Abortion

Another Unconstitutional Abortion Restriction Struck Down in the South; Judge Asks What If Similar Laws Applied to Guns?

Alabama will have to reconsider a requirement that abortion clinic doctors have local hospital admitting privileges.

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Planned Parenthood Southeast Advocates/Facebook

Alabama will have to reconsider a requirement that abortion-clinic doctors have hospital admitting privileges. In a 172-page court decision released Monday, U.S. District Judge Myron Thompson declared the requirement—part of a package of Alabama abortion regulations passed in 2013—unconstitutional and admonished state lawmakers for exceeding their authority in passing it. 

A similar law in Mississippi was deemed unconsitutional last week.

In Thompson's comprehensive decision, he said that evidence "compellingly demonstrates" that the requirement would result in three out of Alabama's five remaining abortion clinics closing. "Indeed, the court is convinced that, if this requirement would not, in the face of all the evidence in the record, constitute an impermissible undue burden, then almost no regulation, short of those imposing an outright prohibition on abortion, would," Thompson wrote. 

Drawing what some might see as an odd parallel (but many have pointed out here in the past), the Judge wrote that "the right to decide to have an abortion and the right to have and use firearms for self-defense" aren't all that different. For both, the Supreme Court has ruled that some regulation is okay but it must not "tread too heavily" on these protected rights. And both constitutional protections are rejected "as more or less important" to people based on their subjective beliefs.

"With this parallelism in mind," wrote Thompson,

the court poses the hypothetical that suppose … the federal or state government were to implement a new restriction on who may sell firearms and ammunition and on the procedure they must employ in selling such goods and that, further, only two vendors in the State of Alabama were capable of complying with the restriction: one in Huntsville and one in Tuscaloosa.

The defenders of this law would be called upon to do a heck of a lot of explaining–and rightly so in the face of an effect so severe. Similarly, in this case, so long as the Supreme Court continues to recognize a constitutional right to choose to terminate a pregnancy, any regulation that would, in effect, restrict the exercise of that right to only Huntsville and Tuscaloosa should be subject to the same skepticism.

He rejected the state's argument that new abortion clinics would open to take the place of those closing if only clinic administrators would pay doctors more competitively. 

In the words of the State's expert Dr. Peter Uhlenberg, describing the potential for new clinics opening, "If we think of this as a supply and demand and the demand is high, the market is there, there's no reason to expect that someone wouldn't step forward to provide that service."

As the discussion above makes clear, there are in fact several very good reasons to expect that no one would step in to provide abortion services. Many OB/GYNs in Alabama do not know how to perform an abortion because many residency programs in the region to not offer the training; many OB/GYNs have strong anti-abortion convictions; and others fear, reasonably, that they could not provide abortions without sacrificing another part of their practice or that providing abortions would expose them and their families to violence. The court finds, therefore, that the inability to obtain local abortion doctors is not a matter of money, but rather a reflection of the difficulty of pursuing that occupation in the State.

Judge Thompson extended an order blocking enforcement of the hospital admitting privileges rule and said he would issue a final order on the law after considering more arguments. Alabama Attorney General Luther Strange promised that his office would appeal the decision. In a statement, Gov. Robert Bentley said he was "extremely disappointed" by the ruling and would support the appeal. 

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  1. I find it amusingly ironic that the ad that appears at the bottom of this article is for “robot vacuums.”

    1. +1 cable repair

      1. “Don’t be fatuous, Brandon.”

    2. Woomba! Woomba!

      Got a robot vacuum cleanin’ up my wife!

  2. Wait, let me get my popcorn first.

  3. Did we have this many abortion threads before ENB came along?

    1. Just thread abortions

      1. But enough about Tony.

    2. I mean, there’s an easy way not to have an abortion fight thread you guys.

      1. The FIRST rule of Abortion Fight Thread is….

      2. Ha ha ha ha ha

        Anyway, question: Is it only abortion clinic doctors that were required to have hospital admitting privileges or was this a condition that was put on doctors in other types of practices that was judged here as an undue burden only on abortion providers?

        1. No, it was specific to abortion doctors.

          1. Not true, ENB.

            Physicians at an ambulatory surgical center in Alabama have to have admitting privileges at a hospital.

