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Does the Convention Against Torture apply to abortion?

The Convention Against Torture defines torture as:

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
The United Nations Committee Against Torture oversees the implementation of the treaty. Among the nations which have ratified the CAT is Nicaragua. The government of Nicaragua, which is currently led by the Sandinista National Liberation Front, has outlawed abortion in all circumstances. A May 15 report from the UN Committee suggested that the ban is a violation of the Convention Against Torture. In the country report for Nicaragua, the Committee wrote:
The Committee was deeply concerned about Chile's [sic] anti-abortion law, which prohibited abortions even in cases of rape, incest or when the life of the mother was at stake. That meant that women victims of violence were subjected to continuing violations, placing them under serious traumatic stress with the risk of incurring long-term psychological problems. A further concern were reports that human rights defenders were systematically harassed and received death threats, as well as the fact that women defenders of reproductive rights were subjected to criminal investigations.
Amnesty International has been pushing the issue, and castigated Nicaragua's abortion law in an April report to the UN Committee. After the Committee issued its statement, AI called on Nicaragua to comply wiht the CAT by liberalizing its abortion laws, including by repealing all criminal sanctions against abortion providers.

The AI argument, and the UN's partial support for the argument, strike me as a good example of the UN's readiness to use human rights treaties to advance an agenda which has no genuine relation to the treaties. A report from C-Fam indicates that other UN Committees have been using their own particular treaties to pressure Nicaragua on abortion.

It is indisputable that childbirth is often very painful, and that some pregnancies can have severely painful or life-threatening complications; it is also true that abortion can cause "severe pain and suffering" for the fetus. However, the CAT itself defines "torture" only to include "severe pain and suffering" which is inflicted for certain motives--none of which appear to be present in Nicaragua's case. Rather, the Nicaraguan law appears to have been enacted for the purpose of protecting fetal life--not surprising in which a country where almost all the people are either Roman Catholic or evangelical Protestant.

The UN Committee raised concerns about harassment of "human rights defenders" and "women defenders of reproductive rights." The claims of harassment (if factually accurate) would very likely indicate violations of other human rights treaties which guarantee freedom of speech, of political activism, and so on. But the harassment (as long as it fell short of torture) would seem entirely unrelated to the jurisdiction of the UN Committee Against Torture, unless one concludes (as AI argues) that banning abortion is sometimes a form of torture; in that case, pro-abortion speech would be considered anti-torture speech, and therefore the harassment of speakers have some relevance to the international law against torture.

FWIW, if I were an American legislator (and presuming that Roe v. Wade had been overruled) I would not vote for a law like the Nicaraguan one, and if I were a Nicaraguan, I would never vote for a Sandinista. But the facts do suggest that the UN Committee is treating the Sandinista government very unfairly, indeed unlawfully.

Bill Poser (mail) (www):
I agree that international law barring torture is inapplicable in this case, but at the same time, I would argue that while reasonable people can differ on non-therapeutic abortion, preventing a woman from having an abortion when carrying the child to term puts her at risk of serious injury or death is a violation of fundamental human rights, namely the right to self defense. A woman is surely entitled to decide that her life is privileged over that of her unborn child, even if one believes that a fetus is a person.
5.28.2009 5:32pm
AJK:
The fact that they couldn't even get the name of the country right says about as much as you need to know about the intellectual seriousness of these efforts.
5.28.2009 5:32pm
Pand Raul, son on Pon:
It very well could apply. The abortion of a fetus probably does cause severe pain pain and/or suffering to the fetus, which is intentionally inflicted on a person (the fetus) to punish the fetus for an act a third person (the mother or the raper) has committed. The pain and suffering is inflicted by the acquiescence of the government.
5.28.2009 5:35pm
AJK:

The abortion of a fetus probably does cause severe pain pain and/or suffering to the fetus, which is intentionally inflicted on a person (the fetus) to punish the fetus for an act a third person (the mother or the raper) has committed.


From the title, that's where I thought the post was headed.
5.28.2009 5:38pm
hrl:
A couple of observations:

First, they did in fact get the name of the country right in the actual concluding observations. The quote given by Mr. Kopel is from a UN press release, not from an official document. The concluding observations themselves are for now only available in Spanish, here.

