Abortion

Can lower courts decide novel abortion cases?

A strange, if understandable, form of abstention from Judge Easterbrook

|The Volokh Conspiracy |

In late August, a panel of the Seventh Circuit affirmed an injunction against an Indiana abortion statute, over one judge's dissent. (The statute requires parents to be notified in some circumstances that their child is getting an abortion without their consent.)

Today, the full Seventh Circuit decided not to rehear the case en banc, by a 6-5 vote. One of those judges, Judge Frank Easterbrook, joined by another, Judge Diane Sykes, wrote an opinion explaining his decision not to rehear the case. These judges are not fans of the Supreme Court's abortion jurisprudence, so their reasoning was interesting. For one thing, Judge Easterbrook explained, the Supreme Court has agreed to hear an abortion case in a similar procedural posture out of Louisiana (though dealing with a different kind of law), and that might shed some light.

But in any event, Judge Easterbrook goes on, court of appeals review in abortion cases is pointless:

For a court of appeals cannot decide whether requiring a mature minor to notify her parents of an impending abortion, when she cannot persuade a court that avoiding notification is in her best interests, is an "undue burden" on abortion. The "undue burden" approach announced in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), does not call on a court of appeals to interpret a text. Nor does it produce a result through interpretation of the Supreme Court's opinions. How much burden is "undue" is a matter of judgment, which depends on what the burden would be (something the injunction prevents us from knowing) and whether that burden is excessive (a matter of weighing costs against benefits, which one judge is apt to do differently from another, and which judges as a group are apt to do differently from state legislators). Only the Justices, the proprietors of the undue-burden standard, can apply it to a new category of statute, such as the one Indiana has enacted. Three circuit judges already have guessed how that inquiry would come out; they did not agree. The quality of our work cannot be improved by having eight more circuit judges try the same exercise. It is better to send this dispute on its way to the only institution that can give an authoritative answer.

I'm familiar with various arguments about whether and how lower courts must apply Supreme Court precedent, but I can't recall seeing the suggestion that there is a genre of Supreme Court precedent that a lower court simply "cannot" apply either way, so I thought it was worth noting.

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  1. Aren’t there hosts of standards with multiple confusing prongs and ambiguous wording that Judges are expected to interpret day in and day out? What makes this one so special?

    1. I think it’s more a protest. That is, “The Supreme Court jurisprudence is so absurd that we’re not even going to try to apply or interpret it. If they are going to promulgate this stuff, let them interpret it themselves.”

  2. I guess the old adage of ‘don’t trust people who tell you to keep secrets from your parents’ doesn’t apply if concerns killing your own kids right?

    1. Yup.

      Keep in mind that the real purpose of keeping the parents in the dark about the abortion, is so that they’re in the dark about the pregnancy. So that they’re in the dark about the statutory rape that led to it.

      IOW, letting minors get abortions without parental notification is about protecting rapists, not the minors…

      1. Unless, of course, you’re just inserting details that aren’t there in the original. Such as the fact that not all sex that involves minors is statutory rape. Some of it is original-brand rape, at one end, and some of it is no kind of rape at all, at the other end. And, at least theoretically possible, some might be the incestuous kind where the parent(s) already know all about the sex the minor child is engaging in.

        1. So here’s the interesting part: can the state require abortion providers for minors to report it to law enforcement?

          The States claim to act is based on a need to deter and capture criminals as you outlined, so if not tell the parent, tell the police, who may then investigate a claim of (statutory) rape.

          There’s still the edge case in a state with a Romeo and Juliet law (that’s not just an affirmative defense) if she claims the otherwise perpetrator is the appropriate age, but that’s an aside.

          1. “There’s still the edge case in a state with a Romeo and Juliet law (that’s not just an affirmative defense) if she claims the otherwise perpetrator is the appropriate age, but that’s an aside.”

            There’s also the case of 17-year-olds in states where the age of consent is 16. No stat rape case to investigate.

            Then there’s the REALLY edge case where the victim doesn’t want to report to police because the rapist is a cop.

            Abortion is private. If someone wants to talk about it, they can, and if they don’t, they don’t have to. (Either directly or through violation of medical confidentiality.)

            1. A lot of things are “private” if you’re an adult, but still aren’t supposed to be private from your parents if you’re a minor.

              1. This isn’t one, for some minors.

            2. So is buying a gun, but we’re forced to let the government run an NICS check on it. And the right to buy a gun is protected by the Constitution, whereas killing fetuses and having anal sex is not.

              1. “So is buying a gun,”

                Try explaining that purchases are private to the sales tax office.

                ” killing fetuses and having anal sex is not.”

                If your having anal sex, where are the fetuses coming from?

                1. “If your having anal sex, where are the fetuses coming from?”
                  Buy them from Planned Parenthood?

                  Let’s not judge his habits.

                2. Pollock specializes in this types of crazed bullshit
                  Or is he THAT fucking stupid?

                  (this is payback for 23 unprovoked assaults, much wackier than this, on this page alone. So far.)

                  ” killing fetuses and having anal sex is not.”

                  If your having anal sex, where are the fetuses coming from?

                  (smirk) Show of hands …how many are too stupid to know the reference was to ABORTION and GAY MARRIAGE (if not homosexuality alone) …. especially when stated by a PROUD bigot (hegemony)

                  Do a page search for Pollock’s name. You’ll either pee your pants laughing , or vomit in disgust,

        2. Rape-rape or statutory rape, both are illegal, though there certainly is a moral difference.

          Sure, there will be occasions, in some states, when the sexual relationship being concealed is legal. That doesn’t rule out the primary motivation for avoiding reporting of the abortion being concealing sexual relationships that AREN’T legal.

          And even this concern you’ve pointed out would only justify this sort of shield rule in states with Romeo and Juliet laws, and for minors of an age where they might apply, not an undiscriminating rule allowing all minors to conceal abortions from their parents.

          And not at all apply to concealing the abortion from police, as Robert points out.

          1. Abortion is private. If someone wants to talk about it, they can, and if they don’t, they don’t have to. (Either directly or through violation of medical confidentiality.)

            You’ve adopted an authoritarian statist position on this issue.

            1. This is about the most naked case of assuming the conclusion that I’ve seen in a long while.

              We’re talking about minors here. If they want to have legally enforced right to privacy, they should go to a court and get emancipated.

              1. “We’re talking about minors here”

                If you don’t like that your minor children are keeping secrets from you, next time around, raise children that won’t feel like they need to keep secrets from you.

                1. There’s a difference between your kids keeping secrets from their parents, (And not realizing that they’re lousy at it, by the way.) and their being legally entitled to keep secrets from their parents.

                  There seems to be some problem here accepting that minors don’t actually have all the rights of adults.

                  1. “There seems to be some problem here accepting that minors don’t actually have all the rights of adults.”

                    Conversely, there seems to be some problem here accepting that minors actually have rights, including this one.

                    1. Brett’s latest Blasphemy!

                      There seems to be some problem here accepting that minors don’t actually have all the rights of adults.

                      In other contexts, Brett argues that FULL individual rights begin at the moment of conception … so he takes BOTH sides of that … on a single issue, abortion!

                      Typical of authoritarians, both left and right. As we libertarians have noted for a half-century.

                      Historically, governments have been formed within one of two larger purposes.
                      1) To defend individual liberty
                      2) To suppress individual liberty, by mandating specific values on everyone, by force.

                      Any questions?

          2. No, Brett. In half the states, the age of consent is below 18.

      2. letting minors get abortions without parental notification is about protecting rapists, not the minors…

        More mind-reading from Brett.

        As if there is no such thing as abusive parents.

