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South Dakota Legislators Mull “Fetal Pain” Abortion Ban

Last updated on 2011.12.30

With 10% budget cuts from which to recover, with the federal aid that keeps our state afloat drying up, with family farms and dairies still declining, with students struggling to afford to college, the South Dakota Legislature is getting ready to debate abortion. Again.

South Dakota's latest effort to make women subservient to the state may be a "fetal pain" bill that would ban abortions after 20 weeks. According to Rep. Steve Hickey's best guess, a 20-week ban would stop maybe a dozen abortions, or 1.5% of South Dakota's total annual abortions.

1.5%. Peanuts. We could make our abortion rate drop by 50%, maybe 66%, if we followed France, Germany, and the Netherlands and conducted public health campaigns encouraging contraceptive use.

But Rep. Don Kopp makes clear why abortion politics is so appealing to some conservatives:

Rep. Don Kopp, R-Rapid City, said earlier this month that he believes it might be time for the state to take a break and let its current abortion laws work their way through the courts. But when told about the 20-week ban, Kopp said that sounds important enough that he could support it.

"I think that if you're saving a life, that's probably more important than lawsuits or money," he said [David Montgomery, "Ban Proposed on Abortions after 20 Weeks," Rapid City Journal, 2011.12.26].

Some pols love dragging abortion to the floor of the Legislature every chance they get because they can shut off their brains. No nuances, no serious fiscal analysis, no honest research... to defend an abortion ban, you just have to shout, "We're saving babies!" Such absolutes trump everything... including reasoned political discourse and problem-solving.

Meanwhile, it will fall to us defenders of women's equality and autonomy to make the more complicated arguments... and yes, life is more complicated than Rep. Kopp, Rep. Roger Hunt, Rep. Jenna Haggar, and South Dakota Right to Life would have you believe. We'll have to explain patiently that the best scientific evidence available says fetuses probably can't perceive pain until the third trimester, perhaps around week 29 or 30. We'll also have to note that, even if you accept the inevitable bogus research from Priscilla Coleman or David Reardon that attempts to posit earlier dates of fetal perception, fetal pain still doesn't trump a woman's Constitutional right to obtain an abortion. My friend Bill Fleming links to a good articulation of this argument:

...[I]magine a woman who finds herself attached (though no fault of her own) to a famous violinist as a human dialysis machine, and is told that if she disconnects herself before the end of nine months, the violinist will die.36 If we think the woman has the right to "disconnect" herself, then that suggests that abortion ought to be lawful even if a fetus is a person, since the violinist is no doubt a person.

Now imagine we make explicit what might be thought implicit in Thomson's hypothetical: the violinist will suffer significant pain due to the disconnection. Does it make a difference as to our view of whether the woman may disconnect herself, as compared to the case where disconnection will result in the violinist's painless death? If it is not dispositive, then this once again suggests that the addition of fetal pain should not automatically trump the exercise of a woman's abortion rights, even for those who think fetuses are persons [I. Glenn Cohen and Sadath Sayeed, "Fetal Pain, Abortion, Viability, and the Constitution," The Journal of Law, Medicine, & Ethics, 2011.05.11].

Rep. Steve Hickey will surely protest, but the above argument neatly encapsulates the fundamental problem with the long, sad parade of anti-abortion legislation in South Dakota: such proposals inherently assume the state has a right to force a woman to submit her body to the service of another being. That's why we need to contact our legislators before they head to Pierre and tell them not to monkey with anyone's uterus this session.


  1. larry kurtz 2011.12.29

    Keeping South Dakotans diverted from paying attention to being 50th in ethics in as many years is the GOP's stock-in-trade, Cory.

    Genius, really...

  2. john 2011.12.29

    It's time once and for all to pass a total ban. Run it through the courts and be done

  3. caheidelberger Post author | 2011.12.30

    A total ban wouldn't be nearly as politically useful for the GOP fundies, John. What would be left to gin up the base and the campaign donations when the next election came around? Besides, even the Roberts court won't accept a total ban as constitutional.

  4. Chris S. 2011.12.30

    Once again, conservatives want a government so small it can fit in your uterus. Freedomâ„¢!

  5. Steve Sibson 2011.12.30

    Fleming's violinist is a strawman. The mother receiving the abortion does not die too, most of the time.

    I say we should not ban abortion. All deserve due process, so if a mother can get a court to issue a death penalty, then the state can kill the child.

  6. Taunia 2011.12.30

    How many jobs is this producing?

    [CAH: None... but maybe it will drive blog traffic and get me some more ad revenue!]

  7. Bill Fleming 2011.12.30

    p.s. Sibby, the "violist" hypothetical is not mine. It was put forth by Judith Jarvis Thomson in an effort to eliminate the "personhood" component of the usual abortion debate.

  8. Steve Sibson 2011.12.30

    OK, now I get it. So you now accept the fetus as a person, so what about giving it due process?

    And the violinist is still a strawman. There was no sexual activity that caused the situation.

  9. Taunia 2011.12.30

    So a woman and a violinist had sex one day....

  10. Bill Fleming 2011.12.30

    Sibby, in the article, for purposes of discussion of the "pain" bill, the violin argument was expanded to demonstrate that the "pain" factor was not dispositive.

  11. Bill Fleming 2011.12.30

    There is no sex in invitro fertilization or cloning either, Sibby. And in a great many cases, the sex that resulted in pregnancy was unwanted. In others, while the sex was perhaps desired, the pregnancy was not.