The relevant part of the observations is at para. 16. Anybody who has actually read the observation, not to mention the CAT itself, would have seen that the Committee is NOT saying that the prohibition of abortion even in cases of rape or incest would amount to torture under the CAT definition. It clearly would not. But the CAT does not prohibit only torture, but also other cruel, inhuman or degrading treatment or punishment, in Art. 16. In that regard, the actual reader would have seen that the Committee explicitly refers to Art. 16 CAT when it made its observations on abortion.

Think what you may, but the statement that forcing a woman by law to bear a child that has been imposed on her against her will, through the commission of an incredibly traumatic crime, qualifies as cruel or inhuman treatment, is at the very least plausible.
5.28.2009 5:41pm
Avatar (mail):
Setting a broken leg is an extremely painful process. Should that also be prohibited as torture? Obviously not.

On the other hand, breaking someone's leg and then setting it without anesthetic, with the proper intent, is torture. Then again, so is breaking legs of prisoners for more or less any reason, with a small number of medical exceptions.

I suppose you could propose an analogous situation (if you intentionally inflicted a pregnancy on a woman and then denied her an abortion in order to make her go through painful childbirth), but I don't know that denying her the abortion when the government wasn't responsible for the impregnation is equivalent to torture, any more than it would be for a doctor to inflict distress setting a leg that some criminal had broken.
5.28.2009 5:59pm
ruuffles (mail) (www):

I don't know that denying her the abortion when the government wasn't responsible for the impregnation is equivalent to torture

is actually

I don't know that denying her the setting of her leg when the government wasn't responsible for the accident that broke the leg is equivalent to torture
5.28.2009 6:07pm
Oren:

Setting a broken leg is an extremely painful process. Should that also be prohibited as torture? Obviously not.

If done for the purposes listed, yes.
5.28.2009 6:10pm
M N Ralph:
Interestingly, the article defining torture limits it to "such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind." Article 16, which prohibits for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind and which is the actual basis of the UN report (not torture as Professor Kopel mistakenly implies), does not expressly include the same "purpose" limitation. Is this purpose limitation implied for Article 16, even though not expressly stated? If not, Article 16, and thus the CAT, seems incredibly broad in application.
5.28.2009 6:16pm
Volokh Groupie:
I was going to cosign AJK's sentiment that that's what I thought the post would be about after reading the title.

And I'm fascinated to hear that according to ruuffles aborting a fetus is now akin to denying someone medical treatment to an unnatural injury.
5.28.2009 6:20pm
AnthonyJ (mail):
The abortion of a fetus probably does cause severe pain pain and/or suffering to the fetus
Well, once the fetus is actually capable of feeling pain; the major brain structures responsible don't develop until week 26, so pain is felt earlier it's not entirely clear what mechanisms would be involved.
5.28.2009 6:21pm
Just an Observer:
However, the CAT itself defines "torture" only to include "severe pain and suffering" ...

Actually, CAT says "severe pain or suffering."
5.28.2009 6:23pm
http://volokh.com/?exclude=davidb :

The AI argument, and the UN's partial support for the argument, strike me as a good example of the UN's readiness to use human rights treaties to advance an agenda which has no genuine relation to the treaties.

Hence DK's interest: this episode is proof that next, the UN will climb into its black helicopters and come for our guns.


The government of Nicaragua, which is currently led by the Sandinista National Liberation Front, has outlawed abortion in all circumstances.

So much for the monolithic Left.
5.28.2009 6:26pm
Leo Marvin (mail):
I'm pro-choice and pro-CAT, and this undermines both.
5.28.2009 6:31pm
einhverfr (mail) (www):

A woman is surely entitled to decide that her life is privileged over that of her unborn child, even if one believes that a fetus is a person.


I have met some folks (interestingly they were all Catholics, but were a small minority of Catholics I have met) who disagreed with that. However, it is objectively true for reasons of medical fact: the best way to protect the fetus is usually to protect the mother. If there are life-threatening complications, the most likely outcome if the mother dies is that the fetus will die too.

This rule is nothing more than religious dogma run amok in the law. I wonder how many copies of the Philipino film "Silip" one can send to folks in Nicaragua.....
5.28.2009 6:50pm
ruuffles (mail) (www):

And I'm fascinated to hear that according to ruuffles aborting a fetus is now akin to denying someone medical treatment to an unnatural injury.