      3. By the way, the real reasons why parental consent laws are a bad idea is that some parents are pro-life religious sexist a-holes who will try to force their daughter to go through a traumatic pregnancy which might ruin their lives. Or they are immature religious sexist a-holes who will want to punish their daughters for having sexual desires.

        It has nothing to do with statutory rape laws. Religious pro-life nuts want to punish their daughters for having sex themselves, not have the government do it.

        1. No, Dilan. Normal people do not regard pregnancy/children as “punishment.”

          1. I think that was his point.

            1. Yes, we’re aware that his point was that not all parents would do exactly what he would do. Why he thinks it’s a significant point is a good question, though.

              1. My point was that the reason parental consent and notification laws are awful is that within the community of conservative Christian dissenters from the sexual revolution are a subset who will do absolutely terrible things to their daughters if they find out about a pregnancy.

                And those people need to never find out.

                1. ^^^THIS!

            2. No, it wasn’t. Dilan thinks — not based on anything but his own prejudices, mind you — that when a parent says, “No, I don’t want you to have an abortion” to her daughter, the parent is really saying, “You had sex and I want to punish you for that by making you have the child.”

              Dilan is loony.

              1. Who can spot Niepoent’s MASSIVE blunder on Dilan, then defended by massive bullshit?

                DILAN SAID

                By the way, the real reasons why parental consent laws are a bad idea is that some parents are pro-life religious sexist a-holes who will try to force their daughter to go through a traumatic pregnancy which might ruin their lives. Or they are immature religious sexist a-holes who will want to punish their daughters for having sexual desires.

                It has nothing to do with statutory rape laws. Religious pro-life nuts want to punish their daughters for having sex themselves, not have the government do it.

                NEOPORENT

                Dilan thinks — not based on anything but his own prejudices, mind you — that when a parent says, “No, I don’t want you to have an abortion” to her daughter, the parent is really saying, “You had sex and I want to punish you for that by making you have the child.”BULLSHIT … SHAME ON YOU
                The pro-life religious a-holes claim the SOLE purpose of sex is … procreation … which is WHY they REQUIRE the birth … And WHY they BABBLE that they CHOSE to have sex …. which is BAT-SHIT CRAZY … and only true for lower animals. (smirk)

                Pay attention, while I walk you through 8th grade biology

                HUMAN FEMALES DO NOT NEED TO BE IN HEAT! (SNORT)

                HUMANS ARE CAPABLE OF ENJOYING TOTAL JOY FROM SEX, EVEN IF CONCEPTION IS IMPOSSIBLE … IT WAS GOD WHO CREATED US TO HAVE SEX FOR ENJOYMENT ALONE … SO THEY DEFY THE WILL OF ALMIGHTY GOD!! … AND YOU DEFEND THAT (BY LYING)

                Which is WHY Dilan is CORRECT to call them “religious sexist a-holes” (I personally label them brainwashed victims of SOME morally corrupt preachers and evangelists — while your double screwups suggest YOU may be one of those “pro-life a-holes” )

                -Just another libertarian, defending against statist oppression … for many decades … until death do us part.

            3. I think that was his point.

              🙂 🙂

      4. Keep in mind that the real purpose of keeping the parents in the dark about the abortion, is so that they’re in the dark about the pregnancy. So that they’re in the dark about the statutory rape that led to it.

        IOW, letting minors get abortions without parental notification is about protecting rapists, not the minors…

        Keep in mind that Brett made all of this up.

        1. AGAIN???

        2. Keep in mind that Brett made all of this up.

          I’ll also keep in mind your MASSIVE screwup on Dilan’s self-evident point.

          1. P.S. I should have included PROOF of Neoporent’s totally shameless bullshit regarding Dilan
            https://reason.com/2019/10/31/can-lower-courts-decide-novel-abortion-cases/#comment-7995488

      5. Indiana (the state in question) has a “close in age statute” where a 14 yo can legally have sex (and so become pregnant and want an abortion) if the partner is less than 18. Not stat rape necessarily

    2. It’s not killing a child, except to the hopelessly manipulated.

      The fetal child’s unalienable Right it Life is precisely equal to the woman’s unalienable Right to Liberty … based on the definition of unalienable …. which we were ALL taught in high school. To right-wing authoritarians , the meaning of unalienable rights — the very core of Natural Law and our Constitution is … in-con-veeeeeeeeeeeeeeeeen-yent to the false prophets who manipulate them.

      Unalienable means absolute. Educate yourself.

      If the fetal child has full rights at conception, then …. ummmm … SO DID THE WOMAN! HOW DARE YOU DENY THE WiLL OF ALMIGHTY GOD?

      Actually the brainwashed puppets are taught to deny the Will of Almighty God, frequently. (Based on their ignorance of the Bible and Christ’s teaching)

      1) By NOT immediately killing all the infidels, including one’s own brother, spouse, child or friend (Deuteronomy 13)

      2) By NOT putting to death ANY woman who is found to have not been a virgin on her wedding night. No such rule for men!! (Deuteronomy 22)

      3) If a man cheats on his wife, or vise versa, both the man and the woman must die. (Leviticus 20:10).

      4) If a man has sex with a woman on her period, they are both to be “cut off from their people” (Leviticus 20:18)

      5) If a priest’s daughter is a whore, she is to be burnt at the stake. (Leviticus 21:9)

      Neither the Will of Almighty God … NOR of the Christ, Jesus … commands that your very faith in them EVER be exploited … for political gain. (Render unto Caesar)

      P.S. Marriage was not a religious sacrament until … 1500 years after the death of Christ … so “one man and one woman” is also lying to you, sucker.

      God may forgive your many sacrileges, but few libertarians would.
      (And few actual conservatives and liberals.)

    3. That would be well put – if it weren’t exactly backward.

      The injunction did not suggest that anyone should keep secrets from their own parents. All the injunction did was to say that if you choose to keep those secrets from your own parents, your medical providers can not be compelled to overrule your choice.

      1. Thanks!

  3. So I guess we’re not going to see any more 4th Amendment (“unreasonable search and seizure”) cases out of the 7th circuit either…

    1. Assuming you’re not joking (your decade long track record shows you’re not a troll), this comment indicates you fundamentally misunderstand judge Sykes.

      The point he’s making is that the People have not delegated the power to the Judiciary to determine if something is an undue burden on anything. If we had, there’d be a clause in the Constitution that says something like “And any of these rights can be arrogated, so long as the burden caused by that arrogation is not undue.”

      To the contrary, “unreasonable searches and seizures” was in fact a term committed to the Judiciary.

      For example, had the Court stated that abortion was a privilege or immunity (depending on how they phrased it) then whether there was an infringement or not could be determined using typical balsamic ingredients tests for infringement of rights: strict scrutiny for the first amendment, irrational basis for the second, etc. Since they didn’t, and made up something new unfounded in any prior act of the Court, statute, or constitutional provision, they need to own their usurpation of legislative power (or curtail it to something founded in law).

      1. The Supreme Court very much disagrees with that analysis. And lower courts are supposed to make normative determinations, not operate by their own ideas of what the law ought to be.

        1. Isn’t “their own ideas of what the law ought to be” exactly what a normative determination is, a determination of what ought to be?

          1. Balls. I messed up my terminology.

            I could Google, but if you could indulge my laziness, what’s the opposite of normative again?

            1. abnormative?

            2. Descriptive.

              I’m likely gonna stick to is and ought from now on.

      2. The fundamental problem with all these balancing tests is that when it comes to constitutional rights, the actual text tends to be a bit… absolutist.
        “no law”
        “shall not be infringed”
        “shall not be violated”
        “no warrants shall issue”
        “in all criminal prosecutions”

        The text generally reads more like an absolute prohibition or guarantee, not an invitation to balance one value against another.

        1. “The text generally reads more like an absolute prohibition or guarantee, not an invitation to balance one value against another.”

