It's Official: SCOTUS Overturns Roe v. Wade

[bluebell]

I saw that Biden is considering (more likely than not it sounds like) to enact an executive order to keep abortion federally legal.  I'm concerned with the idea that a president could get around a supreme court ruling to do something like this and worried about what it says about the state of our government, but also confused by it because the order would only stand until a republican president was elected and changed it.

Which would then ping pong back the other direction with the next democrat.  Etc, etc, until it all just implodes because the government has become meaningless. 

 

[Tacenda]

5 hours ago, rodheadlee said:

It cannot be righteous to rip your child out of its warm safe womb and kill it.

rodheadlee, when you put it that way, of course not. But there are variables. Recently a story came out about a 10 year old that got pregnant by her rapist, and she was 6 weeks pregnant, I believe. Well, she wan't allowed to get an abortion in her state but would have to fly to a state that does allow for cases of rape. She's 10 for crying out loud!

[Tacenda]

11 minutes ago, bluebell said:

I saw that Biden is considering (more likely than not it sounds like) to enact an executive order to keep abortion federally legal.  I'm concerned with the idea that a president could get around a supreme court ruling to do something like this and worried about what it says about the state of our government, but also confused by it because the order would only stand until a republican president was elected and changed it.

Which would then ping pong back the other direction with the next democrat.  Etc, etc, until it all just implodes because the government has become meaningless. 

 

Saw that this morning, I found this link, not sure if it's true. https://theintercept.com/2020/11/24/congress-override-supreme-court/

[smac97]

33 minutes ago, Ryan Dahle said:

Here is an interesting thought experiment. 

Imagine that there is a group out there that is strongly advocating for the legality of parents terminating the lives of newborns and infants. Rather than having parents carry out the grisly deed on their own, centers are available where a medical professional can safely dispose of the child, with minimal pain and suffering involved. The group's rationale is that since an infant is hardly the same as a functioning adult, the infant's life simply shouldn't be valued in the same way. After all, most infants probably aren't even as intelligent as many animals that humans regularly slaughter and use for food. For this reason, the group strongly supports the legality of parents electively killing their own children up until the time when a child begins to show signs of intelligence that seem superior to most other creatures in the animal kingdom (which, as one might expect, is undoubtedly a debatable threshold).

Not only does the group feel that infanticide should be legal, but they conceive of it as a fundamental human right. Taking care of children can be very difficult. Mothers especially are often disproportionately and unfairly burdened by the responsibility of an infant's care. Thus, the child's very existence is seen as a potential threat to the wellbeing of its parents. The group further argues that since the mother and father essentially created the child's life, they should have the legal right to remove that life. The state shouldn't be allowed to step in and tell the parent what to do with their own children. 

I'm guessing that many aligned with the pro-choice movement today would strongly disagree with this fictional group's ideology. Yet I would be curious as to what rationale a pro-choice advocate might use to push back against this more extreme version of pro-choice, which couldn't in turn be reasonably leveraged against their own ideology. 

Bodily autonomy ceases to be a legitimate argument for killing a child after the child is born, so that could be a differentiating rationale.

"Personhood" might also be on the table, but the pro-abortion folks have spent years trying to formulate a coherent explanation as to when it kicks in that A) is legally coherent (that is, not subjective, not arbitrary, etc.), and B) isn't utterly monstrous.  For example, the extreme rarity of "Intact dilation and extraction" procedures ("intact D&E," a/k/a "partial birth abortion") is, I think, a reflection of how even the most ardent pro-abortion advocate has a hard time addressing personhood.  Look at this language from Gonzalez v. Carhart:

Quote

Other considerations also support the Court’s conclusion {as to the legality of the , including the fact that safe alternatives to the prohibited procedure, such as D&E, are available. In addition, if intact D&E is truly necessary in some circumstances, a prior injection to kill the fetus allows a doctor to perform the procedure, given that the Act’s prohibition only applies to the delivery of “a living fetus,” 18 U. S. C. §1531(b)(1)(A). 

