Death and Its Complement

26 June 2022

On each side that is allowed a wide audience, public discourse on the subject of abortion is dominated by knaves and by fools. Arguments are offered that don't withstand much scrutiny.

But the overturning of Roe v. Wade will not result in a simple division of states into those that permit abortions in all or in almost all cases and those that forbid it in all or in almost all cases; the supposed dichotomy that has been imposed by insinuation from the commanding heights of our culture will be falsified. While I doubt that the policy adopted soon by any state will be the correct choice, the adoption of a multitude of policies will provoke a larger number of people to think more carefully about the criteria that ought to decide amongst policies.

Confined to the margins of recent discussion has been a very simple and important idea, which is the complement of the concept of brain death. This idea will make its way to the center of discussion.

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2 Responses to Death and Its Complement

  • Every other country that wants abortion available to women has made a law allowing it. The US Congress has not. No amendments either. We cannot and should not expect the Supreme Court to make laws for us - a dangerous precedent. If the US Congress had the guts to make a law following Roe vs Wade, we wouldn’t be in this mess. But it seems our Congress doesn’t want to touch this mess. Therefore, back to the States we go. So why is everyone screaming? If you don’t like The States making the rules, then get after your congressman. Nope. It’s easier to get hysterical and threaten Supreme Court justices who threw out what even RBG called a bad decision.

    • Daniel says:

      If the Federal government has much constitutional authority concerning abortion, that authority is found by way of the Ninth Amendment (as Justice Kennedy said). Otherwise, abortion is intrinsically a matter for the constituent states, and the authority of Congress is limited to that granted in the second sentence of Article IV §1: Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof. The section as a whole is very problematic, and consequently courts have fudged its interpretation. A long line of precedent has empowered Congress very freely to impose its will upon interstate transactions of any sort. But, still, that would amount to no more than ensuring that states could not criminalize abortions performed or obtained by residents when outside of their jurisdictions, that women or abortionists could travel for the purpose of performing or of obtaining abortions in jurisdictions in which they were legal, and that abortifacients could be sent into jurisdictions of states that otherwise prohibitted abortion. (Use of the abortifacients could still be criminalized within these jurisdictions.)

      Effecting an Amendment would require advocates to state a principle clearly and to defend it well enough to obtain support from a super-majority of the legislatures of the constituent states. I'd welcome the attendant debate.

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