June 28, 2016

Linda Greenhouse notes the "dry, almost clinical tone" and lack of "poetry" in the Supreme Court's pro-abortion-rights opinion.

The case was about clinics — Texas imposed a requirement that led to the closure of many abortion-providing clinics — so what was notable about a clinical tone?

As Greenhouse puts it:
The dry, almost clinical tone could scarcely be more different from the meditative mood the Supreme Court struck the last time it stood up for abortion rights, in Planned Parenthood v. Casey, 24 years ago this week. “Liberty finds no refuge in a jurisprudence of doubt” was Justice Anthony M. Kennedy’s mysterious opening line in that opinion.
Greenhouse does not quote the most poetic/mysterious/meditative lines in Casey (which even contain a variant of her word "mysterious"):
These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.
And Greenhouse misstates the authorship of Casey. She wasn't quoting an opinion for a majority of the Court that was written by Justice Kennedy, but an opinion announcing the judgment of the Court that was joined by only 3 Justices and that was written not by Kennedy alone, but by Kennedy along with Sandra Day O'Connor and David Souter. However that "poetry" was created, only 1/3 of the "poets" remain on the Court.

Kennedy has had many years to think about whether that "exalted" tone is a good idea. (I put "exalted" in quotes, because that's what Justice Scalia called it, in his dissenting opinion in Casey.) And the 4 Justices who joined Kennedy yesterday were not around for the poetic exaltation of privacy rights that seemed appropriate to O'Connor, Souter, and him back in 1992. Ginsburg, Breyer, Sotomayor, and Kagan are all post-Casey additions.

Kennedy, as the senior Justice in the majority, had the power to take the writing assignment for himself. He opted to hand it to Stephen Breyer, probably the least likely in the set of 5 to infuse it with inspiration. If the opinion reads as clinical, it's a choice, by Kennedy and Breyer, to make it so.

The others — the women, interestingly enough — could have written poetically in concurring opinions. Only Justice Ruth Bader Ginsburg chose to write a concurrence, but it was very short and not particularly exalted, though does contain some French. ("When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety.")

And I have a problem with Greenhouse's phrase "stood up for abortion rights." I support abortion rights — and other rights too — and I don't think talking about judges standing up for abortion rights helps to preserve rights. It makes "abortion rights" sound like another political cause, and the Justices in the majority sound like the ones who simply embraced that cause, those particular rights, because they happen to like them and think they're good rights to have, quite apart from whether they are properly to be found in the legal document that's cited in the opinion.

Ironically, a clinical tone works better. It's boring and uninspiring, but it makes us the People feel that the Justices know their place, interpreting a text according to an orthodox judicial methodology. The Justices need to help us believe that they are not political, and — even more ironic — it's especially important to stoke our beliefs if they are making their choices out of their own policy preferences.

And, of course, the Justices know that our belief in the rights they talk about are fading even more quickly than usual as we look to a presidential election where it seems we are able to choose which faction of the Supreme Court will get new votes. They know they need to allay our suspicions and that any poetry in the pro-abortion-rights opinion would become a weapon for those who want to defeat the presidential candidate — Hillary Clinton — who would give them another ally in their political cause... if that's what it is.

UPDATE: Linda Greenhouse emails me about this post and I respond, here.

140 comments:

Hagar said...

But it is a political cause.

Brando said...

"Ironically, a clinical tone works better. It's boring and uninspiring, but it makes us the People feel that the Justices know their place, interpreting a text according to an orthodox judicial methodology. The Justices need to help us believe that they are not political, and — even more ironic — it's especially important to stoke our beliefs if they are making their choices out of their own policy preferences."

For the Left, the judiciary is simply a secondary legislature, there to choose which policy preferences the country should adopt. For them, the idea that the courts should be interpreting the law without regard to what policies they'd personally like to see is quaint.

amielalune said...


Come on, Ann. Abortion rights are a political cause. There is, in the real world, nothing in the Constitution that guarantees a woman's right to an abortion.

The fact that many women choose to make it a secular sacrament does not make it holy.

David Begley said...

Better to write in a clinical tone when issuing a political opinion.

MayBee said...

When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners

I find this from Ginsberg to be pretty ironic, given the particulars of the case before SCOTUS.

Think of what has happened to women when States have created almost no limits on the clinics, and how safe those legal procedures were.

traditionalguy said...

That clinical clump of cells to be removed from us forever is a full lifetime of living, loving and laughing human creativity in a poet's vision. The Supreme's needed next step is free robot surgeon machinery. HAL 9000 feels no poetry.

rehajm said...

It's poetic compared to the dirty limerick of an opinion of the Fifth Circuit, eh Linda?

David said...

"The Justices need to help us believe that they are not political, and — even more ironic — it's especially important to stoke our beliefs if they are making their choices out of their own policy preferences."

Ted Kennedy and the gang pretty much sank that approach with Bork and Thomas. That perception is not in the hands of the Justices. The left started this and they are in a good position to win. Roberts has tried to damp this down. Scalia too, by having a very articulate set of principles and following them even when they brought a "liberal" result. You saw how he was treated, in life and in death.

n.n said...

The rites of abortion to terminate [wholly innocent] human lives for wealth, pleasure, leisure, and narcissistic indulgence is sacrosanct and cannot be infringed. The State has a compelling interest to secure government revenues, democratic leverage, and to suppress the development of native/human sentiment. Planned Parenthood corporation et al have a business interest to cannibalize unwanted and inconvenient children and provide their lucrative parts to meet minority demand.

On the proposed solution of artificial wombs and testes, why not contract with Planned Parenthood and abortion clinics to secure wombs and testes in vivo? They already abort and cannibalize millions of unwanted and inconvenient human lives for component parts and cells, so why not preserve the exquisite balance of an intact human body less a functioning brain to produce new humans that will meet [class] diversity quotas? Progress.

n.n said...

If the women wrote an opinion on normalizing abortion rites, they would rightly sound like self-indulgent monsters a la Mengele, WWII era Japanese, Planned Parenthood, etc. A male opinion creates an illusion of clinical detachment that protects women's rights to hold anti-human, anti-science opinions in privacy.

Caroline Walker said...

"It is a poverty that a child must die so that you may live as you wish." -- said Mother Teresa, poetically.

Laslo Spatula said...

I am LaManza, The Abortion Whisperer.

Little One in the Womb, you must understand that you exist as a Concept, not Conception.

I know this must be hard for you to understand, but there are words and words and more words that swirl around the Meaning of Who You Are, and sometimes those words end up in your Irrelevance: this is how the World works, independent of the Universe. Words here have more Reality than you will ever have a chance to possess.

Try not to take this personally: you, after all, are not a Person until someone decides that you should be one. This is no reflection on you: you, of course, have no reflection at all, as you shall never see the Light of a Day.

You will have all the Time in the Universe to contemplate your Mother's decision to deny the World to You: take Comfort in the Fact that you are Not Alone in that.

This said, i whisper to you to Go Quietly: the World is noisy enough.

I am Laslo.

wendybar said...

Why do women fight to enable unsaniatry conditions in the name of women's rights? To protect their "holy" sacrament of abortion...which they used to claim...safe, legal, and rare...now it's just legal.

wendybar said...

unsanitary

Caroline Walker said...

"The future of humanity passes through the family." --St. JOhn Paul II. I often think of this searing, self evident truth when surveying our times and manners. has a society ever survived that placed the desires of adults as the highest and greatest good? Have you ever seen a State more invested in promoting sterile, non marital sex?

Hagar said...

It is a political issue, and not only that, it is a Us vs. Them issue that trumps any personal questions or doubts you may have as to the absolute rightness of the position the crowd you are running with have taken.

Gahrie said...

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

Make up your mind...is abortion part of this mythical right to privacy invented by the Court, or was it somehow included as part of the effort to end slavery? Is there ant evidence that the writers of the 14 Amendment had any idea that that amendment would be tortured and abused so as to create a right to kill your unborn child? (let alone create birthright citizenship)

Publius the Clown said...