Thanks,

-Smac

[Ryan Dahle]

4 minutes ago, smac97 said:

Bodily autonomy ceases to be a legitimate argument for killing a child after the child is born, so that could be a differentiating rationale.

I agree the analogy isn't perfect. But bodily autonomy has always been a dubious argument anyways. It doesn't logically follow that because a child is within a mother's womb that the mother therefore should have a right to terminate the child's life. It clearly isn't just the mother's body anymore. 

I suppose, in my fictitious scenario, that the somewhat analogous argument is that since the parents created the child, then they should have a right to kill the child. After all, it is their child, somewhat like it is a mother's body. Both arguments are based on intuition about autonomy that isn't obviously correct. We tend to feel that the government should stay out of our lives in all sorts of domains, but we often make notable exceptions when it comes to life-and-death situations.

In any case, good point. 

[Calm]

16 hours ago, Ryan Dahle said:

I'm guessing that many aligned with the pro-choice movement today would strongly disagree with this fictional group's ideology. Yet I would be curious as to what rationale a pro-choice advocate might use to push back against this more extreme version of pro-choice, which couldn't in turn be reasonably leveraged against their own ideology. 

Not a pro choice activist…

The child can be removed from the mother’s care and that care taken over by another, thus allowing the mother to choose to no longer be involved in the child’s life with no physical harm done to the child by that removal. This is impossible with a pregnancy. Extrapolation from a baby that is ‘portable’ to a fetus that is not doesn’t always work.  I don’t think it works in this case. This does not automatically justify abortion, but imo it invalidates the argument as inapplicable as it does not take into account the most important variable, the fetus is inside of the mother that cannot survive separation.

 

If you (generally speaking) are going to argue against abortion, don’t waste time on arguments that will be dismissed because they ignore/dismiss as irrelevant important details. 

Edited July 9, 2022 by Calm

[bluebell]

46 minutes ago, Tacenda said:

Saw that this morning, I found this link, not sure if it's true. https://theintercept.com/2020/11/24/congress-override-supreme-court/

Thanks Tacenda. I get the idea of congress overturning a SC decision, but what I’m concerned about is a president who does so with an executive order because he knows that his party doesn’t have the votes to use congress to do it. 

[smac97]

9 minutes ago, Ryan Dahle said:

Quote

Bodily autonomy ceases to be a legitimate argument for killing a child after the child is born, so that could be a differentiating rationale.

I agree the analogy isn't perfect. But bodily autonomy has always been a dubious argument anyways.  It doesn't logically follow that because a child is within a mother's womb that the mother therefore should have a right to terminate the child's life. It clearly isn't just the mother's body anymore. 

I'm not sure I would characterize it as "dubious."  "Insufficient" or "not dispositive" would be my preference.

The government encroaches onto bodily autonomy in all sorts of ways.  We prohibit the consumption/use/injection of certain substances into our bodies.  We impose age restrictions for alcohol and tobacco.  Some states impose age restrict on tattooes.  The government retains the right to draft citizens into the military and put them in harm's way.  We have millions of bodies living in prison, with probation/parole restrictions, and so on.

"Bodily autonomy" is a pretty good argument, but not sufficient by itself.  It needs to be coupled with the "Right to Privacy," and probably a few more justifications, I think.

In the end, though, I think Dobbs was quite correct in reversing the massive blight on American jurisprudence that is/was Roe and Casey.  Abortion is a matter for the states.

9 minutes ago, Ryan Dahle said:

I suppose, in my fictitious scenario, that the somewhat analogous argument is that since the parents created the child, then they should have a right to kill the child. After all, it is their child, somewhat like it is a mother's body.

Personhood kicks in after birth.  That seems to be a pretty sturdy bulwark so far.  Very few jurisdictions are willing to go too far down the eugenics road once the child is born.  Iceland was brazenly proud of having eliminated Down Syndrome in that country, having accomplished that by aborting every baby who has it.  But if one were to be born, I don't think they would kill her.

One notable exception: The Netherlands has "The Groningen Protocol for newborn euthanasia."  This article does a pretty good job of explaining the inherent "slippery slope" risks it carries.

