[RD] Abortion, once again

[Lexicus]

Protestors indeed showed up at Kavanaugh and Robert's houses yesterday. (Around 100)

https://www.huffpost.com/entry/protesters-supreme-court-justices-homes_n_62788d49e4b0d7ea4cce8eb0

More are planned today and tomorrow for the other conservatives justices houses.

There are rumors Alito and his family were moved to an undisclosed location.
All the justices are getting 24/7 security now.

LMAO, snowflakes

 

[TheMeInTeam]

If coherent reasoning doesn't allow policy advancing human welfare then we might as well just give up on this civilization nonsense. Whats the point otherwise?

This belief of yours says a huge amount about you.

??? i think you misread?

i am saying that coherent reasoning can't lead to texas law. my impression based on earlier in the thread is that you agree with that. are you saying that texas' law is the one "advancing human welfare"? that's the only way your post makes sense, but it is a complete 180 from what i'd expect from you. i don't have you pegged as a pro-life absolutist, so i'm guessing you just made a mistake here.

well, two mistakes. one instance of poor comprehension of the post, and other for doing yet another character attack/ad hominem garbage in a rd thread, lol.

I cannot think of any doctor or facility that would ever allow such a thing. It's my understanding that third trimester abortions are only available if the mother's life is in danger or the fetus is severely defective in some way, or has already died in utero (I think it's cruel to force a woman to give birth to a baby that is already known to be dead).

The difference here that really matters is that I consider other women's pregnancies to be none of my business.

is it actually a difference? it seems you are not critical of your country's stance on not doing 3rd trimester abortions w/o good reason. i estimate that your position would change significantly if canada decided to copy texas law, and that you would be quite critical of it.

thus, policy wise you do seem to have at least some preference, even if like me you don't want to pin it down.

Covid's toll in the U.S. reaches a once unfathomable number: 1 million deaths

this is off topic, but this headline is stupid. "unfathomable"? the global mortality rate for covid vs us population says otherwise.

"The Louisiana House Committee for the Administration of Criminal Justice advanced legislation Wednesday that would redefine personhood to begin at the moment of fertilization and would allow prosecutors to charge anyone who undergoes or provides an abortion with murder.

i think i have seen this reasoning somewhere before...hmmmm. something about how the definition is critical for the concept of abortion law to possibly be relevant, because without defining it you can't actually have abortion law.

though this is an awful bill.

"Some conservatives have argued that the federal government is wrong to tell employers what health benefits they must cover, fighting for years against the ACA provisions on birth control products. The Susan B. Anthony List, an antiabortion group, repeatedly called on Trump administration officials to narrow the law, characterizing it as an “abortion drug mandate.”

there is an important distinction between outlawing something vs not federally funding/insuring it. they are different things.

this discussion would look different if abortions were federally funded and the only thing that's changing was a cut to that funding.

Maybe American women should simply deny men sex, if this ruling goes live?

that's certainly an option. try it if you think it will help, at any scale you want. i expect it isn't the threat you think it is, but that guess can be updated based on empirical evidence.

 

[Valka D'Ur]

Ironically, the best cook in a kitchen I know personally... is a guy. It's not fair!

My dad was an excellent cook. My own kitchen claim to fame was in chocolate-making and a modified recipe for chocolate haystack cookies.

 

[EgonSpengler]

I was listening to a podcast, and someone mentioned that very, very few abortions are actually "late term" abortions (which some people in the pro-life camp focus on), so I was moved to look for some numbers.

Centers for Disease Control & Prevention, Surveillance Summaries, 26 November 2021 - "Abortion Surveillance — United States, 2019"

92.7% of abortions were performed at ≤13 weeks’ gestation; a smaller number of abortions (6.2%) were performed at 14–20 weeks’ gestation, and even fewer (<1.0%) were performed at ≥21 weeks’ gestation.

This relates closely to something I posted over in the "when does life begin?" thread, but I thought it was more germane to this thread. If I try to collate this information with what I read about "periviable" births (defined by the American College of Obstetricians and Gynecologists as delivery occurring from the 20th to 25th week of gestation) that I posted over yonder, it's evident that fetal viability isn't even really an important part of the equation [EDIT: ...for the pro-life side of the abortion debate, I meant to say]. Fewer than 1% of abortions are done during the "periviable" stage anyway. So clearly people opposed to abortion aren't even thinking about viability as a relevant concern. Alright. So what, then? Trying to take the other side, in my head, I can only think their rationale is purely metaphysical. Which is to say, most of the time, that it's religious belief defining what's a human being and what isn't [EDIT: again, for the pro-life side]. Playing 'Devil's advocate' with myself, I can't think of what else there might be, and abortion rights opponents don't seem too quick to come up with an alternative. (Some GOP politicians like to focus their ire on late-term abortions, but like the CDC says, those aren't even 1% of abortions.) I assume the issue here is that people believe the human soul is implanted, if that's the right word, at conception (or whenever - well before even periviability, as understood by current medical science).

