The Unacceptable Compromise

[Alien Space Bats]

This is a thought experiment I came up with over twenty years ago. It is not intended as a serious political proposal, although in evaluating it, I urge you to pretend as though it were; by so pretending, you will be better able to gain full appreciation of its value.

The idea behind this thought experiment is to get you to clarify your thinking on several key issues that - thanks to the way these things work in American politics, are somewhat related - including (but not limited to) abortion, women's rights, gay rights, and drug use.

It's called the Unacceptable Compromise because almost no one I know would support it. That said, how you respond to it is the important thing.

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Three Consitutional Amendments are submitted to Congress for approval; if approved, they are to be sent to the States for ratification.

The legislation calling for their passage and ratification is very specific: The three Amendments are linked together, such that Congress will not be considered to have passed any of them by a 2/3 majority until all have been passed by a 2/3 majority; likewise, no State shall be considered to have ratified any of them until it's Legislature has ratified all three of them, in accordance with its local ratification procedures.

Here are the three Amendments:

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Right to Life Amendment

Section 1. Except where specifically noted herein, nothing in this Constitution shall bar any State or territory or the District of Columbia, with regard to any area over which it has jurisdiction, from allowing, regulating, or prohibiting the practice of abortion.

Section 2. Abortion shall not be prohibited in any case involving medical necessity, or in any case where a physician has judged that all unborn children involved no longer have the capacity to be born viable.

Section 3. No criminal charges may be assessed against anyone for performing an unlawful abortion, but civil penalties may be imposed; no woman may ever be charged in a case involving the loss of her child due to abortion or miscarriage.

Section 4. This amendment shall take effect two years after the date of ratification.

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Right to Privacy Amendment

Section 1. The right of the people to privacy is recognized and shall not be infringed.

Section 2. This amendment shall take effect two years after the date of ratification.

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Equal Rights Amendment

Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex.

Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

Section 3. This amendment shall take effect two years after the date of ratification.

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For reference, the first offering is a modified version of the Whitehurst Amendment, introduced in the House of Representatives by William G. Whitehurst (R-VA) in March, 1973; it was essentially intended to be a directed Constitutional override of both Roe v. Wade (1973) and Doe v. Bolton (1973). The additional wording is intended to soften the effect of overriding Doe, as the original wording of the Whitehurst Amendment would have allowed draconian measures to be imposed on women who are suspected of self-abortion or induced miscarriage; repealing Doe would also make it possible for States to ban therapeutic abortion and the abortion of non-viable fetuses (i.e., fetuses that cannot survive birth).

The second offering is a slightly modified version of Article I, Section 22 of the Alaska State Constitution; Alaska is one of the few States that has a Right to Privacy.

The third offering is the exact text of the Equal Rights Amendment, as written by Alice Paul in 1927 and enacted by Congress in 1972. When enacted, Congress imposed a ten-year time limit on ratification; when that time limit expired, the Amendment was still three States short of ratification.

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Remember, the three Amendments have to be enacted together. Think of it as a political compromise: To get what you want, you need to give up something else.

So here's the question: Is this a compromise you'd accept? If so, why - and if not, why not?

[Caninope]

The last two I see as unnecessary, considering that both are covered by the 9th and 14th Amendments, respectively.

[Nulono]

I would support this if it went further on abortion, ensuring the personhood of all unborn children.

[Buffett and Colbert]

The first is severely messed up, and the last two are both redundant and dangerously vague.

[Nulono]

It's unreasonable to say that no criminal charges can be brought on a homicide.

[Georgism]

I would support this if it went further on abortion, ensuring the personhood of all unborn children.

You murderous baby hater!

I'd only support it if sperm and egg cells are considered legal persons. Menstruation and masturbation should be banned!

[Alien Space Bats]

Well, you're not going to get the right for fetuses to sue in Federal court, Nulono, so you can kiss that one good bye.

But since this is a thought experiment:

@Caninope: Assuming that you're right about Privacy being guaranteed by the 9th Amendment and Equal Rights for Women guaranteed by the 14th (which I disagree with on both counts, BTW), what would be wrong with codifying them in formal language, so as to keep future courts from reversing the Supreme Court rulings that have established them as implicit rights?

@Buffet and Colbert: The Privacy Amendment is vague, yes - it's worded much like the 2nd Amendment, and intended to have the same sort of strength as the 2nd Amendment (which means more privacy than is furnished by the 9th, in response to Caninope). The ERA, however, doesn't seem vague at all: It states that neither the Federal government nor the States can grant, abridge, or deny rights on the basis of sex. Where do you see that being a problem?

