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From: matt@brl-tgr.ARPA (Matthew Rosenblatt )
Newsgroups: net.abortion
Subject: Re: Human beings and their Rights
Message-ID: <447@brl-tgr.ARPA>
Date: Mon, 5-Aug-85 17:22:16 EDT
Article-I.D.: brl-tgr.447
Posted: Mon Aug  5 17:22:16 1985
Date-Received: Wed, 7-Aug-85 03:19:45 EDT
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Organization: Ballistic Research Lab
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RICH ROSEN writes:
> 							  What right does a
> society have to take away "rights" from me?  A limited right insofar as it
> makes regulations forbidding interference with other human beings, so as
> to maximize the benefits of the society.  What other justification can you
> come up with, besides "we say so", to support any moral restriction?

OK, that's a fair question.  What we're talking about is the so-called "police
power" of the state, which is only indirectly related to "the police" as those
who enforce the power of the state.  The police power is the power the people
have granted to the state to restrict people's freedoms in the interest of the
"public health, safety, morals and welfare."  (My definition comes from a 1936
Maryland case deciding that the state may not require paperhangers to obtain a
license before practicing their trade.)  In any given instance, we must weigh
the freedoms being restricted against the good to be derived from restricting
them.  Quarantine is a pretty drastic restriction of freedom, but it is often
justified by the need to protect the public health.  Building codes tell you
what you can and cannot do to the structure of your own private home, but they
are justified by the public safety -- someday you may sell your home to
someone who would be hurt by your illegal wiring or plumbing.  Minimum wage
laws are justified by the public welfare:  If you can work for 25 cents an
hour, you're driving down the wage level for everyone else in your line of 
work.  

It's in the area of the "public morals," whatever those are, that Mr. Rosen
doesn't think society has the right to interfere with people's freedoms.
He says that the ONLY legitimate reason for interfering with someone's
freedom is to prevent him from harming some other person.  He says
the burden is always on those who want to restrict freedom, not on
those who want to leave it alone.  That's only partly correct.

"It's always been this way" is not an "arbiter of justice," and I never said
it was.  However, current practice has an effect on the burden of proof,
in the following way:  The practical burden of changing the law is on the
one who wants to change it.  If he does nothing, the law remains as it is.
As an example relevant to this net, current law allows abortion on demand
through the sixth month of pregnancy, and (in most states) bans it after
the sixth month, except to save the woman's life -- that's what the Roe v.
Wade case decreed.  Those who want to ban abortion on demand during the
first six months have the burden of convincing the lawmaker to change the
law; those who want to legalize it any time before birth also have the
burden of convincing the lawmaker to do so.

Once the validity of a "police-power" restriction on freedoms is challenged,
then indeed the burden falls on those supporting the law to defend its
restriction on freedom.  This is done by a weighing process, and the
people have been and are entitled to consider safety, health, welfare
AND MORALS during this process.  Government never has used, and is not
required to use, Rich Rosen's rules in running the country -- we have a
Constitution.

>> But even those who accept your main principle do not have to come to your
>> conclusion about abortion.  Who decides what "harming" means? (ROSENBLATT)
> 
> The definition of harm is precisely what debates on how far morality
> can go in terms of restriction should be all about.  Instead, they have
> been clouded by other things as the debaters seem to have lost sight of
> that goal. (RICH ROSEN)

No argument here, Mr. Rosen.

>>								 My point
>> is that these arguments exist, on both sides, and even a society that
>> agrees that a citizen can do anything he wants to as long as he does not
>> harm other people can reasonably conclude that killing a fetus is harming
>> a person and therefore not a right to be recognized.  (MATT ROSENBLATT)
> 
> You're not making the point you're making.  (Paradox time.  Colonel Klink?
> Call Colonel Hofstadter immediately!)  You're assuming your conclusion
> (that the fetus is a person) as part of your argument while admitting that
> you don't have the answer to the question.  (RICH ROSEN)

No, I'm not assuming that a fetus is a person.  I'm assuming what I wrote,
viz., that society can reasonably conclude that killing a fetus is harming
a person.  If society concludes, from scientific evidence or otherwise, that
the fetus is a person with rights worth protecting (as the 1973 Court did
about third-trimester fetuses), then even under Mr. Rosen's liberal rule,
society can conclude that killing a fetus is harming a person and therefore
not a legitimate right.

