Guest Blog: Defending the Claims in The Party of Death
February 15, 2010, Ramesh Ponnuru
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Editor’s Note: Several interesting comments and questions were left after our recent review of Ramesh Ponnuru’s book, The Party of Death. Ponnuru generously gives us his time to addresses some of those concerns here.
I’ll deal with three issues either raised by your commenters, all of them interesting and complicated ones.
First, does the Constitution recognize fetal personhood? Do human fetuses count as “persons” within the Constitution?
I’d make three points here. A) The answer does not have to be “yes” for Roe v. Wade to have been incorrectly decided. The view taken by, for example, Justice Antonin Scalia is that the Constitution is silent on the matter of abortion and states may, as far as the Constitution is concerned, have laws that are permissive, restrictive, or anything in between.
B) The most common argument against the fetus as constitutional person is that many of the Constitution’s references to “persons” have no possible prenatal application. Justice Blackmun in Roe, for example, notes that the provision commanding states to extradite “person[s]” in some circumstances is highly unlikely to apply to fetuses. But it doesn’t apply to toddlers, either, which doesn’t mean that they aren’t constitutional persons. Blackmun also notes the provision saying members of the House must be “person[s]” aged 25 or older: Again there’s no applicability to fetuses. But there’s also no applicability to teenagers, and that does not make them unpersons with respect to the Constitution, either.
C) I don’t have time to outline this argument in full, let alone defend it against all possible objections, but I will note my bottom-line conclusion: Human fetuses are constitutional persons within the meaning of the Fourteenth Amendment’s guarantee of equal protection to all citizens persons; states that allow the intentional killing of human fetuses but not human 14-year-olds are thus violating the Constitution; Congress has the power and indeed duty to make sure that states don’t violate the Constitution in this way; the Supreme Court has very limited power to do anything about this type of constitutional violation.
Second, does the claim that human fetuses have the same right not to be deliberately killed that human adults have mean that those who kill a fetus must get the same punishment that those who kill adults get?
No; the conclusion does not follow from the premise. Legislators may legitimately consider a number of things in figuring out what punishments to impose for various offenses in addition to what rights those offenses violate. They may for example legitimately take into account the ways a woman’s procuring of an abortion often differs from the hiring of a hit man and an abortionist’s killing of a fetus often differs from the hit man’s act: the understandable if misguided desperation and compassion vs. the typical malice. They may also legitimately take into account what is necessary to provide protection. It may turn out that to provide protection to unborn children it is necessary only to remove medical licenses from abortionists on the first offense and impose steep fines on them for a second offense. They may, additionally, legitimately take into account the need to acquire evidence against abortionists by exempting the women who procured abortions from any legal penalties whatsoever. Some such consideration seems to have been behind the pre-Roe abortion laws of many states.
Third, is the pro-life position a “conservative” one?
In some ways yes, in some ways no. Most people who believe that there is an objective moral order that transcends human invention (whether or not they are religious) incline to the pro-life side, and that view is fairly central to many types of conservatism. On the other hand the pro-life position’s demand that government protect the weak, defenseless, and voiceless makes its political psychology a bit “liberal” in contemporary terms. The key question of course is whether the position is right rather than whether it is conservative or liberal. (If on the other hand you meant to ask a political question—can a conservative politics in America succeed in practice if it abandons the cause of the unborn?—I think the answer is no.)
Update: I just noticed a mistake I made in my note to you. The equal-protection clause does not apply only to "citizens" but to "persons"; my argument does not make sense otherwise, since the fetus is of course not a citizen! If you post my note please change that word. Best, Ramesh
Ramesh Ponnuru is the senior editor of National Review and the author of The Party of Death.
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I just wanted to personally thank Ramesh Ponnuru for taking the time to answer these questions and concerns. He certainly didn't have to. I first contacted him in private correspondence and he promptly responded. The fact he took the time to intelligently respond to some near-anonymous comments on an obscure blog speaks highly of him and shows his sincere pro-life beliefs.
As for his response, I believe it effectively answers all comments left after the book review. It is exactly what I would have liked to have said but lacked the intelligence and eloquence to do so. - Matthew Cochrane
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It is nice to hear from the busy writers out there especially when one has paid to read their stuff and even more so in my case, because though it's second hand in some cases, I've read it for free.
