Marketing 101: Roe v. Wade

by von

Over on RedHot, Adam C., Mark Kilmer, and Augustine are debating ways to counter the impression that the repeal of Roe v. Wade means the repeal of legalized abortion.  They're correct in two respects: First, if Roe were removed tomorrow, it would not mean that abortion would suddenly become illegal. The matter would simply be thrown to the legislatures and -- in the first instance -- whatever state laws are currently on the books.

Second -- and I don't care how much of a living Constitutionalist you may be -- they're also right that Roe is hard to defend as a "judicial" (as opposed to "legislative") decision.  One can argue the epistemological nuances of what separates a "judicial" act from a "legislative" one.  But, whatever criteria you end up choosing at the end of the day, you're going to be hard-pressed to fit Roe into the judicial box.  It just ain't a very good opinion, per traditional criteria.

What I think they miss ('tho Augustine skirts around it here) is that, as a practical matter, overturning Roe will almost certainly prompt the U.S. Congress to act.  In what will surely be an apocalypic battle between the forces of good and evil (which is which will depend on your personal perference), some sort of new set of abortion laws will shortly emerge as the law of the land. 

And, thus, the marketing problem:  Adam C., Mark Kilmer, and Augustine can, and should, correct the misconception that eliminating Roe means eliminating one's right to abort one's child. The problem is the implication of their remark:  And as soon as Roe is gone, we're gonna try to make it illegal to have an abortion.  Talk about the text being overwhelmed by the subtext!

'Course, it's easy for me to take potshots from the peanut gallery:  I think Roe was wrongly decided and would be happy to see it go.  Yet, I'm annoying conflicted on what regulations should be implemented in the post-Roe world.  I suppose that I could take a cue from the poll-tested Democratic response.  If the DLC folks say that abortion should be "safe, legal, and rare," my equally bland nonresponse is that abortion should be "safe and rare -- and legislated to make it so."

R

Comments

[Jeremy Osner]

correct the misconception that eliminating Roe means eliminating one's right to abort one's child.

But eliminating Roe does mean that. The misconception is that eliminating Roe would eliminate one's ability to abort one's child. /foolishly-arguing-semantics-with-a-lawyer

That said -- if Roe were overturned where would congress get off enacting a federal law about abortion?

[me2i81]

If you look at actual world-wide data (see, e.g. the AGI studies) it becomes fairly obvious that the way to make abortion rare is to (3) make it safe, legal, and accessible, (2) give everyone high-quality, non-ideological sex education, and (1) make sure everyone has easy access to contraceptives, including those without a lot of money. Abortion rates are lowest in countries where it is totally legal (Netherlands and Belgium), but nearly as low in Germany, which does have more restrictive laws than Netherlands and Belgium, but does have good sex-ed and access to contraceptives, thus allowing one to conclude that (1) and (2) are more important than (3). Making abortion totally illegal appears to have no impact on the abortion rate. Trying to reduce abortion by reducing the rate of sexual intercourse has not been successful (see, e.g., the abortion rates in predominantly Catholic Latin and South American countries, and the results of "abstinence education.")

[Anderson]

Well, if we're going to be precise, we'd be eliminating a federal constitutional right to abortion; rights also derive from state constitutions.

What we'll get, of course, is a balkanized regime whereby women in the South and parts of the West can't get legal abortions and resort to DIY, with predictable consequences. Enterprising bookies might take long-term bets on the exact year when the first execution of a woman for aborting her child post-Roe.

[Jesurgislac]

Von: If the DLC folks say that abortion should be "safe, legal, and rare," my equally bland nonresponse is that abortion should be "safe and rare -- and legislated to make it so."

Not possible, Von. You can certainly legislate abortion law so that abortions are always safe - indeed, I believe the US already has a system of not permitting doctors to practice unless they are certified to be properly trained - but you cannot legislate abortion law to ensure that abortions are rare and safe. (You could legislate to ensure that legal abortions are rare, but this would just ensure that many abortions would be illegal and therefore less likely to be safe.)

Legislation to make abortions rare falls outside the scope of laws directly to do with abortion. AFAIK, simply on the basis that you are a right-wing American, you probably don't support most of it.

(Free health care for pregnant women and all children - with underage children having the right to full patient confidentiality: what they tell their doctor, the doctor doesn't tell their parents, no matter what. Free day-care for all. Free nursery-school education for all children. Financial support for women with children in the education system. Legally enforced minimum wage for all workers. Paid maternity leave and paternity leave. A legal right to family-friendly hours and child sick days for all workers. Plus, of course, mandatory sex education classes for all children over the age of nine, and free contraception available to all but especially teenagers. How much of that do you support, Von?)

[bernard Yomtov]

if Roe were overturned where would congress get off enacting a federal law about abortion?

What are you asking, Jeremy? Are you saying it would be inappropriate for Congress to ban abortion nationwide? I don't think they would have much compunction about doing so. That's one way overturning Roe would make abortions illegal.

As for the legislation that von wants, to make abortion safe and rare, then if me2i81's data is accurate the way to do that is to adopt the practices described, not to legislate a bunch of ad hoc restrictions.

Perhaps von could be more specific about his preferred policies.

[Dianne]

As the Romanian experience shows, the main result of restricting abortion legislatively is not fewer abortions but more maternal deaths. In 1990 Romania legalized abortion, which had been illegalized by Ceaucescu in an effort to increase the birth rate. This single manuever decreased the maternal mortality by half in one year. reference

[Dianne]

There are things the legislature could do that would make abortion rarer. They include: funding real sex ed, including information on birth control, making the morning after pill over the counter, mandating training in abortion for all ob/gyns and FPs, introducing universal health insurance, improving access to day care, etc. However, none of these maneuvers would satisfy the real agenda of many of those who call themselves pro-life: punishing women for having sex. Nor would they satisfy most of those who genuinely believe that a fetus--not direct enough. Therefore, they are unlikely to pass.

[J. Michael Neal]

I disagree with von's assertion that overturning Roe v. Wade doesn't mean that abortion would automatically become illegal. This depends entirely upon te grounds through which it is overturned. If it is a narrow decision that Roe was improperly decided because such a right to privacy doesn't really exist, then von is correct.

However, it could also be decided on the basis that a fetus is legally a person, and posesses all of the rights thereof. If this is the way that it is decided, which I don't think is impossible if Stevens also retires and is replaced by this administration, then it most certainly would mean that abortion automatically becomes illegal.

[CharleyCarp]

That said -- if Roe were overturned where would congress get off enacting a federal law about abortion?

Commerce clause. We'd see something through the Spending clause first -- hospitals getting any federal money of any kind would have to just say no.

[Francis / Brother Rail Gun of Reasoned Discourse]

re: the analysis in Roe. ye gods, the notion that Roe was poorly reasoned gets waaay too much press.

here's the most important sentence in Roe: (available here)

"It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those laws, generally proscribing abortion or its attempt at any time during pregnancy except when necessary to preserve the pregnant woman's life, are not of ancient or even of common-law origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century."

Put bluntly, the notion of "liberty" as set forth in the 5th amendment included, at the time the 5th amendment was drafted, the idea of being free from abortion restrictions.

so many of the anti-Roe conservatives on this blog believe in an originalist view of constitutional interpretation. If you live by that sword, you get to die on it. Roe is entirely consistent with most textualist and originalist interpretations of the 5th amendment.

[Dianne]

"However, it could also be decided on the basis that a fetus is legally a person, and posesses all of the rights thereof."

If this were the decision, would personhood also automatically be applied to zygotes and embryos? For example, would abortion in the first 8 weeks still be allowed if the fetus is defined as a person but the zygote and embryo are not? Furthermore, if the fetus is considered a person, is miscarriage involuntary manslaughter? What if the woman having the miscarriage did something potentially dangerous to the pregnancy (anything from getting drunk to rock climbing to taking a medication not shown to be safe in pregnancy--that is, almost any medication.) Any of the lawyers out there know the answer to these questions?

[Francis / Brother Rail Gun of Reasoned Discourse]

as regards national restrictions, von and ccarp are surely correct, as the Schiavo affair showed us.