So unless someone can clear it up for me, a great deal of opposition to Roe v. Wade seems to me to be founded on an opposition to freedom of religion, and on an opposition to the separation of church and state, by (some of) the same people who said that a baker of wedding cakes should be allowed to turn away a same-sex couple on the grounds of religious liberty. Am I missing something? Once again, I'm reminded of Margaret Atwood's dystopian vision of America, not merely as a totalitarian state akin to Stalinist, Soviet Russia (e.g. Orwell's England in 1984), but more specifically as a fundamentalist theocracy akin to Afghanistan under the Taliban.


EDIT: Boy, this is another of those instances of where the scientific use of a word really clashes with the common, everyday use of the same word. "Abortion surveillance" just sounds super-creepy.

 

[TheMeInTeam]

Which is to say, most of the time, that it's religious belief defining what's a human being and what isn't

the main challenge is that we don't have anything else, so a lot of people default to this. you could use viability of the fetus, or something else completely arbitrary in the place of religion, but at the end of the day you're still deciding when legal protection of fetus has a line drawn to have abortion law at all. i don't see many non-arbitrary options for drawing that line.

though as you point out, it seems nearly everyone draws it before/up to 25 weeks, after which people generally are against it/don't do it without some unusual complication or circumstance. if that's the observed behavior pattern for vast majority of voters, that's where it would make sense to draw the line for now.

So unless someone can clear it up for me, a great deal of opposition to Roe v. Wade seems to me to be founded on an opposition to freedom of religion

that's probably most of the opposition to it, and it's wrong. the real problem with roe is the implication of judicial control over this stuff + bad reasoning inconsistent with the case. that's why this now goes to state legislatures, though i'm disappointed in some states, to put it mildly. but when legislatures don't represent what their states want, they should be replaced.

and on an opposition to the separation of church and state

i don't think a coherent religious position could justify abortion bans by state. especially not if they are arguing "separation of church and state". the state isn't forcing abortions (at least not us, china has actually done that). it's the religious position trying to enforce its desire/control other people in this case, using the state as a lever for that control. that is exactly the opposite of "separating" church and state. i have no more patience for classic religious institutions trying to control people with bad government policy than i have for the church of woke.

Am I missing something? Once again, I'm reminded of Margaret Atwood's dystopian vision of America, not merely as a totalitarian state akin to Stalinist

the correct reason to reverse roe and put this in hands of state legislatures is consistency with constitution/design of government/separation of powers. to illustrate why this is important, consider the reverse of the scenario we have now: very religious republican (or otherwise) presidential office + sympathetic courts.

using the same process that led to roe, there's nothing stopping such an arrangement from issuing a *federal* abortion ban and then having courts uphold it, like a reverse roe. yes, this violates constitution and pushes power to judicial/executive that is defined as the purview of states. yes, this moves policy decisions further away from the voters' control. and yes, this crushes voter option to as-easily relocate to governance with which they agree. but roe's ruling did that too, and worse the logic that led to it opened the door for abusive outcomes like this (or similar scope for other issues).

roe was bad case history. not because of religious mumbo jumbo or whatever, but because the courts of the time punted on the question of personhood despite that every abortion law *must* define it, because they weirdly affixed "privacy" as reasoning which should be irrelevant to the important legal question, and because they ignored how the country's design delegates powers to various branches/levels of government. it's bad process. even if you like the outcome of that bad process in one case, it leads to major issues over time.

if you don't want a bible thumper rolling into office in one of the next elections and implementing an executive order banning abortions that a friendly/packed court will uphold as "constitutional", you probably shouldn't want a nonsense ruling wrt privacy that ignored the fundamental question of the case + constitution to be considered good law either.