The answer to number three shows, however, that my question is misunderstood.
It's not surprising in 1. C. that there is inadequate time to explain a statment which flatly contradicts the Amendment XIV statement that one way to become a citizen is first to be born by simply repeating the incorrect statement itself, ie "Human fetuses are constitutional persons within the meaning of the Fourteenth Amendment’s guarantee of equal protection to all citizens." I'll remind you that fetuses by definition have not been born and to be a citizen you first have to be born. I'm only repeating what the amendment says. Is it too hard for Ponnuru to explain because it is inexplicable or because the explanation is incomprehensible?
1.A. is merely saying that legalized abortion would be constitutional if a state said so. I'm not sure how significant that is. That position of course ignores how the Supreme Court applies Amendment XIV as well since equal protection is applied across the nation. Crossing state lines to gain access to legalized abortion goes unaddressed as well.
1.B. gets into the a priori realm so he is welcome to believe as he wishes but asserting it is not a convincing argument.
#2's response might be a strawman. I'm not sure. If it's in response to something I said, here's what I meant: it doesn't make sense to me to punish the abortionist and not the aborter if abortion is wrong and abortion is reverted to being an illegal act. I didn't say the aborter has to face capital punishment which appears to be what Ponnuru is answering. But, the clarification, nevertheless, is a good one and might perhaps allay some of the fears on the part of the pro abortion side. Allowing aborters self abortion but not the assistance of abortionists seems to be their concern though as reflected by the coat hanger seen at pro abortion rallies. - c
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There's an interesting article on Fox News right now:
http://www.foxnews.com/story/0,2933,585843,00.html?test=latestnews
One of the people who are against the sign makes this comment:
"The language in the billboard is using messages of fear and shame to target women of color," said Leola Reis, a spokeswoman for Planned Parenthood of Georgia. "If we want to reduce the number of abortions and unintended pregnancies, we need to work as a community to make sure we get quality affordable health care services to as many women and men as possible."
I am DYING to find out exactly how "quality affordable health care services" will prevent abortions???
Are they some how suggesting that elective services like a vasectomy or a birth control pills should somehow be subsidized by the government??? Or is the lady just so delerious with Obama regurgetant that she has absolutely no idea what she's saying???
What next... the solution to our financial disaster is to get "quality affordable health care services to as many women and men as possible"? Or maybe... the way to win the war in Afghanistan is to to get "quality affordable health care services to as many women and men as possible"?
- Todd
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Todd, since you are sort of off thread, here's one for you.
Non faith based Anti abortion logic arrives at an interesting position when taken ad absurdum which goes like this: we are all just gamete receptacles/transmitters/receivers waiting for opportuniites to form embryos. Anti abortion advocates are saying ultimately that the embryo's host is not allowed to choose whether to carry the embryo/fetus to birth. Therfore it follows logically that she should not be allowed to decline any offer of a male gamete especially during fertile periods. Choosing not to receive the gamete is the same as choosing not to continue hosting potential life.
A woman who chooses to abort a fetus on the other hand is preventing a birth which was never intended nor desired (for various reasons). The anti abortion group can only counter that they want every egg to become fertile. Some pro abortion people seem to sound like all fetus should be aborted but in general I think it is clear that every woman should be allowed to make her own decision. - c
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"Therfore it follows logically that she should not be allowed to decline any offer of a male gamete especially during fertile periods. Choosing not to receive the gamete is the same as choosing not to continue hosting potential life."
" The anti abortion group can only counter that they want every egg to become fertile."
This argument is one of the silliest and easily refutable I have ever seen. Indeed, it is hard to take seriously. The embryo possesses the active capacity for self-directed growth and maturation through the various stages of a human life. Persons in the embryonic or fetal stage of development also possess their own unique DNA. In other words, by all biological and scientific considerations, he/she is a person.
The male gamete, on the other hand, is simply an extension of the male person it belongs to. Same with the female egg. Neither of those cells possess those traits that make the embryo a unique person.
