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The iron fist: Obama admin. tries to force IN to fund PP

So, legal eagles, perhaps you can help me to understand this. Indiana has passed a law setting further state requirements on the use of Medicaid dollars within the state so as to block funding of Planned Parenthood within the state. The Obama administration says it's illegal for Indiana to do this. Planned Parenthood has the chutzpah to try to say that defunding it is unconstitutional!

Let's set aside the last of those as absurd on its face. What's the deal with federal law? Is it, as I suspect, sheer bluff on the part of the Obama admin. to say that federal law prohibits states from setting up such further criteria on use of Medicaid funds?

Irony note: This is the same administration that won't enforce federal law in Oregon where federally controlled substances are used for state-legalized assisted suicide.

Comments (36)

Indiana's law appears to be a state version of the Hyde Amendment. There's nothing unconstitutional about that. In fact, in Harris v. McRae (1980), the Supreme Court held that states participating in Medicaid did not need to pay for "medically necessary" abortions. The text of the opinion can be found here, and the Wikipedia article gives a decent summary.

If it's a version of the Hyde Amendment, then how can they even allege conflict with federal law? The Hyde amendment still _is_ federal law, last I checked.

I'm guessing that the feds are interpreting the concept of "funding for abortion" in a rather loose way (since it still allows funding for Planned Parenthood with dollar shuffling) and are arguing that states can't place any additional restrictions--such as "No, your organization _can't do abortions at all_,"--on the dispersal of Medicaid funds. But is this true? Do states not have any further wiggle room beyond federal regulations? I've read that states _can_ place additional restrictions on their own dispersal of Medicaid funds, beyond those placed by the feds.

1. This is not at all like the Hyde Amendment. The Hyde Amendment is merely a federal law, and the only restriction on federal laws is the federal constitution. The Hyde Amendment is clearly constitutional. The law in question is a law touching on Medicaid, which is subject to pervasive regulation by federal law. State laws concerning its administration thus have a supremacy-clause problem when they have the potential to conflict with those federal laws. So the analysis at issue is really quite different.

2. I don't know Medicaid law and don't want to spend the countless hours needed to become an expert on it. So I can't comment on the merits apart from saying that PP is almost always full of it. But since this is a regulatory issue, I really don't know. I certainly hope they are.

This is simple. This is from the new law:

"SOURCE: IC 5-22-17-5.5; (11)EH1210.2.1. --> SECTION 1. IC 5-22-17-5.5 IS ADDED TO THE INDIANA CODE AS A NEW SECTION TO READ AS FOLLOWS [EFFECTIVE UPON PASSAGE]: Sec. 5.5. (a) This section does not apply to hospitals licensed under IC 16-21-2 or ambulatory surgical centers licensed under IC 16-21-2.
(b) An agency of the state may not:
(1) enter into a contract with; or
(2) make a grant to;
any entity that performs abortions or maintains or operates a facility where abortions are performed that involves the expenditure of state funds or federal funds administered by the state.
(c) Any appropriation by the state:
(1) in a budget bill;
(2) under IC 5-19-1-3.5; or
(3) in any other law of the state; to pay for a contract with or grant made to any entity that performs abortions or maintains or operates a facility where abortions are performed is canceled, and the money appropriated is not available for payment of any contract with or grant made to the entity that performs abortions or maintains or operates a facility where abortions are performed.
(d) For any contract with or grant made to an entity that performs abortions or maintains or operates a facility where abortions are performed covered under subsection (b), the budget agency shall make a determination that funds are not available, and the contract or grant shall be terminated under section 5 of this chapter."

This is from the HHS letter:

"Section 1902(a)(23)(A) of the Act provides that beneficiaries may obtain covered services from any qualified provider that undertakes to provide such services. This SPA would eliminate the ability of Medicaid beneficiaries to receive services from specific providers for reasons not related to their qualifications to provide such services. As you know, federal Medicaid funding
of abortion services is not permitted under federal law except in extraordinary circumstances (such as in cases of rape or incest). At the same time, Medicaid programs may not exclude
qualified health care providers from providing services that are funded under the program because of a provider's scope of practice. Such a restriction would have a particular effect on
beneficiaries' ability to access family planning providers, who are subject to additional protections under section 1902( a)(23 )(B) of the Act. These protections also apply in managed
care delivery systems. Therefore, we cannot determine that the proposed amendment complies with section 1902(a)(23) of the Act."

