A Time for Choosing

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South Dakota's SCOTUS-baiting abortion ban, scheduled to start July 1, has been delayed after pro-choice activists forced the issue onto the November ballot.

Secretary of State Chris Nelson said Monday that a petition to refer the new abortion law to a public vote has enough signatures to qualify for the ballot, making official a matter that is expected to dominate political debates this year.

The referred law says life begins at conception. A doctor could be charged with a felony for performing an abortion except to save the life of a pregnant woman.

It's unclear whether the ban will actually win with voters. One poll showed them opposing it 62-33; other polls have shown support about 50-50. Gov. Mike Rounds, who signed the bill, has seen his approval drop from the mid-70s to the high 50s because of the ban. But some Republicans who opposed the ban were defeated in party primaries this month. Historically, pro-life single issue voters are more energized than pro-choice voters. But pro-choice voters rarely have such an edifying ballot measure to work against.

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  1. Abortion thread!

    So, who wants to play this time?

  2. Well, crimethink, I have no interest in rehashing a “when life begins argument”.

    However, in regards to the post, I’ll say that primary victories that lean anti-abortion are clearly not indications of how the general population will vote due to low turnouts during primaries and the fact that a GOP primary is obviously not representative of the general population.

    I think it is a great thing that this is going direct to the voters. ’bout damn time, actually.

  3. I’ll bite. If abortion is murder, why aren’t the mothers punished? If someone hired a hitman to kill their son, both the hitman and the person hiring said hitman go to prison.

    In this case:
    doctor = hitman
    mother = hitman employer

  4. Mo,

    We’ll get around to that in the next iteration — along with getting rid of that life-of-the-mother exception, which is a loophole big enough to drive Dr Kervorkian’s van through.

  5. Why next time crimethink, didn’t get the talking points in the mail?*

    Though I do agree, it’s good to take it to the people for a change.

    * I tease because I love.

  6. I think the general issue of abortion has been beaten to a bloody pulp without anybody changing their minds. Mo raises an interesting point about enforcement, but I wonder about more basic issues of enforcement: Forget about who gets punished, how will the crime be detected in the first place?

    A woman could always get a pregnancy test from a drug store. She could take this test in the privacy of her own home. Nobody needs to know she’s pregnant. She could go to a doctor with a “reputation” and quietly request an abortion. The doctor could produce paper work indicating that a routine pelvic exam and pap smear were performed, or some other standard office visit appropriate to his specialty and the patient’s age and the duration of the visit. The aborted fetus/unborn child/unborn angel/insert-preferred-term-here could be quietly disposed of.

    How would law enforcement deal with that scenario? Would they resort to the same types of methods used to capture people quietly consuming an easily grown plant product in their own home? Would they send pregnant cops to visit doctors with “reputations” and conduct sting operations? I think they’d need pregnant cops, because a smart doctor with a “reputation” would know better than to even discuss the possibility of abortion before getting a positive pregnancy test result.

    I see a lot to worry about in the enforcement of an abortion ban. Forget about who goes to prison. How do you catch them in the first place?

    (Note that I have not said a single word in this post in favor of or against the practice of abortion, I have only expressed skepticism about the implementation of a proposed law.)

  7. thoreau:

    Sting operations. Cops posing as OB-GYNs, as well as female cops posing as pregnant women.

  8. Creating a law that defines life as starting at conception. That would mean the smoking while pregnant would be child abuse, no? Drinking? What about poor eating? etc, etc.

  9. Probably right, jf.

    Next question for those who want the state to ban abortion: What happens if Roe is overturned and some states still allow abortion? (Say, for the sake of argument, that Congress somehow resists the urge to declare that abortions are interstate commerce.)

    What happens to pregnant women in states that ban abortion? Especially if those states border on states that allow abortion?

    It’s easy to say that they’d be allowed to cross freely. But we all know what the next battleground would be.

  10. thoreau,

    Under the doctrine of “exigent circumstances,” the police and search, listen, and enter into private places if they have a reasonable belief that there is a threat to life or limb.

    So when a woman goes to her OB/GYN, she will know that the government could well be watching the examination room. Now THAT’S good for the lives of fetuses!

