Abortion

Can an Epidemic Justify Temporarily Forbidding Abortions (Except to Protect Life or Health of the Woman)?

Can it justify temporarily forbidding people to buy guns?

|The Volokh Conspiracy |

Ohio and Texas seem to be including abortion clinics as parts of their general shutdown of "non-essential or elective surgeries and procedures" (to quote the Ohio Deputy Attorney General's letter to a Planned Parenthood affiliate), defined as those "that can be delayed without undue risk to the current or future health of a patient."

This likely is at least a temporary ban on most abortions, for which delay likely doesn't create undue risk to health as such. (All delay creates some risk, but probably not enough to qualify as "undue," and the Texas order allows procedures only to avoid death or "risk for serious adverse medical consequences.") And the restriction may thus completely preclude abortions for those women who are far enough along in their pregnancies that the delay will push them past the currently effective legal deadline, which is viability. Nor would nonsurgical medical abortion be an alternative for such women whose pregnancies are getting close to viability; as I understand it, it is generally not allowed, at least in Ohio, past a relatively early stage in the pregnancy.

The main justification given by both states for this temporary ban is not the risk that the interaction between patients and clinic personnel will risk spreading coronavirus. Rather, it is that the pandemic "has created a shortage of personal protective equipment needed to protect health care professionals and stop transmission of the virus," and that this equipment should be saved for only the essential procedures.

Of course, under normal circumstances such a restriction would be unconstitutional. Rightly or wrongly, the Supreme Court has held that it is unconstitutional for the government to create substantial obstacles to women's ability to get an abortion before viability. Even milder regulations have been struck down under this test, because they tended to markedly reduce the number of available clinics and increase travel time and other delays. Perhaps the Court will reverse itself on this, but for now lower courts are bound by the law as the Court has set forth.

But, as I've discussed before, I think public health emergencies can justify many restrictions on constitutional rights (and important statutory rights), especially when those restrictions are parts of across-the-board restraints, rather than targeting the right for special constraint. That is true, for instance, of:

  • The right to assemble, when the government bans all large or even modestly-sized public gatherings.
  • The right to religious exemptions from generally applicable laws (for instance, claimed by those who want to worship together despite such a gathering ban), in the about 2/3 of the states that recognize such a right under a state RFRA statute or a state supreme court's interpretation of the state constitution.
  • The right to live with one's spouse or children, or the right to have sex with one's lover, when one is quarantined and separated from them for some time.

Yet I think these restrictions are permissible in an epidemic because

  1. they leave substantial substitutes for the right (for instance, online communication in place of physical assembly), or briefly delay its exercise in a way that's burdensome but not immense, and
  2. the restrictions closely target behavior that especially risks transmission of disease—activities that tend to bring people close together, in contexts where they tend to interact closely with each other, a habit that can be very hard to completely break.

(For religious worship, some religious believers might believe that they must gather in person, so item 1 might be absent, but item 2 generally would still apply.)

Here, at least for some women, the Ohio and Texas rules wouldn't just substantially burden the right to abortion, but would completely foreclose its exercise. (Likewise, I tend to think that a law that completely shuts down all ways to buy a gun would completely foreclose the exercise of the right to keep and bear arms for those who don't already own guns.)

And I think that for such abortions, as for gun purchases, mechanisms would be available to preserve the core of the right while minimizing the risk of communicating illnesses (or the competition for personal protective equipment). For instance, there can be requirements that the clinic sharply limit the number of people physically present at any one time, even when that causes delays. There can be rules delaying abortions, especially if it is thought that the protective equipment shortage will ease in the weeks to come, so long as the rules apply only to relatively early abortions, where delay will not mean denial. A total ban on all non-life/health-preserving abortions, even as part of a general ban on all non-life/health-preserving surgical proceedings, is therefore not strictly necessary, and should thus be seen as unconstitutional even as a means of combating an epidemic.

Of course, the less restrictive alternatives that I describe might well create considerable burdens on people who want to exercise the right. But such burdens may well be justifiable, and thus not "undue burdens": As the Court has held, courts must consider countervailing "medical benefits" "when considering whether a regulation of abortion constitutes an undue [and therefore unconstitutional] burden"; I think that should include medical benefits in helping control a deadly epidemic and not just medical benefits to the woman.