          The text tends to ignore the possibility that one person’s rights might interfere with another person’s rights. In the real world, they do.

          “‘shall not be infringed’
          ‘shall not be violated'”

          Of course, “infringed” and “violated” have their own escapes built right into them. There is a substantial difference between “the right shall be absolute” and “the right shall not be infringed”… it allows people with power to say “X and Y are not infringements”, and POOF! the right is not infringed.

          “’no warrants shall issue’”
          This one is a straight-up case of selective quoting. The very next word is “but”, which means “except for”. Quoting text that has an “except for” as an absolute pronouncement is either outright deceptive or a-m-a-z-i-n-g-l-y stupid. Good news, of sorts, Brett… I don’t think you’re stupid.

          1. THANK YOU.

            <blockquote? it allows people with power to say “X and Y are not infringements”, and POOF! the right is not infringed.It’s the principle of conflicting rights.
            Both extremes, left and right, brains EXPLODE at the very thought of two absolute rights being in conflict. Even though, “No free speech right to yell ‘fire’ in a crowded theater” has been taught for well over 50 years/

            1. ” Even though, “No free speech right to yell ‘fire’ in a crowded theater” has been taught for well over 50 years/”

              It has never been taught well.
              Among other things, it’s dicta, not law.

              1. It’s the EXAMPLE of the PRINCIPLE, to clarify what principle was used for the ruling.

                SCOTUS rulings are not “law.”

                Are you ACTUALLY denying the fundamental principle of conflicting rights? How would YOU resolve a conflict between two rights, both absolute?

                It has never been taught well.

                Obviously not to you … as revealed next.

                Among other things, it’s dicta, not law

                Which is HOW it’s been taught!!

                Reality can be SO inconvenient to tribal legends.

                1. “SCOTUS rulings are not ‘law.'”

                  Perhaps not, wherever you live, but here in the USA, they are.

                  “Are you ACTUALLY denying the fundamental principle of conflicting rights? How would YOU resolve a conflict between two rights, both absolute? ”

                  May I direct you up two of my comments, to where I address this very point, directly? For your convenience, I’ll repeat. I said “The text tends to ignore the possibility that one person’s rights might interfere with another person’s rights. In the real world, they do.” Now, I realize, you’re too busy haranguing people to bother to read what they said, but, you are one dumb motherfucker. Further, I’ll add for your education, there is no such thing as an absolute right.

                  “Which is HOW it’s been taught!!”
                  Which you, apparently, didn’t get, because up above you say that no Supreme Court ruling is law.

                  “Reality can be SO inconvenient to tribal legends.”

                  Nevertheless, I suggest you try stopping by to visit it, from time to time.

                  1. (posted in defense of MORE aggression … MORE lies … and MORE personal attacks … all because I … COMPLIMENTED THE THUG HOW DARE I DO sUCH A THING?)

                    “SCOTUS rulings are not ‘law.’”

                    Perhaps not, wherever you live, but here in the USA, they are.

                    (smirk) LAWS ARE PASSED BY CONGRESS. Or ratified as a constitution. See TWO MILLION definitions below, Sparky.
                    PERHAPS your confusion traces to the CONSTITUTION being the supreme “law” of the land. But … wait for it …
                    (a) The Constitution is not a RULING … and
                    (b) A RULING CANNOT CHANGE THE LAW OF THE LAND (except to far-right wackos)

                    Are you ACTUALLY denying the fundamental principle of conflicting rights? How would YOU resolve a conflict between two rights, both absolute? ”

                    You are one dumb motherfucker.

                    BEND OVER, CHUMP!

                    Further, I’ll add for your education, there is no such thing as an absolute right.

                    1) ANOTHER MASSIVE FUCKUP!! NO CLUE ON WHAT UNALIENABLE RIGHTS MEANS EITHER.
                    2) Your latest ranting us a cowardly diversion from your false claim about the crowded theater
                    3) …. AND NOW YOU’VE NOW TAKEN TWO OPPOSITE POSITIONS ON CONFLICTING RIGHTS!!!!
                    First your denial of conflicting rights for yelling fire … BUT
                    NOW YOU SAY YOU DEFEND THE SAME CONFLICTING RIGHTS.

                    And I EXPLICITLY called you out on THAT bullshit

                    “it allows people with power to say “X and Y are not infringements”, and POOF! the right is not infringed.”

                    It’s the principle of conflicting rights. Both extremes, left and right, brains EXPLODE at the very thought of two absolute rights being in conflict.

                    POOF?
                    HOW CAN NEITHER UNALIENABLE RIGHT BE INFRINGED UNLESS THEY ARE BOTH ABSOLUTE???
                    Your brain DID explode, exactly as I said!!

                    If you issue yet another cowardly diversion .. please explain why we should take the word of someone who
                    a) Defends opposite sides of the same issue
                    b) Assumes Jefferson was FULL OF SHIT in the Declaration.
                    c) And the Founders were ILLITERATE by ratifying it!

                    ” Now, I realize, you’re too busy haranguing people to bother to read what they said

                    THE FUCKING PSYCHO THREW A RAGING HISSY FIT IN RESPONSE TO ME ….
                    COMPLIMENTING HIM!!

                    P.S. This link is to over 2 million search results on the definition of “law” Admittedly, I only scanned maybe a dozen, and NONE support your latest bullshit.

                    Now YOU google the definition of … “blowhard”

                    *** Since you’ve now also show your IGNORANCE of what “unalienable rights” means … IN PUBLIC … my time here is done.
                    Thank you for playing, Please select a lovely parting gift.

                    1. You spent a whole lot of words explaining that you are one dumb motherfucker.
                      What a waste. This was previously established.

                    2. Stalking cyber-bully FAILS the meaning of unalienable rights, a FUNDAMENTAL principle in American rights an Natural Law for centuries, which most learn in high school
                      Takes both sides of the same issue.
                      Assumes Jefferson was full of shit on the Declaration, and the founders were illiterate to sign it.

                      AND THIS (SNORT)

                      The psycho assault :
                      ”Now, I realize, you’re too busy haranguing people to bother to read what they said

                      My defense from assault:
                      “THE FUCKING PSYCHO THREW A RAGING HISSY FIT IN RESPONSE TO ME i>COMPLIMENTING HIM! … which HE obviously never read!

                      But it’s ME who is a “dumb motherfucker” — which says all we need to know about his lack of character

                      This is common behavior by cyber-bullies. They keep attacking, getting crushed … throwing hissy fits and launching new assaults … getting humiliated … which pisses them off, launching more punishment …. roughly akin to a nervous breakdown.

                      Verbal Aggressiveness …A personality trait that predisposes persons to attack the self-concepts of other people instead of, or in addition to, their positions on topics of communication … Verbal aggressiveness is thought to be mainly a destructive form of communication

                      Verbal hostility,or in other words, verbal harassment or abuse is basically a negative defining statement told to or about you or withholding a response and pretending the abuse is not happening.

                      Cyberbullying The act of bullying someone through electronic means (as by posting mean or threatening messages about the person online)

                      StalkerA person who harasses or persecutes someone with unwanted and obsessive attention.

                      psychopath
                      1. A person suffering from chronic mental disorder with abnormal or violent social behaviour.
                      2. Many Trumpsters
                      3. Loyalists to either major party
                      4) Blowhards

                      One more definition
                      https://www.thefreedictionary.com/unalienable
                      (smirk)

                      This response is for the sheer joy of seeing him self-humiliate. Yet again.

                      You are WAY above your class.

                      “Mess with the bull; get the horns.”

                    3. And now you spend EVEN MORE words nailing down, beyond dispute, that you are one dumb motherfucker.
                      What a waste. Everyone was already convinced.

                    4. “But it’s ME who is a “dumb motherfucker””

                      In a word, yes.

