and abortion are themselves gender-related
conditions, it cannot deny that the primary effects of legislation regulating pregnancy are overwhelmingly
experienced by women. Even if it acknowledges the discriminatory effects of challenged legislation, the Court
may still require a showing of a "discriminatory purpose." Yet, the traditional equal protection analysis of
discriminatory purpose does not consider the gender stereotypes that influence some Congressional decisions
denying abortion funding. The Court's distinction that legislation must be passed "because of" rather than "in
spite of" a discriminatory purpose is tenuous. Determining congressional intent in reproductive health law is an
arduous task, particularly since legislative history is largely indiscernible and often contains barely visible, but
significant, gender stereotypes about women and motherhood. The danger exists that gender stereotypes are so
ingrained that legislators do not recognize that such assumptions form the basis of a policy. For instance, a
legislature may consider compelled pregnancy a "reasonable" way to preserve fetal life but this belief may be
based on archaic or stereotypic assumptions about women and pregnancy. The traditional purposeful analysis
is misguided in its heavy reliance on legislative intent, which may be impossible to determine and once
determined can contain subtle gender stereotypes harmful to women. In addition, legislation that restricts
access to abortion is unique in that it is directed at women as a class, has the dramatic effect of forced
pregnancy, and historically has significantly oppressed women. Although the inevitable outcome of the Hyde
Amendment is to restrict or deny abortion access for women, the traditional equal protection analysis does not
consider this demonstrative of congressional intent. The Court has rejected the inevitable outcome of legislation
as conclusive proof of intentional discrimination by Congress. It has required a showing that the legislative
body has "selected or reaffirmed a particular course of action at least in part because of,' not merely in spite of,'
its adverse effects upon an identifiable group." Yet, if the purpose of equal protection is to guarantee equal
protection for all individuals, then the intent of those legislators enacting the law should be less important than
the law's impact. Traditional equal protection doctrine focuses on "the judgment and justifications of the state
actors deploying public power, rather than the impact of a particular exercise of power on the citizens subject to
it." Because gender discrimination often is very subtle, and may be based on a combination of biological facts
and sexual stereotyping, searching for "purposeful" discrimination frequently will be futile. If equal protection
guarantees exist to facilitate a truly equal society, then scrutiny must focus on the impact of laws that oppress
women A revised equal protection model, which considers gender as a suspect class and de-emphasizes the
discriminatory legislative intent requirement, offers greater protection from legislation that oppress women. The
Court should concentrate not on whether a legislative goal to classify by gender is substantially related to
important governmental ends, but instead should ask: "Has the challenged action harmed women in ways that
enforce, perpetuate, or aggravate their subordinate social status?" This revised analysis would focus on the
practical effects of the challenged legislation rather than the relatively minor and uncertain question of whether
legislators were aware of these effects when they passed the legislation. Such a standard would enable a more
substantial challenge to gender discrimination, while maintaining the substance of the traditional equal
protection analysis Under traditional equal protection analysis, once the Court determines that the legislation
enforces harmful gender stereotypes, the burden shifts to the state. The Court should develop an equal protection
standard under which a law could discriminate on the basis of gender only if a compelling state interest was
shown. Such a standard would allow courts to require a non-discriminatory alternative when a law negatively
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Planet Debate 2009 – Medicaid Abortion Funding Affirmative
affected women. Additionally, at the point of determining whether a state interest was in fact compelling, the
Court again would consider the "broader substantive concerns of sex equality, including the oppression of
women and the constraints of traditional sex roles." Under this revised approach to equal protection, the Court
would be required to perform a more comprehensive analysis, balancing the legislative goals against the burdens
the law, in practice, places on women as a class. A law would be upheld only if it had "no significant impact in
perpetuating either the oppression of women or culturally imposed sex-role constraints on individual freedom,"
or if the government had a compelling interest in what the law sought to regulate. Such a standard of scrutiny for
sex-based classifications places the burden on the state to justify the law and ensures that important
governmental reasons exist to justify disparate treatment of men and women.
    D. Application of a New Model of Equal Protection Guarantees
     The proposed revised standard would effectively strike abortion restrictions such as the Hyde Amendment.
Under this standard, the Court would be required to reconsider whether the state's interest in the fetus is
compelling enough to encourage forced pregnancy through a denial of abortion funding. Unlike the Court's
deferential rational relation standard applied to the Hyde Amendment in Harris v. McRae, a revised standard of
equal protection genuinely would consider the gender inequality perpetuated by a denial of access to abortion
through funding bans. An application of the revised standard to the facts in Harris demonstrates how this
standard is useful for genuinely facilitating equal protection for women.
     In 1980, when abortion rights, as defined by Roe v. Wade, were at their strongest, the Supreme Court in
Harris upheld the Hyde Amendment and declared that the federal government was not required to provide
abortion funding. The Court's analysis did not consider gender a suspect class. Instead, Harris applied a
traditional equal protection analysis, rejected the notion that the Hyde Amendment burdened a "fundamental
right" to abortion access, and declined to consider economic classifications suspect. Accordingly, the
 Court upheld the Hyde Amendment on the ground that the legislation's means were "rationally related" to its
purported goal. The first step in applying either the traditional or revised equal protection analysis is to
scrutinize the governmental interest. The only governmental interest discussed in Harris was a "legitimate
interest in protecting the potential life of the fetus." But this interest was not legitimate. First, the government's
asserted interest in protecting the fetus was not the true purpose of the legislation. Second, if the legislation was
designed to protect the "potential life of the fetus" this is not a legitimate state interest--let alone a compelling
one--under the Court's established abortion-rights law. Finally, even if the state does have a legitimate interest in
protecting a fetus, the denial of funding does not provide even a rational means--and certainly not a narrowly
tailored means--of reaching this goal.
     The Hyde Amendment's purported goal of protecting the fetus is suspect. More likely, the goal of the Hyde
Amendment is simply to decrease the number of abortions indirectly by denying funding to women who may
have no alternative but to carry a pregnancy to term. Anti-abortion legislation has been most successful when
it has focused on low-income women whose financial pressures make them the most vulnerable to restricted
abortion access. Justice Ruth Bader Ginsburg has recognized that the "hostile reaction to Roe has trained largely
on" the low-income woman who "lacks resources to finance privately implementation of her personal choice to
terminate her pregnancy." For example, during the Reagan and Bush Administrations, a range of funding
restrictions deliberately asserted anti-abortion policies on domestic and international recipients of reproductive
health care funds. Several of these restrictions have since been repealed by the Clinton Administration.
Furthermore, even if the government's goal genuinely is to protect fetal life, this is unconstitutional. Although
the Court has wavered in its support of abortion rights, at no point has the Court proclaimed that the state has the
kind of general interest in the potential life of the fetus that the Harris majority relied on for finding a legitimate
state interest. The government may not legitimately have an interest in a pre-viable fetus. Finally, if the
government's goal were deemed sufficiently compelling, this goal could be achieved by methods far less
burdensome than forced pregnancy. Restrictions in funding are a cruel and inappropriate means of inflicting an
anti-abortion agenda on low-income women. If the government is genuinely concerned about protecting the
fetuses of low-income women, it could do so through far more rational and humane legislation. The
government could protect unwanted fetuses by deterring unplanned pregnancies or by concentrating its efforts
on programs that foster the best pre-natal care. More positive measures to prevent unwanted pregnancies could
include providing low-cost or free contraceptives and sex education. This approach of "refocusing the $ (public
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Planet Debate 2009 – Medicaid Abortion Funding Affirmative
health$ ) system toward prevention" has been advocated by members of the Clinton Administration. In
addition, the government should focus on methods of decreasing the number of women who choose abortion out
of economic necessity. To discourage abortion without coercing women to carry the pregnancy to term, the
government must address the underlying social inequalities which influence a woman's decision not to carry her
pregnancy to term. This approach would involve addressing social factors that restrict a woman's ability to
support a child. For example, gender discrimination accounts for unequal wages, yet with equal pay a single
woman might be able to afford to carry a pregnancy to term and support a child from her salary alone. Social
inadequacies, such as an absence of quality, affordable child care, often force women to choose between earning
an income and having children The current abortion debate, which pits a woman against her fetus, does not
emphasize the need for a broad range of policies to advance women's rights and to discourage unwanted
pregnancy. Advocates should concentrate on encouraging the government to protect fetal life by developing
policies that recognize reproductive health care as part of a broader need for women's equality.




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                             Courts/Equal Protection Solvency
Equal protection should be used to protect abortion rights
Ruth Colker, law professor, Duke Law Journal, April, 1991, An Equal Protection Analysis Of United States
Reproductive Health Policy: Gender, Race, Age, And Class, p. 327
In this Essay, I have argued that pregnant adolescents deserve the highest level of judicial protection when the
federal government or states create reproductive health policies that favor childbirth over sex education,
contraception, abortion, or adoption. Because of the extensive record of society coercing pregnant adolescents
to undergo childbirth, despite the dramatic negative consequences of such childbirth on the lives of the pregnant
adolescents as well as her future offspring, this group is deserving of treatment as a "suspect class." Moreover,
their political powerlessness, as evidenced by their legal inability to vote and their low voting turnout when they
can vote, contributes to their entitlement to suspect class treatment. A legislature's ignorance of the impact of its
policies should be no defense to an equal protection challenge; rather, we should insist that legislatures protect
the most disadvantaged groups in society by being aware of the impact of their policies on them. If legislatures
would open their eyes to the impact of their reproductive health policies on female adolescents, they would see
that nearly ten percent of female adolescents face unintended pregnancies and that three-fourths of those women
do not have access to contraceptives. Overall, one million female adolescents become pregnant each year;
although more than three-fourths of those pregnancies were unintended, nearly half of those pregnancies result
in the birth of a child. Thus, approximately one million female adolescents need to be reached through effective
reproductive health policies so that their pregnancies can be intended and wanted. The courts should monitor
Congress and the states closely to ensure that the legislatures reverse their despicable record on reproductive
health issues. The legislatures need to be made aware of the kinds of statistics I have cited in this Essay and
urged to take positive, responsible steps rather than blindly encouraging childbirth among the group that can ill
afford unintended and unwanted pregnancies. It should no longer be possible for legislatures to say blithely that
they favor childbirth over contraception, sex education, and abortion, or to ignore entirely the impact of their
policies on pregnant adolescents to favor restrictive reproductive health practices. They must be made to
account for the ways that their irresponsible attitudes dramatically harm pregnant, female adolescents and their
offspring.




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                                Establishment Clause Solvency
Establishment Clause grounds superior to privacy grounds
Georgia Law Review, WINTER 1990, “An Establishment Clause Analysis of Webster v. Reproductive Health
Services,” p. 416-8
The establishment clause line of reasoning affords a superior basis for allowing individual free choice in
abortion decisions than the right to privacy argument. The courts have made the issue more convoluted than
necessary, reading the privacy right as including abortion into the Constitution, when the first amendment
establishment clause could more easily dispose of the issue. Resolution of this frenzied, divisive and violent
debate requires an empirical recognition by the Court that people are opposed to abortion on religious grounds.
Indeed, considering that the Court has used empirical data in prior cases as the basis for decisions, there is no
reason it cannot be used to demonstrate the existence of the perception that the government is endorsing
religion. Empirical proof establishes that: (1) the general public views the issue as a religious one; (2) no
consensus exists in other disciplines supplying a nonreligious ground for the alleged religious endorsement; (3)
the challenged view is aligned with a particular religious belief; and (4) the government enacts abortion
statutes so based upon the legislators' own religious beliefs or pressure from the groups aligned with religiously
motivated, anti-abortion beliefs. Evidence indicates that the majority of the American public view the abortion
issue as a question of religion: whether one believes that the fertilized egg is given a soul, and, therefore,
becomes a human life at conception, or that it becomes human at some other time such as viability or birth.
Nothing even resembling a consensus as to a secular purpose for establishing that the constitutional protection of
human life commences at conception exists in this country. The anti-abortion movement interprets according to
their conservative theology the Bible, church tradition, family values and "traditional morals" as the basis for
their claim that abortion is immoral and even murder. Conservative theologians feel motivated to increase their
political power in reaction to what they consider to be a national takeover by secular humanism and the demise
of the Christian nation. The goals of the powerful religious/political organizations are to "Christianize" America
and restore what they consider to be America's traditional conservative values by means of the political process.
The Missouri legislature passed its abortion law with the purpose of endorsing their personal religious views
and/or those of a powerful constituency. The legislator's purpose of appeasing those factions espousing the
strict anti-abortion stance is justly inferred from an analysis of the religious constitution of these groups and the
extensiveness of their lobbies. Politicians voting for anti-abortion legislation cannot be understood to act with
any secular purpose held by their constituents. Only those constituents within one of a few Christian
denominations could possibly be represented by the strict anti-abortion vote of a legislator. Such evidence would
lead an objective observer to conclude that the government is endorsing one religion over others and religion
over nonreligion.




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                                           Spending Answers
Turn – funding for abortions saves the government money
Janessa L. Bernstein, law student, Brooklyn Law Review, Summer, 2008, “The Underground Railroad to
Reproductive Freedom: RESTRICTIVE ABORTION LAWS AND THE RESULTING BACKLASH,” p. 368
Ironically, the enormous personal and financial toll that the Hyde Amendment takes on all low-income women
does not even reduce federal expenditures. Although "cost justifications alone are not, and should not be, a main
factor in the determination of whether to fund low-income women's abortions," the fact remains that the Hyde
Amendment is not cost efficient. It is estimated that for every dollar spent funding abortion for low-income
women the federal government would save approximately four dollars within the following two years; funds
that it would be required to spend in prenatal care, delivery and postnatal care for the mother, and newborn care,
neonatal intensive care and pediatric care for the child, not to mention savings in AFDC, food stamps and the
Women, Infants, and Children ("WIC") program. While the denial of such funding exacts a heavy toll on low-
income women, and also appears irrational and ineffective economically, the Court has failed to remedy the
situation and has permitted the ban on abortion funding to continue.

Turn – abortion lowers public welfare expenditures
Jonathan Klick, Associate Director, Liability Project of the American Enterprise Institute. Assistant Professor
of Law and Courtesy Professor of Economics, Florida State University. J.D. George Mason University; Ph.D.
(Economics) George Mason University, March 2004, FORDHAM URBAN LAW JOURNAL, “THE
CURRENT STATE OF ABORTION LAW AND REPRODUCTIVE RIGHTS: ECONOMETRIC ANALYSES
OF U.S. ABORTION POLICY: A CRITICAL REVIEW,” p. 781
 The Gruber results unambiguously support the positive selection premise. nAccording to their analysis, the
marginal child, had he not been aborted, would have been sixty percent more likely to have been raised in a
single parent household, fifty percent more likely to live in poverty, forty-five percent more likely to live in a
household that collects welfare, and forty percent more likely to die during the first year of life. In the aggregate,
they estimate that this positive selection effect reduced welfare payments in 1980, the year of the data used in
their analysis, by $ 480 million. Extrapolating their results further, they estimate that had all children living in
1980 been exposed to legalized abortion, welfare payments would have been $ 1.1 billion lower in 1980.




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                                         Spending Answers
Turn—offering publicly funded abortions reduces public expenditures

Georgetown Journal on Poverty Law & Policy, Summer, 2003, “Restrictive State Abortion Laws: Today's Most
Powerful Conscience Clause p. 352-3
In 1999, The Alan Guttmacher Institute published an analysis of a Rhode Island family planning test-program
called RIte Care. The study demonstrated that the cost of state-funded pregnancies and eventual public
assistance of those children was significantly greater than what it would have cost the state to include better
family planning care in its Medicaid coverage. The study shows that the state saved $ 14.3 million simply by
providing low-income women with better family planning services, complete with reproductive choice. The
study estimates that the state paid $ 5,000 per publicly funded delivery plus an additional $ 400 a month for each
newborn in the first year. Though the study does not speak to whether abortion was offered within the family
planning scheme, the average cost of an abortion ranges between $ 316 - $ 355. Currently, tax payers pay
millions of dollars each year for the medical expenses resulting from unwanted pregnancies among underserved
women. Given the above estimated cost of funding deliveries and child health care, offering a choice of
abortion under publicly-funded healthcare could save states and the federal government significant money under
their public assistance programs.


The savings turn is 4:1
Carol Corns, UNIVERSITY OF MICHIGAN JOURNAL OF LAW REFORM, 1994, “The impact of public
abortion funding decisions on indigent women: a proposal to reform state statutory and constitutional abortion
funding provisions,” p. 386
But indigent women are not alone in suffering the economic consequences of the Hyde Amendment and its state
successors. In 1986, the Alan Guttmacher Institute performed a state-by-state analysis of the burden imposed on
taxpayers as a result of using taxpayer dollars to pay for abortions. The study found that for every tax dollar
spent to pay for abortions for indigent women, more than four dollars are saved in public expenses, such as Aid
to Families with Dependent Children, that would have been incurred had the pregnancy been carried to term.




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                                          Spending Answers
$4 saved for every publicly funded abortion
Sandra Berenknopf, Temple Law Review, Summer 1997, “Judicial and congressional back-door methods that
limit the effect of roe v. Wade: there is no choice if there is no access,” p p. 662
Congress cannot even justify its use of the Hyde Amendment based on an economic argument since government
refusal to publicly-fund abortions does not reduce federal expenditures. It is estimated that every dollar spent to
fund abortions for low-income women saves roughly four dollars in public medical and welfare expenditures
within the next two years. This savings would otherwise have to be spent on prenatal care, delivery, and
postnatal care for the mother, and for newborn care, neonatal intensive care, pediatric care, AFDC, food stamps,
and the Women, Infants, and Children program.




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                                       Statism Kritik Answers
When the government uses funding conditions to undermine constitutional rights protections it
massive expands the power of the state

Charles Sherman, California Law Review, July 1982, p. 965
A second reason for the rejection of the right/privilege distinction is the threat that conditioned benefits could
pose to the vitality of constitutional rights. Constitutional rights could be "bought up" if they had to be
surrendered for benefits which in theory may be freely accepted or rejected but which in reality may be
necessary for one's livelihood. This threat to constitutional rights from an unchecked government power to
condition benefits is particularly ominous in the era of the modern state. The enormous sweep of government
welfare and regulatory programs and contractual arrangements could lead to the evisceration of constitutional
rights if the government were not somehow constrained in its exercise of a conditioning power. Thus, the
courts rejected the right/privilege distinction and instead analyzed conditioned benefits under the
unconstitutional conditions doctrine.




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                                               AT: STDs Turn
Abortion availaibility does not increase STDs
Jonathan Klick, Associate Director, Liability Project of the American Enterprise Institute. Assistant Professor
of Law and Courtesy Professor of Economics, Florida State University. J.D. George Mason University; Ph.D.
(Economics) George Mason University, March 2004, FORDHAM URBAN LAW JOURNAL, “THE
CURRENT STATE OF ABORTION LAW AND REPRODUCTIVE RIGHTS: ECONOMETRIC ANALYSES
OF U.S. ABORTION POLICY: A CRITICAL REVIEW,” p. 760-1
Although the Klick and Stratmann study provides relatively strong evidence that increased abortion access
induces increased sexual activity and STD rates, their analysis is not without its shortcomings. By analyzing
aggregate STD rates, they necessarily miss potential racial heterogeneity. That is, it may be the case that
different sub-populations reacted to increasing abortion access differently. Perhaps more importantly there is
no way for Klick and Stratmann to separate the effects of increased sexual activity from the effects of
substituting away from alternate forms of birth control. That is, it is also the case that the legalization of abortion
makes the relative value of using condoms decline. If individuals were less likely to use condoms when abortion
was legalized, we would observe increasing STD rates even if individuals had no more sex as a result of the
legalization. In essence, Klick and Stratmann's result indicates an increase in risky sex but that increase is a
pooled effect of more sex in the aggregate, and a replacement of safe sex for unsafe sex. There is no way to tell
from their analysis what the relative proportions are of the two causal mechanisms in their net findings.

Sen’s study is flawed

Jonathan Klick, Associate Director, Liability Project of the American Enterprise Institute. Assistant Professor
of Law and Courtesy Professor of Economics, Florida State University. J.D. George Mason University; Ph.D.
(Economics) George Mason University, March 2004, FORDHAM URBAN LAW JOURNAL, “THE
CURRENT STATE OF ABORTION LAW AND REPRODUCTIVE RIGHTS: ECONOMETRIC ANALYSES
OF U.S. ABORTION POLICY: A CRITICAL REVIEW,” p. 762
Similar to Klick and Stratmann's results, Sen determines that reducing abortion access leads to a reduction in
STD rates. Sen's estimates, however, are not statistically significant. This lack of significance does not appear
to be the result of a near-zero effect on STD rates. Indeed, Sen finds reductions of as much as four percent
resulting from Medicaid funding restrictions, which would seem to be fairly large. Sen's estimates, however,
are not very precise, leading to the lack of statistical significance. One way in which an increase in precision
could be achieved would be to exploit the fact that prohibitions were introduced at different times throughout
certain years. That is, Sen codes a state as having a prohibition in effect for a given year as a zero-one dummy
variable, taking the value of one if funding was prohibited at any point during the year. If one state passes a
prohibition in January, while another passes a prohibition in September, Sen's analysis treats the prohibitions as
equivalent. Perhaps a fractional prohibition variable would be more appropriate to account for this differential
timing effect. Further, Sen does not account for the fact that Medicaid funding for abortions in non-prohibition
states varies significantly. If a state providing generous funding for abortions enacts a prohibition, we would
expect a much larger effect on STD rates than we would from a parsimonious state's prohibition. Each of these
specification issues could significantly affect the precision of Sen's estimates, perhaps generating statistically
significant coefficients.




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    AT: Women Can Get Money for “Medically Necessary Abortions”
“Medically necessary” condition doesn’t allow women who have AIDS or cancer to get public
funding for abortion
Janessa L. Bernstein, law student, Brooklyn Law Review, Summer, 2008, “The Underground Railroad to
Reproductive Freedom: RESTRICTIVE ABORTION LAWS AND THE RESULTING BACKLASH,” p. 356
The Hyde Amendment has also varied as to whether it will allow funding for "medically necessary" abortions.
An abortion is generally considered "medically necessary" only if the woman's life or health would be
endangered if she were forced to carry her pregnancy to term. From 1978 to 1979, the Hyde Amendment
provided Medicaid funding of abortion if carrying the pregnancy to term would put the woman at risk of "severe
health damage," but subsequent revisions deleted this provision. The current Hyde Amendment excludes
funding for "medically necessary" abortions except where necessary to save the life of a pregnant woman. The
requirement that a life-threatening condition exist before funding is allowed ignores pregnant women who suffer
from a wide range of hazardous and debilitating conditions--including AIDs or cancer--none of which the Hyde
Amendment considers "life-threatening" per se. Furthermore, it is often difficult for physicians to determine
exactly when the continuation of a pregnancy would be damaging enough to threaten a woman's life. Even if
forced pregnancy does not cause physical harm, the psychological effects may be devastating. Justice Stevens's
dissent in Harris denounced the provision, noting that "because a denial of benefits for medically necessary
abortions inevitably causes serious harm to the excluded women, it is tantamount to severe punishment." A
woman's physical and mental health is so devalued that the government will not provide abortion funding unless
her illness progresses to the point of being life-threatening.




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                           AT: Rights Are Negative, Not Positive
Failure to provide public funding for abortion discourages individuals from exercising their
rights

Laurence H. Tribe, law professor, Harvard, November 1985, “the abortion funding conundrum: inalienable
rights, affirmative duties, and the dilemma of dependence.,”
In our constitutional system, rights tend to be individual, alienable, and negative. That is, the rights protected by
the United States Constitution -- such as the right to be free from unreasonable searches and seizures, or the
right not to be deprived of lief, liberty, or property without due process of law -- are ordinarily understood to
belong to persons as individuals. They are also usually understood to be subject to binding waiver or alienation
by those persons, and to impose on government only a duty to refrain from certain injurious actions, rather than
an affirmative obligation to direct energy or resources to meet another's needs. To be sure, the lines suggested
by these three characteristics at times become blurry. Thus, some individual rights appear to attach to persons
by virtue of the groups -- political, religious, or racial, for example -- to which they belong. Some rights are
subject to vindication even in the face of a purported waiver or attempted alienation of those rights because of a
readiness to treat such waiver or alienation as coerced. And respecting a right that is negative in form may
require government to forgo cost-cutting shortcuts and, in that sense, to make an affirmative exertion. So too,
what appears at first to be merely a governmental "omission" -- for example, failure to fund therapeutic
abortions for poor women accompanied by funding of childbirth procedures for the same women -- might be
regarded, and has in fact been viewed by some Supreme Court Justices, as a deliberate, "active" choice by
government to discourage exercise of a negative individual right.




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                            AT: Rights Are Negative, Not Positive
All of the rights in the constition are not just negative rights

Laurence H. Tribe, law professor, Harvard, November 1985, “the abortion funding conundrum: inalienable
rights, affirmative duties, and the dilemma of dependence.,” p. 331-2
Even within our largely individualistic and negative constitutional scheme, however, there are exceptional rights
that the constitutional text itself expresses in affirmative form. For example, the sixth amendment guarantees to
"the accused" the right to "enjoy . . . a speedy and public trial, by an impartial jury and "to be informed of the
nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process
for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence." Consider, too, the
requirement of article I, section 2, that the House of Representatives "shall be composed of Members chosen . . .
by the People of the several States"; the mandate of article I, section 9, clause 7, that "a regular Statement and
Account of the Receipts and Expenditures of all public Money shall be published from time to time"; or the
requirements of article IV, section 4, that the "United States shall guarantee to every State in this Union a
Republican Form of Government, and shall protect each of them against Invasion; and on Application of the
Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence." These
commands obviously entail recognition of positive and not merely negative rights. And there are rights of more
ambiguous syntax, which could plausibly be given an affirmative reading and which unavoidably entail at least
contingent affirmative burdens on government -- for example, the fourteenth amendment right that no state
"deny to any person within its jurisdiction the equal protection of the laws." These requirements span the
spectrum from specificity to vagueness, and from ease to difficulty of judicial enforcement, but all of them
confer rights that no individual may permanently waive and that the government can faithfully satisfy only by
affirmative exertion. The non-waivable nature of these rights, and the existence of affirmative duties with
respect to at least some of them, can be seen as structurally linked. It cannot escape notice, in particular, that all
of these rights that seem not to fit the classic "individual-alienable-negative" mold appear to correspond to
systemic norms -- norms concerned with structuring power relationships to avoid the creation or perpetuation of
hierarchy in which some perennially dominate others. Individual rights, which operate as individually held
vetoes over government action, are inadequate to vindicate such relation-focused norms. These norms serve not
only to recognize spheres of personal autonomy, but also to replace vertically stratified patterns of power with
more horizontal or egalitarian arrangements -- between accuser and accused, between governors and governed,
between the Union and the States, between those who hold power and those who aspire to it. Indeed, the very
process of translating ideas about relationships into purely individualistic values may be destructive of what
those ideas seek to capture. Neither equality nor community is reducible to individual autonomy or liberty.
And, in any event, it may be too easy to induce those who hold mere vetoes to "trade in" rights of this form in
return for immediately needed or desired benefits. Thus, at the most general level, rights that are relational and
systemic are necessarily inalienable: individuals cannot waive them because individuals are not their sole focus.
When such rights are, in addition, concerned with capacities that persons are unable to exercise without
assistance, their systemic and inalienable character gives rise, in turn, to affirmative governmental duties to
facilitate the exercise of such capacities at public expense. For even when an individual's own prior conduct
may be deemed responsible for an inability to purchase privately the goods or services without which the
capacity cannot be used, failure to provide the needed aid at public expense amounts to enforced alienation of
the underlying right. Accordingly, government must be recognized as having an affirmative duty to protect
such rights from the distortions of a purely private market -- to lift them beyond the status of commodities that
individuals may freely buy and sell provided they have acquired and retained the necessary wealth.




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                           AT: Rights Are Negative, Not Positive
The protection of Constitutional rights is not left to the market; the government has an
obligation to ensure the protection of such rights
Laurence H. Tribe, law professor, Harvard, November 1985, “the abortion funding conundrum: inalienable
rights, affirmative duties, and the dilemma of dependence.,” p. 334-5
It is true that, with regard to most goods and services, a governmental decision to leave the market entirely
private is not even arguably unconstitutional. For government must surely have leeway, at least under a
Constitution constructed on a base of private contract and private property, to leave the distribution of many
things -- automobiles, dental care, magazine subscriptions, and a million others -- to private transactions,
notwithstanding the usefulness of those items to the exercise of individual rights. Yet it is equally clear that
government's freedom to leave distribution to the market does not extend, under our Constitution, to all the
things someone might need in order to exercise various constitutional rights -- even those not clearly rendered
affirmative by the constitutional text itself. Access to the franchise, for example, cannot be treated by
government as a commodity, left to be bought and sold at a private auction. Access to basic education may
well be of the same character. And counsel in criminal cases, even for a defendant who turns out to have
voluntarily committed a crime, may not be relegated by government to an unsubsidized private market, but must
instead be provided at public expense for those otherwise unable to pay the going rate. Perhaps this latter case
is a very special one since, as we have noted, the sixth amendment guarantee of the "assistance of counsel" for
criminal defense is (even in form) suggestive of an affirmative right. But no comparable explanation is
available for a decision like Harper v. Virginia Board of Elections, holding that the equal protection clause is
violated when the franchise is limited to those able to pay a poll tax, or a decision like Boddie v. Connecticut, n
holding that the due process clause is violated when access to divorce proceedings is limited to those able to pay
court costs. Perhaps the most telling example of a right that must be inalienable, and thus must be affirmatively
protected if it is to retain its integrity as a relational norm, is the right secured by the thirteenth amendment's
command that "slavery" not "exist within the United States." Could the government honor that command by
saying that the slave who needs affirmative help to purchase his manumission, or to destroy the physical chains
by which he is still bound, must simply buy his freedom, and the equipment needed to secure it -- adding that the
slave's failure somehow to save enough funds to do so represents a choice by which the government may deem
him to be bound? Presumably, the answer is no: even a right essentially negative in form and content, such as a
right not to be enslaved, may well be deemed inalienable in the specific sense that no prior course of conduct by
the holder of the right may constitutionally result in its effective forfeiture. This sort of right -- a right
inalienable because the relationships its enforcement secures would otherwise be too vulnerable to destruction
by private bargains -- must give rise to an affirmative governmental obligation when the right involves a
capacity dependent on assistance for its exercise. Government must facilitate the right's exercise by means
within its constitutional power -- so as to make its actual exercise possible notwithstanding any prior choices
made by the right's holder -- in order to ensure the continuing vitality of fundamental relational norms.




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                           AT: Rights Are Negative, Not Positive
The constitution must be interpreted to protect relational values
Laurence H. Tribe, law professor, Harvard, November 1985, “the abortion funding conundrum: inalienable
rights, affirmative duties, and the dilemma of dependence.,” p. 342-3
In a Constitution written largely with a view to the rights of self-sufficient adult white propertied males, only the
Civil War amendments -- the thirteenth, fourteenth, and fifteenth -- make plausible an effort to discern rights
particularly relevant to those whom biology or history condemns, absent affirmative government action, to
conditions of dependence and relative helplessness. As we have seen, such rights cannot always take a form that
courts may fully effectuate by direct decree; those rights must at times be entrusted by courts, at least in part,
to the political branches. Indeed, it seems no coincidence that it was the Civil War amendments that, unlike the
first twelve amendments, first expressly empowered Congress to enact enforcement legislation to give full effect
to the rights being proclaimed. Thus, although the judiciary plays a significant role in mandating the
government's performance of its affirmative duty to ensure the relational aims of such rights, it should come as
no surprise that adequate explication and defense of these rights call upon judges to address puzzles that they
may have to confess themselves partly powerless to resolve. Nor should we be surprised that full protection of
these rights calls upon the rest of us to develop a constitutional discourse that is not constrained by the often
narrow boundaries of judicial capacity and competence. For lawmakers, executive officials, scholars, or citizens
to deem themselves absolved of the duty to address constitutional rights and concerns that courts have of
necessity left imperfectly or incompletely enforced would impoverish our public life and would relegate
constitutional discussion to an overly narrow -- and, yes, a deliberately unrepresentative -- judicial elite. In
abortion and elsewhere, the Constitution itself, and not merely the proper place of courts in enforcing it, must
engage our imaginations. For in such contexts of personal helplessness and mutual dependence, only a
recognition of affirmative duties -- duties that courts can enforce only in part -- can do justice to the relational
values at stake.




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                               Congress Counterplan Answers
Court action necessary to strengthen the court’s interpretation of the right to privacy
Georgetown Journal on Poverty Law & Policy, Summer, 2003, “Restrictive State Abortion Laws: Today's Most
Powerful Conscience Clause p. 348-9
Since Roe v. Wade, the United States Supreme Court has also contributed to the federal government's
endorsement of restrictive state abortion laws. By upholding many of these state laws as constitutional, the
Court has allowed the privacy right that it established in Roe v. Wade to be significantly hamstrung. The litany
of laws that states have implemented and the Supreme Court has upheld to limit this privacy right is sizable.




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                          Sex Education Counterplan Answers
Sex ed programs will not prevent unintended pregnancies
Ruth Colker, law professor, Duke Law Journal, April, 1991, An Equal Protection Analysis Of United States
Reproductive Health Policy: Gender, Race, Age, And Class, p. 326
Finally, it is important to recognize that effective sex education programs will not prevent unintended
pregnancies as long as only current contraceptive technology is available. For example, fifty-one percent of all
abortion patients in a 1987 study reported that they were practicing contraception during the month in which
they conceived. Of those who had stopped practicing contraception, about fifteen percent had ceased using the
pill within one month of becoming pregnant, forty-four percent had ceased using the pill within three months of
becoming pregnant. These former pill users were probably not using contraceptives because they mistakenly
believed that after a woman stops using the pill that she has a several month "grace" period during which she
will not become pregnant. Only nine percent of women obtaining abortions had had no prior contraceptive
experience. Thus, it is simply not true that women who have abortions are ignorant of the importance of
practicing contraception or unwilling to make an effort to avoid pregnancy. The evidence strongly suggests that
women experience problems in successfully using even the most effective methods of contraception. Rather
than place all the blame on women, it is important to recognize that contraceptive technology itself has inherent
limitations which result in many unintended pregnancies. In sum, U.S. contraception and sex education policy
is entirely ineffective in preventing unintended teenage pregnancy. Our policies send a confused and ineffectual
message to adolescents and cause the United States to have the least effective contraception and sex education
program in the western world. In addition, we have failed to devote adequate resources to developing safe,
cheap, and effective contraceptives. Legislative policy is inept; the poor, pregnant adolescents
disproportionately pay the heavy price for this incompetence.




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                           Abortion Rights Critical for Women
Women have liberty rights to their own bodies; women have choice and consent rights not to let
fetuses use their bodies

Eileen L. McDonagh, Professor of Political Science, Northeastern University and Visiting Scholar, Radcliffe
College. Ph.D., Government Department, Harvard University, 1999, Albany Law Review, “My Body, My
Consent: Securing the Constitutional Right to Abortion Funding,” p. 1061

The Supreme Court has ruled that a person's constitutional right to liberty protected by the Due Process
Clause includes the right to bodily integrity. The right to bodily integrity and liberty is a cornerstone of
common law, legislative statutes (positive law), and constitutional law. Although not widely understood,
there are in fact two components to the right to bodily integrity and liberty: the right of a person to
choose how to live her own life and the right of a person to consent to the effects of a private party on her
bodily integrity and liberty. In the context of constitutional guarantees, a person's right to consent to "what is
done" to her body is an even stronger right than a person's right to choose "what to do" with her life. For
example, the Court has ruled that no one has a constitutional right to choose a medical treatment with the
intention of ending one's life, even if terminally ill. Yet the Court has ruled that a person does have a
constitutional right to consent to medical treatment, which includes the right to refuse medical treatment
necessary to sustain one's life. Since there are two components to the right to bodily integrity and liberty -
choice and consent - once the state designates the fetus as an entity separate from the woman, her right to
terminate pregnancy stems not only from her right to make a choice about her liberty, but more
fundamentally, from her right to consent to how the fetus, as another entity, affects her body and liberty.




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                                AT: Women Consented to Sex
Women have a right to be free from pregnancy even if women consented to the condition that
caused the pregnancy

Eileen L. McDonagh, Professor of Political Science, Northeastern University and Visiting Scholar, Radcliffe
College. Ph.D., Government Department, Harvard University, 1999, Albany Law Review, “My Body, My
Consent: Securing the Constitutional Right to Abortion Funding,” p. 1067-8
The claim made here that pregnancy "results from" the fetus is to be distinguished from the claim that the fetus
is the legal cause of pregnancy. Legal cause is a matter of judgment. To the degree that a woman consents to
the risk of pregnancy by consenting to sexual intercourse, she could very well be judged to be a legal cause of
the condition of pregnancy resulting from the fetus. The statement that pregnancy "results from the fetus,"
therefore, is simply the medical and legal recognition that the condition of pregnancy in a woman's body
"results from" a fetus's presence in a woman's body and implantation in her uterus. This claim is
analogous to the claim that lung cancer "results from" smoking. One can judge the cigarette industry or
the individual smoker to be legally responsible for smoking and, hence, to be legally responsible for the
condition of lung cancer that results from smoking. However, legal responsibility for a condition does not
negate a person's right to be free of that condition. Whoever or whatever is responsible for smoking,
victims of lung cancer remain free to eradicate that condition from their bodies So, too, with pregnancy.
Regardless of who or what may be designated as the legal cause of pregnancy or as legally responsible for
pregnancy, a woman nevertheless retains an inviolate right to be free of nonconsensual effects on her
body and liberty "resulting from" a separate entity, the fetus. In addition, the claim made here that
pregnancy "results from" the fetus is not to be confounded with a claim that the fetus is an agent. Even if the
fetus were a person, since it has no consciousness or intentions, it would be a person lacking the mens rea to be
responsible for its effects on a woman's body and liberty. Hence, the claim here is not that the fetus is an
agent. Rather, the claim is simply that the fetus is a separate entity from the woman and that pregnancy
is a condition in a woman's body resulting from that separate entity. People's property can be seriously
damaged, their bodies seriously injured, and their liberty seriously impaired by entities that are not
agents, such as hurricanes, viruses, and animals. A woman's body and liberty can also be seriously
injured and impaired by the fetus, even if it is not legally depicted as an agent. Abortion rights must be
established not only on the basis of what the fetus "is," but also on what the fetus "does" to a woman's body and
liberty when she does not consent to pregnancy. Thus, before the state evaluates how an abortion affects a fetus,
the state must evaluate how a fetus affects a woman's bodily integrity and liberty, if and when she does not
consent to be pregnant.




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                                AT: Women Consented to Sex
Consent to sex does not constitute consent to pregnancy

Eileen L. McDonagh, Professor of Political Science, Northeastern University and Visiting Scholar, Radcliffe
College. Ph.D., Government Department, Harvard University, 1999, Albany Law Review, “My Body, My
Consent: Securing the Constitutional Right to Abortion Funding,” p. 1090-1

 Some may object that if a woman consents to sexual intercourse (action X), then by extension she has
consented to pregnancy (condition Y) as a foreseeable consequence of sexual intercourse. However, the law
does not assume that if action X causes condition Y, then consent to action X constitutes consent to condition Y,
even if condition Y is a foreseeable consequence of action X. As law scholar Robin West notes, a woman may
retain a right to consent to pregnancy, even when she has consented to an action, sexual intercourse, that entails
the condition of pregnancy as a foreseeable risk. Moral responsibility for a condition and consent to a condition
must be distinguished. A person who consents to an action that has the foreseeable risk of a subsequent
condition may be held morally responsible for that condition, should it occur, but that person is not presumed by
law to have consented to the condition itself. A person who voluntarily smokes (action X), for example, may be
considered responsible for the subsequent condition of lung cancer (condition Y), should it occur, but the person
is not required to consent to the presence of the cancer in her body. So, too, with pregnancy. A woman who
voluntarily engages in sexual intercourse (action X), may be partially morally responsible for the condition of
pregnancy (condition Y), should it occur, but it does not follow that she is legally required to consent to that
condition.

Consent to sex does not imply consent to pregnancy

Eileen L. McDonagh, Professor of Political Science, Northeastern University and Visiting Scholar, Radcliffe
College. Ph.D., Government Department, Harvard University, 1999, Albany Law Review, “My Body, My
Consent: Securing the Constitutional Right to Abortion Funding,” p. 1092

Others might contend that the key issue in determining if a woman consents to pregnancy is whether she uses
contraceptives when engaging in sexual intercourse. According to this objection, a woman's consent to engage
in sexual intercourse without contraceptives implies that she has consented to the condition of pregnancy. This
reasoning is flawed, however, because people have different reasons for maximizing or minimizing the risk that
a condition will ensue after an action, and only some of those reasons are grounds for assuming a person's
implied consent to a subsequent condition. For example, a person who chooses to smoke a cigarette brand high
in nicotine, when other brands lower in nicotine are available, maximizes the risk that lung cancer will ensue
after smoking. Yet we cannot infer from a person's choice of a high nicotine cigarette that the person implicitly
consents to lung cancer.




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                                 AT: Women Consented to Sex
Women have right to withdraw consent

Eileen L. McDonagh, Professor of Political Science, Northeastern University and Visiting Scholar, Radcliffe
College. Ph.D., Government Department, Harvard University, 1999, Albany Law Review, “My Body, My
Consent: Securing the Constitutional Right to Abortion Funding,” p. 1092-3

 An additional reason that a woman's consent to sexual intercourse does not bind her to consent to pregnancy is
that the right to consent to how another entity affects one's body and liberty includes the right to withdraw
consent. Thus, even when a woman indicates in some way that her consent to sexual intercourse, artificial
insemination, or in vitro fertilization (IVF) techniques signifies her express or implied consent to be pregnant,
shenevertheless retains tright to withdraw that consent to pregnancy. Courts have affirmed in numerous cases
that the right to consent to intrusion of one's bodily integrity and liberty includes the right to withdraw consent.
The Court of Appeals in Maryland stated: "The fountainhead of the doctrine [of informed consent]... is the
patient's right to exercise control over his own body... by deciding for himself whether or not to submit to the
particular therapy." A corollary to the doctrine is the patient's right, in general, to refuse treatment and to
withdraw consent to treatment once begun.




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                                        Abortion Rights Critical to Liberty
A fetus threatens a woman’s liberty interests if the woman does not consent to the fetus’ presence
Eileen L. McDonagh, Professor of Political Science, Northeastern University and Visiting Scholar, Radcliffe
College. Ph.D., Government Department, Harvard University, 1999, Albany Law Review, “My Body, My
Consent: Securing the Constitutional Right to Abortion Funding,” p. 1072-6
Thus, the consent foundation for abortion rights reinterprets what is happening when a woman seeks an
abortion. As Robin West, a constitutional law scholar, notes, the fetus is not merely an innocent and
passive by-product of pregnancy, an entity at rest that is merely carried by the woman who is pregnant
and necessarily destroyed by her decision to exercise her right of privacy to make a choice about her own
life without state interference. To the contrary: the principle of consent identifies the fetus as seriously
harming a woman if she does not consent to its effects on her body and liberty. While it has been common to
think that Roe established viability as the ultimate criterion for determining women's abortion rights , Roe dramatically affirms that the most
important criterion is what the fetus does to a woman. Even if a fetus is viable, the Court in Roe established that no state may protect a fetus by prohibiting
an abortion, when what the fetus does to a woman threatens her health or life. As Justice Blackmun, writing the opinion of the Court in Roe stated,
"subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except
where it is necessary... for the preservation of the life or health of the mother." According to Roe, therefore, what the fetus "does" to a woman trumps
what the fetus "is" in terms of a viability standard. Even after viability, if what the fetus does to a woman sufficiently injures her, a woman's right to
defend herself from that harm takes precedence over the state's compelling interest in protecting the fetus. Where the Court is mistaken is in falsely
assuming that a medically normal pregnancy does not harm a woman, and hence the termination of a medically normal pregnancy is unnecessary. The
Court expresses this position in Harris v. McRae, for example, when it states that "surely the government may properly presume that no harm will ensue
from normal childbirth." Thus, according to the Court, it is only when pregnancy becomes medically abnormal and threatens a woman's health or life,
that pregnancy is a condition of harm to a woman. However, the fetus harms a woman not only in medically abnormal pregnancies threatening her health
                                                                                             Pregnancy is a
or life, but in all pregnancies, including medically normal ones, if a woman does not consent to the condition of pregnancy.
condition constituting massive transformations of a woman's body and liberty, and, thus, constitutes
serious harm without her consent Medical professionals refer to even a normal pregnancy as an
extraordinary condition in which "the physiological alterations" resulting from the fetus "in all organ
systems in the pregnant woman are among the most remarkable events in normal biology." One medical
dictionary defines pregnancy as a condition that "sets up great changes, not only in the womb, but
throughout the whole body." While most of the changes resulting from the fetus's effects on a woman's
body subside about a month after birth, a "few minor alterations persist throughout life." In a medically
normal pregnancy some hormones in a woman's body rise to 400 times their base level; a new organ, the
placenta, grows in her body; all of her blood is rerouted to be available to the growing fetus; her blood
plasma and cardiac volume increase forty percent; and her heart rate increases fifteen percent. The
changes in a woman's cardiovascular system resulting from the fetus can lead to serious symptoms that
mimic heart disease, such as a decrease in cardiac output. When a woman is in a supine position, this
decrease in cardiac output can lead to a decrease in blood pressure, which causes such symptoms as
"lightheadedness, nausea, and even syncope." In some cases the cardiovascular changes of normal pregnancy can
aggravate an underlying heart condition, and then a normal pregnancy can become an abnormal pregnancy threatening a woman's life.
Another potentially fatal problem associated with the changes wrought by the fetus is thromboembolic disease, the "leading cause of
nonobstetric postpartum maternal mortality." The risk of deep vein thrombophlebitis is five times higher for pregnant women than for
nonpregnant ones. A normal pregnancy can also become life-threatening if septic pelvic vein
thrombophlebitis develops. Furthermore, even in a medically normal pregnancy the fetus massively
affects a woman's liberty every minute, every hour, every day, every week, and every month for nine
months. A woman must bring the fetus with her wherever she goes. Her option to associate or not with
the fetus is nonexistent. In this way, even a medically normal pregnancy affects a woman's right to liberty,
in the sense of her right to control her own body and to associate with whom she chooses.




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                           Abortion Rights Critical to Self-Defense
Availability of abortion protects the right to self-defense

Eileen L. McDonagh, Professor of Political Science, Northeastern University and Visiting Scholar, Radcliffe
College. Ph.D., Government Department, Harvard University, 1999, Albany Law Review, “My Body, My
Consent: Securing the Constitutional Right to Abortion Funding,” p. 1075-8

Thus, the more fundamental right underpinning a woman's right to choose an abortion is her right to bodily integrity and
liberty, including her right to defend herself with deadly force against the serious harm of even a medically normal
pregnancy resulting from a fetus. The law's recognition of people's right to use deadly force in their self-defense
encompasses a wider latitude of harm than only imminent death itself. The massive way even a medically normal
pregnancy affects a woman's body and liberty corresponds with standards in the law for the use of deadly force to defend
one's bodily integrity and liberty in relation to a born person who is protected by the Fourteenth Amendment. Further,
preborn life may not even be a person and certainly does not have Fourteenth Amendment rights. State statutes and the
Model Penal Code establish three categories of injury that justify the use of deadly force to stop the perpetrator of those
injuries: absolute injuries causing death, quantitative injuries causing serious bodily harm, and qualitative injuries imposing
severe restrictions upon one's liberty. All states affirm the right of people to use deadly force when threatened with
absolute injuries that can cause death. Medically abnormal pregnancies thus meet the standard in the law for using deadly
force to stop a fetus from harming a woman's body in a way that threatens her life. States also affirm that people have a
right to use deadly force to stop a born person from imposing serious injuries, even if those injuries fall short of actually
threatening death. Forty-two states have passed statutes explicitly affirming people's right to use deadly force when another
private party threatens them with a sufficient quantity of bodily injury, referred to variously as "serious bodily harm,"
"serious physical injury," "great bodily harm," "great personal injury," "in peril of bodily harm," "grievous bodily harm," or
as in the case of Michigan, "brutality." The Model Penal Code defines a serious bodily injury as an injury "which creates
a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the
function of any bodily member or organ," where protracted means as long as four weeks. The massive effects of a fetus
on a woman's body correspond to the level of injury justifying the use of deadly force, if a woman does not consent to those
effects. If a born person were to affect another born person's body in even a fraction of the ways a fetus affects a woman's
body, the magnitude of the injury would be easy to recognize. Imagine a born person who injected into another's body,
without consent, hormones 400 times their normal level, or someone who, without consent, took over the blood system of
another to meet her own personal use, or someone who, without consent, grew a new organ in that person's body The law
also justifies people's use of deadly force when threatened with qualitative injuries that intrude upon their basic liberty or
bodily integrity even without threatening objective physical injuries per se, much less threatening their lives. Thirty-six
states explicitly affirm a person's right to use deadly force in self-defense when threatened with forcible rape, even when
that rape is not aggravated by physical injuries outside of the rape itself. Thirty-five states legislatively recognizepeople's
right to use deadly force in self-defense against kidnapping. Only one of these states, Indiana, stipulates that the
kidnapping must occur with the use or the threat of force ; kidnapping alone is sufficient in the other states. Twenty-seven
states specifically affirm the right to use deadly force when threatened with slavery, either by explicit reference to their own
state constitutions or to the Federal Constitution. In addition, some states affirm the right to use deadly force in self-
defense when threatened with assault, robbery, arson, burglary, and any other forcible felony. Similarly, the Model Penal
Code states that deadly force in self-protection is justified when a person believes that "such force is immediately necessary
for the purpose of protecting [herself or] himself against the use of unlawful force by such other person... [, such as] against
death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat." As constitutional law scholar
Andrew Koppelman has pointed out, if a woman does not consent to pregnancy, it is as if pregnancy enslaves her. Thus,
standards in the law justify the use of deadly force to stop the massive effects of pregnancy on a woman's liberty if she does
not consent to those effects.




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       AT: “It’s Equivaleent to Provoking an Attack, No Right to Self-
                                  Defense”
Provoking an attack does not negate the right to self-defense
Eileen L. McDonagh, Professor of Political Science, Northeastern University and Visiting Scholar, Radcliffe
College. Ph.D., Government Department, Harvard University, 1999, Albany Law Review, “My Body, My
Consent: Securing the Constitutional Right to Abortion Funding,” p. 1094

 Some may object that when a woman consents to sexual intercourse, it is as if she is provoking a fetus to
implant itself in her body. Since the right to self-defense does not justify deadly force if the aggression against a
person has been provoked, she has no right to an abortion on self-defense grounds. The fallacy of this claim
lies in the meaning of "provoke." To provoke a person to attack in such a way that deadly force is justified in
stopping that attack implies that the original intention of the victim of the attack is to find an excuse to use
deadly force against the perpetrator of the attack. To import such a claim to the abortion context requires
evidence that a woman seeks an abortion as a goal, and then endeavors to "provoke" a fetus to implant itself so
that she might achieve that goal. This would be comparable to the claim that a person smokes cigarettes in order
to "provoke" the occurrence of lung cancer because the person desires a lung cancer operation. There is no more
evidence that women endeavor to become pregnant because their goal is to have an abortion than there is
evidence that people smoke cigarettes because they desire to have lung cancer operations.

Provoking an attack does not negate the right to self-defense
Eileen L. McDonagh, Professor of Political Science, Northeastern University and Visiting Scholar, Radcliffe
College. Ph.D., Government Department, Harvard University, 1999, Albany Law Review, “My Body, My
Consent: Securing the Constitutional Right to Abortion Funding,” p. 1094

 Some may object that when a woman consents to sexual intercourse, it is as if she is provoking a fetus to
implant itself in her body. Since the right to self-defense does not justify deadly force if the aggression against a
person has been provoked, she has no right to an abortion on self-defense grounds. The fallacy of this claim
lies in the meaning of "provoke." To provoke a person to attack in such a way that deadly force is justified in
stopping that attack implies that the original intention of the victim of the attack is to find an excuse to use
deadly force against the perpetrator of the attack. To import such a claim to the abortion context requires
evidence that a woman seeks an abortion as a goal, and then endeavors to "provoke" a fetus to implant itself so
that she might achieve that goal. This would be comparable to the claim that a person smokes cigarettes in order
to "provoke" the occurrence of lung cancer because the person desires a lung cancer operation. There is no more
evidence that women endeavor to become pregnant because their goal is to have an abortion than there is
evidence that people smoke cigarettes because they desire to have lung cancer operations.


   AT: Negligence on the Part of the Woman Means No Right to Self-
                               Defense
Negligence does not mean that a person does not have a right to self-defense

Eileen L. McDonagh, Professor of Political Science, Northeastern University and Visiting Scholar, Radcliffe
College. Ph.D., Government Department, Harvard University, 1999, Albany Law Review, “My Body, My
Consent: Securing the Constitutional Right to Abortion Funding,” p. 1093-4


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 The claim here is that if a person negligently causes a risk to herself, then that person loses the right to stop the
injury caused by her negligent action. In the case of pregnancy, the objection is that if a woman "consents", to
sexual intercourse and, by so doing, negligently causes a risk of harm to herself, as defined by a fetus's
nonconsensual effects, then the woman loses her right to defend herself against the harm of those effects on her
bodily integrity and liberty. Generally, when a person creates a risk, it does not follow that the person consents
to injuries occurring subsequent to the risk. Thus, if a person consensually creates a risk that she will be
mugged by walking down an alley alone, late at night, responsibility for causing the risk does not constitute
consent to the injury of mugging that may be subsequent to that risk. In addition, even if a woman is
contributorily negligent in creating the risk that a fetus will harm her, she nevertheless retains the right to self-
defense to stop the fetus from harming her. Analogously, a prison guard or a hospital attendant retains the right
to defend herself against a criminally insane assailant, even if the guard or attendant's negligence caused the risk
of assault.




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   AT: Abortion Rights Mean the Government Would Have to Protect
                     Women from Private Actors
Women have do not a right to state assistance to protect themselves from private ators

Eileen L. McDonagh, Professor of Political Science, Northeastern University and Visiting Scholar, Radcliffe
College. Ph.D., Government Department, Harvard University, 1999, Albany Law Review, “My Body, My
Consent: Securing the Constitutional Right to Abortion Funding,” p. 1078-9

As Robin West notes:
The way that we generally respond to the threat of dangerous, invasive, assaultive batteries upon our bodies is
twofold: first, we give to each individual a quite general right of self-defense to protect oneself against precisely
such assaults. And second, we turn to the state to assist us in our self-defense.

 When a woman does not consent to pregnancy, she not only has a private right of self-defense to use deadly
force to stop the harm resulting from a fetus, but the presumption is that she can also turn to the state to stop that
harm.
While the purpose of even a minimalist state is to act to protect people from harm resulting from private entities,
most constitutional law scholars do not think the Due Process Clause of the Fourteenth Amendment, as
interpreted by the Supreme Court, mandates that the state must act to protect a person's bodily integrity and
liberty from harm. In DeShaney v. Winnebago County Department of Social Services, decided in 1989, the
Court considered a case where the state failed to remove a young child from the custody of a brutal father.
When the father nearly beat the child to death, the Court ruled that the state cannot be faulted for failing to
remove the child from his father's custody as the Due Process Clause of the Fourteenth Amendment guarantees
no right to state assistance. The Court stated that there exists "no affirmative right to governmental aid, even
where such aid may be necessary to secure life, liberty, or property interests of which the government itself may
not deprive the individual." Therefore, the state is not required "to protect the life, liberty, and property of its
citizens against invasion by private actors." Critics of DeShaney are legion, many proclaiming it to be flat-out
wrong. Yet the decision is consistent with the Court's interpretation of state action: "Government need not
establish police... departments" or any other mechanisms for stopping private aggressors from intruding upon
others. On due process grounds, therefore, the state is under no affirmative obligation to assist a in her self-
defense against harm. Thus, just as the Due Process Clause is inapplicable to the state's failure to protect a
child from parental abuse, the Clause is not applicable to the state's failure to protect a woman from the harm
of a nonconsensual pregnancy by means of public funding of an abortion.




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     Equal Protection Shouldn’t Be Used to Protect Abortion Rights
Equal protection rationales fail because a lack of abortion access does not constitute sex
discrimination
Eileen L. McDonagh, Professor of Political Science, Northeastern University and Visiting Scholar, Radcliffe
College. Ph.D., Government Department, Harvard University, 1999, Albany Law Review, “My Body, My
Consent: Securing the Constitutional Right to Abortion Funding,” p. 1080-1

 Pro-choice advocates have long sought to counter the problem of constitutional state inaction in abortion
funding through use of the Equal Protection Clause and suspect classification analysis. This Clause requires a
court to apply strict scrutiny to legislation that invokes a suspect classification, such as race, and intermediate
scrutiny of legislation that invokes a quasi-suspect classification, such as sex. Proponents of using the Equal
Protection Clause to compel states to fund abortions maintain that the failure of states to provide abortions is a
form of unconstitutional sex discrimination. Prior to joining the bench, Justice Ruth Bader Ginsburg argued
that restrictions on abortion funding violated the Equal Protection Clause because they were a form of sex
discrimination depriving women of equal opportunities to education and employment. "Two related areas of
constitutional adjudication," she stated, are "gender-based classification" and "reproductive autonomy," both of
which influence "the opportunity women will have to participate as men's full partners in the nation's social,
political, and economic life." Ginsburg maintained that if the right to an abortion had been based on equality
rather than privacy, then the "Court probably would have ruled unconstitutional Congressional prohibitions on
financing abortions for poor women." Yet equal protection sex discrimination arguments for abortion rights
have run into a brick wall because the Court has declared that discrimination on the basis of pregnancy is not
necessarily sex discrimination. The Court reasons that pregnancy is a condition that categorizes people not into
two groups based on sex, namely, male and female, but rather into two groups of people based on be ing
pregnant or nonpregnant. While the first category contains only women, the second category contains both men
and women. For this reason, the Court holds that the state does not necessarily engage in sex discrimination
when it treats pregnant women differently from other people; thus, discrimination on the basis of pregnancy
does not necessarily involve any type of suspect, or even quasi-suspect, classification. As a result, the Court
directs no special scrutiny on grounds of sex discrimination to policies involving pregnancy, including
prohibitions against the public funding of abortions.

The Court reiterated this principle in Romer v. Evans, noting:
Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the
principle that government and each of its parts remain open on impartial terms to all who seek its assistance.
""Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.'"... A law
declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from
the government is itself a denial of equal protection of the laws in the most literal sense. "The guaranty of "equal
protection of the laws is a pledge of the protection of equal laws.'" The fundamental rights line of analysis can
be applied to abortion rights by establishing the following: Bodily integrity and liberty are a fundamental right.
When a woman does not consent to pregnancy, the fetus situates her similarly to other victims of harm to their
bodily integrity and liberty. To the degree that the state protects people from legal and medical harm to their
bodily integrity and liberty, the Equal Protection Clause mandates the state to protect a woman from the legal
and/or medical harm of a nonconsensual pregnancy. State failure to do so deprives a woman of her
constitutional right to equal protection and her fundamental right to bodily integrity and liberty.




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                        Bodily Integrity is a Fundamental Right
The right to bodily integrity is a fundamental right

Eileen L. McDonagh, Professor of Political Science, Northeastern University and Visiting Scholar, Radcliffe
College. Ph.D., Government Department, Harvard University, 1999, Albany Law Review, “My Body, My
Consent: Securing the Constitutional Right to Abortion Funding,” p. 1085-6

 Over the years, the Court has established a number of fundamental rights protected by the Constitution. These
include the right to travel, the right to vote, the right to reproduce, the right to marital relations, and the
right to bodily integrity and liberty. "No right is held more sacred, or is more carefully guarded, by the
common law, than the right of every individual to the possession and control of his own person, free from all
restraint or interference of others, unless by clear and unquestionable authority of law." As Justice O'Connor
noted in Cruzan v. Director, Missouri Department of Health in 1990: "Because our notions of liberty are
inextricably entwined with our idea of physical freedom and self-determination, the Court has often deemed
state incursions into the body repugnant to the interests protected by the Due Process Clause. Our Fourth
Amendment jurisprudence has echoed this same concern." In Washington v. Glucksberg, decided in 1997,
the Court reiterated its recognition of bodily integrity and liberty as a fundamental right.




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                                         AT: Fetus is a Person
Even if the fetus is a person, a woman has an equal protection right to terminate her pregnancy
Eileen L. McDonagh, Professor of Political Science, Northeastern University and Visiting Scholar, Radcliffe
College. Ph.D., Government Department, Harvard University, 1999, Albany Law Review, “My Body, My
Consent: Securing the Constitutional Right to Abortion Funding,” p. 1088-9

It is often assumed that if the fetus were a person, there would be no constitutional right to an abortion. This
assumption and fear was voiced during oral argument before the Court in the reargument of Roe in 1972 by pro-
choice lawyer, Sarah Weddington. She agreed, when questioned by Justice Stewart, that if the fetus were
designated to be a person covered by the Constitution, she would have no case. This assumption made its way
into the Roe decision itself: The appellee [Wade] and certain amici argue that the fetus is a "person" within the
language and meaning of the Fourteenth Amendment... If this suggestion of personhood is established, the
appellant's [Roe's] case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by
the Amendment. The appellant conceded as much on reargument. However, reframing abortion rights on a
fundamental rights analysis based on the Equal Protection Clause rather than on a privacy analysis based on the
Due Process Clause produces just the opposite conclusion. Since state policies explicitly criminalize harm
resulting from people, a woman's claim that the state must protect her from harm resulting from a fetus is most
explicit and clear when the fetus itself is constructed to be a person. Of course, the fetus's lack of mens rea puts
it into a category of mental incompetence, which means that the fetus would not be held criminally responsible
for harm. However, since the state protects people from harm resulting from mentally incompetent people
lacking criminal intent, the Equal Protection Clause mandates the state to protect a woman from harm resulting
from a mentally incompetent fetus. Thus, even if the fetus were a person, a woman surely has an equal
protection claim that the state must protect her from the harm of a nonconsensual pregnancy resulting from the
fetus because the state protects the bodily integrity and liberty, if not property, of people from harm resulting
from mentally incompetent persons. Moving from choice to consent in the abortion debate to secure state
funding of abortions, however, does not depend upon establishing that the fetus is a person; the state also acts to
stop harm resulting from entities that are not people, particularly entities under state protection. The burden
upon the state, therefore, is to locate even one instance in which state protection of a non-person entity, such as
wildlife, includes an explicit state policy to allow that entity to harm people as a means for protecting it. No such
policy can be found. Thus, when the state prohibits the use of public funds, facilities, and personnel to stop harm
resulting from the fetus, the state is not protecting a woman from harm in the same way it protects others who
are similarly situated with her. Even if the fetus is not a person, the Equal Protection Clause mandates that the
state must protect a woman from the harm of a nonconsensual pregnancy resulting from the fetus to the extent
that the state protects the bodily integrity and liberty, if not property, of other people from harm resulting from
non-persons under state protection, such as wildlife. To do otherwise is an unconstitutional denial of equal
protection to a woman suffering from the harm of a nonconsensual pregnancy resulting from a separate entity
under state protection: the fetus.




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         AT: “Pregnant Women Have a “Duty to Care” for the Fetus”
A woman does not have a “duty to care” for a fetus

Eileen L. McDonagh, Professor of Political Science, Northeastern University and Visiting Scholar, Radcliffe
College. Ph.D., Government Department, Harvard University, 1999, Albany Law Review, “My Body, My
Consent: Securing the Constitutional Right to Abortion Funding,” p. 1097-9

Others may object that if a woman consents to sexual intercourse, then she acquires a duty to carefor the fetus as
her genetic offspring. Thus, even if a woman's consent to sexual intercourse does not in and of itself constitute
express or implied consent to pregnancy, her consent to sexual intercourse nevertheless obligates her to continue
the pregnancy in order to fulfill her duty to care for the fetus. However, there are no other circumstances in
which a genetic parent's duty to care for a born offspring obligates the parent to consent to a condition that
affects a parent's body, even if that condition is necessary for the offspring's survival. Until recently, the only
circumstance even potentially requiring parental donation to pre-born life was the need of the fetus for the body
of the woman. Now, a man's body can also be needed by a fetus during pregnancy. In a recent medical
breakthrough, a fetus was diagnosed as having a rare genetic disorder which, if left untreated, would result in a
child born with a severe immune deficiency, necessitating serious restrictions on the child's life and most likely
its early death. The medical solution was to take bone marrow from the fetus's genetic father and implant the
bone marrow in the fetus while in the mother's uterus. The father consented to the bone marrow donation, the
transplant was successfully executed, and the child was born with a medically normal immune system and with
the prognosis for a healthy life. Yet, legally, the father was not obligated to donate his bone marrow, nor any
other part of his body, to the fetus simply because he had consented to sexual intercourse with its mother. If
there is no legal duty to donate a body part to a born offspring, by implication there is no duty to donate a body
part to a pre-born offspring. Moreover, parents retain a right of self-defense in relation to their born children.
This is because a person's right to the use of deadly force in self-defense of her bodily integrity and liberty is
governed by the quantity and quality of harm imposed, not by her kinship ties with the perpetrator of that harm.

The government cannot require women to donate their bodies to fetuses
Eileen L. McDonagh, Professor of Political Science, Northeastern University and Visiting Scholar, Radcliffe
College. Ph.D., Government Department, Harvard University, 1999, Albany Law Review, “My Body, My
Consent: Securing the Constitutional Right to Abortion Funding,” p. 101
Some base arguments for abortion rights and/or funding on the grounds that because the state does not require
people to donate their blood or other needed parts to other people, even when related by ties of kinship, the state
cannot require a woman to donate her body to the fetus. See sources cited supra note 192. This point was made
by Kathryn Kolbert, a pro-choice lawyer, in Casey, when she said in oral argument before the Court, "Surely, if
the Government cannot require individuals to sacrifice their lives or health for human beings who are born for
other compelling purposes, they [the Government] cannot do so for purposes of protecting potential fetal life."
Petitioner's Oral Argument 10-11, Planned Parenthood v. Casey, 505 U.S. 833 (1992) (No. 91-744, 91-902).




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                       AT: “The Fetus is an Innocent Bystander”
Even innocent bystanders do not have a right to create harm
Eileen L. McDonagh, Professor of Political Science, Northeastern University and Visiting Scholar, Radcliffe
College. Ph.D., Government Department, Harvard University, 1999, Albany Law Review, “My Body, My
Consent: Securing the Constitutional Right to Abortion Funding,” p. 1099-1100

 Some may object that the fetus has no intention of affecting a woman's body and no ability to control its effects
upon her; therefore, some argue that the fetus is "innocent." Because of this innocence, they argue, the fetus
cannot be responsible for injuring a woman. It is true, of course, that the fetus has no intentions and cannot
control its effects upon a woman's body and liberty. For this reason, to the extent that the law might apply to the
fetus, it is legally innocent of harming a woman when it affects her body and [*1100] liberty. Even if the fetus
were a person, it could not be held legally responsible for the way it affects a woman's body and liberty. Yet
even if a party is innocent of affecting another's body, those effects can nevertheless constitute injury. The law
recognizes that both involuntary and voluntary acts can cause harm and injury to other people, and that the
nonvoluntary characteristic of action does not give the perpetrator of that action any right to inflict harm or
injury. As the Model Penal Code notes, "people whose involuntary movements threaten harm to others may
present a public health or safety problem."




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             AT: “The Use of Deadly Force Triggers State Scrutiny”
The obligation of the state is to stop the fetus from harming the woman
Eileen L. McDonagh, Professor of Political Science, Northeastern University and Visiting Scholar, Radcliffe
College. Ph.D., Government Department, Harvard University, 1999, Albany Law Review, “My Body, My
Consent: Securing the Constitutional Right to Abortion Funding,” p. 1100-1

 Some may object that even if a woman is justified in using deadly force, such force triggers state scrutiny; this
scrutiny obligates the state to require that she stand trial to determine whether her use of deadly force was
justified. The implied assumption of this objection is that the law must apply the same standards for the use of
deadly force in self-defense to a fetus as it applies to a born person because the fetus has the same legal and
constitutional rights as does a born person. There is no basis for such an assumption. The Court has ruled that
before viability, it is constitutional for the state to protect the fetus only with a profound interest, not a
"compelling state interest." The Court ruled in Roe that even if the fetus were a person, it would not be
protected by the Constitution because it is not yet born, and the Constitution protects only the rights of born
people in relation to the state. Furthermore, when a woman does not consent to be pregnant, the fetus's injury
of her is in progress as an ongoing event. Thus, the harm resulting from the fetus is not a threat of injury in the
future nor is it an injury of the past. Even if the fetus were a person, if a woman does not consent to pregnancy,
the massive alteration of a woman's body and liberty resulting from the fetus justifies the state's use of deadly
force to stop it. Since the fetus's harm of a woman when she does not consent to pregnancy is in progress, the
first obligation of the state is to stop the fetus from continuing to injure the woman.