    The whole purpose of the thought experiment is to focus on the rights of the woman to the exclusive ownership and use of her own body.

  12. Steve Sibson 2011.12.30

    And if she wants file charges against her pre-born child and obtains a death sentence, then go ahead.

  13. Steve Sibson 2011.12.30

    Taunia, still a strawman, the mother is not having sex with her pre-born. That would be illegal.

  14. Bill Fleming 2011.12.30

    Sibby, abortion is legal in the US, as a matter of settled law. She doesn't need to file anything.

  15. Rorschach 2011.12.30

    They should put in a bill designating everybody's birthdate as the date of conception. Side effect would be to stimulate the economy with bars catering to people 9 months earlier.

  16. Steve Sibson 2011.12.30

    Bill, can anyone kill another person? No. The proper course would be to allow the state to execute the pre-born person, after a hearing.

  17. Roger Elgersma 2011.12.30

    So if life is complicated is it worth saving. Or do you have to turn your brain off to kill your kid and act like that is not a problem.
    Of course people should have more control over their own bodies. Then they would have sex when they want to with whom they want to and have babies with who they want to. So where does the constitution say you can kill your kid. That is child abuse.
    I still do not understand why us democrats think we should kill a person we do not like rather than to be good helpful democrats and help them. This also includes to help them control themselves and understand the reasons for that.

  18. Bill Fleming 2011.12.30

    "can anyone kill another person". Of course they can, Steve. You yourself have argued for lethal force if someone invades your property.

  19. Owen 2011.12.30

    "With 10% budget cuts from which to recover, with the federal aid that keeps our state afloat drying up, with family farms and dairies still declining, with students struggling to afford to college, the South Dakota Legislature is getting ready to debate abortion. Again"

    Corey got it right at the start. This state has many problems that effect children that are already born. Abortion is legal and we should be concentrating in the short amount of time we have to fixing the problems Corey listed. Doing anything else is a waste of time.

  20. Bill Fleming 2011.12.30

    Thou shalt not covet they neighbors' wombs, nor your mother's, nor your wife's, nor your daughters', nor her daughters. Nor shall thy government covet them. How's that for a new "coveting" commandment, Sibby?

  21. Steve Sibson 2011.12.30

    Sorry Bill, Thou shall not murder. Get a court order to grant the death penalty.

    "You yourself have argued for lethal force if someone invades your property."

    Another strawman Bill.

  22. Bill Fleming 2011.12.30

    Not at all, Sibby. It is the whole point of the Judith Thompson argument, and you have no rebuttal for it, obviously.

  23. troy jones 2011.12.30


    There is a good argument regarding the violinist.

    "I]magine a woman who finds herself attached (though no fault of her own)"

    This is often used effectively in this debate as an appeal to civil liberty impulses. I admit it once had influence with me. But upon indepth intellectual thought, it is actually pretty weak (except in the case of rape, incest or invincible ignorance).

    A person who willingly engaged in an activity where a particular result is reasonably possible can be held "to have fault" or "responsibility" for the results if they occur. This principle we find applied throughout our legal and Consititutional principles (including Natural Law).

    Using William O. Douglas' words (paraphrasing): "My liberty to swing my fist stops at the proximity of another's chin."

    The counter is simple: A person who engages in sex who knows (or should know, thus not invincibly ignorant) the creation of a baby is possible must accept the consequences.

    An good example very close in circumstances: If I have sex with a person I know has AIDS (or should know which in this example it is more reasonable to claim ignorance) and I get AIDS, I can't sue them for the consequences. I accepted the risk with knowledge.

  24. Steve Sibson 2011.12.30

    Bill, you have no rebuttal to granting due process to the pre-born person.

  25. Bill Fleming 2011.12.30

    Okay, Troy, thanks for the thoughtful and candid reply.

    To be sure, there are reasonable rebuttals.

    I was simply noting that Sibby had not yet made one, nor in fact have you without first qualifying it ("except in the case of rape, incest or invincible ignorance").

    The first order of business would be to agree that your exceptions bring the situation into fairly close alignment with the "violinist" scenario, and that the woman's property rights argument holds here. (i.e. neither the violinist nor the state have any rights to use the hosts body without the host's permission). Can we agree on that much?

    Because, for purposes of examining the "pain" bill, this agreement between you and I (and by extension, everyone else) would be enough wouldn't it?

    Unless you specifically did something to attach yourself to the violinist yourself, you should be allowed to detach yourself from the him regardless of whether it will cause him pain or not. That should be your right, not the state's, not the violinist's, nor the fans of the violinist.


  26. Bill Fleming 2011.12.30

    Yes, I do, Sibby, but that's not the subject right now. We can discuss it later.

  27. Steve Sibson 2011.12.30

    Bill, the violinist is a strawman argument. The cause of the problem is man-made medical technology, not the method my which God has created pro-creation. Unalienable rights pertain to God-made, not man-made.

  28. troy jones 2011.12.30


    To the extent the two situations are comparable (which is sgnificant), yes. Paradoxically, it makes my argument.

  29. Bill Fleming 2011.12.30

    Good. If we agree on that, it's enough for today. Thanks, Troy.