            This was the extension of a requirement imposed on ASC’s to abortion clinics, which perform . . . wait for it . . . for at least some kinds of abortion, an ambulatory surgery procedure.

            Google “alabama ambulatory surgery center admitting privileges”, and its the first hit. Sorry, getting a direct link is not easy.

        2. Judging by the freak out reaction of pro-lifers to the recently proposed federal law that any restriction on abortion providers must apply to equivalent health care providers I would say nope.

          1. Judging by the freak out reaction of pro-lifers…

            …saves all that hassle of having to actually ascertain the facts.

  4. Drawing what some might see as an odd parallel (but many have pointed out here in the past), the Judge wrote that “the right to decide to have an abortion and the right to have and use firearms for self-defense” aren’t all that different

    The language in the Constitutional Amendment guaranteeing the right to an abortion IS pretty iron-clad.

    1. A well regulated Uterus, being necessary to the security of a free State, the right of the people to keep and bear coat hangers, shall not be infringed.

      1. That should be Amendment II.V

      2. I fail to see how this guarantees the individual right to anything. Clearly, the intent of this amendment is that the government can run a National Health Service.

      3. They can only be done with the technology that was available at the time the constitution was written, because they never intended the right to an abortion to apply to advanced medical technology that they could never have foreseen.

        1. Abortions through musketry.

    2. Yeah, the 9th Amendment is pretty clear.

  5. Yeah, it’s just like guns. What amendment guarantees the right to an abortion, again? Did the judge specify which Article or Amendment restricting abortion violates? And if only the right to keep and bear arms was as unrestricted as abortion, that would be a vast improvement.

    1. The 9th Amendment.

      1. Oh yeah, the government is a stickler for adhering to that one. Examples to the contrary too numerous to list.

        1. Well, that’s irrelevant to what it actually means.

          1. But since the argument is about drawing parallels to the second amendment, it is very relevant to the argument.

            1. Er… that only strengthens my argument, since in both cases the government acts in direct violation of the plain text.

              1. The point is that the judge’s reasoning is bullshit because even though the right to keep and bear arms is specifically called out in the Bill of Rights while abortion is not, the right to keep and bear arms is subject to greater restriction than abortion.

                1. But guns kill people!

      2. The 9th Amendment must also give me the right to murder you. Thanks for educating me about my rights!

    2. The 14th.

      1. Equal protection of the laws guarantees a right to an abortion? Really? I’m sure you don’t even buy that, although I’m sure you’ll go ahead and argue it anyway just to play lawyer.

        1. Liberty in the due process clause

            1. It’s the same place pre-New Deal courts found the right to contract

              1. The same New Deal courts that decided Wickard? Quite the authority you are choosing to argue from.

                1. I could have sworn I wrote ‘pre-New Deal courts.’

                  I did.

                2. The same New Deal courts that decided Wickard?

                  1942 is hardly “pre-New Deal.”

                  1. Missed the “pre”. Bo can do his stupid little happy dance over that one. Still doesn’t change the fact he is arguing from authority.

        2. When I was in law school, one of my classmates told me with a straight face that the EP clause guarantees a right to abortion. She never explained how, but since she was one of those “My emotions are an infallible oracle into Capital-T Truth” people, I decided against asking.

        3. The way Roe v. Wade worked is that the judges searched hx here & around the world re abortion laws and opinions of the learned about abortions, and decided they must be in some way fundamental, inasmuch as whether you’re born or aborted decides whether you exist, and hence whether anything man-made exists, including the law. So since it’s fundamental, it has to be equally protected, which means abortions need to be allowed up to a certain point in pregnancy, and may be prohibited or restricted beyond that point. Fuck me, but that really is it in a nutshell.

          It extended a line of reasoning that was used by most judges in the birth control decision that preceded it by a few years. Basically it says that if we don’t reproduce, fuck-all what the Constitution or any other law says, so we have to have the right to reproduce, which means we have to be allowed to decide whether to reproduce. A much later decision decided that would be true of homosexual intercourse too, because it resembles baby-making, so it has to be treated on a par with it.

          Unfortunately ingesting drugs doesn’t sufficiently resemble baby-making, so we don’t have that one, or gambling, etc.

    3. This is why the Bill of Rights was a mistake. This ridiculous shit right here. Rights are laid out in the Declaration of Independence: Life, liberty, property.

