Abortion

Eighth Circuit Reinstates Arkansas Rule Delaying "Non-Medically-Necessary" Procedures, Including Most Abortions

But the ban might still be blocked as to women who are far enough along in their pregnancies that delaying an abortion would make it illegal.

|The Volokh Conspiracy |

The Arkansas Department of Health, like agencies in some other states, has issued an order putting on hold all "non-medically-necessary" surgical procedures (defined as ones that are "immediately necessary to protect the life or health of the patient") including surgical abortions; medication abortions appear to still be allowed. The justification for the postponement of the procedures is "a need to preserve existing PPE [personal protective equipment] resources and limit social contact among patients, healthcare providers, and hospital staff."

A district judge blocked the ban as to abortions, but was reversed by today's Eighth Circuit decision in In re Rutledge (written by Judge Bobby Shepherd and joined by Ralph Erickson, with Judge James Loken dissenting without opinion). The opinion largely follows the logic of the Fifth Circuit opinion (In re Abbott) that reached the same result, and particularly sharply condemns the trial court for ignoring Jacobson v. Massachusetts and for reversing the order categorically as to all abortions.

But the opinion leaves open the possibility that there would need to be exceptions from the Department of Health order for those abortions for which postponement wouldn't just be a delay but a denial—those that are near viability. Indeed, in the Fifth Circuit case the trial judge reissued an order protecting those abortions, and the Fifth Circuit has kept it in place, at least at this stage of the litigation. We'll see what happens in the Arkansas case.

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  1. I see the government’s insidious agenda here. It talks of protecting the health of the public, but it’s true goal is to protect the lives of unborn human beings, which is totally different.

    1. Similar to the orders trying to close gun stores, with the difference that the 2nd amendment actually IS in the Constitution.

      But, yeah, it’s pretext all around.

      1. BB +1

        Meanwhile my mom’s heart surgery, which thankfully she had the day before they shut everything down, would have been considered “elective” according to her doctor had they not squeezed in under the wire.

        And btw, can we stop taking Dan Patrick completely out of context? Oh wait, that’s the playbook. Never mind. Sort of like PDT who never said the virus was a hoax, etc.

        1. He said it’s a hoax. Maybe he meant the virus as pandemic. Maybe he meant the reporters truthfully reporting it as a pandemic while the president thought it would be no big deal. Either way; a remarkably stupid thing for any president to say. And while you think we all should give the president the benefit of the doubt, I think it’s perfectly reasonable to assume that the president meant the former, and not the latter. But I love that you are so open-minded and charitable that you give Trump the benefit of the doubt. I have no doubt that you’d be equally generous with a President Hillary Clinton, Joe Biden, etc.. God willing; we’ll have a chance to test out my hypothesis come next January.

          1. Holy Crap. Consumers of left-wing media still think Trump called Corona-virus a hoax?

            1. He said, “This is their new hoax.”, and we both agree he said it in context of analogizing to the Dem’s successful attempt to impeach him. But, you either believe that Trump speaks English well enough or he does not. Back before the impeachment, Trump kept calling the impeachment proceeding a hoax. I did not, and do not, think that is a correct usage of ‘hoax.’ A hoax would have been if the Dems promised to hold impeachment hearings and then called them off suddenly, for some ulterior motive. I always understood hoax to mean something like “a deception.” The impeachment was the EXACT OPPOSITE of a hoax…the Dems did exactly what they said they would do in the House. On the other hand; when the R’s in the Senate promised to do a thorough and fair trial, *that* could have been called a hoax, of course. That’s using the word correctly.

              It was not a big deal at the time. When Trump said that the impeachment was a hoax, we all understood that what he was trying to convey was that the impeachment was B.S., or was being done in bad faith, etc. But none of these equals a hoax, of course.

              When reporters quote someone accurately and ask him if he has any response, he often says that they are doing “fake reporting.” This also is obviously untrue…the reporting is real and accurate. A fair criticism might be that the person quoted had been lying or mistaken.

              Given that Trump does not understand the word ‘hoax’ and does not understand how to use it correctly in a sentence, I guess I am puzzled by your absolute certainty about what he meant re Covid-19.

              1. “..and we both agree he said it in context of analogizing to the Dem’s successful attempt to impeach him…”

                Consumers of left wing media think that the effort to impeach Trump was successful? Wow.

                1. Well, technically… “impeach” = “charge”, and they did get him charged. Then he was acquitted, of course, but they don’t like to think about that part.

                  1. Sort of like California’s successful attempt to prosecute OJ Simpson, I suppose. He was indeed prosecuted.

                    1. You’re not a lawyer, and it’s showing. The House knew all along that the Senate would not convict. You and I and every single conservative and liberal political commentator knew the Senate would not convict. The House wanted to show America what Trump had done. And–to the extent that Trump’s legal obstruction of justice allowed–it did do that.

                      I don’t mind that the Senate did not convict. I think it is better that voters make the decision re removing any president. But I do wish that there had been 3-4 Republican senators with the integrity to vote to allow witnesses. Ah well.

                      I think that most people thought that OJ would be convicted, and that he *should* be convicted. So, no, I think you’re wrong that anyone ended up with the feeling that the prosecution was successful. Your point might have made some sense if the House had attempted to impeach but ultimately was unsuccessful in that attempt, rather than successful.

                    2. What the Democrats in the House wanted to do was put an asterisk next to his name. They got it.

                      At the other end of the asterisk is a footnote reading, “Impeached on a straight party line vote, and promptly acquitted.”

                    3. Brett, if you thought the President had done something very wrong, impeachably wrong, but you knew you couldn’t remove him, you wouldn’t still go through with the process, just to get it on the public record?

                      Because you don’t seem like someone who is very against tilting at windmills elsewhere…

                      Also, way to elide Senator Romney.

                    4. “Impeached on a straight party line vote, and promptly acquitted.”

                      Acquitted on a straight party line vote with the exception of one Republican vote for conviction.