And another (from 2013) : After-birth abortion: why should the baby live?  Some excerpts:

Quote

Abortion is largely accepted even for reasons that do not have anything to do with the fetus' health. By showing that (1) both fetuses and newborns do not have the same moral status as actual persons, (2) the fact that both are potential persons is morally irrelevant and (3) adoption is not always in the best interest of actual people, the authors argue that what we call ‘after-birth abortion’ (killing a newborn) should be permissible in all the cases where abortion is, including cases where the newborn is not disabled.
...
Although it is reasonable to predict that living with a very severe condition is against the best interest of the newborn, it is hard to find definitive arguments to the effect that life with certain pathologies is not worth living, even when those pathologies would constitute acceptable reasons for abortion.
...
Nonetheless, to bring up such children might be an unbearable burden on the family and on society as a whole, when the state economically provides for their care. On these grounds, the fact that a fetus has the potential to become a person who will have an (at least) acceptable life is no reason for prohibiting abortion. Therefore, we argue that, when circumstances occur after birth such that they would have justified abortion, what we call after-birth abortion should be permissible.

In spite of the oxymoron in the expression, we propose to call this practice ‘after-birth abortion’, rather than ‘infanticide’, to emphasise that the moral status of the individual killed is comparable with that of a fetus (on which ‘abortions’ in the traditional sense are performed) rather than to that of a child. Therefore, we claim that killing a newborn could be ethically permissible in all the circumstances where abortion would be. Such circumstances include cases where the newborn has the potential to have an (at least) acceptable life, but the well-being of the family is at risk. Accordingly, a second terminological specification is that we call such a practice ‘after-birth abortion’ rather than ‘euthanasia’ because the best interest of the one who dies is not necessarily the primary criterion for the choice, contrary to what happens in the case of euthanasia.

Failing to bring a new person into existence cannot be compared with the wrong caused by procuring the death of an existing person. The reason is that, unlike the case of death of an existing person, failing to bring a new person into existence does not prevent anyone from accomplishing any of her future aims. However, this consideration entails a much stronger idea than the one according to which severely handicapped children should be euthanised. If the death of a newborn is not wrongful to her on the grounds that she cannot have formed any aim that she is prevented from accomplishing, then it should also be permissible to practise an after-birth abortion on a healthy newborn too, given that she has not formed any aim yet.

There are two reasons which, taken together, justify this claim:

1. The moral status of an infant is equivalent to that of a fetus, that is, neither can be considered a ‘person’ in a morally relevant sense.

2. It is not possible to damage a newborn by preventing her from developing the potentiality to become a person in the morally relevant sense.

We are going to justify these two points in the following two sections.

Read on if you can.  Just be prepared to be revolted.  Godwin's Law applies to nearly everything these people have to say.  Wikipedia sums it up this way:

Quote

The argument of the article is as follows:

1. Abortion is justified because of the moral status of foetuses (their shared status of 'potential persons' is not morally relevant)
2. Abortion is justified when the foetus has severe abnormalities or would be an intolerable burden to its mother/family (at least when adoption is not a viable option due to not being in the best interests of actual persons)
3. Newborns have the same moral status as foetuses (there are no morally relevant differences between them), if they suffer unbearably
4. Newborns may be born with severe abnormalities (that cannot always be diagnosed before birth) and can be an intolerable burden on their mother/family (including when circumstances change after birth)
5. Therefore, "after-birth abortion" (euthanasia of newborns) can be justified in some circumstances

It sure would be interesting to see someone like Meadowchik, of the "abortion on demand, period" school of thought, respond to the above article.  

I find the foregoing substantively and morally indistinguishable from, well...

Thanks,

-Smac

[smac97]

31 minutes ago, Calm said:

Not a pro choice activist…

Because the child can be removed from the mother’s care and that care taken over by another, thus allowing the mother to choose to no longer be involved in the child’s life with no physical harm done to the child by that removal.  This is impossible with a pregnancy.

The article I cite above addresses this point by arguing that the distinction fails because, well, you'll have to read it.  Here's the particular argument they lay out:

Quote

Adoption as an alternative to after-birth abortion?

