May 18, 2019

Did Elizabeth Warren suddenly transform the abortion debate?

I'm about to read Andrew Sullivan's new column, "Elizabeth Warren Just Transformed the Abortion Debate."

Warren, as you might have noticed, has come out in favor of what isn't a new idea but simply a seemingly newly urgent idea: protect the right to abortion with a federal statute. The idea is that it won't matter if the Supreme Court overrules Roe v. Wade if there's a federal statutory right. So, Congress, just pass that statute, if you can, and as long as there's no successful constitutional challenge to the new statute, there will be a right to have an abortion... subject to repeal by Congress.

Abortion politics intensifies. First, members of Congress will be pressured to take a position, even now, just because Warren has proposed it. Later, there may be a bill to vote on, and if it passes, there will be endless political efforts to repeal it, and, if it is repealed, to enact it again. And we'll still fight about who gets on the Supreme Court, because we will still care about the constitutional rights, even if they are replicated in statutes, because statutes can be repealed and because the statute will be challenged as beyond Congress's legislative powers.

When Congress passed a statute banning "partial-birth" abortion, the Supreme Court upheld it, but Justice Thomas, joined by Antonin Scalia, wrote a concurring opinion, to "note that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court." The pro-choice parties who challenged that law were not the sort of people who argue for a limited interpretation of the commerce power issue, but you can bet that if Congress passed a law protecting access to abortion, it would be challenged by people who don't mind making that argument.

Now, let me get on with my reading. What does Sullivan have to say?
Elizabeth Warren is... right. Congress can legislate on abortion; the matter can be settled through politics, rather than through a strained parsing of the Constitution by the courts. Political arguments can be made, and countered. Voters can go to the polls to support candidates who will vote for such a law, which will make any previous Supreme Court ruling irrelevant.
This is the process called politics. And America, for 46 years, has tried to keep abortion out of it. It’s encouraging to see Warren jump into the fray to bring legislative politics back to the subject — and to call the right’s bluff on taking that approach. It’s amazing it has taken this long.
It's not amazing to me. Sullivan is missing the complexity of the law and politics. Does he think Warren came up with a new idea here, that a statute could be passed and would remain intact and isn't subject to a challenge in court, and that there wouldn't be a threat to repeal the statute?

The idea of a federal statute is an old one, so the question should be, why don't we already have it? I think if the Court already had overruled Roe v. Wade, we would already have seen this statutory effort (and if in the future it does, we will). The failure of Congress to provide the statutory right to abortion isn't a mere oversight. It's a political choice.

Will Elizabeth Warren's prominent call for this statute change anything (any more than things are already changed by new state statutes restricting abortion and by new Justices on the Supreme Court)?

I do not think Warren's call will get that statute passed any time soon, but it will create the occasion for questioning abortion rights proponents in Congress about why they are not using their legislative power right now to secure the right. They are in default! Opponents of abortion who are running for Congress will be able to stir up pro-lifers with the argument that overruling Roe v. Wade — the long-sought goal — won't matter if the Democrats win the 2020 elections. So which side is helped by talking about this statute? See why it hasn't been talked about much?

The second-to-last sentence in Sullivan's column is: "What we desperately need to do is take this issue out of the polarizing abstractions and into the nitty and the gritty of democratic give and take."

I think we've had "polarizing abstractions" and "the nitty and the gritty of democratic give and take" all along, and we can highlight the possibility of a federal pro-abortion-rights statute but we'll still have polarizing abstractions and nitty-gritty democratic give and take.

212 comments:

1 – 200 of 212   Newer›   Newest»
wild chicken said...

I wish the states would have let this go until 2021. Could be an inflexion point.

Sebastian said...

"whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court."

Yeah, right. Of course, Congress can't legislate on abortion under the Commerce Clause, but then again, this is America, so it can.

"Congress can legislate on abortion; the matter can be settled through politics"

Right. Provided it is settled in the way progs like. Until then, it is not settled.

"a strained parsing of the Constitution by the courts"

Now he tells us? Sounds like he's insulting the strained parsing we've seen on this blog as well.

"Political arguments can be made, and countered."

But wait, wasn't there a right? A constitutional right? So it was really a made-up fabrication after all?

"call the right’s bluff on taking that approach"

Huh? The right, the social/religious right, wasn't bluffing. But the right is divided, since some of us would be OK with a first-trimester exception.

"Sullivan is missing the complexity of the law and politics."

It's so complex. Progs got what they want in 1973. No politics allowed! It's in the Constitution! But then progs face a slight risk that they might lose. Bring politics back in! Legislate the right! It's so complex.

"See why it hasn't been talked about much?"

It only hasn't been "talked about much," except of course by just abut every abortion opponent, because progs denied it was a political issue.

"The second-to-last sentence in Sullivan's column is: "What we desperately need to do is take this issue out of the polarizing abstractions and into the nitty and the gritty of democratic give and take."

Which requires that progs face up to nearly half a century of lies and denial.

rcocean said...

I agree with what you say and find this whole debate tedious. There is no right to an abortion in the Constitution. And congress should just punt on the question. LEAVE IT UP TO THE STATES where it always should have been decided.

Result, all the blue states would be so Pro-Abortion, you could kill your 16 y/o son.
Some red states would outlaw abortion, and most of the other states would have abortion with some reasonable restrictions. Federalism. The whole country doesn't have to have ONE abortion law. Real Diversity.

But of course the liberal/left NEVER wants that. ALL OF US, EVERYWHERE must live by their rules. If 49 states are live their way, then they will spend all the energy changing the 50th state. They're born totalitarians.

Of course, Sullivan, like some other Gay guys has some weird obsession with Abortion. But at least he's not beating up Teenage girls.

buwaya said...

IIRC the pro-abortion side never wanted these questions in legislation because they knew it was a guaranteed loser. It mainly appeals to a smallish ideological minority, and to the elite caste, in opposition to popular opinion.

They always preferred to keep it a judicial matter. This is also the case with many other cultural issues, such as the CA Prop 8, judicially overruled against the will of the people.

Mark Jones said...

Elizabeth Warren is a fool. There's a *Constitutional* right to keep and bear arms. Has that stopped anti-gun zealots from pushing for restrictions, licenensing, and outright bans at both the state and federal level? No. Has it stoped them from ENACTING licensing rules, purchase, ownership, storage or carry restrictions--or outright bans, in some cases? No.

Even assuming such a law is passed, all that will happen is that abortion-happy leftists will find themselves in the same position gun rights folk do--constantly fighting a never-ending battle to defend their freedom from zealots who do not, and will never, accept that position as legitimate. Which, frankly, is where they already are.

Molly said...

Isn't there some tricky legal questions about when and how the federal government can impose laws on individual states? Wouldn't that issue arise here? Clearly there are differences in attitudes between (say) Alabama and New York. Could the federal government pass a law requiring all states to have the death penalty?

rcocean said...

BTW, do any normal people vote in New England? Warren, Da Nang Dick Blumenthal, Crazy Bernie, RINO Collins, Leahy, the Kennedys - their federal pols are the biggest bunch of weirdos, liars, crazy leftists, and all around freaks. Is Masschutes still have congressman running Gay Sex rings in their basement?

Its too bad we couldn't kick them out of the Union and have a normal US Senate.

Hagar said...

So, does Cherokee Liz also maintain that the supremacy clause still rules, nullification and interposition is seditious talk, and marijuana and local sanctuary laws, etc., are patently illegal?

ndspinelli said...

I thought Sullivan died.

gilbar said...

okay,
Roe v. Wade is either:
A) constitutional, by a glimmer of a shadow of a trace of a unwritten 'privacy clause' of the 14th
B) unconstitutional, because of the 10th, and Nothing in the constitution allows laws on abortion
C) unconstitutional, because unborn people are people, and can't be killed without due process

IF
A), then you don't need a law
B), then you can't Have a law
C), then you can't Have a law

SO, codifying the right to abortion would accomplish what? again?

Etienne said...

"As long as America has a U.S. Navy, abortion should remain legal." - General of the Army, George Marshall

The only Democrat I would vote for President is card carrying Marxist-Leninist with a Parisian mother, and a father who was a U.S. Sailor stationed in the Philippines, and ran a whore-house and vodka bar on the side.

That's the kind of genetic makeup I'm advertising for the job.

rehajm said...

Biden is like fifty points ahead...

Etienne said...

Bottom line: if congress were to do their job (a big if...) they would write a law that a majority of them would vote for, and would be Constitutional (pass the Supreme Court smell test).

Whatever the law they come up with, would either make abortion legal, or illegal and the citizens can worry about more important things, like paying for non-aborted Honduran migrants.

I am good either way. I don't give a shit if a woman evacuates her uterus, nor do I care if the military kills the enemies of state.

"Kill everyone, and let God sort them out."

gilbar said...

i'm surprised that the Right didn't try this angle with gay marriage?
They could have codified their objections to gay marriage, through legislation
They could have passed a law, with a cool sounding name, like maybe, the Defense of Marriage Act;
And then NO ONE would have been able to have gay marriages. Right? I mean, this is Exactly what Fauxcahontus is proposing, Right? Infallible, right? Right?

Etienne said...

Any place you have a large number of Irish, you are going to have retarded representatives in Washington.

Johnson had to have one of them whacked in order to declare war on poverty and the commie gooks, in order to empty the treasury.

daskol said...

The chance to peel away suburban married women from the GOP will remain too attractive a prospect for Dems to want to legislate on abortion. Also, as some have already mentioned, the progressive base has some deeply unpopular beliefs about abortion, so not only would removing this as a political issue cost them in turns of hurting the GOP, it will splinter the Dem base. Leaving aside for a moment the electoral politics angle, it's hard to legislate conclusively on abortion when viability of a fetus is a moving target thanks to medicine. My unscientific impression is that abortion prior to fetus viability ranges from strongly supported to tolerated by a majority of Americans, perhaps a large one.

daskol said...

More aphorisms, Etienne! Those are two good ones.

exhelodrvr1 said...

Well, we'll find out who is in favor of cutting babies up into vacuumable pieces.

tcrosse said...

Those Handmaid's Tale outfits are available at Althouse's Amazon Portal, while they last.

gilbar said...

Oh! Oh! I know! I know! Pick ME! PICK ME!!

The democrats can propose a Super New, Improved Law; that will Cure All, and BE ALL

This new law will incorporate the enlightened views on Abortion in German law ( § 218 )
AND the enlightened views on Immigration in Mexican law https://mexlaw.ca/immigration-law-in-mexico-2

This should be (hell! WOULD BE!!) totally acceptable to ALL proper progressives, right? i mean, RIGHT?

Diogenes of Sinope said...