                      I mean, if you want to sneer at the makeup of the vote let’s be fair about it.

                    5. “Also, way to elide Senator Romney”

                      Senator Delecto, (R-Romney) has largely elided himself at this point.

                      “Brett, if you thought the President had done something very wrong, impeachably wrong, but you knew you couldn’t remove him, you wouldn’t still go through with the process, just to get it on the public record?”

                      Sure. The problem here is that Democrats wanted to impeach Trump before he took office. If I said I wanted Obama impeached out of principle, but had been talking about impeaching him before he took office, how seriously would you treat my alleged principles?

                      You’ve been convinced since he dared to win the election that he was impeachable, all that happened last year was that you finally lowered the bar enough to find an acceptable excuse.

                    6. I do like no true scottsmanning bipartisanship. When you’re committed to partisanship, I guess you do what you can to maintain that narrative regardless.

                      Up to and including continuing to insist impeachment was done in bad faith. Based on the usual nutpicking, if even that.

              2. Comparing the Wuhan Virus to the Black Plague, as the media was doing, was a hoax.

                1. And Trump comparing the Trump Virus to the annual flu was a hoax. What’s your point? That any time someone says something incorrect it’s a hoax??? What a maroon. (Intentional Bugs Bunny reference)

      2. No, it’s really about tin-horn fascist despots — some who lean left and some who lean right — but they still are tin-horn fascist despots and the thing the left doesn’t understand is that in supporting us, their own agenda is also supported..,

    2. What I find ironic is the Right’s insidious agenda seen in full flower nowadays. Perhaps its best spokesman is Texas Lt Governor Dan Paterick, Republican. He simultaneously believes Grandma & Grandpa should take one for the team (because what’s a few extra old people measured against second quarter GDP), while also believing every zygote is a cherubic soul blessed by heaven.

      It you didn’t already see how “Holy Righteousness Standards” tighten considerably when the subject is a woman’s body, these last few weeks have been highly instructive

      1. We’re not in lockdown to save grandma and grandpa. We are doing that to keep from overwhelming hospitals causing even more deaths.

        Keeping vulnerables in retirement homes safe is a separate effort only tangentially related, and relies on building herd immunity in the long run.

        1. Grandma and Grandpa are more likely to die if hospitals get overwhelmed.

          1. A, no – or at least, no more than anyone else. And b, hospitals didn’t get overwhelmed. In hindsight, there was virtually no chance that they’d get overwhelmed.

      2. Look, I’m 61, and I’d rather not die. But if it came down to lifeboat rules, I’d expect to take one for someone younger.

        Mind, we’re nowhere near lifeboat rules at this point, and doesn’t look like there’s a real prospect of it. I wouldn’t call this pandemic a nothingburger, but there have been worse pandemics in living memory.

        1. Brett Bellmore : Look, I’m 61

          Finally! Something in common…….

        2. I don’t know *exactly* how to balance the need to restrict potentially unhealthy conduct with the need to restart the economy. So I can’t say if this Patrick guy is right or not.

          I know there *are* competing interests at stake, and yes, sometimes people need to take certain risks. In fact I don’t think that’s in doubt (I presume people use the roads despite the risk of a fiery violent death in a car wreck). The question is what sort of risks are too many right now? And in what direction do we err in taking risks, since either way is risky.

      3. “Perhaps its best spokesman is Texas Lt Governor Dan Paterick, Republican.”

        You can judge his remarks for yourself, as quoted in Snopes:

        https://www.snopes.com/fact-check/patrick-more-important-living/

        But I’m curious – assuming for the moment that this Patrick guy said some horrible nasty thing, what makes him “the best spokesperson?” Even in Texas, he’s the Lieutenant Governor, not the governor, so he’s not even the “best spokesman” for Texas, much less other states which never voted for him.

        Scott (“Dilbert”) Adams discusses certain tropes of online “debate” in his book *Loserthink,* and one example is picking some dumb guy on the other side who said some horrible nasty thing and making him or her into the Official Spokesperson for that side’s position.

        1. That’s absolutely a fair point. Both sides do it; both sides do it equally; and it’s equally annoying to me as well when anyone does it. When right-wing nuts bring up AOC as an official spokesperson for liberal Democrats, or for all Democrats, or for Clinton/Biden supporters, etc . . . it’s sort of the same thing. Both are elected officials, so their words do matter. But to ascribe their occasional dumb comments to other of their ilk? Nope.

          1. I had actually considered mentioning AOC, but I wasn’t sure if people on her “side” would be offended on her behalf or not.

            Anyway, I have followed her remarks only to a small extent, and I couldn’t think of a specific quote of hers I could mock.

            1. I’m the same as you in many aspects. I like much of what she says, I dislike some of what she says, and I think a small fraction is worthy of mockery. But she’s in the group of politicians/political commentators (Lindsey Graham, Rush L, Sean Hannity, Maxine Waters, et al) where I’ve managed to build up a protective crazy-talk buffer, so all their weird comments now bounce off, leaving behind just a vague sense of unease and disbelief.

              1. Can you give us a couple of examples of things she says that you like?

                1. Actually, none comes to mind. (smile) But I do remember listening to her speak in Congress, or in an interview, or while giving a speech, and thinking, “Yeah, that’s a good point…I agree with that reasoning/value/logic.” And that’s happened frequently enough that I’m confident that I share plenty of her values. (And wildly disagree on others.)

    3. Talking about saving the lives of the unborn, while also talking about sacrificing lives to keep the economy going.

      Welcome to the right.

      1. Are you confusing me with another commenter’s version of “Don Paterick, Republican”?

      2. “…while also talking about sacrificing lives to keep the economy going.”

        You guys know the economy is what feeds us, right?

        1. Maybe but it’s worth sacrificing to beat Trump.

          1. Maybe your intimations of bad faith come from your hat and not reality.

      3. We allow just about anyone to drive their vehicles all over our roads at any time for any or no reason. This causes 40,000 deaths a year and 4.4 million injuries requiring medical attention. Is this also sacrificing lives to keep the economy going?

