Abortion

Texas Federal Court Blocks Restrictions on "Non-Essential" Abortion Procedures, Texas Asks Fifth Circuit to Reverse

|The Volokh Conspiracy |

Josh Blackman links to the briefs; here is the heart of Judge Lee Yeakel's decision blocking the restrictions:

[T]he court finds that Plaintiffs have established a substantial likelihood of success on the merits of their claim that the Executive Order, as interpreted by the attorney general, violates Plaintiffs' patients' Fourteenth Amendment rights, which derive from the Bill of Rights, by effectively banning all abortions before viability. See Planned Parenthood v. Casey, 505 U.S. 833, 848-49 (1992). The Due Process Clause of the Fourteenth Amendment to the United States Constitution protects a woman's right to choose abortion, Roe v. Wade, 410 U.S. 113, 153-54 (1973), and before fetal viability outside the womb, a state has no interest sufficient to justify an outright ban on abortions. Roe, 410 U.S. at 163-65; see also Casey, 505 U.S. at 846, 871 (1992) (reaffirming Roe's "central principle" that "[b]efore viability, the State's interests are not strong enough to support a prohibition of abortion").

Under the attorney general's interpretation, the Executive Order either bans all non­-emergency abortions in Texas or bans all non-emergency abortions in Texas starting at 10 weeks of pregnancy, and even earlier among patients for whom medication abortion is not appropriate. Either interpretation amounts to a previability ban which contravenes Supreme Court precedent, including Roe. Previability abortion bans are "unconstitutional under Supreme Court precedent without resort to the undue burden balancing test." States "may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman's right, but they may not ban abortions."

The State Defendants well describe the emergency facing this country at the present time. They do not overstate when they say, "Texas faces it worst public health emergency in over a century." The Executive Order, as written, does not exceed the governor's power to deal with the emergency. But the attorney general's interpretation of that order constitutes the threat of criminal penalties against those whose interpretation differs. Yes, the attorney general is not the enforcer of those penalties, but many of those who are charged with enforcement are named as defendants in this action. The court takes notice that the opinion or notion of the attorney general as to the breadth of a law, even if expressed informally, carries great weight with those who must enforce it.

Regarding a woman's right to a pre-fetal-viability abortion, the Supreme Court has spoken clearly. There can be no outright ban on such a procedure. This court will not speculate on whether the Supreme Court included a silent "except-in-a-national-emergency clause" in its previous writings on the issue. Only the Supreme Court may restrict the breadth of its rulings. The court will not predict what the Supreme Court will do if this case reaches that Court. For now, the State Defendants, and perhaps the others, agree that the Executive Order bans all pre-fetal-viability abortions. This is inconsistent with Supreme Court precedent. Plaintiffs have demonstrated a strong likelihood of success on the merits of their action.

For my post from Wednesday (feels like months ago) on this subject, see here.

Advertisement

NEXT: Location, location, location -- and the virus

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. Assuming the abortion derived from right-to-privacy legerdemain is valid:

    Shouldnt a temporary ban on all elective abortions (excluding cases where the life of the mother, or more generously severe birth defects are at stake) for the duration of the crisis be constitutionally valid?
    Elective surgeries are being postponed due to the need for medical personnel and resources to confront this pandemic. These operations might present a higher risk of transmission as well.

    If 1st Amendment rights to assemble are legitimately curtailed, why cant this class of abortions be put on hold? Even though the shelter-in-place orders impinge on the 1st Amendment in a way that could only tortuously be described as narrowly tailored, few would deny the compelling government interest which catapults them over the strict scrutiny hurdle.

    One can say that the orders leave alternative channels for those who would wish to assemble, whether for political or religious purposes (zoom conferences or social media posts) whereas an abortion ban, albeit temporary, may permanently foreclose that opportunity. This argument would only hold sway if we place abortion rights on the same plane as the First Amendment

    1. No. Any such “temporary” ban is effectively a permanent ban. This is not the same as delaying cosmetic surgery by a few weeks.

      1. what about delaying cancer surgery a few weeks? Cataract removal a few weeks?