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For my part, the linkage between abortion, privacy, and women's rights is this: If we decide to let States (and D.C.) regulate and even ban abortion again, we would want to make sure they can't extend that right to birth control, or use it to force women back into second-class citizenship on the grounds that they're walking incubators. Privacy makes Griswold golden, and the ERA ensures that women can't be subjected to different laws than men just because they are (or could get) pregnant; the Right to Life Amendment gives States (and D.C.) back the power to regulate or ban abortion, but they can't go crazy with it, and - as worded - it also guarantees that therapeutic abortions remain legal.

I'm not saying that even I would support this; I'm certainly not proposing it. The idea is to see what it says about your beliefs, and what you think matters.

For me, what matters are women's rights (including reproductive rights) and equality. I don't like abortion, but I fear what banning it could do to the freedom women have struggled to achieve all these years.

[Caninope]

@Caninope: Assuming that you're right about Privacy being guaranteed by the 9th Amendment and Equal Rights for Women guaranteed by the 14th (which I disagree with on both counts, BTW), what would be wrong with codifying them in formal language, so as to keep future courts from reversing the Supreme Court rulings that have established them as implicit rights?

The Supreme Court currently agrees with me on both counts, ASB.

Regardless, I'm opposed to the codification of both. While the right to privacy certainly is protected, I don't think it is to receive the same level that some other rights are to receive, like free speech and freedom of religion.

Once again, I believe that the ERA is the best. Sometimes, there has to be inequality/difference between the sexes underneath the law.

[Alien Space Bats]

Regardless, I'm opposed to the codification of both. While the right to privacy certainly is protected, I don't think it is to receive the same level that some other rights are to receive, like free speech and freedom of religion.

Once again, I believe that the ERA is the best. Sometimes, there has to be inequality/difference between the sexes underneath the law.

Those are sound points. The objection has been raised to Alaska's Privacy Right that it's too strong, so I can see that perspective.

As for the ERA, I suppose it's an open debate as to whether "equal rights" effectively translates into "no differences". And I could see some interesting consequences coming from the passage of the ERA, especially where it comes to parental rights after divorce.

Curiously, how do you feel about the first one? Does it achieve what it was intended to achieve (overriding Roe without overriding Doe, and allowing States to choose rather than imposing a single solution on all States)?

[Ragnarsdomr]

What is defined as 'privacy', however? Is it what goes on within one's bedroom? Within one's house? One's houseboat, car, pockets? There needs to be a specific definition included, or else the law will be interpreted any way possible with the first trial. In fact, it's likely to cause more harm than good to create a needlessly vague law from political opposition between two different views of that law, needlessly long court cases trying to define 'privacy' first before deciding whether it applies to the case, etc.

Ditto for the third. How far does equality go? Does it mean identical results, or identical treatment? There are multiple ways to treat that statement as well.


As for the first, I'm not entirely sure if maternal surrogacy is legal in America, but supposing it was, what would apply then? Would the surrogate mother's right to control her own body and her right to abortion supersede the contract between the employing individual and/or couple and the surrogate mother? If she is legally allowed this abortion, should she be forced to repay the couple, with additional fees for breach of contract?

Again, another question lies with marital laws. In Canada, you're legally allowed to annul a marriage if there is falsehood on the part of one of the parties (lying about whether or not they are sterile, as an example). If one party promises as a pre-condition of the marital contract to bear the other partner at least a single child, and then has abortion because she's changed her mind, would this allow the marriage to be annulled? Or would they have to go through normal divorce proceedings?

[Call to power]

If I am to pretend I live in the 70's then yes I would pass it having found section 1 arguably inoffensive (in that the federal may not be the best way of solving the issue) which good lord it does put me in bad company but I will defend my decision by the idea that I am a EU citizen and thus I would not like to see the ECHR fuck about in Ireland too hard.

I find the privacy law a little vague and the equal rights amendment unacceptable in 2011 again however where I sent back to the 70's I would find it a good compromise (and I would totally bang Donna)

[Caninope]

Regardless, I'm opposed to the codification of both. While the right to privacy certainly is protected, I don't think it is to receive the same level that some other rights are to receive, like free speech and freedom of religion.

Once again, I believe that the ERA is the best. Sometimes, there has to be inequality/difference between the sexes underneath the law.

Those are sound points. The objection has been raised to Alaska's Privacy Right that it's too strong, so I can see that perspective.

As for the ERA, I suppose it's an open debate as to whether "equal rights" effectively translates into "no differences". And I could see some interesting consequences coming from the passage of the ERA, especially where it comes to parental rights after divorce.

Curiously, how do you feel about the first one? Does it achieve what it was intended to achieve (overriding Roe without overriding Doe, and allowing States to choose rather than imposing a single solution on all States)?

