19 August 2008

Dumb Looks Still Free: citizenship and abortion

If there is any complaint about my views is that they are in the negative towards politicians. Well, they are due to them being... politicians. By and large the concept of 'political expediency' across the board has left me, as a common man, feeling quite left out of things. There are no basic, matter-of-fact, common sense candidates for me to support. That is just personal, however, as I am not a gut-wrenching, emotion changing sort of voter, but one looking to uphold that which is common across society while infringing the rights of none and expanding the liberties available to us as citizens. And that puts me in a very strange place with respect to citizenship and abortion, the two very nasty things that no one likes to put together to actually address the 'abortion issue'. Even stranger is that I think one political candidate had gotten the basic premise *right* but then cannot work from there in any reasonable fashion.

Who it is, and why he fails are, to me, self-explanatory.

From the NY Sun on 18 AUG 2008 article by Russell Berman looking at Barack Obama Facing Attacks From All Sides Over Abortion Record (H/t: Hot Air's Ed Morrissey):

The presumptive Democratic nominee responded sharply in an interview Saturday night with the Christian Broadcast Network, saying anti-abortion groups were "lying" about his record.

"They have not been telling the truth," Mr. Obama said. "And I hate to say that people are lying, but here's a situation where folks are lying."

He added that it was "ridiculous" to suggest he had ever supported withholding lifesaving treatment for an infant. "It defies common sense and it defies imagination, and for people to keep on pushing this is offensive," he said in the CBN interview.

At issue is the Born Alive Infant Protection Act, a bill in the Illinois state Senate that sought to protect against bungled abortions by requiring that a fetus that survived an abortion be defined as a person. Fearing that the legislation could be interpreted more broadly to protect fetuses that were not yet viable — thus threatening Roe v. Wade, abortion rights advocates pushed for an amendment that explicitly limited the scope of the bill to infants "born alive."

"Nothing in this section," the added sentence reads, "shall be construed to affirm, deny, expand, or contract any legal status or legal right applicable to any member of the species homo sapiens at any point prior to being born alive as defined in this section." A federal version with that added clause passed Congress unanimously in 2002, with the support of Mrs. Clinton and Mr. Kennedy, among others. Mr. Obama said in 2004 and again on Saturday that he would have supported the federal version.

During the Democratic primary, Mrs. Clinton's campaign criticized Mr. Obama for voting "present" — instead of "no" — on the "Born Alive" bill in Illinois, which did not contain a provision protecting the Roe v. Wade decision.

The dispute flared again last week when a leading opponent of legalized abortion, the National Right to Life Committee, posted records from the Illinois Legislature showing that Mr. Obama, while chairman of a Senate committee, in 2003, voted against a "Born Alive" bill that contained nearly identical language to the federal bill that passed unanimously, including the provision limiting its scope.

The group says the documents prove Mr. Obama misrepresented his record.

Politician caught modifying his record to make it look better than it really is, and to try and hide intellectual disconnect between what he says he supported and what he actually supported.

By ancient right and tradition passed down to us from our forefathers, a fetus born alive gains a status of citizen when all proper legal jurisdictions have been applied. At times 'citizen of what country' can be a problem to figure out, but by The Law of Nations, you do get it at birth in our framework of man-made laws. It does not matter which manner of birth is applicable, and many premature and even still born fetuses in ancient days not only were given names, but proper and full burial according to custom.

One only gets their rights protected by being a citizen.

Part of the downfall of Rome was that the Empire had those in charge who thought it entirely proper to place a donkey into the Senate, or award protections to mere animals. That is why the civil law supporting citizenship at birth is important, although that does not require a Nation to give that born citizen the citizenship to that Nation if the parents are otherwise from another Nation. That, too, has lineage as seen in many modern day Nations that put that forth: citizenship is conferred from parents, while 'natural born' is the added bonus of being born in the National boundaries of that Nation by citizens of it. The US adheres to a far older common law outlook of place being decisive, but even for that lineage, it was not the only deciding factor and a child become adult could switch to the citizenship of his or her parents. That is an adult choice to make and law is a stand-in to regularize understanding and put process in place, not over-rule the individual's right to claim heritage by reason of biological birth. Do note that is a one-time affair gained at celebration of majority. The concept of 'dual citizenship' has always called allegiance into question, although it has been provided to offer succor from tyrants and despots and protection to those seeking to flee such things.

