Where I Believe The Abortion Issue Is Headed
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2019-05-20 07:40 by Karl Denninger
in Social Issues , 337 references Ignore this thread
Where I Believe The Abortion Issue Is Headed*
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So we have Louisiana poised to sign an anti-abortion Bill, Alabama has just passed one, and there are others.

On the other hand as I noted New York and Virginia started this latest round of insanity, with both states basically attempting to declare that a child in the process of being born could be aborted.  Then the US House refused to pass a bill that would require a fetus that survived an abortion attempt to be given medical care as a child.

I don't know how much more-clear you can get than that as to intent; the House clearly stated that a born infant, who was attempted to be aborted but survived, has no right to life even though it is now independently alive outside of the mother.

Essentially, the left -- all of it, including all elected Democrats in Congress, have declared that there is no such thing as a baby until and unless the mother declares that it is.  At any point prior to that declaration she can declare it nothing more than an unwanted growth irrespective of that "unwanted growth's" ability to survive independently, independently of her negligence, or independently of the random odds of survival, which said child beats, while she's actively trying to kill it.

Let's cut the crap; the left's position on this is transparent and obvious: A woman who doesn't want the financial and personal costs of raising a child must have the ability to evade that at any moment up to the baby's first breath, no matter what happens from that instant in time forward.  She may defer that decision through personal avarice, negligence or even intentional misconduct up to that moment in time and none of that bears on the merits of the decision.

At the same time a man has no rights whatsoever, even if his sperm is stolen from a used condom.

The far right's position is equally-clear: Your legs were open if a women or your pants off (or at least unzipped) if a man.  Tough crap; you undertook an adult act, now behave like an adult.  If you got raped that's unfortunate and a criminal act but even under that circumstance it's not the baby's fault so you don't get to kill the child.  Go after the rapist.

These are polar opposite positions.

The USSC in Roe, however, played Solomon and "split the baby" so to speak.

And when these laws get to the USSC, and they shall as they're intended to do exactly that it is my belief that the Court will do the logical and appropriate thing.

Specifically, I don't think Roe falls.  In fact I don't even believe that despite the statements from some of these state legislatures they expect Roe to fall.  They may wish it but I doubt very much they expect it to.

But I do believe the USSC will send back these laws with a remand consistent with Roe.

Let me remind you what Roe actually holds:

  • In the first trimester a woman has the presumption of supremacy for two reasons -- personal medical privacy and the fact that no 1st trimester fetus can survive outside the womb.  That is, the fetus is inextricably tied to the woman in question and if she acts as an adult, having undertaken an adult act or as a victim of a crime implicating an adult action forced upon her, she, in concert with a physician that elects to do so under his rules of conscience has the right to stop the progression that would otherwise lead to a birth.

  • In the second trimester there is a balance of harms and benefits to the woman which is left to the states to decide and regulate, with the exception found below (that is, a state cannot require a woman to sacrifice her life.)  That is, the people of the 50 states have the right to tilt the scale of supremacy in either direction provided they can justify it on the basis of maternal health. There are likely to be 50 different answers depending on the specifics of the circumstances found in said states -- and that's constitutional.  This balance of harms and benefits test is logical because any woman who desires to know she is pregnant before the expiration of the first trimester may discover same and by that point she has had a reasonable amount of time to contemplate the risks and benefits of both paths available to her in the context of both state law and the regulation of medical practices within a given state.

  • Beyond fetal viability (which is almost-exactly concordant with the start of the third trimester) the states have the right to put into law a presumption that the fetus has a right to live.  At this point the woman has decided either through negligence or intentional action to continue the pregnancy for two thirds of the requisite time.  In addition with each passing day it is increasingly likely that should there be a birth the child can survive independently of that specific woman; in other words it in the event of delivery said child is no more or less dependent than any other baby in that anyone can feed, clothe, diaper and protect it; there is no longer a biological requirement that a given specific woman do so.  Exactly where that line is changes over time but that it certainly occurs somewhere early in the third trimester is a fact.  However, even here the duty is not absolute: A woman is not required to sacrifice her life for said soon-to-be--infant, any more than you are required to stop and render aid to a motorist in a crash.  In fact there is no circumstance, not even under admiralty law on the sea, where you're required to sacrifice your own life to save another.  You may choose to, but you're not required to.  Therefore absent such a clear requirement in trade -- life-for-life or clear and convincing evidence that the mother will have her health severely and even permanently harmed -- states are fully within their rights to bar as a matter of law all third-trimester abortions.