It makes "abortion rights" sound like another political cause, and the Justices in the majority sound like the ones who simply embraced that cause, those particular rights, because they happen to like them and think they're good rights to have, quite apart from whether they are properly to be found in the legal document that's cited in the opinion.

But that's the problem. Abortion rights aren't found in the legal document that's cited in the opinion. Is there even any doubt about that at this point?

coupe said...

Completely off topic, but most dictionaries include faute de mieux as good English.

I don't know, or can't think of an English equivalent, but this is an example of faute and de meaning something on their own, while faute de means something different.

"through lack of; for want of; because of a lack of"

For example one of my favorite words "frappe" or a strike, or a hit, as in a typewriter key, so that if you make a typo, you faute de frappe which sounds like "What the CRAP! Another f'n typo"... but means for lack or want of a correct strike.

damikesc said...

These laws were based on a Gosnell like atrocity in TX clinics.

Gahrie said...

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.

The only Section this could be possibly referring to is:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

So is abortion a privilege, or an immunity? If you must insist that the 14 Amendment addresses the issue of abortion, surely it supports an anti abortion position, in that an abortion deprives a person of their right to life and the equal protection of the laws.

Gahrie said...

It makes "abortion rights" sound like another political cause, and the Justices in the majority sound like the ones who simply embraced that cause, those particular rights, because they happen to like them and think they're good rights to have, quite apart from whether they are properly to be found in the legal document that's cited in the opinion.

This is true on its face...and you know it even if you won't admit it. A "right" born from an entirely invented right to privacy, seeking legitimacy from an amendment outlawing slavery? It is obvious to anyone that neither the Bill of Rights nor the 14th Amendment were meant to legalize abortion, let alone create a Constitutional Right to abortion. It is precisely because there is no right to abortion to be found in the Constitution that makes it a political issue.

Paddy O said...

"...choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment"

Another irony of contemporary jurisprudence is that if the Court of the 1860s followed contemporary patterns of interpreting rights into the Constitution, there wouldn't be a 14th amendment. They would have just declared those rights already present. Which would have been a quick fix, but then wouldn't have provided a basis of rulings later on.

There's really no need at all to ever amend the Constitution again if all sorts of rights can be declared by a panel of super-citizens. It bypasses all the messiness. Gets some people what they want. But adds to a lot of increasingly unwieldy and subjective rulings which will ultimately undermine the legitimacy of the courts. And once that happens, heaven help us.

coupe said...

Hagar said...But it is a political cause.

I disagree. The removal of a fetus from the uterus has no politics.

It is, however, steeped in religion.

Removing the appendix has no politics. Performing open heart surgery has no politics. In these cases, they also have no religion, so are performed without Jesus-freaks hopping up and down and peeing in their pants.

While I agree that having your uterus vacuumed or scraped of its contents like a pumpkin, is probably an obscenity, I don't really care about these people, other than I would never marry one.

If I stick my naked penis in someones vagina and they get pregnant, then unless the pregnancy will kill her, I would not recommend anything unnatural or the use of a knitting needle at 20 weeks.

The reason is, there are thousands of women who go to bed each night unable to reproduce, and unable to find a baby to adopt. My Aunt for example adopted three children during the heyday of the postwar sexual revolution.

Thank God for horny men and loose women she said - I now have a family! Back then you just signed up at one of the asylums for unwed mothers.

The good old asylum days.

Gahrie said...

Ironically, a clinical tone works better. It's boring and uninspiring, but it makes us the People feel that the Justices know their place, interpreting a text according to an orthodox judicial methodology

But that's just it...they aren't interpreting the text according to orthodox judicial methodology. How is creating a right to privacy from an illusion from a shadow surrounding the Bill of Rights, when neither the Constitution nor the Bill of Rights even use the word privacy "interpreting the text"?

Tim said...

Not much poerty in the sanctioned killing of babies.

tim maguire said...

At the heart of liberty is the right to define one's own concept of [the] existence [of others], of meaning, of the universe, and of the mystery of [someone else's] human life.

Dress it up in all the pretty words you want.

Fernandinande said...

traditionalguy said...
HAL 9000 feels no poetry.


"Daisy Bell"

Eric the Fruit Bat said...

It's not easy coming up with a good rhyme for "dilation and curettage."

Michael said...

But for the Linda Greenhouse's of the world, it's not enough that you submit to Big Brother; you must love Big Brother - poetically, mysteriously. It was only after Winston Smith finally declared his love for Big Brother that he got the bullet in the back of his head.

Cog said...

"When a State severely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners"

In Philadelphia for 17 years women went to the Woman’s Medical Society clinic and had their abortions by an MD licensed with the Pennsylvania Board of Medicine. No one identified the clinic as “rogue” in all those years. The abortionist was Dr. Kenneth Gosnell. Texas tried to stop the next Gosnell. The Supreme Court has stopped Texas. Noted, their ruling was not poetic.

Tom said...

Hadley Arkes quite rightly said of Kennedy's opinion in Casey: "That's the sort of philosophy one finds in the better brands of fortune cookies."

Charlie said...

The decision merely exposes the lie that abortion rights have anything at all to do with women's health. The majority let their politics dictate their decision and protected abortionists from having to meet the ordinary standards that are required of other similar health practitioners. An entirely predictable verdict that props up an entirely fictional constitutional right, but one that has become a sacred rite in America.

chrisnavin.com said...

For many, if they don't have a political cause to believe in, they don't have anything else to believe in...

It's where they're getting their meaning, 'community' and life's purpose, and they aren't about to stop and examine the core truth and knowledge claims of their causes.

Consequences, contradictory evidence, new data, opposing principled points of view...ain't nobody got time for that.

Big Mike said...

And I have a problem with Greenhouse's phrase "stood up for abortion rights." I support abortion rights — and other rights too — and I don't think talking about judges standing up for abortion rights helps to preserve rights. It makes "abortion rights" sound like another political cause, and the Justices in the majority sound like the ones who simply embraced that cause, those particular rights, because they happen to like them and think they're good rights to have, quite apart from whether they are properly to be found in the legal document that's cited in the opinion. [emphasis in original]

@Althouse, thanks for this discussion, but even to some of us who support abortion rights Roe v. Wade came across at the time as being a political cause which Blackmun happened to embrace. Which, if Greenhouse had your brains, she'd understand why the abortion fight rages on 43 years later.

Fernandinande said...

Eric the Fruit Bat said...
It's not easy coming up with a good rhyme for "dilation and curettage."


Haiku to the rescue!

Unwanted baby
Dilation and curettage
Dead body down drain.

Alternate: Clump of cells down drain.

damikesc said...

In Philadelphia for 17 years women went to the Woman’s Medical Society clinic and had their abortions by an MD licensed with the Pennsylvania Board of Medicine. No one identified the clinic as “rogue” in all those years. The abortionist was Dr. Kenneth Gosnell. Texas tried to stop the next Gosnell. The Supreme Court has stopped Texas. Noted, their ruling was not poetic.

They failed.

http://www.lifenews.com/2014/03/18/doc-ruptured-20-year-old-womans-uterus-so-badly-in-abortion-she-can-never-have-children-again/

I hope the Justices can sleep at night.

cubanbob said...

tim maguire said...
At the heart of liberty is the right to define one's own concept of [the] existence [of others], of meaning, of the universe, and of the mystery of [someone else's] human life.

Dress it up in all the pretty words you want.

6/28/16, 9:38 AM"

I never would have thought the court would find legal theory that makes what lay people consider to be murder perfectly permissible and defensible. This kind of specious logic can be made to bend in almost any direction. A man has aright to define his meaning of liberty to not have to provide for others he doesn't choose to do so. Bye bye child support unless agreed to in advance. As for the excessive regulatory argument put forth by the court if the court actually had principles then it would have problems with gun control and most of what government regulates.

Fernandinande said...

rehajm said...
It's poetic compared to the dirty limerick of an opinion of the Fifth Circuit, eh Linda?


There once was a fetus named Joe,
Whose mom said "it's time you must go"
She went to a clinic
Became quite a cynic
And now there is no Joe no mo'.

rhhardin said...

