Abortion

Hints That SCOTUS May Overturn the Texas Abortion Law

Anthony Kennedy, the swing vote, suggests an "undue burden" on abortion rights can hinge on the strength of the state's justification.

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SCOTUS

Before Supreme Court Justice Antonin Scalia died, his colleague Anthony Kennedy was the swing vote on whether to uphold H.B. 2, the Texas abortion law that restricts the procedure to surgical centers and requires doctors who perform it to have admitting privileges at a nearby hospital. Now that the Supreme Court is down to eight members, Kennedy is still the swing vote, although not in quite the same way. If Kennedy sides with the three conservative justices who clearly want to approve H.B. 2, the even split will leave in place an appeals court ruling that upheld the law, but the impact will be limited to the 5th Circuit. If Kennedy sides with the four liberal justices who clearly want to overturn H.B. 2, the ruling will doom similar laws throughout the country. His questions during yesterday's oral argument suggest the latter possibility is more likely.

Under Planned Parenthood v. Casey, the justices are supposed to decide whether H.B. 2 imposes an "undue burden" on the right to obtain an abortion, meaning that "its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability." As I noted in my column yesterday (and as Justices Elena Kagan, Sonia Sotomayor, Ruth Bader Ginsburg, and Stephen Breyer emphasized during oral argument), the medical justification for H.B. 2 is very weak, which suggests protecting women's health is a pretext for discouraging abortion, since the law is expected to reduce the number of abortion clinics in Texas by about 75 percent.

Texas Solicitor General Scott Keller argued that the resulting burden should not be considered "undue" as long as women "are able to make the ultimate decision to elect the procedure." But Kennedy, who played a crucial role in deciding Casey, did not seem inclined to accept that argument. He suggested that the state's rationale for a regulation and the obstacles created by the regulation are not "two completely discrete analytical categories," that "the undue burden test is weighed against what the state's interest is."

In other words, any given burden on women seeking abortions might be deemed constitutional or not, depending on the strength of the state's justification. That means the crucial issue may be not how many women will have to drive how much farther to get abortions as a result of H.B. 2 but whether the official justification for the law has any real scientific basis. Focusing on the law's rationale, as opposed to its practical consequences (which remain uncertain), does not bode well for its supporters. Another bad sign for them: Kennedy noted that H.B. 2 seems to have encouraged women who might have obtained drug-induced abortions to have surgical abortions instead, which "may not be medically wise."

Then again, Kennedy also suggested, during a discussion of whether the case should be remanded for further fact finding, that the Court might not know enough about the capacity of the abortion clinics that would remain after H.B. 2 took full effect. Before the law was passed, he noted, those clinics accounted for about 20 percent of the state's abortions. But he wondered if they might be able to expand enough to pick up the slack.

If the case is sent back to the lower courts, the justices might not see it for another year or two, at which point the significance of Kennedy's vote will have changed once again. Should Hillary Clinton win the presidential election in November, Kennedy's vote won't matter, since whoever she picks to replace Scalia will side with the Court's liberal wing to overturn H.B. 2. If a Republican wins the election (even if it's Donald Trump), Scalia's replacement probably will vote to uphold the law, in which case Kennedy will once again have the power to set a national precedent one way or the other.

More on the Texas abortion case, Whole Woman's Health v. Hellerstedt, from Elizabeth Nolan Brown and Damon Root.

Related Video: "Abortion Rights vs. Women's Safety in Virginia," released in 2013, looks at the ways in which conservative lawmakers passed economic and building-safety restrictions to reduce the number of abortion providers in their state (for more on the current status of the law, go here). For video links and original release text, go here.

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  1. That means the crucial issue may be not how many women will have to drive how much farther to get abortions as a result of H.B. 2 but whether the official justification for the law has any real scientific basis.

    If they start us down the slope of testing the legitimacy of state interest in regulating people’s actions, they better be prepared for the anarchy that awaits at the bottom. ANARCHY.

    1. I know some 2nd A lawyers are foaming at the mouth for the law to be overturned. If such things apply to an unenumerated right, surely they apply to one that is specifically enumerated.

      1. So cute.

        I haven’t noticed any courts saying that, because gay marriage licenses are valid nationwide, and that states are required to license gay marriage, concealed carry licenses are valid nation-wide and must be issued by every state.