        1. You’re not calling for that, though, are you? You’re calling for us to ignore this virus and go back to business.

          And also saying the virus may be a biowerapon, and also bucking the numbers about how many it has killed.

          Just throwing everything against the wall, no matter how contradictory.

          1. There are only two possibilities: saving lives and ignoring the virus to go back to work. No middle ground at all. If people go back to work while wearing masks, observing social distance, washing hands regularly it’s just ignoring the virus and killing people.

            Referencing some off the wall things from kooks as mainstream ideas from people who want to begin to open up the economy may work in your circles but isn’t generally effective.

            BTW what conditions need to prevail in your view to start going back to work? No new cases? No one dying? I haven’t heard anything from the left except “it’s not time yet.”

            1. Sounds eminently reasonable. I do hate excluded middles.

              But…do you read this blog? People are not advocating for some mild differences, they’re yelling about tyrants and argue Covid isn’t really a concern at all.

              ML, who I am replying to, is arguing that we save more lives reopening the economy and letting people die of Covid rather than some speculative deaths associated with a bad economy. As though people dropping of a virus costs the economy nothing.

              And I’m not even going to mention Dr. ‘start killing people for liberty’ Ed.

              1. That’s a lot of completely made up straw men you got there, as always.

      4. Are you familiar with the carnage to unemployment statistics?

        1. Are you familiar with speculative nonsense?

          It’s pretty stupid nonsense. The virus kills people directly. A bunch of causal assumptions don’t make a similar case.

  2. At this point, predictions of hospitals in the US being overwhelmed appear to have been grossly exaggerated outside some isolated hot spots; Either a failure of modeling or a success of social distancing.

    But the fact remains that, almost everywhere, it’s not actually proving necessary to restrict what medical procedures are being done. Indeed, some hospitals and doctors are actually suffering a cash flow problem due to being so under-utilized.

    The prohibition on ‘elective’ procedures may even be costing lives, due to postponed cancer and heart disease treatments.

    Thankfully, postponing elective abortions pretty much only can save lives…

    1. There are still serious shortages of PPE needed by those treating infectious patients. That alone may be reason enough to postpone elective procedures.

    2. Most hospitals and doctors are suffering a cash flow problem. Not just some.

    3. > Thankfully, postponing elective abortions pretty much only can save lives.

      I’d like to question the logic here. Even if you believe that “saving” a fetus is morally equivalent to a preventing a born human from dying (which I personally don’t), postponing elective abortions can cost lives.

      1. If the woman is going to get an abortion anyways, which she most likely is (and is indeed is entitled to under current precedent), delaying the procedure is going to make it more dangerous.

      2. Banning abortion in a state makes it more likely the woman is going to travel out of state to get an abortion, potentially increasing disease spread.

      As you mention, justifying this as protecting hospital resources doesn’t really hold up. A Fifth Circuit judge touched on this in his dissent. It should be between a woman and a doctor to determine which procedures are essential to her health.

      1. The current maternal mortality rate in the US is running around 17.4 per 100K. The fetal mortality rate for abortions is running at over 100K per 100K. It’s very unlikely that preventing a few elective abortions is going to cost anything like as many lives as it saves.

    4. Just wondering, Brett: how many of your loved ones and friends have had abortions? It wouldn’t surprise me if you said that the answer is zero. But the reality is, you probably wouldn’t know, would you? Because — in a very real sense — you’ve taken away the ability of those close to you to have a real choice. Most likely anyone associated with you who made such a difficult, personal decision would never tell you. How does it feel to have so much power over the lives of the women in your life?

      1. “It wouldn’t surprise me if you said that the answer is zero. But the reality is, you probably wouldn’t know, would you?”

        If you asked me how many of them had committed murder and hidden the bodies, I’d say zero, too. And I probably wouldn’t know that for sure, either. I lack direct evidence any of them have done this, and such evidence as I have of their characters says they wouldn’t. But maybe they’re secretly depraved and hiding it well. And maybe you’re a cannibal. I probably wouldn’t know, would I?

        “Because — in a very real sense — you’ve taken away the ability of those close to you to have a real choice.”

        It takes a special sort of silly to write a sentence like that seriously. In a very metaphorical and indirect, and not at all real sense, you mean? Because I’m sure not placing them under any sort of constraint.

        1. No, I’m not a cannibal — rest easy. But you duck the issue as usual. That’s one way to avoid a debate, I guess.

  3. The Eighth Circuit panel failed to apply strict scrutiny to the law in question. Should be reversed.

    1. Strict scrutiny doesn’t apply to abortion cases after PP v. Casey, no? I thought it was replaced with the “undue burden” standard.

  4. I’m still flabbergasted by the extent to which abortion — a right not even enumerated in the Constitution, but mystically discerned in the penumbras — gets so much protection. And rights explicitly enumerated — like the right to bear arms — has to be constantly litigated in order to keep from getting infringed. (And is de facto infringed in states like California and New York.)

    1. Everybody is partial towards their own baby, and the judiciary gave birth to the ‘right’ to abortion. So, why wouldn’t you expect them to be more protective of it than they are of rights that were foisted on them by outside sources like the Constitution?

      1. Libertarians angry about liberty and supportive of a decision that is based on the rationale that liberty can be curtailed during times of crisis.

        That’s why I love this blog.

        1. I think the commenters are disproportionately conservatives, or Republican leaning libertarians rather than the less partisan and more principled libertarians.

    2. You don’t think abortion is constantly litigated?!

      1. Why take him seriously? If he’s not going to take himself seriously; why should we?

        1. “him” = Michael
          [Stupid lack of edit button {he wrote, for the 100th time} ]

      2. Of course it’s constantly litigated. The Supreme court imposed and maintains a legal status for abortion that’s far more ‘pro-choice’ than median public opinion, and on a topic that really gets people’s blood boiling. And they did so with scarcely a legal fig leaf.

