Patterico's Pontifications

12/2/2021

Some Important Passages from the Supreme Court Oral Argument, or, Why I Think Kavanaugh Is on Board

Filed under: General — Patterico @ 8:29 am



I am still making my way through the audio of yesterday’s arguments over the constitutionality of Mississippi’s law banning abortions after 15 weeks. Between the chunk I heard yesterday morning before work, what I heard last night when starting it from the beginning, and browsing through the transcript, I have probably heard 2/3 of it (some out of context) and have a decent idea of the whole. My overall impression at this point is this:

An hour after I tweeted that, Sarah Isgur tweeted this very similar impression:

I thought I would share a couple of questions I found relevant.

This question from Justice Kavanaugh at page 106 of the transcript goes to the heart of just what the Court is doing by involving itself in these abortion cases:

JUSTICE KAVANAUGH: You — you make a very forceful argument and identify critically important interests that are at stake in this issue, no doubt about that.

The other side says, though, that there are two interests at stake, that there’s also the interest in — in fetal life at stake as well. And in your brief, you say that the existing framework accommodates — that’s your word — both the interests of the pregnant woman and the interests of the fetus.

And the — and the problem, I think the other side would say and the reason this issue is hard, is that you can’t accommodate both interests. You have to pick. That’s the fundamental problem. And one interest has to prevail over the other at any given point in time, and that’s why this is so challenging, I think.

And the question then becomes, what does the Constitution say about that? And I just want to get your reaction to what the other side’s theme is, and I’ve mentioned it in my prior questions.

When you have those two interests at stake and both are important, as you acknowledge, why not –why should this Court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this? And there will be different answers in Mississippi and New York, different answers in Alabama than California because they’re two different interests at stake and the people in those states might value those interests somewhat differently.

Why is that not the right answer?

I have a very strong feeling that Justice Kavanaugh thinks that is the right answer. And the above passage, while expressed without the flair and sarcasm that might have been employed by Justice Scalia, is perhaps the most Scaliaesque thing I heard in the argument.

I also found this question from Justice Kavanaugh at page 78 of the transcript to be one of the most revealing on his views of stare decisis — i.e., the effect of precedent:

JUSTICE KAVANAUGH: And I want to ask a question about stare decisis and to think about how to approach that here because there have been lots of questions picking up on Justice Barrett’s questions and others. And history helps think about stare decisis, as I’ve looked at it, and the history of how the Court’s applied stare decisis, and when you really dig into it, the history tells a somewhat different story, I think, than is sometimes assumed.

If you think about some of the most important cases, the most consequential cases in this Court’s history, there’s a string of them where the cases overruled precedent. Brown v. Board outlawed separate but equal. Baker versus Carr, which set the stage for one person/one vote. West Coast Hotel, which recognized the states’ authority to regulate business. Miranda versus Arizona, which required police to give warnings when the right to — about the right to remain silent and to have an attorney present to suspects in criminal custody. Lawrence v. Texas, which said that the state may not prohibit same-sex conduct. Mapp versus Ohio, which held that the exclusionary rule applies to state criminal prosecutions to exclude evidence obtained in violation of the Fourth Amendment. Gideon versus Wainwright, which guaranteed the right to counsel in criminal cases. Obergefell, which recognized a constitutional right to same-sex marriage.

In each of those cases — and that’s a list, and I could go on, and those are some of the most consequential and important in the Court’s history — the Court overruled precedent. And it turns out, if the Court in those cases had — had listened, and they were presented in — with arguments in those cases, adhere to precedent in Brown v. Board, adhere to Plessy, on West Coast Hotel, adhere to Atkins and adhere to Lochner, and if the court had done that in those cases, you know, this –the country would be a much different place.

So I assume you agree with most, if not all, the cases I listed there, where the Court overruled the precedent. So the question on stare decisis is why, if — and I know you disagree with what about I’m about to say in the “if” — if we think that the prior precedents are seriously wrong, if that, why then doesn’t the history of this Court’s practice with respect to those cases tell us that the right answer is actually a return to the position of neutrality and — and not stick with those precedents in the same way that all those other cases didn’t?

I choose these passages to show why, of the people whose votes might be uncertain — Roberts, Gorsuch, Barrett, and Kavanaugh — I have the most confidence in Kavanaugh’s position.

I could not read Barrett, at least based on what I have heard so far, but I think she may be on board. I may let you know once I have heard it all.