This is also in the same letter:

"We assume this decision is not unexpected. As the Indiana Legislative Services Agency indicated in its April 19,2011 fiscal impact statement, "While States are permitted to waive a
recipient's freedom of choice of a provider to implement managed care, restricting freedom of choice with respect to providers of family planning services is prohibited."

Which sort of makes your use of the term "iron fist" a bit extreme as the Secretary merely seems to be following the law as understood by her and the Indiana Legislative Services Agency (as well as anyone fluent in English who undertakes a plain reading of the law).

The "iron fist" here belongs to the Christianists who took power in a number of states in last year's election. This is just one of a number of laws that seek to restrict a woman's right to reproductive autonomy that have been passed in those states.

This, of course, has nothing to do with the Hyde Amendment and everything to do with a heavy handed attempt to single out Planned Parenthood because of sectarian motivated distaste for a relatively small part of the many important services it provides to women.

Update to all: Here is Indiana's response to PP's appeal for injunction.

http://www.irtl.org/wp-content/uploads/2011/05/Memo-in-Opposition-to-Motion-for-Preliminary-Injunction.pdf

Indiana makes two important points that struck me. One, I suppose a non-expert could consider to be a he-said-she-said thing regarding the current state of Medicaid law: That is the argument that states _do_ have authority to determine "qualified" Medicaid-receiving programs and to add requirements in addition to the federal ones. The Indiana memo cites several cases that do seem to indicate just exactly this.

The other is even more knock-down (to my non-expert eye) and runs thus: If indeed Indiana's program were now non-compliant with federal medicaid law (for example, by adding more requirements for eligible providers beyond those required by the feds), this wouldn't mean that Indiana can be forced to fund Planned Parenthood by court order. It's supposed to mean that Indiana stands in danger of losing federal Medicaid funds! That risk IN seems quite willing to take.

This seems to me unanswerable. The Medicaid law is supposed to be about the administration of the federal program. It's not as though states can be forced by some court to participate in the federal program.

Read the Indiana memo, Al. If the Obama admin. wants to withdraw federal Medicaid funding from IN, it can try that, and that can be fought out in the courts on the basis of the competing precedents cited. IN does indeed have its own precedents which contradict what the HHS says and seem to show that states can have a hand in addition to the federal government in defining "qualified" providers. However, that's not the same thing as being forced to fund PP by a court. PP is trying to argue a private cause of action here--in effect, an _entitlement_ to state funding for PP on the part of Medicaid recipients--where none such exists.

I love phrases like "a woman's right to reproductive autonomy" as applied to funding. That's like referring to my "right to automobile autonomy" in the context of my demanding that the federal government buy me a Porsche and that the state government administer the deal.

Still not having read the filings or having become a Medicaid expert, several things come to mind, based on the comments.

1. I thought that the HHS's view was more or less what the law is. That's mildly comforting that I didn't make that up.

2. Indiana is probably right: the federal government can attach as many strings to federal money as it wants, but it can't compel a state to participate in a federal program, force state officials to implement one, or compel a state to choose between various options that couldn't be enforced directly. See New York v. United States, 505 U.S. 144 (1992).

I gather the question as to whether they are even in conflict with the current Medicaid law turns on the notion of a "qualified" provider. The HHS appears to be agreeing with PP that only the federal government gets to define "qualified." Indiana has several precedents that seem to say otherwise. So even if it came to an attempt to attach strings to federal money, it seems plausible that one of the strings cannot be, "Your program cannot put any additional restrictions on what counts as a qualified provider." They have a precedent concerning Puerto Rico, for example, where PR had the discretion to put additional qualification requirements on providers that were not related to medical competence and went beyond federal requirements. The IN memo makes interesting reading.

Only have time for a quick scan. This seems important:

"The Seventh Circuit has not ruled on whether 42 U.S.C. § 1396a(a)(23) can be enforced via Section 1983 by individual Medicaid beneficiaries such as Ms. Clemons and Ms. Grubbs. As far as the State can find, post-Gonzaga, the Seventh Circuit has reviewed only one subsection of §1396a(a) for purposes of determining whether it may be enforced through Section 1983. In Bertrand, 495 F.3d at 457-58, it assumed without deciding that (a)(8) could be so enforced, but expressly left the question for another day. Id. Quite plainly, this is an open question."