        But for all the litigation abortion still gets a much greater degree of protection than some real, enumerated constitutional rights get.

        1. Brett,
          I dunno. There are about 400,000,000 guns in America (as of 2018…almost certainly well over that number now). And my guess is that there are about 750-800,000 abortions each years. (The number reported to CDC is reliably 625-675,000 each year, and I assume there are a significant number that are not so reported.). I think that the right to own a firearm is SO MUCH MORE protected that it’s not even close. What makes you think the opposite–that a woman’s right to control her reproductive choice gets more protection than the right to own a gun?

          In 2020, as an adult who is not a student, I have the (almost) absolute right to wear a t-shirt with any message that I want. But there are essentially zero legal cases on this subject over the past few decades. Not because my legal rights about this are low. But the opposite…it’s because my rights are so clear in 99.99993747% of cases that there are so few legal challenges to my right.

          For every criminal (who committed a non-violent felony 20 years ago, and who has been a model citizen since) who is being denied a right to get a gun and who has to go to court to enforce his 2nd Amendment right, there are 150,000 other people that week who are getting their guns with no drama and legal hassle whatsoever.

          But I’ll be interested in hearing your explanation…you often have thoughtful responses in re 2nd Amendment blogs here at the VC.

          1. “with no drama and legal hassle whatsoever.”

            Unless you think having to undergo an FBI background check to exercise a civil liberty constitutes “legal hassle”.

            Unless you think being declared a felon if you don’t destroy without compensation a legally purchased piece of property that, no, is NOT in violation of firearms laws. (Bump stocks)

            Unless you look at what’s been going down in places like NY, where they’ve arranged with the airport to be notified when a passenger traveling with checked guns ends up stranded by weather or mechanical problems, so that they can charge them with a felony when they take possession of their baggage. And run licenses to look for CCW permit holders passing through the state from one place to another, so the can arrest them if they stop to use a bathroom.

            Unless you look at DC, where having even a spent cartridge from a gun they haven’t given you permission to own is a felony.

            Unless you look at what’s been going on in California, really in too many ways to bother trying to recount in a short comment.

            So, no no legal hassles whatsover, except for all the legal hassles.

            1. Sigh. Okay, it is not that no one is hassled re guns. But with abortion, in Red states, EVERYONE (who wants that to use that right) is impacted. So, in some states, women are forced to go to the doctor for a second–completely unnecessary–visit. Not for her health, but for harassment. Women often have to take bus rides of 2 or more hours to find a provider. One or two states, I think, have only one abortion provider. I don’t think we can find a state where there is only one gun shop. (But, yes, in many places you have to show up to start the buying process, wait for the background check, and then return for a second visit.) It is my sense that gun shops are so much more common, this is less of an imposition than is having to take a long bus trip multiple times. But I don’t know the actual prevalence of gun stores, so that’s only a guess.

              I supposed that when it’s a right that is very important to us, we see any hurdle as super-important and unfair; and for rights that are not so important (or that we disagree with!), those hurdles are all reasonable. Anti-choice advocates think there is nothing wrong with making pregnant women jump through hoops, and see the obstacles as a feature, and not a bug. And anti-guy folks see all the things you mentioned re guns as very reasonable. All depends on whose ox is being gored, perhaps.

              1. Well, as I said above, there is a very important difference, which is that the RKBA is a real constitutional right, enumerated in the Bill of Rights, with a long standing history behind it, while the ‘right’ to an abortion is a judge created abomination with no constitutional or historical grounding.

                So in one case you actually are infringing on a constitutional right, in the other case, not so much.

                But I do agree that in both cases the infringement is the point, and Covid 19 is just a pretext. They’ve got that in common.

                I agree that anti-gunners see all the things I mentioned as very reasonable. That’s because they think the reasonable thing is to not treat gun ownership as a right.

                Well, in the case of abortion that’s actually reasonable, because it’s not a right. It’s just something some judges liked enough that they wanted to make it a right despite not actually having any legal basis for doing so.

                And that is an important different here.

                1. As I expected, you made reasonable points re guns, and then went off the deep end re abortion. Dog bites man.

                2. Except that abortion is also a right protected by the Constitution, but we’ve been over this before so I’m not going to repeat myself. The word “abortion” may not appear in the Constitution, but the principle certainly does.

                  1. No, it’s a ‘right’ protected by judges. Neither the word nor the principle appears there.

                    You can tell the principle doesn’t appear there, or the same judges protecting abortion would be protecting all other elective medical procedures. But somehow this right to bodily autonomy only ever applies to abortion, and goes away the moment any other medical treatment is involved.

                    1. Brett, you don’t get to say that. We have a structure that says what rights are.

                      You’re mixing up is and ought again.

                    2. I’m not sure which other elective procedures you’re talking about; my inclination would be to protect all of them absent a compelling reason not to. But even if you’re right, the fact that judges don’t go far enough in protecting bodily autonomy is not a reason to reverse such gains as have been made.

                    3. “We have a structure that says what rights are.”

                      This is a standard tactic on the left: Look for pinch points, and exploit them. Basically, you don’t care if you win dirty, so long as you win. So, why catch the fly balls and hit the home runs, when you can just corrupt the umpire?

                      The accountant says whose money it is, so if you bribe the accountant to say it’s yours, it’s not embezzlement, it’s just accounting. There’s no difference, because it’s literally the accountant’s job to say who the money belongs to, so he has the right to say it belongs to anybody he wants. Right?

                      Why amend the constitution, when you can just suborn the judges? And since the judges say what’s legal, anything they say is, by definition, legal.

                      In essence, “It’s not the people who vote that count, it’s the people who count the votes.” Because the people who count the votes tell you who won, whoever they say won, won. Right?

                      That sort of thing works, sort of. Until it doesn’t.