Were Roe to fall, the (presumably still) Republican Congress would under great pressure move immediately to exercise their spending power to bar federal funds from going to abortion providers and their commerce clause power to prevent abortions generally.

on the second issue, i imagine that the Supreme Court might get more amici briefs in the case challenging the commerce clause power of the Congress to bar abortions than any other case in history.

also, i think that Jane Galt's wrong in her July 6 post (yah, big shocker). The US Congress would be forced by their religious constituents to pass laws on this issue. That would leave enormous room for moderate Democrats to capture independent votes.

[Jackmormon]

Von wrote:

overturning Roe will almost certainly prompt the U.S. Congress to act. In what will surely be an apocalypic battle between the forces of good and evil (which is which will depend on your personal perference), some sort of new set of abortion laws will shortly emerge as the law of the land.

It may just be me, but seeing those sentences in the indicative mode just sent my blood pressure soaring. We are still talking hypotheticals here, aren't we?

Since that isn't a really substantive comment, I'll just repeat, with one slight alteration, what Anderson wrote, which expresses my concerns as well:

What we [would] get, of course, is a balkanized regime whereby women in the South and parts of the West can't get legal abortions and resort to DIY, with predictable consequences.

The "great social laboratories" theory of states' rights leaves me queasy when vulnerable women are concerned.

[Jackmormon]

Italics closed?

[Jesurgislac]

Italics begone!

Jackmormon: The "great social laboratories" theory of states' rights leaves me queasy when vulnerable women are concerned

Yes, but "pro-lifers" tend to have extremely strong stomachs when contemplating making women suffer and die. Better, it seems, that women should suffer and die than that women should have full access to safe, legal, affordable abortion.

[von]

(Free health care for pregnant women and all children - with underage children having the right to full patient confidentiality: what they tell their doctor, the doctor doesn't tell their parents, no matter what. Free day-care for all. Free nursery-school education for all children. Financial support for women with children in the education system. Legally enforced minimum wage for all workers. Paid maternity leave and paternity leave. A legal right to family-friendly hours and child sick days for all workers. Plus, of course, mandatory sex education classes for all children over the age of nine, and free contraception available to all but especially teenagers. How much of that do you support, Von?)

Not much, Jes. And there we see the admitted limitations of a belief system based on the notions of personal responsibility and freedom.

That said, I do believe that sex ed means, among other things, providing an education about sex. Which has to include contraception. I also have no problem providing free contraception on an anonymous basis to high school and college-aged folks.

In other words: yes, by all means, do all you can to prevent unwanted pregnancies. Because, once another potential life/life is involved, it cannot be easily discarded.

[Sebastian Holsclaw]

"Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century."

Put bluntly, the notion of "liberty" as set forth in the 5th amendment included, at the time the 5th amendment was drafted, the idea of being free from abortion restrictions."

Your reasoning has gone off the rails here. The fact that abortion was not limited in most states does not at all imply that it was a Constitutionally protected right. And the fact that many states were able to pass anti-abortion laws in the 19th century without a peep from anyone that they might be unconstitutional suggests that almost no-one read the Constitution in the 19th century the way you are reading it now.

"The US Congress would be forced by their religious constituents to pass laws on this issue. That would leave enormous room for moderate Democrats to capture independent votes."

Maybe, but I doubt it. There are a huge range of people who are anti-Roe. They range from people who just don't like judicial activism to those who don't like late-term abortions to those who don't like late-term elective abortions to those who don't like mid-term abortions all the way to those who would ban all abortions except those which threaten the life of the mother. They can all be anti-Roe, but if Roe is overturned none of them form a majority of the Republican Party (or even an obviously controlling minority).

The problem for Democrats in exploiting that is that they have the same problem in reverse. Not everyone buys the NARAL all-abortions legal at all times line. The Democratic Party has been able to avoid dealing with it by focusing on Roe as law, and pretending that it mandated the NARAL position (which isn't strictly true, though as it has played out in the courts it has pretty much turned out that way).

So there are lots of moderates from both sides available, and lots of extremists from both sides to make really angry. How that will play out in terms of a party that wins is difficult to determine, but how it will play out in abortion politics is much more obvious.

If a federal standard is followed, it will ban most 3rd term abortions and perhaps some in the late 2nd term. It will definitely not touch 1st term abortions. If written by Republicans it will focus on enforcing medical necessity guidelines in the 3rd trimester. If written by Democrats it will focus on bundling it with a social welfare package. If written by moderates from both parties it may do both.

[Francis / Brother Rail Gun of Reasoned Discourse]

Dianne, you pose extraordinarily difficult questions, most of which would need to be resolved legislatively.

Here's a short short version: if Congress passes a law finding that life begins at conception (and it's upheld), then it is entirely possible that a state prosecutor, relying on the federal supremacy clause, could file assault/battery charges against any woman who drinks during her first trimester (when fetal alcohol syndrome usually occurs).

nice, ain't it?

[Francis / Brother Rail Gun of Reasoned Discourse]

SH: compare the dates of anti-abortion laws with passage of the 19th amendment.

As to your liberty argument, you're not even close. You have bitterly argued with Katherine that we are to look to the laws and customs in effect at the time of adoption of the Bill of Rights in order to put structural limits on the interpretation of the word "liberty".

Put it another way, then. How are we to know what "liberty" means? When a claim arises that a state law deprives a person of "liberty" in violation of the 5th amendment, what are the appropriate tools for engaging in legitimate judicial analysis?

you have expressed profound concerns about the tyranny of five votes. fair enough, but what about the tyranny of the majority? Set your concerns about Roe aside for a second and tell us what limits exist on judicial interpretation of a "liberty" challenge to a state law.

von, your response to Jes indicates that you are willing to trade away the rare goal in service of your other legislative priorities. that's ok; there's room to disagree. but please be honest that the consequences of your positions is that abortion will be illegal, unsafe, and of unknown frequency due to being driven underground/overseas.

[Katherine]

The people standing over you trying to push you all they way down the slippery slope, are not generally good at convincing you that "take a step, don't worry, the slope's not slippery."

A huge % of the pro-life movement, including most of the posters on RedState wants to overturn not only Roe but Griswold, and outlaw not only abortion, but the birth control pill and the morning after pill. I doubt they will succeed, and I don't think that the slippery slope argument is a good enough reason for liberals to do nothing about an unacceptable status quo, but...if they don't moderate those stances, they are simply not going to be able to reassure people that overturning Roe will have no effect on their lives.

As for sex ed, if I had any control over school curricula my first principle would be: Don't lie to kids. Don't lie to kids. Don't knowingly teach them false information, or teach them information with reckless disregard for its truth or falsity. Ever. It's immoral. Anyway, it will mainly serve to undercut your credibility, and make them more likely to believe other false information and disbelieve the true things you teach them.

[Dianne]

Brother rail gun: Drinking alcohol is probably the least of it. The potential for blaming women for problems that occur during pregnancy is nearly unlimited. For example, I take a chronic medication that is pregnancy class B, which means, approximately, that we have no evidence that it is dangerous in pregnancy but that it has not been proven safe in clinical trials. (There are practically no class A drugs--drugs proven safe for use in pregnancy by controlled trials--because the drug companies fear the lawsuits that could occur if they did such a trial and the drug in question proved to be unsafe). Would it be considered assault for me to continue this med if I were pregnant? If I went off the med, there might be negative consequences for the fetus as well (and there certainly would be for me.) Could I equally be charged for not taking it? What about early miscarriages? Would they be considered potential acts of murder? Would women have to send in their tampons or pads for analysis to make sure that they didn't have an early pregnancy loss? Would zygotes get their fair share of NIH funding (ie would half of the NIH budget go towards research into the reasons for early miscarriage and preventative measures)? I hope my imagination is running away with me, but I'm not sure of it.

[Sebastian Holsclaw]

"if Congress passes a law finding that life begins at conception (and it's upheld)..."

Here is something that might make you feel better. Try to identify 51 Senators who would likely vote to pass such a law. (I bet you will have trouble getting a solid 40).

[Sebastian Holsclaw]

"As to your liberty argument, you're not even close. You have bitterly argued with Katherine that we are to look to the laws and customs in effect at the time of adoption of the Bill of Rights in order to put structural limits on the interpretation of the word "liberty"."