The aptness of the cited cases can only be determined by looking them up which neither of us has the time to do. I'll try to find the PP brief which would allow a comparison and save much time; if you have it please share. By the time this gets to trial there will be all sorts of briefs.

As far as I can determine the Feds aren't a party to this. HHS has denied funding which they can do. PP is asserting that Federal law is being violated to their harm. Indiana is saying no. The courts will decide. As everyone seems to agree that HHS has the right under current law to deny funding the Obama iron fist thing seems off point. PP and the other plaintiffs have a right to seek to settle the law.

I don't believe HHS is denying IN federal funding but rather is continuing to fund PP in IN contrary to state law and is insisting that IN _must continue_ to fund PP. No option is being given of ceasing funding to PP and simply ceasing to be a participant in the federal program. The exact mechanism there is something I haven't gotten clear on, but it's IN itself that is bringing up the possibility that the secretary would determine that IN is not in compliance--implication, that isn't the route that is being followed.

The real problem: http://www.cbsnews.com/stories/2010/03/22/opinion/main6323651.shtml pray for the bishops that they will finally after 40 million dead babies speak out for the unborn BEFORE not after an election.

The several states administer the program so I'm not sure the paper work necessary to generate a particular payment could happen without going through the state process. As I understand it, all HHS can do when a state violates federal law is to with hold the Federal share.

Again, the suit appears to only involve non-governmental actors on the plaintiff side and, taking the defendant brief at face value (always risky), we seem to have a question that needs to be resolved.

"The exact mechanism there is something I haven't gotten clear on, but it's IN itself that is bringing up the possibility that the secretary would determine that IN is not in compliance--implication, that isn't the route that is being followed.
Once again the long term downside of the compromises necessary to form the nation becomes apparent. Besides, demands on Medicaid are counter cyclical so the best thing to do would be to fund the program through the national government and by pass the states."

The HHS letter would seem to indicate that the state has been found to be violating the law and the state has 60 days to appeal to HHS. IN could go to court after that.

Polling shows that folks are beginning to realize how foolish it was to put our equivalent of the Taliban (as well as a crook should one live in Florida and a fascist should one live in Michigan) in power so these guys are scampering to do as much damage as they can before they get voted out.

Veritas, when an article starts out with a comment like this, "I am not competent to speak to health care policy", one should thank the person for their honesty and disregard what follows.

Pro-choicers are better at the bureaucratic game than pro-lifers. Just look at the demands for low-level bureaucratic positions in the year 2008 "Advancing Reproductive Rights and Health in a New Administration" plan, and ask yourself if pro-life groups are similarly thorough (and effective) at demanding these kinds of appointments from a GOP administration.

The bureaucracy is the permanent establishment. A few well-placed regulations can cripple your opposition and enshrine your political patrons regardless of the election.

Al, I wonder if you realize somewhere deep inside how your allusions to the Taliban and fascists undermine your credibility. Just occasionally do you wonder about that?

I will note that you left out "crook" so I'll assume you agree with my well founded assertion that Rick Scott is a crook - something the good people of Florida are realizing too late.

When a governor takes upon himself the power to dissolve elected local governments and steal their resources, I see "fascist" as an apt term.

http://blogs.forbes.com/erikkain/2011/03/11/michigan-governor-plays-fast-and-loose-with-democracy-invokes-radical-new-powers/

Of course we also have the spate of anti-union legislation from these plutocratic running dogs.

As for "Taliban", well, the original Taliban are famous for trampling on the rights of women in the name of religious orthodoxy. That is precisely what this new crop of socially conservative politicians seem to be doing - just calling it like I see it. I don't expect you to agree.

I would expect you to be troubled by a state official being able to stomp all over the rights of locally electors. We both seem to have problems with electing crooks.

You also have the added bonus of these new governors (Florida, Wisconsin, Ohio, New Jersey) all adopting job killing policies.