 

[EgonSpengler]

I found at least a partial answer to my question: Oklahoma's recently-signed bill seems to pin everything on the "fetal heartbeat."* They even called it the Oklahoma Heartbeat Act. It says "a physician shall not knowingly perform or induce an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child[...]" The bill itself doesn't seem to explain why the fetal heartbeat is the important milestone, though. Maybe that was debated and the debate is documented elsewhere. Maybe it was assumed the significance of that stage of fetal development is understood and needs no explanation**. Maybe they chose that because it was so conveniently early in a pregnancy as to effectively prevent most abortions. Why aren't the kidneys the crucial organ? Or skin? When do fetuses grow skin? (The skin is pretty much done around 4 months, according to a quick Google search.)


* I put that in quotes because I'm not sure the electrical activity being detected is actually a heartbeat. I'm not sure there's a heart in a 6-week embryo.
** Why isn't the formation and operation of the brain the milestone for when a person becomes a person? For people who oppose abortion, it's because the brain's cerebral cortex - where we get most of what we call "consciousness" - isn't functioning much before birth. If your goal is to peg the development of the human being as early in the process as you can, the development of the human brain is useless. It lags behind everything.

 

[Lexicus]

roe was bad case history. not because of religious mumbo jumbo or whatever, but because the courts of the time punted on the question of personhood despite that every abortion law *must* define it,

This is utter nonsense. The law says you can't compel me to donate a kidney to save someone else's life. That makes no statement whatever about the personhood of individuals who need kidney donations to live.

 

[El_Machinae]

Apparently the case history on Roe is better than a lot of people realize. IANAL, but part of the 'benefit' of a Constitution in a Common Law system is that it allows us to read in rights more easily than we can remove them. There's a reason why the Pro-Life crowd had to stack the court, afterall. But, I really DO understand how people would prefer that things are done via the Legislature than the Courts. The courts didn't really 'punt' on personhood, since Roe v Wade was all based on privacy and viability. Remembering that that there are multiple routes to a conclusion.

I don't know how it works in the United States. I would imagine that 'personhood' is under the umbrella of the Legislature to define.

 

[Berzerker]

The narrative out of Fox pundits is abortion should be a state matter because abortion isn't mentioned in the Constitution, it is not an enumerated right. I dont see anything about parental rights either but that doesn't stop them from claiming they exist.

 

[TheMeInTeam]

better than states banning it entirely, but still bad and still using a completely arbitrary spot that is inconsistent with actual practices or any measurable effect. might as well use the liver or lungs or whatever else at random.

doubly bizarre in my mind; heartbeats don't give chickens/horses/fish human legal protections, so that's an odd choice for a cutoff point for legal protections for fetus too.

The courts didn't really 'punt' on personhood, since Roe v Wade was all based on privacy and viability.

privacy isn't a relevant doctrine when the question is whether you're killing (and thus violating the rights) of someone legally, though. crime done in private is still crime, especially when it comes to harming others.

setting aside any philosophical arguments to reason for where the line is, you need to draw at least one line between "counts for legal protections" and "does not count for legal protections". anything in the former category can't fit into the "privacy" category. anything fitting the latter will have no meaningful distinction from other medical procedures.

no matter how you look at it, implicating privacy when the question is whether harm was done someone/something protected by the law is punting. that was an answer to a question that was not asked, and it did not answer the important question.

The narrative out of Fox pundits is abortion should be a state matter because abortion isn't mentioned in the Constitution, it is not an enumerated right. I dont see anything about parental rights either but that doesn't stop them from claiming they exist.

this is an interesting one. whether you are talking about abortion or even 17 years old, there are things that are clearly within parental rights basically everywhere in the us (which food is provided for kids, or where they live), and things that are clearly not (abuse/crimes against them). so when you (or someone else) says "parental rights", what is actually meant?

parental rights aren't in the constitution, but they are codified elsewhere. in that sense, they exist...and so would abortion options.

also worth noting that the constitution does not provide the government any broad authority over children in particular. for example, the parent can choose where child goes to school. this might not be a "parental right" in a constitutionally defined sense, but rather in the sense that the state has no authority/legal means to dictate otherwise.

so could a state make it illegal for some things to be given to kids, or require kids to have some things? yes to both, and we observe both. but that isn't total authority...

 

[El_Machinae]

privacy isn't a relevant doctrine when the question is whether you're killing (and thus violating the rights) of someone legally, though. crime done in private is still crime, especially when it comes to harming others.

"Privacy" was why it was illegal to ban in the first trimester. The ruling itself said that there was an increasing ability for the state to intercede, based on the development of the fetus. I think that whatever you think is missing, isn't. There's a reason why it is a Supreme Court ruling, because it is high-level and nuanced law.

