Constitutional Law

Judges Don't Need Roe to Overturn Abortion Laws

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Last week a federal judge in Texas blocked enforcement of the state's new abortion law, which Gov. Rick Perry signed in May. Notably, the decision (PDF) did not hinge on Roe v. Wade or its progeny, so overturning that ruling, a development Perry would welcome, would not necessarily leave states free to regulate abortion as they see fit, the outcome Perry wants.

U.S. District Judge Sam Sparks (who was appointed by George H.W. Bush) ruled that two provisions of the law violate the First Amendment by compelling speech without an adequate justification. One of those provisions requires a physician who performs an abortion to order a sonogram beforehand, show the images to his patient, give her a detailed oral description of what the sonogram shows, and "make audible" the fetus's heartbeat (assuming it is present). "A  physician is  required to  say things and take expressive actions with which the physician may not ideologically agree, and which the physician may feel are medically unnecessary," Sparks noted. He concluded that the requirements cannot survive "strict scrutiny," which demands that mandated speech be "narrowly tailored to serve a compelling government interest." He distinguished the Texas law from the Pennsylvania law upheld by the Supreme Court in the 1992 decision Planned Parenthood v. Casey, saying the compelled speech in the latter case was aimed at protecting the mother's health and ensuring informed consent, as opposed to deterring abortion.

The other provision that Sparks rejected on First Amendment grounds exempts the pregnant woman from viewing the sonogram or listening to the heart sounds if she signs a waiver and exempts her from hearing the oral description of the fetus if she attests that her pregnancy was "a result of a sexual assault, incest, or other violation  of  the  Penal  Code." Sparks observed that "women who are pregnant as a result of sexual assault or incest may not wish to certify that fact in writing, particularly if they are too afraid of retaliation to even report the matter to police." He concluded that "there is no sufficiently powerful government interest to justify compelling speech of this sort."

In addition to the First Amendment arguments, Sparks was persuaded by claims that three of the abortion law's provisions violate the Due Process Clause because they are unconstitutionally vague:

First, the phrase "the physician who is to perform the abortion," a phrase used in section 171.012(a)(4), is unclear as it relates to both multi-physician procedures  and  unplanned  physician  substitutions. Second,  the conflict  between  sections 171.012(a)(4) [requiring the physician to display the sonogram and make the heart sounds audible] and 171.0122 [allowing the patient to opt out of looking and listening] creates unconstitutionally impermissible uncertainty regarding what will, and what will  not, subject a physician or a pregnant woman to liability. Finally, section 171.0123 is unconstitutionally vague regarding the scope of a physician's duty to provide paternity and child support information to women who choose not to get abortions.

In his response to Sparks' injunction, Perry confirmed that the law is aimed at preventing abortion while arguing that it is really all about informed consent:

Every life lost to abortion is a tragedy and today's ruling is a great disappointment to all Texans who stand in defense of life. This important sonogram legislation ensures that every Texas woman seeking an abortion has all the facts about the life she is carrying, and understands the devastating impact of such a life-changing decision. I have full confidence in Attorney General Abbott's efforts to appeal this decision as he defends the laws enacted by the Texas Legislature.

Although Perry presumably disagrees with Sparks' legal analysis, it does not depend on an invented, privacy-based right to abortion. Unless Perry rejects federal judicial review of state law altogether, he has to concede that some abortion regulations would be unconstitutional even without Roe. Counterintuitively, an outright ban might be more likely to pass muster than regulations like these.

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  1. This important sonogram legislation ensures that every Texas woman seeking an abortion has all the facts about the life she is carrying, and understands the devastating impact of such a life-changing decision.

    Translation: Any Texas woman who wants an abortion is probably wrong, and the law must protect her from her own poor decision-making skills. However, the same “protect her from her own stupidity” mentality does NOT apply to any currently non-pregnant woman who thinks maybe she wants to be a Mommy.

    1. No it is meant to protect the child from the mother’s stupidity. As John said below though this is a retarded way of going about it. Either abortion should be completely illegal (the child has rights like the rest of us) or completely legal (the child does not have rights like the rest of us. The rest of the debate (besides when the child gets rights if it is somewhere between conception and birth) is completely pointless, including exceptions for rape and incest.

      1. No it is meant to protect the child from the mother’s stupidity.

        Which is merely the “think of The Children” way of saying “if the woman thinks she wants an abortion, she’s probably wrong.”

        1. You don’t have to accept prolife arguments to understand them. This is not, “how dare you smoke marijuana think of the children”, this is “how dare you kill children, think of the children.” If some child serial killer said that putting him in prison was interfering was “merely the “think of the children” way of saying “if the man thinks he wants to kill children, he’s probably wrong” you would rightly dismiss the argument.

          1. Actually, it’s not.

            The argument behind this law is,

            “If women who want an abortion would see an ultrasound, they wouldn’t want one any more.”

            That’s why it’s not just a pro-life argument. It’s specifically arguing that the reason people are pro-choice is because they are stupid and have never seen an ultrasound (or something). And if doctors would just rectify that lack by giving these women more information, they’d want something different.

            It’s absolutely a false-consciousness argument and not just a “life begins at conception” argument.

            I’m not a woman so the law doesn’t apply to me. But if I was a woman, the moment I walked into the doctor’s office I would already have as much information at my disposal as any of you and more philosophical grounding to my decision than 99% of the American public. Passing a law that says to me, “Fluffy, you can’t possibly have enough information about this decision, and you can’t possibly have thought this decision through, so we’re going to make you sit through a dog and pony show before we let you do this,” is a fucking insult to me. Nothing more and nothing less.

            For insulting me, I have to say: Go fuck yourself, you loser cunts.