                    4. Finding bad faith everywhere doesn’t give you any kind of moral high-ground to endorse bad faith tactics.

                      This is a standard tactic on the left: Look for pinch points, and exploit them. Basically, you don’t care if you win dirty, so long as you win.

                      Brett – YOU ARE THE ONE WHO SAYS YOU ARE WILLING TO WIN DIRTY!

                      I know you see dirty pool in every act a liberal does, but there’s only one example on this thread of people who are willing to do violence to the law and judicial institutions to get what they want done, and it’s you.

                      Your calling the right to privacy basically embezzlement doesn’t make it any less what the law is. If you want to say it’s unjust MLK style, then you need to do civil disobedience. Just insisting that the law is what you have decided it is doesn’t make it so; it just makes you a crank who can’t tell the difference between what they want and what is actually the case.

                    5. “Brett – YOU ARE THE ONE WHO SAYS YOU ARE WILLING TO WIN DIRTY!”

                      No, I’m literally saying that the order is likely pretextual, and unjustified on it’s purported basis, and simply consoling myself that maybe a few lives may be saved.

                      “Your calling the right to privacy basically embezzlement doesn’t make it any less what the law is.”

                      The right to privacy, to the extent the Constitution recognizes one, is to be found in the 4th and 5th amendments, and has never prior to this been understood to mean that no act you do in ‘private’ (Meaning, in a public medical facility with people all around. That sort of “private”.) can legitimately be illegal.

                      Judges say what the law is, in the sense that accountants say whose the money is. Which is to say, they don’t decide the law, they explicate it.

                      So, ‘changing’ the law by persuading judges to start saying that it’s what you want it to be, without any legislative acts or statutory/constitutional basis? Yeah, legal equivalent of embezzlement.

                    6. Brett, you are saying that you yourself can’t buy into the state of the law, everyone who can must be operating in bad faith, so everyone else should as well.

                      Congrats on leveraging your own self-confidence into a complete lack of principle.

                3. By the way, here’s a thought: How about a rule that says that whenever a blue state passes a regulation to make gun ownership or possession more difficult, it has to also pass a regulation making abortion more difficult? And, whenever a red state passes a regulation making abortion more difficult, it then must also pass a regulation making gun ownership or possession more difficult? Plus, the regulations have to be balanced in such a way that both sets of rights are equally burdened. (I’m only half joking.)

              2. “Anti-choice advocates”

                Hip, up-to-date people haven’t been using the term “choice” for years.

                https://www.thecut.com/2013/01/what-should-we-say-instead-of-pro-choice.html

        2. I don’t think Planned Parenthood v Casey is too far from the public consensus on abortion. Opinions on abortion are highly dependent on how you phrase the question, and the polling on it is often contradictory. The core of Casey was that abortion in early pregnancy (before fetal viability) should generally be kept between a woman and her doctor, which I think is something with which many (most?) people would agree.

          It’s sort of the same with gun control. Most people believe in the second amendment but also want more gun control. I’m willing to guess many people believe communities should get to decide to regulate guns, which contradicts Heller.

          Plus guns are afforded more Constitutional protection than abortion post-Casey. From my understanding, guns get intermediate scrutiny in all cases and strict scrutiny in all cases.

          1. “kept between a woman and her doctor”

            The doctor decides whether an abortion is medically indicated based on whether the check clears.

            1. Eddy bases this on his own feelings.

              Yes, lets start making laws assuming most doctors operate in bad faith.

              1. Yes, indeed, these places are known for the way they turn away paying clients.

                You know how I know they don’t do this? Because if abortionists were turning away paying clients because they didn’t agree with the women or girl’s reasons for not wanting an abortion – this would have been a scandal in the media (“male doctors ask intrusive questions, refuse women their reproductive health care based on personal opinions”).

                1. Asking the wrong question. The question at bar here, is how often do doctors need to make the determination that an abortion is medically required?

                  But no, the absence of evidence is evidence of absence for Eddy!

                  1. We’re talking past each other.

                    Are you really going to claim that an abortionist will second-guess a woman who says that “I have too many children” or “the father won’t take responsibility?”

                    Are you saying that, to examine whether such an abortion is “medically indicated,” the abortionist will then discuss options with the woman, including, say, adoption? Maybe they’ll mention the adoption referrals done by the local pro-lifers?

                    No, this doesn’t pass the smell test.

                    It’s the dog that didn’t bark. We tend to find out if a pharmacist won’t sell birth control, we’d find out from the media if an abortionist or his bosses was second-guessing women on their decision to abort.

                    1. First, it’s a tell you use ‘abortionist.’ This isn’t the 1920s.

                      Second, the law does not assume blanket bad faith in a group, absent a legislative finding.

                      Third, appeal to incredulity is a fallacy.

                      Fourth, abortion doctors don’t generally need to make a medical finding of necessity, as they do here, so your speculation is operating in the wrong universe.

                    2. “Fourth, abortion doctors don’t generally need to make a medical finding of necessity, as they do here, so your speculation is operating in the wrong universe.”

                      Ah, that’s exactly my point, and maybe eventually you’ll get it. The comment I replied to said *pre-viability* abortions were between a woman and her doctor. Yes, in the sense that the woman decides whether she needs an abortion, and pays a “don’t call him an abortionist” to perform it. The “don’t call him an abortionist” – and this a point I was trying to make using sarcasm – isn’t required or expected to second-guess a woman’s reasons, but simply to take the money.

                    3. I’ll add that you ought to be especially alert to sarcasm if you’re going to use a screen name based on sarcasm.

                    4. isn’t required or expected to second-guess a woman’s reasons, but simply to take the money.

                      I don’t think this is what the OP Is talking about.

                    5. Someone on this subthread said, “The core of Casey was that abortion in early pregnancy (before fetal viability) should generally be kept between a woman and her doctor, which I think is something with which many (most?) people would agree.”