So abortion rights, like many of our other rights, can be significantly burdened in order to help control the effects of coronavirus. But when we go from a significant burden to outright prohibition, especially of behavior that doesn't involve large-group gatherings of the sort that are particularly likely to spread disease, the prohibitions strike me as no longer constitutional, whether as to the right to get an abortion or the right to get a gun.

NEXT: Ring's Expanding Public-Private Panopticon Doesn't Actually Stop Crime

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Why do we have to pretend that this executive action has anything to do with protecting the public health?

    You, me, and any with with a two-digit IQ knows what it is really about: using the fear generated by a real crisis to get what they really want. Which is to punish every woman who has sex that they don’t personally approve of.

    1. They’re shutting down all elective procedures to punish women for having sex? Sounds pretty harsh.

      1. Pointing out facts when only emotions and supposition fit the bill? Fie, for shame, your in-group bias badge is revoked.

        Also, dental procedures other than extractions largely canceled. Why, because elective procedures are by and large for non critical complaints, and in the face of a pandemic that is progressing at a geometric rate, the protective equipment is best used for life-saving or critacal procedures. The automatic delineation of any who disagree w/ the abortion upon demand concept during a time of shortage & emergency is telling. It appears to demonstrates a lack of ability to focus on the needs of others, inability to disassociate one’s emotional attachment from an issue when there are larger matters than the favored issue, and an overall hostility toward, any w/ the temerity to question their views.

        1. Sure, the state should be allowed to delay abortions until the crisis is past. But then, the state should also be required to push the gestational age deadline beyond which abortions are prohibited forward by the same amount of time as the mandated delay. So (for instance), if your state forbids abortions after the 20th week of pregnancy, and your state shuts the abortion clinics down for five weeks in order to deal with the virus, then women who were forced to delay their abortions should be allowed to get abortions up to 25 weeks, not 20 weeks, in pregnancy. Extend the abortion deadlines just as states are extending the tax-filing deadlines and the expiration dates of drivers licenses.

          1. Does this include fourth trimester abortions?

          2. That would be quite fair—if we had no interest in gestational age as a measure of fetal development. Alas, this is not the case. If abortion is impermissible past a certain point in development, it does not become permissible because an abortion was not available at a time it would have been permissible.

      2. The choice not to exempt abortions even though there is a time limit with respect to that procedure that doesn’t exist with respect to other “elective” procedures is pretty obviously trying to take advantage of the crisis to interfere with the right to an abortion.

        1. There is no “time limit” for an elective surgical abortion anymore than there is a “time limit” for any other elective surgical procedure. A person can always get another abortion next year. Just like they can get a hip replacement next year, to enable them to walk again. “Elective” procedures… Not life threatening.

          1. What a woman who is denied an abortion by this trick should do is: get hold of some thalidomide, take it, give birth to a thalidomide-baby, and turn it over to the government (leave it at a “safe-haven drop-off point” in her state), and let the government pay for its care and upbringing. Her body, her choice.

            And then she should do the same next year.

            And the year after that.

            1. Women already ARE doing that — they’re just using Opiates…

    2. Right.

      The justification given is just more BS from a bunch of sanctimonious assholes.

      1. One of the most common pages in the anti-Choice playbook is to require doctors who perform abortions to have admitting privileges at a local hospital. These laws have no medical justification in terms of danger to the patient; there are not similar requirements for other medical procedures of comparable risk; they are only passed in states where politicians use government power to force a woman to carry her pregnancy to term.

        They are a transparent sham. Every word said to promote and defend these laws is a lie. Isn’t that the same case here?

        1. “These laws have no medical justification in terms of danger to the patient”

          I’d say at least one of two patients would benefit from abortion restrictions.

          1. The fetus is not a patient in an abortion. In medical parlance, “the patient” means the one whom the doctor has been commissioned to help. That’s not the fetus.

    3. Why do we pretend that the ‘right’ to an abortion has anything to do with the Constitution?

      As a purely judge created right, it receives a much higher degree of judicial protection than lesser rights which are merely explicitly guaranteed by the text of the Constitution. Accordingly I expect this rule to be swiftly overturned.

      1. Brett Bellmore: As to your first sentence, you can take whatever views you want — but judges are bound by the Supreme Court’s decisions interpreting the Constitution, and lawyers who are trying to win lower-court cases or predict court decisions are practically bound by those decisions as well.