        1. Because the question hasn’t been put before the courts yet. Besides that, I’m not talking about carry permits. I’m talking about things like San Fran and Chicago regulating gun stores out of business in their cities. Making people drive across the state to get a gun is pretty much identical to making them drive across the state to get an abortion.

          1. Doesn’t matter. The court will let those gun laws stand, because FYTW.

          2. I’m talking about things like San Fran and Chicago regulating gun stores out of business in their cities. Making people drive across the state to get a gun is pretty much identical to making them drive across the state to get an abortion.

            Except (a) driving across the state isn’t the same as driving outside the city and (b) that isn’t the grounds on which it looks like this may be overturned.

            1. We’ll see, but I expect that the fact that this rule requires some women to drive for hours to get to an abortion clinic will be a big part of the “undue burden” analysis.

              1. Fact is the Chicago/San Fran regulations may be MORE burdensome than the abortion clinic regs. How many people, especially the poor, who live in cities have no transportation other than public transport? Compar that to living in rural areas where it’s nearly impossible to live at all without adequate transportation. So tell me in that situation, who’s more burdened?

  2. I mean, like requiring surgery centers to meet like, surgical requirements is way too much of a burden, man.

    1. Ah, yes, government regulation of the market place is a good thing when used to push our values onto others.

      1. I think the only real way to eventually roll back the crappy gov’t intrusion into private life is make everyone feel the pain equally.

        I said in the post yesterday lefties are all about regulate regulate regulate right up till it’s one of their sacred cows then it’s an “undue burden on liberty.”

        Basically in this instance, if they overturn the law, they’ll set the precedent that the medical practice of abortion has a separate legal protections over any other medical practice, when point in fact it’s an outpatient surgical procedure like any other outpatient surgical procedure. I fail to see what legal justification there is for giving special legal dispensation to an abortion over say the lipoma removal I had done a couple months ago, or anything else.

    2. It would be pretty cool if you know what this case was actually about before commenting.

    3. Almost as much of a burden as a few hours of training for eyebrow threading.

    4. I mean, like requiring surgery centers to meet like, surgical requirements is way too much of a burden, man.

      How about requiring it of places that don’t perform surgical abortions?

  3. That means the crucial issue may be not how many women will have to drive how much farther to get abortions as a result of H.B. 2 but whether the official justification for the law has any real scientific basis.

    If only government worked that way.

    This should be amusing.

    1. Only for abortion. On any other topic they can make any law for any dumb ass reason that pops into their adorable little heads.

      1. Like, “reasonable, common-sense restrictions” on 2nd Amendment rights. Without ever having to prove those restrictions have any rational basis at all.

        1. Amazing that many people want to interpret an explicitly enumerated right out of existence.

    2. The presumption inherent in that is that courts are any better positioned to decide on scientific merit than a leguslature, but that the state’s regulations on on other types of ambulatory clinics are full of scientific merit.

      1. When you have the people that write the legislation, pass the legislation and sign the legislation say openly that the point is to wipe out abortion, and these “ambulatory clinic” regulations are being forced on clinics that only give medication abortions, it’s hard to argue that the legislation is about science.

  4. Supreme Court affirms that regulatory terrorism only okay for land use.

    1. …as well as any other situation in which the regulating authority deems it appropriate to enact the FYTW Clause.

  5. Why not just perform abortions in hospitals?

    Oh, that’s right… they had to setting up separate clinics because abortion protestors forced them out of hospitals and state legislatures threatened to defund entire hospitals over offering abortions. So the “dangerous” conditions for women are ones created by the people now crying crocodile tears about women’s health.

    1. You know, and everyone else knows, that this is really just a case of the right using the left’s tactics to try to burden and restrict something they don’t like. As in San Francisco being able to regulate gun stores out of existence.

      1. There’s a fundamental difference between abortion and guns.

        Guns are meant to kill people, but abortion is meant to . . .

        Never mind . . . um . . .

        Abortion is a Constitutional right, but guns, on the other hand, . . . wait . . . uh . . .

        Well, you don’t understand because you’re a stupid redneck!

        1. I wonder if there is significant ovwerlap between people who want to defend abortion (which is not enumerated) while wanting to ban guns (which is enumerated).

          1. There seems to be, from my experience.

            1. Mine as well..

        2. Something like 40% of pregnancies end in miscarriage. Has anyone asked god why he hates children?

          1. The First Amendment protects stupid speech.

            It protects stupid religious beliefs, too.