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 AT: “A Woman who Engages in intercourse is Obligated to Continue
                   that Benefit to the Fetus”
There is a distinction between pregnancy and a duty to aid
Eileen L. McDonagh, Professor of Political Science, Northeastern University and Visiting Scholar, Radcliffe
College. Ph.D., Government Department, Harvard University, 1999, Albany Law Review, “My Body, My
Consent: Securing the Constitutional Right to Abortion Funding,” p. 1101-2

Some may object that if a woman engages in sexual intercourse which results in pregnancy, as a benefit to a
fetus, then the woman is obligated to continue that benefit because the fetus relies on that benefit for its survival.
According to this line of reasoning, the pregnant woman is like a bystander coming to the aid of another; once a
bystander begins to rescue a drowning person, for example, the drowning person's reliance on the bystander
obligates the bystander to continue that rescue. However, as Professor of Law Donald Regan notes, the key to
all duty-to-aid cases is that the relationship is one entered into on a voluntary basis: for example, a common
carrier in relation to passengers, the master of a ship to a member of the crew, a jailer who must aid her/his
prisoner, innkeepers and their guests, store-owners and their customers, employers of all kinds and their
employees, schools and their pupils, physicians and their patients, social hosts and their guests, husbands or
wives and their spouses, and parents and their children. An implied assumption in the bystander analogy,
therefore, is that the bystander initially consented to a relationship with the drowning person. The second key to
duty-to-aid cases is the type of benefit that is involved in the relationship. When the benefit entails risk to a
person's very body and liberty, not only is there no obligation to give the benefit in the first place, but a person
retains the option to withdraw that benefit, so long as her initial action has not precluded others from giving aid.
Since pregnancy entails the use of a woman's body and liberty as a benefit to a fetus, not only does she have a
right to consent to a relationship with a fetus in the first place, but she retains the right to withdraw that consent.
The distinction between being responsible for a benefit and the obligation to continue the benefit is clarified by
reference to the common law tort of "conversion." Under tort law, one's negligence in conferring a benefit to
another does not entitle that other person to the benefit. For example, if a woman places her personal property
at risk of being stolen, she nevertheless is entitled to the property's return, even though she is responsible for
having placed the property at risk in the first place. Thus, even if a woman consents to sexual intercourse
without minimizing the probabilities that pregnancy will ensue, no matter how stupid or negligent this action
might be, the fact that an ensuing pregnancy benefits a fetus does not constitute grounds for conversion of
pregnancy into a fetal benefit.




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AT: “Relying on the Consent Doctrine Assumes the Fetus is a Person,
                   Threatening Abortion Rights”
Non-unique: Roe already establishes the potential for fetal personhood

Eileen L. McDonagh, Professor of Political Science, Northeastern University and Visiting Scholar, Radcliffe
College. Ph.D., Government Department, Harvard University, 1999, Albany Law Review, “My Body, My
Consent: Securing the Constitutional Right to Abortion Funding,” p. 1103-04

Others may object to the consent-to-pregnancy foundation for abortion rights on the grounds that its recognition
of the fetus as a separate entity from the woman runs the risk of exacerbating fetal protection policies that target
pregnant women for restrictive monitoring by the state. The flaw in this objection, however, is the implication
that it is the consent-to-pregnancy foundation for abortion rights that creates the depiction of the fetus as a
separate entity. To the contrary, it is the Court itself that established in Roe that it is constitutional for the state
to depict the fetus as a separate entity meriting state protection. If anything, over the years the Court has
emphasized the importance of this dimension to the abortion debate. Courts have held that for the purposes of
obtaining remedies for pre-birth personal injuries, an unborn child is a "person" and as such may sue after birth.
Furthermore, a viable fetus is considered a person in some jurisdictions within the meaning of states' wrongful
death statutes. Other states consider a viable fetus a person within the meaning of their vehicular homicide
statute. The trend in legal thinking is to view not only the viable fetus as worthy of increased state protection,
but also a pre-viable fetus. As such, viable fetuses have received protection by courts and by states in both tort
and criminal proceedings in cases dealing with their injury or death. In 1994, for example, the California
Supreme Court ruled that a person could be prosecuted for murder if her actions led to the death of a fetus that
was even six or seven weeks old. Legal recognition of the fetus's status as human life, therefore, is increasing,
not decreasing. Fighting this trend by depicting the fetus as a "blob of cells" or as a "part" of a woman's body
has not proven effective. Thus, it is not that the consent-to-pregnancy approach to abortion rights creates the
depiction of the fetus as a separate entity warranting state protection, but rather, that it uses that depiction to
redirect attention from what the fetus "is" to what the fetus "does." By so doing, the consent-to-pregnancy
foundation pinpoints the harm that results from the fetus when a woman does not consent to pregnancy and her
equal protection claim to state assistance to stop that harm, thereby strengthening women's reproductive rights.




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       AT: “Consent to Pregnancy Theory Results in the Coercion of
                               Women”

Consent to pregnancy doesn’t result in the coercion of women
Eileen L. McDonagh, Professor of Political Science, Northeastern University and Visiting Scholar, Radcliffe
College. Ph.D., Government Department, Harvard University, 1999, Albany Law Review, “My Body, My
Consent: Securing the Constitutional Right to Abortion Funding,” p. 1106-7
Some may object to the consent-to-pregnancy foundation for abortion rights on the grounds that the principle of
consent could be co-opted and used against women by requiring women who do consent to be pregnant to
conduct their pregnancy in a prescribed manner. Thus, the fear is that a woman's consent to pregnancy could be
used to establish legislative demands that a woman adhere to state mandated behavior to protect the fetus while
she is pregnant, such as eating certain foods, refraining from smoking and drinking, engaging in certain
exercises and refraining from others, et cetera. This fear is unfounded, however, because the consent argument
focuses on the woman and on how pregnancy, as a condition, affects her body and her liberty, not on how the
woman affects the fetus. As an analogy, consider the example of a patient's right to consent to medical treatment
administered by a physician. This consent is the patient's agreement as to what the physician is entitled to do to
the patient. The patient retains the right to defend herself from harm imposed by a physician, as does any person
in relation to another, but that right of self-defense obviously does not include an obligation on the part of the
patient (or any other victimized person) to administer treatment to the physician.




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     AT: “Consent to Pregnancy Eliminates Father’s Responsibility”
Consent to pregnancy doesn’t eliminate father’s parental responsibilities

Eileen L. McDonagh, Professor of Political Science, Northeastern University and Visiting Scholar, Radcliffe
College. Ph.D., Government Department, Harvard University, 1999, Albany Law Review, “My Body, My
Consent: Securing the Constitutional Right to Abortion Funding,” p. 1107

 Others may object that a consent-to-pregnancy approach could dangerously undermine the legal basis for men's
financial responsibility for child support by enabling a man to say, "yes, I consented to sexual intercourse, but I
did not consent to pregnancy, and without my consent I cannot be held financially responsible for either the
costs of pregnancy or for the child after its birth." The flaw here is the failure to recognize that the Constitution
allows the state to intrude upon a person's economic assets with greater latitude than upon a person's bodily
integrity and liberty. Thus, a state may intrude upon a father's economic resources to support his born child -
even if he would have paid for an abortion, was told by a woman that she did not want to have children or was
unable to have children, or used a condom when engaging in sexual intercourse with the woman. The rights of
a father do not change, therefore, when we add consent-to-pregnancy as a basis for abortion rights. A woman's
right to choose an abortion derives from her right to make decisions about her own bodily liberty, not from
whether a genetic father prefers for her to remain pregnant or terminate the pregnancy.




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       AT: “Consent Doctrine Puts the Mother and Fetus in Conflict”
The representation of the mother-fetus conflict is false and it doesn’t disempower women”

Eileen L. McDonagh, Professor of Political Science, Northeastern University and Visiting Scholar, Radcliffe
College. Ph.D., Government Department, Harvard University, 1999, Albany Law Review, “My Body, My
Consent: Securing the Constitutional Right to Abortion Funding,” p. 1107-8

 Finally, many will object to a foundation for abortion rights that depicts the mother and the fetus in conflict, and
its reverse, which is the depiction of the pregnant woman as the victim of harm resulting from the fetus. It is
important, of course, to recognize the significance of the mother-child bond and the positive symbiotic unity that
can ensue from a pregnancy when a woman consents to pregnancy. Yet it is also crucial that we do not wall-off
pregnant women, or women in general, as being so "different" or "unique" as to be ineligible to benefit from
cultural norms, social experiences, and legal principles already in place that protect the rights of others. The fact
of the matter is that any relationship, no matter how positive it may be, such as friendship or romantic love,
nevertheless becomes adversarial when there is no consent. Regardless of how the right to an abortion is framed,
terminating a pregnancy by destroying a fetus challenges assumptions about nurturing role norms associated
with women. And, as Robin West observes, "American feminism is primarily strategic." Hence, it is
understandable why pro-choice advocates for strategic and political reasons wish to minimize the challenge of
that role dissonance by framing the abortion decision in terms of women's traditional identities as mothers. In
such representations of the abortion decision, a woman chooses an abortion in order to be a good mother, either
to children she has already born or to children she intends to bear. The particular fetus that is aborted at most is a
"problem" or poses a "dilemma" to the woman, but is not in conflict with her. However, locating the abortion
decision within the framework of women's traditional roles has not been effective in gaining constitutional
support for a woman's right to government assistance in obtaining an abortion. We can correct this problem by
expanding the depiction of pregnancy to include adversarial possibilities between the woman and the fetus. As
law scholar Sylvia Law notes, for all women, "involuntary motherhood denies the full humanity of women who
would choose not to bear a child." The consent approach to abortion rights offers an effective way to garner
state protection of women from the harm of involuntary motherhood. Similarly, some may think that it
disempowers a woman to depict her as a victim of a nonconsensual pregnancy. However, one must remember
that the first step in correcting women's disempowerment often requires identifying hidden ways in which
women are victimized in the first place. Hence, before sexual harassment could be defined as a crime, women
had to be identified as victims of the harm of sexual harassment. In the context of abortion, before women can
be empowered by gaining a constitutional right to abortion funding, women must first be identified as victims of
the harm of a nonconsensual pregnancy. Recognizing how and why women are victims of harm in
nonconsensual pregnancies deconstructs traditional role norms for women in much the same way as previous
generations deconstructed traditional marital role norms for women; the similarities between the abortion,
suffrage, and equal rights movements serve to point up the commonalties across historical generations in the
ongoing struggle for women's rights.




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     AT: “Pregnancy Isn’t Unique, Equal Protection Doesn’t’ Apply”
Pregnancy situates a woman with others who are harmed

Eileen L. McDonagh, Professor of Political Science, Northeastern University and Visiting Scholar, Radcliffe
College. Ph.D., Government Department, Harvard University, 1999, Albany Law Review, “My Body, My
Consent: Securing the Constitutional Right to Abortion Funding,” p. 1110-1111

A possible objection to situating women who suffer harm resulting from a fetus with other victims of harm is
that pregnancy is a unique condition; thus, when a fetus affects a woman's body, it does not situate her similarly
with anyone else whom the state protects from harm. Consequently, the state is not obligated to protect a woman
from harm by stopping a nonconsensual pregnancy resulting from a fetus. The flaw in this objection is the
assumption that any one situation can be wholly different from another; all situations involve some similarities
and some differences. It is a matter of judgment, therefore, to what degree situations should be considered
similar or different in relation to each other. What is certain is that harm results from the fetus if and when a
woman does not consent to pregnancy. This harm is not unique compared to other situations. If the fetus were
considered a person, for example, its location within and attachment to the body of an other person might be
considered unique to fetus's as a class, but the harm resulting from the fetus is not unique, since harm often
results from one person's effect on another person. Under state protection, if the fetus is considered to be a living
entity that is not a person, then harm resulting from it also is not unique, since harm often results from living
entities that are not people. Thus, whether the fetus is a person or a nonperson, it similarly situates a woman
with others who are harmed.




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AT: “Prosecutorial Discretion Means the State Doesn’t HAVE to Act to
                           Prevent Harm”

Using prosecutorial discretion in this fashion promotes racism, which is unconstitutional

Eileen L. McDonagh, Professor of Political Science, Northeastern University and Visiting Scholar, Radcliffe
College. Ph.D., Government Department, Harvard University, 1999, Albany Law Review, “My Body, My
Consent: Securing the Constitutional Right to Abortion Funding,” p. 1111-1112

 A second argument against the affirmative right to state assistance is based on the courts' recognition that it is
permissible at times for the state to refrain from acting, even though there is apparently just cause to act, under
the doctrine of "prosecutorial discretion." Thus, even if the state stops some harm, there is no absolute
requirement that the state stop all harm, including the harm of nonconsensual pregnancy. Such an argument,
however, distorts the legal understanding of the meaning and purpose of prosecutorial discretion. The aim of the
prosecutorial discretion doctrine is to provide "individualized justice," which is essential to ensure a "humane
and fair system of criminal justice," by allowing prosecutors discretion in choosing the grounds on which they
will seek convictions. This is a powerful doctrine because higher courts will not ordinarily review prosecutorial
discretion decisions. Yet courts recognize that "the power to be lenient is the power to discriminate." For this
reason, they have paid considerable attention to determining when prosecutorial discretion might be motivated
by, or result in, racial bias. The Supreme Court has ruled that "prosecutorial discretion cannot be exercised on
the basis of race." This concern with racial discrimination in the prosecutorial discretion doctrine brings into
play the equal protection guarantees of the Fourteenth Amendment. As a result, this doctrine has been closely
limited by the courts so that prosecutors do not abuse the general judicial deference given to them by the legal
system. If the state's use of prosecutorial discretion in refusing to stop the nonconsensual implantation of
contraceptives evidenced a pattern of discrimination, thereby demonstrating a preference for such a state policy,
the policy would be found in violation of the purpose of prosecutorial discretion - to provide a "humane and fair
system of criminal justice." 1 So, too, with reproductive options. If the state's use of prosecutorial discretion
evidenced a pattern denying equal protection of people's fundamental right to bodily integrity and liberty, then
such a policy would violate the purpose of the doctrine, and the Court would limit such a use.




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 AT: “The State Has an Interest in Promoting Childbirth & Fetal Well-
                                Being”

The state can promote childbirth, but it cannot do so through means that threaten women’s
rights
Eileen L. McDonagh, Professor of Political Science, Northeastern University and Visiting Scholar, Radcliffe
College. Ph.D., Government Department, Harvard University, 1999, Albany Law Review, “My Body, My
Consent: Securing the Constitutional Right to Abortion Funding,” p. 1112-3

Another objection to a woman's affirmative right to abortion funding is that the state has a legitimate interest in
protecting the fetus and promoting childbirth, and for this reason, it is constitutional for the state to refuse to
fund an abortion. This objection, too, fails to examine the means that the state uses to achieve its ends. While it
is constitutional for the state to protect the fetus and to prefer childbirth, it is not constitutional for the state to
achieve its goals by using a means that denies a woman her right to state protection of her body and liberty equal
to that which the state provides to others. 3




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   AT: “The State Doesn’t Have an Obligation to Stop the Fetus From
                          Harming A Woman”
The state has an obligation to help all those who are under threat from another entity

Eileen L. McDonagh, Professor of Political Science, Northeastern University and Visiting Scholar, Radcliffe
College. Ph.D., Government Department, Harvard University, 1999, Albany Law Review, “My Body, My
Consent: Securing the Constitutional Right to Abortion Funding,” p. 1114

 A final objection to an affirmative right to abortion funding is that the state is not obligated to stop the fetus
from affecting a woman's body and liberty without her consent when the fetus does not threaten a woman with
death because, with the passage of time, the fetus as an "irresponsible attacker will achieve full responsibility if
allowed to live." Such a claim rests on the premise that the obligation of the state to offer equal protection to
people from the harm imposed by others does not include the obligation to choose between "two of its members,
both innocent," namely, the woman who is being harmed as an innocent recipient of the fetus's nonconsensual
effects and the fetus that is the innocent perpetrator of those effects. The flaw in this objection is that the fetus
benefits from pregnancy, while the woman who refuses to consent to pregnancy is harmed by it. Thus, the
woman and the fetus are not on an equal footing; if they were, it would be difficult, if not impossible, for the
state to identify which is the victim and which is the perpetrator of harm. Pregnancy, contrary to some
metaphors, is not analogous to two entities stranded on an island, where both are on an equal footing and thus
there is no way to identify one as a victim and the other as a perpetrator of harm. Nor is pregnancy analogous to
conjoined twins, where two entities are joined together in such a way that each derives benefits from the other.
Nor is pregnancy analogous to a lifeboat, in which all entities in the lifeboat are on an equal footing, so that the
decision as to which one will be sacrificed in order to save the others in the boat becomes an arbitrary one.
Rather, pregnancy is a relationship where the fetus and the woman are not on the same footing. Pregnancy is a
benefit to a fetus but a harm to a woman if she does not consent to it. The fact that the perpetrator of harm may
outgrow its mental incompetence and at a later date achieve responsibility by becoming a person does not justify
the state's protection of that perpetrator by prohibiting the use of state resources to stop the harm in progress.
When a fetus affects a woman's body and liberty without her consent, the harm is in progress. The state is
obligated to offer assistance to a woman who is being harmed by a fetus equal to the assistance the state offers
to others who are being harmed by state-protected entities.




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   AT: “The State Doesn’t Have an Obligation to Stop the Fetus From
                          Harming A Woman”
The government has an obligation to protect individuals from harm
Eileen L. McDonagh, Professor of Political Science, Northeastern University and Visiting Scholar, Radcliffe
College. Ph.D., Government Department, Harvard University, 1999, Albany Law Review, “My Body, My
Consent: Securing the Constitutional Right to Abortion Funding,”
As Earl Maltz observes, the basic function of government is the protection of life, liberty, and property. See Earl
M. Maltz, Individual Rights and State Autonomy, 12 Harv. J.L. & Pub. Pol'y 163, 163-92 (1989). Steven
Heyman concurs, noting that "the right to protection was a central doctrine of American constitutionalism prior
to the Civil War. This doctrine, rooted in the common law tradition and social contract theory,held that the most
basic obligation of government was to protect individuals against violence." Steven J. Heyman, The First Duty
of Government: Protection, Liberty and the Fourteenth Amendment, 41 Duke L.J. 507, 570-71 (1991). Thus, as
Robin West remarks, even those who view the state in minimalist terms "regard the state as existing at least in
part to provide individuals with protection against assault and battery. It is certainly a central - and perhaps the
central - tenet of classical liberalism that the provision of such protection against private, violent aggression is
the raison d'etre of the state."




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                                        AT: Adoption Solves
Adoption is not a realistic alternative

Ruth Colker, law professor, Duke Law Journal, April, 1991, An Equal Protection Analysis Of United States
Reproductive Health Policy: Gender, Race, Age, And Class, p. 349
    Another way to avoid the consequences of early childbirth is to make adoption an easily-available option.
Adoption, however, is not considered to be an acceptable alternative by most pregnant women, and especially
by pregnant African-American or Hispanic women.
     1. Frequency of Adoption by Race. Information on adoption is limited and the statistics that do exist are
difficult to understand. The federal government stopped compiling national adoption statistics in 1975 Statistics
from the 1980s suggest that despite the public emphasis on the adoptability of all children, adoptions may have
declined during the mid-1980s. Most of the decline in adoption appears to have taken place among white
women. For adoptions of unrelated children, the white rate fell from 1.9% in 1982 to 1.4% in 1987; the rate for
African-American women fell from 0.9% in 1982 to 0.8% in 1987; the rate for Hispanic women increased from
0.2% in 1982 to 0.4% in 1987. Although the rate of adoption among Hispanic women is not declining and the
African-American level is relatively constant, the absolute numbers of African-American and Hispanic women
who adopt unrelated children is much lower than the rate for white women. Because interracial adoptions
constitute only about eight percent of all adoptions and those adoptions consist primarily of the adoption of
children of races other than African-American or white by white adoptive mothers, African-American and
Hispanic children have a much lower likelihood of being adopted than do white children. In 1987, eighty-seven
percent of the mothers who adopted were white, seven percent were African-American, and about two percent
were Hispanic. The adoptive mother and child are of the same race 92.4% of the time. Given that the
pregnancy rate among African-American and Hispanic women is higher than that among white women, one
could infer that adoption is not a viable option, other than with relatives, in the African-American and Hispanic
communities. Unfortunately, there are no statistics on the number of unadoptable African-American and
Hispanic children. The women who place their children for adoption are not the most disadvantaged women in
society. "Babies born to single white women were much more likely to have been placed for adoption (12
percent) than were those born to single [African-American] women (less than one percent) in 1982." Of the
white women who did place their child for adoption, they were three times more likely to have had fathers who
had some college education than women who kept their babies. Single women who had placed their children
for adoption were less likely to be receiving public assistance, less likely to be poor, and more likely to have
completed high school than were single women who kept their babies. Thus, adoption is not a realistic solution
to pregnancy for the most disadvantaged, pregnant, single women.
     2. Consequences of Adoption. The Antiabortion movement considers adoption to be the panacea for the
need for abortion. Few studies, however, compare the consequences for adolescents based on whether they
abort, raise the child themselves, or relinquish the child for adoption. One study has compared these latter two
alternatives, but has not compared either of these two groups to women who abort an unintended pregnancy.
Despite the fact that women who relinquish their children for adoption would seem to face fewer financial,
emotional, and child-care demands than those who raise their children, previous studies had suggested that there
are significant negative psychological consequences stemming from the relinquishment decision. Nevertheless,
one recent study found that relinquishers are generally more successful than child rearers in terms of completing
vocational training, delaying marriage, avoiding a rapid subsequent pregnancy, working following the birth of
the child, and living in a higher income household. As compared with adolescents who do not bear a child,
however, both relinquishers and child rearers attain lower socioeconomic status. These authors were not able to
confirm that relinquishers suffer deleterious social or psychological consequences as compared with
nonrelinquishers. However, their findings do not provide much evidence as to how relinquishers compare with
women who choose abortion.


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                                         Back Alley Abortion
Banning abortion just drives it underground
Janessa L. Bernstein, law student, Brooklyn Law Review, Summer, 2008, “The Underground Railroad to
Reproductive Freedom: RESTRICTIVE ABORTION LAWS AND THE RESULTING BACKLASH,” p. 1480-
1
It is noteworthy that very little time in legislative debates is spent addressing the likelihood that severe abortion
restrictions will harm women's health and will cause women to resort to underground networks where such
procedures can be made available. Worldwide statistics support the argument that if abortion is made illegal, it
will not disappear. As the Center for Reproductive Rights reports: Of the 40 to 60 million abortions that take
place annually, at least 20 million are performed under unsafe, illegal conditions and up to 50% of these women
require follow-up gynecological care. Millions suffer permanent physical injuries, and at least 78,000 women
die. Most of these deaths are preventable, and occur in countries where access to abortion is highly restricted or
illegal altogether.

If abortion is made illegal, women will travel internationally to get abortions
Janessa L. Bernstein, law student, Brooklyn Law Review, Summer, 2008, “The Underground Railroad to
Reproductive Freedom: RESTRICTIVE ABORTION LAWS AND THE RESULTING BACKLASH,” p. 1503-
4
An analysis of abortion undergrounds in other countries also provides valuable information that may aid
legislatures in drafting laws that promote sound policy aimed at ensuring that "women seeking to fulfill their
childbearing goals . . . are able not only to protect their lives and health should they decide to have an abortion,
but to avoid unplanned pregnancies in the first place." A comparative analysis of abortion in countries with
restrictive abortion laws is particularly telling, considering that women "have relied on abortion to end unwanted
pregnancies throughout history and in every region of the world, even though abortion was illegal in almost
every country until the second half of this century." Moreover, worldwide statistical data establishes that "the
legal status of abortion correlates much more with its safety than with its incidence." Therefore, abortion rights
advocates should reference such data whenever possible during legislative debates in an effort to persuade
Unites States lawmakers that their attempts to eliminate abortion through bans and restrictions is misguided, and
will ultimately prove to be unsuccessful. Countries such as Chile, Colombia, El Salvador, Ireland, and
Nicaragua, all legally forbid abortions, while a significant number of other countries have enacted severe
abortion restrictions. Poland, for example, has numerous restrictions in place, yet underground private abortion
services are robust in Poland, as is "tourism" abortion by Polish women who travel to neighbouring countries
including, Austria, Belarus, Belgium, the Czech Republic, Germany, Holland, Lithuania, the Russian
Federation, Slovakia and Ukraine. Rough 1996 estimates suggest there may be 50,000 underground abortions a
year. Such statistics are relevant to any abortion legislation as they refute arguments that abortion, if
criminalized or severely restricted, will disappear. In Ireland, for example, abortion is illegal and yet it is
estimated that some 72,000 Irish women have travelled to England to obtain abortions since 1970. That number
continues to climb.




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                                        Back Alley Abortion
Banning abortion causes back-alley abortions
Janessa L. Bernstein, law student, Brooklyn Law Review, Summer, 2008, “The Underground Railroad to
Reproductive Freedom: RESTRICTIVE ABORTION LAWS AND THE RESULTING BACKLASH,” p. 1506
Excessive abortion restrictions do not prevent abortions, but instead they relegate the procedures to back-alleys
and to clinics in other states. What is worse, such laws harm poor women to a greater degree because restrictive
state abortion laws ensure that these women are forced into unwanted pregnancy while "wealthy women, middle
class women, and women who have some money stashed away will be able to obtain abortions in another
country or across a state line or from a doctor who is a relative or friend." When legislators ignore the obvious
impact of state laws, they ensure that women go underground and take matters into their own hands.




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                           Equal Protection Solvency Evidence
Failure to protect women from fetuses is a violation of equal protection
Eileen L. McDonagh, Professor of Political Science, Northeastern University and Visiting Scholar, Radcliffe
College. Ph.D., Government Department, Harvard University, 1999, Albany Law Review, “My Body, My
Consent: Securing the Constitutional Right to Abortion Funding,”
The problem with claims that state refusal to fund abortions is a form of state action obligating a woman to be
pregnant is that no state overtly coerces a woman to be pregnant by passing legislation requiring her to become
pregnant or to remain pregnant; that is, neither the federal government nor any state directly conscripts a
woman's body for pregnancy service. Thus, rather than claim that the state engages in an unconstitutional form
of state action forcing a woman to be pregnant by prohibiting abortion funding, the consent-to-pregnancy
approach claims instead that the state engages in an unconstitutional form of state inaction by failing to offer
protection to a pregnant woman from harm resulting from the fetus equal to the protection the state offers to
other similarly situated victims of harm. See McDonagh, ("To the degree that the state assists victims of private
injury, so it must assist pregnant women who are undergoing the injuries of wrongful pregnancy.").




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                  Legal Abortion Reduces Health Complications

LEGAL ABORTION REDUCES HEALTH COMPLICATIONS OF ABORTIONS

Jeannie Rosoff, Allen Guttmacher Institute, SHARING RESPONSIBILITY: WOMEN, SOCIETY, AND
ABORTION WORLD-WIDE, 2003, http://www.guttmacher.org/pubs/sharing.pdf

In countries where abortion is broadly legal, services are usually accessible, and the procedure is performed
early in pregnancy by skilled practitioners; in these circumstances, abortion-related deaths are rare. Where
abortion is generally against the law, well-off women in cities are frequently able to obtain safe abortions, but
many of their poor and rural counterparts try to end their own pregnancies or turn to unskilled practitioners. Of
the 600,000 women who die each year from pregnancy-related causes, an estimated one in eight die of
complications from abortion. Abortion-related deaths are hundreds of times more common in Latin America and
Africa than in developed countries. Furthermore, experts believe that about one-third of women undergoing
unsafe abortions experience serious complications, yet fewer than half of these women receive hospital
treatment. Levels of maternal death and illness due to abortion have fallen dramatically in countries that have
liberalized their abortion laws.


SAFE ABORTIONS DO NOT THREATEN WOMEN’S HEALTH

Jeannie Rosoff, Allen Guttmacher Institute, SHARING RESPONSIBILITY: WOMEN, SOCIETY, AND
ABORTION WORLD-WIDE, 2003, http://www.guttmacher.org/pubs/sharing.pdf

The safest abortions are those performed early in pregnancy by well-trained practitioners using medical or
surgical methods. These practitioners work in hygienic conditions in a setting in which the procedure is legal
and the appropriate legal protections are enforced. Where abortions are performed in safe conditions, mortality
and morbidity rates are generally very low. In some representative developed countries, a woman’s likelihood of
dying as a result of a safe abortion performed with modern methods is no more than one per 100,000
procedures; this is lower than the risk of dying as a result of pregnancy or childbirth, which is between six and
25 per 100,000 live births in most developed countries.5 The probability of complications and death increases
with gestation, however. For example, in the United States, abortions at 16–20 weeks have a fatality rate of 6.9
deaths per 100,000 procedures, whereas those performed at gestations of eight weeks or less have a fatality rate
of only 0.4 per 100,000.




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                  Legal Abortion Reduces Health Complications

LEGALIZAING ABORTION REDUCES THE UNSAFE HEALTH CONSEQUENCES

Jeannie Rosoff, Allen Guttmacher Institute, SHARING RESPONSIBILITY: WOMEN, SOCIETY, AND
ABORTION WORLD-WIDE, 2003, http://www.guttmacher.org/pubs/sharing.pdf

By reducing or eliminating the need for unsafe procedures, the legalization of abortion increases women’s
chances of surviving the procedure and improves their subsequent health. It reduces the number of women likely
to suffer complications from unsafe abortion, leads to a drop in abortion-related mortality and thereby
substantially lowers overall maternal mortality rates. For example, in Romania, abortion was legally available
from 1957 to 1966, then was severely restricted as part of an overall pronatalist policy. As illegal and unsafe
abortions replaced legal procedures, abortion-related mortality rose steeply, reaching a record-high level of 142
deaths for every 100,000 live births in 1989; just one year later, when most restrictions were removed, the rate
fell to about one third its peak level. In Guyana, where abortion was made legal in 1995, admissions for septic
and incomplete abortions in the capital’s largest maternity hospital declined by 41% within six months after the
law went into effect. Before that, septic abortion had been the third largest, and incomplete abortion the eighth
largest, cause of admissions to the country’s public hospitals. And in South Africa, six months after legal
abortion became available in February 1997, the number of incomplete abortions at one large hospital in Port
Elizabeth had declined from an average of 18 every week to approximately four




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                                        Quick Rights Frontline
ABORTION RESTRICTIONS VIOLATE LIBERTY INTERESTS, PRIVACY RIGHTS, AND FORCE
WOMEN INTO INVOLUNTARY SERVITUDE

Robin West, law professor, Georgetown, WHAT ROE SHOULD HAVE SAID, Ed. Balkin, 2004, p. 140-1

Specifically, here, I think it unnecessary and perhaps unwise to strike these abortion laws, as they apply to
pregnancies following consensual intercourse, on two of the very broad grounds put forward by the Chief justice
and alluded to in several of the concurring opinions as well: first, that these laws violate a "right" not to be put to
the choice between wanted heterosexual intercourse unburdened by risks of pregnancy and celibacy, whether
such a right be called "privacy" or "liberty"; second, that these laws unconstitutionally force women to embrace
a life of motherhood that is itself inconsistent with the duties and rights of citizenship. Both of these asserted
constitutional rights-a right to motherhood and citizenship, and a right to companionate, rather than
reproductive, marital sexuality -if they exist, render constitutionally problematic entire social and cultural
regimes and require remedial legislation far beyond the scope of any-thing this Court could conceivably order.
Both rights, if they exist, will require a full-scale reordering of basic social institutions and, most centrally, a
full-scale reordering of the family. If, as the Chief Justice's argument implies, mothers are second-class citizens,
then presumably that is acceptable to both some women and perhaps many more men, because of the special
rewards and challenges of women's traditional place in family life.


EVERY INVASION OF FREEDOM MUST BE REJECTED

Sylvester Petro, professor of law, Wake Forest University, Spring 1974, TOLEDO LAW REVIEW, p. 480.
   However, one may still insist, echoing Ernest Hemingway – “I believe in only one thing: liberty.” And it is always
   well to bear in mind David Hume’s observation: “It is seldom that liberty of any kind is lost all at once.” Thus, it is
   unacceptable to say that the invasion of one aspect of freedom is of no import because there have been invasions of
   so many other aspects. That road leads to chaos, tyranny, despotism, and the end of all human aspiration. Ask
   Solzhenitsyn. Ask Milovan Djilas. In sum, if one believes in freedom as a supreme value, and the proper ordering
   principle for any society aiming to maximize spiritual and material welfare, then every invasion of freedom must be
   emphatically identified and resisted with undying spirit.




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                                             Slavery Frontline
COMPULSORY PREGNANCY IS SLAVERY THAT DESTROYS FREEDOM

John Swomley, graduate of Dickinson College, M Ph.D. in Political Science from the University of Colorado,
ST. LOUIS UNIVERSITY PUBLIC LAW REVIEW, 1993, p. 416

The government, for example, even by majority vote of the legislature, has no moral right to tell a married
couple that they must bear children or never bear children. There is no moral right to tell a woman, married or
unmarried, that she must become or remain pregnant against her will. Compulsory pregnancy is a form of
slavery, just as compulsory labor, referred to in the Constitution as involuntary servitude is contrary to human
freedom. Compulsory pregnancy may aggravate a woman's serious health problems, drastically affect her work
and income, and hence endanger the stability of her family and the well-being of existing children.




VIOLATIONS OF FREEDOM MUST BE REJECTED

Sylvester Petro, professor of law, Wake Forest University, Spring 1974, TOLEDO LAW REVIEW, p. 480.
   However, one may still insist, echoing Ernest Hemingway – “I believe in only one thing: liberty.” And it is always
   well to bear in mind David Hume’s observation: “It is seldom that liberty of any kind is lost all at once.” Thus, it is
   unacceptable to say that the invasion of one aspect of freedom is of no import because there have been invasions of
   so many other aspects. That road leads to chaos, tyranny, despotism, and the end of all human aspiration. Ask
   Solzhenitsyn. Ask Milovan Djilas. In sum, if one believes in freedom as a supreme value, and the proper ordering
   principle for any society aiming to maximize spiritual and material welfare, then every invasion of freedom must be
   emphatically identified and resisted with undying spirit.




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                                                  Privacy Frontline
THREE TYPES OF PRIVACY AT STAKE IN ABORTION – DECISION-MAKING,
CONFIDENTIALITY, PHYSICAL SECLUSION

Anita Allen, Law professor, Georgetown, STANFORD LAW REVIEW, November 2001, “Tribe’s Judicious
Feminism,” p. 185-6

To get a grip on the connections among constitutional liberty, abortion rights, and privacy, it is useful to
consider the interests of individuals that are threatened when governments attempt to curtail abortion choices.
In Whalen v. Roe, the Supreme Court in effect noted three main "privacy" interests amenable to legal protection:
(1) an interest in autonomous decision-making, (2) an interest in confidentiality, and (3) an interest in physical
 seclusion. Privacy in all three of these important senses is at stake in the choice of competing abortion policies.
At issue primarily is the interest of all women in making choices about reproduction that are not mandated by
government. Autonomous choices, free of the controlling interference of public officials, are "private" choices.
To believe in the right to privacy, we need not believe that nature divides social life literally into public and
private realms. We can coherently describe the condition of being relatively free of the most direct,
consequential, and commonly offensive governmental interference as our "privacy." In this sense of the term,
"privacy" connotes autonomy, liberty, freedom, and the peace of mind which stems from the independent
exercise of one's own judgment.

PRIVACY PROTECTION IS NECESSARY TO PREVENT TYRANNY

Ferdinand Schoeman, Professor of Philosophy, University of South Carolina, PHILOSOPHICAL DIMENSIONS OF PRIVACY,
1984, p.21. (DRGCL/B1128)



Benn suggests that part of our notion of a person as free is that he is subject to the authority and scrutiny of others only within
reasonable and legally safeguarded limits. In other words, people have a right to a private life. People can be held socially
accountable only for respecting the rights of others, and can be thought to have obligations to promote the welfare of society only if
these obligations have been voluntarily assumed or if especially pressing reasons are operative. George Orwell’s novel 1984
presents one picture of what life would be like in a society which did not limit itself in the way Benn prescribes.




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                                                                        Citizenship Frontline

RESTRICTION ABORTION RIGHTS VIOLATES EQUAL CITIZENSHIP PRINCIPLES

Reva Siegel, law professor, Yale, WHAT ROE SHOULD HAVE SAID, Ed. Balkin, 2004, p. 72

Because state regulation of pregnant women is sex-based state action, when the state distributes benefits and
burdens on the basis of pregnancy, it must act in ways that are consistent with the equal citizenship principle:
wives and mothers are entitled to participate in education, work, and politics on the same terms as husbands and
fathers. Thus, regulation aimed at pregnant women may not be premised on stereotypical assumptions about the sexes or perpetuate second-class citizenship for women, and the state may no longer
regulate pregnant women on the assumption that mothers participate in the activities of citizenship on different terms than do men.' See LaFleur v. Cleveland Board of Education, 465 F.2d n84 (6th Cir.
1972) (holding invalid under the Equal Protection Clause a school board rule that required pregnant teachers to take an unpaid leave of absence that would begin five months before birth and end at the
                                         Justifications this Court once held to be reasonable grounds for
beginning of the first school term after the child was three months old).

restricting the life opportunities of women are no longer constitutionally sufficient.


STRONG CITIZEN PARTICIPATION IS NECESSARY TO PREVENT EXTINCTION

Small 06 (Jonathan, former Americorps VISTA for the Human Services Coalition, “Moving Forward,” The
Journal for Civic Commitment, Spring,
http://www.mc.maricopa.edu/other/engagement/Journal/Issue7/Small.jsp)
What will be the challenges of the new millennium? And how should we equip young people to face these challenges? While we cannot be sure of the exact nature of the challenges, we can say
                                                                                                                                                          the new century
unequivocally that humankind will face them together. If the end of the twentieth century marked the triumph of the capitalists, individualism, and personal responsibility,

will present challenges that require collective action, unity, and enlightened self-interest. Confronting global
warming, depleted natural resources, global super viruses, global crime syndicates, and multinational
corporations with no conscience and no accountability will require cooperation, openness, honesty, compromise,
and most of all solidarity – ideals not exactly cultivated in the twentieth century. We can no longer suffer to see life through the tiny lens of our own existence. Never in the
history of the world has our collective fate been so intricately interwoven. Our very existence depends upon our
ability to adapt to this new paradigm, to envision a more cohesive society. With humankind’s next great challenge comes also great
opportunity. Ironically, modern individualism backed us into a corner. We have two choices, work together in solidarity or

perish together in alienation. Unlike any other crisis before, the noose is truly around the neck of the whole world at once.
Global super viruses will ravage rich and poor alike, developed and developing nations, white and black,
woman, man, and child. Global warming and damage to the environment will affect climate change and destroy
ecosystems across the globe. Air pollution will force gas masks on our faces, our depleted atmosphere will make
a predator of the sun, and chemicals will invade and corrupt our water supplies. Every single day we are presented the opportunity to
change our current course, to survive modernity in a manner befitting our better nature. Through zealous cooperation and radical solidarity we can alter

the course of human events. Regarding the practical matter of equipping young people to face the challenges of a global, interconnected world, we need to teach
cooperation, community, solidarity




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                             Holocaust Answers – Frontline
TURN: EMPIRICALLY, GOVERNMENT INVOLVEMENT IN INDIVIDUAL CHOICES PRODUCES
NAZIISM

Anita Allen, Law professor, Georgetown, STANFORD LAW REVIEW, November 2001, “Tribe’s Judicious
Feminism,” p. 197-8

Although Tribe seems to appreciate the importance of judicial willingness to stand by anti-majoritarian and
unpopular constitutional principles, he also clings to the possibility of broad public compromise. To set up his
proposals for compromise, Tribe surveys abortion law and practices in other parts of the world and other periods
of history. He describes the eugenic abortion policy of Nazi Germany to illustrate the evils of government
overinvolvement in individual choices: Under the Third Reich, a "genetically pure" Aryan woman who had an
abortion was subject to the death penalty, while "genetically defective" women were sterilized.




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                                                        Holocaust Answers – Frontline
NO EMPIRICAL SUPPORT FOR THE CULTURE OF DEATH ARGUMENT

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 298
A second non-rights-based argument against abortion turns on the claim that a permissive attitude toward abortion contributes to what is often referred to as a “culture of death”
(e. g., Pope John Paul II 1995: 17), in which attitudes become more permissive toward killing in general. Thus, even if the fetus itself does not have the same right to life as you
and I, or even if its having such a right does not suffice to make abortion impermissible, abortion must still be opposed as a means of avoiding other killings that are
uncontroversially impermissible, such as the killing of infants or the elderly. This argument, like the golden rule argument, is not generally represented in the academic literature
                                                                                                    There are three reasons to reject
on abortion, but, again like the golden rule argument, it is widely defended in more popular works opposed to abortion.
this culture of death argument. The first is that there is insufficient statistical evidence to warrant the claim that
infanticide rates are higher now than they were generally when abortion was illegal. In fact, according to Everett
Lee, a demographer who has analyzed decades worth of such statistics, precisely the opposite is the case: The
deliberate killing of newborns was more common 30 years ago than it is today, although today individual cases
are more likely to receive national attention. Moreover, there is a sensible explanation for why this would be the
case: “There’s no question that abortion prevents, or substitutes for, a lot of these infanticides” (Lee, quoted in
Kantrowitz 1997: A-24 ). Indeed, as a recent unpublished paper by John Donohue of Stanford University Law
School and economist Steven Levitt of the University of Chicago argues, the decriminalization of abortion
throughout the United States in 1973 has likely been responsible for the significant decrease in overall crime
that occurred during the late 1990s. As Donohue and Levitt point out in the abstract of their paper, three strands of relatively uncontroversial empirical
evidence support this thesis (1999 : abstract): First, the significant decline in the crime rate in the United States began to occur just as the first generation of Americans to have
been born after Roe v. Wade began to reach the peak ages of criminal activity. Second, the few states that decriminalized abortion a few years prior to 1973 were the first to
experience a decreasing crime rate. Third, the states with the highest abortion rates have seen a greater decrease in crime. In addition, as Donohue and Levitt also point out, there
is a natural explanation for why liberal access to abortion would eventually lead to a decrease rather than an increase in crime. Abortion, after all, is not randomly distributed
throughout the population. A disproportionate number of abortions are performed on women who are, on average, at a higher risk of having children who would go on to engage
in criminal activity. According to Donohue and Levitt’s statistical study, then, legalized abortion in the United States “can explain about half of the recent fall in crime.”
None of this is to say, of course, that the resulting decrease in crime counts as a good argument in favor of
abortion (and neither Donohue nor Levitt claim that it is). Rather, it is to say that it presents a decisive
consideration against the empirical assumption underlying the culture of death argument against abortion. The
second reason to reject that argument is that even if we assume for the sake of the argument that there has been
an increase in infanticide in particular, or of crime in general, it does not follow that the decriminalization of
abortion in the United States in 1973 played an actual causal role in the (assumed) subsequent increase in
criminal activity. There are many other possible explanations as well. And a general survey of existing attitudes
toward abortion suggests that the claim is implausible. In contemporary Japan, for example, abortion is treated
as the primary method of birth control, and there is no evidence that this has fostered a more general culture of
death in that country. 8 Indeed, if anything, it is a common lament that violent crime is far more pervasive in the United States than in Japan. But let us suppose that both the empirical
claim underlying the culture of death argument and the hypothesis it proposes to account for it are correct. Let us suppose that a society that adopts a permissive attitude toward abortion can reasonably
expect to see an increase in infanticide and just plain old murder. Even if we assume all of this, the argument’s conclusion still does not follow. For at this point, a distinction long appealed to by critics of
abortion comes back to haunt them: the distinction between intending harm and merely foreseeing it. An example that is commonly used to illustrate the moral relevance of this distinction turns on the
apparently well-established claim that when societies increase their spending on education, the rate of suicide goes up. But surely this fact does not establish that increasing spending on education is morally
impermissible. In increasing such spending, one intends to benefit those who will benefit and merely foresees that some additional suicides will occur as a result. And the same would have to be true in this
case as well: In supporting the liberalization of attitudes toward abortion, one would intend to benefit those women who would be relieved of the burdens of their unwanted pregnancy and would merely
foresee that some additional murders will occur as well. There are, of course, many reasons that could be given for holding that liberalizing attitudes toward abortion is relevantly different from increasing
spending on education, but then one would have to provide direct reasons for holding that abortion is morally impermissible. The culture of death argument attempts to avoid doing this, hoping that the
impermissibility of other practices will somehow rub off on it. But it cannot successfully do so.




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                              Holocaust Answers – Frontline
CRIMINALIZING ABORTION WILL NOT INCULCATE VALUES OF PRENATAL LIFE

Ruth Colker, Professor of Law, Tulane University; TULANE LAW REVIEW, June 1989 p. 1379-80

The criminal law is an inappropriate way to deal with the abortion issue if we respect all women's well-being.
That approach results in our imposing enormous penalties on a pregnant woman without dealing with the
fundamental conditions under which that pregnancy may have occurred. That lack of respect becomes clear
when we consider the statute in gender terms. The abortion statute subjects the pregnant woman to criminal
sanctions and leaves the man who was involved in the pregnancy untouched by the criminal or civil laws. If the
state is interested in inducing people to value prenatal life more dearly, I doubt that criminalizing the pregnant
woman's behavior will achieve that result.

SOCIETY FAILS TO SUPPORT LIFE, AND WOMEN DO NOT HAVE ABORTIONS TO KILL

Ruth Colker, Professor of Law, Tulane University; TULANE LAW REVIEW, June 1989 p. 1380-1

Let me be clear that my argument concerning the inappropriateness of the criminal laws is not based on a
traditional privacy theory concerning a woman's right to bodily autonomy. Instead, it is an argument about the
present social and historical circumstances in which women find themselves pregnant. Women do not engage in
sexual intercourse to produce an unwanted pregnancy. That unwanted pregnancy often occurs due to inadequate
safe contraception and coercive sexual relations. Similarly, women do not choose to be pregnant in a society that
fails to protect the life and health of the pregnant woman and the prenatal life that she is carrying. That lack of
protection of life and health is a larger social problem. Women also do not choose to carry a pregnancy to term
in a society that does not provide for their medical needs and the life and health of the children that are born, and
that does not provide adequate day care for these children. Again, that lack of care is a larger social problem.
Finally, women do not have abortions because they want to "kill" prenatal life. Rather, women reluctantly
choose abortions as the only available means to protect their own well-being. A respectful and considered
response to the life conditions that cause women to "choose" abortion would not include use of the criminal laws
to add further coercion to a woman's life.




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                               Holocaust Answers – Frontline
TURN: 1) EMPIRICALLY, LEGALIZED ABORTION REVERSED THE SLOPE, 2) YOU LIVE WITH THE
DISTINCTION

Cliff Walker, INTRODUCTION TO ACTIVISTIC ATHIESM, 2000, p.
http://www.positiveatheism.org/faq/faq1114.htm

Garrett Hardin, pioneer in the science of human ecology, says that the slippery slope is unavoidable in this and
many debates. Asked about the objection that legalized abortion “puts us on the slippery slope to euthanasia,
assisted suicide, and elimination of the ‘unfit,’” he responds:

“First let’s look at the concept of the slippery slope. Every ethical decision puts you on the slippery slope. You
just have to live with it. For example, we used to have a speed limit of 65 mph. That’s a slippery slope for God’s
sake. No matter where you put the speed limit, people want to push it up and up and up. The only completely
safe speed limit is zero mph. Anything above that will get pushed up and up. What do we do? We draw an
arbitrary line and set the speed limit at a certain level. Back in the days of the old 65-mph limit, you couldn’t
prove statistically that 66 was more dangerous than

“In the specific case of abortion, the matter is particularly easy in that no woman wants a late abortion. Once
abortion was made legal, the age of the aborted fetus went down. The slope slipped in the other direction. If we
legalize RU-486 and other similar new drugs, the age will fall to one week or less and start approaching zero.
The slippery slope will slide in the other direction. The only reason we have late abortions is because we make
early abortion difficult.”




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                                Holocaust Answers – Frontline
THERE IS NO EMPIRICAL SUPPORT FOR THEIR SLOPE ARGUMENT – ABORTION HAS BEEN
LEGALIZED IN THE U.S. FOR 32 YEARS

Daniel Bader, Phd Candidate, Philosophy, THE LYCEUM, 2005,
http://peripatus.blogspot.com/2005/08/slippery-slopes.html

Empirical Slippery Slopes. Empirical slippery slopes are claims about facts, not claims about principles. In this
case, one argues that a given situation will lead to a much worse situation in the future. For instance, one might
argue that voluntary euthanasia among the elderly will lead to a devaluing of the lives of the elderly and will
therefore lead to involuntary euthanasia among the elderly. Voluntary euthanasia among the eldery does not in
principle require involuntary euthanasia; one can supplement the arguments that the lives of seriously ill people
are not worth living with a principle respecting autonomy and avoiding paternalism. Instead, an argument such
as this must be demonstrated in the same way any empirical premise must be demonstrated, through evidence.
In this case, the best approach would be to examine other countries that have allowed voluntary euthanasia and
to see whether or not those countries have lapsed into involuntary euthanasia. If they have, the argument is a
sound, empirical argument. If not, then the argument is unsound. If there are no countries that have done so or
there is an insufficient time lapse, then one may use judgement about human nature while understanding the
limitations of this sort of evidence. The argument becomes fallacious when an empirical slippery slope with
insufficient evidence is asserted. However, this is not a special "slippery slope fallacy", but is just bad induction.




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                              Holocaust Answers – Frontline
NO EVIDENCE PEOPLE WON’T RECOGNIZE THE DIFFERENCE BETWEEN ABORTION AND
INFANTICIDE

Trudy Govier is a philosopher and author of many books, including Forgiveness and Revenge,
Dilemmas of Trust and A Practical Study of Argument., THE FAMOUS, OR INFAMOUS, SLIPPERY
SLOPE ARGUMENT, http://www.humanistperspectives.org/issue152/famous_infamous_slope.html

Reasoning by appealing to relevantly similar cases is highly important in law, administration, and ethics. In
general, this kind of case-based reasoning is acceptable. It’s referred to as reasoning from precedent. In slippery
slope arguments, precedent reasoning is used incorrectly. The problem is that these arguments assume that cases
that are legitimate are relevantly similar to other cases that are not legitimate. But if one sort of action is
legitimate and another is illegitimate, there must be a relevant difference between them. And there are relevant
differences. Think about it. Abortion is relevantly different from infanticide; lesbian marriage is relevantly
different from incest; assisted suicide is relevantly different from murder. Slippery slope arguments assume that
people will regard one sort of thing as a precedent for others — despite relevant differences that exist between
the cases. The claim underlying the slippery slope is that because they will ignore relevant differences, people
will come to endorse illegitimate actions as a result of their acceptance of legitimate ones. Such carelessness will
put them (or all of us) on an unstoppable slide to the degenerate bottom of a moral hill. The claim that
differences will not be noticed is a broadly empirical claim. It needs to be supported by evidence. But in most
slippery slope arguments, no such evidence is given. Claims that moral slippage is going to occur are
undefended at best, and wildly implausible at worst.




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                           Women’s Health Answers Frontline
ABORTION IS 8 TIMES SAFER THAN CHILD BIRTH

Donald Hope, U Conn, TOLEDO LAW REVIEW, Winter 2001, The Hand As Emblem Of Human Identity: A
Solution To The Abortion Controversy Based On Science And Reason p. 257

Finally I was given a few minutes to point out in the most passionate yet professional way I could the varied
impacts of pregnancy on a woman's life. I stressed that legal abortion in early pregnancy is eight times safer than
carrying a pregnancy to term. I concluded that portion of my presentation by saying that to a woman, pregnancy
is perhaps the most determinative aspect of her life: "It disrupts her body, it disrupts her education, it disrupts
her employment, and it often disrupts her entire family life. And ... because of the impact on the woman, this
certainly, in as far as there are any rights which are fundamental, is a matter ... of such fundamental and basic
concern to the woman involved that she should be allowed to make the choice as to whether to continue or
terminate her pregnancy."


REPORTS OF HEALTH-RELATED ABORTION COMPLICATIONS ARE FALSE


Guttmacher Institute, MEDIA Center, 2006,
http://www.guttmacher.org/media/index.html#news4

Federally funded “crisis pregnancy centers” (CPCs) frequently mislead and misinform pregnant teens about the
health risks of induced abortion, according to a congressional investigative report titled False and Misleading
Health Information Provided by Federally Funded Pregnancy Resource Centers. The report was released on
July 17 by Rep. Henry Waxman (D-CA), ranking member of the House Government Reform Committee and
outlines how CPCs in 15 states that received federal tax dollars misled or provided false information to
investigators who called posing as pregnant 17-year-olds seeking advice about an unintended pregnancy.

Of the 23 CPCs contacted by investigators, 20 provided false or misleading information by claiming–contrary to
the scientific evidence–that there is a link between abortion and breast cancer, that abortion harms future fertility
or that abortion increases a woman’s risk of suffering severe mental health problems. CPCs, which are often
affiliated with antichoice organizations, engage in what the report labels an “inappropriate public health
practice,” despite having received over $30 million in federal funding between 2001 and 2005.




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                       Answers to the Golden Rule Argument

WHAT I WISH YOU TO DO AND WHAT YOU SHOULD DO ARE TWO DIFFERENT THINGS

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 285-6

First, notice that the principle is not symmetric: It asserts that we should do to others as we wish them to do to
us. But what I wish you to do and what I think you should do are two different things, so that if the principle is
meant to rest on the sort of formal impartiality that all these theories have in common, it should instead read P1•:
We should do to others as we think they should do to us. Indeed, not only does P1’ s lack of symmetry deprive it
of the sort of support Hare claims for it, but it seems also to generate unreasonable implications as well. I may
well wish others to shower me with lavish presents without thinking that such gift giving is something that (they
or) I should do. 2 It is perfectly coherent for me to say that I wish that others would do more for me than merely
what they should do for me, but it is incoherent for me to say that I should do more for others than merely what I
should do for them. Indeed, it seems perfectly coherent for me to say that I wish that others would do for me
things that they shouldn’t do for me, but incoherent for me to say that I should do for others what I should not
to.




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                        Answers to the Golden Rule Argument
THE ARGUMENT FALSELY ASSUMES ALL MORALS HOLD EQUALLY

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 286

A second problem with P1 is that it treats all moral should equally, whereas many of the theories Hare appeals
to for support would insist, at the least, on distinguishing between what I should be morally required to do, what
I should be morally permitted to do, and what I should be morally praised for doing. So while P1• represents an
improvement over P1, even it does not suffice if it is to stand on the sort of support Hare is appealing to. Instead,
we would have to say something like P1••: We are (a) required to do to others what we think they are required to
do to us, (b) permitted to do to others what we think they are permitted to do to us, (c) forbidden to do to others
what we think they are forbidden to do to us, and (d) entitled to praise for doing to others what we think they are
entitled to praise for doing to us. I suspect that most people initially drawn to P1 will find P1•• to reflect their
considered view more accurately. If I am right about this, then Hare’s argument collapses. The conclusion that
others are required to refrain from terminating pregnancies that would result in the birth of others relevantly like
us would follow from P1•• only if we also accepted what I will call P2•: We think others were required to
refrain from terminating the pregnancy that resulted in our birth. And insisting on the truth of P2• would clearly
beg the question, since the whole point of the argument is to try to determine whether or not terminating such
pregnancies is permissible in the first place. From P1•• and P2 we can conclude only that a woman who believes
that her mother deserves praise for refraining from terminating the pregnancy that resulted in her birth should in
turn believe that she is entitled to praise if she refrains from terminating a pregnancy that would result in the
birth of another relevantly like her. But this constitutes no serious challenge to the practice of abortion. It is
merely to say, what I expect any defender of the permissibility of abortion would happily acknowledge, that a
child should be grateful to his or her mother for the burdens she incurred in carrying her child to term. In this
sense, the more well-founded of the various signs carried by those protesting abortion is the one that reads “If
My Mom Didn’t Care/ I Might Not Be Here/ Thanks, Mom!” (cited in Schaeffer and Koop 1979: 53), which
suggests not that the mother who carried her pregnancy to term did something she was morally obligated to do,
but rather that she did something worthy of praise and gratitude. Indeed, in an ironic twist to the case of Doe v.
Bolton, the lesser-known decision handed down at the same time as Roe v. Wade, the woman who
unsuccessfully attempted to obtain an abortion has since become an opponent of abortion, while the daughter
she subsequently gave birth to now says of her mother that “If she’d had an abortion she would have had her
right” (quoted in Tribe 1992: 6). In short: P1 of Hare’s version of the golden rule argument is unacceptable, and
the only acceptable revision of it renders Hare’s argument itself invalid. Let us suppose, however, that despite
these considerations we find ourselves nonetheless enamored of P1 as Hare has presented it. There remains the
question of P2. Hare sketches a defense of P2 by urging us to meditate on those things that make us glad that we
were born, which he in turn seems to equate with our being glad to be alive.




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                 Answers to: “Glad My Mother Didn’t Abort Me”
GENNSLER’S FLAWED NOTION OF CONSENT DOOMS HIS ARGUMENT

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 291-2

Finally, Gensler attempts to motivate the claim he needs you to assent to in order for his argument to yield a
negative judgment of abortion, namely, that “You do not consent to the idea of your having been aborted in
normal circumstances” (1986 : 314). He does this by means of the following example: Suppose that you had a
sadistic mother who, while pregnant with you, contemplated injecting herself with a blindness-drug which
would have no effect on her but which would cause the fetus (you) to be born blind and remain blind all its
(your) life. Your mother could have done this to you. Do you think this would have been all right — and do you
consent to the idea of her having done this? (1986 : 313) Gensler takes it that you will clearly answer no, and
regardless of what stage the pregnancy has reached. But to apply his version of the golden rule to the case of
abortion, he then argues, “We need only switch from a blindness-drug (which blinds the fetus) to a death-drug
(which kills the fetus)” (1986 : 314). And surely if you didn’t consent to the blindness drug you won’t consent to
the death-drug. We can view this as a continuation of the argument begun previously, where C2 is simply a
particular instantiation of the version of the golden rule that constitutes that argument’s conclusion: There is
basically one problem with this argument, but it is a big enough problem to warrant rejecting it. The problem
lies in Gensler’s use of the word consent. What does he mean by it? Presumably we are not meant to take the
expression literally, since one cannot literally consent to having something happen in the past. 4 Gensler
emphasizes that his version of the golden rule “has to do with my present reaction toward a hypothetical case in
which I may imagine myself as asleep or dead or even a fetus,” but my present reaction cannot be one of
agreeing to let something happen in the past, even the hypothetical past. At several points, Gensler equates the
idea of consenting to a given act with the idea of approving of it: “If I think it would be all right to rob Jones but
yet I don’t consent to (or approve of) the idea of someone robbing me in similar circumstances, then I violate
[the golden rule] and am inconsistent” (1986 : 311; see also two instances of this on p. 314). And this seems to
make more sense: I can express approval or disapproval of events in the past, whether they involve me or not.
But now the question is: what, specifically, does Gensler mean by “approve of”? There seem to be three
possibilities. The first is that to approve of an action is to think favorably of it, to endorse it, to think it the right
thing to do. This, I take it, is the ordinary meaning of the term. It would seem very strange to say “I approve of
her doing it, but don’t think she should be doing it.” 5 But if this is what Gensler means by consenting to an
action, then P2 (which Gensler derives from the prescriptivity principle) is simply false. You can think it
morally permissibl for someone to circulate stories about your lurid past without having to think that circulating
such stories is the right thing for them to do. Gensler says that “if I think an act would be all right but I don’t
consent to it being done, then I ... am inconsistent” (1986 : 311), but there is nothing at all inconsistent about
agreeing that lurid gossip is morally permissible while refusing to approve of it in this sense. For there is simply
nothing inconsistent or hypocritical about thinking that someone has made a morally criticizable choice even
though they have made a morally permissible choice. This would be inconsistent only if you also held the view
that the only grounds for morally disapproving of what a person does is that the action is impermissible, and this
is an extremely implausible view and one that Gensler has provided no reason for accepting. So Gensler’s
version of the golden rule argument will fail if this is what is meant by consent. A second and weaker sense of
approval, however, would seem to rescue Gensler from this difficulty. This is the sense in which to approve of
something is simply to accept it as permissible. The role of the approver, on this account, is simply to determine
whether or not the proposed action in question is consistent with the appropriate requirements and then to give
or withhold her approval accordingly. In this sense, P2 is certainly plausible. It would be hypocritical for you to
maintain that gossiping is morally permissible in general and then to refuse to acknowledge that those who are
gossiping about you are doing something permissible. Strictly speaking, it need not be inconsistent for you to do
this. It would be inconsistent for you positively to assert that what they do is impermissible, since this would
contradict your general claim, which entails that what they do is permissible. But by refraining from consenting
to their actions, you need not be denying that what they do is permissible. You are merely declining to affirm it.
Still, Gensler would be right to say that there is an important sense in which this would fail to keep your moral
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beliefs “in harmony” with the rest of your life. So there is an important sense in which, if to approve of
something is simply to accept it as permissible, then P2 is true. If we defend P2 in this way, however, the
problem is simply shifted to P3. For saying that P3 is true in this sense will simply beg the question that Gensler
is trying to answer. That is, in order to say that P3 is true, we will now have to say “I do not think it would have
been morally permissible for my mother to have had an abortion when she was pregnant with me.” And whether
it would have been permissible for her to do so is precisely the question at issue. There is a third possibility.
When Gensler introduces the application of his version of the golden rule to the case of stealing, he
characterizes the assumption that you do not consent to the idea of people stealing from you as “an empirical
premise about your desires” (1986 : 311, emphasis added). Similarly, he characterizes the argument as a whole
as showing what follows given that somone has “a certain desire,” and he notes that he will “generally assume
that the reader desires not to be robbed or blinded or killed” (1986 : 312, emphasis added). And he responds to
the prospect of a person who might consent to the death-drug but not to the blindness-drug by saying that “Such
a person could be consistent, but only with bizarre desires about how he himself is to be treated” (1986 : 315,
emphasis added). So perhaps Gensler should simply be understood as saying that to consent to or approve of an
act is to desire that it be done. In many respects, this does indeed seem to be the most straightforward
interpretation of the text, and it does put P3 back on firmer ground. I have refrained from attributing it to
Gensler as the primary reading, however, because if this is what he does mean, then his formulation of the
golden rule has precisely the same defect that he explicitly recognizes in Hare’s version. And since he claims
that the purpose of his argument is to defend a version of the golden rule that is immune to this objection, it
seems uncharitable to attribute this version of the rule to him unless no other cogent interpretation is
forthcoming. Since I have argued that the other interpretations fail to yield a convincing argument, however, we
must finally consider that this may be what Gensler means. Near the end of his paper, for example, Gensler at
one point characterizes his argument as follows: “I claim that most of the times the pro-abortionist will find that
he is indeed inconsistent — he is supporting certain moral principles about the treatment of others that he would
not wish to have followed in their actions toward him” (1986 : 316). Strictly speaking, Gensler here seems to be
saying of the defender of abortion that he would not wish his mother to have acted on the principle that abortion
is morally permissible when she was pregnant with him. But there is no reason to think that this is so: The
defender of abortion may not wish that his mother had had an abortion, but he need not wish that she acted on a
principle that made her having an abortion impermissible. But Gensler can also be taken to mean that the
defender of abortion would not wish his mother to have had an abortion. This much may certainly be true, but
now we really are back to Hare’s version of the argument and thus to Hare’s fallacy: It simply does not matter
what I would like other people to do or refrain from doing to me because it does not follow from the fact that I
desire that they not do something to me that I must think it impermissible for them to do it to me (or, therefore,
for me to do it to them). Again, I may well desire that they not tell stories about my lurid past without thinking
that it is impermissible for me to tell stories about their lurid pasts. So if we construe consent in this way, then
P2 (and C1) turn out to be false. There seems, then, to be no consistent meaning of consent on which all of the
premises of Gensler’s argument are true. This objection seems to me sufficient to warrant rejecting Gensler’s
version of the golden rule argument, but it is worth noting a few additional difficulties. One concerns his attempt
to justify P3 by appealing to the example of the blindness-drug. Gensler argues that it would be bizarre to refuse
to consent to the blindness-drug case but to consent to the death-drug case and that not consenting to the death-
drug case amounts to accepting P3. But both of these claims are subject to serious objection. The first claim can
be challenged on the grounds that it neglects the distinction between potential people and future people. When
the pregnant woman takes the blindness-drug, a defender of abortion can plausibly argue, there is a future
person she is harming, namely the one who will later be born blind. He is worse off than he would have been
had she not taken the drug. When she takes the death-drug, however, there is no such person who is made worse
off than he would otherwise have been. The killing-drug does not harm anyone’s interests because it does not
result in a person who is worse off than he would have been had the drug not been taken, since it does not result
in any person at all. 7 A critic of abortion, of course, could respond to this rebuttal by arguing that the fetus is
already a person. But it would seem that in order to do so, he would then be abandoning what is distinctive
about the golden rule argument, that it is supposed to be able to show that abortion is immoral without having to
rely on such claims. The second claim Gensler uses to support P3 maintains that if you do not consent in the
death-drug case, then you do not consent to the idea of your having been aborted in normal circumstances. But
there is an important difference between the two cases, which Gensler neglects entirely. In the case of the
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blindness-drug, Gensler explicitly stipulates that taking it will have “no effect” (1986 : 313) on the pregnant
woman. She takes it not to relieve herself of some substantial burden, but merely in order to satisfy her sadistic
desire to cause some suffering in somone else. But this means that if we agree that we do not consent to this (on
any account of what “consent” means) and then substitute a deathdrug for a blindness-drug, we are committed
only to the claim that we do not consent to the idea of our mother having an abortion when doing so would do
nothing to relieve her of any burden but would cause suffering in someone else, which would in turn give her
pleasure. It is difficult to imagine what such a case would look like, since an abortion will by definition relieve
her of the burdens of pregnancy, whereas the blindness-drug relieves her of nothing. But I suppose we might
picture a case where for some reason the abortion will cause just as much physical pain and inconvenience to
her as pregnancy and childbirth would, and where she has the abortion only because this will cause someone
else, let us suppose the father of the child who wants very much for her to continue the pregnancy, to suffer. We
can certainly agree that we do not consent to the idea of her doing this, in any of the senses of consent noted
above. But this is hardly tantamount to agreeing that we do not consent to abortion under normal circumstances.
Finally, it is important to note that Gensler, too, fails to overcome the objection that his argument, if accepted,
would also entail that the use of contraceptives and even abstinence is impermissible, and equally so. After all, if
I don’t consent to or approve of abortion because it would have caused me not to have been born, then it would
seem I must also disapprove of abstinence and contraception on the same grounds. Gensler’s response to this
objection is to concede its initial force but to say that there is a difference between abortion and contraception
which is brought out by focusing on the universalization requirement implicit in P1: If I hold “It is wrong to
have an abortion in this (my) case,” then I have to make the same judgment in all similar cases; but I can easily
hold (consistently) that it is in general wrong to have an abortion. But if I hold “It is wrong to prevent
conception ... in this (my) case,” then I again have to make the same judgment in all similar cases; but I cannot
hold (consistently) that it is in general wrong to prevent conception — since this would commit me to desiring a
policy which would bring about a greatly overpopulated world of starving people at a very low level of human
life.” (1986 : 317) And so as a result, Gensler says he comes “though with hesitation” to consent to his parents’
having not conceived him, though not to consent to their having aborted him (1986 : 317). There are a few
problems with this response. First, notice that Gensler again slips into grounding his argument on what I would
call “desire.” And as we have already seen, what I would desire is not the issue. But there is a more important problem here. Gensler maintains that if you hold that it is wrong to prevent
conception in your case, then you will also have to hold that “it is in general wrong to prevent conception.” But this is not so. You will have only to hold that preventing conception is wrong in circumstances
similar to those under which you were conceived. And everything turns on what makes such cases similar. Consider, for example, a newly married, financially secure couple who desire and plan to have two
children and who could easily support one child right away. They prefer to wait a few years before starting a family, but prefer not to wait a few years before having sexual intercourse. So they use
contraception. Suppose your parents did not use contraception and conceived you shortly after they were married, even though they, too, were hoping to wait a few years before starting a family. On
Gensler’s account, you will initially be inclined not to consent to the idea of their having used contraception, but will eventually be persuaded to consent to it because refusing to consent to it would commit
you to approving of a policy that would lead to devastating overpopulation. But refusing to approve of your parents using contraception in this case commits you only to the view that it is wrong to use
contraception under similar circumstances. And nothing about accepting this rule would commit you to producing an overcrowded world of starving people. The rule applies only to people who have no
children, who can easily support one, and who want and plan to have children anyway. It would not increase the population because it would not force anyone to have a child who did not want to have a
                                                                                  So Gensler has no grounds for
child, nor would it force anyone to have more children than they wanted to have, nor would it force anyone to have a child they could not support.

rebutting the claim that if his argument shows that abortion is immoral, it shows that it is equally immoral, and
for the same reason, for people in such circumstances to use contraception.




