December 2, 2021

Justice Amy Coney Barrett connected the right to abortion and the right against mandatory vaccines.

This is interesting — challenging — because most people who believe in at least one of those rights believe in only one. Or so I assume. Is there entitlement to bodily autonomy or not?

Justice Barrett only made a passing reference linking these 2 purported rights. A ban on abortion after 15 weeks is "is, without question, an infringement on bodily autonomy," she said, then added that we have that "in other contexts, like vaccines." Clearly she meant mandatory vaccines.

Here's the whole context, from the transcript of yesterday's oral argument. Barrett — questioning Julie Rikelman, the lawyer for the respondent, the Jackson Women's Health Organization — brings up how easy it is these days to give up a newborn baby for adoption. Legally easy. So maybe Court shouldn't put much if any weight on the burdens of forced parenting. If the analysis is limited to the burdens of pregnancy and childbirth, Barrett says, "it focuses the burden much more narrowly. There is, without question, an infringement on bodily autonomy, you know, which we have in other contexts, like vaccines."

Rikelman does not accept the invitation to focus the burden much more narrowly. Barrett's next question comes in a form that I like, restating very clearly what you think your interlocutor just said and asking if that's accurate. But I don't think Barrett's paraphrase is accurate:
But, as I hear this answer then, are you saying that the right as you conceive of it is grounded primarily in the bearing of the child, in the carrying of a pregnancy, and not so much looking forward into the consequences on professional opportunities and work life and economic burdens?

Barrett heard wrong, Rikelman quickly responds:

No, Your Honor, I believe it's both, and -- and that is exactly how Casey talked about it. It talked about the two strands of cases that supported the right. One was the strand of cases supporting bodily integrity.... and the second was the strand of cases supporting decisional autonomy and specifically decisions related to childbearing, marriage, and procreation....

So, there are 2 lines of cases, and Rikelman, asked to abandon one, refuses. But let's examine Barrett's idea and how it relates to mandatory vaccines. If you could exclude one line of cases because of the ease of giving up your baby for adoption, then what would be left is bodily autonomy. Perhaps the idea is that if the bodily autonomy ground for the abortion right is rejected, it will be difficult to identify a right against forced vaccination. To state that in reverse, if the abortion right survives and is based on the bodily autonomy ground, it will fortify the foundation for a right against forced vaccination.

106 comments:

mccullough said...

The not wanting to be a parent right is asymmetrical between women and men.

The not wanting to be pregnant and not wanting to give birth is a better argument. It does raise the issue of mandatory vaccines, compulsory jury service, and — if a draft is ever reinstated — compulsive military service.

Bodily autonomy could just be limited to abortion right as a legal pronouncement. That would be consistent with how judges roll.

rcocean said...

THe Center-right ALWAYS gets disappointed in Republican appointed judges because they REFUSE to do their homework. They should have gotten together, done an analysis, found judges that are 99% certain be like Scalia or Thomas and told Trump to appoint them or else.

Instead, they do what they always do. They sit on their ass, let the Federalist Society or some mysterious somebodies present a list of possible candidates and then "fall in line" and support whoever the R President chooses. The only time that didn't occur was when George Bush appointed his personal friend and secretary Harriet Miers. She was so unqualified that even the usual DUMBO Conservatives refused to support her. But even then people like Sean Hannity and Hugh Hewitt supported her.

BTW, I love how all these comment sections turn into a discussion of the rights/Wrongs of Abortion. Hey, it doesn't matter what you think guys. The SCOTUS has ruled. And until you pass a constitutional admendment or the SCOTUS changes it mind, what you think is simply irrelevant.

So will ACB support overturning Roe? Maybe - but only if she knows there are 5 votes to keep it. She will never be the 5th vote to overturn it.

rhhardin said...

A fetus isn't a human is the argument. So there's no public safety reason to ban abortion. Unless arresting population decline someday becomes a public safety issue.

Vaccines are based on public safety.

mikee said...

Body autonomy? You mean self-possession, as if your body is your own property? Then I can sell a kidney from my body for $50,000, right?

Wince said...

Is there entitlement to bodily autonomy or not?

Vaccine involves what the state can force upon an individual's body.

Abortion involves the state regulating what third-party medical providers can do to your body.

Isn't state prohibition of sexual orientation conversion therapy through its police powers to regulate psychiatric practice a better comparison to abortion regulation than imposing vaccines on people?

Achilles said...

The question is why is the federal government involved in any of this at all?

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Real American said...

Personal bodily autonomy with vaccines implicate the right to give informed consent prior to undergoing a medical procedure or taking medicine recommended by your doctor. Forced vaccination destroys that right and forces you to take "medicine" mandated by politicians.

With abortion, no one is forcing the mother to inject anything into her body. That part is over. She's already pregnant and as such there are two distinct persons we're talking about. From the pro-life perspective, decision time has passed.

It's ironic that these abortion lawyers are arguing to ACB that women need abortion or they can't get ahead in their careers. She has 7 kids, two of whom were adopted, and look at what she's accomplished with her career.

Wa St Blogger said...

Bodily autonomy. Why is it that this is discussed only in terms of pregnancy after it occurs rather than before it occurs? If pregnancy happened in such a way that the the pregnant person had no agency in regards to the occurrence, we would have a much clearer case for bodily autonomy regarding the decision to abort. But we never hear discussions on whether one bears any responsibility for getting pregnant. Clearly forces impregnation is an example in which the pregnant person bears no responsibility. In the extremely large majority of cases, the person had bodily autonomy when getting pregnant.

I agree that if bodily autonomy is the basis for upholding the right to abortion, then that removes any government ability to mandate a vaccination. If abortion stands, vaccinations cannot be forced.

The converse is not true, however. Since pregnancy involves the willing participation of the woman (barring coerced or forced sex), and the abortion causes the direct and certain loss of life, it is different than being a potential vector of a disease that carries no certainty of spread and even less certainty of the loss of life. It is made worse by the fact that vaccinations do not prevent you being a carrier, so you cannot even use any imminent threat to life as a justification for forcing vaccinations. And there are alternative, less rights-denying remedies. Those not willing to contract a disease can take measures to prevent catching it. No such option for the unborn; they have no agency regarding their continued existence. Additionally, one could be held responsible for spreading a disease if they are a known carrier and did not take precautions to limit that spread (unless you have aids, then you are free not to tell others.)