As in the case of most societal choices the ideal deciders are the citizens via their elected representatives and not the lawyers via the courts. Regardless of what the decisions might be about abortion, we will be better off if the people make the decisions in statute law instead of the courts finding hidden rights in the US Constitution. Laws can and will be debated, fought over in the democratic political arena and will change over time. Rights found be judges in the Constitution are much more undemocratic and less likely to change.

jimbino said...

Neither a Constitutional interpretation nor a federal statute can create a right to an abortion. That right is a Natural Right that can, at most, be affirmed or protected by recognition in statutes or the Constitution.

The right to self-defense, like the right to self-governance, is a natural human right that precedes and supersedes our laws. Regardless of any attempt to nullify Roe v. Wade, a woman has the natural human right to kill even a "person" who insists on touching her for 9 months, especially if threatening her all the while with death or serious bodily injury. And, of course, anyone, doc, nurse or midwife, who assists a woman in so defending her body may avail himself of the same defense on her behalf. We've fought famous wars over these principles.

Narayanan said...

..There is no right to an abortion in the Constitution...

Is it Conservative position to claim that a Right must be in Constitution to be asserted?

What then to make of 9A.

Diogenes of Sinope said...

Warren did not change the debate. Many people have been making the point for decades that the courts should not have interjected themselves into the abortion, and many other debates. That these are not issues in the Constitution and should be addressed via the political process....statute law. Warren is coming around to a more originalists' point of view.

Narayanan said...

Well said Jimbino.

Much appreciated.

Narayanan said...

Individual Rights are the means for subordinating Society to Moral Law.

- Wise woman said.

Bruce Hayden said...

My comment to a friend on the phone who brought this up was that this just made Fauxhauntis unelectable on a national level just as Spartacus had done with his draconian gun control proposals. The pendulum is now swinging in the opposite direction on abortion, with 60 million potential Americans having been aborted since 1973, very many of those Black, the country facing demographic hardship due to our aging population, and the debate now being about post birth abortions (I.e. infanticide). What’s next - the right to abort offspring until they are 5 years postpartum? 18 years?

What she and the other rabid feminists don’t get is that this broken glass issue for more and more people - they are willing to crawl across broken glass to vote against her. He called her plain evil. I won’t go nearly that far, and refuse, except maybe in extremely egregious cases, to presume how our maker, in end, judges people. Still, it is hard not to judge her character when she very much seems willing to exchange innocent human lives for her political ambitions.

Note though that her proposed legislation has almost no real chance at passage and enactment. The numbers are just not there for her in either House of Congress, even assuming that she replaced Trump and would sign the legislation into law.

Etienne said...

"There is no right to electricity in the Constitution."

gilbar said...

Narayanan said...
..There is no right to murder in the Constitution...
Is it Conservative position to claim that a Right must be in Constitution to be asserted?
What then to make of 9A.


fify!

robother said...

Abortion subject to the give and take of democratic politics, either at the State or federal level would (as I understand it does in Western Europe) prohibit third trimester abortions, limit second trimester abortion to threats to mother's health and permit it without restriction in first trimester.

Absent Roe v. Wade and a federal statute, a few States would permit abortion right up to and including birth, a few more would prohibit all abortion. but I suspect most would follow the European model. In an era of cheap travel, I can't imagine a woman really wanting a third term abortion would't be able to get it under a State by State system.. Ironically, the federal statute would (if I'm right about the European model being most likely) render that impossible, under the supremacy clause.

I imagine the Democrat leaders of the Senate and House would have long since jumped on a federal statute as a winner, if they thought it would give or perpetuate a majority. My guess is the internal polling would never show that.

Chuck said...

Althouse you gave this post a "Commerce Clause" tag. I think you're right to do that, and the overwhelming question to me is the legal one; by what power does Congress deign to regulate abortion? The Commerce Clause?!?

But you didn't address that question. I wonder how many of your readers know Wickard v Filburn?

I don't much expect anything to happen at the federal level, with the parties so polarized and with the legislative branch divided and with Trump as President. There won't be any new laws on much of anything. House Democrats will vote one way and House Republicans will vote another way, and Mitch McConnell will make certain that it never gets a vote in the Senate.

What I expect more than anything is big fundraising days for Planned Parenthood, and big turnout among pro-choice Democrats and independents, and big legislative defeats for Republicans in the most extreme abortion-prohibitionist states in 2020.

It is the equal/opposite reaction that I'd have expected if blue-state legislatures had passed sweeping gun ban/gun confiscation laws. They'd spark a massive gun rights voter turnout.

Joe said...

Politically, the problem is that Virginia and New York crossed the boundary into infanticide (after claiming for decades that there was no slippery slope.)

Viability is around 24 weeks, cutting that in half would be a compromise, but the pro-abortion side consistently refuses to accept any reasonable compromise and have showed themselves to the ghouls that they are.

Bruce Hayden said...

“The right to self-defense, like the right to self-governance, is a natural human right that precedes and supersedes our laws. Regardless of any attempt to nullify Roe v. Wade, a woman has the natural human right to kill even a "person" who insists on touching her for 9 months, especially if threatening her all the while with death or serious bodily injury. And, of course, anyone, doc, nurse or midwife, who assists a woman in so defending her body may avail himself of the same defense on her behalf. We've fought famous wars over these principles.”

I think that you are incorrect there claiming abortion to be a natural right. Maybe when the issue is self defense. But anymore, 99% of the time, it is done for other reasons than maternal survival. A very large percentage of the time, it is effectively procured as a form of birth control, and rape and incest rarely weigh in. What you are talking about is maternal convenience weighed against the right of survival of something between a small clump of human cells, and something only separated from full babyhood (and human rights) by several layers of tissue, and minutes by emergency caesarean. It is this right of existence that is the core of the natural right of self defense, and not maternal convenience.

BUMBLE BEE said...

Seems more urgent with so many Catholics crossing the border, doesn't it?. Mr Hayden pointed out, this "slide" to the left hasn't stopped yet. The "story" has morphed rather grotesquely since '73. Back then, I believe it was an argument against "coathangers" for abortion. Now it has normalized into 4th trimester. Big city democrats seem to have become more at ease with killing anything in sight.

Dan in Philly said...

The reason that abortion has been kept out of politics is that it would quickly be limited in almost every state. Even California and New York would likely ban late term abortion, and some would bad in all but the most extremely cases. The only reason we have such limitless abortion access is due to the hold the left has had on the courts for such a long time, now seemingly evaporating, hence the shifts we've seen lately.

Francisco D said...

The idea of a federal statute is an old one, so the question should be, why don't we already have it?

You have seen how emotional the debate becomes on this site alone. Do you think politicians want to have that sort of open discussion?

Automatic_Wing said...

File this under "Attempts to make Elizabeth Warren appear relevant".

blnelson2 said...

What the pro-abortion side needs is a moral refutation of the anti-abortion side's arguments about personhood, heartbeats (which at the stage they are talking about are merely electronic impulses), looks-like-a-baby, etc. 1. The Declaration of Independence set out the purpose of government - to protect individual rights, including the right to the pursuit of happiness - your own individual happiness. 2. The reason for the objection to the Bill of Rights by those arguing against them was that some idiot might come along and say "Well that is not mentioned in the Constitution therefore it can't be a right" (and so only those rights enumerated in the Bill of Rights would actually be upheld as Constitutional rights). 3. Until a fetus is detached from the mother's body, it is (and I know some of you will be "triggered" - too bad) a parasite; it is not an individual covered by individual rights. A woman has the right not be the host to a parasite she does not want to host. 4. At viability, the fetus could be detached and live as an individual and there are probably people who would love to adopt a survivor - no need to kill it; 5. So-called "late term abortions" are in point of act (or could be) births, and then upon detachment, the then baby/person with the right to life could be adopted out. 6. There is no right of any individual to extreme medical intervention to maintain life - if the parents want to provide it, if the hospital is willing to use resources in that way, fine. If not, no one should be forced to do so - that is NOT "killing" the birthed baby. Probably more but that enough for now.

Narayanan said...

Right to kill in self-defense =\= right to murder.

fify fail for you... Gilbar.

wholelottasplainin' said...
This comment has been removed by the author.
Narayanan said...

I recall

When Trump suggested woman should be punished with imprisoned he silenced anti-abortion.

He's quite the education reformer for this Nation.

jimbino said...

@wholelotofsplainin'

A whole lot of consensual "touching" went on to create that "person" who you now say "insists" on touching the mother---as if the latter had any choice in the matter

is the "absurd argument."

A woman who wears a miniskirt or enters Bill Clinton's or Bill Cosby's hotel room for a "business meeting" has not consented to being raped. Neither does a woman who freely has sex consent to being forced by religion or by gummint population or worker-need programs to carrying an unwanted fetus to term. We've already had a war that resolved such gummint-backed involuntary servitude.

cubanbob said...

Chuck made an interesting and intriguing observation by mention Filburn. A federal law on abortion predicated on Wickard v Filburn decision as a basis for federal legislating could wind up curbing the power of the federal government under the commerce clause. For a Harvard Law Professor Warren should know better. Chuck you are going to have to hold your nose once again and vote for Donny Two Scoops again. Robother nailed it in that any federal law permitting abortion that could pass would limit abortion to more or less the European limit. Jimbino who occasionally informs us of how brilliant he is seems to be blind to the fact that the law as it currently stands doesn't give us unlimited personal autonomy with respects to our bodies. If it did, prostitution couldn't be illegal and neither would donating one's organs for money.

Swede said...

Andy doesn't have a uterus and, as I've been hearing a lot lately, shouldn't get to have an opinion on abortion.

And no, his super creepy infatuation with Sarah Palin's uterus doesn't count.

PaulJ said...

Everything old is new again!!! Liberals rediscover legislation instead of legislating via the judiciary. What a novel idea. So next week will they go back to wanting to increase the # of SC justices and doing away with the electoral college? I remember when they said elections have consequences, I didn't know they meant only when they win.....

cubanbob said...

blnelson2 your argument is silly. Everyone is a parasite until such time they can fend for themselves. A newborn is just as much a parasite as he or she was several hours prior when attached to its mother's placenta. Taking your logic to it conclusion children and those adults on welfare are parasites and not automatically entitled to life.

MBunge said...

The reason why we don't have a federal law legalizing abortion is that the personal autonomy logic used to justify the right to an abortion would create a buttload of other "rights" that would be hugely unpopular with the public. I mean, if a woman has a "right" to an abortion...how can she not have a "right" to have sex with other people for money? Everything from seat belt laws to vaccinations to any and all conduct policies at government institutions would be in trouble if they had to meet the legal standards concerning fundamental human rights.

Imagine if EVERY law regarding human behavior and activity had to handled like issues of free speech are decided, with much higher standards needing to be met to justify any infringement.