My credibility is doing just fine - check out the polls in these states as the people discover that they seem to have gotten what they didn't expect they were voting for. Considering that we have folks promoting "death panels" that never existed and who have referred to the president as a "moral monster" over a non-problematic legislative vote, I see nothing wrong with my expressing a few strong but quite reasonable opinions myself.

Al, equating committed Christians with committed Muslims is like comparing committed heliocentrists with committed geocentrists. One group is rightfully committed to a true idea and the other is committed to a false idea -- unless you want to say that both are wrong. Or, to put it another way, the only way to treat all religions as equal is to treat them each as equally false.

The idea that Christians are supposed to be de facto atheists in a liberal democracy is a pernicious doctrine of demons. If we believe that abortion is murder (as genuinely Christian people do), obviously we are going to want to regulate it as such.

"...unless you want to say that both are wrong. Or, to put it another way, the only way to treat all religions as equal is to treat them each as equally false."

Agreed, within reasonable public policy concerns (e.g. sacrifice, FGM, provision of health care). While most all religions (and philosophies for that matter) can provide important insights into matters public and private, none (so far, at least) have an irrefutable claim on this "truth" thing. Meditating on 17th century European and 20th century world history should convince one of this.

"The idea that Christians are supposed to be de facto atheists in a liberal democracy is a pernicious doctrine of demons."

Or, its just the best way for all of us to just get along - no demons or trolls required. We have had a more or less civil society for so long that we are spoiled and too often take it for granted.

"If we believe that abortion is murder (as genuinely Christian people do), obviously we are going to want to regulate it as such."

This is where taking religion too seriously gets one. You have stated that one has to believe abortion is murder in order to be a genuine Christian.

Now, if an abortion is murder, it is clearly a premeditated murder, one that usually involves the hiring of the person who actually accomplishes the act. These are among the special circumstances that elevate murder to a capital crime - death or life w/o parole. Are you willing to so deal with the woman?

Anyway, and as I pointed out to JC in his post just south of here, the most valuable analytic tool in public policy is to ask, "how do we get from here to there"?

Reflecting thusly on abortion it becomes clear that laws that seek to seriously hamper a woman getting an abortion are incompatible with a free society. Further any such laws will inevitable discriminate on the basis of class.

Just as serious contemplation on seizing folks' children in order to insure they have the "truth" informs us that we shouldn't go there. This or that dispensations' concept of personhood can't be the controlling authority on abotion on an individual basis. That is why China's compulsory abortion laws are as undesirable as some of the anti-abortion laws we find in some Central American nations.

Hope this helps.

"Agreed, within reasonable public policy concerns (e.g. sacrifice, FGM, provision of health care). While most all religions (and philosophies for that matter) can provide important insights into matters public and private, none (so far, at least) have an irrefutable claim on this "truth" thing. Meditating on 17th century European and 20th century world history should convince one of this."

That doesn't seem to me to follow at all. The facts of history don't seem to do anything to vindicate or sully any of these ideas. If I'm supposed to be convinced to agree with you on he basis that men were so convinced of the truth of Christianity that they were willing to go to war over it -- my reaction to such information is the opposite. Whether or not they were right to war over it isn't the issue for me. If one believes an idea to be true, one acts as if that idea is true -- even over and above "public policy concerns", especially since what constitutes a public policy concern is so variable from one society to the next (temporally and geographically).

"Or, its just the best way for all of us to just get along - no demons or trolls required. We have had a more or less civil society for so long that we are spoiled and too often take it for granted."

Why don't we then "get along" with child rapists and serial killers? Because we *really* believe that child rape and murder are bad things -- some of us also *really* believe in the truth of Christianity, not the sort of fake belief that always takes a backseat to public policy concerns.

"This is where taking religion too seriously gets one."

This statement makes as much sense as saying "This is where taking heliocentrism heliocentrism too seriously gets one." You assume the falsity of all religions. Why should I share that assumption?

"You have stated that one has to believe abortion is murder in order to be a genuine Christian.

Now, if an abortion is murder, it is clearly a premeditated murder, one that usually involves the hiring of the person who actually accomplishes the act. These are among the special circumstances that elevate murder to a capital crime - death or life w/o parole. Are you willing to so deal with the woman?"

Why not? But perhaps taking into account other possibly mitigating factors (e.g. deceptive propaganda from demonic organizations such as NARAL and PP, abusive boyfriends, etc.)

