Episode 13. May 30, 2019.
CLP Topic: Irreconcilable Differences.
Title: Abortion Rights, Property Rights and the Social Costs of Abortion.
Our podcast today does not dwell on the worn-out, conventional arguments between pro-life and pro-death advocates about when life begins or the personhood of a baby.
Rather, the podcast argues that the issue of abortion constitutes an irreconcilable difference between Democrat socialists and natural rights conservatives that is not solvable under the existing Roe v. Wade interpretation of Madison’s constitution.
A much stronger argument for abortion rights, than privacy rights, invokes the property rights and contracts provisions of the Constitution, and breaks the issue of abortion into three distinct acts.
The first act is a voluntary contract between the mother and father that involves an offer and acceptance. Their contract causes an externality in production, which imposes a social cost.
The second act is the medical procedure of eliminating the baby from the mother’s uterus, under her private property protections, of Roe.
The third act is the killing of the baby, after it has been removed from the mother.
At the moment of removal, the baby has property rights in the right to live, and killing the baby outside of the uterus, at whatever stage of gestation, is an act of murder.
I am Laurie Thomas Vass, and this is the copyrighted Citizen Liberty Party News Network podcast for May 30, 2019.
Our podcast today is under the CLP topic category Irreconcilable Differences and is titled, Abortion Rights, Property Rights and the Social Costs of Abortion.
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The Dilemma of an Emanation of an Abortion Right.
For 50 years, legal scholars have labored under the deceit that Roe provided the legal justification for a woman’s right to rid her body of an unwanted invader.
Richard Epstein is in favor of maintaining the deceit because it provides a type of equilibrium, until something better comes along.
Epstein notes in his article, “In Defense Of Abortion’s Messy Status Quo,”
“The Supreme Court made a hopeless intellectual muddle out of Roe when it waited until viability to extend full protection for the fetus. The problem about the criminality of abortion cannot be wished away by dubious metaphysics. I have no doubt that Roe is wrong as a matter of constitutional principle. And yet, with evident uneasiness, I think that it would be a mistake for the Court to rise to the bait in the Alabama case. Socially, the messy status quo may prove more durable than either of the two extreme legal positions.”
In an interview explaining his argument in favor of the status quo, Epstein raises the property and contract provisions of the Constitution as a better idea, but gets the parties to the contact wrong.
Epstein suggests that there are only two parties to the contract, the mother and the baby.
The existing status quo of Roe, given Epstein’s two parties, places no limits on abortion, even after the baby is able to live outside the uterus.
As Epstein notes,
“T]he Court holds that the state is entitled, but not required, to protect the unborn child’s interest. The reason for the entitlement is that the fetus is now capable of an independent life outside the mother. But the problem is, why should not the claims of the fetus [between viability and birth] be sufficiently strong to require, and not merely to permit, the state to intervene for its protection? After the Court expressed such firm views on the proper balance [between the claims of the woman against those of the fetus] until the onset of viability, it gave no explanation why the state must be allowed to make its own choice after that time.”
In other words, under Roe, the recent Kansas law, and the Virginia law, sanctions killing the baby, up to the 9th month, because the government cannot place restrictions on the mother’s property right to evict the baby.
As John Hart Ely and Laurence Tribe noted,
“The point of Roe v. Wade was not that the Supreme Court had too little ‘scientific’ information about when life begins or what a fetus was, but rather that the Government…could not override the rights of the pregnant woman. It was a question of rights, not an issue of biology or a matter of definition that Roe resolved.”
Ely and Tribe are overly optimistic that Roe resolved anything. An emanation of a privacy right from the 14th Amendment exists as a figment of the socialist imagination.
A stronger basis for abortion rights begins with property rights, not due process or equality rights.
The Fifth Amendment prevents any person from being “deprived of . . . property, without due process of law,” and places the obligation of states to protect property rights.
Article I, section 10, prohibits a State from passing any law that “impairs the obligation of contracts” or “makes anything but gold and silver coin a tender in payment of debts”.
The mother’s property rights allows the mother an unrestricted right to control the property of her uterus by evicting the unwanted trespasser.
After the mother gets rid of the parasite, following Blackmun’s reasoning the state will not be able, “conscript women’s bodies into its service, forcing women to continue their pregnancies, suffer the pains of childbirth, and in most instances, provide years of maternal care.”
Who Owns the Baby?
Following the logic of property and contract rights, someone, or something, owns the baby in the brief period of time after the mother evicts the trespasser, but before the doctor kills the baby.
The baby cannot be deprived of her property of life, without due process of law.
In contrast to Epstein’s two parties, after the eviction, there are four parties to the contract, all of whom have property rights.
- The mother, who owns her uterus.
- The father, who co-owns the baby.
- The baby.
- The doctor who performs the abortion, and kills the baby.
Following contract law, the mother and father entered into the initial contract when the mother invited the father to enter her property.
The father accepted the offer, and entered her property, with his property.
The exchange of value was not monetary, but was a voluntary, non-coerced, mutual exchange of psychic pleasure.
When the mother entered the voluntary contract, she gave implied consent to a possible pregnancy with the other party to the contract.
When he accepted the mother’s offer to enter her property, the father gave his implied consent to co-ownership of the baby.
Up until the time the mother evicts the trespasser, she owned the baby, and the father had a residuary ownership interest in the baby.
At that moment of eviction, both parties have a residuary ownership interest in the baby.
As a result of their contractual relationship, they created an externality in production. The innocent, third-party baby, was not involved in the production of the externality, but bears the cost of the externality.