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                             Answers to: “Glad My Mother Didn’t Abort Me”

THIS WOULD MAKE BIRTH CONTROL IMMORAL

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 287

After all, if I am glad that my mother did not have an abortion while pregnant with me and if this suffices to
commit me to the view that abortion is wrong, then since I must also be glad( and equally glad) that she was not
using contraception at the time I was conceived, this must equally commit me to the view that contraception is
wrong and equally wrong. But this implication is unacceptable. And so, therefore, is Hare’s argument. Hare’s response to this significant difficulty is essentially
to concede it (1989 : 182— 3). He suggests that there may be some reasons to distinguish the practices, such as the fact that abortion is a more complex medical procedure and
that it involves killing someone the woman may feel affection for, but it is not at all clear how these considerations can legitimately enter the picture on a golden rule account: If
it makes no difference to me whether I was born because my mother was prevented from using contraception or because she was prevented from having an abortion, then if the
                                                                                 contraception. And even if these
argument shows I should refrain from endorsing abortion, it seems equally to show that I should refrain from endorsing
considerations are admitted, they seem only to show that a woman may have a self-interested reason to use
contraception rather than abortion if she is going to use one or the other, not that she has a moral reason to think
that one is permissible even if the other is not. And even if it did establish that she had a moral reason to prefer
contraception to abortion, this would do nothing to show that it would be immoral for her to have an abortion if
she had (wrongly?) neglected to use contraception in the first place or if the contraception she had used had
failed. There seems, then, to be no way for Hare’s argument to avoid entailing this unacceptable conclusion. A
defender of Hare’s position here might complain that in characterizing this implication as unacceptable, I am
counting on the reader’s sharing the belief that contraception is morally permissible. And if I am doing this, then
I am violating the fundamental principle this book has set out to follow, to attempt to defend abortion while
appealing to claims that critics of abortion generally accept. For, it might be pointed out at this point, many
people who oppose abortion also oppose contraception. This is true. But it does not diminish the force of this
objection to Hare’s argument. What is unacceptable about Hare’s argument is not merely that it entails that
contraception is immoral (though for many people, this implication alone suffices to render the argument
objectionable), but that it entails that contraception is morally on a par with abortion. Many critics of abortion do
not oppose contraception, but even those critics of abortion who do oppose both contraception and abortiondo
not accept that they are equally wrong and for the same reason. In addition, if Hare’s argument entails that
contraception is immoral, then it also entails that abstaining from intercourse altogether is also immoral, since I
must be just as glad that my parents did not abstain from intercourse as I am that they did not use contraception
and that my mother did not have an abortion. But surely every critic of abortion agrees that it is not immoral to
abstain from having sexual intercourse. And so one can appeal to this reductio ad aburdum objection to Hare’s
argument as a further reason to reject it while still engaging critics of abortion on their own terms.




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                              “Abortion is Selfish” Answers
TURN: WOMEN OFTEN HAVE ABORTIONS TO CARE FOR OTHER CHILDREN

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002,
p. 303

The claim that abortion is not a caring response to an unwanted pregnancy, of course, may be difficult to sustain
in some cases. A woman who has an abortion out of the concern that she already has as many children as she
can care for may see herself as choosing the option most consistent with the value of caring. And the claim that
a feminist should endorse the value of caring may also be subject to dispute. A feminist might object that the
claim that nurturing is a distinctively female value perpetuates precisely the sort of harmful stereotypes that
feminism is committed to eradicating. But let us go ahead and suppose that both claims are correct. What
follows from them? It follows that a woman who has an abortion acts uncaringly, and that a feminist is entitled
to criticize her morally on these grounds. But it does not follow that a feminist should conclude that a woman
who has an abortion does something that is morally impermissible. Many acts that are criticizable as uncaring
are nonetheless morally permissible. The claim that I have been defending in this book is the claim that abortion
is typically permissible, not that it is typically uncriticizable. And the argument from the value of caring does
nothing to undermine this claim even if it is accepted.




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                                                                            Adoption Answers

THE ADOPTION ALTERNATIVE TREATS THE WOMAN’S LIFE AS A MEANS TO AN END

Nancy Hirschman, political scientists, U Penn, TEXAS JOURNAL OF WOMEN & THE LAW, Fall 2003, pp.
52-3

This is a point that the adoption alternative - that is, suggesting that the woman carry the fetus to term and put
the infant up for adoption, instead of terminating the pregnancy, because "it's just nine months" - misses. The
adoption alternative implies that a woman's life is not as important, not worth as much, as the fetus's life. It says
that we can treat a woman's body as means to another's ends, namely bringing the fetus to full biological
development. The old 1970's pro-choice bumper sticker slogan, "A woman's life is a human life," contained a
central truth about the anti-choice movement: women somehow counted less in the pro-life view, and pregnant
women somehow counted less than fetuses. The pro-choice movement was, and is, fundamentally about
recognizing women's equal humanity: they have a right to be treated as ends in themselves and not merely as
means to the ends of others, including fetuses.

NORMS AND PSYCHOLOGICAL TIES PREVENT WOMEN FROM GIVING-UP NEWBORNS

Reva Siegel, law professor, STANFORD LAW REVIEW, January 1992, “Reasoning from the Body: A
Historical Perspective on Abortion Regulation and Questions of Equal Protection,” p. 371-2

Hypothetically, a woman compelled to bear a child she does not want could give it up for adoption, abandon it,
or pay someone to care for the child until maturity. In this society, however, these are not options that women
avail themselves of with great frequency for the simple reason that few women are able to abandon a child born
of their body. That society as a whole, or some women in particular, may judge it morally preferable to give a
child up to adoption rather than abort a pregnancy is beside the point. Once compelled to bear a child against
their wishes, most women will feel obligated to raise it. A woman is likely to form emotional bonds with a child during pregnancy; she is likely to believe
that she has moral obligations to a born child that are far greater than any she might have to an embryo/fetus; and she is likely to experience intense familial and social pressure to raise a child she has borne.
The pressure on women to raise children they have borne will intensify dramatically if they are married and/or have other children, as current adoption placements illustrate. n436 Women will also
experience particularly intense pressure to raise a child if the child lacks the privileged characteristics that ensure it will be readily adopted. n437 Thus, while discussions of abortion-restrictive regulation
often assume that women who are forced to bear children can simply abandon them at will, the premise is wholly at odds with the norms of the society that would compel women to bear children. Many
women will simply assume they must raise children which the state forces them to bear; others may well choose to raise the child, but they will exercise this choice under social conditions that virtually
dictate the outcome of their decision. Legislatures that enact restrictions on abortion understand this. They both desire and expect that most women will raise the child they are forced to bear, and in the vast
majority of cases, women will. Of course, a state can deny responsibility for imposing motherhood on women simply by emphasizing that the pregnant woman has chosen to raise the child that the state
                                                                          But, if one considers the powerful norms
forced her to bear. Arguments about women's choices offer a familiar way to rationalize state action enforcing gender status roles.

governing women's choices about whether to raise their children, it is clear that such formalistic arguments do
not relieve the state of responsibility for dictating the pregnant woman's social fate. In twentieth century
America, when a legislature restricts women's access to abortion, it is forcing women to bear and rear children.




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                                     Kant Answers - -Frontline
TURN: IN A KANTIAN SENSE, THE FETUS DENIES FUNDAMENTAL RESPECT FOR A
WOMAN’S HUMANITY

Nancy Hirschman, political scientists, U Penn, TEXAS JOURNAL OF WOMEN & THE LAW, Fall 2003, p. 49

  By contrast, the argument that the pregnant woman is not being treated as an end in herself transcends all of these
  objections and gets at the underlying moral principle that is the foundation of McDonagh's case for self-defense.
  McDonagh argues that a fetus, by its intrusion, treats the woman in whose bodies it resides as means to its own ends.
  In the Kantian sense, the fetus denies fundamental respect for the woman's humanity - her own sense of herself, and
  her ability to direct her life and pursue life plans - which we all have a duty to show. Hence, the argument that
  premeditation nullifies self-defense no longer matters because treating someone as a means and violating the duty of
  respect is wrong, plain and simple. Indeed, such treatment may justify killing the fetus under certain circumstances.

KANT OPPOSED ABORTION RIGHTS BECAUSE HE WAS A SEXIST

  Nancy Hirschman, political scientists, U Penn, TEXAS JOURNAL OF WOMEN & THE LAW, Fall 2003, pp. 52-3

  In this light, Kant would most certainly oppose abortion. The contempt in which he held women who aspired to
  education, much less a profession, suggests that he believed that they had a particular role to play, and that this role
  was perfectly consonant with eighteenth century bourgeois conventions. Indeed, it is arguably the case that Kant
  believed that while women were capable of the achievements of intellect and reason, they should not strive for them.
  So it is possible that Kant would not think that the captive woman should do anything about her captivity. But,
  certainly, contemporary appropriation of Kantian ideals - which, after all, is what we are considering in the abortion
  debate - would have more serious difficulties. We must, according to Kant, take an "impartial standpoint," which, as
  Green puts it, means that once "abstracted from the elements of my own situation ... I must agree to protect every
  rational agent's basic dignity and freedom." Unless we wish to deny women's status as rational agents - something
  that Kant arguably did - we must grant women's right to such protection, regardless of their unique relationship to
  the fetuses that they carry.




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                                  General Rights Extensions

REPRODUCTIVE FREEDOM IS A FUNDAMENTAL CIVIL AND POLITICAL RIGHT
Gloria Feldt, President of Planned Parenthood, WAR ON CHOICE, 2004, p. 18

Because once a woman has the ability to determine her reproductive destiny, she can aspire to control her
destiny in every other area as well. Reproductive self-determination is the most fundamental civil and human
right a woman can have. It’s the key to enjoying full equality, liberty, and justice. And that’s the very right that
the rightwing extremists are fighting so hard to take away.

ABORTION RESTRICTIONS ARE A DEPRIVATION OF FUNDAMENTAL LIBERTY

Laurence Tribe, law professor, Harvard, ABORTION: THE CLASH OF ABSOLUTES, 1992, p. 1

Nothing is more devastating than a life without liberty. A life in which one can be forced into parenthood is just
such a life. Rape is among the most profound denials of liberty, and compelling a woman to bear a rapist's child
is an assault on her humanity. How different is it to force her to remain pregnant and become a mother just
because efforts at birth control accidentally failed? From her point of view, the pregnancy is also unsought.
From the perspective of the fetus, how the pregnancy began surely makes no difference.

REJECTING STATE INTERFERENCE IN THE BEDRROM IS CRITICAL TO FREEDOM

Laurence Tribe, law professor, Harvard, ABORTION: THE CLASH OF ABSOLUTES, 1992, p. 82

Most people would probably agree that among those liberties that must be deemed "fundamental" in our society,
in addition to the freedoms embodied in the Bill of Rights, we must include the right to be free from at least
some sorts of state interference in the intimacies of our bedrooms. As Professor Charles Black of Yale Law
School put it, de-scribing the Connecticut criminal ban on the use of contraceptives: "If our constitutional law
could permit such a thing to happen, then we might almost as well not have any law of constitutional limitations,
partly because the thing is so outrageous in itself, and partly because a constitutional law inadequate to deal with
such an outrage would be too feeble, in method and doctrine, to deal with a very great amount of equally
outrageous material."




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                                        General Rights Extensions
RIGHTS PROTECTING SEXUAL AUTONOMY AND THE RIGHT TO BEAR CHILDREN
ARE FUNDAMENTAL RIGHTS

Anita Allen, Law professor, Georgetown, STANFORD LAW REVIEW, November 2001, “Tribe’s Judicious
Feminism,” p. 187-8

These admitted inadequacies were never a sign that a jurisprudence of fundamental privacy was inherently untenable. Indeed, the
straightforward jurisprudence of privacy elaborated in Roe's progeny is not weighed down by the ambiguity and metaphor that marred the
earliest efforts. Thornburgh cites the textual liberty of the Fourteenth Amendment as a source of substantive fundamental rights,
concluding that having a choice about whether to bring a child into the world numbers among the constitutionally protected fundamental
liberties. n48 In fact, the argument of Thornburgh is that few liberties are more critical to the lives of young women than the ability
privately to choose whether to bear children. Rights protecting sexual autonomy, contraceptive choice, and abortion choice are therefore
key resources for women.




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                                      Freedom Extensions
THE RIGHT TO TERMINATE PREGNANCY IS AT THE CORE OF FREEDOM

Anita Allen, law professor, Georgetown, Robin West, WHAT ROE SHOULD HAVE SAID, Ed. Balkin, 2004,
p. 101

`Like the right to prevent pregnancy, the right to terminate pregnancy is a fundamental right. It is fundamental
because having primary say over the capacity to procreate goes to the very core of what it means to be a free
person. Tyrants and dictators will insist that some people have children and that others not have children. In a
free society governed by a just rule of law, persons cannot be required as a matter of course to bear or rear
children. To be sure, in some nations of Europe blessed with political economies similar to our own, strict bans
on contraception and abortion are tolerated as just. But the argument that ordered liberty requires pro-creative
autonomy is not dented by the observation that Ireland, Italy, Germany, and France may prefer to continue
subjugating their long-suffering female citizens. We have more than once before in this century been in the
forefront of liberty and equality when compared to sister nations across the Atlantic.




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                                     Bodily Integrity Impacts
EVERYONE HAS A FUMDAMENTAL LIBERTY INTEREST IN BODILY INTEGRITY

Howard Ball, political scientist, Vermont, SUPREME COURT AND THE INTIMATE LIVES OF
AMERICANS : PROCREATION, ABORTION, AND DEATH WITH DIGNITY BEFORE THE LAW,
2002p. 18

Arguably, every person has the right to determine what shall be done to his/ her own body. Every person has the
liberty of bodily integrity. That liberty, it is argued, is a cornerstone of common law, statutes, and constitutional
law. It has two components: (1) the right to choose how to live life, as well as (2) the right to consent to what is
done to one’s body by another person.




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                                      Abortion Protected By Privacy Rights

ABORTION IMPLICATES DECISION, INFORMATION, AND PHYSICAL PRIVACY

Anita Allen, law professor, Georgetown, Robin West, WHAT ROE SHOULD HAVE SAID, Ed. Balkin, 2004,
p. 99-101

Three common meanings of privacy were in bold enough relief in Griswold: decisional privacy, physical
privacy, and informational privacy. A fourth common meaning, proprietary privacy, was absent from Grisnold.
Each of the first three connects vitally to reproductive liberty. A married couple must be free to decide whether
to use birth control; the partners must have "decisional privacy" A married couple must be free to live secluded
from the watchful eye of agents of government seeking to know what the partners decided; they must have
"physical privacy" and "informational privacy. "The only one of four extant conceptions of privacy not at in
Grswold was proprietary privacy. It is worth noting that in the decades after Samuel Warren and Louis Brandeis
urged legal protection for privacy, see "The Right to Privacy," 4 Havu L. Rev. 193 (i89o), it was proprietary
privacy claims to the exclusive use of photographs that first presented them-selves to the state courts. See
Roberson u Rochester Folding Box Co., 171 N.Y 538, 64 N.E. 442 (1902). The right to "privacy" in that sense
was the first right to privacy explicitly recognized as such in American law, see Pavesich v. New England Life
Ins. Co., 122 Ga. 190, 50 S.E. 68 (i9o5). The plaintiff in Pavesich complained that his photograph had been used
without his per-mission for commercial advertising. We need not enmesh ourselves in the history of privacy in
U.S. law or in an arcane philosophical debate about whether all of the varied uses of the term "privacy" or "right
to privacy" are well considered. The terms have varied meanings and connotations. This much is clear and bears
emphasis. The core privacy concern in Griswold, and now in Roe and Doe, is concern about decisional privacy,
that is, about the limits of public, government interference in the liberty to make decisions about procreation.
Because serious efforts to regulate and restrict family planning would entail surveillance and information
gathering concerning intimacies, physical and informational privacy are secondarily implicated. As yet
unacknowledged by any federal or state court are the deeper, more pervasive physical and informational privacy
concerns implicated in the decision to use contraception or abortion. Solitude and seclusion are two
paradigmatic forms of privacy. To be blunt, having children initi ates a form of life in which the experience of
solitude and seclusion is difficult to achieve, especially for women charged with the care of young children. See
Charlotte Perkins Gilman, Women and Economics (i898) ("The home is the one place on earth where no one of the component individuals can have any privacy. . . . At present
any tendency to withdraw and live one's own life on any plane of separate interest or industry is naturally resented, or at least regretted by the other members of the family. This
affects women more than men, because men live very little in the family and very much in the world.). A woman's decision to prevent the birth of a child can also be motivated
by her desire for healthy solitude and seclusion for herself and other members of her family, including other children. We recently made plain that the right to privacy implicit in
Fourteenth Amendment liberty belongs to unmarried no less than married individuals seeking contraception, Eisenstadt u Baird, 405 U.S. 438 (i972). In Eisenstadt, we overturned
the criminal conviction of a Massachusetts man whose only offense was lecturing to a college audience about family planning and giving an unmarried female member of his
audience a sample package of a common contraceptive foam found in most drug stores. The right of privacy means, if anything, the right of the individual, "married or single, to
be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." 405 U.S. at 453 (opinion of
Brennan, J.). Constitutional liberty does not allow Texas to make a woman's decision "whether to bear and beget a child" for her. Women must be recognized as free to choose
whether to go through with a pregnancy, much as they are free to abstain from sex and to marry. This Court would readily strike down a regime of laws that compelled women
to abort their pregnancies. Only a catastrophic famine and world-historic disaster as improbable as the War of the Worlds could even tempt us to do it. In Skinner u Oklahoma,
this Court struck down a eugenics statute that allowed states to sterilize men classified as morally deficient recidivist felons. The court characterized procreation, along with
mar-riage, as "one of the basic civil rights of man:' Abortion cannot be pre-scribed for the unwilling, nor prohibited to the willing.~




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                        Abortion Protected By Privacy Rights

RESTRICTING ABORTION THREATENS THE PRIVACY OF THE WOMAN-PHYSICIAN
RELATIONSHIP

Anita Allen, Law professor, Georgetown, STANFORD LAW REVIEW, November 2001, “Tribe’s Judicious
Feminism,” p. 196

Restrictive state regulation of abortion threatens a second "privacy" interest: the confidentiality of the physician-
patient relationship. This form of privacy calls for a strong presumption in favor of confidential record keeping
and anonymous public reporting. A third "privacy" interest touched by restrictive abortion laws is the interest in
physical seclusion. This interest is at once an interest in restricting access to one's body and restricting access
to one's home or other physical retreat. For example, many forms of physical contact actionable as battery or
trespass in tort law interfere with the interest in seclusion. Crowded accommodations -- or intimacy and
responsibility within spacious ones -- also interfere with seclusion. Typical American homes are a secure retreat
from strangers, but whether a person's home is also a shelter from unwanted contact with intimates depends
upon variables such as family size and responsibilities. For most people in our society, women especially, the
responsibilities of parenting small children cut deeply into opportunities for privacy. The ability to control
reproduction is therefore an important precondition of privacy at home.


ABORTION LAW PROTECTS PRIVACY FROM & TO

Angela Gilmore, Assistant Professor of Law, Nova Southeastern University Shepard Broad Law, HOWARD
LAW JOURNAL, 1994, p. 240

In Roe v. Wade, the Supreme Court held that the implied right of privacy protects a woman's decision to have an
abortion. The Roe Court recognized that the privacy right involved in a woman's decision to obtain an abortion
was both a "privacy from" right and a "privacy to" right. The "privacy from" nature of the right was illustrated
by the invalidation of the Texas criminal abortion statute. Prior to Roe, the state of Texas interfered with a
pregnant woman's decision-making process by prohibiting one of her options, abortion. Thus, women could not
choose to have an abortion without intrusion or interference from the state. Roe also reflects a "privacy to"
quality right. A woman's right to choose an abortion is affirmed by the state's decriminalization of the act. n56
Subsequent decisions, however, make clear that for indigent women the right to obtain an abortion is primarily a
"privacy from" right. In both Maher v. Roe n57 and Harris v. McRae, n58 the Supreme Court found that while
indigent women have the constitutional right to decide to have an abortion they do not have a corresponding
right to have that abortion paid for by the government. Thus, the "privacy from" right recognized is the right to
make the personal decision to have an abortion free from government intrusion. There is, however, no
corresponding "privacy to" right to have an actual abortion. According to the Court, "although government may
not place obstacles in the path of a woman's exercise of her freedom of choice, it need not remove those not of
its own creation."




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                                  Abortion Protected By Privacy Rights
THE CONSTITUTIONALLY PROTECTED RIGHT OF PRIVACY PROTECTS ABORTION
CHOICE

Jeb Rubenfeld, law professor, Yale, WHAT ROE SHOULD HAVE SAID, Ed. Balkin, 2004, p. 119

The right we protect today is now known as the right of privacy. That term can be misleading. The right of
privacy is not a right to engage in that "purely private conduct" which affects no one but oneself. There is no
such conduct, or, if there is, decisions about reproduction are not instances of it. Nor does this right protect those
"purely private domains" of life remain fee from all state regulation. There are no such domains, or, if there are,
sexuality and reproduction are not among them. Nor, finally, is the Fourteenth Amendment's privacy the same as
the Fourth Amendment's, which guards against unreasonable state intrusions into the home and other private
places. The privacy we protect today is even more fundamental than this. Public life could not exist if
government lacked the power to prohibit all sorts of actions that majorities want suppressed. But private life
could not exist if the state could affirmatively dictate the course of an individual's future. Plato, in his Republic,
envisioned "guardians" exercising near-total control over individuals' lives, assigning them to particular jobs,
dictating their family situations. In feudal societies, individuals' occupations were often determined at birth, and
their marriages were often chosen for them. In our own time, we have seen totalitarian governments "relocate"
individuals, assigning them to lives and jobs of the state's choosing. But as this Court said fifty years ago:
"Although such measures have been deliberately approved by men of great genius, their ideas touching the
relation between individual and State were wholly different from those upon which our institutions rest:" Meyer
u Nebraska, 262 U.S. 390, 402 (i923). If our governments had unchecked power to force men to work at
particular occupations, or women to bear children against their will, our lives would in a real sense no longer be
our own. Instead of citizens having authority over their state, the state could write the scripts of its citizens' lives. Under our Constitution, an individual
is not the "creature of the state:" Pierce v: Society of Sisters, 268 U.S. 510, 535 (i925). The right of privacy is the right to a private life-a life of one's
own-and it is implicated whenever government attempts, going beyond mere prohibitions of activity deemed harmful, to take over an individual's future,
forcing him to carry out a specific, long-term, life-occupying course of conduct he does not choose for himself.' Some have called the right of privacy
unenumerated and, on this ground, have denied or disparaged it. Their solicitude for the Constitution's text would be more plausible if they were not
themselves violating it: "The enumeration of certain rights, in the Constitution, shall not be construed to deny or disparage others retained by the people.'
U.S. Const. amend. IX. To be sure, hyper-technical readings can always be found to rob the Ninth Amendment of its plain meaning, but it is indisputably
reasonable, at the very least, to take the Ninth Amendment to mean what its words seem plainly to suggest: that the enumerated constitutional rights are
not exhaustive. In my view, the right of privacy is not unwritten; it is, as I have said, one of the "privileges or immunities of citizenship" protected by the
Fourteenth Amendment. But even if I thought otherwise, the Ninth Amendment would be a clear and sufficient answer to those who say this Court acts
without a reasonable basis in the Constitution's text when it enforces unenumerated rights. As there are privileges of citizenship, so too there are duties,
such as jury or military service, that government may undoubtedly compel all to perform at appropriate times within appropriate limits. Selective Draft
Law Cases, 245 U.S. 366, 390 (i9i8); Butler v Perry, 240 U.S. 328, 333 (1916); Robertson v. Baldwin, 165 U.S. 275, 298 (i897) (Harlan, J.,
dissenting). But we do not deal here with such public duties of citizenship. Rather, we deal with a law that would force a particular
private life on particular private individuals; a law that would force on an unwilling woman what is likely to be a
full-time, years-long occupation; a law whose purpose and effect is to make women bear children against their
will. This the right of privacy does not allow.




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      Abortion Protected By Privacy Rights – Waiting Periods &
                         Consent Specific
WAITING PERIODS AND SPOUSAL CONSENT REQUIREMENTS DEMONSTRATE ANINUS
TOWARD WOMEN AND THREATEN PRIVACY

Anita Allen, law professor, Georgetown, Robin West, WHAT ROE SHOULD HAVE SAID, Ed. Balkin, 2004,
p. 103

The requirement of spousal or parental consent might be thought to properly involve families in women's
decision making. The requirement of a waiting period or counseling might be thought to properly encourage
reflection about options and alternatives. But such requirements presupose that others know better than women
the intimate circumstances that lead women to seek abortion in the first place. They also presuppose that women
will not involve supportive family members, will not reflect, and will not seek the opinions of moral advisers
and social service providers unless the state compels them to. Prejudice only supports these presuppositions.




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                    Abortion Privacy Rights Don’t Hurt Women
CHOICE PRIVACY DOESN’T HURT WOMEN

Anita Allen, Law professor, Georgetown, STANFORD LAW REVIEW, November 2001, “Tribe’s Judicious
Feminism,” p. 193


The real problem is not with the right to privacy as such, but that women have had too much of the wrong kinds
of privacy. n79 The "wrong" kind -- that which MacKinnon emphasizes in her attack on Roe -- is the "privacy"
of the domestic sphere, where a dominant man controls sex and home life. The "right" kind of privacy, which
MacKinnon disregards, gives women real choices. Privacy can enable some women to escape unhappy and
oppressive lives, and others to experience the peace of mind conductive to their making contributions both
inside and outside the domestic sphere. Other feminists reject privacy arguments for abortion because the
concept of privacy presupposes liberal individualism, a concept they reject as incompatible with women's
identities as interconnected, social beings. n80 Since virtually all cultures value privacy in some form or other, it
is not persuasive to argue that privacy is contrary to women's natures or inherently anticommunitarian. Women
writers like Emily Dickinson and May Sarton, who did not marry or have children and who deliberately worked
in seclusion, illustrate that sweeping rejections of all forms of privacy as "male" and "liberal" are untenable. n

WOMEN WANT TO ARTICULATE ABORTION RIGHTS IN TERMS OF PRIVACY

Anita Allen, Law professor, Georgetown, STANFORD LAW REVIEW, November 2001, “Tribe’s Judicious
Feminism,” p. 192-3


It may be possible to make a case for abortion rights that does not expressly refer to privacy. n82 However, I
conjecture that most American women would be unable to articulate fully their concerns about anti-abortion
laws without appealing to notions of privacy. In talking about abortion, women commonly say that government
should mind its own business. By using the term "privacy" in connection with abortion, women are able to draw
on a wealth of shared meanings, including connotations of autonomy, independence, and respect for others.
Tribe wisely refuses to jettison privacy's rich semantic heritage when he embraces an equal protection analysis
to support a woman's right to choose. n82




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                                    Privacy Impact -- Dignity
PRIVACY PROTECTION CRITICAL TO HUMAN DIGNITY

Anita Allen, law professor, Georgetown, Robin West, WHAT ROE SHOULD HAVE SAID, Ed. Balkin, 2004,
p. 99

The explicit recognition of privacy as an implicit constitutional value has been greeted with futile resistance.
The evidence is ample that the life of privacy as an explicit value in all domains of law is just beginning. The
language of privacy rights has become increasingly explicit in tort doctrines, see William L. Prosser, "Privacy;"
48 Calif. L Rev. 383 (196o). It is now explicit in constitutional law related to procreation, Griswold v
Connecticut, supra, and also unrelated to procreation, see, e.g., Katz v. United States, 389 U.S. 347 (1967) and
Loving v Virginia, 388 U.S. i (r967). The explicit language of privacy will surely soon work its way into state
and federal statutes enacted to forestall the reach of the "dossier society" created by computer data banks in
private industry and government. See Arthur R. Miller, "Computers, Data Banks and Individual Privacy: An
Overview" 4 Colum. Human Rights L. Rev. r (1972) ("Concern over privacy is hardly irrational.... Few people
seem to appreciate the fact that mod-ern technology is capable of monitoring, centralizing and evaluating:').
New technologies and a new, egalitarian political order are calling attention to the lines drawn between citizen
and government, self and other. "[T] o mark off the limits of the public and the private realms is an activity that
began with man himself and is one that will never end; for it is an activity that touches the very nature of man;
Milton Konvitz, "Privacy and the Law: A Philosophical Prelude," 31 Law & Contemporary Pro-lems z7z-76
(i966). Privacy, in its decisional, informational, physical, and proprietary senses, is a core value of civilized
society, see Olmstead v. United States, 277 U.S. 438 (1928) (Brandeis, J., dissenting): Privacy protection is a
requirement both of "inviolate personality," see Warren and Bran-deis; "The Right to Privacy" a Harv. L. Rev.
193, 194 (189o), and human dignity, see Bloustein, "Privacy as an Aspect of Human Dignity," 39 N Y. U L.
Rev. 962 (1964),




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                                          Abortion Isn’t Murder
BRAIN STANDARD KEY – FUNDAMENTAL TO HUMAN LIFE

   John SwomleyM graduate of Dickinson CollegeM Ph.D. in Political Science from the University of Colorado, ST.
   LOUIS       UNIVERSITY            PUBLIC         LAW            REVIEW,          1993,         p.        412

   The brain is the crucial element in human life. Michael V. L. Bennett, chair of the Department of Neuroscience,
   Albert Einstein College of Medicine, wrote that "personhood goes with the brain and does not reside within the
   recipient body . . . . There is none, not heart, kidney, lung or spleen, that we cannot transplant, do without, or replace
   artificially. The brain is the essence of our existence." It cannot be transplanted.


MOST ABORTIONS OCCUR BEFORE BRAIN DEVELOPMENT

John SwomleyM graduate of Dickinson CollegeM Ph.D. in Political Science from the University of Colorado,
ST. LOUIS UNIVERSITY PUBLIC LAW REVIEW, 1993, p. 412

   Fifty-one percent of all abortions in the United States occur before the eighth week of pregnancy; more than ninety-
   one percent by the twelfth week, in the first trimester; and more than ninety-nine percent by twenty weeks, which is
   about four weeks before the time of viability when ten to fifteen percent of fetuses can be saved by intensive care.
   This means that there is no brain or neocortex and hence no pain.




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                                                Abortion Isn’t Murder

ONLY 1% OF ABORTIONS OCCUR AFTER THE BEST CRITIC’S STANDARD FOR THE
START OF FETAL LIFE

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 127-

p. I have argued that, on the account that does best by the critic of abortion’s own standards, the fetus acquires the right to life that you
and I have when it begins to have conscious desires, that this occurs when it begins to have a certain kind of electrical activity in its
cerebral cortex, and that this occurs at some point from 25 to 32 weeks after fertilization. If all of this is correct, then the vast majority of
abortions take place well before the point at which the fetus acquires a right to life. This does not in itself demonstrate that such abortions
are morally permissible, but it does show that the rights-based argument against abortion fails to show that they are impermissible. And
since very few abortions take place between the 25th and 32nd weeks of pregnancy, it makes very little difference that we cannot be
more specific in locating the precise point at which the fetus’s aquisition of this right occurs on this account. While the gray area between
25 and 32 weeks thus produces few practical difficulties for the position defended here, however, it must be conceded that there is also a
gray area extending further back. Even if we recognize that the often-repeated claim that the fetus becomes conscious as early as six
weeks after fertilization arises from a confusion between simple electrical activity in the brain stem and organized electrical activity in
the cerebral cortex, that is, we must still allow that there is substantial room for doubt about precisely when the fetus does become
conscious. And this threatens to weaken the extent to which the organized cortical brain activity criterion can serve to undermine the
rights-based argument against abortion in typical circumstances. At this point, however, it is important to emphasize that the vast
majority of abortions take place substantially before even the 25th week of gestation. According to figures from the Alan Guttmacher
Institute from February 2000, for example, only 1 percent of all abortions performed in the United States in 1996 took place after the 20th
week of pregnancy. 13 So even if we push the gray area back from 25 weeks to 20 weeks, it will still turn out that 99 percent of abortions
take place before the fetus acquires a right to life. Burgess and Tawia identify 20 weeks of gestation as “the most conservative location
we could plausibly advocate” as the beginning of what they call “cortical birth,” because it is at this point that “the first ‘puddle’ of
cortical electrical activity” of an “extremely rudimentary nature” begins to appear in brief spurts (1996 : 23). Adopting this very
conservative estimate seems advisable given our lack of more definitive knowledge, but doing so has no effect on the conclusion that
abortion in typical cases, indeed the vast majority of actual cases, does not involve the death of someone with a right to life. Indeed, even
if we decide to push the gray area back to just 15 weeks of gestation, it will turn out that approximately 94 percent of abortions take place
before the fetus acquires this right. If the gray area is pushed back to 12 weeks, it will turn out that approximately 88 percent of abortions
will still take place before the fetus acquires a right to life, and even if we were to push it back as far as 10 weeks, it will turn out that a
substantial majority of abortions, approximately 77 percent, take place before the fetus acquires this right. 14 Moreover, if it were widely
accepted that abortion was permissible up to a certain point and not after that point, a greater percentage of women who have abortions
would presumably ensure that they had them prior to that point. And it may, ironically, be in part due to strategies supported by some
critics of abortion, such as the impositions of waiting periods and the picketing of abortion facilities, that some women who would abort
relatively early in their pregancies wait until relatively later. I do not want to trivialize the importance of the difference between drawing
the line at 25 weeks and drawing it at, say, 12 or 10. Nor do I have anything further to say about how one should go about assessing the
size of the gray area within this range. But the thesis of this book is not meant to be more specific than the claim that abortion in typical
circumstances is morally permissible, and the rights-based argument against this claim is undermined by the organized cortical brain
activity criterion regardless of where between 10 and 32 weeks we draw the line. I conclude that the organized cortical brain activity
criterion should be accepted, and that, as a result, the rights-based argument against abortion in typical cases should be rejected. I will go
on, in the next chapter, to assume for the sake of the argument that I am mistaken about this and that the fetus acquires the right to life at
the moment of its conception. And I will argue that even if this is so, the rights-based argument against abortion should still be rejected.
But before doing so, I will conclude this chapter with a brief discussion of one other rival criterion.




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                  Our Advantages Outweigh the “Right to Life”
THE RIGHT TO COMMUNITY SURVIVAL OUTWEIGHS FETAL LIFE

  John Swomley, graduate of Dickinson College, Ph.D. in Political Science from the University of Colorado, ST.
  LOUIS UNIVERSITY PUBLIC LAW REVIEW, 1993, p. 415


  There are at least two rights which must be considered in answering the question whether the fact of sexual
  intercourse implies the right of the fetus to be born. The first is the right of a community, such as a state, to ensure
  its survival. A community following a nuclear war or a plague that had virtually destroyed all human life might
  expect pregnant woman to bear the child. By the same logic, any community, whether a family or a state, which
  already had more people than it could furnish with food and water, could restrict the number of childbirths. There
  are already children dying by the thousands in some parts of the world because of too little water and food and no
  foreseeable future prospect of change. What is the inherent right of thousands of fetuses to be born if they will
  jeopardize             the             existence             of               those           already              born?

THE RIGHTS OF THE ALREADY LIVING TRUMP THE RIGHTS OF THOSE WHO MAY
LIVE
  John SwomleyM graduate of Dickinson CollegeM Ph.D. in Political Science from the University of Colorado, ST.
  LOUIS       UNIVERSITY          PUBLIC        LAW          REVIEW,          1993,               p.       415

  The second right that takes precedence over claims that a fetus has a right to be born is individual rights of existing
  human beings. The moral foundation of democracy is individual liberty: the freedom to choose what to believe, what
  to say, what to read, and what to do, free from government interference. The exception to this is that such freedom
  must not interfere with the freedom or rights of others. The government has no moral right to compel its citizens to
  do anything unless the failure to do so would endanger the community or the security of the state, such as fighting a
  forest fire that threatened a town or accepting vaccination against a rapidly spreading contagious disease. However,
  there would be no moral right to compel only certain classes of citizens -- for instance, women, racial minorities, or
  those over sixty-five to engage in such activity.




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                   Answers to: “Abortion Wrong at Any Stage”
ABORTION IS NOT IMMORAL AT ALL STAGES

Donald Hope, U Conn, TOLEDO LAW REVIEW, Winter 2001, The Hand As Emblem Of Human Identity: A
Solution To The Abortion Controversy Based On Science And Reason p. 221

1. Abortion at Any Stage of Development Is Morally Wrong

P79. There are those who say that abortion at any stage of development ends human life and is therefore morally
wrong. For those who take this position, abortions at the embryonic stage are unacceptable and the distinction
between the embryo and fetus is irrelevant.

P80. If one takes the position that abortion is wrong at any stage of development, a logical corollary is that it is
equally wrong to end a very early embryonic life or an advanced fetal life. This line of reasoning seems to make
those forms of birth control which prevent implantation of a fertilized ova as morally objectionable as the
dismemberment of an advanced fetus.

P81. This reasoning is unsatisfying. If one believes that abortion is morally wrong, it would seem that the degree
of moral danger would increase as the potentiality of the just fertilized egg becomes actualized in the well-
developed fetus.

P82. The argument that abortion at any stage is morally wrong is difficult to refute, but it is also difficult to
prove. To a large extent the notion that humanness begins at conception relies on articles of faith rather than
scientific fact. The claim of this essay is not that drawing the abortion line at the point between embryo and
fetus is THE moral solution to this problem, a problem that might lack such a certain resolution, but only that it
is a morally defensible solution in a pluralistic society and one that is clearly superior to the viability scheme.




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                    Most Abortions Pre-Viability -- Extensions
ALMOST ALL ABORTIONS PRE-VIABILITY

Donald Hope, U Conn, TOLEDO LAW REVIEW, Winter 2001, The Hand As Emblem Of Human Identity: A
Solution To The Abortion Controversy Based On Science And Reason p. 221-2

P83. The proposal to limit the constitutional abortion right to the embryonic stage of development is pro-choice
within scientifically and morally defensible boundaries. Those who defend the current scheme are stuck with
two difficult and intractable problems. First, the viability standard was invented by Justice Blackmun, out of
whole cloth, as part of the trimester notion and is not grounded in any fundamental principle, as the tortured
apologies for viability demonstrate. Second, those who link the right of choice with the viability standard must
forever defend the right to abortion from the compelling and well-documented concerns about brutality and
infanticide. In defense of abortion, they must somehow come up with a rationalization for "calvaria sign." n56

P84. Statistics show that 50% of current abortions are performed before week nine post-conception and another
40% of abortions occur between weeks nine and thirteen post-conception. n57 Hence, half of all current
abortions fall within the embryonic stage and 90% of current abortions are performed before week thirteen,
within four weeks of the transition from embryo to fetus. Thus, even within a liberal abortion regime, the
majority of women exercise the abortion choice in the early stages of pregnancy.

P85. If the abortion standard were to change from viability at twenty-three weeks to the embryo-fetus transition
at eight weeks, this would have no effect on the 50% of those who currently choose abortion before this point.
Of the 40% who choose abortion between weeks nine and thirteen, it is probable that under a more restrictive
standard many women would change their behavior to adapt to a more limited freedom. Of the remaining 10%
who currently have access to abortion past thirteen weeks, it is likely that the eight week threshold would
deprive them of a choice that they currently enjoy.

P86. From this analysis it is reasonable to assert that limiting the abortion choice to the embryonic stage would
leave the fundamental principle of choice intact by retaining the option of safe and legal abortion in the event of
unplanned pregnancy or contraceptive failure. This limitation would eliminate the most troubling aspect of the
abortion controversy, the killing of advanced human fetuses.

P87. A serious consequence of an eight week abortion threshold would be a much shorter window for detecting
abnormalities and making a decision about abortion. The fetal stage is defined as beginning at the point where
the developing embryo becomes fully formed. Thus, the fetal stage is also where deformities are often detected.
Under the liberal Roe scheme, deformed fetuses can be detected and legally aborted. This would no doubt be
impacted by an earlier abortion standard.




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                                    Life at Conception Answers
BRAIN DEVELOPMENT RESEARCH PROVES THAT LIFE IS NOT CREATED AT FERTIZILIATION –
IT TAKES 9 MONTHS TO PRODUCE A HUMAN BEING


   John SwomleyM graduate of Dickinson College, M Ph.D. in Political Science from the University of Colorado, ST.
   LOUIS      UNIVERSITY           PUBLIC        LAW         REVIEW,           1993,              p.      410-11

   Charles Gardner, who did his doctoral research on the genetic control of brain development at the University of
   Michigan Medical School's Department of Anatomy and Cell Biology, writes, "The biological' argument that a
   human being is created at fertilization . . . comes as a surprise to most embryologists . . . for it contradicts all that
   they have learned in the past few decades." n6 Gardner notes that in humans when two sibling embryos combine
   into one . . . the resultant person may be completely normal. If the two original embryos were determined to become
   particular individuals, such a thing could not happen. The embryos would recognize themselves to be different . . .
   and would not unite. But here the cells seem unaware of any distinction between themselves . . . . The only
   explanation is that the individual is not fixed or determined at this early stage. Gardner also writes, "The fertilized
   egg is clearly not a prepackaged human being . . . . Our genes give us a propensity for certain characteristics, but it is
   the enactment of the complex process of development that gives us our individual characteristics. So how can an
   embryo be a human being?" n8 He further states, "The information required to make an eye or a finger does not
   exist in the fertilized egg. It exists in the positions and interactions of cells and molecules that will be formed only at
   a later time." n9 Such research and discoveries lead to the conclusion that a developmental process taking about nine
   months produces a human being. Therefore the idea that a human exists at conception is a theological statement
   rather than a medical or scientific fact. Gardner concludes that "fertilization, the injection of sperm DNA in the egg,
   is just one of the many small steps toward full human potential. It seems arbitrary to invest this biological event with
   any special moral significance . . . . It would be a great tragedy if, in ignorance of the process that is the embryo,
   state legislators pass laws restricting individual freedom of choice and press them upon the people. The embryo is
   not a child. It is not a baby. It is not yet a human being."


MOST IMPLANTATIONS FAIL

John SwomleyM graduate of Dickinson College, Ph.D. in Political Science from the University of Colorado, ST.
LOUIS UNIVERSITY PUBLIC LAW REVIEW, 1993, p. 412-3

   Up to fifty percent of fertilized eggs do not implant. n18 Of those that do, between twenty percent and fifty percent
   miscarry. n19 Of all implantations, only about ten percent are successful pregnancies. n20 If there is objection to the
   prevention of implantation as a method of abortion, on the assumption that this is the taking of life, then nature or
   God is the greatest killer, because there are more spontaneous preventions of implantation than those performed
   medically. In other words, there is no natural or divine evidence that every conception should eventuate either in
   implantation or in birth. This is consistent with our previous assertion that a fetus, as well as a fertilized egg, is a
   potential rather than an actual human being.




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                                  Life at Conception Answers

ONLY AMBIGUOUS EVIDENCE TO SUPPORT THE CLAIM THAT LIFE BEGINS AT
CONCEPTION

Donald Hope, U Conn, TOLEDO LAW REVIEW, Winter 2001, The Hand As Emblem Of Human Identity: A
Solution To The Abortion Controversy Based On Science And Reason p. 207-8

. Conception is a process over time, not a discrete event. When looked at closely, the claim that life begins at
conception becomes quite ambiguous.

. After the fertilized egg's first divisions, there is the possibility of the splitting of one embryo into two or more
separate individuals. There is also the possibility of the merging of two distinct embryos with different
genotypes into one individual. n11 These phenomena call into question the entire notion of individuality at this
early cellular level of development. . Many fertilized eggs fail to implant or miscarry very early in pregnancy,
yet there is no cultural tradition of grief at this loss of a so-called "individual," in fact, most [*208] of these lost
embryos leave the mother's body unnoticed because they exist at a microscopic level.




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                       Life At Conception Bans Birth Control
ESTABLISHING THAT LIFE BEGINS AT CONCEPTION BANS IUDS, EMERGENCY
CONTRACEPTION, AND CERTAIN TYPES OF BIRTH CONTROL

Gloria Feldt, President of Planned Parenthood, WAR ON CHOICE, 2004, p. 92

Defining a fertilized egg as a “pregnancy” has enormous implications for reproductive rights. Not only would
abortion be a crime but by the same logic some common forms of contraception that prevent implantation, like
the IUD, emergency contraception, and certain kinds of birth control pills, would be, too.




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                                            Life Begins at Birth
BRAIN DEVELOPMENT RESEARCH PROVES THAT LIFE IS NOT CREATED AT FERTIZILIATION –
IT TAKES 9 MONTHS TO PRODUCE A HUMAN BEING


  John SwomleyM graduate of Dickinson CollegeM Ph.D. in Political Science from the University of Colorado, ST.
  LOUIS      UNIVERSITY          PUBLIC        LAW         REVIEW,           1993,             p.      410-11

  Charles Gardner, who did his doctoral research on the genetic control of brain development at the University of
  Michigan Medical School's Department of Anatomy and Cell Biology, writes, "The biological' argument that a
  human being is created at fertilization . . . comes as a surprise to most embryologists . . . for it contradicts all that
  they have learned in the past few decades." n6 Gardner notes that in humans when two sibling embryos combine
  into one . . . the resultant person may be completely normal. If the two original embryos were determined to become
  particular individuals, such a thing could not happen. The embryos would recognize themselves to be different . . .
  and would not unite. But here the cells seem unaware of any distinction between themselves . . . . The only
  explanation is that the individual is not fixed or determined at this early stage. Gardner also writes, "The fertilized
  egg is clearly not a prepackaged human being . . . . Our genes give us a propensity for certain characteristics, but it is
  the enactment of the complex process of development that gives us our individual characteristics. So how can an
  embryo be a human being?" n8 He further states, "The information required to make an eye or a finger does not
  exist in the fertilized egg. It exists in the positions and interactions of cells and molecules that will be formed only at
  a later time." n9 Such research and discoveries lead to the conclusion that a developmental process taking about nine
  months produces a human being. Therefore the idea that a human exists at conception is a theological statement
  rather than a medical or scientific fact. Gardner concludes that "fertilization, the injection of sperm DNA in the egg,
  is just one of the many small steps toward full human potential. It seems arbitrary to invest this biological event with
  any special moral significance . . . . It would be a great tragedy if, in ignorance of the process that is the embryo,
  state legislators pass laws restricting individual freedom of choice and press them upon the people. The embryo is
  not a child. It is not a baby. It is not yet a human being."




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                                   Extensions: Isn’t Murder

ALMOST ALL ABORTIONS OCCURIN THE FIRST TWO WEEKS OF PREGNANCY

Jack Balkin, Professor of Constitutional Law (professor) and the First Amendment, Yale Law School.
ABORTION AND CONSTITUTIONAL MEANING, August 2006, p.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=925558

In fact, about 88 percent of all abortions occur in the first twelve weeks of pregnancy (roughly the end of the
first trimester). Only 7 percent occur between weeks thirteen and fifteen, and only 4 percent occur between
weeks sixteen and twenty. Twenty weeks is about halfway through the average pregnancy. Only 1 percent of
abortions occur after that point, and only a vanishingly small number of abortions occur past twenty four
weeks, the point of viability.124


ONLY A FEW HUNDRED POST-VIABILITY ABORTIONS A YEAR

Jack Balkin, Constitutional law professor, Yale, WHAT ROE SHOULD HAVE SAID, Ed. Balkin, 2004, p. 6

Viability generally occurs at approximately twenty-four weeks or later. The number of postviability abortions
performed in the United States is very small; a 1992 Study found that after twenty-six weeks, only about 300 to
60o abortions are performed a year.




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                           Life Begins at Seven Months/Brain
IMPORTANT BRAIN DEVELOPMENT DOES NOT BEGIN UNTIL 28 WEEKS


  John Swomley, M graduate of Dickinson CollegeM Ph.D. in Political Science from the University of Colorado, ST.
  LOUIS       UNIVERSITY           PUBLIC        LAW          REVIEW,           1993,               p.       412

  The                                167                                scientists                              stated,

  Fetal brain development is obviously a long and incremental process. Brain cells in the neocortex, the portion of the
  brain in which the processes we call thought, emotion and consciousness occur, must be sufficiently developed to
  permit this kind of neurological activity to take place. At about 28 weeks of gestation, brain development is marked
  by the sudden emergence of dendritic spines in the neocortex. Dendritic spines are essential components in the
  brain's cellular circuitry.




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                                      Brain Standard is Best
BRAIN STANDARD KEY – FUNDAMENTAL TO HUMAN LIFE


John SwomleyM graduate of Dickinson CollegeM Ph.D. in Political Science from the University of
Colorado, ST. LOUIS UNIVERSITY PUBLIC LAW                    REVIEW,      1993,      p. 412

The brain is the crucial element in human life. Michael V. L. Bennett, chair of the Department of
Neuroscience, Albert Einstein College of Medicine, wrote that "personhood goes There is none, not heart,
kidney, lung or spleen, that we cannot transplant, do without, or replace artificially. The brain is the essence
of our existence." It cannot be transplanted.with the brain and does not reside within the recipient body . . . .




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                  “Fetal Personhood” Crushes Abortion Rights

IF THE FETUS IS DEFINED AS A “PERSON” IT IS PROTECTED BY THE SUBSTANTIVE DUE
PROCESS CLAUSE

Murphy S. Klasingm Assistant District Attorney in Harris County, Houston, Texas, PEPPERDINE LAW
REVIEW, 1995, p. 933


The first question the Court must answer is whether a fetus is a "person." The Court, in an opinion written by
Justice Blackmun which some say he will "carry to his grave," n299 stated emphatically that a fetus is not a
"person." n300 Although, the Court came to this decision to allow abortion, the justices noted "if this suggestion
of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be
guaranteed specifically by the Fourteenth Amendment."




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                          General Fetal Personhood Answers
FETAL PERSONHOOD IS IRRELEVANT – YOU CAN’T FORCE A WOMAN TO
SACRIFICE FOR ANOTHER FETUS

Laurence Tribe, law professor, Harvard, ABORTION: THE CLASH OF ABSOLUTES, 1992, p. 127-8

For Thomson, the conclusion is clear: Trying to decide whether an embryo is a person distracts us from the real
question of whether the state may force a woman to incubate that embryo, and to serve as its life-support
system, against her will. A woman denied the right to decide whether or not to end a pregnancy is not merely
being asked to refrain from killing another person but being asked to make an affirmative sacrifice, and a
profound one at that, in order to save that person. How coherently does this demand fit within our legal
landscape?

THEIR PERSONHOOD CLAIMS DEVALUE WOMEN’S PERSONHOOD

Anita Allen, Law professor, Georgetown, STANFORD LAW REVIEW, November 2001, “Tribe’s Judicious
Feminism,” p. 193

The argument that it is morally wrong for a woman to procure an abortion because of the unborn's personhood
passes over the value of the woman's own personhood. There are two quantities of personhood at stake in the
context of abortion: that of the woman and that of the fetus. Both entities are invested with human potential, but
to different degrees. The considerable, but nonetheless inchoate potential of the unborn life is in competition
with the more tangible potential of the pregnant woman. This "squaring off" of human potential in the moral
delegates about abortion seems unavoidable.




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                           General Fetal Personhood Answers

A DECLARATION OF FETAL PERSONHOOD WOULD 1) FORCE THE PROSECUTION OF WOMEN
FOR MURDER, WHICH NO STATE HAS EVER DONE, 2) FORCE THE GOVERNMENT TO TAKE ALL
POSSIBLE STEPS TO PREVENT THE DESTRUCTION OF FROZEN EMBRYOS, 3) REQUIRE THE
FORCED REMOVL FROM THE HOME OF CHILDREN WHO ARE NOT RAISE IN OPTIMAL
LIVING ENVIRONMENTS, and 4) THE FORCED REMOVAL OF THE FETUS FROM WHO ARE
AT RISK OF PREGNANCY COMPLICATIONS

Laurence Tribe, law professor, Harvard, ABORTION: THE CLASH OF ABSOLUTES, 1992, p. 120-22

Apart from how the Constitution uses the word "person," there are serious problems in viewing the body of a
woman as the locus of two separate "persons" for purposes of constitutional interpretation. We can explore some
of these complications by examining a case in which there undeniably are two distinct people within a single,
continuous bodily space: the exceptionally rare example of conjoined twins. (Some call these Siamese twins.)
We would likely conclude that a conjoined twin who asked to be separated from his brother while his brother
slept-so as to spare himself grave physiological injury or severe emotional trauma-and who asked to keep all the
organs they shared that were necessary for life knowing that his sleeping twin would never survive such
separation, would be asking for our help in committing murder. Such a twin would be asking for something that
would have to be denied by a state bound by the Fourteenth Amendmer3t to accord all "persons" the "equal
protection of the laws." If we were truly to treat all women, for some significant portion of their lives, as the
conjoined locus of two full human beings, extraordinary and perhaps unthinkable implications would follow.
First and foremost, the state would be compelled to treat all abortion as murder. But abortion in the Anglo-
American tradition has always been considered, if a crime at all, then a lesser crime than murder. No state has
ever treated early abortion as the legal equivalent of the murder of a child. Indeed, even in Louisiana, the state
that had the harshest abortion law prior to Roe, although murder was punishable by death, the punishment for
abortion was less: ten years' imprisonment at hard labor for the responsible physician. This no doubt reflects a
strong, although not "provable," human intuition. Whatever reaction anyone might have to the pro-life position
that a fetus is a human being, nearly everyone is likely to believe, even if they are reluctant to say so openly, that
abortion, particularly early in pregnancy, is not really the equivalent of killing an already born person and that
the woman who chooses such an abortion ought not to be punished as a murderer. Think next about the principle
that a woman must at least be permitted to abort a life-threatening pregnancy, a principle that even Chief Justice
Rehnquist, one of the original dissenters in Roe v. Wade, thought people who have ever come into existence
have been lost through this normal feature of human reproduction? Why is there no cry to do more to ensure the
successful implantation of fertilized ova? Use of in vitro fertilization, a process that actually leads to the birth of
more babies, might also be impermissible under a regime that regarded all embryos as "people," because the
process inevitably results in the accidental but foreseeable destruction of at least some ova that have been
fertilized in a glass dish. Indeed, in an episode that sheds light on what some antiabortionists who believe in the
"personhood" of embryos have in mind when they describe themselves as "pro-life," it was revealed in late 1989
that the federal Department of Health and Human Services, responding to pressure from some religious groups
opposed to abortion, had refused to fund research to help improve in vitro fertilization techniques. As a
consequence, the birth of a wanted baby will remain out of reach for countless infertile couples for whom in
vitro fertilization offers the only realistic hope.' And what of frozen embryos? If, from the moment of
conception, an embryo is a constitutionally protected person, to what lengths would the state be compelled to go
to prevent a frozen one-cell or two-cell embryo from being destroyed before it can develop into a baby? The
Constitution might well prohibit any state decision to discard a frozen embryo rather than to preserve it for
future implantation. For it the state did nothing to ensure eventual placement of a frozen fertilized ovum in a
hospitable womb, while caring for persons who are already born but are abandoned by their parents or are
orphans, would the state not be deny-ing to "persons within its jurisdiction" (frozen embryos at early stages of
cell division) "the equal protection of the laws"? Even for those who are deeply disturbed by Roe v. Wade,he
implications of any such view must be disquieting, to say the least. If the Constitution recognized each fertilized
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ovum as a person, a whole new species of equal protection problem would be born. Each time a state treated a
fetus-an "unborn" child-differently from any other child, it would be discriminating against a helpless and
manifestly innocent class of people. If a woman's home provided a physical or chemical environment that
subjected her children to a 50 percent risk of premature death, the state would surely require those children to be
brought up else-where. There are uterine environments that are unhealthy for embryos as well. For example, a
female fetus developing in the womb of a woman with an arrhenoblastoma (a male hormone-secreting ovarian
tumor) may develop abnormal masculine characteristics. If the same fetus developed in another woman's womb,
it would develop into a "normal" female child, unburdened by the many difficulties that anyone with
hermaphroditic characteristics will confront." Once the technology was available, it would probably be the
state's obligation to require the transfer of a fetus-person to a less hazardous womb, for "foster gestation" by a
surrogate mother, under a "best interests of the embryo" standard. If fetuses are persons, the fact that they are
very young can hardly be used to justify depriving them of equal protection, and apart from their relative youth,
fetus-persons would dif-fer from newborn infants only in being more helpless and dependent. Using their
dependent status and relative helplessness to justify giving them less protection would, in turn, set a
constitutional precedent terribly dangerous to all children and to adults with various disabilities. A similar
situation might be imagined in which the state would be obliged to require a woman in whose uterus an
embryonic "person" faced a 75 percent chance of spontaneous miscarriage and thus premature death to give up
her embryo for gestation by a woman in whose uterus the same embryo, once implanted, would face a
significantly better chance of surviving to full term. Some have estimated the normal rate of spontaneous
abortion of fertilized ova to be as high as 66 percent. Treating the fetus as a person would therefore mean the
beginning of the end of the individual woman's right to bear and then give birth to -- indeed, to form emotionally
important parental bonds with-her own child. If taking a weekly dose of some new medicine would predictably
reduce the rate of spontaneous miscarriage to, say, 5 percent; might not the state force this new fetus-saving
miracle drug upon pregnant women? Wouldn't the state be fostering fetus neglect, discriminating against unborn
"persons,". if it did not make that drug every bit as mandatory as it would make a vaccine designed to protect
mothers from becoming hosts to diseases deadly to their newborn infants? It's no wonder that no Supreme Court
justice has ever taken the position that fetuses are constitutional persons. The idea that the Constitution protects
fetuses just as if they had already been born seems, on reflection, impossible to maintain without accepting
consequences for which no one seems willing to argue.




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                                 Irrelevant – No Duty to Help

EVEN IF THE FETUS IS A PERSON THE LAW DISCRIMINATES AGAINST WOMEN BECAUSE
THERE IS NO DUTY TO HELP ANOTHER IN ANY OTHER AREA OF THE LAW

Laurence Tribe, law professor, Harvard, ABORTION: THE CLASH OF ABSOLUTES, 1992, p. 131

There is, in fact, only one place in the law where a really significant and intimate sacrifice has been. required of
anyone in order to save another: the law of abortion. If you woke up with our hypothetical violinist attached to
you, the law-and, probably, the views of morality held by most people-would permit you to free yourself of him.
When the law prohibits a woman from freeing herself of the fetus that is inside her, the law appears to work a
harsh discrimination against women even if fetuses count as persons.

(Note: See the 13A/Slavery Section for additional extensions for this argument)




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     Answers to: “Every Person of the Species Has the Capacity to
                       Function as A Person”

IT ISN’T TRUE THAT EVERY MEMBER OF THE SPECIES HAS THE CAPACITY TO
FUNCTION AS A PERSON

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, pp. 22-5

A second argument for the claim that being a human being is sufficient for having a right to life is suggested by Schwarz, who maintains
that it is an error “to dismiss the category of human being as not (in itself) morally significant” (1990 : 100). Schwarz presents this
argument in terms of the language of personhood. He defines a person as “a being who has the basic inherent capacity to function as a
person, regardless of how developed this capacity is, or whether or not it is blocked, as in severe senility” (1990 : 101). As it stands, of
course, this definition is circular, since it includes the term to be defined in the scope of the definition. But this defect can be remedied by
attending to Schwarz’s explanation that “Functioning as a person refers to all the activities proper to persons as persons, to thinking in the
broadest sense” (1990 : 89). This emendation would itself be circular were it not for the last six words, so I take it we can say that for
Schwarz a person is “a being who has the basic inherent capacity for thinking in the broadest sense regardless of how developed or
blocked it is.” The basic idea is that while you are asleep or under anesthesia you cannot function as a person, but you retain the capacity
for so functioning. Similarly, an infant may not yet be able to function as a person, but she has the capacity to become able to do so, and
so is already a person in this sense. Schwarz then claims that “Human designates, in its most significant meaning, a type of being whose
nature it is to be a person. ... We respect and value human beings, ... because it is the nature of a human being to be a person” (1990 :
101). Now, there is admittedly some ambiguity here. If Schwarz simply means that the term human being sometimes means something
other than member of the species homo sapiens, then he is not giving an argument for the moral relevance of species membership. But I
take it that he means more than this, that it is an essential property of every living member of the species homo sapiens that it has the
capacity to function as a person. If this is so, and if the capacity to function as a person confers on one a right to life, then being a
member of homo sapiens does ensure that one has a right to life. And since every human fetus is a member of homo sapiens, it follows
that every human fetus has a right to life. I will call this the species essence argument. There are two problems with this argument. The
first is that the claim that every member of homo sapiens has the capacity to function as a person is false. There can, for example, be
human fetuses with such severe deformities that they will never develop a brain capable of sustaining thought, or even any brain at all.
These are human beings who have not even the capacity for functioning as a person and so are not persons on Schwarz’s definition of the
term. One could, I suppose, characterize such a fetus as a person whose capacity for thought simply happens to be “blocked” by a
contingent fact about its head. But then it is difficult to see why we should not also call the spider crawling up my window a person. If he
were able to develop a big enough brain, he too would be able to function as a person, so he is simply a person whose capacity is blocked
by the fact that he will never have a large enough brain. Of course, this is true of all spiders and only of some human beings, but why
should that fact make a difference? In addition, there are human beings who permanently lose their capacity for functioning as a person,
such as those whose higher brain regions are irreparably destroyed. They do not have even the capacity to function as a person in Schwarz’s sense. Of course, they once did, but that shows only that they were once persons in Schwarz’s sense of the
term, not that they are now. So even if being a person in Schwarz’s sense, having the capacity to function as a person, does suffice for having a right to life, it is still not the case that being a human being, a member of the species homo sapiens,
suffices for being a person in Schwarz’s sense of the term. The defender of the conception criterion will therefore have to look to some other fetal property beyond its species membership. One response might be made at this point. I have been
                                                                                             the fact that some human beings lack even the
treating the claim that having a certain property is a part of the essence of the human species as meaning or entailing that every human being has that property. So

capacity for functioning as a person shows that having such a capacity is not a part of the essence of the human species. But one might object that
this forces an uncharitable reading onto Schwarz’s text, and that the argument is more forcefully construed as resting on the claim that having the property is (or is partly) definitive only of paradigmatic
members of the species. So we might say about even the severely deformed fetus and even the severely brain-damaged adult that they are corrupt or imperfect instances of a species whose nature it is to have
this capacity, while this is not true of my window-climbing spider. This much is certainly true. But if this is all that is meant by the claim that such a capacity is part of human nature, then its moral relevance
is no longer clear even if one agrees that capacities themselves are morally relevant. Why should the fact that the deformed fetus is a corrupt instance of a rational species mean that we must treat it as if it
                           is, in addition, a more fundamental problem. The species essence argument rests at least in part on the claim
were itself capable of reason? There
that the fact that you now have the capacity to be able to do something later imposes moral limits on how we are permitted to treat you
now. Even if we concede that every human being has this capacity (and, as I have already noted, this claim is surely false) we still need a
defense of the moral significance of the fact that the fetus now has the potential to do the sorts of things later that you and I can do now.




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          Answers to: “Obligations to Members of Our Species”
ANY OBLIGATION TO HAVE TO A MEMBER OF OUR SPECIES DOESN’T PROVE THAT MEMBER
HAS A RIGHT TO LIFE
David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 26-7

Warnock reports that although the members of the commission on embryo research that she chaired disagreed
on many points, they all agreed “that an embryo’s being human placed it in a different category with regard to
research from any other creature, embryonic or full-grown. Simply in virtue of being human, and consisting of
human cells, even a two-cell embryo was subject to considerations different from those that would apply to a
perfectly formed specimen of any other species.” She then acknowledges the view that would label this
speciesism, a form of prejudice akin to and as indefensible as racism and sexism, and responds that “We all
believed, on the contrary, that it would require justification not to prefer one’s own species to another. Those
who thought that an argument was needed to explain why they would save a human rather than a dog or a fly
would themselves be guilty of prejudice” (1987 : 10). The fact that this statement represents a consensus among
an otherwise sharply divided panel suggests that its sentiment may be widespread. And the content of the
statement suggests yet another way in which the fact that a human zygote is a member of the same species as
you and I might be used to support the conception criterion. Here the idea is that you should respect the zygote
not simply because it is a member of a species whose mature members have certain legitimate claims against
you, but because it is a member of your species. And the form of this argument does have a certain kind of
appeal, cohering well with other considered attitudes we are likely to share, such as that one ought to give
preference to family over friends, friends over strangers, and so on. The argument, then, which I will call the
kindred species argument, raises two questions: Is favoring the interests of one’s own species over the interests
of others morally justified? And, if it is, can this fact be used to ground the conception criterion? A defender of
abortion could attempt to respond to the kindred species argument by insisting that the answer to the first
question is no. But a defense of abortion that depends on such a response is likely to prove contentious at best.
Most critics of abortion are likely to believe that we are morally justified in favoring the interests of our own
species over the interests of others. And so a defense of abortion that turns on denying this claim will fail to
argue on terms that the critic of abortion accepts. Such a defense is, in any event, unnecessary, because the
answer to the second question is plainly no. Even if we are convinced that the relation between our obligations
to human fetuses and our obligation to nonhuman animals is the same as the relation between our obligations to
relatives and our obligations to friends, or the relation between our obligations to friends and our obligations to
strangers, this will still fail to establish that a human fetus has a right to life. After all, even if I have greater
duties to friends than to strangers, this does not show that my friends have a greater right to life than do
strangers. The special duties we have to some others in virtue of the special relations in which we stand toward
them need not correspond to any differences between their rights and the rights of others, and certainly need not
correspond to any difference in terms of their right to life. And so the fact (if it is a fact) that I have greater
duties to human fetuses than to mature pigs does not show that human fetuses have a greater right to life than do
mature pigs, or, indeed, that they have any right to life at all.




