Of course the oral arguments yesterday were basically all anyone wanted to talk about.

And while I generally not only avoid (intentionally) writing on abortion -- on purpose -- but also strongly frown upon it on my system in general this is an exception, simply because the USSC heard the case.

So here's my perspective on it.

(Incidentally, if you haven't read the original decision -- the whole thing -- don't comment on this post.  Go look up the decision and read it first, because if you don't you're risking a banhammer if you cannot square your point of view against the existing precedent and historical record contained therein, which is extraordinarily wide-ranging.  Indeed, I doubt there is a USSC decision that comes anywhere near it in terms of historical and analytical context within the pages.  Consider yourself fairly warned.)

Roe itself divided abortion about the same way medicine and human development divides it -- into three portions.

In the first (trimester), abortion was ruled a matter of personal conscience -- period.

In the second (trimester) abortion was ruled a divided case; arguments could be made either way, but the balance tilted toward choice.

In the third (trimester) this was no longer true and the balance tilted the other way.

The only absolute prohibition found in Roe was that all-circumstance bans on the procedure were per-se unconstitutional.

Of course people have tried to move those goalposts in both directions ever since -- but the above is what the court actually held.  Go read it for yourself; don't take my word for it.  You cannot hold an informed opinion on Roe without knowing what the decision actually says.

Medical art and science has come a long way since then.  There were no $1 drug-store pregnancy tests in 1969.  Yes, they really are a dollar today; WalMart sells them for a literal 88 cents.  Of course you can pay a lot more but you don't have to and all of the at-home, private and early ones work the same way; linear paper chromatography, which is extremely accurate and cheap.  There is zero argument that any woman cannot determine in less than five minutes if she is pregnant at any point in time for approximately the price of a candy bar and there is no place in this nation that access to said technology is not trivially available.  Simply put nobody can make an argument that "access" to this fact -- pregnant or not -- is "difficult" or "expensive" for any woman in the United States today.

This was not true in 1969; extraordinarily cheap at-home tests that could be bought anywhere for pennies did not exist.

There are also medical abortifacients today as well.  They too are readily available.  As with all medical devices and drugs there are risks and if it goes badly you may wind up in the hospital or worse, but that is true of a procedural abortion as well.  There were no approved options of this sort in 1969 either; the only option was procedural which is effectively a surgery.  Leave aside the unsafe drug/supplement/procedural options; we are talking about approved and demonstrably safe things here, not back-alley coat-hanger jam-fests.

Between these two facts no woman of menstruating age has any argument whatsoever that at any time they (1) cannot determine if they're pregnant and (2) cannot do anything about it if they are for weeks or months.  This is a radical change from the state of medical science in 1969.

Corner cases make bad law in the general sense.  Those people screaming about a right to "abort" a child that has its head sticking out of the vagina are in the position of trying to make such an argument.  The other extreme would force a 15 year old who has been raped to carry and bear the child of her rapist.

I cannot support either of those extreme positions; from any sort of analytical point of view they're both wrong.

I can reasonably debate pretty much any position inside of the two corners, but if you're on either of those two extremes then you and I have no common ground to find.  I will no more support infanticide than I will support forcing a women who is raped to be effectively raped again every day of her life from that point forward.

I suspect what we're likely to see, given the argument put forward in the court and the questions from the Justices is a redefinition of Roe rather than striking it entirely.

In short what I expect is a returning of the precedent to its original boundaries with an underline on them.

I could be wrong, and second-guessing the Supremes from their questions is a losing bet far more than you'd think but that's my read of it from the questioning and the arguments presented.

In other words: In the first fifteen weeks, have at it.

Beyond that point it is a State's right issue and the various states may put in place whatever regulatory environment they wish, up to and including a complete ban.

That doesn't trash Roe; it in fact restates it comporting with the advances in medical science over the last 50 years, specifically the trivial capacity for any woman to know if she's pregnant at any time at essentially zero cost and the capacity to pharmaceutically terminate a pregnancy in those first few weeks.  Not much is different in terms of cost between a medication and surgical abortion -- much of this is simply due to the manufacturers of the pills charging what they can, and what they can is right about what it costs to have the same thing done in a clinic by other means.  Thank our monopolist medical system for that; I penned a very long article, and part of a book ten years ago, outlining how to fix that problem.

I'm sure there will be jurists on both corners of the debate among the nine but you need five votes for an opinion to carry, and I suspect that the above is how you find them.  I doubt you can get five votes to kill Roe entirely.  Perhaps, but I doubt it.  When push comes to shove I don't think you can find five votes to condemn a raped teen to carry and bear her rapist's child -- nor should we permit that sort of insanity to become law as a society.  I'm equally sure you can't get five votes for allowing a pregnant woman to abort a child that has its head sticking out of her vagina.

But I bet you can find five votes, from the questions asked, to draw a double underline that abortion prior to 15 weeks is none of the government's damn business and return everything beyond that point to State jurisdiction.

That would not actually prevent any woman from obtaining an abortion who wanted to but would place the responsibility for (1) determining she is pregnant prior to expiration of that time on her and (2) slam the door on the fingers of everyone on both extreme ends of the spectrum.  We'd still have states with "abort at any time" laws -- but you'd have to travel there.  That's Federalism; the good ideas flourish and the bad ones -- and those employing them -- rot.

Reproduction is arguably the most-adult thing someone can do.  We expect adults to be competent to contract, to manage their own personal affairs and to choose their lifestyle, education and upkeep as they see fit.  Producing another human being is arguably a more-serious decision than any of those others, and should come with the same expectation of sober contemplation. 

Certainly, more than two months after a woman's last period is sufficient time to (1) contemplate such and (2) obtain whatever remedy one might choose, if she wishes to.

That sort of decision is going to make everyone unhappy -- except for people like me, who will find that there are no really good answers to this question on either extreme end of the argument and thus, that everyone will be to some degree unhappy means you pretty-much got it right.

That's what I think we're going to get.

If we do get that a beneficial side effect is that it might also force both extreme ends to bring the political pressure to bear required to destroy the medical monopolists, such that any woman who is even a day late and has had sex in the previous two months can spend $5 on two pills over the counter without a prescription and, if it turns out she really is pregnant rectify what she deems "undesired" with no more muss and fuss than a slightly-heavy period -- exactly the same outcome, in fact, that happens if a defective zygote gets implanted and, in the first week or so, the body rejects it.