Gorsuch’s questions seemed designed to cut off the idea that one could reach some sort of Robertsesque compromise wherein the Mississippi law could somehow be upheld without overruling Roe and Casey. The parties weren’t having it, and none of the justices were having it except for Roberts. Hence the predictions above.

One more question to highlight, from Justice Alito:

JUSTICE ALITO: The brief for the American Historical Association says that abortion was not legal before quickening in 26 out of 37 states at the time when the Fourteenth Amendment was adopted. Is that correct?

MS. RIKELMAN: That is correct because some of the states had started to discard the common law at that point because of a discriminatory view that a woman’s proper role was as a wife and mother, a view that the Constitution now rejects, and that’s why it’s appropriate to do the historical analysis at a higher level of generality.

JUSTICE ALITO: In the face of that, can it said that the right to — to abortion is deeply rooted in the history and traditions of the American people?

This will be central to Justice Alito’s opinion, and I bring it up because the question well highlights the flaw in that silly article I critiqued at my Substack (which you can subscribe to here) claiming that there is an “originalist case for abortion.” The point here is: an originalist case for abortion cannot be shown by showing that several states allowed abortion when the Fourteenth Amendment was adopted. Any such case is torpedoed by a showing that several (and actually a majority) of states banned abortion. Given that, how can anyone show that abortion meets the Supreme Court’s definition of a fundamental right — which is a right that is “deeply rooted in the Nation’s history and traditions” and “implicit in the concept of ordered liberty.” Those are quotes from Washington v. Glucksberg (1997) 521 U.S. 702 and you are going to see them in Alito’s opinion. (If he writes one, and I think he will — at least a concurrence.)

63 Responses to “Some Important Passages from the Supreme Court Oral Argument, or, Why I Think Kavanaugh Is on Board”

  1. In the end, with any luck, Roe and Casey will join Plessy in the dustbin of history.

    Patterico (e349ce)

  2. Like some of the justices, I don’t see how an “undue burden” regime with no “viability” line is any better than what we have now. I can see a fixed time period following which everything is back to the state, or going back to before Roe. But “undue burden” just seems like endless litigation and troom for all kinds of mischief.

    Kevin M (ab1c11)

  3. I’m a bit worried about one of those 2-2-2-1-1-1 decisions where you need to consult an oracle to find the actual meaning.

    Kevin M (ab1c11)

  4. I said yesterday that Kavanaugh seemed the most clear on his desire to return the whole mess to the states.

    Kevin M (ab1c11)

  5. I wonder if by insisting that the Court stick to the original “viability” standard in Roe and Casey, the petitioners aren’t inviting the Chief to side with the conservative majority and essentially strike down Casey. I get that they are representing the abortion-on-demand lobby and don’t want to cede an inch, but had they been good a reading the room they would have realized that they might get Roberts and perhaps Kavanaugh or even Barrett to agree to a compromise where Mississippi’s 15-week ban is upheld but Casey remains intact. Understandably, that would be unpalatable to the abortion industry, so instead they seem hell-bent on painting Roberts into a corner where he will have no choice but to join the conservatives. I hope that this does indeed turn out to be a 6-3 decision thanks to their extremism.

    JVW (ee64e4)

  6. I’m a bit worried about one of those 2-2-2-1-1-1 decisions where you need to consult an oracle to find the actual meaning.

    It will be interesting to see if the conservatives on the Court play the political game and craft an opinion that is palatable to all, knowing full well that a 6-3 decision will be far stronger a statement than a whole bunch of concurring statements. It seems pretty likely that the minority will have a unified dissent, unless Sonia Sotomayor wants to issue a ridiculous screed establishing abortion as the most sacred of all human rights or some such nonsense.

    JVW (ee64e4)

  7. The problem with returning abortion policy to states is that it promotes abortion tourism, rather than ending the practice altogether.

    Rip Murdock (d2a2a8)

  8. Until yesterday, I had thought that “undue burden” meant that a State’s newly-enacted anti-abortion law imposed an undue burden on the woman’s Roe v. Wade right to an abortion. When did it become “is it an ‘undue burden’ for the woman to carry the baby to term”?

    nk (1d9030)

  9. By the way, a new talking point on the left is “Brett Kavanaugh lied to Susan Collins when he promised to uphold the precedents established by Roe and Casey.” Ramesh Ponnuru dispatches with that fiction in a nice essay at NRO.

    JVW (ee64e4)

  10. @7

    The problem with returning abortion policy to states is that it promotes abortion tourism, rather than ending the practice altogether.

    Rip Murdock (d2a2a8) — 12/2/2021 @ 9:16 am

    That’s the downside, if you will, to federalism.