Kai Akker said...

--- Is there entitlement to bodily autonomy or not?

If that were the only issue. Abortion involves a second human life, however.

Lucien said...

As a reminder, two of Justice Barrett’s seven children are adopted, so her conception of the ease of putting children up for adoption might be colored by her lived experience of adopting children. She likely has some thoughts about blending a career with child rearing too.

Temujin said...

Do you give up the right to bodily autonomy when you engage in unprotected intercourse. Yes, I know there are cases where a contraceptive did not work, but those are exceptions. At what point do people take responsibility for this activity, an activity that we all love, but clearly has a potential life altering aspect to it. This is not bowling or chugging beers. This is a life- or a potential life.

Also- the concept of Safe Harbor should not simply be waved away because it's not convenient to their argument. It actually fills needs in multiple areas. The baby is not killed. The mother is only required to carry the baby to birth, then turn it over to the state for adoption. She does not have to parent or care for the child one day more. And there are thousands of parents who cannot have kids- heterosexual and same sex partners- looking to adopt kids. It just seems like such a sane win-win-win argument.

And while you can argue that the woman should not have to carry a baby she did not want, that is- to use a phrase horribly placed by Justice Kagan yesterday- water under the bridge. Once you engage in unprotected sex and become pregnant, you cannot just call a mulligan. It's a life. In what other phase of human history do we say it's OK to kill en masse. 62 million or so in just the USA over the years. Two thirds of those, children of color. You want mass genocide for the races? This is it. Margaret Sanger would have been proud.

But I digress again. I don't know the answers to this topic. I get both sides, but I think Justice Barrett hit the simple, important path when she brought up Safe Harbor. And finally, Justice Kagan made that remark about "50 years of water under the bridge" referring to the Roe decision. What she calls, 'water under the bridge' is 62 million lives. I have never been an anti-abortion person, but as I get older and see the callousness of the pro-abortion side, I find myself moving to the other side.

Maybe it took me getting closer to my end time to realize how precious, rare, and glorious it all is.

Chris of Rights said...

My body, my choice.

rehajm said...

Rikelman does not accept the invitation to focus the burden much more narrowly...

But I don't think Barrett's paraphrase is accurate:But, as I hear this answer then, are you saying that the right as you conceive of it is grounded primarily in the bearing of the child, in the carrying of a pregnancy, and not so much looking forward into the consequences on professional opportunities and work life and economic burdens? Barrett heard wrong, Rikelman quickly responds: No, Your Honor, I believe it's both..


Could it have been a trap? Barrett is a Supreme Court Justice and mother of seven children, including two adopted and one with Down syndrome...

Rikelman should have been more willing to abandon the burdens argument...

Robert Roy said...

Personally, I'm OK with both abortion and vaccine mandates being decided at the state rather than federal or constitutional levels.

deepelemblues said...

Abortion is an infringement on the bodily autonomy of a fetus to not be killed.

Kay said...

These posts about the case have all been great. My personal view on vaccines is everyone should get them if they can, but they shouldn’t be mandatory. People might have compelling reasons not to take a vaccine. So I see no contradiction with this and my pro abortion stance.

Greg The Class Traitor said...

This is interesting — challenging — because most people who believe in at least one of those rights believe in only one. Or so I assume. Is there entitlement to bodily autonomy or not?

Rape is a violation of your bodily autonomy.

If you choose to have sex, and then get pregnant, not letting you murder the baby is protection of the baby's bodily autonomy. It's not a violation of yours, because the pregnancy came about because of your choice.

If you want "autonomy" of any sort, then with it comes the responsibility to make good choices, and live with their consequences.

You don't want to get pregnant? Then it's your responsibility, as part of your bodily autonomy, to make sure that doesn't happen.

And no, it's not your right to end someone else's life because you screwed up and let that life be created.

Gabriel said...

Perhaps the idea is that if the bodily autonomy ground for the abortion right is rejected, it will be difficult to identify a right against forced vaccination.

I don't see this at all. Abortion can be grounded on some other principle which doesn't apply to mandated vaccinations. As I've said elsewhere on this topic, it's pretty clear to me that in reality some other principle is in fact the ground, it's just not this one.

The trouble with abortion is that more than one body is affected. It's closer to conjoined twins, in a case where one twin's decisions about their own bodily autonomy may kill the other twin.

tim maguire said...

looking forward into the consequences on professional opportunities and work life and economic burdens

That's not an argument for a viability standard, that's an argument for an employability standard. This is the sort of argument that most clearly exposes abortion supporters as the vicious monsters that they are. No aspect of this argument doesn't apply to children up to at least 9 or 10 years old.

Yancey Ward said...

My prediction is still that Roe won't be overturned- but it will probably be narrowed further down to pure viability of the fetus, which is a moving target given scientific advances. If viability doesn't matter at all, then women should be free to terminate pregnancies at 9 months to be logically consistent.

Of course, I also believe that SCOTUS and the federal government have no role in this debate- the people that wrote the Constitution certainly didn't mean to make abortion a and inherent right or a power of the federal government, but can arguably have meant the entire topic to be subject to state laws. I think the same thing in regards to vaccine mandates- the federal government has no role in this debate either.

gahrie said...

Perhaps the idea is that if the bodily autonomy ground for the abortion right is rejected, it will be difficult to identify a right against forced vaccination.

There is a huge difference in the issues. Vaccination only involves one person, abortion involves three people. (Mother, father and baby)

Where are the arguments involving a father's rights concerning abortion?

Are we supposed to be comfortable with the idea that men have responsibilities and no rights and women have rights and no responsibilities?

Greg The Class Traitor said...

Let's consider some other government violations of bodily autonomy:

1: Suicide. "It's my body, I can do what I want with it!" Well, then, clearly anyone who has a right to abortion (like 13 year olds, according to the Left) must have the right to commit suicide. It's his or her body, not society's

2: Drugs. You can make a legitimate case that society has a right to control the distribution of antibiotics, because your abuse of them can create a bug that will kill me.

But pain killers? Amphetimines? Human growth hormone? Steroids? Sorry, but if I have a government recognized right to bodily autonomy, you don't have the slightest legitimate grounds to demand I get a prescription before I get those drugs and use them.