  30. caheidelberger Post author | 2011.12.30

    Roger, I don't want to kill anyone. But I don't want to force any woman to do anything with her body. I don't want to punish any woman for having sex of which I don't approve by forcing her to carry a pregnancy to term.

    The violinist is no strawman. In itself, it illustrates that "fetal pain" is insufficient to justify infringing on the woman's autonomy. Troy's argument has its merits, but it does not rely on the "fetal pain" argument. It relies on the more fundamental argument that a fetus, whether it feels pain or not, is a human being with a right to life beginning at the moment of the conception that the mother and father should have thought more about before they unzipped their britches. If we're going to ban abortion, let's not dress it up in pseudoscience; let's stick with the fundamental issues that are really motivating the right-to-lifers.

  31. Steve Sibson 2011.12.30

    Based on Bill's reaction, or lack there of, I think this due process approach has legs. After all, pro-abortion folks do treat the pre-born as if they were criminals who are violating their mothers.

  32. caheidelberger Post author | 2011.12.30

    No, Steve, I do not view the fetus as a criminal. I view the state as overstepping its bounds in presuming that it can force a woman to submit her body to the service of any other living being. Your due process sophistry is no different on this score: you offer the same old formula of requiring a woman to get permission from the state to do with her body as she sees fit. She is a slave until and unless the state releases her from slavery.

    And notice that, even in Steve's due process scheme, "fetal pain" is irrelevant.

  33. Steve Sibson 2011.12.30

    "I view the state as overstepping its bounds in presuming that it can force a woman to submit her body to the service of any other living being. "

    Cory, the state did not impregnate the woman.

  34. Steve Sibson 2011.12.30

    "She is a slave until and unless the state releases her from slavery."

    Bill, remember when you said we can't be enslaved with debt because slavery is illegal? Do you want to apply that logic here?

  35. Steve Sibson 2011.12.30

    "Cory, the state did not impregnate the woman."

    Unless you want to argue that the state's sex education agenda caused that. Perhaps we should just shut that down.

  36. Steve Sibson 2011.12.30

    "And notice that, even in Steve’s due process scheme, “fetal pain” is irrelevant."

    Cory, yes it is, the defense could be that the abortion is inhumane punishment.

  37. Taunia 2011.12.30

    As typical, it's men discussing what women can do with their bodies, which Cory gets close to pointing out.

    Abortions have been used for over 3500 years. Women have been voting for 90 years. So how many years left to this abortion discussion?

    Abortions are going to happen whether men "allow" women to have them or not.

  38. Taunia 2011.12.30

    Btw, can one of you gentlemen write a permission slip for me to get my annual pap smear? I'd prefer you weren't there, you know, in the room. My male doctor would be more apt to perform the procedure.

  39. Rorschach 2011.12.30

    Obviously if fetal pain is the concern to be addressed, then the bill will also ban any kind of fetal surgery. And they wouldn't want to create a special class of persons immune from pain, as all "persons" (including corporations) should be treated the same. So the bill will also ban any medical procedure that inflicts pain upon persons already born.

  40. Joseph Nelson 2011.12.30

    I have a question about this statement you have made: "I view the state as overstepping its bounds in presuming that it can force a woman to submit her body to the service of any other living being." I am curious how this view differs from the state forcing a woman to support the child after he/she is born. Is it the the "body" part of it, and if so, why? I am also curious if you discern between your concept of "any other living being" and a person's own child. What would you see as a difference between a woman pregnant with her own child, and a woman pregnant with someone else's child (hey, if she can wake up next to a violinist, she can wake up with a baby who is not biologically hers). Does a person have moral/civic obligations to their own children, but not others? Do you see a difference of waking up next to a violinist versus waking up hooked up to your daughter? If so, what? You may still advocate that the state should not force you to stay hooked up to her, but I imagine you would; so why would you? Love? Granted that the state can't force a person to love another person, but in my mind most laws the state puts in place are there to protect the unloved. These are just some musings I had rattling in my brain.

  41. troy jones 2011.12.30

    Taunia, please. This "men" argument is goofy. If we believe it is a life, it isnt a gender issue. I have three daughters and a wife who dont even contemplate exceptions.

  42. caheidelberger Post author | 2011.12.30

    Taunia, I desire and deserve no say over any activity that takes place in the general neighborhood of your underpants.

    Rattle rattle, Joe! Let's work through the moral minefield:

    After birth, a mother and the state can terminate her maternal rights and duties without terminating the child.

    The "body" part is important to the difference as well. I sense a profound difference between taxing my money and demanding my flesh and blood. In terms of sustaining life, I will not posit a difference between my child or another person's: the state oversteps its bounds if it requires that I surrender a kidney or even a blood transfusion to my child or to yours.

    If I wake up hooked up to my daughter in some life-sustaining way, I will have some serious questions. Certainly, I'm likely to stay hooked up, but I reserve the right to unhook myself, and I respect the right of any other person to similarly unhook.

    Laws to protect the unloved—therein lies an interesting point. I can think of lots of examples where I want a strong Bill of Rights to protect the rights of the weak from the predations of the malicious strong... but can you think of a situation where we can legally force the strong to submit their bodies to the service of the weak, and where such submission is the only way to sustain that weak being?

  43. caheidelberger Post author | 2011.12.30

    But Troy, there is a "men" argument to be had, in that we are trying to legislate an experience unique to women. Men face no comparable restriction of their liberty.