"Anyway, and as I pointed out to JC in his post just south of here, the most valuable analytic tool in public policy is to ask, "how do we get from here to there"?"

Certainly a valuable question, but one must first know where one is going. Obviously I favor a nation in which Christianity is favored.

"Reflecting thusly on abortion it becomes clear that laws that seek to seriously hamper a woman getting an abortion are incompatible with a free society. Further any such laws will inevitable discriminate on the basis of class."

This is a wild leap. A society without abortion isn't necessarily unfree unless we define freedom as the right to abortion -- and then such "freedom" doesn't seem worth pursuing to me, given that I see it as murder.

"Just as serious contemplation on seizing folks' children in order to insure they have the "truth" informs us that we shouldn't go there. This or that dispensations' concept of personhood can't be the controlling authority on abotion on an individual basis. That is why China's compulsory abortion laws are as undesirable as some of the anti-abortion laws we find in some Central American nations."

Our concept of personhood absolutely can be the controlling authority, if we make it. You give me no reason to think otherwise.

This or that dispensations' concept of personhood can't be the controlling authority on abotion on an individual basis.

Which is absurd. If we didn't have some concept of personhood, we couldn't run society at all. There is no more reason to say that pro-lifers should just shut up (because their view is "religious") than to say that abolitionists should just shut up because they were trying to get slaves treated as persons and thus impose "their concept of personhood" on others. And many of them were religiously motivated as well.

The question should be whether some given view is _true_, not whether it's "religious."

Al--first rule of holes--stop digging.

"There is no more reason to say that pro-lifers should just shut up (because their view is "religious") than to say that abolitionists should just shut up because they were trying to get slaves treated as persons and thus impose "their concept of personhood" on others."

Sigh! Again with the we're heroes just like the valiant abolitionists who were heroes just like we are. The slaves were treated as persons - persons who were the property of another.

And no one is telling you all to shut up - you are, and should be, free to assert your beliefs. I'd even defend to the death, yada, yada... My point is that you are wrong and your agenda would do violence to some basic rights, not that you shouldn't be free to propose destroying those rights.

We don't have a hole here - my point is simply that the implications of your concept re: personhood of the fetus is no more compatible with a free society than is the Chinese concept of population control - "controlling" is the key concept here.

(BTW, note how Josh has to retreat into the whole "devil made me do it" thing when trying to confront the implications of his murder claim. Guess he isn't a genuine Christian either.)

Look, past a certain point, there's no way to have effective abortion laws in a free society. Laws that don't infantilize women and reduce them to chattel status - read the so called partial Birth Abortion Law.

"Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons."

This quote from the Constitution (Article 1, section 2) should be dispositive as to the notions around the personhood of slaves at the time of the Founding.

Advocacy or opposition to slavery has nothing to do with slaves being persons under the 1787 Constitution.

The slaves were treated as persons - persons who were the property of another.

That isn't the way most pro-lifers are considering personhood. They are looking at it through the lens of having legal rights, which slaves didn't have. In that respect, personhood is by a wide margin the primary legal/philosophical dispute in abortion debates.

"(BTW, note how Josh has to retreat into the whole "devil made me do it" thing when trying to confront the implications of his murder claim. Guess he isn't a genuine Christian either.)"

The only thing I can think of is that you're referring to my willingness to consider mitigating factors in determining prison sentences for women who have abortions. Somehow, in your mind, this became "absolve them of responsibility". Such a lack of reading comprehension is, to me, evidence of someone with nothing to offer in a discussion either through 1) you being a troll or 2) you being unable to understand me (whether we want to attribute this to demons I'll leave up to you). Either way, I'm done with you.

Somehow, in your mind, this became "absolve them of responsibility".

Responsibility includes suffering the full penalty for their wrong actions, if it is truly a mitigating factor it necessarily reduces their responsibility. Sorry about your reading comprehension, however I will not attribute it to demonic possession.

ab·solve/əbˈzälv/Verb -- 1. Declare (someone) free from blame, guilt, or responsibility.

"They are looking at it through the lens of having legal rights, which slaves didn't have."