            Whether beliefs should be protected and whether they’re stupid are two completely different questions. The First Amendment protects stupid things for smart reasons.

            The Peace of Westphalia was an ingenious response to the horrors of the Thirty Years War, and our First Amendment religious rights are essentially a restatement of the Peace of Westphalia’s basic principles.

      2. They’re not really “the left’s” tactics. It’s boilerplate statecraft.

      3. You know, and everyone else knows, that this is really just a case of the right using the left’s tactics to try to burden and restrict something they don’t like. As in San Francisco being able to regulate gun stores out of existence.

        Well that’s something I really give a fuck about.

        You know there are other people out there besides “right” and “left,” right? And…they allegedly hang out in this comment section.

    2. You know, if an abortion clinic which had a surgery also offered sterilization services, they could make a fucking mint. Staff it with only Indians who plan to return to Mother Ganges within ten years and advertize the hell out of it.

    3. So what you are saying is that the marketplace and Republican governance were working?

      1. If lies and rampant hypocrisy is “working,” then I better never hear you bitch about President Hillary.

        1. The rampant hypocrisy starts with the reasoning behind Roe v. Wade. Roe was a corruption of judicial review and has been a name on the court because of Blackmun’s hubris.

          1. Uh-huh.

    4. Why not just perform abortions in hospitals?

      Several reasons, actually.

      (1) No Catholic hospital will allow an abortion to be performed there. A large system was actually kicked out of the Catholic church for getting wobbly on this.

      (2) A non-zero number of other hospitals don’t allow “elective” abortions by policy. How much of this was to avoid protestors, I couldn’t say.

      (3) Except in very unusual cases (generally “non-elective”), hospitals are ridiculous overkill for an abortion, and hugely overpriced for such procedures.

      I don’t recall states threatening to kick hospitals out of Medicaid (about the only way for a state to even partially defund a hospital, outside of state university hospitals which are universally teaching hospitals and therefor politically bulletproof) over abortion, but that’s probably because it never happened in a state where I was actually practicing.

      1. Imagine if Jehovah’s Witnesses had as much say in American medical procedures as the Catholic church.

        1. I’m pretty sure Jehovah’s Witnessess also have a right to not perform abortions if they don’t want to. There is still some small amount of freedom left to Americans.

        2. You just want a blood transfusion because you’re dirty whore.

        3. Imagine if the Jehovah’s Witnesses delivered billions of dollars of charity care every year.

          1. I think you mean charity “care,” since they don’t offer a full range of services.

            1. Nikki, I hate to break it to you, but there are very, very few (if any) hospitals that offer a “full” range of services. I work at one of the biggest hospitals in my state, and we routinely send patients to other hospitals because they do stuff we don’t.

              Just to take a big chunk of services: there are seven hospitals in my city. One (1) of them is a trauma center, meaning one (1) of them provides treatment for gunshot wounds, major car crashes, etc.

              Compare to that, not doing abortions is decimal dust.

              1. Catholic hospitals don’t send you to other hospitals, though, when you’re having a miscarriage and they want you to bleed out. They don’t even tell you that isn’t the standard of care.

                1. Catholic hospitals don’t send you to other hospitals, though, when you’re having a miscarriage and they want you to bleed out.

                  Having worked with Catholic hospitals, I am pretty sure this isn’t policy (anything can happen once or twice, especially in a hospital).

                  And I know for a fact they do refer women who want abortions or other services they don’t provide to willing providers.

          2. Yeah, expecting people to see the opportunity to leap all of their projections and biases into an abortion thread, and not jump feet first was just plain silly.

      2. A non-zero number of other hospitals don’t allow “elective” abortions by policy. How much of this was to avoid protestors, I couldn’t say.

        The high risk may be another factor.

        Abortion seems a procedure that should be performed in outpatient clinics. But, for the safety of the mother, there should be a surgeon and room close enough to intervene in the case of internal bleeding. Unless, of course, the women wants to make an informed decision recognizing that the mere process of aborting a fetus can kill her.

        BTW, does anybody know the difference in typical regulations between an outpatient surgery clinic and an abortion clinic? If they are similar, then there should probably be no additional regulations. But something tells me they are held to different standards.