    To address that, the fight then begins in those states/jurisdiction. If the pro-lifers believe they have a winning message, it’s time to get engaged with the political process.

    I concur with Patterico that Justice Kavanaugh probably has the correct interpretation, meaning the Constitution is silent, which then is left to the states to address.

    Best argument for that position is simply, the state politicians and judges are more beholden to the voters in their state than SCOTUS will ever be.

    whembly (1a398e)

  11. To address that, the fight then begins in those states/jurisdiction. If the pro-lifers believe they have a winning message, it’s time to get engaged with the political process.

    There are some evils that should not be left to the political process.

    Rip Murdock (d2a2a8)

  12. @7. The problem with returning abortion policy to states is that it promotes abortion tourism, rather than ending the practice altogether.

    Yep. It’s strange that crowing over ‘pro-life’ is actually a matter of ‘choice.’ Just because abortion is an established law of the land doesn’t mean you must choose to do it. Don’t see the objection to it as it is a matter of choice. If it goes back to the states, it will be a $ windfall for the weasels who operate state legislatures. Expect those CA, NYC & Vegas abortion/vacation packages.

    The arc of U.S. history has been to expand rights, not restrict or contract them.

    People who ‘choose’ to seek abortions will continue to do so- just as drinkers ‘chose’ to source booze during Prohibition– much to the delight of the profiteering bathtub gin set, wood alcohol peddlers, rumrunners and organized crime.

    DCSCA (f4c5e5)

  13. People who ‘choose’ to seek abortions will continue to do so- just as drinkers ‘chose’ to source booze during Prohibition– much to the delight of the profiteering bathtub gin set, wood alcohol peddlers, rumrunners and organized crime.

    DCSCA (f4c5e5) — 12/2/2021 @ 11:34 am

    People who choose to murder will continue to do so.

    So we shouldn’t have laws?

    NJRob (eb56c3)

  14. Kavanaugh’s oddly worded phrase– ‘you must pick’– struck me as a deliberate effort to avoid the use of the more naturally fitting term, ‘choose.’

    DCSCA (f4c5e5)

  15. @13. It’s a matter of choice. ‘Free will.’

    DCSCA (f4c5e5)

  16. Once a racket becomes profitable enough, it becomes legal. It can afford to buy its politicians wholesale. Liquor, gambling, and we’re seeing it now with marijuana.

    But abortion is in a different category. Its adherents see it as a necessity and a kindness. Not a vice.

    nk (1d9030)

  17. But abortion is in a different category. Its adherents see it as a necessity and a kindness. Not a vice

    Not a ‘necessity,’ like windshield wipers; just an option, like GPS: a matter of choice. Doesn’t mean you must choose GPS if you prefer the joy of reading a map.

    DCSCA (f4c5e5)

  18. Not a ‘necessity,’ like windshield wipers; just an option, like GPS: a matter of choice. Doesn’t mean you must choose GPS if you prefer the joy of reading a map.

    But, to extend your analogy, the advocates of untrammeled abortion are equivalent to those who would insist that all cars must include GPS as a basic option just because there are people out there who cannot read a map, and because of that the government should also mandate that GPS services be included “free” to users irrespective of whether the driver chooses to use it. Mississippi in this case isn’t seeking to outlaw GPS; they are only asking that the various car makers be given the option to come up with their own policies suitable to the people of their state.

    JVW (ee64e4)

  19. @19. But, to extend your analogy, the advocates of untrammeled abortion are equivalent to those who would insist that all cars must include GPS as a basic option just because there are people out there who cannot read a map, and because of that the government should also mandate that GPS services be included “free” to users irrespective of whether the driver chooses to use it.

    Yet if you cannot read a map, states have well marked roads w/highway signs and a federal interstate system which you may or may not choose to use. Hence, the more options the better- you not necessarily need the expense of a GPS or be able to read a less costly map at all. The Confederate states had differing railroad gauges across the South, too- and it hindered their war effort.

    The perplexing question is why supposedly ‘pro-life’ folks even care to meddle one way or the other about the freedom of choices other people make. Pro-life folks aren’t going to choose the option of abortion anyway– though they have a right to choose it or not as is– yet seek to inhibit/deny ‘pro-choice’ folks the very same option. To me it comes down to a basic freedom of choice. Or maybe it’s just pro-lifers want to impose their POV on to others. Next thing you know, “that rock ‘n’ roll has got to go!’.