      1. I seriously doubt the ‘life’ referred to in the Declaration was thought to apply to non-quickened fetuses as the Common Law at the time did not hold so.

        1. I wasn’t talking about that. Just the “What Amendment is that???” bullshit. Rights are not limited by the Constitution, government authority is.

        2. Can somebody tell me WTF is a “non-quickened” fetus?

          1. A “non-quickened” fetus, using the precise 18th century medical terminology, would be one that is not moving sufficiently to be felt by the mother. You see, Bo believes that only rights enshrined in common law circa the late 1700’s are legitimate, which is why he supports anti-sodomy laws, slavery, anti-miscegenation laws, and women’s suffrage.

            1. *and opposes women’s suffrage.

    4. “What amendment guarantees the right to an abortion, again?”

      The answer depends on what type of society you believe we live in. Do you believe everything not forbidden is permited? Or do you believe that everything not permitted is forbidden?

  6. sounds like background checks and waiting periods are OK then. keep your nose clean girls to maintain your right to choose.

    1. And de facto prohibitions by requiring a permit under “may issue” conditions.

    2. Courts have upheld some waiting periods for abortion

      1. I would love to see the reaction if a state required a 10 day waiting period and limited abortions to 1 every 30 days.

        1. I don’t think the 1 every 30 days would be too big a problem.

          1. It is if you’re carrying twins.

            1. High capacity abortions have no business in a decent society.

              1. Yep. Those things are dangerous!

          2. Agreed, but there would be no end to the slippery slope (no pun intended) predictions.

  7. So, he takes the right to keep and bear arms, which is specifically stated should be free of infringement–and which is, nevertheless, coated in infringements of all types–including the one he mentions–that of regulating who can sell guns, and he compares it to the right to terminate a pregnancy–which does not actually exist anywhere in the Constitution.

    And I am left with the question, do other elective same day surgery centers in Alabama have to have admitting privileges?

    1. You quibblers are so damned tedious. As much as it sucks, there’s this feature of our legal system called precedent. Lower courts are bound by precedent set by higher courts. Argue all you want abotu where abortion is an enumerated right, ignore the Constitutional language about unenumerated rights all you want, it doesn’t matter for this court: it is bound by precedent to go by what higher courts have ruled.

      1. Seriously. This was not some big Supreme Court case deciding the future of abortion in America. It’s a lower court that is bound to take the SC’s current interpretation of the Constitution as settled law.

        It’s fine to debate whether abortion is “protected” by the Constitution or whether it should be legal, but that wasn’t the issue before this court.

        1. The issue was: can abortion providers be subject to similar regulations as clinics providing other types of outpatient surgeries. Apparently, the court thinks that abortion has constitutional protections that other surgeries do not.

  8. Will no one think of the penumbra and emanations?

    1. Almanian – just….Almanian

      The armored skunks abandoned you?

      1. heh

        WE’RE JUST FRIENDS! JUST! FRIENDS!

  9. The problem with comparing the right to gun ownership with the right to have an abortion–from a legal perspective–is that it takes the rights of a fetus and denigrates them to the same status as the rights of an inanimate object.

    It’s one thing to recognize that our rights sometimes overlap and conflict with each other–like they do so often in contract law–and then conclude that one party’s rights prevail.

    It’s quite another to assume that one party has no more rights than an inanimate object (like a gun) and then rule based on that assumption.

    From an ethical perspective, the problem with comparing abortion to anything else is that such ethical comparisons are impossible. There is no other situation in the universe, yet, where one person is willfully responsible for the very creation of another person.

    The suggestion that willfully engaging in activity that can create another person makes you ethically responsible for the person you create is an argument that I have never seen adequately refuted.

    I will allow, however, that just because something is unethical doesn’t mean it should be illegal.

    1. Fetuses don’t have rights in our jurisprudence, persons born do.

      1. What about when moms are arrested for using drugs while pregnant, then?

        1. That does not have to do with any legal ‘right’ of the fetus, but with societies ‘interest’ in protecting them (likewise animal cruelty laws do not create a right for the animal, but establish societal interest in protecting them from abuse).