Clinic etymologically means lying down. You can avoid clinics entirely by standing up, or going doggie-style.

Owen said...

Laslo @ 9:04: "I am LaManza, The Abortion Whisperer…" Wow. Just, wow. Thanks.

Owen said...

Dilate the reasoning.
Suck out the poetry.
There, all better now.

sean said...

Hmm, Althouse endorses mystification. I wonder what Duncan Kennedy would say.

Ann Althouse said...

"Come on, Ann. Abortion rights are a political cause. There is, in the real world, nothing in the Constitution that guarantees a woman's right to an abortion."

The Constitution requires interpretation. There's argument about how to properly do interpretion. There's a distinction between seriously attempting to interpret the Constitution and judges asserting a power the adopt outcomes they just happen to like in a political way. And there are the arguments about exactly where that distinction is.

But there certainly is something in the text of the Constitution that can be interpreted, by a serious, diligent, humble judge to guarantee the right to an abortion. The word is liberty. And this line of interpretation began with Justice Harlan, the Warren Court's conservative, who said, in Poe v. Ullman:

"Due process has not been reduced to any formula; its content cannot be determined by reference to any code. The best that can be said is that, through the course of this Court's decisions, it has represented the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society. If the supplying of content to this constitutional concept has of necessity been a rational process, it certainly has not been one where judges have felt free to roam where unguided speculation might take them. The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound. No formula could serve as a substitute, in this area, for judgment and restraint.

"It is this outlook which has led the Court continuingly to perceive distinctions in the imperative character of constitutional provisions, since that character must be discerned from a particular provision's larger context. And inasmuch as this context is one not of words, but of history and purposes, the full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This "liberty" is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, see Allgeyer v. Louisiana, 165 U. S. 578; Holden v. Hardy, 169 U. S. 366; Booth v. Illinois, 184 U. S. 425; Nebbia v. New York, 291 U. S. 502; Skinner v. Oklahoma, 316 U. S. 535, 544 (concurring opinion); Schware v. Board of Bar Examiners, 353 U. S. 232, and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. Cf. Skinner v. Oklahoma, supra; Bolling v. Sharpe, supra."

Ann Althouse said...

"Completely off topic, but most dictionaries include faute de mieux as good English."

It was put in italics, which indicates that it was not intended as English but as a foreign language phrase.

MaxedOutMama said...

In general, law should not be "mysterious". It is the job of the SC to make it less mysterious. Hoorah for the clinical and definite.

Other elements that mar judicial opinions - poesy, mysticism, fantasy and an appeal to Providence.

We can get all that in our sermons or at poetry readings, should we wish to do so. We go to the Supreme Court of the United States for clarity and direction.

n.n said...

In addition to preserving abortion rites and clinical cannibalism, the ruling against Texas was intended to preserve the markets of Planned Parenthood et al. This was a party and investor decision to reduce the liability and increase the profits of the abortion industry, Democrat financing, democratic leverage, etc.

Gahrie said...

But there certainly is something in the text of the Constitution that can be interpreted, by a serious, diligent, humble judge to guarantee the right to an abortion. The word is liberty. And this line of interpretation began with Justice Harlan, the Warren Court's conservative, who said, in Poe v. Ullman:

OK...let me get this straight.

The Constitutional Right to an abortion is not found in a mythical right to privacy, even though that was the finding in Roe V Wade.

The Constitutional Right to an abortion is not found in the 14th Amendment, even though that was the finding in Planned Parenthood V Casey

The actual basis for the Constitutional Right to privacy is an interpretation of the word "liberty" coming from a dissent in a 1961 contraceptive case?

Why didn't Roe simply just cite this "Right" from Poe instead of referring to the mythical right of privacy?

Why didn't Casey simply point to Poe rather than pervert the 14th Amendment?

Paddy O said...

Althouse, real question(s):

What issues do you see as potentially requiring another amendment?

Or do we have enough amendments that now cover all potential issues?

It seems to me that if abortion can be interpreted out of the Constitution as it now stands, then just about any issue imaginable can be determined by its present form.

Gahrie said...

Why does a woman's right to liberty trump an unborn child's right to life? Why doesn't a man's right to liberty grant him abortion rights? isn't forcing an unwilling father to pay child support a form of slavery?

Ann Althouse said...

"'No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.' So is abortion a privilege, or an immunity? If you must insist that the 14 Amendment addresses the issue of abortion, surely it supports an anti abortion position, in that an abortion deprives a person of their right to life and the equal protection of the laws."

The privileges and immunities clause refers to "the privileges or immunities of citizens of the United States," and those privileges are a pretty narrow set of things that you have because there is a federal government (as opposed to state govt). That's an old interpretation (from The Slaughterhouse Cases).

It's the Due Process clause, "nor shall any State deprive any person of life, liberty, or property, without due process of law" that is the source of abortion rights. Controlling one's own reproductive function is considered a fundamental liberty and, before viability, the state cannot put a undue burden on your liberty to rid your body of the natural process of enduring pregnancy and childbirth.

What is the corresponding right for the unborn? The state isn't depriving the unborn of its life. The woman and the abortion doctor and doing the depriving, not the state. Even if you think abortion is murder, you need to see that murder, done by a private citizen, is not state action and not a deprivation of life by the state. Murder is a crime because the state makes it a crime and taken the action of depriving murderers of liberty or life (which it can do with due process).

The abortion rights cases say that the state can't make a statute banning abortion pre-viability, because the woman's liberty is fundamental and the state lacks a compelling interest in requiring her to devote her body to pregnancy and childbirth.

That's the current interpretation.

coupe said...

Ann Althouse said...It was put in italics, which indicates that it was not intended as English but as a foreign language phrase.

Aha! Never mind...

Ann Althouse said...

"But that's just it...they aren't interpreting the text according to orthodox judicial methodology. How is creating a right to privacy from an illusion from a shadow surrounding the Bill of Rights, when neither the Constitution nor the Bill of Rights even use the word privacy "interpreting the text"?"

Read my quotation from Justice Harlan. That's the basis for the way the Casey explained the right.

When you refer to "an illusion from a shadow surrounding the Bill of Rights," you're talking about the way Justice Douglas explained the right of privacy in Griswold (the original birth control case), which strained to avoid speaking in what are called "substantive due process" terms, but in Roe and Casey, the abortion rights cases, the Court did adopt those terms. So if you think the Court's interpretation is not just wrong but not creditable as even being interpretation at all, then you need to engage with Harlan's Poe opinion and with Casey.

Leora said...

I remain confused. Saying clinics that terminate pregnancies should not need to meet the standards for surgery centers that perform chin lifts does not seem like a triumph for women to me.

paminwi said...

Laslo at 9:04. Thank you for those words. I feel for that child you described. I am happy I believe in God and that He will welcome that child into His arms with an overwhelming love that we should all hope to feel one day.

sean said...

Hmm, pretty questionable reasoning from Prof. Althouse. If the Congress were to enact a law stating that no state shall make or enforce any law which provides any sanction for the killing of a convicted child molester, would that comport with due process?

(Leave aside whether such a law would be within Congress's powers. You can just consider a state law which provides that there shall be no penalty for killing a convicted child molester, if you want.)

The only workable defense of legal abortion has to say that the fetus is not a person, not that the state is affording it due process and equal protection, which it clearly is not.

Gahrie said...

t's the Due Process clause, "nor shall any State deprive any person of life, liberty, or property, without due process of law" that is the source of abortion rights

Isn't passing a law by a legislature "due process of law"? Because if not, most laws that prohibit human activity are unconstitutional.

Murder is a crime because the state makes it a crime and taken the action of depriving murderers of liberty or life (which it can do with due process).

What is wrong with this statement:

Abortion is a crime because the state makes it a crime and taken the action of depriving abortionists of liberty or life (which it can do with due process).

The abortion rights cases say that the state can't make a statute banning abortion pre-viability, because the woman's liberty is fundamental and the state lacks a compelling interest in requiring her to devote her body to pregnancy and childbirth.