I strongly suspect that whatever Katherine thinks about the legitimacy of Roe ultimately, that she would not argue that the 19th century concept of liberty included a right to abortion. If I understand her idea of jurisprudence correctly, she is much more likely to aruge that the idea of liberty has grown to include certain things. But it is flatly wrong to assert that historically a right to abortion was understood in the concept of liberty in the 19th century.

[Dianne]

von: "Not much, Jes. And there we see the admitted limitations of a belief system based on the notions of personal responsibility and freedom."

Then you're going to have not much success trying to legislate a situation in which abortion is safe and rare. Personally, I don't see how having health care and day care freely available limits "freedom and responsibility" any more than having school and roads available does, but that is, perhaps, a side issue.

[Francis / Brother Rail Gun of Reasoned Discourse]

Katherine can speak for herself; she's posting.

Nice duck, btw, on answering how YOU would interpret / constrain "liberty".

and you can say i'm flatly wrong -- doesn't make it so. If preventing abortion was important during colonial times, we would have had laws on the matter. We didn't; therefore it wasn't. And therefore it is precisely the kind of thing that an originalist / textualist should be willing to protect under the 5th and 10th amendments.

[felixrayman]

There are a huge range of people who are anti-Roe.

But only a small minority of people are anti-Roe - around 30%. And most of them already vote Republican. The majority thinks it was a good decision. If it is overturned, and the policies mentioned above are enacted, not only will the Republican party's appeal to moderates be greatly diminished, the GOP coalition of traditional conservatives and religionists will fracture a little more.

[M. Scott Eiland]

As someone who supports the general result of Roe--though not the incompetent legal reasoning to be found within it--I'll simply suggest that the rhetoric of its most prominent supporters--which tends to vary from a hysterical parade of horribles that is brought forth whenever the most miniscule restriction to unfettered abortion on demand is suggested to the most blatantly offensive "fetuses are the moral equivalent of warts" nonsense--has done more damage to the prospects of abortion remaining a federal constitutional right than a battalion of Randall Terrys and Jerry Falwells could have dreamed of doing. If this process is to be arrested, the pro-choice movement is going to have to realize that a lot of people who think women should have access to abortion in many cases also believe that parental notification/consent laws are perfectly reasonable, and that late-term abortions should be almost always illegal, barring a real, verifiable medical reason that will withstand review.

[Katherine]

as to con law:

1) I think Roe was wrong but I think it goes wrong in applying the compelling interest test.

2) I would vote to overrule Roe if I were on the Supreme Court, which doesn't necessarily mean I want the Supreme Court to overrule Roe.

3) I think Griswold v. Connecticut, like Lawrence v. Texas, was very badly argued indeed but correct in its result.

4) I think that "was this specific thing legal in year X" is a lousy, stupid way of determining whether it's constitutional whether it's used by Harry Blackmun or Antonin Scalia.

5) As to general jurisprudence:

--original meaning of constitutional text is fixed and binding but often super, duper ambiguous

--original intent is not binding

--original application is not the same thing as original meaning and is not binding

--text should be read purposively as well as literally. Impossible to coherently interpret a Constitution otherwise. "We must never forget this is a Constitution we are expounding."

--often what appear to be judges saying that the meaning of the text have changes, are really judges applying the same meaning to a different set of facts. Judges need to talk explicitly about the factual findings and historical evidence upon which their holdings rest. (e.g. homosexuality is/is not an immutable characteristic; a fetus is/is not a child; segregation in practice is neither separate nor equal, was never meant to be and we damn well know it; this country has a long history of discriminating wrongfully on the grounds of X; women are/are not equally capable as men at doing most jobs and at voting)

--ultimately there is no way around judicial discretion. We trust juries to order people's execution if they know "to a moral certainty" or "beyond a reasonable doubt" that the person is guilty. In the end--e.g. in deciding which previous decisions should be upheld on stare decisis grounds and which should not be--a Supreme Court justice often has to make a similar call.

--Legal realism is a good description but a lousy prescription.

--9th amendment is not an inkblot, it's a rule of construction that justifies a broad, purposive reading of the constitution. It is NOT an independent authorization to declare things are constitutional rights because you think they're important. You must justify those decisions as necessary to protect a right that your precedents establish IS constitutionally protected.

The End.

[Sebastian Holsclaw]

"If preventing abortion was important during colonial times, we would have had laws on the matter. We didn't; therefore it wasn't. And therefore it is precisely the kind of thing that an originalist / textualist should be willing to protect under the 5th and 10th amendments."

Your therefore doesn't logically follow. Just because something was legal in the 19th century does not make it a Constitutional Right. They are different if overlapping categories. (Ideally Constitutional Rights are a subset of legal things, though in practice that isn't always true.) Saying that something was legal at point X does not mean that it was a constitutional right at point X--at most it suggests that it was constitutionally permissible at point X. And I am not arguing that allowing abortion was ever Constitutionally impermissible--I'm arguing that banning it should never have been Constitutionally impermissible.

Those two views are hugely different but you are treating them as if they were identical.

[Anderson]

Sebastian is awfully optimistic about the alleged "moderate Republicans" in the Senate developing a spine in the foreseeable future.

A "life begins at conception" statute is entirely conceivable, though I'm not a Commerce Clause guru & can't see how that issue would play out.

[Jackmormon]

If preventing abortion was important during colonial times, we would have had laws on the matter.

I have to agree with Seb here. During the late 18th and early 19th centuries there is a lot of writing out there that openly discusses infanticide and induced abortions as moral horrors. It seems, from my reading, to have been a new and shocking topic of discussion, one that people may have dimly known about but hadn't wanted to talk about before. By "people" I mean the class of people who read and wrote.

The idea of abortion was out there during the framing, but I suspect it was too disreputable to legislate. Moral condemnation and social ostracization were probably the preferred regulative means.

[Katherine]

As far as I can tell Sebastian's right. Originalists don't argue that "if it was legal then it's constitutionally protected" (usually--you do catch Thomas doing it sometimes); they argue that "if the government did it then it's constitutional" (Most of them carve out certain exceptions to this, though not in any consistent way.)

Me, I think both views are logically indefensible.

[blogme]

Jesurgislac,

"Yes, but "pro-lifers" tend to have extremely strong stomachs when contemplating making women suffer and die. Better, it seems, that women should suffer and die than that women should have full access to safe, legal, affordable abortion."

Could you give me some examples of people who think this way? Can you give me a cite please?

And while were are at it, how many Pro-lifers do you know who feel this way? What part of the country do you live in? I really don't know any pro-lifers who feel that way.

[Dianne]

blog: Eric Rudolph

Ceaucescu

[Anderson]

Blogme, your unfamiliarity with the more vicious heresies of America's fundamentalists does you credit, but I assure you, I've met some of these people.

If you really think that killing your fetus is just like killing your 5-year-old, then it's not such a bizarre notion. I happen to think both are wrong, but not equally so.

[Sebastian Holsclaw]

"Yes, but "pro-lifers" tend to have extremely strong stomachs when contemplating making women suffer and die."

And when an example is requested you provide Ceaucescu and Eric Rudolph?

Give me a freaking break. Now can I argue against environmentalism by invoking the Unabomber and Hitler? Can we at least aim at real discussion?

[Anderson]

Blogme, Sebastian: wait a few hours & then google Rudolph's remarks at his sentencing. It should be pretty g.d. scary.

[Francis / Brother Rail Gun of Reasoned Discourse]

blogme, there certainly are right-wing nuts who want women pregnant, barefoot, in the kitchen and disenfranchised. As best as I can tell, they don't post here much.

the bigger problem is that the kinds of policies which would be an effective substitute for abortion-on-demand, as listed by Jes at 1:05 pm above, are an anathema to conservatives. (see Von's response to Jes.)

so we're back to the old intent / effect debate. The US doesn't currently intend to cause civilian casualties in Iraq (i hope), but it certainly has adopted policies that have the effect of doing so (like using airpower against urban targets). Now, these policies may have admirable intentions supporting them -- like reducing US casualties -- but we should not ignore the consequences of our actions, even if unintended.

Von's response to Jes's list is similar. Jes's policy list is unacceptable for what (i presume) are entirely legitimate reasons, like they're too expensive or would lead to even worse consequences.

now, does Von in his secret heart wish to cause misery to women too poor to travel to Canada for an abortion? Hey, only the Shadow knows what evil lies in the hearts of men, but I kinda doubt it.