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                                               Answers to: “All Human if is Sacred”
1) NO NON-THEOLOGICAL REASON THAT ALL LIFE IS SACRED, 2) WOMEN CAN STILL VIEW
THE FETUS WITH AWE AND HAVE ABORTIONS, 3) NO REASON ZYGOTES OR SPERM AREN’T
SACRED UNDER THEIR STANDARD
David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002pp. 27-33

In considering whether we should accept the claim that the fetus’s being a human being suffices to make it an individual with a right to life, I have been asking whether there is a reason that can be given for
making species membership morally relevant, a reason that could be grounded in some other belief or set of beliefs that critics and defenders of abortion both are likely to share. I have argued that the answer
                                                                                         : Most of us, it might be urged, already agree
to this question is no. But perhaps this is the wrong approach. For one could argue that no further reason needs to be given

that each individual human life is sacred. Although the term sanctity of human life is often associated with the
popular movement opposed to abortion, it is often invoked in defense of other positions that critics and
defenders of abortion alike typically share. And perhaps this is all of the foundation that the proponent of the conception criterion needs. If every human life is sacred,
after all, and if each of us is an instance of human life from the moment of our conception, then there is an important kind of value that we all have from that moment on. And if it is in virtue of the sanctity
of lives like yours and mine that we have the right to life that we have, then since all humans share this value from the moment of their conception, their comparable right to life must also be acknowledged.
We might put the argument like this: P1: The fetus is a human life from the moment of its conception. P2: Every human life is sacred. P3: If the life of an individual is sacred, then the individual has a right
to life. C: The fetus has a right to life from the moment of its conception. Perhaps it is this argument, which we can call the sanctity of human life argument, that critics of abortion have in mind when they
appeal to the fact that the fetus is a member of the human species. This argument is plainly valid, and I am assuming that P1 is true. The question, then, comes down to P2 and P3. Since both employ the
notion of sanctity, it may be useful to begin by noting that the term sacred has at least two importantly distinct meanings. In one sense, the term is essentially religious, referring to something that stands in a
special relation to a deity. This is the sense, for example, in which one might believe that the Shroud of Turin is sacred. One would think of the artifact as sacred not because of facts about the fabric itself, its
size, its color, or its composition, but rather because of some fact about the way in which it had been created by or used by a deity (or by one who in turn stood in a special relation to a deity). If one thought
the shroud sacred in this sense because it had been used to cover the body of Jesus, for example, then if one later determined that the shroud had not been so used, one would no longer consider the shroud
                                                      But in another sense, the term is nontheological,
sacred even though none of one’s beliefs about the properties of the shroud itself would have changed.

meaning simply that something is worthy of reverence or awe. In this sense, one might believe that the few surviving ancient redwoods in a forest are
sacred, not in virtue of their relation to something or someone holy, but simply because they are in and of themselves awe inspiring, such as to induce a sense of wonderment in a suitably sensitive person. It
is not difficult to see how an argument appealing to a claim about sanctity in the first of these senses might prove satisfactory. A 1987 Vatican pronouncement, for example, maintains that “Human life is
sacred because from its beginning it involves ‘the creative action of God’ and it remains forever in a special relationship with the Creator, who insists sole end” (quoted by Coughlin 1988: 315). If one
believes that God stands in a special relation to every human being from the moment of conception, then this might provide firm support for the conclusion that each life has the sort of value that makes
ending it morally impermissible. One might hold, for example, that each of our lives is a gift from God, so that it is God’s place, and not ours, to decide when any life (including our own) should end. 4 Or
one might believe that all humans were created in God’s image, and that killing any human would thus amount to a kind of attack against God. Pope John Paul II puts it this way in The Gospel of Life: “God
proclaims that he is absolute Lord of the life of man, who is formed in his image and likeness. Human life is thus given a sacred and inviolable character, which reflects the inviolability of the Creator
himself” (1995 : 95). 5 If sanctity is understood in this religious sense, then, there is good reason to suppose that someone who assents to P2 will also affirm P3. If critics of abortion were willing to concede
that their claim that abortion is morally impermissible is conditional on the truth of a particular set of religious assumptions, then the defender of abortion might have little choice but to acknowledge that,
depending on the content of the religious assumptions, the critic’s position so understood may well be sound. But few if any critics of abortion are willing to make this concession. Many critics of abortion
are avowedly nonreligious. And even those critics of abortion who do believe in religious prohibitions against abortion do not believe that abortion is wrong only for reasons that are essentially religious in
nature, any more than people who believe in religious prohibitions against theft and murder believe that these forms of behavior are wrong only for religious reasons. 6 The introduction to one collection of
essays arguing against abortion, for example, opens with the important notice that “Not a single essay or paper among the nineteen is theological or programmatically religious. . . . The arguments against
abortion as a public policy can be cogently stated without resort. (in the nontheistic sense) on that account. But as at least one critic of Dworkin’s has pointed out, this suggestion rests on a deeply misguided
understanding of what evolutionary theory maintains. That theory pictures us not as the supreme product of some naturally ordered force, but merely as the tentative result of minor random variations guided
                                                                                                                                    So there is no reason for
by natural selection (Rachels 1994: 272). In this respect, it is equally true of every species that it is the culmination of a long historical process of evolution.

our evolutionary history to confer a moral status on us that it does not confer equally on all species that have
survived this process. Critics of abortion will reject the claim that all species are of equal moral status, and so
critics of abortion cannot appeal to such considerations. Perhaps the basic problem here is that it is just not clear
how one goes about arguing for the claim that something is worthy of awe. If you can visit the redwood forest
and not find it awesome, the temptation is to say that you simply lack the appropriate sensitivity to the awesome,
and that there is nothing we can do to argue you into it. A defender of the sanctity of human life argument,
however, might try to do more than this. He might, for example, attempt to cajole a person into viewing the
human zygote with awe by presenting him with various facts about the zygote, about how quickly it develops,
about how complex the various processes involved are, and so on. And this might well have some effect. It is
difficult to read even a brief summary introduction to human embryology without coming away with the feeling
of awe for the human zygote. But, then again, it may be equally difficult to come away without an equally
strong feeling of awe for the sperm and egg, which, after all, have the power between them to produce such a
zygote. And perusing a text on mammalian embryology in general might well leave one with a comparable
feeling of awe for the zygotes of dogs, cats, rats, and so on. So if we rule out appeals to claims that are
essentially theological in nature, the prospects for vindicating the claim that the human zygote is sacred without
at the same time showing that dogs and cats, eggs and sperm are also, seem poor. But let us nonetheless suppose
that such a vindication is achieved. The problem now lies in P3. If “sacred” is used in the religious sense in P2, then, as I have suggested, P3 may well seem reasonable. But if
we restrict our notion of sanctity to one that is nontheological, then it is much less clear that P3 is reasonable. Why should it follow from the fact that the zygote is amazing, astonishing, or awesome, that we
are only permitted to kill it under the sort of extreme circumstances that would also justify killing individuals like you and me? 9 Surely this does not seem to follow in the case of the redwood. A person who
holds the tree to be sacred would think, for example, that vandalizing a redwood tree is reprehensible in a way that vandalizing an ordinary tree is not. He would think that we are bound to make sacrifices to
protect such a tree that we would not be bound to make to protect an ordinary tree. But he would not have to think that we are permitted to kill the tree only under the sorts of extreme circumstances that
would justify killing individuals like you and me. Although some people might believe this, it is perfectly consistent with affirming the sanctity of the tree to maintain that it would be permissible to kill the
                                                                                                             And the
tree if this were necessary to avoid suffering a major disruption of one’s life, even though avoiding a comparable degree of disruption would not justify killing an individual like you or me.

same seems to go for the fetus from the moment of conception. To say that one should treat the fetus with
reverence is not the same as saying that killing it is morally impermissible. It is to say that in one’s deliberations

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one must not treat it as just another collection of cells. If P2 is true in the nontheological sense, for example, then it would be wrong to wantonly vandalize human
embryos in a lab in a way that it would not be wrong to vandalize cancer cells. Perhaps this can be seen more clearly by looking at the other end of life. Picture an adult who has fallen into an irreversible
coma and who can be kept alive on life support systems. This is still a living human being and so worthy of reverence if we have accepted P2. But this does not mean that he has a right to life. Reverence for
him as a human being does impose certain constraints on us, but it does not mean that we can only kill him under the same sorts of extreme circumstances that might justify killing you or me. Even though he
has permanently lost consciousness, for example, it would be inappropriate for us to simply toss him in a garbage can. And the same, at the least, can be said for human fetuses, on this view. But this is still
importantly short of saying that they have a right to life. Indeed, I believe that the limitation of this approach is inadvertently recognized by Schwarz in the course of his attempt to use the notion of what he
refers to as “reverence” for human life in support of the claim that abortion is impermissible. An attitude of reverence, Schwarz notes, can be understood as “an antithesis to using a person as a mere means,
as in rape, enslavement, and other ways, and to the attitude of ‘get rid of it’ so often displayed in the context of abortion” (1990 : 112, emphasis added). The implicit concession here is that while raping a
                      revering her, having an abortion is not always incompatible with revering the fetus. It is
person is always incompatible with

incompatible if the woman treats the fetus as a mere clump of cells. But she may have a suitable attitude of
reverence for the fetus without being obligated to incur the significant burdens of an unwanted pregnancy, just
as one might have a suitable attitude of reverence for the redwoods without being obligated to incur the
significant burdens that might be involved in keeping them healthy. Finally, it is again worth noting that if the
zygote is taken to be worthy of awe, it is extremely difficult to avoid the conclusion that a sperm and an egg are
also. After all, they have the ability to produce a zygote, which is in turn worthy of awe. This suggests that this
version of the sanctity of human life argument could succeed only by also showing contraception to be morally
on a par with abortion. Since critics of abortion, even those who also oppose contraception, do not believe that
contraception is morally on a par with abortion, this counts as a further reason to conclude that they cannot
successfully appeal to this argument.




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                          Answers to: “Slippery Slope Fetal Life Argument”
THE SLIPPERY SLOPE LIFE ARGUMENT IS WRONG FOR THREE REASONS
David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002pp. 38-45

The fact that this relation obtains between a zygote and us is, of course, a function of the fact that a zygote is a living member of our species and the fact that it thus has the potential to develop into a human
adult in a continuous, gradual manner. But it is important to note that the relation of continuity is nonetheless distinct from these other relations. I want to focus in this section on the sort of argument that
appeals purely to the fact of continuity itself, without importing any possible significance that might attach to species membership or potentiality. I have already rejected the arguments from species
membership, and so if the argument from continuity also fails, we will then have to consider whether any of the arguments from potentiality can succeed. So why should the fact of continuity between the
                                                                                        The most familiar way of putting the answer to this question
zygote and us be taken as support for the conclusion that if we have a right to life, then so does the zygote?
takes the form of a slippery slope argument, urging that in virtue of the continuity relation, we must attribute a right to life to the zygote
in order to avoid starting down a path that leads inexorably to the denial of our own right to life. A preliminary statement of the argument
runs as follows: Suppose that you deny that the conceptus immediately following conception has a right to life. Then since there is no
significant difference between the conceptus at this moment and at the very next moment, you must conclude that the conceptus at the
very next moment also lacks a right to life. But since you will continue to find no significant difference between the conceptus at each moment and the next, and since you will
eventually reach an adult just like you and me, you will then have to conclude that the adult just like you and me also lacks a right to life. A defender of abortion, of course, could simply bite the bullet at this
point and accept the conclusion that adult human beings do not have a right to life. But if we are to engage critics of abortion on their own terms as much as possible, we must surely concede that this
conclusion is unacceptable. Since the conclusion that you and I lack a right to life must therefore be rejected, and since the slippery slope argument seems to show that the claim that a zygote lacks a right to
                                                                                                     As one advocate of the argument has put it,
life entails this conclusion, the slippery slope argument seems to show that the claim that a zygote lacks a right to life must also be rejected.
“My question to my pro-abortion friend who will not kill a newborn baby is this: ‘Would you kill this infant a minute before he was born,
or a minute before that, or a minute before that, or a minute before that?’ ” (Koop 1978: 9). 10 This slippery slope argument appeals to
many people. Indeed, it is perhaps the single most common argument against abortion. How can a defender of abortion respond to it
while arguing on terms that the critic of abortion must accept? One common response to the slippery slope argument is to insist that it
embodies a simple logical fallacy. For one could apparently say precisely the same thing about the brightness of the sky at noon and the
darkness of the sky at midnight. There is not a signficant difference between the amount of light at noon and at one second before noon,
nor between then and one second before that, all the way to midnight. But surely this does not mean that we must conclude that midnight
is as bright as noon or that we should treat it as if it is. From the fact that there is a continuous route of development from A to B it does not
follow that A and B are not fundamentally different with respect to some property P, and since the slippery slope argument seems to rest precisely on the claim that this inference is legitimate, it seems to be
invalid on this count. Indeed, even some of the strongest critics of abortion, such as Schwarz, are eager to disassociate themselves from the slippery slope argument for this very reason (1990 : 14— 15). But
this rebuttal, although tempting, goes by too quickly. We can account for the gradual transition from day to night because we recognize that being light is a property that comes in degrees, so that things can
become gradually darker or gradually lighter. And the same is true of other examples which are standardly offered in response to the slippery slope argument, such as the difference between red and blue,
hairy and bald, heavy and light. But if we rely on this analysis, then we can reject the slippery slope defense of the claim that the zygote has a right to life only by insisting upon the claim that the right to life,
like darkness and baldness, is something that comes in degrees. The inference from the continuity between A and B to the conclusion that they are not fundamentally different, that is, is undermined only for
those cases in which the property in virtue of which A and B differ greatly is one that can be acquired gradually, like extra hairs or shades of darkness, a little bit at a time. But surely most critics of abortion
will reject this claim. They view the right to life as a categorical property: One either has it or one does not. If the defender of abortion wishes to challenge the critic on this point, then he may use this point
of contention as a way to reject the slippery slope argument. But if we wish to argue as much as possible on terms that the critic of abortion accepts, then we cannot reject the slippery slope argument merely
                                          A second common objection to the slippery slope argument cannot as easily be dismissed. For if
by appealing to such admittedly common counterexamples.
the relation of continuity forces us to continually push the point at which we first have an individual with a right to One problem lies with
P1. For while it is common to refer to the “moment” of conception, this is importantly misleading. Fertilization is itself a gradual process
that typically takes about twenty-two hours from beginning to end. As such, it is no more instantaneous than other potentially important
points in fetal development such as the point at which the fetus first becomes sentient or viable. If the claim is that we should draw the
line at conception because it is the only place to draw it precisely, while drawing it at, say, viability or brain activity emergence will leave
an unacceptable gray area, then that claim seems to be false. We can’t draw a precise line here either. Proponents of the slippery slope argument often
claim that there is a solution to this difficulty. Fertilization may be a process that takes time, as Joyce, for example, concedes, but “it has a definite conclusion. The moment at which this process terminates in
the resulting zygote can be called conception” (1981 : 350). 14 On this account, there truly is one instant about which we can say that there is a fundamental discontinuity between what lies on one side and
what lies on the other. This reply is tempting, but it is unsatisfactory. Indeed, it simply begs the question of when, exactly, the sperm and egg cease to exist as distinct individuals and the zygote begins to
                                                                          It seems clear that we should consider the sperm and ovum as
exist as one. To see why this is so, it is necessary to consider the process of fertilization in slightly more detail.
two distinct organisms even as the head of the sperm begins to penetrate the ovum’s outer layer at the beginning stages of fertilization.
Even though the two have become physically continuous (indeed, the plasma membranes of the sperm and the oocyte become fused, and the sperm leaves its behind as it continues toward the egg’s center),
and even though this contact prompts physical changes in each, we plainly have two distinct complex systems interacting with each other, rather than a single, individual organism. It even seems fairly clear
that when the sperm initially completes its penetration and is entirely contained within the egg, we have one distinct organism operating inside of another. But what do we have at the point of time, say, one
or two hours before fertilization is complete? At this stage, the male and female chromosomes have been released from their respective pronuclei and have begun to mingle. They are no longer physically
segregated as they were before, but they are not yet physically connected as they will be once they successfully pair off. If the sperm and the egg still exist as distinct individual organisms at this point, then
where are they? We can point to twenty-three of the chromosomes and say that they are the ones from the sperm, but they are no longer related to one another in the way they were before when it made sense
to think of them as constitutive parts of a single pronucleus. And the same can be said of the female chromosomes. So there seems to be no good reason to insist that at this point we have one distinct
organism. But if the sperm and the egg no longer exist as distinct individual organisms at this point, then when, precisely, did they cease to do so? The difference between what we have at this moment and
                                                                                                                                                          To stipulate that a
what we had a moment before seems neither greater nor smaller than the difference between any two consecutive moments that occur throughout the process of fertilization.
fundamentally discontinuous event occurs at the “end” of the process of fertilization is simply to ignore the fact that the question of
exactly when the end of the process occurs itself raises a slippery slope problem. So there really does not seem to be any one instant
during the process of fertilization at which a fundamentally discontinuous event occurs. And for this reason, it seems to me that P1 of the
slippery slope argument should be rejected. But let us nonetheless assume that P1 is true. Since we are assuming that you and I have a right to life and that sperm and eggs do not, this
leaves only P2 and P3 as possible sources of difficulty for the argument. Taken individually, both premises seem to be reasonable enough: given the truth of P1, any line other than one at conception would
seem to be arbitrary — why draw it just there and not just a tiny bit to the left or to the right? — and if anything seems to be clear about moral distinctions it is that they cannot be drawn arbitrarily: the whole
point of drawing such a distinction between A and B is to say that there is a reason to treat them differently, and arbitrary distinctions are, by their very nature, made without reason. Nonetheless, a crucial
problem with the slippery slope argument emerges when these two premises are conjoined. The problem lies in an equivocation on what we mean when we call a distinction “arbitrary” and it is perhaps best
introduced by means of an example. So consider the old joke about the drunk who is crawling around under a street light late at night looking for his wallet. When asked if this is where he dropped his wallet,
he replies no, he is pretty sure that he dropped it a few blocks away, but he’s looking here because the light is better. In one sense, the spot under the light is a non-arbitrary one to pick. If it is the only
working light around for several blocks, then it is noticeably different from every other point in the area; for any other place he might choose to look, one could always say: Why not a little to the left or the
right? It is a non-arbitrary point in the sense that it, and only it, is conspicuously different from all the other points. Let us say that such a point is salient. But the fact that the spot under the light is salient,
and so non-arbitrary in this sense, does not mean that it is a sensible place to look. Given the goal of choosing the action most likely to result in finding the wallet, it is of course true that one should not
choose the spot to investigate arbitrarily. One should appeal to considerations that are relevant to the goal. But in this case, that will mean not choosing the point that is salient, even if it means then having to
choose from among a range of other points no one of which is salient with respect to the others. 15 Applied back to the original argument, then, we can agree that P2 is true where “non-arbitrary” means

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“salient,” but in this sense, P3 is false. Morality demands that the considerations that go into drawing the line between having a right to life and not having a right to life be morally relevant, but in doing this
it does not insist that we must appeal to the point that is salient. Similarly, if by “nonarbitrary” we mean “relevant to the judgment being made,” then P3 is plainly true. The line between having a right to life
and not having a right to life must be drawn in a manner that is relevant to such rights attributions. But in this sense of “non-arbitrary,” we do not yet have any reason to accept P2.P2, understood in this
sense, maintains that the only radically discontinuous event in one’s developmental history is morally relevant, but whether or not this is so is precisely what we are trying to determine. So the fact, if it is a
fact, that conception is the only radical discontinuity in one’s developmental history means that this is where the line between having a right to life and not having a right to life can be drawn most clearly,
                                           reasonably. Finally, and I think most decisively, the slippery slope argument is subject to a
but it does not mean that this is where it can be drawn most
commonly noted but not commonly appreciated rebuttal by reductio ad absurdum. As one writer has put it, the development from acorn
to oak tree is equally continuous, but “it does not follow that acorns are oak trees, or that we had better say they are” (Thomson 1971:
131). Now defenders of the slippery slope argument often claim to have an answer to this objection: The two cases are disanalogous, they
insist, because people are important in a way that oak trees are not. If we cared about oak trees as much as we care about people, they
say, then the facts about oak development really would force us to conclude that acorns have the same sort of value as oaks. Philip E.
Devine, for example, has complained about what he calls the “surprising persistence” of “the ‘acorn’ argument” in discussions of
abortion on precisely these grounds: “…. Abandoning the slippery slope argument does seem the right thing for the proponent of the
conception criterion to do at this point. The question now is whether arguments from potentiality will prove to be more satisfactory.




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                                                                          Answers to: “Potential Life”
1) ONE PROPERTY OF AN INDIVIDUAL DOESN’T GIVE THE INDIVIDUAL ALL THE PROPERTIES,
2) POTENTIAL RIGHTS ARE NOT ACTUAL RIGHTS

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002p. 45-

Perhaps the simplest argument from potentiality is one that rests on a general assumption of the following sort:
Potential possession of a right entails actual possession of a right. If an individual is such that it is developing
into a being that clearly has a given right, then this fact about it justifies conferring the right on it already. Call
this the potentiality argument. This argument is common in the popular discourse on abortion and has been
given a more philosophically sophisticated defense by Wilkins (1993 ). Wilkins notes that many philosophers
view the argument as unsound on the grounds that its major assumption embodies a logical error. It certainly is
not true of properties in general that if a given individual potentially has a given property, then the individual
already has this property. Prunes have properties that plums do not have, wine has properties that grape juice
does not have, and adults have properties that fetuses do not have. Perhaps a proponent of the potentiality
argument could complain that these examples appeal exclusively to nonmoral properties. But the claim is
equally unacceptable if it is limited to moral properties: Adults have moral responsibilities that children do not
have, and older people cultivate moral virtues they did not have when they were younger. The question, then, is
whether, given all this, there is any reason to think the assumption true of rights in general, or of the right to life
in particular. Wilkins attempts to defend the argument from this challenge by focusing on a counterexample
proposed by Benn and later developed by Feinberg. When Jimmy Carter was six years old, he was a potential
president of the United States, but even though the president of the United States has the right to command the
armed forces, it does not follow that six-year-old Jimmy had even a very weak right to command the armed forces, let alone a right on a par with actual presidents. This example shows that potential rights do not entail actual rights,
and that the assumption needed to ground the potentiality argument must be rejected. As Wilkins points out, however, there are several problems with the analogy between potential president and potential fetus (1993 : 126— 7). In the first place, to
say that a fetus is a potential child is to say more than merely that it is possible that it will become one; it is to say that a child is something that the fetus is developing into. But all we can really say of Carter is that it was possible in 1930 that he
would one day be elected president. Being president is not something one develops into; rather, becoming president is something that happens to one, as a result of the elective actions of others. Relatedly, the right to command the armed forces is
one that is conferred on you by others, but the right to life is not. The former is conventional whereas the latter is natural. And there is a further problem that Wilkins does not notice: The right to command a given army is, by its very nature, a right
that can only be possessed by one person at a time. We might call this an exclusive, as opposed to non-exclusive, right. If I have the right to command a given army at a given time, it follows that you do not. So long as there is an actual president in
1930, then, six-year-old Jimmy cannot have the right to command the armed forces at that time. But this is not so of moral rights in general, and certainly not of the right to life in particular. So the fact that an individual who will possibly be given a
conventional, exclusive right in the future does not now possess this right does not show that an individual who is developing into the sort of individual who has a certain natural, non-exclusive right does not have it now. These are indeed
substantial disanalogies. But it is important to remember that the critic of the potentiality argument need not claim that such a person does not have this right now. She must claim merely that possession of this right is not entailed by potential
possession of it. Feinberg’s example still shows that rights are not in general entailed in this way, and this is still sufficient to defeat the argument that claims that the fetus has the right to life merely by appealing to its potential possession of it. 19
Still, the weakness of the analogy does suggest that if a case more like the fetus case yields the result that potential rights entail actual rights, then the argument could be revised to meet the objection. And this is precisely what Wilkins attempts to
do by means of the following example: Consider the case of a medical student who is surely a potential doctor in a strong and relevant sense, i. e., he is well on the way to becoming a doctor. Of course, he still may not become a doctor, but he is in
training and is fairly close to his goal. Such a student has the right to participate in a limited way in the diagnosis and treatment of some illnesses under the supervision of his teachers. The right in question is of course restricted, but it is not on that
account a ‘partial’, ‘quasi,’ or ‘weak’ right. (1993 : 127) If this case is relevantly more like the case of the fetus, and if we accept Wilkins’s analysis of it, then this may provide at least some support for the potentiality argument. But there are several
problems here. First, although it is less obvious here than in the case of six-year-old Jimmy, being a doctor and having the rights of a doctor are essentially conventional properties. Someone might know everything that a doctor knows and be every
bit as good as a doctor is at diagnosing and treating illnesses, but if he did not graduate from medical school and receive the appropriate credentials, we call the person an imposter rather than a doctor and do not grant him the right to practice
medicine that we grant to doctors. Thus, even if we agree that medical students have some of the rights that doctors have, this will not be an example of the sort of natural right that the potentiality argument seeks to ascribe to the fetus. It will only
show that sometimes we extend conventional rights to those who potentially possess them while at other times we don’t. Second, it is not at all clear that what we have here is a right of the students at all, since Wilkins adds the proviso “under the
supervision of his teachers.” We might equally say that medical school teachers have the right to extend to students the privilege of assisting them in diagnosing and treating illnesses. Third, even if this is a right possessed by these students, it seems
far more plausible that it is a right they possess in virtue of their properties as actual medical students, rather than in virtue of their properties as potential doctors. Wilkins attempts to rebut this objection by noting that if such a student dropped out
of school he would no longer have the right even though he would still have the knowledge and ability (1993 : 127). But this fact is equally consistent with both explanations: He would no longer be a potential doctor, and he would also no longer be
an actual medical student. Finally, even if the example is accepted and even if it is thought to be substantially like the fetus case, it would still, after all, be one example. And other examples that are at least as similar seem at least as clearly to point

            The fact that I now have the right to own property, or to watch anything I want on television, does
in the opposite direction.

not mean that I had the right when I was a small child.




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative

                                Answers to: “Potential Life”


THIS ARGUMENT CONFLATES POTENTIAL AND ACTUAL LIFE

Jeb Rubenfeld, law professor, Yale, WHAT ROE SHOULD HAVE SAID, Ed. Balkin, 2004, p. 114

Acknowledging this point, as it must, Texas argues that its abortion statute does not enact any distinctively
religious articles of faith. Rather, the state argues, "advances in medical science" support the position that an
independent human being, or person, comes into existence at the moment of conception. Texas bases this claim
on three asserted facts: the fertilized egg is "genetically complete"; its natural development into a child has
begun; and there is no other, non-arbitrary point in the course of gestation at which personhood could be said to
begin. By this logic, a planted acorn is an oak tree. The acorn is genetically complete, its natural development
into a tree has begun, and there is no non-arbitrary line that divides a planted acorn from a fully grown tree.
Texas's position seems to be that, where no bright line interrupts a gradual process of change, the two end points
may be deemed equivalent. It would follow that night is day, and winter spring-or at least that legislators may
make it so. Stripped, as it must be, of religious backing, Texas's argument rests on a fallacy. It confounds the
potential with the actual. It conflates the seed with what the seed may one day become.




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative

      Answers to: “The Fetus Has the Full Genetic Make-Up of A
                              Human”
THE “FULL GENETIC MAKE-UP” ARGUMENT IS BAD

Jeb Rubenfeld, law professor, Yale, WHAT ROE SHOULD HAVE SAID, Ed. Balkin, 2004, p. 114-5

The author of that opinion says, for example, "The full genetic makeup of a unique living being of the species
homo sapien [sic] is present at conception, and that makeup constitutes a human life:' This is the heart of the
dissenting justice's opinion; it is the proposition on the basis of which he launches his extraordinary rhetoric of
"mass murder" and "atrocity." But the "full genetic makeup of a unique living being of the species homo sapien"
obviously does not and cannot "constitute a human life:' The same "full genetic makeup" is equally present in
almost every cell of one's body. I doubt that even my dissenting colleague believes he commits murder every
time he has blood drawn-a procedure that extracts and kills numerous white blood cells, each of which bears
"the full genetic makeup of a unique living being:




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative

             Answers to: “The Zygote Is Part of the Life Cycle”
THE ZYGOT IS PART OF THE LIFE CYCLE, BUT IT IS NOT ALIVE

Jeb Rubenfeld, law professor, Yale, WHAT ROE SHOULD HAVE SAID, Ed. Balkin, 2004, p. 125

Justice Paulsen also writes, "The living human embryo is already alive, and it is a human life. Abortion does not
destroy potential life. Abortion kills a living human being." Italics are not arguments. One could as well write,
"The living human blood cell is already alive, and it is a human blood cell. Thus, blood tests kill living human
beings:" Cells may be alive, and human, but that does not make them human beings. To be sure, unlike an
ordinary blood cell, the zygote is part of a human being's life cycle. This is a very important difference, but,
again, it does not make the zygote a human being. A caterpillar is part of a butterfly's life cycle. It is not,
however, a butterfly-any more than an acorn is an oak. Trying to avoid these simple truths, Justice Paulsen
writes, "I would note that a planted acorn is an oak tree seed and thus is an oak tree, just one at an early stage:'
Yes, and night is day, just at an early stage. And babies are teenagers, teenagers old codgers, and all men dust-
just at an early stage.




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative


 Answers to: “The Fetus Has the Essential Properties of Human”
David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002p. 49-56

The potentiality argument represents one way to get from the claim that a zygote has the potential to develop into an individual like you or me to the conclusion that a zygote has the same right to life as you
                                                           A second and distinct argument based on the zygote’s potential arises from
or me. I have argued that it also represents an unsuccessful way.

the claim that, in a morally relevant sense, potentiality implies identity. To say that an adolescent is a potential
adult, for example, is not to say that an adolescent has the potential to produce an adult. Rather, it is to say that
he has the potential to become an adult. And to say that the adolescent can become an adult is to say that the
adult he becomes and the adolescent he was are one and the same individual, that adulthood and adolescence are
simply different phases in the life of one and the same living being. By parity of reasoning, then, the same
should be true of the fact that a fetus is a potential adult. If the zygote simply produced a human adult, the
resulting adult would be a new individual being, distinct from the being that the zygote was. But since the
zygote eventually becomes a human adult, this human adult is the very same individual living being that the
zygote was. It is simply that being at a later stage of its development. And this in turn seems to suggest that if the resulting being has a right to life, then the zygote has a right to life as well. Critics
of abortion often develop this suggestion by asking the reader to consider it from the first personal perspective (e. g., Schwarz 1990: 83), and since the argument based upon this suggestion is typically
presented in terms of the language of personhood, I will begin by formulating it in this way. So understood, a preliminary version of such an argument runs like this: P1: I am the same individual living being
as the zygote from which I developed. P2: I am a person. C: The zygote from which I developed was a person. And since I am no different from anyone else in this respect, the conclusion generalizes to all
                       . There are two problems with this argument. One concerns the fact that the meaning of the
human zygotes. All of them are persons

term person, and thus the significance of the argument’s conclusion, is potentially ambiguous. I will return to
this problem later. But the more immediate problem with the argument is simply that it is invalid. It moves from
a claim about the relation between you now and the zygote then and a substantive claim about you now to a
further substantive conclusion about the zygote then. And this move is illegitimate unless there is some more
general principle warranting it. What might that principle be? The argument would plainly succeed if we were to
add to it something like this: P3: If an individual living being has a property at one point in time, then it has that
property at every point in its existence. But P3 is plainly false. I have many properties now that I did not have
when I was a zygote. I am now skeptical, ticklish, and hairy, but was none of these when I was a zygote. And
there are many properties that I had when I was a zygote that I do not have now. I was single-celled and
invisible to the naked eye, but am neither of these things now. So from the facts that personhood is a property of
mine now and that I was once a zygote, it does not follow that the zygote from which I developed had the
property of personhood then. An argument that attempts to build from these facts, of course, need not appeal to
P3 in order to license the inference from P1 and P2 to C. It could instead make a more restricted claim, one
narrow enough to avoid these unacceptable implications, but broad enough to warrant the inference. There seems to be one
kind of restriction, in particular, that might prove capable of doing both, and it is one that is appealed to, at least implicitly, by most of those who defend this sort of argument. The restriction turns on the
distinction between essential and accidental properties, where a property is an essential property of an individual if the individual cannot lose the property without ceasing to exist and is an accidental
property if it is not essential. Given this distinction, the proponent of the argument can plausibly hope to avoid the difficulties noted above by replacing P3 with what I will call P3•: If an individual living
being has an essential property at one point in time, then it has that property at every point in its existence. P3• is true by definition, and since its scope is sharply limited, it does not produce the unacceptable
result that I have always been skeptical, hairy, and ticklish or am still single-celled and invisible to the naked eye. All of those properties are plainly accidental properties of me and so are excluded from the
principle’s reach. If we replace P3 with P3•, then all of the premises of the argument are true. But now the argument itself is rendered invalid all over again, since P2 says only that personhood is a property
of me, not that it is an essential property. The argument can therefore succeed only if we also replace P2 with what I will call P2•: I am a person essentially. It is clear that a number of proponents of this
potentiality-based defense of the claim that the fetus has a right to life do mean to be making this claim. Joyce, for example, writes as follows: “No individual living body can ‘become’ a person unless it
already is a person. No living being can become anything other than what it already essentially is” (1981 : 351, emphasis added). Similarly, Humber maintains that “it is essential for me to be me that I be
human” (1975 : 288, emphasis added). And Paul Ramsey argues as follows: [I] t might be said that in all essential respects the individual is whoever he is going to become from the moment of impregnation.
He already is this while not knowing this or anything else. Thereafter, his subsequent development cannot be described as becoming something he is not now. It can only be described as a process of
achieving, a process of becoming the one he already is. Genetics teaches us that we were from the beginning what we essentially still are in every cell and in every generally human attribute and in every
individual attribute (1970 : 66— 7, emphases added). 20 The result is what can be called the essential property argument: P1: I am the same individual living being as the zygote from which I developed.
P2•: I am a person essentially. P3•: If an individual living being has an essential property at one point in time, then it has that property at every point in its existence. C: The zygote from which I developed
was a person. And now the question becomes: do we have reason to accept P2•? This is the point at which the problem concerning the ambiguous nature of the term person arises. For whether or not we have
reason to accept P2• depends largely on whether by person we mean something like “biological organism that is a member of the species homo sapiens” or something like “individual with the same right to
life as you and I.” If it is the former, then P2• is surely plausible. Aristotle, among others, held that the species membership of an individual is an essential property of the individual. To say that this is so is to
say that you would cease to exist if you ceased being a member of homo sapiens, that there is no possible world in which you would be, or be transformed into, a member of some other species. It is certainly
not obvious that this is true, but one might well feel entitled to believe it until given a sufficiently powerful reason to reject it. If this is what we mean by P2•, however, then C will say only that the zygote is
an individual member of the human species. And this conclusion is insufficient for the critic of abortion’s purposes. The first claim needed to sustain the rights-based argument against abortion maintains that
the fetus has a right to life, not merely that the fetus is biologically human. And so understood in this way, the essential property argument fails on the critic of abortion’s own terms. Suppose, on the other
hand, that person is being used in the moral sense in P2•. If this is the case, then the conclusion it seeks to support can be used to support the rights-based argument against abortion. So understood, P2•
maintains not only that I have a right to life, but that the property of having a right to life is an essential property. I have had it for as long as I exist, and I will continue to have it for as long as I exist. But
now it is no longer clear whether there is any reason to believe that P2• is true. The importance of the shift in meaning here is nicely (though inadvertently) illustrated by Ramsey’s assertion that “We will
never be anything more or anything other than the beings we always were in every cell and attribute” (1970 : 67). It is clearly plausible to say that we will never be a being other than the being we were as a
zygote, but it is clearly implausible to say that we will never be anything more than what we once were, at least if this means possessed of more rights than we possessed at some earlier point. As I noted in
discussing the potentiality argument in Section 2.6 , there are many rights that I possess now that I did not possess in earlier stages of my development. So why should we accept P2• so understood? Those
critics of abortion who make use of this claim seem to proceed as if it is simply obvious that the claim is true. Thus Liley, for example, ends his essay on the nature of the fetus with the words: “Surely if any
of us count for anything now, we counted for something before we were born” (1972 : 36, emphasis added). And in arguing from the ontological identity of the zygote and the adult who develops from it,
Schwarz seems to treat as axiomatic the claim that “If the being at the later stages should be given the respect due to persons, then that same being should also be given this respect when he is at an earlier
stage” (1990 : 94). 21 But while this claim may turn out to be true, it simply is not plainly true. And in the context of the debate about abortion, in particular, it cannot reasonably be simply assumed to be
true. After all, the debate over abortion is largely a debate over the moral status of the fetus, and the debate over the moral status of the fetus is largely a debate over whether or not it is the case that human
beings have a right to life from the moment that they first come to exist. I am concerned in this book to examine those arguments with which a critic of abortion can attempt to convince those not already




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative

 Answers to: “The Fetus Has the Essential Properties of Human”
Arguments that attempt to ground this thesis in such claims as that it is wrong to kill individuals like you and me or that it is wrong to kill newborn infants satisfy this requirement, since most people who do
not accept the critic of abortion’s thesis do nonetheless accept these claims. But in order for the essential property argument to establish that the fetus has a right to life, it must include as an assumption the
very claim that is the subject of dispute between critics of abortion and their critics, the assumption that we have a right to life from the beginning of our biological existence. And this renders the argument
                                   unacceptable. The proponent of the essential property argument therefore
circular in a way that the critic of abortion must acknowledge as

needs to provide an argument in defense of the claim that possession of a right to life is an essential property, an
argument that does not beg the question in favor of the claim that the fetus has a right to life. And such an
argument simply does not seem to be forthcoming. Why, then, would these writers treat the claim as self-evident? I suggest that the answer again lies in the
distinction I noted in the context of the slippery slope argument in Section 2.5 : that between what I referred to as existence value and integrity value. If to say that you are now a person is to say that you are
now the sort of being whose existence is a good thing, then it may seem obvious that P2• is true. If what is morally wrong about killing you derives from the claim that the world is a better place when you
exist in it than when you don’t, then it seems natural to suppose that killing you at any point in your existence makes the world a worse place, and equally so. But, as we have already seen, this sense of value
is inadequate for the critic of abortion’s purposes. Killing an innocent person is supposed to be impermissible even if it makes the world contain more good (say, by preventing two other innocent people
from dying). So the claim that you are a person must amount to the claim that you have integrity value: We need not think it makes things better that you exist, but given that you do, you have a kind of
integrity that killing you would wrongfully violate. This is what P2• must mean in order for it to provide support for the claim that the critic of abortion seeks to defend. And on this meaning, it is far from
obvious that P2• is true. I can easily believe that I have integrity now in virtue of properties that I now have accidentally rather than essentially. Indeed, as I have already had occassion to note, there are many
rights that we believe we possess at some stages of our lives and not at others. Finally, the claim that the right to life is an essential property of human beings has implications that many people on both sides
of the abortion debate will find unacceptable. One implication concerns the case of the irreparably brain-damaged adult human being in a complete and irreversible coma. He is clearly the same individual
living being as he was as a younger adult, so if his right to life is an essential property, it will follow that he has the same right to life while in a permanent coma. But this claim is far from being clearly true
and to many will seem very clearly to be false. A second implication concerns the case of the convicted murderer. He, too, is clearly the same individual being as he was before he committed murder, so if
his right to life is an essential property, it will follow that he retains his right to life after he has committed the murder. But this claim, too, is far from being clearly true. Many critics of abortion believe in the
permissibility of capital punishment, and it would therefore be inconsistent for them also to maintain that the right to life is an essential property of human beings. And even if one denies that capital
                                                                       murderer is a human being. The claim that
punishment is morally permissible, it seems difficult to maintain that it is impermissible merely in virtue of the fact that the

irreversibly comatose adults and convicted murderers have the same right to life as you and I is not a claim that
the critic of abortion can appeal to without further defense. As a result, a critic of abortion cannot rely on an
argument for the conception criterion that proceeds as if it were. And this provides a further reason to reject the
essential property argument. One final response on behalf of the defender of the essential property argument
merits notice. In invoking the claim that my personhood is an “essential” property of me, the writers I have cited
are clear that they mean to be marking out a class of properties the loss of which is importantly different from
the loss of purely accidental properties. And they are right to do so since, as we have seen, narrowing the scope
of P3 is necessary in order for it to remain plausible. But as I have so far been understanding the distinction
between essential and accidental properties, invoking the distinction salvages P3 only by undermining P2. In
doing so, however, I have been using the term essential in a more specific manner than these writers typically
do, and perhaps in doing so I have also used it in a more narrow manner than they intend. There is, in particular, a related but
distinct idea that people often have in mind when referring to essential properties, and it might be thought that this is what is meant and that this could offer a way to rescue the argument. The idea is this: We
often classify individuals into different kinds, and sometimes there are properties which it is necessary for an individual to possess in order for it to be an individual of that kind, even if it is not
necessaryinorderforitsimplytoexist. Onthisuseoftheterm, aproperty is an essential property of an individual of a given kind if the individual cannot lose the property without ceasing to be an individual of that
kind even if he can lose the property without ceasing to exist. On this account, for example, being unmarried is an essential property of being a bachelor. If you are a bachelor and you get married, then you
cease to be a bachelor even though you do not cease to exist. This broader notion of essential properties might at first seem to offer a successful compromise between the unacceptably broad claim made by
P3 when it includes all properties, and the very narrow claim made by P3• that rendered it acceptable but unable to support the critic of abortion’s conclusion. But this appearance is illusory. For what is the
kind to which I belong only so long as I retain my personhood? The proponent of the argument will have to offer some sort of characterization. And whatever the answer is, it will remain the case that the
argument simply assumes that a zygote is this kind of thing, and that there will be no reason for someone who is not already committed to the argument’s conclusion to accept this assumption.




                                                                                                                                                                                                                    176
Planet Debate 2009 – Medicaid Abortion Funding Affirmative

 Answers to: “Fetus Has the Same Genetic Makeup as A Person”
GENETIC MATERIAL AT CONCEPTION DOES NOT DETERMINE A PERSON’S MAKE-UP


Laurence Tribe, law professor, Harvard, ABORTION: THE CLASH OF ABSOLUTES, 1992, P. 117-8

Gardner quotes this Tennessee judge, as well as Dr. Willke, and responds that a person's constitution is not, in
fact; determined by the genetic material, the DNA, to be found in the fertilized ovum. He explains that there is
not, in fact, one and only one "path" for the fertilized egg to travel on its way to full gestation. On the contrary,
as cell division proceeds, the pattern of the embryo's progress toward increasing com-plexity and differentiation
depends not just on the genetic information contained in the original forty-six chromosomes but, in significant
part, on the pattern of cells and molecules present in the preceding cell division. "The information required to
make an eye or a finger does not exist in the fertilized egg," Gardner tells us. "It exists in the positions and
interactions of cells and molecules that will be formed only at a later time."6 As Gardner explains, [t)here is no
program to specify the fate of each cell. Rather, a cell's behavior is influenced at each stage by its location
within the developing body patterN of the embryo. Each stage brings new information, information that will
change as the body pattern changes. And each cell will respond to this new information in a somewhat random
way. For example, one cell of the sixteen-cell embryo may contribute randomly to the formation of many
different organs or structures of the body. . . . With this layering of chance event upon chance event the embryo
gradually evolves its form. Gardner concludes that it is a mix of "chance and planning" that makes each of us a
unique person. "Even the distinct pattern of ridges and swirls that make up a fingerprint is not pre-set in the
fertilized egg. Identical twins grow from the same egg, have exactly the same DNA and develop in the same
maternal environment, yet they have different fingerprints. As Gardner asks, if a thing as simple as a fingerprint
is not genuinely "present" in some programmed sense in the fertilized ovum, how could anything as subtle and
unique as the individual human brain or the sepa-rate personality or psyche (or soul, though Gardner doesn't
speak of souls) be regarded as "present" from the moment of conception? Gard-ner's dramatic way of putting the
point is worth quoting: "The fertilized egg is clearly not a prepackaged human being. There is no body plan, no
blueprint, no tiny being pre-formed and waiting to unfold. . . . [T]he particular person that it might become is not
yet there."' Indeed, as Gardner points out perhaps even more powerfully, two sibling human embryos sometimes
combine into one, yielding a completely normal new "person" at the end of the developmental process. Any
particular cell of that baby's body will have the genetic material of one or the other of the original embryos. And
the converse is equally telling: A single embryo may split at-a very early stage into two or more identical
embryos, yielding identical twins or triplets. Was the pretwinning embryo one distinct person or two?




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative

 Answers to: “We Don’t Afford the Fetus Rights Simply Because
                      We Don’t Value It”

TURN: ASSIGNING LIFE MERELY TO WHAT WE VALUE SUPPORTS SLAVERY AND
EXTERMINATION

Laurence Tribe, law professor, Harvard, ABORTION: THE CLASH OF ABSOLUTES, 1992, p. 119-20

Her conclusion is that "[f]etal life has value when people with power      • value it:" Nicely put, but is it a valid
conclusion? The same thing once was said of slaves: the value of black Americans was less than the value of
white Americans in the view of people with power. It once was said of women, who were deemed property in
the early law of much of Europe, Britain, and some of the colonies. And it once was said of some infants and
may be said even today, by some, about the severely deformed. For most of us, though, it makes overwhelming
sense nonetheless to respond: That doesn't make it right. The members of these other groups, degraded
sometimes by the law, simply are human beings even though "people with power" may try to deny it. We must
be able to import into the law some moral view from a perspective external to that of those with power, or we
will be trapped in a moral world of, by, and for the powerful. Ours is not a world in which might makes right. i




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative

        Answers to: “The Fetus Will Have A ‘Future Like Our’s’”
THE “FUTURE LIKE OUR’S” ARGUMENT IS FLAWED

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, pp. 56-
Perhaps the most powerful potentiality-based argument for the claim that the typical human fetus has the same
right to life as the typical adult human being arises from the consideration that the kinds of future experiences
that lie ahead of the typical human fetus are just the same as the kinds of experiences that lie ahead of the typical
adult human being, and are thus of just the same kind of value. The argument is most widely associated with
Donald Marquis’s important article, “Why Abortion is Immoral” (1989 ), and I will focus my discussion in this
section on Marquis’s formulation of it, although the same sort of argument has also been defended by a number
of other writers. Marquis’s argument can be understood as starting with the assumption that although defenders
and critics of abortion differ sharply over the question of whether the fetus has the same right to life as you or I,
they agree that in cases B, C, and D in the following list, the individuals in question have the same right to life
as you and I do in E: (A) fetus, (B) infant, (C) suicidal teenager, (D) temporarily comatose adult, (E) you or me.
Marquis can then be understood as suggesting that the following decision procedure be used to resolve the
question about the status of the fetus: Identify the property that most plausibly accounts for the wrongness of
killing in cases B— E, and then determine whether that property is possessed by the individual in case A. If it is,
then the best account of the wrongness of killing in general provides a sufficient reason to conclude that the
fetus has the same right to life as you or I. If it is not, then the best account of the wrongness of killing provides
no such reason (though this will still leave open the possibility that killing the fetus is wrong for reasons other
than the reasons that best explain why killing you or me is wrong). Marquis’s thesis can then be put as follows:
If the individuals in cases B— E have a right to life, then so does the typical human fetus…….. I will begin by
briefly reconstructing Marquis’s case for this claim and will then argue that although in one respect it is
importantly correct, in another respect it is importantly mistaken. The result of its being importantly mistaken
will be that the future-like-ours argument fails to provide satisfactory support for the conception criterion even if
we accept the premises upon which the argument is based. But the result of its being importantly correct will be
that a modified version of the argument will become available to provide support for an alternative position, one
on which if Marquis is correct that the individuals in cases B— D have the same right to life that you and I have
in case E, then the fetus only acquires this right at a much later stage in its development. That possibility will
then be further developed near the end of Chapter 3….(p.62).. Marquis’s future-like-ours argument appeals to
the fact that the human fetus has the potential to acquire properties that individuals like you and I already have.
But it does so without fallaciously arguing from a potential property to an actual one. The future-like-ours
argument, therefore, cannot be defeated by pointing to the objection that undermines the more common
potentiality argument discussed in Section 3.6 . The reason that this is so can be put in one of two ways. One is
this: the future-like-ours argument appeals to an actual property that the fetus already has, the property of having
a valuable personal future. This is an actual property it shares with us, not a potential it has to acquire a property
which we already actually possess. Of course, one might object that saying that a fetus actually has a valuable
future is really just shorthand for saying that it has the potential to enjoy many valuable experiences in the
future. In this sense, Marquis’s claim that the fetus already has the same right to life as you or I does rest on a
claim about the fetus’s potential. But in this sense, Marquis’s claim that you and I have such a right also rests on
a claim about our potential. So either Marquis’s argument appeals to an actual property that we share with the
fetus or it appeals to a potential property that we share with the fetus, but in neither case does it argue that the
fetus has the same right to life that we have because it has the potential to have a property that we already
actually have. The potential of the human fetus to develop into an individual just like us seems to me to be the
most promising property for a defender of the conception criterion to appeal to. And Marquis’s argument seems
to me to be the most promising way to make use of such an appeal. In addition, I believe that Marquis is correct
that the future-like-ours principle that hedefendscanaccountforthewrongnessofkillingincasesB— E. Ibelieve that
he is also correct that the way in which this principle accounts for the wrongness of killing in these cases is
intuitively plausible. And I believe that he is also correct in maintaining that an implication of this principle is
that the typical human fetus has the same right to life as you or I. As a result, I believe that a successful rebuttal
to Marquis’s argument must do three things. First, it must identify another property that the individuals in cases
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B— E also have in common, and thus an alternative account of the wrongness of killing you or me which
produces the same results in cases B— E. Second, it must show that, given that the alternative account and
Marquis’s account produce the same results in these cases, there is reason to prefer the alternative account to
Marquis’s. In particular, it must show that the property picked out by the alternative account does a better job of
illuminating the wrongness of killing, that it more convincingly identifies a feature of killing that makes it prima
facie seriously wrong. 27 Third, it must show that the alternative account of the wrongness of killing in cases
B— E produces substantively different results in case A. The property picked out by the alternative account, that
is, must either be one that is never possessed by the typical human fetus, or one that is only possessed by the
typical human fetus after it has reached a relatively advanced stage of development. 28 Since Marquis treats
statements of the form “P values (or will come to value) X” as interchangeable with statements of the form “P
desires (or will come to desire) that X continue,” 29 and since it will prove to be more natural to characterize the
alternative property I wish to propose in terms of the language of desires, we can recast the principle underlying
Marquis’s account as follows: If an individual P has a future-like-ours F and if either (a) P now desires that F be
preserved, or (b) P will later desire to continue having the experiences contained inF( ifPisnotkilled),
thenPisanindividualwiththesamerighttolifeasyouorI. Since on this account either a present or a future desire to
enjoy one’s personal future-like-ours is sufficient in order to be included in the scope of the principle, we can
call this the “present or future desire” version of the future-like-ours principle.
Nowsupposethattheonlyuncontroversialcasewehadtoaccountfor was E, the case of killing individuals like you
and me. In that case, there would be no reason to append the “or will later come to desire” clause (b) to the “now
desires” clause (a). We would simply say that P has the same right to life as you or I if P has a future-like-ours
that P now desires to preserve. In short, we would have no reason to prefer the “present or future desire” version
of the future-like-ours principle to what could be called the “present desire” version. And since the present
desire version is more parsimonious, we would have reason to prefer it instead. Marquis’s argument for
amending the “present desire” version of the future-like-oursprinciplebyaddingtheextraclauseturns, asIhavesaid,
on the claim that certain cases, especially C and D (the suicidal teenager and the temporarily comatose adult),
force us to accept this revision. I want now to argue that he is mistaken about this. More precisely, I will claim
that although it is true that on some ways of understanding what it means for P to currently desire X, the
“present desire” version of the future-like-ours principle cannot account for the wrongness of killing in cases C
and D, there is at least one way of understanding what it means for P to currently desire X on which the “present
desire” version can and does account for the wrongness of killing in these cases. So in proposing an alternative
account of the wrongness of killing in cases B— E, I will again be arguing with the critic of abortion on his own
terms. I will, in effect, be accepting Marquis’s future-like-ours argument but defending a different version of the
future-like-ours principle. And I will defend the three claims about this alternative version of the principle that I
said any successful rebuttal of Marquis’s position must defend: that it produces the same results as does
Marquis’s in all of the uncontroversial cases, that it does so in a manner that more satisfactorily illuminates the
wrongness of killing in those cases, and that it produces substantively different results in case A, that of the
typical human fetus. I will begin by defending the first two claims in terms of cases C and D, and will then turn
to the third claim before saying something in conclusion about case B (the infant).




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                           Answers to: “It’s Probably a Child”

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 85-

A final argument for the conception criterion does not turn directly on any claims about the fetus’s species
membership, or about its continuity relation to us, or about its potentiality. Instead, it turns on the claim that the
chances that a sperm or ovum will eventually become a child increase dramatically at conception. This argument
is most frequently associated with Noonan, and I will follow others in focusing my discussion on his defense of
it here. But it should be noted both that others have defended this argument as well (e. g., Pluhar 1977: 167— 8)
and that while Noonan’s critics typically treat the argument as his primary defense of the conception criterion,
Noonan himself is careful to defend it not as a positive argument for the criterion, but rather as “a ‘buttressing’
consideration, showing the plausibility of the standard,” which he thinks should be adopted primarily for other
reasons (1970 : 59). 37 To stick with Noonan’s numbers38 (and to follow his emphasis on the sperm as the
future child rather than the ovum), we can put the argument like this: The odds that a sperm will become a
zygote are 1 in 200,000 ,000 , and since the odds that a zygote will become an infant are 4 in 5, the odds that a
sperm will become an infant are 1 in 250,000 ,000 . The difference between 1 in 250,000 ,000 and 4 in 5
represents an immense difference in probabilities, and since moral distinctions can and should reflect such
differences, there should be a moral distinction between the rights of the sperm and the rights of the zygote. In
particular, the difference is significant enough to justify the conclusion that a zygote has a right not to be killed
while a sperm does not have such a right. So we have: P1: The difference between the chances that a sperm will
develop into an infant and the chances that a zygote will develop into an infant is immense. P2: If the chances
that P will develop into an infant are immensely greater than the chances that Q will, then P has importantly
greater rights than Q does. 39 C: A zygote has importantly greater rights than a sperm does. I will refer to this as
the probability argument. There are several problems with the probability argument. Let me begin with P1. P1 is
ambiguous. It could mean one of two things: P1a: For any sperm and any zygote, the chances are immensely
better that the zygote will become an infant than that the sperm will. P1b: If you randomly select a sperm and a
zygote, the chances are immensely greater that the zygote will become an infant than that the sperm will become
an infant. Noonan supports P1 by appealing to the facts that only 1 in 200,000 ,000 sperm will get the chance to
become a zygote, and that 4 in 5 zygotes become infants. These facts show that P1b is true. If only 1 in 200,000
,000 sperm becomes a zygote, then if you randomly select one, the chances that it will become a zygote are 1 in
200,000 ,000 , and similarly for the chances of a zygote becoming an infant. But if P1 is true only in the sense of
P1b, then even if P2 is true this will justify only the conclusion that if you randomly select a sperm and a zygote,
the expected outcome will be that the zygote has greater rights than the sperm. 40 And this conclusion is far too
weak for Noonan’s purposes. Noonan wishes to conclude that the difference in probabilities supports the
conclusion that every zygote has a right to life and that every sperm lacks such a right, and that conclusion does
not follow from P1b and P2. In order for P1 to lend support to C in the sense in which C provides at least
supplemental support for the conception criterion, then, it must be construed as P1a. And it is clear that, to the
extent that Noonan is aware of the distinction, this is how he intends P1 to be understood: “If a spermatozoan is
destroyed, one destroys a being which had a chance of far less than 1 in 200 million of developing into a
reasoning being” (1970 : 59). This is clearly meant to be a claim about every sperm, not just about the typical
sperm. But P1a is plainly false. For consider a particular sperm S that is swimming ahead of the other 199,999
,999 sperm in its group, and is just about to merge with a healthy ovum in a healthy woman. Its chances of
becoming a zygote are excellent, and its chances of becoming an infant are very good. Now consider a particular
zygote Z that has just been conceived in a woman whose uterine walls suffer from a condition that makes
successful implantation all but impossible. Its chances of becoming an infant are practically zero. Indeed, not
only do the facts about conception therefore fail to support Noonan’s conclusion even if we assume that P2 is
true, they turn out to support precisely the opposite conclusion: that this particular sperm has much greater rights
than does this particular zygote. But surely the critic of abortion must reject the claim that killing this particular
sperm would be morally worse than killing this particular zygote. Noonan’s argument, then, is impaled on the
horns of a dilemma: Either P1 is true but fails to support the conception criterion, or P1 supports the conception
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criterion but is false. This problem seems to me sufficiently fatal to warrant rejecting the argument, and it arises
even if we accept the comparison as Noonan has formulated it. But there is in fact something very misleading
about the way in which Noonan frames his comparisons, and this reveals yet in the first case is morally on a par
with the risk involved in killing a sperm while the risk in the second is morally on a par with the risk involved in
killing a zygote or fetus. On this account, if you believe that it would be wrong to take the second risk but
permissible to take the first, then you should also think it wrong to kill a zygote or fetus but permissible to kill a
sperm. If this is what Noonan means, then the argument does seem to be easily defeated. It overlooks the
distinction between running the risk of harming someone knowing that if you do harm someone, the someone
will be a human being, and harming someone running the risk that the someone you harm would have become a
human being had you not harmed him. This does seem to be at least part of Noonan’s intent, and to that extent,
at least, his failure to attend to this distinction does undermine his defense of P2. But Noonan need not be
understood as resting the case for P2 solely on the analogy itself. At least part of his argument seems to be that
the example demonstrates that there are at least some instances in which probabilities constitute an important
part of moral reasoning. We might take this as some evidence for his more general claim that “most” moral
reasoning involves such considerations, and that claim in turn as support for the conclusion that such
considerations are relevant in the case of P2. This way of understanding Noonan’s point does not render it
subject to the refutation just noted, but it leaves the argument unconvincing nonetheless. For an isolated example
hardly supports the claim that this is true of most of moral reasoning, the claim itself seems implausible, and even if it
is true we need some reason to think that it is true in the case of P2. Finally, it is worth noting a problem for Noonan’s
position that has arisen with the development of in vitro fertilization (IVF). As Singer and Dawson note, the typical success
rates for IVF and for subsequent implantation are such that there is a relatively small difference between the probabilities of
a child resulting from an IVF-produced zygote on the one hand, and the pre-IVF-treated sperm and egg on the other. A
laboratory’s success rate for fertilization may be around 80 percent, but the percentage of zygotes that successfully implant
often rises no higher than 10 percent.




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                  Answers to: “Life Begins at Implementation”

IMPLEMENTATION IS DIFFERENT THAN CONCEPTION, BANNING AT THIS STAGE WOULD
ESSENTIALLY BAN CONTRACEPTION

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 92

Implantation marks the stage at which the developing conceptus, which has to this point been freely floating
down the fallopian tube, becomes firmly embedded in the uterine wall. This generally occurs six to eight days
after fertilization. If the conceptus acquires a right to life at this stage and not before, then some forms of birth
control result in the death of the conceptus before it acquires this right, while virtually all abortions in the
standard sense of the term result in its death after it has done so. The implantation criterion is significantly
different from the conception criterion, then, because, unlike the conception criterion, it would provide grounds
for considering such abortifacients to be morally like contraception rather than like abortions.




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                 Answers to: “The Fetus Looks Like a Human”

WHAT A HUMAN LOOKS LIKE IS IRRELEVANT TO WHETHER OR NOT IT HAS A RIGHT TO LIFE

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 95

I am not aware of any even prima facie credible arguments that have been offered in favor of the external human
form criterion. Why should whether or not an individual has the same right to life as you and I depend on what
the individual looks like?

NO REASON PEOPLE WILL START TO KILL OTHER HUMANS IF THEY ELIMINATE FETUSES
THAT LOOK LIKE HUMANS

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 96

Still, we can use English’s argument as a model from which to construct what may be the only defense of the
external human form criterion worth considering. So construed, the argument would have to run roughly as
follows: P1: It is morally impermissible to kill individuals like you or me. P2: Morality requires us to maintain
those moral sentiments that are necessary in order for us to fulfill our moral duties to individuals like you or me.
P3: The moral sentiment that enables us to accept and act on the belief that killing individuals like you or me is
morally impermissible is incompatible with accepting and acting on the belief that killing human-looking fetuses
is morally permissible. C: Morality requires us to accept and act on the belief that killing human-looking fetuses
is morally impermissible. When the argument is put in this way, the problem with it becomes quite clear: P3 is
simply implausible. There is simply no reason to believe that people who accept the permissibility of aborting
human-looking fetuses find it any more psychologically difficult to fulfill their duties not to kill individuals like
you or I than do people who reject the permissibility of killing such fetuses. There is, then, so far as I can see, no
good reason to accept the external human form criterion.




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                 Answers to: “The Fetus Looks Like a Human”
EVEN PROLIFERS REJECT THE “LOOKS LIKE A HUMAN” CRITERION

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 96-7

I suspect, in fact, that virtually every critic of abortion will, at least upon reflection, agree that the external
human form criterion should be rejected. After all, virtually every critic of abortion believes that aborting the
fetus is morally impermissible even before it takes on its distinctively human appearance. What the fetus looks
like in the first few weeks of its gestation, such critics would say, is irrelevant to how it should be treated. And if
it turned out that the human fetus looked like a grotesque cockroach until very late into its gestation, such critics
would surely, and justly, complain that this fact would do nothing to support the moral permissibility of killing
it. But given the irrelevance of the fact that the early fetus does not look distinctively human, it is difficult for
such critics consistently to appeal to the fact that the later fetus does look distinctively human. Yet this is one of
the most common appeals made by those who are opposed to abortion, both in print and in public forums.
Schwarz’s book, for example, to which I have referred at a number of points, contains photographs of fetuses at
10, 19, and 27— 9 weeks of gestation (1990 : 126— 7). 2 What the human fetus looks like is not relevant to
whether it has the same right to life as you or I. For that reason, the external human form criterion should be
rejected. But so, too, should the use of visual representations of fetuses that do look like human infants, and for
precisely the same reason.




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   Answers to: “Fetal Movement/Quickening is When Life Begins”


THE FETUS’ FIRST MOVEMENT IS NOT MORALLY SIGNIFICANT

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 97-8

Before turning to the more promising candidates based on some kind of fetal brain activity, I will briefly
mention, for the sake of completeness, two further possibilities for which there may possibly have been some
plausible support in the past, but which can easily be dismissed for our purposes. The first criterion proposes
that the fetus acquires a right to life when it first begins to move on its own. Ultrasound imaging indicates that
this begins at between five and six weeks after fertilization (Burgess and Tawia 1996: 10). If the fetus acquires
such a right at this time, most abortions do involve the death of an individual with a right to life. It might
perhaps at one time have plausibly been held that the fetus does not begin to be a living being until it begins
such movement, and that might in turn have plausibly been used to ground a defense of the actual fetal
movement criterion. But since we no longer have any reason to believe this, there is no reason to believe that the
point at which the fetus first begins moving is morally significant.


NO REASON QUICKENING IS MORALLY SIGNIFICANT

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 98

A second and related candidate is quickening, which refers to the point at which the fetus’s
movement is first perceived by the woman who is carrying it. Typically, this occurs approximately
sixteen to seventeen weeks after fertilization. If the fetus acquires a right to life at the moment of
quickening, then the vast majority of abortions occur before the fetus acquires this right, and so do
not involve the death of an individual with the same right to life as you or I. While quickening has
historically been a popular candidate for the criterion we are interested in, however, this too seems
to have been so for reasons that have since become obsolete. One reason that can be seen to be
intelligible in its historical context is that prior to quickening, a woman could not determine with
certainty whether her swollen abdomen was the result of a developing pregnancy or of a dangerous
intestinal obstruction requiring medical treatment. Prior to quickening, then, a doctor could claim in
good conscience to attempt to cure her, but after this point he could not think he was doing anything
other than destroying a fetus. The cogency of this position is debatable even on its own terms, but since a woman can now determine whether she is pregnant well before
this point, the issue is moot. The same sort of response also applies to a second historically understandable justification that was sometimes offered for the quickening criterion. At one

point, quickening may have been the best available evidence of fetal viability, and this may have
been taken to be morally relevant. But we no longer identify the point of quickening with the point
of viability, and even if we did, we would still require an argument for the relevance of viability
itself (see Section 3.7 ). So we have no good reason to accept the claim that the fetus acquires a
right to life at the moment of quickening.




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                                Answers to: “Must Uphold Life”
ABORTION IS DIFFERENT – THERE ARE COMPETING INTERESTS

John SwomleyM graduate of Dickinson CollegeM Ph.D. in Political Science from the University of Colorado,
ST. LOUIS UNIVERSITY PUBLIC LAW REVIEW, 1993, p. 421

   A proposal that has some influence with those who seek nonviolent solutions is the "consistent life ethic," linking
   opposition to abortion, the death penalty, and war. At first glance this seems a logical unity against violence. It is,
   however, not consistent in respecting the lives of women faced with a dangerous pregnancy. Like other absolute
   rules, there is no recognition of a conflict of life with life. Therefore, embryonic life is given priority over the life of
   the existing woman. Moreover, this idea, which originated with a member of the Catholic hierarchy, Cardinal
   Bernadin, treats women who have abortions differently from those who participate in war or in the death penalty.
   n70 Women who have abortions are automatically excommunicated; judges, juries, and executioners who inflict the
   death penalty, and CIA agents or military personnel who kill again and again are not excommunicated or held up to
   scorn. n71 Thus, the "consistent life ethic" is chiefly directed against pregnant women, and is a form of covert
   violence.




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         Answers to: “Religion Says Life Begins at Conception”
THE CONSTITUTION IS SECULAR, NOT RELIGIOUS

John SwomleyM graduate of Dickinson CollegeM Ph.D. in Political Science from the University of Colorado,
ST. LOUIS UNIVERSITY PUBLIC LAW REVIEW, 1993, p. 413
   Public policy in the United States is and should be guided by secular considerations rather than theological claims
   that are inconsistent with scientific and medical research. The Constitution of the United States is a secular
   document which gives no authority to government to legislate theological assertions or to prefer the theological
   doctrines of one or several religious groups over others. A large number of religious groups in the United States --
   Jewish, Christian, and Humanist -- do not accept a "moment of conception" theology or view a fetus as a person or
   human being.




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Answers to: “No Right For A Fetus is Like No Rights For Slaves”
NO SILLY – SLAVES WERE ALREADY BORN AND CONSIDERED PERSONS UNDER
THE LAW
  John SwomleyM graduate of Dickinson CollegeM Ph.D. in Political Science from the University of Colorado, ST.
  LOUIS       UNIVERSITY          PUBLIC        LAW          REVIEW,          1993,               p.       417

  Sometimes overzealous "right to life" advocates compare Dred Scott and the Supreme Court case n40 bearing his
  name with a similar lack of rights accorded to fetal life. This is a mistaken analogy. A fetus has never been a person
  in Anglo-Saxon law. Persons exist only at birth. The issue in the Dred Scott decision was whether a slave recognized
  as property in slaveholding states could become a citizen of the United States if a free state conferred its citizenship
  upon the slave. The Court said not. However, this judgment did not apply to all blacks for the Court said, "And if
  persons of the African race are citizens of a State, and of the United States, they would be entitled to all of these
  privileges and immunities in every State and the State could not restrict them."




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               Answers to: “Fetus is Innocent – Hasn’t Sinned”

THEOLOGY REFUTES THE IDEA THAT THE FETUS IS INNOCENT AND WITHOUT SIN

John SwomleyM graduate of Dickinson CollegeM Ph.D. in Political Science from the University of Colorado,
ST. LOUIS UNIVERSITY PUBLIC LAW REVIEW, 1993, p. 413

   Public policy must defend the rights of existing living persons as over against claims made on behalf of fetal life.
   There are generally three claims made for fetal life other than the claim of human being or personhood, which has
   been discussed above. The first claim is that society should protect innocent human life that is unable to protect
   itself. The term "innocent," originally used by various popes, refers to fetal life which has committed no sin. Yet the
   Roman Catholic Church has proclaimed only one person, Mary, the Mother of Jesus, as having an "immaculate"
   conception and hence free from original sin. n25 In any event, public policy cannot be founded on theological
   claims                                                  to                                                  innocence.




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         Answers to: “Fetus is Innocent – Can’t Commit Harm”
THE FETUS CAN BE HARMFUL TO THE WOMAN

John Swomley, graduate of Dickinson College, Ph.D. in Political Science from the University of Colorado, ST.
LOUIS UNIVERSITY PUBLIC LAW REVIEW, 1993, p. 413

   There is another meaning of "innocence" which comes from two Latin words, in (not) and nocere (to harm), and
   therefore means "not harmful or dangerous." However, it is precisely the fact that some pregnant women (and their
   physicians) view the fetus as harmful or threatening to their health or welfare and hence leads them to consider
   abortion.




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  Answers to: “Woman Has an Obligation to Rescue the Fetus”
EVEN IF A WOMAN HAS A MORAL OBLIGATION TO RESUCE THE FETUS IT
DOESN’T MEAN SHE SHOULD BE LEGALLY REQUIRED TO DO SO
  John Swomley, graduate of Dickinson College, Ph.D. in Political Science from the University of Colorado, ST.
  LOUIS      UNIVERSITY           PUBLIC        LAW          REVIEW,          1993,              p.     413-4

  A second claim made on behalf of fetal life is that there is a right to life that takes precedence over the life or health
  or welfare of the pregnant woman. In discussing this claim we must distinguish between a virtue, that is, doing
  something that may be considered desirable, and a right. If I am walking along the bank of a river or lake and
  someone who cannot swim falls or jumps in, we could argue that I ought also to jump in, to rescue the drowning
  person, even if my own life is at stake. But the person who jumps or falls in cannot claim that I must jump in
  because he/she has a right to life. The mere fact that I ought to rescue another does not give that person a right
  against me. The common law rule is that we have no duty to save the life of another person, unless we voluntarily
  undertake such an obligation as a lifeguard does in contracting to save lives at a swimming pool. Neither is there a
  biblical mandate that each of us is morally required to risk our lives to save the life of another. Jesus treated as
  highly exceptional and an evidence of great love the act of a person who "lay down his life for his friends." No
  woman should be required to give up her life or health or family security to save the life of a fetus that is threatening
  her wellbeing. At the very least she is entitled to self-defense. On the other hand, many women are willing to
  sacrifice their health and future in order to have one or more children. The community that respects the autonomy of
  women must respect equally their freedom of choice.




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     Answers to: “Fetus Has a Right to Lead/Fulfill His/Her Life”
WE DON’T GRANT RIGHTS TO POTENTIAL LIFE TO MALE SPERM FERTILIZERS
AND FEMALE EGGS IN A TEST TUBE OR DISH

John Swomley, graduate of Dickinson College, Ph.D. in Political Science from the University of Colorado, ST.
LOUIS UNIVERSITY PUBLIC LAW REVIEW, 1993, p. 414-5

   A third claim for fetal life is that no fetus should be denied the right to be born and make the most out of life. Let us
   take the case of in vitro fertilization, a process whereby male sperm fertilizes a female egg in a test tube or dish. Can
   it be argued that such a fertilized egg has all the rights of a living person? Does it have the right to be implanted in a
   woman's uterus, without which there could be no expectation of childbirth? In vitro fertilization is forbidden by the
   Vatican statement, "Instruction on Respect for Human Life in its Origin and on the Dignity of Procreation." n32 Fr.
   Donald McCarthy of the Pope John XXII Medical, Moral and Educational Center in St. Louis has called for the
   endowment of civil rights to every fertilized egg, including the right not to be created at all except as a consequence
   of "personal, self-giving and conjugal love." n33 Here two fictional legalisms conflict: a human being exists at
   "conception," but that human being has a right not to be implanted. Who makes that [*415] decision? Certainly not
   the fertilized egg. Why is this any different from saying that an unwanted fetus has a right not to be born?