        1. I would have clarified that “Any such ‘temporary’ ban is effectively a permanent ban” for that person. Once delayed, options start coming off the table. With that clarification, no you cannot force all people to delay cancer surgery – and to the best of my knowledge, no one is. Cancer surgery is not being treated as ‘elective’. But yes, you can delay cataract removal. Delaying a few weeks does not, in any scenario I can think of, preempt the possibility of doing the same surgery later.

          1. Yes, some people are having cancer surgery delayed.

            https://www.medscape.com/viewarticle/927568.

          2. “You can delay cataract removal”

            To an extent…There are real risks with delaying it, increasing complications, reducing vision. Delaying it can result in reduced vision as a result.

            “When the cataract is very advanced, complications may develop and the lens can become more unstable. Surgery would then significantly increase the risk of complications and reduce the success rate. The recovery is much longer and the visual result is likely to be poorer.”

            https://www.mountelizabeth.com.sg/healthplus/article/cataract-removal-don-t-wait-till-it's-too-late

            1. It depends on how high the stakes are. Some forms of cancer surgery can be delayed without creating too much of a risk; others can’t. I generally disagree with Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf but this time he’s right on the money; this is the functional equivalent of a permanent ban, with lifetime consequences. Plus, get real: This is primarily an excuse for Texas authorities to do what they always do, which is make abortions harder to get.

              1. Consequences last for all on 9 months at most. After that, the child is born, and can be given up for adoption. 9 months, then done.

                Compare that to the lifetime consequences of losing vision and going blind, or the cancer progressing further and losing a breast, or the heart stent being delayed, and a heart attack occurring.

                Let’s treat this what it is…a massive public health crisis that is requiring ALL elective surgeries to be delayed, even those with medical necessity. Abortion is not being singled out, it is being treated as every other elective medical surgery is being treated. Everything is being delayed or cancelled to preserve resources for the urgent public health crisis.

                To treat abortion differently basically says “Despite the public health emergency, despite critical equipment and resources needing to be reserved for those who are dying, we are going to CONTINUE to use these resources for an elective, non-medically needed procedure, even if it means we have less critical resources to treat those who are dying.

                1. If you cannot admit there is a difference between delaying an abortion and delaying other elective surgeries, you must be pretty damned dumb to think other people are so damned dumb as to believe that you are just ignorant or naive.

                2. Ask any woman who’s been pregnant. It’s a nasty, uncomfortable, painful condition. The birth process is excruciating. There’s always a risk of complications. Plus, a woman who’s had an abortion is not going to spend a lifetime wondering what became of her baby.

                  If you want to make the argument that public health requires that those circumstances be subordinated to a more important public health goal, make that argument. But your discounting of the real trauma faced by women just ignores their reality.

                  1. “Plus, a woman who’s had an abortion is not going to spend a lifetime wondering what became of her baby.”

                    On the other hand, there are a lot women who spend a lifetime wondering what would have become of her baby.

                    1. Joe, that’s called buyer’s remorse, and abortion is far from the only context in which it sometimes happens. But that some later regret choices they made is not an argument to deprive people of their choices, just because you think you can make a better choice for them.

                  2. “spend a lifetime wondering what became of her baby”

                    No, she will spend a lifetime realizing she killed her baby.

                    Much better.

                  3. You know what else is a “nasty, uncomfortable, painful condition”? Not being able to walk. Because your hip doesn’t work. And aaving your hip replacement delayed…indefinitely…because it’s elective. And that’s also what we’re delaying.

                    As for your argument “If you want to make the argument that public health requires that those circumstances be subordinated to a more important public health goal, make that argument”

                    Here was my argument
                    “To treat abortion differently basically says “Despite the public health emergency, despite critical equipment and resources needing to be reserved for those who are dying, we are going to CONTINUE to use these resources for an elective, non-medically needed procedure, even if it means we have less critical resources to treat those who are dying.”

                    1. If the hip were being delayed for 18 years — the amount of time that the woman is going to be responsible for a child she didn’t want to have — you might have a point.

                3. Consequences last for all on 9 months at most.

                  Isn’t that argument foreclosed by Planned Parenthood v. Casey?

      2. Any such “temporary” ban is effectively a permanent ban.

        And a “temporary”” ban on attending funerals is not?