    DCSCA (f4c5e5)

  20. That’s the downside, if you will, to federalism.

    Really, as long as people think that the “other side” will force their evil plans on everyone nationally, every election is dialed up to 11. The WHOLE EFFING POINT of the Federal Constitution was that this would not happen and yet, in so many ways it has. We are now at the point where states are merely administrative regions for federal control and they seem only to differ on matters that were never federal to begin with (e.g. immigration).

    Kevin M (ab1c11)

  21. California makes plans to be the nation’s abortion provider in a post-Roe world

    Rip, suppose abortion was illegal in every state and people went to Canada. Would you prosecute them when they came back? Would they need to pass a pregnancy test to get their exit visa?

    If not, what’s your issue with people going to California?

    Kevin M (ab1c11)

  22. The “arc of history” has not favored the expansion of rights for the unborn. When the implements of abortion are deployed their rights seem to “restrict, or contract” with extreme prejudice.

    Richard K Mahler (fd2ee5)

  23. The “arc of history” has not favored the expansion of rights for the unborn.

    Hmmm… the Founders, it seems, gave it some thought– and quilled it in the Preamble of the Constitution:

    ‘We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.’

    DCSCA (f4c5e5)

  24. Really, as long as people think that the “other side” will force their evil plans on everyone nationally, every election is dialed up to 11. The WHOLE EFFING POINT of the Federal Constitution was that this would not happen and yet, in so many ways it has.

    Kevin M (ab1c11) — 12/2/2021 @ 2:34 pm

    This. Oh, so much this.

    There are three basic setups for national governments: confederal, federal, and unitary. We’ve already tried confederalism once. Didn’t work. (Some of us then tried it a second time. Didn’t work then either.) So these are our two alternatives: federal government, or unitary government. Many different communities in our nation with many different sets of laws, or one big community with one big set of laws. Neither will protect individual rights perfectly. But federalism is far less dangerous to them in the long run.

    Demosthenes (3fd56e)

  25. Note here:

    some of the states had started to discard the common law at that point because of a discriminatory view that a woman’s proper role was as a wife and mother

    He denies that the motive for outlawing abortion had anything to do with ethics. It actually had to do with the fact that surgical abortion became possible

    Sammy Finkelman (c49738)

  26. Arguments mean nothing. All nine justice know how they will vote when they took the case. Only a fool thinks anyone will be persuaded by the oral arguments. Anti abortion conservatives know and are foolishly happy. Dred scott II whats that they say. Biden/clinton wing of democrat party know that whining and crying is only going to discredit them with the base. AOC/left base will demand of biden what are you going to do about it besides whine? They will demand biden do something or get out of the way while the left takes over leadership of the democrat party from the dnc corporate establishment. The democrat 2022/2024 primaries will be interesting as mr spock says.

    asset (86b494)

  27. The perplexing question is why supposedly ‘pro-life’ folks even care to meddle one way or the other about the freedom of choices other people make.

    Do you also find yourself wondering why people who didn’t own slaves bothered to join movements to prevent other people from owning slaves? I mean, come on: you are pretending not to understand why pro-life people don’t want to see other people abort their babies? I find that almost impossible to believe.

    JVW (ee64e4)

  28. Planned parenthood has been sold as necessity and kindness. I disagree.

    mg (8cbc69)

  29. California makes plans to be the nation’s abortion provider in a post-Roe world

    Rip, suppose abortion was illegal in every state and people went to Canada. Would you prosecute them when they came back? Would they need to pass a pregnancy test to get their exit visa?

    If not, what’s your issue with people going to California?

    If you really wanted to end abortion, you would not allow abortion tourism. The question is not is abortion an issue better left to the states, but whether abortion is a moral evil that shouldn’t be allowed at all.

    Rip Murdock (d2a2a8)

  30. @28. Believe it; it seems a peculiar imposition and not really a national priority. Freedom of CHOICE is just that. Why should it bother or even be the business of pro-lifers to impose their POV on to other families or individuals; pro-lifers now have the freedom of choice to choose abortion or not; just as pro-choicers do. Temperance leaguers [of which my two great aunts were painfully part of] railed against boozers and backed Prohibition- -but that didn’t stop the uncles [or their neighbor, beer-chug-a-lugger Honus Wagner] from sourcing booze and in the end, it failed.

    DCSCA (f4c5e5)

  31. The question is not is abortion an issue better left to the states, but whether abortion is a moral evil that shouldn’t be allowed at all.