A possible objection to our argument is that after-birth abortion should be practised just on potential people who could never have a life worth living. Accordingly, healthy and potentially happy people should be given up for adoption if the family cannot raise them up. Why should we kill a healthy newborn when giving it up for adoption would not breach anyone's right but possibly increase the happiness of people involved (adopters and adoptee)?

Our reply is the following. We have previously discussed the argument from potentiality, showing that it is not strong enough to outweigh the consideration of the interests of actual people. Indeed, however weak the interests of actual people can be, they will always trump the alleged interest of potential people to become actual ones, because this latter interest amounts to zero. 
...
We are not suggesting that these are definitive reasons against adoption as a valid alternative to after-birth abortion. Much depends on circumstances and psychological reactions. What we are suggesting is that, if interests of actual people should prevail, then after-birth abortion should be considered a permissible option for women who would be damaged by giving up their newborns for adoption.

A few additional excerpts to get the ball rolling:

This: "{H}aving a child can itself be an unbearable burden for the psychological health of the woman or for her already existing children, regardless of the condition of the fetus."

Also this: "{T}o bring up such children {with Down Syndrome} might be an unbearable burden on the family and on society as a whole, when the state economically provides for their care. On these grounds, the fact that a fetus has the potential to become a person who will have an (at least) acceptable life is no reason for prohibiting abortion.

Also this: "{W}e claim that killing a newborn could be ethically permissible in all the circumstances where abortion would be. Such circumstances include cases where the newborn has the potential to have an (at least) acceptable life, but the well-being of the family is at risk."

Also this: "If the death of a newborn is not wrongful to her on the grounds that she cannot have formed any aim that she is prevented from accomplishing, then it should also be permissible to practise an after-birth abortion on a healthy newborn too, given that she has not formed any aim yet."

Also this: "The moral status of an infant is equivalent to that of a fetus in the sense that both lack those properties that justify the attribution of a right to life to an individual."

Also this: "Both a fetus and a newborn certainly are human beings and potential persons, but neither is a ‘person’ in the sense of ‘subject of a moral right to life’."

Also this: "Merely being human is not in itself a reason for ascribing someone a right to life."

Also this: "{H}ardly can a newborn be said to have aims, as the future we imagine for it is merely a projection of our minds on its potential lives ...  Therefore, the rights and interests of the actual people involved should represent the prevailing consideration in a decision about abortion and after-birth abortion."

Also this: "It is not possible to damage a newborn by preventing her from developing the potentiality to become a person in the morally relevant sense."

Also this: "If a potential person, like a fetus and a newborn, does not become an actual person, like you and us, then there is neither an actual nor a future person who can be harmed, which means that there is no harm at all."

Also this: "Although fetuses and newborns are not persons, they are potential persons because they can develop, thanks to their own biological mechanisms ... A consequence of this position is that the interests of actual people over-ride the interest of merely potential people to become actual ones. ... The alleged right of individuals (such as fetuses and newborns) to develop their potentiality, which someone defends, is over-ridden by the interests of actual people (parents, family, society) to pursue their own well-being because, as we have just argued, merely potential people cannot be harmed by not being brought into existence."

Also this: "Actual people's well-being could be threatened by the new (even if healthy) child requiring energy, money and care which the family might happen to be in short supply of.  Sometimes this situation can be prevented through an abortion, but in some other cases this is not possible. In these cases, since non-persons have no moral rights to life, there are no reasons for banning after-birth abortions."

Lovely stuff.

31 minutes ago, Calm said:

Extrapolation from a baby that is ‘portable’ to a fetus that is not doesn’t always work.  I don’t think it works in this case. This does not automatically justify abortion, but imo it invalidates the argument as inapplicable as it does not take into account the most important variable, the fetus is inside of the mother and cannot survive separation.

If you (generally speaking) are going to argue against abortion, don’t waste time on arguments that will be dismissed because they ignore/dismiss as irrelevant important details. 

Good advice.  Similarly, I think people on the "pro choice" side of the debate will need to come up with responses to things like the Groningen Protocol and the above article about "post-birth abortions."  But I don't think they will.