        1. The high risk may be another factor.

          LOL. Do these hospitals deliver babies?

          1. Maybe you don’t know, but many factors can increase the risk in medical procedures. One of those risks in newborn services is the lack of prenatal care, or bad prenatal care. How many abortion patients get something like prenatal, or pre-abortion care? This risk is the very thing that Texas is trying to reduce.

            1. How many abortion patients get something like prenatal, or pre-abortion care?

              Well, in states where women are required to make multiple visits to clinics before being granted an abortion, all of them.

              But I don’t think you have a clue about what getting an abortion is like, or about the procedure, because the very concept is retarded.

              Do you have any idea how much more dangerous it is to deliver a baby at full term than to terminate?

              1. Do you have any idea how much more dangerous it is to deliver a baby at full term than to terminate?

                A little. I’ve been married to a baby nurse for over thirty years and have heard a few (hipaa sanitized) stories. My wife “catches” three to six babies per day, three to four days per week. That’s a lot of babies. It is her expressed job to assess the baby and call in/coordinate all other personnel needed for the baby’s healthy outcome. But, or course, during an abortion they expressly want to kill the baby–that’s different.

                So the danger goes down when the medical personnel need only concern themselves with the mother’s life. And medication induced abortion should be safer. But there are still risks to the mother. As I said earlier, a patient should be able to buy any procedure they can pay for. But who’s to speak up for the infant? Nobody, because the baby is a mere parasite getting in the way of the parent’s lifestyle.

  6. “Texas Solicitor General Scott Keller argued that the resulting burden should not be considered “undue” as long as women “are able to make the ultimate decision to elect the procedure.”

    Yes, if they survive running the gauntlet, they can do whatever they like.

    1. Incidentally, you have to do the same thing if you want to buy beer in Utah.

        1. But beer is legal in Utah. You just have to run a gauntlet to get it.

          Weed is legal in Colorado, and going on a weed run from Moab to Colorado and back is like running a gauntlet.

          https://www.youtube.com/watch?v=kc6wiSAe5OQ

          1. When I lived in SLC, the cops would go to Evanston, write down the license plate numbers of any Utah cars in the liquor store parking lots or drive-throughs, then go back across the border and wait for those cars to come down I-80.

            1. Don’t get me wrong. I love Utah.

              And it’s an incredibly free state in a number of ways.

              It’s just that the ways they aren’t free drive me nuts!

              There are so many off roaders that head to Moab from Colorado, it’s ridiculous. And there’s hardly anything on that highway between Moab and Colorado.

              For anybody with a Utah license plate heading towards Moab from Colorado that isn’t in a 4×4, it’s a trap.

              1. I have yet to male the trip to moab in my fj. I will be trying this summer if I can get the days off work

        2. I’ll put it this way : It’s easier to buy weed in Colorado than it is to buy cold beer and a bottle opener in Utah.

  7. Which sounds like Kennedy is looking at treating abortion different from any other medical procedure such that it gets special protection under the law that does not apply to any other medical procedure. That is, we get the lawless and unprincipled ruling that is not based on a presumption of liberty but that this type of killing must be legally protected at all costs.

    1. Special treatment?! Who says abortion gets special treatment among medical procedures?

      I’m looking forward to the Court deciding a case that explains why its alright to give children abortions without a parents’ knowledge (much less consent).

      1. Who says abortion gets special treatment among medical procedures?

        I’m going to assume this is sarcasm.

        1. Yes. See the second statement. Is there another procedure they can perform on your daughter without parental knowledge?

      2. I’m looking forward to the Court deciding a case that explains why its alright to give children abortions without a parents’ knowledge

        Daddy might object to the murder of HIS child?

        1. I think you’re being facetious, but people make that argument.

          Rape is already illegal. Child abuse is already illegal.

          Abortion can be a heavy thing for adults to deal with–children’s parents should at least know about it.

          And they should know that their daughter is messing around with someone who’s being irresponsible–at best. Was the father also under age? Were their drugs or alcohol involved? God only knows what kind of STDs their daughter is being subjected to.

          But no–parents shouldn’t even KNOW their daughter got an abortion?

          For every case of incest, there are probably a hundred where the child’s parents don’t know their daughter is having unprotected sex. Incestuous fathers should be reported to the police by medical professionals. And parents should at least be notified–so they know their daughter is engaging in risky behavior.