The pro-life position has always been the following: No one should be allowed to destroy or kill an innocent human life. To suggest otherwise is either deliberately misleading or proof that the person making the argument shows a clear lack of understanding surrounding the basic premises of this issue. - Matthew Cochrane
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I like the way things are silly or dumb when you don't follow what is being said esp in this case when i pointed out that this is an ad absurdum argument. That post was addressed to Todd, btw. My post to you must have been too challenging. - c
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So, when all is said and done, I have the following to say about Matthew Cochrane either here or at NCT (and I'll say it here because he deletes my comments at NCT):
- there is not a consistent, clear anti-abortion message to be found in the Bible
- it's not found in the Constitution either
- in fact, the Bible focuses on the individual's conscience instead of that of others
- Even Ramesh admits that it would be ok for a state to permit abortion. Therefore, it isn't illogical for the Supreme Court to permit it in light of Amendment XIV.
- there is not a clear argument explaining that conservatives should be anti-abortion just because one is a conservative
- there definitely is no logical basis for a non faith argument to illegalize abortion - c
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C, I understand your argument, but I think it's VERY semantical. The way I see your argument is kind of like... is the grass REALLY green, or is it more of a light green?
The Constitution, and our laws until Rowe VS Wade had absolutely nothing in there SPECIFICALLY about the act of terminating a pregnancy.
You say however that there is no logical basis for a non-faith argument to illegalize abortion. But... you could apply the rights of the individual to the baby (in the womb). Although I'm very religious, I prefer to keep arguments on a purely non-theological basis simply because it allows for subjectiveness in the argument for people who may not be religious themselves.
There is an argument... and that can be defined on what, and at what point we consider the fetus to be "LIFE". I would go so far as to say that technically, the fetus is alive from the moment of inception simply because the cells are "alive". But at what point does the fetus become an individual. Is it when the infant gets a social security number? (I sure hope we don't come to that). Or is it when the baby starts to show brain function (which could in fact be measured, but I can't think of anyone who's tried).
- Todd
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Todd, yes I do really focus on what the applicable documents mean, because we can't really be telling people what to do unless we can speak authoritatively. Pro-lifers have nothing to base their position on that carries wait with those who disagree with them. This in a nutshell has been my point all along.
Taking your last para. first, an individual is an individual is an individual. An individual is not attached to a woman's insides. Fetus are.
I just noticed Ponnuru's update btw and I was aware of his mistake. I'm glad he caught it because it really lowered my regard for his post. But, regardless, the fetus is not an individual so equal protection is at the mercy of the mother or the cruelty of the aborter. They, the women, are the persons protected by the Constitution.
Para. two Abortion was permitted in at least one state prior to Roe. See NCT on that one.
Para. three There is no non faith reason that a woman would choose to place the rights of the fetus above her own unless she desires to have a baby. Carrying the baby to term satisfies her goal to become a mother. I'm also a believer in Christ and I can see how my faith applies to how my wife and I have decided to be chaste before marriage and our son's amniotic fluid had issues. She gave birth and he's fine in fact he was a valedictorian and healthy in every way except a little inner ear issue. That was our choice. Additionally, if my kids' decisions led to unwed pregnancies, we would counsel them to take the fetus to term and deliver their babies. BUT I haven't seen a non faith argument that supports that type of altruistic thinking.
I would, based on my own conscience, define life at viability, but I have meant to be clear that that is not what I think is crucial. What is crucial is the benevolence or malevolence of the pregnant woman. The fetus is her property. But I think that is the gap to focus on, ie the individual decision level rather than the legal level and the Gospel is the key to the right thinking and living of individuals.
There are btw Biblical passages that support the fetus as property or which argue against unloving mothers. The Constitution does not recognize fetal rights and there are other issues which better define conservativism besides abortion. - c
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carries wait is sorta ok I guess but I meant carries weight. - c
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So, Todd, that is why the pro life position is not credible. The pro abortion group as seen in their reaction to the Tebow Superbowl includes people with guilty consciences. A Christian's personal experience may have some credibility depending on their example and the listener's receptivity which can help them find a clear conscience and reconciliation with God. That is what I choose to focus on. - c
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"An individual is not attached to a woman's insides. Fetus are."
"the fetus is not an individual so equal protection is at the mercy of the mother or the cruelty of the aborter."
These definitions of an "individual" are completely arbitrary. Why can't a fetus or embryo inside his/her mother be considered an individual? You never say. Of course, science would argue otherwise. As I've written before, science has demonstrably proven, beyond a doubt, that the individual human life begins at conception, not birth. To suggest otherwise one is forced to make up their own arbitrary definition of life.