BUT, if you take the position that all / most / many / some abortions should be illegal, AND take the position that the state should not pay for policies which will mitigate the harms caused by the abortion ban, THEN you are vulnerable to the characterization that you are willing to subject some women to pain, suffering and death in service of other goals you deem more important. It may not be your intent, but it is certainly a predictable consequence of your desired policy goals.

[Sebastian Holsclaw]

"BUT, if you take the position that all / most / many / some abortions should be illegal, AND take the position that the state should not pay for policies which will mitigate the harms caused by the abortion ban, THEN you are vulnerable to the characterization that you are willing to subject some women to pain, suffering and death in service of other goals you deem more important. BUT, if you take the position that all / most / many / some abortions should be illegal, AND take the position that the state should not pay for policies which will mitigate the harms caused by the abortion ban, THEN you are vulnerable to the characterization that you are willing to subject some women to pain, suffering and death in service of other goals you deem more important."

I suspect we could at a minimum ban all elective abortions in the 7th, 8th and 9th months (and quite possibly the 6th) without significantly causing the negative externalities you worry about. This happily tends to coincide with the average US citizen view on the subject.

[dmbeaster]

"if Congress passes a law finding that life begins at conception (and it's upheld)..."

Here is something that might make you feel better. Try to identify 51 Senators who would likely vote to pass such a law.

Answer: nearly every Republican and maybe a Dem or two.

This is a statement of amazing ignorance in this day and age. If an anti-Roe nominee makes it onto the court, it is because 51 Senators already support laws that would outright ban the procedure.

This hair-splitting about overturning Roe but not making abortion illegal is all phony deflection -- it provides cover for the false talking point that allegedly confirming an anti-Roe judge will not make abortion illegal.

You have to be a fool to believe that, given the vehemence of the forces in the Republican Partyu to make it illegal.

[dmbeaster]

But, whatever criteria you end up choosing at the end of the day, you're going to be hard-pressed to fit Roe into the judicial box. It just ain't a very good opinion, per traditional criteria.

According to this "traditional" criteria, the same can be said for any of the following:

Marbury v. Madison
Brown v. Board of Educ.
Griswold v. Connecticut
Reynolds v. Sims/Wesberry v. Sanders
Gideon v. Wainright

To name just a few.

[Sebastian Holsclaw]

"This is a statement of amazing ignorance in this day and age. If an anti-Roe nominee makes it onto the court, it is because 51 Senators already support laws that would outright ban the procedure.

This hair-splitting about overturning Roe but not making abortion illegal is all phony deflection -- it provides cover for the false talking point that allegedly confirming an anti-Roe judge will not make abortion illegal."

Wrong. Almost all opponents of any type of abortion restriction have to be anti-Roe. That absolutely does not translate into a majority of Senators who would vote to ban all abortions. Banning all abortions and banning some abortions is not the same thing at all. To get abortion laws with restrictions as liberal as found in France or Germany would require overturning Roe. Overturning Roe merely returns the decision to the political process where it should have been all along.

The idea that anti-Roe equals pro-abortion ban all the way to conception is merely a NARAL talking point.

[nous_athanatos]

Seb--I suspect we could at a minimum ban all elective abortions in the 7th, 8th and 9th months (and quite possibly the 6th) without significantly causing the negative externalities you worry about. This happily tends to coincide with the average US citizen view on the subject.

We really need something like Modern Chess Openings for the abortion debate so that these sorts of arguments can be formalized.

Given the way that Jeb Bush and Co. showed the tendency of government to make prolonged interferences into private medical decisions, I am not at all comforted by your narrow exception here. Who determines the medical necessity? Who can appeal? How do we ensure that this process cannot be dragged out to the point of irrelevancy--say 1 to 3 months?

We have seen what lengths the more zealous pro-life politicians will go to.

[liberal japonicus]

We really need something like Modern Chess Openings for the abortion debate so that these sorts of arguments can be formalized.

At first, I thought that I agreed with this, but on a little reflection, I thought this was being remarkably insulting to the game of chess. My sinking feeling is that it is more like a book of tic-tac-toe openings.

[blogme]

Dianne,

Please, Rudolph couldn't even keep his eye on the ball. He bombed a nightclub and a park. I think he only got one abortion clinic. That doesn't qualify you as Pro-Life but as a terrorist.

Francis,

"there certainly are right-wing nuts who want women pregnant, barefoot, in the kitchen and disenfranchised"

Are we talking about the right-wing Christian nuts or left-wing Islamofascists nuts in America?

Should we lump all leftists and rightists together in that context? That seems a bit like what Jesurgislac was saying. If your pro-life you are okay with women dieing.

Are you Pro-environment? Are you in bed with Ted?

"but it is certainly a predictable consequence of your desired policy goals"

Right, other than the fact I have stated no goals whatsoever. All I did was ask Jesurgislasic to cite examples about a ridiculous and asinine comment that was made.

But, is that really the way you want to logically work out our differences?

Okay, then.

You are currently sitting in front of a computer:

Manufacturing computers is materials intensive; the total fossil fuels used to make one desktop computer weigh over 240 kilograms, some 10 times the weight of the computer itself...

Also, substantial quantities of chemicals (22 kg), and water (1,500 kg) are also used. The environmental impacts associated with using fossil fuels (e.g. climate change), chemicals (e.g. possible health effects on microchip production workers) and water (e.g. scarcity in some areas) are significant and deserve attention.

And the short lifetime of today’s IT equipment leads to mountains of waste, the UN University report says. The study says people could be exposed to health risks at both ends of the short lifespan of computer equipment.

Chemicals such as brominated flame retardants and heavy metals including lead and cadmium pose potential risks to factory workers and users of water supplies near landfill sites where old computers are dumped. Of particular concern, is the export of electrical goods waste, often to poorly managed facilities in developing countries, leading to significant health risks

Please stop or I will be forced to logically conclude that you don't like Indians since that is where most of our old equiment goes. Two, you are okay with possibly killing your fellow species on this planet.

You are currently using electricity as you sit in front of that computer, which is polluting our environment.

Quick jump... you are destroying environment, which will cause the deaths of millions of humans. You are killing your fellow humans and other animals on this planet.

Does your actions mean you want to kill others on the planet or is that not your intention?

Jesurgislac post was absurd. And yes there are some nuts out there that want to take us back to the stone age both on the left and the right.

It wouldn't be rational for me to conclude that those who are Pro-Abortion are also supporting Islamic fascists.

Nor would it be logical to say if you are Pro-Life you are okay with women dieing.

[blogme]

"prolonged interferences into private medical decisions, I am not at all comforted by your narrow exception here."

This could be accurate as long as her father, mother, brother and sister are not consider part of her family.

"We have seen what lengths the more zealous pro-life politicians will go to."

Shouldn't this have said her pro-life family will go to?

[Frank]

Blogme- Going back to the stone age would result in the death of roughly 6 billion human beings. You need to mention that in your analogy because your partner in the debate had the honesty to point to the other side of your arguement about abortion.

Am I the only one dimayed by the calousness of Sebastion's remark "significantly causing the negative externalities you worry about." How many women have to die from unwanted pregnancy before it becomes signifigant?

[felixrayman]

That doesn't qualify you as Pro-Life but as a terrorist.

False dichotomy. And it does provide you with an undeniable example of exactly what you asked for.

Quick jump... you are destroying environment, which will cause the deaths of millions of humans. You are killing your fellow humans and other animals on this planet.

Does your actions mean you want to kill others on the planet or is that not your intention?

It means that the marginal contribution of your activity that contributes to environmental degradation is more important to you than the effects of that activity on others. You have chosen that tradeoff. You would rather that the environment be made marginally worse than that you be required to stop the damaging activities you are engaging in.

Nor would it be logical to say if you are Pro-Life you are okay with women dieing.

Your argument is asinine. If you are against abortion in all cases, then it is true that you believe that it is better that, "women should suffer and die than that women should have full access to safe, legal, affordable abortion", as was pointed out. That is the tradeoff that position makes. You believe that one situation (abortion illegal, a larger number of women suffering and dying) is preferable to another (abortion legal, a smaller number of women suffering and dying).

Are we talking about the right-wing Christian nuts or left-wing Are we talking about the right-wing Christian nuts or left-wing Islamofascists nuts in America?