        1. Yep.

          And I might add, there’s no other way. The American public is never going to get together and appoint Brett Bellmore to resolve all disputes under the Constitution.

          There is a group we do rely on to resolve at least most such disputes- and it says there is a constitutional right to an abortion. They count; Brett doesn’t.

        2. Bound by precedent…not as much as we would like, if one looks at the post Heller/McDonald landscape in the Circuit Courts.

          1. If the opinions were as manifestly against precedent as you say, the Supreme Court would have already acted; they do not lack for vehicles to do so.

            1. Not as I say, but those who have looked at it quantitatively. One good like is this article: https://dlj.law.duke.edu/2018/09/second-amendment-4/

              That said, the only time the Supreme Court did act, until Trump was elected and replaced Kennedy, was to tell MA that stun guns are protected by the 2A.

              You may be surprised to learn that lower courts felt comfortable applying intermediate scrutiny where the Court provided no clear guidance, and that the Supreme Court follows the election returns.

        3. Respectfully, Professor Volokh, SCOTUS has and does reverse itself, most recently on the Constitutionality of Sodomy Statutes. Hence there are lawyers who argue against existing SCOTUS precedent, in some cases (e.g. Thurgood Marshall) the arguing attorney wound up on SCOTUS himself.

          A brief list:
          West Coast Hotel v. Parrish
          Keyishian v. Board of Regents of the University of the State of New York
          Lawrence v. Texas
          Loving v. Virginia
          Citizens United
          Mapp v. Ohio
          Brown v. Board of Education

          1. That’s a thing the Supreme Court can do. It is not something lower courts can do on their behalf.

          2. …and NAACP lawyers didn’t just jump into court and say, “Plessy v. Ferguson is clearly wrong, just overrule it!”

            Instead, Portia-like, they exploited the ambiguities in the Plessy decision itself. “You say separate facilities are OK so long as they’re equal? OK, here’s a bunch of cases where we can show that the separate facilities are *not* equal.”

            Then, after a bunch of cases like this, and with a change in the political climate, the judges were ready for the idea that the separate but equal doctrine, contrary to what the *Plessy* court promised, kept leading to unequal results, and was incoherent and not worth preserving.

            Exploiting the loopholes and ambiguities in an unsound decision, thus exposing its unsoundness…that sounds like a useful path to take.

            1. ACLU did with the sodomy statutes.

          3. Dr. Ed: As I think I mentioned, “Perhaps the Court will reverse itself on this, but for now lower courts are bound by the law as the Court has set forth.”

            1. Prof, you sound like you’re saying that Roe is “super-duper precedent,” when it’s not, that’s a laundry detergent.

              That’s okay, I wouldn’t want to take sides in this anyway, and saying that lower courts follow higher courts is a mostly true thing to say. But lower courts disobey higher courts all the time, particularly when the higher court changes course sharply, and especially when a long used “prong test” or some other court created evaluation criteria is discarded for something else on a subject. There is quantitative analysis on this, and the Friday circuit court round up is full of such examples.

    4. You are correct, but it goes both ways. The political left is using the crisis to try to prevent new gun ownership (by closing stores or suspending backgrounds checks) and to push pretty much their entire “wishlist” of agenda items in a single stimulus bill

      FWIW this is something pro-gun people have been saying for years: That universal background check laws can be manipulated to effectively ban all gun ownership by simply ceasing to perform the checks

      1. I agree that the government cannot impose restrictions so onerous that it is impossible to buy a gun during the crisis.

        But note, guns are a lot more widely available than abortions. Plus it is possible to ship them. Thus, closing a gun store doesn’t burden the right in the same way closing an abortion clinic does.

        1. I don’t think you know the law about how gun sales work, they can only be shipped dealer to dealer, and picked up by consumers, at a dealer.

          That said, guns have a different purpose than abortions, not to mention one is a durable good and the other a “service” so comparing their comparative prevalence is a red herring.

        2. Uh, where do you think its possible to ship guns to? They have to be shipped to gun stores, who then have to conduct a background check before transferring them to the ultimate purchaser. NJ has ordered the stores closed (so they can’t receive the shipment or conduct the transfer) and have also stopped processing backgrounds checks, making it impossible to buy a gun in that state

          1. That’s not entirely so. Anyone can ship a firearm to a Federal Firearms Licensee (FFL) (including a Type 3, Collector of Curio and Relics license, as long as the firearm satisfies the criteria of C&R). It doesn’t have to go to the store, just the licensee.