That's what Roe found folks.  It did not confer an absolute right to an abortion at any time.  The Supreme Court has never issued such a ruling.

Ever.

The screaming liars on the left have claimed that Roe in fact goes all the way to birth -- and even during birth.  This is flat-out nonsense.  Here is what was actually held in Roe, from the actual text of the decision:

3. State criminal abortion laws, like those involved here, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a "compelling" point at various stages of the woman's approach to term. Pp. 147-164.

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician. Pp. 163, 164.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. Pp. 163, 164.

(c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. Pp. 163-164; 164-165.

4. The State may define the term "physician" to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined. P. 165.

There is no unrestricted right to abortion, as found by Roe, beyond the first trimester.

Period.

A State may therefore find that abortion beyond the end of the first trimester implicates maternal health, including mental health, damaging same, and so regulate it -- including a prohibition except where the manifest trade-off mitigates otherwise.

A state may not, in other words, enact a law that requires a pregnant woman to sacrifice herself for the fetus she is carrying.  However, beyond the first trimester a state may find as its legislature determines on the balance of harms.

Further, since the states are explicitly in Roe reconfirmed in their power to license physicians and thereby set standards for the conduct of medical practice the State can determine what appropriate medical judgement is -- in other words a State is fully within its rights to declare, for example, that "health" in this context means severe and permanent physical disability (for example) and not something such as "well she doesn't have any money therefore that implicates her health."

The State is also empowered to prohibit any and all abortions not performed by a physician defined by the licensing and practice scheme within in the State.

Note that fetal viability is medically defined as the point where there is a 50% rate of survival.  This is approximately 24-25 weeks or during the sixth month of pregnancy.  By the 27th week the rate of survival is roughly 90% and survival beyond that is >95%.

Therefore an appropriate remand on such a law at the USSC would be:

  • Prohibitions on abortion at a state level prior to the passage of three months from last menstruation are inconsistent with Roe and void.

  • Prohibitions at a state level beyond three months may be enacted provided they comport with state-licensed medical practice rules that protect maternal health, provided that they cannot require a woman to continue to carry a pregnancy that, in the reasonable opinion of licensed physicians, will kill her.

  • States may, beyond fetal viability, which is approximately congruent with the third trimester, ban the procedure entirely except where the mother's life or, congruent with the above objective medical licensing standards, serious maternal health issues are implicated.  Note that this does not create a "carve out" for economic or speculative impact (e.g. "psychology") such as, for example where a fetus is known to have a material but survivable defect or deformity.  A state may choose to permit abortion in such a circumstance but is not required to permit it.

That's what I expect the USSC to hold as it is entirely consistent with Roe and yet at the same time upholds most of what these states seek to do.  As such "heartbeat" laws are likely unconstitutional -- but just barely, by a couple of weeks, and as such instructions on a remand would move that barrier to 14 weeks after the initiation of last menstruation.

That decision would in fact not eviscerate Roe -- such a judgment would reconfirm Roe, and leave the States in the position of setting enforceable and definitive medical standards and licensing requirements defining the balance of harms tests for maternal health and the protection (or lack thereof) for fetal life which they are explicitly empowered under Roe to do.

It would "reset" and underline what has been a rampant and outrageous pack of lies by the left as to what Roe actually held -- a good thing that has been needed for the last three decades -- while at the same time moving the barrier on the "heartbeat" people to a legally-defensible place in conformity with Roe itself.  While that change would be significant all-in the states that enacted "heartbeat" legislation would likely find it to be a win as they'd get 90% of what they enacted and which is almost-exactly what Roe first put into place.

Alabama would be the sole exception: they would be forced to accept Roe "as written."

In addition such a decision does not implicate the 1st Amendment (e.g. establishment) where a decision to toss Roe would have severe trouble in that regard.  The Establishment Clause issue can probably be worked around but there's utterly no reason for the Court to twist themselves into knots to go there, and as a result I don't expect them to.

We'll see.

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