  11. Thoreau, it’s pretty easy to predict that like the WoD and WoT, the War on Abortion will lead to more erosions of liberties while accomplishing nothing.

  12. Now for some fun ponderings, just to tie into a few other favorite H&R topics:

    1) What if an influx of Catholics from Latin America leads to wider popular support for an abortion ban?

    2) What if eating certain foods increases the risk of miscarriage? What if, horror of horrors, corn syrup was one of those foods?

    🙂

  13. crimethink,

    …which is a loophole big enough to drive Dr Kervorkian’s van through.

    It is interesting that you mention him (in light of the right to die debate).

    thoreau,

    You are also simply rehashing what others (including myself) have written here.

  14. What if, horror of horrors, corn syrup was one of those foods?

    http://en.wikipedia.org/wiki/Gestational_diabetes

  15. It is obvious that “life begins at conception”, but is this living speck of cells a human being? Who decides? Abortion is NOT a libertarian issue, neither position can be easily defended from the libertarian perspective, and we shouldn’t let ourselves be dragged into a neverending feud that will poison libertarianism.

    Libertarianism is neither “pro-life”, nor “pro-choice”. It’s pro-FREEDOM. Let’s not forget it and let’s try not to force our personal positions on the rest of the movement.

    I personally do not see a brainless, heartless creature as a human being (for the same reason I didn’t think Terri Schiavo, while still very much alive, was a Human Being).. which would make me “1st trimester pro-choice”, I suppose.

    But is having a brain really necessary to be classified as a human being? Insert a joke here.

    Still, someone staunchly pro-life, as well as someone staunchly pro- abortion on demand should be welcome into the movement as long as they hold these truths to be self-evident: that all men are created free, that..

    Let’s not make ourselves weaker than we already are. Heh.

  16. Well, Philly, you should be flattered.

    On South Dakota – the abortion ban has made the governor less popular. And yet several moderate Republicans (in this context) lost primaries to uber-lifers. At the same time, the Democratic party is better positioned in the west than it has been in, what, 25 years?

    It will be interesting, if the lifers are defeated and the Democrats pick up seats, to see whether the Republicans in S.D. blame George W. and the national party for the outcome.

  17. t:

    I find it difficult to see how doctors can perform “quiet hush-hush” procedures in these litigious times. In your hypothetical, what if the doctor botches the procedure? All of a sudden, it’s all over the courts and in the papers.

    Also, I can’t see how these “reputation” doctors would weather a state of inquisition. If one desires to pull a scheme, the less people who know about it, the better. I’m thinking that out of the many dozens of people a doctor deals with, some asshole is going to talk.

  18. Mr. Nice Guy,

    In Latin America, where abortion is generally illegal, abortion is quite common.

  19. I forsee a bull market in wire hangers and bleach.

  20. “But is having a brain really necessary to be classified as a human being? Insert a joke here.”

    -ok-

    NOT IF YOU USE POLITICIANS AS AN EXAMPLE

    —–

    Thoreau- your scenario sounds pretty much like a depiction of the sixties. For the fortunate or well- connected, anyway.

  21. I find it difficult to see how doctors can perform “quiet hush-hush” procedures in these litigious times. In your hypothetical, what if the doctor botches the procedure? All of a sudden, it’s all over the courts and in the papers.

    MNG, suing over a botched illegal abortion would work about as well as calling the cops to complain that somebody stole your drug stash.

    Also, I can’t see how these “reputation” doctors would weather a state of inquisition. If one desires to pull a scheme, the less people who know about it, the better. I’m thinking that out of the many dozens of people a doctor deals with, some asshole is going to talk.

    Pot dealers have quiet “reputations” in certain circles. Yet many of them stay in business without getting caught.

  22. Enforcement is clearly the key – is it really possible?

    But, even then, the WoD doesn’t seem to have deterred many from using, buying, or selling drugs. Why do we think that by simply outlawing abortions we will discourage them? It will just make them more expensive and dangerous than they already are.

    And I also choose to make no stand on whether abortion is right or wrong. Who am I to make that call. Can a brother get a little freedom here?

  23. The doctor could produce paper work indicating that a routine pelvic exam and pap smear were performed, or some other standard office visit appropriate to his specialty and the patient’s age and the duration of the visit.