    Well, “morality” is a transient anyway, and abortion isn’t going to cease any more than humans ceased brewing booze. As long as there’s a market for it the service will be provided– hence ‘abortion tourism’ is a real possibility- and opportunity- for many states to cash in if it goes that way. Gambling was once confined, more or less, to Nevada. Then states discovered lotteries were cash cows and NJ opened itself up to casinos. But as noted earlier, the arc of U.S. history has moved to expand rights and cultivate freedom of choice, not restrict nor contract them. Abortion is like fighting over crabgrass while the house is on fire.

    DCSCA (f4c5e5)

  32. I think blocking abortion tourism may be a violation of the persons rights.
    The closest thing I found might be this: age of consent in CA is 18. The age of consent in NV is 16. It is illegal to cross the border from CA to NV to circumvent CA law, because the Federal age of consent is 18.
    If it turns into a state free for all, every state makes their own rules with no hard Federal guideline, then I’d assume it’d be fully legal to cross state lines for an abortion. Maybe not as a “tourist” but maybe like those states with same day voter registration even if your “residence” is a hotel room

    steveg (e81d76)

  33. @28. Postscript. Not indifferent to it, JVW- as noted on another thread- long before R v. W, my own late mother experienced an extremely difficult pregnancy and the doctors told her and my late father that it could likely come down to saving the mother or the child. Naturally, ask them what they decided and both told me if it came down to it, they decided to save the mother, the rationale being they could always try for another child. Understandable from their POV at the time. But it was their decision to make: to choose. In the end, both mother and child made it after all. The child being me.

    DCSCA (f4c5e5)

  34. Assuming one believes that a fetus is a person, the ultimate question at issue here is how much bodily autonomy one person must give up in order to keep another person alive. ATM the answer is extremely little. If Roe and Casey are countermanded, the answer then is up in the air. If a woman can be forced to give up 9 months of control of all of her systems, what then limits it in other cases? Right now you can’t be forced to give up even blood or bone marrow, even for your own child. Could people be forced to give blood/plasma in any kind of emergency event? That’s way less loss of bodily control than being forced to carry an unwanted pregnancy for 9 months. Can you be forced to be an organ donor if you die in an accident? Can you be required to be on a bone marrow registry?

    If a woman has no say in whether or not another person can user her organs, she does not own her body. If she is forced to cede control of her body to another person for 9 months, does that technically count as slavery?

    And what other limits could be placed on the woman? Could her ex or her conservative parents get an injunction against her leaving the state because they were afraid she’d get an abortion? Do the police investigate miscarriages? If someone crashes into a woman’s car and she miscarries at some point shortly there-after but is otherwise fine does a ticket from a car accident suddenly turn into a death investigation?

    If a woman is forced to carry a pregnancy she doesn’t want is forcing her to pay for all the associated medical expenses a tax or a fee? Is it legal to force her to buy a childbirth she doesn’t want to buy? And if it isn’t, does the state pay the cost?

    Right now the system is simple. People who believe abortion is wrong (mostly) don’t get abortions. People who don’t believe abortion is wrong also mostly don’t get abortions, but they could if they deemed it necessary. Change the law, things could suddenly become much more complicated for both genders and being a woman could become much less like being a person.

    Nic (896fdf)

  35. ‘Assuming one believes that a fetus is a person, the ultimate question at issue…’

    is the Ultimate Trip:

    https://www.amazon.com/2001-Space-Odyssey-Ultimate-Poster/dp/B00AKK95IS

    DCSCA (f4c5e5)

  36. I note DCSCA, that you are completely eliding my question regarding slavery. Unfortunately this will be one of those topics where I am unable to take your position very seriously, since it doesn’t seem that you are willing to follow your own logic to where it would inevitably lead you.

    JVW (ee64e4)

  37. If a woman has no say in whether or not another person can user her organs, she does not own her body. If she is forced to cede control of her body to another person for 9 months, does that technically count as slavery?

    Nic, where I think you go wrong is that you act as if getting pregnant is akin to catching a cold: something that just randomly happens to people without them quite understanding why. As a matter of fact, pregnancy is in the vast majority of cases the consequence of an act which the woman willingly partakes. So if your complaint is the idea that a woman is “forced” to carry a child, well then, I welcome you to take up your beef with our Creator.

    JVW (ee64e4)

  38. And what other limits could be placed on the woman? Could her ex or her conservative parents get an injunction against her leaving the state because they were afraid she’d get an abortion? Do the police investigate miscarriages? If someone crashes into a woman’s car and she miscarries at some point shortly there-after but is otherwise fine does a ticket from a car accident suddenly turn into a death investigation?