Islamofacists? Last I heard facism was considered a right-wing political position. Which political positions of "Islamofascists" do you consider to be left-wing? Their policies on civil liberties? The environment? Their fiscal policy? Gay rights? Do you know how absurd it looks to go around ranting about left-wing fascists?

To the extent that Christians try to implement Christian values in all spheres of life, they can be compared directly to Islamists. To the extent that those same people are willing to use violence to acheive their aims, as some of them are, they can be compared directly to Islamic terrorists.

[Phil]

I suspect we could at a minimum ban all elective abortions in the 7th, 8th and 9th months (and quite possibly the 6th) without significantly causing the negative externalities you worry about.

Others have already commented on some of the particular problem involved here, but I would also note that this would require ensuring that both abortions and emergency contraception were made exceedingly affordable and easy to get in months one through five. No more of this crap.

Rudolph couldn't even keep his eye on the ball. He bombed a nightclub and a park. I think he only got one abortion clinic. That doesn't qualify you as Pro-Life but as a terrorist.

So blogme is on record at Obsidian Wings as believing that one must blow up two or more abortion clinics to qualify as pro-life. Noted.

This could be accurate as long as her father, mother, brother and sister are not consider part of her family.

Wait a minute -- which of those people were members of the Federal government?

[Francis]

Re: negative externalities.

I'm not sure who has more sterile ways of talking about death and pain: the DOD or economists.

The externalities of a late-term abortion ban are probably pretty limited. We can probably expect some small increase in welfare and medical costs to be borne by society as a small number of children are brought to term who otherwise would have been aborted.

that, however, is not the cost i'm worried about. It's the direct costs borne by women who wish to obtain a late term abortion that i don't like: loss of autonomy, pain and death due to an illegal abortion, responsibility to care for an unwanted newborn.

[felixrayman]

We can probably expect some small increase in welfare and medical costs to be borne by society as a small number of children are brought to term who otherwise would have been aborted.

As well as an increase in crime down the road a bit.

[blogme]

felix,

You would have some really good points if Jesurgislac had actually said what you changed his post to say:

"If you are against abortion in all cases, then it is true that you believe that it is better that, "women should suffer and die than that women should have full access to safe, legal, affordable abortion", as was pointed out.

That really wasn't what was pointed out now was it?

You do notice that you are the one who added "all cases" to Jesurgislac comments.

Jesurgislac said:
"Yes, but "pro-lifers" tend to have extremely strong stomachs when contemplating making women suffer and die. Better, it seems, that women should suffer and die than that women should have full access to safe, legal, affordable abortion."

Maybe, I missed something up thread, but I didn't read Jesurgislac making that claim. Von's points that started it make the opposite point. If Roe was overturned abortion laws would have to be rewritten. Then another point was this:

There are very very few people in this country that believe abortion should be illegal in all instances. For Jesurgislac to state otherwise is just dishonest. Even among the right wing nut pro-lifers there are very very few people who believe that. And as of yet, no one has cited anyone other than the most extreme people. The only example someone has asserted that is even relevant is Eric Rudolph. Who was only one for three in his attempts to blow up abortion clinics.

How in a irrational mind does someone blow up a night club as a protest against abortion? Or the Park? I personally am not really sure.

Careful, you might catch fire from that strawman burning beside you.

"Which political positions of "Islamofascists" do you consider to be left-wing? "

Just there bed partners.

[Sebastian Holsclaw]

"If you are against abortion in all cases, then it is true that you believe that it is better that, "women should suffer and die than that women should have full access to safe, legal, affordable abortion", as was pointed out. That is the tradeoff that position makes."

But that is most specifically not the position of the average anti-Roe person and certainly not the average American. The average of either of those classes wants to ban some subset of abortions.

You can't really continue this discussion effectively without coming to grips with the fact that there are ranges of the pro-life and pro-choice positions. Neither extremist position is all that popular (even among in their respective parties).

[Phil]

There are very very few people in this country that believe abortion should be illegal in all instances.

Um, most recent polls, when asking whether abortions should be always legal, sometimes legal, or always illegal, come up with an "always illlegal" figure of around 15-20%. (Don't take my word for it -- Google it.) I suppose there's some leeway for referring to 20% of a total population as "very few," but it requires an extremely generous definition.

[Common Knowledge]

I didn't read most of these posts, so maybe I'm missing something, but I have a question.

blogme, what is a "leftwing Islamofascist"?

[CaseyL]

Rudolph hasn't yet gone through the formality of a trial for the gay bar and Olympic Park bombings.

He'll probably be making a statement at those on why he didn't do anything wrong, like he did today about the clinic bombing.

On the gay bar bombing, I expect he'll again invoke Biblical morality. He called the abortion clinic a "pit of vomit" or some such thing. I'm sure he'll wax as eloquently on how filthy and evil gay people are.

The Olympic bombing? I have no idea what Biblical sources fundie Xtianity uses to regard international athletic competition so grave an evil that its participants deserve death. Maybe Rudolph will say something about the original Greek games: all the athletes were nude, and homosexuality was rampant, and the modern Olympics implicitly condone that just by existing. Also, the '96 Games were held in Atlanta, which has a large gay community.

So, yeah, if he makes a statement justifying the Olympic Park bombings, that'll probably have so mething to do with gay people.

[KCinDC]

I'm not surprised about the "leftist Islamofascists". As I said earlier today, among Bush supporters the definition of "leftist" is "anti-Bush". Von, Slartibartfast, Sebastian, and even Charles are all leftists now, at least sometimes.

Discover the Network seems to have revised its most embarrassing pages so that people can no longer point to pages featuring Bill Clinton as allied with Osama bin laden, but the database of "the left" is still there. Oh, wait, I see they've just removed Osama and maybe a few others -- Sheik Omar Abdel Rahman is still there with Katie Couric.

[felixrayman]

That really wasn't what was pointed out now was it?

Yes it was, the post was about pro-lifers. Try to keep up here, kid.

There are very very few people in this country that believe abortion should be illegal in all instances

Around 15-20% of people consistently answer when polled that they want abortion to be illegal in all circumstances (as Phil pointed out). For example, when asked the question, ""Do you think abortions should be legal under any circumstances, legal only under certain circumstances, or illegal in all circumstances?", 20% of people answered illegal in all circumstances. Another poll asking pretty much the same question resulted in 16% answering illegal in all circumstances, a third resulted in 14%. Taking the most conservative number works out to somewhere over 40 million people in the US. Those people are pro-lifers. 40 million is not a few. If the poll is off by half, it is still not a few. To state otherwise is dishonest, and to call someone else dishonest for stating the truth is a tactic I have seen you use several times already at this site - accusing someone else of something you yourself are doing at the time you make the accusation.

Even among the right wing nut pro-lifers there are very very few people who believe that.

40 million is not very very few.

[Phil]

By the way, for those of you who missed it there, blogme cleverly implied that the American left is "in bed with" the terrorists.

Seriously, Seb, Slarti, can either of you check IP addresses? I mean, we've seen this argument style before, no? With the bad spelling and grammar, and the inability to use tags to distinguish when someone is being quoted, and the constant snotty insinuations . . . ? It could be a coincidence, but if so, it speaks very, VERY poorly as to the type of new conservative commentors that ObWi is regularly attracting.

[felixrayman]

But that is most specifically not the position of the average anti-Roe person and certainly not the average American

First of all, the original comment was specifically about pro-lifers, not the average American.

Second, 30% of people are anti-Roe, around 20% of people are against abortion in all circumstances. I suspect the latter group is, for the most part, a subset of the first. That is, I doubt a large number of people who are opposed to abortion in all cases think the Roe decision was a good one. In which case the "average anti-Roe position", as far as that makes sense, is blanket opposition to abortion.

You can't really continue this discussion effectively without coming to grips with the fact that there are ranges of the pro-life and pro-choice positions

That's funny, those attacking the comment Jes made are ignoring one segment of that range - 40 million people or so. For those people, the assertion she made is true.

[Jackmormon]

Waaay further up in the thread, a comment I made sparked Jes's comment that we've all made so much hyperbolic hay out of.

Those 10-15% of anti-abortion absolutists are not evenly spread throughout the country. A strict anti-abortion law wouldn't pass the federal government, but a state like, say, Georgia, Texas, or Kansas might see fit to pass one.