Why isn't protecting the unborn child's right to life a compelling interest? It seems to me that protecting innocent life is the government's most compelling interest.

Ann Althouse said...

"Hmm, Althouse endorses mystification. I wonder what Duncan Kennedy would say."

Where do you see me endorsing it? I'm recommending that judges perform their duties within orthodox judicial methodology and not arrogate power. But I certainly see the potential for doing something else and trying to get away with it.

By the way, it was Greenhouse who spoke admiringly of mystery.

Hagar said...

You are either for unrestricted taxpayer funded abortion rights under any and all circumstances, or you are not. No discussion permitted.

Gahrie said...

So just to be clear...your position is that the "Right" to an abortion does not extend from an invented right to privacy, but rather "interpretations" of the 14 Amendment and the word "liberty"?

Paul Snively said...

Dr. Althouse:

You may be right on the facts, and I'm obviously not qualified to question your understanding of the relevant constitutional scholarship. But as a purely practical political matter, the more the supreme court is seen by the electorate to act on "And inasmuch as this context is one not of words, but of history and purposes, the full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution," and to violate "The balance of which I speak is the balance struck by this country, having regard to what history teaches are the traditions from which it developed as well as the traditions from which it broke. That tradition is a living thing. A decision of this Court which radically departs from it could not long survive, while a decision which builds on what has survived is likely to be sound," the greater the erosion of the electorate's respect for, and willingness to submit to the dictates of, the supreme court, seen, as it is, as the ineffectual watchdog of a supine legislative and, simultaneously, the cudgel of an executive actively hostile to the people.

Gahrie said...

What is the corresponding right for the unborn? The state isn't depriving the unborn of its life. The woman and the abortion doctor and doing the depriving, not the state.

the state lacks a compelling interest in requiring her to devote her body to pregnancy and childbirth.

But isn't it true that the state wouldn't be requiring her to devote her body to pregnancy and childbirth? Simple biology is doing the requiring.

Gahrie said...

Controlling one's own reproductive function is considered a fundamental liberty

Do men possess this liberty? How do they utilize it?

I Have Misplaced My Pants said...

Laslo, that brought me to tears.

narciso said...

what is this fascination with death, after 55 million, you would think there would be a decent interval, or an indecent one as the case may be,

Gahrie said...

But isn't it true that the state wouldn't be requiring her to devote her body to pregnancy and childbirth? Simple biology is doing the requiring.

Or perhaps, more to your point...isn't the unborn child doing the requiring?

cubanbob said...

Perhaps a simple statute stating that someone conceived in the United States to a United States citizen is a citizen should suffice the constitutional and judicial interpretations concerns Althouse expounded on.

tim in vermont said...

The poetry of killing legal non persons who are otherwise human beings? Fortunately, it's a genre with which I am unfamiliar.

tim in vermont said...

The abortion rights cases say that the state can't make a statute banning abortion pre-viability, because the woman's liberty is fundamental and the state lacks a compelling interest in requiring her to devote her body to pregnancy and childbirth.

I love how the definition of "compelling" allows the 'Justice' (Can't we come up with some better name, more descriptive?) to insert their own judgement in the place of that of the people's elected representatives, or in place of a vote of the people themselves.

"lacks a compelling interest" Isn't that to assert a negative? No compelling interest exists? How is that proven? By a logical proof that would withstand the scrutiny of philosophers specializing in logic? Or is it proven by exhaustion of all possible "interests" of the state, and a demonstration that each of them is not "compelling"?

I can clearly see that I was wise not to attend law school, as my best hope for survival, by avoiding my head exploding in frustration, would have been for the professors trying to indoctrinate me in this bogus way of thinking to flunk me out.

Paddy O said...

"the state lacks a compelling interest in requiring her to devote her body to pregnancy and childbirth."

This is an interesting phrasing, because the state isn't requiring her to devote her body to pregnancy. Only in cases of rape is there a lack of choice. The question is whether pregnancy is a consequence of a choice or a completely separate state of reality that the woman was unable to anticipate.

Imagine if a drunk driver who killed someone was allowed to go free because "the state required them to drive."

Gahrie said...

Perhaps a simple statute stating that someone conceived in the United States to a United States citizen is a citizen should suffice the constitutional and judicial interpretations concerns Althouse expounded on.

The rights to life, liberty and property are extended to "persons". You do not have to be a citizen to have these rights, merely a person.

Abortion relies on the fiction that an unborn child is not a person. Roe used crappy science and worse legal reasoning to determine that the unborn prior to viability are definitely not persons, and that after viability and before birth they are conditional persons with a sliding scale of the right to life.

HoodlumDoodlum said...

Ann Althouse said...? I'm recommending that judges perform their duties within orthodox judicial methodology and not arrogate power.

I'm pretty sure one of Justice Thomas' main points in his dissent is that the "liberal" members of the Court are NOT using their own self-professed methodology to render judgements, right? If you say you apply 3 different levels of scrutiny to different questions, and you define those levels of scrutiny and define to what questions they apply, you've established a framework. If you claim to be working within that framework (and you agree that having a framework is vitally important for things like predictability, coherence, etc) but then repeatedly violate the definitions, usage, and logic of your own framework...well what sense does it make to pretend like you're using your own professed methodology and not just using the power that you have to obtain the outcome you want?

Ann Althouse said...

Gahrie wrote: "The Constitutional Right to an abortion is not found in a mythical right to privacy, even though that was the finding in Roe V Wade."

No. It's the right of privacy, but that is a right that as far back as Roe was considered fundamental liberty within the meaning of the Due Process Clause.

"The Constitutional Right to an abortion is not found in the 14th Amendment, even though that was the finding in Planned Parenthood V Casey."

The Court purports to find it in the Due Process clause, which is in the 14th amendment.

"The actual basis for the Constitutional Right to privacy is an interpretation of the word "liberty" coming from a dissent in a 1961 contraceptive case?"

Harlan's opinion, like many dissenting opinions, influenced the later course of the law. (The majority in Poe decided the case on justiciability, not on the merits.) It was interpretation of the Due Process Clause.

"Why didn't Roe simply just cite this "Right" from Poe instead of referring to the mythical right of privacy?"

Roe did rely on the Due Process Clause. It says: "The principal thrust of appellant's attack on the Texas statutes is that they improperly invade a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy. Appellant would discover this right in the concept of personal "liberty" embodied in the Fourteenth Amendment's Due Process Clause; or in personal, marital, familial, and sexual privacy said to be protected by the Bill of Rights or its penumbras, see Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); id. at 460 (WHITE, J., concurring in result); or among those rights reserved to the people by the Ninth Amendment, Griswold v. Connecticut, 381 U.S. at 486 (Goldberg, J., concurring)... This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

And Roe does openly use Harlan's Poe opinion. This is from Roe: "As Mr. Justice Harlan once wrote: '[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This "liberty" is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment.' Poe v. Ullman, 367 U.S. 497, 543 (opinion dissenting from dismissal of appeal) (citations omitted). In the words of Mr. Justice Frankfurter, 'Great concepts like . . . "liberty" . . . were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged.'"

"Why didn't Casey simply point to Poe rather than pervert the 14th Amendment?"

As I've just show you, it did.

Laslo Spatula said...

Thanks to those who had kind words on my post.

The first post of this series can be found here: Then I begin softly: Little One -- you hear me, yes?

I am Laslo.

tim in vermont said...

Remember that Roe v Wade outlawed outlawing abortion for all time, and therefore must have anticipated any and all interests of the state to come, and decided that of all possible interests that may ever be, none will ever be judged "compelling."

Unknown said...

How can "child abandonment" be illegal? That is, if the child is viable?

HoodlumDoodlum said...

