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February 3, 2011

House GOP Anti-woman Language Struck from “No Taxpayer Funding for Abortion Act”

by Stephen Littau

In an attempt to restrict the practice of federal tax funded abortions, the House GOP committed one of the most incredible political PR blunders imaginable: narrowing the definition of rape to “forcible rape.” The “No Taxpayer Funding for Abortion Act” included provisions that would in fact allow for taxpayer funded abortions provided that the pregnancy was the result of such a rape.

So what kinds of rape were excluded? Women who are drugged, intoxicated, mentally incapacitated, under age (i.e. statutory rape), and even date rape victims did not qualify under the House bill’s definition of “forcible rape.” While I do think each of these things should be debated in a criminal justice context, its wholly inappropriate here.

Here’s another example of abortion opponents needlessly taking the issue in to legal territory it need not go. I’ve never quite understood why pro-lifers are so eager to say that there’s no such thing as a right to privacy (though the 4th and 10th 9th Amendments say otherwise) to argue that Roe v. Wade was incorrectly decided. In the case of redefining rape in this legislation, House Republicans could have potentially put women in danger had they had their way. All they really needed to say was “No Taxpayer Funding for Abortion.” Period.

Forget about the whole issue of abortion in the context of this language. It’s not difficult to see why this language wouldn’t play well among women – even to pro-life women. Surly some of these congressmen have daughters, sisters, or mothers? If one of the women they loved was drugged and raped, would they really have the nerve to say that the non-consensual sex was somehow not a rape?

If the bill did somehow become law of the land, it’s not difficult to see how a criminal defense lawyer might use the law to benefit his client: “Your Honor, my client in fact did not commit rape at least as defined in the ‘No Taxpayer Funding for Abortion Act’…he put something in her drink to ‘get her in the mood’ and he likewise took a Viagra.”

Maybe that’s a little farfetched – I don’t know, I’m not a lawyer and don’t even play one on TV. It does seem dangerous though to start redefining words like rape in such a careless fashion.

Fortunately, the offending language was taken out of the bill today due to pressure from various activist organizations but the damage to the sponsors of this bill is surely already done. I fully expect this issue will resurface in attack ads in the next election cycle. This time, the attacks will be well deserved.

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  1. [...] This post was mentioned on Twitter by Doug Mataconis and Liberty Papers, Brad Warbiany. Brad Warbiany said: House GOP Anti-woman Language Struck from “No Taxpayer Funding for Abortion Act”: In an attempt to restrict the … http://bit.ly/fDt5Da [...]

    Pingback by Tweets that mention The Liberty Papers »Blog Archive » House GOP Anti-woman Language Struck from “No Taxpayer Funding for Abortion Act” -- Topsy.com — February 3, 2011 @ 1:08 pm
  2. “… there’s no such thing as a right to privacy (though the 4th and 10th Amendments say otherwise)…”

    You are wrong. Making such an invalid claim weakens your argument.

    The 4th Amendment restricts searches and seizures by government agents. It says nothing about the States regulating abortions, and it does not imply an individual right to privacy. For example, you can be convicted of conspiracy despite all meetings being conducted in the “privacy” of your home.

    The 10th Amendment says that powers not delegated to the federal government “are reserved to the States respectively, or to the people.” This indicates that the States DO have powers that are not granted to the federal government. Such powers include deciding if abortions are legal.

    I believe that women have the right to abort fetuses that are too undeveloped to live outside the womb. However, I also believe that the U.S. Supreme Court ruled incorrectly in Roe v Wade. Nothing in the Constitution prevents the States from restricting or prohibiting abortions, and the Court’s ruling was yet another instance of weakening state sovereignty and creating a de facto national government.

    Comment by Dr. T — February 3, 2011 @ 2:57 pm
  3. The Constitution is a government limiter, not an individual limiter.

    Since there is no positive clause indicating that the federal government can violate individual privacy, that means it can’t.

    States are no more authorized to intrude on individual privacy than they are to authorize slavery.

    Comment by John — February 3, 2011 @ 5:01 pm
  4. Dr. T:

    “The 4th Amendment restricts searches and seizures by government agents. It says nothing about the States regulating abortions, and it does not imply an individual right to privacy. For example, you can be convicted of conspiracy despite all meetings being conducted in the “privacy” of your home.”

    I don’t disagree. It seems to me that if the argument from the pro-life people is that abortion is murder, whether the abortion takes place in private is irrelevant. A right to privacy by no means gives someone the right to take the rights of life, liberty, or property from someone else. This argument should be the argument they make rather than saying that there is no right to privacy.

    Privacy is by no means an absolute right either. The test is, I think, if an individual has a reasonable expectation of privacy. I think most of us believe we have an expectation of privacy in our homes, provided that government agents don’t have a warrant or probable cause to rifle through our homes (of course the Patriot Act has weakened 4th Amendment protections considerably).

    If, however, an individual is out in public, s/he does not have a reasonable expectation of privacy.