Thanks,

-Smac

[smac97]

39 minutes ago, bluebell said:

Thanks Tacenda. I get the idea of congress overturning a SC decision, but what I’m concerned about is a president who does so with an executive order because he knows that his party doesn’t have the votes to use congress to do it. 

Per Dobbs, "{t}he right to abortion does not fall into this category {of unenumerated constitutional rights}," so that "federal" angle is out. 

A fundamental question is whether Congress has constitutional authority to regulate abortion nation-wide.  That seems a very iffy proposition.  See here:

Quote

Congress’ Power to Regulate Interstate Commerce

Supporters of a national Roe law may also rely on Congress’ power to regulate interstate commerce. The Supreme Court has defined that power very broadly, but it has also placed limits on that power. In a 2000 case, United States v. Morrison, the Supreme Court invalidated portions of the federal Violence Against Women Act (VAWA).

The court said that the VAWA intruded into the states’ traditional police powers and that it could not be justified as a regulation of commerce. The Supreme Court could reach same result if Congress codifies Roe.

The court could reason that such a statute intrudes into the states’ traditional police powers (which a decision overturning Roe would effectively restore), and that abortions are not economic activities that substantially affect interstate commerce. To be sure, a state’s abortion laws may affect whether some people choose to migrate to (or from) that state, but the same could be said for many state laws, especially tax and education laws.

Nationalizing abortion laws on the theory that uniformity removes an obstacle (or incentive) to interstate migration would open the door to federally mandated uniformity in these other areas as well. The Supreme Court may conclude that basic principles of federalism require keeping that door shut.

What Congress Can Do

There is little doubt that Congress could enact laws prohibiting states from interfering with the right of women to travel out of state for procedures not available in their home states. But insofar as Congress may seek to trump state abortion restrictions, applicable within the state’s own borders, the Supreme Court may view any such federal statute as unconstitutional. By the same reasoning, of course, Congress would have no Commerce Clause authority to enact a law banning all abortions nationwide.

And even assuming Congress did have constitutional authority to regulate abortion nationwide, the chances of it crafting and passing such legislation into law are . . . pretty low.

Thanks,

-Smac

[Ryan Dahle]

27 minutes ago, Calm said:

Because the child can be removed from the mother’s care and that care taken over by another, thus allowing the mother to choose to no longer be involved in the child’s life with no physical harm done to the child by that removal. This is impossible with a pregnancy. Extrapolation from a baby that is ‘portable’ to a fetus that is not doesn’t always work.  I don’t think it works in this case. This does not automatically justify abortion, but imo it invalidates the argument as inapplicable as it does not take into account the most important variable, the fetus is inside of the mother and cannot survive separation.

If you (generally speaking) are going to argue against abortion, don’t waste time on arguments that will be dismissed because they ignore/dismiss as irrelevant important details. 

I am personally against abortion, generally speaking, both because of my religious views and my personal moral intuition. I'm not altogether sure what I think the legal situation should be regarding this issue. I'm still pondering and thinking about that.

Also, I'm not really out to "argue against abortion" per se. I'm just trying to explore and probe the different arguments and rationales used to support it or oppose it. I think that you are right that the analogy breaks down in this important way. But it helped me consider this distinction more closely. Which is one benefit of analogies and hypotheticals. As they break down, they help reveal crucial distinctions. Still, I think the analogy is valuable in other ways, not because it perfectly correlates to the abortion debate, but because it reveals that pro-choice and pro-life advocates may not be all that different from one another after all. At least, I think it would reveal that to some extent. 

[bluebell]

32 minutes ago, smac97 said:

Per Dobbs, "{t}he right to abortion does not fall into this category {of unenumerated constitutional rights}," so that "federal" angle is out. 

A fundamental question is whether Congress has constitutional authority to regulate abortion nation-wide.  That seems a very iffy proposition.  See here:

And even assuming Congress did have constitutional authority to regulate abortion nationwide, the chances of it crafting and passing such legislation into law are . . . pretty low.

Thanks,

-Smac

Which is why using an executive order to get around congress feels sketchy.