            1. Sure, I can ship a gun back to the factory for work on it, but the factory can’t ship it back to me when they are done, it has to go to FFL for my pick up. Basically, any consumer purchase, or in my example, return, has to go through an FFL. If I am selling a gun, I can’t ship it person to person, nor can I loan a gun and ship it to another person unless an FFL is involved or I violate the law.

              The point being, is that you can’t exchange online sales as saying that’s “just as good” as in person sales, because online sales still require a FFL and a physical store.

              1. “Sure, I can ship a gun back to the factory for work on it, but the factory can’t ship it back to me when they are done, it has to go to FFL for my pick up”

                That has not been my experience, with either repaired normal guns or NFA items. Maybe it’s a state law thing.

                Just to be clear, an initial purchase is different – you can’t mail order from Sears 🙂 or Bud’s and have UPS bring it to your door. I’m speaking of a manufacturer (or any gunsmith, I think) returning a repaired/customized gun, or returning a like model for one that couldn’t be repaired.

                1. The only time I did ship a firearm for service, it was through a FFL, but I’m not clear that that is necessary. However, I believe I was wrong.

                  According to the text of the 1968 GCA:
                  “(a) It shall be unlawful—
                  ” (1 ) for any person, except a licensed importer, licensed manu-
                  facturer, or licensed dealer, to engage in the business of importing, manufacturing, or dealing in firearms or ammunition, or in the course of such business to ship, transport, or receive any firearm or ammunition in interstate or foreign commerce;

                2. Correct, a firearm can be shipped directly back to the owner after servicing at a factory

            2. Most people trying to buy a gun right now don’t hold a C&R (and most guns they want to buy aren’t C&R items) and any shipments to a licensee have to go to the address listed on the license, which would typically be the address of the retail store. Yes, there are the “kitchen table” FFLs that operate out of a home, but my understanding is they are still considered businesses under these orders and required to cease operations unless exempted

      2. The contours of the rights are different because the associated actions are different. Different timelines, people, burdens…

        Those trying to compare the two are being willfully simplistic in their generalizations in order to get that sweet double outrage from two rights, each incorrectly sized for their worldview.

    5. No, they’re treating like things alike, and I don’t have a problem with that. They are saying “no elective surgeries” and an abortion (legally) is an “elective surgery” — QED it’s being treated fairly.

      Now if they were to JUST say “no abortions”, you’d have a point — much like PA said “no gun sales” while permitting other sales to continue. But that’s different.

      Personally, I think the Ohio rule will be struck down on the basis of the “…without undue risk to the current or future health of a patient” basis because “health” includes “mental health” and that is whatever a Voodoo Scientist wants to say it is.

      Also interesting is what New Hampshire is proposing — a mandatory 14-day quarantine for anyone entering the state — when it is physically impossible to enter New Hampshire (by land) from the rest of the Continental US without going through NH.

      That’s definitely impeding interstate commerce, with another state (ME) being harmed. It’s also going to cut off a LOT of Canadian imports of potatoes, softwood lumber and toilet paper — much of which comes down either I-93 or I-95, both of which go through New Hampshire.

      Yes, one could detour via the TransCanadian Highway and come down I-91 through Vermont, but that can involve hundreds of extra miles (a lot of Canadian trade comes through Calais and takes Route 9 to I-95 in Bangor) and then involves going through the mess that is Hartford, CT.

      And what’s also not widely known outside of New England is that New Hampshire has no sales tax — all three adjacent states have one — and hence the first few miles into New Hampshire on all three sides consists of densely packed retail.

      1. “No, they’re treating like things alike, and I don’t have a problem with that. They are saying “no elective surgeries” and an abortion (legally) is an “elective surgery” — QED it’s being treated fairly.”

        The law in its majestic equality prohibits both rich and poor people from sleeping under bridges.

        Abortion has a time limit that other elective surgeries don’t. And lawmakers know this- they are simply doing it this way to give you that talking point.

        1. Cancer and gangrene don’t also have time limits? Really.

          1. Doctors are forbidden from dealing with cancer and gangrene?

          2. Cancer surgeries, and treatments of gangrene, are much, much more demanding, complicated, and dangerous, than abortions. Not all elective surgeries are equal. It’s very silly to say that an abortion, which is usually less dangerous than taking a shot of penicillin (literally), should be subject to the same restrictions as removing part of someone’s intestine which includes a tumor, or, as amputating a gangrenous leg,

      2. “…much like PA said ‘no gun sales’ while permitting other sales to continue.”