            1. No question it was a bad law, but it’s not a “think of the children” argument like pot or drinking or gambling.

        2. As I understand a “think of the children argument” it is typically some way of controlling adults by a false appeal that children will be harmed if we, say, legalize pot or internet gambling. It’s hard to see how that applies in a situation where the unborn child is actually being harmed, that is to say, killed.

        3. Yeah, Jennifer when someone decides to kill another human being, the law assumes they are probably wrong in doing so.

          1. I guess she just thinks that everybody who is prolife thinks that way because god told them to and not because they think the child has the same rights we do. I understand why she doesn’t believe that but she should put more thought into understanding the other sides’s position.

            1. The bottomline is when does life begin. And that really isn’t much of a libertarian question in that if you think life begins at conception, no libertarian could argue for legal abortion.

              1. The bottomline is when does life begin. And that really isn’t much of a libertarian question in that if you think life begins at conception, no libertarian could argue for legal abortion.

                Nonsense. I have no doubt that every person I see walking on the street is unquestionably alive, but if one of them needed a liver or bone marrow transplant to stay that way, I’d still oppose any law making such donations mandatory.

                The question is, do you think the “right to life” is a positive or a negative right? If it is a positive right, then you can demand anybody else do whatever is necessary to keep you alive: “I need bone marrow, you are the only compatible donor, ergo you MUST be compelled to donate.”

                I view the right to life as a negative right: I can’t walk in and take your life from you. But neither can you demand the use of my body to keep your own functional. I surely can’t walk up and shoot you in the head, but neither can I be compelled to give you the use of my body to maintain your own existence.

                1. I do not mean to be snarky, but I have an honest question. Do you believe that child neglect/abandonment laws are wrongheaded?

                  1. I have an honest question. Do you believe that child neglect/abandonment laws are wrongheaded?

                    Nope. Once you have given birth — more specifically, once you have given birth and chosen to keep the infant rather than turn it over to the authorities (so far as I know, every state offers brand-new mothers the legal option to give up their babies) — then you have taken on certain legal and moral responsibilities to the child.

                    1. Nope. Once you have given birth conceived — more specifically, once you have given birth conceived and chosen to keep the infant fetus rather than turn it over to the authorities nature (so far as I know, every state offers brand-new mothers the legal option to give up their babies fetuses fail to survive on their own all the time) — then you have taken on certain legal and moral responsibilities to the child fetus.

                      You make a conscious to create the fetus by having consensual sex and your body makes the choice to allow the fetus to implant and give it nutrients. The fetus doesn’t leech off of you like a parasite, your body actually adapts to support the fetus.

                    2. and your body makes the choice to allow the fetus to implant and give it nutrients

                      You are equating an automatic biological response with a conscious moral decision. These are not the same thing. A person should have autonomy over their body, the ability to counteract it when it does things they would prefer it not do.

                    3. It is a fair point but the mother did choose to create the fetus and chose not to take plan B. How is it any different than a mother choosing to keep her newborn? Also at what point in the pregnancy has the mother moved from an automatic biological response to a concision moral decision to keep the fetus? I am open to arguments that the point of no return is sometime after conception but it most certainly isn’t one minute before giving birth.

                    4. I think this is one of my sticking points with pro-life arguments – that choosing to have sex accepts the risk of life creation, and therefore the responsibility for that life. In most other things people do it seems to me the causal relationship between action and effect is so much clearer. Eat less and excercise more and you lose weight. Work hard, study hard, network, and you become valuable and make more money. Turn 27, get married, have sex all the time and…have 2 miscarriages. Or be 16 and get pregnant the first fucking time.

                      Value systems have a way of injecting themselves into people’s reasoning, and mine is pretty influential here. I think sex is an overwhelmingly positive thing. It makes the colors in the world more vibrant. For some reason, many people seem to have hangups and reservations about sex. I think everyone should fuck everyone else as frequently as pleases them. But replace the second everyone with me. Things which obstruct this axiomatic goal, like quibbling concerns about fetuses being alive, are not of concern.

                      As far as when it becomes a moral decision to keep the fetus, I can’t tell you the precise point. I’m inclined to agree that at some point between conception and birth the fetus becomes alive, but this is irrelevant to Jennifer’s arguement. If the right to life is a negative right, the mother is not obligated to continue providing life support to the fetus. If it can be extracted and survive, they should do that. But if it can’t, the mother should not be obligated to continue providing life support to the fetus if she does not wish to.

                      Let’s not get too distracted though. The important thing to remember is everyone should fuck everyone else as much as they want.

                    5. I think people should fuck as much as they want to as well. However much people love fucking doesn’t change what the biological purpose of fucking is. I’m an atheist, I have no reason to assign any moral judgement to people’s sexual choices. I think that people should be able to do all the heroin they want as well but there are consequence to their actions. In this day and age anybody can practice safe sex. It is neither difficult or complicated, from condoms to birth control to simply withdrawal. If all that fails and you are still concerned you can take Plan B. You can sleep around all you want without any concern for the trustworthiness of your partner but if you get an STD or pregnant you are the one responsible.

                    6. —“the mother did choose to create the fetus and chose not to take plan B”—

                      It is possible to take all reasonable precautions to avoid unwanted pregnancy (condoms break, the pill doesn’t always work) and still egt pregnant. If you are using birth control and it fails, you may not be aware of the need for Plan B.

                      That being said, I personally have great difficulty in deciding how I feel about abortion in general. I am personally opposed, but am not convinced that I can force my beliefs on others. I think that the fact that there is so much disgreement in society about this issue is a reflection of honestly held conflicting beliefs on the part of the general public.

                      My Libertarian beliefs can influence me to support either side of the debate, and I’m truly not sure what to do. My time of being affected in my own life are long passed, but I do have children and grandchildren, and not much easy guidance to give.