How is a pregnancy gone ary such that it risks the mother's health not an unnatural injury?
5.28.2009 6:53pm
einhverfr (mail) (www):
(note that forcing folks to watch Silip in its entirity might well be torture under this standard... ;-)
5.28.2009 7:05pm
Richard A. (mail):
Real torture is listening a speech by Daniel Ortega. Two hours of his deep thoughts would make waterborading look like a pleasant alternative.
5.28.2009 7:09pm
David Schwartz (mail):
An abortion does not intentionally cause pain to the fetus. It is simply intended to evict the fetus. You could perhas make an argument if an abortion was intentionally done in a way to cause more pain.

The provision is defective in that it doesn't include inaction. For example, holding a person in prison and not providing them access to medical care to get a confession is definitely the type of torture this was mean to prevent. However, it would be hard to argue that this is an "act" -- only holding them in prison is an act.

And I fully agree that none of the examples discussed are covered due to the "for such purposes" clause.
5.28.2009 7:57pm
Michael Edward McNeil (mail) (www):
“The abortion of a fetus probably does cause severe pain pain and/or suffering to the fetus”
Well, once the fetus is actually capable of feeling pain; the major brain structures responsible don't develop until week 26, so pain is felt earlier it's not entirely clear what mechanisms would be involved.


While it's true that a fetus prior to the development of its brain and central nervous system cannot feel pain, nor really experience anything, I'd like to see a reference to the assertion that the “major brain structures responsible” don't develop until week 26, which is inside the last trimester.

For everybody's information (references provided on request), the brain and central nervous system commence their long development at about the beginning of the fourth week of gestation, while the first neurons (composing the cellular wiring of brain and CNS) come into existence about a week later at around the beginning of the second month. Thus very early term abortions cannot “torture” or cause pain to the aborted fetus.

While no doubt the brain must develop beyond the mere autonomic nervous system (responsible for controlling automatic activities such as keeping the heart beating and the like) in order to experience pain or “torture,” I'd be rather surprised if that more advanced stage of fetal brain development awaited the 26th week.
5.28.2009 8:21pm
martinned (mail) (www):

The provision is defective in that it doesn't include inaction. For example, holding a person in prison and not providing them access to medical care to get a confession is definitely the type of torture this was mean to prevent. However, it would be hard to argue that this is an "act" -- only holding them in prison is an act.

This is a fair enough argument, but I think it is still flawed in that it reasons from the common law distinction between nonfeasance and malfeasance, a distrinction that does not exist in civil law jurisdictions.
5.28.2009 8:23pm
BGates:
So much for the monolithic Left.

And you only had to go to the reproductive rights laws in Central America to disprove the notion. Well done.
5.28.2009 9:11pm
David Schwartz (mail):
martinned: Are you arguing that not doing something is an "act"? Wouldn't that mean that any government that couldn't provide everyone needed medical care that they couldn't afford was torturing them? I don't see how the phrase "act ... intentionally inflicted" can possibly refer to not doing something.

All three words seem to rule out inaction. Inaction is not an act. It's very unusual to talk about "intentional" inaction. And it's very unusual to talk about how inaction "inflicts" something.
5.28.2009 9:13pm
Avatar (mail):
I'm sympathetic to the people involved. I don't have anything against abortion and it would be nice if it was legal and thus not denied to people who wanted to have one. The "I should not be forced to go through painful/dangerous childbirth" argument is compelling.

At the same time, there is a moral case against abortion, even if I do not subscribe to it; it is a topic upon which individuals (and societies) can have differing opinions.

Thus, equivocating "lack of access to legal abortion" torture is, at best, a poor debating tactic; the situations are clearly not the same, and using the terms for one situation to describe the other is outright malicious. Why not compare getting a speeding ticket to the Holocaust? Because when you do, you're implying that they are the same thing, or different manifestations of the same thing, but your discussion of speeding tickets is not enhanced by comparing the cop who pulled you over to Hitler.
5.28.2009 9:26pm
martinned (mail) (www):
@David Schwartz: Consider the general tort law articles of the Code Civil:


art. 1382:
Every action of man whatsoever which occasions injury to another, binds him through whose fault it happened to reparation thereof.

art. 1383:
Every one is responsible for the damage of which he is the cause, not only by his own act, but also by his negligence or by his imprudence.