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                          Answers to: “Fetus Desires to Live”

THE FETUS HAS NO DESIRE TO LIVE UNTIL IT HAS ORGANIZED CORTICAL BRAIN ACTIVITY

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 122-3

To say that I will now present such an argument is in an important sense misleading. I have, in effect, already
presented the argument, in myresponsetoMarquis’sfuture-like-oursargumentinSection2.7 .What remains is only
to make explicit its implications. According Marquis’s version of the future-like-ours argument, it must be
remembered, the best account of the wrongness of killing an individual like you or me or a temporarily
comatose adult or a suicidal teenager rests on the wrongness of depriving an individual of a futurelike-ours. A
future-like-ours contains a variety of valuable experiences of the sort that the individual either currently desires
to enjoy or will later come to enjoy, and so killing him is wrong because it deprives him of all that he now
values or will later come to value. And since a typical human fetus has a future-like-ours from the beginning of
its existence that it will later come to enjoy, it follows on this account that a typical human fetus has the same
right to life as you or I from the beginning of its existence. I argued in Section 2.8 that Marquis’s position is
ultimately undermined by a failure to account for two important distinctions, that between occurrent and
dispositional desires, and that between ideal and actual desires. A desire of yours is an occurrent desire if it is
one that you are consciously entertaining. If this discussion is striking you as tedious, for example, then you may
right now be experiencing an occurrent desire to put this book down. A desire of yours is dispositional if it is a
desire that you do have right now even if you are not thinking about it at just this moment. I suspect, for
example, that when you began to read this sentence you really did want to live beyond tomorrow evening, even
though it is unlikely that you were entertaining just that desire consciously as you began to read this sentence. If
we limit the sorts of desires that matter morally to occurrent desires, then Marquis’s example of the temporarily
comatose adult will successfully demonstrate that a present desire to preserve one’s personal future is an
unsatisfactory basis upon which to construct an account of the wrongness of killing. The temporarily comatose
adult has no present occurrent desire that his personal future be preserved, yet surely killing him is as wrong as
killing you or me. And since the temporarily comatose adult will presumably have such a desire when he regains
consciousness, the most natural response to this problem will be to follow Marquis’s suggestion that we appeal
to the wrongness of frustrating a desire that he either has now or will later come to have if he is not killed. But
as I argued in Section 2.8 .3 , it is dispositional desires, rather than occurrent desires, that matter most when
desires matter morally. The desires of others make legitimate demands on you because they show that yours are
not the only desires there are to be satisfied. The fact that a woman desires that her husband be faithful to her
thus constitutes a legitimate moral reason against his having an affair regardless of whether she is currently
entertaining that desire as a conscious desire or entertaining some other conscious desire, or no conscious
desires at all. And when we formulate a future-like-ours account of the wrongness of killing in terms of
dispositional desires, we find that we can account for the wrongness of killing the temporarily comatose adult
without complicating the initial scheme on which killing is wrong in terms of an individual’s present desires. I
thus argued that a present dispositional desire version of the future-like-ours account of the wrongness of killing
was superior to the present or future occurrent desire version that Marquis endorses on grounds of both
parsimony and salience. The actual content of a desire of yours is the content of a desire that you in fact have
(either occurrently or dispositionally). If you are thirsty right now and there is a glass of water in front of you,
for example, then you may well have an actual desire to drink from that glass. Actual desires are often formed
under less than perfect conditions, and in such cases we can often reasonably refer to the desire that you would
have had under more perfect conditions by idealizing your actual desire to take the circumstances into account.
If we know that the water in the glass in front of you contains a deadly toxin, for example, while you do not
know this, then while your actual desire will be to drink from the glass, we may confidently consider your ideal
desire to be to avoid drinking from the glass, given that your actual (though likely dispositional rather than
occurrent) desire not to be killed strongly outweighs your actual (even if occurrent) desire to quench your thirst.
And we can say the same sort of thing about those desires that overtake us when we are under conditions of
great stress or grief. If we limit the sorts of desires that matter morally to actual desires, then Marquis’s example
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of the suicidal teenager will successfully demonstrate that a present desire to preserve one’s personal future,
even when desires are construed to include dispositional and not merely occurrent desires, is an unsatisfactory
basis upon which to construct an account of the wrongness of killing. The suicidal teenager has no present desire
that his personal future be preserved of either an occurrent or dispositional sort, yet surely killing him is as
wrong as killing you or me. And since the suicidal teenager will presumably have such a desire when he
overcomes his present difficulties, the most natural response to this problem will again be to follow Marquis’s
suggestion that we appeal to the wrongness of frustrating a desire that he either has now or will later come to
have if he is not killed. But, as I argued in Section 2.8 .4 , it is ideal desires, rather than actual desires, that
matter most when desires matter morally, at least in those cases where actual desires arise under importantly
imperfect conditions, such as crucially mistaken information or severe degrees of emotional trauma. The fact
that you have desires about how your future goes imposes legitimate moral demands on me, and the fact that
your ideal dispositional desire not to be killed more deeply and accurately reflects what matters to you than does
your actual occurrent desire to drink the glass of water in front of you makes your ideal rather than your actual
desire the morally relevant one. And when we formulate a future-like ours account of the wrongness of killing in
terms of ideal desires, we again find that we can account forthewrongnessofkillingtheindividual in question, in
this case the suicidal teenager, without complicating the initial scheme on which killing is wrong in terms of an
individual’s present desires. I thus concluded that a present ideal dispositional desire version of the future-like-
ours account of the wrongness of killing was superior to the present or future actual occurrent desire version that
Marquis endorses on grounds of both parsimony and salience. Chapter 2 was concerned with what I have been
calling the conception criterion, the claim that the fetus acquires a right to life at the moment of its conception.
Since ideal desires, as I defined them, are simply the content of actual desires corrected to account for the
distorting influences of imperfect circumstances, and since a zygote has no actual desires to suffer such
distortion, I concluded that the best version of the cortex. It therefore has no such desires prior to the point at
which it has organized electrical activity in its cerebral cortex. One implication of this account of the wrongness
of killing, then, is that the fetus does not acquire the moral standing that you and I have prior to the point at
which it has such activity. The fact that the human fetus prior to this point has the potential to develop such
activity is not in itself morally relevant. But it is also a feature of this account of the wrongness of killing that
merely having some actual desires is not enough to ensure that one has the same right to life as you or I. Killing
people like us is the severe wrong that it is not only because it thwarts a desire that we have, but because it
thwarts a particularly important desire that we have: the desire to preserve our future-like-ours. We have this
particular desire, at least as an ideal desire even if it is not always one of our actual desires, because we do, in
fact, have a future-like-ours. And we have a future-like-ours only because we have a brain which will enable us
to enjoy, in the future, the kinds of conscious experiences that make our lives distinctively valuable to us. Thus,
on this account of the wrongness of killing, the potential of our brains is morally relevant within a limited scope.
Prior to developing actual conscious desires, an individual cannot have the same moral standing as you or I.
Once an individual does develop such desires, the potential that his brain has for developing further becomes
morally relevant: It is because a human infant’s brain has a potential that the brain of a mature cow or pig does
not have that the human infant uncontroversially has a future-like-ours, whereas the cow or pig does not. And it
is because of this that the conscious desire that an infant has provides a solid foundation for attributing to it an
ideal dispositional desire that its future-like-ours be preserved, whereas this cannot be said of the conscious
desires of the cow or the pig.




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    Answers to: “You Can’t Kill a Dog and A Dog Isn’t a Person”

WOMEN’S RIGHTS CONFLICT WITH THE INTERESTS OF THE FETUS – IT IS NOT
NECESSARY TO TERMINATE A DOG TO EXERCISE FREE SPEECH

Laurence Tribe, law professor, Harvard, ABORTION: THE CLASH OF ABSOLUTES, 1992, p. 114

This argument-that the fetus need not, after all, be considered a person in order to overcome the existence of a
woman's "right" to terminate her pregnancy at will-was most famously expressed in an irreverent aside by John
Hart Ely, the former dean of Stanford Law School and an esteemed constitutional scholar. In the course of a
scathing 1973 attack on Roe v. Wade, Ely noted that even though dogs certainly are not persons under the
Fourteenth Amendment, a state most assuredly may make it a crime for a demonstrator to kill a dog without
thereby impermissibly abridging the demonstrator's First Amendment rights of free speech. Recalling that the
Supreme Court had once upheld an act of Congress making it a crime to burn a draft card, 2 Ely remarked,
"Come to think of it, draft cards aren't persons either." The problem with Ely's observation is that a fundamental
liberty of protest need not entail killing or destroying a dog or anything else. Nobody has to kill an animal or
mutilate government property in order to exercise the right to engage in freedom of speech. But if a woman's
protected liberty includes a right to decide that her body will not be used to incubate and give birth to another,
and if a woman is entitled to choose not to develop part of herself into a separate human being, then, in order to
exercise that right, she unfortunately has to end the life of the fetus she carries within her-as long as she chooses
to exercise that right before the fetus develops enough so that it can survive and mature outside her body with
the aid of whatever technology exists. If she is to exercise the "liberty" to resist the conscription of her body as a
vessel and a vehicle for another life, then, until that other life can as a practical matter be preserved without
involuntarily using her life to preserve it, she has no alternative other than the tragic one of ending the fetus's
life. The right protected by Roe is not necessarily a right to end the life of the fetus. That is simply an outcome
that cannot be avoided prior to fetal viability if the woman is to exercise the right to terminate her pregnancy. It
is no answer to suggest that she just wait until the fetus is developed enough to survive after being surgically
removed, for that would mean the right the woman claims is an empty one.




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                            General Women’s Rights Extensions
TO DENY ABORTION TO WOMEN IS TO SAY THAT ONLY MEN HAVE POLITICAL
RIGHTS


John SwomleyM graduate of Dickinson CollegeM Ph.D. in Political Science from the University
of Colorado, ST. LOUIS UNIVERSITY PUBLIC LAW REVIEW, 1993, p. 416-7

Women, whose lives and freedom have been largely at the mercy of men for centuries, must make or be involved in
decisions that affect their lives, their futures, their families. To refuse on principle to permit a woman to consider her life or
welfare when it seems threatened by pregnancy is to say that only men are the recipients of political freedom and
responsibility. It is also to say that the primacy of the right to bodily life of the fetus places all other considerations,
including the health, worth, and dignity of women, on a lower level.


ABORTION REGULATIONS DRIVEN BY A DESIRE TO PROTECT WOMEN’S ROLE AS MOTHERS

Reva Siegel, law professor, STANFORD LAW REVIEW, January 1992, “Reasoning from the Body: A
Historical Perspective on Abortion Regulation and Questions of Equal Protection,”P. 265-6

To illustrate the critical limitations and historical lineage of this naturalistic framework, Part II offers a detailed
account of the nineteenth century [*266] campaign to criminalize abortion. The doctors who led the nineteenth
century campaign attacked abortion in the physiological discourse of their profession, depicting the practice as
inimical to diverse aspects of social life. They emphasized that restricting women's access to abortion was
necessary, not only to protect the unborn, but also to ensure that women performed their obligations as wives
and mothers and to preserve the ethnic character of the nation. Analysis of the criminalization campaign
demonstrates that abortion-restrictive regulation may be driven in significant part by constitutionally illicit
concerns, reflecting normative judgments about women, not simply concern for the unborn. At the same time,
this inquiry reveals that physiological modes of reasoning about women's reproductive role have a social
history: From the criminalization of abortion to the protective legislation upheld in Muller v. Oregon, n13
physiological argument has played an important role in justifying regulation that enforces relations of gender
status.




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                                                General Women’s Rights Extensions
THE RIGHTS TO EXPRESSION & INTELLECTUAL DEVELOPENT, PRIVACY, AN TO CARE FOR
ONE’S HEALTH PROTECT ABORTION CHOICE

Mark Tushnet, Professor of Constitutional Law, Georgetown, WHAT ROE SHOULD HAVE SAID, Ed. Balkin,
2004, p. 88-9

The Ninth Amendment obviously does not create federally enforceable rights. It merely says, "The enumeration
in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people:'
But a catalogue of these rights includes customary, traditional, and time-honored rights, amenities, privileges,
and immunities that come within the sweep of "the Blessings of Liberty" mentioned in the preamble to the
Constitution. Many of them, in my view, come within the meaning of the term "liberty" as used in the
Fourteenth Amendment. First is the autonomous control over the development and expression of one's intellect,
interests, tastes, and personality. These are rights protected by the First Amendment and, in my view, they are
absolute, permitting of no exceptions. All of these aspects of the right of privacy are rights "retained by the
people" in the meaning of the Ninth Amend-ment. Second is freedom of choice in the basic decisions of one's
life respecting marriage, divorce, procreation, contraception, and the education and upbringing of children.
These rights, unlike those protected by the First Amendment, are subject to some control by the police power.
Thus, the Fourth Amendment speaks only of "unreasonable searches and seizures" and of "probable cause:'
These rights are "fundamental," and we have held that in order to support legislative action the statute must be
narrowly and precisely drawn and that a "compelling state interest" must be shown in support of the limitation.
The liberty to marry a person of one's own choosing, Loving u Virginia, 388 U.S. i; the right of procreation,
Skinner v. Oklahoma, 316 U.S. 535; the liberty to direct the education of one's children, Pierce v. Society of
Sisters, 268 U.S. 510, and the privacy of the marital relation, Griswold v. Connecticut, supra, are in this
category.' This right of privacy was called by Mr. Justice Brandeis the right "to be let alone:' Olmstead u United
States, 277 U.S. 438 > 478 (dissenting opinion). That right includes the privilege of an individual to plan his
own affairs, for, "outside areas of plainly harmful conduct, every American is left to shape his own life as he
thinks best, do what he pleases, go where he pleases:" Kent v. Dulles, 357 U.S. 116,126. Third is the freedom
to care for one's health and person, freedom from bodily restraint or compulsion, freedom to wall:, stroll, or loaf.
These rights, though fundamental, are likewise subject to regulation on a showing of "compelling state interest:" The Georgia statute is at war with the clear message of these cases-that a woman is free to
make the basic decision whether to bear an un-wanted child. Elaborate argument is hardly necessary to demonstrate that childbirth may deprive a woman of her preferred lifestyle and force upon her a
radically different and undesired future. For example, rejected appli-cants under the Georgia statute are required to endure the discomforts of pregnancy; to incur the pain, higher mortality rate, and
aftereffects of childbirth; to abandon educational plans; to sustain loss of income -, to forgo the satisfactions of careers; to tax further mental and physical health in providing child care; and, in some cases, to
bear the lifelong stigma of unwed motherhood, a badge which may haunt, if not deter, later legiti-mate family relationships. The patient's chosen physician is overridden and the final decision passed on to
                                                                                             that entails. The right to
others in whose selection the patient has no part. This is a total destruction of the right of privacy between physician and patient and the intimacy of relation which

seek advice on one's health and the right to place reliance on the physician of one's choice are basic to Fourteenth
Amendment values. We deal with fundamental rights and liberties, which, as already noted, can be contained or
controlled only by discretely drawn legislation that preserves the "liberty" and regulates only those phases of the
problem of compelling legislative concern. The imposition by the State of group controls over the physician-
patient relationship is not made on any me-ical procedure apart from abortion, no matter how dangerous the
medical step may be. The oversight imposed on the physician and patient in abo-tion cases denies them their
"liberty;" viz., their right of privacy, without any compelling, discernible state interest. Georgia has constitutional
warrant in treating abortion as a medical problem. To protect the woman's right of privacy, however, the control
must be through the physician of her choice and the standards set for his performance.




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                         General Women’s Rights Extensions
ANTI-ABORTION ARGUMENTS ARE DRIVEN BY HOSTILITY TOWARDS WOMEN
Anita Allen, Law professor, Georgetown, STANFORD LAW REVIEW, November 2001, “Tribe’s Judicious
Feminism,” p. 201-2

Tribe discusses possible technological innovations that further illustrate his belief that outmoded stereotypes
regarding women's roles are the foundation of restrictive abortion policy preferences. For example, development
of an artificial womb that could nurture a transplanted fetus at any point after fertilization would seemingly
satisfy the concerns of both the pro-choice and pro-life camps. Women would not be forced to endure unwanted
pregnancies and childbirth, and fetuses would still grow into babies. Technological innovation is, however, no
panacea. States that chose to ban abortion in reliance upon such technologies would have to bear the resulting
costs, and nurturing the fetus, caring for the infant, and rearing the resulting children would be expensive. Even
in the unlikely event that foster care could be found for every artificially nurtured fetus, the medical costs of
such a program would be enourmous. Thus, Tribe argues, one reason that such technological innovation has not
occurred may be that "by comparison with any technological alternative, women represent cheap 'baby
machines.'" More so, some regard women as the only morally appropriate "baby machines." A significant
weakness in Tribe's analysis is his assumption that artificial womb technology would satisfy the concerns of all
sides. Constitutional scholars have not adequately grappled with the possibility that some women who seek
abortion are specifically, responsibly, and reasonably seeking to terminate the life of the potential child. Indeed,
women who fear that nobody will want their children may prefer abortion to non-fatal pregnancy termination. A
woman who knows her genetically related or gestational child will be placed in an artificial womb, foster home,
or adoptive family may feel compelled to reject a mode of pregnancy termination that nonetheless results in
biological parenthood. Women who carry fetuses that, because of their illness, handicap, or race, are unlikely to
be well cared for by others might elect to parent rather than turn their children over to the state or private
charities to become society's refuse.




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                        General Women’s Rights Extensions

DENYING ABORTION RIGHTS IS A FORM OF GENDER DISCRIMINATION

Center for Reproductive Rights, SAFE & LEGAL ABORTION IS A WOMAN’S HUMAN RIGHT, September
2004, http://www.crlp.org/pdf/pub_bp_safeandlegal.pdf

The right to gender equality is a fundamental principle of human rights law. Freedom from discrimination in the
enjoyment of protected human rights is ensured in every major human rights instrument. Denying women
access to abortion is a form of gender discrimination. • According to the Convention on the Elimination of All
Forms of Discrimination against Women, "discrimination against women" includes laws that have either the
"effect" or the "purpose" of preventing a woman from exercising any of her human rights or fundamental
freedoms on a basis of equality with men.15 Laws that ban abortion have just that effect and that purpose. •
Restricting abortion has the effect of denying women access to of denying women access to a procedure that
may be necessary for their enjoyment of their right to health. Only women must live with the physical and
emotional consequences of unwanted pregnancy. Some women suffer maternity-related injuries, such as
hemorrhage or obstructed labor. Denying women access to medical services that enable them to regulate their
fertility or terminate a dangerous pregnancy amounts to a refusal to provide health care that only women
need.16 Women are consequently exposed to health risks not experienced by men. • Laws that deny access to
abortion, whatever their stated objectives, have the discriminatory purpose of both denigrating and undermining
women’s capacity to make responsible decisions about their bodies and their lives. Indeed, governments may
find the potential consequences of allowing women to make such decisions threatening in some circumstances.
Recognizing women’s sexual and reproductive autonomy contradicts long-standing social norms that render
women subordinate to men in their families and communities. It is not surprising that unwillingness to allow
women to make decisions about their own bodies often coincides with the tendency to deny women decision-
making roles in the areas of political, economic, social, and cultural affairs.




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ABORTION RIGHTS CRITICAL TO WOMEN’S SELF-DETERMINATION

Center for Reproductive Rights, ROE V. WADE AND THE RIGHT TO PRIVACY, 2003
http://www.reproductiverights.org/pdf/roeprivacy.pdf

Reproductive rights, the foundation for women’s self-determination over their bodies and sexual lives, are
critical to women’s equality. We believe laws and policies that protect and advance these rights are essential,
and there is no legal decision more fundamental to protecting a woman’s reproductive freedom than Roe v.
Wade, the landmark 1973 case that legalized abortion in the U.S.

WOMEN HAVE RIGHTS TO REPRODUCTIVE SELF-DETERMINATION

Center for Reproductive Rights, SAFE & LEGAL ABORTION IS A WOMAN’S HUMAN RIGHT, September
2004, http://www.crlp.org/pdf/pub_bp_safeandlegal.pdf

 A woman has a right to make decisions regarding her own body. Support for this right is found in a number of
human rights instruments, which ensure freedom in decision-making about private matters. Such provisions
include protections of the right to physical integrity, the right to decide freely and responsibly the number and
spacing of one’s children and the right to privacy. Women have the right to decide whether or not to bring a
pregnancy to term. • When a pregnancy is unwanted, its continuation can take a heavy toll on a woman’s
physical and emotional well-being. Decisions one makes about one’s body, particularly one’s reproductive
capacity, lie squarely in the domain of private decision-making. Only a pregnant woman knows whether she is
ready to have a child, and governments should play no role in making that decision for her. • Respect for a
woman’s right to plan her family requires governments to make abortion services legal, safe and accessible to all
women. There are a number of circumstances in which abortion may be a woman’s only means of exercising
this right. A woman who becomes pregnant through an act of nonconsensual sex would be forced to bear a child
were she denied her right to an abortion. For women who live in settings in which family planning services and
education are unavailable, access to safe abortion services may be the only means of controlling their family
size. Finally, contraceptive failure will inevitably occur among some of those women who regularly use
contraception.




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                           General Women’s Rights Extensions
WE TAKE AWAY A WOMAN’S PERSONHOOD WHEN WE DENY CHOICE

   John SwomleyM graduate of Dickinson CollegeM Ph.D. in Political Science from the University of Colorado, ST.
   LOUIS UNIVERSITY PUBLIC LAW REVIEW, 1993, p. 422
   Episcopal Bishop George Leslie Cadigan stated the case for conscience:

   It is at once the glory and the burden of each of us that we are called upon to make such difficult personal decisions
   according to our conscience. When we deny that liberty to any one of our number, we give away a part of our own
   birthright. When, more specifically, we condemn a woman for making an independent judgment according to her
   own conscience, relating to her reproductive life, we denigrate her personhood.


ANTI-ABORTION LAWS STEM FROM THE DESIRE TO MAKE WOMEN INTO VIRTUOUS CHILD-
BEARERS

Anita Allen, Law professor, Georgetown, STANFORD LAW REVIEW, November 2001, “Tribe’s Judicious
Feminism,” p. 190-1

Tribe states that the true motivation for abortion restrictions appears to stem not from a belief that the fetus is a
person, but from the desire to reinforce the traditional role of women as virtuous childbearers. In defense of this
contention, Tribe points out that abortion is the "only . . . place in the law where a really significant and intimate
sacrifice has been required of anyone in order to save another." Because abortion restrictions burden only
women, "a ban [on abortion] places women, by accident of their biology, in a permanently and irrevocably
subordinate position to men". While abortion opponents generally favor allowing the procedure in cases of rape
or incest, they would prohibit abortion in cases of simple contraceptive failure. According to Tribe, this
inconsistency suggests that the key to the antiabortion view is not the voluntary nature of the pregnancy, but the
voluntary nature of the sexual conduct. Thus, it appears that "such antiabortion views are driven less by the
innocence of the fetus . . . than by the supposed 'guilt' of the woman." n73 Antiabortion statutes are, therefore,
attempts to "impose virture" on women. Further societal disrespect of women's judgment is reflected in statutory
requirements that would hamper women in choosing abortions. For example, waiting periods imply "an
assumption that a woman making this decision is misguided and is likely to be acting rashly." Thus, as Tribe
maintains and as many feminists have argued, abortion restrictions are merely manifestations of broader societal
views about the roles and capacities of women.




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                            General Women’s Rights Extensions
STRONG GENDER BIAS IN ABORTION REGULATIONS, INCLUDING ALLOWING A RAPE & INCEST
EXCEPTION

Reva Siegel, law professor, STANFORD LAW REVIEW, January 1992, “Reasoning from the Body: A
Historical Perspective on Abortion Regulation and Questions of Equal Protection,”p. 363-4

Evidence that a state's decision to enact abortion-restrictive regulation was rooted in judgments about women's appropriate
sexual or maternal conduct may be found in the record of legislative debate. But as Part III of this article suggests, there are
other ways of determining whether abortion-restrictive regulation rests on constitutionally offensive assumptions about
women. Analyzing the terms of the statute, or situating it in larger policy context, can yield structural evidence of such
assumptions -- if one asks, how consistently does the state act to protect the unborn? In what circumstances does the state
act or refrain from acting, and why? In doctrinal parlance, are the means a state has chosen to promote the welfare of
unborn life underinclusive with respect to its ends? n407 As we have seen, the selective focus of fetal-protection policies
can supply evidence that such regulation rests on social assumptions about women's roles. Regulatory selectivity prompted
the Supreme Court's observation that the "[t]he bias in Johnson Controls' policy is obvious. Fertile men, but not fertile
women, are given a choice as to whether they wish to risk their reproductive health for a particular job." For similar
reasons, analyzing the pattern of exceptions or excusing conditions stipulated in abortion-restrictive regulation can supply
evidence that the state's willingness to save unborn life rests on unarticulated assumptions about the women whose conduct
it would regulate. For example, the criminal abortion statute that Utah recently enacted provides exceptions when "abortion
is necessary to save the pregnant woman's life" or "to prevent grave damage to the pregnant woman's medical health"; in
certain cases "when pregnancy is the result of rape" or "the result of incest"; and "to prevent the birth of a child that would
be born with grave defects." The state does not consistently act to protect unborn life. Rather, as the statute's preamble
explains, the state has determined that "a woman's liberty interest, in limited circumstances, may outweigh the unborn
child's right to protection." Thus, the state is indeed making judgments about women as well as the unborn. The statutory
exception allowing women to have abortions if they conceive by an act of rape or incest indicates that the state's decision to
compel women to bear children depends upon certain normative judgments about women's sexual conduct. The apparently
widespread belief that it is reasonable to force women who have consented to sex to bear children likely rests on
unarticulated social assumptions about women's maternal obligations. But, more importantly, rape exceptions of this sort
offend core values of equal protection because they rest on a sexual "double-standard." Utah has decided to punish pregnant
women who have "voluntarily" engaged in sex by making them bear children, yet it has enacted a statute that imposes no
similar duties, burdens, or sanctions on the men who who were coparticipants in the act of conception. Traditional sex-role
assumptions also shape the exception that allows abortions to save the pregnant woman's life or to prevent grave damage to
her health. The therapeutic exception indicates that the state is willing to subordinate the welfare of the unborn to that of the
pregnant woman, but only when women will sustain physical injuries in bearing children. Indeed, more than any sex-based
legislation the Court has reviewed in the modern era, the therapeutic exception graphically defines women as childbearers.
Utah has weighed "woman's liberty interest" against that of the unborn, and decided that women can be forced to be
mothers except when they are physically incapable of the act. By allowing women abortions, but only when pregnancy
threatens to kill them or to inflict "grave damage" on their "medical health," Utah has defined the pregnant woman's "liberty
interest" as an interest in brute physical survival -- reasoning about women as if they had no social, intellectual, or
emotional identity that transcended their physiological capacity to bear children. Thus, analyzing the excusing conditions in
Utah's statute, it appears that the state has promulgated a code of conduct for pregnant women that distinguishes "good"
abortions from "bad" abortions -- whose very reasonableness depends on unarticulated sex-role assumptions about women.




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                         General Women’s Rights Extensions
ANTI-ABORTION REGULATIONS INSTILL SEXUAL FEAR ON PROMOTE SOCIAL INDIGNITY

Reva Siegel, law professor, STANFORD LAW REVIEW, January 1992, “Reasoning from the Body: A
Historical Perspective on Abortion Regulation and Questions of Equal Protection,”p p. 370

Laws that forbid or impair women's access to abortion nin fact have many effects on women's lives. Restrictions
on abortion affect not only pregnant women, but all women who believe they are capable of conceiving, whether
or not they are presently sexually active, whether or not they engage in some form of contraceptive practice.
Because such laws deprive women of means to determine whether or not they will become mothers should they
become pregnant, they impair the possibility of sexual pleasure for women, and aggravate the force of sexual
fear. Abortion-restrictive regulation does not of course prevent all pregnant women who seek abortions from
obtaining them; rather, it subjects all pregnant women seeking abortions to social indignity, some to illicit
procedures fraught with fear and physical hazard, and the rest to the burden of state-coerced pregnancy.

ANTI-ABORTION REGULATIONS REFLECT STEREOTYPING

Reva Siegel, law professor, STANFORD LAW REVIEW, January 1992, “Reasoning from the Body: A
Historical Perspective on Abortion Regulation and Questions of Equal Protection,”p p. 379


Restrictions on abortion thus offend constitutional guarantees of equal protection, not simply because of the
status-based injuries they inflict on women, but also because of the status-based attitudes about women they
reflect. For centuries, this society has defined women as mothers and defined the work of motherhood as
women's work. These are the assumptions which make it "reasonable" to force women to become mothers.
Absent these deep-rooted assumptions about women, it is impossible to explain why this society insists that
restrictions on abortion are intended to protect the unborn, and yet has never even considered taking action that
would alleviate the burdens forced motherhood imposes on women. Restrictions on abortion reflect the kind of
bias that is at the root of the most invidious forms of stereotyping: a failure to consider, in a society always at
risk of forgetting, that women are persons, too. It is a bias that manifests itself in this society's unreflective
expectation that women should assume the burdens of bearing and rearing future generations, its tendency to
denigrate the work of motherhood, and its readiness to castigate women who seek to avoid maternity as lacking
in humanity, proof of which consists in a woman's failure perfectly to subordinate her energies, resources, and
prospects to the task of making life -- to a degree that men, employers, and the community as a whole most
often will not.




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                        General Women’s Rights Extensions

PROTECTION OF CHILDREARING DECISIONS COSTS WOMEN’S EQUALITY IN THE EDUCATION,
ECONOMIC, AND POLITICAL SPHERES

Center for Reproductive Rights, ROE V. WADE AND THE RIGHT TO PRIVACY, 2003
http://www.reproductiverights.org/pdf/roeprivacy.pdf

During the 1960s and 1970s, a movement of medical, public health, legal, religious, and women’s organizations
successfully urged one-third of state legislatures to liberalize their abortion statutes. By guaranteeing women’s
right to make childbearing decisions, Roe became a foundation for fulfilling the promise of women’s equality in
10 Roe v. Wade and the Right to Privacy educational, economic, and political spheres.

ANTI-ABORTION REGULATIONS THREATEN WOMEN’S SOCIOECONOMIC ADVANCEMENT

Reva Siegel, law professor, STANFORD LAW REVIEW, January 1992, “Reasoning from the Body: A
Historical Perspective on Abortion Regulation and Questions of Equal Protection,”p p. 377-8

For this reason, state action compelling motherhood injures women in predictable ways. Both the work of
childbearing and the work of childrearing compromise women's opportunities in education and employment;
neither the work of childbearing nor the work of childrearing produces any material compensation for women;
most often the work of childbearing and the work of childrearing entangle women in relations of emotional and
economic dependency -- to men, extended family, or the state. None of these consequences is inherent in the
physiology of reproduction; all are socially produced, reflecting communal designation of the work of
mothering as "women's work." There is no other form of socially essential labor in this society similarly
organized or valued: The more effort a woman personally invests in it, the more time she devotes to it, the more
inexorably economically dependent she becomes. From this perspective, it is apparent that compelled pregnancy
will injure women in context-dependent ways. It may be endured by women who have ordered their lives in
conformity with traditional norms of motherhood, but it will profoundly threaten the material and psychic
welfare of any woman whose life deviates from this traditional norm, whether by choice or socio-economic
circumstance. When the state deprives women of choice in matters of motherhood, it deprives women of the
ability to lead their lives with some rudimentary control over the sex-role constraints this society imposes on
those who bear and rear children. It makes the social reality of women's lives more nearly conform with social
stereotypes of women's lives. Considered from this perspective, choice in matters of motherhood implicates
constitutional values of equality and liberty both.




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                   Answers to: “Feminism Opposes Violence”


FEMINISM DOESN’T OPPOSES ALL VIOLENCE

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002,
p. 304

One version of this sort of argument appeals to the claim that feminism is committed to opposing violence.
Abortion by any means is clearly a violent act in at least some sense, and this again suggests that a defender of
feminism should be an opponent of abortion. As one such writer has put it, “Why should women’s traditional
(and quite wise) abhorrence of violence stop at the threshold of their own bodies?” (Maloney 1995: 269). 12 But
this argument is implausible. Feminism is not committed to opposing violence per se. It does not insist, for
example, that it is morally impermissible for a woman to attack a rapist violently in self-defense. Rather,
feminism is committed to opposing unjustified violence. Moreover, feminism is not committed to the view that
violence against any living thing is unjustified. Chemotherapy violently destroys living cancer cells, for
example, and no feminist would say that this is morally wrong. There are, of course, any number of important
differences between a cancer cell and a human fetus that a critic of abortion might point to. It certainly does not
follow from the fact that destroying cancer cells is morally permissible that destroying human fetuses is as well.
But in order to justify this distinction, the critic of abortion would then have to explain why the human fetus is
different, why it is reasonable to suppose that the fetus has a right not to be treated in this way whereas cancer
cells do not. But to do this is simply to revert to the rights-based argument, which I have already rejected in the
previous chapters. Relying on the traditional rights-based argument against abortion is precisely what those
arguments that are distinctive of the pro-life feminist literature seek to avoid having to do. But without doing so,
its appeal to the wrongness of violence is simply implausible.




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                       Answers to: “Abortion is Oppression”


THE OPPRESSION ARGUMENT IS CIRCULAR

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002,
p. 305

A second version of this sort of argument appeals instead to feminism’s traditional opposition to the exploitation
or oppression of the powerless by the powerful. But this argument simply begs the question. To say that an act
of harming an individual is an act of exploitation or oppression is already to say that the act is unjust, and the
question at issue here is precisely whether abortion is unjust in this sense. That such an appeal is ultimately
circular is usually made clear when the argument is explicitly spelled out. As one feminist critic of abortion has
put it, for example, “[t] he basic ideal of feminism is a society in which the powerful do not deny the weak their
rights, yet abortion is truly patriarchal because it is a prime example of the powerful (women) depriving the
weak (unborn children) of their rights, to the point of killing them” (Bailey 1995: 163). But if abortion violates
the rights of the fetus, then there is no need to invoke feminism as a basis for opposing it; it will be
impermissible simply because it violates the rights of the fetus, and we will again be back to the traditional
rights-based argument against abortion, which I have already considered in great detail.




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           Answers to: “Abortion Undermines Feminist Goals”


TWO PROBLEMS WITH THE FEMINIST GOALS ARGUMENT

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002,
p. 305-6

An additional argument that is also frequently made by feminist critics of abortion is consequentialist in nature.
The claim is that a social policy that allows easy access to abortion makes it impossible for a number of other
feminist goals to be successfully achieved. Most feminists, for example, would endorse such goals as “fairness
in hiring, more flex-time, part-time, and home-commute jobs, better access to prenatal and obstetric care,
attractive adoption opportunities ... and help with child care and parenting when we choose to keep our babies.”
Yet Frederica Mathewes-Green maintains that “these changes will never come as long as we’re lying down on
abortion tables 1,600 ,000 times a year to ensure the status quo” (1995 a: 182). Anne M. Maloney provides a
similar list of desirable changes that virtually any feminist would endorse, and argues that they “will occur only
when we insist upon them” and that “abortion on demand precludes such insistence. When abortion is easily
accessible, society no longer has to take pregnancy seriously” (1995 : 271). There are two problems with this
argument. The first is that it is simply not clear why a society cannot have both liberal access to abortion and
progressive policies regarding work, child care, health care, and so forth. Some countries seem already to be
able to accomplish this, and the historical record provides little reason to believe that family-related policies
were more progressive when abortion was less easily available in such countries as the United States. The claim
that access to abortion prevents such other reforms from occurring is an empirical claim, and a very sweeping
empirical claim. And while it is often asserted by feminist critics of abortion, it does not seem to have been
given a convincing empirical defense. It is as if someone were to assert without evidence that automobile safety
advocates should abandon their demand for liberal access to air bags in all automobiles, on the grounds that
society would stop taking automobile accidents seriously and would never be willing to adopt more enlightened
measures to prevent them and to treat victims when they occurred. There is, it should be noted, one sense in
which it does seem quite plausible to say that liberal access to abortion prevents feminists from achieving other
important goals: because there is a substantial amount of support for the movement to restrict such access,
feminist defenders of abortion are forced to commit a great deal of resources to lobbying for abortion rights that
they would otherwise have used to lobby for better day care, work benefits, and so forth. But this suggests that a
concern for better day care and so forth should motivate opponents of abortion to stop using their resources to
oppose abortion, rather than that it should motivate defenders of abortion to stop using their resources to defend
it. But let us suppose for the sake of the argument that we are convinced of the truth of the empirical claim about
the effects of easy access to abortion. It still does not follow that abortion is morally impermissible, any more
than it would follow that equipping automobiles with air bags would be morally impermissible if doing so
diminished the support for other safety measures. In each case, it would follow only that the gaining of one
important benefit could come only at the expense of another. And that is a far weaker claim. Indeed, one could
as easily argue, if the empirical claim is true, that feminists should stop demanding better day care, and so forth,
on the grounds that meeting such demands would require them to abdicate their rights to abort unwanted
preganancies.




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              Answers to: “Abortion Presents Women as Sex Objects”
David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002,
p. 306-7

Another common argument raised by feminist critics of abortion is that “abortion perpetuates the image of
women as reusable sex objects” (Bailey 1995: 163). If men knew that every time they had intercourse with a
woman there was a chance that they would become a father, that there would be no way to prevent an unwanted
pregnancy from being brought to term should one occur, then they would be far less likely to have sex outside of
serious, caring relationships. The easy availability of abortion, on the other hand, enables them to pursue sexual
gratification with little concern for the future, and thus with little concern for their partners. This argument is
frequently driven home with the observation that the Playboy Foundation gives generously to organizations that
lobby in favor of liberal access to abortion (e. g., Bailey 1995: 163; de Jong 1995b: 173). There is nothing
unreasonable about the suspicion that the Playboy Foundation’s motives in funding abortion rights groups are
less than noble, though little of significance follows from this. It seems equally reasonable to suspect that its
support of groups opposed to censorship is ultimately self-serving as well, but this does little to cast doubt on the
worthiness of opposing censorship. And there are, in any event, more serious problems with this argument. The
first is that it applies equally, indeed more strongly, to contraception. It must be admitted that it seems plausible
to suppose that some men who engage in casual sex where abortion is easily available would not do so if
abortion were not available, but it seems even more plausible to suppose that many more men who would still be
willing to take their chances without abortion as a back-up so long as effective contraception were available
would be unwilling to do so if there were no contraception. If we look at things from the promiscuous male’s
point of view, as the argument encourages us to do, the increased security that contraception adds to sex without
contraception is substantially greater than the increased security that contraception plus abortion as a back-up
adds to contraception without such a back-up, especially since whether or not a woman will abort the product of
a one-night stand is largely beyond the man’s control even if abortion is widely available. So if we really want
to stop men from taking sex so lightly, we should deem contraception off limits as well. But feminist critics of
abortion, like critics of abortion in general, are unwilling to rest the case against abortion on a position that
entails that contraception is (at least) as great an evil. There are, of course, many potentially relevant differences between contraception and abortion that a critic
of abortion might appeal to, most obviously that abortion involves killing a human fetus while contraception involves preventing a human fetus from coming into existence. But if the critic of abortion is
forced to appeal to such distinctions, she will again have to go ahead and defend the claim that the human fetus has a right to life that sperm and eggs lack, and that will again be to abandon the distinctively
feminist approach to the issue in favor of the rights-based argument that has already been rejected in this work. But let us suppose that this objection can be overcome. There is a further problem. For the fact
that a form of behavior contributes to the objectification of women cannot in itself plausibly be held to show that the act is morally impermissible. Wearing certain kinds of makeup, dressing in provocative
clothing, affecting certain manners of speech and comportment — all of these can plausibly be said to contribute to an environment in which women are viewed by men primarily as objects of sexual desire.
If they do contribute to such objectification, then this fact can plausibly be appealed to as a justification for criticizing women who behave in these ways. But it is difficult to imagine that they would warrant
the conclusion that women do not have the moral right to behave in these ways. As with the case of contraception, there are again any number of features that might be pointed to in distinguishing abortion
from, say, wearing revealing clothing, but this would again require the feminist critic of abortion to make good the sorts of claims that I have already argued against in the previous chapters.




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   Answers to: “Devaluing the Fetus is the Same as Patriarchy”

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002,
p. 308-9

A further argument against abortion that has been raised by some feminist critics of the practice turns on the
claim that there is an important parallel between the way in which defenders of abortion justify their claim that
the fetus has less moral standing than you and I have, and the way in which defenders of patriarchical
institutions have traditionally justified their claim that women have less moral standing than men have. Surely if
anything is definitive of feminism it is the rejection of the claim that women have less moral standing than men,
and if this rejection is inconsistent with such defenses of abortion, then a feminist should be committed to
rejecting such defenses of abortion as well. The central observation underlying this argument is that, in both
cases, defenders of differential moral standing appeal to biological considerations. Defenders of male superiority
have appealed to various claims about the physical differences between men and women, ranging from claims
about their reproductive systems to claims about their brains, and yet those who defend abortion on the grounds
that the fetus, although a human being, is not yet a person with the same right to life as you or I, seem to be
doing precisely the same thing. As one proponent of this argument has put it, “In denying the personhood of the
unborn child, feminists have borrowed the very same justifications that the patriarchs have used so successfully
throughout history to deny full recognition as persons to women” (Bottcher 1995: 177). Such writers have
correctly identified a parallel between the two cases. And there is nothing amiss in noting its irony. But whether
the parallel should actually be a source of concern to the feminist defender of abortion depends entirely on what
is taken to be wrong with the argument for male superiority in the first place. If the feminist rejects this
argument by maintaining that biological differences are never morally relevant, then it will surely be
inconsistent for her to appeal to such differences in denying equal rights to the fetus. But the claim that
biological differences are never morally relevant is on the face of it implausible. If it were true, we would have
to attribute equal moral rights to (at least) all biological organisms. Moreover, such a claim is not necessary in
order to undermine the various arguments for male superiority that have been advanced throughout the ages.
One can deny that the difference between having a penis and having a vagina is morally relevant without
insisting that biological differences are never morally relevant.




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            Answers to: “Abortion Capitulates to Male Norms”

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002,
309-10

Finally, feminist critics of abortion often argue that the demand for a permissive attitude toward abortion
represents a capitulation to the distinctively antifeminist view that what is male is the norm for human behavior.
Men are by their nature more free to combine sexual activity with career advancement than are women, for
example, because sexual activity cannot cause them to incur the burdens of an unwanted pregnancy. One way to
promote sexual equality in this respect would be to provide pregnant women with more resources to assist them
in their pregnancies. This approach would treat the fact that women can become pregnant as just as normal as
the fact that men cannot. The other way to provide an equal playing field would be to ensure that women could
abort their pregancies if they wanted to. But this approach would reflect the presumption that the male way of
combining sexual freedom with economic autonomy is the normal or appropriate way. And this is not the way
that a feminist should attempt to respond to such concerns. As one such critic has put it, “[i] f women must
submit to abortion to preserve their lifestyle or career, their economic or social status, they are pandering to a
system devised and run by men for male convenience” (de Jong 1995b: 172). Like many of the observations
contained in the writings of feminists opposed to abortion, there is much to agree with here. But, again as with
many of the other statements to be found in the literature, this claim does not support the conclusion that
abortion is morally impermissible. One can surely denounce an environment in which many women have no
attractive alternatives to abortion without maintaining that women who see no such alternatives do something
morally impermissible when they choose to abort their pregnancies. While the feminist critique of abortion
raises serious concerns about the complacent attitude that one might take in viewing abortion as a painless
solution to the problem of unwanted pregnancies, therefore, it fails to provide support for the claim that abortion
is morally impermissible. And that is the claim I have been concerned to argue against in this work.




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   Answers to: “Abortion Doesn’t Guarantee Women’s Equality”

OUR EVIDENCE SAYS IT IS A NECESSARY, EVEN IF NOT A SUFFICIENT, CONDITION FOR
WOMEN’S EQUALITY


IT’S A STEP IN THE RIGHT DIRECTION

Andrew Kopplemen, University of Chicago, M.A., Political Science, Yale University,; J.D., Yale University,
1989; Ph.D. expected, Political Science, Yale University, “Legal Theory, Forced Labor: A Thirteenth
Amendment Defense of Abortion,” NORTHWESTERN UNIVERITY LAW REVIEW, Winter 1990, 507-8

   Readily available abortion deprives them of this power, thereby rendering them more vulnerable to sexual
   exploitation. Thus, just as Bailey alone was insufficient to guarantee blacks' freedom and equality, Roe alone is
   insufficient to guarantee the freedom and equality of women. Without more, both decisions harmed some of those
   they purported to help. They were, at best, a step in the right direction.




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                Answers to: “The Woman Chose to Have Sex”
SEXUAL INTERCOURSE IS NOT A PREGNANCY CONTRACT

  John SwomleyM graduate of Dickinson CollegeM Ph.D. in Political Science from the University of Colorado, ST.
  LOUIS       UNIVERSITY          PUBLIC        LAW          REVIEW,          1993,               p.       417

  The fact that a woman has had sexual intercourse with her spouse or partner is not a contract for pregnancy. The
  Roman Catholic hierarchy doctrine that every sexual act must be open to procreation assumes that a sexual relation
  is an implied contract for pregnancy. If that, for Catholics, is enforceable by church action, it certainly should not be
  applied to non-Catholics who do not accept that teaching, and therefore it should not directly or indirectly become
  government law.

  (more cards on this in the slavery extensions)




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                                         Slavery Outweighs
SLAVERY DEPRIVES INDIVIDUALS OF DIGNITY AND BODILY INTEGRITY –
FOUNDATION RIGHTS FOR A PERSONS’ EXISTENCE

Andrew Kopplemen, University of Chicago, M.A., Political Science, Yale University,; J.D., Yale University,
1989; Ph.D. expected, Political Science, Yale University, “Legal Theory, Forced Labor: A Thirteenth
Amendment Defense of Abortion,” NORTHWESTERN UNIVERITY LAW REVIEW, Winter 1990, p. 494

This idea of self-ownership appears to be so deeply ingrained in our society's notions of what constitutes respect
for a person that it is not clear that we could abandon it without severe trauma to our ideals of individual worth
and dignity. To deprive a person of control over part of his body is an assault on his integrity, for "the body is
the primitive precondition and foundation for a person's being in the world at all, for his projection of
himself into the world through actions and for his instilling value into things." If the body is imagined to be
distinct from the person who inhabits it, so that it can be expropriated without violence to that person, then
indeed "[w]hether any coherent conception of the person remains when the distinction is so pressed is an open
question." Moreover, when such control has been exerted in the past, its object has typically been a caste of
persons that the society regarded as inferior and unworthy. Involuntary servitude is an insult as well as an injury.
The insult is even more flagrant when an already subordinated class is singled out for such subjection. That is
how slaves were treated before the Civil War. If the purpose of the amendment is to guarantee that no one is
ever treated that way again, then Bailey's absolute rule of self-ownership makes sense.




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                                          Slavery Outweighs

SINCE THERE IS NO WAY TO ABSOLUTELY PROVE THE FETUS IS A PERSON,
SLAVERY OUTWEIGHS

Andrew Kopplemen, University of Chicago, M.A., Political Science, Yale University,; J.D., Yale University,
1989; Ph.D. expected, Political Science, Yale University, “Legal Theory, Forced Labor: A Thirteenth
Amendment Defense of Abortion,” NORTHWESTERN UNIVERITY LAW REVIEW, Winter 1990, p. 484-5

This argument makes available two responses to the objection that the fetus is a person. The first is that, even if
this is so, the fetus' right to continued aid from the woman does not automatically follow. As Thomson observes,
"having a right to life does not guarantee having either a right to be given the use of or a right to be allowed
continued use of another person's body -- even if one needs it for life itself." Quite thereverse, giving fetuses a
legal right to the continued use of their mothers' bodies would be precisely what the thirteenth amendment
forbids. The second response is that since abortion prohibitions infringe on the fundamental right to be free of
involuntary servitude, the state bears the burden of having to show that the violation of this right is justified. The
State cannot carry this burden, because no one knows how to prove (or disprove) that a fetus is, or should be
considered, a person. The mere possibility that it might be is not enough to justify violating women's Thirteenth
Amendment rights by forcing them to be mothers.


THE RIGHT NOT TO ENSLAVE ONE’S BODY IS INALIENABLE

Andrew Kopplemen, University of Chicago, M.A., Political Science, Yale University,; J.D., Yale University,
1989; Ph.D. expected, Political Science, Yale University, “Legal Theory, Forced Labor: A Thirteenth
Amendment Defense of Abortion,” NORTHWESTERN UNIVERITY LAW REVIEW, Winter 1990, p. 484

The right not to have one's body controlled by others is inalienable, for two reasons: first, because agreements to
abandon one's freedom are likely to be made in coercive circumstances in which consent is illusory, and second,
because to enforce such agreements tends to place the state's imprimatur on relations of caste domination and
subjection. All of these concerns are applicable to women with unwanted pregnancies, whose "consent" to their
condition is usually equally illusory. Laws against abortion define women as a servant caste and enforce that
definition with criminal sanctions. This is the same kind of injury that antebellum slavery inflicted on blacks,
and it therefore violates women's thirteenth amendment rights.




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                                  Bodily Integrity Outweighs
THE COURT HAS REJECTED PAST VIOLATIONS OF BODILY INTEGRITY

Andrew Kopplemen, University of Chicago, M.A., Political Science, Yale University,; J.D., Yale University,
1989; Ph.D. expected, Political Science, Yale University, “Legal Theory, Forced Labor: A Thirteenth
Amendment Defense of Abortion,” NORTHWESTERN UNIVERITY LAW REVIEW, Winter 1990,

 Even outside of its thirteenth amendment jurisprudence, the Court has consistently required special justification
for government actions that invade a person's body, such as "compulsory vaccinations, compelled blood tests,
extractions of contraband narcotics from the rectal cavity, and even surgical removal of a bullet. . . ." L. TRIBE,
supra note 24, § 15-9, at 1331 (footnotes omitted); see also Regan, supra note 2, at 1583-86. "The integrity of
the individual's person is a cherished value of our society," the Court observed in upholding a required blood
alcohol test in Schmerber v. California, 384 U.S. 757, 772 (1966). "That we hold today that the Constitution
does not forbid the States minor intrusions into an individual's body under stringently limited conditions in no
way indicates that it permits more substantial intrusions, or intrusions under other conditions." Cf. Winston v.
Lee, 470 U.S. 753 (1985) (surgical removal of bullet to obtain evidence violates defendant's Fourth Amendment
right to be secure in his person and intrudes on the "individual's dignitary interests in personal privacy and
bodily integrity," id. at 761). The Court has thus been suspicious of bodily invasion even in cases involving
defendants in police custody, with respect to whom "it is ordinarily justifiable for the community to demand that
the individual give up some part of his interest in privacy and security to advance the community's vital interests
in law enforcement. . . ." Id. at 759. What distinguishes forced pregnancy from these other cases to bring it
within the scope of the thirteenth amendment is that in pregnancy, the individual's body is not only invaded, but
compelled to do productive work without the individual's consent.

FORCED CHILDBIRTH VIOLATES BODILY INTEGRITY

Andrew Kopplemen, University of Chicago, M.A., Political Science, Yale University,; J.D., Yale University,
1989; Ph.D. expected, Political Science, Yale University, “Legal Theory, Forced Labor: A Thirteenth
Amendment Defense of Abortion,” NORTHWESTERN UNIVERITY LAW REVIEW, Winter 1990,

The right to bodily integrity was emphasized by the Supreme Court of Canada when it recently invalidated that
country's restrictive abortion statute. See R. v. Morgentaler, 1 S.C.R. 30, 56-57 (1988) (Can.) ("Forcing a
woman, by threat of criminal sanction, to carry a fetus to term unless she meets certain criteria unrelated to her
own priorities and aspirations, is a profound interference with a woman's body and thus a violation of security of
the person.").




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                                  General Slavery Extensions


FORCED PREGNANCY IS SLAVERY

John Swomley, graduate of Dickinson College, Ph.D. in Political Science from the University of
Colorado, ST. LOUIS UNIVERSITY PUBLIC LAW REVIEW, 1993, p. 416-7

  The similarity or parallel between the Dred Scott decision and the Court's abortion decision is this: The abolitionists
  who wanted to end human slavery fought against the Dred Scott decision. Those who want women to be enslaved by
  laws requiring childbirth if a woman is impregnated by rape, incest, failure of contraception, etc., are fighting
  against the Supreme Court decision legalizing abortion. The abolitionists fought for the freedom and right of self-
  determination of black slaves. The pro-choice movement fights for the right of women legally to determine their
  own destiny and to control their bodies. Dred Scott symbolized the inequality of black slaves with free white and
  free black men. The problem today is that "right to life" political and religious leaders want to take millions of
  women and make them as a class not only unequal to men but subordinate to the fetuses they carry in their wombs.


IF FETUSES ARE PERSONS THEN THEY A RESPONSIBLE FOR MASSIVE DAMAGE DONE TO
WOMEN’S BODIES
   Nancy Hirschman, political scientists, U Penn, TEXAS JOURNAL OF WOMEN & THE LAW, Fall
   2003,                                            pp.                            46-7

  Eileen McDonagh makes a similar argument about abortion by suggesting that fetuses, insofar as they
  have human status, make aggressive and even hostile demands on women's bodies and personhood. If one
  wishes to make the assertion that fetuses are persons, then one must recognize that fetuses "force massive
  physical intrusion" on women's - their would-be mothers' - bodies. Women, therefore, have the right to
  use "deadly force" as they would against any other person engaged in such "massive intrusion" on their
  bodies. A woman has the right to demand that the state intervene on her behalf to "stop the fetus as a
  private      party      from        intruding      on       her      bodily      integrity       ...     ."




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                                   General Slavery Extensions


FORCED PREGNANCY IS SLAVERY

  Andrew Kopplemen, University of Chicago, M.A., Political Science, Yale University,; J.D., Yale University, 1989;
  Ph.D. expected, Political Science, Yale University, “Legal Theory, Forced Labor: A Thirteenth Amendment
  Defense of Abortion,”      NORTHWESTERN UNIVERITY LAW REVIEW, Winter 1990,                            p. 483-4

  This Article will argue that there is a provision in the Constitution which is not vulnerable to any of these objections.
  This provision is the thirteenth amendment, which reads as follows: "1. 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. 2. Congress shall have the power to enforce this article by
  appropriate legislation." When women are compelled to carry and bear children, they are subjected to "involuntary
  servitude" in violation of the thirteenth amendment. Abortion prohibitions violate the amendment's guarantee of
  personal liberty, because forced pregnancy and childbirth, by compelling the woman to serve the fetus, creates "that
  control by which the personal service of one man [sic] is disposed of or coerced for another's benefit which is the
  essence of involuntary servitude." Such laws violate the amendment's guarantee of equality, because forcing women
  to be mothers makes them into a servant caste, a group which, by virtue of a status of birth, is held subject to a
  special duty to serve others and not themselves. This argument makes available two responses to the objection that
  the fetus is a person. The first is that, even if this is so, the fetus' right to continued aid from the woman does not
  automatically follow. As Thomson observes, "having a right to life does not guarantee having either a right to be
  given the use of or a right to be allowed continued use of another person's body -- even if one needs it for life itself."
  Quite the reverse, giving fetuses a legal right to the continued use of their mothers' bodies would be precisely what
  the thirteenth amendment forbids. The second response is that since abortion prohibitions infringe on the
  fundamental right to be free of involuntary servitude, the state bears the burden of having to show that the violation
  of this right is justified. The State cannot carry this burden, because no one knows how to prove (or disprove) that a
  fetus is, or should be considered, a person. The mere possibility that it might be is not enough to justify violating
  women's Thirteenth Amendment rights by forcing them to be mothers




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                                 General Slavery Extensions
DEFINING THE FETUS AS A PERSON LEADS TO RESTRICTIONS ON WOMENS’ DAY TO DAY
ACTIVITIES

Anita Allen, Law professor, Georgetown, STANFORD LAW REVIEW, November 2001, “Tribe’s Judicious
Feminism,” p. 194-5

Some have argued that the Constitution should be interpreted as permitting the states to define the legal status of
the fetus as they choose. Tribe counters that this would violate the Fourteenth Amendment, the central purpose
of which is "to prevent some states from adopting a narrower view of personhood than others." Tribe also
asserts that if states were allowed to define fetuses as persons, they might enact a variety of fetal endangerment
statutes that could "obliterate a pregnant woman's liberty and her very personhood." Pregnant women could be
restricted from eating and drinking what they chose or engaging in any activity the state deemed hazardous to
the fetus's health. n91 Thus, Tribe argues, neither the Supreme Court nor the states may legally recognize the
fetus as a person.

FORCING THE BEARING AND RAISING OF CHILDREN IS SLAVERY

Jeb Rubenfeld, law professor, Yale, WHAT ROE SHOULD HAVE SAID, Ed. Balkin, 2004, p. 111

A woman's right not to be impressed into unwanted labor is no less than a man's. Bearing and raising children is
no less onerous than the farm work at issue in Bailey. If a state cannot force a man to till a field, it cannot force
a woman to mother a child. There is nothing "extra-constitutional" or "extra-textual" about this right. After the
Thirteenth Amendment abolished slavery, the Fourteenth was enacted to prevent states from using other legal
devices, overt or covert, to deny any American the fundamental "privileges or immunities of citizens" that
distinguish free men from slaves. It is unsurprising, there-fore, that this Court has recognized under the
Fourteenth Amendment the right of every citizen of the United States to follow any lawful calling, business, or
profession he may choose:' Dent v. West Virginia, U.S. 114, (i889); see Greene x 1WcElroy, 36o U.S. 474>
492 (1959)- This right should not be overstated. Some occupations, such as prostitution, can be banned
outright. Others, such as the practice of medicine, can be made dependent on qualifications difficult to attain.
See Dent, 129 U.S. at izz. The freedom to choose one's occupation does not guarantee that every occupation
must be within every individual's reach. But there can be no doubt about the core meaning of this freedom. It is
the right not to have an occupation forcibly or legally imposed on one. It is the right not to be forced into labor
against one's will, for it is that right which chiefly distinguishes the free from the slave. And no law could more
plainly violate this right than a law forcing a woman to bear a child.




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FORCED PROCREATION IS SLAVERY

Jeb Rubenfeld, law professor, Yale, WHAT ROE SHOULD HAVE SAID, Ed. Balkin, 2004, p. 112

Slave women were regularly forced to procreate whether or not they wished to. Indeed, subjection to forced
mating may be the chief defining feature of female enslavement. The Fourteenth Amendment had one over-
riding purpose: to prevent states from replicating through law the distinctive forms of dominion and subjugation
exercised over this nation's slaves. "The amendment was an attempt to give voice to the strong National
yearning for that time and that condition of things, in which ... every citizen of the United States might stand
erect on every portion of its soil, in the full enjoyment of every right and privilege belonging to a freeman,
without fear of violence or molestation:' Slaughter-House Cases, 83 U.S. 36, 123 (i872) (dissenting opinion). A
fundamental right of a free woman is the right not to be forced into childbearing against her will. True, a woman
who never had sexual intercourse would never face the strictures of an abortion law, and on this ground Texas
says it does not force any woman to bear a child. The argument is specious-and would remain specious even
were it not undermined by the state's failure to make an exception to its abortion laws in cases of rape. If a
pregnant woman does not want to be a mother, Texas's prohibition of abortion will overrule her decision. It will
force her, under threat of imprisonment, to carry and bear the child. No casuistry can alter this fact.

THE STATE CAN’T FORCE A CHOICE BETWEEN CELIBACY AND MOTHERHOOD

Jeb Rubenfeld, law professor, Yale, WHAT ROE SHOULD HAVE SAID, Ed. Balkin, 2004, p. 112-3

Texas, in essence, tells a woman to remain abstinent or accept the state's power to force childbearing upon her
should pregnancy ensue. No one would defend a law that left men with a comparable choice-either abstain from
sexual intercourse or accept the state's power to force labor upon you-on the ground that the state had left men
"free to choose:' States have no constitutional power to put a man to a choice between, say, celibacy and farm
work. So, too, they have no power to put a woman to a choice between celibacy and motherhood. That is the
essential principle established by Griswold and Eisenstadt, and it applies a fortiori here.




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                                   General Slavery Extensions

PROPERTY RIGHTS PROTECT WOMEN’S ABORTION RIGHTS

Anita Allen, Law professor, Georgetown, STANFORD LAW REVIEW, November 2001, “Tribe’s Judicious
Feminism,” p. 193-4

  Judith Jarvis Thomson's famous pro-choice argument premises abortion rights on the notion that women have a
  property interest in their bodies that is at least as strong as the inconsistent property interest the unborn have in
  theirs. Women have a right, therefore, to rid themselves of, as it were, a trespassing fetus. Thomson's understanding
  of the implications of property rights and related rights of bodily integrity is arguably severe. Yet, taking a different
  tack, it can be argued that our society has good reason for preferring the potential of the woman over that of the
  unborn.




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FORCING WOMEN TO GIVE BIRTH IS A FORM OF VIOLENCE

  John Swomley, graduate of Dickinson College, Ph.D. in Political Science from the University of Colorado, ST.
  LOUIS       UNIVERSITY           PUBLIC        LAW          REVIEW,          1993,              p.       419

  In effect this would mean that a woman who does not want a child, but who becomes pregnant from rape, incest,
  failed contraception, or ignorance about her reproductive processes, must serve as a surrogate mother without pay
  for the benefit of another person or couple, since the major proposed alternative to abortion is adoption. Forcing
  women to bear children they do not want and cannot support or care for, and then go through the trauma of giving
  them away is a form of violence.


BANNING ABORTION MEANS FORCED SERVITUDE

  Paul Stevens, Medical Ethicist, University of Louisville, ST. LOUIS UNIVERSITY PUBLIC LAW
  REVIEW, 1993 Casey, Bray and Beyond: Religious Liberty and the Abortion Debate, p. 472

  The concurring opinion by Justice Blackmun explicitly spoke to the issue of "gender equality." n35 By
  limiting abortion, he said, the State "conscripts women's bodies into its service, forcing women to
  continue their pregnancies, suffer the pains of childbirth, and in most instances, provide years of maternal
  care," all of which go uncompensated. It is simply assumed to be a duty she owes the state. The Court
  rightly held that both good ethics and equal protection require that pregnancy and childbirth be voluntary
  and not coerced.

INVOLUNTARY SERVITUDE OF WOMEN THROUGH ABORTION RESTRICTIONS IS PATRIARCHAL
  Nancy Hirschman, political scientists, U Penn, TEXAS JOURNAL OF WOMEN & THE LAW, Fall
  2003,                                             p.                              54

   Arguments of involuntary servitude thus present an attractive strategy for resisting the incursions of a
  conservative administration, legislature, and courts on the rights of women to control their bodies and
  their lives. Like McDonagh's self-defense argument, the notion of involuntary servitude has a certain
  "shock value": it puts pregnancy in dramatic terms that capture the imagination, not to mention the
  attention of the press. But it also has an ironic political advantage over self-defense, in that it dovetails
  subtly with dominant patriarchal ideals. That is, the distance between patriarchal ideals of feminine self-
  sacrifice and the aggression of self-defense, is far greater than the distance between voluntary and
  involuntary servitude. After all, women and servitude have always gone together in patriarchal ideology.
  The patriarchal myth is that such servitude has always been women's choice, or at least women's nature; it
  has been a voluntary, or at least biologically coded, self-sacrifice, rather than a sacrifice imposed on
  women by others through the ideology of masculine power.




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CHILD-BEARING IS A LABOR-INTENSIVE PROCESS

Reva Siegel, law professor, STANFORD LAW REVIEW, January 1992, “Reasoning from the Body: A
Historical Perspective on Abortion Regulation and Questions of Equal Protection,”p p. 373-4

For women, the work of parenting begins in a lengthy period of bodily labor. Because the work of making life
does proceed within a woman's body, it can subject her to physical discomfort, pain, disability, and risk
throughout the term of pregnancy, and after. These physical burdens alone are sufficient grounds for many to
hesitate before assuming the work. Yet, because gestation is not simply a reflex process, its impositions are not
solely physiological. Childbearing, like childrearing, involves work to be performed in accordance with detailed
prescriptive norms. A woman who attempts to conduct her pregnancy in conformity with such norms will find
herself making daily judgments as she attempts to accommodate her life to the process of making life: choices
about what to eat and drink, about how to exercise, about securing appropriate medical care, and about
negotiating quotidian forms of risk associated with travel, leisure activities, and the work she performs on the
job and at home. The work of gestation thus involves on-going calculations and compromises that can have a
pervasive impact on women's lives; its impositions are simultaneously physical and social.

ANTI-ABORTION REGULATIONS COERCE CHILD-BEARING

Reva Siegel, law professor, STANFORD LAW REVIEW, January 1992, “Reasoning from the Body: A
Historical Perspective on Abortion Regulation and Questions of Equal Protection,”p. 370


Laws restricting women's access to abortion are only intermittently discussed in their compulsive aspect. Even
then, discussion often seems to assume that such regulation coerces women into performing only the work of
childbearing. But if abortion-restrictive regulation is evaluated in light of actual social practice, it is clear that
such regulation coerces women to perform, not only the work of childbearing, but the work of childrearing as
well.




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               “Slavery” Rationale Superior to “Self-Defense”
SELF-DEFENSE ARGUMENTS CREATE HOSTILITY TO FEMINIST CLAIMS, INVOLUNTARY
SERVITUDE IS SUPERIOR

Nancy Hirschman, political scientists, U Penn, TEXAS JOURNAL OF WOMEN & THE LAW, Fall 2003, p. 55
  Self-defense, by contrast, feeds into every sexist's nightmare: an angry woman with a gun. By
  exaggerating the antagonism between a woman and a fetus, it creates a simplistic hostility to feminist
  claims, even on the part of women themselves. Most women see themselves as committed to their
  families and are thereby repulsed by violent images that posit them as trapped and victimized by the lives
  they lead. A self-defense argument for abortion is thus much less likely to sway public opinion, not to
  mention public policy. Involuntary servitude, while serving a strong feminist stance by emphasizing the
  seriousness of women's situations when denied the right to an abortion, simultaneously feeds into a long-
  standing moderate stance that chastises men for not appreciating the sacrifices women have made, the
  labor that they endure, and the stresses and difficulties of being mothers and wives. The latter, more
  modest step, may be a more politically viable one on the road back to choice in a neoconservative era.




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            “Slavery” Rationale Superior to “Privacy” Rationale

PREGNANCY IS NOT A PRIVATE AFFAIR

Andrew Kopplemen, University of Chicago, M.A., Political Science, Yale University,; J.D., Yale University,
1989; Ph.D. expected, Political Science, Yale University, “Legal Theory, Forced Labor: A Thirteenth
Amendment Defense of Abortion,” NORTHWESTERN UNIVERITY LAW REVIEW, Winter 1990, p. 481-2

Moreover, the privacy argument has internal tensions, because "[t]he pregnant woman cannot be isolated in her
privacy." Unlike the liberties protected in the other privacy cases, abortion is arguably not private at all, because
"the termination of a pregnancy typically involves the destruction of another entity: the fetus." A privacy-based
defense of abortion seems to depend on the premise that the woman's choice affects only herself -- in other
words, that the fetus is not a person.




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             Answers to: “Not Slavery if Not Life-Threatening”
IT IS STILLINVOLUNTARY SERVITUDE EVEN IF IT IS NOT-LIFE THREATENING, AND
POTENTIALLY COMFORTABEL

Nancy Hirschman, political scientists, U Penn, TEXAS JOURNAL OF WOMEN & THE LAW, Fall 2003, pp.
49-50

Instead of McDonagh's analogy of pregnancy to assault, let's imagine a man holding a female captive. He
specifically wants to keep her alive so that he can use her for some purpose that does not actually put her life in
danger. He does not harm her physically at all, indeed, he never makes any physical contact; and he wants her to
be comfortable and happy. Perhaps he just likes to see women wearing purple silk dresses all the time, and so he
sets this woman up in very posh living quarters, with full service cable television, an extensive and constantly
replenished DVD collection, plenty of books to read, food prepared by a gourmet chef, a treadmill and other
gymnasium equipment for exercise, and a diverse wardrobe of purple silk dresses from which she can choose
what she wants to wear every day. Her captor actually shows considerable respect for her, asking her what she
would like to eat and providing whatever she asks for, buying all of the premium cable channels, providing an
endless supply of reading material, buying her all sorts of technological gadgets from The Sharper Image
catalog for her to entertain herself, and ordering the latest academic journals in her area of specialization. But
she cannot leave; she is imprisoned in his house. That some people might analogize this scenario to the situation
of some housewives does not blunt the fact that most people would find this situation extremely objectionable. If
she is not free to leave and if this situation is not one that she chooses, then she is not free to exert control over
her life in the way that we tend to think is characteristic of humanity. We view imprisonment, no matter how
comfortable and commodious, to be something that prevents people from acting freely and from pursuing, as
John Stuart Mill put it, "their own good, in their own way." Accordingly, if she were to carefully plot her
captor's murder and successfully carry it out, it would be morally justified even though her biological life is not
threatened and even though she is not in imminent harm when she launched her attack, as long as there are no
reasonable alternatives to killing him (e.g., she has tried to escape and is always thwarted, she has no form of
communication to the outside world, etc.)