                  2. “1) ANOTHER MASSIVE FUCKUP!! NO CLUE ON WHAT UNALIENABLE RIGHTS MEANS EITHER.”

                    Here’s a bit of free advice… if you’re going to lecture someone about not understanding something, first make sure that you understand it. (Hint: In this case, you do not.)

                    “unalienable” means something that cannot be transferred to someone else. Not… whatever it is you think it means.

                    You are a twit. Please go be a twit somewhere else.

                    1. HE TAKES THE BAIT … AGAIN!!!
                      PROOF HE’S BAT-SHIT STUPID.
                      NOW I CAN SHOW WHAT HE’S TRYING TO COVER UP, AND WHY.

                      BUT FIRST … THIS IS THE DARK SOUL OF AN AUTHORITARIAN FASCIST.

                      “unalienable” means something that cannot be transferred to someone else. Not… whatever it is you think it means.

                      ***THE ENTIRE ROOM
                      ***ERUPTS
                      *** IN JEERS AND LAUGHTER.
                      (the room is a 9th grade classroom)

                      *** UNALIENABLE RIGHTS CAN NOT BE “DENIED OR ABRIDGED” …. BY GOVERNMENT YOU FUCKING TRUMPTARD

                      …. WAIT FOR IT ASSHOLE ….

                      I JUST CITED THE NINTH AMENDMENT TO THE CONSTITUTION!!

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

                      SO HE’S NOW DENIED
                      1) Jefferson
                      2) The Founders
                      3) The Bill of Rights

                      **** AND THE FUCKING DICTIONARY I LINKED HIM TO!!!!
                      (tears of laughter streaming down my cheeks)

                      HIS FUCKUP … VERSUS THAT LINK

                      “unalienable” means something that cannot be transferred to someone else. Not… whatever it is you think it means

                      “unalienable
                      un·al·ien·a·ble (ŭn-āl′yə-nə-bəl, -ā′lē-ə-)
                      adj.
                      Not to be separated, given away, or taken away; inalienable”

                      **** NOW I can show WHY these moral reprobates LIE ABOUT RIGHTS so shamelessly.

                      cont’d

                    2. Part 2

                      1) It is NOT unalienable he’s been fucking up so savagely. That is a smokescreen, a diversion.

                      2) It’s when I CHALLENGED HIM, “How would you resolve a conflict between two rights … both absolute?”

                      IT”S A TRICK QUESTION FOR THE AUTHORITARIAN RIGHT … ESPECIALLY THE CHRISTO-FASCISTS … AND THE EXTREME LEFT-WING FASCISTS.
                      THAT is why he reversed his ORIGINAL statement.

                      **** ABORTION!

                      Declaration: “… certain unalienable rights, among these rights are LIFE, LIBERTY. and the pursuit of happiness”
                      (PLUS ALL THE OTHERS)

                      The fetal child’s right to LIFE,
                      the woman’s right to LIBERTY,
                      ARE PRECISELY EQUAL. DOUBLE-FUCKING-DUH
                      WHICH HE FIRST STATED … THEN HAD TO REVERSE WHEN CHALLENGED

                      Right-wing fascists try to IMPOSE their preferred right as superior to … another absolute right, WHICH CANNOT BE DENIED OR ABRIDGED

                      Left-wing fascists try to IMPOSE their preferred right as superior to …. another absolute right, WHICH CANNOT BE DENIED OR ABRIDGED

                      The Christo-Fascists SCREECH that the fetus has full rights at conception.

                      The libertarian replies … SO DID THE WOMAN!!!!
                      AND IF HER RIGHTS ARE GOD-GIVEN … WHEN DID GOD CHANGE HIS MIND, CHUMP? … OR DID HE MERELY SUSPEND HER RIGHTS …
                      …. FOR HOW LONG?
                      … BASE ON WHAT AUTHORITY?
                      … AND ARE THERE ARE ANY OTHER GOD-GIVEN RIGHTS “TEMPORARY” OR “SUSPENDABLE.”
                      … BASED ON WHAT AUTHORITY?

                      Technically, the Christo-Fascists are … victims .. OF THE ANTI-CHRIST — morally corrupt religious leaders seeking to restore the atrocities of Church and State combined… the (un)Holy Inquisition which was STILL committing moral atrocities at our founding … and WHY the Founders demanded that Wall of Separation

                      THE FOOLS ARE TRICKED INTO DEFYING THE WILL OF ALMIGHTY GOD (HIS God-given rights)

                      Finally, Pollock is EXACTLY like Trump.
                      1) Make a TOTALLY dumbfuck statement
                      2) Fly into ape-shit rage when called out
                      3) With increasing INSANE denials and lies (like Charlottesville).

                      Pollock (which is a fish) CHOSE to be a TOTAL loser on this. AND SUCCEEDED!

                      There may now be even MORE denial and lies … yet more insane … HE CANNOT HELP HIMSELF (also like Trump).

                    3. poor motherfucker.

                    4. Goober proves me correct AGAIN!
                      ANYONE who reads the PROOF, will KNOW he’s a blowhard

                      DO IT AGAIN!!
                      PLEASE!!!
                      .

                    5. Throw another 1500 word tantrum!

                    6. For readers who came here from links on my blog..
                      Part of my online course, “Cyber-Bullies and Cyber-Terrorist.”

                      It’s been a few days since Pollock became the absolute craziest, of the 20 or so we’ve a;; been tracking for the past few months.

                      Not enough that he counters a linked and proven dictionary definition of “unalienable, by bellowing totally unsourced bullshit … TWICE.”

                      Combined with the stalking, THIS is a cyber-terrorist Bellpwiong ios a

                    7. Combined with the stalking, THIS is a cyber-terrorist Bellowing is all they have. It’s the combination of the authoritarian mentality, combined with a total lack of knowledge, with the goal of …. domination.

                      NOW. he says a three part PROOF that he’s a TOTAL psycho is … A TANTRUM!! Conveyed by yet another hissy fit.

                      Once again proving …

                      Finally, Pollock is EXACTLY like Trump.
                      1) Make a TOTALLY dumbfuck statement
                      2) Fly into ape-shit rage when called out
                      3) With increasing INSANE denials and lies (like Charlottesville).

                      Pollock (which is a fish) CHOSE to be a TOTAL loser on this. AND SUCCEEDED!

                      There may now be even MORE denial and lies … yet more insane … HE CANNOT HELP HIMSELF (also like Trump).

                      I’ll open group discussion on today’s assault on Monday, 9:00 PM Mountain Time. You may comment before then, even now, but may not get any responses until Monday morning.

                      Remember, the entire chain of assaults traces to reversing himself, on the trick question which exposed his intellectual and moral bankruptcy, on the TWO equal and conflicting rights in abortion … which expose the Christo-Fascist contempt for the clearly expressed Will of Almighty God.

                      This may be the first goober we do not track to the end. On the evidence, he’ll likely keep bellowing forever, Also related to a near-total lack of self-esteem in his ilk.

                    8. Needs more tantrum!

                    9. THE TANTRUMP IS YOURS,
                      MINE WAS YOUR ASS-KICKING.
                      You should see what else my blog readers have seen.
                      Like the 18 times, you SCREECHED that unalienable rights are not absolute … with NO sources … versus 7 times I posted the definition, linked to a dictionary ..and once to each RESULTS with over a million definitions.

                      My blog traffic and commentsare at record highs … for my online course on Dealing with Cyber-Bullies..

                      But maybe a dozen followers are convinced I’m posting as Pollock, because (they say) NOBODY could be so totally psycho.
                      They’re new to the topic 🙂

                    10. More impotent rage! More “logical” inconsistency!

                      Need more More MORE!