While particularly the former article might suggest otherwise, this régime makes no fundamental distinction between acts and omissions. This is what the French wiki says:


Aux termes même de l'article 1382 du Code civil, il faut un fait personnel, un « fait de l'homme ». Cet élément matériel est en fait très large : il couvre tout type d'actes, positifs (faute de commission), des écrits, des paroles, voire des ommissions ou des abstentions.
La doctrine distingue alors deux types d'abstention :
- l'abstention dans l'action
- l'abstention pure et simple
L'abstention dans l'action correspond au comportement dans lequel, dans le cadre d'une activité, on commet une abstention fautive. Les tribunaux se réfèrent alors au comportement d'une personne raisonnable, c'est-à-dire que celui qui n'a pas agit alors qu'une personne normalement diligente aurait agit, commet une faute.

The rest of the article also considers issues of mens rea, etc. (I'm not sure what's so strange about intentional inaction. I'm intentionally inactive all the time.)

P.S. For the record, I'm not French. But my country's civil code isn't available in English, I think, and in any event it says explicitly that the rule of liability applies to actions and inactions equally, so that's no good.
5.28.2009 9:58pm
martinned (mail) (www):
@Avatar: Not torture, but cruel, inhuman or degrading treatment.


Article 16

1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture or references to other forms of cruel, inhuman or degrading treatment or punishment.

2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibit cruel, inhuman or degrading treatment or punishment or which relate to extradition or expulsion.
5.28.2009 10:01pm
concerned:
I was actually surprised that the Sandinista government would enact such a law, given their communist philosophy, irrespective of the religious beliefs of the population.

I heartily approve of this law, and would love to see it enacted in the US. Though unlikely under the current pro-child killing regime, not only should Congress enact such a law, it should apply criminal penalties to both the abortionist doctors as well as the women seeking an abortion (since she is engaged in conspiracy with the abortionist to kill her fetus).
5.28.2009 11:02pm
martinned (mail) (www):

not only should Congress enact such a law

Not only anti-choice, but also anti-federalism?
5.28.2009 11:15pm
concerned:
No state should be allowed to legalize child-killing. Some things should overrule federalism; this is not something to be left to the states to 'experiment' with.
5.28.2009 11:20pm
martinned (mail) (www):

No state should be allowed to legalize child-killing. Some things should overrule federalism; this is not something to be left to the states to 'experiment' with.

Could you by any chance point to a clause in the Constitution where it says so?
5.28.2009 11:21pm
AnthonyJ (mail):
While it's true that a fetus prior to the development of its brain and central nervous system cannot feel pain, nor really experience anything, I'd like to see a reference to the assertion that the “major brain structures responsible” don't develop until week 26, which is inside the last trimester.
Well, wikipedia is always a good place to start. 26 weeks isn't really inside the last trimester; it's roughly the start.
5.28.2009 11:22pm
concerned:
Not only anti-choice pro-life, but also anti-federalism?

Fixed it.
5.28.2009 11:23pm
concerned:
Could you by any chance point to a clause in the Constitution where it says so?

Can you point to the section in the Constitution where it says the state (in the broad sense of the term) is allowed to sanction the killing of the unborn?
5.28.2009 11:25pm
martinned (mail) (www):
@concerned: Normally I wouldn't engage in such empty phraseology, but the way I wrote it, it was nice and symmetrical. Call it poetry if you will.
5.28.2009 11:26pm
martinned (mail) (www):

Can you point to the section in the Constitution where it says the state (in the broad sense of the term) is allowed to sanction the killing of the unborn?

Not only is it allowed, it is required:


Article I

Section 1. All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

and

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

(To be clear, this is true regardless of one's point of view regarding the merits of Roe and/or the morality of abortion.)
5.28.2009 11:28pm
epeeist:
The issue as the original post made clear, it's not a pro-choice or pro-life issue, it's a question of whether it's torture.

If waterboarding isn't torture, I can't see that not having abortion on demand is torture...

More seriously, denying abortion on demand is denial of what one might call a service, not inflicting something on people. If someone is not permitted to use medical marijuana, or is not permitted to use enough pain medication (because the government arrests doctors who prescribe enough) or doesn't get a liver transplant because neither insurance nor the government pays for it and thus dies in agony, whatever, one may think some or all of those things are wrong in principle but they're not torture under the CAT. Neither is refusing to make abortion on demand available. For that matter, prohibiting abortion even if medically necessary to save the life of the mother, I can't see that as being torture any more than the FDA refusing a patient access to a lifesaving drug is torture (any of these things may in your view be wrong, offensive to libertarian principles, whatever, but they're not torture).
5.29.2009 12:01am
einhverfr (mail) (www):
I think the key issue is the involvement of government officials. I dont think passing a law denying a specific medical service amounts to torture. For example, if we pass a law (because of opposition to genetic engineering) forbidding the production of genetically modified bacteria designed to produce human insulin this doesn't amount to torture, even if there might be a small proportion of type-1 diabetics which might find their diabetes much harder to control. Furthermore, non-governmental actions can never be torture.

