Saletan's argument only makes sense if you already assume that abortion is morally neutral. Legally, he may be correct, but the legal status of abortion doesn't decide its morality. Saletan's argument shifts from a legal basis to moral basis, and back again, at the convenience of the point.

• From a moral basis, Palin's argument is clear: abortion is immoral for everyone, period. It therefore doesn't matter what the daughter's under-age opinion is, or whether the daughter needs her mother's consent. However, current law allows abortion. On the other hand, it also allows parental consent. So, anyone who opposes abortion morally can't stop abortion outright, but that same legal system allows the opponent to use other laws to thwart abortion. The law permits abortion, but allows opponents to stop it.
• That's part of the problem with abortion itself, and especially a problem with how we discuss it. The current law on abortion was not set by popular consent, after a thorough debate. It was imposed by Roe v. Wade, using suspicious legal reasoning. No one, except perhaps legal fanatics, would argue that a Supreme Court decides morality as well as law. The law is just an instrument in the larger conflict of morality, and all sides exploit the law when its to their advantage. The law is the ball that we kick forward when we try to promote our view of morality. And so we're left with pro-abortion laws that were imposed by judicial fiat, but anti-abortion laws that were passed through legislatures.

Pro-lifers (like me) believe that Roe v. Wade unfairly exploited the authority of law to steal the public decision about abortion in the first place. You can't then complain when we also exploit the law to promote our values.

Pro-thinkers (like me) believe that morality is a fancy way of saying "my Christian values." As a legal, voting citizen, I'd prefer for you to live your life as morally as you see fit, but allow the laws of the land to be based on something a little less capricious.

Holy crap! Duh!

That's why we'd like to leave it up to the individual. Get it? Because all of our morals differ.... catching up yet?

Or try this on, I do believe that abortion is morally neutral. There, I've made the judgement for you. Happy now?

"Pro-lifers (like me) believe that Roe v. Wade unfairly exploited the authority of law to steal the public decision about abortion in the first place."

Can you even understand that your opposition doesn't think the decision about abortion should be a public one at all in any way ever? Don't you get that?

So if in your morals it's acceptable to beat your wife, no one else should have a say in that? What about rape, murder, theft? Your morals, your decision?

Obviously, as a society, we recognize the rights of people who are born and are independent human beings. We all want our safety, property, and person protected from harm by others, so we mutually agree on laws to protect these things.

There isn't a clear idea on who ought to have authority over a pregnant woman's fetus, so we have an ongoing debate about it. On one side are people who find it abhorrent for the government (or other authorities) to step in and compel a woman to carry a pregnancy to term when she doesn't wish to. On the other side are people who believe that once a fetus is formed, the wishes of the woman carrying it are completely irrelevant and the government can step in and order the woman to do as it wishes.

The belief that there is something "less capricious" than public opinion on which we base our law is, to be blunt, the definition of anti-democratic thinking. Democracy is, by definition, a matter of opinion. When moral matters are up for public decision, the law is formed by the opinion of the majority.

What you're suggesting is either that the law never address moral issues (impossible) or that law must be based on "fact" and not opinion. If the latter, you must then also argue that you can establish fact, independent of opinion - as if objective truth can be "discovered." Democracy assumes that when truth can be discovered, public opinion will favor truth naturally. And when truth can't be discovered, public opinion must be the default anyway. Either way, public opinion (i.e., the consent of the governed) is the only basis for law. That's the logic of democracy.

You can't argue, therefore, that law in a democracy must ignore the values of the public. On the contrary, it has no other basis.

It's usually pointless to continue a dialogue with someone who condescends and mocks you simply because you disagree with them. However, let me offer this question, and if you can answer it without adolescently insulting anyone, I'll continue.

How do we decide, if we disagree over whether abortion is a public or private choice? Like a judge in a trial, the first question is jurisdiction. How do we decide who has the right to decide?

"You can't argue, therefore, that law in a democracy must ignore the values of the public"

And who says it does? Most people in this country favor choice. Most people in this country favor secular rule.

You want to demonstrate that the values of the public reflect yours, then start a petition to amend the constitution and see how fast it sails through Congress. Oh, you would rather elect leaders to push through pro life judges....hmmm

Incidentally, I am personally pro life.

Hello kc. I'm not sure how my post was adolescent or insulting, but, I will try to answer your question regardless--but not until I say one thing about law.

Law cannot be a matter purely of majority public choice. If that were the case, blacks would still likely be slaves and women would likely not have the right to vote as white men in the majority weren't too keen on giving up their control. There are certain rights, then, that must be granted to all persons and those rights have nothing to do with morality and everything to do with equality.

That said, to answer your question, if we disagree over abortion (or anything) we must determine what decision allows for the most equality for all citizens affected by such a decision. Majority rule should never be the standard here because it would far too easy to discriminate against the minority.