      3. A friend had his hernia operation postponed “indefinitely.”

        A long-distance runner, he’s had to stop running “indefinitely”, and now in his 60’s, reality is that he’s not going to be able to rebuild his distance to what it was afterwards.

        But murdering babies is a sacrament, not a medical procedure….

        1. Yes, it comes out, the real reason so many people think abortion should be delayed until impossible.

          IANAL, but it’s always been my impression that one of the hallmarks of a lawyer is being able to take any case regardless of personal feelings.

          You fail.

    2. You just gave a textbook example of why analogizing from one right to another doesn’t work.

      Abortions, unlike assembly or travel, have a hard time limit. You can’t wait out the crisis and then have the abortion. (Especially since SCOTUS allows bans on postviability abortions.)

      Rights are different, and therefore the scope of protection is different.

      1. They certainly do have a time limit. If a certain amount of time passes. You don’t get to kill the baby..the horror THE HORROR

        1. There is no baby. It’s a fetus.

          1. Fetus is from the Latin for “offspring”.

            Do we have “fetus showers” or say “I am having a fetus” or “when is your fetus due”?

            You just use “fetus” as a way to salve your conscience.

            1. For at least the first trimester, it lacks the single most crucial component of personhood, which is consciousness. That’s what separates not just a fetus from a person, but persons from most other living organisms. (I do not mean consciousness in the sense of being awake and alert; I mean it in the sense of self awareness.)

              1. Dehumanizing by language no matter how you parse it.

                1. Bob, you are entitled to your own philosophical views about what is, and is not, a person. There is no public consensus that agrees with you, and millions of other people disagree. More to the point, the biologists disagree. If you think abortion is sinful, don’t have one, but don’t make those choices for others with different ethical and moral views.

                  1. Some things are wrong even if biologists and millions of people think they are right.

                    Are fetuses human or not?

                    1. The question is not whether they are human, but rather whether they are persons. Cancerous tumors are human but they’re not persons. An amputated limb is human but not a person. My fingernail trimmings are human but not persons. Is a fetus a human life form? Yes. But it’s not a person.

                      But why should everybody else be compelled to follow your view of what is wrong? For things like murder (of people who clearly are persons), burglary, rape and extortion, there is no need for the legislature to sort out competing views of morality. The mere fact that they disrupt society is sufficient to ban them. That’s not the case with abortion.

                    2. A tumor is an invasive “infection”. A leg is just apart.

                      “The question is not whether they are human, but rather whether they are persons. ”

                      That’s not the question. Its a human being as even you grudgingly admit. We protect, not kill, innocent humans.

                      “That’s not the case with abortion.”

                      Nothing has disrupted society more than abortions since Roe.

                      All laws have moral basis, even laws against murder. Murders of blacks by mobs in the Jim Crow South was only murder in theory, the practice was they were not considered murders.

                      Like you, southern whites didn’t see a subsection of humans as persons worthy of protection.

                    3. Bob,

                      A tumor is not an “infection” as you claim. It consists of human cells that are replicating at a rate that is harmful to the whole. But it isn’t any sort of external infection. The cells are directly derived from human tissue, exactly unlike an infection.

                      A leg is just a part (not “apart”). Sure. But a blastocyst is not a “whole” human either, and I assume you believe it is murder to intentionally destroy a blastocyst. So, you have the same problem in relying on “aha! It’s human!” A leg is not a whole human, neither is a blastocyst, which doesn’t even have one leg.

                      “We protect, not kill, innocent humans.” Word games (which also leaves wiggle room for anti-life criminal punishment).

                      “Nothing has disrupted society more than abortions since Roe v. Wade”

                      Be serious. How long have you been quarantined? Covid-19 is far more disruptive to society than abortions which happened both before and after Roe. And that’s just today something disruptive happening today. (If by “disruptive to society” you actually meant inflamed an intense political backlash that the GOP has ridden for all the political mileage it can get which ultimately resulted in the election of such incompetents as Bush II and Trump, then say that. But don’t say untrue things to disguise what you really mean.)