The first one is something I'll reserve my judgement on. While I very much dislike abortions, I don't know if I would ban it, even if given the power. There's the arguments to be made that it violates freedoms of women, as well as the laughingstock of the world it would make the US.

I would try to discourage and reduce abortions, certainly. But I don't know if I'd pursue an amendment that bans them.

[There is no cow level]

this is a waste of time, first; I'm in support of abortions and the majority of pro-lifers out there are actually men so it is really nothing more than a last-ditch effort to further oppress and deny women a right that they have. If women went around and tried making it illegal for men to get vasectomies or tried making it illegal for men to sign there rights off to a child so that they would be forced to have the obligation to raise the unwanted child then there would be an uproar but because it's the other way around with men dictating to women it's okay. Second; Privacy is for the most part protected unless a judge signs a warrant, nothing more needs to be said. (excluding the patriot act). and third; equal rights will take a long time before it gets passed, there are just too many people form both genders that adhere to double standards and see no problem with it.

[Alien Space Bats]

Ditto for the third. How far does equality go? Does it mean identical results, or identical treatment? There are multiple ways to treat that statement as well.

Equality of rights. Just rights, not outcomes or anything else.

The ERA was written in 1927 and was subjected to over 45 years of careful scrutiny before it was first passed by Congress in 1972. I don't think there are a lot of surprises there, all things considered.

As for the first, I'm not entirely sure if maternal surrogacy is legal in America, but supposing it was, what would apply then? Would the surrogate mother's right to control her own body and her right to abortion supersede the contract between the employing individual and/or couple and the surrogate mother? If she is legally allowed this abortion, should she be forced to repay the couple, with additional fees for breach of contract?

I think you're reading far more into the modified Whitehurst Amendment than is there. In its original form, the Amendment consisted of just the first line (and only part of it, at that):

Section 1. Except where specifically noted herein, (N)othing in this Constitution shall bar any State or territory or the District of Columbia, with regard to any area over which it has jurisdiction, from allowing, regulating, or prohibiting the practice of abortion. (striking out the words I added - ASB)

Essentially, all it really does in that form is undo all Supreme Court rulings vis-a-vis abortion that are based on Roe (and possibly Doe, although Doe might still stand in part afterwards).

As far as the situation you describe, that is actually legally possible now; nothing in present law prevents such a case from coming up and/or being heard (given my layman's understanding of the law, I'd say that a surrogate mother can always get an abortion if she wants, and that the parents of the blastocyst implanted in her can then proceed to sue her for breach of contract, with a court to decide the matter on its merits, including damages; this Amendment has absolutely no impact on that, aside from maybe letting States pass a law to prohibit a surrogate from doing something like that if they thought there was a rational basis for such a rule).

Again, another question lies with marital laws. In Canada, you're legally allowed to annul a marriage if there is falsehood on the part of one of the parties (lying about whether or not they are sterile, as an example). If one party promises as a pre-condition of the marital contract to bear the other partner at least a single child, and then has abortion because she's changed her mind, would this allow the marriage to be annulled? Or would they have to go through normal divorce proceedings?

Again, the case you raise has no bearing on what we're talking about here. Abortion is legal in Canada, so you'd have to ask a Canadian lawyer about that. Since abortion doesn't foreclose on future children, I would think not - but again, I'm not Canadian.

[Nazi Flower Power]

The first one is something I'll reserve my judgement on. While I very much dislike abortions, I don't know if I would ban it, even if given the power. There's the arguments to be made that it violates freedoms of women, as well as the laughingstock of the world it would make the US.

I would try to discourage and reduce abortions, certainly. But I don't know if I'd pursue an amendment that bans them.

The amendment proposed in the OP does not ban abortions. It just puts the decision at the state level.

@ASB, I don't think we need these amendments. The first one is not something I want and the other two would not do very much. It would be nice if the government showed more respect for the right to privacy, but that is already partly covered by existing laws, and the proposed amendment is very vague so that it leaves a lot of room for interpretation and is unlikely to have much effect. With women's rights the issue is very much a question of societal attitudes more than legal rights. Legally, women already have equality.

[The Cat-Tribe]

This is a thought experiment I came up with over twenty years ago. It is not intended as a serious political proposal, although in evaluating it, I urge you to pretend as though it were; by so pretending, you will be better able to gain full appreciation of its value. *snip*

I won't give my bloviated opinion at this time, but I did want to give you kudos on a great thought experiment.

Hopefully some will fully absorb it and appreciate it.