    It might not be a good idea to have any paper work or connection to the patient. I can see certain drs having very private practices that deal in cash. I think drs can tell whether or not you’ve had an abortion before(scarring and what not). If a routine visit shows that an abortion occured after the ban, will the dr have to report it?

  24. Yeah, those sting operations will be even more amusing when 90% of abortions don’t involve a doctor at all but merely RU-486 or the next, improved version.

  25. Good point, JC and James Feldman.

    If a woman had an abortion and later needed treatment for complications, it would be in her best interests to tell the ER doctor that it was performed in a state where abortion is legal.

  26. In Ohio, a conservative Republican (gasp!) named Tom Brinkman has introduced a bill outlawing abortion in ALL cases, even when the mother’s life is at stake. And also make it a felony to take a woman (not just a minor) across state lines to get an abortion. Nobody expects the bill to pass, though. At least not this time around. Those baby-lovin’ defenders of freedom are merely testing the waters.

    http://www.cleveland.com/news/plaindealer/index.ssf?/base/news/1150273837245030.xml&coll=2

    Under his legislation, doctors conducting abortions would be guilty of a second-degree felony and face a possible 15-year prison sentence. Brinkman’s bill also would make it illegal to transport a woman to a state where abortions can legally be performed. The only abortions allowed would be done “without intent to do so” as part of a procedure to prevent the death of a woman.

  27. On RU486: I predict that if more states ban abortion and SCOTUS does nothing, then a black market for RU486 will develop, and it will be remarkably similar to the market for recreational drugs. Indeed, some of the same people might sell both.

    Hmm, merging the pathologies of the black market with the trauma of an unwanted pregnancy–what could possibly go wrong?

  28. t:

    But this goes back to the view that doctors, not mothers, are the guardians of “life”. So I don’t think it’s a stretch that a woman hauls an underground abortionist into court for malpractice. Sure, its chutzpah, but that hardly keeps idiots from filing lawsuits.

    I guess my point is that yeah, some discreet, underground activity is “tolerated” by the powers that be from time to time, but it’s very tenuous. It wouldn’t take much for a witch hunt to flare up against underground abortionists, pot dealers, what have you, depending on the social hysteria de juor.

  29. MNG-

    I’ll agree with you that public sentiment could always turn and make the black market a much tougher place to operate, thereby severely reducing the number of illicit sellers. (Although the ones with wealthy and powerful clients will always, always, always survive.)

    But I simply cannot see a woman suing an illicit abortionist for malpractice. Oh, some idiot might try. But she’d go into the lawyer’s office, and the lawyer would say “So, um, you want to go to court and admit that you violated the laws of the state?” And then he’d talk her down. Even the sleaziest tort lawyers make their money by winning cases, not by sending their clients to jail.

    That could make an interesting sting operation, though. “Have you been injured by an underground abortionist? The law firm of Bate and von Trapp can help you! Come by our office downtown, located right next to the police station.”

  30. MNG, suing over a botched illegal abortion would work about as well as calling the cops to complain that somebody stole your drug stash.

    I dunno about that…
    if there is no penalty to the mother for seeking out an abortion, then I don’t see what would prevent her from suing a doctor who botched an illegal abortion.

    ALthough I would suspect that because of the lack of any penalties for the mother, I don’t suspect an underground market would thrive since only the doctors would be at risk of legal penalties, and there would be little incentive for the other involved parties to be as discreet as possible.

  31. thoreau,

    While the existence of a black market for abortifacients would be possible, it wouldn’t come remotely close to matching the size and scope of that for recreational drugs. The demand would be extremely small, since getting an abortion is a one-shot deal, unlike feeding a drug habit, and most women would still want to avoid the experience by avoiding an unwanted pregnancy in the first place.

  32. When drugs were first made illegal in this country, I imagine even the most pessimistic paranoiacs would have laughed at anybody who said “Someday the government will regularly demand urine samples from citizens to make sure they are not using illegal substances.”

    Now that I got that out of the way, I’m going to have a nice hearty chuckle at the thought that in the future, women of a certain age might have to hand over urine samples to determine their pregnancy status. Starting with women who work for the military or government, of course. Then spreading to women who work for civilian companies that get contracts from the government. Then women on any form of probation.