It must be nice to have the State consider your liberty fundamental.
I wonder what that's like?
I'd fight pretty hard to oppose restrictions on my fundamental liberty, too, if anyone ever recognized it existed.
Me, I'm subject to "commonsense regulation," to laws and rules designed to promote "fairness," to restrictions of all sorts for all sorts of stated reasons (including but not limited to "your possessions might bring more tax money to the State if they were taken from you and given to someone else...so that's what we'll do")..but this "fundamental liberty" idea sure sounds neat.
I mean, having a fundamental right to liberty w/r/t your own body sure must be a cool thing. I can be forced to use my body in all sorts of ways I don't want to (conscription, judicially-imposed mandate to work a certain job to make a given amount of money [to be paid to others], etc), but I guess it's just another one of those "things are different for women" situations where their liberty w/r/t their bodies is fundamental, and mine's not.

Yep, sure must be neat.

Gahrie said...

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

But not broad enough to encompass a man's decision whether or not to become a father.

tim in vermont said...

It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints . .

There is that asserting of a negative again "purposeless." I thought negatives were notoriously hard to prove, but apparently one need only feel like they are true to do the trick.

I guess the old adage "My right to swing my scissors ends at the skin at the base of your spine" doesn't count if the SCOTUS decides that such a restriction is "purposeless" in the case of non persons or their advocates.

HoodlumDoodlum said...

Economic liberty doesn't mean much. It's certainly not fundamental.
Personal liberty w/r/t one's body doesn't mean much for men...it's certainly not fundamental.
Personal liberty w/r/t one's body when one is a woman, though, that's fundamental.

It's all right there in the Constitution, obviously. Sure, I'm too stupid to find where, but it's a matter of interpretation and the smart people have it all figured out.

cubanbob said...

Gahrie said...
Perhaps a simple statute stating that someone conceived in the United States to a United States citizen is a citizen should suffice the constitutional and judicial interpretations concerns Althouse expounded on.

The rights to life, liberty and property are extended to "persons". You do not have to be a citizen to have these rights, merely a person.

Abortion relies on the fiction that an unborn child is not a person. Roe used crappy science and worse legal reasoning to determine that the unborn prior to viability are definitely not persons, and that after viability and before birth they are conditional persons with a sliding scale of the right to life.

6/28/16, 11:26 AM"

Precisely why I stated citizen. There is no ambiguity about a citizen being a person. As for conception in the US to a US citizen besides abortion that partially covers anchor babies.

tim in vermont said...
This comment has been removed by the author.
tim in vermont said...

Alhouse's job is to teach the persiflage used to cover for the use of naked power. People say the emperors have no clothes, Althouse says "Sure they do! They're made of persiflage! See!"

tim in vermont said...

"Arbitrary" is another great word to use when you are trying to hide the pea in the old shell game.

Why don't the people decide what is and is not "arbitrary." I think, as we have seen in the Brexit brouhaha, that "arbitrary" means, not in accordance with the beliefs of the elite.

Gahrie said...

I thought negatives were notoriously hard to prove, but apparently one need only feel like they are true to do the trick.

Althouse explicitly rejects facts and truths in favor of feelz and emotions.

tim in vermont said...

Reading and writing software requirements is great training for spotting bullshit, hand waving, and all manner of self deceit, including and especially words that look like they mean something but don't.

HoodlumDoodlum said...

It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints... and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment

Yes, very clear--substantial arbitrary impositions are no good, neither are purposeless restraints (just which restraints are purposeful and which are purposeless is a matter for special people to decide, of course). Some arbitrary impositions might be ok, as long as they aren't substantial (just which impositions are substantial and which are insubstantial is a matter for the same special people to determine).

CERTAIN interests are really important and the Court to protect. There's not a list of those interests and it's kind tough to pin down even vague definitions of what such interests would be (in the sense that they sure seem to change quite a bit over time, sometimes over quite a short period of time) and you'd think just on a "rule of law" basis you'd want some kind of predictability in your system....but what's important is that CERTAIN interests must be protected, while others--even others you might think are explicitly mentioned in the Constitution itself--aren't as important. Smart people know which are which, so don't worry about it--leave it to the wise.

damikesc said...

Unknown, abortion is legal even if the child is viable.

What's the difference?

Gahrie said...

Perhaps a simple statute stating that someone conceived in the United States to a United States citizen is a citizen should suffice the constitutional and judicial interpretations concerns Althouse expounded on.

The Supreme Court would quickly rule such a law unconstitutional, because the Constitution clearly states that citizenship is conferred at birth, not before.

HoodlumDoodlum said...

Let's say a guy works for years at a job that's mostly manual labor. He works long and hard, ruining his body in the process, but he makes money from the job so that's the bargain he accepted--he'll harm his body in exchange for getting to keep some money.

The State comes along and decides it's going to pass a law that will result in this guy losing a ton of that money (could be an tax, could be an eminent domain case, could be a regulation that massively devalues some asset of his, whatever).

No big deal, says the Court--that's economic liberty, and that doesn't mean shit. It's sure not fundamental! His BODY doesn't matter--his work, sacrifice, time, etc, doesn't matter...the State can do as it pleases.

But a woman being unwillingly subjected to 9 months of pregnancy, well, that involves her body, and she has a fundamental right to liberty over her body, so anything that might jeopardize that even a little can't stand.

Like I said: must be nice.

tim in vermont said...

Also Sprach Zarathustra is a book by Friedrich Nietzsche and contains all the logical principles required to interpret the US Constitution. They can be summed up in a couple of words: "machtgelust" the will to power, and the Übermensch, our betters who dictate what is and is not "arbitrary" and/or "purposeless."

Unknown said...

"I remain confused. Saying clinics that terminate pregnancies should not need to meet the standards for surgery centers that perform chin lifts does not seem like a triumph for women to me."

http://www.nytimes.com/2016/02/27/health/texas-abortion-law-supreme-court.html?_r=0

Major medical organizations, including the American Medical Association and the American College of Obstetricians and Gynecologists, contend that the measures are out of step with modern medical practice. If the provisions are allowed to stand, they said, clinics would be forced to close, compelling women to seek riskier alternatives.

Abortion, they said, is a quick procedure with low complication rates. A study published in January 2015 in the journal Obstetrics and Gynecology by researchers at the University of California, San Francisco, looked at 54,911 abortions through California’s Medicaid program. The overall complication rate was 2.1 percent. Major complications (including hospital admission, surgery or blood transfusion) occurred in 0.23 percent of the patients. The national mortality rate for abortions from 2008 to 2011 was 0.73 per 100,000, according to the Centers for Disease Control and Prevention.

Medical groups note that other outpatient procedures with higher complication and mortality rates, like colonoscopy and liposuction, are not legislatively mandated to be performed at ambulatory surgical centers by physicians with hospital privileges.

Hagar said...

What it is about is clearly demonstrated by the efforts to force medical professionals to participate in abortions to do so, regardless of any evidence that their refusal to do so would result in any real inconvenience to the women seeking abortion services.

tim in vermont said...

Medical groups note that other outpatient procedures with higher complication and mortality rates, like colonoscopy and liposuction, are not legislatively mandated to be performed at ambulatory surgical centers by physicians with hospital privileges

Sounds like an oversight that should be addressed quickly.

HoodlumDoodlum said...

I don't want to force unwilling women to stay pregnant. The logistics and practical realities of most "complete" bans on abortion make them unworkable in my mind. I don't think voluntary abortion is a good nor laudatory thing, but I don't support a ban on abortion.

What offends me, though, is when people pretend their support for abortion rights comes out of some widely-applicable understanding of a human right protected by the Constitution when their support clearly does not. They want abortion to be legal but have no problem making all sorts of other restrictions on "fundamental liberty" common. It's not about respecting human liberty. You want the thing you want, and you don't much care about other massive restrictions on liberty (especially those that apply mostly to other people--double bonus if it's to other people you already don't like).

Let's not pretend that these people give a fuck about liberty generally, nor about any of my liberty at all. You want abortion, there are more of you than there are people who don't want abortion, and abortion is legal. Fine, that's power, that's politics, that's how it goes. When you pretend it's some matter of adherence to a code or framework that respects individual human liberty while at the same time abridging liberty of other kinds in myriad ways, though, you both make yourself a liar AND harm the very framework you claim to be acting under (in this case the traditional understanding of how the Constitution is supposed to "work").