3: Selling organs / blood. It's against the law for you to get paid for providing your body parts to someone else. If you donate a kidney to someone else, every single person who's part of that process gets paid, except for you.

This is a clear violation of my bodily autonomy

"But, allowing those things would cause major problems!!"? So what? Allowing the murder of a million+ babies a year causes a lot of problems, too, but you claim the State can't stop that.

Principles are rules you follow even when you don't like the outcome. If you're not willing to legalize all of the above, don't tell me abortion is a constitutionally protected right. Because if it was. all the above would have to be legal, too

Václav Patrik Šulik said...

I agree, although I think there is room for a balancing test (at the risk of sounding like Justice Breyer). What is the burden on losing some bodily integrity and what is the benefit for the other person.

In the case of abortion, the burden is the 35 (or fewer) weeks a woman (or man, in our brave new world) has to knowingly carry another human AND the considerable cost of delivering that new human to the world. These are truly significant burdens. In addition to those known burdens, there is the potential burden of the risk to one's health and possibly one's life. On the other side of the equation is the life of the developing human being which must be sacrificed so the mother (fetus-bearer?) doesn't have to bear those significant burdens.

In the case of the vaccination, the costs to the person are relatively low (compared to the burden example). There is the immediate pain of the jab and the short-term discomfort. In come cases, a person may get sick (I ran a fever for three days after both Covid vaccinations). In rare cases there may be more significant developments (I was hospitalized for five days due to internal bleeding which correlates with the first vaccine. It is not clear that the vax caused the bleeding, but there were no other unusual factors present.). On the other side of the equation is that if one does not get the vaccine, the unvaccinated may contract and spread the disease to others. In addition, the unvaccinated person may pass on the health care costs to others.

Now, weighing these costs and benefits seem to me to be a matter for our elected officials to decide, as opposed to the judiciary. The Roe trimester framework was a perfectly valid legislative scheme - I disagree with it, but it could be defended. The Casey framework - except for the "undue burden" test - moving the line to viability made more sense.

On the other hand, if there were a constitutional provision - "Since bodily integrity is necessary to the operation of a free State, the right of the people to obtain an abortion, shall not be infringed." It would make sense for the Courts to intervene and strike down laws like Mississippi or Texas.

stutefish said...

The argument of bodily autonomy hinges on the assumption that there's only one body involved. Make that assumption, and the answer in the case of abortion is pretty obvious from a human rights point of view. (Or is it? Does someone suffering from Body Identity Integrity Disorder have same right to get rid of their legs, as to get rid of an unwanted fetus?)

On the other hand, we can't necessarily assume that there's only one body involved with vaccines. Sure, I get vaccinated primarily for my own sake, but this also reduces the risk I pose in carrying remnants of the disease and transmitting them to others. Too, not getting vaccinated potentially burdens the hospital system, which involves my entire community.

So even if bodily autonomy applies with abortion because we assume only one body, there is no useful analogy with vaccines.

And of course if we assume there's two bodies involved in cases of abortion, then the whole question of bodily autonomy goes out the window. In my view, if the fetus is a person (a "body"), then the mother has an inseparable duty of care, that cannot be abdicated except in certain extreme circumstances.

Barrett's connection is lazy and careless, that elides the central point of the dispute. She makes a useless analogy she has no intention of developing or even thinking about seriously

Gabriel said...

To state that in reverse, if the abortion right survives and is based on the bodily autonomy ground, it will fortify the foundation for a right against forced vaccination.

I agree with this. You'd have to find a principle that applies to vaccines which doesn't to abortion which distinguishes the two.

A lot trickier. With abortion, one person definitely, directly, and deliberately ends the life of another. With vaccination, an unvaccinated person may contribute unintentionally to making someone else sick, maybe even someone they never met, and that person may die. But it will be almost impossible to establish the causal connection. It is very hard to identify why bodily autonomy lets you kill another human with 100% probability in one way, but doesn't let you avoid the possibility of killing someone in a much less direct way.




Christy said...

Would Barret have misstated the idea in order for Rikelman to more clearly and more firmly establish her approach for the record? IOW make it super clear for all the politically active non-lawyers. Or is that something judicial folk just never do?

Chris-2-4 said...

I think it would help the debate if the choice side could stop dancing around the true issue that they want abortion in order to allow women to be free of the shame of having gotten pregnant if they are not going to bring it to term.

Adoption is a clear and attractive option if a woman simply doesn't want to be a parent. But adoption means that the woman has to "endure" (in many or most cases) the brief manifestation that they are/were pregnant. Adoption can relieve her of the child, but not the guilt. Abortion promises to take away the shame and the guilt of having become pregnant, although.. does it?



Original Mike said...

"Justice Amy Coney Barrett connected the right to abortion and the right against mandatory vaccines."

Isn't the phrase "right to abortion" an exaggeration? I'm not following the details of this debate, but isn't what's being argued about is the right to an abortion between 15 and 25 weeks? (I apologize if I got this wrong).

Hey Skipper said...

Perhaps the idea is that if the bodily autonomy ground for the abortion right is rejected, it will be difficult to identify a right against forced vaccination.

Argument by analogy is almost always a fallacy, because analogies almost always elide important elements of the original position, while failing to clarify anything.

Just so here. The analogy omits the fetus's bodily autonomy, thereby completely eliding the pivotal issue.

If Roe is overturned, then at least some degree of fetal bodily autonomy will be restored. How does that weaken a right against forced vaccination?

Louise B said...

Well, I guess I'm one of those rare people you're looking for. I'm pro-life, against abortion, AND I'm against these mandatory vaccines. I'm not against vaccines in general. My children were vaccinated against the usual diseases, and I've gotten shingles, pneumonia, etc., but it was my decision to do so.

Critter said...

Sure seems like ACB was thinking ahead and signaling a line of reasoning for the inevitable vaccine mandate cases.

At a minimum it requires abortion advocates to provide a distinction between the right as applied to abortion vs. vaccines.

Duke Dan said...

Of course I have the right to bodily integrity just like I have the right to speech. I get that from nature’s god not the constitution. What we are discussing is whether the government has the power to violate that right. For the same reason that some framers didn’t think we needed a bill of rights, the answer is no. The constitution does not grant to the government the power to violate that god given right

This, vaccine mandates are unconstitutional.