The baby did not cause the pregnancy, but the baby owns its property of self, and at that moment of eviction from the uterus, both parents are obligated, under property rights and contract law, to protect the baby’s property rights from being killed.
After the eviction, the constitutional issue is who owns the baby, and who bears the social costs of the externality, without killing the baby.
Just because the mother has a property right to control her uterus, her abortion right does not include the right to have the baby killed by the doctor, when she evicts the baby.
She must evict the parasite in the most gentle manner possible, giving the baby the greatest chance for survival, with the new owner of the baby. The doctor who removes the baby is required to do no harm in caring for the baby.
The mother entered the contract with the father. They are the cause of the pregnancy, and both have a duty to protect the endangered baby, once it is outside the uterus.
Feminist, socialist theory suggests that the stork owns the baby and that the mother and father can walk away from the contract, morally and financially, scot free.
At that moment of eviction, the baby possesses an equality right and a due process right not to be killed.
The baby, in other words, enjoys equal protection, under the law.
Protecting the Baby After Eviction.
Coase suggests that the state has an affirmative obligation to negotiate and adjudicate the cost of the externality, in order to return the parties to their original rights.
In the legal adjudication of the petition to evict the trespasser, the mother and her doctor make the decision on how to evict, and how to care for the baby during the period of gestation.
The court must decide on where the baby may be placed for the gestation, and assigns and allocates the gestation costs to the parties to the contract that caused the externality.
The baby could be placed in the uterus of a surrogate mother, or placed in ectogenesis, until birth.
At the moment of eviction, the mother’s legal ownership interest in the baby changes to a residuary ownership interest, equal to the father’s ownership interest.
Depending on where the court places the baby for the period of gestation, the proceeding of the court creates a type of trust instrument, where the baby is the corpus of the trust.
The court uses the legal entity of the trust to create a Baby Welfare Trust Account, where both parents make monthly contributions to pay the social costs of gestation.
The court appoints the trustee of the trust, who is legally obligated to act as the guardian of the baby, during the period of gestation.
The trust terminates at the moment of birth of the baby.
The Social Costs of Custody of the Baby.
At the moment of birth, the court holds a custody hearing, initiated by a petition of the trustee.
The civil proceeding is like the child custody hearing of a divorce, plus a Department of Social Service hearing in the case of child neglect, abandonment, and abuse.
The court appoints a guardian ad litem for the baby, and the other parties to the contract which created the externality are called to testify on the issue of custody for the baby.
The mother and father are legally obligated to provide financial support to raise the baby, but do not have parental rights, unless the court grants parental rights.
The parent’s legal obligation to provide financial support derives from the baby’s inalienable, God-given right to life, which began at the moment of conception.
State Sovereignty and the Democrat’s Nullification of Madison.
Madison’s constitution places the authority for protection of property rights in the states.
The correct level of government to rule on a woman’s property rights is at the state, not the federal government.
Recently, The Kansas Supreme Court ruled that women have a state constitutional right to evict a baby.
In their ruling, they stated:
“Do the substantive rights include a woman’s right to make decisions about her body,..people had rights that preexisted the formation of the Kansas government.”
The Kansas Court got the natural rights of the woman correct, but missed the point about the baby’s rights.
Under the philosophy of Democrat social justice, the outcome sought by the Kansas Court is equality of outcomes for women, as a socialist identity group that is oppressed by the capitalist system.
The social group of babies and men, especially white men, falls outside of the socialist group identity of groups that obtain social justice. Their natural rights do not matter to the Kansas Court, even though the justices huff and puff about inalienable rights that existed before statehood.
Socialists have made opposition to abortion the centerpiece of their social group identity politics that Republicans are engaged in a “War on Women.” The Democrat political strategy in Kansas is nullification.
In pursuing this nullification strategy at the state level, the socialists have swerved into a political cul-de-sac of state’s rights and state sovereignty.
There is nothing in Madison’s constitution that makes equality of outcomes for all women, across all state lines, legitimate authority, derived from the consent of the governed.
The decision of the Kansas Court would only be legitimate if the citizens of Kansas voted to ratify the decision.
Under the socialist nullification strategy, the citizens of Georgia and Alabama may vote on some other interpretation of inalienable rights.
Under state sovereignty, the citizens of Alabama are not bound by the decisions of the citizens in Kansas. If the citizens of Kansas vote to kill babies up until the moment of birth, or to enslave black people, the citizens of Alabama are indifferent.
Under state sovereignty, the court proceedings on appointment of the trusteeship during gestation, and the subsequent rulings on who owns the baby after birth, are state court proceedings.
The differences in philosophy between socialists and conservatives about inalienable rights are irresolvable and irreconcilable, because socialist believe that social justice is only attainable under a tyrannical, centralized elite tyranny.
Natural rights conservatives do not believe that socialist elites are booted and spurred to dominate the common citizens, with fake decisions about emanations and penumbra.
The solution to the abortion issue lays in more democracy at the state level, not less democracy in a far-away socialist dictatorship
The only peaceful, non-violent solution to the nation’s conflict over abortion is to dissolve the nation into two new nations,
The Socialist States of America, based upon the Democrat’s social justice model of government, where babies can be killed up until the 9th month.
The Democratic Republic of America. based upon the state sovereignty framework of the Articles of Confederation, where the citizens decide how babies and abortion rights are adjudicated.
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I am Laurie Thomas Vass, and this podcast is a copyrighted production of the CLP News Network
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