Why oh why would anyone get the crazy idea that Justices just vote to achieve the outcome they want (and not in a manner constrained by some consistent philosophy)? Baffling.

Birches said...

Abortion and gay wedding cakes are the new sacraments people! Get with the times. The state can make up any crazy regulations it wants as long as it hurts people we don't like. Religious liberty is dead. Republican Hate Kills. Yada yada had a. SMOD 2016 come quickly.

narciso said...

when they jeered at the convention,


http://www.lifenews.com/2016/06/28/supreme-court-allows-state-to-force-pro-life-pharmacists-to-sell-abortion-pills/

Mark said...

Tim, we have been waiting for Conservatives to get on that for a few years now given they find this regulation so important to push.

Funny, no one addresses the fact we allow home births and non medical birthing centers to deliver actual babies, but don't apply these same regulations there either, just to abortion.

All these republicans out to protect women's health seem to be missing all sorts of exceptions in their arguments, or is it deliberately ignoring them?

Either choice raises problems with all their arguments, unfortunately.

damikesc said...

Medical groups note that other outpatient procedures with higher complication and mortality rates, like colonoscopy and liposuction, are not legislatively mandated to be performed at ambulatory surgical centers by physicians with hospital privileges.

Those procedures have groups that handle accreditation who do require higher standards.

Abortion has NO accreditation group. So the state has to issue the regulations that an accreditation board normally would...if one existed.

Sounds like an oversight that should be addressed quickly.

Not a bad idea.

...but we'd see the SCOTUS say you couldn't do it for abortion. For reasons.

Hagar said...

It is not necessarily about "religious" liberty, but any personal liberty. An agnostic or atheist can also object to the abortion lobby's demands, including just objecting to being foced to comply while not objecting to abortion as such, and it matters not.

How in the world can this be "constitutional"?

AA may want to read C.J. Roberts' lament over Anthony Kennedy's refusal to take up the case of Ralph's Thriftway Pharmacy.

"Radcal Islam" is not the only "religion" that demands immediate and absolute submission before its servants!

Gahrie said...

It is not necessarily about "religious" liberty, but any personal liberty. An agnostic or atheist can also object to the abortion lobby's demands,

I oppose abortion because I am a deist, and I believe that the aborted child was denied their only chance at existence.

n.n said...

Basically, social liberals argue that abortion rites are rights that are sanctioned by the State (e.g. progressive wars, impulsive regime changes, Planned Parenthood), but that other forms of abortion (e.g. self-defense) must be restricted.

Unknown said...

"Funny, no one addresses the fact we allow home births and non medical birthing centers to deliver actual babies, but don't apply these same regulations there either, just to abortion."


http://www.nytimes.com/2016/05/01/opinion/sunday/why-is-american-home-birth-so-dangerous.html

In much of the developed world, home birth is a fringe practice, at about 2 percent of births or less, for obvious reasons: Childbirth is inherently dangerous, and if an emergency occurs, the baby or even the mother may die. Indeed, in the United States, the switch from home birth to hospital birth over the 20th century was accompanied by a more than 90 percent decrease in neonatal mortality and nearly 99 percent decrease in maternal mortality. Antibiotics, blood banking, safe C-sections and neonatology have combined to change death in childbirth from common to rare.

Many studies of American home birth show that planned home birth with a midwife has a perinatal death rate at least triple that of a comparable hospital birth. (The perinatal death rate refers to the death rate of babies in their last weeks in the womb and first week outside it.)


Mark is correct. Where is the outcry and legislation regarding unsafe home births?

damikesc said...

Mark is correct. Where is the outcry and legislation regarding unsafe home births?

So, our Progs are now demanding the government get involved with what goes on in a person's bedroom now? We must have the government involved in what goes on in a home?

OK, I'll make it simple: There would be zero evidence of a crime whatsoever. However, if you'd like, I'll happily go to your house and pick thru all of your stuff if you desire it so.

Sebastian said...

“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.” It’s superfluous, I know, but the 14th only says: “nor shall any State deprive any person of life, liberty, or property withput de process of law.” Nothing about dignity or autonomy (or privacy etc.) is mentioned, implied, or intended. It is pure fabrication. Con law as pseudo-poetic license.

“And I have a problem with Greenhouse's phrase "stood up for abortion rights.". . . It makes "abortion rights" sound like another political cause, and the Justices in the majority sound like the ones who simply embraced that cause, those particular rights, because they happen to like them and think they're good rights to have, quite apart from whether they are properly to be found in the legal document that's cited in the opinion.” I don’t have a problem with the phrase. Unlike most cons, I have little problem with Greenhouse. She is an honest and obvious partisan, who at least does not deny that abortion “rights” are what they are, a political cause if there ever was one. As someone who might in the end have voted for a candidate advocating something like Blackmun's scheme, I despise the dishonesty in Roe, the later decisions, and the specious defenses.

Gahrie said...

Where is the outcry and legislation regarding unsafe home births?

So now healthcare isn't only a right...it is an obligation?

Unknown said...

"So, our Progs are now demanding the government get involved with what goes on in a person's bedroom now? We must have the government involved in what goes on in a home?"

Simply pointing out the hypocrisy and double standard. Abortion clinics need to be surgical centers while home births and some birthing centers, which are much more dangerous, are ignored by the same people. So we must have the government involved in abortion clinics, but not these birthing centers? Home births?

Meeeea said...

Laslo, for someone that used to avoid reading most of your posts, I think I'm falling in like with you.

That was beautiful, thank you. (As was yesterday's.)

Sebastian said...

"without due process"

So, abortion "rights" defenders, what process would be "due" enough to "deprive" anyone of such rights? Or are some "rights" so sacred that they cannot be infringed by any "process" at all?

William said...

The early Soviet Union and Red China waxed poetic about the brave new world of easily accessible abortions......I didn't read the article but abortion is not a subject one should wax poetic about. A healthy society does not celebrate suicides and abortions. I say this as a person who is in favor of the legalization of assisted suicide and first term abortions. It's a difficult decision that each individual should be allowed to make in accordance with his own conscience, but the prevailing ethos should not be celebratory. It should be a decision that an individual reaches with reluctance rather than ease.

Gahrie said...

Or are some "rights" so sacred that they cannot be infringed by any "process" at all?

Apparently the Right to own a weapon, which is explicitly protected by its own amendment, is not sacred enough to be protected from such infringement, but the right to an abortion, entirely created through judicial decisions, is so sacred that it cannot be infringed.

Gahrie said...

the prevailing ethos should not be celebratory. It should be a decision that an individual reaches with reluctance rather than ease.

But that would imply that there was something wrong with an abortion, which women would never allow. The whole point of the pro choice crowd is that there is no moral difference between an appendectomy an an abortion.

damikesc said...

So, again, you're demanding the government insist that a home be made surgically clean...but not an abortion clinic .

Run with that.

wildswan said...

Abortion is not as safe as people think. The abortion doctors hand off the patients they damage to hospitals and the hospitals code the damage done by incompetent abortion practitioners as "infection" rather than "infected abortion caused by procedure done on site of an STD infection which pushed infection into the womb or allowed it into a surgical tear". Gosnell damaged women but there were no statistics on it for this reason.

The Texas law was trying to make abortion practitioners responsible for their patients as are all other doctors. But this requirement limited the number of possible abortion practitioners. Because not many good doctors want to be abortionists - (Why is that? - see above comments on "poetry" of calling your child medical waste.) So back to irresponsible doctors for women who want an abortion. And, call that a "right." Women, mostly black, will be rendered sterile or die of infections or even from bleeding out due to this decision. So is this a "clinical" decision? No, it's a decision that makes it plain that abortion is dirty in every aspect.

But women don't matter much and you can baffle a lot of them with cliches.

Query? Should we regulate female genital mutilation more than we do abortion? Why?

Meeeea said...