 

[TheMeInTeam]

There's a reason why it is a Supreme Court ruling, because it is high-level and nuanced law.

i'm aware, but surely you're aware that sometimes, scotus screws up.

"Privacy" was why it was illegal to ban in the first trimester. The ruling itself said that there was an increasing ability for the state to intercede

again, this is not functional. either you are killing something that is legally protected, or you aren't. if (i don't, but if) you accept that a fetus is a person in the first trimester, privacy is not relevant, period. you can't legally murder/kill in privacy. that's not a thing.

if you are not killing something that is legally protected, it's not clear to me how "state's interest" or "ability to intercede" should change between 12 weeks and 24. if at any point we don't yet accept that a fetus is legally protected as a separate entity from the mother, then there is no legal basis to ban abortions, period. the moment you/we accept that premise, all of the arguments about how this is compelled action/state infringing on an individual's rights are overwhelmingly correct.

absent the law being built to protect a legally relevant life, abortion ban at *any* point is a gross infringement of individual liberty. not subtle, but instead compelled action of extreme cost, commitment, and non-trivial risk. "ability to intercede" my foot. if they can compel that degree of cost and risk without the justification of protecting a person, there is a hell of a lot of things the state can compel. i don't want to live in a country where the state compels such things.

or more succinctly: this is not a matter of privacy. it was bogus reasoning. and speaking of "high-level nuanced law", current scotus seems to agree with that assessment on surface level at minimum, otherwise they would not overturn it.

 

[Gorbles]

i'm aware, but surely you're aware that sometimes, scotus screws up.

But what does this mean, exactly? That we should therefore push to undo every piece of work they've ever done? Or just use this observation to argue against decisions on abortion, and stuff like LGBTQ rights? Seems weirdly convenient for the Republicans (and others) that these are the only specific areas that have issues baked-in.

 

[El_Machinae]

again, this is not functional. either you are killing something that is legally protected, or you aren't. if (i don't, but if) you accept that a fetus is a person in the first trimester, privacy is not relevant, period. you can't legally murder/kill in privacy. that's not a thing.

So, you're somewhat fixated on your misconception. Your last sentence (and even quoting me out of order) seems to indicate that.

There are two components: the first, what you're thinking of as 'personhood' was addressed in the different legal ability of the state to intervene based on trimester. There's a 2nd aegis, one of medical privacy (among others). What you're asking for, the consideration for the fetus is address. In the first trimester, the answer was none. In the last trimester, the answer was 'a lot'.

Now, this is why I said that the law was more nuanced than you seem to be appreciating. This is not a surprise, because you're not a trained lawyer, nevermind a judge.

For example, the State can say "people can't get tattoos" or "no shaving moustaches on Sunday" or (say) "no sex between certain types of consenting adults". And then, we'd use Privacy to force the State out of those discussions. So, Roe vs Wade said "even if various States want to interfere with the First Trimester (even though we've said that the fetus does not warrant State protection at that time) they still may not because of 'privacy'.

Various groups were champing at the bit to invent other reasons to ban early abortions, Roe vs Wade said 'nuh uh'.

 

[TheMeInTeam]

There are two components: the first, what you're thinking of as 'personhood' was addressed in the different legal ability of the state to intervene based on trimester.

in order for the court to reject a state legislature's assertion that a 4wk fetus is a person (as an example), the court must *necessarily* reject the concept of personhood to that fetus, independent of privacy. i don't see how anything else is possible in even a strict logical sense. if the state says that's a person, then for privacy to be relevant, the court must first disagree with the state's assessment.

in essence, it danced around that requirement with the trimester thing before adding the privacy issue. in reality, the scotus justices disagreed with the state's law without a providing a clear reason it was more right than the state law, and wrote their own law to replace it.

For example, the State can say "people can't get tattoos" or "no shaving moustaches on Sunday" or (say) "no sex between certain types of consenting adults". And then, we'd use Privacy to force the State out of those discussions.

actually, i don't think we'd use (or need to use) "privacy" to oppose these, either.

the one thing i do agree with in roe v wade (and thus don't with planned parenthood vs casey) is requiring strict scrutiny. courts have been way, way too casual about using lesser standards when constitutional rights are in question, generally. and compelling something like giving birth requiring anything other than strict scrutiny is mind-boggling to me. if strict scrutiny doesn't apply there, where the heck does it apply?

strict scrutiny should be the default if a constitutional right is in question. and this issue is considering a (potential) person's life against bodily autonomy. those things...seem to imply constitutional rights. to me at least. 1992 scotus seems to have disagreed?

