The Corner

A Few More Emails…

On abortion etc…


First, to mollify the red state orientation and reactionary element that is NRO I think one of those steam trains that goes from D.C. through West Virginia in a day would really cover all bases and should be explored for a “cruise.”

Second, in law school Gtown professors thought this “good Samaritan” law stuff was devastating to conservatives. As it happens I was against good Samaritan laws because affirmative duties to do good are not something free societies deal with well, and worse, inevitably the person with the responsibility (duty) in the law also has a duty to do it non-negligently which is a recipe for damned if you do damned if you don’t litigation. However, for the reasons you state a drowning baby that is a stranger to you is a lot different from a non-dying unborn child who is related to you! We all have greater responsibility in the law to our own children. The analysis should be turned against Glen (as he recognizes in the case of unwed fathers’) because whereas you have no direct duty to other people’s children you most certainly do to your own. It is another reason the abortion regime he touts so assiduously violates natural justice.


Let’s assume that there is no federal right to abortion.

So, if you are a Virginia legislator, what do you propose that the law on abortion should be, and why?

My understanding is that many of those who describe themselves as “pro-life” believe that the government should protect a fetus from the moment of conception exactly as it protects a person already born.

This would require that a woman who intentionally undergoes an abortion, except in self-defense, and any person who assists her in that endeavor, be executed, or imprisoned for life. All persons involved should be treated precisely as they would be if they took a 15-year old child, brought him to an office, paid a doctor money and held the kid down while the doctor stabbed him to death with scissors.

If you don’t like this idea, then perhaps we should execute only the doctor and not the woman. Or perhaps not execute anyone, but jail the doctor for awhile, or pull his license to practice medicine.

But why such relatively light punishment, unless you believe that killing a fetus isn’t really as bad as killing a person who is already born? But if it’s not really as bad, then what’s it like? What are you “protecting”? How is what you are “protecting” different from the 15-year old.

I’m going to guess that the last thing the Republican Party wants is for Roe to be overturned. There are all kinds of jurisprudential and political reasons why this might be a good thing, but an overturning of Roe would have the ironic effect of forcing Democrats (and I’m going to use “Democrats” and “Republicans” as a short-form for “pro-choice” and “pro-life”) to deal in a disciplined way with making the distinction between reasonable and unreasonable restrictions on abortion, while ripping the Republican Party in half. Right now, it’s the other way around: Democrats have infantilized themselves by relying on the judiciary to make their case for them, while Republicans get a free ride – they can campaign against a decision without having to deal with the real-world effects of “winning” and of squaring their pro-life campaign with the principles that underlie that campaign.

Just some thoughts. I guess you would call me “pro-choice”, but I’m somewhat conflicted and my view stems more from a libertarian and pragmatic streak then from any sort of conviction about “rights”.



The drowning baby analogy is not terribly useful when you properly

analyse the source of the common law duty of care.

The duty the bystander has to the baby at common law comes from his or

her positive decision to assume responsibility for the welfare of the


The relationship that a pregnant woman/ bystander have to the

foetus/drowning baby don’t exactly have the same staring point when it

comes to the issue of responsibilty.

On the foetus issue alone, I have always thought it curious that a

third party can have a duty of care to avoid injury to an unborn child –

a duty that he or she will have in some circumstances irrespective of

their personal preference – but when it comes to the mother, it is a

matter of her choice.


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