Not quite that simple through much of our history although Justice Taney solved that. In any discussion I've seen on this topic it soon becomes apparent that the advocates of personhood haven't thought it through and are quite naive as to the implications of making an organism developing inside of and physically interacting with a person a legal person. There would be quite a bit of litigation to resolve all of the questions.

As is usually the case with folks on the right, there is the tendency to conflate and obfuscate in matters of public policy. Outside some sort of Münchausen's, no one aspires to an abortion. It may be perceived as the best available option which, in some cases may be correct - I know of a few adoptions in which abortion would have been the better choice.

As is usually the case, conservatives gravitate towards the solution that most disadvantages the poor and middle class while leaving the more advantaged among us to do as they will (even with personhood our culture and Constitution wouldn't tolerate the anti-abortion laws of some countries).

Some solutions are obvious once we seek practical solutions. A few years ago a friend of mine related that, while her health insurance wouldn't cover her birth control, it would cover an abortion with a $50 co-pay. She is on the left and pro-choice but found this odd. No doubt some bean counter figured out that paying for abortions would cost x while paying for birth control would cost y and x

Josh, it's poor form to quote someone falsely. I never wrote "absolve them of responsibility". You made two claims, that abortion is murder and that not accepting that view calls into question ones Christianity.

If you want to qualify that by allowing that you used "murder" as an emotionally satisfying but inexact term, well OK. Otherwise, murder is a legal term that has very specific meanings depending on the exact nature of the act.

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=187-199

If you analyze an abortion in the light of the above you will see that an abortion as murder in which the woman goes to a clinic seems to best fit premeditation and for financial gain. The circumstances you mention might be mitigating factors. Mitigation would still call for life w/o parole. Are you willing to see a woman who gets an abortion go to prison for the rest of her life?

Al, if we're going by what the law is, obviously it doesn't include the idea that abortion is murder. I think the law should change -- this may or may not include sentencing. If a pregnant woman is beaten by her boyfriend until she has an abortion, I'm would have no problem with a judge giving her only ten or fifteen years of prison. This doesn't preclude her being guilty of murder. (For a woman who has an abortion because she thinks finishing her law degree is more important than being a mother, life in prison doesn't seem at all inappropriate to me.) Believe it or not, Al, "murder" isn't solely a legal term, or else I would obviously be wrong to say that abortion is murder.

And even if the law was such that women obtaining abortions only got a year or even six months in prison -- yes, I would see that as too little, but it would be infinitely better than the laws we have in place and I would happily accept that option as a compromise.

1. Mitigation would still call for life w/o parole.

Baloney. Where do you come up with this stuff? Mitigation can call for anything from a milder form of execution to community service for 2 weeks. Or do you imagine that abortion would be criminalized apart from writing new laws?

2. Are you willing to see a woman who gets an abortion go to prison for the rest of her life?

In some cases, absolutely. A married female obstetrician who aborts a child conceived in marriage, so as not to interrupt her scheduled Caribbean cruise in six months, and whose husband disapproves of the abortion, etc., should be prosecuted for murder one. She knows exactly what a "fetus" is; she has every material and social advantage; the father of the child wants the baby; etc. - no mitigating factors here.

In most cases the penalties for a second or third offense should be severe. The lady who runs the local abortion mill has had 5 abortions of her own. She's unrepentant and continues to facilitate baby murder. Capital punishment in her case should not be off the table.

Most women who have abortions today, however, have some mitigating considerations - they have been told lies about abortion from an early age; they have boyfriends or family members who pressure them into killing the child; they have severe financial hardships, or various other social pressures.

By the way, I've always maintained that there is nothing uniquely conservative about being pro-life. Liberals can and do embrace the pro-life cause - for liberal reasons. Old fashioned liberals, at any rate, generally agree with religious conservatives that innocent human life should be protected by law, and they spectacularly outpace conservatives in assigning rights to all persons. (I speak of principled old fashioned liberals because the newer, post-modern version of liberalism denies the existence of universals.) The morality of abortion therefore hinges on a question of fact: is the "fetus" a human life? Liberals like Nat Hentoff
( http://groups.csail.mit.edu/mac/users/rauch/nvp/articles/media/hentoff_stereotype.html )
who answer this question honestly end up pro-life without compromising their liberalism at all.

"Baloney. Where do you come up with this stuff?"