        I’m a resident off PA and can tell you that your’s is a selective recitation of facts. Those “other” sales don’t include liquor, because the state operates liquor stores and has closed all of them. One can still purchase beer and wine, though with a somewhat limited selection in grocery stores, which do remain open. There many, many other products that can’t be purchased in state because the business that sell them are all closed by quarantine requirements.

        Below you say that surgery for cancer and gangrene are not “elective.” I know two people with grave malignancies who have had their major interventional surgeries indefinitely postponed because their highly competent surgeons have decided the prudent thing to do at this point is to postpone. If they thought it was in their patients’ best interests to go ahead now with surgeries they definitely require, no sane person (pro-lifers?) would ask whether those surgeries were “elective” or not.

        Also, some here seem not to appreciate that a small number of elective terminations of pregnancy are done in hospitals, the vast majority of them done on an outpatient basis, and a very, very small number of them require any hospital services before or after their procedures. So no increased demand on hospitals complicating the response to the current crisis.

        [[]Dr. Ed[</b], are you a physician, or are you a "doctor" like "Rev." Arthur Kirkland is a "reverend"?]

        1. He’s a Doctor of Intergalactic Environmental Psychology, like Dr. Smith on “Lost in Space”.

    6. You are correct. And it is the same with gun stores. Using an emergency to shut down things you don’t like.

      Sophistry abounds. Meet the new boss. Same as the old boss.

      I’ll sit here with popcorn watching and taking jabs which nobody listens to, so mired are they in their political pseudo-religions, convinced the other side are hellbound dupes, if not outright demons.

  2. Are they also forbidding women from going to see doctors for prenatal care? In America, carrying a pregnancy to term usually involves many more doctor visits than an abortion does.

    All of which is to say that it’s good for the forced-birther scum that gods and Hell don’t exist, because they should be burning there.

    1. A pre-natal visit does not involve a need to protect the MD from the patient’s blood (and there is no shortage of gloves). The mask is intended to protect the MD from inhaling blood, a protocol from the days of AIDS (which people still do have). So to the disposable gown.

      And the pre-natal visit is often more of a time-urgent basis because in some times an IMMEDIATE abortion is necessary to save the woman’s life.

      1. And what about the actual delivery?

        Are you really saying that providing pre-natal care, which sometimes does involve complications, and the delivery use fewer medical resources than an abortion?

        1. I’m thinking they are saying that the actual delivery can’t be delayed — and that’s usually not a surgical procedure but instead something that happens if the doctor is there or not…

  3. “The main justification given by both states for this temporary ban is not the risk that the interaction between patients and clinic personnel will risk spreading coronavirus. Rather, it is that the pandemic “has created a shortage of personal protective equipment needed to protect health care professionals and stop transmission of the virus,” and that this equipment should be saved for only the essential procedures.”

    What kind of PPE are we talking about? I’ve never had an abortion, but for the surgeries I’ve had, IIRC, the people in the OR were wearing plain old cloth surgical masks. While those may be in short supply, I can’t see that shortage persisting – unlike N95 masks, sewing cloth ones isn’t. Heck, if you told me I only get surgery if I bring masks, I’d fire up the sewing machine, and I’m not much of a seamstress (tailor??).

    FWIW, our dentist has canceled routine cleanings, but is open if you break a tooth or whatever. That seems smart. Likewise, Planned Parenthood should probably cancel annual PAP smears, but not abortions. My wife reports she read an article that a woman who was scheduled for cervical cancer surgery had it canceled as non-essential. IANADoctor, but that sounds a little off to me.

    1. First, those plain old cloth surgical masks are, in normal times, primarily for the protection of the patient, not the health care provider. They capture spittle, coughs and sneezes. Remember that during surgery, the staff can not stop to rewash their hands at ever cough.

      Second, to the extent that they are protecting the staff, the primary risk is blood-borne pathogens. Cloth is fine for that. Anything that stops you from inhaling the inevitable splatter is sufficient. Those masks do next to nothing when the risk is airborne pathogens.