In a debate over national policy we are not afforded this luxury. We must submit to a more standard definition of life than some arbitrary definition. Science gives us this standard.
"The Constitution does not recognize fetal rights"
This argument is a bit misleading. Again, you're automatically assuming your arbitrary definition of a person from which the person in the fetal/embryonic stage of development is excluded. The Constitution does recognize the rights of persons so, once again, the question returns to whether the embryo/fetus is a person. Science says it is.
"The fetus is her property."
Again, this is just your own arbitrary opinion. It is not based on the Constitution or science or anything else except, perhaps, others' arbitrary opinions. Besides which, I always find it a bit chilling when I hear people refer to other people as "property."
"There are btw Biblical passages that support the fetus as property or which argue against unloving mothers. "
In the South, people used to say that slavery was okay because the Bible "endorsed" it. These arguments always excluded context and a clear understanding of theology, as does this statement. As for the Bible speaks out against unloving mothers? I'm baffled by that statement and am not sure how you wih to apply that in any meaningful way to this discussion. - Matthew Cochrane
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- c
So, when all is said and done, I have the following to say about Matthew Cochrane either here or at NCT (and I'll say it here because he deletes my comments at NCT):
- there is not a consistent, clear anti-abortion message to be found in the Bible
- it's not found in the Constitution either
- in fact, the Bible focuses on the individual's conscience instead of that of others
- Even Ramesh admits that it would be ok for a state to permit abortion. Therefore, it isn't illogical for the Supreme Court to permit it in light of Amendment XIV.
- there is not a clear argument explaining that conservatives should be anti-abortion just because one is a conservative
- there definitely is no logical basis for a non faith argument to illegalize abortion
- Anonymous
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And, additionally, no one is making you abort anything MC - c
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THe slavery analogy is also on the side of choice btw in Amendment XIII: involuntary servitude shall [not] exist.
Put yourself in that place, ie being forced to bear a fetus when you absolutely don't want to. Then, you might understand. It is possible to help when help is wanted and to get out of the way when it isn't wanted. - c
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I guess your scientist friends will have to invent a technology that transfers the fetus of an reluctant pregnant woman to life support and your conservative friends will have to find a way to fund it just as people have to find funds to continue life support for their family members for whom they choose to procure it. - c
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Now I KNOW I'm going to be called a RINO here... but since you bring up "life support"... in cases where a person has specifically stated in their will that they wish to be taken OFF life support in instances where they will be stuck in a vegetative state, then I totally agree with it, despite whether or not the family wants it or not. You have to abide by the wishes of the family member within reason.
Obviously, within reason... if the person says he wants to be buried in a Lamborgini... and the man doesn't have a penny to his name... he'll have to settle for a Pontiac Fiero.
- Todd
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LOL, that's pretty good. How 'bout a little red wagon. Personally, I'll take an Austin-Healy 3000 preferrably before I flatline.
Since science is now in vogue at least when it puportedly agrees with NCT and in the form of lifted quotes taken in isolation, I wonder if NCT would agree with science on the origin of the species, earth, and the universe.
Regrettably I took the bait anyway and went down NCT's usual rabbit trail in this case of science on personhood to the standard text for Developmental Biology and found the following:
The temporal divergence between the progressions of thought leading to answers of when human life begins reveals a shift in the source of knowledge that is used to answer one of humanity's most puzzling questions. Prior to the twentieth century, God was humanity's source of absolute knowledge. In recent years, however, scholars have terminated the utility of God's omniscience and in its place have raised science and technology as their source of absolute knowledge. This shift is evidence for, perhaps, the most determinant factor of any argument for when human life begins. The reasons governing the variation in both historical and modern views of when life begins is largely due to a variation in moral standards.