In the absence of Roe, unless the federal government protected some positive right to an abortion, at least some of those states would pass very extreme limitations on a woman's ability to seek an abortion, even at the early stages of her pregnancy. "Let the states figure it out" is one of the strategies moderates use on contentious social issues--precisely because it allows decisions to be made under the radar.

So let me go on the record opposing state-by-state abortion regulation. Are fetuses more alive in the South? Should women be more empowered in the Northeast?

I don't think this is an OT comment because a) I've seen Seb advocate a state solution to abortion and b) legislative considerations were the object of Von's original post. (And because c) this thread is degenerating...)

[blogme]

Common Knowledge,

I must admit it is a new one to me also. I always thought fascist were on the far right. But, for some reason the left and Islamicfascists have decided to bed down together.

It seems a useful description during these weird times that the left can identify more with Islamicfascists than the conservative right.

Phil,

Are you referring to this poll:

CBS News Poll. July 13-14, 2005. N=632 adults nationwide. MoE ± 4 (for all adults).

"What is your personal feeling about abortion?

1) It should be permitted in all cases.
2) It should be permitted, but subject to greater restrictions than it is now.
3) It should be permitted only in cases such as rape, incest and to save the woman's life.
4) It should only be permitted to save the woman's life."

All Cases
25
Greater Restric-tions
14
Rape, Incest, Woman's Life
38
Only Woman's Life
15
Never
3
Unsure
5

http://www.pollingreport.com/abortion.htm

Or are you only going to refer to the polls that support your statement?

Well, I will take the "clever" as a compliment and ignore the typos and grammar. I think it is safe to say that everyone makes type and grammar mistakes when posting. It happens.

As far as the IP address. You got me. You can track me to GOP headquarters. (Where ever that might be.)

[Phil]

But, for some reason the left and Islamicfascists have decided to bed down together.

There it is again. Not even insinuating this time, but outright saying that Edward, Katherine, Jesurgislac, Anarch, Catsy, felxirayman, CharleyCarp, et al., are on the side of the terrorists. This is not only a massive violation of the posting rules, I'm fairly certain it's a bannable offense. But it's your blog, guys.

Phil,

Are you referring to this poll:

No.

[Francis]

having been told by any number of people that my hypothetical construct of why Roe was rightly decided on an originalist basis is wrong, I'd love to be enlightened, then, on two points: (a) Where, exactly did Blackmun go wrong? This is a 7-2 decision.

(b) How should an originalist decide cases asserting that a law violates the liberty interest? Rehnquist's dissent is basically a statement that the majority overreached. Gee, that's helpful. It'd be nice to know what the appropriate parameters of the analysis should be.

[Dianne]

"I suspect we could at a minimum ban all elective abortions in the 7th, 8th and 9th months (and quite possibly the 6th) without significantly causing the negative externalities you worry about."

Perhaps one of the legal experts who post here can correct me if I'm wrong about this, but I was under the impression that a ban on third trimester abortion except in the case of severe fetal abnormalities or risk to the mother's health was a) entirely consistent with Roe and b) already in place in most or all parts of the US.

Second trimester abortion, on the other hand, does frequently occur because the woman has difficulty getting enough money together to afford an abortion earlier or time to travel to a provider if she lives in a state with few providers or, in the case of a teenager in a parental notification state, permission to have it. These second trimester abortions could be prevented by making first trimester abortions readily and cheaply available. Being pregnant is not fun and very few women who want an abortion would delay into the second trimester if they could get one in the first.

[Dianne]

Concerning SH's and blog's criticism further back in the thread of my choice of examples of pro-lifers, how about Randall Terry as an example of a more typical pro-lifer? So far as I know, he hasn't blown anything up, but the following quote gives one a flavor of at least his section of the pro-life movement:

"I want you to just let a wave of intolerance wash over you. I want you to let a wave of hatred wash over you. Yes, hate is good...Our goal is a Christian nation. We have a Biblical duty, we are called by God, to conquer this country. We don't want equal time. We don't want pluralism."
— Randall Terry as quoted at an anti-abortion rally in Fort Wayne, Indiana by the Fort Wayne News Sentinel, August 16, 1993.

[trilobite]

Sorry to burst your bubble, but the Supreme Court could in fact very easily make abortion illegal, period. You are all assuming that they will simply "repeal" Roe v. Wade, "oops, we were wrong, right to privacy doesn't extend that far, nevermind." Why assume that? Congress repeals, the Supreme Court makes up new theories. Here's one:

The new decision might say, "even if there is a right to privacy that might apply, it is outweighed by the express command of the 14th Amendment against depriving a person of life without due process of law. 'Person' clearly means more than 'citizen,' and in view of the importance of this provision and the unfortunate history of this and other governments of narrowly construing the word and concept 'person', we hold that we must construe it broadly. Therefore, we hold that a fetus is a 'person' protected by the 14th Amendment, from the moment it first exists."

QED, the End. Congress can't touch it, states can't touch it.

Oh, btw, just because something was not criminalized in 1789 doesn't mean it's a fundamental right. If that were the case, we couldn't have building codes, maximum hour laws, child labor laws, wetlands protection, etc. Liberals, DON'T go there!

[blogme]

Phil,

But, for some reason the left and Islamicfascists have decided to bed down together.

There it is again. Not even insinuating this time, but outright saying that Edward, Katherine, Jesurgislac, Anarch, Catsy, felxirayman, CharleyCarp, et al., are on the side of the terrorists. This is not only a massive violation of the posting rules, I'm fairly certain it's a bannable offense. But it's your blog, guys.

Actually you are right. I should clarify myself. Above Francis referred to right wing nuts. When I said that the left have bedded down with Islamofascists I should have said left wing nuts. That's really who I meant. I don't know if everyone on your list qualifies or not. You can judge that for yourself.

[aireachail]

Anyone recall how many "Roe is Poor Legal Reasoning" bumper stickers and protest placards you've seen over the past 30 years?

Yeah...same here.

That's why, despite the attraction to some, discussions about Originalism don't bear on the "Marketing 101" problem. What has to be overcome (as shown in the cited polling data) is the absolutism reflected in all those "Abortion is Murder" signs.

[M. Scott Eiland]

The new decision might say, "even if there is a right to privacy that might apply, it is outweighed by the express command of the 14th Amendment against depriving a person of life without due process of law. 'Person' clearly means more than 'citizen,' and in view of the importance of this provision and the unfortunate history of this and other governments of narrowly construing the word and concept 'person', we hold that we must construe it broadly. Therefore, we hold that a fetus is a 'person' protected by the 14th Amendment, from the moment it first exists."

Sure, they *could* write it that way--but can you name one Justice currently on the USSC--or any other federal judge, for that matter--who has written it that way either in a majority opinion (for the lower federal courts, of course) or in dissent? The Court could also rule that burning at the stake doesn't constitute "cruel and unusual punishment"--the author of the majority opinion could probably even spin a tale to justify the absurdity--but it's rather unlikely.

[blogme]

Dianne,

"Randall Terry as an example of a more typical pro-lifer?"

I don't think he is typical of most pro-lifers. Certainly not the average American. Atleast not any pro-lifer I know.

On Hannity and Colmes he had this to say:

"When I was leading Operation Rescue, I was in my 20s," he said. "There are things that I have said that make me wince now because that's not who I am now. I'm in my 40s. I'm in my mid-40s. I've mellowed. Hopefully I've matured."

In his Operation Rescue days, Terry said, "Some of my rhetoric was a little too strident and I did not give people the benefit of the doubt."

When he was most prominent I would equate him more with PETA or extreme environmental groups.

Although, he is non-violent so that may place him a little above some of those environmental groups like ELF.

Also, I'm not sure that hating abortion is a bad thing. Excluding rape, incest and a women's safety of course, which is how most Americans feel.

[nous_athanatos]

blogme- Also, I'm not sure that hating abortion is a bad thing. Excluding rape, incest and a women's safety of course, which is how most Americans feel.

And that is not the part of the statement that is a problem, either:

"We have a Biblical duty, we are called by God, to conquer this country. We don't want equal time. We don't want pluralism.[emphasis mine]

This is an anti-democratic point of view. It is based on a paradigm that negates the principles on which the constitution rests. You cannot be a democrat and a theocrat at the same time, because democracy demands pluralism.