Mike

rhhardin said...

It should go to state legislatures. Different results for different states. Diffuse the argument through multiplication and confusion.

In the limit every woman would be her own state, which shows the direction it would go if you go partway.

rhhardin said...

Left to voters, you'd get a line drawn when a fetus becomes cute.

Ingachuck'stoothlessARM said...

Stay out of the inside of another person's body unless you've been invited in.

And that goes for you too, kids! Dont start your life raping your mother!

Etienne said...
This comment has been removed by the author.
Etienne said...

If Africa, and Central America had a 100% abortion and murder rate, the world would be a nicer place.

If California and New York had a 100% abortion and murder rate, the world would be a nicer place.

If McDonalds didn't run out of vanilla shakes all the time, the world would be a nicer place.

The Godfather said...

To those of you who justify abortion on the ground that the unborn child is a parasite (or an interloper, or a trespasser, etc.) in the woman's body: We are ALL of us former parasites. We all developed in the womb of a woman (technically, she's called a "mother"). None of us could have grown and developed without a "mother". Indeed, the "mother" herself developed in the womb of HER "mother", and so on back to the first mammal. That a child grows within the "mother" is inherent in our nature. Each of us benefited from the arrangement at the beginning of our life. It's part of our inheritance as human beings that we support the "parasites", who are our children to come. If you call motherhood a burden rather than a blessing, then that "burden" falls on women, not men (men have other burdens of course), but this is not due to unfair social structures or bad laws or bad luck; it's due to our nature as mammals. Sorry, but you can't opt out of that. Particularly so in that you, being alive, have already obtained the benefit of the system.

Bay Area Guy said...

1. Overturn Roe - totally bogus SCOTUS decision.

2. Let states pass laws on it, not Feds.

Ironically, in 1967, our great Governor Ronnie Reagan in California, signed a Bill legalizing abortion. So, it's been legal in Cali for 52 years.
Even the great ones make mistakes.

Linc said...

The major issue in the question of abortion and a woman’s right to choose is this: when, in the time between conception and live birth, does the State take over the protection of a new life and a woman’s right to choose end? It is not a question of live versus life (in the absence of life-threatening health to the mother) but a question of life versus the wish of the mother?

To me, the dividing line is absolutely arbitrary; it is a political decision. Trying to determine some scientific dividing line is like counting angels dancing on the head of a pin, an endless exercise.

I don’t fault those who think that think State protection begins at conception. These anti-abortion proponents are simply taking a different view of the arbitrary division point. They are not cretins because they differ from the pro-choice proponents. To them, and putting it crudely, it is lifestyle versus life. Nor do I think those that believe in a woman’s right to choose throughout the pregnancy cycle are more righteous. To the most extreme, the dividing line is after the crowning of the fetus.

The Supreme Court made an arbitrary decision on the dividing line in Roe v. Wade, the same decision that many states at the time had already made. The decision has since been affirmed in the court’s Planned Parenthood case. There is, to me, almost no likelihood that it would be overturned. Unlike Plessey v. Ferguson, it is almost impossible to show that it has been a failure in actuality for most everyone except the ardent pro-lifers. Unlike the Brown v. Board of Education case, where it was clear that separate-but-equal was not working, I cannot see a Roe-2 case even getting as far as the Supreme Court—either to extend or to shorten the dividing line.

What this means to me is that the mother-to-be has to make a “fish or cut bait” decision regarding aborting the fetus before the Supreme Court-settled dividing line.

I think women need to recognize that Roe v. Wade not only established the dividing line in a right to abortion, it simultaneously established the ending point for a woman’s absolute right to choose without the State having an interest in the new life.

gspencer said...

The Article VI oath means nothing, nothing, to Democrats.

5th Amendment, for Congress, "No person shall be . . . deprived of life, liberty, or property, without due process of law"

14th Amendment, for the states, "nor shall any State deprive any person of life, liberty, or property, without due process of law"

But, but, the unborn aren't persons. Have we become that selfish?

Browndog said...

According to the Chief Justice following the 'Opinion' of Roe v Wade, the Court settled the debate over abortion, and I quote "once and for all".

Quaestor said...

Imagine the wonderful opportunity for poison pill amendments!

— A bill to guarantee access to abortion that also mandates universal concealed carry and overturns the National Firearms Act.
— A bill to guarantee access to abortion that also gives fathers a veto.
— A bill to guarantee access to abortion that also mandates immediate deportation of any alien residing in the United States with a duly issued and current visa.

Quaestor said...

According to the Chief Justice following the 'Opinion' of Roe v Wade, the Court settled the debate over abortion, and I quote "once and for all".

Chief Justice Roger B. Taney said something similar about Dred Scott v. Sanford.

Mr. D said...

Wickard is hugely consequential. It turns the Commerce Clause into a holy writ.

Ryan said...

Elizabeth Warren is actually correct. This is how abortion should have been handled from the start, through legislation rather than judicial fiat. There is the potential for large majority/consensus limiting the procedure to the first trimester; that’s where the middle ground is.

gilbar said...

Narayanan said...
Right to kill in self-defense =\= right to murder.


so, you think that abortion should only be legal, If the mother would DIE if she did not terminate?

It's interesting how radical your pro-life viewpoint is!
Or... Do you not understand the concept of self-defense?

Static Ping said...

The whole point was to have the Supreme Court make the decision. That way it was both outside of the democratic process, except in the indirect way of justice appointments and confirmations, and the politicians did not have to take a stand on the issue unless they thought it to their benefit. That latter part is one of the reasons that Congress is currently so dysfunctional: they keep passing the buck and letting the executive branch, the judicial branch, and the bureaucracy do the work for them so senators do not feel uncomfortable. After decades of this, they are finding that it no longer works all that well, both because the Supreme Court is not necessarily going to rule the way they want and because the radicals out there find their party affiliation and failure to 100% agree with everything they believe in, even if what they believed was different yesterday, to be sufficient reason to hate them.

n.n said...

Liberals are voicing apologies to defend denial of human rights, denial of civil rights, and denial of human evolution. They are arguing for summary judgments a.k.a. warlock trials and cruel and unusual punishment including torture from around one month with the presumptive origin of consciousness. They are arguing to characterize a human life early in her evolution as a "burden" and her mother as a "beast of burden". They are arguing to be inclusive of life deemed unworthy of life as have other left-wing ideologues throughout history. Notably transhuman. Here's to aspirations for weird and liberal progressions, including selective-child and recycled-child. #HateLovesAbortion

n.n said...

Do people generally have a right to abort another life for causes of wealth, pleasure, leisure, aspirations, social progress, medical progress, and democratic leverage? Other than those secular sects with a Twilight faith and Pro-Choice religion? In Stork They Trust.

Chuck said...

Mr. D said...
Wickard is hugely consequential. It turns the Commerce Clause into a holy writ.


For the record; I believe that Althouse knows far more about how this story might be intelligently discussed within the realm of Commerce Clause powers than I do. And I expect that she knows more than any of her regular commenters as well.

It's rare, however, that Althouse ever turns one of her blog posts into a law school tutorial. Which is a bit of a pity in my view. I just thought it tantalizing that she (again; rightly) used the Commerce Clause tag but didn't substantively mention it.

If only this was an anti-commandeering doctrine question. ;-)

Mark said...

Regardless of any attempt to nullify Roe v. Wade, a woman has the natural human right to kill even a "person" who insists on touching her for 9 months, especially if threatening her all the while with death or serious bodily injury.

Nowhere in the law is a person permitted to use deadly force to expel an alleged trespasser when she was invited in.

A woman having sex with a man is an invitation to pregnancy, hence another living human being within the woman, even if she might take some steps against it, as a matter of the laws of nature.

Mark said...

As for "it's a woman's right," Blackmun in Roe was quite clear that abortion is as much a right of the doctor to perform, as it is the mother, if not more so.

Indeed, nearly all of the abortion cases considered by the Supreme Court or any other court have involved NOT individual women litigants, but were cases brought by abortion providers -- many of them men -- who condescendingly presumed to speak for all women.

n.n said...

Slavery, one day. Diversity, another. Political congruence, on a forward-looking basis. And warlock trials to deny Persons their civil rights, Posterity their right to life, to arms, a head, and freedom from cruel and unusual punishment. A wicked solution.

Diogenes of Sinope said...

We should only have unprotected sex with people we are willing to have children with. It's not that difficult. We aren't animals.

Birkel said...

It's a clever attack on Joe Biden who was in office almost since Roe was decided and never acted to pass such a law.

It's a clever tack.

bleh said...

Criminal law is a matter generally left to the states. The federal criminal code doesn’t reach every possible criminal offense and for good reason. What’s the basis for federal jurisdiction over abortion? I’m not even sure the feds could criminalize garden-variety murder unless it’s been committed on federal property or involves conduct spanning multiple states.

A federal law purporting to prohibit the states from criminalizing abortion would face substantial constitutional challenge.

n.n said...

Regardless of any attempt to nullify Roe v. Wade, a woman has the natural human right to kill even a "person"

You're correct, homicide is a natural rite; warlock trials, too; also cruel and unusual punishment (from around one month with the presumptive emergence of consciousness). I suppose recycled-child could be considered green and trendy. That said, invited and voluntarily conceived guests, beware. You may be planned by your host, with or without your consent.

Mark said...

By the way, this is not news. It is not transforming the debate.

The "Freedom of Choice Act" was introduced in Congress in 1991, 2004, 2007, 2014. Obama promised to sign such an act, but the Democrat Congress never passed it.

n.n said...

We should only have unprotected sex with people we are willing to have children with.

Rights and responsibilities are the prerequisite for a civil society with optimal individual liberties.

Ambrose said...

Not sure I understand the basis for such a federal pre-emption - but could it also apply to cut back the permissive abortion statutes in NY and VA? I can think of some people who would object to that.

tim in vermont said...

I think that the SCOTUS is uniquely unsuited to make our laws, even though they do, because the laws they make live on like zombies, even as circumstances change. If somehow we were facing a crisis, like the one China is facing, a legislature could change the law, and just like we say “suck it up” to young men when a war breaks out, we could say “suck it up” to young women if a crisis like that appeared.

wwww said...

Chuck,

mostly agree w/ your analysis. but

"and big legislative defeats for Republicans in the most extreme abortion-prohibitionist states in 2020."
I don't think this happens, although senators running in places like AZ may be asked about the Alabama law. I don't think the Ohio law would have sparked as much throwback without the ectopic pregnancy stuff. I don't expect Missouri's law to make much of a difference. But the Alabama law will be a talking point & will drive turn out.

n.n said...