"190.3...

"After having heard and received all of the evidence, and after
having heard and considered the arguments of counsel, the trier of fact shall consider, take into account and be guided by the
aggravating and mitigating circumstances referred to in this section, and shall impose a sentence of death if the trier of fact concludes that the aggravating circumstances outweigh the mitigating circumstances. If the trier of fact determines that the mitigating circumstances outweigh the aggravating circumstances the trier of fact shall impose a sentence of confinement in state prison for a term of life without the possibility of parole."

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01000&file=187-199

"Mitigation can call for anything from a milder form of execution to community service for 2 weeks. Or do you imagine that abortion would be criminalized apart from writing new laws?"

Which demonstrates my point as to having thought things through. A person is a person and Equal Protection would apply. Murder for financial gain is murder for financial gain regardless of the age of the person.

"190.3...

In other words, you are imagining that abortion will be criminalized apart from writing new laws. Which is a tad unrealistic.

The California statute to which you linked is hysterical right out of the gate. For entertainment purposes I'll quote 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.

So, "murder is the unlawful killing of a ... fetus, with malice aforethought ..." UNLESS the killing of a fetus with malice aforethought is "solicited, aided, abetted, or consented to by the mother of the fetus". Clever! Gotta love the liberal mind at work.

What's that you were saying, Al? "A person is a person and Equal Protection would apply"? This statute says the killing of an unborn person is only murder if the mother of this person doesn't consent to it. Or does the statute mean to say that the killing of a non-person is sometimes murder? Nevermind. But thanks for posting the link: that cleared it all up for us.

"Or does the statute mean to say that the killing of a non-person is sometimes murder?"

Bingo. The inclusion of the fetus under some circumstances was the result of a particularly horrific crime some years back in, I believe, the Fresno area. Prior to that the fetus wasn't mentioned in 187 P.C.

"In other words, you are imagining that abortion will be criminalized apart from writing new laws."

For the most part. Personhood will mostly be inclusionary.

"Which is a tad unrealistic."

Au contraire, your failure to ponder what personhood from conception would likely mean under the 14th Amendment is what's unrealistic.

"Or does the statute mean to say that the killing of a non-person is sometimes murder?"

Bingo. The inclusion of the fetus under some circumstances was the result of a particularly horrific crime some years back in, I believe, the Fresno area. Prior to that the fetus wasn't mentioned in 187 P.C.

That "fetus" wasn't mentioned before is irrelevant. It was either assumed to be a person or a non-person, depending on some extraneous criteria.

Assuming your history to be correct, the intent of adding the term "fetus" to the statute was obviously to clarify that a fetus is a person. Words mean things, Al. You cannot murder a non-person. The legal history of murder:

http://www.duhaime.org/LegalDictionary/M/Murder.aspx

Edward Coke, in his Coke's Institutes (1628, Part III, Chapter 7, page 47):

"Murder is when a man of sound memory and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum natura under the king's peace, with malice aforethought, either expressed by the party or implied by law…"

The 2000 edition of Archbold's Criminal Pleading, Evidence and Practice:

"Subject to three exceptions ( provocation, diminished responsibility and action in pursuance of a suicide pact), the crime of murder is committed where a person of sound mind and discretion unlawfully kills any reasonable creature in being and under the Queen's peace with intent to kill or cause grievous bodily harm."

The US Code, at Title 18, defines murder as:

"Murder is the unlawful killing of a human being with malice aforethought."

It has been, since its conception as a crime of common law, evolved to a variety of forms related to intent and planning, such that one no longer hears lawyers or judges speak of murder anymore but, instead, of homicide, of murder specified by degree, or of manslaughter.

However, the Criminal Code of Canada, at ¶229, does define "culpable homicide" as "murder where ...":

"The person who causes the death of a human being means to cause his death, or means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not;

"A person, meaning to cause death to a human being or meaning to cause him bodily harm that he knows is likely to cause his death, and being reckless whether death ensues or not, by accident or mistake causes death to another human being, notwithstanding that he does not mean to cause death or bodily harm to that human being; or

"A person, for an unlawful object, does anything that he knows or ought to know is likely to cause death, and thereby causes death to a human being, notwithstanding that he desires to effect his object without causing death or bodily harm to any human being."