[felixrayman]

It seems a useful description during these weird times that the left can identify more with Islamicfascists than the conservative right.

Hmm, you can give no examples of the supposed similarities between the two, just a false and ridiculous blanket accusation that the left identify with "Islamicfascists" a nonsense term which you can not even define. Rubbish.

Are you referring to this poll:

CBS News Poll. July 13-14, 2005. N=632 adults nationwide. MoE ± 4 (for all adults).

You mean from a page describing the same question asked dozens of different times over the years, by many different polling organizations, am I referring to the poll with the smallest sample size and largest margin of error that also happens to produce outlying results not reproduced by any of the other polls? No. No, I am not.

Or are you only going to refer to the polls that support your statement?

Again, accusing others of doing something you yourself are doing even as you accuse others of it.

"When I was leading Operation Rescue, I was in my 20s,"

When he made the statement that was quoted, he was not.

[dmbeaster]

How should an originalist decide cases asserting that a law violates the liberty interest? Rehnquist's dissent is basically a statement that the majority overreached. Gee, that's helpful. It'd be nice to know what the appropriate parameters of the analysis should be.

Exactly. There are so many other liberty interests that constitute constitutional rights that are on the same footing as Roe, but not the same emotional footing so theydo not attract the same heat. Like the right to travel Edwards v. California, 314 U.S. 160 (1941). But emotional factors should not be the deciding factor.

You could parrot the same anti-Roe arguments to rebut the right to travel, and have the same issues as to "overreaching" and "not intended by the Constitution" and "legislative perogative vs. judical activism." You could marshall the same thoughts about compelling state interests (the government needs identity cards and to keep track of where everyone is to prevent crime, etc.). The Roe critics never address this bigger question -- by implication they would essentially eliminate the court's long historic role in defining the liberty clause. Or else just eliminate about issues that they feel strongly about.

[dmbeaster]

Wrong. Almost all opponents of any type of abortion restriction have to be anti-Roe. That absolutely does not translate into a majority of Senators who would vote to ban all abortions.

Agan, amazing ignorance as to the current political landscape. This administration is already on record regarding the scope of allowable abortions with regard to planned parenthood funding or funding of various health programs overseas. That record -- a total ban on abortions or else.

They have repeatedly voted down even mild exceptions, such as rape, incest or health of the mother.

Although many Republican Senators might scurry like cockroaches if asked to participate in a poll as to how much abortion should be illegal, if put to the test, they will vote for a complete ban as they have already done in ever circumstance to date in which they have had an opportunity to make the vote.

You seem to be saying that abortion should be mildly regulated in the first four months, and banned after that. Funny -- that's pretty much what Roe does, although allowing exceptions in later months based on health of the mother (also allowing it later based on viability, which has changed over time based on technology). Abortions after the six month are almost never performed, and then probably only in truly dire situations. The notion that its a "problem" is fictional anyway.

[dmbeaster]

First, if Roe were removed tomorrow, it would not mean that abortion would suddenly become illegal.

Actually, this overlooks a rather important fact.

Although I have not researched it, I am highly confident that large number of States still carry on their books anti-abortion laws that were voided by Roe v. Wade. Those laws remain on the books but are currently unenforceable.

As soon as Roe v. Wade is overturned, those laws are reinstated without any further legislative action. Voila -- instantly illegal again.

Maybe the reversal decision would limit State power in some way that would still leave the old laws void (like the 70s death penalty decision that made it clear that the death penalty was proper, but invalidated outmoded death penalty statutes anyway). But I doubt it.

[CharleyCarp]

When I said that the left have bedded down with Islamofascists I should have said left wing nuts. That's really who I meant.

I would be interested to know in what sense, if any, you think 'left wing nuts,' whoever they might be, have 'bedded down' with Islamicfascists. Are you thinking of all those leftists who've gone to the mountains of Pakistan to join the jihad? The Islamists that have been joining gay pride marches? Don't be coy: name names, tell stories.

You are obviously not talking about any regular (or semi-regular) commenters here, as none are left wing nuts. Thus the danger of posting violation is low.

(This I really don't get: "Which political positions of "Islamofascists" do you consider to be left-wing?" Just there bed partners. Are you saying Islamists are gay? Or that they sleep with leftist women -- a shocking slur, I'd imagine, if made to an Islamist's face? Or is it the bill offered by Sens. Kennedy and Clinton to declare Islam the state religion of the US?)

Tril:

Abortion is very rarely state action. Consequently, a finding that a fetus is a person under the 14th amendment wouldn't have a direct impact on abortion. I suppose some fetus, or class of fetuses could bring an equal protection challenge against law enforcement officials for failure to enforce murder laws. The Warren court might have found a way for such a plaintiff to have standing, and for the claim to be ripe. Maybe a tougher go right now.

building codes, maximum hour laws, child labor laws, wetlands protection do not derive from fundamental rights, but from the police power, or commerce clause, depending on whether they are state or federal. The reversal of Casey is unlikely to have any impact on these areas. Indeed, it is the opposition to these kinds of laws that asserts positions based on fundamental rights.

[CharleyCarp]

Dammit!

[CharleyCarp]

dm, I looked at this 15 or 20 years ago, and I recall seeing plenty of state abortion bans on the books. It'll be interesting to see what Montana will do, inasmuch as it adopted Griswold in its state constitution.

[CharleyCarp]

BM, I don't know where you were in the 1980s, but that's when a significant US political figure 'bedded down,' metaphorically, with the 'Islamicfascists.' I'm speaking, of course, of R. Reagan. And the bedding down wasn't just some kind of expression of sympathy and offer of therapy. It was billions of dollars worth of weaponry, training, logistical support, etc, etc.

[bernard Yomtov]

You can't really continue this discussion effectively without coming to grips with the fact that there are ranges of the pro-life and pro-choice positions

Neither can we continue this discussion effectively without recognizing that the Republican Party generally hews to the line taken by relatively extreme anti-abortion group. It really doesn't matter if they are a minority within the party or not, if they control the party's position on the issue.

[Jackmormon]

Charleycorp, you brought up the commerce clause first. I think I'm generally on your side, but I'd like to understand how the commerce clause applies. I am, after all, not a lawyer.

[CharleyCarp]

That was only half serious.

The CC is how most fed regulation is done. Is there an interstate market in abortion services? Yes, and there will definitely be in the post-Casey world. If the CC can be used to ban growing marijuana in your backyard for medicinal use, and it http://straylight.law.cornell.edu/supct/html/03-1454.ZD1.html>can, then abortion can probably be banned as well. (Read the Scalia opinion.)

[Francis / BRGORD]

Jackmormon: the best analogy is the civil rights laws. Once a fetus is a person, fed. law can prohibit others from violating that person's civil rights. Death, via abortion, is a classic civil rights violation (hanging was the old-fashioned way to do it with that other group that has suffered invidious historical discrimination). Since the same Congress that finds a fetus to be a person will also find that that class of persons has suffered historical discrimination as a class based on their status, the same Sup Ct that upholds the first finding will uphold the second.

tada! a 42 USC 1986 (cvil rights violation) action lies.

It's still interesting to think about the consequences if the Sup Ct reverses Roe but also reverses the fed. govt. abortion ban. The famous state laboratory model is REALLY going to be put to the test, as blue states become abortion havens and red states seek to prevent them from doing so.

[Sebastian Holsclaw]

Dianne,

Perhaps one of the legal experts who post here can correct me if I'm wrong about this, but I was under the impression that a ban on third trimester abortion except in the case of severe fetal abnormalities or risk to the mother's health was a) entirely consistent with Roe and b) already in place in most or all parts of the US.

You are wrong about this. The law exists like that on the books in a very few states, but I am unaware of even a single abortion stopped by such a law in the history of post-Roe abortions. The post-Roe legal regime is more permissive than most European states.

Felixrayman,

"Do you think abortions should be legal under any circumstances, legal only under certain circumstances, or illegal in all circumstances?", 20% of people answered illegal in all circumstances. Another poll asking pretty much the same question resulted in 16% answering illegal in all circumstances, a third resulted in 14%. Taking the most conservative number works out to somewhere over 40 million people in the US. Those people are pro-lifers. 40 million is not a few.