The abortion question, then, seems to deal specifically with a minority of voters--a pregnant woman and her doctor, and, at some point in its development, the equal rights of a fetus will enter into the conversation. I'd say (and this is just my opinion) that that point should be when the fetus becomes capable of life outside the woman and thus another person. Since their rights of choice are the ones we must consider, I would say that the rest of us should have no real say in that discussion until such time that our rights are threatened.

But that's the frustration of Roe v. Wade. The issue of abortion was removed from the public arena. The Court took away the ability to debate the issue for ourselves. As for what the polls show among the public opinion on abortion, that's fine. But at least give us a fair chance to make our case.

• If the public disagrees, fine, that's democracy. For example, I'm personally against the death penalty, but I don't feel cheated when the public majority thinks differently. Then, as you suggest, it's my duty to try and persuade my fellow citizens through democratic methods. I don't resent that.
• But I do feel cheated by the Supreme Court about abortion. The laws that protect abortion are beyond public influence.

I'll also argue that even if the polls show that the public supports abortion in some circumstances, the evidence is irrefutable that the same public supports extensive restrictions on it. Parental and spousal notification laws almost always win big. As far as I can tell, the polls show that the public wants to allow abortion as a last resort, not the mostly on-demand attitude the law allows now. If we really did follow the public's opinion about abortion, the reality of abortion would look much, much different.

As for judges, the essence of originalism (which I support) is that the law's authority comes exclusively from the consent of the governed. If the people didn't consent to it, the law has no authority. I believe that our current abortion law was never consented to by the people. So I want judges who will return that right to the people. By the way, that same principle would install judges who would rule differently than me on capital punishment. But I believe that consent is everything.

SmagBoy1, if you switch the Fray view to threaded, you'll notice that the "adolescent" remark was intended for someone else, not you. I wasn't insulted by your response at all. I thought you made a fair point, just one with which I disagree. And so, to your point ...

The old phrase about democracy is that if we relied entirely on majority opinion, then a vote among two wolves and one sheep would always go bad for the sheep. That's true.

However, think of the logic here. If you go back to our Founding history, that's precisely why the Bill of Rights was such a big deal. The Bill of Rights is the escape clause. It defined where you could and could not use majority rule. The Founders declared that majority rule governs everywhere, except in the specified areas.

But ...

The Bill of Rights had to be ratified. Even though it restricted and limited the reach of majority opinion, ironically, it's authority to do that came from being ratified by public opinion. The Bill of Rights wasn't a bolt from the heavens. We agreed to it. It was our own idea. We restrict ourselves. We limit ourselves. That's why the Bill of Rights is such a beautiful and clever document. The Founders intentionally and willingly imposed self-discipline.

So, with respect, I disagree with you. Consent of the governed is indeed the exclusive basis of law.

Whoa! That threaded view is a MUCH different experience. Thank you, kc, and my apologies for my ill-informed supposition! :-)

I will, too, have to respectfully disagree, but only because I hope that the Bill of Rights isn't our last chance to ensure minority representation. But, if it, as you say, it's one heck of a clever document.

Prior to Roe abortion was legal in some states and not in others. The court did not "take away" anything. Rather, it exercised its authority to include privacy as a constittutional right to be enjoyed by persons living in all states.

As to your definition of originalism, well I am not so sure as it's geberally defined as a strict adherence to the letter of the original intent of the author(s), not the consent of the governed. Considering the emphasis in the both the Declaration and the Constitution on protecting a minority's right to live freely and so forth a majority rule definition (i.e consent) of originalism seems to me misinformed.

kcmulville:

The current law on abortion was not set by popular consent, after a thorough debate. It was imposed by Roe v. Wade, using suspicious legal reasoning.

Laws aren't set by popular consent. This isn't a true democracy, it's a constitutional federal republic. One of the reasons we have a Constitution is to protect individuals from the tyranny of the majority, which is what would happen if laws were set by popular consent.

kcmulville:

And so we're left with pro-abortion laws that were imposed by judicial fiat, but anti-abortion laws that were passed through legislatures.

This is the system of checks and balances that our founders came up with. If a law is unConstitutional, then the judicial system is supposed to chuck it out. Why do people only consider it legislating from the bench when they disagree with the judges opinion?

kcmulville:

You can't then complain when we also exploit the law to promote our values.

Certainly we can. The current law does not require you to have an abortion. You can have as many pregnancies as physically possible, and bring them all to term. What the law protects is an individual's right to choose. What you want is the law to impose your values on everyone else. What I want is for people to have the option to follow their own values whenever possible. The two things are not the same, and trying to justify your actions along those lines is dishonest.

NattyK:

So if in your morals it's acceptable to beat your wife, no one else should have a say in that? What about rape, murder, theft? Your morals, your decision?

What a silly arguement! Whenever there are two people, the law has to decide how their individual rights mesh. In this case, your right to steal, rape, murder or assault someone is less than their right to not be raped, etc.