                      And technically it *is* between a woman and her doctor, in the sense that the woman decides if she wants an abortion, finds the money, and pays a don’t-call-him-an-abortionist to do the abortion (I can still call them abortions, I suppose, even if I can’t call an abortionist an abortionist).

                      But the broader suggestion, that the woman has some kind of consultation where she and the doctor both have to agree that a pre-viability abortion is needed – well, it’s no fallacy to suggest that the media would report a “man bites dog” story about an abortionist who second-guessed women and told them they didn’t need an abortion after all.

                    6. In all the reports you’ve read about “obstacles to reproductive care,” have you ever found a complaint that some abortionists second-guess the women who are trying to get pre-viability abortions?

                    7. None of the reports about barriers to reproductive care speak to a regulation like the one at bar, Eddy.

                      Your taking data you like and trying to fit it into a scenario to which it does not apply, because you like the narrative it argues.

                    8. No, there is no “scenario at bar,” there’s just me responding to the usual talking point about pre-viability abortions being between a woman and her doctor.

                      Your screen name would indicate that you can recognize sarcasm, but you can’t, at least not that I can observe.

                    9. The situation in the OP has nothing to do with what you’re on about.

                      The OP talks about medical neccessity. And in the post I responded to, you posit ‘The doctor decides whether an abortion is medically indicated based on whether the check clears.’

                      That’s not in the Casey post, so either you were randomly off topic, or you are attempting to backpedal.

                    10. “attempting to backpedal”

                      And here we come to another “debating” tactic discussed in Scott Adams’ *Loserthink* – namely, mindreading.

                      You claim I wasn’t responding to a subthread about Casey, I was *really* adding some more comments about the health regulation. You need not respond to what I said, because you can read my mind and tell what I *meant.*

              2. Back at your old shtick. You’re not 1) up on your history and 2) looking at similar situations.

                Prior to Roe, in states that only allowed abortion for health reasons, there was an increase in health reasons thus increasing the number of abortions, mostly “mental health” which is fairly dubious as a reason. That’s also been the case in foreign countries with more restrictive abortion laws I recall reading at some point.

                Also, hasn’t it been the case that, with just a bit of shopping around, the “my pain is so bad” crowd could find someone to give them opioids and there are docs that made lots of money giving out opioids like candy (i.e. the check cleared) .

                It’s called the free market and it adapts. In a couple years, if abortions were outlawed except for “health of the mother” there would be same thing, certain docs that would, like that Gossnell guy in PA, make themselves bank with an abortion assembly line. Further, there won’t be a DEA checking up on them unlike opioids.

                So, in short, real world experience, and one similar example, show it’s not speculative.

                1. Prior to Roe may not have a lot to do with today.

                  Today, in this case, speculating your way into the idea that the law should treat abortion doctors like liars is outcome-oriented reasoning, but not generally how the law works, absent a specific legislative finding.

                  The free market doesn’t have a lot to do with rulemakings by the The Arkansas Department of Health.

                  Think of what you’re arguing. I guess all regulations are going to be gotten around by spurious findings, so we might as well stop allowing fact-based exceptions to everything.

                  1. “treat abortion doctors like liars”

                    Lying about what? They’re not the ones saying women and their doctors make the decision about whether an abortion is necessary.

                    1. That’s not what this regulation contemplates, though. It talks about medical necessity. You are dead set on the assumption that doctors will use that as a rubber stamp.

                      That is not Constitutionally mandated by any abortion case. It is also not factually supported by this pretty novel situation.

                      But most importantly, it’s not how the law operates. We don’t assume doctors will not make medical determinations. The only way we would is if the legislature made a finding of fact.
                      Even if the appeals to incredulity about the lack of evidence in situations that are not comparable were somehow to all be probative in this situation, it wouldn’t matter. Because inherent in the law is the judiciary assuming institutions perform their duties in good faith in in accordance with the law.

                    2. Again – I was responding to a subthread comment about pre-viability abortions being between a woman and her doctor. Which means she decides she wants an abortion and pays an abortionist.

                      Yes, I deviated from the topic of the post, which was a public-health regulation. Someone brought up Casey and the woman-and-her doctor talking point. So I went with that topic instead.

                      And I employed sarcasm to make my point, Sarcastr0.

                    3. Eddy, your concern about doctors and medical necessity has a lot more alignment with the OP than the Casey post.

                      What was your thinking about medical necessity and Casey?

                    4. And here we come to another “debating” tactic discussed in Scott Adams’ *Loserthink* – namely, mindreading.

                      You claim I wasn’t responding to a subthread about Casey, I was *really* adding some more comments about the health regulation. You need not respond to what I said, because you can read my mind and tell what I *meant.*

                    5. Your comment has nothing to do with the Casey comment you claim to be talking about. It has a lot to do with the OP about health regulations.

                      I’m having real trouble reconciling that with your claim that your thesis is about Casey, and not about the OP.

                    6. I’m not responsible for your intellectual limitations and what you’re unable to see.

                      As I said, mindreading is loserthink. I could say you’re actually Yevgenny Jakinov, Putin-sponsored Russian troll, and you couldn’t rebut it. Or I could respond to what you actually say.

                      Or not, if your comments get too weird.

                    7. Ah. So you’ve lost, and your backup that you really meant another thing also failed, and so now you’ve gone to insults without engagement.

                      You never take the loss, but I can’t see this as other than a win.

                    8. Now that I’ve explained what *I* meant, why don’t you explain what *you* meant downthread, when you quoted me and then referred to

                      “the people I quoted who seem willing to stop abortion by hook or by crook even as they cry about rule of law when it comes to immigration and harsh sentences and whatnot.”

                      OK, then, just to give me some insight into my thought process – or at least yours:

                      -What do you think I said about immigration, and on what basis do you claim I said it?

                      -What do you think I said about harsh sentences, and on what basis do you claim I said it?

                      -What do you think I said about “whatnot,” and on what basis do you claim I said it?