Unknown, fuck off. What are you, paid by the NYT to get clicks to their biased, 1/2 story bullshit?
Or are you an attorney billing your time to some unsuspecting client while you spew your biased crap?
Or maybe you are suffering from some post-abortive complex where you desperately need to affirm yourself that it really was safer to kill your kid rather than have it? And adoption, why no way! No one could love that kid as much as you right? So it's safer dead. (And BTW, it's probably not completely dead, its organs right now are probably alive and well and being toted around by some poor rat that has to bear that load for "cures.")

Either way, you should have the decency to us other sources than just the NYT. Not that I would pay, but us truly poor people going to food banks don't have an extra dime, never mind whatever it is they want now to subscribe (what is it down to, .99 cents?) and the NYT doesn't offer it free to po folk. (Except at the library, but it costs $ to get there.)

Anyhow, here is some other info. You should consider including it in the name of fairness. Some chick might read your BS (I think I read your similar posts on another site too) and decide to have an abortion based on your biased BS, and prior to her choice she should have more facts:

"Planned Parenthood’s expert witness admitted the following:
During these proceedings, Planned Parenthood conceded that at least 210 women in Texas annually must be hospitalized after seeking an abortion. Witnesses for both sides further testified that some of the women who are hospitalized after an abortion have complications that require an Ob/Gyn specialist’s treatment. [please be sure to see the bs of this explained below]

However, expert witness Dr. John Thorp told the court that the 0.3% hospitalization estimate “is based on data that is thirty-eight years old.” He also indicated that abortion complications are notoriously underreported and that only one-third to one-half of all abortion patients return for follow-up visits where complications could be reported to clinic staff.

In addition, in many states, abortionists are simply not required to report abortion complications. The underreporting means that the percentage of women actually suffering surgical abortion complications is much higher.

The number suggested by Planned Parenthood of “at least 210 women” who were hospitalized due to abortion complications was not based on any actual reporting. Instead, it appears to have been calculated using 2011 state abortion numbers with Fine’s 0.3% hospitalization rate, and assumes that all of the 70,003 abortions done on Texas residents in 2011 were first trimester surgical procedures, an assumption that is completely inaccurate.

Medication Abortions
Numbers obtained from the DSHS indicate that in 2011, 26 percent of all abortions on Texas women were done using the abortion pill. The court documents reveal testimony indicating that a full six percent of women who obtain medication abortions using the abortion pill require surgical abortions due to failure of the abortion pill process.

Based on those numbers, there would actually have been approximately 1,089 cases where women required surgical intervention following medication abortions."

(I'm usually very good at citing, forgot where I retrieved this from yesterday--I know it was a lawyer familiar with the case that posted it.)

Birches said...

My apologies. I feel a rant coming on:

Why does the SCOTUS pretend that women still living back in the 19th Century? Or even the 1970s?

I'm not going to judge the women of yesteryear. I'm not sure what it would have been like to birth 10 or 11 children, one practically every year...the physical, emotional, or mental toll that would take. That some resorted to taking care of things in their own way...well, like I said, I'm not going to judge.

I also don't know what it would be like to live in a world where culturally an out of wedlock birth brought such intense personal shame that some women would resort to hiding their sins. I know those women are in the wrong, and they did too, but I don't pretend to know that kind of culture pressure. Because I am 34 years old. Those times have not existed in my lifetime. Every type of contraception has been readily available for me. I've tried many of them. I've even done Natural Family Planning for awhile, because the internet has made all sorts of methods of birth control easy. My friend who was a resident at a county hospital said they inserted IUDs like hotcakes for all the poor Medicaid women. And yet, the SCOTUS acts like a store not stocking PLAN B is one step away from the coat hanger again. Or that being slightly inconvenienced because you had to drive an extra hour for an abortion might be the End of Days. Or that having an unplanned child (one, not 12 or 13) because you didn't hurry up to the doctor before 20 weeks might ruin the rest of your life.

Don't be so patronizing! We're not living in the past! Let us take some responsibility!

Mark said...

damikesc, it is your side that is insisting on all these rules and Red States that pushed them through.

I am pointing out the hypocrisy of your views, instead you make a claim that I am trying to force these rules on everyone.

Please quote me where I said that I wanted these rules to be universal or put into place? You won't find it ....

Birches said...

Rant continued...

Do you know which group is the most welcoming to out of wedlock births these days? The Evangelical Christians, because they are so relieved that the mother decided against abortion. There's nary a word said against the fornication... And yet, our Cultural Elites act as if every person lives in the town from Footloose.

For the past eight years this administration has promulgated the idea that pregnancy is the worst thing that could happen to a woman. No wonder our STD rates are through the roof. Fact check: there are worst things in this world than a baby. Herpes is forever.

Laslo Spatula said...

Meeeea said...
Laslo, for someone that used to avoid reading most of your posts, I think I'm falling in like with you.

That was beautiful, thank you. (As was yesterday's.)


Thank you, but I probably should apologize in advance for future disappointments.

I am Laslo.

mockturtle said...

Laslo has a gift that enables him to see evil for what it is and to skillfully put it into words.

I think his post from yesterday should be required reading in schools.

damikesc said...

damikesc, it is your side that is insisting on all these rules and Red States that pushed them through.

What, precisely, is your point? That because states did not demand homes be kept in surgical cleanliness condition that expecting a medical facility to do so is a step too far?

You're not thinking this out.

I am pointing out the hypocrisy of your views, instead you make a claim that I am trying to force these rules on everyone.

Please quote me where I said that I wanted these rules to be universal or put into place? You won't find it ....


I'm not the one claiming it is hypocritical to not try and demand homes be kept cleaner than medical facilities.

My side isn't the one that claims to love free speech while stifling it in pursuit of avoiding "hate speech". That is hypocrisy.

My side isn't the one condemning people's lack of action on global warming --- while jetting off to conferences. That is hypocrisy.

Expecting a medical facility to be clean and be able to fix up its mistakes isn't hypocritical. It's, you know, one of the few legitimate uses for regulation.

But since you oppose it, then regulation is truly pointless.

Mark said...

Damikesc, you are excellent at setting up straw men and knocking them down.

Too bad they are irrelevant.

It must really burn you up that Wendy Davis may have lost her filibuster but she won in the end.

Because since that happened, you haven't stopped shouting squirrel and making specious arguments.

Unknown said...

Meeeea, it might come as a surprise to you, but the NYT is one of the major newspapers in our country, too bad that you are so affected by epistemic closure, how sad. Good work Unknown, keep the articles coming.

damikesc said...

too bad that you are so affected by epistemic closure

POWERFUL irony.

Damikesc, you are excellent at setting up straw men and knocking them down.


Says the guy proclaiming it is hypocritical to expect a medical facility to maintain surgical levels of cleanliness when the same isn't expected of homes...

It must really burn you up that Wendy Davis may have lost her filibuster but she won in the end.

Not really. The women who die are on your conscience and hers, not mine. But it's OK. Women don't deserve better, right? They probably DESERVE to die, don't they?

Unknown said...

After the Supreme Court on Monday struck down his state’s law that would have shuttered dozens of abortion clinics, Texas Gov. Greg Abbott (R) condemned the decision by arguing that it jeopardizes the state’s objective “to protect innocent life.”

“The decision erodes States’ lawmaking authority to safeguard the health and safety of women and subjects more innocent life to being lost,” he said in a press release. “Texas’ goal is to protect innocent life, while ensuring the highest health and safety standards for women.”

In admitting that the law, HB 2, was meant to limit abortions, Abbott deviated from the state’s initial justification for the law, as presented during the case’s oral arguments. Attorneys for the state noted that the law was implemented in order to “protect women’s health” and improve safety at abortion clinics. When pressed by the justices, they insisted that “abortion is legal and accessible” in Texas.


Let's get real about what the "protection" laws were really about. It wasn't about clean and safe abortion clinics. It was about making access to abortion a burden. The SC saw through the ruse and their decision was correct.

Paddy O said...

Abortion rights were pressed forward in a big way by warnings against back alley abortions, etc. The argument for the need of clinics because they were medical facilities. Meanwhile women have been giving birth in all sorts of settings as long as there have been humans. So, safety is not only germane to discussion about abortion, it is one of the central issues.