This proves the rue that any law, no matter how conceived, will be used to advance agendas well beyond it, and that any power regardless of the intention of granting it, will be used beyond the scope of its original mandate.
5.29.2009 1:46am
einhverfr (mail) (www):
Also Nicaragua might not be a "banana republic" but with the Sandianistas in power, it is a watermelon republic ;-)
5.29.2009 1:46am
AnthonyJ (mail):
Can you point to the section in the Constitution where it says the state (in the broad sense of the term) is allowed to sanction the killing of the unborn?
No, but given that the 14th amendment states All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States
, the obvious conclusion is that the unborn are not citizens, and since it makes little sense to not grant them citizenship if they're people, most likely not people either.
5.29.2009 2:41am
Federal Dog:
"It is simply intended to evict the fetus."

No, it is intended to kill the fetus.
5.29.2009 7:52am
martinned (mail) (www):

and since it makes little sense to not grant them citizenship if they're people, most likely not people either.

Didn't Colorado have a ballot initiative last November about defining people as all human beings including unborn feutuses? Whatever happened to that?


The issue as the original post made clear, it's not a pro-choice or pro-life issue, it's a question of whether it's torture.

No it's not. The issue is whether it is "cruel, inhuman or degrading treatment".
5.29.2009 9:41am
epeeist:
I'm curious, is China a problem country for using forced abortions? If not, it seems disturbing and logically "whacko" that forcing women to have abortion doesn't violate the CAT, but not permitting it does?!
5.29.2009 1:01pm
Oren:


No, it is intended to kill the fetus.

Just as much as evicting someone from their house on a cold winter day. Or evicting a starving person from your restaurant. Or refusing to give expensive lifesaving treatment to a cancer patient.

The right to life is a negative right -- it includes only the prohibition on actions that violate that right, not an affirmative duty of every person to support every other life.
5.29.2009 1:06pm
Oren:

I'm curious, is China a problem country for using forced abortions? If not, it seems disturbing and logically "whacko" that forcing women to have abortion doesn't violate the CAT, but not permitting it does?!


I'm pretty sure we can find much worse violations of CAT in China, not that forced abortion isn't one of them, but it's not the most egregious by a long shot.
5.29.2009 1:06pm
Federal Dog:
"Just as much as evicting someone from their house on a cold winter day."

So you would argue that, e.g., a landlord who evicts in these conditions for non-payment of rent is a murderer?
5.29.2009 4:46pm
David Schwartz (mail):
"It is simply intended to evict the fetus."

No, it is intended to kill the fetus.
Only because there is no way to evict the fetus without killing it. We don't take antibiotics because we hate bacteria, we take antibiotics to protect our selves. The bacteria are collateral damage, fair game so long as they are within our body.

(Of course, bacteria are fair game anywhere. But even if bacteria had all the rights of humans, we could still take antibiotics if we wanted to. Our body is under our control.)

So you would argue that, e.g., a landlord who evicts in these conditions for non-payment of rent is a murderer?
Of course not. He has the right to evict, and if that cannot be done without causing the tenant's death, that's not his problem. The same goes for abortion. The woman has the right to control the contents of her womb, and if someone else needs it to survive, that's not her problem.
5.29.2009 7:31pm
Volokh Groupie:
@Ruffles

I think even in that case its difficult to characterize it as unnatural considering its likely that other health complications are likely what have made it an issue of life or death for the mother. However, risking the mother's health (in the strictest sense of life or death) is certainly the most persuasive argument that there would be unnatural coercion by the government to carry a pregnancy to term with respect to causing injury to the mother. However, that doesn't explain the two other exemptions listed.
5.31.2009 12:20am
ReaderY:
Roe v. Wade established a test for determining if a entity is a "person" under the constitution with respect to a procedure.

Under Roe, there are four components to the test:

1. We set aside our personal emotional predilictions and baggage and apply the Roe test straightforwardly, will to go with whatever conclusion it reaches. Roe promises that it is not mere window-dressing to cover a pre-determined result, it claims to be an honest and balanced constitutional test that can be applied to any case where there is a dispute about whether the objects of certain procedures have a basis for constitutional protection. We claim by accepting that claim at its word. The dispute over whether certain military procedures constitute "torture" represents similar considerations as the dispute over whether certain medical procedures constitute "murder".