Historically, at common law, Russell on the Law of Crimes gives this definition:

"Murder is the unlawful killing, by any person of sound memory and discretion, of any person under the King's peace, with malice aforethought either express or implied by law.

"This malice aforethought which distinguishes murder from other species of homicide is not limited to particular ill will against the person slain, but means that the fact has been attended with such circumstances as are the ordinary symptoms of a wicked, depraved and malignant spirit; a heart regardless of social duty and deliberately bent upon mischief."

Blackstone in his 1769 Commentaries used these words:

"And if one intends to do another felony, and undesignedly kills a man, this is also murder. Thus, if one shoots at A. and misses him, but kills B., this is murder, because of the previous felonious intent, which the law transfers from one to the other."

As late as 1918, the common law was stated as follows in Archbold's Criminal Pleading, Evidence and Practice, 25th Edition:

"If a person, whilst doing or attempting to do another act, undesignedly kills a man -- if the act intended or attempted were a felony, the killing is murder; if unlawful, but not amounting to felony, the killing is manslaughter."

Josh,
You are releasing the woman, based on some circumstance (i.e. hearing information from pro-choice groups, abusive boyfriend), from the responsibility of premeditated murder, which is what you clearly believe is her factual guilt. Absolve may not be a good word for it, but something fairly similar to it is at work. To be fair, I will commend you for using the dictionary to good effect, Noah Webster is a very distant branch on my family tree.

al,
Nothing about the abortion debate is simple except to wild-eyed partisans. There would be many legal questions that would need to be resolved if the fetus is granted personhood, but that is less important than getting the basics right.

Jeff,
"This malice aforethought which distinguishes murder from other species of homicide is not limited to particular ill will against the person slain, but means that the fact has been attended with such circumstances as are the ordinary symptoms of a wicked, depraved and malignant spirit; a heart regardless of social duty and deliberately bent upon mischief."

Where in that definition are mitigating factors like: financial hardships, hearing lies about the person, social pressure from friends or family?

Step2: The passage you cite has nothing to do with mitigating factors. Mitigating factors can include anything about the character of the defendant or the circumstances of the crime that motivates a jury to reduce a sentence. In Catholic-speak, we would say mitigating factors pertain to circumstances which objectively reduce culpability. With respect to abortion, mitigating factors might include:

http://crime.about.com/od/death/a/mitigating.htm

* Whether the crime was committed while the defendant was under the influence of extreme mental or emotional disorder.

* Whether the crime was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct.

* Whether the defendant acted under extreme duress or under the substantial domination of another person.

I came late to the party and missed all the fun, but I did notice the local Token Liberal (named "al") apply the term "fascist" to the new governor of Michigan, Rick Snyder. I read the article at the link he provided, and got a pretty good laugh.

Snyder is, according to the purple prose at al's link (which is a Forbes blog) "set to pass one of the most sweeping, anti-democratic pieces of legislation in the country." This legislation gives the state the power to dissolve local governments if those governments are not fiscally solvent.

Now, I'm not certain that al even read the article, let alone understood it. The blogger who wrote it, one Ed Cain, apparently does not know that governors don't pass legislation, they sign it, so it's the Michigan legislature that's committing whatever it's committing.

But let that pass; what I'm wondering is whether Mr. Cain (and by implication, al) have ever thought about where localities get the authority to organize in the first place. It comes from the state. So if the state wants to dissolve a locality for any reason, let alone for sound financial reasons, they have that right. That's not "fascism," that's a correct assertion of states' rights under both federal and state constitutions, as far as I can tell.

But we don't even have to go there, because the state is not asserting the right to dissolve local governments whenever it likes; it's asserting power to take over when the locality has gone belly-up. That seems like a pretty sensible measure to me.

I guess that to liberals, the assertion of any power of any sort constitutes "fascism." I don't get that. The American constitutional ideal is not anarchism, it's limited federalism. If the state of Michigan wants to create an orderly path to cleaning up local fiscal messes, that's entirely consistent with the American constitutional ideal, unless I'm missing something. But trust the liberals to scream "Fascist!" at the merest assertion of adult responsibility. I guess we should all be Peter Pan.

And now, we can all go back to discussing abortions and mitigations.

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