    I’m sure nothing like that will ever happen. We all know how committed to freedom and human dignity our government is.

  33. I’d be willing to enter a conversation with someone who insists abortion is murder, provided they accept the existance of all varieties of murder, including justifiable homicide.

  34. Why next time crimethink, didn’t get the talking points in the mail?*

    No, I meant we’ll get around to passing a law that takes care of that in the next iteration of lawmaking. First, this one has to survive, and there’s no way it will if there isn’t a life-of-the-mother exception.

    Also, Mo, teasing is a product of Fear. Complete Lifeline Excercise #1 so that you may return to the path of Love. 😉

  35. Jennifer,

    I’ll bite: when does the govt demand urine samples from citizens (not including govt employees)?

  36. I’ll bite: when does the govt demand urine samples from citizens (not including govt employees)?

    Schools.

  37. I’ll bite: when does the govt demand urine samples from citizens (not including govt employees)?

    Did you read my whole post? Government employees, civilian companies with government contracts (including all broadcast facilities), and probationers. MP mentioned schools, which I somehow overlooked.

    But my post, of course, made the point that this will NEVER happen because our government has such mad love for dignity and freedom. See? That’s why there’s no need to worry about any effects abortion bans might have on the overall body politic–because we all know our government is allergic to things like “mission creep.”

    Rest assured–you can call for bans on what women do with their bodies without worrying that this will grow into some creepy Frankenstein’s monster and leave you, in the future, making these pathetic little chirps to the effect of “Gee, I thought I was doing good. . . I had no idea that increasing government power over individuals’ bodies would lead to anything bad. . . I mean, the idea of giving government an inch and watching it take a mile was so TOTALLY without precedent in human history!”

  38. In all seriousness, Crimethink–in the future, if such an abotion ban DOES pass, complete with the ruling that it is a felony for a woman to cross state lines to get an abortion elsewhere, how do you think the government will enforce it? The honor system?

  39. I imagine that bans on home pregnancy tests would be the first step. That way, a woman who suspects pregnancy will have to go see a Licensed Professional to verify that she is in fact pregnant rather than simply late or experiencing a gynecological abnormality. This Licensed Professional will create a Legally Mandated Medical Record.

    Ridiculous, you say? What about all the banking regulations designed to curb money laundering in the drug trade?

    Once you have these measures in place to track pregnancy, that already goes a long way toward some rather draconian controls over pregnant women. God help the poor woman who experiences a miscarriage. I assume that she will face an investigation to determine whether the miscarriage might have been induced by drugs. God help the woman who, upon hearing from her doctor that she is pregnant, expresses some misgivings or fear or hesitation and then tries to travel to a state where abortion is legal (perhaps for business, perhaps to visit family, perhaps for her own damn reasons that have nothing to do with abortion).

    There is much to fear from abortion enforcement.

    Notice that I have not said a single word condoning the practice of abortion. I have merely raised questions about what the state will do in its efforts to curtail that practice.

    And, FWIW, my wife and I plan to adopt kids some day. So nobody can say we won’t be doing out part.

  40. Hell, Thoreau, it’s already illegal to buy cold medicine in some places. A ban on pregnancy tests is not a stretch at all.

  41. what’s the legality of laws saying “you can’t leave the state to avoid a state law”? At minimum this sounds like federal government grounds, but more likely, this sounds constitutionally suspect for all parties. Could a state or federal government ban someone from going to nevada and gambling or frequenting a brothel? or more generally, banning people from travelling to other states and doing something that is illegal in their home state.

  42. ab: sounds at least like a pretty significant violation of the Federal authority to regulate interstate commerce.

  43. James-

    You may be right that a state barring pregnant women from leaving would be a violation of the Commerce Clause. However, let’s consider the context in which states are likely to be able to ban abortion in the first place: A reversal of Roe vs. Wade.

