This blog started out as a companion piece to my book, Musings from the Christian Left (excerpts of which can be found in the July 2004 link) and to support a planned radio show. Now, its simply a long term writing project from a Christian Left Libertarian perspective (meaning I often argue for liberty within the (Catholic) Church, rather than liberty because the church takes care of a conservative view of morality.

Saturday, November 11, 2017

How is Life a Right? A Letter to Pro-Lifers

Over the past few days, I have been having a debate with an unnamed troll on the Comments Page for an article on lessons for the Church after a year of Trump. The crux of the discussion was about whether the unborn have a right to life. I am reproducing a few of my comments here so as to help the movement find the right venue to seek rights for the unborn under the constitution (whether there is a divine right is only somewhat relevant to any right they may gain or have recognized under law. Until the movement finds the right path, embryos will continue to circle the drains at Planned Parenthood.

The unborn definitely have a right to life. The government cannot force their mothers to abort them. However, the constitutional right to life does not include not being murdered by a non-governmental party. That takes positive law. Not mumbo-jumbo. Fact. Because the state is not seeking their deaths (nor Democratic Catholic politicians) there is no negative right to life, i.e., it cannot simply be declared as a natural right. It is a positive right that must be enacted, and the states are constitutionally incapable of doing so.

Murder is a term of art. Abortion is not even manslaughter under the law. Do you want purity of law or many fewer abortions? The former is like going after undocumented workers for the misdemeanor of overstaying a visa and making it look like a crisis. I care about the human result. If purity of law is all you want, we have no use for you. If you are in this to promote the GOP, then you are more complicit with those murders than any pro-choice Democrat.

Stopping your mother from aborting you is a positive right, as well as minimum wage and insurance. Preventing mandatory abortions and allowing flag burning are negative rights because they prohibit government action. Being free from mandatory suicide is a negative right too, but no one advocates physician mandated suicide. Palliative suicide, however, is probably a civil right one day because it would limit government interference.


Only the sovereign national government can. Until it does, states cannot legislate on the unborns’ behalf, which is the essence of privacy.  You can argue if you want, but I am giving you the keys to the kingdom. You even have an ostensibly pro-life Congress. Go to it!

Until the movement accepts this as fact, because legally it is a fact, it is either deliberately ignorant or committing fraud. That is the obvious. I am not saying this because I like abortion rights but because until this question is faced, abortion continues. Because federal action is necessary to recognize the unborn and because abortion is a private action, rather than action of government, the right to not be aborted is a positive right rather than a negative right.

Negative rights can be declared, and the impact is automatic. Positive rights require legislative action to secure. Person is a legal, not biological term. In the United States one is a person at viability unless the state determines a different point in the second trimester. No first trimester embryo or fetus is a legal person. There is a problem in the first trimester having to do with miscarriage.

Until you can formulate language which stops abortion and does not implicitly include tort relief or investigation of miscarriage by police (and if you try to simply declare it, every abortion will be listed as miscarriage, so every miscarriage will be investigated), you cannot get away with a first trimester ban politically, which you must do because not being aborted is a positive right. The fact that the lead lawyer for the movement is Jay Sukalow means that he probably does not even understand what I am saying because he panders to his clients, not a good quality for a lawyer, and he is certainly not smart enough or well enough trained to come up with the language that would be required.

The fact is that the Court found that laws prohibiting abortions violated the due process rights of women to be left alone in their private medical decisions. Who makes the decision is vitally important because the states pander to reactionary elements, such as yourselves.

 I am sure the bishops would love the enhanced power that they can wield locally to go unchecked on things like gay marriage, sodomy, contraception and abortion if federal supremacy were overturned by overturning Roe. That is not religious freedom, it is religious power. I wish they would work harder on expanding Medicaid and fighting tax cuts, locally and nationally. I have no objection to the USCCB insisting on the best federal abortion law the GOP can pass. I welcome it, but the GOP would not because it would be the end of the ability of the movement to attract members to their campaigns. I would hope that such a compromise includes living wage measures, both $15 minimum and $1000 per month per child.

You must decouple from the movement to remove federal supremacy from sodomy and gay marriage. The bishops may want it, because they have more power over state legislatures than Congress, but that is because they can organize a mob against individual rights of smaller, less popular minorities. The latter is the most apt definition of tyranny I know.

Regarding birth control, the moral principle being enforced by Catholic doctrine is that if one is not certain that a life is at stake, that the life must be given the benefit of the doubt. Gastrulation removes doubt about the legitimacy of birth control. After this, the embryo is a person, but unless the state is killing it, protecting it is a positive right, not a negative one. That means that it takes state action, fetal rights cannot simply be declared and then let the chips fall where they may. That is just legal laziness.

The question of how much power to give the state in the first trimester can only be made by Congress (and no one else), but it has to be balanced against how much power to give the state over all such pregnancies, else the miscarriage rate goes the roof and you get every case investigated anyway. Any law will give you the status quo unless you want to deal with Downs abortions. This fine if you are willing to put up or shut up on supportive care.

Until you understand that protection from abortion, like protection from any crime, is a positive right demanding legislation, in this case federal legislation, then you will be seeking the wrong thing and misleading others. What I am saying is not apologetics. You are furiously defending your right to wrong in your legal interpretation. That does nothing for the unborn.

The best legislative option is not the impossible task of bringing police power to the first trimester of pregnancy in a way that does not touch miscarriages or ignore equal protection principles (which the courts will not allow anyway) but to bow to Pius XI and Marx about living family wages and pass a huge tax credit for children. My kid gets such a payment from Social Security because I am disabled and because I made good money it’s a good payment. I don't need such a tax credit, but most families with children deserve one, regardless of the likelihood of abortion.

We already do $1000 a year in child tax credits. Ending exemptions gets us to $1600 (I thought that would give an even $1000 more, but I overestimated effective rates). End mortgage interest and property tax gets you to $6000 or $500 per child per month. Ending SNAP and TANF family benefits and negotiating state level matches probably go high enough, although building it all into a subtraction VAT on employers will allow distributing it with payroll and raising the rate enough to make sure it is adequate (and indexing it).

If you got my point, you would have a chance of winning, at least partially. although that would be bad for GOP fundraising and volunteers, but Trump already burned that bridge. What I mean is that the SCOTUS will and should never forsake federal authority on this issue to the states, or on sodomy, marriage equality and the rest.

There are those who want that done to renew the days of Catholic political power, aka mob rule. Any plan that still goes that way is simply taking a fall (in boxing terms) to get paid and look busy for the voters. Knowing that, you must take responsibility for not following options that are not in conflict with the federal control over the states established by the 14th Amendment. Any fetal deaths that result are on you, because you could have gone down a more productive path. One that does not make guys like Richard Viguerie wealthy.

The unborn have a Dred Scott problem. Indeed, the remedy for Dred Scott, the 14th Amendment, caused that problem because southern states believed they could deny rights to anyone whose grandfather was not free, leading to the Amendment. Not mumbo jumbo, but history. The solution cannot come from the states. Anyone who says it can is taking your money and volunteer time to elected and give tax cuts to rich people.

Do you support the rich, the ambitions of the Catholic bishops or the unborn? There should be only one answer and it involves calling your Senators and Representatives now and asking for a bipartisan bill settling when life begins under the Constitution. Anything not bipartisan will simply be repealed in 2019. This must last.


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