Someone has to defend the right to life of those without a voice. Elective abortion or selective-child (and recycled-child) is a first-order forcing of catastrophic anthropogenic human and civil rights violations. Anyway, with rare and far between exceptions, grow up.

wwww said...

"We should only have unprotected sex with people we are willing to have children with."

Yes. But I would change it to only have sex with people to whom we are married.

n.n said...

only have sex with people to whom we are married

Ideally, but the point of interest is rights and responsibilities.

n.n said...

when a war breaks out, we could say “suck it up” to young women if a crisis like that appeared.

Most women will do it voluntarily, even enthusiastically, with their husband or chosen partner before they are delayed or passed away. It's part of the unrecorded social compact between men, women, and our Posterity, documented in evolutionary fitness.

wwww said...

Ideally, but the point of interest is rights and responsibilities.

It's the effective solution, if the majority of people would take on the responsibility -- the moral responsibility of only having sex with their spouse. No adultery, no pre-marital sex. Husband learning which days his wife is fertile; having sex on those days when the couple is ready for a child. Restraining from sex when they aren't ready. Solves the problem except for rapists.

Ken B said...

This is a much smarter take than for example Jerry Coyne on his blog where he opines the USSC could not overturn a law legalizing abortion. Eye roll.

Bruce Hayden said...

“It's a clever attack on Joe Biden who was in office almost since Roe was decided and never acted to pass such a law.”

“It's a clever tack.”

Sure, it is clever. But as I said much earlier here, it makes her unelectable in the general election. She is trying to the levy of the other fringe candidates on the left, and they seriously seem engaged in a race to the bottom. And that just makes SLO Joe Biden even more attractive the the party mainstream.

Narayanan said...

..State having an interest ...

This phrase is incomprehensible to me outside of advocacy for statism.

Either individual with rights or statists and collectivis.

ALP said...

Ah, this reminds me that I have not Googled "current state of artificial wombs" in some time. I believe that this will be a reality some day, driven by premature births and infertility. In fact, I just learned that premature births are on the rise in the United States. Who knew?

What will become of abortion activists once the procedure is obsolete and a fetus is "transferred" from a woman who doesn't want it to an artificial womb?

wwww said...

"What will become of abortion activists once the procedure is obsolete and a fetus is "transferred" from a woman who doesn't want it to an artificial womb?"

They are working on technology that will save babies born too early who need to be in a uterine environment and cannot breathe with their lungs. Google lamb embryos. This is a great thing for parents when early labor cannot be stopped through bed rest and cerclage.

But it doesn't stop legal fights. Transplantation involves a c-section.

Chuck said...

wwww said...
Chuck,

mostly agree w/ your analysis. but

"and big legislative defeats for Republicans in the most extreme abortion-prohibitionist states in 2020."
I don't think this happens, although senators running in places like AZ may be asked about the Alabama law. I don't think the Ohio law would have sparked as much throwback without the ectopic pregnancy stuff. I don't expect Missouri's law to make much of a difference. But the Alabama law will be a talking point & will drive turn out.


Aaaaand...

I think that's an excellent point that you are making. That the mobilizing/energizing effect of the new legislative moves in places like Alabama, Ohio, Missouri, etc., might be felt in other swing states where no such laws have been the subject of votes this year.

n.n said...

[Marriage]... It's the effective solution

I agree, we are not children anymore, we can -- should, really -- make a commitment to each other and our Posterity, beforehand.

Michael McNeil said...
This comment has been removed by the author.
Mark said...

What will become of abortion activists once the procedure is obsolete and a fetus is "transferred" from a woman who doesn't want it to an artificial womb?

You misunderstand. The "right" to abortion, to terminate a pregnancy, for a woman to control her body, has nothing to do with terminating a pregnancy or asserting control over her body. The "right" that they insist upon is a right to no baby whatsoever, a right to a dead baby. This is why you have Coonman Northam talking about putting a born baby on a counter while the doctor and mother decide what to do with her.

Transporting to an artificial womb defeats that purpose of getting rid of the baby.

Sheridan said...

States rights (federalism) should apply. Hate abortion? Move to Alabama. Love abortion? Move to Virginia. Somewhere in between? Become active in your particular state to get laws passed that you want. Diminish the power of the central government. Readdress the damn Commerce Clause and turn the SCOTUS back into politically impotent Originalist pin-heads.

Browndog said...

I remember when abortion was a deeply personal matter.

Something between herself, her doctor, and her God.

Now, not only do they brag about it, but use taxpayer dollars to actually promote it.

Enough is enough.

Michael McNeil said...

Artificial wombs are likely to be used (at least at first, and perhaps for a long time only) as an environment where already existing human and animal (pre-implant “blastocyst”-stage) embryos can implant, there sustain themselves and grow to fetal maturity, following which be delivered into “born” existence. Contrariwise, extricating an already implanted embryo (much less fetus) from a woman's uterus, having it then re-implant, regenerating a new placenta in a new, artificial womb — and survive and thrive after the trauma — is likely to be a much more difficult goal to achieve.

Lydia said...

This in Sullivan's piece is troubling:

It’s astonishing to me, for example, that the Alabama law actually exempts fetuses used in IVF procedures. They don’t need to be protected, it appears. “The egg in the lab doesn’t apply. It’s not in a woman. She’s not pregnant,” explained a state senator in the debate."

What happened to the idea that life begins at conception?

Larry J said...

“ Hagar said...
So, does Cherokee Liz also maintain that the supremacy clause still rules, nullification and interposition is seditious talk, and marijuana and local sanctuary laws, etc., are patently illegal?“

As in all things, the supremacy clause only matters when it favors the Left and the all mighty narrative.

n.n said...

What happened to the idea that life begins at conception?

Conception is a starting point. Artificial insemination is an edge case for infertile couples, single mothers, transgender/homosexual females, etc, that should be addressed separately. The egg in the lab is an edge case and should be addressed separately, and may be discussed in tandem with mechanical pregnancies in artificial wombs.

n.n said...

What happens to a woman's rights once the child reaches the age or state of viability?

Mark said...

That was a strange one. Bodexpress throws his rider as the Preakness gates opened. And he still ran a good race.

Looks like the guy putting him into the gate held on too long because he was still holding when the gates opened, causing the horse to buck.

buwaya said...

One effect of an issue like this becoming so deeply embedded in an ideological side is that it takes on a religious significance. Of course, on the pro-life side it was a religious issue from the beginning, and it has remained so.

The interesting part is on the pro-choice side, where the matter became an article of pseudo-faith, in its pseudo-religion. Humans can't live without religions, they sneak back in in odd forms. One effect of this is the extermination of traditional religion in the Democratic party. One cannot have other religions (not actual, go against the grain, deal-with-difference religions. Flavors of liberalism are another matter) inside a political side that amounts to a religion.

For a great number given over to the great liberal religion, abortion is a sort of sacrament. I have heard of some women deliberately getting abortions to prove their virtue. This sounds bizarre until you consider the matter in context.

The other side-effect of this having become such an article of a genuine faith, is that it starts to tinge the general philosophy of the faith. If aborting is virtue, having children is not. Yes one can argue against this, and claim that rational people make rational distinctions, but the fact is we make decisions irrationally, and there is this stuff in the back of our heads we are loathe to unpack and examine. The stuff that is repeated in our rituals is in there.

Thats where comes part of the conscience and perception of sin and the perception of virtue.

Its no accident that there is such a powerful antinatalism on the left. The mass of ritual, of repeated opinion, of the zeitgeist, is packed in there, in the back of their heads.

buwaya said...

These arguments, especially the legal ones, are overdetailed and miss the forest.

The substance of this is an amorphous, fuzzy edged thing, largely a matter of actual (as opposed to debatable) values, of unexpressed and inexpressable convictions, of mental programming, affecting not just individuals but groups. Much of what we truly believe is the effect of feedback from other people.

The nut of it is womens attitude towards having babies. For or against? Eagerness or fear? Does it bring status or rejection? Is it abortion or childbirth that is sinful?

Fen said...

wrote a concurring opinion, to "note that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court."

What what?

SCOTUS can rule someone is bound to a statute without say one way or the other whether the statute is constitutional to begin with? That sounds dumb.

Fen said...

Sullivan: What we desperately need to do is take this issue out of the polarizing abstractions and into the nitty and the gritty of democratic give and take.

Hang on, let me check with the guy you've been calling a .... racist sexist homophobic toothless redneck deplorable nazi bitterly clinging to guns and God while sleeping with his sister in a doublewide...

"LOL. Get fucked."

...Andy, did ya have a Plan B?

Browndog said...

The nut of it is womens attitude towards having babies.

This.

However, more than just an attitude. Do women defy nature, instinct, and self worth in the name of...what?

Do men allow these women to kill off mankind because it's "her choice".

These are hard questions, and hard realities that do not belong in a political setting, But, here we are.

Fen said...

The right to self-defense, like the right to self-governance, is a natural human right that precedes and supersedes our laws. Regardless of any attempt to nullify Roe v. Wade, a woman has the natural human right to kill even a "person" who insists on touching her for 9 months,

Wrong.

The natural human right to self-defense does not allow me to kill anyone I want. There are qualifiers.

And there is no "natural human right" to abortion, just as their isn't one for Free Tuition or Health Care or a Living Wage. Stop making up shit.

Fen said...

What happens to a woman's rights once the child reaches the age or state of viability?

When the child is legal defined as a human being, another person's rights are on the table.

wholelottasplainin' said...


jimbino said...
Neither a Constitutional interpretation nor a federal statute can create a right to an abortion. That right is a Natural Right that can, at most, be affirmed or protected by recognition in statutes or the Constitution.

The right to self-defense, like the right to self-governance, is a natural human right that precedes and supersedes our laws. Regardless of any attempt to nullify Roe v. Wade, a woman has the natural human right to kill even a "person" who insists on touching her for 9 months, especially if threatening her all the while with death or serious bodily injury. And, of course, anyone, doc, nurse or midwife, who assists a woman in so defending her body may avail himself of the same defense on her behalf. We've fought famous wars over these principles.
********************

A whole lot of consensual "touching" went on to create that "person" who you now say "insists" on touching the mother---as if the **latter** had any choice in the matter.

[amended: I meant FORMER, not latter, dammit!]

Still: What an absurd argument!!

buwaya said...

An analogy to the perverse mass-psychological effect of the long abortion fight.

Lets go to "Bridge on the River Kwai" - yes, it seems a stretch, but bear with me.

Colonel Nicholson makes a deal with the Japanese, evil enemies, to ensure the welfare and survival of his men, to build that bridge.

The arduous process of building it, the sense of accomplishment, the pride in achievement, the good effect on his men of the order and discipline of well-directed labor, turns the bridge from a means to an end, to an end in itself.