                    7. the mother did choose to create the fetus

                      If the mother “chose” to create the fetus, she likely wouldn’t be getting an abortion. You’re confusing biological responses with free will. Do you also believe non-pregnant women “choose” to menstruate every four weeks or so? What about people who kick their legs out when the doctor hits their knee with his little rubber mallet?

                    8. weren’t those called “next day pills”?

                    9. Why do they have to last for 18 years and you cannot change your mind at any point during them? that sounds at least discriminatory against those who have given birth as opposed to those who haven’t.

                2. I view the right to life as a negative right: I can’t walk in and take your life from you. But neither can you demand the use of my body to keep your own functional. I surely can’t walk up and shoot you in the head, but neither can I be compelled to give you the use of my body to maintain your own existence.

                  So, basically Jennifer seems to be arguing a limited pro-life position — the fetus is a human being and has the right to live outside the mother’s body, but no one can compel the mother to keep that human being inside her body.

                3. The difference is that your actions did not lead to my needing bone marrow from you. Whereas your actions did lead to the fetus/thing/whatever growing inside your uterus.

                4. Someone I can’t remember at the moment dubbed this argument the “no trespass” argument. I think this is the best deontological pro-choice argument, but then again I find ethics to be an incredibly tiresome and boring pursuit.

              2. The bottomline is when does life begin.

                No. The bottom line is do you want to empower the state to make these choices for certain* members of the population (i.e. not politically connected or wealthy), entailing all the SWAT type interference we’ve all come to love so much.

                Because if there’s no enforcement mechanism, then there’s no ‘ban’.

                1. And, actually, I’m continually shocked that the left isn’t in full favor of banning abortion.

                  Think of the government jobs in the new DOL (Dept. of Life)!

              3. “”..if you think life begins at conception…””

                …you should impose that view on everyone else? Biologically arbitrary, Batman!

                Even the catholic church doesn’t consider Blastulae soul-bearing vessels.

                unviable embryonic creatures… they’re whats’s for breakfast!

                Personally, I think Life begins with Taxes.

                1. lol, I actually read that last line as “Life begins with Texas”.

                2. “Biologically arbitrary, Batman!”

                  Arguably conception is less biologically arbitrary than choosing any other point on the continuum from conception to old age, and some point must be chosen because at some point every human creature becomes an entity with an inalienable right to live.

              4. It’s not a scientific question either, so it’s down to pure opinion. Better to pick which makes sense for a stable and healthy society rather than which makes sense according to Jeebus.

                1. This is one of those very unlikely occasions when I agree with Tony. It’s not a scientific question; it is entirely philosophical. The question is not whether a fetus (or zygote, morula, blastocyst, or embryo) is biologically alive; it unquestionably is. The question is not whether a fetus is human; it unquestionably is. The correct question is whether the fetus (zygote, blastocyst, etc.) is a person, and that is a matter of ethics which cannot be answered by science.

                  For the first 36 hours after fertilization (conception) the zygote is a single living cell with human DNA. Then it begins dividing into a mass of living cells with human DNA. There are no organs, nervous system, or consciousness. Those who claim personhood starts at fertilization call this mass of cells a person endowed with all the inherent rights of personhood. A tumor is also a mass of living cells with human DNA without organs, nervous system, or consciousness. I’m not saying that a zygote is a tumor. I’m just trying to illustrate that, in most cases; most people do not consider a mass of human cells to be a person.

                  That brings us back to the realm of philosophy. When does personhood begin? It’s a question of the beginning of biographical life rather than biological life. The problem with basing any policy or law on this question is that everyone has a different answer.

            2. I guess she just thinks that everybody who is prolife thinks that way because god told them to and not because they think the child has the same rights we do.

              No, I figure people who are anti-choice feel that way because they figure the fetus has more rights than the woman incubating it, and also because they feel a pregnant woman who does not want to carry the pregnancy to term should be forced to do so anyway.

              Which, if any, of that did I get wrong?

              1. Actually, just like any other child, one in the womb has less rights than an adult. At a minimum though they have a right to be alive. You don’t have a choice to kill it anymore than you have a choice to kill your newborn or your 3 year old, etc.

                1. Actually, just like any other child, one in the womb has less rights than an adult. At a minimum though they have a right to be alive. You don’t have a choice to kill it anymore than you have a choice to kill your newborn or your 3 year old, etc.

                  You’re not legally obligated to donate bone marrow or liver tissue to keep your three-year-old alive, though. You’re certainly obligated to feed, clothe and shelter any dependents you have, but you’re not obligated to turn over your own body’s biological functions to keep someone else’s biological functions working, whether that other person is attached to you via an IV drip or an umbilical cord.

                  1. Here’s a hypothetical situation: A set of conjoined twins; One twin wants to be separated, the other refuses. There is a chance that the separation will kill one or both of them. Which twin wins out?

                  2. The feeding, clothing and sheltering ultimately come from your purse. Whatever you have in your purse ultimately comes from your biological functions – your physical or mental work, or your continued existence. Even a welfare queen needs to exist to cash the checks. The distinction is only of degree.

              2. Hence why some of us think you should still have the right to choose but don’t think you should obfuscate the fact that you are killing a living thing (depending on the stage of development, it might more closely resemble a starfish or it could be well on it’s way to becoming a human baby).

                I think one could argue that by engaging in sexual activity, activity that anyone over the age of 12 knows can lead to pregnancy, you assume a certain amount of liability.

                I mean, that’s what we say about a man when he knocks some random girl up. “Damn son, looks like you’re on the hook for the next 18 years. Guess you should have worn a raincoat”

                1. I think one could argue that by engaging in sexual activity, activity that anyone over the age of 12 knows can lead to pregnancy, you assume a certain amount of liability.