2. We look at the practice using the labels, concepts, and viewppoint its practitioners call it. Under a fair application of Roe, we have as much of an obligation to use military concepts and terminology when evaluating military procedures as to use medical concepts and terminology when evaluationg medical procedures. Roe requires a rational thought process with labels determined based on insiders' professional expertise, not an emotional process whith labels determined by theologians, moralizers, or similar non-expert outsiders.

3. Our view of whether a claimant is a "person" or not is based on the two-part test set forth in Roe.

a. First, we look at whether or not the term "person" as used in certain clauses in the Constitution applies. Roe sets forth a list of the relevant clauses. Any fair and honest reading of the Roe list should make clear that none of them apply to alien enemy combatants, especially if held outside U.S. territory. Such Alien enemy combatants aren't counted in a census, are not eligible to be elected or hold public office, are not desired to be imported by any State, etc. etc. Not one of the clauses in the Roe list even arguably applies. Thus, the term "person" does not apply.

b. In addition, we also look at whether the law or our history treats the objects of the procedures as "persons in the full sense of the word" throughout American history. It clearly does not. Enemy combatants can be lawfully terminated on demand. As the Supreme Court has noted, throughout much of American history enemy combatants were legal outlaws who could be killed, harmed, or deprived of property without recourse by any citizen, not just by regular military forces: an enemy of the nation was considered every citizen's personal enemy. Moreover, even when provisions for treatment of prisoners were on the books they were not consistently observed, and observed especially rarely where the combatant had non-white skin. Our history clearly shows that while we were sometimes rather gentlemanly with certain classes of enemies, particularly those with white skin, we entertained no such scruples with other classes, particularly those with dark or red or yellow skin. We as Americans have a history and tradition of exercising choice in the matter, even more clearly so than in the case of abortion. We've been nice only when we've chosen to be. Such a history and tradition is utterly at odds with any serious claim that an enemy combatant has been historically considered a "person in the full sense of that word" as Roe explains that term, indeed far more clearly so than this country's somewhat cloudy history of abortion. We went through a period when we said gentleman don't read each other's mail and enacted laws and signed treaties abolishing war, prohibiting spying on other countries, outlawing abortion, and requiring kid-glove treatment of prisoners of war, but the last-mentioned act during this period no more reflects our nations overall history and tradition than the other three.

4. As Roe explains, when the procedures are regarded as appropriate by the relevant professional community and its objects are neither covered by the term "person" in the relevant constitutional texts nor regarded as "full" persons in historical practice over our nation's history as a whole (and Roe suggested early history has more weight than more recent history in this regard), than a clear conclusion follows. The objects are not persons and have no personal interest in whether or not the acts are done to them. Moreover, any interest the State (including its courts) may have is not in the nature of protecting persons: rather, it is solely in the nature of upholding tradtional beliefs and moral standards or serving other state interests of a non-personal nature. Indeed, as Roe went on to hold, these very state interests must sometimes give way to Americans' constitutional rights.

From this point of view, the key reasons for opposing "torture" are no different from the reasons for opposing abortion -- a belief that these procedures are immoral, violate religious beliefs, and raise strong popular affect among the more emotional (and, Roe suggests, the less rational) classes. The affect raised is quite similar in both cases. In the rhetoric similar. Opponents of both sets of practices claim to speak for "American values" and "the fundamental principles of our Nation", "basic morality", "conscience" -- the same yada yada yada, the same blah blah blah blah. The verbiage is almost identical. Both groups claim to be shocked that our government would condone what they consider to be moral outrage. We've been hearing the same yada yada yada in the aborti0n context. The new outrage is hardly any different, and the three devades of acclimatitation ours ears have had to hearing rhetoric of this sort makes the new stuff equally easy to sleep through.

It's certainly true that there is another interest involved where aliens are concerned -- foreigh relations could be affected if foreign nations find out we're doing things they disapprove of. But this is essentially a privacy interest. The essence of this interest is not in what we do, which of course as with other privacy matters ain't nobody's business but our own, but in what foreign nations find out. The interest is very similar to abortion here. As in abortion, ensuring privacy is protected, so the emotion-prone moralists don't discover and react to what isn't their business in the first place, best serves the interest involved.