          1. If they don’t have rights, what is being protected? Why would society be interested in protection at all?

            1. You can be punished for felling certain trees, do you think that means the trees have rights?

              1. You don’t get charged with homicide.

                1. But you get charged, nonetheless, at times with a felony. None of that = a right.

                  1. But is that ‘felony’ for felling a tree a moral law?

            2. Congratulations Slammer, you’ve figured out that victimless “crimes” are bullshit.

            3. Are you Penn Jillette’s wife Slammer?

          2. So people get charged with homicide for killing animals, just like they do for causing a pregnant woman’s fetus to die if they attack her? Thanks for the info, Bo, I never knew!

            1. So the charge of homicide means rights are granted to the victim, but other felony charges do not? Curious as to your legal theory there, WTF.

              1. If the fetus is not a ‘person’, then how can causing the death of one be a homicide? It’s really pretty fucking simple, which you already know, but you choose to be deliberately obtuse.

                1. Because homicide can mean the killing of one human being by another. The victim need not be a ‘person,’ and only ‘persons’ have rights under our constitution.

                  http://dictionary.reference.com/browse/homicide

                  1. Yup, deliberately obtuse, as expected.

                  2. So you’re actually saying that not all human beings are persons? Are you sure you really want to go there?

            2. Straw man. That’s not what Bo said, but they do get charged with a crime. It would be more logical if causing a pregnant woman’s fetus to die resulted in a destruction of property charge, but that would be…unseemly.

              1. Surely, it’s more than that.

                And if both the mother and the fetus dies, surely, more than one aggrieved party has been deprived of life.

                1. If you would like to say that fetuses are potential lives or persons and that the state can have an interest in protecting such potential lives or persons such that homicide laws can be brought to bear to do so, that sounds fine, but it would not mean the fetus protected has ‘rights.’

                  1. Why is the rationalization so important to you?

                    Is it just an emotional thing?

                    Do you imagine that if a fetus had some kind of rights (even rights that were superseded by the mother’s rights), that this would somehow make you like a bible-thumper from Alabama?

                    Why is the idea that a fetus might have rights so unacceptable–to the point that it’s okay to come to the same conclusions we would otherwise, just so long as we don’t admit that a fetus might have some rights?

                    1. But Bo, if a ‘fetus’ is deserving of the same or similar protections as a ‘person’, then could it actually be a ‘person’ for legal purposes?

                    2. The other thing that bugs me about this?

                      Maybe they don’t mean to do it, but the insistence that fetuses aren’t people and don’t have any rights, etc. comes really close to being dogmatic–much like the social conservatives so many pro-choice people imagine they’re opposing.

                      But what they end up reenforcing with their dogmatism is the idea that morality and legality are the same thing.

                      In other words, they seem to think that if fetuses are people and have rights, then that means killing them is immoral–and, therefore, should be illegal.

                      Actually, as libertarians everywhere will attest, there are lots of things that are both immoral and should be perfectly legal. Cheating on your spouse is immoral! Who here thinks adulterers should have to deal with the cops and face a jury for their adultery?

                      Meanwhile, it really isn’t necessary for a pro-choice position to be predicated on the dogmatic insistence that fetuses aren’t people and don’t have any rights.

                    3. In other words, they seem to think that if fetuses are people and have rights, then that means killing them is immoral–and, therefore, should be illegal…Actually, as libertarians everywhere will attest, there are lots of things that are both immoral and should be perfectly legal.

                      The important distinction in the case of abortion is that the non-aggression principle comes into play if the fetus has all of the rights of a “legitimate” person. It’s imperative that the fetus be a non-person up to the magical moment when you start to get queasy about killing it, because otherwise killing it is a violation of the non-aggression principle and consequently rises to the level of justifying government intervention.

                  2. Of course, there actually are legal protections for fetuses and recognition of fetal “rights”, but uh, that doesn’t mean they’re like, “persons”, with uh, you know, “real” legal rights or anything.

                    http://en.wikipedia.org/wiki/F…..ion_in_law

                  3. “If you would like to say that fetuses are potential lives…”

                    They are not “potential” lives, they are simply lives. You are making a semantic distinction which is dishonest as all hell.

          3. I don’t see why seeing this as an issue where one person has rights and the other doesn’t is the answer here.

            From an emotional standpoint, I guess this is what people do to rationalize things. It is not necessary to insist that human fetuses are inhuman or that babies aren’t people in order to decide that abortion should be legal.