[Danzo]

36 minutes ago, smac97 said:

Per Dobbs, "{t}he right to abortion does not fall into this category {of unenumerated constitutional rights}," so that "federal" angle is out. 

A fundamental question is whether Congress has constitutional authority to regulate abortion nation-wide.  That seems a very iffy proposition.  See here:

And even assuming Congress did have constitutional authority to regulate abortion nationwide, the chances of it crafting and passing such legislation into law are . . . pretty low.

Thanks,

-Smac

The interstate Commerce Clause has been enlarged to the point you can just about do anything with it. 

[mtomm]

4 hours ago, Kenngo1969 said:

I've never said you cannot have an opinion.  You don't need my permission, or that of anyone else, to have an opinion, especially not as this is a discussion board.  I do think that you ought to be prepared for people to disagree with you (or is that not allowed?  ), but, whatever. 

Disagreeing  and shaming not the same thing. 

But this is such a bad derail and I apologize to the board for my part in it! 

[Kenngo1969]

26 minutes ago, mtomm said:

Disagreeing  and shaming not the same thing. 

But this is such a bad derail and I apologize to the board for my part in it! 

As I mentioned earlier, the Good Justice and I have something (albeit an unfortunate, ignominious "distinction") in common: Both of us have been the subject of spurious allegations of sexual harassment.  And, with all due respect, whether it be my accuser or his, if either one of them told me the sun is up, I would have to fight the urge to look out the nearest window just to make sure.

So I suppose if you knew me personally, you would have equal reason to place me in the category into which, apparently, you have placed Justice Thomas (or, perhaps, as you have demonstrated in the case of Justice Thomas, a personal acquaintance isn't necessary for you to do so).  If that is the case, I suppose I would wear your indictment of me as something of a badge of honor: Just as one can tell a lot about a person by who the person's friends are, one can tell a lot about a person by who the person's enemies are.

[smac97]

2 hours ago, Danzo said:

The interstate Commerce Clause has been enlarged to the point you can just about do anything with it. 

I dunno.  From one of my favorite law wonks (Glenn Reynolds) : 

Quote

States won’t be able to ban interstate travel for the purpose of getting an abortion because interstate travel is a separate constitutional right. Congress will not be able to guarantee a right to abortion because its 14th Amendment power to enforce the rights guaranteed by the 14th Amendment doesn’t apply to abortion, which the Court has found isn’t protected under the 14th Amendment. It will not be able to either protect abortion or ban it under its commerce power because abortion isn’t interstate commerce, and is a traditional subject of state regulation.

And here: Can Congress resurrect Roe if it’s overturned? Well, it could try.

Quote

The Women’s Health Protection Act defines abortion as interstate commerce

The WHPA announces as its purpose “to put an end to harmful restrictions, to federally protect access to abortion services for everyone regardless of where they live, and to protect the ability of health care providers to provide these services in a safe and accessible manner.”

By framing the right to abortion as a matter of access to abortion services, the WHPA is taking a page from another major civil rights bill, the Civil Rights Act of 1964. When Congress sought to enforce anti-discrimination requirements in public accommodations such as hotels, public transit and restaurants, it grounded its authority to do so in the Commerce Clause. This clause gives Congress the power “to regulate commerce with foreign nations, and among the several states and with the Indian tribes.”
...

This time around, Congress would again define access to abortion as a case of interstate commerce. People travel across state lines to procure abortion services; medical equipment that provide abortions all moves in interstate commerce; and licensing, training and education for abortion providers all involve interstate travel and commerce. Proponents hope that by codifying Roe in this way, a new federal law guaranteeing the right to abortion would survive the Supreme Court’s inevitable review.

But the Supreme Court has narrowed Congress’s commerce power significantly since the mid-1990s

Unfortunately for proponents, the Supreme Court has become much, much more conservative since 1964. As I detail in “Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution,” Congress’s commerce power has been one of the primary targets of a conservative legal movement eager to limit the regulatory scope and power of the federal government.