For abortion the question is different as the government isn’t trying to force the procedure. Rather it is trying to address how to secure the god given rights of two individuals which is literally part is the preamble as being the whole point of the constitution. So the question here is at what point does the right to bodily integrity of the fetus begin.

This whole question is easily stated as above yet no one frames it this way in discussion.

Original Mike said...

"because most people who believe in at least one of those rights believe in only one. Or so I assume."

IDK about your assumption. For example, I support a right to an abortion up to some date and I support the right to refuse these vaccines.

Earnest Prole said...

Shorter Dahlia Lithwick: The Supreme Court is illegitimate because it does not share my legal and political preferences.

Blair said...

It's an incisive question. I have four children, and they all infringe on my bodily autonomy. However, I do not have the legal right to murder them to relieve myself of this burden. The lawyer has to make the case that the undue burden is specific to pregnant wome... I mean persons, and them only. The mere prospect of parenhood is manifestly insufficient. The pregnancy itself is supposed to be the defining factor.

Sebastian said...

"Is there entitlement to bodily autonomy or not?"

Based on what?

The 14th, maybe: no deprivation of life and liberty without due process--obviously OK with "due" process, unless process gets twisted by judicial imperialists into something "substantive."

I am open to debate about a constitutional amendment or debate in state legislatures on the subject. I oppose judicial fabrications of "entitlements."

Lem said...

Abortion on demand is the legacy of a feminism that believe perhaps still that women are entitled to the same freedoms as men and if reproduction gets in the way of achieving that parity abortion on demand should be available as a remedy. Abortion on demand should be updated to reflect American women current affluent standards of living. I’m just saying.

West TX Intermediate Crude said...

C'mon, man!
Gall bladder removal, hip replacement, abortion, appendectomy, facelift.
All are surgical procedures.
One of them is not like the others.
Give up?
A baby dies.

We don't force anyone to have any of these operations. We do restrict only one of them, because it is different.

We don't force anyone to take blood pressure medicine. We don't force people to take anti-psychotic medication even though refusing is proven to increase risk of anti-social and even violent behavior. Forcing vaccination for a statistically minor individual and societal benefit? No, thank you.

Disclosure: I am (voluntarily) vaxxed. I did have a minor case of the virus pre-vax. Not boosting (yet). Vax passport? that's a red line and a hard no.
Ihre papieren, bitte!

Lloyd W. Robertson said...

I sympathize with anyone who says don't trust Tony Fauci, or the public health establishment. They have careened from one mistake to another in covid time. But of all things to fasten on and say: now they are turning into fascists, why the vaccines which seem clearly to do more good than harm? By all means consider age segmentation, don't vaccinate kids (so much of this has been a conspiracy of the old against the young), give credit for natural immunity, etc. But don't go all anti-vaccine.

Getting back to Barrett: it should be possible to have constitutional language saying: government officials can react to an emergency by imposing limits on what people can do and even say. This should only be for a short time, the shorter the better, and it may be that if officials go too far in the early stages of a crisis, they will be forced to lift restrictions later, even if by some measures the crisis is worse. There should be great hesitation about denying people's usual rights to mobility and so on. This still sounds like people might be litigating almost everything, and I would hope to find some language to avoid that. Maybe an undue burden test can actually help here.

Gator said...

We adopted a baby, it isn't easy, for the birthmother and the parents. States mandate a waiting period in the scope of 2-31 days (some are better than others, Missouri good, Pennsylvania terrible) until the adoption is complete on that end, then you have to wait to take the child out of state which can be another 30 days.

It is close to 6 figures to adopt, its one of the more ignorant pieces of American society that you can just go to Target and pick up a baby.

Mark said...

Let's see, is there a difference between the (1) government compelling someone to take an artificial action that invades one's body and (2) prohibiting the killing of another human being with respect to a natural process of the body?

You want to insist upon stare decisis? Then RECOGNIZE as Roe did that a woman cannot be isolated in her pregnancy. There is another human life involved. That takes it out of all of the other cases that are speciously put forth here.

Furthermore, pregnancy is not imposed upon the woman by the government. It is the natural consequence (in all but a small percentage of cases) of one's voluntary activity. Neither is pregnancy a disease or a dysfunction of a woman's body. Pregnancy is a woman's body acting the way it is supposed to act.

Please do us all a favor and step away from the straws. Your grasping at them is unseemly.

jim5301 said...

And there is the bodily autonomy of the Justice's children whom she dragged maskless to her party/super-spreader event at the White House.

Mattman26 said...

It is interesting that fate has placed both issues front and center at the same time.

I'm guessing the Venn diagram of those who think the government shouldn't be able to interfere in the decision to carry a pregnancy to term and those who think the government shouldn't be able to mandate a vaccine does not have much overlap.

Freder Frederson said...

I was shocked by this assertion. She seemed to be saying that pregnancy is not burdensome on a woman (hey, I had five babies and looked where I ended up). This is the position of a clueless rich (or at least upper middle class) woman. If she is going to rest her jurisprudence on her personal experience, we are all fucked.

M said...

Hmm. On the flip side of that argument if the court decided the state has the right to force vaccinations for public safety wouldn’t that open up the question if the state has the right to sterilize people who have genetically linked behavioral issues on the grounds their children are more likely to be violent criminals or that they are more likely to harm their own children?

gadfly said...

I hate to be the idiot who points out the obvious, but the "bodily autonomy" is not the same for everyone. Men obviously have no right to abortion, children's rights are limited because of dependency (which is also true of the unborn) and our mentally incompetent are limited by anything from birth impairment to dementia.

But women's rights in America to kill their unborn is unique in the world in permitting murder and doctor's rights to assist in ending the lives of viable human offspring goes against their Hippocratic Oath.

I has always been amazed that any goal of averting violence against women and their developing pregnancies has been deemed secondary to the obvious selfishness of the declared "reproductive rights" of women through abortion under an unconstitutional ruling by the Supremes almost 50 years ago.

Meanwhile back at the ranch, 31 states currently have laws that recognize the unborn as victims of violence in some form, to protect them from assault and murder. Wouldn't it be better to protect all women and all of their children on an equal basis?