                    11. Don’t need “more”
                      FULLY proven days ago.
                      Which is why you keep trying to bury it.

                      https://reason.com/2019/10/31/can-lower-courts-decide-novel-abortion-cases/#comment-7995764

                2. Are you ACTUALLY denying the fundamental principle of conflicting rights? How would YOU resolve a conflict between two rights, both absolute?

                  What happens when an irresistible force meets an immovable object? Answer: the question is fundamentally flawed; both things can’t exist.

                  You can’t have two absolute rights that conflict; it’s a logical impossibility.

                  1. HEY DUMFUCK RIGHT-WINGER

                    1) Unalienable rights are absolute, by definition.
                    2) Life is an a

                    1. Ready? (lol)

                      TRUE OR FALSE: Unalienable rights are absolute, by definition?
                      TRUE OR FALSE: Life is an unalienable right?
                      TRUE OR FALSE: Liberty is an unalienable right?
                      TRUE OR FALSE: Abortion is a conflict between two absolute rights, Life (fetal child) and Liberty (the woman)?

                      That’s just the most blatantly obvious conflict.

                      There are also TWO famous examples, one figurative.
                      1) No free speech right to yell fire in a crowded theater??
                      2) Your right to swing your fist ends at the tip of my nose??

                      Absolute rights include
                      1) Life
                      2) A package called Liberty
                      3) A package called Pursuit of Happiness
                      4) ALL the many UNENUMERATED rights, guaranteed by the Ninth Amendment, which cannot be denied or disparaged by ANY level of government

                      HUNDREDS of absolute rights, but NEVER a conflict between any? REALLY?

                      You can’t have two absolute rights that conflict; it’s a logical impossibility.

                      Wipe the egg off your puss, then issue the apology you owe me.

                      Sorry if my attitude offends you … but we libertarians have been fighting for over 50 years … to defend individual liberty from the lies and deceptions of authoritarians both left and right. Your denial is a SEVERE threat to all we hold sacred, the very core of our Constitutional values … and of universal human rights.

                      And I don’t want any readers deceived by your “arguments.”
                      Liberty is too precious

                    2. P.S. add that to Neoporent’s equally shameful oppression here: https://reason.com/2019/10/31/can-lower-courts-decide-novel-abortion-cases/#comment-7995488

                    3. “Sorry if my attitude offends you … but we libertarians have been fighting for over 50 years”

                      Libertarians aren’t stupid.
                      Therefore, you cannot possibly be a libertarian.
                      QED.

                    4. “Unalienable rights are absolute, by definition.”

                      Actually, unalienable rights cannot be transferred to anyone else, by definition.

                      But do go on, monkey. Dance for my amusement.

                    5. PSYCHO ALERT (BEEP) (BEEP) (BEEP)

                      JAMMED IT UP POLLOCK’S ASS HERE.
                      https://reason.com/2019/10/31/can-lower-courts-decide-novel-abortion-cases/#comment-7995466

                      NOW HE REPEATS THE PROVEN PSYCHO LIE

                      “Unalienable rights are absolute, by definition.”

                      Actually, unalienable rights cannot be transferred to anyone else, by definition.

                      PROVEN A PSYCHO HERE

                    6. Cont’d

                      **** AND THE FUCKING DICTIONARY I LINKED HIM TO!!!!
                      (tears of laughter streaming down my cheeks)

                      HIS FUCKUP … VERSUS THE DICTIONARY

                      PSYCHO POLLOCK
                      “unalienable” means something that cannot be transferred to someone else. Not… whatever it is you think it means

                      https://www.thefreedictionary.com/unalienable
                      “unalienable
                      un·al·ien·a·ble (ŭn-āl′yə-nə-bəl, -ā′lē-ə-)
                      adj.
                      Not to be separated, given away, or taken away; inalienable”

                      Finally, Pollock is EXACTLY like Trump.
                      1) Make a TOTALLY dumbfuck statement
                      2) Fly into ape-shit rage when called out
                      3) With increasing INSANE denials and lies (like Charlottesville).

                      Pollock (which is a fish) CHOSE to be a TOTAL loser on this. AND SUCCEEDED!

                      AND PROVES ME RIGHT AGAIN!

                      There may now be even MORE denial and lies … yet more insane … HE CANNOT HELP HIMSELF (also like Trump).

                      But do go on, monkey. Dance for my amusement.

                      One
                      Sick
                      Fuck
                      Stalking Cyber-Bully

                      DO IT AGAIN!!
                      PLEASE,
                      SHAMELESS ONE
                      DENY A PROVEN DICTIONARY, BY BRAYING LIKE A JACKASS
                      (SNEER)

                    7. Keep dancing, monkey! More amusement!

                    8. “TRUE OR FALSE: Unalienable rights are absolute, by definition?
                      TRUE OR FALSE: Life is an unalienable right?
                      TRUE OR FALSE: Liberty is an unalienable right?”

                      False, false, and false.

                      Hint: If number 2 were true, there would be no such thing as a dead person, except for suicides.
                      Hint: If number 3 were true, there would be no such thing as a prison.

        2. The text generally reads more like an absolute prohibition or guarantee, not an invitation to balance one value against another.

          Umm, what if TWO of those absolute (unalienable) rights are in conflict? (Probably the 50th time I’ve asked, never an answer)

          And I KNOW. from previous, that you have no clue what rights are absolute!!! See the Ninth Amendment, which becomes invisible to the Authoritarian Right.

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

          There are fundamental rights. never mentioned in the Constitution, which cannot be denied or disparaged by ANY level of government.

          For maybe the 50th time now, please list those absolute rights for us.

          1. “For maybe the 50th time now, please list those absolute rights for us.”

            It’s a short list, since there are no absolute rights. Nada. Zip. Zilch.

            but, since you asked so nicely, here is the list:

      3. Judge Diane Sykes is a woman FYI.

        1. And ….

      4. If we had, there’d be a clause in the Constitution that says something like “And any of these rights can be arrogated, so long as the burden caused by that arrogation is not undue.”

        Your ignorance … astounding or laughable?
        That type of ruling is EXPLICITLY within the judiciary’s purview … to anyone educated on fundamental rights,

        Since all unalienable rights are absolute — by definition — THAT is how the Court reconciles any conflicts between two absolute rights … which is their JOB … not the right-wing bullshit of inventing rights.

        And I figured you’d get around to typical bullshit on abortion. Along with typical alt-right ignorance of the Ninth Amendment. which literally ridicules your nonsense.

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

        Who the FUCK are YOU to deny or disparage those rights? YOU DON’T EVEN KNOW WHAT THOSE RIGHTS ARE! Nobody does … not even the Founders, who enshrined that “inconvenient” principle in our Law of the Land.

        It was INTENTIONAL that those rights NOT be mentioned., because THEY were educated enough to know how rights had been evolving for centuries. EVERY fundamental right had been “acknowledged” by a court or tribunal. It’s been their JOB since the Enlightenment.

        In our system, ONLY the Judiciary can “acknowledge” such UNALIENABLE rights …. as a check and balance against the other two branches, the only ones who can violate them.

        Now learn the process. The courts have NEVER acknowledged a right, or resolved a conflict, until an actual case was before them. Period. Full stop.

        On your abortion scam, the two conflicting absolute rights are Life (fetal child) and Liberty (the woman). ONLY the courts can resolve that conflict, and they must do it in a way that best defends BOTH (equal) rights.

        The extreme left and right are BOTH authoritarian (ANTI-rights) , on abortion. The thuggish left denies ANY rights to a fetus, ever, until birth. Your thuggish right denies ANY rights to the woman.

        BY WHAT RIGHT?

        Your side WHINES that the fetus has full human rights at conception …. SO DID THE WOMAN! And those rights are God-given, BOTH of them, so … who are you to DEFY the Will of Almighty God?