However, understanding the basis for societal moral standards appears to be the key to discerning how to approach the question of when human life begins. Science has not been able to give a definitive answer to this question. One opinion is that the acquisition of humanness is a gradual phenomenon, rather than one that occurs at any particular moment. If one does not believe in a "soul," then one need not believe in a moment of ensoulment. The moments of fertilization, gastrulation, neurulation, and birth, are then milestones in the gradual acquisition of what it is to be human. While one may have a particular belief in when the embryo becomes human, it is difficult to justify such a belief solely by science. (http://8e.devbio.com/article.php?id=162)
So, to the list of inconclusive schools of thought on the illegality of abortion which includes politics, constitutional law, and religion, you may add science. But, Roe v. Wade pretty much said that back in the 70s. So, the Constitution is pretty much conclusive that choice trumps anti abortionists. The real question is do you trust in Jesus and would you like to discuss it. - c
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For me this isn't about Religion, but about the moral implications (unrelated to theology), also of which is causing a declining society. We have become a society that rewards everyone for everything. People are no longer forced to take responsibility for their actions. In today's society... everyone gets a trophy, everyone wins. That's now how life works. There are winners, and there are losers. No one can win at everything and no one can FAIL at everything. How do you become a winner? By not making mistakes. When you talk about abortion... the Democrats immediately go to the 1% of the population with exceptions... incest, rape, etc. Great, we'll make considerations for that. But for everyone else... deal with your mistake. That's life...
As far as I'm concerned, if the baby has brain activity (which is almost immediate I'm sure), the baby is a life... if the heart beats, it's a life.I would love to see a law get passed that required people to watch the abortion take place on an ultra-sound imaging. At least then, they couldn't have their cake and eat it too... and they would have to at least be forced SOMEWHAT to deal with the responsibility.
- Todd
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Okay, Todd, the green police (a la Superbowl) are coming for you. who defines what is responsible. And a roll in the hay that leads to pregancy warrants 9 months of pregancy and 18 years of providing? For you maybe. For others maybe not. Who decides.
The link explains when brain activity shows up and again there are differences of opinion. It seems the prevailing opinion is about the same as viability 24-27 wks I think.
But, really understanding the decision prior to aborting ain't a bad idea and looking at the imagery is one way, but does the Constitution require adult education? Funding of public education was probably court mandated in the interest of the state. Attendance to age 16 was too but home schooling probably overrides that and the state doesn't check up on the effectiveness of home schooling (I don't think). Since there is no license requred to get pregnant, a tape viewing reqt would probably be impractical. - c
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How about a law that would require the doctor provide it on a big screen to the patient. The patient would then have the right to close their eyes if they want. No one is forcing them to get an abortion...
It's an elective procedure, and part of the requirements of the elective procedure would be to make the abortion viewable on the screen. - Todd
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I don't think that would pass Constitutional testing but you are on the right track. Pre op waivers are just to protect the doctor from some lawsuits.
BUT, I could support legislation like this wholeheartedly: abortion clinic workers must be licensed to perform or assist in abortion procedures. Licensing requires initial and periodic ethics training to include watching a video of ultrasound imagery taken during an abortion.
Of course, it probably wouldn't pass where abortion is popular because such a reqt in the opinion of the Sanger advocates/pro choice folks at NARAL and PP would indirectly restrict choice.
But, I like the idea. I guess something like that could be part of sex ed in the public schools to discourage teen pregnancy and if you don't want to watch it, you may opt out of that part. Interestingly, you had to have kids for them to be in public school, so you might lean towards showing such a video. If you don't have kids, you might be less inclined to support it but there are independent thinkers out there. - c
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Btw, here's the implication of Amendment XIV since it was mentioned a while ago. A citizen is born. That's the requirement to get citizen rights. So the writers of that amendment may have said, "Well what if you are not a citizen? What if you were born somewhere else?" Do you not have some basic rights? So they clarified that no state shall deprive any person of equal protection (implying "regardless of where they were born"). The context (a discussion of people born in the US) says a person (in the second case in this paragraph) is someone born elsewhere. A priori logic predictably grasping at straws reads something different into the phrase (out of context and incorrectly), ie that personhood includes a fetus. Additionally, it's unlikely that Amendment XIV targeted 1860 era states with lenient anti abortion laws so the writers were most likely referring to people born outside the US in the equal protection clause. And, of course, the amendment, we know, was targeting unequal treatment of former slaves who were often born outside the US. But, more power to you, if you are able to prove that a fetus is a person and has the same rights as the pregnant woman who carries the fetus and in fact takes precedence over that same woman which requires the woman to take it to term, you might still have trouble getting abortion illegalized. - c
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It's more than a bit interesting that the equal protection clause is used to oppose abortion but it is not used to support gay marriage. Picking and choosing is probably not within the definition of justice. - c
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"And, additionally, no one is making you abort anything MC."