[Alien Space Bats]

Who I haven't heard from yet are anti-abortion advocates (well, aside from Nulono, and he's obsessed with giving fetuses the right to sue their mothers and fathers in Federal court, so nothing short of full citizenship from the moment of conception is going to please him). It occurs to me that much has changed in the last 20 years: Today's conservatives might not be happy with having the States get back the right to ban abortion; for them, nothing short of a nationwide ban followed by an American declaration of war on every foreign country that dares to permit the practice is probably the only thing that would suffice.

Still, I'm curious to see what the response from that quarter will be.

[Octopucta]

So here's the question: Is this a compromise you'd accept? If so, why - and if not, why not?

More or less I'd support this. I would like to work on the abortion one some more, but I guess that's why it is allowed to be regulated at the state level. The privacy bit seems a little strong, but it is acceptable. The third one should have been around years ago.

After seeing ASB post, I would like to see the right to abortions protected in two situations, with any other regulation at the discretion of individual states.
1. Cases where the mother life is threatened or the child has no hope of surviving for a too be decided amount of time after birth.

2. Cases of rape (to be considered on a case by case basis)

[Ashmoria]

so i have the right to privacy and i have the right to be equal to men but i dont have the right to decide my reproductive fate.

what is the question here?

[Ashmoria]

im really confused at what you are supposed to be offering ME.

right now i have a right to privacy and a mostly right to be equal to men. so all you are offering is to take away my right to decide whether or not i want to continue any pregnancy.

that doesnt seem to give ME an upside.

[Octopucta]

so i have the right to privacy and i have the right to be equal to men but i dont have the right to decide my reproductive fate.

what is the question here?

I believe the question is whether or not you'd be willing to accept the compromise of two garunteed rights and one that can be decided by individual states.

[Ashmoria]

so i have the right to privacy and i have the right to be equal to men but i dont have the right to decide my reproductive fate.

what is the question here?

I believe the question is whether or not you'd be willing to accept the compromise of two garunteed rights and one that can be decided by individual states.

ya but i already have those 2 rights. unless he is suggesting that they get taken away if i dont take the "compromise" i dont see any benefit to ME.

[Octopucta]

ya but i already have those 2 rights. unless he is suggesting that they get taken away if i dont take the "compromise" i dont see any benefit to ME.

I believe he is suggesting that you don't actually have those rights, or at least they aren't guaranteed.

[Seperates]

Wait a second, wait a second... in this compromise they are saying that the states have the right to ban a women's right to her reproductive organs, and then in the same compromise saying that they are equal to men?!

This is pure hypocrisy.

[Alien Space Bats]

so i have the right to privacy and i have the right to be equal to men but i dont have the right to decide my reproductive fate.

what is the question here?

You do and you don't.

The Right to Privacy is supposed to make Griswold unassailable. Remember that right now, conservatives believe that they have the votes to overturn Roe. The big question is how they'll do that:

• If they do it by accepting the conservative view that a compelling state interest is present the moment human life exists (i.e., from conception onwards), you're in trouble. Why? Because the only way they can reach that conclusion is pretty much by either deciding that the state's interest in women as walking incubators is strong enough to justify the intimate regulation of women's lives, or that the state has a compelling interest in satisfying the religious convictions of a majority of the population, in which case all the rest of those religious convictions become equally compelling.
  
  
• If they do it by rejecting the whole idea of substantive due process, then you're screwed because a woman's right to use birth control with or without the consent of the government (or her husband) is no longer something the state must respect; indeed, none of your rights are.
  
  
• If the do it by presuming (as Nulono would like) that fertilized cells are 14th Amendment citizens with full legal rights, including the right to sue their mother's asses off, then obviously those tiny organisms' interest in barring you from doing anything that might reduce their chances of being born happy and healthy take precedence over any and all freedoms women now enjoy, and again reproductive freedom (or, for that matter, and and all other freedoms) go out the window.

IOW, whatever happens, women's reproductive freedom (and most other freedoms) aren't going to survive the demise of Roe.

Other than the freedom to have lots and lots of babies, that is.

That Right to Privacy locks in reproductive rights. It locks in the right to use birth control, it locks in the right to have your doctor represent your interests and not the state's, and a host of other things besides. Giving that up in exchange for losing the right to an abortion on demand is certainly a loss. The question is, is it an acceptable loss in the face of the possibility of a much larger loss from a future ruling of the Roberts Court?

Wait a second, wait a second... in this compromise they are saying that the states have the right to ban a women's right to her reproductive organs, and then in the same compromise saying that they are equal to men?!

This is pure hypocrisy.

Hypocrisy? Maybe. Isn't hypocrisy the Mother's Milk of political compromise?

As I said, it's a thought experiment. I'm waiting for the conservatives to cruise in and say that giving women the right to use birth control without restraint and pursue lives outside the home as a matter of strict Constitutional language is too much of a price to pay to roll back Roe.