  44. Donald Pay 2011.12.30

    I'd like to suggest some amendments to whatever fetal protection measure is offered. If we are going down the road of protecting the fetus, then let's really do that. I'd like to see amendments that require stricter environmental regulations to protect fetal health.

  45. Steve Sibson 2011.12.30

    "Women have been voting for 90 years."

    How many years has the pre-born been voting?

  46. Steve Sibson 2011.12.30

    "the state oversteps its bounds if it requires that I surrender a kidney or even a blood transfusion to my child or to yours"

    Again, a strawman. A man-made situation versus a God-made one.

    So Cory, would you refuse to offer a body part to keep your own child alive?

  47. larry kurtz 2011.12.30

    Don, any evidence of legislation like that popping up in your neck of the woods this session?

  48. Steve Hickey 2011.12.30

    It's a matter of simple human compassion. We wouldn't rip the wing off a living bird would we? Yet we will dismember a biological human being just because some think some biological human beings are less human than other biological humans beings. When they do fetal surgery, do they use anesthesia ? Yes. Why? Just watch silent scream and you'll see with your own eyes what a baby does in the womb when merely poked with a sharp object. It recoils. Why?

  49. caheidelberger Post author | 2011.12.30

    Mr. Sibson: I answered that question above. With respect to the legal question at hand, I would reject a state order to do so.

    Rep. Hickey: you refer to a personal moral judgment. I speak of the authority you wield on our behalf as a legislator, an authority that ends a crucial few centimeters outside the uterus.

  50. larry kurtz 2011.12.30

    Poke a civil liberty: it recoils at the pricking...

  51. Steve Hickey 2011.12.30

    I am sorry for the man who can't feel the whip when it is laid on the other man's back. -- Abraham Lincoln

  52. larry kurtz 2011.12.30

    'Ethics' is the buzzword for 2012: NPR

    The whip will be wielded by a woman, Reverend. Hope yer ready.

  53. Bill Fleming 2011.12.31

    Steve Hickey, I think Abe's quote applies to women as well, don't you? As per Troy and my discussion, this issue is rife with paradox. It's best if we don't pretend there are any simple answers.

  54. Bill Fleming 2011.12.31

    Troy, I don't know anyone who would ever think of asking the women in your family to contemplate exceptions as long as they were talking about their own bodies. Their disposition in that regard is absolutely their own business and I would support them 100% if I were you.

  55. Steve Hickey 2011.12.31

    Bill - Abe's quote absolutely applies to women. We can love them both, mom and baby, can't we? 2000 SD women provided testimony to the state task force that abortion hurt them, in fact some said they were told to shut up when they started crying, others drugged before giving signing consent. One told me she used to wake up at night frantic looking for her baby in bed then realized what happened to her baby and being devastated. I know these women are quickly and callously dismissed by people dead set on abortion being good. But, it is about women getting real info regarding things like fetal pain. Some studies say they feel pain at 8 weeks. Of course Dr. B in Rapid says 30 weeks or whatever he said it was. Shame on him as a doc for picking the highest possible number out there. If there is any chance they feel pain earlier then human compassion ought to kick in.

    A couple things, first, none of the twelve post-20 week abortions in SD were done at Planned Parenthood in Sioux Falls - they were done at Sanford and Rapid City Regional. Of course none were done at Avera as they still honor the hippocratic oath about doing no harm - as I've said many times they are still anchored morally in the Presentation Sisters and are not morally adrift on the sea of profitability. Interesting how fetal surgery in these hospitals is done with anesthesia, but not abortion.

    Second, I doubt PP fights this, they haven't challenged the fetal pain bills that have passed in six states so far. Science is not on their side. Neither is it in their financial interests to engage in a PR war where public awareness is brought to the issue of fetal pain. 12 abortions is nothing to them financially.

  56. Rorschach 2011.12.31

    So the fetal pain bill simply mandate the use of anesthesia in every medical procedure that takes place beginning 8 weeks after conception. That way pain is minimized in all circumstances.

    When will the legislature stop whiping the back of the GLBT citizens and recognize their monogamous relationships as marriage? Too many either can't feel that whip or are wielding it.

  57. Bill Fleming 2011.12.31

    Pastor Hickey, I'm always puzzled when I read a litany of suffering like yours above when attempting to make an emotional/morality argument of some kind and leave out the suffering of the woman endured in labor, the pain endured while pregnant, and the mortal peril a woman subjects herself to by agreeing to carry a pregnancy to term.

    Death of a women during pregnancy is in general actually on the rise in recent years, and for those of limited means, no health insurance, and little or no access to prompt medical attention, the risk is actually much higher.

    It is no small act of heroism that a woman agrees to bear a child. She puts her own life on the line every time she does it.

    It seems to me that anyone who would presume to make an argument of "compassion" without at least acknowledging has little if any moral high ground to stand on.

    I'm just sayin.

  58. Douglas Wiken 2011.12.31

    Legislators restrict the rights of those under 18 years of age, but want to give rights to totally dependent fetal tissue in their effort to divert attention from actual issues of consequence. "Rorschach" makes some of the most interesting points in this discussion.

  59. Bill Fleming 2011.12.31

    The fact of the matter is that any woman who submits to bearing a child volunteers for an enormous amount of suffering from day one. To minimise this, or overlook it altogether is a form of moral blindness of the highest order. Each and every one of us should be nothing but grateful to the mothers who have given of themselves so that we can be here at all.