Sadly, coat hanger abortions are easy now using abortion pills, so nothing really changes except the artificial controversy keeping Planned Parenthood making money changes from running bloody clinics to selling what-will-be, really, really expensive pills.

Saint Croix said...

That's a pretty lame analogy, I think. Clearly it would be unconstitutional for the government to mandate abortions. That would be 9-0 (I would hope), although I do recall some feminists who loved the China "one child" policy.

Mandating violence against individuals is obviously unconstitutional. But it doesn't follow that individuals have a right to do whatever they want with their body, including injecting heroin, for instance. (Roe explicitly rejected that argument).

Those alleged rights fall under the "right to contract" anyway, as the individual exercising her autonomy has to contract with other people to make that baby disappear. So if liberals were honest, they would acknowledge the $1 billion dollar abortion industry, and how the Supreme Court's abortion jurisprudence has really fucked up health regulations of that industry.

But liberals are incapable of honesty, it seems. That's why they think you can just call a baby a fetus and the homicide issue goes away. The pretense that this isn't commerce is just another lie on top of the big whopping lie.

rcocean said...

Did you comment on Sotomayer stating:

"Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts? I don’t see how it is possible," she said, while questioning Mississippi Solicitor General Scott Stewart."

You can see the respect for norms and traditions of the SCOTUS in this sentence. If Sotomayor votes "its upholding the constitition" if you vote against her "its a political act that will cause a STENCH".

This from the most poltical person on the court, who decides everything on the basis of her personal prejudices and politics.

Quaestor said...

Justice Barrett caters to the pro-choice faction by drawing a large circle around two separate questions in the hope of creating a new left-right consensus. Specifically, if the law of the land has no authority over a woman's pregnancy, then the law ought to have no authority over a citizen's immunization status. Easy peasy -- if the anti-vaxxers will defend abortion rights, then the infanticides will naturally defend the public against vaccine mandates.

I'm very skeptical of Barrett's probity in this case. This seems to be a "top of the head" comment because with only a moment's reflection it's easy to see why this hypothetical coalition is doomed to crash and burn.

jaydub said...

I'm still puzzled by the implication that the the MS abortion law outlaws abortion, given that it allows abortion during the first 15 weeks of pregnancy as is the case in almost every European country. In point of fact, it only brings the MS law in line with abortion laws in the rest of the civilized Western world. If European women are able to figure out whether or not they want an abortion in the first 15 weeks, why are people saying American women aren't smart enough to do so as well?

Original Mike said...

"If European women are able to figure out whether or not they want an abortion in the first 15 weeks, why are people saying American women aren't smart enough to do so as well?"

The people whom liberals "protect" are always too stupid to act on their own without assistance. (see voter ID)

Jupiter said...

"Is there entitlement to bodily autonomy or not?"

You mean, does the baby have a right not to be ripped to pieces with forceps? Yes, the baby does have that right. I should think that would be obvious.

JustSomeOldDude said...

The two examples are widely different.

A vaccine mandate is the government forcing you to do something to your body.

An abortion ban is the government preventing you from doing something to your body. In a purer sense, it is a law prohibiting someone from doing something to your body. We have many laws (such as those outlawing assisted suicide, drug use, etc.) that do this sort of thing.





Jim at said...

Some consistency would be nice.

I mean, conservatives weren't the ones screaming, "My body, my choice!!!" until it was already etched in stone by the left.

Richard Aubrey said...

A couple of years ago, I read of an abortion provider saying the fetus--he called it--had defensive wounds on his--he said-hands.
Hard to think of that and how far back in development one must go to....not think about that.
But...put it to the states.
Among other things, abortion rights supporters will have to actively support the rights, not merely refer to a half-century old decision by the Supremes. They'll have to be on the side of the provider, not the kid with defensive wounds on his hands. Publicly. Financially.

This Person said...

This comparison is much more damaging to abortion cheerleaders than abortion opponents.

If you think there is a constitutional right to abortion based on bodily autonomy, even if exercising it is guaranteed to kill someone, then you don't have much of an argument against a right to decline vax based on bodily autonomy, particularly where refusing to vax is nowhere near a guaranty to kill someone.

On the other hand, if you think there is no constitutional right to abortion, that doesn't necessarily lead to a conclusion that the federal government has the right to forcibly vaccinate you.

Mark said...

I'm still puzzled by the implication that the the MS abortion law outlaws abortion, given that it allows abortion during the first 15 weeks of pregnancy as is the case in almost every European country

This is true. It is also true that the NEXT case to come before the Court -- if the Court belabors this again and again and again rather than finally being rid of it -- will involve a law imposing a limit at 12 weeks. Then another at 10 weeks. Then another at eight weeks. Then another at six weeks (which is more or less when a woman might determine that she is in fact pregnant after having missed her period).

Either there is a rational basis for a limit or there is none. The line actually drawn is irrelevant. Either the entity involved is a living human being or she is not, whether at nine months or nine weeks.

Conrad said...

Putting aside the bodily integrity arguments, many of the vaccine mandates are unconstitutional for the simple reason that the government authority purporting to impose the mandate is a governor or lesser executive official operating without legislative authorization. They are just operating by fiat, like a dictator.

Even if properly legislated, vaccine mandates are of dubious constitutionality where, as with covid, the risk posed to others by a person's being unvaccinated seems incredibly slight. What's the actual risk of an unvaccinated person infecting a vaccinated person and causing that person serious harm? Does anyone even know the answer to this question? It can't be that great a risk because we're being told over and over again that getting a vaccine greatly reduces your chance of getting infected, and virtually eliminates the chance of hospitalization and death.

Also, needless to say, if a vaccine mandate doesn't exempt folks with natural immunity from previously having covid, it's clearly overbroad and likely in effect for some ulterior purpose. (IMO, that purpose is simply to punish people who are perceived to be on the right and/or perceived to be insufficiently compliant with governmental dictates. The sheepish left want mandates because they know a percentage of hardliners won't comply, and so they can be identified and further marginalized from polite society.)

So covid vaccine mandates have, at best, some SLIGHT marginal benefit in reducing the risk of harm to vaccinated individuals. That slight benefit, however, does not necessarily justify violating someone's bodily integrity by forcing them to take the needle.