In the context of getting a federal ban on abortions (which is what most of the people here seem to be worried about) 20% is most definitely, absolutely "a few" and certainly not enough to have their idea on abortion pass unless the other 80% don't care about abortion at all. You can't have it both ways. Either a small percentage of people want to ban abortions OR an abortion ban passes through the federal government. Having both be true is dramatically unlikely unless you think Republicans want to pass a ban only to have it repealed by the emerging Democratic supermajority 2 year later.

Nous_athanatos speaking of theocrats...

This is an anti-democratic point of view. It is based on a paradigm that negates the principles on which the constitution rests. You cannot be a democrat and a theocrat at the same time, because democracy demands pluralism.

Do you think that the 'theocrats' are likely to be able to impose a ban on abortions with only 20%?

Dmbeaster,

Abortions after the six month are almost never performed, and then probably only in truly dire situations. The notion that its a "problem" is fictional anyway.

You have to say 'probably' because NARAL and NOW have blocked all attempts to gather data on the subject. You want your statement to be true, but there is no proof that it is, and the party most interested in avoiding inspection of the issue has caused it to remain uninvestigated. (Until perhaps this September in Kansas.)

Bernard Yomtov

Neither can we continue this discussion effectively without recognizing that the Republican Party generally hews to the line taken by relatively extreme anti-abortion group. It really doesn't matter if they are a minority within the party or not, if they control the party's position on the issue.

It has an anti-Roe position which is solid because the anti-Roe position encompasses the entire spectrum of pro-life positions. In a post-Roe environment the extreme abortion banning view does not hold a majority even in the Republican Party--much less the country.

[rilkefan]

"You want your statement to be true, but there is no proof that it is"

And you secretly want it to be false?

[Sebastian Holsclaw]

No, I openly suspect the statement is false, and I suspect that one of the major reasons NARAL and NOW want to avoid open statistics on the subject is because they know that such statistics would be ugly.

[M. Scott Eiland]

Once a fetus is a person, fed. law can prohibit others from violating that person's civil rights.

Which is why I--if I had been in charge of the majority opinion of Roe--would have based the right in the Thirteenth Amendment's absolute prohibition (excepting as a punishment for crimes for which the individual is duly convicted) of involuntary servitude (no need to throw around "slavery" gratuitously, unless you're of the "hack-em off" school of feminism made notorious by the vicious tag team of Dworkin and Mackinnon). The advantage to that approach would be that acknowledging the personhood of the fetus would not necessarily deny the putative mother the right to terminate the pregnancy as an expression of her right not to be subjected to involuntary servitude. Alas, Blackmun, et al., chose to base the right on the rather squishy ground of privacy rights (with their eminently mockable pedigree of "penumbras" and "emanations"), and as such it is very vulnerable to frontal attack.

[felixrayman]

In the context of getting a federal ban on abortions (which is what most of the people here seem to be worried about)

That was not the context I was responding to. The context I was directly responding to was this assertion:

There are very very few people in this country that believe abortion should be illegal in all instances. For Jesurgislac to state otherwise is just dishonest. Even among the right wing nut pro-lifers there are very very few people who believe that

And that's just a false statement. Among pro-lifers there are tens of millions of people that believe abortion should be illegal in all instances.

Either a small percentage of people want to ban abortions OR an abortion ban passes through the federal government

15-20% want to ban it outright. Depending on how the question is asked and the specific polls, either a large plurality or a majority want to place severe restrictions on abortion. For example in one poll, those who wanted abortion to be either "illegal without exceptions" or "illegal with a few exceptions" amounted to 53% of the population, which certain Republicans currently consider to be an ultra-solid mandate.

So given the fact that most states did have abortion bans in the 70s, and that opinion polls have not changed much on the issue since then (if anything, there has been an increase in anti-choice sentiment), and given that the GOP is currently dependent for its majority on pandering to religionists, it is hardly inconceivable that there could be severe restrictions put on the availability of abortion in the event Roe was struck down.

Of course there probably would be a backlash if abortion was made "illegal with a few exceptions" - it would turn some pro-choice voters into single issue voters the way anti-abortion voters are now. But there would also be a backlash from the social conservatives if Roe was overturned and a GOP Congress took no action. That's the GOP's dilemma.

[Melissa]

What would be an ugly statistic? In South Australia the majority of abortions are performed before 14 weeks and less than 2 percent at or after 20 weeks. Any reason to think America would be any different?

[Jesurgislac]

Dmbeaster: Abortions after the six month are almost never performed, and then probably only in truly dire situations. The notion that its a "problem" is fictional anyway.

Sebastian Holsclaw: You have to say 'probably' because NARAL and NOW have blocked all attempts to gather data on the subject.

Sebastian, every time this topic comes up you make this claim (on the lines of "the data isn't available), and every time I post links (easily gathered from Google) on the data publicly available about late-term abortions in the US. How many are performed, why they are performed, etc. It's all on the CDC.gov website (I've linked to the figures for the year 2000, but the stats are available since 1969.)

Isn't it about time you gave up claiming what you know isn't true? The data is available, and you know it. Why keep claiming that it isn't?

[Dianne]

"The law exists like that on the books in a very few states, but I am unaware of even a single abortion stopped by such a law in the history of post-Roe abortions. "

Actually, forty states, including Kansas have such laws on the books. If few abortions are prevented by them that is because few, if any, women suddenly want an abortion after carrying a pregnancy 24 weeks.

[Slartibartfast]

The data is available

Data is always good. Nice data. However: nit. The specific data Sebastian is referring to is not available on the page you linked to. What's available is >21 weeks; he's mentioned six months. This has been a test of the emergency nit-picking system. We now return you to your regularly scheduled program.

[Jesurgislac]

Slarti: The specific data Sebastian is referring to is not available on the page you linked to. What's available is >21 weeks; he's mentioned six months.

Yes, and FYI: six months is >21 weeks.

[LizardBreath]

Right, the linked data, while not exactly what Seb. asked for, gives an upper limit: the number of abortions performed after 6 months must be less than or equal to the number of abortions performed after 21 weeks.

Seb. -- Is there something particularly unsatisfactory about the data Jes keeps on linking for you? I could understand why this keeps coming up if you had a particular gripe with it, but I can't figure out what that is.

[CaseyL]

That's a real nitty nit: "greater than 21 weeks" vs. "6 months" (ie, approx. 26 weeks).

The most insulting of the anti-choice rhetoric - and the most dishonest - is the one that frames late-term abortion as a frivolous decision. Could someone here tell me why anti-choicers think that?

Oh, and allow me to pick one of my favorite nits: data are, not data is. Datum is singular. Data are plural (unless you're talking about the USS Enterprise crewdroid).

[Sebastian Holsclaw]

"Sebastian, every time this topic comes up you make this claim (on the lines of "the data isn't available), and every time I post links (easily gathered from Google) on the data publicly available about late-term abortions in the US. How many are performed, why they are performed, etc. It's all on the CDC.gov website (I've linked to the figures for the year 2000, but the stats are available since 1969.)"

Jesurgislac, every time this topic comes up I point out that your charts say nothing about WHY the late term abortions are performed so your suggestion that I am lying is highly unwelcome.

That isn't just a nit, that is a serious lack of data.

[LizardBreath]

So, you concede the extreme rarity of third trimester abortion, you're just complaining about the lack of solid statistics on the reasons for those very few abortions.

[Phillip J. Birmingham]

The law exists like that on the books in a very few states, but I am unaware of even a single abortion stopped by such a law in the history of post-Roe abortions.

That doesn't impress me much, as I'm sure you're probably not aware of a single murder stopped by murder laws either. I mean, if it doesn't happen, it is by definition a non-event, right?

[Sebastian Holsclaw]

I'm also aware of murder prosecustions, I am however unaware of non-medical necessity late term abortion prosecustions.

"So, you concede the extreme rarity of third trimester abortion, you're just complaining about the lack of solid statistics on the reasons for those very few abortions."

Can I have a felixrayman analysis of 'few' please?

Let us say that only one percent per year of late term abortions are for non-necessity reasons (which I suspect though the data is not available is dramatically lowballing it since a 1% corruption rate in any human endeavour would be quite low). That would make at least 300 effective infanticides per year.

And BTW if it is so few, it isn't much of a danger to abortion rights to look into it is it?