                  I’ve noticed that, specifically in regard to abortion and/or contraception, “assume liability” or “take responsibility for the consequences” is code for “pretend the last umpteen-hundred years of medical advances never took place, so your options are as limited as those of your Cro-Magnon ancestors, when they had the same problems.”

                  May as well argue against the clients of modern dentistry: “I think one could argue that by eating sugary foods and not always brushing your teeth, you leave yourself open to certain consequences.” Yeah, the consequence is, I have to visit a dentist, and maybe pay for a drill-and-fill and deal with the discomfort that brings with it; that makes more sense than attempting to ban dentistry-on-demand and forcing people to suffer the consequences of rotten or missing teeth.

                  1. I’m sorry, I didn’t realize that my teeth were alive.

                    And nice way to ignore my saying you should be able to choose (but I guess since I don’t fully back what you believe I’m an asshole)

                    1. They are. Why do you think a toothache hurt so much.

                    2. Damn you Bi-cuspid!

                    3. It’s called nerves… Not being alive.

                  2. Actually you are the one ignoring the last 50 years of biological science. We now know that a fetus is a living human being with it’s own unique genetic code.

                    “pretend the last umpteen-hundred years of medical advances never took place, so your options are as limited as those of your Cro-Magnon ancestors, when they had the same problems.”

                    Our Cro-Magnon ancestors had to resort to hitting each other over the head with rocks but the fact that we can use nuclear bombs to kill others now doesn’t have any relevance as to whether that killing is justified.

                    1. The anti-abortion movement did not come about as an expansion of liberalism, but as a product of religious patriarchy.

                    2. Not really. More like the pro abortion movement started from modern ideologies. well before open anti liberal or anti feminist reactions.

                  3. Actually pulling teeth out can be done with paleolithic technology. For that matter, so can abortions – and it’s probable both were done by actual paleolithic peoples.

          2. It’s not just personhood. A doctor performing tubal ligation or vasectomy would be negligent if he didn’t inform the patient that there is a non-zero risk that the procedure will end all possibility of future childbearing.

            Abortions also carry non-zero risks towards future child-bearing. Any woman who is seeing an OB-Gyn because of a planned pregnancy will be asked “How many pregnancies have you had before?” Not babies, pregnancies. Abortions have some impact (however slight) on future reproducive choices, and a doctor who fails to mention that is negligent.

    2. anti-choicers remain hopelessly compromised to wit: fertility clinics routinely destroy embyros as personal property which is settled law; geriatric patients are intentionally denied critical care; and original sin means no one is innocent, born, unborn, or otherwise.

  2. SHHHHhhhhhhhhhhhhh!!!!!!

    We need to be vewy, vewy quiet about this one.

    If it actually stood up on SCOTUS review, I can already see how it could be applied to attacking other regulatory regimes in other professions.

    And if we talk about that too loudly, all the libs will pop out of their hipster bars to demand that SCOTUS strike this ruling down. If there is any chance that a precedent will in any way potentially threaten the total ascendancy of the regulatory state, the libs will oppose it, no matter what the underlying issue is and no matter who the plaintiffs are – as they showed in Kelo.

    I’m sure Atrios and Digby and the rest of them would be more than happy to sacrifice some teenager who wants an abortion in order to make sure nobody can threaten the state’s power to control every last occupation and business category on earth, no matter what.

    1. But if the state doesn’t control everyone and everything, who will ?

      1. If not us, who?

        If not now, when?

    2. Fluffy,

      Not all leftists support “abortion rights,” but the Kos-acks and so forth certainly do. I can’t imagine them supporting a regulation of abortions for any reason.

    3. You are exactly right… this could hurt the left if it stands.

      NLRB Rule Requiring Posters In Workplace Infuriates Business Groups

      http://www.huffingtonpost.com/…..37907.html

  3. This is the kind of underhanded bullshit that leftists normally do. If Texas wants to ban abortion, ban abortion. Lets have that debate. It is a debate that the pro life side has been winning lately. But to mandate people do or say this is just underhanded bullshit. It should have been struck down.

    1. As you know, Texas really can’t ban abortion because of Roe.

      Also, any law aimed at “informed consent” will discourage abortion. Informed consent is all about telling the patient about downsides of a given treatment or procedure. Now the judge has to read the minds of the legislature to tell us if the “informed consent” was for acceptable reaons, or unacceptable reasons. The laws at issue in PP v. Casey were aimed at getting Roe overturned, and succeeded in limiting Roe’s application. How can the judge say that they were really ust about “informed consent?”

      That said, under current precedent, the judge is mostly right in his opinion.

      1. Also, any law aimed at “informed consent” will discourage abortion. Informed consent is all about telling the patient about downsides of a given treatment or procedure

        Except, if you look at Perry’s statement — “This important sonogram legislation ensures that every Texas woman seeking an abortion has all the facts about the life she is carrying, and understands the devastating impact of such a life-changing decision” — it’s obvious that in the case of abortion, Perry considers “the procedure works exactly as it is intended, to end a pregnancy” to be a “downside.”

        1. That’s the governor’s stated aspiration for the law. Perry didn’t write the law–the legislature did. The judge has to determine the legislature’s intent.

          I might note that the “Casey” in PP v. Casey was Governor Robert Casey, one of the staunchest pro-life Democrats. I’m sure if you searched his speeches and remarks at the time, you’d find similar comments.

        2. I think the assumption is that the woman will later have an “oh crap what have I done” moment and realize what a horrible mistake was made so therefore they must “protect” all woman from making a choice that they might later regret. In other works, “think of the children” isn’t working so it’s time to try “think of the mother” instead.

  4. Wow. How could the person that signed this legislation be taken seriously as a candidate to be in charge of protecting and defending the Constitution?