    If one has become so blind to the physical realities of childbearing to the extent that they miss this point and instead argue that the government should impose its will on woman and their bodies in order to satisfy their superstitious religious beliefs, I submit that it's time to revisit both their religious and their political principles.

  60. Bill Dithmer 2011.12.31

    Steve Hickey how dare you try to wrap yourself in the shroud of Lincoln. The two of you have about as much in common as a pole dancer and a nun and yet you continue a moral crusade based on an interpretation of the bible, your bible.

    I'm not saying that the bible is wrong just that when we let one man interpret what it says as absolute we start to look like sheep not like the thinkers that God whoever that is would expect us to be.

    Lets take a closer look at what Abe really had to say about freedom.

    In the midst of furor over the Kansas-Nebraska Act, Mr. Lincoln had said in Peoria, Illinois: "Little by little, but steadily as man's march to the grave, we have been giving up the old for the new faith. Nearly eighty years ago we began by declaring that all men are created equal; but now from that beginning we have run down to the other declaration, that for some men to enslave others is a 'sacred right of self-government.' These principles cannot stand together. They are as opposite as God and Mammon; and whoever holds to the one must despise the other.

    In an 1858 speech in Chicago, Mr. Lincoln said: "If we cannot give freedom to every creature, let us do nothing that will impose slavery upon any other creature.

    "I believe each individual is naturally entitled to do as he pleases with himself and the fruits of his labor, so far as it in no wise interferes with any other man's rights," said Mr. Lincoln in Chicago in July 1858.

    Liberty, work, and justice were closely connected concepts for Mr. Lincoln. "The world has never had a good definition of the word liberty, and the American people, just now, are much in want of one. We all declare for liberty; but in using the same word we do not all mean the same thing. With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others the same word may mean for some men to do as they please with other men, and the product of other men's labor.

    The Lincoln of the White House years had deep convictions about the wrongness of slavery. But as Chief Magistrate he made a sharp distinction between his personal beliefs and his official actions. Whatever was constitutional he must support regardless of his private feelings. If the states, under the rights reserved to them, persisted in clinging to practices that he regarded as outmoded, he had no right to interfere. His job was to uphold the Constitution, not to impose his own standards of public morality.

    In undated notes to himself, foreshadowing the sublime Second Inaugural which Mr. Lincoln wrote: "The will of God prevails. In great contests each party claims to act in accordance with the will of God. Both may be, and one must be wrong. God can not be for, and against the same thing at the same time.

    In the bible it says somewhere “beware of false profits.” You Mr. Hickey are on the edge of the flat world that you and your kind envisioned a short 2000 years ago. Its time for you to use the urinal or get out of the way so someone else can get to it. Paraphrasing President Lincoln “You cant be both for and against personal freedom.”

    The Blindman

  61. Steve Sibson 2011.12.31

    Since you pro-abortion folks continue to treat the pre-born as criminals attacking defenseless women, at least grant them due process and require a death penalty ruling prior to their execution.

    And if you watch an actual abortion, then the pro-abortion folks should have no problem executing the death penalty on serial killers by first ripping each limb off their body and then collapse the head before hauling them out of the execution room. And before you attack my analogy, this is closer to being similiar than the violinist.

  62. Steve Sibson 2011.12.31

    " Nearly eighty years ago we began by declaring that all men are created equal; but now from that beginning we have run down to the other declaration, that for some men to enslave others is a ‘sacred right of self-government.’"

    Yes, it is now time to give the pre-born the same rights their mothers have...due process from the 14th Amendment.

  63. Bill Fleming 2011.12.31

    Sibby, the 14th amendment would only apply to "persons." To date, society has not yet determined that the pre-born are persons. There is not as yet even one State that has done so. Conversely, to the degree that abortions are legal in the US as confirmed by the SCOTUS numerous times, that's the "due process." It's settled law.

  64. Bill Fleming 2011.12.31

    p.s. Sibby, in the case of the violinist analogy, the violinist was already a fully formed human being (person) with significant creative accomplishments. The analogy is more than sufficient. No need for the extra graphic detail describing the pain that accompanys kidney failure.

  65. Bill Fleming 2011.12.31

    To repeat the "violinist" analog and customize if for Sibby and Pastor Hickey, let's rewrite it as follows (with apologies to Judith Jarvis Thomson, et al):

    "Imagine Sibby wakes up and finds himself attached to Pastor Hickey as a human dialysis machine, and is told that if he disconnects hirself before the end of nine months, the Pastor will die.

    If Sibby thinks he has the right to “disconnect” hirself, then that suggests that abortion ought to be lawful even if a fetus is a person, since the Pastor Hickey is no doubt a person.

    Now imagine we make explicit what might be thought implicit: Pastor Hickey will suffer significant pain due to the disconnection. Does it make a difference as to our view of whether Sibby may disconnect himself, as compared to the case where disconnection will result in the Pastor's painless death?

    If it is not dispositive, then this once again suggests that the addition of fetal pain should not automatically trump the exercise of a woman’s abortion rights, even for those who think fetuses are persons."

    Note here that the main difference between the dialysis analog and the reality of a pregnancy is the time it takes for Sibby to make up his mind.

    In the case of the latter, the longer he takes to decide to detach, the more pain he will cause to both himself and the person attached. There is no such equivalent in the "dialysis" model. So if anything, the analogy argues for the earliest possible termination of an unwanted pregnancy, which runs completely counter to the idea that a fertilized ovum (zygote) is a person.