If we're honest about Roe, once we accept the inexorable conclusion no person as Roe understand the term is hurt by these military procedures, claims that these procedures are "torture" should logically be treated in essentially the same way that we treat claims that certain abortion procedures are "torture".

Government can in fact outlaw certain procedures which it thinks especially inflictive of pain. It has done so with certain abortion procedures, and of course it can do so in the military context. Although an alien enemy combatant gets no more protection than a viable fetus under a fair reading of Roe, no-one suggests they get any less.

But if we're honest about Roe one essential and unescapable consequence is that courts should leave the balance of security and moral interests to legislatures in the same way they leave the balancing of reproductive health and moral interests. There might perhaps be cases where courts might need to strike down government laws or action protecting enemy combatants as over-reaching and unduly intruding on the security rights and liberties of American citizens. I find it difficult to imagine such a case, as government freedom of action and our citizens fewer personal rights in military and foreign-policy context.

We ought to all agree that if Roe applies, courts can have no busiess interfering with military procedures the military community deems safe and effective because of judges' personal religious or moral sentiments, or entertain lawsuits by lawyers claiming to represent these procedures' objects. Judicial action interfering with safe and effective military procedures not expressly prohibited by the political branches would utterly turn Roe on its head, and be as out of place as judicial efforts to ban abortion in response to general arguments by abortion opponents claiming to represent fetuses independent of any express anti-abortion legislation.

If alien enemy combatants are not persons under our constitution, then of course the Senate could not have intended the convention against torture to apply to them. Arguements that it does ought to hold no more water than claims the Helsinki Convention's provisions on medical procedures without consent cover fetuses.
5.31.2009 1:44am
David Schwartz (mail):
ReaderY: That's one obviously insane argument after another.

It is equivalent to arguing that if a jury fails to convict one person of murder, it's okay to fail to convict anyone of murder under any set of facts. It simply looks at the raw input and the raw output and ignores all the factors on which the decision was based.
5.31.2009 5:34am
Federal Dog:
"Of course not. He has the right to evict, and if that cannot be done without causing the tenant's death, that's not his problem. The same goes for abortion. The woman has the right to control the contents of her womb, and if someone else needs it to survive, that's not her problem."

The difference is that the landlord does not intend to kill; the aborting mother does. Further, she has control over her womb. Unless she is so cognitively impaired that she does not understand sex, or she is the victim of sexual assault, she can avert conception to begin with.
5.31.2009 10:04am
Clayton E. Cramer (mail) (www):

Didn't Colorado have a ballot initiative last November about defining people as all human beings including unborn feutuses?
California law for many years as defined killing of a fetus as homicide—unless with the permission of the master (whoops) mother.

California Penal Code:


187. (a) Murder is the unlawful killing of a human being, or a
fetus, with malice aforethought.
(b) This section shall not apply to any person who commits an act
that results in the death of a fetus if any of the following apply:
(1) The act complied with the Therapeutic Abortion Act, Article 2
(commencing with Section 123400) of Chapter 2 of Part 2 of Division
106 of the Health and Safety Code.
(2) The act was committed by a holder of a physician's and surgeon'
s certificate, as defined in the Business and Professions Code, in a
case where, to a medical certainty, the result of childbirth would be
death of the mother of the fetus or where her death from childbirth,
although not medically certain, would be substantially certain or
more likely than not.
(3) The act was solicited, aided, abetted, or consented to by the
mother of the fetus.
(c) Subdivision (b) shall not be construed to prohibit the
prosecution of any person under any other provision of law.
5.31.2009 11:21am
Clayton E. Cramer (mail) (www):
Oren contrasts abortion's killing of a unborn baby with:


Just as much as evicting someone from their house on a cold winter day. Or evicting a starving person from your restaurant. Or refusing to give expensive lifesaving treatment to a cancer patient.

The difference is that evicting someone from their home may or may not lead to hypothermia, depending on whether they obtain other shelter. Ditto for your other two examples: the action alone will not directly cause death (although they certain increase its likelihood). An abortion directly causes the death of that unborn baby. Now, if there were a mechanism by which that unborn baby could be transferred to another womb, or could be put in an artificial womb without serious or permanent injury, that would be just fine. But abortion is, in all cases, intentionally and directly lethal. It is more direct and certain than neglecting a newborn--which is clearly a criminal matter.
5.31.2009 11:27am
Federal Dog:
Think too of "partial-birth" abortion. In that procedure, the baby is partially birthed, then the birth is stopped so that the baby's skull may be punctured and the contents of its head vacuumed out.