                    9. Ah…I see below that upon being challenged, you abandoned your claim altogether and switched around to a new accusation – anarchism, I think.

                      I think I can guess which beer you drink:

                      http://yellowbellybeer.ie/wp-content/uploads/2017/10/MindReaderSquare-600×600.jpg

                2. What’s changed with the U.S. economy between Roe and today that the market won’t react to provide a good or service? If anything, it’s more capable of responding today than in 1973 to provide abortion, considering how flexible it is now with good/services compared to 1973.

                  Again, it’s not speculation…it’s real world examples (other countries, US prior to Roe, and Gosnell) and one similar situation to argue by analogy. You use the word speculation to try to weaken the argument, but wrongly.

                  You do have one thing right. I am saying that if there is a demand for something, then a market (black or not) will find a way to provide for it. Is that not what the pro-abortion crowd has been saying forever? It not like we don’t have, again, real world experience with these things. Again, it’s not speculation.

                  And stop with the argument ad absurdum fallacy. If I say that government regulations are often subverted, that doesn’t mean that we can’t regulate anything.

                  1. m_k, your argument about markets applies to literally every regulation. You are way overproving your case. Your logic is not limited to abortion, and I don’t need to ad absurdem – you do it to yourself.

                    The judiciary doesn’t take into account market incentives, it assumes people will follow the law.

                    Your real world examples are rank anecdotal narritivism. Confirmation bias makes bad law. Which you seem kinda into, I guess.

                    1. Yes, exactly. Supply and demand applies to every good and service. Funny that I see a pro-abortion commentator now saying that if abortion were illegal, people *won’t* try to get back alley abortions. Because that’s what your saying.

                      The judiciary does indeed take markets into account, because they use the market to implement some of their decisions when the executive branch won’t do it. Abortion is number one prime example…after it was made legal, and hospitals mostly said that they won’t do it…the market created abortion clinics.

                      The Courts expect people to follow the law…what a joke. Courts know that they have not the power of the purse, or the sword, so they often make narrow decisions or stick to bossing lower courts around. This is basic Hamiltonian least dangerous branch stuff here. Thought you would know this by now.

                      My real world examples are abortion prior to Roe, other countries, and also in medicine. Sorry bro, but your handwavy dismissal shows your bias. You’re not even offering a counter example, which is kinds sad, I guess.

                    2. People may get back alley abortion if abortion were made illegal. But that’s not really an argument they make for why pro choice is Constitutional, it’s an argument they make about why pro choice is good policy.
                      You, on the other hand, are making a constitutional argument about the constitutionality of the regulation here.

                      The Courts expect people to follow the law…what a joke.
                      Sorry, but the law assumes good faith. I can’t find the cite right now, but it’s a neccessary assumption for any society that’s not a police state, as a moment’s thought will reveal.

                      Sorry bro, but your handwavy dismissal shows your bias.
                      Using Gosnell to stand for abortion doctors generally actually shows your agenda is something other than the truth.

                3. I was responding to a subthread comment about pre-viability abortions being between a woman and her doctor. Which means she decides she wants an abortion and pays an abortionist.

                  Yes, I deviated from the topic of the post, which was a public-health regulation.

                  1. You keep saying that…but why then did you go off about medical necessity?

                    1. Unless you’re referring to one of my sarcastic comments, I’m not sure what you’re on about.

                      And here we come to another “debating” tactic discussed in Scott Adams’ *Loserthink* – namely, mindreading.

                      You claim I wasn’t responding to a subthread about Casey, I was *really* adding some more comments about the health regulation. You need not respond to what I said, because you can read my mind and tell what I *meant.*

                    2. April.23.2020 at 4:39 am:
                      The doctor decides whether an abortion is medically indicated based on whether the check clears.

                      April.23.2020 at 12:33 pm:
                      I was responding to a subthread comment about pre-viability abortions being between a woman and her doctor. Which means she decides she wants an abortion and pays an abortionist.

                      So…doctors decide, or doctors never do? Because the OP is about doctors deciding.

                    3. It’s sad that I have to explain sarcasm to someone who adopts the name Sarcastr0.

                    4. I’ll leave it as an exercise to the reader whether the above tracks as sarcasm.

                    5. The reader may also note how you made an unsubstantiated allegation and immediately withdrew it. You claimed I and another person(s) “seem willing to stop abortion by hook or by crook even as they cry about rule of law when it comes to immigration and harsh sentences and whatnot.”

                      I asked you to cite what, specifically, I had said about immigration and harsh sentences, and you backtracked by dropping the allegation and replacing it was an equally unsubstantiated accusation of anarchism.

                      In short, when I challenged your assertion, you folded like a cheap suit.

  5. Three men in robes decide what women need. Phyllis Schlafly would approve.

  6. Not sure I follow the logic. Pregnancy is inherently a self limiting process so what does it matter if you missed your chance to kill a particular baby? Do liberals look at their accidentally born children and hope for another crack at them?

  7. The number of people here talking about how this decision is probably against current law, but who cares because they don’t like current law.

    Shows how much the right cares about rule of law.

    1. Am I reading the same comment section as you? You’re comment reads like speculative telepathy seeing bad faith in non-liberal commentators.

      I see a couple people who wrote that we are over-reacting to the virus but who don’t like abortion…but they didn’t say anything about the constitutionality of the order limiting medical services in a pandemic.

      Note, it’s possible to believe the order limiting medical services is constitutional, but bad policy as an over-reaction, and not like abortion, and enjoy the knowledge that some innocent life possibly be saved, but knowing it’s out of their hands, and still care about the rule of law. All at the same time. Weird, eh?

      1. Eddy
        April.22.2020 at 7:29 pm
        I see the government’s insidious agenda here. It talks of protecting the health of the public, but it’s true goal is to protect the lives of unborn human beings, which is totally different.

        Brett Bellmore
        April.22.2020 at 7:31 pm

        But, yeah, it’s pretext all around.