OTOH, where an abortion takes place, it is 100% certain to result in the death of a fetus. In that case, it would seem that the state has a far greater right to infringe upon a person's bodily integrity to prevent an abortion than it does to impose a covid vaccine mandate.

Quaestor said...

gadfly writes, "I hate to be the idiot who points out the obvious..."

Is there room in the Idiot's Penalty Box for me?

Dave said...


Wed, Apr 21, 3:41 PM [2021]
to Ann

Hello Ann,

I have a friend in Germany who is very opposed to being vaccinated, and she keeps asking me if she comes to America if she can be forced to be vaccinated.

I write to you not because YOU, Law Professor, but because I know that abortion is an issue you care about and it seems related to this issue. For the record, I mostly agree with you that abortion should be kept legal, but that we should find ways to minimize. I hope I have you right on this.

So the vaccine, in a way seems like a similar issue. My body is sacrosanct and it should be me that gets to decide what to do with it, however the argument is that there is compelling public interest to force folks to be vaccinated.

Of course, one could argue there is compelling public interest not to abort children. I can intuitively feel that public interest in this latter might not be as arguable; at least I would have a harder time arguing it.

I send this to you not because I expect you to answer directly, but as possibly something you might consider and write about if the mood strikes you.

If you already have a post related and you wouldn't mind forwarding the link to me, I would appreciate that. Also, if you should write about this, emailing a link to me would be nice.

I understand that I might be confusing issues, so that is why I write.

Warmest regards,
David

Chris Lopes said...

"
A fetus isn't a human is the argument. So there's no public safety reason to ban abortion."

Roe and Casey admit there is a place for "governmental interest" in the question of abortion. They just place that interest later in the development phase of the baby than pro-life people are (rightly) comfortable with.

I'd buy the "a fetus isn't human" argument if someone would kindly explain how passing through the pubic arch magically endows one with humanity. Of course even then, abortionists argue that the child can be killed (as in left to die) if the mother intended to kill it in the first place. So really, at what point do abortionists admit the child into the human family? When they register to vote?

n.n said...

Pregnancy, with rare exception (e.g. rape... rape-rape (involuntary exploitation), perhaps incest (superior exploitation)) is a woman's choice. The outcome of Her Choice is separable, and while we have some influence, it's mostly decided by fate.

There is no mystery in sex and conception. A woman and man have four choices: abstention, prevention, adoption, and compassion, self-defense (not Capitol Hill "hero" plausible cause), and still six weeks (until observable reproducible heart beat, also nervous system development) to hold a reproductive rite to relieve the baby "burden" for light, social, redistributive, and fair weather causes.

The non-sterilizing "vaccines" are a high-risk proposition, with progressive (i.e. durability, robustness, adverse events) benefits for people... persons who are not immune, resistant, or otherwise at low risk to exposure. A mandate that follows the cargo cult with viable legal indemnity.

The epidemiological relevance of the COVID-19-vaccinated population is increasing

Silent spread.

Howard said...

Abortion was legal under common law and not controversial when the Constitution was adopted. Anti abortion laws were enacted as a counter punch to the woman's sufferage movement.

In ancient times women used many methods to abort children and the only real problem with it was when it was done against the father's wishes.

The problem today is no one really wants to compromise on the issue. I think coming up with a medical standard of viability and pain thresholds would be a move in the right direction, but that's not going to happen.

Besides, the opposing political parties like using this type of bright line hot button issues for fundraising and votes.

RigelDog said...

"One was the strand of cases supporting bodily integrity.... and the second was the strand of cases supporting decisional autonomy and specifically decisions related to childbearing, marriage, and procreation...."

Finally, an approach that delineates what I've been seeing as a Great Divide!

Every abortion discussion should start with identifying two key premises:
1) Is a woman entitled to bodily autonomy; that is, to the removal of a fetus currently trapped inside of her body, and/or
2) Is a woman entitled to a dead baby?

If the right to abortion is premised on the idea of the right to avoid the ongoing decades-long burden of parenthood, then a woman should be entitled to abortion at any time for any reason, and she should be guaranteed that the fetus will be killed in the process. Remember, a fetus doesn't HAVE to be killed in later pregnancy just to remove it from the mother's body; the process involves induced labor regardless of whether the child is "wanted" or would "ruin" the mother's life.

Of course this directly collides with the role and rights of the father of the child. He has no right to tell her what to do with her body, right? She can remove the fetus anytime, BUT does she have a right to deny the removed fetus a chance for survival? Once the fetus is out of her body, each parent has an equal right to discuss disposal.

So many logical, ethical, moral and legal questions ensue.

n.n said...

If European women are able to figure out whether or not they want an abortion in the first 15 weeks

The issue of merit is on what basis are women denied their bodily autonomy, their public/private choice to hold a reproductive rite, in the second, third, and, in the rare occurrence, fourth trimesters?

Roe, Roe, Roe your baby down the river Styx. #HateLovesAbortion

n.n said...

I do recall some feminists who loved the China "one child" policy.

Selective-child is one-child's bastard (shared/delegated responsibility) child that was legalized under the Twilight Amendment, then normalized under the Pro-Choice religion to relieve a woman and man's conscience, resolve their choice (sex and conception), and reduce, reuse, recycle the baby "burden" for light, social, redistributive, and fair weather causes. The feminists embraced the allegation of systemic rape... rape-rape, as a viable apology for planned parent/hood (i.e. wicked solution), until they realized that it implicated an inordinately diverse (number, not color) distribution of men, boys, and women (e.g. #MeToo #HerToo #SheProgressed).

Chris Lopes said...

"On the flip side of that argument if the court decided the state has the right to force vaccinations for public safety wouldn’t that open up the question if the state has the right to sterilize people who have genetically linked behavioral issues on the grounds their children are more likely to be violent criminals or that they are more likely to harm their own children?"

The very reason Saint Margaret of Sanger started the whole birth control movement. Those dirty blacks (and Hispanics, and Irish, and Italians, and.....well you get the idea) were outbreeding "pure" Americans and destroying society. They must be stopped!

Of course even Sanger would have been shocked by the push for abortion. She thought it was a bit too extreme. She preferred preventative steps that could be sold as sexual freedom.

n.n said...

It's ironic that these abortion lawyers are arguing to ACB that women need abortion or they can't get ahead in their careers. She has 7 kids, two of whom were adopted, and look at what she's accomplished with her career.