In the end Nicholson has been twisted so that he identifies with it, and tries to save this enemy bridge. He has adopted perverse values in the struggle. He fails to see the big picture, anymore. At the very last though (a cop-out imho) perspective returns.

So also with abortion. It is a goal well designed to twist minds, retail and wholesale.

Fen said...

From the esteemed Andrew Branca

Five Elements of a Self-Defense Claim
As I always tell folks this kind of use-of-force analysis isn’t rocket science—there are only five elements of a claim of self-defense: Innocence, Imminence, Proportionality, Avoidance, and Reasonableness. Every element is required (unless legally waived), and if any required element is missing, the claim of self-defense fails.

Innocence
We don’t know how the confrontation started, but for purposes of this discussion, I’m going to assume that the two young men were the initial aggressors, rather than the guard. Check this element in favor of the guard.

Imminence
A threat needs to be at least imminent, about to happen right now, in order for defensive force to be justified, but a fight that’s actually in progress clearly qualifies as well. Check this element in favor of the guard.

Proportionality
The guard ended up threatening the two men with deadly force—his pistol—and the law generally requires that the guard be facing a deadly force threat in order to be justified in using or threatening deadly defensive force. This, as well as the element of Reasonableness, are the key elements of this case, so we’ll cover this in more depth in a bit.

Avoidance
Even in the minority of states that impose a generalized legal duty to retreat, that duty is imposed only if a completely safe avenue of retreat is practically available. The nature and setting of this attack suggest that the guard had no practical means of completely safe retreat when he presented his handgun, so no legal duty to retreat would have applied even in a duty-to-retreat state. In most states, of course, there is no generalized legal duty to retreat before defending yourself against an unlawful attack. Regardless of the jurisdiction in this case, then, we’ll check this element in favor of the guard.

Reasonableness
As mentioned, this element of Reasonableness, as well as Proportionality, are the key issues of this case, so we’ll cover them in more detail now.

===

I'll be gentle and assume those equating abortion to self-defense can critically think their way through this... See any probs with your definition?

gilbar said...

Mark said...
Nowhere in the law is a person permitted to use deadly force to expel an alleged trespasser when she was invited in.


Not only that, but;
If there is a Blizzard, because to kick some one out of your house during a blizzard would Kill them; you can NOT force a person (invited, or not) out of your house until conditions outside are such that they can survive.

If a fetus is a person....

Michael K said...

The Australian election means that no one knows anything about what voters are thinking.

California passed Prop 8 With 60% in favor. Abortion was legal, with restrictions in 1969.

Nobody, especially the left, knows anything.

Fen said...

you think that abortion should only be legal, If the mother would DIE if she did not terminate? It's interesting how radical your pro-life viewpoint is!

I can't tell if you are being sarcastic. But before addressing your point, there is something I want to clear up:

1) HOW do you know the mother would die? You really mean "a risk she might die" don't you?

2) More importantly, WHEN did you discover the mother would die? Because maybe you could have warned her before she got pregnant?

3) What do you think of this lump on my elbow? Amputate?

roesch/voltaire said...

A women knows best the complexity of whether or not to carry to term and must make the decision one way or the other and take responsibility. It is about choice and responsibility, throughout this is often been the case in many societies.

wwww said...

"Contrariwise, extricating an already implanted embryo (much less fetus) from a woman's uterus, having it then re-implant, regenerating a new placenta in a new, artificial womb — and survive and thrive after the trauma — is likely to be a much more difficult goal to achieve."

Yeah it's clear from the Ohio ectopic pregnancy stuff in that law that a lot of men do not understand the implantation process. It is very complicated. It's a vascular embedding into the lining and the embryo and the uterine lining establish a very complex attachment.

The embryo and the uterine lining signal to each other before the implantation process; it's what allows implantation and it's why some embryos that are not genetically correct will not implant. It's not some sort of easy matter to recreate that process, or to detach the embryo.Scientists still do not fully understand what makes an embryo start the implantation process.

On deadly force. Ok this is kind of dorm room debate/ philosophy class: but it strikes me people are using the basis of "force." The Alabama/Ohio/MIssouri law are outlawing abortions in the first trimester. Force is not required to end a pregnancy. If a woman's body does not supply sufficient progesterone in the first trimester, the pregnancy ends. The placenta provides the progesterone. Until the placenta is well enough developed, a simple progesterone block makes the uterine environment inhabitable.

Some women don't make enough progesterone and they need shots to keep the pregnancy going. Medical abortions stop a woman's body from making enough progesterone. So, the debate question is not force in these pregnancies. The debate question: does a woman's body have an obligation to supply progesterone? To take the dorm debate further, does a infertile woman have the legal obligation to get progesterone shots? Obviously, woman who have investigated it want the pregnancy to continue and will do anything to save it. But the dorm room debate question is not a legal question of force, but a question of the obligation to supply hormones.

FYI this drug is the one women from Latin & South America use to end pregnancies. There's been cases of it used in very very late pregnancies -- 20, 22 weeks. It's a over the counter medicine used for ulcers. This is why the legal question of legal/not legal does not end abortion in practice.

Gahrie said...

I think we've had "polarizing abstractions" and "nitty and the gritty of democratic give and take" all along

What the fuck is democratic (although it definitely is Democratic) about five men in black robes imposing their personal beliefs on the country by inventing rights out of whole cloth?

we'll still have polarizing abstractions and nitty-gritty democratic give and take.

If we repeal or overturn Roe, there will be no penumbras and emanations..so what will be the abstractions?

Browndog said...

It is about choice and responsibility,

No, it's about abortion. It's about killing.

Liberals crossed the threshold after the mid-terms with, basically, live birth abortions.

The cute "choice' thingy is out the window, finally. It's time to confront the murder of men's heirs head on, in as an honest debate as you can muster.

Narayanan said...

When a fetus is "transferred" from a woman who DOES want it to an artificial womb?"

Behold Miles Naismith Vorkosigan ... Changer of Worlds.

Ingachuck'stoothlessARM said...

Freedom, Ah freedom
That's just some people talkin'
You're prisoners walkin'
Through this world
...knowing you snuffed out a Life.

can a mother, at any time, walk away from her offspring of any age, just because they "cramp her style"?

do babies enjoy equal protection under the law?

everything we do has some sort of "risk"** that comes with the territory. Sex is no different. Life/Mother Nature doesnt require you to sign a release form. By engaging in said activity you assume the liability. You dont get to simply walk away from an "accident".

**using 'risk' in this context vs 'blessing'

Gahrie said...

A women knows best the complexity of whether or not to carry to term and must make the decision one way or the other and take responsibility. It is about choice and responsibility, throughout this is often been the case in many societies.

The woman should have the exact same choices a man has. She should have the choice of whether or not she has sex. She should have the choice of whether or not to use birth control. She should have the choice of whether or not to get sterilized. I'll even give her one men don't have...She should have the choice of giving the baby up for adoption.

However outside of the choices...responsibility means dealing with the consequences of your choices. Abortion is failing to deal with the consequences of your choices by killing your baby. You don't allow men to refuse to deal with the consequences of their choices, and often force them to support a child for 18 years, even if the child isn't his.

Once more the issue isn't equality, it's preference and privilege for the woman.

wwww said...

Behold Miles Naismith Vorkosigan ... Changer of Worlds.


Good series but its science fiction. The new technology will, one day, help save 22 week olds--which is wonderful. But they aren't close to figuring out the complexity of first trimester pregnancy. It's a cliche, but implantation is a miraculous, complex attachment. Recreating a miracle is, well, something mortals may never be able to achieve.

Narayanan said...

"If a woman's body does not supply sufficient progesterone in the first trimester, the pregnancy ends. The placenta provides the progesterone."

I'm confused ... isn't Placenta is part of the fertilized egg?

Gahrie said...

State having an interest ...

This phrase is incomprehensible to me outside of advocacy for statism.


The state is a necessary evil in order to protect the rights of individuals. One of the basic inalienable rights is the right to life. Thus the state has an interest in protecting the right to life of all persons.

Narayanan said...

"A women knows best the complexity of whether or not to carry to term and must make the decision one way or the other and take responsibility. It is about choice and responsibility".

Well said.

Decision to not carry to term is not of itself indicate irresponsible.

gilbar said...

Fen said...
I can't tell if you are being sarcastic. But before addressing your point, there is something I want to clear up:
You're address my post, which was directed to Narayanan, who is the one that said that it was totally okay to kill children in self defense, so you should address Narayanan, not me
thanx!

wwww said...

"I'm confused ... isn't Placenta is part of the fertilized egg?"

Yes, the early placenta is part of the fertilized egg. But it needs to grow into a organ. For several weeks in the first trimester, the embryo needs to live off progesterone manufactured by the woman's body.

It's why women are so tired in the first trimester and why they get nausea in the first trimester: she is manufacturing a LOT of progesterone and growing a whole new organ. Many women feel better in the second trimester because that's when the placenta is fully grown & mature. Once the placenta is fully developed, it can provide progesterone for the pregnancy. Sub-fertile women, who do not supply enough progesterone, will take progesterone shots until 10-12 weeks into the pregnancy to keep it going.

One reason for recurrent miscarriage is low progesterone; progesterone shots stop the miscarriages in those situations.

Mark said...

The placenta provides the progesterone."

I'm confused ... isn't Placenta is part of the fertilized egg?


The placenta is an organ, not of the mother, but of the growing independent human being in utero. The placenta is no part of the mother's body.

Gahrie said...

5th Amendment, for Congress, "No person shall be . . . deprived of life, liberty, or property, without due process of law"

14th Amendment, for the states, "nor shall any State deprive any person of life, liberty, or property, without due process of law"

But, but, the unborn aren't persons. Have we become that selfish?


Althouse's response to this is that these protections are from state actions, and because abortions are done by private individuals, the state has no duty to protect the baby's life. She has yet to tell us why the state has a duty to enforce murder, manslaughter and rape laws in that case.

Browndog said...

Why do women exist?

Why does the female of any species exist?

What's the point?

Gahrie said...

Decision to not carry to term is not of itself indicate irresponsible.

No, in fact it indicates that a woman is responsible for killing her child, which in any other situation would result in her prosecution for homicide.

Mark said...

But, but, the unborn aren't persons.

And the Supreme Court has also ruled that blacks are no more than a species of property, with no rights that the white man is bound to respect. And, of course, Jews were also non-persons -- untermenschen -- back in 1930s-40s Germany.

Narayanan said...

"The state is a necessary evil in order to protect the rights of individuals. "

Now This statement is incomprehensible to me outside of actual conceding to and advocacy for statism.

A woman with basic inalienable right to HER OWN life does not consent to government by coercion. Nor should other people in a free society.

wwww said...