      Yes, even in normal times, there is a chance that your patient is a carrier of some airborne pathogen. Doctors and nurses can, in theory, catch things from their surgical patients. In normal times, that chance is very, very low. The odds right now are different.

      So, no, stitching up some cloth surgical masks is not going to meet the medical need.

  4. Comment section on this one is going to be lit….

  5. Am I right in thinking that the Mann Act still prohibits women in Texas or Ohio from evading the ban by going to another state or country for an abortion?

    1. jdgalt1: I’m not sure that it ever did, and I’m pretty sure it isn’t so interpreted today. (There have been bills proposed recently in Congress that would ban interstate travel to evade the abortion requirements imposed by the state of residence, but I don’t think they ever passed.)

      1. Didn’t the Mann Act involve the person doing the transporting and not the woman herself? Or is that just the way it was enforced?

  6. In the wake of the current epidemic, I would say that such limitations on elective, non-life saving procedures is entirely warranted.

    We have already seen hospitals basically end “elective” procedures like knee replacements, hip replacements and more. These are procedures which have a profound effect on people’s quality of life. These bans have extended into “elective” procedures to remove some types of cancers and tumors. These are items which may have long term consequences on people’s health.

    In light of these bans, a ban on elective abortions which may use PPE and critical doctor’s time and care is entirely warranted. I cannot rationally tell a patient “We’ve decided to delay your surgery to remove your cancerous tumor because it’s not that bad…yet, but we need the PPE and doctor time in order to perform an elective abortion on this other person”. It just doesn’t work.

    1. Would you consider someone 19 weeks and 6 days pregnant seeking an abortion to be elective? Because at that point, unlike other elective procedures, it cannot be (legally) delayed (at least not in TX)

      1. Yes. It’s an elective procedure. It is not life threatening if it doesn’t occur.

        1. So would you be alright permanently cancelling other procedures like hip replacements. IE, you don’t get them later, you get them never, because even though being wheelchair bound puts more strain on the medical infrastructure, it does it later so that’s OK.

          That’s where abortions are fundamentally different from other procedures, they can only be put off for long until the option becomes moot and you have a de facto ban on abortions

          1. Not having an elective abortion never killed anyone. (That differs from an abortion literally required from needing to save the mother’s life).

            Meanwhile “elective” procedures like stent replacements are already being paused. And not getting a stent CAN kill people.

            1. Well, it depends. If the health-care system is still overwhelmed or in a shambles when the woman gives birth, then giving birth might well threaten her life or long-term health, if she needs a c-section and cannot get one.

        2. “It is not life threatening if it doesn’t occur.”

          I’m not sure a literal ‘life threatening’ is the right criteria. Consider, for example, a detached retina. It’s not remotely life threatening – if you wait you’ll be blind but very much alive. Immediate care may make the difference between losing a lot of function, of very little, if you have a stroke.

          I’d suggest ‘life altering’ might be the better test.

          Similarly, someone mentioned births elsewhere in the thread. Women have been have babies fairly successfully without medical care for as long as we have been a species, but I don’t think I’d institute a blanket ‘have your baby at home to make room for covid patients’ policy. Some women may elect to do so, perhaps viewing their home as safer, but some won’t, and there will be difficult deliveries. Pregnancy is partly elective to be sure, but this pandemic wasn’t really predictable 9 months ago. Care for covid patients ought to be balanced along with the care for everything else.

          1. Life threatening IS the correct criteria. Doctors in Italy are being forced into triage already with older patients being denied care.

            1. We’ll have to disagree – if we are forced to make the choice, I value e.g. the sight of a 20 year old over the life of an 80 year old. You hold the opposite view.

              (FWIW, I’m a lot closer to 80 than 20)

              1. I value e.g. the sight of a 20 year old over the life of an 80 year old

                Sounds like a bad Twilight Zone episode.

                Mr. Scratch appears. “I’ll give you a choice. You will date that 20 year old, but a random 80 year old dies.”

                1. I think “sight” meant vision. If you had to choose between an 80-yo dying or a 20-yo going permanently blind………..

              2. That gets into all sorts of fun discussions….

                Sorry, you’re 60, but have some healthy kidneys there. We’re going to take them for this 30 year old.

                1. ‘Any kind of triage due to limited resources in an emergency leads directly to mandatory organ harvesting’ seems a pretty extreme slippery slope argument.