    As to your second point about the 10th Amendment – I should have written 9th Amendment (I have since corrected the post):

    “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    For those who say that a right to privacy does not exist because its not spelled out clearly enough in the 4th, I refer them to the 9th.

    My whole reason for bringing up the privacy issue is to point out that this re-defining of rape is not the first time people on the pro-life side have argued a point that need not be argued for the sake of their position.

    “I believe that women have the right to abort fetuses that are too undeveloped to live outside the womb. However, I also believe that the U.S. Supreme Court ruled incorrectly in Roe v Wade. Nothing in the Constitution prevents the States from restricting or prohibiting abortions, and the Court’s ruling was yet another instance of weakening state sovereignty and creating a de facto national government.”

    I think we are in full agreement here. What most people on both sides of the debate seem to believe is that if Roe v. Wade were overturned, abortion would suddenly be illegal in the U.S. If this were to happen (not likely to happen any time soon) the individual states would decide…just as before Roe v. Wade.

    Comment by Stephen Littau — February 3, 2011 @ 8:06 pm
  5. You know Steven, you went, very oddly, from a staunchly “I going to goad the mis-characterization of the abortion debate… from a very obvious side distraction brought about the definition of ‘rape’, into a treatise on the concept of privacy, based on a well educated repudiation.”

    Basically, you wanted a thread that blithely went off into an eddy of “What is the nature of rape in legal standing”, but instead when someone called out what an actual libertarian should be thinking about,you needed to address something else.

    Tip: next time you want to contribute on such a hotpoint like abortion and all that entails, either don’t try to engage in a media side-distraction (in this case an uproar on rape definitions), or, get to the real libertarian philosophical implications of the current abortion law. I think if you went the second route, you would not need to do any mental gymnastics off the bat.

    Comment by procopius — February 4, 2011 @ 10:00 am
  6. “What most people on both sides of the debate seem to believe is that if Roe v. Wade were overturned, abortion would suddenly be illegal in the U.S.”

    Abortion was legal in many states prior to Roe v Wade. After nearly forty years of freely available abortions, few states would be likely to ban them. If some states did, their residents would be free to get abortions elsewhere.

    Comment by Dr. T — February 5, 2011 @ 3:26 pm
  7. I love that nobody anywhere in this debate (in the debate being played out in the media and here) is at all concerned about the fact that female rape victims can get taxpayer-funded abortions if they don’t want to have a rapist’s baby while male rape victims have no choice but to pay child support if their rapist decides that she wants to keep the product of the rape that she committed…

    Comment by Justin Bowen — February 7, 2011 @ 5:38 am
  8. It’s also interesting that it’s already been decided by the courts that men aren’t allowed to abort their responsibility for a child that a woman decides to keep, despite part of the Roe v. Wade decision based upon the economic and emotional burdens of having a child – which has nothing to do with women’s bodies or privacy.

    Comment by Justin Bowen — February 7, 2011 @ 5:57 am
  9. Justin Bowden:

    “I love that nobody anywhere in this debate (in the debate being played out in the media and here) is at all concerned about the fact that female rape victims can get taxpayer-funded abortions if they don’t want to have a rapist’s baby while male rape victims have no choice but to pay child support if their rapist decides that she wants to keep the product of the rape that she committed…”

    “It’s also interesting that it’s already been decided by the courts that men aren’t allowed to abort their responsibility for a child that a woman decides to keep, despite part of the Roe v. Wade decision based upon the economic and emotional burdens of having a child – which has nothing to do with women’s bodies or privacy.”

    Both are very good points Justin. To be honest, I never thought about possible child support obligations of a male rape victim. Do you know of any cases where this has actually happened? The idea that a man should be forced to pay child support for a child he was forced to father is a complete outrage.

    Your second point, though I have thought about, is much more dicey. It’s very clear that the notion of ‘choice’ does not apply to men at all in this current legal framework. Should a man have the ability to force a woman he impregnated to carry his child to term provided he would be willing to support the child on his own and provided the sex was consensual? I don’t have a good answer for that.

    Comment by Stephen Littau — February 7, 2011 @ 11:27 am
  10. Do you know of any cases where this has actually happened?

    County of San Luis Obispo v. Nathaniel J. (1996) 50 Cal.App.4th 842 [57 Cal.Rptr.2d 843].

    Boy’s parents sue to get his baby from mom, 21.

    Hermesmann v. Seyer (here’s a link to the text of the decision.

    I know that there have been more, I just can’t find them at the moment.

    Your second point, though I have thought about, is much more dicey. It’s very clear that the notion of ‘choice’ does not apply to men at all in this current legal framework. Should a man have the ability to force a woman he impregnated to carry his child to term provided he would be willing to support the child on his own and provided the sex was consensual? I don’t have a good answer for that.

    When “abortion rights” for men are discussed within certain circles (in the context of men’s rights activists vs. feminists of almost all stripes), what’s actually being discussed is the ability to “disclaim parenthood after engaging in consensual sex”. Women have the sole right to determine what goes on with their bodies. That’s not what’s being argued by the men’s rights activists. What’s being argued is that part of the reason for why women have that right is that unwanted children are a burden to women who don’t want them or are incapable of caring for them. From Section 8 of Blackmun’s Roe v. Wade opinion (emphasis mine):

    The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved.