            Sometimes our rights overlap and conflict with each other, and sorting those situations is out is one of the few legitimate functions of (even libertarian) government. If government has a legitimate function, it’s to protect our rights, isn’t it?

            In a world of overlapping and conflicting rights, I’d argue that there’s a spectrum of rights. Children don’t have the same rights as adults–in no small part because they can’t be held responsible for what they do like adults.

            Dogs and cats can’t be held responsible for what they do, and they have fewer rights than newborn children, I suppose, but even I’m not willing to say they don’t have any rights at all.

            If you pointlessly torture a dog–just for your own perverse pleasure–you better hope I’m not sitting on the jury.

            Why is it so hard to imagine that a fetus might have some rights sitting on that spectrum of rights somewhere?

            You can maintain that the rights of the mother prevail–even without insisting that a fetus doesn’t have any rights, can’t you? So, why insist on something so controversial and rightly so?

            1. “I don’t see why seeing this as an issue where one person has rights and the other doesn’t is the answer here.”

              Because if it is not seen that way then the issue becomes debatable, which means their is no absolute right to abortion.

      2. Not quite true, mothers can and have been charged for ‘harming’ a fetus by doing drugs while pregnant; people have been charged and convicted of ‘murdering’ a fetus if the baby dies as the result of an attack on a pregnant woman.

      3. And yet killing a pregnant woman can, in certain jurisdictions, get you charged with two counts of homicide.

        1. And yet killing a pregnant woman can, in certain jurisdictions, get you charged with two counts of homicide.

          Yep

          Born Scott Lee Peterson
          October 24, 1972 (age 41)
          San Diego, California, U.S.
          Criminal penalty
          Death sentence
          Criminal status
          Incarcerated in San Quentin State Prison
          Spouse(s) Laci Peterson (m. 1997?2002) (her death)
          Parents Jacqueline Helen Latham and Lee Arthur Peterson
          Conviction(s) First degree murder in the death of Laci; second degree murder in the death of Conner

          1. So it can be a person in the right circumstances, but otherwise is not. How does that square with the equal protection clause?

      4. Well, that’s the very question at hand, though, isn’t it?

        Whether the rights of a fetus should be protected? If you’re telling me that a fetus’ rights shouldn’t be protected because they aren’t protected, I’m going to point out that there’s a flaw in that logic somewhere.

        That having been said, I’m not sure no murderers have ever been charged with two homicides for murdering a pregnant woman.

    2. “There is no other situation in the universe, yet, where one person is willfully responsible for the very creation of another person.”

      I’m always torn, by the way, about calling this “special responsibility”, which is what I know it’s been called traditionally. The problem is, the responsibility is only special insofar as it’s being compared in some analogy to a situation in which one person isn’t responsible for the very creation of another person.

      However, there isn’t anything special about being held ethically responsible for the things you willingly choose to do–that might harm or injure another person.

      When I willingly start my car, willingly pull it out of the driveway, and willingly drive it down the street, I am willingly accepting the responsibility for any damage I might cause with my driving to other people. …even if the damage I cause is the result of an unintentional accident.

      With that in mind, when I willingly engage in activity that may result in the creation of another person, what’s “special” about being ethically responsible for the results of what I willing chose to do?

      Like I said, I understand that there is no analogy to the unique or special relationship between parents and the completely dependent fetus they’re responsible for creating, but I’d also like to emphasize that there’s nothing special about being ethically responsible for the results of actions we willingly choose to do.

    3. How about incorporation?

  10. What amendment guarantees the right to an abortion, again?

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    I’ve always said the Griswold decision was one of the worst decisions ever rendered by the Supremes, the idea that you have a right to privacy based on penumbras and emanations from the Constitution rather than from the idea that you have a right to privacy because you’re a human being simply codified the idea that all of your rights come from the government.

    Show you where the Constitution says I have a right to an abortion? No, you show me where the Constitution says I don’t.

    1. Depends on whether you define a fetus as a person or not.

      1. See the opinion in Roe p. 156-9 about this, the Constitution seems to use it to apply to post-natal persons

        1. Whatever the Nazgul say must be true and correct, thanks Bo, got it.

          1. I don’t argue it is true because they say it, but because its persuasive.

            1. Cool story, Bo.

            2. It’s only persuasive if you already agree with the conclusion, though. Evidenced by the fact that people are still debating the issue 3,000 or so years after philosophers first touched off the discussion.