        No more lectures on a Constitution …. or on equal, unalienable and/or God-given rights … about which you have zero understanding or knowledge.

        1. Having no knowledge hasn’t stopped you, why should it stop anyone else?

          1. ANOTHER COWARDLY EVASION

            Your side WHINES that the fetus has full human rights at conception …. SO DID THE WOMAN! And those rights are God-given, BOTH of them, so … who are you to DEFY the Will of Almighty God?

            REJECT THE ANTI-CHRIST … ACCEPT THE LORD JESUS CHRIST AS YOUR PERSONAL LORD AND SAVIOR …. FALL ON YOUR KNEES … BEG HIS FORGIVENESS .. FOR YOUR ARROGANT DEFIANCE OF THE CLEARLY EXPRESSED WILL OF ALMIGHTY GOD.

            May He have mercy in your conflicted soul
            I sure as hell won’t,.

            1. Yeah, that’s what I meant.

            2. Here’s the thing.
              If God, in his Infinite Wisdom, wanted me to change my way of thinking, he’d send somebody smarter than me who could make cogent and coherent arguments. He would do this because he’d know that would work.
              Instead, he sent you.
              From this I can infer with 100% certainty that God does not want me to change my mind at this time.
              QED.

  4. In the army this would be called “insubordination.”

    1. I don’t think so (see below). I think it’s more like an Air Force pilot boarding an aircraft carrier, getting into a plane, and thinking the crew will put him on the flight deck and into the launch. Wrong tools for the job.

      1. Your argument below is more of the ‘disobeying is an illegal order’ variety.

        Judges to not have the analogous duty to soldiers in this area.

  5. Easterbrooks point, which I entirely sympathize with, is that the Court made a judgement call that is entirely outside of the Constitution, using methods reserved for the Legislature.

    “Undue burden” isn’t a constitutional term, has no analogous mappings, and doesn’t appear under any other form of precedent. Presumably Easterbrook believes that all judgements should be unanimous because all judgements should be the same regardless of judge, and the point of a multi-judge panel is to regress to the mean when a statute is indeterminate. His point here is that it’s not the facts of the case that make it indeterminate, it’s that the standard of “undue burden” is itself inherently indeterminate.

    Had the Court instead determined that abortion was one of the immunities under the 14th amendment, then the lower court could have determined that parental notification was one of the privileges and so could have ruled that an immunity of one party supersedes a privilege of another.

    But the Court didn’t do that – it made up a standard that is one inherent in legislating, and so muddled the water. Easterbrook is saying (essentially), “you made this mess, now you lay in it.”

    1. There’s nothing like, novel, about a court applying a judicially-created standard to determine the constitutionality of a statute or regulation.

      Here’s the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

      How should the Supreme Court determine the constitutionality of, say, a city’s permitting process for parades? That’s a restriction on the “right to assemble,” but is it a “prohibition”? The text of the First Amendment doesn’t provide a ready answer.

      Maybe you look to precedent, i.e. past cases in which the Court laid out an analytical framework for determining the meaning of the “prohibition.” And then you apply that framework to the facts of the present case.

      Courts do the same thing in abortion cases. You can complain that the “undue burden” standard isn’t a *workable standard*—like it’s too hard for judges to consistently apply. Liberals and conservatives have both made that point.

      But complaining that it’s “judicially created”—that’s just inherent in judicial interpretation of indeterminate text.

      1. The undue burden standard in abortion cases is unavoidably “judicially created”, because the ‘right’ being burdened was judicially created in the first place.

        1. Didn’t you complain about assuming the conclusion above?

        2. Brett, that’s incredibly stupid. The Fourth Amendment is textual, and yet “reasonableness” of a search is just as amorphous as “undue burden”, and if a court were faced with an application to enjoin a statute that permitted searches that the plaintiff contended were “unreasonable”, we would face the same situation.

          We know you think that Roe isn’t constitutionally mandated. Of course, your opinion is irrelevant, because Article III of the Constitution assigned that power to the Supreme Court, not to you. But how amorphous a right is has nothing to do with whether it is included in the constitutional text.

          1. No, Article III did not assign to the Supreme Court the power to create Constitutional rights to kill fetuses and have anal sex.

            1. Actually it did. Marshall’s statement that it was emphatically the province of the judiciary to say what the law is was amply supported by constitutional text and framers’ intent.

              1. No, it’s not supported at all, much less amply.

                1. In whom does the Constitution vest the supreme judicial power?

            2. No, Article III did not assign to the Supreme Court the power to create Constitutional rights to kill fetuses and have anal sex.

              You pathetically STOOPID naif.

              THE JUDICIARY DID NOT “CREATE” AN UNALIENABLE RIGHT TO … LIBERTY. IT IS GOD-GIVEN …. AND PRECISELY EQUAL TO THE FETAL CHILD’S RIGHT TO LIFE ,… PER THE DEFINITION OF UNALIENABLE … DIPSHIT

              and have anal sex.

              Are you ALSO stupid enough to believe that the sole purpose of sex is … PROCREATION … which is true ONLY for lower animals … also by the Will of Almighty God???

              It was GOD who created humans with the capacity for sheer joy from sex … even when procreation is impossible. DUH.

              It was the Will of Almighty God that we have sex SOLELY for pleasure.

              Hegemony means BIGOT. So shut the fuck up … drag your sorry ass off a libertarian web site .. and rejoin your Charlottesville nazis and racists.
              ===
              -Just another pro-liberty libertarian … NOT an anti-gummint goober … defending individual liberty from oppressors and tyrants BOTH LEFT AND RIGHT … for many decades … and continuing until death do us part. .

          2. But, Dilan, you can actually find the word “reasonable” in the 4th amendment, but you will search in vain for the phrase, “undue burden”. So the fact that the 4th amendment directs judges to make judgment calls as to whether a search is “reasonable” is textual in nature, while the requirement for them to decide which burdens are “undue” is judge created.

            1. Reasonable has spun out into stop and frisks to mere encounters to arrests to Mirandization to fruit of the poisonous tree.

              Your textualism, apart from ignoring the 9th, is pretty flexible on what’s text, it seems.

              1. Those are pretty commonly heralded as atextual cases by textualists.

                1. The point is, there’s nothing about textualism that guarantees an easy to apply standard– and by the way, nothing about the “living constitution” that doesn’t. Instead of Roe, the Court could have just said all abortions to the last day of pregnancy are protected. Had they said that, it would have been easy to enforce!

                  1. By definition, abortions are performed on the last day of pregnancy.

                2. Lots of a la carte textualists around here, then.

            2. “reasonable” and “undue” are antonyms. Deciding one necessarily involves deciding the other.

        3. OK, but that goes to the substantive right, not the standard used to determine the scope of that right. Let me explain.

          Suppose we codified the right to an abortion in adopted the hypothetical 28th Amendment. It reads “Congress and the States shall make no law restricting the right to abortion.” OK. But that Amendment tells us nothing about the scope of the right to an abortion. Is it absolute? States can’t regulate abortion at all? What about parental notification statutes, like the one challenged above? Does that “restrict[ ] the right to abortion”?

          Now, suppose the Court in a hypothetical case, Smith v. Texas, said “the standard lower courts will use to determine constitutionality of a restriction on the right to an abortion is the ‘undue burden'” standard.”

          Aren’t we faced with the same problem Judge Easterbrook identified above, despite the fact that, indisputably, the Constitution, as amended, protects the right to an abortion?

          1. Suppose we codified the right to an abortion in adopted the hypothetical 28th Amendment.

            Umm, abortion is a fundamental right. Liberty.

            Your confusion is common, especially on abortion, along with ignorance of the principles involved.