After upholding nearly every law Congress passed under the Commerce Clause from 1937 onward, the increasingly conservative Supreme Court started to set limits on the commerce power in the mid-1990s. For example, in U.S. v. Lopez (1995), a five-justice conservative majority ruled that the Gun Free School Zones Act exceeded Congress’s power under the Commerce Clause. Just a few years later, in U.S. v. Morrison (2000), the Supreme Court struck down parts of the Violence Against Women Act, despite significant findings that gender-motivated violence had an impact on interstate commerce.

And in the 2012 Obamacare case, Chief Justice John G. Roberts Jr. struck down the individual mandate to purchase health insurance as exceeding Congress’s power under the Commerce Clause, even though he went on to uphold the mandate under the constitution’s grant to Congress of the power to tax.

With these negative Commerce Clause decisions and an even more conservative Supreme Court supermajority installed for the foreseeable future, it is likely that the same five justices who appear poised to overrule Roe v. Wade would find reason to strike down the Women’s Health Protection Act as exceeding Congress’s power.

And of course, there is the whole "double-edged sword" thing.  If Congress can legislatively authorize abortion nationwide, it can also legislatively prohibit it nationwide:

Quote

The power to protect abortion through federal law also would include the power to prohibit abortion

It’s possible that the Supreme Court would choose to uphold a WHPA, if passed and signed. Even with these unfavorable rulings, there is ample Supreme Court precedent to support Congress’s regulating abortion through interstate commerce, as law professor Julian Mortenson outlines.

But there is another reason that Democrats in Congress may not want to codify Roe through legislation.

If the Supreme Court rules that Congress has the power to protect abortion through legislation, Congress also would have the power to prohibit abortion through legislation. As Chief Justice John Marshall famously concluded in an 1824 Commerce Clause case, the power to regulate necessarily includes the power to prohibit.

Ultimately, any victory for abortion rights the Democrats might claim with the WHPA would be temporary, lasting only until Republicans regained control.

Do the pro-abortion folks really want to roll the dice on that?

Or might they be better off fighting abortion battles on a state-by-state basis?

Thanks,

-Smac

[smac97]

2 hours ago, bluebell said:

Which is why using an executive order to get around congress feels sketchy.

Yeah.  That would not, I think, withstand judicial review.  

Thanks,

-Smac

[rodheadlee]

5 hours ago, Tacenda said:

rodheadlee, when you put it that way, of course not. But there are variables. Recently a story came out about a 10 year old that got pregnant by her rapist, and she was 6 weeks pregnant, I believe. Well, she wan't allowed to get an abortion in her state but would have to fly to a state that does allow for cases of rape. She's 10 for crying out loud!

That's an argument from the edges. There is always an exception from the norm. 

Was the father arrested?

[Meadowchik]

13 hours ago, Ryan Dahle said:

Here is an interesting thought experiment. 

Imagine that there is a group out there that is strongly advocating for the legality of parents terminating the lives of newborns and infants. Rather than having parents carry out the grisly deed on their own, centers are available where a medical professional can safely dispose of the child, with minimal pain and suffering involved. The group's rationale is that since an infant is hardly the same as a functioning adult, the infant's life simply shouldn't be valued in the same way. After all, most infants probably aren't even as intelligent as many animals that humans regularly slaughter and use for food. For this reason, the group strongly supports the legality of parents electively killing their own children up until the time when a child begins to show signs of intelligence that seem superior to most other creatures in the animal kingdom (which, as one might expect, is undoubtedly a debatable threshold).

Not only does the group feel that infanticide should be legal, but they conceive of it as a fundamental human right. Taking care of children can be very difficult. Mothers especially are often disproportionately and unfairly burdened by the responsibility of an infant's care. Thus, the child's very existence is seen as a potential threat to the wellbeing of its parents. The group further argues that since the mother and father essentially created the child's life, they should have the legal right to remove that life. The state shouldn't be allowed to step in and tell the parent what to do with their own children. 

I'm guessing that many aligned with the pro-choice movement today would strongly disagree with this fictional group's ideology. Yet I would be curious as to what rationale a pro-choice advocate might use to push back against this more extreme version of pro-choice, which couldn't in turn be reasonably leveraged against their own ideology. 