"The placenta is no part of the mother's body."

?? It's not growing in space. We grow it from a couple of cells. It's why we're so tired in the first trimester.

So, when your wife is tired in the first trimester, husbands should tell their wives to put her feet up and take a nap. She is growing another organ. It's a critical organ for life to continue. And while you're at it, cook her up something with a LOT of iron in it. And make her some veggies with folic acid.

Mark said...

The first end of government, its raison d'etre, is the security and protection of human life and liberty.

Mark said...

The placenta is NOT part of the mother's body. The placenta is part of the child in utero's body.

Gahrie said...

Neither does a woman who freely has sex consent to being forced by religion or by gummint population or worker-need programs to carrying an unwanted fetus to term. We've already had a war that resolved such gummint-backed involuntary servitude.

Except of course, forcing men to join the army and fight and die for our country.

Narayanan said...

The placenta is an organ (not of the mother),

Which comes earlier ... Placenta or the rhythm cluster referred in Alabama law?

Gahrie said...

"The state is a necessary evil in order to protect the rights of individuals. "

Now This statement is incomprehensible to me outside of actual conceding to and advocacy for statism.


Then what is the justification for government and the state?

A woman with basic inalienable right to HER OWN life does not consent to government by coercion. Nor should other people in a free society

All government action is ultimately coercion at the point of a gun barrel. We all explicitly consent to this coercion by continuing to live under this government. If we have objections to government we have the obligation to leave its jurisdiction or replace it.

wwww said...

"The placenta is NOT part of the mother's body. The placenta is part of the child in utero's body."

Dude it's attached to the mother. That's the whole point. She grows the placenta. Her body and her progesterone is absolutely necessary to grow the placenta. It's part of her body for the duration of the pregnancy.

Placental abruption can kill her. (Detachment of the placenta.) Of course it's part of a pregnant woman's body for the duration of the pregnancy. Abrupt detachment it can kill her.

n.n said...

Neither does a woman who freely has sex consent to being forced by religion or by gummint population

"What happens to a woman's rights once the child reaches the age or state of viability?"

When the child is legal defined as a human being, another person's rights are on the table.


That's under the present instance of the established Pro-Choice religion in America. The Europeans have set the threshold at the first trimester with consideration for certain edge cases. The issue under debate is: When and by whose choice does a human life acquire and retain the right to life? When is it practical, rational, ethical, and moral? Is there a reconciliation between consenting adults who are well informed to understand the genesis of human reproduction, and the human and civil rights that attach to it.

Browndog said...
This comment has been removed by the author.
Gahrie said...

There is no right to an abortion in the Constitution...

Is it Conservative position to claim that a Right must be in Constitution to be asserted?

What then to make of 9A.


There is no "right" to an abortion contained in the Ninth Amendment. We know this for two reasons:

1) Abortion was illegal when the Ninth Amendment was written, and no "right" for abortion existed until one was created by the Court in 1973.

2) If there was a "right" to an abortion under the Ninth Amendment then we wouldn't have needed all of the penumbra and emanation bullshit when they created that "right".

wwww said...

"Which comes earlier ... Placenta or the rhythm cluster referred in Alabama law?"

I dunno what a rhythm cluster is. Is that the heart beat? Heart beat shows in 5th or 6th week of pregnancy. Doctors advise women w/ recurrent miscarriage to keep taking progesterone to support the pregnancy through 10-12 weeks. Placenta exists but may not be fully mature enough to make enough progesterone to support the pregnancy until 10-12 weeks.

n.n said...

Placenta or the rhythm cluster referred in Alabama law?

The placenta (week 4) precedes the heart beat (week 6).

Narayanan said...

"We grow it from a couple of cells. It's why we're so tired in the first trimester"

Is this always true? How then stories About women not knowing they are pregnant?

Recent news item about pregnant transman and
Dead chiid.

n.n said...

I dunno what a rhythm cluster is.

It's a technical term of art for heart beat (or perhaps heart), similar to the usage of "fetus", used by medical personnel and some people to emotionally detach themselves from the human life developing in utero.

Gahrie said...

1. The Declaration of Independence set out the purpose of government - to protect individual rights, including the right to the pursuit of happiness - your own individual happiness.

Hmm...I think you might have left something out...perhaps the fact that the same sentence guarantees a right to life. The right to life supersedes the right to pursue happiness because you cannot pursue happiness if you are dead. The government restricts our pursuit of happiness in many ways, beginning with laws against the use of drugs and against prostitution.

wwww said...

"At some point, men will not tolerate the killing of their sons, daughters, and heirs,simply because some law says they must."

A significant number of abortions come from
(1) Married men who commit adultery and refuse to support the pregnancy of their non-wife. It's not uncommon for this type of man to pressure his mistress/ hook-up/ girlfriend to abort.
(2) men who don't want kids and pressure women to abort.
(3) fathers who don't want to support teenage daughters or are ashamed of unmarried pregnancies.
(4) physically abusive men who threaten their wives or girlfriends .
(5) drunken hook ups.
(6) one-night stands.

Not every man is all-in when they hear about a surprise pregnancy.

Narayanan said...

How much longer for Tess Tracy magic watch to monitor blastocyst growing?

n.n said...

Tess Tracy magic watch to monitor blastocyst growing

Fortunately, that is not necessary. Given our understanding of the genesis of human reproduction and state of the art understanding of human evolution (i.e. process), the development of a human life in utero is well mapped and predictable within a limited scope.

wwww said...

Is this always true? How then stories About women not knowing they are pregnant?


Nothing is always true about any pregnancy. Statistically, that's the average: nausea starting around week 6 and tapering off at start of second trimester. But one of my good friends was so sick throughout her entire pregnancy she threw up pretty much every day, some days several times a day. She had nausea constantly. Had to go to the hospital for IV hydration and nutrients several times.

For me, I am barely sick in the first trimester. First trimester I am more tired, and I took a lot more naps in the first trimester. Second trimester is easier for most women. Not for all women, like my friend who was constantly sick starting about week 5 or 6.

dbp said...

It would be great if abortion policy was set entirely by legislatures. Warren's idea is convenient for the pro-choice side since the Supreme Court has acted. The court has set a bound for how restrictive the policy can be but has no bound for how permissive it can be.

The thing is that Roe V. Wade has set the policy far to the side of permissive in terms of what public opinion wants. If her idea of locking-in a permissive regime had any chance of success, it would depend on the opposite being true. Also, any law passed by one Congress can be changed by the next--within limits: It helps to have a majority in both houses, filibuster proof in the Senate and a president all from the same party.

Narayanan said...

Development-wise how does cell division proceed?

Is embryo all of the following?

Placenta group of cells to implant and generate umbilicus attached to dangling cell cluster to develop into fetus and child.

narciso said...

different category error:


https://www.foxnews.com/politics/buttigieg-echoes-far-left-idea-of-renaming-things-named-after-thomas-jefferson-says-its-the-right-thing-to-do

Narayanan said...

Thanks wwww.

I'm curious if any woman can beat the time clock in Alabama without professional assistance?

Would that be grounds for court challenge?!

Hopefully this Nation will learn about Nature's workings.

wildswan said...

Is it or is it not a person? This person is yours to kill, or sell for body parts, or to keep? Why?

And why are so many black babies being killed without objection except by Southerners? Why such disproportionate numbers of black babies dying - to the point where the group is declining relatively and absolutely in numbers in the US? A genocide against the blacks - and Alabama is in the way of the genocide while Massachusetts pushes the killing forward. Truly, the times they are a-changing.

And, be practical, if you can't be fair. If you don't have children, you will be poor when you are older. This is the situation that is almost upon us: You wanted the good life and some other woman stayed at home and struggled and raised three or four children. Now you think that the children of that mother will agree to supporting you when you are old rather than their own mother. It simply won't happen. And this situation - the failure of Social Security due to lack of child-bearing followed by the refusal of children to starve their own mother on behalf of selfish aborters - is almost upon us. Ten years at most.

Put it back to the states. Or don't. Real is real. If this generation of women doesn't have children, this generation of women will be poor when they are older. And the blacks will be gone in three generations.

gilbar said...

Michigan Rep. Justin Amash became the first Republican lawmaker to declare that President Donald Trump committed impeachable offenses and that Attorney General William Barr “deliberately misrepresented” special counsel Robert Mueller’s report.

Question; has anyone ever seen Chuck and Justin at the same time?

stephen cooper said...

If little Peter Buttigieg, who supports (as I do not) governmental support for as much access as possible to abortion for, mostly, black women (note, please, that there are very few Planned Parenthood abortuaries in white neighborhoods but they are all over the place in black neighborhoods- if you did not know that before I just told you, and you know that now) ---- if Peter B., the poor little loser, wants to get above zero percent support among the black people in states that Democrats need to win --- he is at zero among black people in South Carolina ---- all he needs to do is read the twitter feed of Candace Owens, and publicly repent for his racist support of the eugenic and hate-filled passion so many Democrats have for abortion, free on demand, and even more than free on demand: enthusiastically paid for with government dollars in poor neighborhoods where black people predominantly live.


Yes I am saying - (and I do not like to give advice to politicians who are stupid and cold-hearted enough to still be in the Democratic party) - I am saying that their route to victory is to repent of their support of racist pro-abortion policies.

madAsHell said...

The last time this was tried we had civil war.

Birches said...

wwww is right about being tired.

On my last two kids, I knew I was pregnant before I took a pregnancy test because I fell asleep in the middle of the afternoon a couple of days in a row.

And as for the IVF embryos not being included in the Alabama law, as wwww alludes to, fertilized eggs that haven't implanted yet aren't really a sure thing. That's why when women undergo IVF, they usually put 2 or 3 fertilized eggs in at a time. They're hoping that at least one will work. I've known women to have multiple unsuccessful IVF rounds. They had the eggs, they just wouldn't take in the uterus.

jimbino said...

@n.n

The issue under debate is: When and by whose choice does a human life acquire and retain the right to life?

That may be the leading issue under Roe v. Wade, but is a non-issue under the self-defense theory that says a person has the Natural Human Right to kill another, whether tumor, fetus or person, who continues to attack her life and liberty without her consent.

James K said...

“Not every man is all-in when they hear about a surprise pregnancy.”

If those scenarios were most common, then women would be anti-abortion to protect themselves against all these evil men pressuring them to have abortions, and men would be pro-abortion. And the pro-choice mantra wouldn’t be about women’s control of their bodies. I’m sure what you describe happens, but it doesn’t seem to be the main story.

MikeR said...