Why not allow abortions at home? Is there something different about abortion that suggests a need for extra medical help? Of course. The very nature of it. Once this latter point is established, then the quality of the medical clinic is up for discussion and regulation. People are not required to receive medical care. But once they do choose medical care those who provide it have to meet established standards.

Unknown said...

Damikesc, all medical centers are not surgical centers, nor are they required to be.

Unknown said...

Many abortions do happen at home. Women don't stay at the clinic until they abort when given a medical abortion. They go home and if they have complications they go to the ER. Many women have miscarriages, most of which happen at home. There are women who find out during an ultrasound that there is no fetal heartbeat, the majority of those women are sent home to miscarry naturally.

n.n said...

The establishment (i.e. normalization) of a pro-choice religion, including selective-child policy (i.e. resumption of abortion rites), [class] diversity (e.g. racism), and Planned Parenthood (i.e. clinical cannibalism), is the reason why nations including China rightly rejected the bigoted (i.e. sanctimonious hypocrisy) condemnations from the United Nations, human rights businesses, civil rights businesses, and other "progressive" groups. Elective abortionists, corporal cannibals, and their advocates are the oldest professions. Well, second oldest, after liberal sexual behaviors (e.g. prostitution, "friendship with benefits", involuntary exploitation, superior exploitation - e.g. employer/intern sexual relations), which, ironically, are first-order causes of elective abortions.

Paddy O said...

Medical abortions are a thing. Miscarriages too. My wife had one about six years ago, so I'm familiar with that reality. Very scary and sad experience. We went to an urgent care facility.


But the fact that many abortions do happen at home isn't the issue with surgical abortions.

From the Whole Woman's Health website:
Early Surgical Abortion

"Specialized surgical abortion care for 3 – 5 weeks of pregnancy.
First Trimester Abortion care

1-2 Day abortion procedures with optional IV Sedation. Same day surgical consult in our Twin Cities location.
Second Trimester Abortion care

2 Day surgical procedures (up to 20 weeks) available at our Whole Woman’s Surgical Center in San Antonio. General anesthesia available. 2 Day surgical procedures (up to 24 weeks) available in our Twin Cities office 1 Day surgical procedures (up to 24 weeks) available in our Baltimore, MD office."


Which goes back to my 3:18 comment.

Saint Croix said...

What is the corresponding right for the unborn? The state isn't depriving the unborn of its life. The woman and the abortion doctor and doing the depriving, not the state.

Substitute "Negro" for "unborn" and see how happy you are with your own logic.

The state has stripped the baby of her humanity. She has been put outside the law.

Imagine, for a moment, that the Supreme Court did that to you, Ann Althouse. The state defines you as a "non-person" and claims it is irrelevant whether you are alive or not alive. No policeman may protect you, no lawyer may see you. You are a non-person and the people who own you can decapitate and kill you, at their whim.

It's frankly absurd to fail to see any state action when the state denies your humanity and sanctions your killing as a legal right. Of course there is state action! It's like saying South Carolina was not involved with the slave trade.

Gahrie said...

What is the corresponding right for the unborn? The state isn't depriving the unborn of its life. The woman and the abortion doctor and doing the depriving, not the state. Even if you think abortion is murder, you need to see that murder, done by a private citizen, is not state action and not a deprivation of life by the state. Murder is a crime because the state makes it a crime and taken the action of depriving murderers of liberty or life (which it can do with due process).

Hypothetical:

Two women, who are both 21 weeks pregnant, get on a subway car. Women A is on her way to the hospital for a check up. Woman B is on her way to an abortion clinic for an abortion. At the next stop, a madman gets on the car and starts shooting. No one is killed before he is subdued, but both women are hit in the stomach, and both babies die.

Can he be tried for murder? Two murders?

Why does the state have a compelling interest in punishing this madman, but not the abortionist?

mockturtle said...

Many of the same people who support abortion rights balk at capital punishment. In one case, innocent unborn babies are killed, in the other, convicted murderers. Where's the logic, not to mention the morality, in that?

Rhythm and Balls said...

But once they do choose medical care those who provide it have to meet established standards.

They were arbitrary standards designed to circumvent the 1972 ruling and no honest reading of the opinion and found facts has any standing upon which to disagree.

Gahrie said...

They were arbitrary standards designed to circumvent the 1972 ruling and no honest reading of the opinion and found facts has any standing upon which to disagree.

So what? Since when does intent matter?

Do you honestly think the drafters of the 14th Amendment intended that it somehow grant birthright citizenship, make birth control and homosexuality legal and create a right to an abortion?

sean said...

Incidentally, Atlhouse's argument above about how the doctor does the killing, not the state, is a good example of her typical intellectual dishonesty. She knows, of course, unless she's getting senile, that the public/private distinction has been problematic since Morris Cohen wrote in the 1930s. But she thinks that her readers are not familiar with the past 80 years of legal theory (and indeed, I don't think most of the commenters are T14 law graduates). So instead of grappling honestly with the issues, she embraces a superficial analysis that she thinks her readers will be unable to see through.

Rhythm and Balls said...

So what? Since when does intent matter?

Since it became illegal to pretend to practice medicine without a license, simply in order to impede actual medical care.

Saint Croix said...

But there certainly is something in the text of the Constitution that can be interpreted, by a serious, diligent, humble judge to guarantee the right to an abortion. The word is liberty.

The due process clause is concerned with fair procedures in criminal and civil trials. There must be a fair court proceeding before the state can take your life, your liberty, or your property. That's what due process means, and what it's always meant.

Substantive due process is a joke. It was a joke in Dred Scott, it was a joke in Lochner, and it was a joke in Roe v. Wade. What's an even bigger joke is to take the word "liberty" out of context and jabber about the freedom of the universe. Why have a Constitution at all if the Supreme Court can do whatever the hell they want to do under the so-called Liberty clause? Who needs all the rest of the words as you declare a right to invalidate any law you dislike?

Saint Croix said...

That tradition is a living thing.

Fascinating, and kind of weird, to take Harlan's dicta (and that man never would have signed on to Roe v. Wade) and create a whole ideology of a "living Constitution." What they mean by a "living Constitution" is a Constitution that morphs over the decades. It's like O'Connor saying that we can do affirmative action for 25 more years, and then it's unconstitutional.

Oh, Affirmative Action, we hardly knew ye!

RIP, Affirmative Action, 1978-2028.

But what's even more bizarre is to consider that these liberals, who are so happy with the idea of a "living Constitution," these same liberals will say with a straight face that they have no idea what a person is. They mock the idea that an unborn child is a human being with a right to life. The idea that we are killing babies? It's a forbidden thought. This is why our media has been censoring abortion photographs for 40 years. We hide the bodies so that people do not see the violence of Roe v. Wade.

One day the Supreme Court--or the American people--will overrule Roe v. Wade. We will recognize the unborn child and see that she is a person with a right to life. And, yes, that ugly shuffling zombie known as the Supreme Court's abortion jurisprudence will finally die. But in the real world, what that means is that it will no longer be right, or decent, or just, to pay a doctor to get rid of your baby.

damikesc said...

Damikesc, all medical centers are not surgical centers, nor are they required to be.

All that perform any surgical procedures in their building are. And they are required to be.

But, don't worry --- the whores who want an abortion deserve to have it done by incompetent doctors in non-sterile conditions. The Progressives said so.

Substantive due process is a joke. It was a joke in Dred Scott, it was a joke in Lochner, and it was a joke in Roe v. Wade. What's an even bigger joke is to take the word "liberty" out of context and jabber about the freedom of the universe. Why have a Constitution at all if the Supreme Court can do whatever the hell they want to do under the so-called Liberty clause? Who needs all the rest of the words as you declare a right to invalidate any law you dislike?

Richard Posner feels judges should no longer study the Constitution AT ALL. Feels it's pointless.

If the Constitution is pointless and I was not given a voice in it, why am I obligated to honor my "citizenship duties"? In what other field can a material change in contractual agreement occur without the acceptance of both parties?