                  1. Lawyers and philosophers worry about a slippery slope.

                    Ronald Reagan’s female employees might have worried about a gipperly grope!

        3. If the legal of definition of “elective” does not include abortion, then the rule will outright prohibit some abortions and fly in the face of binding SCOTUS precedent.

          1. Bah, gun stores were closed, and courts ruled keep and bear has no meaning without right to buy, and therefore to sell, if we are concerned with violating the Supreme Court.

    2. What if it were shown that carrying to term used more needed medical resources than abortions? Would you require abortions, or insist that pregnant women deliver at home, by themselves, with help only from family members living at home?

      Not performing an abortion doesn’t make the pregnancy go away, you know.

      1. Well, no, but not performing a elective abortion will generally not result in a birth for 3-6 months, so it certainly delays the use of medical resources.

        1. Which of course is the entire purpose of the current idea. Preserve current medical resources.

      2. If you’re talking about a very early term RU-486 abortion, I’ve got no issue. That doesn’t require medical resources.

        But people are making the very real choice to delay cancer surgery now, which will require far more medical resources later. Does that help answer your question?

        1. Most people feel that later-term abortions are more tragic or more abominable than earlier-term ones. I’ve never really understood why. If you were a fetus right now, wouldn’t you want your life to be as long as possible, just as already-borns do?

    3. These are procedures which have a profound effect on people’s quality of life.

      Not more than having a child. And they can be delayed a few months.

      1. What’s worse…not being able to walk at all, being moribund in a wheel chair for months because your hip doesn’t work. Or being pregnant?

        1. What’s worse, being wheelchair bound for a few extra months, or having to raise an unwanted child for 18+ years, with all the financial burdens and hardships that might entail for the typical abortion-seeker

          1. Luckily there’s an easy and simple solution there, called “adoption”

            1. Which is not nearly as easy or as simple as you seem to think, and usually results in spending your entire childhood bouncing around various foster families. But of course you don’t care as long they get born

              1. See what you did there, you shifted the burden from the parent to the child. But, you would just kill them off the child, as opposed to having them potentially bounced around foster families? Nice.

                Oh, BTW, there’s a very long waiting list for healthy newborn children for adoption in the US.

                1. Which is why I said you don’t care as long as they are born, fuck them after that. Better for them to be born and suffer than have a pregnancy terminated, right? At least your conscience will be clear

                  1. The one where Kevin recommends termination of foster kids because that’s worse than death. Real compassionate, Kevin.

        2. “…not being able to walk at all, being moribund in a wheel chair for months because your hip doesn’t work.”

          moribund: “at the point of death”

          Do you know any orthopedic surgeons who have ever done a hip replacement on a moribund patient? I’m sure I don’t.

          Now, tell us, if you will, whether you were OK with both “elective” and non-elective ones that comport with Roe v. Wade before the current crisis, or you are a confirmed “pro-lifer.”

    4. Gotta love the ‘in my considered opinion, my ideological preference turns out to win again.’ So objective!

      1. To be more clear and less snarky: your comment drew a bunch of arbitrary lines and pretended those were disinterested judgements. It’s a fine opinion, but it’s certainly not a disinterested one.

    5. Sure, as long as you’re willing to waive the limit on which gestational age abortions can be done. You want to make the women delay her abortion a certain amount of time (call it “T weeks”) for the virus-crisis to resolve before she has it? OK. But then if your state forbids abortions later than a certain gestational age (call it L weeks), you must allow these delayed abortions to be done later up to gestational age L plus T weeks. That’s only fair. Delay the cut-off deadline just as we are delaying evictions, tax-dates, and drivers’ license expiration dates.

      1. Which still runs into a problem if the crisis goes on longer than expected and L + T > 40. Better to just let abortions proceed normally

  7. I can think of a great way to reduce the death toll of the Coronavirus.

    Redefine “human being” as “a healthy individual under 70.” Then the death rate among human beings will hopefully get much smaller.

    And that solves the problem of sacrificing the interests and convenience of healthy young and middle-aged people for the sake of the unhealthy and the old. We define the problem out of existence.

    1. Oh my, you are cynical!

  8. There is no constitutional right to an abortion. Period. There IS a junky SCOTUS decision that created a general right to privacy and then reasoned that that made abortion a right. But that decision is as “good” as Plessy v. Ferguson (and both are drawn from the 4th Amendment).