      2. I disagree. It is perfectly possible to define a fetus as a person and still conclude that it nevertheless does not have the right to occupy another person’s body.

    2. Show you where the Constitution says I have a right to an abortion? No, you show me where the Constitution says I don’t.

      Show me where the Constitution says I don’t have the right to: health care, a living wage, and a paid for retirement.

      1. What you’re really asking is where the Constitution empowers the government to redistribute wealth. It obviously doesn’t. So, now point out where the Constitution grants the government the power to restrict abortion.

        1. The Eighth Amendment. Death is not a proper sentence for the crime of inconveniencing someone.

          1. The 8th Amendment, like them all, is a restriction on government action

          2. Beg the question much?

            1. Yes, the question is whether or not the fetus is a ‘person’ entitled to the rights of a person, including life. Where you come down on that question is what determines your position on abortion. However, the courts, as usual, like to reason it both ways, and considers the fetus a non-person for purposes of abortion and also a person for purposes of charging and convicting individuals with a crime when convenient.

              1. That seems to be 100% correct, WTF. They want it both ways. Supposing a law were enacted that proclaimed the fetus to have all the rights and protections deserving of person beginning with the second trimester. Would that be an acceptable compromise for the pro-life side? And would it be an acceptable compromise to the pro-abortion side?

                1. I don’t think either side would compromise, unfortunately. On the pro-life side we have fanatics insisting that a fertilized egg is a person right from the moment of conception, and can not be harmed in any way for any reason. On the pro-choice side we have fanatics insisting that a fetus is never a person until it’s fully outside the mother, so a near-term baby can be partially delivered and have its brain sucked out while in the birth canal. Neither set of fanatics will ever compromise.

                  1. Science is going to present difficulties for this in the future. Once you can gestate a human being outside of the womb from conception to 8-9 months following I don’t see how that human being can’t be argued as being a ‘person’ from the moment of conception. That will certainly be what the pro-life crowd will argue.

                    If, on the other hand, you establish a ‘first trimester’ requirement early on then maybe a majority in both camps can be ok with it, we can establish a workable compromise/precedent for when science does make the womb obsolete, and we can move the eff on.

                2. Would that be an acceptable compromise for the pro-life side?

                  No. Not for a sizable number of them, at least.

                  And would it be an acceptable compromise to the pro-abortion side?

                  Oh hell no. See Bo above. They are every bit as invested in a fetus having no rights until some variable amount time after natural delivery as pro-lifers are in a fetus having full rights from the nanosecond sperm meets egg.

              2. No, where I come down on that question doesn’t determine anything. I dispose of the issue by noting that if something doesn’t mind being killed (painlessly or with minimal pain), and nobody owns that thing and objects to its being killed, then there is no legitimate opposing interest to your killing it. Someone who says, “But it should mind!” is just being a buttinsky the same way they “should” mind about using cocaine, gambling, etc.

                1. I dispose of the issue by noting that if something doesn’t mind being killed (painlessly or with minimal pain), and nobody owns that thing and objects to its being killed, then there is no legitimate opposing interest to your killing it.

                  So if you assume that your opinions are facts, it’s easy to reach your conclusion on the matter? That’s… somewhat unsurprising.

        2. So, now point out where the Constitution grants the government the power to restrict abortion.

          Not the feds, but the states. There’s an amendment in there somewhere . . .

      2. There is a difference between a right to an abortion and the rights you list.

        1. Taking from others, be it life or property, to avoid personal inconvenience? I don’t see the difference.

      3. Show me where the Constitution says I don’t have the right to: health care, a living wage, and a paid for retirement.

        Exactly. Nowhere in the Constitution does it say that the government can infringe your right to health care, a living wage or a paid for retirement. You are entitled to all of that that you can afford. Forcing me to pay for your health care and living wage and retirement, on the other hand, infringes my rights with regards to the 13th on indentured servitude.

    3. It stuns me how many “libertarians” come out of the woodwork to argue in favor of absolutism as soon as abortion comes up. Go ahead and make the ethical case against it all day, but don’t you dare give me this shit about abortion not being explicitly guaranteed in the Constitution. You know what else isn’t? Heart surgery. Root canals. Mowing your lawn below 2″ high.