Seems like a good idea to get this out of the courts. It seems pretty obvious to most normal people that the Constitution does not say one way or another about abortion.
If Warren can pass something in Congress, fine. I doubt it. Otherwise, let the states decide.
More or less exactly what conservatives have been saying since Roe v. Wade.

n.n said...

jimbino:

Yes, there is a natural right to commit rape, torture, homicide, etc. These rights are limited by another person's response and civil law enforcement.

That said, consent is an issue in edge cases, involuntary exploitation (i.e. rape) and superior exploitation (e.g. incest). In all other cases, both the man and woman are well informed to the genesis of human reproduction, the pregnancy map, and life thereafter. There may be surprises in the details, but not in the system and processes overall.

CStanley said...
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walter said...

But..Pete bent over for Sharpton...

Mark said...

Most of the women I know are pro-life. And they will tell you that women deserve better than abortion.

CStanley said...

James K- are you aware that many women are anti-abortion (prolife?) The idea that opposing abortion is some kind of patriarchal thing is a BS Democratic talking point and isn’t supported by the demographic breakdown in polling data.

Jon Burack said...

I really do fail to see how a federal law would be superior to state by state decisions, which is now in fact what is happening. A federal law would be a result of a battle like no other in Congress. I doubt anything could be agreed to. But certainly the law would have very serious restrictions on abortion rights or else it would never pass. But then the Democrats especially have no intention of accepting those, so again I cannot see how it would pass. On the federal level, the issue would continue its destructive divisiveness in our life and nothing more. This is one of those issues that make it clear why it is essential to preserve a robust federal system in which states decide matters not clearly delegated to the national government. We have had very extreme abortion laws passed of late - and let's be clear that it was New York that passed the most extreme law (and offensively lit up the sky in mocking celebration of it), with Alabama and Georgia now countering with laws only slightly less extreme. I am okay with this, however. Let it unfold. A pattern will ultimately prevail and once it does the issue will no longer divide one half of the nation against the other on some bogus constitutional right no one can even identify.

Jon Burack said...

As to James K versus C Stanley, I think C Stanley is right. James, I am pretty sure solid polling shows the STRONGEST support for abortion coming from young males. Woman are fairly evenly divided. I'd have to go back and check into this, but I am pretty sure it is right. ANd it is perfectly logical. Young males have a powerful self-interest in keeping unattached and unencumbered sex safe for themselves. An older strain of the women's rights movement understood this long ago. It is still true, I believe.

James K said...

“are you aware that many women are anti-abortion (prolife?)”

Of course, and I never suggested otherwise. But the “pro-choice” activist movement is dominated by women demanding “control of their bodies.” Not by men who want to be able to pressure their mistresses into having abortions. And the pro-life movement is not about protecting women from such men, it’s about protecting the unborn.

walter said...
This comment has been removed by the author.
HoodlumDoodlum said...

The right to self defense is limited by proportionality: if someone is in my yard throwing snowballs at me I can't legally shoot them even though a snowball might hit my head and cause me to fall, etc.
Basing a natural right to abortion around the concept of self-defense does not solve the question--you still need to determine if the response is proportional and the answer would likely depend on exactly the same factors we're disagreeing about to begin with.

HoodlumDoodlum said...

gspencer said...
The Article VI oath means nothing, nothing, to Democrats.

5th Amendment, for Congress, "No person shall be . . . deprived of life, liberty, or property, without due process of law"

14th Amendment, for the states, "nor shall any State deprive any person of life, liberty, or property, without due process of law"

But, but, the unborn aren't persons. Have we become that selfish?


From the discussion earlier in the week I think Professor Althouse's position is that it's up to the woman to decide whether the fetus is or is not a person and if she decides it's not then that fetus does not have any Constitutional rights, and also that those rights only restrain the State from taking action against a person, not any person from taking action against any other person (that last part I'm not certain of--she seemed to say that but then didn't answer any of the several follow up questions).

So: Constitutional rights only exist for persons and if a woman decides that her fetus/unborn baby isn't a person then that's all there is to it. That's true right up to, and in the case of infants born-alive during botched abortions right after, actual birth.

CStanley said...

Of course, and I never suggested otherwise.
Ok But stop and think for a minute...

But the “pro-choice” activist movement is dominated by women demanding “control of their bodies.” Not by men who want to be able to pressure their mistresses into having abortions.

Maybe it’s not a winning strategy to have men say that they like having casual sex so much that they want women to be able to abort pregnancies that result from that sex so that they won’t feel responsible?

And the pro-life movement is not about protecting women from such men, it’s about protecting the unborn. it’s actually very much about both.

wwww said...

"If those scenarios were most common"

Who all do you think are most likely to get abortions?
1) Adultery is a big one, because the man wants to hide the situation from his wife. 2) hook-ups and one night stands: because people are drunk. Unplanned. 3) situations where the man is abusive. 4) teenagers. They want to hide the pregnancy from parents and friends.
5) Parents who are ashamed of teenagers being pregnant.

The unmarried adults. But it's not often that abortion happens in the context of a good man saying "I'm here to economically support you, marry you, all-in on the kids and family." There's a reason I don't agree with sex outside of marriage -- the worse the situation for the girl/woman the more likely abortion occurs. Adultery, abuse, unsupportive parents, angry parents, ashamed fathers, angry fathers, a man who isn't committed or who is unreliable as a source of support. One of the reasons adultery is particularly evil is it encourages people to hide things, such as pregnancy. One of the major reason I am against unmarried sex is abortion.

Abortion is unlikely to occur when a good man proposes marriage, he's a good economic support, and he's all-in committed to the woman. I'm not saying it would never occur, but it's unlikely.

James K said...

Maybe it’s not a winning strategy to have men say that they like having casual sex so much that they want women to be able to abort pregnancies that result from that sex so that they won’t feel responsible?

Fair enough, but that's not evidence, and that argument doesn't apply to the women who should be demanding the outlawing of abortion for their protection. That's a miniscule if not non-existent component of the pro-life movement. Polling doesn't indicate strength of feelings, or motivation, and Althouse's position quoted above by Hoodlum Doodlum seems to be more representative, especially among women, than those demanding abortion be outlawed for their protection from men.

wwww said...

And the pro-life movement is not about protecting women from such men, it’s about protecting the unborn. it’s actually very much about both.

Yes This! 19th century suffragists understood it is very much about protecting babies and mothers. It's why they were so against prostitution, alcohol, unmarried sex and adultery. It's why the Women's Christian Temperance Association was the largest organization of women in the 19th century. Another reason for abortion: man leaves wife, or is cheating, and she's pregnant.

Women and girls don't get pregnant by themselves. I don't know when people decided it was A-OK to engage in unmarried sex, and teenage sex was ok, and divorce was ok, and adultery was ok if everyone was consenting. None of it is acceptable. There's a huge cost; the most vulnerable are hurt and unprotected.

We can pretend everyone is equal. But a pregnant woman is not "equal." She's not in a situation where she can support herself after she gives birth unless her parents step in, or, unless she has a a excellent job where she can hire a full time nanny. Most every woman is vulnerable. A pregnant woman needs support from a husband or from her parents -- she will need to be able to nurse the baby, care for the baby, feed the baby. A pregnant woman needs a husband who is 100% committed to the family, to the future baby, and to his wife. Pregnancy is a vulnerable state.

Gahrie said...

From the discussion earlier in the week I think Professor Althouse's position is that it's up to the woman to decide whether the fetus is or is not a person

Actually Althouse has conceded that a fetus is a person, it's just not a person entitled to governmental protection of its right to life.

also that those rights only restrain the State from taking action against a person, not any person from taking action against any other person (that last part I'm not certain of--she seemed to say that but then didn't answer any of the several follow up questions).

She definitely implied that the state was not obligated to protect our lives from anything except state action.

wwww said...

Fair enough, but that's not evidence,

I don't get it. You don't think unmarried sex outside of marriage causes abortions? Or you don't think unmarried or adulterous men pressure women to abort? Or, there's the men who don't say anything, but aren't happy. Or, you don't think women abort because she's afraid he'll leave and she's economically relying on him?

CStanley said...

Wwww.....agree 100%

James....your comments make me realize that if people from each side could discuss more freely than we’d see why our arguments and talking posts fail to convince each other. I never realized that it wasn’t self evident that we wish to protect women from the horrors of abortion at the same time as we are protecting the unborn.

This confuses me:
that argument doesn't apply to the women who should be demanding the outlawing of abortion for their protection
My position as a woman who opposes abortion is that all men and women should be demanding this. I also believe though that many men and women have bought into the lie that abortion is the answer to their problems, and that is why they do not want it banned or even stigmatized (we’ve clearly moved beyond “safe, legal, and rare these days.)

CStanley said...

That's a miniscule if not non-existent component of the pro-life movement. Polling doesn't indicate strength of feelings, or motivation

It’s certainly not nonexistent and I strongly believe it’s not minuscule. Have you been to crisis pregnancy centers operated by pro life organizations? Ever heard of post abortion counseling organizations that help women who are experiencing distress after abortions? How about Feminists for Life? I’m genuinely interested in learning where you’ve formed these opinions about the motivations of pro life people.

wwww said...

I'm curious if any woman can beat the time clock in Alabama without professional assistance?

I am unsure what you are asking, but 6 weeks is 2 weeks after the first missed period. First day of pregnancy is the first day of the period before ovulation.

-Week 1 of pregnancy:
-Period (about five days
-Week 2: Ovulation is day 11-14 in week 2
-After ovulation it takes the egg a couple of days to roll down the tubes.
-If you want to get pregnant, it's best to have sex 12 hours before ovulation, because it takes time for the sperm to swim up the tubes. -Sperm are slower then you would think. It takes a couple of days for the sperm to swim up, find the egg and fertilize. Sperm can live for about 72 hours, maybe a little longer or a little less. Have sex every two days if you're not sure when ovulation happens, if you want to time the pregnancy.
-Week 3
-Day 1 sperm embeds: Fertilization is 24 hours
-Day 2: split to 2 or 4 cells, another 24 hours
-3 days old: split again to 6-8 cells, another 24 hours.
-4 days old: Moroula
-5-6 days old: early Blastocyst to hatching blastocyst.
-7 days to 9 days: blastocyst hatches and begins to implant in the uterine lining. Implantation takes a couple of days to fully take place. It's a complicated process. After implantation it takes time before you can get HCG in your pee or your blood stream to catch on a test
Week 4
-Takes about 2 weeks or 14 days before you can get HCG in a blood test from fertilization. It's the 2 week wait if you're trying to time your pregnancy with ovulation sticks. Some very sensitive tests pee sticks can catch it before 12-14 days. Not the cheap ones. More likely to catch it earlier if your body puts more HCG in your blood earlier. Varies depending on the woman.
Week 5-6
heart beat starts week 5 or week 6.
week 7
Sometimes heart beat doesn't turn up until week 7, but it's not a good sign. If heartbeat is not seen on ultrasound by a few days into week 7, your chances of a miscarriage are up.

wwww said...