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                 Answers to: “Not Slavery Later in Pregnancy”

ANY INVOLUNTARY SERVITUDE AT ANY POINT IN THE PREGNANCY IS WRONG

Nancy Hirschman, political scientists, U Penn, TEXAS JOURNAL OF WOMEN & THE LAW, Fall 2003, p. 53

The notion of involuntary servitude makes clearer than the notion of self-defense why late-term abortions are
morally acceptable, and why the new ban on them is wrong. It does not matter how long one has been in
involuntary servitude - two months, or eight - nor does it matter that one's involuntary servitude has helped the
purple silk fetishist achieve inner peace or personal development. The servitude is wrong because it is
involuntary. Similarly, if a woman does not wish to be pregnant; if her condition pushes her beyond the limit she
is willing to go and she changes her mind about the risks involved in pregnancy; or if she is no longer willing to
put her body in servitude to the fetus, she should have a right to terminate the pregnancy.

.




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                 Answers to: “Property Rights Discourse Bad”


FORCED PREGNANCY TREATS WOMEN AS PROPERTY

Andrew Kopplemen, University of Chicago, M.A., Political Science, Yale University,; J.D., Yale University,
1989; Ph.D. expected, Political Science, Yale University, “Legal Theory, Forced Labor: A Thirteenth
Amendment Defense of Abortion,” NORTHWESTERN UNIVERITY LAW REVIEW, Winter 1990, p. 484

Section I describes the present doctrine of thirteenth amendment liberty and shows its applicability to forced
pregnancy. The holding of the Supreme Court's leading thirteenth amendment cases, that no person may be
compelled to serve another, forbids the compulsion of women to nurture and sustain fetuses. Section II then
explores the rationale behind this doctrine. The idea of self-ownership is inextricably linked with our society's
ideals of individual worth and dignity. To give control of even part of my body to someone else is to treat me as
property, as a thing rather than a person.




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  Answers to: “The Woman Doesn’t Serve the Fetus’ Command”

NO, BUT SHE SERVES THE STATE’S COMMAND AND THE FETUS’S INTEREST

Andrew Kopplemen, University of Chicago, M.A., Political Science, Yale University,; J.D., Yale University,
1989; Ph.D. expected, Political Science, Yale University, “Legal Theory, Forced Labor: A Thirteenth
Amendment Defense of Abortion,” NORTHWESTERN UNIVERITY LAW REVIEW, Winter 1990, p. 487

Thus defined, it should be apparent that "involuntary servitude" includes coerced pregnancy. The pregnant
woman may not serve at the fetus' command -- it is the state that, by outlawing abortion, supplies the element of
coercion -- but she is serving involuntarily for the fetus' benefit, and this is what the Court has said that the
amendment forbids. If citizens may not be forced to surrender control of their persons and services, then
women's persons may not be invaded and their services may not be coerced for the benefit of fetuses. It is as
simple as that. The injury inflicted on women by forced motherhood is lesser in degree than that inflicted on
blacks by antebellum slavery, since it is temporary and involves less than total control over the body, but it is the
same kind of injury. When abortion is outlawed, a woman who does not want to carry her pregnancy to term
must serve the fetus, and that servitude is involuntary.




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           Answers to: “Motherhood Isn’t Slavery, It’s Joyous”

CELBRATIONS OF MOTHERHOOD ASSUME PEOPLE WHO WANT TO BE MOTHERS

Andrew Kopplemen, University of Chicago, M.A., Political Science, Yale University,; J.D., Yale University,
1989; Ph.D. expected, Political Science, Yale University, “Legal Theory, Forced Labor: A Thirteenth
Amendment Defense of Abortion,” NORTHWESTERN UNIVERITY LAW REVIEW, Winter 1990, p. 487-8

Some of those to whom I have made this argument have responded less with skepticism than with horror. They
consider it a libel on motherhood, which, far from being like slavery, is an exhilarating, awe-inspiring, and
joyous experience. It may not be out of place, therefore, to address this concern at the outset. The objection
gathers whatever force it has by focusing on the experience of women who want to be mothers. The thirteenth
amendment, however, does not apply to them. The servitude it prohibits is involuntary. The distinction between
wanted and unwanted pregnancy is like the difference between wanted and unwanted sex. Can rape be defended
on the grounds that sex is an exhilarating, awe-inspiring, joyous experience? Do arguments that focus on the
degrading and violative aspects of rape constitute a libel on sex? Plantation slavery obviously cannot be justified
on the grounds that many people find gardening deeply satisfying, but this objection is really no better than that.




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                        Answers to: “Pregnancy Isn’t Labor”


PREGNANCY IS LABOR FOR THE PURPOSES OF 13A ANALYSIS

Andrew Kopplemen, University of Chicago, M.A., Political Science, Yale University,; J.D., Yale University,
1989; Ph.D. expected, Political Science, Yale University, “Legal Theory, Forced Labor: A Thirteenth
Amendment Defense of Abortion,” NORTHWESTERN UNIVERITY LAW REVIEW, Winter 1990, p. 488-
90

Women differ from men in that the services they are capable of performing include the production of human
beings. The thirteenth amendment, however, draws no distinction between the powers of a man's back and arms
and those of a woman's uterus. Both, according to the amendment, belong to the individual who possesses them
and cannot be made subject to the command or benefit of another. Indeed, the recent advent of "surrogate
motherhood" has shown that women's reproductive powers are as capable as any others of being transacted for
in the marketplace, a marketplace that the thirteenth amendment establishes as "a system of completely free and
voluntary labor throughout the United States." The pun on the word "labor" should not distract attention from
the fact that when a woman is forced against her will to carry a child to term, control over her body and its
(re)productive capacities is seized from her and directed to a purpose not her own. As an amicus brief in Roe
observed: Even if the life support services which the woman's body brings into performance for sustenance of
the fetus are largely automatic and non-voluntary, they are not non-services or non-actions. They are, according
to medical experts, arduous, tiring, and obstructive of other work. The contractions of childbirth are literally
"labor." They are the most strenuous work of which the human body is capable. If there is a difficulty here, it
seems to stem from the fact that work is paradigmatically thought of as what men do; what women traditionally
do is not called work ("my wife doesn't work"), except perhaps to the extent that it is performed with the same
limbs and muscles that men possess. But what would we call any activity that demanded that a man, in order to
produce a tangible result, endure constant exhaustion, loss of appetite, vomiting, sleeplessness, bloatedness,
soreness, swelling, uncontrollable mood swings, and, ultimately, hours of agony, often followed by deep
depression? (Perhaps one also ought to include the burden of raising the child to maturity, as many women have
done when abortions were unavailable to them.)




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                         Answers to: “Pregnancy Isn’t Labor”

ABORTION BANS ARE INVOLUNTARY SERVITUDE

Andrew Kopplemen, University of Chicago, M.A., Political Science, Yale University,; J.D., Yale University,
1989; Ph.D. expected, Political Science, Yale University, “Legal Theory, Forced Labor: A Thirteenth
Amendment Defense of Abortion,” NORTHWESTERN UNIVERITY LAW REVIEW, Winter 1990, p. 516-7

 [*517] This talk of burden of persuasion may seem like a bit of legalistic sleight of hand, the kind of technical
trick for evading serious questions that gives lawyers a bad name. So let me rephrase the point I just made in
nonlawyerly terms. We fought a civil war to end slavery, and made its abolition the supreme law of the land.
The central evil of slavery, as Justice Harlan observed, was that it placed one "class of human beings in practical
subjection to another class." That is precisely what a law that compels women to be mothers does. A law
outlawing abortion therefore would betray one of the fundamental principles by which the American polity
defines itself.




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                      Answers to: “Libertarianism is Wrong”
YOU DON’T HAVE TO EMBRACE LIBERTARIANISM TO BELIEVE YOU SHOULD BE ABLE TO
CONTROL YOUR OWN BODY

Andrew Kopplemen, University of Chicago, M.A., Political Science, Yale University,; J.D., Yale University,
1989; Ph.D. expected, Political Science, Yale University, “Legal Theory, Forced Labor: A Thirteenth
Amendment Defense of Abortion,” NORTHWESTERN UNIVERITY LAW REVIEW, Winter 1990, p. 495

Some aspects of liberal individualism are deeply troubling. The philosophy of individual rights has long invited
the objection that we are not isolated monads, but rather are largely constituted by our connections with one
another. But communitarianism has its own dangers: we do not want to think of ourselves as mere organs of the
community, either. The thirteenth amendment delineates a reasonable middle ground. Its libertarianism does not
go as far as some would wish; pace Nozick, redistributive taxation and social welfare programs are not deemed
to impose slavery on those who are taxed. But the amendment does guarantee the individual's control, not over
her property, but over her body and its productive powers. One can believe in that without subscribing to the
entire libertarian program.




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         Answers to: “The Conscription/Draft is Constitutional”


CONSCRIPTION IS FOR THE PUBLIC GOOD, ABORTION BANS ARE NOT

Andrew Kopplemen, University of Chicago, M.A., Political Science, Yale University,; J.D., Yale University,
1989; Ph.D. expected, Political Science, Yale University, “Legal Theory, Forced Labor: A Thirteenth
Amendment Defense of Abortion,” NORTHWESTERN UNIVERITY LAW REVIEW, Winter 1990, p. 519-
20

Even if abortion does not threaten the nation collectively, it obviously threatens the fetus individually. But the
question is whether the threat to the fetus justifies the burden on the woman. Even if we assume that the fetus is
demonstrably a person, the conscription exception would not necessarily apply. The needs of private
individuals, however pressing, have not, with one exception, been deemed sufficient to overcome the
amendment's prohibition. That prohibition can only be overcome by public needs. The circumstances necessary
to invoke the exception seem to be those delineated by the first Justice Harlan in Jacobson v. Massachusetts, in
which the Court sustained the constitutionality of compulsory vaccination. Although the thirteenth amendment
was not raised in Jacobson, Harlan reasoned by analogy with military service, and concluded that both
impositions were sustainable for the same reason: in every well-ordered society charged with the duty of
conserving the safety of its members, the rights of the individual in respect of his liberty may at times, under the
pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety
of the general public may demand. . . . It is not, therefore, true that the power of the public to guard itself against
imminent danger depends in every case involving the control of one's body upon his willingness to submit to
reasonable regulations established by the constituted authorities, under the sanction of the State, for the purpose
of protecting the public collectively against such danger.




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   Answers to: “Society Has an Interest in Protecting the Fetus”
THE PUBLIC’S INTEREST IN FETAL LIFE CAN’T TRUMP OR ANY ENSLAVEMENT
COULD BE JUSTIFIED FOR ANOTHER GOAL

Andrew Kopplemen, University of Chicago, M.A., Political Science, Yale University,; J.D., Yale University,
1989; Ph.D. expected, Political Science, Yale University, “Legal Theory, Forced Labor: A Thirteenth
Amendment Defense of Abortion,” NORTHWESTERN UNIVERITY LAW REVIEW, Winter 1990, p. 520-1

It may be argued that even if the fetus isn't demonstrably a person, the public has an interest in protecting
respect for life generally. But the interest in protecting society's mores and values was also present in Bailey.
Holmes' dissent argued that "[b]reach of a legal contract without excuse is wrong conduct," and he could "see no
reason why the State should not throw its weight on the side of performance." The problem with this kind of
argument is that the interest in preserving public values could always be invoked to justify any imposition,
including the continuation of slavery. In order for those values to override a constitutional right, they must be at
least as essential to the nation's self-definition as the right being trumped. Faithful execution of contracts is not
essential enough to overcome the right to be free of involuntary servitude, and (absent a determination that a
fetus is a person) neither is respect for life.




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     Answers to: “Women Serve the State in Roles As Mothers”

    1. NOT EVEN JAMIE CARROLL WOULD MAKE THIS ARGUMENT

    2. CHILD BEARING IS NO LONGER CONSIDERED A CIVIC DUTY

Andrew Kopplemen, University of Chicago, M.A., Political Science, Yale University,; J.D., Yale University,
1989; Ph.D. expected, Political Science, Yale University, “Legal Theory, Forced Labor: A Thirteenth
Amendment Defense of Abortion,” NORTHWESTERN UNIVERITY LAW REVIEW, Winter 1990, p. 521-2

The only other way in which courts have characterized the conscription and road work exceptions, suggested in
a widely cited district court case, is that "compulsory performance of them does not invade the liberties of
freemen. . . ." This approach may be capacious enough to permit the states to forbid abortion, for the amendment
is historically contemporaneous with a theory of citizenship which views childbearing as the female's portion of
"the discharge of honorable public duties, which every patriotic citizen or subject owes to his government."
Citizenship, at this time, imposed very different duties on men and women. The paramount destiny and mission
of woman" was "to fulfil the noble and benign offices of wife and mother." While this view is harmonious with
that of the 1860s, it has been repudiated in modern constitutional doctrine, which holds that laws that impose
traditional sex roles violate the equal protection clause of the fourteenth amendment. The idea that childbearing
is a woman's civic duty is no longer persuasive in constitutional argument.




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                  Answers to: “Failure to Act Can Be Criminal”

ANY PLACE THE LAW REQUIRES YOU TO ACT IMPOSES A VERY MINIMAL BURDEN – NOT
FORCED CHILDBIRTH!

Andrew Kopplemen, University of Chicago, M.A., Political Science, Yale University,; J.D., Yale University,
1989; Ph.D. expected, Political Science, Yale University, “Legal Theory, Forced Labor: A Thirteenth
Amendment Defense of Abortion,” NORTHWESTERN UNIVERITY LAW REVIEW, Winter 1990, p. 522

Next, it is necessary to distinguish abortion from those situations where the law legitimately criminalizes an
omission to act. Motorists may be obliged to stop after being involved in an automobile accident; a person
employed as a lifeguard may not sit back and watch a swimmer drown; a railway switchman may not walk away
from his post. The issue of whether such duties violate the thirteenth amendment has hardly ever been argued by
litigants, but surely, if they did violate it,courts would have had a duty to raise the issue sua sponte. Regan
would distinguish such cases from abortion by noting that some element of consent to the duty is generally
present. To the extent that this is true (do automobile drivers consent to the risk of having a duty to stop in the
event of an accident any more explicitly than a woman consents to the risk of forced pregnancy?), it offers no
basis for distinguishing these cases from that where a laborer has signed a labor contract which the employer
seeks to enforce specifically. Rather, I would speculate (given the absence of any judicial authority that speaks
to the question) that what distinguishes these cases from Bailey -- and from abortion -- and exempts them from
the thirteenth amendment bar is that the duties imposed are de minimis. More substantial burdens would raise
more substantial constitutional issues.

PARENTS CAN TERMINATE THEIR LEGAL OBLIGATIONS TOWARD THEIR CHILDREN

Andrew Kopplemen, University of Chicago, M.A., Political Science, Yale University,; J.D., Yale University,
1989; Ph.D. expected, Political Science, Yale University, “Legal Theory, Forced Labor: A Thirteenth
Amendment Defense of Abortion,” NORTHWESTERN UNIVERITY LAW REVIEW, Winter 1990, p. 523

The law also imposes certain obligations on parents toward their children. These obligations are, however,
generally terminable if the parent has no interest in caring for the child; they are thus analogous to other duties
which are contingent on a status which the bearer of the duty is free to abandon. The only obligation of a parent
which is not thus contingent is the duty to provide financial support. While the situation of a man forced to
support a child he never intended to beget may seem analogous to that of the woman forced to bear it, n187 the
cases are distinct. Monetary liability, which leaves the individual free to acquire the money in whatever way he
prefers, is a lesser deprivation of liberty than the obligation to perform specific work for a specific individual.




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           Answers to: “The Court Forced Sea Men to Return to Their
                                   Vessels”

ROBERTSON IS NO LONGER CONTROLLING LAW AND ALL ARGUMENTS IN FAVOR OF IT HAVE
BEEN REFUTED

Andrew Kopplemen, University of Chicago, M.A., Political Science, Yale University,; J.D., Yale University,
1989; Ph.D. expected, Political Science, Yale University, “Legal Theory, Forced Labor: A Thirteenth
Amendment Defense of Abortion,” NORTHWESTERN UNIVERITY LAW REVIEW, Winter 1990, p. 523-5

There is, however, a single Supreme Court decision which announces an exception to the thirteenth amendment
broad enough to accommodate forced childbearing. In Robertson v. Baldwin, n189 a divided Court upheld
against a thirteenth amendment challenge a statute authorizing the forcible return of deserting seamen to their
vessels. The exception to the amendment carved out in Robertson is far broader than that of the later
conscription cases. But, as I will explain, Robertson is no longer good law. Justice Brown, writing for the Court,
relied on four argumentsFirst, he held that "involuntary servitude" does not include any servitude entered into voluntarily, and that "an individual may, for a valuable consideration,
contract for the surrender of his personal liberty for a definite time and for a recognized purpose, and subordinate his going and coming to the will of another during the continuance of the contract; -- not that
all such contracts would be lawful, but that a servitude which was knowingly and willingly entered into could not be termed involuntary." n190 This might be construed to encompass pregnancy, at least in
cases in which the woman freely consented to sex and thus, some will say, voluntarily undertook the risk of conception. For all the reasons enumerated earlier, this voluntariness is often suspect, but since
Brown abjured a blanket inalienability rule, his reasoning might permit the state to demand that women prove this on a case-by-case basis. Second, he held that "the amendment was not intended to introduce
any novel doctrine with respect to certain descriptions of service which have always been treated as exceptional; such as military and naval enlistments," and concluded that "services which have from time
immemorial have been treated as exceptional shall not be regarded as within its purview." A woman's duty to bear children might be characterized as such an exceptional service, although this cannot easily
be reconciled with the fourteenth amendment cases noted above. Third, Justice Brown argued that such exceptions should be recognized as "arising from the necessities of the case." Unlike the conscription
cases, however, the necessity that Brown deemed sufficient to justify the imposition was private need, not danger to the polity. The risk that deserting sailors pose to a ship is, of course, considerably less
than the danger that abortion poses to a fetus. Fourth, he observed that Congress had made "very careful provisions for the protection of seamen . . . as far as possible, against the consequences of their own
ignorance and improvidence," and concluded that "seamen are treated by Congress . . . as deficient in that full and intelligent responsibility for their acts which is accredited to ordinary adults, and as needing
the protection of the law. . . ." So much for compulsory service being an honorable badge of citizenship. This rather seems analogous to the common law's traditional treatment of women as incompetents.
Robertson, more than any other Supreme Court decision, supports the view that the thirteenth amendment does
not prohibit forced childbearing. But later cases have invalidated all four of Robertson's arguments. The peonage
cases squarely hold that a state "may not directly or indirectly command involuntary servitude, even if it was
voluntarily contracted for." As for "services which have from time immemorial been treated as exceptional,"
both the Supreme Court and the lower courts have largely neglected this phrase, probably because it simply
makes no sense; how can there be an exception that antedates the rule? The public necessity requirement seems
to have been considerably tightened in Butler and Jacobson. And we know what has become of the idea that
women are incompetents who maytherefore properly be subjected to the absolute authority of their fathers and
husbands.




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                       Answers to: “Pregnancy Isn’t Life –Long”


EVEN LIMITED INVOLUNTARY SERVITUDE MUST BE REJECTED

Andrew Kopplemen, University of Chicago, M.A., Political Science, Yale University,; J.D., Yale University, 1989; Ph.D.
expected, Political Science, Yale University, “Legal Theory, Forced Labor: A Thirteenth Amendment Defense of
Abortion,” NORTHWESTERN UNIVERITY LAW REVIEW, Winter 1990,

After reading this paragraph, Guido Calabresi suggested to me that abortion does not involve thirteenth amendment values
in their most dramatic, incontrovertible forms either, since the servitude imposed on a pregnant woman is temporary and
even while it lasts is less total than that imposed by antebellum slavery. I agree, but I still think that the equality value I am
arguing for is much stronger than the one he depicts. The Constitution does not say anything about sexual gratification, but
it guarantees freedom from involuntary servitude in specific terms. Moreover, women can and do become pregnant more
than once. Even temporary servitude, when imposed repeatedly, seems considerably worse than impeded access to sex.
What would the thirteenth amendment say about a law which, instead of enslaving all blacks for life, forced only some of
them to work (say, forty hours a week) in the cotton fields for limited, nine-month terms?

ABORTION IS 10X SAFER THAN CHILDBIRTH

Feminist Women’s Health Center, ABORTION: WHAT DO YOU WANT TO KNOW, no date,
http://www.fwhc.org/abortion/flyer.htm

Since 1973, abortion has become the most often performed outpatient surgery. Thousands of doctors across the country
have learned to provide abortion using the safest medical techniques. Today, abortion is about 10 times safer than giving
birth….. Abortion is very safe. It is safer than giving birth and safer than receiving an injection of penicillin. Like all
medical procedures, there are some risks with abortion, but the risk is comparatively minimal.
Potential complications from the abortion procedure include

        incomplete abortion - which means the procedure needs to be repeated (a minor complication)
        infection - which is easily treated with antibiotics
        perforation of the uterine wall - for which the treatment may be nothing, to surgical repair in a hospital, depending
         on the severity.

Less than 1% of all abortion patients experience a major complication, such as serious pelvic infection, hemorrhage
requiring a blood transfusion or unintended major surgery. The risks associated with abortion increases with the length of
pregnancy. Hysterectomy is exceedingly rare. The risk of death associated with childbirth is about 10 times as high as that
associated with abortion. Unless you have a complication during or after the abortion, abortion has no impact on your
future ability to get pregnant or carry a pregnancy to term.




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                        Answers to: “The        Violinist Analogy is Bad”

NO MORALLY SIGNIFICANT DIFFERENCE BETWEEN DISCONNECTING A STRANGER AND YOUR
OWN FETUS

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 228

The first thing to say is that it does not follow from the fact that there is a morally relevant difference between
what Laverne does and what Shirley does that there is a difference in terms of the moral permissibility of what
they do. For consider the case of Thelma and Louise, each of whom murders a three-year-old child in order to
collect payment from someone who wants the child dead. The child Louise kills is a stranger, but the child
Thelma kills is her own daughter. Surely this will make a difference in our moral assessments of the two cases
here, too, just as it did in the case of Laverne and Shirley. Our moral intuitions almost invariably judge that as
horrible as both acts are, Thelma’s is worse. But it is clear in this case that we do not really believ that Louise’s
victim had any less of a right not to be killed than Thelma’s. There is no difference here in terms of moral
permissibility. This does not mean, however, that our differential intuitions in this case should be abandoned.
They should merely be recharacterized. We should be willing to concede that their actions are equally
impermissible, but to insist that it takes an even more base and reprehensible character to be able to bring
yourself to kill your own child. And this suggests that at least a good deal of our intuitive response to the case of
Laverne and Shirley can be accounted for by saying that Laverne is a worse person than Shirley, rather than by
saying that Laverne does something she has no right to do while Shirley does something she has a right to do.
And if that is how we account for such cases, then the good samaritan argument will be immune to the objection
based on the difference between strangers and relatives: The claim made by the argument is not that a woman
who has an abortion is no worse a person than you are if you unplug yourself from the violinist, but simply that
if what you do is morally permissible then so is what she does. But let us assume that we are not fully satisfied
with this response. It remains to ask why it should be the case that Laverne’s daughter has a stronger right to
assistance from her than the stranger has to assistance from Shirley. One possibility is that she has this right
simply in virtue of the fact that she is the biological offspring of Laverne, whereas the stranger is not
biologically related to Shirley. This is the explanation that Schwarz defends: The parents of a particular child
have this obligation to him, and not someone else, because they are his biological parents; because they, and not
someone else, begot and conceived the child. It is the biological bond that creates the obligation of parents to
take care of their children, and also the rights that accompany this obligation (1990 : 118). If it is this difference
in terms of biological relatedness that grounds the differential judgment in the case of Laverne and Shirley, then
the analogy underlying the good samaritan argument will be defeated, since you are not biologically related to
the violinist while the pregnant woman is a biological parent of the fetus she is carrying. But there are several
difficulties with this account of the difference between the cases of Laverne and Shirley. The first is simply that
it seems to be utterly mysterious how the mere fact of biological relatedness could, in and of itself, generate
such a difference in moral obligations. It would not be mysterious if the claim turned on the fact that the woman
did some voluntary action that led to the conception of the child, since the moral salience of the distinction
between voluntary and involuntary actions is relatively straightforward. And at least part of Schwarz’s argument
might be taken to support this interpretation: It seems right to say that the woman “begot” the child in cases of
voluntary intercourse, but not so in the case of pregnancies arising from rape. To beget a child is to cause it to
exist, and in rape cases the woman does not do anything to cause the child to exist. But if this were the
explanation of the moral relevance of the biological relation between parent and child, then the stranger versus
offspring objection would simply reduce to the tacit consent or responsibility objection all over again. And
while it would certainly have a high degree of prima facie plausibility, it would also remain subject to all of the
difficulties I identified with those objections in Sections 4.3 and 4.4 . In addition, if the objection were construed
in this way it would fail to apply to rape cases, and it is clear that the stranger versus offspring objection is
meant to apply to such cases as well. As Schwarz puts it: “Suppose the woman has been raped. She still has a
duty to sustain the life of the child.... The biological relation of mother to child is still there, unaffected by the
circumstance of the rape” (1990 : 119). But if the biological relation is not morally relevant in virtue of its

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relation to something that the woman did, then it is difficult to understand how it can be morally relevant to
what the woman is now obligated to do. 58 In addition, the claim that it is the biological difference that makes
the difference in terms of permissibility in the case of Laverne and Shirley produces extremely counterintuitive
results if we consider variations on the violinist and pregnancy cases that differ from the original cases in terms
of biological relatedness only. Consider first the following case: You are about to unplug yourself from the
stranger-violinist, as Thomson’s critic concedes you are permitted to do. At the last moment, a DNA test reveals
that the violinist is actually a son of yours who you never knew existed. Many years ago you had contributed to
a study in which people donated sperm and egg samples for fertility research, and without your knowledge and
against your expressed wishes someone had stolen some of what you had donated and created a zygote in vitro,
which was then implanted in a woman, the result of which now lies on the bed next to you. If one objects to
Thomson’s violinist analogy on the grounds that it ignores the morally relevant distinction between biological
relatedness and biological nonrelatedness, then one will have to insist that in this modified case, it would be
morally impermissible for you to unplug yourself from the violinist. But this is likely to strike most people as
highly implausible. It is not difficult to imagine that this discovery would have some effect on you. Even though
you have had no personal relationship or interaction with the violinist, the fact that he is your biological
offspring might well make it more difficult for you to decide to unplug yourself. And it is not difficult to
imagine that others might criticize you for deciding to unplug yourself in a way that they would not have done
had the violinist been biologically unrelated to you. 59 Still, it is extremely difficult to believe that while you
have the right to unplug yourself from the violinist in Thomson’s version you do not have such a right in this
version. Perhaps some critics of abortion will be willing to bite the bullet at this point and maintain that
unplugging yourself in this version of the story would be morally impermissible. This would permit them to
remain consistent with their other beliefs. But it would also dramatically reduce the force of their argument,
since most people who do not already share their belief will be unlikely to accept this judgment of the case. And, in
any event, there is a second way of testing the moral relevance of biological relatedness that produces results that the critic of abortion in particular will almost certainly be unwilling to accept. For just as we can modify the violinist story so that you
are biologically related to the violinist, so can we modify the pregnant woman story so that she is not biologically related to the fetus she is carrying. Consider the case of what is commonly referred to as a gestational surrogate mother, a woman
who has an embryo implanted in her that is the product of the conception of another couple’s sperm and egg. In this case, the embryo is biologically unrelated to the woman who is pregnant, just as the violinist is biologically unrelated to you in
Thomson’s version of the story. In typical cases, of course, the woman has the embryo implanted voluntarily, and this would make the case relevantly different from the violinist story. But suppose instead that she simply wakes up one morning in
the hospital and discovers that she has had the embryo implanted in her. Perhaps she had checked into the hospital to have some other procedure performed and due to some administrative mix-up she has instead had this biologically unrelated
embryo implanted in her. The embryo has been implanted, and there is no way to remove it now without causing its death. If one maintains that the good samaritan argument would succeed were it not for the morally relevant distinction between
biological relatedness and biological nonrelatedness, then one will be forced to agree that the argument does succeed in the case of this unwanted pregnancy. One will have to say that it would be morally impermissible for a woman who is raped to
have an abortion, because the product of the rape contains some of her DNA, but morally permissible for a woman who has an embryo implanted in her against her will to have an abortion, provided that the egg with which the embryo was created
came from someone else. It is extremely difficult to imagine that any critic of abortion (let alone a defender) would be willing to accept this differential judgment, to agree that whether or not abortion violates the fetus’s right to life depends on
whether or not the egg whose fertilization resulted in the fetus originated in the pregnant woman’s body. But if critics of abortion are not willing to accept this claim, then they cannot maintain that biological relatedness makes the difference
between the permissibility of unplugging yourself from Thomson’s violinist and the impermissibility of abortion. Mere facts about biological relatedness, then, seem to be poor candidates for accounting for the difference in our assessments of
Laverne and Shirley. Their moral salience is obscure at best, and insisting on their moral relevance produces results that virtually everyone, including virtually every critic of abortion, will find unacceptable. Still, if this is the only explanation for
our judgment that is available, it may be good enough. Difficult as it may be to believe that this is what makes the difference in the case, and difficult as it may be to accept the implications that this would have for the two variant cases I have just
described, it may be less difficult than abandoning the claim that what Laverne does is impermissible while what Shirley does is not. But abandoning this claim is not necessary. There is a different and more satisfying explanation that can be given
for that judgment: A woman has a stronger duty to assist her son or daughter than to assist a stranger not because she is the child’s biological parent, but because she is the child’s guardian. This explanation is preferable for several reasons. First, to
be a guardian for someone is to occupy a certain kind of social role, and the moral salience of such a relation is significantly less problematic than is the salience of purely biological relations. It is generally accepted that people can have special

                                                                            are inclined to make. Second, this
duties to their friends, their neighbors, and so on, and on this account, the moral relevance of parenthood coheres naturally with these other judgments that we

explanation avoids the problems of the two variant cases discussed previously. For as I argued in Section 4.4 , it
seems plausible to suppose that when a woman (or man) takes a newborn child home with her from the hospital,
she tacitly accepts the role of guardian for the child. 60 Nothing that was said against the tacit consent objection
in Section 4.3 counts against this claim, since such a woman voluntarily brings about a state of affairs in which
there is now a child under her care, while a woman who engages in intercourse voluntarily brings about a state
of affairs in which there is now a man having intercourse with her foreseeing that this may give rise to a further
state of affairs. 61 And this account enables us to make sense of the two pairs of cases that undermine the
biological relatedness account. You are not the violinist’s guardian in either version of the story, and this
accounts for why you may permissibly unplug yourself in either version. And neither the woman who is raped
nor the woman who has an unrelated embryo unwillingly implanted in her are guardians of the fetuses they
carry, and this explains why abortion will either be permissible in both cases or impermissible in both cases.
Finally, this analysis enables us to account for judgments that we would naturally make in variant cases of the
story of Laverne and Shirley. Suppose, for example, that Laverne’s daughter is adopted. Does this make any
difference to your assessment? I suspect that it does not. It would be difficult to deny that adoptive parents have
all of the duties to the three-year-old children they have adopted that biological parents have to the three-year-
old children they have raised from birth. That parents have special obligations to their own children is a claim
that is likely to be accepted by both sides of the abortion debate. But it will count against the good samaritan
argument only if these obligations are generated by the mere fact of the biological relation between them. There
is no good reason to accept this account of these obligations and good reason not to. And so there is no good
reason to accept the stranger versus offspring objection and good reason not to.


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                 Answers to: “The Violinist Example is ‘Weird’”

THE WEIRDNESS OF THE VIOLINIST EXAMPLE DOESN’T PROVE IT IS INNACURATE

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 142

But the violinist example is nothing like this. Finding yourself plugged into a famous unconscious violinist
might be every bit as bizarre as coming across a mutant cockroach. But while your response to the cockroach
case may well be confused at best, it is difficult to imagine that this is so of the violinist case. If you are like
most people, your response is quite clear and unequivocal: Morality simply does not require us to make such
sacrifices on behalf of others, even others who have the same right to life that we have. The mere fact that the
violinist case is so unusual, then, cannot count against its use in the good samaritan argument. Suppose, for
example, that you had been asked your response to the following scenario: You are driving a car when the
brakes suddenly fail, and you can either steer left and run over five people or right and run over one. There is
nothing difficult to understand about this example and your response to it is presumably quite clear. But now
suppose that I add that this car you are driving is powered by a tiny nuclear reactor in the glove compartment.
This makes the case fantastic, but there is no reason to suppose that this feature of the example could alter the
clarity or significance of your reaction to it. And the same goes for the violinist example. The fact that the
technology involved in making the violinist dependent on you is exotic rather than mundane is morally
irrelevant. If an example comes closer to being logically impossible, on the other hand, then serious problems
will indeed arise. Suppose, for example, that you are asked whether it would be permissible for you to travel
back in time and assassinate Hitler before he was guilty of committing any crimes. To the extent that one views
time travel as conceptually incoherent, one may well be unable to formulate any clear response to the question.
But, of course, the violinist case is nothing like this, either. I conclude that the cogency of the good samaritan
argument is not threatened by the oddness of the violinist example.




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     Answers to: “The Woman Consented to Sex/The Pregnancy
                             Risk”
1) THIS PROVES THAT THEIR ANTI-ABORTION STANCE IS DIRECTED BY ANIMUS TOWARDS
WOMEN’S RIGHTS RATHER THAN THE PROTECTION OF THE LIFE OF THE FETUS, 2) WOMEN’S
LACK OF POWER MEANS SEX ISN’T VOLUNTARY, 3) THE LAW UNFAIRLY DISCRIMINATES
AGAINST WOMEN BECAUSE MEN ALSO HAD SEX

Laurence Tribe, law professor, Harvard, ABORTION: THE CLASH OF ABSOLUTES, 1992, p. 131-2

One response is that pregnancy is different from those situations in which we would not ask someone to be a
Good Samaritan. The pregnant woman, at least in most cases, "volunteered," in the sense that she chose to have
sex and ran the risk of getting pregnant. Thus, she is not in the same position with regard to the fetus as she
would have been with regard to the uninvited violinist. This feeling probably plays a significant role in shaping
people's views about abortion rights. What the feeling suggests is not an argument that because the fetus is an
"innocent human life," all abortion must be prohibited. Rather, it suggests an argument, or at least a sentiment,
that, when the woman is "responsible" for the pregnancy, she loses at least her moral right to claim that its
continuation interferes with her autonomy. This sentiment might in turn explain the widespread sense that
abortion must be allowed in cases of rape. With rape, of course, the sexual intercourse resulting in pregnancy
occurred without the woman's con-sent. But the same moral view would seem to require an exception from any
ban on abortion not only when the pregnancy resulted from a sex act forced upon a woman but also when it
resulted from the failure of a conscientiously used, ordinarily effective means of birth control. Yet it is curious
that there exists no widespread sentiment, among those who generally oppose abortion rights, that abortion
should be allowed when birth control fails. Does this not suggest that such opponents of abortion come to their
views about the immorality of abortion not in response to the voluntary nature of the woman's pregnancy but in
response to the voluntary nature of the sexual activity in which she has engaged? And does this not in turn
suggest that such antiabortion views are driven less by the innocence of the fetus (which does not turn on how or
why the sex occurred or the pregnancy began) than by the supposed "guilt" of the woman? Still, there is some
force to the moral argument that the right to choose abortion can be distinguished in cases of voluntary, as
opposed to involuntary, pregnancy. To be sure, one powerful strand of feminist legal theory posits that within
our society even most nominally "consensual" sex, particularly in cases where the woman does not feel free to
use or to suggest the use of birth control, involves coercion. But if one assumes a pregnancy that did not result
from any sort of coercion, then perhaps the imposition of continued pregnancy on the woman may not be unjust.
But, however voluntary the sex may have been, the woman was, of course, not the sole participant. Yet a ban on
abortion imposes truly burdensome duties only on women. Such a ban thus places women, by accident of their
biology, in a permanently and irrevocably subordinate position to men.




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     Answers to: “The Woman Consented to Sex/The Pregnancy
                             Risk”
FIVE FLAWS IN THE “CONSENT TO SEX” ARGUMENT

Reva Siegel, law professor, STANFORD LAW REVIEW, January 1992, “Reasoning from the Body: A
Historical Perspective on Abortion Regulation and Questions of Equal Protection,”p p. footnote


First, the argument seems to assume that all sexual intercourse not legally cognizable as rape is consensual. The
law of rape serves policy concerns not applicable in the abortion context (e.g., protecting the accused;
"protecting" the marriage relation), and the concepts of consent it has developed are generally inadequate to
detect sexual coercion between intimates. In an intimate relation, a woman may engage in sex under conditions
of physical, emotional, or even economic duress which will still appear consensual from the standpoint of the
law. In short, consent and voluntariness in sexual intercourse demand distinctions of degree to which this
argument is utterly inattentive.

Second, the consent-to-sex argument does not excuse those who conscientiously use contraceptive methods that
nevertheless fail.

Third, the argument ignores the ways this society discourages women from taking the initiative in matters of
contraception lest they look like they have taken the initiative in matters of sex.

Fourth, like the just-punishment argument, the consent-to-sex argument visits the consequences of sexual
activity on the woman alone, ignoring the male partner who may have initiated or forced sex, and who may have
failed to use contraception or actively discouraged its use. Thus, like the just-punishment argument, the consent-
based argument rests on a sexual double standard, assuming that women must engage in sex for procreative
purposes, but not men.

Fifth, the argument would impose some two decades of obligation on a woman for "choosing" to engage in a
common social act that is not only condoned, but actively encouraged, by the society that would judge her.
(Reasoning in analogous terms, one might argue that a woman raped outside her home assumed the risk of rape
by voluntarily choosing to leave her home, or, as the Anglo-American legal tradition has long argued, a woman
who is raped in marriage "consented" to sex because she voluntarily chose to marry, see note 362 supra).

At root, the argument assumes the very duty it purports to justify. Consent-based justifications for compelling a
pregnant woman to bear a child acquire their persuasive force from a latent assumption that the pregnant woman
ought to bear the child, which appears as an obligation individually assumed by her so long as some voluntary
act can be found to support it. Consent-based arguments of this sort have long been employed to enforce
relations of gender status. See note 362 supra.




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           Answers to: “The Woman Consented to Sex/The Pregnancy
                                   Risk”

AT BEST THIS PROVES SOME ABORTIONS ARE BAD, AND 2) IT DOESN’T PROVE ABORTOIN IS
MURDER

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002,
p. 147-9
 The objection that the good samaritan argument is undermined by the moral significance of the difference between situations that arise from voluntary actions and those that do not can be developed in two
importantly distinct ways. The distinction corresponds to the two components of Thomson’s initial reply to this objection in the following passage: I suppose we may take it as a datum that in a case of
pregnancy due to rape the mother has not given the unborn person a right to the use of her body for food and shelter. Indeed, in what pregnancy could it be supposed that the mother has given the unborn
            It is not as if there were unborn persons drifting about the world, to whom a woman who wants a
person such a right?

child says “I invite you in.” (1971 : 138). fails in cases where pregnancy arises from voluntary intercourse can be understood as resting on the conjunction of the following
two claims: that the fetus cannot acquire the right to the use of the woman’s body unless we can suppose that the woman has given the fetus this right, and that we cannot suppose that the woman has given
                                   . Even in cases of voluntary intercourse, a woman does not explicitly agree to
the fetus this right unless she has explicitly agreed to do so

give the fetus the right to the use of her body. And so, if these two claims are correct, then if the good samaritan
argument is successful in rape cases, it is successful in nonrape cases as well. But each of these claims can be
challenged. The second claim can be challenged by appealing to the plausible notion that sometimes a person
consents to a state of affairs not by explicitly agreeing to accept it, but by doing some voluntary action that
amounts to tacitly agreeing to accept it. The objection to the good samaritan argument that arises from the denial of the second claim therefore maintains that because the
woman’s pregnancy in nonrape cases is the (foreseeable) result of a voluntary action of hers, she should be understood as having tacitly waived her right to expel the fetus or (what amounts to the same
thing) as having tacitly granted the fetus a right to stay. I will call this the tacit consent objection. The first claim can be challenged by appealing to the plausible notion that a person can acquire the right to
your assistance when his need for your assistance (foreseeably) arises from a voluntary action of yours on the grounds that you are responsible for his state of need, even if in doing the action that led to his
being in a state of need you did not “give” him the right to your assistance either explicitly or tacitly. It is plausible, for example, to maintain that an innocent bystander who is accidentally shot by a hunter
and who as a result now needs the hunter’s aid in order to survive has acquired a right to the hunter’s assistance even if by voluntarily choosing to go hunting the hunter cannot reasonably be understood as
having agreed, even tacitly, to grant this right to those whose need for assistance arises from his voluntary actions. The objection to the good samaritan argument that arises from the denial of Thomson’s first
claim therefore maintains that because the woman in nonrape cases is responsible for the fact that there is a fetus whose life now depends on the use of her body in order to survive, the fetus has acquired a
right to the use of her body even if the woman has not “given” this right to the fetus, explicitly or otherwise. I will call this the responsibility objection. Both objections are prima facie quite plausible, and if
either or both can be sustained, then the good samaritan argument will fail in cases in which the woman’s pregnancy arises, at least in part, from a voluntary action of hers. 4.3 .2 . The Significance of the
Objection The claim that when pregnancy arises from the woman’s voluntary action the fetus has acquired the right to the use of her body for as long as it needs it to survive seems to many people to be a
devastating objection to the good samaritan argument, and Thomson herself does not provide a satisfactory reply to it. She responds by suggesting that a woman who becomes pregnant because of
contraceptive failure cannot reasonably be thought of as having agreed to or as being responsible for the pregnancy, 7 and by downplaying the significance of the claim even if it is sustained: It seems to me
   the argument we are looking at can establish at most that there are some cases in which the unborn person has
that

a right to the use of its mother’s body, and therefore some cases in which abortion is unjust killing. There is
room for much discussion and argument as to precisely which, if any. But I think we
shouldsidestepthisissueandleaveitopen, foratanyrate the argument certainly does not establish that all abortion is
unjust killing (1971 : 121). This reply is unsatisfactory for several reasons. First, and perhaps most obviously, even if one concedes to Thomson the case of contraceptive failure, the response itself seems to concede
that the fetus does acquire the right to the use of the pregnant woman’s body in cases where the woman and her partner neglected to use contraception in the first place. A significant number of pregnancies arise in just this way, and the result would
then be that, so far as Thomson’s defense of the good samaritan argument is concerned, it is morally impermissible for women to have abortions under such circumstances. Second, and more importantly, it can plausibly be argued that since
contraceptive devices are known to be imperfect, a woman who has intercourse while using one consents to or is responsible for the results since she knowingly and voluntarily runs the risk of becoming pregnant. 8 A hunter, for example, can
plausibly be held responsible for taking care of an innocent bystander she accidentally shoots, even if she takes every reasonable precaution to avoid such an accident short of not going hunting in the first place. So if the good samaritan argument
cannot provide a defense of abortion in the case where contraception is not used, then it may well prove unable to provide a defense of abortion even in the case where contraception is used. And if that is so, then the good samaritan argument will
provide, at most, a defense of abortion in cases of rape. This leads to a third problem. Many proponents of the rights-based argument against abortion, though far from all of them, wish to (or are at least willing to) make an exception to their
opposition to abortion in cases where the pregnancy arises from rape. But they are confronted with a problem. Since their opposition to abortion in typical cases arises from the conviction that abortion violates the fetus’s right to life, it is difficult to
see how they could consistently treat rape cases differently from nonrape cases. A fetus conceived as a result of rape, after all, surely has the same right to life as any other fetus. But if the good samaritan argument is accepted and the tacit consent
or responsibility objection is then sustained, then this problem with the abortion critic’s position will be solved: Abortion will prove to be impermissible in nonrape cases not because the fetus has a right to life, but because it has acquired a right to
the use of the woman’s body. And since the fetus will not have acquired this right in rape cases, on this account, the exception for rape cases will then prove well grounded. And this in turn renders Thomson’s response to these objections
unacceptable. Since only a very small fraction of abortions involve pregnancies arising from rape, and since a significant portion of those who generally oppose abortion are willing to make an exception in such cases anyhow, it will turn out that if
the tacit consent or responsibility objection can be sustained, then Thomson’s defense of the good samaritan argument will prove a greater contribution to the position held by critics of abortion than to the position held by its defenders. While
Thomson is surely right that these objections would not defeat her general claim that abortion can sometimes be morally permissible even if the fetus has a right to life, therefore, she is just as surely wrong to sidestep the issue. It is crucial to
consider whether the good samaritan argument can be extended to cover cases in which the woman voluntarily engages in intercourse without using contraception. And although Thomson herself not only refrains from insisting that the argument
can be extended in this way but seems tacitly to concede that it may prove incapable of being so extended, I will argue here that it can. The tacit consent objection and the responsibility objection must be considered separately, and I will focus on
the former in the remainder of this section and on the latter in the whole of the next. But before doing so, it is important to make explicit one assumption that I will be making in my treatment of both. I will be assuming that in cases that do not
involve rape, a woman who engages in sexual intercourse with a man can properly be characterized as acting voluntarily. This assumption is worth noting for two reasons. One is that it has been denied by some people, including some prominent
feminists (e. g., MacKinnon 1984). On their account, intercourse in nonrape cases is often (or perhaps always) involuntary, or at least is not voluntary in any meaningful sense. Although the justification for this claim varies somewhat from one
proponent to another, the typical argument maintains that women often have, or at least are often made to feel that they have, no genuine alternative to submitting to the pressures exerted on them by their partners. And if this is so, the argument
runs, then their choices cannot justly be treated as free. I will not argue against such a view here, but I will not make use of it either. I am concerned in this book to argue that the case against abortion can be defeated on terms that critics of abortion
generally accept, and surely critics of abortion will not generally accept the claim that nonrape instances of intercourse should be construed as involuntary. If one does accept the view that nonrape instances of intercourse should be construed as
involuntary, then this will count as one way to rescue the good samaritan argument from the charge that it succeeds, if at all, only in cases involving rape. But for




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     Answers to: “The Woman Consented to Sex/The Pregnancy
                             Risk”
YOU DO NOT CONSENT TO EVENTS JUST BECAUSE YOU ENGAGE IN CONDUCT THAT RISKS
THOSE EVENTS

Jeb Rubenfeld, law professor, Yale, WHAT ROE SHOULD HAVE SAID, Ed. Balkin, 2004, p. 112

Perhaps Texas means to argue that women somehow "consent" to child-bearing whenever they voluntarily
engage in sexual intercourse. But we do not consent to an event just because we knowingly engage in conduct
that risks it. I do not consent to a car accident by driving on the highway. Nor can a woman be said to have
"waived" her constitutional rights by engaging in sex. Constitutional rights are not waived absent actual consent.
Johnson v. Zerbst, 304 U.S. 458, 464 (1938)> Ohio Bell Tel. Co. u Public Utilities Com., 301 U.S. 292, 307 (i937).
Petitioner in Bailey did not waive his rights against forced labor even though he had contracted to do the work
and had accepted money for doing it. How, then, can a woman be said to have waived her rights against forced
labor merely by engaging in sexual intercourse?




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         Answers to: “The Woman Consented to Sex/The Pregnancy
                                 Risk”

THERE IS A DIFFERENCE BETWEEN VOLUNTARILY BRINGING ABOUT A STATE OF AFFAIRS
AND ENGAGING IN AN ACTIVITY THAT COULD BRING ABOUT A STATE OF AFFAIRS

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 153-4
I will begin with the tacit consent objection, which seems to be the more common version of the objection grounded in the distinction between voluntary and involuntary acts, and which, indeed, is often
pressed even by those of Thomson’s readers who are generally sympathetic with her conclusions. As one such writer has put it, “the fetus does have a right to use the pregnant woman’s body [in nonrape
cases] because she is (partly) responsible for its existence. By engaging in intercourse, knowing that this may result in the creation of a person inside her body, she implicitly gives the resulting person a right
to remain” (Steinbock 1992: 78, second emphases added). The tacit consent objection turns on two claims: that because the woman’s act of intercourse is voluntary, she should be understood as having
tacitly consented to something with respect to the state of affairs in which there is now a fetus developing inside of her body, and that what she should be understood as having tacitly consented to with
respect to this state of affairs is, in particular, the fetus’s having a right to have the state of affairs continue for as long as this is necessary for it to remain alive. I will argue that both claims should be
rejected. 4.3 .4 . Rejecting the First Claim Let me begin with the first claim, the claim that the fact that the woman’s act of intercourse is voluntary counts as evidence of her having tacitly consented to
something with respect to the resulting state of affairs. There is surely something plausible sounding about this, since if the notion of tacit consent is to make sense at all it must arise from voluntary rather
                             this appearance arises from a confusion between a person’s (a) voluntarily bringing
than involuntary actions. But I want to argue that

about a certain state of affairs, and (b) voluntarily doing an action foreseeing that this may lead to a certain state
of affairs. My claim is that only (a) is a plausible candidate for grounding tacit consent in the relation between
an agent and a state of affairs she is (or is partly) responsible for having brought about, and that any plausible
attempt to apply tacit consent to nonrape cases of pregnancy must appeal to (b). 10 If this analysis is correct,
then we have no grounds for concluding that the woman who has intercourse without contraception has tacitly
consented to anything with respect to the state of affairs in which a fetus is now developing inside her body. To see
this, let us first consider what one would have to believe about tacit consent in general in order to affirm the particular claim that when a woman has voluntary intercourse without contraception and becomes
pregnant as a result she has tacitly consented to give the fetus a right to stay. Assuming that the fetus is a person with the same right to life as you or I, the general structure of the woman’s situation is this: A
person has done a voluntary act that has caused a certain state of affairs to exist, where this state of affairs is one in which a second person is now infringing on some right that the first person has to
something. 11 Our question is: What conditions would be sufficient to make it be the case that the first person has tacitly consented to give the second person the right to continue doing this? We could say
that it is sufficient that the person’s act be voluntary and that it cause the resulting state of affairs. But this would imply that by voluntarily acting, a person consents to the continuation of a state of affairs he
                                                                                 . And this would amount to saying that if a woman has
produces even if he had no knowledge that his action could lead to such a state of affairs

intercourse without contraception and does not understand that intercourse can lead to conception, then she has
tacitly consented to carry the fetus to term. Since this is plainly implausible, we must at least add the
requirement that the act cause the state of affairs in a manner that is foreseeable to the person performing the act.
Let us then assume that these three conditions — voluntariness, causality, and foreseeability — must be
accepted as necessary conditions for tacit consent in order to avoid producing implications that are plainly
unacceptable. 12 It seems correct that all three conditions are satisfied in the case where a woman’s pregnancy arises from voluntary intercourse: Her action was voluntary, was the proximate
cause of the pregnancy that now infringes on her right to control her body, and was the cause of this state of affairs in a manner that was foreseeable to her (assuming that she understood that intercourse
                           . But all of this will show that a woman who engages in intercourse without
without contraception can lead to pregnancy)

contraception has tacitly consented to something with respect to the resulting state of affairs only if these
general conditions are not merely necessary for tacit consent, but sufficient. And I want now to argue that the
claim that these conditions are sufficient for having consented to something with respect to the resulting state of
affairs is implausible. One could, of course, argue against the claim that these conditions are sufficient for consent by arguing that no conditions short of explicit consent are sufficient. But
I want to identify an implication of the claim that these conditions are sufficient that should be unacceptable to all critics of abortion, including those who embrace the general notion of tacit consent. I want
to assume, therefore, that tacit consent in and of itself is a perfectly reasonable doctrine and to argue by means of an example that puts this assumption in a favorable light. So let us focus on a relatively
                        : If you voluntarily leave some money on the table in a restaurant as you are leaving after
uncontroversial instance of tacit consent

your meal is over, then you have tacitly waived your right to it and have consented to allow the waiter to have it.
You have made no explicit announcement that you intend to relinquish control of the money, of course, and
have said nothing explicit that would indicate that you wish the money to go to the waiter rather than the chef or
the busboy or the owner, but it nonetheless seems reasonable to maintain that your action amounts to a tacit
declaration of just this sort. And surely it is the voluntariness of your act that makes this assessment reasonable.
If you had instead left the money on the table because you had been forced to do so by a knife-wielding
assailant, we would not be inclined to say that you had tacitly consented to anything about it. But now consider
the cases of Bill and Ted, each of whom has voluntarily exited a restaurant having voluntarily placed some
money on the table at which he was dining alone. In Bill’s case, the state of affairs in which he is no longer in
the restaurant and some of the money that was originally in his pocket is now on the table is a state of affairs he
brought about voluntarily: After he finished eating, he stood up, took some money out of his wallet, placed it on
the table, and walked out the door. In Ted’s case, the same state of affairs is not one which he brought about
voluntarily, but rather one which foreseeably arose from a voluntary action of his. As he sat down to eat, Ted
discovered that the crumpled wad of dollar bills in his pants pocket made him uncomfortable, so he put them
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down on the table while he was eating, intending to put most of them back in his pocket when it was time to
leave. A friend who was leaving the restaurant when Ted sat down saw this and warned Ted not to put the
money there on the grounds that he might forget about it, but Ted foolishly refused, and when the friend urged
that he at least tie a piece of string around his finger to remind himself to put most of the money back in his
pocket before leaving, Ted declined, saying that he didn’t like the way having a piece of string tied around his
finger “made him feel” while he was trying to enjoy a meal. Unfortunately, Ted was so lost in the rapture of his meal that he did indeed forget to put most
of the money back in his pocket, and about ten minutes after he left the restaurant, he suddenly realized his mistake and headed back to clear things up. Now clearly Ted has no one to blame but himself. It is
not as if someone else forcibly removed the money from his pocket and put it on the table. Still, it is surely unreasonable to insist that by putting the money on the table when he sat down Ted tacitly agreed
                                                                        Yet if the three conditions identified as
to let the waiter keep all of it if, as a foreseeable consequence of this act, the money was still on the table when he left. 13

necessary conditions for tacit consent are also taken to be sufficient conditions, there can be no way to account
for the distinction betwen the cases of Bill and Ted. In Ted’s case, just as in Bill’s, all three conditions for
waiving one’s rights are satisfied: Ted’s putting his money on the table without tying a piece of string on his
finger was voluntary, was the proximate cause of his leaving the money in the restaurant, which in turn was a
foreseeable (though unintended) consequence of his act. Maintaining that these three conditions are sufficient
for tacit consent, then, renders one unable to distinguish betwen the case of Bill and Ted precisely because the
conditions overlook the distinction between (a) and (b) noted above. The cases are relevantly different because
Bill voluntarily brings about the state of affairs in which he has left the restaurant with his money still on the
table, while Ted does not. Ted voluntarily puts the money on the table, foreseeing that this may result in the
state of affairs in which he has left it in the restaurant. And the lesson of this is that even if voluntarily bringing
about a certain state of affairs constitutes consent to bear the burdens it imposes on you (as in the case of Bill), it
does not follow that voluntarily doing an action foreseeing that this may lead to a certain state of affairs
constitutes such consent (as in the case of Ted). This analysis has the following implications for the application
of tacit consent theory to cases of voluntary intercourse. 15 A woman whose pregnancy arises from voluntary
sexual intercourse has not voluntarily brought about the state of affairs in which the fetus is making demands on
her body. Rather, she has voluntarily brought about the state of affairs in which a man is having sexual
intercourse with her, foreseeing that this might bring about the further state of affairs. In this respect, she is like
Ted rather than like Bill. And since Ted’s relation to the unwanted state of affairs he has foreseeably produced is
not sufficient to warrant the claim that he has consented to bear the burdens it imposes on him, the same is true
of her. We cannot justifiably insist that she has tacitly consented to waive the right to the control of her body.
Suppose that once she discovers that she is pregnant she endeavors to have the pregnancy terminated. Then she is like Ted when he returns to the restaurant to retrieve most of his money after he discovers
that he has (foreseeably, but not intentionally) left all of it on the table. It is clear that in Ted’s case, we must take this to mean that he has not agreed to waive his right to the control over the money.
Similarly, we must take this to mean that she did not give and has not given the fetus a right to the use of her body. The mere fact that her pregnancy resulted from voluntary intercourse for which she is
(partly) responsible, then, cannot reasonably be understood as evidence that she has consented to anything with respect to the state of affairs in which there is now a fetus making unwanted demands on her
body. 16 Let me make one further point about the distinction between voluntarily bringing about a state of affairs and voluntarily acting with the foresight that a state of affairs may result: its importance is
revealed by seeing what happens when it is ignored, and it is ignored in an analogy that is commonly offered by critics of the good samaritan argument. Langer, for example, motivates his defense of the tacit
                           Imagine a person who freely chooses to join the Society of Music Lovers, knowing
consent objection with the following example:

that there was a 1 in 100 chance of being plugged into the violinist if she joins the society. She certainly does
not desire to be plugged into the violinist, but at the same time she desires to join the society, and feels the one
in one hundred odds are an acceptable risk. She goes ahead and joins, and much to her chagrin, her name is
selected as the person to be plugged into the violinist. Is it unreasonable to say that she has waived her right to
control over her own body? I think not. …... The point is simply that a person’s act cannot reasonably be taken
as evidence of tacitly consenting to something unless it takes place in a context in which it is generally
understood as constituting such consent.




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     Answers to: “The Woman Consented to Sex/The Pregnancy
                             Risk”

SLAVERY IS NOT A FAIR CONSEQUENCE FOR SATIATING THE HUMAN DESIRE FOR SEX

Andrew Kopplemen, University of Chicago, M.A., Political Science, Yale University,; J.D., Yale University,
1989; Ph.D. expected, Political Science, Yale University, “Legal Theory, Forced Labor: A Thirteenth
Amendment Defense of Abortion,” NORTHWESTERN UNIVERITY LAW REVIEW, Winter 1990, p. 503-4

Like Bailey, women who consent to the risk of pregnancy do so within a complex field of pressures and
constraints. Most obviously, both women and men feel a powerful need for sex. Lifelong abstinence is an
option, of course, but it is not clear that it is any more reasonable an [*504] option than Bailey's option of
remaining permanently unemployed. Religious ascetics do without sex, but they also often do without food;
doubtless Bailey would have been better able to resist the blandishments of the Riverside Company if he had
been willing to follow the ascetics' example. Again, if the thirteenth amendment means anything, it means that a
person should not have to choose between submitting to servitude or denying a need that almost all human
beings find irresistible.


MANY WOMEN COERCED INTO SEX EVEN IF NOT RAPED

Andrew Kopplemen, University of Chicago, M.A., Political Science, Yale University,; J.D., Yale University,
1989; Ph.D. expected, Political Science, Yale University, “Legal Theory, Forced Labor: A Thirteenth
Amendment Defense of Abortion,” NORTHWESTERN UNIVERITY LAW REVIEW, Winter 1990, p. 504

Even if some women can contain their desires, many are relatively powerless in their relationships with men.
The economic dependence of wives on their husbands, for example, may limit their ability to refuse sex. Some
jurisdictions construe refusal of sexual relations to be a fault-based ground for divorce, which typically is a
financial catastrophe for women and their children. In most states, too, wives are not legally entitled to refuse
sexual relations, and, if they do, husbands are entitled to force them. Nearly one quarter of the states have
recently expanded the marital rape exemption to include unmarried cohabitors. Marriage aside, forced sex
happens in a much broader range of situations than those which the law is willing to cognize as "rape." Courts
have proven remarkably incompetent to know rape when they see it: no sex act is likely to be adjudicated to be
rape if the man knows the woman or if he does not beat her up or threaten her with a weapon.




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        Answers to: “Women Chose Not to Use Contraception”


CONTRACEPTION FAILS, NOT ALWAYS USABLE

Andrew Kopplemen, University of Chicago, M.A., Political Science, Yale University,; J.D., Yale University,
1989; Ph.D. expected, Political Science, Yale University, “Legal Theory, Forced Labor: A Thirteenth
Amendment Defense of Abortion,” NORTHWESTERN UNIVERITY LAW REVIEW, Winter 1990, p. 505

These pressures to engage in sex are often accompanied by pressures not to use contraception. Some of these
involve physical danger: the most effective contraceptive, the pill, poses long-term health risks, while safer
methods have higher failure rates. Contraceptive materials and information are sometimes hard to get,
particularly for the teenagers who are a third of the women who abort. Contraception is sometimes stigmatized:
"Using contraception means acknowledging and planning the possibility of intercourse, accepting one's sexual
availability, and appearing non-spontaneous." The issue of power arises again, since many men dislike
contraceptives and discourage the women they have sex with from using them. "Sex does not look a lotlike
freedom when it appears normatively less costly for women to risk an undesired, often painful, traumatic,
dangerous, sometimes illegal, and potentially life-threatening procedure than to protect oneself in advance." In
short, women's consent to the risk of pregnancy is as dubious as Bailey's consent to the risk of being put on the
chain gang.




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    Answers to: ‘You Can’t Withdraw Consent to Pregnancy Along
                              the Way”

THE VIOLINIST EXAMPLE PROVES YOU CAN WITHDRAW CONSENT AT ANY POINT

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 166

I have been concerned to this point to argue against the first claim made by the tacit consent objection, the claim
that because the woman’s act of intercourse is voluntary, she should be understood as having tacitly consented
to something with respect to the state of affairs in which there is now a fetus making demands on her body. If
my argument has been successful, then the woman who has intercourse without contraception is not like you if
you voluntarily plug yourself into the violinist. Rather, she is like you if you voluntarily engage in some
pleasurable activity with the foresight that this might end up causing you to become plugged into the violinist.
And in that case, if my analysis of tacit consent has been correct, you have not agreed to give the violinist the
right to the use of your body. But let us now suppose that I have been mistaken about this. Let us suppose that
the woman whose pregnancy arises from voluntary intercourse is instead like you if you freely walk into the
violinist’s room, sit down next to him, and deliberately plug yourself in. I will take it that this implies that you
have consented to the act of becoming plugged into the violinist. But what follows from this? At least one thing
seems reasonably enough to follow: Suppose that the procedure involved in unplugging you from the violinist is
itself somewhat painful and costly. If you were plugged into the violinist involuntarily, then whoever forced you
to be plugged in should have to bear the costs of, and compensate you for the suffering involved in, the
unplugging. But if you freely plugged yourself in, then you should have to bear these costs on your own. So we
might say that freely plugging yourself into the violinist constitutes consent to bear the costs of unplugging
yourself. But does it constitute consent to more, and in particular, does it, as the second claim made by the
objection maintains, constitute consent to remain plugged in for the nine-month period that the violinist
requires? This strikes me as extremely implausible. Suppose that because of your unique compatibility, the violinist will die unless you
undergo a series of nine painful bone marrow extractions over the next nine months, and with a clear understanding of the nature of the
procedure and its potential risks, you freely volunteer to undergo the first extraction. After the second round of extraction, however, you
find that the burden is considerably more than you are willing to bear on his behalf. Do you really believe that it would now be morally
impermissible for you to discontinue providing aid to the violinist merely because you began providing aid voluntarily? To say that doing
so would be impermissible would be to say that the violinist’s right to life does not entitle him to seven more extractions of bone marrow
from you if the first two were done involuntarily, but that it does entitle him to seven more extractions from you if the first two were done
voluntarily. It is to control one’s own body” (Long 1993: 189). 23 And if this is so, then even if we thought that by her actions the
woman could legitimately be understood as attempting to consent to waive this right, we would still have to conclude that she had not in fact done so. I conclude that both claims needed to
sustain the tacit consent objection must be rejected on grounds that the critic of abortion can and does accept, and that the objection thus fails to undermine the violinist analogy for typical nonrape cases,
                                                 . If the good samaritan argument is successful in rape cases, then
including those in which a woman voluntarily has intercourse without contraception

the tacit consent objection fails to show that it is not also successful in nonrape cases as well.