                      You are avoiding the question and assuming your conclusion when you continually refer to a potential human as a human. A blastocyst is not a human being. There is reasonable debate regarding when an embryo or fetus becomes a human, but just saying any collection of cells containing human DNA is a human being is obfuscating, not illuminating. Or, if you disagree, then be honest, make that argument, and stop making dishonest analogies to Jim Crow (like, wtf?).

                      But, of course, you want to argue about walking, talking, fully conscious human beings rather than a collection of undifferentiated cells, because you aren’t interested in having an actual discussion. You just want to assume your conclusion and engage in unearned moral preening. Gross.

      2. Theres a time limit for virtually everything, if you’re not allowed to purchase a self defense weapon. Your family could get slaughtered next week. If you’re not allowed to exercise your right to speech it could be the thing that pushes Drumpf to reelection within a few months. Abortion doesn’t exist by itself in some x dimension where it alone is affected by time.

        1. In other threads you may have seen I think both speech and RKBA survive the pandemic. Assembly rights tend to give way though.

          1. Being able to kill babies will probably survive as much as those other two things and unlike those other two rights this one is expanding rather than contracting over recent years so I don’t get your point or the hysteria.

          2. The true distinction between speech and the RKBA on the one hand, and abortion on the other, is that the former are actually guaranteed by the Constitution, while the latter ‘right’ was pulled out of the Court’s collective nether orifice.

            Ironically, this makes it even more secure than the real constitutional rights, because the judges are much more concerned about preserving their own handiwork than actual law.

            1. Brett, OK, I’ll bite. Where does the Constitution permit a ban on abortions?

              See, since the word “abortion” appears nowhere in the Constitution, whether on the one hand it’s a right, or on the other hand its something the states can ban, has to be determined by resort to other, more general principles. Since there are lots of things the Constitution doesn’t mention by name — the Internet, the Air Force, drivers licenses, marijuana — that’s true of a lot of constitutional interpretation. Which means that both you, who thinks Roe v. Wade was wrongly decided, and I, who think Roe’s bottom line was correct even if I don’t agree with everything in the decision, each rely on other, more general principles to reach our conclusions.

              You’re entitled to your opinion of abortion, and also your opinion as to the proper method of interpreting the Constitution. But please stop pretending that your way is the One True Path, and the rest of us are pulling stuff from our nether regions.

              1. please stop pretending that your way is the One True Path,

                You don’t know Brett very well, do you?

              2. “Brett, OK, I’ll bite. Where does the Constitution permit a ban on abortions?”

                Easy: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

                The Constitution permits a state ban on abortions, by the simple expedient of not prohibiting it.

                1. Ah, but you’re assuming it’s not prohibited to the states by the Fifth and Fourteenth Amendments, to say nothing of the Ninth. The Ninth, by the way, explicitly states that rights do not have to be specifically enumerated.

                  Now, my intent is not to resolve which interpretation is correct, so much as to show that reasonable minds can — and do — differ on how to interpret. Your interpretation isn’t facially absurd, but neither is mine.

                  1. On that line of argument, we have virtually no guideposts for determining what unenumerated rights are shielded from state intervention and which aren’t. Why isnt Lochner liberty of contract (or some milder form of it as prof Bernstein has proposed: right to pursue a lawful occupation) included in this but abortion,, gay marriage, euthanasia, prostitution (as ginsburg once suggested) is?

                    In every area of law there is some wiggle room where a judge can shoehorn in their policy preferences. The discretion is at its max in this right-to-privacy realm. There is no limiting principle, nothing to constrain a hubristic majority

                    1. Sam, all three branches of government are guilty of hubris from time to time; I myself think it requires an incredible amount of hubris for the legislature to tell people whom they can have sex with, or that they must continue an unwanted pregnancy, or that they can’t end their own lives. And yes, I would also find a right to pursue a lawful occupation.

                      So the real question is which branch needs a limiting principle the most. I think there’s no real question that’s Congress.

                  2. The 9th amendment I understand to preserve rights which were understood to exist at the time of its ratification, but which were not enumerated because it didn’t occur to anybody at the time that they needed to be. It was not a blank check to the judiciary to invent new rights as they saw fit.

                    Which is what they did with abortion. It was a crime in half the states, and the fact that some of the states had recently repealed such laws didn’t license the judiciary to up and declare it a right.