    And Nic, please don’t act as if these questions haven’t been debated ad nauseam and that the pro life side doesn’t have a cogent response to them. Honestly, one of the hallmarks of the abortion debate is that the abortion rights side seems to have absolutely zero understanding of the pro life position, beyond some stupid caricature (“men trying to control women’s bodies”) that they read on a bumper sticker. It’s yet another topic where progressives do themselves a grave disservice by failing to stray out of their ideological bubble.

    JVW (ee64e4)

  39. JVW (ee64e4) — 12/2/2021 @ 6:15 pm

    How a lady gets her ashes hauled is of great interest to the state but only in facilitating the process, it seems to me. I’m talking about California’s new “stealthing” law, and the Wikileaks guy who was on the run from accusations of rape by his singles bar pickup because the condom broke. That I know about, I don’t get around much.

    nk (1d9030)

  40. JVW, thank you for your post and comments. I am a biologist, and I know better than to engage with some of the commenters on topics where I actually have training and multiple degrees. You are spot-on when you remind folks of what happens in an ideological bubble…and there is much evidence of this seemingly everywhere.

    Me, I continue to think that the Feds have too much of a role in our lives in general.

    I have never believed in good versus evil. Mostly, choices are crappy and slightly less crappy.

    Again, thank you for your post.

    Simon Jester (5510f5)

  41. @JVW@38@39 In the case of abortion, why does it matter how a woman got pregnant? Maybe she got pregnant on purpose, maybe she got pregnant by accident, maybe she got pregnant through rape. In the end, the result would be that she can’t choose whether or not another person can continue using her organs and her body.

    After more than a decade of Catholic education (which sometimes involved being forced to attend Operation Rescue rallies), including university, I have a pretty good understanding of the prolife position. The prolife side doesn’t have cogent responses to these. Mostly they don’t think about it. And for those who have, “It won’t happen.” isn’t a cogent response. One parent can get the court to disallow another parent from leaving the state with their children. If a fetus is deemed a person, then that person is the child of both people involved in the creation of them. What stops a court from saying that the woman can’t take the child out of the state, and therefore being unable to leave the state themselves? Her rights have already been placed below the rights of her future child, how would this be out of bounds?

    Nic (896fdf)

  42. @37. I note DCSCA, that you are completely eliding my question regarding slavery.

    Whether you take it seriously or not is your choice. But to me, it is hardly comparable, JVW. Unless you’re willing to accept one state in the Union pro-abortion and one state non-abortion at the same time. That went well for slavery- didn’t it. Then everyone can meet for lunch– at Gettysburg.

    DCSCA (f4c5e5)

  43. I welcome you to take up your beef with our Creator.

    The “Creator” has absolutely nothing to do with this. And invoking same betrays your true motives and POV.

    DCSCA (f4c5e5)

  44. States west of Nevada should issue their own currency; states bordering Canada should only use the metric system and no Chicago-style pizza sould be served outside of Illinois.

    DCSCA (f4c5e5)

  45. So it’s not like gambling and liquor after all, what with most places non-gambling by default and dry counties and municipalities scattered across the country from Florida to Alaska?

    nk (1d9030)

  46. Actually, the whole country is dry by default. Here’s what the 21st Amendment, the one that ended Prohibition, really says:

    Section 2.
    The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

    nk (1d9030)

  47. So it’s not like gambling and liquor after all, what with most places non-gambling by default and dry counties and municipalities scattered across the country from Florida to Alaska?

    Abortion Tourism certainly is. Could be a boom for Indian Reservation casino/abortion packages across the land. Like electricity, it’ll follow the profitable path of least resistance.

    DCSCA (f4c5e5)

  48. @42. I go back to my own parents experience. Not to go into too much detail, but according to my folks, my late father deeply resent the clergy suggesting he ‘save the child’ over his wife at the time– again, this was pre R v W. He remained bitter toward the church after that and even though he attended a Methodist college in Pennsylvania, he never attended an organized religious service again for the rest of his life.

    DCSCA (f4c5e5)

  49. We’re about due for the Stork Lobby to weigh in.

    DCSCA (f4c5e5)

  50. @DCSCA@49 I’m not surprised by any of the reactions of any of the people involved in that story. Psychologically speaking the “love” a person feels for a fetus isn’t the same as the love a person feels for another born-person because they don’t and can’t know the fetus yet. It is love for a future person they’ve made up in their head, it is love for their hopes and dreams, but it isn’t love for a person.