Over at RealClearPolitics, Philip Gailey looks at Sen. Obama's stance on abortion on 27 MAY 2008 citing Sen. Obama on the Illinois bill:

Speaking against a similar bill in the Illinois Senate, Obama sounded like the constitutional law professor he was before going into politics.

"Number one,'' he said, "whenever we define a pre-viable fetus as a person that is protected by the Equal Protection Clause or the other elements in the Constitution, what we're really saying is, in fact, that they are persons that are entitled to the kinds of protections that would be provided to a child, a 9-month-old child that was delivered to term. That determination then, essentially, if it was accepted by a court, would forbid abortions to take place. I mean, it -- it would essentially bar abortions, because the Equal Protection Clause does not allow somebody to kill a child, and if this were a child, this would be an anti-abortion statute.''

Democrats in Congress raised the same concern about the original version of the federal legislation. Language was added to make it clear the bill would not encroach on a woman's right to choose an abortion and the measure passed without opposition.

Obama later said he would have voted for that bill.

However, critics note that in 2003, when an Illinois lawmaker again introduced a state Born Alive Infant Bill, it came with a proposed amendment that included language on protecting abortion rights identical to the federal version. The bill was never brought up for a vote in the Health and Human Services Committee, which Obama chaired.

That is *precisely* what the SCOTUS decision is about, and worded in the worst possible way by the SCOTUS using the 'viability' language. Sen. Obama gets the very basic fact correct, in my view: that the SCOTUS by ruling on viable fetuses had, indeed, set up a two-track affair based on location of that fetus at a given developmental stage. That is NON equal protection. He is wrong, however, in his outcome stating that it would lead to the barring of abortions because the exact, same ruling uses the viability language to state WHEN that developmental stage is: at a point where life can be sustained outside the mother or host.

There is a logic and reasoning behind the SCOTUS decision if applied to the Constitution and the States, which Sen. Obama appears to have missed. Now, I've hit this a few times, so now will from my previous writing on this topic, on 12 MAY 2007 on The Limits of Our Creation (all spelling, syntax and logic errors kept intact):

In looking at Freedoms, Rights and the People I started looking at the actual framework of the issues involved and then a whole lot more in When do your rights start? Now in this I do *not* try to figure out when someone is or is not a human but *when* there is a passing point *into* Citizenship. Now why did I do that? Because it is imperfect, of course! Far, far less than ideal but... it does head towards the common ideal of Citizenship and upholding all rights and all responsibilities. Citizenship is a damned important thing in this Nation and the Supreme Court has created a two-tier system of 'Due Process' that actually violates the outlook of the Constitution for one form of justice for All of the People. Here is what it boils down to:

1) The SCOTUS has put a 'viability test' on when an abortion may be performed,
2) What does 'viability' measure? It measures the ability to be sustained outside of the mother or host.
3) What happens when an Individual is outside the mother or host and sustainable? They are 'born'.
4) Being born of Citizens of the United States within a State of the United States or within limits set externally by Congress for such things under its Immigration and Naturalization powers makes one a Citizen.
Short, sweet and to the point: viability is a measure of Citizenship.

Yes, very reductio ad absurdum and all of that, but it does point out the thing about working with imperfect law: one can use its imperfection to achieve things that locking horns forevermore will not do. And in this extremely imperfect ruling the SCOTUS has now set up a 'two tier' system upon fetuses based on positional sustainability outside the mother or host. If a fetus is born prematurely, it gets full Citizenship Rights and coverage. At that exact same gestation point for another fetus going through normal gestation that is NOT the case. Say, that just can't be right, can it? Imperfect law, imperfect ruling leading to a non-Due Process procedure for Equal Protection. Pure idiocy, when you come right down to it. If a 'viability' test is put in place then the requirement, since it is viability to become a Citizen is being measured, then ALL such fetuses at that same point in gestation should get Equal Coverage and Due Process under the Law.

Painful, isn't it?

Enacting State-based legislation on that would *then* require *proof* that a fetus was not in the viability stage and appropriate developmental buffer zone to afford protections to unequal development due to circumstances beyond control of mother or fetus. Under this regime one can, indeed, get an abortion, but only with *proof* that the fetus was not in the gestational viability period. What that then requires is *record keeping* of sexual activity! Yes, more Red Tape! Sworn affidavits, medical exam and post-abortion exam to determine status would then be *required* so that anyone that LIES about their history in this regard can be prosecuted for murder. On the other side society, at that point in time, must afford full minor citizenship rights to such children who are gestating normally and ensure that these new Citizens are properly tracked and accounted for until their full 'birth date' or emergence from the mother or host. This infringes upon no existing set of Rights and applies responsibility to sexual activity because of its paramount importance to Citizenship. And various doctors can be appointed by the State to perform dual exams upon an individual that did NOT keep such records, and then they would attest to gestational period and abortion made available for the non-viable fetus.