          We don’t allow medical professionals to treat children without a court ruling or a legal guardian for any other procedure. Girls who want abortions are basically given special status. It’s like all the special benefits AIDS patients get–because Ronald Reagan supposedly ignored their plight back in the ’80s.

          1. Abortion can be a heavy thing for adults to deal with–children’s parents should at least know about it.

            And they should know that their daughter is messing around with someone who’s being irresponsible–at best. Was the father also under age? Were their drugs or alcohol involved? God only knows what kind of STDs their daughter is being subjected to.

            For every case of incest, there are probably a hundred where the child’s parents don’t know their daughter is having unprotected sex.

            Why is any of that anyone’s business?

            1. Why is the government interfering in parents’ ability to raise their children properly anybody’s business?

              1. Why is the government interfering in parents’ ability to raise their children properly anybody’s business?

                I think you mean, “why is the state refusing to cooperate in my personal efforts at chattel slavery anybody’s business?”

                1. Childhood is not chattel slavery.

                  Abandoning children to make life altering choices for themselves and without their parents’ knowledge or support is like enforced neglect.

                  Children aren’t allowed to contract for anything but necessities. They can’t be held responsible for the crimes they commit in the same way adults can. Because they aren’t old enough to consent to sex with adults, it is illegal for adults to have sex with them, publish pornography featuring them, etc. Adults can’t serve them alcohol.

                  This is all as it should be. Parents protecting their children and helping them deal with making choices and suffering the consequences is an essential duty of parenting, and the state has no compelling justification for interfering with that duty in such an arbitrary way.

                  Imagine if public schools stopped sending report cards to parents because some children are beaten for getting bad grades. Surely learning that your 15 year-old daughter is engaging in unprotected sex is important for a parent to know–at least–like knowing that your daughter is failing in English and Math, isn’t it?

                  1. This is all as it should be.

                    Citation needed.

            2. So you agree with the state doing medical procedures on your children without your knowledge or consent?

              What about sterilization? Should the parents be notified? Or circumcision? Should the parents know and consent to a circ getting performed to their newborn son? Lobotomy? Donating an organ? Or is it just abortion that deserves secrecy?

              1. So you agree with the state doing medical procedures on your children without your knowledge or consent?

                The state? What are you on? If a teenage girl wants medical care, it’s no one’s business but hers and her doctor’s.

                Or circumcision? Should the parents know and consent to a circ getting performed to their newborn son?

                Um…no, because only the son could consent to being circumcised.

                1. The state? What are you on?

                  It is the state that is denying parents the knowledge that their child is having a potentially dangerous medical procedure done. Clinics are prohibited from notifying the parents, no matter the age of the child.

                  I categorized wrongly by saying that the state was performing the procedure, but it seems little different to me from times past when state hospitals could perform lobotomies without the parents consent.

  8. Does anybody believe that this decision will ultimately be too narrow to matter in the grand scheme of things? This is as about as grey an area as it gets.

    1. Yes, it will be. There’s no way the court is going to eviscerate abortion rights or the rational basis standard. The decision will amount to “even though this law would normally survive rational basis review, it’s unconstitutional because… er… well because it just is.”

      1. Yes, it is a near-certainty that “FYTW” will prevail.

    2. Regulation at the state level may be murky.

      At the federal level, they can make you pay a penaltax for not getting an abortion if they want to!

      1. But instead they choose to reward people who don’t get abortions with tax breaks.

        1. And decades of state benefits.

        2. Are you referring to the dependent deduction? This is merely recognizing that raising a child or caring for a family member is a legitimate expense and that the federal government should not tax you on the expense. I don’t see where this is any different than allowing business to avoid paying taxes on their expenses.

          Besides, if we discourage the raising of children, who will pay for your social security and medicare?

    3. this decision will ultimately be too narrow to matter in the grand scheme of things

      It will be yet another abortion-only ruling. Any other ruling would call a great deal of regulation into question, and the Court isn’t rally in the business of questioning what the legislature or unelected bureaucrats do with their power.

      1. In other words, a ruling that strengthens the assumptions of progressivism.

  9. Why doesn’t Kennedy understand that we’re talking about baby lives here?

  10. Women who don’t want to reproduce shouldn’t.

    The women getting abortions are mostly Democrats. I can’t for the life of me understand why Republicans would be against that.