                    1. Brett,

                      It wasn’t so much that “it didn’t occur to anybody at the time that they needed to be” it was that they recognized that any list would necessarily be under inclusive and so they very much wanted the Constitution to reflect the fact that there were rights that governments could not trample on, no matter what a bare majority of the legislature wanted. Implicitly, this meant courts would have to decide what those rights were. As Krychek pointed out, there is reasonable disagreement as to what rights should be recognized that aren’t specifically protected.

                      Shorter version, Krychek is right.

                    2. I do not share your understanding that the Ninth only protects rights that were recognized at the time of its ratification. Neither do a great many constitutional scholars. Again, you’re entitled to your interpretation but don’t pretend there’s not a legitimate counterview.

      3. Fair, but at some level of abstraction cross-right analogizing can be helpful.

        I guess I am saying is that since abortion is an implied right it should be subjected to a less probing standard of review which would countenance the temporary ban (i.e.:the total foreclosing of the rights exercise) assuming the govt can make an evidentiary showing that said ban serves its compelling interest (and that it isn’t arbitrary, i.e.: other elective procedures are banned).

        1. The problem with that argument is whether a right is enumerated has nothing to do with how broad it is. Parental rights, not enumerated, are broad, the Third Amendment, enumerated, is narrow. The Fourth

          1. and Sixth Amendments occupy a middle ground.

          2. “The Fourth”

            Is effectively dead.

      4. “Abortions, unlike assembly or travel, have a hard time limit.”

        I disagree.

        People die, and it’s damn hard to assemble with them or to travel to be with them after they are dead. Even beyond that, there are lots of once-in-a-lifetime events (e.g. weddings) that have an even harder time limit than an abortion, in that one is either permitted to attend or one is not.

        And while one might be able to express free speech about this November’s election next spring, it will be moot because of the hard time limit of November 3rd.

        1. A hard time limit (abortion) is different than a soft time limit which depends on the individual.

        2. Dr. Ed,

          Shoehorning in the fact that people die does not convert every right into a right with a hard time limit. Your point about assembly, generally is not valid. Weddings do not, in any sense, have a harder time limit than abortion. Because prohibiting abortions have an irrevocable time limit, weddings do not. A wedding can be delayed to permit others to attend. A wedding can be live-streamed to permit people to witness. And having a ceremony after the official wedding is not, generally, an unreasonable alternative. There are no such alternatives with respect to abortion. The fact that you tried to argue that weddings have “an even harder time limit than an abortion” undercuts whatever point you were trying to make.

    3. Apparently Abortion is literally the most important thing in the universe. This is not even really hyperbole. Abortion outweighs our most fundamental constitutional rights (there’s a reason they are the 1st and 2nd amendments), other medical procedures, and even the risk of a viral pandemic wiping out civilization that was strong enough to curtail these previously sacrosanct bedrock rights. You cannot arrive at any other conclusion following these people’s logic.

      1. One thing to remember in all this hyperbole is there is no actual evidence that allowing abortion clinics to operate in a pandemic will spread the virus or interfere with treatment.

        That’s something pro-lifers say, but, they don’t actually present any evidence of it.

        1. More likely, keeping abortion clinics open during the crisis will SLOW the spread of the virus. A woman who cannot get an abortion in her state will be very strongly motivated to travel to another state where she can get one. A trip out of state will require more pit stops, more encounters with more people, than a trip to a local clinic would require. She might even have to travel by air. And if she ends up keeping the pregnancy, it will likely require more visits to more health care providers than an abortion would require.

          What the pro-life states should do is suspend any requirement for more than one visit to get an abortion, and (obviously) any requirement of a waiting period between such visits. States should also be promoting non-surgical, “telemedical” abortions as much as possible. Now is not the time to be mandating extra exposures via requirements which everyone knows have no medical justification at all.

          1. You can literally extend that to everything. Religious services, lobster fishing, concerts. So you’re basically arguing we should go back to normal. Heck I guess we have one of those Drumpf supporting rightwing coronovirus hoaxer conspiracy theorists here.