    Nic (896fdf)

  51. @51. Nic- Well, the rationale of the folks- at least as conveyed to me- [when I was in my 20s] seemed understandable. And of course, I remain pleased at the way it turned out in the end for both mother and child- as the kid was me. It’s just one personal experience. But the issue for me always comes back to a ‘choice’ for a medical procedure as an option. Somebody else’s vision of religion and/or sense of moral transient injected into the decision-making isn’t necessary. It scan just be an avail as an option for personal choice.

    DCSCA (f4c5e5)

  52. In the end, the result would be that she can’t choose whether or not another person can continue using her organs and her body.

    I take your point, Nic. How about a compromise? If a woman allows the other person to use her organs and body for the majority (over 50%) of the duration of a normal pregnancy, then she needs to ride it out and just give the child up for adoption.

    Exceptions for the life of the mother, of course.

    norcal (d9c78c)

  53. @norcal@53 Generally speaking I’m fine with the current federal standard, it seems like a reasonable amount of time for someone to figure out she is pregnant, and then to make a decision and even change her mind. And abortions that happen after five/six months seem to be almost all of wanted pregnancies where something has gone terribly wrong now anyway.

    Also generally speaking, my own personal standard for a pro-life vs pro-choice position for myself regarding a normally progressing pregnancy is the point at which a fetus can reasonably be expected to survive and develop normally outside the womb as a baby with a reasonable level of medical intervention and we are mostly there with a 24 week fetus/baby. The state (or adoptive family) has to be willing to cover all the medical costs, though, if the woman signs over her rights. We might find that that causes an entirely different set of foster/financial problems, but that is a different kettle of fish.

    Nic (896fdf)

  54. It appears we are in general agreement policy-wise, Nic. The means of effecting such a policy are another thing entirely.

    norcal (d9c78c)

  55. Must I be the one to say it?

    The only parental right that liberals are not willing to cede to the government is the right to kill their children in the womb.

    nk (1d9030)

  56. @norcal@55 pretty much I think. Though enacting most policy is more complicated than it looks or has more ramifications than it seemed like it was going to, as far as I can tell. 😛

    Nic (896fdf)

  57. @nk@56 Nah, AFAICT as a matter of practicality most/many parents of all political flavors are unwilling to cede THEIR parent rights to the government but are very willing to cede OTHER PEOPLE’S parent rights to the government.

    Nic (896fdf)

  58. Their is no right to life or to have an abortion both are privileges God is on the side of the heaviest artillery! Napoleon. Post natal abortions for right to lifers can happen too. The democrat party should have bus to take women and girls out of mississippi or texas to have their abortions. When some anti-abortion or local government trys to stop the bus The democrat president can declare martial law and send in the military to clean house.

    asset (7f1e30)

  59. Though enacting most policy is more complicated than it looks or has more ramifications than it seemed like it was going to, as far as I can tell. 😛

    Nic (896fdf) — 12/2/2021 @ 10:16 pm

    I was referring to whether such a policy should be enacted by a court or a legislature, and whether it should be done at the federal level or the state level.

    norcal (d9c78c)

  60. Kevin M (ab1c11) — 12/2/2021 @ 2:36 pm.

    Would you prosecute them when they came back? </blockquote Some countries, like Ireland, have experimented with that, from time to time

    https://www.nytimes.com/1992/02/27/world/irish-court-says-girl-can-leave-to-obtain-abortion-in-britain.html

    The Irish Supreme Court ruled today that it was legal for a 14-year-old pregnant girl who says she was raped to travel to Britain for an abortion.

    Overturning a lower-court ruling that had provoked wide controversy, the five-member court, in a one-line decision, allowed the girl to travel. Abortion is not permitted in Ireland unless a mother’s life is at stake.

    It was the ban on travel, imposed by the Irish Attorney General’s office, that touched off much of the controversy. The ban seemed to run afoul of stipulations by the European Community, of which Ireland is a member, allowing its citizens the right to travel freely within the community…The Constitution also forbids divorce and strictly limits the distribution of condoms.

    The laws notwithstanding, an estimated 4,000 women from the Irish Republic traveled to England in Wales in 1991 to obtain abortions…

    And some, like Mexico (until recently the Mexican Supreme Court started on the process of holding that impermissible) Or El Salvador or Honduras, prosecuted women for obtaining an abortion. (suspicious miscarriages sometimes started the investigation)

    https://www.nytimes.com/2021/09/08/world/americas/mexico-abortion-access.html

    It was not clear how many women in total are currently facing prosecution or are in prison for having an abortion, activists said, because comprehensive state-level data has been difficult to gather.

    https://www.nytimes.com/2018/04/09/world/americas/el-salvador-abortion.html

    In El Salvador, where a total ban on abortion leads to an immediate suspicion of women whose pregnancies do not end with a healthy baby, Ms. Vásquez was marked as a criminal after she began bleeding and suffered a stillbirth. Sentenced to 30 years for aggravated homicide, she was released only after the Supreme Court ruled that there was not enough evidence to show she had killed her baby..