  11. I have a sure fire method for ending abortion. Convince women to not ask for one.

    1. Teach women not to abort!

  12. This case shows the whole problem with our abortion jurisprudence.

    The Supreme Court is divided into a pro-abortion faction and an even more pro-abortion faction.

    The first faction says that the states have a broad power to legitimize abortion, denying that the unborn child has a legally-protected right to life.

    Scalia was a member of this pro-choice faction. So are Alito, Roberts and probably Thomas.

    These justices admit that unborn human beings have the right to life, they (the justices) are so fearful of being judicial activists that they refuse to find such a principle in the Constitution.

    (Hint: It’s part of the protection of “persons” under the Fifth and Fourteenth Amendments).

    The other pro-choice faction – Ginsburg, Sotomayor, Kennedy and the rest – agrees that the states can strip the unborn of the right to life. But this faction goes even further and says that federal courts can legalize abortion even in cases where the states refuse to do so.

    So there’s a “soft” pro-abortion faction under Alito and the other conservatives, and a “hard” prochoice faction under Sotomayor and Kennedy.

    1. In the current case, the “soft” pro-abortion faction will allow Texas to protect the lives of the unborn, because they think the courts must respect the decision of the states as to which unborn lives matter. Thus, the Softs will let Texas be as prolife as it wants to be, just as they will allow New York to be as pro-aboriton as it wants to be.

      The “hard” pro-abortion faction believes that the judges must examine the Texas law to see if it’s pro-abortion *enough,* and if so to allow abortions even in cases where Texas prohibited them.

      Apparently the “hard” pro-abortionists have a majority on the court, and the only question is whether some of the “hards” (specifically Kennedy) will upon examination give judicial approval to this particular Texas law.

    2. It’s part of the protection of “persons”

      It ain’t a person until it exits the womb. Jewish law. Our current abortion laws mostly conform to Jewish law. Sorry Catholics.

      1. It ain’t a person until it exits the womb. Jewish law.

        This website says otherwise:

        As a general rule, abortion in Judaism is permitted only if there is a direct threat to the life of the mother by carrying the fetus to term or through the act of childbirth.

        http://www.aish.com/ci/sam/48954946.html

        No idea as to the credibility of their take. Naturally, they have apparently been arguing about it for centuries.

        1. Uh. You forgot to look up the Jewish “mental health of the mother” exception. Determined by rabbis. But since American law is nominally secular the woman herself decides.

          1. I’d rather have a child’s right to life determined by bearded Orthodox rabbis than by a bunch of idiots in robes.

            And I certainly wouldn’t want anyone’s right to life being ruled on by the potential killer.

            1. So why not convince women to not have abortion?

              No government intervention (Vagina Police) required.

              1. Why not convince lynchers not to lynch?

                Why not convince rapists not to rape?

                No police required there, either.

                1. Well. There by comes a problem. Does a woman become an effective ward of the State when she is pregnant? Or even more generally during her reproductive years?

                  It is one thing to deal with 20K murders/suicides a year. It is quite another to turn every miscarriage into a murder investigation.

                  Scale makes a difference.

                  You will need a LOT of enforcers. I’d rather not pay for them.

                  1. “It is quite another to turn every miscarriage into a murder investigation.”

                    Because that totally happened in the U.S. back when abortion was a crime.

            2. a bunch of idiots in robes.

              You mean priests, bishops, cardinals, and popes? OK, I can agree with that.

              1. Wow, I opened myself up on that one.

                I meant the robed ones who *oppose* the Catholic clergy – you know, the Ku Klux Klan, Justice Sotomayor, etc.

                1. Wow, I opened myself up on that one.

                  Unintentional truth is the best kind of truth.

                  1. Like your argument below whose logical effect would be to rely solely on persuasion to get people to stop holding slaves? Or to stop raping?

        2. The website specifically says:

          In most circumstances, the fetus is treated like any other “person.”

          Contrary to your assertion that its not a person until it exits the womb.

          I’m just sayin’ that, like most glib arguments on both sides of this issue, the claim that Jewish law denies personhood until delivery is wrong.

          1. One more thought: I wouldn’t be surprised if there’s a split between Orthodox and other Jews on this. And the article specifically calls out some differing views by various rabbis. So, it may be that there is a significant strain of thought on this that is as you describe. Couldn’t really say.