Pregnant women and girls need support. They need husbands or parents in their lives who are not angry, are not abusive, and who love them. Crisis pregnancy centers help to fill that need. Giving that support is the best way to prevent abortion and create a healthy pregnancies, a healthy baby and a healthy mother.

Bruce Hayden said...

“I really do fail to see how a federal law would be superior to state by state decisions, which is now in fact what is happening. A federal law would be a result of a battle like no other in Congress. I doubt anything could be agreed to. But certainly the law would have very serious restrictions on abortion rights or else it would never pass. But then the Democrats especially have no intention of accepting those, so again I cannot see how it would pass.”

I think that several things are going on. One is that the lefty understands that they are probably very close to losing any real chance at halting somewhat of a rollback at the Supreme Court. Justice Ginsberg is frail, 86, and has periodically battled cancer.
I think that she is desperately trying to hang on until after the next election, just in case the Dems retake the White House (and, esp if they also win the Senate too). She dies in the next 14-15 months, and the Republicans now have a 6-3 majority. The Republicans hold both the WH and the Senate, the next likely one to leave is Justice Breyer, 81. That would give Republicans a 7-2 majority. Right now, if the Republicans get to replace Ginsberg, her most likely replacement is a pro life woman. I don’t see an explicit overturning of Roe v Wade, but rather, I think more likely, allowing states to restrict abortion during at least the last trimester, and maybe from the point of viability. Except they may be tabloid enough to overturn Hyatt last week. Still, the best way to calm down the abortion debate would be to split the difference at roughly viability, which is roughly where the. American populace is.

The pro Choice are petrified of giving states back the power to significantly cut back even late and even mid term abortions by the Republicans getting a strong enough SCOTUS majority to cut back, or even reverse Roe v Wade (and esp et seq). If they get control of Congress and the Presidency in 2020 (or even 2022 when the Senate map is also good for them), this legislation is maybe their best chance at keeping even third term abortions legal throughout the country. What Fauxhauntis Warren May be doing here is opening the Overton window to such litigation.

And, yes, she is trying to gain traction on the rest of the women in the feminist lane of Dem candidates.

Bruce Hayden said...

“I really do fail to see how a federal law would be superior to state by state decisions, which is now in fact what is happening. A federal law would be a result of a battle like no other in Congress. I doubt anything could be agreed to. But certainly the law would have very serious restrictions on abortion rights or else it would never pass. But then the Democrats especially have no intention of accepting those, so again I cannot see how it would pass.”

I agree that it would be one of the most vicious fights we have seen in a long time in Congress, and if they somehow managed to pass it in this Congress, Trump would necessarily veto it. I think that it would likely also flip the House back to the Republicans.

One of the big problems I see is that Warren is trying to protect third term (and maybe even fourth term) abortions, which is a fringe position nationwide. Not in MA probably, and some other deep blue states. Third term abortion is unpopular in this country, opposed by 3/4 to 4/5 of the populace. Very strongly opposed by maybe a majority. She might have a chance at passing the legislation of she limited it to maybe prior to viability. But those abortions are likely to survive a change in Supreme Court precedent. Which is why she appears to be going all or nothing here. Not only is that not going to pass into law with this Congress, it would likely result in flipping a lot of House seats Republican, and maybe even some Senate seats.

Fen said...

A women knows best the complexity of whether or not to carry to term

No, the OBGYN knows best the complexity of whether or not to carry to term.

and must make the decision one way or the other and take responsibility.

She already knows intercourse carries a risk of pregnancy and has decided to accept that risk. She also knows that birth control is not 100% effective and has decided to accept that risk too. Why are you not holding her responsible for those reproductive decisions?

Fen said...

Pregnant women and girls need support. They need husbands or parents in their lives who are not angry, are not abusive, and who love them. Crisis pregnancy centers help to fill that need. Giving that support is the best way to prevent abortion and create a healthy pregnancies, a healthy baby and a healthy mother.

Yes, and we apply the same logic to young black males with no father figure in their lives.

But we don't excuse them from murder because of it.

Fen said...

The issue under debate is: When and by whose choice does a human life acquire and retain the right to life?

By who's choice: the same people who decided murder was illegal.

And our Rule of Law demands we err on the side of caution, "beyond a reasonable doubt".

ie. the burden is to prove the fetus is NOT a human life, not the other way around.

So, at what day are you 100% certain its not a human life?

Fen said...

-5-6 days...7 days to 9 days ...about 2 weeks... 12-14 days... varies depending on the woman... Week 5-6...week 5 or week 6.

Sounds like a lot of uncertainty.

Crazy World said...

Good Lord, what a horrible subject, kill babies or live and let live.
So crazy,heard from my 90 year old Plus parents that my 1st and 2nd grade teacher and my first best friend..their daughter will be visiting tomorrow.
So MAGA

Ken Mitchell said...

It may already be too late for a compromise on abortion. Make early abortions - up to perhaps 4 months - legal. Make later ones forbidden, with only for the mother's PHYSICAL safety.

Rape or incest? A woman would know about a pregnancy caused by rape or incest before 4 months.

But we need to have some compromise between "abortions up until the fourth trimester" - literal infanticide - and no abortions ever permitted at all. We SHOULDN'T NEED laws about this. If a woman doesn't want to get pregnant, either she should abstain from sex, or use a reliable birth control method. There's no excuse for an abortion. But we need to remove this divisiveness from our politics. Otherwise, it will in fact lead to a civil war.

doctrev said...

If the legal system can't prevent murder of its most innocent subjects, what is the point of having judges instead of a rope/ tree/ miscreant system? If the federal government can't prevent murder, how can it pretend to prevent slavery, which at least leaves both parties alive? And if a chuckservative like Kevin Williamson calls for women who have an abortion to face death by hanging (from a coat hanger?), is even elite opinion safe from the most intense pro-life ideal?

Comparing New York to Alabama, it is increasingly clear that laws (such as the Constitution) governing a mostly Christian population are wholly unable to govern a non-Christian one without wholesale mutiny. And vice-versa. The Supreme Court stands a very good chance of striking down abortion precedents like Roe v. Wade, and Donald Trump is apparently serious about nominating more judges that care about tighter restrictions on abortion, not just on the Supreme Court but throughout the system. I'm surprised anyone is still paying attention to Elizabeth Warren, and even more surprised people still read Andrew Sullivan, but of course they have to "suddenly transform" the debate. They don't really have a choice. But the political aspect of the thing is constantly shifting, and it's been talked to death, so let's focus on the judicial for a moment.

I'm surprised no one brought up Gonzales v. Carhart yet besides Ann Althouse herself. Not only was the partial-birth abortion ban upheld, but the idea of lacking a health exception was not considered unconstitutional! And it was signed by both Kennedy and Roberts. That the Supreme Court absolutely will use Roe to strike down state laws restricting abortion that HAVE a health exception, especially after Gosnell and a number of states demanding fourth trimester infanticide, is not a solid legal precedent- much less a solid prediction.

Really, it will depend on wherever the roulette wheel known as John Roberts' moral compass stops on any given day.

iowan2 said...

I've read all the arguments. The only true solution is a decision made by the people. Judges have no basis in law or statute to determine "life".
The Judiciary needs to refuse to take these cases. The people through their elected representatives will set the standards. Those elected representatives include police and prosecutors that are also controlled by elected leaders. Until an interpretation of actions taken is called into question, Judges need to step away.
The Federal govt has no jurisdiction. That would include Warrens proposal, of federal legislation.

John henry said...

Maybe we should be more like our neighbors to the south:

Abortion in Mexico varies by state. The procedure is offered on request to any woman with up to twelve weeks into a pregnancy in Mexico City, but is severely restricted in most states. As of April 2015, 138,792 abortions have been carried out in the capital city since its decriminalization (2007). The abortion laws and their enforcement vary by region, but in conservative parts of the country, women are routinely prosecuted and convicted for having abortions: More than 679 women have been convicted for abortion in conservative-leaning states, such as Guanajuato


From Wikipedia emph added
John Henry

Ann Althouse said...

The Partial-Birth Abortion law is easily fit into the commerce power by liberals, but liberals were attacking it and they didn't want to make the argument AGAINST Congress's legislative power. If they could win on that ground, they'd be stuck with a precedent they don't like. And the argument based on the abortion right was easier to make AND would provide the precedent, going forward, that they like.

A narrow Commerce Clause interpretation is something conservatives might like to argue for, generally, but it cut against therir goal here. They wanted the anti-abortion law upheld. So they didn't want to talk about it.

Could the Justices have talked about it? Yes, but none of them wanted to! Thomas and Scalia pointed it out for the purpose of preserving the viability of a commerce power argument in some later case (like one on an Eliz. Warren style of federal law).

The commerce power issue should be easy under the precedent though. That's another reason not to talk about it. But if the Court had a majority of Thomases, it would be easy THE OTHER WAY. Under the current precedent, the fact that the activity regulated is commercial is enough to get to a strong presumption that Congress has the power because, in the aggregate, abortion-providing has a substantial effect on interstate commerce.

Abortion clinics are a commercial enterprise. Abortion doctors, however sincerely they care about the lives of their patients, are in the business of providing abortions.

MadisonMan said...

Elizabeth Warren is all for expanding Federal Powers. Who could've anticipated that!

Bruce Hayden said...

Ann said it much better than I. But that is no surprise, her having spent her career explaining complex legal subjects to dense 1Ls.

I can definitely see the Fauxhauntis abortion bill Constitutionally justified under the commerce clause. It would, essentially, be prohibiting the states from interfering with the abortion business. From restricting it. And you can get around the interstate/ intrastate issue by pointing out that it only became fairly consistent among the states, greatly obviating the need to travel interstate to acquire an abortion after Roe v Wade. Before that, there was a brisk interstate abortion business, and very likely would be one again, if Roe were overturned, or even cut back.

But what would be the effect of enactment an anti-Warren/anti-abortion law, in terms of interstate commerce? The federal government would essentially be at least partially banning all commerce in regards to abortion, which includes intrastate commerce in such. Bothersome to me, but I expect fully Constitutional. After all, federal gun laws essentially prohibit the manufacture and sale of new machine guns for civilian sale, even if totally done within a single state. No doubt Idaho, only 20 miles from me here, would allow that tomorrow, if they possibly could (they repealed their entire regulatory code a couple weeks ago, which suggests a level of conservative libertarianism that much of Red State America can only dream about).

Bruce Hayden said...

We are getting close. Are we going to break 200 comments?

Bruce Hayden said...

Next one does it!!!

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