    It totally ignores the right to life (Amendment XIV, Section 1) of the child. Until the the constitution is amended to specify exactly at which point in a person’s development they become a protected entity, we must treat all such entities as protected.

    1. 1. 14A only restricts what government may do. It does not restrict what individuals, such as a woman and her doctor, may do. It does not stop you, or me, from depriving someone of life, liberty, or property. The federal and state laws against murder, kidnapping, false imprisonment, and theft, do that.

      2. The human right to life does not include a right to do whatever you need to do, nor to be wherever you need to be, nor to take whatever you need to take, in order to remain alive. Especially when what you need to take is part of the contents of another person’s bloodstream when she does not want to share it with you, and when where you need to be is inside another person’s body when you are unwelcome there, and when what you need to do is to subject another person to a major medical/surgical trauma/stressor/insult (such as childbirth) against her will. There is no right to live by doing these things, and should be none, for anyone. Not for you, not for me, not for Tarzan in a tree, not for Larry, Curly, or Moe, not for Luciano or Plácido. And not for any unwelcome fetus.

      1. I trust you also oppose child support laws.

        Oh, you don’t?!?

        1. I don’t know about Mr Toad, but I oppose child support laws. If we are going to take the position that its a woman’s choice (and the woman’s alone) to carry or terminate a pregnancy, then she should get to shift the financial burden of that decision to someone else

          To extend Mr Toad’s 2nd point, it falls under the right to bodily autonomy. Even if we determine that a fetus carries all the rights of a fully developed human from the moment of conception it still doesn’t override a woman’s right to bodily autonomy. If I’m dying of kidney failure, and you are the only person who is a match to donate, I still can’t force you to donate a kidney, even if it means I’ll die, because your right to bodily autonomy is greater than my right to live in this case.

          And before you say it, the argument that a woman chooses to have sex (and therefore “chooses” to risk pregnancy) is nothing more than a red herring born of the same victim-blaming mentality that dismisses victims of crime for choosing to live in bad neighborhoods, or rape victims for choosing to dress provocatively

          1. shouldn’t get to shift the financial burden

            Curse the lack of an edit button

        2. Child support laws don’t require anyone to allow access to the insides of his or her body. So, no problem!

      2. Assuming for the sake of argument that ThePublius is correct in his assertion that a fetus is a person entitled to protections provided by the 14th Amendment, does it follow that the Equal Protection clause requires a state to treat the killing of a fetus the same as it does the killing of any other person?

        1. Arguably, yes — and that’s how I think Roe will be overturned….

          1. Wouldn’t The Publius’ argument imply the Court must go even further and require the states to outlaw abortion and prosecute women who have abortions as first-degree murderers?

  9. How about this argument:

    If a woman is pregnant now, and does not get an abortion or have a miscarriage, then she will be giving birth in a few months. The virus itself may or may not have blown over by then, but even if the virus has resolved, the health care system will almost certainly still be swamped or devastated by the medical fallout. In such circumstances, ANY childbirth will be significantly dangerous to the woman and to her baby; the only reason childbirth is currently as safe as it is is because of our excellent obstetricians and birthing centers and women’s hospitals.

    Therefore, at this time, every abortion should be regarded as potentially life-saving (THE PATIENT’S life).

  10. There is just no way government can ever legitimately ban religious gatherings like this. Government cannot violate the rights of people who sincerely believe that the fate of their immortal soul takes precedence over what happens to their corporeal body. That’s their choice to make, not the government’s. At most they could fully quarantine people who choose to go to large church services, allowing them only to leave their house to go to the service.

  11. ” justification given…it is that the pandemic “has created a shortage of personal protective equipment needed to protect health care professionals”” — permitting some abortions won’t worsen this shortage more than does permitting hoarding of N95 masks, which is permitted.

  12. If people want to engage in risky behavior (like skydiving) or even suicidal behavior (like not taking precautions against the coronavirus) then let them. Just don’t skydive where you might land on someone when your parachute fails, and don’t go anywhere you might infect someone with your virus.

    I wore a motorcycle helmet for years before it became a law and I wore one for years afterward not because it became the law but because I am not invulnerable. Because I wore a helmet it does not mean that I either approved of the law or thought it was constitutional.

    Let natural selection take its course, and don’t try to pretend that unconstitutional infringements on our freedom are constitutional.

Please to post comments

Comments are closed.