        Brett Bellmore
        April.22.2020 at 7:30 pm
        At this point, predictions of hospitals in the US being overwhelmed appear to have been grossly exaggerated outside some isolated hot spots;

        Thankfully, postponing elective abortions pretty much only can save lives…

      2. It’s possible to believe this is a good faith order. But many on the right even don’t seem to care, at best. Or are rooting for bad faith anti-abortion tactics at worst.

        1. Sarcastr0….I think the AR rule is temporary, and justified. For the time being.

          To me, this comes down to: We have a pandemic on our hands, and we need to deal with that, first. The Court made an exception for women who would pass the point of no return, which seems reasonable, on it’s face.

          1. Honestly, I’m not sure where I come down on this case, with the noted exception. Regardless, that is a reasonable case to make.

            The issue I’m taking is not with folks like you, it’s with the people I quoted who seem willing to stop abortion by hook or by crook even as they cry about rule of law when it comes to immigration and harsh sentences and whatnot.

            1. Yeah, I hear you. To me, I really wish this (abortion) was not in the hands of the judiciary. On social questions like this, I want our elected leaders to decide them. They are directly accountable to voters, and reflect their social mores and beliefs.

              I know that view is not popular, and would lead to some unintended negative consequences (albeit, until the electorate votes in people to change the law), but I think it is more in keeping with what our Founding Fathers intended. I don’t want judges deciding social questions of morality.

              1. My view is a bit different, as you might imagine. It’s not in the hands of the judiciary – it’s in the hands of the individual. This kind of moral question is really one of personal philosophy and legislatures bigfooting in doesn’t seem like it’s the proper level to deal with the questions involved here.

                But I get your point of view; I appreciate abstracting these issues to an institutional question and not waiving bloody shirts about like both sides have gotten into for the moment.

            2. “the people I quoted who seem willing to stop abortion by hook or by crook even as they cry about rule of law when it comes to immigration and harsh sentences and whatnot.”

              Hmmm…since I was one of the people you quoted, maybe you could tell me what I said about “immigration and harsh sentences.” I’m especially interested in what I said about “whatnot.”

              Or you could take my advice and consult Scott Adams’ excellent work *Loserthink : how untrained brains are ruining America.* Your library may be willing to give you a digital loan if you don’t want to pay for a copy.

              The section on “mindreading” is particularly enlightening.

              1. Maybe you’re right. Maybe you are okay with not caring about judicial decisions at all, and flaunting them whenever you can.

                If I was wrong about you, and you’re not a hypocrite but rather an anarchist, I apologize.

                  1. Again, since I was one of the people you quoted, maybe you could tell me what I said about “immigration and harsh sentences.” I’m especially interested in what I said about “whatnot.”

                    1. I’m sorry, I couldn’t keep up, maybe you could point to the comment where I said I’m “okay with not caring about judicial decisions at all, and flaunting them whenever [I] can.”

      3. Uh, yea Sarc…so you proved my point with those quotes and wrecked your claim. The # of people was 1, possibly 2, depending on how you interpret Eddy’s first comment.

        So yea, one guy, Brett became “the number of people”.

        You should have more accurately said Brett (in your opinion) has issues with the rule of law.

        1. Ah, but nevertheless, eh?

          How many commenters do we have here? A couple of them suck. Are you saying Eddy and Brett are not in keeping with conservative thought generally?

          1. You said the number of people….when it was one, maybe, because saying something is has pretense doesn’t mean it’s not an unconstitutional law. You should know that. Then it’s two, if you pretend not to see Eddy’s sarcasm, which is not even making the point that you want it to make. But seeing as that sarcasm is your nome de plume, don’t pretend you don’t see it.

            Face it bucko, you tried to make your shtick work here by implying, without evidence, then in an episode of self-flagellation, your purported evidence refutes yourself. Bravo!

            (p.s. Are you saying that Eddy and Brett now speak for conservatives in general. Huh? When did they get official Sarcastro speaks for the other side (TM) status? How can I get that for other prominent media celebrities, like say, Barbara Streisand?)

            1. I did say a number of people, and then I provided them. I also said a number of people on the right. Which based on the silly signs at these protests seems like a position I’m still quite comfortable with.

              Are you going to argue that complete reopening and accepting deaths is not the current position of the right? Because it looks a lot like they’re working hard to make it look like that’s the case.

              My position is that I want to reopen asap. But for that we need testing. And we continue to do awful on that.

              1. Don’t be silly, “a number of people” means many otherwise you say the number. It was one, sorta, and maybe two if you pretend sarcasm doesn’t exist. You took that one comment that (sorta) applies to point you were *trying* to make about hypocrisy and the Rule of Law as a marker for the whole thread. Then, when I ask about it, you violated your own rules and make them spokesmen for opinions on the right in general.

                The debate on the associated trade-offs has nothing to do with it.

                1. So now it’s down to semantics. Your debate club tactics have gotten me!

                  OK, it’s not ‘a number,’ it’s 2 people. And their position sucks. And there seem to be a number outside this comentariat who agree with them and also suck.

                  1. Looking upthread to see what you’ve attributed to me *this* time –

                    “The number of people here talking about how this decision is probably against current law, but who cares because they don’t like current law.”

                    http://4.bp.blogspot.com/-4rkCHBf_8vs/UZeyXbjet1I/AAAAAAAAfU4/J4Y2O30jeLU/s1600/The+Mind+Reader+1933.jpg

                    1. Eddy, I quoted you, chief. You replied and seemed quite fine with the fact that you don’t much care about acting in bad faith.

                    2. Once more, I’m going to ask you to cite where I said what you claimed. Here’s the statement you attributed to me – “this decision is probably against current law, but who cares because they don’t like current law.”

                      You struck out the last time, backing away pretty quickly from your earlier attempt to attribute specific views to me. Let’s see if you have better luck this time.

                    3. Also kindly show that it’s I and not you who “don’t much care about acting in bad faith.”

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