    1. Well, you’re alternative is the guy who said Gitmo was unconstitutional and promised to close it 2 years ago.

      And said signing statements were unconstitutional, but continues to issue them.

      1. Well, they both suck.

        1. Well, they both suck.

          That’s an electoral feature, not a bug – and why you don’t hear more from GJ and RP.

      2. Well, you’re alternative is the guy who said Gitmo was unconstitutional and promised to close it 2 years ago.

        At this point I think there are still many more alternatives. And almost all of them suck.

  5. A big problem in the whole debate is that an entire generation has come to accept, on the basis of Roe v. Wade, that abortion is a constitutionally-protected right.

    Unfortunately, most people can’t grasp the concept that if a person argues that Roe was wrongly decided, that does not mean that person does not believe abortion should remain available as a legal and safe medical procedure.

    Roe was wrongly decided, in that it ruled that the Constitution of the U.S. somehow protects your “right” to have an abortion. But the question of whether a state government has the legal, constitutional power to regulate or outlaw a particular procedure or practice is quite different from the question of whether it SHOULD do so, or how it should do so. The latter is a political question – i.e., a question not suited for the courts, but for the legislature and continuing debate in the public arena.

    Too often, though, when one side or the other doesn’t get the results it wants via the political process, it goes running to the courts to short-circuit the debate and get its way by convincing the court that the Constitution somehow requires the purportedly desired result.

    The fact of the matter is that the Constitution requires and guarantees the outcome only in a limited range of issues, and abortion simply isn’t one of them.

    Could a state completely ban the practice of abortion without violating the Constitution? I say yes it could.

    Do I believe abortion should be outlawed? No. But the question of what the law “should” be is not the same as whether the law is beyond the legislature’s power.

    1. Well said. Another consequence is that actual enumerated rights are not respected.(Campaign finance laws vs the 1st amendment come to mind.)

    2. What? You mean the SCOTUS can be wrong at times?

    3. Indeed. I am personally of the opinion that abortion should be legal and available…and I’m also of the opinion that Roe was terrible, crappy, disastrously bad law. Unfortunately people you try and explain that too usually look at you like you have two heads.

    4. most people can’t grasp the concept that if a person argues that Roe was wrongly decided, that does not mean that person does not believe abortion should remain available as a legal and safe medical procedure.

      Agreed. However, the suspicion of a ‘secret agenda’ in overturning Roe is understandable, given that other political groups such as the Brady Campaign do have goals far different than their PR releases.

  6. The solution is simple. The judge has no authority to implement his actions. Perry should do as Jefferson, Jackson, and Lincoln did before him–ignore the decision. Most of the politicians in this nation are clueless about the Constitution.

    1. He’s a federal judge. If Perry ignores him, Obama can still enforce the decision.

      1. If Obama tries to enforces it, Perry should ignore him. Besides, Obama doesn’t have the guts to overrule a Governor and a State. It will make him look worse than he is, especially with the pro-life contingent.

        1. The only way to enforce this law is to prosecute doctors who fail to comply with a law struck down in federal court. Every state judge would have to be willing to ignore the federal ruling. Most state judges have state constituional protections against firings. Perry really has no power here.

          1. Abdul,

            Perry has all the power. A judge is overruling the will of the people. The framers never allowed that. If anyone fails to abide by a law, they get in trouble–including doctors. The only recourse is what you mentioned–have Obama enforce it, which will bring a showdown of the President overruling a State. Obama is on his way out anyway, but enforcing it will make him look worse. When is the last time a President overruled a Governor?

            1. The framers never allowed for a judge to overrule the will of the people???? If the will of the people results in an unconstitutional law then the Supreme Court is indeed allowed to overule it if it comes before them. Whether you agree with their definition of unconstitutional is a different matter.

            2. When is the last time a President overruled a Governor?

              1957 – Eisenhower versus Orval Faubus?

              Just guessin’.

  7. So what happens when the Supreme Court says a fetus has not 14th amendment rights, but Congress does?

    http://en.wikipedia.org/wiki/U…..olence_Act

    Is it possible to be a legal victim but have no right to life? And for the record no state or Federal court has accepted any challenge to the law.

    1. Is it possible to be a legal victim but have no right to life?

      Yes, it is. California defines murder as the intentional killing etc. etc. of a human being or a fetus. Just as it is unlawful to kill dogs in a certain way (Michael Vick), it is unlawful to kill fetuses in a certain way (Scott Peterson). However, one can both terminate a pregnancy and put a dog down.

  8. “One of those provisions requires a physician who performs an abortion to order a sonogram beforehand, show the images to his patient, give her a detailed oral description of what the sonogram shows, and “make audible” the fetus’s heartbeat (assuming it is present). “A physician is required to say things and take expressive actions with which the physician may not ideologically agree, and which the physician may feel are medically unnecessary,” Sparks noted.”

    From what is described above as what the physician is required to describe to his patient something he can ideologically disagree with? If he is required ti describe what the sonogram shows, is that not simply statements of fact, without ideological content?Sparks observed that “women who are pregnant as a result of sexual assault or incest may not wish to certify that fact in writing, particularly if they are too afraid of retaliation to even report the matter to police.” He concluded that “there is no sufficiently powerful government interest to justify compelling speech of this sort.”

    Except how is that “compelled”? One signs the waiver to avoid the sonogram and other stuff, one is not required to sign the waiver.

    Spark’s logic seems tortured and begging for an appeal.

    1. I think Sparks means they may not ideologically agree with having to tell the woman that wants the abortion all of that stuff just so she can get it.

      I may be wrong though

      1. That is the only way the phrase makes sense. But as I understand it, leaves a huge door open to appeal under the grounds it is factual not ideological and that informed consent for medical procedure really is a compelling interest to avoid further individual and states costs after a procedure goes wrong in some way.