            Abortion is two fundamental rights in conflict — Life and Liberty. Resolving such conflicts is EXPLICITLY a judicial function, because ONLY the judiciary is empowered to defend fundamental rights. It’s just that simple, despite all the anti-constitutional bullshit by the authoritarian right (including Ron Paul)

            1. “Umm, abortion is a fundamental right.”

              Except that it isn’t, sure.
              The right to abortion is derived from the right to privacy.

              “Your confusion is common, especially on abortion, along with ignorance of the principles involved. Abortion is two fundamental rights in conflict — Life and Liberty”

              You’ve burned a LOT of words explaining that you don’t know what you’re talking about, but here you have have near-miss. You almost got this, well, except for getting both of the rights in conflict wrong.. Abortion law is a conflict between the right of privacy of the mother against the right of the state to act to protect the life of the fetus.

              1. Privacy is within the package called liberty.

                In this context. “privacy” — like “reproductive rights” — or “right to choose” — or “control of her body” — are too easily labeled “invented rights” by the Christo-Fascists. A MAJOR tactical blunder by pro-choicers.

                Using “Liberty” — and you’re FULL OF SHIT if you say privacy is not a subset of individual liberty — is how we EXPERIENCED ADULTS deal with PERSUASION.

                Your version FAILS that test. But you’re still an amateur at this.

                Now. throw another hissy fit … that “persuasion” has no value in … POLITICAL ISSUES.

                You seek to dominate, by bullying. Libertarians seek to persuade, by addressing what people CARE ABOUT … all people, not just our own tribe.

                Umm, also fundamental in Marketing.

                Okay, screech some more now …

                  1. I don’t know WHY you like to loudly proclaim your ignorance, but you sure do.

                    1. I do like the fact that you keep citing yourself for the premise that someone else was wrong about something, as if that were any kind of proof.

      2. “The text of the First Amendment doesn’t provide a ready answer.”

        The text sure does, a city is not Congress so no violation even if they prohibit all parades.

        All 1A cases that do not involve Congress are “judicially created”.

        1. which is why the pedantic and legally correct people refer to 1A cases that involve states and subdivisions thereof as 1A AND 14A cases.

          1. I believe the 14th “incorporates” ALL constitutional rights protections against all levels of government, in the Due Process Clause.

            Plus, elementary logic. Do cities and states have powers never delegated?? Are we literally helpless against rights abuses by states, as asserted by Ron Paul (and his alt-right)?

            And don’t get me started on all the bullshit about the 10th Amendment, which is STRICTLY limited by the 9th.

        2. Wrong. Two reasons.
          Your assertion is that cities have powers never delegated, which is even worse than Ron Paul’s wacko claim that states have powers never delegated, and that we are powerless against abuses by state and local governments.

          All 1A cases that do not involve Congress are “judicially created”.

          Typical bullshit by the Authoritarian Right

          The Due Process Clause of the 14th Amendment, explicitly expands our rights against state and local governments. Read it. Understand it.

          Beginning with Gitlow v. New York (1925), the Supreme Court applied the First Amendment to states—a process known as incorporation—through the Due Process Clause of the Fourteenth Amendment.

          Before you go ape-shit on THAT — the Court cannot rule on such things unless and until a case/challenge is before it.

          That is their constitutional; function. Whoever fed you otherwise has ZERO Constitutional power (and kinda dumb on it).

    2. “Undue burden” isn’t a constitutional term, has no analogous mappings, and doesn’t appear under any other form of precedent.

      Your absolute ignorance, on that same fallacy, is documented here:
      https://reason.com/2019/10/31/can-lower-courts-decide-novel-abortion-cases/#comment-7994530

      The authoritarian right is just as brainwashed as the authoritarian left.

  6. Sounds like prudent judicial economy.

    It’s an assumption that whatever work the circuit court(s) put into fashioning a legal standard to apply to the facts of a case, the case will be appealed to the Supreme Court anyway, and the work will either be discarded outright or will be altered at the top level… might as well let them do the entire work of fashioning the legal standard.

  7. The law often has standards that are difficult to apply, and Supreme Court decisions have often resulted in things becoming even more muddled. Abortion is hardly the only area where this is so.

    That said, as a practical matter there is a good chance the Supreme Court will change or refine its current standard as a result of its recent very docket. And if this is so, there may be little value in courts trying to decide things under the existing cases, only to get a GVR and be asked to decide things yet again based on the new decision.

    It might be the most economic use of lower court resources to simply get through things as quickly as possible and then wait and see if the Supreme Court gives new marching orders or not.

    And this might be so regardless of whether one thinks the standard should be changed or not.

    1. Abortion is hardly the only area where this is so.

      False.
      The woman’s right to Liberty is precisely equal to the fetal child’s right to Life — once we know that each and every unalienable right is absolute … by definition.

      ONLY the Judiciary is empowered to resolve conflicts between two or more absolute rights,

      The only “muddle” is created by the political class, both right and left, power-seeking, seeking to impose THEIR preferred right above another ABSOLUTE right …. placing themselves above even the Will of Almighty God. Ignore them. They’re bat-shit crazy and anti-liberty.

      1. “The woman’s right to Liberty is precisely equal to the fetal child’s right to Life — once we know that each and every unalienable right is absolute … by definition.”

        You went 0 for 3 here.

        In balancing between the woman’s right to privacy, not liberty, and the state’s right to intercede to protect the life of the child, they are not equal. Pre-viability, the mother wins, and post-viability, the state wins.
        Neither of these rights is unalienable, so your “all unalienable rights are equal” theory is just a waste of time.

        1. To save time, your confusion … and duplicity … were exposed here.
          https://reason.com/2019/10/31/can-lower-courts-decide-novel-abortion-cases/#comment-7995771

          Now the new shit

          And the state’s right to intercede to protect the life of the child,

          (LOL) STATES DON’T HAVE RIGHTS. ONLY PEOPLE HAVE RIGHTS. STATES HAVE POWERS. “JUST” POWERS CAN ONLY BE DELEGATED BY PEOPLE. THUS RIGHTS ARE SUPERIOR TO POWERS.

          That fuckup may have been the base for THIS fuckup.

          Pre-viability, the mother wins, and post-viability, the state FETAL CHILD wins.

          Typical authoritarian … places the state above persons, even fetuses.

          Neither of these rights is unalienable

          Since *I* would never say states have rights, I’d never say states have UNALIENABLE rights. (lol)
          You also fucked up on privacy …
          which was based on the Due Process Clause of the 14th Amendment. READ IT AND WEEP.

          Since your bullshit always follows the same pattern, I can anticipate your next lie. THE DUE PROCESS CLAUSE NEVER MENTIONS “PRIVACY.” IT SAYS … WAIT FOR IT … MAY NOT BE DEPRIVED OF “LIFE, LIBERTY OR PROPERTY” … SO WHERE DID THEY FIND PRIVACY, SKIPPER?
          1) Is it within Life?
          2) Within Property?
          3) HOW ‘BOUT LIBERTY? (smirk)

          Stop stalking me. I kick your ass every time … so you throw revenge stalks

          Verbal Aggressiveness A personality trait that predisposes persons to attack the self-concepts of other people instead of, or in addition to, their positions on topics of communication … Verbal aggressiveness is thought to be mainly a destructive form of communication

          Verbal hostility or in other words, verbal harassment or abuse is basically a negative defining statement told to or about you or withholding a response and pretending the abuse is not happening.

          Cyberbullying The act of bullying someone through electronic means (as by posting mean or threatening messages about the person online)

          Stalker A person who harasses or persecutes someone with unwanted and obsessive attention.

          PsychopathA person suffering from chronic mental disorder with abnormal or violent social behaviour.