    Sooner or later, it seems we have to come together to resolve this paradox. Especially in light of the fact that it is no linger necessary to fertilize eggs in the womb, or indeed with cloning techniques to even fertilize them at all.

  66. troy jones 2011.12.31


    You took out the operative words "through no fault of his own." Not enough facts to determine if Sibby can disconnect from Pastor Hickey. If Sibby had done something where it is his responsibility/fault Hickey is attached, he can't disconnect. Sibby's act being the natural consequences of the connection, Hickey can require Sibby to stay connected.

  67. Bill Dithmer 2011.12.31

    Since you pro-abortion folks continue to treat the pre-born as criminals attacking defenseless women, at least grant them due process and require a death penalty ruling prior to their execution.

    See that’s where we are always going to have a problem Sibby. Its not that I am pro abortion, just because you say it don’t make it true, its because I am pro woman. You seem to want everyone to have an equal say in what is happening in a woman's body. While some women might welcome your intrusion into their bodies there are many many that would rather you stay away from what's going on between their legs or in their womb. Neither of us has a god given right to decide what another person can or can not do with their body.! In cases like we are discussing, possession is not 90% of the law but has been reaffirmed time after time to be 100%.

    And now let me continue You say “Women have been voting for 90 years.”
    How many years has the pre-born been voting?

    None, get it none. When the time comes a fetus can reach out and put its x on the ballot box I will change my mind. Until that time we are going to have to depend on the host of that fetus to make decisions for it and her.

    I haven't seen the bill yet. To tell you the truth I would be inclined to support it if so many others had not tried to do the same thing. After a while you begin to understand that each bill is just a stepping stone to the next and final bill, the total banning of abortion. When that time does come it isn't the men that you are going to have to deal with but the women that will feel that somehow they have lost control of their bodies to someone else. No it isn't people like myself that will cause trouble it is the women you try to play amateur gynecologist on. They will crush your head if you put it in the wrong place at the wrong time.

    Happy New Year Everybody

    I am The Blindman

  68. Bill Fleming 2011.12.31

    Now, to put a final point on it, imagine that neither Sibby nor Pastor Hickey had any idea what was going on when they woke up connected as they are in the above scenario. It was only after some explanation by a third party that they came tu understand the nature of their mutually curious circumstance.

    What I would like to hear is how each of them would respond to their situation. How would they apply their moral code to their immediate circumstance as above described? Would Sibby agree to go the whole nine months? Would Pastor Hickey expect him to as per "the golden rule?"

    And beyond that, would they expect everyone else to make the same decisions they did? And beyond that, whould they want whatever they mutually decided to be written into law?

    I trust there are enough questions there to keep both Sibby and Hickey busy without any further input from me.

    Happy New Year, fellas.

  69. Bill Fleming 2011.12.31

    Troy, I just addressed that later, as per above.

  70. Bill Fleming 2011.12.31

    p.s. Troy, what you are basically arguing is that Sibby has no right to change his mind.

  71. Bill Fleming 2011.12.31

    ...and perhaps, further, that if he did change his mind, he could be tried for murder.

  72. Bill Fleming 2011.12.31

    Troy, it would be easy to argue that since both Sibby and Steve have been quite vocal and adamant about their moral position as it pertains to everyone's right to life that neither of them would have any opposition whatsoever to being so conjoined for 9 months if it meant saving a life.

    The well-meaning people who hooked them together in such a fashion could quite easily argue that they were just doing what each of them would have wanted them to do, taking them at their word that the values they expressed apply to everyone, including them.

  73. jana 2011.12.31

    Pastor Hickey, just so we have it on the table for discussion and to help me better understand the issue in your eyes.

    Does life begin at conception?

    Are you in favor of the "personhood bill?

    How do you reconcile the secondary class of women as described in the Bible?

    Do you accept that science and scientists may hold different opinions based on scientific research?

    These questions are not mutually exclusive.

    BTW...does the Bible define quickening? Isn't that where the Bible recognizes life beginning?

    I know that you have been on the front line of the abortion fight in SD and I respect your beliefs...I really do. I just don't happen to agree with them or the hate that the anti abortion crowd brings into the debate.

    Lastly, I really do wish there was never a reason for an abortion to be performed.

  74. Rorschach 2011.12.31

    I see they are going to try some abortion doctors for murder in Maryland. I don't understand how doctors sit in jail facing murder trials but the women walk free. Can someone explain this to me?

    I wonder if the public would support putting thousands of women in prison for murder - and only those women who are too poor to leave the US for an abortion.

    I also wonder why the big abortion ban pushes in the South Dakota legislature usually seem to happen in even numbered years. Can anyone answer that?

    [CAH: Big push? I'm inclined to believe last year's coercive counseling bill was a bigger push than this possible fetal pain bill.]

  75. mike 2011.12.31

    As I've read pastor hickey's commentary here and on other blogs lately. I'm kind of getting sick of his attitude as the all knowing all caring preacher.

    I love animals and am outraged when they are abused. I am also pro life and am horified when the unborn are aborted.

    But because I am pro-life does not mean that I constantly go around saying stuff like well we don't have time to be good to innocent animals because an innocent child has been aborted. I have time for both.
    And just because pastor hickey is a pastor doesn't make him right about all things religious.