This is an interseting take, though I highly doubt you apply this philosophy consistently. No one makes me smoke marijuana but we still have laws against it. No one makes me shoot heroin, but we still have laws against. There are literally scores of laws against things that no one "forces" me to do.
"Put yourself in that place, ie being forced to bear a fetus when you absolutely don't want to. Then, you might understand."
This is easily countered: Put yourself in the place of the person about to be aborted. The right to life obviously should take precedence over the right for the mother to not go through with an unwanted pregnancy.
- Matthew Cochrane
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What it comes down to 99.5% of the time, is the mother just doesn't want to be hassled with the repercussions of her mistakes. Plain and simple... that's what it is. For the other .5%... sure. But for everyone else... put the baby up for adoption. There are tens of thousands of families looking to adopt children. I can guarantee to you one thing... if a woman goes through 9 months of pregnancy because she messed up, she definitely won't do it by accident again.
- Todd
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MC, fortunately Jesus didn't think like you but was full of grace:
1 John 4: 9-10 - c
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There are literally scores of laws against things that no one "forces" me to do.
and that explains why abortion isn't illegal - c
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Todd, this is faith based, but as the biblical acct goes, Solomon thought he had two women, both claiming to be the mother, that would rather see a baby die than go to someone other than themselves. So, he threatened to cut the baby in half because he suspected they didn't love the boy. Not the fetus,, the baby. And the story concludes that the people saw that Solomon's wisdom was from God. So, what does that say is best for an unwanted fetus? - c
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Jesus Christ cleaned up a lot of loose ends in the New Testament on things that were simply odd in the old Testament (like the two daughters getting their father drunk and impregnanting them in Genesis). Even though King Solomon was the favorite, he still had his faults.
Regardless, this argument about abortion has nothing to do with religion to me. It's a moral and ethical obligation to society to not only grow our culture, but protect the lives of those who cannot protect themselves. Whether we like it or not, when you have sex, babies are made... and when a baby is forming, that's a life... - Todd
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That's great, Todd. That's your opinion as to what your obigation to society is. THe Supreme Court decided that the State does not need for everyone to have that same definition and they have recognized that the State is not in a position to legislate the decision. - c
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C, maybe I really need to watch my mouth... I just got this e-mail this morning:
"Amazon.com recommends "Old Testament Foundations: Genesis Through Kings: Year One: Teacher Guidebook (Catholic Biblical School Program)" and more"
I think He is trying to suggest something. Sorry God, I did not mean to offend!
- Todd
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I heard a comedian this morning say, "Sin doesn't cause earthquakes. If it did, where's Tiger Woods' earthquake." - c
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Speaking of Tiger, Dali Lama (sp?) says he hasn't heard of him but Buddhism does provide the discipline to overcome adulterous tendencies. Tiger's apology seemed to include a response to Brit Hume's props for Christianity and forgiveness by saying he needs to get back on the Buddhist program. Lama seems to confirm Brit's point. Tiger should have started with a Henny Youngman joke, "Take my wife, ladies and gentleman...please." On second thought, maybe not. - c
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But there is one thing that can be said for the former Tiger, he wasn't keeping his gametes from making contact with other gametes. He was very pro life! - c
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Todd, here's a possible application of Amendment XIV in support of the Amendment II
http://liveshots.blogs.foxnews.com/2010/02/28/supreme-court-guns-case-preview/
A decision on this could would indicate where the tenthers' chances are. - c
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I also just read that post. I have a good feeling this will pass, or be re-affirmed to all 50 states... - Todd
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There's an easier solution to the teen pregnancy part of the question:
http://www.huffingtonpost.com/2010/02/24/the-funniest-headline-fai_n_474212.html#s70485 - c
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http://video.foxnews.com/v/4080656/second-amendment-showdown#/v/4080445/keeping-tabs-on-potential-terrorists/?playlist_id=87249
more on Amendment II/XIV - c
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He makes a good point "C", there's really very little you can do about it. Without upsetting the amendment rights... as he said... we have no preventative detainment. And we shouldn't, of course...
They act like this stuff is all new, but we had just as many psychos through other administrations than we do now. - Todd
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