      Because:

      The Constitution does not grant rights to citizens, it limits powers of government.

      1. But, TINY PERSONS!

        1. When the Fredrick Motherfuckin’ Douglass of fetuses shows up and drops some, “Am I not a man?” shit on me, I’ll be happy to talk about fetal rights.

          1. Ok. That’s funny right there.

            1. Somebody needs to Photoshop up a rendering of the Fredrick Mutherfuckin’ Douglass of fetuses, stat.

              1. I would pay upwards of $2.00 to see this.

          2. It’s always good to remember what it is that people want to restrict other people’s liberty on: most abortions deal with ‘person’s that are at most a few inches long.

            1. Doesn’t everyone want a 12-inch pianist?

            2. I’m curious Bo, how would you define personhood if it were up to you?

            3. So, how long does someone have to be, to be a person by your lights?

          3. We are citing you appreciatively on Twitter, FYI http://tinyurl.com/m5kcoad

            1. Citing a fallacious argument by Bo should be a source of shame.

          4. That is funny, but it’s not persuasive:

            When the Fredrick Motherfuckin’ Douglass of fetuses 6-month old babies shows up and drops some, “Am I not a man?” shit on me, I’ll be happy to talk about fetal 6-month old babies rights.

            Note to Bo and fellow tedious pedants -this does not mean I think a newly-formed zygote and a 6-month old baby are equivalent, just pointing out the fallacy in the argument.

            1. So the guy who thinks he has to explain funny vs. persuasive has got something against tedious pedants?
              Ok, that’s funny right there.

              1. And, you know, even if the fetus was a very eloquent and forceful speaker, it wouldn’t have that great Douglass hair, ’cause, you know, it’s a fetus. So the whole thing just falls apart.

                1. Talk about the pedant calling the pedant black.

                    1. Of course, it’s the only reason I oppose Obama.

            2. Not a problem for me. I don’t think 6 MOs mind dying. They have no idea what death is, so they don’t fear it. Once they’re dead, there’s about as much evidence that they like being dead as that they dislike being dead.

      2. The problem is that we are no longer ruled by the Constitution but by the Supreme Court decisions interpreting that document. Go to the library and look at that entire bookshelf full of Supreme Court decisions, all of them full of binding precedents. You can make just about any argument you please and find persuasive rationales for your argument somewhere in that pile.

        Take the Obamacare decision – there are plenty of Constitutional scholars who argued multiple sides of how the Supremes should or would rule, was there a single one who, after reading the decision, said “Hmmm, I hadn’t thought of that and I see now that I was mistaken in my analysis”? Is there a single person who honestly believes the upcoming ruling on Halberg is going to be based on some incontrovertible Constitutional grounds rather than on whatever the hell Roberts wants to decide and then provide some ex-post Constitutional fig leaf for?

        The Constitution means whatever 5 Supremes at any given moment decide it means and there’s no telling beforehand what they are going to decide. The law simply is no longer any sort of bright line guide to what is permissable or forbidden.

        1. ^^This. About a million times.

      3. The Constitution? I don’t know about how the due process clause applies. Seems like there might be something to to that.

        There’s also the Declaration of Independence that might apply:

        “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

        Are fetuses being deprived of their life, liberty, property, or pursuit of happiness?

        Surely there’s an argument to make there. Maybe you don’t agree with that interpretation, but you can’t really mean that there’s no argument whatsoever.

    4. You might [think you] have a right from some source other than the Constitution, but then the gov’t administering the Constitution has no need to defend that right. Once you go outside the rules, you’re on your own.

    5. 14th Amendment

      “…nor shall any State deprive any person of life, liberty, or property, without due process of law…”

      Now show me where the constitution says an unborn human being is not a person.

  11. Now let’s throw artificial uteruses into the mix!

    1. and stir with a giant wooden paddle.

      1. Along with what, ‘Uterus Helper’?

        Same aisle in the supermarket as ‘Placenta Helper’?

  12. The Supreme Court has specifically rejected the assertion that abortion is a ‘fundamental right’ akin to the freedom of speech and the right to bear arms. The analogy goes too far and proves too much.