            But I’m having a hard time believing that a blanket assertion that Jewish law universally and unanimously denies personhood until delivery is accurate.

            1. First, some bad news.

              “Consequently, while it is clear that for over two thousand years, Judaism has understood (1) personhood begins at birth and not conception and (2) that the life of a mother supersedes that of a fetus which threatens that mother, the notion reportedly expressed by roughly half of American Jews that abortion should be permissible in all cases is absolutely unwarranted by Jewish tradition and values, whether filtered through an Orthodox, Conservative, Reconstructionist or Reform lens. For instance, and without limitation, abortion for purposes of gender selection, convenience or purely economic reasons, especially at any time in gestation, is not defensible Jewishly.”

              1. Where Were the Jews at This Year’s [2015] “March for Life?”?

                “…Never have I seen such a positive, uplifting, hopeful, and indeed religious march in my life. The religion of those present was not my own, but as a religious believer, I felt like I was among brothers?? not my real brothers or brothers of my Jewish nation, but brothers in the grand brotherhood of believers. The hundreds of thousands present smiled and cheered at the hopeful and optimistic speakers, who pledged continued action to stem abortion. The crowds cried and prayed for the loss of millions of lives and potential lives over the past decades….

                “It was a shame I couldn’t share in this celebration of life with my Jewish brothers. It is a shame that religious Jews too often brush off these incredibly important social issues as nothing more than inconsequential. In an era where religion and its followers are under constant attack from the secularist elite ruling class, it is as important as ever for believers and the religious Right to stand arm-in-arm with fellow brothers in support of family values. Whether it be marriage, abortion, or any other issue essential to tradition and family, religious Jews should be at the forefront. Next year, may Jews who believe in G-d Almighty and His Torah be the ones leading the holy March for Life!”

              2. Look up the Jewish penalties for murder of a fetus vs the usual murder penalty.

                It is not a serious crime in Jewish law.

                And even in America the penalties suggested by most pro-lifers amount to misdemeanor murder and the woman goes free.

                1. You’re arguing for a law which imposes *no* penalties – your objection to treating it as a misdemeanor (when that’s the case) is that you don’t want *any* penalties.

                  1. Well no. If there is going to be a law I think that abortion fits murder one. For all involved. Especially the prospective mother.

                    Either it is murder or it is not. If it is murder we investigate every miscarriage from conception on as a possible murder.

                    Women will need to be monitored lest they take some drug or perform some physical activity which causes an abortion.

                    I think weekly pregnancy testing for all women (you can’t trust them) of child bearing age is in order. If abortion is murder.

                    1. “I think weekly pregnancy testing for all women (you can’t trust them) of child bearing age is in order. If abortion is murder.”

                      Why not weekly police searches of Muslim homes, to make sure Dad hasn’t done any honor-killings of his daughter?

                      Wait, that would violate the Fourth Amendment.

                      So I suppose respecting the Fourth Amendment is the same as legalizing honor killings?

                2. Shouldn’t the woman get life in prison for soliciting murder?

                  And if she has no husband, the children will become wards of the State.

                  Excellent.

                  1. I’m simply saying that you are *not* objecting to the (allegedly) lenient sentences.

                    You’re saying the sentence should be zero.

                    1. Or it should be murder and all women need to be watched during their child bearing years lest they commit murder in secret.

                      You know. The same reason there is drug testing. Only this is serious.

                      Or just leave it alone and convince women not to have abortions.

                    2. I would like to see you plan to convince rapists not to rape.

      2. “Our current abortion laws mostly conform to Jewish law.”

        You you’re saying we’re a Jewish theocracy?

        I suppose that if you want to have a theocracy, the Jewish kind would be better than some of the other versions.

        But why would you want to live under a theocracy in the first place?

        1. Well the alternative is a Catholic theocracy on this issue.

          Personally I favor no law. The woman should decide. But that is not in the cards.

          1. You skipped the necessary logical step of showing the defending the rights of human beings from conception is a narrowly Catholic idea.

            Of course, there seem to be a lot more Catholics agitating for this idea than members of other religions.

            But in the 1700s US, more Quakers were agitating against slavery than members of other faiths.

            I suppose that would make the abolition of slavery was a theocratic Quaker idea?

            1. The debate has been going on for quite some time. On the moral question there has been movement (women are being convinced). On the legal question I believe there is considerable resistance to government instituting a black market. Not to mention vagina police.