Moreover, a lawmaker has certain duties and obligations in the case where
he is NOT SURE whether allowing a given practice will harm the public health,
safety, welfare and morals.  But that's a subject for a net.abortion article
all by itself.

>> When I write that one million abortions a year is pretty awful, that is not
>> part of any "proof" -- it's my opinion.  (MATT ROSENBLATT)

> If you can't back up your "opinion" when attempting to legislate it as
> morality, I suggest you back off.  The argument boils down to more than
> that.  It boils down to the weighing of priorities, and the evidence that
> the not-yet-living thing inside the woman's body, using her internal
> resources for sustenance, cannot logically take precedence over her
> own rights.  To do so would make removal of tumors, or even viruses,
> illegal.  Or are you just being arbitrary?  (RICH ROSEN)

Yes, it boils down to the weighing of priorities (including the father's
rights, if any).  No, I won't agree that the fetus is a not-yet-living
thing -- that's an "ipse dixit" argument.  Removal of tumors and viruses
is legal, but:

QUESTION FOR DISCUSSION:

Is it legal for a man to hire a surgeon to amputate a perfectly good arm
or leg?  (My answer:  No, removing a healthy limb is mayhem, a crime not
against the amputee but against the Queen's peace (or the state, in the USA),
and the amputee's consent to, or even procurement of, deliberate mayhem
will be no defense for the surgeon in a criminal trial for mayhem.)

Should it be legal for a man to hire a surgeon to amputate a healthy limb?
Maybe the man can make more money in a circus if he has only one arm or leg.
Maybe the person is in love with an "amputee fetishist" who will relate only
to an amputee.  Should it be his decision, since it's his own body?  Or do
we as a society feel that such a thing (as Fantine's selling her good teeth
to a dentist in Hugo's "Les Miserables") should not be allowed to happen?

>>						 Anyone with a moral system
>> who is trying to convince others of its validity would have to justify it
>> to an outsider.  My point is that that includes Rich Rosen, too.  His moral
>> system, which includes
>>>							rights to do
>>> whatever one wishes that doesn't harm other people,
>> 
>> and *postulates* "personal rights" that the banning of abortion "usurp[s],"
>> also has to be justified.  If it were self-evident, it would be self-evident
>> even to me and the other pro-lifers, including those in State legislatures
>> who will soon be deciding what limits to put on abortion. (ROSENBLATT)

> Perhaps the fact that is isn't is borne out by your preconceptions about
> precedence.  I didn't think the owner of the body coming before other
> people or things sounded very "preconceptive" to me.  (RICH ROSEN)

The "owner of the body"'s right to do WHAT, as against WHAT rights of
"other people or things"?  The owner's right to do whatever he wants
without hurting others is THE preconception of liberalism.  Taken as
an absolute, it leads to conclusions unacceptable to me and, I submit,
probably unacceptable to most participants in this newsgroup, whether
pro-life or pro-choice:  How many advocate abortion on demand (including
the "right" to ensure that the fetus does not survive) all the way
through the ninth month of pregnancy?  How many advocate legalizing
heroin for recreational use?  How many advocate legalizing sex between
a consenting adult and a consenting ten-year-old?  

If a principle, taken as an absolute, sometimes leads to conclusions
unacceptable to society, then society is within its rights not to take
that principle as an absolute.  Instead, society must carefully review
each argument based on the principle, to see whether such arguments
collide with other, possibly equally valid, principles.  And if there
is a collision, society must decide which principle to uphold.

					-- Matt Rosenblatt