    Now, I know that there are people on this forum who think abortion should be legal but Roe stands on shaky legal ground. You might even be right. (I have some sympathy for that position, FWIW.) However, I don’t think that Roe will be overturned because the Supremes adopt a particular interpretation of the Constitution. No, I think Roe will be overturned because a pro-life President with political capital and a sympathetic majority in the Senate is able to appoint a Justice with a particular viewpoint to replace a particular retiring Justice. And I think this would have to happen in an environment of greater public support for an abortion ban. The Supremes may be non-political and immune from public opinion in theory, but I think in practice they would only touch that third rail if they were confident that it wouldn’t cause a massive public backlash that would cause the public to disregard the authority of the Court and vote out the party that appointed them. As long as they fear a backlash they will chip away at the edges, playing with things like waiting periods and parental notification laws and the second trimester and whatnot.

    But, if the Supremes didn’t think that fears of a backlash were warranted then they would be willing to uphold a state ban on abortion. In that same environment, I think Congress would have no qualms about wading in. At the very least they would pass a “Fugitive Pregnant Woman Act” that makes it a crime for pregnant women to cross state lines in violation of the laws of their state of legal residence. They’d cite the Commerce Clause and the “Because We Said So Doctrine” for interpreting the Commerce Clause.

    Of course, I’m not convinced that such a shift in public opinion will happen. So this is all probably hypothetical.

  44. I imagine that bans on home pregnancy tests would be the first step. That way, a woman who suspects pregnancy will have to go see a Licensed Professional to verify that she is in fact pregnant rather than simply late or experiencing a gynecological abnormality.

    Could pregnancy tests be made at home with easy-to-get products? They seem like pretty small and simple devices. If they can, then forgot about outlawing pregnancy tests, they would have to restict products that make them.

  45. At the very least they would pass a “Fugitive Pregnant Woman Act” that makes it a crime for pregnant women to cross state lines in violation of the laws of their state of legal residence. They’d cite the Commerce Clause and the “Because We Said So Doctrine” for interpreting the Commerce Clause.

    I could even see them using the excuse of Federalism–you can’t erode state’s rights by telling states what laws they can or cannot pass in regards to their pregnant women! (Remember, state’s rights include the right for states to discriminate against individuals.)

  46. Wouldn’t it take a constitutional amendment to prevent people from freely passing between states? I thought the Fugitive Slave Act was due to slaves not being citizens. I could be wrong though.

    crimethink,
    I just want the rational behind punishing the doctor being A-OK, but not punishing the mother. I mean other than naked political reasons, which is Ramesh Ponuru’s reasoning. Is there any moral reason behind it?

  47. Now for some fun ponderings, just to tie into a few other favorite H&R topics:

    1) What if an influx of Catholics from Latin America leads to wider popular support for an abortion ban?

    I brought up the same point about gay marriage.

  48. What happens to pregnant women in states that ban abortion? Especially if those states border on states that allow abortion?

    It’s easy to say that they’d be allowed to cross freely. But we all know what the next battleground would be.

    I like it. Liberal states would get new tourism income.

  49. Wouldn’t it take a constitutional amendment to prevent people from freely passing between states?

    Maybe it would be more like the law making it illegal to take a 14-year-old from a state where the age of consent is 16 to a state where the age of consent is 14. Or, since the anti-abortion people insist a fetus is a citizen, they’d ignore the idea of the mother’s having rights at all and focus on the fetal citizen’s right to not be aborted. I can hear some future baby-lovin’ defender of freedom explaining how a woman leaving the state to get an abortion is no different from an evil misogynist daddy going to Saudi Arabia to sell his 12-year-old American-citizen daughter into marriage to an 85-year-old sheik.

  50. I’m hoping they find the genetic defect that causes people to begin sentences with, “It sends out a signal…”

  51. Let’s see now. Life begins at conception. Life is sacred, and those who destroy life should be punished criminally.

    South Carolina is a death penalty jurisdiction. Among the aggravating factors which may support a death sentence in that state are:

    “The defendant committed the offense for the benefit of the defendant or another, for the purpose of receiving money or any other thing of monetary value”–such as a doctor performing an abortion for a monetary fee?

    “The defendant caused or directed another to commit murder or committed murder as an agent or employee of another person”–such as a pregnant woman hiring a doctor to perform an abortion?

    “The offense was outrageously or wantonly vile, horrible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim. Any murder is wantonly vile, horrible, and inhuman if the victim is less than thirteen years of age”–a fetus is by definition less than thirteen years of age.

    Remember, life is sacred. What is the State of South Carolina going to do about the sacred lives of all those pregnant woment who procure abortions?