This provides full rights to the unborn at the point of viability. Anything *else* then gets one looking at 'when does life begin' which really isn't a question society is set up to deal with. What society *is* set up to deal with is when an individual becomes a Citizen, so using that is not only perfectly reasonable, but then sets new standards of conduct and accountability for sexually mature individuals. That knife cuts across *both sides* of the debate as it is neutral to the debate and looks to uphold society and *not* find some sort of perfect solution. Totalitarian governments are very good at perfect solutions and their eponymous 'Final Solution'. Really, if life 'begins at conception' then it is not the abortion clinics that are mass murder facilities but In Vitro Fertilization clinics that have large numbers of fertilized eggs from generally infertile couples that need to destroy such after a period of time as they become non-viable for *anything* after a couple of years in the deep freeze. Tens if not hundreds of thousands of fertilized eggs are destroyed via that route and yet I see very little protesting around those places for doing so. Somehow that 'perfect' viewpoint needs to be adjusted to the actual, real world of a common society held by the overwhelming majority of Citizens.

What can be done, however, is to find better ways to sustain premature infants, identify better ways to identify developmental stages of gestating fetuses, and afford a bit better help to expectant mothers or hosts so as to get children that are better cared for, generally healthy and, perhaps, have some early intervention for treatment of genetic illnesses and deformities. If all the money that had been funneled into this glacially locked 'debate' had been put to something *useful* for the commonly held public society, then we might have fewer premature births, a better understanding of genetic disease and pre-born deformities and actually hold life to be a bit more sacred than we do now as an entire society.

Yes, I take the decision by the SCOTUS in its full context and then APPLY THAT to the max! It seems that no one else wants to do that, so I'm stuck out here on my lonesome sticking to the Constitution and a poorly worded SCOTUS decision.

Silly me!

By stepping away from religious and moral obligations and into personal and ethical obligations with adhering to due process under the law and applying that, you do get a solution to abortion: mothers or hosts of a fetus have the same custodial and steward responsibility starting at the point of viable survival to actually becoming a child that they would have when that child is 'naturally born'. The mother loses no rights as the law has now set the point of viability to citizenship to be amenable to technical ability to keep such a fetus alive to full maturity. The 'Born Alive Act' is a simple statement of that ancient concept: we do not discard viable life as a society.

In this view the fetus that is non-viable can still be aborted: that is not a moral absolute but a legal definition based on technical capability and the means of man.

What is open, however, is gaining more technical knowledge and competence to move that date DOWN - via investment in research, understanding of gestational development and early intervention techniques, the ability of a fetus to be cared for outside of a mother or host then leads to greater understanding of the entire cycle of life from conception to birth and will lead to children who are better cared for as the moral obligation falls on individuals to back what they want to the benefit of all while infringing none. That will not suit those bent on a moral crusade, but will satisfy the Constitution which is a mere creation of imperfect man, not of a deity. And the place where the entire 'stem cell debate' isn't at the use of stem cells, but their source: IVF clinics. It seems that utilizing such for science is not liked by a moral perspective because these genetically unique cells are given personhood, and yet it is perfectly acceptable to autoclave them by the thousands if not tens of thousands or more on an annual basis per clinic.

Luckily I am not trying to make a moral argument but one based on imperfect understanding, imperfect technology, imperfect law and imperfect people. We can and must strive to be in a more perfect Union with our fellow citizens, but that is something we agree to do by BEING citizens. That, too, is created by The Law of Nations... not the base system put down at the start by the Law of Nature red of tooth and claw.

We leave nature to the animals and protect ourselves from it.

To better perfect ourselves and our fellow man, we create new laws to protect us from nature and then hold government accountable for its actions in our name. Humanity, as a whole, fails damned often in this project, but we succeed just often enough to keep things going more or less well. It is only when I start hearing of the 'only solution' to a thing and trying to institute it by law that I begin to hear the words 'Final Solution'. I will leave the final and perfect to that which is whole and above all things in our mortal realm and see if our task of being 'more perfect' can be achieved with the tools at hand.

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