    While the physical burden of an unwanted pregnancy is a major part (heck, it accounts for most of it) of Roe v. Wade, the decision effectively grants women free license to get an abortion just because they don’t feel like having a kid because they would rather spend their money on booze and pot. The right to free one’s self from the obligations of parenthood because it’s not convenient ought to be one that’s extended to women and men or to none at all (in which case abortion ought to be banned except when medically-necessary or in the cases of rape or incest) as [pregnancy] being inconvenient has absolutely nothing to do with the physical burden of pregnancy and child-birth.

    An unwanted child is at least as much of a burden for women as it is for men. In fact, in many cases it’s much more of a burden for men than it is for women. Any man paying child support can attest to that fact that the burden of an unwanted child can and does cause mental and physical health to be taxed by being required (by a judge) to work to pay child support and additional difficulties (not paying it – whether because you’re in a coma, a prisoner of war, completely and permanently handicapped, unable to pay it because of job loss or severe recession, because you’re way below the poverty line yourself, or even because you’re not the father – can land a man (and only a man) in prison (by the way, aside from being sent to prison for tax evasion, being sent to jail and prison for failure to pay child support is the only form of debtor’s prison left in the US (and most of the rest of the world)), to say nothing of having wages garnished, tax returns confiscated, property seized, licenses of all kinds revoked, and passports seized)). That the right of men to “disclaim parenthood” when it’s not convenient is even an issue shows just how far we’ve yet to come in terms of gender equality.

    Sorry for being so verbose. I can’t help it sometimes.

    Comment by Justin Bowen — February 7, 2011 @ 6:49 pm
  11. “What most people on both sides of the debate seem to believe is that if Roe v. Wade were overturned, abortion would suddenly be illegal in the U.S. If this were to happen (not likely to happen any time soon) the individual states would decide…just as before Roe v. Wade.”

    Stephen — with all due respect, that’s bullshit. You can’t really think about this like repealing a law — it’s repeal and replace.

    The Supreme Court isn’t going to magically say “oh, all those emanations and penumbras and privacy were wrongly decided, therefore we strike down that decision with no other implications.”

    No, if Roe v. Wade is going to be overturned, it will be because the Court finds a compelling Constitutional argument that outweighs the “privacy” argument. What’s about the only way to get there? To decide that a fetus is a human being with rights and those must be protected under 14th amendment grounds. Hence why Republicans care so much about getting Social Conservatives on the courts, not libertarian conservatives. They want abortion overturned, and the only way they’ll get it is if the Supreme Court actually defines life.

    Comment by Brad Warbiany — February 7, 2011 @ 11:03 pm
  12. Thanks for the links Justin, I will certainly check it out.

    I agree with much of what you wrote with regard to men’s rights, child support, etc. I do have some personal experience in this area and I’m sure that the law varies quite a bit from state to state. I adopted my two boys that my wife had sole custody of a few years ago. Their father was very hit and miss in paying child support (mostly miss) but we ultimately decided that adopting them as our own would be better for their well being than trying to pursue the child support. We took the matter to court and to our surprise and relief, their father didn’t fight us…he willingly gave up all rights to them and thus his responsibility to pay child support.

    The point of my sharing this is that there are ways that men can absolve themselves of their responsibilities. I can’t say for sure if a parent can “sign away” his or her rights without the other parent consenting though (again, I’m not a lawyer and again, probably varies from state to state).

    No need to apologize for being verbose. I’m the last person in the world who could criticize someone for that : )

    Comment by Stephen Littau — February 8, 2011 @ 11:35 am
  13. Brad:

    “Stephen — with all due respect, that’s bullshit. You can’t really think about this like repealing a law — it’s repeal and replace.”

    I don’t know Brad, is it really bullshit? From my (admittedly) limited lay study of the SCOTUS rulings I have read, this court tends to be very narrow in its opinions. This Roberts court seems to answer the legal question at hand and not go much further. This court tends to let most of the other implications be battled out in the lower courts until it reaches them again at some future date. Even if the more socially conservative members on this court had the opportunity to make a ruling to overturn Roe v. Wade, I doubt they would make an effort to go much beyond (i.e. replace) simply overturning.

    Admittedly, this is all highly hypothetical on both our parts. Much depends on exactly what the question is before the court and the makeup of the court at the time the question is presented. I can’t imagine that any truly socially conservative judges (or really any libertarian judges for that matter) would survive confirmation as I doubt a GOP filibuster proof majority in the Senate will happen anytime soon (which of course would require a president who would wish to appoint such a judge).

    Sure, “repeal and replace” could happen but I don’t think it’s very likely – even if the social cons do get their way in the next election cycle or so.

    Comment by Stephen Littau — February 8, 2011 @ 12:09 pm
  14. Maybe Doug could weigh in and help us straighten this out…

    Comment by Stephen Littau — February 8, 2011 @ 12:24 pm

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