            1. Going to a concert or a religious service potentially spreads the virus wherever it occurs, so the analogy to forcing travel to obtain an abortion makes no sense. It is absolutely true that taking measures that force people to travel is counter-productive, at least as far as coronavirus is concerned. If your main motivation is curtailing abortions, then it’s a different story.

        2. There is no direct evidence that banning gatherings of >2 people or similarly low numbers or preventing people from going to the beach regardless of the crowding level or any one of the billions of dumb rules we already have floating around and you don’t care about prevents covid spread but here we are.

          1. America will benefit if you keep your uninformed opinions, disdain of science and expertise, resentment of the credentialed and properly educated, and other personal faults to yourself during the pandemic.

            You likely will be able to resume your anti-social, inconsequential right-wing ranting without jeopardizing Americans in a few months.

            Thank you.

        3. On top of which, it’s not clear that the ban would conserve medical resources. No abortion means there will be a birth, with attendant demands on resources, including occasional high demands from various problems that can arise.

          Texas seems to be operating in a universe where banning the abortion makes the pregnant woman disappear.

          1. ? I’m curious as to how a birth 4-7 months from now will result in less medical resources in the current period of crisis.

            1. Google “prenatal care.”

        4. … there is no actual evidence that allowing abortion clinics to operate in a pandemic will spread the virus or interfere with treatment…

          There is no actual evidence that ANY of the increasingly fascist things that our tin-horn despots are banning will spread the virus or interfere with treatment.

          But I’m sure the “no actual evidence” will work great for an out-of-state driver who refuses to stop for the RI State Police on I-95. And unlike the word “abortion”, the words “full faith & credit” actually appear in the US Constitution.

          1. “And just what exactly are you a doctor of, Mr. Venkman?”

          2. Dr. Ed : “….the increasingly fascist things that our tin-horn despots are banning….”

            Note Dr.Ed is against tin-horn despots and all their banning ways. That is, until those despots start controlling a woman’s womb by the power of the State. Then our Ed becomes pro-despot in a second.

      2. Since the first two (of the twelve) articles submitted to the states for ratification were:

        Article the first… After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

        Article the second… No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

        and were not promptly ratified, by your logic, the founders thought that these were even more important than “Article the third” (which became the First Amendment) and “Article the fourth” (which became the Second Amendment).

        So, since “Article the second” was finally ratified as the 27th Amendment 200+ years later, I assume you think the 27th Amendment is higher priority than any other Amendment?

        1. I don’t get your argument. If there was some weird rough draft out there I’m obviously not including it. You might as well argue against the gay rights lobby because they used to have open pedos in the clubhouse before they kicked them to the curb for the obvious image problems.

          Also I’m making a loose symbolic argument that roughly applies not literally saying they literally implemented a formal rigid unchanging mathematical formula based on position.

        2. So, since “Article the second” was finally ratified as the 27th Amendment 200+ years later, I assume you think the 27th Amendment is higher priority than any other Amendment?

          The Critical Legal Theory folk believe something similar — that the 14th Amendment superseded the 1st Amendment because it came ~70 years later. I disagree, but they do preach that.

          1. Of all the problems with claiming that the 14th amendment superseded the 1st amendment, that is actually the least problematic, since if anything in the 14th amendment actually did contradict the 1st, its coming later actually WOULD say that it superseded the 1st.

            Which is actually the case: The 14th amendment override’s the 1st amendment’s restriction of its protections to Congressional actions, by making the states subject to them, too.

          2. I don’t think “superseded” is the right word, but there is a fairly standard rule of interpretation that if you have two provisions in conflict, the more recent one is entitled to the greater weight since it represents the more recent views of the legislature. However, there’s another rule that says that specific language controls over general language, which I think might also apply here.

  2. If SCOTUS were to take up this case; is there anyone on the bench, other than Justice Thomas or Alito, perhaps, that would read such an “…Except during a national emergency.” exception in?

    1. Gorsuch would probably vote with Thomas and Alito. It would be 6-3.

      1. You might be surprised by RBG — an abortion advocate, she has long said that _Roe_ was a bad decision because abortion should have been a political instead of legal decision. Remember that when _Roe_ was decided, half of the states (and where 3/4 of the population lived) had already legalized abortion via the democratic process (although not all of the laws had taken effect yet).