    The judge does however apply the “undue burden” standard and very well may be correct in his holding under the circumstances and relevant precedent.

    I guess in 172 pages, it is inevitable that some incoherent comments slip through.

    1. Where has the Supreme Court rejected that abortion rights are fundamental?

  13. “If we think of this as a supply and demand and the demand is high, the market is there, there’s no reason to expect that someone wouldn’t step forward to provide that service.”

    Yes, of course. In the face of flagerant determined ongoing efforts by the government to eliminate all providers, a resourceful entrepreneur could conceivably emerge, so this doesn’t really count as a ban.

    1. Much in the same way that outsourcing and locally-sourced artisanal liquor production was spawned by the creative disruption of the Volstead Act, yes?

  14. Abortion is one of the few words in the English language that gets funnier each time you say it.

    1. I can’t not think of The Godfather II when Kay drops the news on Michael.

      1. That scene cracks me up every time.

  15. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    I’ve always said the Griswold decision was one of the worst decisions ever rendered by the Supremes, the idea that you have a right to privacy based on penumbras and emanations from the Constitution rather than from the idea that you have a right to privacy because you’re a human being simply codified the idea that all of your rights come from the government.

    I like this line of reasoning.

  16. What bothers me about this opinion is that it seems to be saying that the state has no power to impose any kind of safety regulations once the number of abortion clinics drops below a certain number. If Gosnell’s clinic had been the last one in Philly, then it would have been unconstitutional to shut it down, regardless.

    The requirement that a physician practicing ambulatory surgery at an ASC have admitting privileges at a hospital is pretty widespread. Many to most states have it. There’s a pretty straightforward argument for it – shit happens during surgery that can get out of hand, and you need to be able to get the patient to a hospital where they can be admitted and followed. But if, through an accident of history, basically, it means that abortion will become more difficult to obtain, then it gets thrown away.

    You will note that this is much stricter protection for abortions than for the 2A, because there are lots of jurisdictions that have basically put gun shops and shooting ranges out of business without the courts striking those laws.

    1. “…it seems to be saying that the state has no power to impose any kind of safety regulations once the number of abortion clinics drops below a certain number. If Gosnell’s clinic had been the last one in Philly, then it would have been unconstitutional to shut it down…”

      Not necessarily. It may have been unconstitutional to shut it down simply for it being an abortion clinic. However, there would be no conflict if it were shut down for the many crimes Gosnell was committing.

      1. They could have arrested Gosnell, but if shutting down the Last Abortion Clinic for failure to meet safety regs is unconstitutional, I don’t see how they could shut down his clinic.

      2. However, there would be no conflict if it were shut down for the many crimes Gosnell was committing.

        Considering his “crimes” were mostly a matter of procedural timing kind of demonstrates the absurdity of the law in its current state. Kill a fetus 10 minutes too late and you’re a butcher practicing infanticide. Perform the same procedure 10 minutes sooner with literally nothing else changed and you’re a heroic guarantor of a woman’s precious, sacred, constitutional right to choose. Like magic!

  17. The real problem with this reasoning is that there is no right to abortion. The only constitutionally guaranteed rights are those enumerated, everything else from the right to chew gum to the right to have an abortion falls to the states and the citizens of the states. When you just make up rights it’s easy to compare them to actual rights, but that doesn’t make it constitutionally valid.

    And the concept that the government could restrict our guaranteed rights is relatively new. If government can decide who gets rights and who doesn’t under what conditions that makes them privileges, and we don’t have a bill of privileges, we have a bill of rights.

    1. The only constitutionally guaranteed rights are those enumerated

      So the 9A is toilet paper?

      1. Did you read past that part or no?

  18. Much in the same way that outsourcing and locally-sourced artisanal liquor production was spawned by the creative disruption of the Volstead Act, yes?

    Precisely.

  19. This is great! I can’t wait to see the judicial decision that Coal Power Plants are not compelled to comply with EPA regulations because the regulations are too harsh and threaten their business!

  20. Once again, you had an abortion thread without inviting me.

  21. “Alabama will have to reconsider a requirement that abortion-clinic doctors have hospital admitting privileges.”

    Does this mean requiring admitting privileges for other outpatient surgical clinics is also overturned, or is abortion the only surgical procedure that the court thinks there is a constitutional right to?

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