The abortionists' apology is plausible as a revealed truth, but unbelievable on the facts in evidence.

MSOM said...

A Siamese twin has less bodily autonomy than I do. Not because he deserves that autonomy less than I do, nor because I am entitled to rights that he is not. But because he shares parts of his body with another person and so literally does not have autonomy over those parts.

*If* a fetus is another person [which is the key question that people disagree on] then a pregnant woman shares part of her body with another person and so literally does not have autonomy over some part of her body. This is not a question of deserving certain rights, but the simple fact that no one has autonomy over something that is shared with another person.

Lewis Wetzel said...

"Bodily autonomy"? This is a pop-culture thing, not a legal thing. Is there some test that determines whether or not a law violates the principle of "bodily autonomy"?

Jupiter said...

"The burden of parenthood is an obstacle to women’s success", the pro-abortion attorney tells Amy Coney Barrett, a mother of seven who is a sitting Supreme Court justice.

Achilles said...

Greg The Class Traitor said...

If you choose to have sex, and then get pregnant, not letting you murder the baby is protection of the baby's bodily autonomy. It's not a violation of yours, because the pregnancy came about because of your choice.

Women only want rights.

Not responsibilities.

At least some women who don't understand that rights without responsibilities are destructive to the individual and corrosive to society.

There are some adult women out there.

Some.

Lewis Wetzel said...

Blogger Freder Frederson said...
I was shocked by this assertion. She seemed to be saying that pregnancy is not burdensome on a woman (hey, I had five babies and looked where I ended up).


More or less burdensome than spending a couple of years in the army against your will, Frederson?

Tom Grey said...

Harriet Meirs would have been better than Sotomayer is; "not a legal giant" or even uncredentialled is not a great criticism, but is already made too often by elites. Common sense is often better than highly trained legal training which encourages rationalizing any position your emotional heart has already chosen for you.

@Achilles does good comments, on the 10th, so I don't have to. Thanks.

"if the abortion right survives and is based on the bodily autonomy ground, it will fortify the foundation for a right against forced vaccination."
But giving the 15 week old human fetus some bodily autonomy rights can also fortify the right against forced vaccination.

Every Human life started at their conception - the political question is when does the human fetus "right to life" override the desire of the pregnant mother to kill that human fetus for her own individual convenience reasons.

Achilles said...

jaydub said...

I'm still puzzled by the implication that the the MS abortion law outlaws abortion, given that it allows abortion during the first 15 weeks of pregnancy as is the case in almost every European country.

But the baby parts aren't worth much until after 15 weeks when the baby is bigger.

This is about a prog slush fund worth billions of dollars.

That is why Ann's arguments and the rest of the Religion of Roe are so incoherent. They can't see what is going on.

TRISTRAM said...

Just out of curiosity: Do we know the proportion of abortions performed for reasons of rape or incest? I mean, that is the card ALWAYS pulled out against pro-life, but how common is it? If it is like 0.05%, then what is that? "better that 99.95 percent die than make 0.05% live with an 'abomination'"?



How about any abortion require a sworn statement of rape ofr incest? That would also probably reduce the amoutn of casual unprotected sex. Win-win.

rhhardin said...

"abortion and the right against mandatory vaccines"

I see what she's thinking. It's the turkey-baster analogy.

Gospace said...

Saint Croix said...
That's a pretty lame analogy, I think. Clearly it would be unconstitutional for the government to mandate abortions. That would be 9-0 (I would hope), although I do recall some feminists who loved the China "one child" policy.


Oliver Wendell Holmes Jr wrote in Buck v Bell “Three generations of imbeciles is enough.” in a decision at the SC allowing Virginia to surgically sterilize mental defectives without their consent.

I wouldn’t be counting those 9-0 votes against government mandated abortions until and unless it happens.

Kevin said...

She seemed to be saying that pregnancy is not burdensome on a woman (hey, I had five babies and looked where I ended up). This is the position of a clueless rich (or at least upper middle class) woman. If she is going to rest her jurisprudence on her personal experience, we are all fucked.

How is that less relevant than, "Hey, I read about a school shooting and it made me sad."

Left Bank of the Charles said...

The transcript suggests that Gorsuch is struggling with Roberts idea of replacing the viability line with a 15 weeks are not an undue burden line without some principled basis for setting the new line. Let’s say he can’t get over that but Roberts can. Then we might have 4 votes for keeping the viability line, 4 votes to overrule, and 1 vote to move the line.

hilaris said...

There is a world of difference between receiving a vaccine and eliminating an offspring. The one action protects life, the other ends life.

farmgirl said...

Maybe she’s being subtle about the body carrying “the body”… if it can be torn apart limb from limb: of which many pictures exist as proof- then who’s body is being violated? Because a body cannot speak for itself doesn’t mean it can be annihilated. Or parted out and sold in pieces.

Women have so much power- &it’s squandered on egomaniacal issues.
We are so much better than this.

farmgirl said...

Gadfly? 1:04pm?
(… shakes phone vigorously)
(… stares at comment in disbelief)

OM’gawsh!!!
Common ground!!!
I could kiss u

farmgirl said...

Dear Freder- where I live, there is systematic, cyclical welfare where a child is an income and more children- a career.
Don’t tell me these people think it’s difficult. It’s the middle income people that have to decide between buying kids braces or upgrading a vehicle so less money is poured it it’s upkeep.

Speaking from experience…

My name goes here. said...

Regarding sez...
A fetus isn't a human is the argument


Abortion kills human life that is a biological fact, not a theological tenet. The unborn baby is human, they are human life.

The question is, are they a person.

c365 said...

I'm not covid vaccinated and as a healthy individual who takes no drug (legal or otherwise), and exercises 5-15 hours a week 52 weeks a year, had covid and trained for an ironman throughout being not-sick.

I would get vaccinated with any and all vaccines you want to throw at me if it means babies couldn't be killed for the sake of female "body autonomy".

Josephbleau said...

I would say that the most concrete interest in this case is Planned Parenthood. They want the biggest most valuable infant body parts to sell, so they would like to increase the time women have to grow bigger fetuses. I think 15 weeks is OK but it will still be fought against.

Narayanan said...