 

[Berzerker]

this is an interesting one. whether you are talking about abortion or even 17 years old, there are things that are clearly within parental rights basically everywhere in the us (which food is provided for kids, or where they live), and things that are clearly not (abuse/crimes against them). so when you (or someone else) says "parental rights", what is actually meant?

parental rights aren't in the constitution, but they are codified elsewhere. in that sense, they exist...and so would abortion options.

also worth noting that the constitution does not provide the government any broad authority over children in particular. for example, the parent can choose where child goes to school. this might not be a "parental right" in a constitutionally defined sense, but rather in the sense that the state has no authority/legal means to dictate otherwise.

so could a state make it illegal for some things to be given to kids, or require kids to have some things? yes to both, and we observe both. but that isn't total authority...

tbf to Fox pundits they may howl if a state banned parental rights they support but may not argue for 9th Amendment protection. But the Constitution (14th Amendment?) defines a citizen as someone already born and if we follow the doctrine of incorporation the govt at any level has no say on the matter of abortion. I used parental rights as an example but there are so many rights we take for granted - rights the Framers took for granted. The Bill of Rights was meant to protect certain rights most vulnerable to govt encroachment, religion, speech and guns were at the top of the list.

 

[Lexicus]

But what does this mean, exactly? That we should therefore push to undo every piece of work they've ever done? Or just use this observation to argue against decisions on abortion, and stuff like LGBTQ rights? Seems weirdly convenient for the Republicans (and others) that these are the only specific areas that have issues baked-in.

From an instrumental perspective, losing the court sucks because insofar as the court puts this issue back in the hands of the states, we are confronted with the fact that even though there is no more than about 20% support in any given state for complete bans on abortion, most of the states have legislative processes that are not at all democratic and will not reflect the will of majorities of the voters in those states. In some of the states it's so bad that Democrats will have to win about two-thirds of the votes statewide in order to get half of the legislature.

Remember, the Supreme Court literally ruled that federal courts cannot interfere with partisan gerrymandering, and that the voters had to rely on gerrymandered legislatures as a remedy for gerrymandering. So them referring really any issue to the state legislatures is also part of the right-wing authoritarian project.

 

[TheMeInTeam]

tbf to Fox pundits they may howl if a state banned parental rights they support but may not argue for 9th Amendment protection. But the Constitution (14th Amendment?) defines a citizen as someone already born and if we follow the doctrine of incorporation the govt at any level has no say on the matter of abortion. I used parental rights as an example but there are so many rights we take for granted - rights the Framers took for granted. The Bill of Rights was meant to protect certain rights most vulnerable to govt encroachment, religion, speech and guns were at the top of the list.

i don't think definition of a citizen squares fully with definition of a person. you can't kill non-citizens freely for obvious reasons.

again, the government suppressing bodily autonomy/constraining action isn't functional unless it is doing so to protect the life of what is legally a person. i do think once you have established legal protections for something, not-killing then falls well within the category of "constitutional rights" by necessity.

many rights, including parental, are cut from a different cloth. the question of abortion is one of government controlling/compelling action. parental rights (insofar as they are codified) are generally the opposite; it's the *government* not doing something that is the "right", rather than parent's "right" to any particular action.

laws that constrain parental rights in favor of the child's rights are usually only in the scope of "you have to feed the child" and similar. it can't compel action beyond those types of requirements. but that does not mean parents have a right to take their kid to a bowling alley or something, even if the government also has no authority to ban that.

 

[Berzerker]

I'm sure they'd use the same definition - being born - for a citizen and non-citizen

Democrats had plenty of time to codify Roe but they want the political issue

Obama told women the first thing he'd do is codify Roe, then he got elected and said meh, aint that important

so phony

 

[El_Machinae]

Remember, the Supreme Court literally ruled that federal courts cannot interfere with partisan gerrymandering, and that the voters had to rely on gerrymandered legislatures as a remedy for gerrymandering. So them referring really any issue to the state legislatures is also part of the right-wing authoritarian project.

I still Boggle at this ruling. The courts are supposed to be the backstop against undemocratic processes, which gerrymandering obviously is.

They might as well have pretended to be Vanna White with the Second Amendment.