It's not a compelling thought experiment imo because the baby lives outside her body, and she can forfeit her parental rights and give up the baby to state care.

The key principle from the collective side, as in what *all of us* do, is to create a state that lessens hardship for people during pregnancy and beyond, and helps provide access to essential care. 

[Meadowchik]

13 hours ago, Ryan Dahle said:

I agree the analogy isn't perfect. But bodily autonomy has always been a dubious argument anyways. It doesn't logically follow that because a child is within a mother's womb that the mother therefore should have a right to terminate the child's life. It clearly isn't just the mother's body anymore. 

It is her body with a body inside it in total dependence on her body, and she's the only one (between her and the unborn) who can act. She must act autonomously and does in reality. The problem is that people disrespect that fact.

[Rivers]

9 hours ago, Meadowchik said:

It is her body with a body inside it in total dependence on her body, and she's the only one (between her and the unborn) who can act. She must act autonomously and does in reality. The problem is that people disrespect that fact.

Comatose people also lack autonomy.  

[Hamba Tuhan]

On 7/9/2022 at 5:44 AM, Tacenda said:

Recently a story came out about a 10 year old that got pregnant by her rapist, and she was 6 weeks pregnant, I believe. Well, she wan't allowed to get an abortion in her state but would have to fly to a state that does allow for cases of rape. She's 10 for crying out loud!

'Doubt cast over Joe Biden's harrowing story of 10yo rape victim'.

[Meadowchik]

19 hours ago, Rivers said:

Comatose people also lack autonomy.  

Not sure what your point is. 

Comatose people are not inside someone else's body.

[Tacenda]

2 hours ago, Hamba Tuhan said:

'Doubt cast over Joe Biden's harrowing story of 10yo rape victim'.

Hmm, the only thing I can come up with is that they want to keep the girl's identity hidden. But still, I'm kind of skeptical now too. 

[Meadowchik]

13 hours ago, Obehave said:

Anyone in a position to ensure someone else's survival would have the same responsibility to help that person survive.

Are you saying that anyone who is in a position to save someone's life has the moral and legal obligation to do so?

13 hours ago, Obehave said:

Imagine yourself laying on the ground holding onto a woman's hand as she hangs over the edge of a very high cliff. If you let go of her hand she will fall and die. How the 2 of you got into that position would be irrelevant at that point in time. Suppose you decide to let go of her hand because you think you have much better things to do with your time than to hold onto her hand. You could continue to hold onto her hand but you would be choosing not to do that. 

This doesn't sound well thought out. It's also a very specific example that you created. And obviously the person trying to hold on to the other might not be able to hold on forever, or able to pull them up. They could also get pulled over the cliff as well. They might also have physical or mental limitations that prevent them from being able to safely help even under the best outcome. They could face significant risk to life by helping in this case

Regardless, trying to compare it to pregnancy is absurd, because of the fundamental differences: in pregnancy, someone is living inside another person, depending on that person's body to exist and grow. Also, in pregnancy, the unborn's presence automatically puts numerous types risk on the mother.

13 hours ago, Obehave said:

A woman who chooses to have sexual relations with a man and by that voluntary act becomes pregnant should take responsibility for her decision by helping that person survive. Her decision helped to create that person. Choosing to let that person die would be wrong. The man in that situation should also be held accountable and he should also take responsibility for his actions.  This isn't something either one of them should be able to drop or forget about because they would rather just not have to deal with it anymore 

Consent to sex isn't consent to pregnancy. 

I think there is a better application of the cliff example:

The person holding on to the edge, dangling, might represent a woman who is in a desperate position because of the circumstances of pregnancy. That person is holding another dangling person with one hand and the cliff with the other. You're walking by, though, and you see her situation and you're concerned. You rush off to the mayor's office and insist the city makes a law that people hanging off cliffs and holding other people are not allowed to let them go. You make it illegal. Then you go home to your bed and sleep very well. You have done a good deed! It's now going to be illegal for desperate cliff-hanging people to let go of other people! 

You don't wonder what happened to the people you saw today who were hanging off the cliff.  You have done your part.