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                                     Answers to: “Responsibility for the Fetus”

1) THEIR EXAMPLES ASSUME THE IMPACT, 2) THE WOMAN DOESN’T INTEND TO BRING ABOUT
THE PREGNACY

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 167-9

Let us now consider what I am calling the responsibility objection. In deriving the fetus’s right to the use of the
pregnant woman’s body in nonrape cases from the fact that the pregnancy arose from a voluntary act of the
woman’s, this objection dispenses with the claim that the woman has tacitly consented to assist the fetus. It
maintains instead that, morally speaking, the woman is like someone whose voluntary actions foreseeably lead
to an accident that causes an innocent bystander to be in need of her assistnace. Tooley, for example, argues that
the good samaritan argument is undermined by considering a case in which you engage in a pleasurable activity
knowing that it may have the unfortunate side effect of destroying someone’s food supply. You did not intend to
cause the loss of food, let us assume, but it nonetheless resulted from your voluntary actions, and in a manner
that was foreseeable in the sense that you knew your actions risked causing a loss of this sort (1983 : 45). Surely
most of us will agree that you do owe it to the bystander or victim to save his life even at some considerable cost
to yourself, even though you need not be understood as having tacitly consented to do so in virtue of your
having undertaken the risky action voluntarily. But if this is so, then the woman whose pregnancy is the
accidental but foreseeable result of her voluntary action owes the fetus the use of her body even if she did not
tacitly consent to grant it this right. 24 Let me begin by noting one reason to be suspicious of analogies of the
sort that proponents of the responsibility objection generally employ. Beckwith, for example, argues that the
claim that voluntarily engaging in intercourse with the foresight that this might result in pregnancy imposes a
duty to care for the offspring “is not an unusual way to frame moral obligations, for we hold drunk people
whose driving results in manslaughter responsible for their actions, even if they did not intend to kill someone
prior to becoming intoxicated” (1992 : 111— 12; 1994: 164). 25 But in the case of drunk or negligent driving,
we already agree that people have a right not to be run over by cars, and then determine that a person who risks
running over someone with a car can be held culpable if he has an accident that results in a violation of this
right. 26 And the same is true in the other sorts of cases that proponents of the objection typically appeal to: It is
uncontroversial that you have a right not to be deliberately shot by a hunter’s bullet, or to have your food supply
intentionally destroyed, and from this we derive a right that people not negligently act in ways that risk
unintentionally causing these things to occur. In the case of an unintended pregnancy, on the other hand, the
question of whether the fetus has a right not to be deliberately deprived oftheneededsupportthepregnantwomanisprovidingforitisprecisely the
question at issue. So it is difficult to see how an argument from an analogy with such cases can avoid begging the question. …(176) In this case, as in Imperfect Drug I, you are responsible for the fact that
the violinist now exists, but not for the fact that he is needy, given that he exists. Now let us assume, what some might deny, that the violinist in this case would be better off dying right away of the rare
disease rather than taking the drug, if taking the drug would only provide him with a few weeks of agony and then death from the kidney failure. And let us also assume that he would be better off still if he
took the drug and endured the pain and was then saved from the kidney failure so that he could go on to enjoy the rest of his life. In that case, even though you are only responsible in sense (1 ) and not in
sense (2 ) for the fact that he stands in need of your assistance, it is nonetheless true that if you refrain from assisting him now, he will have been made worse off by your having given him the drug than he
would have been had you let him die at that time (or that he would have chosen no drug at all over the drug with no subsequent kidney assistance). And this makes it plausible to suppose that you now have
an obligation to save him from the kidney failure, even at some substantial cost to yourself. If we accept this analysis, then we must modify the claim I presented against the responsibility objection to read as
follows: If a voluntary action of yours makes you responsible in sense (1 ) and not in sense (2 ) for the fact that another now stands in need of your assistance in order to survive, then the individual has not
acquired the right to your assistance unless your assistance is needed to make him as least as well off as he would have been had you not done the voluntary action in the first place. 31 I am inclined to accept
this emendation. Accepting this modification of the argument, however, will affect its ability to undermine the responsibility objection only if we believe that a fetus is made worse off by being conceived
                                                   This claim is implausible at best, unintelligible at worst (since
and then aborted than it would have been had it never been conceived in the first place. 32

the fetus would not “have been” anything had it not been conceived) and the sorts of arguments that have
typically been advanced in its defense are unsatisfactory. Moreover, one of the few considerations that might be appealed to in its support in other contexts
cannot be appealed to in this context without begging the question that is at issue. This is the thought that may well arise when one compares the case of a man who is murdered in his sleep with one who
dies of natural causes in his sleep. Although it may be difficult to provide a satisfactory account of the thought, many people find that they are inclined to believe that the murder victim has been more
seriously harmed than has the other. And if this is so, then the fact that the fetus that is conceived and then aborted is killed, while if it had not been conceived then it would not have been killed, might seem
to lend support to the claim that conceiving and then aborting it leaves it worse off than it would otherwise have been. The problem with this line of argument is that if the original example shows anything, it
shows only that it is worse to die an unjust death than to die an ordinary death. And even if that claim is accepted, it clearly cannot be used here because the question of whether or not abortion causes an
unjust death is precisely the question at issue. So what the defender of the responsibility objection really has to maintain in order to exploit the revision I have accepted to the principle I have been defending
is not merely the claim that a fetus is worse off being conceived and then aborted than it would have been had it never been conceived in the first place, but that it is worse off being conceived and then
simply dying than it would have been had it never been conceived. And this makes the claim even more difficult to believe. Consider, for example, what it would imply about women who are highly prone to
miscarriage. If the claim is true, then if such a woman chooses to try to become pregnant, she seriously harms each fetus that she fails to carry to term. 33 It would take a very strong argument to establish
that the claim is true, given that the claim itself is implausible and has consequences that are implausible, and the arguments that have been offered in its defense cannot bear this weight. Michael Davis
offers one such argument for the claim that the fetus is made worse off by being made to live a short time and then being killed than it would have been had it never existed at all by appealing to the
following example (1983 : 277): [T] o be killed is bad, so bad that merely being brought into existence for a time is not necessarily enough to make up for it. We would not, I take it, allow a scientist to kill a
ten-year-old child just because the scientist had ten years ago “constructed” the child out of a dollar’s worth of chemicals, had reared it for ten years in such a way as to make it impossible for the child’s care
to be given to anyone else for another eight years, and now found the care of the child a far greater burden than he had expected. But this example does not support the conclusion for two reasons. The first
arises from the fact that in Davis’s story, the scientist deliberately makes the child exclusively dependent on him. Since the scientist could have avoided doing this, with the result that the child could now be
cared for by someone else, what he does in making the child dependent on him is like what you do in making the violinist dependent on you in Imperfect Drug II, when you could instead have rendered him


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independent of you, rather than what you do in making the violinist dependent on you in Imperfect Drug I, when there was no alternative available to you that would have rendered him independent of you.
When we agree that in Imperfect Drug II you now owe the violinist the use of your kidneys, it is because you made him dependent on your support when you could have avoided doing so, not because we
believe that if he dies now he will be made worse off than if you had not saved him seven years ago. And in just the same way, when we agree that in Davis’s story the scientist now owes the child another
eight years of support, it is because the scientist made him dependent on such support when he could have avoided doing so, not because we believe that if the child dies now he will be made worse off than
if the scientist had not created him in the first place. There is a second problem with Davis’s argument that arises independently of this first problem. For suppose we agree that we would not allow such a
scientist to kill his or her child. Davis simply assumes that this must be so because the killing is so bad for the child that the high quality of the child’s (short) life does not make up for it. Only on this
assumption would our saying that the scientist does something immoral commit us to the claim that one is made worse off by being made to live a short time and then being killed than if one had never
existed. But this assumption is unwarranted. It is much more likely that our response to Davis’s example (assuming that we share his response) reveals instead that we believe that some acts are wrong even
though they leave no one worse off than they would otherwise have been. Suppose, for example, that a woman knows that if she conceives a child now it will live a just barely worthwhile life and die at the
age of fifteen but that if she waits a month she will conceive a child who will live an extremely happy life to a ripe old age. We might well criticize her if she chooses to conceive the first child rather than the
second, but that is no evidence that we think that this child is made worse off than if he had never lived. It is instead evidence that we think (if we do criticize her) that there are wrongs that harm no one.
Similarly, if we share Davis’s response to his example, this is not because we think the child would have been better off never having been conceived. A second defense of the claim that a fetus is made
worse off by being conceived and then aborted than it would have been had it never been conceived arises from the following set of considerations: Death, especially premature death, is a great harm to the
one who suffers it, while the provision of a very short amount of life, especially life of the sort one enjoys during the first few months after conception, is a relatively small benefit to the one who receives it.
So one who is conceived and then aborted is granted a relatively small benefit and then a relatively great harm, which seems to add up, on the whole, to a worse state than that of one who is not conceived in
the first place and who thus receives neither the small benefit nor the great harm. This argument is unacceptable for two reasons. In the first place, as Nagel has pointed out, “If death is an evil at all, it cannot
be because of its positive features, but only because of what it deprives us of” 1970: 1). But if saying that death is a great harm to the fetus amounts to saying that death deprives the fetus of great goods it
would enjoy if it were to go on living, then this provides no support for the claim that the fetus would have been better off still had it enjoyed no such goods in the first place. 34 In addition, the argument
would seem equally to imply that a six-year-old child who leads a happy life and then dies in her sleep would have been better off never having been conceived. After all, the totality of the goods she is
deprived of by death is much greater than the totality of goods she has so far enjoyed, so if the harm of death consists in the greatness of the good it deprives one of, then this would mean that the harms in
her life greatly outweigh the benefits. But as tragic as her death is, the critic of abortion will surely be unwilling to insist that she would have been better off never having been conceived. Of course, it is
open to the proponent of the responsibility objection to attempt to articulate and defend a conception of the nature of death on which it turns out both that the fetus is worse off being conceived and then
dying in the womb than not being conceived and that this is not so of the sixyear-old who dies in her sleep. But in the absence of such a defense, the attempt to undermine my argument against the
responsibility objection by apealing to such cases as Imperfect Drug III is unsuccessful on the abortion critic’s own terms. A second objection to the argument I have developed to this point would be to insist
that there can be cases in which you do a voluntary act such that you are responsible in sense (1 ) but not in sense (2 ) for the fact that another person now stands in need of your assistance, keeping the
person alive is not needed in order to make him at least as well off as he would have been had you not done the voluntary act in the first place, and yet it is nonetheless still the case that the person in question
has acquired the right to your assistance. Langer offers what seems to be a plausible example of just this sort of case: his relationship with his one-year-old son (1993 : 351— 2): I am responsible for his
existence, but I am not responsible for the condition in which he finds himself. ... He is in a condition which requires constant physical attention, long-term financial aid, and significant psychological nurture
... I have caused his existence, but I certainly have not caused him to be in this terrible, needy condition. Do I not have an obligation to care for his needs? This is plainly a case in which an individual is
responsible for the fact that another now exists (since if Langer had not had intercourse, his son would not now exist) and is not responsible for the fact that the other is needy, given that he exists (since there
was no option available to Langer when his son was conceived on which his son would both exist now as a one-year-old and not be in this needy condition). And (I am assuming) it is also a case where it is
not true that if the child were to die today this would leave him worse off than if he had never been conceived. So if the claim I have to this point been using against the responsibility objection is true, then
Langer has acquired no obligation to care for his child. But Langer takes it that we will think that he does have such an obligation since “the laws and moral intuitions of our society strongly oppose child
abandonment” (1993 : 352). And if that is so, then an individual can acquire the right to your assistance even in cases where a voluntary action of yours makes you responsible for his existence but not for his
neediness given that he exists, and in which your assistance, although needed to keep him alive, is not needed in order to make him at least as well off as he would have been had you not done the voluntary
                                                                                               . Let us assume that we agree that you
action in the first place. And this seems precisely to describe the case of the woman whose pregnancy results from voluntary intercourse

have a duty to care for your one-year-old son in such circumstances. 35 It does not follow from this that the
individual in need always acquires the right to your assistance when you are responsible for his existence and
not responsible for his neediness given that he exists. It follows only that he sometimes acquires this right in such cases. This concession would indeed force a
further revision in the claim I have been defending as an argument against the responsibility objection. I would now be unable to insist that an individual’s being worse off than he would have been had you
not done the voluntary action is necessary in order for the individual to acquire the right to your assistance in those cases where your voluntary action makes you responsible for the fact that he exists but not
for the fact that he is needy given that he exists. However, even this revision, strong as it is, does not suffice to rescue the responsibility objection from the problem I have identified. The objection,
remember, claims that nonrape cases are relevantly different from rape cases because they differ in terms of responsibility in sense (1 ) only. The objection is forceful, then, only if being responsible in sense
(1 ) is, in and of itself, enough to make the difference between an individual’s acquiring the right to your assistance and his not acquiring it. Your being responsible for the needy person’s existence, that is,
must be a sufficient condition for the individual’s acquiring the right to your assistance. But the fact (assuming that it is a fact) that the needy individual can sometimes acquire the right to your assistance in
cases where you are responsible for his existence but not for his neediness, given that he exists, does not show that your being responsible for his existence is, in and of itself, sufficient for him to acquire that
right. The argument presented above still shows that your being responsible in this sense is not sufficient to generate this right since it does not generate this right in the case of Imperfect Drug I. If the right
to assistance is only sometimes acquired in cases in which you are responsible for the fact that the other exists and not responsible for the fact that he is needy given that he exists, then your being responsible
for his existence in itself is sufficient for the acquisition of the right only in conjunction with (and perhaps only because of) some additional considerations. And the burden would then be on the proponent of
the responsibility objection to show that these other considerations obtain in the case of pregnancy arising from voluntary intercourse and not just in the case of the father who is raising a one-year-old.
Unless it is shown that these further considerations do obtain in both cases, the claim that the individual sometimes has a right to your support in cases where you are responsible for his existence but not for
his neediness given that he exists (as in the case of the one-year-old) is too weak to undermine my argument. For that claim is perfectly consistent with the claim that the mere fact that the woman in nonrape
cases is responsible for the fetus’s existence but not for its neediness given that it exists is not sufficient to provide the fetus in such cases with a right to the use of the woman’s body if the fetus in rape cases
does not have such a right. And there is good reason to doubt that such a case could be made. For, somewhat ironically, what seems plausible about the tacit consent objection seems to come back to haunt
the responsibility objection. After all, it is surely plausible to suppose that a mother (to switch back to the woman’s perspective and keep the analogy tighter) who brings a baby to term and takes it home
with her has tacitly agreed to care for it. Nothing that was said against the tacit consent objection would count against this claim, since voluntarily bringing a baby into one’s home is voluntarily bringing
about the state of affairs in which the baby is under one’s care, while voluntarily having intercourse is only acting in a way that foreseeably may lead to the further state of affairs in which there is a
developing fetus in the womb. And if this is so, then we can account for Langer’s duty to his one-year-old son while showing that the conditions sufficient for his son to acquire the right to his assistance do
not obtain in the case of the woman whose pregnancy results from voluntaryintercourse. Wecansaythatthemother( andfather) oftheoneyear-old owe care to their child either because (a) such a duty follows
from tacit consent alone, which is reasonably inferred from bringing the child home after it is born but not merely from engaging in voluntary intercourse (in which case the fact that the parent is responsible
for the fact that the child exists is entirely superfluous to accounting for the child’s right to assistance from his parent), or because (b) such a duty follows from tacit consent only when it is conjoined with
responsibility in sense (1 ) (in which case the fact that the parent is responsible for the fact that the child now exists is necessary but not sufficient for the child’s having such a right). The first of these two
accounts seems far more plausible, since (b) is difficult to square with the assumption that the duty adoptive parents have to the children they adopt is the same as the duty biological parents have to the
children they conceive. 36 But choosing between the two accounts is not necessary: On either one, the morally relevant distinction that explains why the parent of a one-yearold son has a duty to care for him
while the victim of rape does not have a duty to care for her fetus would fail to distinguish the woman whose pregnancy arises from rape from the woman whose pregnancy arises from voluntary intercourse.
37 A third objection to my argument against the responsibility objection focuses on the sorts of examples I have used in trying to show that there is a morally relevant difference between the two senses of
responsibility I have identified. 38 In trying to show that there is an important difference between these two kinds of responsibility, I have to this point followed the sort of example exploited by Silverstein,
in which you are the violinist’s doctor and the violinist has not acquired the right to your assistance in cases, such as Imperfect Drug I, in which you are responsible for the fact that he now exists, but are not
responsible for the fact that he needs your assistance given that he exists. My argument, in short, has turned on the claim that although cases of voluntary intercourse which result in pregnancy are relevantly
different from Thomson’s violinist case, they are relevantly like Imperfect Drug I rather than Imperfect Drug II or Imperfect Drug III. But it is open to a proponent of the responsibility objection to agree that
voluntary intercourse is like Imperfect Drug I in this particular respect, but to insist that there is a much more important sense in which the cases differ and which undermines the analogy. In particular, there
is the following difference between a woman who voluntarily conceives and then aborts a fetus, and you when you voluntarily cure and then later refuse to save an ailing violinist: In curing the violinist, you
greatly benefit him, providing him with several more years of valuable experiences that he would otherwise not have had. When the woman conceives the short-lived fetus, she does not benefit it at all, since
it will not go on to have any valuable experiences that it would otherwise not have had. This fact can be used to undermine the sort of example I have been borrowing from Silverstein in a few distinct ways.
One could argue that since you have already greatly benefitted the violinist, you have no duty to benefit him further, while since the woman has not yet benefitted the fetus, she does have a duty to so benefit
it. One could argue that your motives in saving the violinst were benevolent, whereas the woman’s motives in engaging in intercourse were not. And, most forcefully, one could argue that you were morally
obligated to cure the violinist, whereas the woman was not morally obligated to engage in voluntary intercourse. The voluntary act that rendered you responsible for the fact that the violinist now exists was
the act of giving the violinist the only drug available that could save his life, and it would have been morally impermissible for you to have failed to give the violinist the drug. But the voluntary act that
rendered the woman responsible for the fact that the fetus now exists was the act of engaging in sexual intercourse. And the woman surely had no moral obligation to do that. So one could argue that the
reason the violinist does not acquire the right to the use of your body in Imperfect Drug I is not because you are only responsible in sense (1 ), but because of the way in which it came to be the case that you
are only responsible in sense (1 ). Because you were morally required to give the violinist the drug, your giving him the drug cannot confer on him a further right to your assistance that he would not
otherwise have had. But because the woman whose pregnancy results from voluntary intercourse was not morally required to engage in voluntary intercourse, her engaging in voluntary intercourse can
confer on the fetus a right to her further assistance that it would not otherwise have had. Thus, one could agree that the violinist has the right to your assistance in Imperfect Drug II but not in Imperfect Drug
I, and also agree that it is Imperfect Drug I rather than Imperfect Drug II that resembles the case of voluntary intercourse in terms of both senses of responsibility, and still conclude that the woman’s
voluntarily acting in a way that makes her responsible for the fetus’s existence is itself sufficient for the fetus to acquire a right to her assistance, while your voluntarily acting in a way that makes you
responsible for the violinist’s existence is not sufficient for the violinist to acquire a right to your assistance in Imperfect Drug I. I believe that this objection to the examples I have appealed to is successful,
and that the argument against the responsibility objection as I have thus far developed it cannot be sustained for that reason. I have nonetheless presented the argument to this point in terms of examples
adapted from Silverstein’s discussion for two reasons. First, they provide a natural way to bring out the distinction between the two senses of responsibility at issue, since the strategy involves appealing to
cases where one’s act extends a person’s life and performing such acts is typical of what doctors do. Second, it is important to see the flaw in Silverstein’s examples before asking whether the examples can
                                                                                   even defenders of the good
successfully be modified. The reason for this is that the examples can, in fact, be successfullymodified. Andseeinghowthiscanbedonerevealshoweasily

samaritan argument such as Silverstein can be mistakenly led to attribute a greater degree of responsibility to the
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pregnant woman than the circumstances warrant. In particular, when your voluntary act causes you to be
responsible for the fact that the violinist exists in Imperfect Drug I, your act deliberately brings about the state of
affairs in which the violinist is still alive. You give him the drug, after all, in order to save him. But when the
woman’s voluntary act causes her to be responsible for the fact that the fetus exists, this is not so. She does not
deliberately bring about the state of affairs in which the fetus is now alive. Rather, she deliberately brings about
the state of affairs in which she is now enjoying sexual intercourse, while foreseeing that the state of affairs in
which there is a fetus alive and dependent on her may later result.




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                Answers to: “We let the violinist die, we kill the fetus”
1) AT LEAST ONE ABORTION METHOD INVOLVES “LETTING DIE”

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 188

The responsibility objection and the tacit consent objection to the good samaritan argument both turn on the
claim that there is a morally relevant difference between the way in which the relationship between you and the
violinist begins in Thomson’s example and the way in which the relationship between the pregnant woman and
the fetus begins in cases where the pregnancy results from voluntary intercourse. I have argued that although
Thomson herself fails to satisfactorily address these objections, the objections themselves should nonetheless be
rejected. Two of the most powerful further objections to the good samaritan argument turn on the claim that
there is a morally relevant difference between the way in which the relationship beween you and the violinist
ends when you unplug yourself in Thomson’s example and the way in which the relationship between the
pregnant woman and the fetus ends when a woman has an abortion. The first objection maintains that there is a
morally relevant difference between killing a person and letting a person die, and that abortion kills the fetus
while unplugging yourself merely allows the violinist to die. The second objection maintains that there is a
morally relevant difference between intentionally causing a person’s death and foreseeably causing a person’s
death, and that abortion intentionally causes the fetus’s death while unplugging yourself merely foreseeably
causes the violinist’s death. I will consider the first of these objections in this section and the second in the
following section… The first thing that can be said is that even if one acepts the moral relevance of the
distinction between killing and letting die, there is at least one method of abortion, hysterotomy, that is more
plausibly described as a case of letting die rather than a case of killing. Hysterotomy involves removing the
living fetus through an abdominal incision of the uterus and then allowing it to die. This procedure is more
invasive and more dangerous to the woman than are other procedures, and for this reason it is typically reserved
for later stages of pregnancy when other techniques are no longer feasible. But there is no reason in principle
why it could not be performed much earlier, if other methods were thought for some reason to be morally
impermissible. 44 In addition, a woman with an unwanted pregnancy could always have a hysterectomy,
removing both the uterus and the fetus within it. This would again permit her to be detached from the fetus
without having to kill the fetus before or in the process of removing it. It would, again, be more invasive and
dangerous, and would leave her unable to have children in the future, but the point remains that it is an available
method of terminating a pregnancy that is more plausibly characterized as a case of letting die rather than a case of killing. In both of
these cases, abortion seems simply to be a means by which a woman who has been providing needed life support to the fetus she is carrying can effectively discontinue her
provision of such support; and when an agent discontinues providing another with needed life support, this seems clearly to be a case of letting die rather than of killing. 45 So if
underestimating the significance of the distinction between killing and letting die were taken to be the primary or decisive objection to the good samaritan argument, then its
critics could at most establish that some but not all methods of abortion are morally permissible. And this would not impugn the good samaritan argument in defense of abortion
any more than the claim that some forms of execution are immoral would undermine an argument in defense of the permissibility of capital punishment. 46 This is, admittedly, a
contingent fact about abortion, but it is a fact about abortion nonetheless.




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          Answers to: “We let the violinist die, we kill the fetus”

REMOVING THE FETUS ALLOWS THE DEATH TO OCCUR

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 195

When you unplug yourself from the violinist, that is, “The fatal sequence resulting in death is not initiated but is
rather allowed to take its course.” But the case of abortion, she argues, is “completely different. The fetus is not
in jeopardy because it is in its mother’s womb; it is merely dependent on her in the way children are dependent
on their parents for food. An abortion, therefore, [even by hysterotomy] originates the sequence which ends in
the death of the fetus” (1984 : 288— 9). The problem with this argument is that Foot fails to establish that the
act of removing the fetus from the womb is the act that originates the fatal sequence of events in the case of
procedures such as hysterotomy. To point out that the fetus while in the womb is not in jeopardy does not
suffice to establish that the act of removing it from the womb is the act that originates the fatal sequence. After
all, the violinist while plugged into you is not in jeopardy either, and the act of unplugging yourself is not the act
that originates the fatal sequence in that case: It merely allows a preexisting sequence to continue. Unplugging
yourself results in the violinist’s death only because his condition is such that he cannot survive on his own, and
thus the act that originates the fatal sequence that you allow to continue is whatever act led to its being the case
that the violinist had this condition. Similarly, then, since removing the fetus from the womb results in the
fetus’s death only if his condition is such that he cannot survive on his own, the act that would count as initiating
the fatal sequence should be the act that led to its being the case that the fetus had this condition. Let us suppose
that the fetus dies after it has been removed because its lungs are insufficiently developed to breathe on its own.
Then whatever caused the fetus to have such poorly developed lungs at this point in time is what initiated the
fatal sequence. And since it is presumably part of the normal course of things that a fetus at an early stage of
gestation has lungs of this level of development, the act which causally led to this state of affairs was simply the
act of conceiving it in the first place. This means that removing the fetus from the womb does not initiate the
fatal sequence of events but merely allows the death to occur, which would have occurred in any event once
conception had occurred if the woman had not been sheltering the fetus.




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     Answers to: “The Violinist Was Sick Beforehand, The Fetus
                              Wasn’t”


IRRELEVANT – YOU STIL WOULDN’T BE RESPONSIBLE TO THE VIOLINIST EVEN IF HE WAS
DOING WELL BEFORE HE WAS PLUGGED IN TO YOU

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 196

One arises from the fact that the fetus has been in the womb from the beginning of its existence, while the
violinist was sick before he was plugged into you. So one might argue that there never was an already existing
fatal sequence in the case of the fetus but that there was an already existing fatal sequence in the case of the
violinist. And this would imply that removing the fetus does initiate the fatal sequence of events in the case of
hysterotomy while unplugging yourself from the violinist does not. But this difficulty can be avoided merely by
revising Thomson’s story in the following way: You wake up in the morning and discover that last night some
practical jokers kidnapped you and plugged you into a perfectly healthy violinist. In the middle of the night,
though, his kidneys unexpectedly failed as a result of a predisposition to such failure that he inherited
genetically. As a result, you must remain plugged into him for nine months or he will die. Surely if you think it
is permissible to unplug yourself from the violinist in Thomson’s version, you will think it permissible to unplug
yourself in this version. What difference could it make whether the violinist got sick before or after he was
plugged into you? But this version renders the violinist case just like the fetus case in terms of the chronology of
the fatal sequence. There was never a time when the violinist was in danger of dying before he was plugged into
you, just as there was never a time when the fetus was in danger of dying before it was in the womb. If you
unplug yourself in this case, are you initiating a fatal sequence or allowing one to continue? I am inclined to say
that you are allowing to continue a fatal sequence of events that began when the violinist was conceived with
this genetic disposition, and if this is what we say, then we should similarly say that removing the fetus allows to
continue a fatal sequence of events that began when the fetus was conceived with the genetic disposition to have
insufficient lung development for independent survival at an early stage in its development.




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          Answers to: “We let the violinist die, we kill the fetus”
DOESN’T MATTER – THE VIOLINIST ARGUMENT STILL APPLIES

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 198-9

My characterization of hysterotomy as allowing a preexisting fatal sequence of events to continue rather than as
initiating a new fatal sequence of events may also be denied for a second reason: It seems tantamount to saying
that all of life is a process of dying, and this can seem to stretch the notion of dying beyond its normal meaning.
I am not myself convinced that this counts as a problem for the analysis I am proposing. A person whose death
does not arise from some external cause does eventually die, and it seems to me that the beginning of his dying
cannot non-arbitrarily be located at any point other than the point when he began to exist. And I suspect that
what resistance there might be to my characterization arises from an ambiguity in such terms as fatal, lethal, and
threatening. In one sense, these terms suggest a force that is external to the victim and not a natural part of his
existence. In this sense, there is no such preexisting sequence in the case of the healthy fetus while there is in the
case of the unhealthy violinist. But in another sense, such terms refer to whatever ultimately causes it to be the
case that a death is going to occur which would otherwise not have occurred. This is the sense in which there
seems to be a morally relevant difference between initiating such a sequence and allowing one to continue, and
in this sense the fetus in the woman’s womb is just as threatened as is the violinist plugged into you. In both
cases, an act has already initiated a sequence of events in which an individual now stands in need of life support
and will die if that support is discontinued. But even if we reject this characterization and insist that there is no
meaningful sense in which the fetus in the womb is threatened, the attempt to exploit Foot’s analysis as a means
of defending the killing versus letting die objection to the good samaritan argument must still be rejected. For if
we agree that there is no preexisting threat to the fetus whose death comes about because it is prematurely
removed from the womb, then we must equally agree that there is no preexisting threat to the young infant
whose death comes about because nobody feeds it. Surely a person who fails to feed a hungry infant allows it to
die and does not kill it, and so the result will then be that there need not be a preexisting threat to someone in
order for it to be the case that by declining to provide support for him we do not kill him but rather let him die.
48 If this is the case, then, again, the distinction between initiating a fatal sequence of events and allowing one
to continue is not the one we are looking for when we agree that there is a morally relevant difference between
Rescue I and Rescue II, and so it will not matter if that distinction picks out a difference between hysterotomy
and the case of you and the violinist. The distinction itself will be morally irrelevant. So whether we characterize
hysterotomy as killing or as letting die or as a peculiar kind of variation of one or the other, the central claim
made by the good samaritan argument will again remain intact: The cases of the woman and the fetus and of you
and the violinist remain morally on a par even if killing is substantially worse than letting die.




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          Answers to: “We let the violinist die, we kill the fetus”
NO SIGNIFICANT DISTINCTION BETWEEN KILLING AND LETTING DIE

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 201

The something more stems from two thoughts. The first is the thought that any plausible defense of the claim
that killing is worse than letting die must be part of a more general defense of the claim that causing harm is
worse than allowing harm to happen, that it is worse to cut off a man’s arm than to refrain from preventing it
from being cut off, worse to give him a drug that will make him ill than to refrain from giving him an antidote
when he has accidentally swallowed such a drug, and so on. The second is the thought that a plausible defense
of the claim that causing harm is worse than allowing harm will at some point depend on the claim that when
you cause harm to someone, you make him worse off than he would have been had you not happened on the
scene, while if you merely allow harm to come to him as a result of an action that someone else has already
initiated, you leave him no worse off (though also no better off) than if you had never come along. 50 In Rescue
II, when you run over the trapped healthy person, you leave him worse off than he would have been had you not
come along in the first place. Had you not come along in the first place, he would have freed himself from the
track before another trolley came along. But in Rescue III, as in Rescue I, you do not leave the person who ends
up dead worse off than he would have been had you not come along in the first place. In both cases, the person
who ends up dead needed your assistance to go on living, and and so in both cases, they would have ended up
dead even if you had not come along in the first place. In this sense, you do not cause harm to the dying man by
running over him in Rescue III, while you clearly do cause harm to the healthy man by running over him in
Rescue II. And so the reason that is most likely to be invoked in support of the moral relevance of the difference
between merely allowing harm by letting someone die in Rescue I and causing harm by killing someone in
Rescue II fails to establish that killing is impermissible in Rescue III and cases relevantly similar to it. Cases of
abortion that involve killing the fetus prior to or in the act of removing it rather than the substantially more
invasive method of hysterotomy are relevantly like the killing in Rescue III. And so the claim that there is a
morally relevant difference between Rescue I and Rescue II, the claim at the heart of the killing versus letting
die objection, fails to undermine the good samaritan argument as a defense of these methods of abortion.




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              Answers to: “The Violinist Analogy Is About an Adult”

NO MORALLY SIGNIFICANT DISTINCTION BETWEEN AN ADULT AND AN INFANT

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 234-5

Another potential problem with the good samaritan argument arises from the following consideration: The individual whose life is dependent on you in the
violinist story is a fully developed adult while the individual whose life is dependent on the woman in the case of an unwanted pregnancy is an
underdeveloped infant. This difference is significant because it is plausible to suppose that infants have a stronger right to assistance from others than do
adults. And if this is so, then the permissibility of declining to assist a fully developed adult will fail to establish the permissibility of declining to assist a
developing infant in relevantly similar circumstances. This consideration has not been widely marshalled as an objection to the good samaritan argument
in particular, but the comparison between the responsibility a pregnant woman has to support the fetus she carries and the responsibility she has to care for
an abandoned baby left outside her door is one that arises frequently in the literature against abortion independent of discussions of the argument (e. g.,
McFadden 1996: 116), and it is at times used in the context of defending other objections to the argument (e. g., Beckwith 1992: 116, in his defense of the
killing versus letting die objection). It might be objected that the difference cited by this objection cannot pose a problem for the good samaritan argument
because that argument is limited to the claim that the impermissibility of abortion does not follow from the claim that the fetus has the same right to life as
you and I. And even if we agree that infants have greater rights to assistance than do adults, we will surely not insist that they have a greater right to life.
But this observation alone is insufficient to vindicate the argument. On Thomson’s account, at least, the right to life is the right not to be killed unjustly.
When you unplug yourself from the violinist, you do not violate his right to life because you kill him by depriving him of something to which he has no
right. But if you kill someone by depriving him of something to which he does have a right, say, by taking away some of his legitimately acquired
property, then you do violate his right to life. And the claim that infants have a greater right to assistance than do adults entails that it is possible that
aborting the fetus kills it by depriving it of assistance to which it does have a right, even though unplugging yourself from the violinist kills him by
depriving him of assistance to which he does not have a right. As a result, more must be said to overturn the adult versus infant objection. And more can
be said. The first thing that can be said is that we need some account of the source of the greater right to assistance that infants have. It is difficult to
imagine that this account will succeed unless it turns on the claim that infants are more in need of assistance than adults. And if this is how the account
works, then it is difficult to see how it will avoid the implication that even though violinists in general lack so strong a right, this violinist in particular has
it. This particular violinist, after all, is every bit as helpless as a newborn infant. But suppose that this response is unsatisfying. In that case, we can simply
modify Thomson’s analogy. Suppose that the violinist you find yourself plugged into is a three-year-old prodigy. Assuming that we agree that children
have a greater right to assistance than do adults, then even if we believe that the adult violinist has a weaker right to assistance than do small children, we
won’t believe that of this particular violinist. Yet if you agree that it would be morally permissible for you to unplug yourself from the adult violinist, it is
difficult to believe that you would find it impermissible for you to unplug yourself from the three-year-old. Emotionally, you may well find that
unplugging yourself from a child is more difficult than unplugging yourself from an adult, and it might be argued that unplugging yourself from a child
would involve a kind of coldheartedness that would not have to be involved in Thomson’s violinist case. But even if we were to agree with all of this, this
would still fail to undermine the good samaritan argument.




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Answers to: “You Have to Be Bedridden to Save the Violinist, Not
                     to Save the Fetus”
NO MORALLY SIGNIFICANT DIFFERENCE OF BURDENS

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 236-7

Another difference between the two cases is fairly straightforward: In Thomson’s story, you must remain bedridden for nine months in
order for the violinist to survive, but this is not so in a typical case of pregnancy. There are numerous burdens imposed on a woman who
is pregnant, of course, as there are burdens imposed on you in Thomson’s story, but the burdens are not the same. Does this difference
weaken the good samaritan argument? John Martin Fischer has presented an argument that attempts to demonstrate that it does, by
appealing to the following variant on Thomson’s case. 62 Suppose you are already in a hospital room recovering from major surgery and
will have to remain in bed for nine months in order to recuperate. A great violinist is then brought into your room, and everything
proceeds as in the original story. Fischer urges that in this “surgery case” it would be impermissible for you to unplug yourself from the
violinist. And yet, he points out, the violinist would be making use of your body here in precisely the same way as he would in
Thomson’s version. Fischer concludes from this that it is not “the right to decide what happens in and to one’s body” that drives our
intuitions in Thomson’s original example. Rather, it is the extent to which your being forced to remain attached to the violinist is
disruptive of your various plans and projects, hinders what he refers to as your self-determination. In Thomson’s example, this disruption
is great; in Fischer’s variant, it is marginal (Fischer 1991: 7— 8). And so, in Thomson’s example you are permitted to unplug yourself,
while in Fischer’s you are not. This creates a problem for Thomson’s analogy, Fischer then argues, because “it is not evident that
pregnancy is properly treated as relevantly similar to [Thomson’s] violinist case rather than the surgery [variant]” when we compare the
cases in terms of their hindering the agent’s self-determination. And indeed, he suggests that it is “not unreasonable” to suppose that
typical pregnancies are “much more” like his version than they are like Thomson’s (Fischer 1991: 10). If this is so, then concluding that
we may unplug ourselves from Thomson’s violinist provides very weak support for the claim that in typical cases a woman may seek an
abortion. Fischer’s objection consists of three claims: that unplugging yourself is permissible in Thomson’s story but not in the surgery
variant; that this is best explained by appealing to the difference in the level of threat to self-determination in the two cases; and that,
judged by this criterion, typical pregnancies are in fact substantially more like the surgery variant than like Thomson’s example. There
may be some room to question the third claim, and it is not clear that Thomson herself would accept the first (since she might argue that
in this case it would be indecent of you not to help the violinist, but not a violation of his rights), but I will assume, at least for the sake of
the argument, that Fischer is correct about these and focus here on the second. So let us suppose that we agree with Fischer that it would
be morally impermissible for you to unplug yourself in the surgery variant. Why should this be so? Presumably, Fischer is right that this
must be because the cost to you is so minimal in the surgery variant and so great in Thomson’s story. But I do not see why the only sort
of cost that can be invoked to explain the distinction must be cashed out, as Fischer does, in terms of self-determination. For suppose
Fischer is right to limit the relevant considerations in this way, and then consider the following further variation: You are already in a
hospital room recovering from major surgery and will have to remain in bed for a week in order to recuperate when the famous violinist
is brought in and is plugged into you for a week. So the procedure imposes no cost on you in terms of selfdetermination. However, your
recovery was expected to be completely painless, and if you don’t unplug yourself soon the procedure will cause you a great deal of
physical pain over the next seven days. Call this the “painful” variant. I suspect that most of us do not believe that you violate the
violinist’s right to life by unplugging yourself in this case. We do not, for example, think that it is morally impermissible for a person to
refuse to undergo the very painful procedure involved in removing some bone marrow, even if he is already in the hospital anyway and
could prevent someone else, even a famous violinist, from dying by doing so. Yet on Fischer’s account, we would be forced to agree that
the violinist has a right to your bone marrow since you have to be in the hospital anyway even if extracting it will cause you great pain. I
conclude from this that the more reasonable explanation of our differential responses to Thomson’s story and Fischer’s variant, assuming
that we have a differential response, involves appealing to the total cost to you in each case and not just to the cost in terms of restricting
your self-determination. And once we accept this, we can make Thomson’s story sufficiently like a typical case of pregnancy without
losing the intuitive response to it on which the good samaritan argument depends. Indeed, there is a simple, if somewhat contrived, way
to make the story sufficiently like a typical case of pregnancy. Suppose (to offer one final variation) you wake up in the morning and find
that you have had implanted in you what I will call a “pseudo-zygote.” A pseudozygote behaves in exactly the same way that a zygote
does: If left in your body, it will develop into a pseudo-embryo and then pseudo-fetus, and will continue to grow for approximately nine
months, having all of the same effects on your body as a genuine fetus would have before it finally induces contractions and is delivered
in an equally painful manner. The only difference between a zygote and a pseudo-zygote is that the pseudo-zygote is a purely artificial
device: It is not living, it is not conscious, it has no moral standing. So under ordinary circumstances, you would have no qualms
whatsoever about having it removed from you even if doing so meant destroying it in the process. But when you wake up in the morning,
you find that the circumstances are not ordinary. For it turns out that there is a famous violinist somewhere who is dying of a rare disease.
And it also turns out that the only way for him to be cured is for him to receive an injection of a very rare synthetic serum. It turns out, in
addition, that the only way to generate the serum is to allow a pseudo-zygote to develop to term and then to extract the serum from the
pseudo-fetus (pseudo-infant?) after it is “born.” Finally, and unfortunately for you, it also turns out that you are the only person whose
body is capable of keeping the pseudo-fetus “alive” for the requisite nine months of development. So either you bring the pseudo-fetus to
term and give “birth” to it and the violinist lives, or you remove the pseudo-fetus and the violinist dies. The pseudofetus itself, remember,
has no moral standing. The only issue is whether you are obligated to incur the cost of carrying it to term where removing it prematurely

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effectively kills the violinist and bringing it to term amounts to saving the violinist. Acknowledging that you would have such a duty
unless there was some nontrivial cost to you, you ask the doctor what you can expect to happen over the next nine months. You are told
that it is reasonable to expect the following to occur in typical cases63: Physical Costs: You will almost certainly suffer at least some of
the following common symptoms over the next nine months: fatigue, nausea, vomiting, frequent urination, excessive salivation,
heartburn, indigestion, flatulence, bloating, constipation, headaches, faintness or dizziness, food aversions and cravings, varicose veins,
cramps, body aches, hemorrhoids, bleeding gums, backache, skin blotching, swelling especially of ankles and feet, itchy abdomen,
shortness of breath, difficulty sleeping, clumsiness, nosebleeds. In addition, you will certainly gain weight over nine months to the point
where you will experience discomfort and difficulty moving; you will also have to endure the process of losing the weight afterwards or
suffer long-term health consequences. Also, you will find that you will be very restricted in the medications you will be permitted to take;
if you suffer from allergies, for example, you may well find that you’ll just have to live with the symptoms, as well as many of the
symptoms already described. Finally, there will be a period of at least a few hours and quite possibly many more than this during which
you will experience physical contractions about which nearly every other person who has undergone this procedure has said, “It was the
most excruciating pain I have felt in my entire life.” There will then be a slow process of recuperation during which you will at the least
be exhausted and sore, and may also have to recover from some minor incisions that are routinely done to facilitate the procedure.
Autonomy Costs: You will only have to spend the very end of these nine months in a hospital bed (or equivalent); still, there are a number of other restrictions on your self-
determination you should be aware of. You won’t be allowed to smoke or use recreational drugs and will be allowed to drink only moderately. You may well find this to be a substantial curtailment of your
freedom. You will also find that during the last month or so airlines may prevent you from flying and your health plan (assuming you have one) may forbid you from being more than a certain distance from
its favored hospital. Financial Costs: We’ll assume that your medical coverage is pretty good. Still, there are some things you’ll have to pay for out of your own pocket. For one thing, those clothes of yours
aren’t going to fit much longer. You’ll have to buy some that will only fit you for a short while and that tend to be rather expensive. You may also lose at least some wages. Psychological Costs: We should
also let you know that there will be a number of hormone changes during this period. So expect that at one point or another you will experience at least some of the following: irritability, mood swings,
weepiness, difficulty concentrating and remembering things, anxiousness, boredom, weariness, impatience. It is also extremely likely that you will experience substantial changes in your sexual appetite, and
it is not unusual to suffer a period of depression or let down after the procedure has been completed. I then ask: Do you really believe that it would be morally impermissible for you to remove and destroy
the pseudo-fetus? I do not know how to go about arguing the point, so I will merely state my suspicion that most people who agree that you may unplug yourself in Thomson’s original story will also agree
that you may “unplug” yourself here. If so, then the differences between the costs involved in a typical pregnancy and the costs involved in Thomson’s version of the story do not, contrary to Fischer’s claim,
make a difference to the strength of the good samaritan argument. 64 There is, however, one final twist that might be added to the objection. Although I have not seen the point explicitly raised in the context
of the good samaritan argument in particular, it is a common theme of much recent writing against abortion that having an abortion is itself both psychologically and physically unhealthy for the pregnant
woman. Reardon, for example, refers to research reporting evidence linking abortion to such stress-related consequences as “sexual dysfunction, depression, flashbacks, sleep disorders, anxiety attacks,
eating disorders, impacted grieving, a diminished capacity for bonding with later children, increased tendency toward violent outbursts, chronic problems in maintaining intimate relationships, difficulty
concentrating, and a loss of pleasure in previously enjoyed activities and people” (1996 : 142; see also Reardon 1987: chap. 4). 65 And packets of information prepared by organizations opposed to abortion
often include pamphlets and booklets with such titles as “How to Survive Your Abortion” and “Psychological Complications of Abortion” and references to books with such titles as “Every Woman Has a
Right to Know the Dangers of Legal Abortion” (McKinney et al. undated; LeBow 1986; Saltenberger 1982). In addition, abortion even at early stages of pregnancy is a surgical procedure and thus poses
attendant medical risks, which cannot in fairness be ignored. A booklet prepared by the Lousiana Department of Health and Hospitals, for example, cites such risks as pelvic infection, blood clots in the
uterus, heavy bleeding, cut or torn cervix, perforation of the uterus wall, and anesthesia-related complications (1995 : 16— 17; see also Reardon 1987: chap. 3). It also refers to studies providing evidence
that having an abortion increases a woman’s risk of devloping breast cancer (1995 : 17), a claim also made in pamphlets typically enclosed with materials provided by organizations opposed to abortion (e.
                1995). To set the analogy straight, then, we must specify that the process of unplugging yourself from the violinist also
g., Willke 1994; Brown
imposes a variety of costs or risks of costs, and of comparable magnitude. This modification seems to me worth including, but it does not
seem to undermine the strength of the good samaritan argument. It may have some bearing on whether or not women (or some women)
would be wise to have an abortion, but if it would be permissible to unplug yourself painlessly, it is difficult to see why it would not also
be permissible to unplug yourself at some cost to yourself in order to avoid the substantially greater cost of not unplugging yourself.




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    Answers to: “The Woman’s Organs Also Belong to the Fetus”


THE ORGAN OWNERSHIP OBJECTION IS FLAWED

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 242-3

One of the most interesting and least discussed objections to the good samaritan argument begins with the following suggestion: In the
case of you and the violinist, the claim that the kidneys that lie beneath your skin belong to you is essentially uncontroversial. But on the
assumption that the fetus has a right to life, it is perhaps not obvious that the organs that lie beneath the skin of a pregnant woman and
whose functioning is needed to keep the fetus alive belong exclusively to her. 67 This objection has been pressed by Wicclair (1981 ) and
Stone (1983 ) and has rarely been treated in the subsequent literature. Both Wicclair and Stone attempt to establish the plausibility of this
suggestion by asking us to consider the case of a species of rational beings (and thus, individuals with the same right to life as you or I)
whose natural means of reproduction in one way or another involves the life of one individual being temporarily dependent on the use of
an organ or set of organs contained in another. I will follow Stone’s example here, though the considerations involved would apply
equally to Wicclair’s. So consider a species of such beings who reproduce in the following way (Stone 1983: 82): upon reaching the age
of 70, each individual X divides into two distinct, full-sized individuals, Y and Z, who inherit none of X’s memories or acquired traits; X
in effect ceases to exist at this point and is replaced by Y and Z who are distinct, rational beings with a right to life from the moment of
fissioning on. As an evolutionary response to certain primordial environmental conditions, the new individuals are always formed in the
following manner: Y’s body contains a full set of functioning organs while some of the vital organs in Z’s body take nine months to
develop, and a band of flesh connects the two through which a common bloodstream enables Z to use the organs contained in Y’s body.
After nine months, when the organs inside Z’s body are able to function on their own, the band naturally dissolves and Y and Z go off on
their separate ways. Stone now asks us to suppose that we have just emerged as the Y in one such fissioning and propose to sever our
body from our partner, George, because we don’t wish to shoulder the burden of being hooked up to him for nine months and never
consented to giving him the use of, say, the liver in our body, in the first place. Am I entitled to “unplug” George? Surely not. For in this
case it seems plain that George has a claim on the continued use of my liver. From whence is this claim derived? I submit that George is
entitled to the continued use of my liver because (1 ) this use is necessary to sustain his life, and (2 ) my liver is part of the biological
equipment the use of which George acquired through the normal process of his biological creation, a process typical to his species.... we
both acquired its use through a normal instance of the process of biological creation typical to members of our species, a process which
functions to provide us both with its use. For both George and myself, this organ is part of the biological life-support system bequeathed
us by nature through the process of our own creation. (Stone 1983: 82— 3) And since these two conditions both obtain in the case of the
woman and the fetus, but the second does not in the case of you and the violinist, it follows that you may unplug yourself from the
violinist but the pregnant woman may not unplug herself from the fetus. The crucial step in the argument is clearly the claim that
condition (2 ) makes the difference between having a just claim to the use of an organ and not having such a claim. It therefore merits
closer scrutiny. Condition (2 ) makes two distinct claims: (i) that what George has acquired through this natural process is the use of the
liver, and (ii) that the fact that the use of the liver was acquired naturally as a part of the normal means of reproduction for his species
makes his claim to it legitimate. Both claims should be rejected. Let me begin with claim (i), and by noting the distinction between the
following two claims: (a) Z acquired the use of a particular organ through a particular process. (b) Z acquired something, which requires
the use of a particular organ, through a particular process. These two claims are not identical, nor does (a) follow from (b). For consider
the following example: Adam and Eve, through some unspecified process, each acquire the use of adjoining plots of land in a very hot
climate. Adam’s plot contains a tall, leafy tree, which produces shade over much of Eve’s plot of land. As a result, the plot of land
acquired by Eve is cool and its remaining cool requires the use of the tree on Adam’s plot of land. But this does not mean that Eve has
acquired the use of the tree. Only Adam has acquired that. As a result, what Eve has acquired through the process in question does not
justify a claim against Adam if Adam decides to chop down the tree. Suppose that keeping the tree alive is a substantial burden to Adam;
it would make life much easier for him to kill it or to remove it and let it die. But Eve will die from exposure to the sunlight unless Adam
waits nine months, after which Eve will have developed sufficient resistance to the sun. The fact that Eve has acquired the right to her
plot of land, the fact that the land she has acquired the right to is currently cool, and the fact that her land’s remaining cool requires the
use of Adam’s tree does not justify the claim that she has acquired the right to the use of Adam’s tree. Similarly, it does not follow from
the facts that through some process George has naturally acquired a supply of blood (which is at present healthy) and that the use of the
liver in your body is necessary for the blood to remain healthy, that George has acquired the right to the use of the liver in your body. The
facts are equally consistent with saying that what he has acquired is healthy blood coursing through his veins, blood that will continue to
be healthy just in case the band between you and George remains intact. And on this account, you are within your rights to withdraw
George’s use of your liver. This does not demonstrate that George has not acquired the right to the use of the liver. But it does show that
the facts as described do not provide any particular support for the claim that he has. But suppose that claim (i) is somehow vindicated.
There remains the problem of claim (ii). Stone emphasizes that George acquires whatever it is that he acquires through a natural process
that is a normal part of reproduction for his species. But why should this matter? Consider the following thought experiment. Every so
often, as a result of a nonnormal, atypical mutation in the process of human reproduction, a pair of conjoined (Siamese) twins is born.
Consider a set of such twins who stand in the same dependence relation to each other as do Y and Z. And suppose that you are the
independent one. If we are accepting that you are permitted to unplug yourself from Thomson’s violinist, then it is difficult to see how we

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can avoid also accepting that you are permitted to unplug yourself from your twin. Indeed, it seems likely that Stone has included the
“normal” proviso precisely to accommodate such intuitions. But now suppose that environmental factors slowly begin to favor those who
are disposed to produce conjoined twins. Over time, this will become normal. On Stone’s account, it would follow that once such
twinning became sufficiently normal, the independent member of each set of twins would have an obligation to support the dependent
partner. But this seems extremely odd. Why should the fact that a dependence relation was produced by a natural regularity rather than by
a natural mutation make any moral difference? I can think of only one possible answer, which is suggested by Stone’s use of the
expression “a process which functions to provide us both with its use” (emphasis added). If function is taken in a strongly teleological
sense, one might think that in the alien case you have to share the liver in your body with George because that is what alien livers are
there for in your species, while in the human case you don’t have to share the liver in your body with your conjoined twin because that’s
not what human livers are there for. But if the objection to the good samaritan argument ultimately rests on the assumption that the
woman’s body is by nature there for the fetus to make use of, then it simply begs the question it is attempting to settle, since the question
at issue here is precisely whether or not the fetus is entitled to make use of the woman’s body. I have argued here that the facts as Stone
describes them provide no reason to conclude that it would be morally impermissible for you to unplug yourself from George. But it is
also worth noting that even if I am wrong about this, Stone’s argument is still subject to a further objection. For the case of you and
George is in one important respect different from the case of a pregnant woman and fetus. In the case of you and George, both
individuals come to be making use of the organs in your body at the same time; there is no prior ownership. In this respect, you and
George are like two people who simultaneously arrive on some unclaimed land. But this is not so in the case of the pregnant woman. The
organs inside her body were provided to her by nature well before the fetus began to make use of them, just as the organs inside your
body in Thomson’s story were provided to you by nature well before the violinist began to make use of them. This seems to provide the
pregnant woman with a further reason for holding that the organs inside her body are hers that does not apply to Stone’s case of you and
George. And thus even if we were to agree with Stone that it would be morally impermissible for you to disconnect yourself from
George, this would still fail to undermine the good samaritan argument.




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   Answers to: “You Have to Provide Child Support to Your Kids

LAWS DO NOT COMPEL MEN TO AID CHILDREN

Laurence Tribe, law professor, Harvard, ABORTION: THE CLASH OF ABSOLUTES, 1992, p. 133

But even when a man might logically be called upon to make a roughly similar sacrifice, after his child is born,
our laws do not ever compel him to do so. Although the relationship between a parent and a child carries with it
more legal obligation than the relationship between two strangers, nowhere do we require a voluntary parent to
make, for an already born child, the kind of sacrifice some would have us impose on the pregnant woman in the
name of the fetus. Imagine, for example, a little girl who needs a liver transplant. Even if, because of tissue type,
only her father can provide a segment of liver that her body will not reject, our laws have never required any
such sacrifice of him.




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   Answers to: “You Have to Provide Child Support to Your Kids


THE CHILD SUPPORT OBJECTION IS FLAWED

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 246-7

There is yet another difference. In the case of you and the violinist, you are the only person who is being asked
to suffer a burden on the violinist’s behalf. If you agree to remain plugged in for nine months and the violinist
recovers, then he is off and on his way and the story is over. But in the case of the pregnant woman and the
fetus, there is someone else who may be called upon to make a sacrifice if the woman agrees to bring the fetus
to term: the baby’s father. The role of the father is conspicuously absent from Thomson’s story, and this
threatens to create a problem for the good samaritan argument for the following reason: If there is a sense in
which the father’s position is symmetric with the mother’s, and if we agree that the father has a duty to make
sacrifices on behalf of the child, then there is an equally strong reason for thinking that the woman has a duty to
make a sacrifice for the fetus, a reason that will go unnoticed in the violinist case. And this, in turn, might justify
the claim that you are entitled to unplug yourself from the violinist while the woman is not entitled to have an
abortion. This objection has been pressed by Beckwith, among others, who argues as follows: consider a man
who has a brief sexual encounter with a woman. Since he does not wish to become a father, he insists that they
use contraception, but the woman becomes pregnant despite their having taken every reasonable precaution.
Although the man remains unaware of this fact, the woman decides to bring the pregnancy to term. After the
baby is born, she tracks the man down and pleads for child support. He refuses. After all, he says, even though
he is partly responsible for the child’s existence, the fact that he used contraception shows that he did not wish
to accept the responsibilities of being a father. As a result of his refusal, the woman takes legal action against
him. As Beckwith points out, “according to nearly all child-support laws in the United States he would still be
obligated to pay support precisely because of his relationship to this child” (1994 : 164). The relationship that
underwrites this obligation, Beckwith emphasizes, is not the mere fact that he is the biological father of the
child. That would imply that sperm donors are also “morally responsible” for children conceived with their
semen, and Beckwith takes it that this is plainly implausible. Rather, “the father’s responsibility for his offspring
stems from the fact that he engaged in an act, sexual intercourse, that he fully realized could result in the
creation of another human being, although he took every precaution to avoid such a result” (1994 : 164). This is
precisely the same relation to which the pregnant woman stands to the fetus, and so if it is sufficient to generate
an obligation in the father, it must be equally sufficient to generate an obligation in the mother. There seems,
then, to be good reason to insist that the woman has a duty to the fetus, a reason whose presence is masked by
the absence of a figure comparable to the father in the case of you and the violinist. There are several problems
with this objection based on the obligation to pay child support. The first is that it conflates moral obligations
with legal obligations. It is clear from Beckwith’s comment about the sperm donor case that when he says the
father has an obligation in his example, he means a moral obligation and not merely a legal one. 73 And since
the good samaritan argument is an argument about whether abortion is morally impermissible, and not about
whether it would be morally permissible to make abortion illegal even if it is not morally impermissible, this is
what he must mean if his objection is to have any chance of succeeding. But the only support Beckwith provides
for this claim is the observation that there are many laws that would require the man to pay child support. And it
simply does not follow from this fact that the man stands under a moral obligation to pay such support. Now this
observation may at first seem to do little damage to Beckwith’s position for two reasons. The first is that we
surely have a negative moral response to fathers who pay no child support independent of the existence of laws
requiring them to do so. So it may seem that the appeal to such laws is not necessary to Beckwith’s position. But
while it is clear that we will find what such men do to be morally criticizable, it may seem less clear that what
they do is literally impermissible. If the man took reasonable precautions and made clear to the woman that he
was unwilling to become a father, then while we may still be justified in saying that he is now behaving selfishly
and callously, it may seem less clear that we would be justified in saying that he is violating the moral rights of
the child or of the woman. As in the case of a man who has given a child up for adoption, we may feel that it
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would be bad of him to shun the child if the child should later seek him out and wish to establish some sort of
relationship with him, but, again as with that case, we may nonetheless feel that he is not obligated to support
the child. The second reason that might be given for discounting the significance of the argument’s conflation of
moral and legal obligation is this. We are all familiar with the fact that we cannot read sound moral principles
directly off of the existence of legal statutes. Slavery was once legal but that doesn’t (and didn’t) make it
morally permissible. But Beckwith’s example is clearly very different. Although some might attempt to mount a
challenge to laws requiring reluctant fathers to pay child support, most will think them to be perfectly
appropriate, and any defense of the moral permissibility of abortion that rested on the claim that child support
laws are morally impermissible would be shaky at best, and unlikely to prove successful on the abortion critic’s
own terms. But the first objection I raised against the child support objection has no such implication. Even if
we agree that laws requiring such men to pay child support are morally proper, it still does not follow that such
men stand under any moral obligation to pay such support that is independent of their obligation to obey the law
generally. Consider, for example, a law requiring citizens to serve on juries. Such a law can impose a significant
burden on people (even when the slight compensation they are offered for their time is taken into account), but
most people accept such laws as morally permissible, and often as morally superior to the alternatives. But it
clearly does not follow from the fact that a statute creating a legal obligation for people to serve on juries is
morally permissible that in the absence of such a law people stand under a moral obligation to serve on juries.
And the same holds for Beckwith’s example. The claim that child-support laws are morally proper is perfectly
consistent with the claim that there is no independent moral obligation for such men to pay child support. And
so one might attempt to defend the good samaritan argument from the child support objection by agreeing that
laws requiring child support are morally proper and by agreeing that reluctant fathers who decline to pay such
support do something morally objectionable, but by nonetheless insisting that what they do is nonetheless
morally permissible. But let us nonetheless suppose, at least for the sake of the argument, that the man in
Beckwith’s example does have a genuine moral obligation to pay child support to the mother of the child he did
not wish to have. Given this assumption, the proponent of the child support objection maintains that it is
inconsistent for the defender of the good samaritan argument to then appeal to the fact that the pregnant woman
does not wish to have the child. As Pavlischek puts the claim, defenders of abortion as a legal right must “either
surrender the defense of abortion on demand and allow for the passage of laws restricting abortion, or surrender
the advocacy of paternal responsibility for children of mothers who choose to forego an abortion” (1993 : 342).
But the appearance of inconsistency here is misleading. It does not follow from the claim that the man has a
moral obligation to provide financial support for the child that the woman has a moral obligation to provide
bodily support for the fetus. For the nature of the burdens involved in providing support in the two cases is
fundamentally different. 74 And if the example is changed so that the difference is eliminated, the paternal
obligation objection is clearly undermined: It becomes plain that considerations that could warrant imposing one
sort of burden on a person would not be sufficient to warrant imposing the other sort of burden. Suppose, for
example, that in order for the child to survive, the father must go through the procedure I described in Section
4.9 in response to the different burdens objection: He must have a pseudozygote implanted in him and let it
develop into a pseudo-embryo and then pseudo-fetus before giving “birth” to it in a manner that parallels the
nature of childbirth as closely as is anatomically possible so that a life-saving synthetic drug may then be
extracted from it and given to the child. It goes without saying that no court would order him to undergo such a
procedure. Or suppose instead, more mundanely, that in order for the child to survive, the father would have to
undergo a painful series of bone marrow transplants, or have one of his kidneys removed. Again, the law would
surely not compel him to undergo such procedures. In the case of McFall v. Shimp (1978 ), for example, in
which a man sued his cousin for refusing to provide him with the bone marrow he needed in order to survive,
the United States Supreme Court wrote as follows: “For a society which respects the rights of one individual, to
sink its teeth into the jugular vein or neck of one of its members and suck from it sustenance for another
member, is revolting to our hard-wrought concepts of jurisprudence. Forcible extraction of living body tissue
causes revulsion to the judicial mind. Such would raise the spectra of the swastika and the Inquisition,
reminiscent of the horrors this portends.” 75 If the law did require such bodily sacrifices on the part of reluctant
fathers, and did so consistently, and if it also then refrained from requiring women with undesired pregnancies
to make comparable bodily sacrifices on behalf of their unborn children, then the charge of inconsistency here
would be prima facie quite powerful (assuming, of course, that the law purported to treat the fetus as an
individual with the same right to life as you or I, which it plainly does not). But given that the law does not
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impose such burdens on unwilling fathers, and given that virtually everyone would regard it as outrageous if it
did, the charge of inconsistency must be dismissed even granting the assumption that the fetus has a right to life.
A proponent of the child support objection might attempt to respond to this argument in two ways. One would
be to appeal to the claim that there is an important difference in probabilities: It is relatively rare that a man’s
engaging in intercourse leads to its being the case that there is a child who stands in need of some of his bone
marrow, but relatively common that a woman’s engaging in intercourse leads to its being the case that there is a
fetus who stands in need of the use of her body. So it might be argued that the child does not have a right to the
father’s bone marrow because the probabilities involved were so small, while the fetus does have a right to the
use of the woman’s body because the probabilities involved were relatively larger. But this response is
unacceptable on the abortion critic’s own terms: It would commit the critic to saying that whether or not the
fetus has a right to the use of the woman’s body depends on how likely it was that she would become pregnant
at the time she had intercourse, that whether or not abortion is morally permissible depends on the level of
fertility of the pregnant woman. And this is a concession that critics of abortion are unwilling to make. Beckwith
offers what might be seen as a second attempt to respond to this dissolution of the child support objection by
quoting with approval the following claim by Michael Levin: “All child-support laws make the parental body an
indirect resource for the child. If the father is a construction worker, the state will intervene unless some of the
calories he expends lifting equipment go to providing food for his children” (Levin 1986: 51, cited by Beckwith
1994: 164). The claim that such laws use the man’s body as an indirect resource is a plausible one, but it does
nothing to answer the argument against the child-support objection because it simply assumes that there is no
morally significant difference between the state’s using your body directly and its using your body indirectly.
And this assumption is unwarranted. In the first case, the state allows you to do anything you want with your
body, and then takes some of the money you receive in compensation for doing something productive with it
and spends the money to accomplish a particular task. In the second case, it forces you to use your body to
accomplish a particular task. Even if the tasks in the two cases are equally legitimate and worthy, it hardly
follows that if it is unobjectionable for the state to do one then it is unobjectionable for the state to do the other.
If the state determined that it would be in the public interest to build a new highway, for example, it would
hardly follow from the claim that it would be morally permissible for the state to take some of the money that
workers earn to help pay for the highway that it would also be morally permissible for the state to force such
workers to help to build the highway. And if a particular construction worker’s negligence were found to be
responsible for a particular house’s being destroyed, it would hardly follow from the claim that it would be
morally permissible for the state to take some of the money that he earns as a construction worker to help the
victim rebuild the house that it would also be morally permissible for the state to force the worker to rebuild it
himself. The state’s taking control over a person’s body is fundamentally different from the state’s taking
control over some of the money that a person earns while freely controlling that body. This is a claim that critics
and defenders of abortion both accept. Indeed, the force of this difference can be brought out even more clearly
by attending to a case that is even closer to those involving abortion: cases where child support is paid by a
woman. Suppose that a man and a woman have a child together, and that after a period of time, the woman
decides to leave the family. There are expenses involved in raising and caring for the child, and so the man sues
for, and is awarded, child support from the woman. Assume that the child has some significant medical needs,
so that all of the woman’s money is, in effect, going toward keeping the child healthy. This is a clear instance of
the sort of case about which most people will agree that it is morally proper to impose such an obligation on the
mother. But now suppose that instead of needing money to pay the medical bills, what the child needs is a new
kidney, or a bone marrow transplant. Again, the law clearly does not and clearly would not require a woman
under such circumstances to make such a sacrifice and, again, virtually everyone would regard it as outrageous
if it did. And imagine, finally, that the mother herself could not provide, say, the needed bone marrow, but that if
she were to conceive and bring to term a second child, the second child’s bone marrow would be suitable for
saving the life of the first child. There are, of course, a number of distinct and thorny ethical problems that are
raised by the prospect of a woman deliberately conceiving one child to use as a means for saving a second. But
even if we bracket these concerns off and assume that it would be perfectly permissible for a woman to conceive
and carry a child to term for such purposes, it is still clear that the law would never require her do so if she did
not want to because of the nature of the burden to her that would be involved. But this is just to say that even if
the law would require a woman to make significant financial sacrifices on behalf of her born child, it would not
require her to undergo the burdens of a typical unwanted pregnancy on behalf of that child. And so, once again,
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the existence and presumed legitimacy of child support laws, even if they are construed as evidence of an
underlying moral obligation to provide such support, does nothing to undermine the good samaritan argument.
There is no inconsistency in holding both that reluctant fathers (and mothers) should have a legal obligation to
provide financial support for their offspring and that pregnant women should have no legal obligation to carry
their pregnancies to term. And there is therefore no inconsistency in holding both that that reluctant fathers (and
mothers) have a moral obligation to provide financial support for their offspring and that pregnant women have
no moral obligation to carry their pregnancies to term. In a postscript to a revised version of his 1993 article,
Pavlischek responds to a 1997 article of mine in which I presented an earlier version of my responses to the tacit
consent and responsibility objections and in which I briefly replied in a footnote to Pavlishchek’s and
Beckwith’s defenses of the child support objection along the same general lines I have offered here (Pavlishchek
1998: 189— 92). Pavlishchek’s primary criticism of the position I have taken, in this section in particular and in
this chapter in general, is that my account leaves him “entirely perplexed” as to how the difference between the
“distinctly intimate and personal” nature of the physical burden on the mother and the purely financial nature of
the burden on the father can make a difference in whether or not the voluntariness of their initial actions can
suffice to generate an obligation on their part to undergo the burden in question (1998 : 190). And this seems to
be so for Pavlishchek, at least in part, because even if there is a noticeable difference in the nature of the burdens
involved, there may be relatively little difference in how onerous the burdens are to to the individuals who
would be compelled to suffer them. As Pavlishchek puts the point, “one would hardly be thought irrational to
think that forced appropriation of the father’s time and labor over almost two decades counts for less than the
physical burden of pregnancy for a mere nine months” (1998 : 190). Pavlishchek is correct in stating that I have
provided no account of how this difference in burdens accounts for the difference in obligations. And I am
inclined to believe that he is also correct in viewing the project of providing such an account as a difficult if not
perplexing one. But Pavlishchek is nonetheless mistaken in maintaining that the burden is on the defender of the
good samaritan argument to provide it. It is true that in defending the good samaritan argument I have in part
relied on the claim that a difference in the nature of a particular burden can make a difference in whether or not
we are entitled to impose that burden upon people as a result of their voluntary actions. But it is equally true that
any critic of the good samaritan argument will also have to accept this claim if he is to avoid the unacceptable
implications I have noted in this section. Unless Pavlishchek is willing to endorse laws compelling people to
donate needed bone marrow or organs to their children, for example, he must also agree that the legitimacy of
laws imposing financial burdens on unwilling parents provides no support for the legitimacy of
lawsimposingphysicalburdensonunwillingparentsthatwouldviolate their bodily autonomy. And the fact (if it is a
fact) that the severity of the father’s burden is no less than the severity of the mother’s does nothing to advance
Pavlishchek’s case. Most people, for example, would find spending five years in prison more onerous than
suffering one moderately painful whipping, but while we are willing to accept that certain crimes are such that
they entitle the state to imprison someone for five years, we do not think that the state would be entitled to
impose even a moderately painful whipping on someone convicted of precisely the same crime. Indeed, consider
an even more extreme case. Virtually every woman would agree that spending the rest of her life in prison
would be a much worse fate than being required to conceive and bring an unwanted pregnancy to term. But
while most people would agree that in, say, committing first-degree murder, the woman had forfeited her right
to live freely in society, surely no one would insist that she had thereby forfeited her right not to be impregnated
against her will. The claim that the difference between the nature of the bodily burdens imposed on an unwilling
pregnant woman and the nature of the financial burdens imposed on an unwilling father is a morally relevant
difference, therefore, is common ground between defenders of the good samaritan argument and its critics.
Indeed, as with the other claims I have attempted to argue from in this book, it is common ground, more
generally, between defenders of abortion and its critics. And as a result, there is no need for the defender of the
good samaritan argument, in particular, or of the moral permissibility of abortion in general, to provide a
justification for it.




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   Answers to: “You Have to Provide Child Support to Your Kids
PEOPLE DON’T HAVE TO SACRIFICE THEIR PHYSICAL BODIES TO CARE FOR THEIR CHILDREN

Robin West, law professor, Georgetown, WHAT ROE SHOULD HAVE SAID, Ed. Balkin, 2004, p. 133

Nevertheless, there is a difference between the sacrifice demanded of parents and the sacrifice demanded of pregnant
women: the requirement that parents care for their born children notably does not extend to a requirement that the parent
sacrifice any part of his physical body to do so. A parent is not required to donate even a milliliter of blood, much less a
kidney, or bone marrow, even to save the life of his born child, and even though the parent of the born child quite willfully
and consensually brought the child into the world. Such a parent would be neither criminally nor civically liable for his
refusal to do so. It would matter not one whit that the parent consciously and perhaps joyously conceived and raised the
child; regardless, the parent is not legally obligated to provide materials extracted from his own body even to save the
child's life. Furthermore, should the born child-perhaps a grown born child-attempt to extract the blood or the kidney from
the parent by force, without the consent of the unwilling parent, perhaps by drugging him and strapping him to a gurney,
the state would step in when called upon to help the parent ward off the child's attack. The child, not the parent, would be
charged with a crime. And, again, the state would take this action, even were the child fully morally innocent, the parent
morally culpable, the child brought into the world by the parent's willful decision to conceive and raise her, the child's life
at stake, and the burden on the parent negligible. Why do we expect so much more of pregnant women than of all other
parents? It is easy enough to see why we require so little in the way of bodily sacrifice of parents: citizens generally-and
that certainly includes parents of born children-are sovereign over their bodies. They need never donate their bodies or
parts of their bodies to serve the physical needs of others. If they do, they are admirable, or courageous. But they are not
required to do so. Pregnant women alone must, by law, give their bodies over to the survival needs of others. Pregnant
women alone lack the power to withhold consent to the use of their bodies and their bodies' parts by others. Perhaps our
acceptance of this striking difference between pregnant women and all other citizens is that we have grown accustomed to
viewing pregnancy, childbirth, and motherhood as a part of the story of fate, and nature, rather than a part of the story of
choice, or of liberal citizenship, or even of free society; reproduction is an aspect of life that is thrust upon us, not an aspect
of life, like the choice of occupation, that we opt for or against. Surely, for many, when an unexpected or unplanned
pregnancy is welcome, its fated naturalism is a part of its charm, its mystique, its magic, and its power to inspire awe; it is,
for many, perhaps, even a welcome limit to, or relief from, the "empire of choice:' But when a preg nancy is unwelcome,
and nonconsensual, and must be endured, its unchosen, thrust-upon-her nature is not a part of its charm; it is a part of its
horror, and even its terror. That the states of Georgia and Texas demand of women that they simply endure these
nonconsensual pregnancies is a sign, I believe, that it is women's bodies themselves, and not just joyous and welcome
pregnancies, that have been delegated to the world of "fate," rather than the world of choice-where "fate," stripped of
mystery, means the choices and wishes of stronger people and the needs and demands of fetal life. Although Justice Rosen
is right to complain that pregnancy is not slavery, and motherhood is not wage labor, it is this delegation of women's bodies
to the unthinking, unwilled realm of fate-this quite literal objectification of pregnant women-that invites comparison of the
rigors of forced pregnancy occasioned by the criminalization of abortion-even when done so as to protect the innocent
unborn child-to legal slavery, and of the pregnant woman's body to the status of chattel. And because this is a difference in
treatment that cuts so deeply, I believe it is a difference that is unconstitutional under the Fourteenth Amendment. .