              The Libertarian solution (change minds) seems to be working.

              1. So that’s the solution we should have pursued with slavery? Allow them to hold slaves, while changing their minds on the legitimacy of slavery?

          2. Personally I favor no law. The woman should decide.

            So, 9th month elective abortions should be legal?

            I just can’t get there. As I’ve said before, I don’t see how anyone who has actually seen a NICU can favor abortion after viability. I don’t think the act of passing through the vaginal canal is what confers personhood.

      3. It ain’t a person until it exits the womb

        Well, it’s got to “exit the womb” at some time or another for the mother to live. Whether the baby exits in a safe and life affirming way, or dead (or about to be dead, as in partial birth abortion), changes that requirement none at all.

        So, is it murder if the baby is killed before it exits the womb, or only if it is killed after it exits (as in partial birth).

  13. Abortion is the issue that leaves me most conflicted, partially philosophically because it involves pretty much the only actual conflict between fundamental rights, and partially legal because both sides legally tactics and arguments have twisted the Constitution, laws, and rules of construction into unrecognizable shapes.

    The philosophical issue is known to everyone on either side, but almost always ignored by screaming vitriol at their opponents.
    1. At some point in the gestation process a fetus is, or becomes a human and has a right to life, which is a first order, top tier right
    2. Human beings have a first order, top tier right to control their own bodies.

    Abortion is the one case where these rights can bump heads without wrongdoing by either right holder.

    The legal issue is that
    1. Griswold and Roe v. Wade effectively amended the Constitution to add a right to a very limited sort of privacy that in practice boils down to a Constitutional right to abortion and contraception. The Court created this right via some of the least sound, reasoned or supported arguments in our jurisprudence.

    2. Abortion opponents have done their best in the years since to somehow overturn those decisions by means of equally unsound, tortured and unsupported claims and arguments.

    3. And those same opponents somehow assume that their religious dislike for birth control makes birth control equally suspect.

  14. I did a series over a couple of years on Jewish abortion law.

    Letter To A Friend

    The Jewish Position On Abortion

  15. So we have a DEA to “eliminate” the dangers caused by some drugs. There will be a Pregnancy Enforcement Administration (PEA). We will gather the finest brains (top men) to enforce the laws. They will be known as PEA brains.

  16. As part of a comment of MSimon above, I’m just going to assume that, back in the Sixties, he would have denounced the Clergy Consultation Service on Abortion for establishing an avowedly religious organization to promote a particular theocratic agenda of legal abortion.

    1. I have no objection to what people do voluntarily. And in the case of abortion it seems to be working. The number of abortions performed per year is declining.

      1. You started off by waving the theocracy flag. I’m showing you where that sort of argument leads.

        1. “The number of abortions performed per year is declining.”

          Well, at some points during slavey the number of manumissions was increasing. So slavery should have remained legal, I suppose?

        2. No. I was not waving the theocracy flag. I was just noting congruence.

          And those Jews were discussing abortion long before America was founded. So they might have some insight. Funny enough they came to a different conclusion than Catholics. And even most Catholics who oppose abortion (from informal discussion) favor misdemeanor murder and the woman (the initiator) goes free.

          That is hardly serious enough to warrant further enhancement of the police state.

          But if you favor treating it as Murder One. – Good. Some portion of the women accused will be incorrectly convicted. I’d LOVE to see what that did to American politics. Or the birth rate for that matter.

          1. “But if you favor treating it as Murder One. – Good.”

            No, I haven’s said whether I favored that.

    2. We know botched drug raids kill people. Do we really want to be killing prospective mothers? I think that is a very bad idea.

      I don’t think government should have that power.

      I knew a woman who used abortion for birth control. And after 10 or 15 she changed her mind. Something not possible if abortion was murder and she got life in prison.

      1. There are plenty of people who do bad things, get away with it, and then repent.

        How many antebellum slaveowners in America went to prison for slaving?

        And of those who repented, God bless them!

  17. J. Kennedy will ensure that abortion, which Roe took out of the back-alley’s, will stay in the Gossnell abattoir’s.
    This is Progress?

  18. One hopes the court overturns this Texas legislation decisively, though who knows. When all is said and done,from what I’ve read of this legislation, it seems to be the Pro Lifers/Anti Abortionists dream legislation.

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