        RGB has had more than a few health problems, I doubt she’d look at less important than an abortion — and hence might just agree with Texas….

        1. Look at cancer surgery as being less important than an abortion — particularly as she’s just had cancer surgery and may need it again in the near future…

          1. The issue isn’t the importance of the surgery. It’s the scope of the constitutional right.

    2. Probably all of them would read such an exception. Without such a reading, you could have a thousand people dying and needing an immediate hospital room. But if someone showed up and demanded an abortion, she would get priority over all the people who were dying.

      1. Nothing in the right to an abortion would prevent immediate triage if there were ” thousand people dying and needing an immediate hospital room” and triaging in such a situation does not require a blanket ban on all abortion procedures, so the ban fails immediately on the grounds of not being narrowly tailored

        1. Texas’ argument is that there WILL BE “a thousand people dying for want of a hospital bed” — and allegedly is happening in Italy right now…

          We can argue if this is a rational fear or not (I argue it isn’t) but if the state can defend the basis of the pending emergency, can it not act now so as to abate it?

          For example, if there is an earthquake and the offshore bouys & sensors detect an incoming tsunami, can the state start evacuating the beaches *now*, or does it have to wait until the wave arrives?

          Seriously, we have such bouys & sensors deployed offshore, we could have an hour or two of warning and (with accurate charts of the bottom) a fairly accurate estimate of how high it will be when it breaks on the shore. Can the state act now, or must it wait until people have been washed out to sea?

          1. When lawmakers are making triage decisions, especially in this kind of political arena, it’s not actually a triage decision.

            Don’t pretend that it is.

  3. So what’s going to happen when there is no such thing as ‘before viability’? It will be a while still but we’ve made quite a bit of progress with artificial wombs.

    Personally I think that after viability, wherever it is, abortion should be barred outside fetal defect/severe genetic abnormality but the right to have the fetus removed, then incubated, and surrendered for adoption with total termination of rights and obligations, should be substituted.

    1. Sure, as long as the right-to-lifers are willing to pay for the costs of the transfer, incubation, and adoption. The requirement should come with a special selective tax which only right-to-lifers pay, to cover the additional costs.

      1. I’d be up for that if libs agreed to foot the entire bill for the felons, welfare recipients, illegals, and all the extra junk they exclusively want. Fair is fair.

        1. Wait. You want liberals to pay for the costs associated with Gen. Flynn? Michael Cohen?? Deeply conservative welfare recipients, who make up a large percentage of Deep-Red states? Have you thought through your proposal?

          1. You mean General Flynn the pro-life Democrat?

            1. Yes, Gen. Flynn, the convicted felon, pathological liar, anti-democracy, pro-life Democrat. That’s the one. (Was there any doubt we were talking about the same person?)

      2. “Sure, as long as the right-to-lifers are willing to pay for the costs of the transfer, incubation, and adoption.”

        Do you have any idea of how much Opiate Addiction is costing us?

        Of course, if we were to return to the moral standards of the 1950’s, we wouldn’t need as many abortions in the first place….

        1. Ah, yes ….. Moral standards in the age of Jim Crow…….

    2. “So what’s going to happen when there is no such thing as ‘before viability’? It will be a while still but we’ve made quite a bit of progress with artificial wombs.”

      We crossed that Rubicon 20-30 years ago — most third-trimester premature babies live, while third trimester abortions are still performed. I believe that there are second trimester babies who have grown to become healthy adults.

  4. So, it’s important to understand where the “constitutional right” to an abortion came from, the logic used, and how that applies to the current situation, especially if arguments come before the Supreme Court.

    The “Constitutional Right” to an abortion came from the 14th amendment, the “right to privacy” and through that “The right for a woman to do what she wants with her body”. OK, fair enough. This “right” came about because of the controversial nature of the procedure.

    Now, let’s extrapolate a little here. What is different about an abortion, compared to in vitro fertilization? Both are procedures that a woman undergoes. Both involve her body, and her right to privacy. But in vitro fertilization was never granted a “constitutional right” only because it was never considered a controversial procedure.