          1. It doesn’t matter how many words you use to be wrong, it’s still just wrong.

  8. That is, the current situation might be regarded as a sort of interregnum. Just as lower government officials in parliamentary democracies tend to avoid major policy initiatives between governments, especially on issues where a change in government might completely change policy, so this situation represents a sort of interregnum-like period of uncertainty for lower courts.

  9. “It is better to send this dispute on its way to the only institution that can give an authoritative answer.”

    And what if they don’t grant cert?

    The 7th Circuit court is “authoritative” in the 7th Circuit. This is an incredible abdication of responsibility.

    1. It’s an erosion of judicial norms. Ideologues thinking they know where the Court is gonna go soon and thus no longer doing the distasteful work of acting professionally.

      1. The leftist judges did that when they held that “without due process of law” means “a right to vacuum a baby’s brain out.”

        1. Nobody held that there is a right to “vacuum a baby’s brain out”. Other than that, dead on, brother.

          1. Actually, your hero RBG did.

            1. In your fever dreams.

            2. Wait, let me guess… RBG also said it was OK to have anal sex with babies, too?

              1. Only baby gerbils …

        2. As if “RestoreWestrenHegemony” did not SCREAM “alt-right bigot, and PROUD of it.”

    2. This is an incredible abdication of responsibility.

      You are totally and absolutely backwards. That is the definition of their responsibility. Your disgust for our Constitution is appalling to THIS Ohian. But I’m libertarian and you’re authoritarian.

      Are you aware that the 7th Circuit is NOT the entire United States?

  10. I’d still want to hear their opinion and ruling. For all they know, one of those judges has a very unique and convincing argument that may affect ongoing discussion. Just because you’re not the top boss doesn’t mean you shouldn’t provide any feedback.

    1. It is not the job of judges to make arguments to convince their higher courts. They sometimes do, but that’s not what we hire them to do.

      1. That is OBVIOUSLY their job. And you misrepresent the issue.
        Is it not their job to issue rulings that will be sustained?

    2. Sounds reasonable, but isn’t that for them to decide?

      And by 6-to-5, they decided against.

  11. People are overlooking the procedural context. A three-judge panel reached the merits of the case. It was duty-bound to, despite Judge Easterbrook’s emissions, and did. The disappointed litigant has an absolute right to seek review in the Supreme Court, and will ultimately do that. A request for en banc review appeals to the discretion of the entire court. No party has a right to en banc review. A Circuit Court, sitting en banc, has no duty to review a panel decision, even if the majority thinks it wrong. A Circuit Court, sitting en banc, acts well within its discretion if it decides that the case is bound for the Supreme Court and nothing is to be gained by delaying the inevitable for the dubious benefit of having yet another appellate opinion in the record. That Judge Easterbrook took the occasion to unburden himself while declining — as he had the absolute right to do — to exercise any responsibilities in the matter, says more about Judge Easterbrook than about anything substantive.

    1. Absolute right or not, it’s abuse of a court’s discretion to use it to rail against the rulings of your higher court.

      Iron-clad chains of command are not a great idea most of the time, but in this case I don’t think there’s a lot gained in the judiciary breaking ranks like this, and a decent amount to be lost.

      1. I may have done what Judge Easterbrook did, but I wouldn’t have said what he said. But I do think lower court judges have a right to express their opinions on what they think legislatures and/or higher courts should do in cases where they have strong personal views, as long as it is clear that these personal opinions are outside the official decision.

      2. “it’s abuse of a court’s discretion to use it to rail against the rulings of your higher court.”

        No it isn’t. Circuit court judges are bound by precedent, but they, like all other citizens, have a right to criticize the government and to petition it for redress of grievances.

        1. Fair enough, I’d agree with ReaderY’s more nuanced take.

          You can’t use the procedural organ part of the decision to rail against the rulings of your higher court.

          1. Appointed for life.

            1. Takes an oath. Has a job.

              If we’re saying a good judge does anything they won’t be punished for, that’s a very different discussion.

              1. You’re confusing me with Bob, which I object to and I’m fairly certain he will/would, too.

  12. This just strikes me as judges being ideological snowflakes, perhaps because of religion.

    If you can’t bring yourself to enter an injunction against an abortion statute, you can’t be a federal judge. It’s that simple. Indeed, this would be true even if Roe were overturned, because there still could be some circumstance where a judge might be forced to order an abortion (perhaps because of a state law, or enforcement of a contract, or whatever).

    This is the same point conservatives make about the death penalty, and it’s also true there. If you can’t order the death penalty in a case where the law requires it, you can’t be a federal judge.

    Now, I know that’s tough on religious pro-lifers. But there are plenty of jobs that religious pro-lifers can hold if they are too pure to follow the law. A number of anti-slavery judges resigned rather than ordering slaves back into slavery. There’s nothing wrong with holding to your principles. But if you want to be a federal appellate judge, you have to follow the law.

    1. “you have to follow the law”

      What about civil disobedience. Follow your conscience and let Congress remove you if it can.

      The late un-lamented Judge Reinhardt advocate this when he opined about the supremes not catching them all.

      1. Well, that’s quite a forgiving take.

        If it’s civil disobedience, you should declare it’s such, and to what end. Otherwise it’s just a tantrum.

        Reinhardt may have been a nut (IMO), but the whole kerfuffle about him was because he was open about it.

        1. Yes, open yet nothing happened to him. He died in office, having 99% of his opinions un-reviewed by the S/C. How many errors of law did he intentionally make and got away with?

          1. That’s not related to either the merits of the actions discussed in the OP or your 2:09 pm thesis.

            It looks like more of your ‘if it doesn’t land you in jail, it’s a fair political tactic’ which isn’t really an argument, just you laying bare your moral emptiness.

            1. Well, I think it is related to my comment to Dilan’s comment.

              A judge doers not have to “follow the law” at all costs, Reinhardt showed that. He’s likely not the only one, just the one who was open about it.

              “moral emptiness”

              Like Reinhardt, I am just honest about things.

              1. Well, it’s not about civil disobedience anymore, so IMO we’ve wandered pretty far.

                Your definition of what one ‘has to do’ is purely consequential. Mine is not.

                Call that dishonest if you want, but duty is about more than avoiding repercussions.

              2. “A judge doers not have to “follow the law” at all costs”

                Unless they’ve taken some kind of oath that they will, of course.

  13. The reasoning sounds plausible, and let’s be honest… if you know something is going to wind up in front of the SCOTUS anyway, just what is en banc going to accomplish other then delaying it by a year or so?

    That said, it’s still rude to say it.

  14. Then Easterbrook, seeing, that he could prevail nothing, but rather the instructions from the Supreme Court were ambiguous, took water and washed his hands before the high court, saying, I am innocent of the blood of all these fetuses: see ye to it.

  15. Standards always have some vagueness. As Justice Holmes famously said, there is no bright line between night and day, only shades of gray. And yet the fact that there is no sharp, obvious boundary between the two doesn’t prevent the concepts of night and day from being highly useful.

    Opponents of rules often use lack of clear boundaries as a basis for attacking the rules themselves, claiming that if the rules have uncertainty in the boundaries, this means there is something wrong with the rules themselves. Obscenity and sex laws were attacked on that basis in the late 20th century.

    But because any rule has a certain amount of uncertainty, and no rule can be expected to exactly cover any case, expecting perfection in this regard is too much to expect. Judges should be careful not to apply vagueness standards only to rules they don’t like and not to rules they lack.

    I am no fan of the Supreme Court’s current abortion jurisprudence. And I agree the “undue burden standard” leaves lots of room for uncertainty. But I doubt that it is any vaguer than many other standards that are routinely used in the law. These standards, like The concepts of night and day, cannot be expected to establish exact boundaries, and courts will have to fill in the details.

    We have to look at these things fairly, and use the same standards to judge rules we like as rules we don’t like.

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