Q: is the reluctance to face up to the possibility of faetus being extracted live from the womb because of (hidden) desire to achieve actual terminaton of life not just the pregnancy?

fans of Vorkosiverse and uterine replicators will get where I am coming from - as Aral says all true wealth is biological

Narayanan said...

jaydub asks :
If European women are able to figure out whether or not they want an abortion in the first 15 weeks, why are people saying American women aren't smart enough to do so as well?
---------
could it be that the tissue banks industry probably demands variously aged baby parts provided by Planned Parenthood!

I would be interested to find out how long any client of ?Planned Parenthood! has to wait from approach for service to procedure

Greg The Class Traitor said...

jim5301 said...
And there is the bodily autonomy of the Justice's children whom she dragged maskless to her party/super-spreader event at the White House.

Some day, Jim, you're going to come up with an intelligent argument.

But today is clearly not that day.

1: Covid essentially does nothing to children. You might as well take about a mother violating the bodily integrity of her children because she takes them to the grocery store with her. Because the drive to and from teh store is a far bigger threat to teh kids than Covid.

2: What "super spreader" event was that? How many people were infected? Was it more or less than at Barack Obama's most recent birthday party?

Cormac Kehoe said...

The complete overturning of Roe as without basis in Constitutional text, i.e., without the substitution of another "ConLaw" standard, would enable more aggressively antiabortion legislatures to outlaw abortion in its entirety, would it not? Isn't that what the pro-abortion folks fear?

Bender said...

The unborn baby is human, they are human life.
The question is, are they a person.


The question is are there two classes of humanity or just one?

One humanity that is "deserving" of what we call personhood, and another lesser subhumanity that is not?

Bender said...

And Howard, do yourself a favor and don't get your abortion history from Harry Blackmun.

Saint Croix said...

Abortion was legal under common law and not controversial when the Constitution was adopted.

This is complete horseshit. The case law was in regard to men beating pregnant women in the street, and whether or not a murder charge should hold up.

The common law was hardly feminist (duh).

Saint Croix said...

Anti abortion laws were enacted as a counter punch to the woman's sufferage movement.

Now you're just making shit up. The suffragists were pro-life, or at least anti-abortion, because of the horrific damage that abortion did to women throughout much of the 20th century.

Saint Croix said...
This comment has been removed by the author.
n.n said...

Fetal development

Learn how your baby is conceived and how your baby develops inside the mother's womb.

...
Week 1 to 2

The first week of pregnancy starts with the first day of a woman's menstrual period. She is not yet pregnant.
During the end of the second week, an egg is released from an ovary. This is when you are most likely to conceive if you have unprotected intercourse.

...
Weeks 6 to 7

Arm and leg buds start to grow.
Your baby's brain forms into 5 different areas. Some cranial nerves are visible.
Eyes and ears begin to form.
Tissue grows that will become your baby's spine and other bones.
Baby's heart continues to grow and now beats at a regular rhythm. This can be seen by vaginal ultrasound.
Blood pumps through the main vessels.


Four choices, self-defense through reconciliation, and still six weeks to hold a reproductive rite.

Demos-cracy is aborted in darkness.

walter said...

Abortions have a far better efficacy track record than the jabs.
I say jab that unthinking, but flinching, fetus...then abort it.
SCIENCE!

BUMBLE BEE said...

IIRC the biological definition of human life's beginning is at conception. That has been changed, along with the definition of vaccine. Isn't science frustrating?

wendybar said...

gahrie said...Where are the arguments involving a father's rights concerning abortion?

Are we supposed to be comfortable with the idea that men have responsibilities and no rights and women have rights and no responsibilities?

12/2/21, 10:46 AM

DING, DING, DING!!! THIS^^^^^^^^^^^^^^!!!!!!!!!!

wendybar said...

Louise B said...
Well, I guess I'm one of those rare people you're looking for. I'm pro-life, against abortion, AND I'm against these mandatory vaccines. I'm not against vaccines in general. My children were vaccinated against the usual diseases, and I've gotten shingles, pneumonia, etc., but it was my decision to do so.

12/2/21, 11:11


I fell the exact same way.

wendybar said...

"feel"

JAORE said...

" If she is going to rest her jurisprudence on her personal experience, we are all fucked. "

Yeah, not at all like a "wise Latina".

Greg The Class Traitor said...

Lloyd W. Robertson said...
But of all things to fasten on and say: now they are turning into fascists, why the vaccines which seem clearly to do more good than harm?
1: Because, at a public health level, these shots do NOT "clearly to do more good than harm".
Draw a graph of State vaccination levels vs State Covid infection levels. THere's no linear relationship showing an incre3ase in vaccination leads to a decrease in infections
2: If you're under 50, then Covid is essentially no threat to you. Yes, some people under 50 die of it. More die of other things that come under the heading of "living life"

So there's no public health justification for vaccine mandates. The fact that "public health professionals" are pushing those mandates anyway is indicative of their fascist nature


Getting back to Barrett: it should be possible to have constitutional language saying: government officials can react to an emergency by imposing limits on what people can do and even say.

Fuck no. Any other questions?

Greg The Class Traitor said...

Saint Croix said...
But it doesn't follow that individuals have a right to do whatever they want with their body, including injecting heroin, for instance. (Roe explicitly rejected that argument).

All that shows is that the people who forced Roe on us knew they were engaging in completely dishonest bullshit.

If you have a right to control your own body, then you damn well have a right to inject heroin into it. So Roe and Casey are not about bodily integrity, or the right to control your own body, or liberty, or any other bullshit its defenders push.

It's just about the "right" to murder your inconvenient babies

Greg The Class Traitor said...

Howard said...
Abortion was legal under common law and not controversial when the Constitution was adopted. Anti abortion laws were enacted as a counter punch to the woman's sufferage movement.

Another Howard post, another lie. With, of course, no link to back it up.
https://pubmed.ncbi.nlm.nih.gov/10297561/
During the colonial period, the legality of abortion varied from colony to colony and reflected the attitude of the European country which controlled the specific colony. In the British colonies abortions were legal if they were performed prior to quickening (which was the first time the mother felt her baby move inside of her). In the French colonies abortions were frequently performed despite the fact that they were considered to be illegal. In the Spanish and Portuguese colonies abortion was illegal.