    There are a host of other medical procedures…cataract surgery, some cancer surgery, heart stents, kidney donations, dental procedures, angioplasties…that are all considered elective (but medically necessary) procedures, that are all being delayed or stopped due to the current crisis. Delaying these procedures will have a real medical cost for their patients, but it has been determined that due to the crisis, it is needed. All of these procedures should be covered by a patient’s right to privacy and right to do what they want with their body.

    Abortion may be a constitutional right, like the 1st amendment right to assembly. But it is not an unlimited right. In times of emergency, certain rights can be restricted, as the right to assembly is restricted today. All other elective medical procedures have been suspended. Abortion, as an elective procedure should fall with it. To hold out abortion as special, perhaps even above urgent life-threatening needs, is not in keeping with the spirit of the constitution.

    1. I think you’re working from some bad data. To the best of my knowledge, heart stents, kidney donations, angioplasties and almost all cancer surgery is still being treated as essential – that is, not elective. Even cancer screenings are still being treated as non-elective. (My wife kept an appointment just yesterday to get two suspicious moles checked out.)

      About the only procedures on your list of examples that are being delayed are cataract surgery and minor dental procedures. There are few to no medical consequences to delaying those procedures for a few weeks.

      Abortion is not special “because abortion”. Abortion is special because the decision not to is irreversible..

      1. “To the best of my knowledge, heart stents, kidney donations, angioplasties and almost all cancer surgery is still being treated as essential – that is, not elective.”

        Depends on the state and where you are. If you’re in NYC….I guarantee they are being delayed.

        1. Cite?
          (I’m not saying you’re wrong. I’m just saying that I am having difficulty finding reliable evidence of it.)

    2. “The “Constitutional Right” to an abortion came from the 14th amendment, the “right to privacy” and through that “The right for a woman to do what she wants with her body”. OK, fair enough”

      No.

      The 14th Amendment mandates that the state protect the “life, liberty, & property” of everyone — particularly of the weak from the strong. That’s why we have domestic violence laws.

      So you have two unique individuals (different DNA) — mother and baby. Mother wants to murder baby because the baby is “inconvenient” and because it would “hamper her lifestyle.” (That was _Roe’s_ argument.)

      OK, don’t you think the pregnancy is also “inconvenient” to the father and that the pending 18 years of child support will “hamper his lifestyle”? It definitely will. So why can’t he murder the mother? He’s bigger & stronger than her, much as she’s bigger & stronger than her baby — what’s the difference???

      1. Given that you think it is murder, how should the law treat a woman who has an abortion?

        1. How does the law treat someone who kills a person in a coma, who may never wake up?

          1. If you take a pillow and smother the person, I’m pretty sure the law treats you as a murderer. If on the other hand, you withdraw externally-provided life support such as a ventilator or a feeding tube, the law can give you a pass.

            1. Does this argument by analogy inform you of anything, might I ask?

              1. If for the sake of argument an abortion of a pre-viability fetus is considered the withdrawal of externally-provided life support, then such an abortion isn’t murder?

                1. Not insofar as the one on life support is considered a separate a distinct person, regardless of their ability to sustain their own life or not.

                  1. I’m not following your argument. What do you think your analogy informs us of?

  5. All rights must bend to the virus except for abortion.

    Its a super duper right.

    1. The Left likes to think that, but SCOTUS just might not agree…

      Imagine _Roe_ being reversed by a decision written by RGB — I can see her writing what she has always said, that abortion is a political question that SCOTUS should never have ruled on and hence while she may not agree with the decision reached by the State of Texas, it has every right to exercise its police powers for the common good as it sees best.

      And that the redress for those aggrieved is to join her at the ballot box….

  6. Good. Keep those abortion clinic open, the world needs less black and brown babies, amiright?

  7. On a related note, I saw a news report today that Ohio abortion clinics are refusing to obey the order to shut down.

    1. Where are the rule of law zealots now?

      1. Busting protesters in front of said clinics when they gather in groups of ten or more.

      2. You mean the people carping about illegals?

        Or the ones saying maybe you should stay in during a pandemic? Because I’m not sure the argument there is about the sanctity of the law…

        1. The law in Ohio currently mandates closures of abortion “clinics”. The order has not been stayed by a judge as far as I know..

          So, they are breaking the law. QED

Please to post comments

Comments are closed.