  9. I love abortion threads. Let’s see if we can get over the 200 mark before the end of the day.

    (Hopefully without White Idiot showing up to tell us how we are all propertarians or whatever the hell he calls us)

  10. May as well mention something which could be the cure for these sorts of decisions. It’s not Perry’s idea, it’s the idea of the other Texas candidate.

    Reason blogged about this a while back (for snark purposes, obviously) – it’s Ron Paul’s bill that abortion lawsuits be heard by state courts, not federal courts, on the grounds that protecting human life is a state responsibility and the feds have been preventing the states from fulfilling that responsibility:

    http://www.govtrack.us/congres…..=h112-1096

  11. Thank you Jennifer for taking a prominent and well reasoned position for abortion on moral grounds. My perception is that H&R in general has a more vocal pro-life contingent. I understand the arguments but disagree, and I am glad to know that others feel the same.

    Now if only we could get the Libertarian Pope to officially sanction the pro-abortion position as the canon one we could end all this silly disagreement 🙂

    1. I think what is unusual and compelling about Jennifer’s argument is that she concedes that a fetus is a human being with the right to live, if it can do so, while many pro-choice arguments take the position that a child coming out of a woman in labor is not a human being until it’s entire body has passed through the vaginal opening.

      1. I agree, and it’s why I stated that it’s the best deontological pro-choice argument.

        I also feel like people who get their panties in a twist about the horrible shortcomings of teleological ethics (we’re all faceless beads on the abacus of utilitarianism) are either shortsighted or hubristic. I may be putting words in mouths here, but the idea seems to be that you can always reason from rules or first principles what the correct action in a dilemma is, and I’m not so sure humans are that clever in practice. In practice, I believe the results can provide useful information. Alcohol and drug prohibition produced monstrous results, and I’m confident a renewed abortion prohibition would produce some pretty nasty side effects as well. If you believe abortion is murder the side effects are most likely worth the pain of reducing murder, I still think society should always consider the costs incurred in pursuing a policy as well as the inherent morality of the policy itself.

        1. If you believe abortion is murder the side effects are most likely worth the pain of reducing murder, I still think society should always consider the costs incurred in pursuing a policy as well as the inherent morality of the policy itself.

          The problem I have is that these very issues are almost always ignored, precisely because they bring up such uncomfortable possibilities. The ‘grand argument’ is always in the abstract, because the details contain an army of devils, and getting anyone to address those details is almost impossible.

          1. The ‘grand argument’ is always in the abstract, because the details contain an army of devils, and getting anyone to address those details is almost impossible.

            Boy, ain’t that the truth.

            I recall an abortion discussion at The Corner on NRO some years back. Jonah Goldberg posited the question as to what the punishments s/b for those who violate abortion laws should abortions be made illegal or severely restricted sometime down the road.

            He got a response from Ramesh Ponnuru. In short, Ponnuru’s position was that abortion providers s/b punished with prison sentences (3-5 yrs) and large fines ($10-$25 grand). Women who had obtained an illegal abortion s/b granted immunity if she testified against the abortion provider. He didn’t mention any punishment for women who would get an illegal abortion and didn’t testify for the state.

            What jumped out at me was the lack of punishment he recommended toward women who would receive illegal abortions. Mind you this is coming from a member of the “personal responsibility” crowd. In my mind, at a minimum, the woman would share 50% of the responsibilty for the illegal act. Basically, he would treat women who would choose an illegal abortion as victims and put all the punishment on the abortion service providers. (This is similar to how the WOD is waged, too. Lesser punishments for end users vs. more severe punishments for the seller.)

            What it tells me is that Ponnuru understands that if he and other pro-lifers would seek punishment as severe for women as they recommend for abortion providers, they’d be dead in the water, politically speaking.

            Ironically, after reading that exchange, I became pro-choice on the abortion issue. I found the disparity in recommended punishments problematic precisely because it skirted the personal responsibility issue.

            And that’s the real bind for the pro-life position. If they seek any severe punishments for women getting illegal abortions, they’ll lose support. However, removing punishments for these same women flies in the face of the whole conservative “personal responsibilty” mantra.

            1. If they seek any severe punishments for women getting illegal abortions, they’ll lose support. However, removing punishments for these same women flies in the face of the whole conservative “personal responsibilty” mantra.

              It also plays havoc with the idea of abortion equaling murder. Casey Anthony was tried for murder, not treated as a ‘victim’, and most people in America agreed with the trial.

              Any difference in the level of punishment between women getting (or seeking) abortions and women who kill their children would seem to confirm that the two actions are not viewed the same by society.

              The other problem lies in the oversimplification of the pregnancy/abortion process. Any 1st year resident will confirm that there are many health complications inherent in both carrying a child to term, as well as in the abortion procedure. It’s different for every woman depending on her physical and mental traits.

              I know I don’t want 3rd parties using some politically derived chart to define what choices are available to women, depending on various ‘factors’ that have been hashed out in committees.

            2. But look at the effects: by punishing providers, you reduce the supply. It will go underground and become both more expensive and less safe, as well as maybe linked to organized crime. *In theory* this would reduce the overall number of abortions, which is supposed to be the ultimate pro-life goal.
              For the record I do not favor allowing the mother to get away completely (maybe parole and community service would be a good balance), but I do favor that penalties be much greater for the physician, for the above reasons; and also because it’s obvious many in society don’t consider abortion to be murder and do have no problem with letting everyone involved get away, so high penalties would lead to a crisis of non-enforcement.
              Of course, that is the theory. I agree there is an army of devils.