  76. caheidelberger Post author | 2011.12.31

    "through no fault of his own"

    Once again, Troy illuminates the true principles at the core of this debate. Bill reformulates the violinist analogy in more familiar terms, and Troy says that what really matters is not the pain perceived by the entity served by the connection, but the culpability of the servant in creating that connection.

    In other words, a fetus isn't really a baby. It's a consequence, a due punishment for an action we dislike.

    By the way, even mothers who have sex with every intention of getting pregnant and carrying that connection to birth sometimes encounter medical situations where they must change their minds and obtain abortions for medical reasons. As Bill F. asks, are we really going to throw women in jail for changing their minds for pretty compelling medical reasons?

  77. Steve Hickey 2011.12.31

    Having just reviewed my earlier comments I'm not able to see where I invoked religion in any way. Yet Bill, Bill, Mike and Jana all zero right in and attack my faith. You would all surely like what I've written on women in the Bible. As Cory would call them, the fundies dub me a feminist. Chapter 7 in my Timothy/Titus commentary is on releasing women everywhere. Re: Life in the Bible, it doesn't begin at conception, nor at quickening, it begins in the mind of God. Each life is his dream, every day ordained in his book before the world began. It's a shame we teach our kids they are just the next random mutation in an unguided evolutionary process. No wonder they struggle with self-worth. They are each unique, wonderfully made and have irreplaceable worth - they deserve protection in their most vulnerable stages of life. But those are my beliefs and I have a right to them. But please, back to this post, my comments were about science and basic human compassion. Discuss those rather than inserting my faith into it. And you are creeping me out with all this talk of me being attached to Sibby. Happy New Year.

  78. larry kurtz 2011.12.31

    Hickey heralds hypocritheocrisy hither....

  79. larry kurtz 2011.12.31

    Theology is unbounded by the facts but don't judge my political decisions by my faith.

    What a crock.

  80. caheidelberger Post author | 2011.12.31

    I have the unnerving feeling that I'm going to wake up and find myself attached to the future. Happy 2012, everyone!

  81. jana 2011.12.31

    Oh Pastor Steve, I am not attacking your faith at all.

    Even in my disagreement with you, I respect and in many ways admire your faith...except for the scorched earth abortion issue. And don't think it's only you that I disagree with...this is an issue that has divided far too many doctors, scientists, legal scholars, family and friends.

    But don't worry, the effort you and others have waged in changing the thought of when a group of cells becomes a person has changed dramatically through your efforts. When the murder of doctors and nurses in the name of those cells has become acceptable for too've won.

    The fact that many now find it acceptable that women lose their rights over their own body shows that you have won as well.

    I just think you are wrong.

    Just don't call me pro abortion...I, like most people would prefer that there were never medical, social or financial reasons that would require the choice. But I'm not ready to have that choice legislated away by the government.

    Especially when, even with your best efforts, abortion will never go away. The only thing that will happen is we will go back to the pre Roe v. Wade days when only the wealthy could have a choice.

  82. jana 2011.12.31

    I left off...or those that cannot afford it will find the black market even at the risk of infection and death.

    By the way...with this little pain test that the anti abortion crowd wants to there a pain test for women who are pregnant?

    What kind of pain do you suppose a rape victim has from conception to delivery to the trauma that lasts a lifetime. I mean if pain is your real issue.

  83. Bill Fleming 2011.12.31

    Let's be clear Pastor Hickey, I am not attacking your right to believe as you please. I am challenging your right to demand that others believe and abide by your beliefs. And in the last example, I am challenging you to demonstrate that you yourself would abide by it. Instead of scolding us like children, you should answer us as a fellow adult. We are not your congregation, we are your intellectual and spiritual peers.

  84. caheidelberger Post author | 2012.01.01

    Jana, I'll be adding that argument to my files. I wonder how much pain a woman experiences when she is forced to sit through a "counseling" session with Leslee Unruh.

  85. Ellen Van Burskirk 2012.01.01

    Why do women have abortions after 20 weeks? Because they forgot to schedule their abortion? No. Because they decided after 20 weeks of being pregnant that they no longer want to be a parent? No.

  86. jana 2012.01.01

    Corey - "I wonder how much pain a woman experiences when she is forced to sit through a “counseling” session with Leslee Unruh."

    I have never been waterboarded...but given a choice...

  87. jana 2012.01.01

    2 statewide votes on abortion and both times the anti-choice group goes down to defeat by large margins to the peoples wishes.

    What's our state motto again? Oh yeah...

    "Under God, the People Rule."

    So who are the people that rule? I might be missing something here. Did they mean Roger and Leslie...that could qualify as people.

    Bring on the personhood bill, a lot of out of state effort has gone into crafting that one and you guys are just the fools to try and pass it in this low cost petri dish we call South Dakota.

    You've lost two straight...still don't believe in the people rule?

  88. caheidelberger Post author | 2012.01.02

    Ellen, thank you for reminding us of the kind of pain women already suffer, through no fault of their own. You remind us of exactly why we must place women's autonomy above the urge to punish.

    Jana, we need more of those people who vote down those bans to run for Legislature and kill these bills in Pierre.

  89. troy jones 2012.01.02

    Jana: "Just don’t call me pro abortion…I, like most people would prefer that there were never medical, social or financial reasons that would require the choice. "

    I don't and I take you at your word. Sometimes I do take the shortcut when I should say "pro-abortion rights."