The purpose of the procesure is pointedly not to simply "evict": That could easily be done by simply completing the birth. The point is expressly to kill.

I must admit that this is the first time that I have seen anyone attempt to argue abortion as some form of mere "summary process," and if the baby does not survive, well, that's not the mother's concern.

That's like someone pointing a loaded gun at someone, firing it, and then claiming that her sole intent was to fire the gun, and if the person did not survive, that's none of her concern. People intend the immediate and inevitable consequences of their actions.
5.31.2009 11:49am
Karl Lembke (mail) (www):
David Schwartz:

So you would argue that, e.g., a landlord who evicts in these conditions for non-payment of rent is a murderer?


Of course not. He has the right to evict, and if that cannot be done without causing the tenant's death, that's not his problem.


Really? Has that ever been tested in a court of law?

Suppose your tenant's life depends on a medical device plugged in to your electrical system. She has nowhere else to plug in, and will suffocate in minutes if evicted.

Does this landlord have no duty to at least call Social Services and throw the problem into their laps?
5.31.2009 12:45pm
Karl Lembke (mail) (www):
To the question of whether denying a woman an abortion is "torture", I recall one particularly vocal Army Interrogator who has defined "torture" as "any physical or mental coercion -- any." Under that definition, forcing anyone to do anything qualifies as "torture".
5.31.2009 12:47pm
ReaderY:

ReaderY: That's one obviously insane argument after another.

It is equivalent to arguing that if a jury fails to convict one person of murder, it's okay to fail to convict anyone of murder under any set of facts. It simply looks at the raw input and the raw output and ignores all the factors on which the decision was based.


To the country, it merely assumes the factors going into the Supreme Court's decision were what they said they were. The decision identified certain facts that it said are relevant and a test to be applied to those facts. I merely point out that going through the same set of facts the Court said were relevant and applying the same tests leads to the same conclusions.

Here there are is a decision with specific judicially-identified identified factors. Saying that someone who meets the specific elements of murder identified in a court decision is guilty of murder is quite different from saying "anyone" is guilty of murder.

If the court had thought different factors were the relevant factors, doubtless it would have said so. If one thinks the elements identified are wrong, the solution is to argue for overturning the decision and substanting some other, better test or standard to reflect the relevant rule of law.

I of course think that the Roe decision is incorrect, and its claims to constitutional legitimacy are flawed. It claims to be a generally applicable decision. Its most critical and apparently most constitutionally rooted elements are claims that (a) personhood comes from a specific constitutional text-based test, and (b) failing the specific test means there is no compelling or important state interest in protection as such.

In my view, the fact that that the specific test involved appears applicable to a number of other potentical disputes but completely fails to capture essential elements of the problem whenever so applied, is strong evidence that the constitutional analysis it undertook is flawed and not a general or neutral test at all, and hence that its conclusions do not in fact flow, or at least do not correctly flow, from any text-based constitutional analysis.

I do think the analogy has merit. In war, as in health care, Americans have routinely made decisions based on expediency rather than societal moral standards, and in fact enemy combatants haven't had the same level of protection as full citizens. Roe's fundamental flaw was to construct an articifical binary (either "full" protection or no protection at all) which has never existed in our history. Only after having constructed such a binary could the Court then place fetuses on its prefered side in a manner which appeared to be based on interpretation of constitutional text. But enemy combatants belie the legitimacy of such a binary. Enemy combatants also don't meet Roe's textual "personhood" text, haven't been treated as "full" persions, yet have clearly been regarded as something other than a sack of meat or Gloria Steinem's appendix.

Enemy combatants are this country's transpersoned, its person-queers, whose mere existeence can't be acknowledged without breaking the personarchy and toppling the very legitimacy of the articially imposed personhood binary.
5.31.2009 5:36pm
David Schwartz (mail):
Really? Has that ever been tested in a court of law?

Suppose your tenant's life depends on a medical device plugged in to your electrical system. She has nowhere else to plug in, and will suffocate in minutes if evicted.

Does this landlord have no duty to at least call Social Services and throw the problem into their laps?


Please read what I wrote again. I said, "He has the right to evict, and if that cannot be done without causing the tenant's death, that's not his problem."

So why are you giving examples where that *can* be done without causing the tenant's death?
5.31.2009 11:48pm

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