    Those who blather about abortion but refuse to discuss what criminal penalties should be imposed on the mother are simply full of excrement.

  52. Haven’t read the full thread, but it’s dawned on me why the government is so anti-abortion. It isn’t because of religion or because of misogyny (although there is plenty of that, regardless). It is for two reasons:

    a.) To appeal to the religious voting public (and their misogyny)

    b.) To grow a larger crop of taxpayers. If wealthy government workers forsee a drop in population growth, they are probably trying their best to force others to raise what would eventually be perpetually working-class, taxpaying citizens (since many abortions are likely due to responsible financial considerations…and there’s nothing wrong with that).

  53. And that is why we have a constitution to protect unpopular freedoms, rather than relying on majority rule. Leaving it to the states is not much better, since then it becomes a state-by-state majority issue. Either it is a right and should be protected by the constitution or it is murder and then we should not leave that up to the states.

  54. Excuse me. The prior post twice said South Carolina where I intended to say South Dakota. Also, the phrase “woment who procure abortions should have read, “women who obtain abortions”.

  55. Haven’t read the full thread, but it’s dawned on me why the government is so anti-abortion. It isn’t because of religion or because of misogyny (although there is plenty of that, regardless). It is for two reasons:

    I agree with your two reasons, Smacky, but I’ll add a third: the gtovernment simply wants people to grow more and more accustomed to government intrusion in private lives. Sometimes I wonder if THAT isn’t the real motivation behind the War on Drugs–not that the government thinks drugs are bad, but that the government uses illegal drugs as a sort of test to see which people are least likely to blindly obey authority and believe its horror stories, like “one hit on a joint and you’re hooked for life.”

  56. I have been wondering, if it is a crime to transport women across state lines to obtain abortions, are they going to be hauling airline pilots, bus drivers, and train conductors away in handcuffs? Where do you stop? The person behind the counter who sells you the ticket? The cab driver who takes you to the train station?

    This is a ridiculous and unintended extension of a law that simply cannot be enforced. Laws which cannot be sensibly or realistically enforced really, really bug me. And this is a *new* law, not one of those wacky 1800s still-on-the-books laws you read about in humor articles from time to time.

  57. Could pregnancy tests be made at home with easy-to-get products? They seem like pretty small and simple devices. If they can, then forgot about outlawing pregnancy tests, they would have to restict products that make them.

    According to wikipedia and a couple of other sources I’ve come across, it sounds like a relatively complex process… so, unless the gov’t’s ready to outlaw frogs and rabbits, we should be in good shape.

    • Pregnancy tests aren’t going to be illegal. Everybody uses them, even pro-lifers.
    • Interstate travel is dictated by federal law, not individual states. Even states in the buckle of the bible belt can’t prosecute a person that travels out of state to gamble or visit a brothel.
    • If Roe v. Wade were overruled, NARAL and NOW would go nuts warning all women of the nightmares of enforcement that have been mentioned thus far.
    • The amount of female civil disobedience that would result from an abortion ban would be astronomical. Pro-lifers don’t seem to realize that nobody beats the left side of politics for mass protests.
  58. Pregnancy tests aren’t going to be illegal. Everybody uses them, even pro-lifers.

    A year ago I’d’ve said the same thing about cold medicine. Anyway, you’re right about them not being made illegal–though I could definitely see them becoming prescription-only.

  59. smacky,

    Reason #2 is a stretch; the number of abortions pales in comparison to the total population to begin with. Also, one could just as easily argue that since abortions are disproportionately performed on low-income minority women, that the state actually saved money by preventing those embryos/fetuses from growing up to collect welfare and/or go to prison. I don’t necessarily agree with that analysis, but it’s just as plausible.

    Seriously, is it that hard to believe that at least some people you disagree with are sincere in their beliefs? Sure, there are opportunists who pretend to believe whatever will part fools with their money or votes, but that’s true of both sides of any controversial issue.

  60. Pro-lifers don’t seem to realize that nobody beats the left side of politics for mass protests.

    kmw, you are a child of your era. Many non-leftist movements (including the pro-life one, btw) have organized mass protests…the Nazis and Fascists come to mind, not to invoke guilt by association of course.

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