    As Latin America has moved slowly toward lifting restrictions on abortion, six small countries have maintained an outright ban, including in cases where the mother’s life is at risk. And no other country enforces that ban with the zeal of El Salvador.

    Sammy Finkelman (c49738)

  61. https://www.nytimes.com/2017/08/21/world/americas/chile-abortion-court.html

    Chile’s Constitutional Tribunal voted on Monday to legalize abortion under limited circumstances, reinstating a right Chilean women lost 28 years ago in the twilight of the military dictatorship.

    Congress approved a bill this month allowing abortion when the mother’s life is in danger; when the fetus is unviable; or when the pregnancy is the result of rape. Despite the majority vote in Congress and widespread public support for the bill, right-wing legislators filed two requests for review before the tribunal, claiming the law would violate the constitutional guarantee of “protection of the unborn.”

    The judges voted six to four to dismiss both requests and uphold the constitutionality of the new law. Approval of the law was a victory for President Michelle Bachelet, whose government championed the bill….Abortion was allowed in some circumstances under Chile’s 1931 health code but was outlawed in 1989 under the dictatorship of Gen. Augusto Pinochet. Legislators introduced over a dozen bills to partly legalize abortion as early as 1991, but all were shelved or rejected.

    In a statement, the Roman Catholic conference of bishops in Chile said the ruling, which cannot be appealed, “offends the conscience and common good of our citizens.”

    The pro choice side likes to argue some horribles (in places, they quietly note, that outlaw nearly all abortions) like doctors being afraid to perform an abortion on a women, or maybe even just any kind of medical intervention, to save her life even if the baby can’t be saved but is still alive. They argue this cost the pregnant woman her life. A recent New York Times Op ed piece mentioned one case in Ireland (that was maybe responsible for Ireland changing its abortion law) and another case in Poland (both heavily Roman Catholic countries) In both cases the doctors waited until the baby finally died.

    https://www.nytimes.com/2021/11/29/opinion/heartbeat-abortion-bans-savita-izabela.html

    In 2012, Savita Halappanavar, a 31-year-old dentist in Ireland, appeared at University Hospital Galway in pain. She was 17 weeks pregnant and miscarrying. According to Dr. Halappanavar’s husband, hospital staff said that there was no saving the pregnancy, but they refused to intercede because her fetus still had a heartbeat. She was told her only option was to wait.

    Dr. Halappanavar became feverish. By the time the fetal heartbeat faded away, she was in organ failure. Two and a half days later, she was dead.

    Nearly three decades earlier, Ireland’s leaders created one of the world’s most restrictive abortion laws with an amendment to their nation’s Constitution, cementing Ireland’s near-total ban on abortions….

    ….Last year the Polish high court struck down a provision in the country’s already draconian abortion law that allowed for abortion in cases of fetal abnormality.

    Izabela knew that her situation was grim. She sent a text message to her mother from the hospital: “The baby weighs 485 grams. For now, because of the abortion law, I have to lie down. They can’t do anything. They are going to wait until he dies or something else happens. Oh and also, I could die of septic shock.”

    In time, the fetus died. Then Izabela died, too.

    (“Doctors and midwives did everything in their power. They fought a difficult battle for the patient and her child,” the hospital said in a statement.) …

    Sammy Finkelman (c49738)

  62. Kevin M:

    Would they need to pass a pregnancy test to get their exit visa?

    Most countries don’t issue exit visas – international law frowns on the idea – but they do issue and sometimes withhold passports. (this was going on in the United States during the 1950s until the United States Supreme Court effectively put a stop to it. But surrender of a passport is regularly sometimes made a condition of bail. The validity of it is not affected.)

    In Ireland they sometimes, in known cases might have warned people they were breaking the law or maybe even sought an injunction, although that seems to have been against oublicizing where to obtain an abortion.

    https://www.refworld.org/cases,ECHR,3ae6b7020.html

    The United States sometimes withholds entry visas if a woman in pregnant to avoid her child becoming a citizen.

    Sammy Finkelman (c49738)


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