    Jana: "When the murder of doctors and nurses in the name of those cells has become acceptable for too many…you’ve won.

    The fact that many now find it acceptable that women lose their rights over their own body shows that you have won as well."

    At the same time, you lament the "hate of the anti-abortion crow" you use these words to describe those with whom you disagree.

    I and the vast majority of those I know who oppose abortion do not condone murdering of doctors and nurses. Nor do we minimize the impact of carrying a child to birth. We only defend the right of these babies the opportunity to realize their potential.

    The debate and discussion of abortion needs all sides to be more respectful. And as Ghandi said, "Let the change I want to see in others begin with me."

    I can't expect you to respect the life of the unborn when I appear to be dismissive and unrespectful of the life of the born. At the same time, you can't expect respect from me when you appear to so cavalierly dismiss our motives or heart.

  90. Bill Fleming 2012.01.02

    I agree with Troy on this point. We all need to be more respectfull of one another when discussing this issue, because as we have (perhaps?) discovered, it is rife with paradox and there are no easy answers, espcially when we move from the abstract, timeless, anonymous ideal to the personal, existential circumstance of the present moment.

    Ironies abound. Isn't it peculiar that we all seem more willing to allow an abortion to be legal when it is the result of an illegal act (rape and/or incest) or an act of "God" (miscarriage, ectopic pregnancy and other complications that threaten the life and health of the mother) when the fact is that nothing is really different about the right to life of the fertilized egg/embroyo/fetus in these contexts?

    In other words, 14th Amendment protections do not apply, nor do we seem to really want them to. That is the lesson of the proposed "Personhood" Amendment and why it didn't pass in Mississippi recently, isn't it? Because deep down, most of us really wouldn't want it to?

    And from a "personal property" standpoint, there are few of us who would argue that the food in one's stomach is not rightfully and exclusively ours. Once it is inside our bodies, we own it, no matter how it got there.

    Except, it seems in the case of the male sperm cell and the female ovum, which is all the more ironic because for the most part the cells involved ARE a part of the female, sharing ALL of her mitochondrial DNA and half of the rest. The other half was given to her freely (and in most cases eagerly) by the male, so arguments that it still belongs to him, or even more absurdly to the "government" or "society" somehow, seem particularly absurd from a property rights perspective.

    And finally, the notion that once we have made a choice, even a bad one, we have no right to correct our course and change our minds seems particularly rigid. As Cory argues, one's decision to bring a child into the world would idealy be an act of free will, joy and affirmation, not a punishing for having done something wrong and irresponsible.

    Thank you Troy and Cory for providing the emotional space in which to reason together about this issue is at least a semi-dispassionate manner. Given advances in technology, we are going to have more bioethics conundrums like this in future years, I suspect, not fewer. So at a minimum, it seems inportant for us to at least learn how do discuss them in a far more open and less demonizing manner than we have thus far. I'm sure everyone with a passion on this issue has the best of intentions and the good of humanity in mind. But let's always remember, in most wars (and even football games) it is not uncommon for both sides to believe that God is on their side.

  91. troy jones 2012.01.02

    If I might add to Bill's comments. As I drove to the office today, I pondered something that occurred several years ago.

    Me and a friend are on my deck having some beers and one of the subjects was abortion. We "argued" for some time. As he headed home, I discovered one of my daughters had been on the couch next to the open window and had eavesdropped. After my friend left, I asked for her comments and she said: "You guys sounded stupid."

    When I asked her how I was stupid, she said two things that have stuck with me and made me hesitant to "argue" about this matter especially on blogs.

    "Dad, all night you guys argued about Rights but never about what was right."

    "This is about a mother doing what is right for her baby."

    As I reflected on this conversation, I then recalled a discussion regarding her "Creighton Students for Life" t-shirt. I had asked her how she handled being confronted wearing it. She said simply, "I just tell them I'll talk about a mother's rights after we talk about the baby. They never want to talk about the baby so I just go to class."

    This daughter continues to teach me about life and what is important. Unfortunately, with regard to matters of life and death, death is the ultimate in rigid. Once done, it can't be undone. Whether a person's destiny is to be a world-renowned violinist or something less "valued" by society, it is their destiny.

    As a body politic, we must continue to debate this issue. It is unavoidable because of its centrality of who we are as a nation/civilization. Your mentioning of the Mississippi personhood legislation and implications is profound because it speaks so well about who we really are as a people.

    On this and so many issues, because we deep down don't really want to discuss the "other" but want to focus on "self" or how we percieve it will affect us as individuals, we choose what is easy or simple and not what is right. We (myself grievously included) accept the "less" vs. pursuing the "more." And, this my friend, saddens my heart, especially as I contemplate both the bad I do but also the good I fail to do.

  92. Miranda 2012.01.06

    Thought provoking blog & discussion! This year marks the 39th anniversary of Roe v. Wade, which didn't legalize abortion, it protected the privacy rights of women to make their own decisions about deeply personal and difficult problems. Can we get over it now - it's been nearly four decades! Let's talk about real solutions for a change! Let's provide our nations young people with accurate sexual and reproductive education. Let's encourage women (since they are at the center of this debate) to respect themselves and provide them with support to empower them. I strongly believe that women know what is best for themselves and their families. To me that is what being pro-choice is really about!

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