              1. But look at the effects: by punishing providers, you reduce the supply.

                Yeah, I got that, I just didn’t mention it in my post for the sake of brevity.

                I will say that I appreciate your honesty with regards to your willingness to mete out punishment to the woman who obtained an illegal abortion. Most folks dodge this part of the discussion.

                Not to put words in your mouth, but from what I get from your post is that essentially you understand the inherent injustice of punishing the abortion provider more severely than the woman, but you are okay with the imbalance as you think it will accomplish your goals of reducing the number of abortions performed over the long run. Is that about right?

                As mentioned in my first post, a woman choosing an illegal abortion is at least 50% responsible for the illegal act. One could argue that she bears more responsibility than the provider as there is no abortion unless she chooses to have one. To punish one more seriously than the other seems to me to be unequal treatment before the law. I have a problem with that.

              2. After pondering this for the last few minutes, let me add a few more thoughts.

                Again, as I understand your position, you’d be content with a legal regime governing abortion in which women convicted of violating arbotion laws would be punished lightly as compared to the medical personnel performing illegal arbortions. You would approve of tougher punishments for them, including depriving them of their liberty aka a prison sentence. You’re okay with this imbalance in punishments because you think it will lead to fewer abortions in the long run. I think that sums up your position fairly. Forgive me if I’m wrong.

                For me, if it’s such a serious issue to you that you are willing deprive someone of their liberty, then justice demands that the actual instigator of this moral transgression should be punished the same. The instigator being the woman who sought out and received an illegal abortion.

                By throwing away the idea of equal punishment for both parties in service of your preferred policy outcome, you’ve essentially made an “ends justify the means” argument. You see that your legal regime is unfair to the provider, but that’s okay because it serves a greater good in your opinion.

                If you can’t bring yourself to point a stick (figuratively speaking) against a woman for doing something you find to be morally wrong, why is even remotely fair just to point the stick at the medical personnel?

                Do you see my problem with your position?

                In a way, it comes off a moral preening. You think most abortions are morally wrong, therefore something has to be done. You can’t bring yourself to punish, in any meaningful way, a woman on the receiving end of an illegal abortion, but someone has to pay. You see to it that the medical personnel pay a much higher price than the woman.

                1. It is debatable whether the responsibility is equally shared. As is obvious, if the pregnant woman doesn’t seek the abortion there would be none. However, without a professional provider it is possible that she wouldn’t get one even wanting to. Since both are needed, to split up a precise proportion of responsibility is simply impossible.

                  I understand that it is an “ends justifies the means” argument, and I see how it generally can make you uncomfortable. I simply think the end of protection and preservation of human life is important enough. It doesn’t justify /any/ means (such as bombing clinics), but I would think it could justify prima facie unfair penalties.

                  And I would certainly like to see a more equal sentencing, for that matter. This is simply the recognition that it is politically unviable in present day America (and many other countries).

                2. Let me add to make it clear: I do consider, essentially, both as participants in a conspiracy to murder. (*) In that sense, I would like to see both have a penalty. I am just not deluding myself that this position is shared by enough people to make it politically viable, and if there is the alternative to punish one rather than none in a way consistent with the overall goals, I would take it.

                  * Essentially, but it’s obviously not exactly the same as murder is for most murderers – about money, power, psychological pleasure. I don’t think homicide laws as they are now would be fitting because the category of killer they presuppose is different. And I do recognize the common exceptions as valid too (rape, risk to life…)

              3. But look at the effects: by punishing providers, you reduce the supply.

                I take it you’re in favor of the War on Drugs?

                1. No. Unlike human life itself, I don’t think any kind of consumption purity should be enforced – whether drugs, tobacco, alcohol or trans fats.

                  And there is also an important difference: abortion requires significant training. Selling drugs can be done by anyone.

      2. prolefeed, I think you are slightly off-base, because most pro-choice arguments of the type you describe are making a distinction between human beings and persons. I don’t often see anyone claim that a fetus becomes human during birth, just that humanness is not coterminous with personhood. Which is (part of) the position I hold. The point being, having human DNA doesn’t hold much moral weight for me compared to something like sentience.

        1. “The point being, having human DNA doesn’t hold much moral weight for me compared to something like sentience.”

          Then how do you define sentience? Depending on how you do it, sentience starts in the womb and therefore late-term abortions are questionable, or it starts somtime later in development, but then you are arguing that infants are not persons.

          it sounds reasonable but sentience is a slippery concept to define as a black and white legal concept and therefore not very useful.

        2. Sentience can also be lost through accident and physical trauma; but even in that case we seek the consent of a relative before plugging off and would usually consider it murder if a third party just came and did it without asking anyone if they are allowed to.

  12. Again, libertarians should have to deal with the difficult realities of their free society. Government inserting itself into women’s reproductive systems is in no way the pro-freedom stance.

    1. Your statement on its face is not objectionable. However, you entirely omit the idea that the woman’s reproductive system might, at some point along the way, be housing another living human being.

      I’m not starting the whole “life begins at conception” argument because (1) I don’t believe it does and (2) it’s not relevant to my point here anyhow, but at some point along the timeline of fetal development, as recognized by even the Roe v. Wade court, that embryo becomes a fetus and that fetus becomes a potentially viable human being (see the lengthy discussion there and in PP v. Casey, about the “quickening” of the fetus and fetal viability outside the womb).

      So at a certain point in time, the woman’s “right to choose” in fact affects the rights – the very life – of another human being. As such, yes, it becomes a legitimate issue for regulation. Now, obviously, some people firmly believe that point begins the moment the egg is fertilized; others believe it happens around the 25th week of the pregnancy, or whatever.

      But there is no denying that, at some point, the later in the term an abortion occurs, the more true it is that the procedure is killing a person. So it’s not quite so simple and clean as “government inserting itself into women’s reproductive systems.”