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   Answers to: “You Have to Provide Child Support to Your Kids
MANDATORY PREGNANCY IS NINE MONTHS OF FORCED SLAVERY WITHOUT DUE PROCESS

Robin West, law professor, Georgetown, WHAT ROE SHOULD HAVE SAID, Ed. Balkin, 2004, p. 137-8

Is this farfetched scenario really very different from laws criminalizing abortion, where the pregnancies are a
result of rape outside marriage, or forced intercourse within it? These women are first penetrated and then
impregnated against their will. They are then forced to carry the baby to term, supporting, nurturing, and
physically caring for, as well as carry-ing, the fetus, at tremendous cost to their health, independence, and
economic well-being. This nine-month term of forced good samaritanism is in some ways more, in some ways
less restraining than a nine-month prison term: the pregnant woman has somewhat more mobility, maybe, than a
kidnapped forced samaritan strapped to a gurney, but the pregnancy carries greater health risks and far greater
long-term economic con-sequences. And of course, the pregnant woman has much less mobility than a
nonpregnant and nonincarcerated citizen: pregnancy imposes serious constraints on mobility by virtue of the
fatigue, injury, and sickness it engenders, as well as constraints on the ability to be economically self-sus-.
taining. And, obviously, it is a deprivation of liberty that is imposed with no process of law: none of these
women has been adjudged in a fair trial to be guilty of some malfeasance, the punishment for which is a nine-
month-long interference with physical mobility and self-sovereignty. That the state then sees fit to criminalize
the abortion that might alleviate this unsought condition simply further underscores the state's involvement. By
criminalizing abortion in these circumstances, the state has not only deprived these citizens of their liberty
without due process of law but also employed law toward the end of exacerbating rather than ameliorating that
deprivation. For these reasons, in my view, the refusal to allow raped women and women who have been
forcibly impregnated inside marriage a lawful abortion is a violation of their right not to be deprived of liberty
without due process of law under the Fourteenth Amendment.




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         Answers to: “It’s a Defense of Extraction, Not Abortion”
THE EXRACTION VERSUS ABORTION OBJECTION IS FLAWED

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 254

One difference between the violinist case and the unwanted pregnancy case is sometimes cited as a way of generating an
objection from what would at first seem instead to be a great virtue of the good samaritan argument. The virtue is that it
makes sense of a strong intuition that many have but find difficult to justify: They believe that aborting a viable fetus is
morally worse than aborting a nonviable one, but find it difficult to accept the claim that the fetus acquires a right to life at
that point. Whether or not a fetus is viable seems to be more a fact about its environment and the existing state of
technology than about its own nature, and so it is difficult to see how its being viable could make the difference between its
having a right to life and its not having a right to life. But on the account provided by the good samaritan argument, the
moral relevance of viability becomes clear and in a way that is consistent with believing that one’s viability does not
determine whether or not one has a right to life. For on that account, the right the pregnant woman has is not the right to kill
the fetus but the right to unburden herself of it, even if this must involve its death. If the fetus is viable, and thus can be
safely removed, then the woman has the right only to have it removed, not to have it killed. That aborting a viable fetus is
impermissible while aborting an unviable fetus is permissible, therefore, is consistent with the assumption that the fetus
acquires a right to life at some point before viability, including the moment of its conception. This virtue of the position
generated by the good samaritan argument is sometimes identified as an objection in the following manner. Since it is at
least imaginable that technology might one day produce either an artificial womb capable of sustaining fetal life from
conception onward or a procedure by which a fetus could safely be removed from one woman and reimplanted in another, it
would follow from what has been said that under such circumstances women would never have a right to kill their fetuses
but only to have them removed alive. As one such critic has put it, “Thomson’s argument is not really a defence of
abortion, it is a defence of extraction” (Levin 1985: 125). 76 Now abortion as a medical procedure is typically defined in
terms of the expulsion and not the death of the fetus, and so in this sense the distinction between abortion and extraction is
empty. But the force of the objection is nonetheless clear: To the extent that women who currently seek abortions want the
fetus that they are carrying to die and not merely to be extracted and then raised by others, it would follow that the good
samaritan argument does not establish the moral permissibility of what they wish to do. This objection, if it is to be
accepted as such, makes three distinct claims: that it is possible for such technology to become available; that if it becomes
available, its availability will prevent the argument from justifying the permissibility of a woman’s ensuring the death of
her fetus and not merely its removal; and that this result counts as a reason to be dissatisfied with the argument. I will
respond to these points in reverse order. So far as I can see, the third claim should simply be rejected. As one writer has put
it, “There is no reason to think of the death of the fetus as something the [defender of the permissibility of abortion]
passionately wants so much as something, given what he does want, he is prepared to accept” (Ross 1982: 233). 77 This is
clearly Thomson’s view: Your right to unplug yourself from the violinist, she emphasizes, does not entail that if by some
miracle he survives the procedure you may then go ahead and slit his throat. And similarly, “The desire for the child’s death
is not one which anybody may gratify, should it turn out to be possible to detach the child alive” (1971 : 126). 78 Indeed,
even if we do not assume that the fetus has the same right to life as you or I, it may still seem reasonable to believe that it
would be wrong to kill a viable fetus when it could instead be removed and cared for by someone who is willing to care for
it. Most people do not think that kittens have the same right to life as you or I, after all, but many would still think it wrong
for you to kill a kitten that you did not wish to care for when others were willing to relieve you of the burden of caring for it
(though not as wrong as killing an unwanted infant would be). 79 How might a proponent of the abortion versus extraction
objection respond? In order for the objection to retain its force, we must believe that when a woman is in a position to have
her fetus removed either dead or alive, and when someone else will care for the child if it is removed, she has the right to
have the fetus removed dead. I can imagine only one kind of consideration that might seem to support this contention. One
could appeal to the claim that the woman has a right to kill the viable fetus she is carrying because if she does not do so, she
will then suffer the mental distress of having an offspring of hers out in the world that she is not caring for. But if women
have a right to kill a viable fetus to prevent themselves from future psychological or moral demands, then surely men must
have this right as well. And this in turn would imply that the father’s right to avoid such distress would be violated when
women chose to have their viable fetuses removed alive rather than dead. This is not to say that a father’s right to avoid
such distress would grant him the right to force a woman to abort a fetus that she intended to carry to term. That would
plainly constitute an unreasonable infringement on her bodily integrity. But the case pointed to by the objection under
consideration here is crucially different in this respect. In this case, the woman is going to have the fetus removed either
way, and it is only a question of whether the fetus will be removed dead or alive. Given this scenario, it is difficult to see
why her preferences should override those of the father. Indeed, as Overall has pointed out (1987 : 73), the claim that the
woman has such a right would entail that if the baby survived an attempted abortion, or was born prematurely, before the
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woman had an opportunity to have the abortion performed, then she would still have the right to have it killed. And this is
plainly unacceptable. It may well be true that many women who seek abortions do so because they want the fetus that they
are carrying to be killed. And such women will to that extent be dissatisfied with a position on which it is morally
permissible for them to have their viable fetuses extracted but not killed. But in the absence of an independent reason to
think that they are entitled to have the fetus die when it is already viable, this seems to count more as a criticism of their
desires than as an objection to the good samaritan argument. The argument’s critic has one further response available at this
point that merits consideration. Mackenzie develops a variation on the objection I have been arguing against that is
grounded in “a phenomenological account of pregnant embodiment” on which “the experience of pregnancy, particularly in
the early stages” is such that “[f] rom the perspective of the pregnant woman” the fetus is “a being whose separateness is
not fully realized as such by her” (1992 : 186— 7). On this account, “[w] hat the abortion decision involves is a decision
that this part of herself should not become a being in relation to whom such questions of parental responsibility and
emotional attachment arise. In other words, abortion is not a matter of wanting to kill this particular being, which is, after
all, as yet indistinguishable from oneself. It is rather a matter of not wanting there to be a future child, so intimately related
to oneself, for which one either has to take responsibility or give up to another” (1992 : 190). On this account, there is a
morally relevant difference, from the point of view of the woman actually experiencing the pregnancy, between having the
fetus removed alive and having it removed dead. If it is removed dead, then this “part of herself” will never “become” a
distinct being making emotional and moral claims on her. There will never be such an individual. If it is removed alive and
then kept alive, however, it will later become such a being, and the woman will then have to suffer the psychological
consequences. In this respect, choosing to abort a fetus, again at least in the early stages of pregnancy, might be seen as on a
par with choosing not to have a part of oneself cloned into a separate person. It is not at all clear how one is to go about
assessing Mackenzie’s phenomenology of pregnancy. She is careful to emphasize that “this phenomenological description
is not a description of the subjective feelings of individual women” or “an empirical description of the way in which all
women experience or feel about their pregnancies.” It had better not be, in any event, since presumably many women begin
to experience the conceptus as a separate individual making emotional and moral demands on them as soon as they learn
that they are pregnant. They may immediately make changes in their diet, for example, such as eliminating or greatly
reducing their consumption of alcohol, caffeine, and so on, and they do this not because they think that they owe it to
themselves, but because they experience themselves as already being in a parental relation to another distinct individual.
But then what is the phenomenological account an account of? Mackenzie describes it as “a normative and reflective
apprehension of the way in which conscious experience is structured by our (bodily) situations, perspectives and modes of
perception” (1992 : 186). If it is supposed to be an account of the way in which experience is so structured, then it is
difficult to see this as anything other than the false empirical claim that Mackenzie seeks to distance herself from. But if it
is a normative claim, then it is a claim about how our experiences should be so structured, and it then stands in need of
support. Mackenzie plainly concedes, for example, that the fetus is a biologically distinct individual, and one could as
easily argue that normatively a pregnant woman who experiences the fetus as merely a part of her body that will later
become distinct from her should reflect on her situation and apprehend things differently. After all, a white person may find
that his conscious experience of black people is such that he does not really experience them as distinct individuals, but
reflection on his situation should nonetheless lead him to experience them as such. But let us suppose that we accept
Mackenzie’s account as a normative one. We agree that in some robust sense, it is natural or appropriate for women to
experience the fetus as merely a part of themselves, at least during the early stages of their pregnancies. What follows from
this? Presumably, Mackenzie is correct to say that it follows that the desire that women who seek abortions in such
circumstances are acting on is “not a matter of wanting to kill this particular being, which is, after all, as yet
indistinguishable from oneself.” But this establishes only that the motive of a woman who experiences pregnancy in the
appropriate way is not a morally criticizable motive. And this does nothing to show that the act itself is morally permissible.
The particular being, after all, is in fact distinguishable from the pregnant woman even if it is appropriate for her to
experience things otherwise. I conclude that it is not a problem for the good samaritan argument if it entails that abortion is
impermissible when the fetus is viable. But let us suppose that I have been mistaken, and that we should accept the third
claim made by the extraction versus abortion objection, the claim that a defense of abortion is inadequate if it justifies the
permissibility of a woman’s securing the removal, but not the death, of the fetuses they carry in those cases where the fetus
is viable. This will still pose a problem for the good samaritan argument only if we also accept the first and second claims.
And serious doubts can be raised about both. Consider first the second claim. Suppose that the imagined artificial life-
support system has been invented and that keeping a fetus on such artificial life-support for nine months is quite expensive.
Now consider a woman who has her unwanted fetus merely extracted (but not killed) under such circumstances. What will
happen to the fetus? The fetus will still die unless someone is willing to take on the great burden of supporting it for nine
months. The mere availability of the technology itself, after all, does not entail that the fetus will survive the extraction
process. Of course, one might argue that someone has an obligation to shoulder the burden of keeping the fetus alive if the
technology exists, so that the fetus will in fact survive. But who would that be? Suppose one says it is the woman who had
the fetus removed. That would be like saying that you may unplug yourself from the violinist only if you then shoulder the
burden of keeping an artificial kidney machine running for nine months even though the machine could be kept running by
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anyone willing to shoulder the burden. And I strongly suspect that if you think you may remove yourself from the violinist
in the first place you will also think that you may do so without having to keep the machine running. One might instead say
that society as a whole has such an obligation. But notice that this is to add a much stronger assumption than the mere
assumption that the technology becomes available. Indeed, one would have to assume not only that society does have such
an obligation but that it will in fact recognize and live up to it. And the plausibility of that assumption is not well grounded
if present attitudes are any indication. Rightly or wrongly, we allow plenty of people to die who could have been saved if
the most advanced technology available had been given to them for as long as they needed it. And the number of unwanted
fetuses in a given year would be far greater than the number of people currently in need of such support. Under such
circumstances, a woman who has an unwanted fetus extracted could, for all intents and purposes, be confident that the fetus
would eventually die. Finally, it is worth raising a brief skeptical question about the objection’s first claim. As Morowitz
and Trefil point out (1992 : 132ff.), there are two fundamentally different ways in which our ability to keep premature
babies alive can improve: We can increase the percentage who survive from a given stage in pregnancy and we can
decrease the level of gestation at which it is possible for at least some to survive. Impressive, even breathtaking
improvements of the first sort provide no real evidence of the feasibility of the second. And, indeed, almost all of the recent
improvements in the survivability of premature infants has been of the first sort. In particular, the sharp rise in survivability
at 25 weeks of gestation has not been accompanied by a significant decrease in the level of gestational development at
which survivability outside the womb is possible. None of this, of course, shows such technology to be literally impossible.
But it should at least give pause to those who imagine that a technological resolution to the abortion controversy will be
available at any point in the near future. For the foreseeable future, at least, it seems reasonable to suppose that the
permissibility of extracting the fetus will continue to mean the permissibility of performing an act that results in the fetus’s
death. Thus, even if one thinks that a woman should be entitled to secure the death of a viable fetus and not merely its
removal (again, an assumption that is extremely questionable at best), the good samaritan argument seems to provide a
justification for that for the foreseeable future as well.




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Answers to : “It’s Moral for You to Unplug the Violnist, but not for
                    the doctor –the abstactor”

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 260-

Here is a further difference between the case of a woman with an unwanted pregnancy and Thomson’s case of
you and the violinist: What you assent to in the violinist example, assuming that you do assent to it, is that it is
morally permissible for you to unplug yourself from the famous violinist. But strictly speaking, what a defender
of abortion seeks to establish is not that it is morally permissible for a woman to perform an abortion on herself,
but rather that it is morally permissible for a third party to abort the fetus on her behalf. It does not always
follow from the fact that it is permissible for you to do an act for your own benefit that it is also permissible for
a third party to do the same act on your behalf. If you and a stranger are trapped in a life boat that will only support one of you, for
example, we might agree that it is permissible for you to place your interests ahead of his without agreeing that a third party would be entitled to place
your interests ahead of his. And so, once again, we are in a position to agree that unplugging yourself from the violinist is permissible while denying that
this implies that abortion (when performed by a third party) is similarly permissible. I am not aware of any writer who has pressed this concern as an
objection to the good samaritan argument in particular, but it is sometimes raised as an objection to the related argument that abortion is permissible as a
form of self-defense. Here the argument in defense of the moral permissibility of abortion rests on the claim that the fetus should be understood as an
innocent threat, on a par with a hypnotized knife attacker, and the objection maintains that even if it would be permissible for you to place your life ahead
of that of your attacker, a third party would have to view this as a conflict between innocents and remain neutral. 80 Even if the third-party objection to the
self-defense argument has not been explicitly extended to the case of the good samaritan argument, however, it is clear that it can be so extended. It is
therefore worth asking how the third-party objection, understood as an objection to the good samaritan argument, fares. The answer is that it fares poorly.
The first problem is simply that the violinist story can easily be modified to eliminate the distinction between the firstand third-party without losing any of
its intuitive force. For suppose you wake up in the hospital in precisely the same situation as in the original story, except that the plug that needs to be
pulled in order for you to be unplugged from the violinist is just out of your reach. A doctor, who could easily pull the plug, walks by, and you ask him to
do so. He replies by saying, “I’m sorry; it would be perfectly permissible for you to unplug yourself if you could reach the plug, but it would be
impermissible for me to pull the plug on your behalf, because that would require me to take sides in a conflict between innocent persons. And in such
conflicts, I am morally required to remain neutral.” This response by the doctor seems hardly less implausible than the claim that you are not permitted to
unplug yourself in the first place. Moreover, the implausibility of this claim can be accounted for in a manner that is perfectly consistent with the genuine
insight that underlies the third-party objection. For it does seem reasonable to suppose that in a life boat dilemma each person is entitled to give preference
to his own interests without this entailing that a third party could permissibly intervene on behalf of one over the other. But this is so only because in such
cases neither person has a more legitimate claim to any of the resources available than does the other. And in the violinist case, things are importantly
different: You do have a more legitimate claim to the use of your kidneys than does the violinist. That is why it is permissible for you to unplug yourself in
the first place. And that is why the permissibility of your unplugging yourself does imply the permissibility of a third party’s doing the unplugging on your
behalf. Since it is permissible for a third party to unplug you from the violinist, the third party objection must be rejected.




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Answers to: “Only Women Can Become Pregnant, Violinists Can
                    Be Attached to Men”

THIS ONLY STRENGTHENS THE ARGUMENT -- AS A HISTORICALLY OPPRESSED GROUP,
WOMEN SHOULD BE ABLE TO REMOVE THE FETUS/VIOLINIST

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 262-3

There is a final difference between the violinist case and the fetus case that arises for some readers but not for
others. I am one of the readers for whom the difference does arise. For when the “you” in Thomson’s story
refers to me, the person plugged into the violinist is a man, while the person who is pregnant is a woman. Of
course, even if Thomson’s reader is a woman, there is still a difference between the two cases: She can see that
there was nothing about her being a woman rather than a man that made it any more likely that she would end
up being plugged into a famous violinist, while there is something about her being a woman rather than a man
that makes it more likely that she will end up being pregnant. Thomson’s analogy, then, overlooks the fact that
only women become pregnant. Does this make a difference? In one sense, perhaps it does. To the extent that one
accepts the claim that women constitute an oppressed group, and to the extent that one accepts the claim that it
is prima facie wrong to impose burdens on members of an oppressed group when those burdens are likely to
perpetuate their oppression, then one may have grounds for thinking that the good samaritan argument is
actually stronger than Thomson’s analogy suggests. Suppose, after all, that violinists contract this kidney
ailment on a fairly regular basis, and that you are a member of an oppressed race of people who are the only
ones with kidneys capable of sustaining the lives of others. Only members of your race can ever find themselves
plugged into violinists, and this has in part contributed to the oppression historically suffered by your race. This
might make it seem even more unfair to say that you must remain plugged into the violinist than it would be in
Thomson’s case. Forcing you to make sacrifices on behalf of the violinist, after all, might make it even more
difficult for you to overcome the already unfair disadvantages you suffer as a member of an oppressed group,
and contribute to the harmful stereotype of your race as more “caring” and “nurturing” than others, thus
perpetuating this oppression still further. And if this variation more closely captures the facts about women’s
social situation than does Thomson’s, then this would show that the good samaritan argument is even stronger
than Thomson herself makes it out to be.




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   Answers to: “Reject the Argument – It’s Inherently Patriarchal
                Because it Uses a Male Analogy”


THIS DOESN’T ANSWER THE ARGUMENT AND IT IS LOGICALLY FLAWED

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 263-4

Some feminists, however, have treated this omission in Thomson’s presentation of the good samaritan argument
as a reason to reject the argument itself. Sally Markowitz, for example, appeals to the feminist belief that “our
failure to face the scope and depth of [women’s] oppression does much to maintain it” (1990 : 374). On this
account, an argument in defense of abortion that encourages us to understand the practice independently of the
patriarchical context in which it takes place actually serves to reinforce the values that perpetuate patriarchical
oppression. And since reinforcing the oppression of women is plainly objectionable, it follows that an argument
in defense of abortion whose propagation affects such reinforcement is objectionable as well. As Markowitz
puts it, arguments such as the good samaritan argument violate feminist standards because they “manage to skirt
the issue of women’s status, as a group, in a sexist society” and “obscure the relation of reproductive practices to
women’s oppression” (1990 : 375). And so, on this account, the right to abortion must be grounded in
considerations of the role that access to abortion can play in reducing inequalities between the sexes. Critics of
abortion, of course, can take little comfort from this objection to the good samaritan argument, since it amounts
to the claim that the argument should be rejected because it obscures the real reason that abortion is defensible.
Still, it is worth considering the objection on its own terms. And understood in this way, there are several
reasons to reject it. The first is that it simply does not follow from the fact that a given argument makes no
reference to the oppression of women that accepting or defending it encourages us to overlook the evidence or
seriousness of such oppression. Suppose, for example, that one were asked to justify the claim that a person has
a right to kill a rapist in self-defense. And suppose that in response, one argued that rape is a serious violation of
bodily autonomy and that persons have the right to kill their attackers in order to avoid such serious violations.
Such an argument would seem perfectly reasonable. But surely one can accept and defend such an argument
without obscuring the fact that rape is overwhelmingly a crime committed by men against women, and that its
persistence contributes to inequalities between men and women generally, even though the argument itself
makes no reference to such facts. They are omitted not because they are unimportant, but because they are not
necessary. And the same is true of the good samaritan argument. A second problem with the objection is this.
The objection requires that an acceptable argument for the moral permissibility of abortion must include as one
of its premises the claim that we live in a society in which women are oppressed by men. The claim that “[w]
omen’s reproductive freedom ... should never be discussed as if it were isolated from all the conditions that
women’s equality depends on” is frequently put forward by feminists independently of concerns about the good
samaritan argument in particular (Gillespie 1997: 1). And Markowitz herself is explicit in emphasizing that the
argument she proposes as superior to the good samaritan argument is one that attempts to “justify abortion on
demand for women because they live in a sexist society (1990 : 379, emphasis in the original). But this means
that the argument’s conclusion is substantively much weaker than is the conclusion of the good Samaritan
argument. It is the conclusion that it is permissible for women to have abortions so long as they live in a sexist
society. If social arrangements improved, on this account, abortion would then become impermissible. Or if it
became possible for men to become pregnant, then it would be permissible for women to have abortions but not
for men to have abortions, since men would not be members of an oppressed group. The good samaritan
argument avoids such implications, and the objection that urges us to reject it cannot. Finally, even if one
accepts the claim that a defense of abortion must include reference to facts about women’s oppression, this
shows only that one should supplement Thomson’s presentation of the good samaritan argument, not that one
should reject the argument itself. If we change the story so that you are a member of the oppressed race of
kidney-support providers described above, then telling the story and basing the good samaritan argument on it
rather than on Thomson’s ahead of those of others, and in many cases of abortion this may simply be true. It

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may be objected that it is easy for me to say this since I am a man and will never have to face the burden of an
unwanted pregnancy. I find, on the contrary, that it is more difficult for me to say this precisely because I am
acutely aware that I will never have to face such a dilemma, and so am passing judgment on others only. But
such awareness cannot responsibly be invoked as an excuse to avoid judgment. I will never have to face the
choices that many ordinary Germans had to face during Hitler’s reign, but this cannot prevent me from
acknowledging that many ordinary Germans behaved selfishly under their circumstances. The second problem
with what might be called the selfishness objection is that, if we do find it objectionable to picture abortion as a
selfish act, then the objection will tell equally against Markowitz’s defense of abortion. It is true that on
Markowitz’s account, the right to abortion is not grounded in self-centered considerations. But this says nothing
about the reasons women might have for actually exercizing this right. Anyreason for holding that a given
abortion wasaselfishactonthegood samaritan account of why abortion is permissible will apply equally as a
reason for thinking that it was a selfish act on Markowitz’s analysis (or, indeed, on any analysis) of why
abortion is permissible. This is, in any event, a debate between different ways of defending the moral
permissibility of abortion. We should therefore return to those objections that a critic of abortion itself is in a
position to aim at the good samaritan argument.




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                                         Answers to: “Duty to Save the Violinist”

THE DRAFT IS ABOUT THE PUBLIC OOD, THE SAMARITAN ARGUMENT IS ABOUT BEING
FORCED TO SERVE ANOTHER INDIVIDUAL

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 266-7
I have been assuming up to this point that you do agree that it would be morally permissible for you to unplug yourself from the violinist in Thomson’s story. But while I am quite confident that this is your
initial response to the example, I do not wish to rely on the claim that you will maintain this response with certainty. Perhaps a reason can be given for concluding that it is mistaken. Given that your initial
impression that unplugging yourself is permissible is likely to be a very strong one, it will take quite a strong argument to overcome it. But perhaps such an argument can be made. And if we can be
convinced that, initial responses notwithstanding, it would be morally impermissible for you to unplug yourself from the violinist, then even if the analogy is accepted (especially if it is accepted), the
argument as a whole will still fail to justify the permissibility of abortion. On the whole, critics of the good samaritan argument have been far less likely to pursue this approach, but at least a few such
objections have been defended, and they, too, merit consideration. 4.15 .1 . The Conscription Version Two such arguments are found in Michaels (1984 ). The first is itself essentially an argument from
analogy. The good samaritan argument depends on the assumption that once we agree to characterize carrying a pregnancy to term as a form of good samaritanism we will agree that we cannot say that a
woman is morally required to do so. But if there are other instances in which we agree that it is impermissible to decline to be a good samaritan, then the argument will be deprived of its force. And Michaels
                                                                                      . If we may compel young men to
suggests (1984 : 217— 19) that the general acceptance of the legitimacy of a military draft demonstrates that there are other such instances

incur great hardships in order to benefit others, why may we not compel pregnant women to do so as well?
There are several difficulties with the argument from conscription. First, as Michaels herself notes, there seems
to be a difference between compelling someone to do something necessary for the public good and compelling
them to do something necessary to help a particular individual. Michaels thinks the problem can be overcome by appealing to such examples as Gandhi
and Martin Luther King, Jr., but even if we agree to call the sacrifices they made for the public good a form of good samaritanism in some sense, it is surely not a sense in which we will feel comfortable
                                       Second, even if we accept Michaels’s skepticism about the importance (or
saying that it is impermissible to decline to make such sacrifices.

even conceptual clarity) of the distinction between helping private individuals and serving the public interest,
the draft still seems to possess distinctive features that resist generalization. In particular, those who take it to be
justified typically do so on the grounds that it is necessary to a country’s national security, which is to say more
than merely that it is in the public interest. Many other things could be uncontroversially thought to be in the public interest,
such as making national parks and highways cleaner, but would not plausibly be taken to justify such compulsion. And it seems
extremely implausible to think that preventing abortions is necessary to or even contributes to national security. 83 Finally, we must
notice that the draft is not an example in which we think it morally impermissible for a person to decline to offer to make a great sacrifice
for his country. It is an example in which we think it morally permissible for the state to require people to make such sacrifices even
though they would not be morally required to make them independently of having been so selected. So at most, the analogy might
establish that, under certain circumstances, it would be morally permissible for the state to require pregnant women (or some selected
subset of them) to make substantial




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                           Answers to: “Duty to Save the Violinist”
sacrifices for the good of their fetuses or for the good of others’ fetuses or for the public good even though they would not be morally
required to make such sacrifices independently of having been so selected. This shows only that laws restricting abortion might be
permissible in some extreme circumstances even if abortion itself is not morally impermissible, and that is perfectly consistent with the
claim made by the good samaritan argument that abortion is morally permissible. 4.15 .2 . The Involuntary Samaritan Version Michaels’s
second argument is best put in the form of a question: “If we cannot require Good Samaritanism of the pregnant woman, then how can
we require that the fetus terminate the course of its life in order that the woman may pursue uninterruptedly the course of hers?” (1984 :
220). Even if we agree that carrying a pregnancy to term is a form of good samaritanism and that one cannot be morally required to be a
good samaritan, that is, it still does not follow that we cannot forbid abortion since permitting abortion would be to force an even greater
act of good samaritanism upon the fetus. Granted, Michaels admits, we are not requiring the fetus to do anything, but we are nonetheless
requiring it to bear great costs so that the woman can avoid (presumably) lesser costs to herself. In this sense, Michaels suggests, the fetus
is like a young child whose parents’ inconsiderate move to the Amazon jungle “in order to pursue their passion for capturing poisonous
snakes” would deprive him of the safety and comfort of his life in Amherst. We would not call the parents good samaritans for forgoing
the move out of concern for their son, so neither should we call the woman a good samaritan for forgoing the benefits that having an
abortion would have afforded her. This argument is defective for two reasons. In the first place, the analogy is too strained to be useful.
Although Michaels offers a parenthetical assurance that if the story doesn’t do, a more satisfactory one can always be constructed (1984 :
221), there seems to be a problem with any such analogy: We still are asking the young child to do something, to play with bugs in the
mud instead of his friends in the park in this case, while we are not asking the fetus to do anything. So Michaels still has not provided a
convincing reason for supposing that the fetus’s lack of agency is not relevant to our assessment of the situation. But more
fundamentally, Michaels’s approach here would, if accepted, undermine the notion of good samaritanship entirely. For consider any
clearly paradigmatic instance of good samaritanship. A man volunteers to donate some of his bone marrow to a stranger who needs it, or
gives the coat he is wearing to a homeless man on the street. If we accept Michaels’s claim that allowing the woman to have an abortion
is forcing the fetus to be a good samaritan, then we will also have to say that forbidding the patient to steal the bone marrow or the
homeless man to steal the coat would be forcing them to be good samaritans. But this is plainly to stretch the notion of good
samaritanism beyond recognition. 4.15 .3 . The Justification versus Excuse Version One of the very few other explicit defenses of the
claim that you are morally required to remain plugged into the violinst that I have been able to find is that of Humber (1975 : 289— 90).
84 Humber argues that if the reader is convinced that he may unplug himself from the violinist, this is only due to a failure to distinguish
between acts that are justified and those that are merely excused. If a consideration justifies a person in performing a given action, then
the consideration makes it the case that her doing the action is permissible. If a consideration excuses the act, it provides some reason to
reduce or perhaps withhold entirely our criticism of the person who did the act, even though the act itself was impermissible. If an act is
justified, it needs no excuse. If I kill you while under great duress, this may count as an excuse but not a justification; whereas if I kill
you in self-defense, this will be a justification and not merely an excuse. Humber’s claim is that when we meditate on the case of the
violinist, what we should conclude is that if we unplug ourselves we have an excuse for our behavior, but do not have a justification. And
if that is right, then even (especially) if we accept the violinist analogy, we should conclude that a woman who has an abortion does
something that is morally impermissible even though she may often have an excuse that should mitigate our criticism of her for doing it.
The distinction between justification and excuse is perfectly legitimate. But why should we believe that we are only excused, and not
justified, in unplugging ourselves from the violinist? Humber argues as follows: In Thomson’s version of the violinist case, the cost to
you of remaining plugged in is quite serious. In a variation on the case, however, such as Fischer’s “surgery” variant (discussed in
Section 4.9 ), the cost to you could be extremely trivial, and in such a case we may well think it impermissible for you to unplug yourself.
If keeping the violinist alive would only require 10 more seconds of your time, then unplugging yourself would likely strike many of us
as morally impermissible. But in both cases you do the same thing, namely, unplug yourself. The only difference is that in one case there
is a great deal of pressure on you to unplug yourself and in the other there is not. And breaking under the sort of pressure that we take it a
typical person could not withstand is a paradigmatic example of an excusing condition, not a justifying one. So you are excused for
unplugging yourself in Thomson’s version of the story, but not justified. The problem with this version of the objection is that it begs the
question. For it simply assumes that if the violinist is entitled to your help in the no-burden case, then he is also entitled to your help in
the serious-burden case. Only on this assumption does the added pressure amount to an excuse for your act, rather than a justification of
it, since a consideration is an excuse only if the act is already conceded to be impermissible on independent grounds. After all, one could
imagine yet another variation in which the violinist has, before lapsing into unconsciousness, explicitly given you permission to unplug
yourself. In such a case you might well still believe that it would be a better thing to do to keep him alive, although it was not morally
required of you, but you might eventually crack under the pressure of trying to do this and withdraw your support. The pressure on you
would play just the same role as in Thomson’s case, but here it is clear that it would not be an excuse, since what you do in this case is
clearly permissible. This does not in itself show that it is permissible to unplug yourself in Thomson’s case, of course. But it does show
that the fact that the level of burden makes a difference in our assessment of cases provides no particular support for the conclusion that
we are excused, as opposed to justified, in unplugging ourself from the violinist in Thomson’s case. 4.15 .4 . The Consequentialist
Version There is one last, and more straightforward, way in which one might argue that it is morally impermissible for you to unplug
yourself from the violinist. For surely the cost to you of remaining plugged into him for nine months is less than the cost to him of your
refraining from doing so. The act of remaining plugged into




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                           Answers to: “Duty to Save the Violinist”
the violinist, then, would contribute more to the total amount of happiness in the world than would the act of unplugging yourself. One
could therefore appeal to a consequentialist standard of evaluation and insist that if the overall consequences of your unplugging yourself
are worse from an impartial point of view than the overall consequences of remaining attached, then morality requires you to remain
attached. So far as I have been able to determine, few if any writers have explicitly defended this objection to the good samaritan
argument. Even Peter Singer, who is one of the most prominent utilitarians writing on practical issues, says only that “a utilitarian ...
would reject Thomson’s judgment in the case of the violinist” (1993 : 148, emphasis added), without explicitly stating that he is willing
to reject it himself. Still, utilitarianism in particular, and consequentialism in general, are powerful doctrines with many distinguished
admirers, so it is important to consider the merits of the objection even if it has rarely been pressed explicitly. One could respond to the
objection, of course, by arguing against consequentialism as a moral theory. Or one might try to show that consequentialism does not
really imply that you must remain plugged into the violinist. Perhaps there are unnoticed long-term costs or harmful side effects to a
policy requiring people to remain plugged into violinists under such circumstances that outweigh the obvious benefits. But these
approaches are not necessary. For suppose that we concede for the sake of the argument that consequentialism is true and that it entails
that you are morally required to remain plugged into the violinist (indeed, presumably you would be morally required to volunteer to plug
yourself into him in the first place). What follows from this about the moral permissibility of abortion? It certainly does not follow that
the good samaritan argument has been defeated. The good samaritan argument maintains that the impermissibility of abortion does not
follow from the claim that the fetus has a right to life. The consequentialist objection does not undermine this claim because the
consequentialist does not claim that the fetus, or anyone else, has a right to life. Indeed, the consequentialist claims precisely that they do
not have such a right. More generally, it does not follow that the position maintained by the critic of abortion is vindicated. If
consequentialism is true, then abortion will be permissible when it produces better overall consequences and impermissible when it does
not. And, more importantly, there will be no significant moral difference among abortion, contraception, and abstaining from sexual
intercourse. Whatever loss in terms of total happiness is produced when a woman aborts a fetus, after all, is equally produced when she
prevents herself from conceiving during intercourse or refrains from having intercourse in the first place. It is true, of course, that from a
consequentialist point of view contraception is preferable to abortion since it is less costly. But the defender of abortion need not deny
this. His claim is merely that, if contraception is not used or fails, then having an abortion is morally permissible. For these reasons, the
critic of abortion cannot appeal to consequentialism as a way of defeating the good samaritan argument.




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              Answers to: “You Could Be Compensated for Saving the
                                  Violinist/The

1) YOU CAN’T MAKE SOMEONE WORK FOR ANY PRICE; 2) NO ONE OFFERS TO PAY WOMEN
FOR CHILDBIRTH

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 273

If the choice is between incurring the costs of remaining plugged into the violinist for nine months or
unplugging yourself from him, it is difficult to imagine much more that can be said in favor of the view that you
are morally required to remain plugged in. But these need not be the only options. It is possible that someone
might offer to compensate you for your remaining plugged in. In that case, the choice would be between two
courses of action that would leave you equally well off in the end, but one of which would be much worse for
the violinist. On the other hand, it is not possible for someone to offer to compensate the violinist for being
unplugged from you, since in that case he will die. It may seem plausible to suppose that under such
circumstances it would be impermissible for you to unplug yourself, and that this judgment would translate
naturally to the case of the woman who seeks to end an unwanted pregnancy. There are several problems with
appealing to the prospect of compensation as a way of raising an objection to the good samaritan argument. It is
not clear that we can identify a way of fairly compensating you for your sacrifice, and even if there is, it is not
clear that this would translate to the case of the pregnant woman. But suppose we agree upon a dollar amount that would fairly compensate the woman
for the burden she had suffered. This seems improbable, but one could appeal to the fact that juries do this sort of thing all the time. If a worker loses her arm in an accident caused by the employer’s
negligence, the jury will try to determine a fair payment to compensate the worker for her injuries. In their deliberations, jurors might take into account such factors as whether the arm was especially
valuable to the woman (did she enjoy playing the piano, was it necessary for her to perform her job, etc.) and in principle we could do the same in the case of the pregnant woman. If we accept this
assumption, then we agree that there is a dollar amount that more or less restores the woman who carries an unwanted pregnancy to term to the level of well-being she would have enjoyed had she not done
                                                                       The objection turns on the claim that if the pregnant woman
so. But even if we accept this assumption, the compensation objection must still be rejected.

is offered fair compensation for the burden that an unwanted pregnancy imposes, then it would be morally
impermissible for her to decline to accept the offer. And while this claim may be superficially appealing, it is
ultimately unacceptable. For suppose that we decide on the dollar amount that would fairly compensate you if you were the one who lost an arm in the factory accident. Let’s say that
$10 million would do the trick. The claim needed in order to sustain the compensation objection would then entail that so long as someone is willing to pay you $10 million, it would be morally
                                                                       The fact that we would fulfill all of our
impermissible for you to refuse to save someone’s life if doing so would cost you an arm. And that is very difficult to accept.

duties to you by giving you $10 million if you lost your arm in an accident does not entail that you would have a
duty to sacrifice your arm in order to save someone’s life if you knew ahead of time that we would compensate
you for doing so with $10 million. Finally, it is of course important to note that, as things stand, no one is
offering to compensate women for carrying unwanted pregnancies to term, and there is no reason to expect
things to change in this respect. And so long as things do not change, the compensation objection would provide
no support for critics of the good samaritan argument even were it not subject to the difficulties I have identified
here.




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                                         Answers to: “Inconsistency” Objection”
THE VIOLINIST ANALOGY IS NOT INCONSISTENT

David Boon, philosopher, University of Colorado, A DEFENSE OF ABORTION, 2002, p. 273-4

Almost every criticism of the good samaritan argument attacks the violinist analogy in one way or another, but
Roger F. Gibson has leveled a much graver charge: that the argument as a whole is inconsistent. The account of
someone’s having a right to life on which the argument rests, Gibson rightly notes, is somewhat circular: To
have a right to life is to have the right not to be killed unjustly, which means the right not to be killed in a way
that violates some other right that one has. In the case of the fetus, this other right must refer to the right to the
use of a woman’s body. But, as Gibson also points out, Thomson argues that in many (if not most) cases the
fetus does not have the right to the use of the woman’s body since in many (if not most) cases the pregnant
woman has not granted it such a right. It follows from this, Gibson argues, that in such cases the fetus has no
right to life after all, and this flatly contradicts the central claim made by the good samaritan argument: that it
accepts the assumption that every fetus has a right to life and demonstrates that abortion is morally permissible
even granting this assumption. As Gibson puts it (1984 : 136), the proponent of the good samaritan argument
“seems committed to maintaining the truth of the following inconsistent set of statements: S1: All fetuses have a
right to life (i. e., a right not to be killed unjustly). S2: No fetus can be aborted/ killed unjustly unless it
possesses a right to a woman’s body. S3: Some fetuses do not possess a right to a woman’s body.” Gibson
professes himself unable to find a satisfactory response to this objection, but I suggest that a rather simple one
emerges when we begin by noting that the three statements attributed to the proponent of the argument are not,
in fact, inconsistent. The conjunction of S2 and S3 entails that not all fetuses are the sort whose killing would be
unjust; the killings of those who do not possess the right to a woman’s body would not be unjust killings. But S1
does not insist that all fetuses are in fact the sorts whose killings would be unjust; it merely states that all fetuses
have a right not to be killed unjustly, that is, a right not to be killed if their killing would be unjust. And this is
perfectly consistent with the claim (entailed by S2 and S3) that not all fetuses are such that their killing would be
unjust. 86 The three statements Gibson identifies would be jointly inconsistent, then, only if S2 instead asserted
what I will call S2•: No fetus can have a right to life unless it possesses a right to a woman’s body, since the
conjunction of S3 and S2• entails that some fetuses do not have a right to life, which is inconsistent with S1. But
the good samaritan argument does not maintain that S2• is true, and indeed it seems plainly to be false. To have a right
to life, the fetus need not currently have the right to a particular woman’s body in just the same way that to have a right to spend one’s money as one sees fit, one need not currently have any particular
money. The moneyless still have their right to spend, and if they acquire some cash, it will for that reason be unjust to take their money fro m them. The unwelcome fetuses still have their right to life, and if
they acquire the right to a woman’s body, it will for that reason be unjust to deprive them of their use of that body while such use is needed in order for them to remain alive. There is thus no good reason to
burden the proponent of the good samaritan argument with S2• and good reason not to, and so there is no good reason to accept Gibson’s charge of inconsistency.




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                       Answers to: “Children Can Be Adopted”
ADOPTION AGENCIES FLOOED – NO MORE PLACEMENTS

   John SwomleyM graduate of Dickinson CollegeM Ph.D. in Political Science from the University of Colorado, ST.
   LOUIS      UNIVERSITY          PUBLIC        LAW         REVIEW,           1993,             p.      419-20

   The New York Times on July 27, 1984, reported that there were more than 50,000 legally available children in the
   United States who had not been adopted. An official of the National Adoption Exchange said there was no problem
   "when it came to healthy white babies . . . but we have children who have emotional, physical or developmental
   disabilities . . . and a large number are black or Hispanic." n62 The unwanted fetus whom the right-to-life advocates
   say should not be aborted is often unwanted by parents seeking an adoption and must therefore be cared for by the
   state.

THERE WOULDN’T BE ENOUGH ADOPTEES IF ABORTION WOULD BAN – THE RESULT WOULD
BE MASS INSTITUTIONALIZATION

Andrew Kopplemen, University of Chicago, M.A., Political Science, Yale University,; J.D., Yale University,
1989; Ph.D. expected, Political Science, Yale University, “Legal Theory, Forced Labor: A Thirteenth
Amendment Defense of Abortion,” NORTHWESTERN UNIVERITY LAW REVIEW, Winter 1990,

   Rubenfeld, The Right of Privacy, 102 HARV. L. REV. 737, 790 n.204 (1989). These constraints would be
   exacerbated if abortion were illegal and if the laws against it were vigorously enforced (as they were not before Roe,
   see H. RODMAN, B. SARVIS, & J. BONAR, THE ABORTION QUESTION 23-24 (1987)), since if all
   pregnancies now aborted were to come to term, the pool of potential adoptive parents would be exhausted in less
   than a year. R. GOLDSTEIN, supra note 5, at 179-90. In such a world, women who had been forced to bear children
   would know that the alternative to raising the children themselves would be to consign them to state institutions.
   Such a choice is already faced by mothers of minority or handicapped children, whose chances of adoption are
   approximately one in three.




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                    Answers to: “Health Interests of the Fetus”
“HEALTH INTEREST OF FETUS” ARGUMENTS SUPPORTS ABORTION RIGHTS – ABORTION IS
HEALTHIER AT SOME POINTS IN THE PREGNANCY THAN CHILDBIRTH

Jack Balkin, Constitutional law professor, Yale, WHAT ROE SHOULD HAVE SAID, Ed. Balkin, 2004, p. 51

For this reason we conclude that although Georgia and Texas may assert a legitimate interest in the preservation
of potential human life, that interest may not fully extinguish the right to abortion. Instead, that interest must be
balanced against the fundamental right of women to control their own lives. It follows a fortiori that the interest
in regulation of the medical profession cannot extinguish the fundamental interest of the woman. Finally, the
interest in maternal health actually cuts in both directions. At various points in a woman's pregnancy,
particularly the early stages, some forms of abortion may actually be safer than carrying a fetus to term.




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 Answers to: “Fetal Protection Benefits the Welfare of Children”
FETAL PROTECTION STATUTES DO NOT BENEFIT THE WELFARE OF WOMEN

Reva Siegel, law professor, STANFORD LAW REVIEW, January 1992, “Reasoning from the Body: A
Historical Perspective on Abortion Regulation and Questions of Equal Protection,”p


  Subjecting pregnant, drug-dependent women to "protective" incarceration and depriving women of child
  custody when their newborns test positive for drug-exposure, see note 281 supra, are often characterized
  as policies of fetal-protection, but it is not clear that such policies promote the welfare of children. Both
  regulatory responses quite predictably drive poor women out of a public health care system already
  grossly inadequate in providing normal prenatal care, cf. note 344 supra, and even the most minimal
  forms of drug treatment for pregnant women, cf. note 281 supra. In addition, incarcerating women
  presents substantial risks to any pregnancy, especially if it is high-risk, as those of drug-dependent women
  generally are. Cf. note 335 supra. Custody deprivation dismantles families and communities, injecting
  large numbers of children into an overburdened foster care system, where they may endure intermittent
  and transient placements for years. Both forms of regulation appear to be relatively effective methods of
  punishing women and relatively dysfunctional methods of protecting children. In fact, some public
  officials are now beginning to concede that policies separating mother and child do not ultimately
  redound to the welfare of children. For example, both New York and Los Angeles are now experimenting
  with rehabilitating addicted mothers rather than separating them from their children. See Joseph B.
  Treaster, Plan Lets Addicted Mothers Take Their Newborns Home, N.Y. TIMES, Sept. 19, 1991, at A1
  (New York officials note that cost of intensive counseling for mother is far cheaper than foster care, and
  that this arrangement is better for the child and the family); James Willwerth, Should We Take Away Their
  Kids?,            TIME,             May             13,           1991,            at         62,         63.




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 Regulations that Substantially Reduce Abortion Violate the 13A

IF A REGULATION BASICALLY MAKES ABORTION IMPOSSIBLE, IT VIOLATES THE
13A

Andrew Kopplemen, University of Chicago, M.A., Political Science, Yale University,; J.D., Yale University,
1989; Ph.D. expected, Political Science, Yale University, “Legal Theory, Forced Labor: A Thirteenth
Amendment Defense of Abortion,” NORTHWESTERN UNIVERITY LAW REVIEW, Winter 1990, p. 528-9

In evaluating regulations that burden a woman's exercise of her right to abortion, a similar inquiry is required: is
the regulation's "necessary operation and obvious effect" to make it practically impossible for the woman to end
her pregnancy? If it is, then it violates the thirteenth amendment for the same reasons that the statute in Bailey
did. While Bailey recognized the state's interest in providing the employer with a remedy, it absolutely
subordinated that interest to the laborer's interest in his freedom. Given that Southern black agricultural laborers
like Bailey were almost always judgment-proof, the action for damages that the Court permitted was a
meaningless one. Had Bailey's holding been consistently applied in Southern labor disputes (in fact it was
generally ignored), white planters would have often been left with no effective remedy at all. It did not matter. A
remedy that held the worker to involuntary servitude was unconstitutional. Similarly, the state may have a
legitimate interest in keeping the fetus alive (I hope that nothing I have said is taken to suggest that it does not),
but it cannot pursue that interest by means that impose involuntary servitude upon the woman. The "natural
operation" of whatever means it chooses must not deprive the woman of her freedom to end her pregnancy.
"[The thirteenth] amendment denounces a status or condition, irrespective of the manner or authority by which it
is created." It follows that regulations that effectively restrict the availability of abortions must fall. "What the
State may not do directly," Bailey held, "it may not do indirectly." Consider, for example, George Bush's
campaign proposal to impose criminal penalties, not on women who abort, but on the doctors who help them.
Instead of directly compelling the woman to serve the fetus, this law would indirectly accomplish the same
result by preventing anyone else from giving her the help she needs to end the servitude.




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                 Pre Viability Abortion is Safer than Childbirth
PRE-VIABILITY ABORTION IS SAFER THAN CHILDBIRTH


Jean Rosenbluth, JD, University of Southern California, UNIVERSITY OF SOUTHERN CALIFORNIA LAW
REVIEW, March 1993, “Abortion As Murder: Why Should Women Get Off?” , p. 1247

Today, however, a woman who has a legal abortion during the first trimester of pregnancy faces on average far
fewer medical risks than if she carries her pregnancy to term and goes through childbirth. n58 As a result,
modern-day antiabortion forces have dropped any pretense of acting to protect women from physical harm.




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                        Abortion Doesn’t Threaten Mental Health


ABORTION DOES NOT THREATEN WOMEN’S MENTAL HEALTH

Susan Cohen, GUTTMACHER POLICY REVIEW, Summer 2006,
http://www.guttmacher.org/pubs/gpr/09/3/gpr090308.html

Most antiabortion activists oppose abortion for moral and religious reasons. In their effort to win broader public support and
legitimacy, however, antiabortion leaders frequently assert that abortion is not only wrong, but that it harms women
physically and psychologically. Such charges have been made repeatedly for years, but repetition and even acceptance by
members of Congress and other high-ranking political officials do not make them true.

Likely because the science attesting to the physical safety of the abortion procedure is so clear, abortion foes have long
focused on what they allege are its negative mental health consequences. For decades, they have charged that having an
abortion causes mental instability and even may lead to suicide, and despite consistent repudiations from the major
professional mental health associations, they remain undeterred. For example, the "postabortion traumatic stress syndrome"
that they say is widespread is not recognized by either the American Psychological Association (APA) or the American
Psychiatric Association.

To a considerable degree, antiabortion activists are able to take advantage of the fact that the general public and most
policymakers do not know what constitutes "good science" (related article, November 2005, page 1). To defend their
positions, these activists often cite studies that have serious methodological flaws or draw inappropriate conclusions from
more rigorous studies. Admittedly, the body of sound research in this area is relatively sparse because establishing or
conclusively disproving a causal relationship between abortion and subsequent behavior is an extremely difficult proposition.
Still, it is fair to say that neither the weight of the scientific evidence to date nor the observable reality of 33 years of legal
abortion in the United States comports with the idea that having an abortion is any more dangerous to a woman's long-term
mental health than delivering and parenting a child that she did not intend to have or placing a baby for adoption.

Public Health Problem 'Minuscule'

Despite years of trying, antiabortion activists failed to gain any traction with the nation's major medical groups in alleging
that abortion posed a direct threat to women's health, especially their mental health, so they turned to the political process
to legitimize their claims. In 1987, they convinced President Reagan to direct U.S. Surgeon General C. Everett Koop to
analyze the health effects of abortion and submit a report to the president. As Koop had been appointed to his position in no
small part because of his antiabortion views, both prochoice and antiabortion factions believed the outcome to be
preordained. (An eminent pediatric surgeon as well as an outspoken abortion foe, Koop had no prior experience or
background in public health; both public health and prochoice advocates in Congress vehemently opposed his appointment,
delaying his confirmation by several months.)

Koop reviewed the scientific and medical literature and consulted with a wide range of experts and advocacy groups on both
sides of the issue. Yet, after 15 months, no report was forthcoming. Rather, on January 9, 1989, Koop wrote a letter to the
president explaining that he would not be issuing a report at all because "the scientific studies do not provide conclusive
data about the health effects of abortion on women." Koop apparently was referring to the effects of abortion on mental
health, because his letter essentially dismissed any doubts about the physical safety of the procedure.

Prochoice members of Congress, surprised by Koop's careful and balanced analysis, sought to force his more detailed
findings into the public domain. A hearing before the House Government Operations Subcommittee on Human Resources
and Intergovernmental Relations was called in March 1989 to give Koop an opportunity to testify about the content of his
draft report, which had begun to leak out despite the administration's best efforts. At the hearing, Koop explained that he
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chose not to pursue an inquiry into the safety of the abortion procedure itself, because the "obstetricians and gynecologists
had long since concluded that the physical sequelae of abortion were no different than those found in women who carried
pregnancy to term or who had never been pregnant. I had nothing further to add to that subject in my letter to the
president"(see box).

As to the mental health issue, Koop described anecdotal evidence going in both directions, but emphasized that "individual
cases cannot be used to reach scientifically sound conclusions." He discussed the methodological flaws pervading most of
the research on this subject, and for this reason, he explained, he could reach no definitive conclusion about the mental
health impact of having an abortion. Importantly, however, Koop did state that it was clear to him that the psychological
effects of abortion are "minuscule" from a public health perspective.

Given the millions of women who have had abortions, "if severe reaction were common, there would be an
epidemic of women seeking treatment."

Representing the APA at the hearing, Nancy Adler, professor of psychology at the University of California, San Francisco,
testified that "severe negative reactions are rare and are in line with those following other normal life stresses." While
acknowledging that there were flaws in much of the research, she testified nonetheless that the weight of the evidence
persuasively showed that "abortion is usually psychologically benign." Echoing Koop's point about the public health
implications, Adler said that given the millions of women who had had abortions, "if severe reaction were common, there
would be an epidemic of women seeking treatment. There is no evidence of such an epidemic."

More Studies, Similar Conclusions

Later in 1989, the APA itself convened a panel to comprehensively assess the body of research meeting the minimum criteria
for scientific validity. The APA review determined that legal abortion of an unwanted pregnancy "does not pose a
psychological hazard for most women." As summarized in the Guttmacher Institute's May 2006 report, Abortion in Women's
Lives, the APA found that "women who are terminating pregnancies that are wanted or who lack support from their partner
or parents for the abortion may feel a greater sense of loss, anxiety and distress. For most women, however, the time of
greatest distress is likely to be before an abortion; after an abortion, women frequently report feeling 'relief and happiness.'"

Yet neither the Koop investigation nor the APA review ended the debate. Antiabortion researchers have persisted in trying to
prove abortion's harmful mental health effects. Most prominent among them are David Reardon, director of the antiabortion,
Illinois-based Elliot Institute, and Priscilla Coleman, family studies professor at Bowling Green State University. Reardon and
Coleman believe that abortion harms women, but their own studies and the others upon which they rely to make that
assertion are so flawed methodologically that they cannot be said to establish a causal relationship. The studies do not
address the fundamental question of whether women who have had abortions experience more adverse reactions than do
otherwise similar women who have carried their unwanted pregnancies to term. Again, as described in Abortion in Women's
Lives, "none adequately control for factors that might explain both the unintended pregnancy and the mental health
problem, such as social or demographic characteristics, preexisting mental or physical health conditions, childhood exposure
to physical or sexual abuse, and other risk-taking behaviors.…Because of these confounding factors, even if mental health
problems are more common among women who have had an abortion, abortion may not have been the real cause."

By contrast, the Royal Colleges of Obstetricians and Gynaecologists and of General Practitioners in the United Kingdom
sponsored a major study that did address that fundamental question. The study followed more than 13,000 women in
England and Wales over an 11-year period ending in the early 1990s. Importantly, it considered two groups: women facing
an unintended pregnancy who had an abortion and women facing an unintended pregnancy who gave birth. The study's
authors concluded that those women who had an abortion following an unintended pregnancy were not at any higher risk of
subsequent mental health problems than were women whose unintended pregnancy was carried to term. Currently,
considerable attention is being paid to a study conducted by David Fergusson, a psychology professor who is affiliated with
the Christchurch School of Medicine and Health Sciences, New Zealand. Fergusson's study, like the Royal Colleges', has the
advantage of being prospective, which means that information is gathered about individual women at multiple points in time
and compared across groups. Fergusson and his colleagues have been following the health, education and life progress of a
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group of 1,265 children in the Christchurch region since their births in mid-1977. Results released earlier this year suggest
some link between abortion as a young woman in New Zealand and subsequent problems with depression, anxiety, suicidal
behaviors and substance abuse disorders; however, Ferguson acknowledges that his study has enough shortcomings to
warrant caution in reading too much into the findings. Specifically, the study does not take into account certain preexisting
health problems (e.g., mental health problems or exposure to unreported sexual abuse) among the women who had an
abortion that may be much more relevant to the women's subsequent mental health conditions than the abortion itself.
Furthermore, he and his coauthors estimate that about one-fifth of the women in the study who had abortions failed to
report them, which could skew the findings if women experiencing mental health problems later in life are more likely to
report a prior abortion than are women not experiencing such problems. Perhaps most significantly, Ferguson and his
colleagues did not separate out for analysis purposes women whose pregnancies were unintended and women whose
pregnancies were wanted, as did the Royal Colleges' researchers. The authors themselves admit that this is a significant
failing. The Debate Goes On Seventeen years after the Koop investigation, there is still no conclusive evidence directly
linking abortion to subsequent mental health problems—and not because of a lack of trying. Although it is true that some
women who have had an abortion suffer severe mental health problems later in life, the current body of research has not
been able to rule out a plethora of preexisting conditions or familial or other contextual factors that could affect or explain
those problems. It isalso true, not surprisingly, that some women experience pain and sadness either shortly after having an
abortion or even many years later (see box). These emotions, however, are not unique to women who have had an abortion
or necessarily more or less common than the pain and sadness felt by many women who have placed a baby for adoption or
raised an unplanned child under adverse conditions. Meanwhile, what Koop described 17 years ago as a “minuscule” public
health problem would seem to be at least as miniscule today—especially in light of the fact that more than one in three
women in the United States will have had an abortion by age 45. How much more research into the purported abortion–
mental health connection is really warranted may depend more on political exigencies than on scientific ones. Antiabortion
activists can be expected to continue to either distort the evidence that does exist or insist that conclusive evidence can still
be found. At the time of his investigation, Koop himself called for more and better quality research on the mental health
effects of not just abortion but unplanned pregnancy itself, a more expansive view that remains valid today. Also applicable
today is Koop’s less noticed but equally important call at that time for more research into contraception and contraceptive
use. As he testified to Congress in 1989, “most abortions would not take place if pregnancies were not unplanned and
unwanted.”




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                              Abortion Doesn’t Reduce Fertility
ABORTION DOESN’T REDUCE FERTILITY

Susan Cohen, Guttmacher Institute, ENVISIONING LIFE WITHOUT ROE: LESSONS WITHOUT
BORDERS, 2003, p. http://www.guttmacher.org/pubs/tgr/06/2/gr060203.html

Abortion Is Safe and No Impediment to Future Fertility

Despite the strong and lengthy history of evidence attesting to the physical safety of abortion, antiabortion activists
frequently charge that the procedure threatens women’s future fertility and is a particular risk factor for breast cancer.
Neither is true. Abortion foes cite research that suggests that abortion can cause infection or injury, sometimes undetectable
at the time of the abortion, which in turn increases women’s risk of preterm and low-birth-weight delivery. Those studies,
however, typically fail to account for the fact that factors such as a history of sexually transmitted infection may be more
common among women who have unintended pregnancies (and thus abortions) and may lead to premature delivery among
women giving birth. The preponderance of evidence from well-designed and well-executed studies shows no connection
between abortion and future fertility problems. Several reviews of the research conclude that first-trimester abortions pose
virtually no long-term fertility risks—not only for premature and low-birth-weight delivery but for infertility, ectopic
pregnancy, miscarriage and birth defects as well. The evidence is less extensive when it comes to repeat abortion and
second-trimester abortion, but the research indicates that the claims of abortion opponents are unfounded.




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                             Abortion Doesn’t Cause Cancer
THERE IS NO LINK BETWEEN ABORTION AND BREAST CANCER

Gloria Feldt, President of Planned Parenthood, WAR ON CHOICE, 2004, p. 151-2

Another favorite tactic of anti-choice extremists is to scare women away from having abortions by telling them
that the procedure causes breast cancer. In other words, when they don’t have law or truth on their side, they just
lie. The link between abortion and breast cancer is about as medically sound as the link between root canals and
mouth cancer, but the right-wingers have spread this lie far and wide. Women who ride buses in Philadelphia are
exposed to completely inaccurate ads sponsored by Christ’s Bride Ministries warning them that “women who
choose abortion suffer more and deadlier breast cancer.” An anti-choice organization that misleadingly calls
itself the Breast Cancer Prevention Institute has sponsored similarly inaccurate TV commercials saying,
“Studies show that the increased risk of breast cancer [after abortion] can be fifty percent or more.” The few
studies cited by proponents of the link between breast cancer and abortion have all been old, small, and flawed.
Put their claims up against the conclusion of a study of 1.5 million women that appeared in the New England
Journal of Medicine in 1997: “Induced abortions have no overall effect on the risk of breast cancer.” And, in
case there is any question about the validity of this conclusion, in 2001 the prestigious British medical journal
Lancet Oncology reanalyzed this study, as well as others on the subject, and concluded— again— that no link
between abortion and breast cancer has been proven. Furthermore, after reviewing all the literature on the topic,
the American College of Obstetricians and Gynecologists concluded: “There is no evidence supporting a causal
link between induced abortion and subsequent development of breast cancer.”




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                             Abortion Doesn’t Cause Cancer
THE NATIONAL CANCER INSTITUTE HAS INNACURATE INFORMAITON ABOUT THE
RELATIONSHIP BETWEEN ABORTION AND BREAST CANCER
Gloria Feldt, President of Planned Parenthood, WAR ON CHOICE, 2004, p. 152-3

Similarly inaccurate statements were posted on a National Cancer Institute Web site fact sheet, another source
from which citizens have a right to expect straightforward reporting of the facts. “Some studies have reported
statistically significant evidence of an increased risk of breast cancer in women who have had abortions, while
others have merely suggested an increased risk,” the NCI Web site stated. This statement replaced the language
which used to be there, which did give an accurate summary of the available literature on the subject: “The
current body of scientific evidence suggests that women who have had either induced or spontaneous abortions
have the same risk as other women for developing breast cancer.” The NCI made this change after being lobbied
hard by anti-choice members of Congress. Insofar as there is any basis whatsoever for the belief that abortion
causes breast cancer, it derives from research showing that women who have children early in life are less likely
to get the disease than women who have babies late or not at all. But by that reasoning abstinence would cause
cancer. The idea that abortion causes breast cancer has zero validity. Why, then, did the government base its
“fact” sheets on misinformation supplied by anti-choice congresspeople instead of on the scientific consensus of
the American Cancer Society, the New England Journal of Medicine, the Lancet, and the American College of
Obstetricians and Gynecologists? Because this is an administration for whom ideology trumps science— and
truth! Fortunately, the falsehoods about breast cancer and abortion on the NCI fact sheet attracted so much
attention that this time the anti-choice war machine was unable to get away with its blatant dishonesty. The New
York Times called the fact sheet “an egregious distortion of the evidence,” and the director of epidemiological
research for the American Cancer Society said, “This issue has been resolved scientifically. . . . This is
essentially a political debate.” After some members of Congress protested the change, the NCI held a three-day
conference reviewing studies on the issue, and finally, in March 2003, the NCI Web site was revised to report
that the conclusion that “induced abortion is not associated with an increase in breast cancer risk” is “well-
established.”




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                             Abortion Doesn’t Cause Cancer

45,000 OBSTRETICIANS & GYNECOLOGISTS AGREE THERE IS NO LINK BETWEEN ABORTION
AND BREAST CANCER

American Council of Obstreticians & Gynecologists, ACOG, 2003,
http://www.acog.org/from_home/publications/press_releases/nr07-31-03-2.cfm

There is no evidence supporting a causal link between induced abortion and subsequent development of breast
cancer, according to a committee opinion issued today by The American College of Obstetricians and
Gynecologists (ACOG). ACOG's opinion is in agreement with the conclusion reached at the National Cancer
Institute's Early Reproductive Events and Breast Cancer Workshop, which met in March 2003.

ACOG's review of the research on a link between abortion and later development of breast cancer concluded
that studies on the issue were inconsistent and difficult to interpret, mainly due to study design flaws. Some
studies showed either a significant decrease in breast cancer risk after abortion or found no effect. The most
recent studies from China, the United Kingdom, and the US found no effect of induced abortion on breast cancer
risk.

THE NATIONAL CANCER INSTITUTE CONCLUDES ABORTION DOESN’T INCREASE BREAST
CANCER

Susan Cohen, Guttmacher Institute, ENVISIONING LIFE WITHOUT ROE: LESSONS WITHOUT
BORDERS, 2003, p. http://www.guttmacher.org/pubs/tgr/06/2/gr060203.html


As for the link between abortion and breast cancer, researchers have studied for years whether the abrupt
hormonal changes caused by interrupting a pregnancy alter a woman’s breast in a way that increases her
susceptibility to the disease. Until the mid-1990s, the research findings were inconsistent. Abortion opponents
seized upon a 1996 analysis that combined the results of numerous flawed studies and concluded that having an
abortion did elevate the risk of cancer. However, data from this analysis were unreliable, because they were
collected only after a diagnosis of cancer. Furthermore, rather than relying on medical records, the researchers
asked the women themselves whether or not they had had an abortion, a process that would be expected to lead
to more complete reporting of a prior abortion by women with cancer than by women who did not have cancer.

In 2003, the National Cancer Institute (NCI) convened more than 100 of the world’s leading experts on the topic
of abortion and breast cancer. After a lengthy and exhaustive review of all of the research, including a number
of newer studies that avoided the flaws of their predecessors, they concluded that “induced abortion is not
associated with an increase in breast cancer risk,” noting that the evidence for such a conclusion met NCI’s
highest standard. In 2004, an expert panel convened by the British government came to the same conclusion.




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Planet Debate 2009 – Medicaid Abortion Funding Affirmative

                                   Abortion Doesn’t Cause Cancer


NO RELATIONSHIP BETWEEN ABORTION & BREAST CANCER

Center for Reproductive Rights, SETTING THE RECORD STRAIGHT, September 2005, http://www.crlp.org/pdf/pub_bp_tk_myths.pdf

Scientific evidence shows that abortion does not increase the risk of breast cancer. Several
scientific studies have examined the alleged link between abortion and breast cancer. The evidence
has shown that abortion does not increase the risk of the disease. The World Health Organization
(WHO) and several national medical associations in the United States have reached the same
conclusion.11 The most methodologically-rigorous study on the issue to date was conducted by a team
of Danish medical researchers in the late 1990s.12 The study examined the official medical records of
over one million Danish women and concluded that induced abortions have no overall effect on the
risk of breast cancer.13 Several subsequent well-regarded international studies have also used record-
based research methods to examine the issue in different populations. Like the Danish study, these
have all concluded that there is no relationship between abortion and breast cancer.14




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                                    Abortion Doesn’t Cause Cancer


THE NATIONAL BREAST CANCER COALITION AGREES

National Breast Cancer Coalition, POSITION STATEMENT ON ABORTION AND BREAST CANCER,
May 2005, http://www.natlbcc.org/bin/index.asp?strid=364&depid=9

Position
It has been hypothesized that surgical and spontaneous abortions increase breast cancer risk. However, the largest and most reliable
research studies show that there is no association between either kind of abortion and risk of breast cancer. Based on overwhelming
scientific evidence, NBCC does not support any public policy efforts that imply such a link exists.

Research Evidence
Dozens of studies have examined the relationship between abortion and breast cancer. 1 Though some studies have suggested that
abortion increases the risk of breast cancer, many of these were severely flawed and their results are not valid. 2 In these studies, the
researchers asked women whether they had had abortions and did not verify the self-reports with medical records. Due to social and
political sensitivity about abortion, women's reporting of their own abortion history may be unreliable. On the other hand women seeking
explanations about the source of their breast cancer may be highly motivated to disclose as much information about their health history as
they can. This phenomenon is called reporting bias, and it could lead to incorrect conclusions about a relationship between abortion and
breast cancer. At least two studies of abortion and breast cancer risk have provided direct evidence of the existence of exactly this type of
reporting bias.3


In 1997 researchers in Denmark published the results of a large, well-done cohort study of abortion and breast cancer risk.4 This study,
which included data on 1.5 million women, avoided the problem of reporting bias by relying on data collected from abortion registries
(i.e. medical records) rather than individual reports. This study found no association between induced abortion and breast cancer risk;
women who had abortions were no more likely to develop breast cancer than women who had not had abortions. This finding was
consistent among various subgroups of women; it did not differ depending on age at abortion, number of children, time since abortion, or
age at diagnosis of breast cancer.

Several other recent studies have also found no association between abortion and breast cancer risk, including two studies conducted in
China.5 Though these studies relied on self-reports to assess which women had abortions, reporting bias was most likely minimal.
Abortion is legal, common and socially acceptable in China, so women do not feel stigmatized and may be more likely to give an
accurate answer as to whether or not they have had an abortion. Finally, a recent case-control study in Sweden found a 16% decrease in
the relative risk of breast cancer in the group that had had abortions. 6 This well-done study used medical records to determine which
women had abortions.

Expert Consensus
On February 24-26, 2003 Director of the National Cancer Institute (NCI), Andrew von Eschenbach, convened a workshop to review the
research and to make conclusions about the relationship between reproductive factors and breast cancer risk. Over 100 world experts
from both the scientific research community and the breast cancer advocacy community, including several NBCC Board members, were
invited to participate in the workshop.

After reviewing the evidence, the workshop attendees issued a report stating that there is strong evidence that neither spontaneous nor
induced abortion increases the risk of breast cancer. The report's findings were reviewed and unanimously approved by NCI's Board of
Scientific Advisors and Board of Scientific Counselors. The full report, a fact sh