      Why should it be ok to kill an infant inside a woman’s body one day before it’s born, but it’s first degree murder to to it after it has left her body? What if the woman was scheduled to have an abortion on Tuesday and she suddently went into labor and delivered a healthy baby on Monday?

      At a certain point – which obviously is extremely difficult to define – we are talking about the rights of a person other than the woman.

      1. At a certain point – which obviously is extremely difficult to define – we are talking about the rights of a person other than the woman.

        But what isn’t talked about much is what, to whom, and by who, should be done about the protection of these ‘rights’.

        To me, the enforcement mechanism is the entirety of the ‘problem’ with the abortion question. Without the ability to even agree on such a ‘difficult to define’ question of the formation of personhood, the additional question of enforcement seems to be irreconcilable.

        1. To me, the enforcement mechanism is the entirety of the ‘problem’ with the abortion question.

          Thank you for this excellent summation of my thought. This was what I was trying to get at with my first principles vs consequences statements above, but you’ve said it far more concisely.

      2. It’s just that anti-abortion folks tend to be the same folks who don’t give a single shit about the cost in human lives to their social and economic policies, so I really don’t think this question originates in a mode of liberalism, but plain old religious patriarchy. There is no tradition that calls conception the beginning of personhood, except the ad hoc reasoning of modern-day religious conservatives. The traditional line was drawn at “quickening,” with modern science refining that approach. It’s not a question that can be answered scientifically, though, so we are required to weigh the intrusions on mothers against the rights of fetuses.

        I say err on the side of the mothers for several reasons: Abortion is simply a fact of life (you can even call it a vice if you like, like drug use, another fact of life that can’t be legislated away). The harm done in outlawing abortion is known and systemic. The harm done to fetuses is obvious but the social harm is theoretical: it makes Jesus cry, and what not. Also, if men had to bear the responsibility of reproduction, I presume the laws would be rather liberalized. Finally, it’s wrong for the state to force women to give birth against their will. Yes it’s a conundrum given the facts of biological reproduction, but it’s one that can be solved by drawing the line at a place appropriate for minimizing harm to breathing humans.

        1. Burglary is a vice, too.

        2. If men had to bear the responsibility of reproduction, they probably wouldn’t run around and put their dicks into every willing (and sometimes unwilling) pussy they found.

          Who am I kidding? Of course they would.

        3. “Also, if men had to bear the responsibility of reproduction, I presume the laws would be rather liberalized.”

          A certain kind of man (Bill Maher comes to mind as a representative of the breed) supports abortion precisely because they think it absolves them of responsibility to their sex partners. They favor abortion because it gives them access to pussy without strings. That is the value they give to women in general.

        4. “The traditional line was drawn at “quickening,”…”

          So what? Drawing the line at what was considered quickening would be unacceptably “anti-choice” to the abortion rights crowd and you should very well know that. The radical arbortion rights people consider protecting the life of a child who survives being aborted to be unacceptable.

          Sorry, that’s just a bad faith argument.

        5. If the cost of the establishment of an extremely high liberty, low government and fully free market society were more millions of babies killed in the wombs they call home… I would consider conceding it. But I don’t see liberals offering that exchange, so I have no reason to take the first step.

          Also, good point about men. Though historically you have a point, it is discriminatory that a woman alone can choose to abort without consulting the father, to bring the baby to term without consulting the father, and still demand child support even if the father had offered to pay for the whole cost of an abortion. Child support should be capped at the cost of an abortion in a private clinic in the relevant locality.

  13. The judge exposed himself with his snarky comment about Obamacare…

    Abortion and the First Amendment will end up a one way street… no sonograms for those who object but “by god” abortions had better be available in Catholic hospitals and you won’t be able to object if you are a nurse.

  14. “He concluded that “there is no sufficiently powerful government interest to justify compelling speech of this sort.”

    I’d be interested to find out in other cases he ruled where government regulations required speech if Sparks found there was a compelling government interest and just what would comprise such.

  15. Interestingly enough, Roe can be upheld even if the state/SCOTUS/science proves that human personhood begins at some time before birth (development of the nervous system seems like a good place to start; not going to go in depth into arguments here, but it seems like either conception or nervous system is least arbitrary — least susceptible to “heap” arguments — and there are numerous problems with using conception, such as complete lack of a nervous system and the high number of failed implantations/miscarriages).

    At any rate, the core finding in Roe was that the right to privacy includes the right to make choices regarding reproduction (or lack thereof) and that blanket bans on abortion did not treat that right with enough deference (subject to strict scrutiny, state must demonstrate that regulations further a compelling state interest, are tailored as narrowly as possible so as to infringe on fundamental rights as little as possible while furthering said interest).

    The point being: as the court found in Planned Parenthood v. Casey, it is entirely plausible that the state could make a case for outlawing most/all abortions — if the state interest is compelling enough and the law is appropriately narrow. In such an event, the core finding of Roe would still stand — the right to make one’s own decisions regarding reproduction (or lack thereof) — even though abortion laws would be upheld.

    Opponents of Roe should keep that in mind: overturning Roe to outlaw abortions is neither necessary nor wise, as the impacts would reach far beyond abortion clinics.

    1. Roe was bad law; this one was a bad law… I think both sides can agree that abortion is notorious for creating bad laws. It almost makes me ashamed to have a position on the issue.

      But you are right: over emphasis on Roe is one of those bad law debates that neither side really gets right.

  16. This has to be the dumbest legal analysis I have ever had the priviledge to read. You seriously think that the same U.S Supreme Court with Roberts, Alito, and Kennedy is going to extend the first amendment to prevent doctors from performing state mandated functions (including a sonogram and description of the fetus?). Keep dreaming…

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