Sixth Circuit Preserves (But Narrows) Injunction Blocking Tennessee Governor's Order Suspending Abortions

Like many such orders, the Governor's order suspended until April 30 all "surgical and invasive procedures that are elective and non-urgent," which included abortions.

|The Volokh Conspiracy |

From today's opinion by Judge Karen Nelson Moore, joined by Judge Helen White, in Adams & Boyle, P.C. v. Slattery:

Were there no public health crisis, then, the analysis would be relatively straightforward: by banning all procedural abortions for a three-week period—limited by only a vague, undefined exception for women who needed the abortion to avoid facing "serious adverse health consequences"—EO-25 placed "a substantial obstacle in the path of" Tennessee women attempting to obtain a procedural abortion during that time period, and thus constituted an undue burden….

But, of course, we are not living in normal times; we are living in pandemic times. And so the State points us to Jacobson v. Massachusetts (1905), a century-old case in which the Supreme Court held that a city faced with the risk of a viral outbreak could require all of its adult residents to be vaccinated against that virus…. [But] even if Jacobson's more state-friendly standard of review is the test we should be applying here—rather than the usual Roe/Casey standard—we still think that Plaintiffs are likely to succeed on the merits of their constitutional claim….

Leave aside the myriad factual differences between this case and Jacobson v. Massachusetts—asking a person to get a vaccination, on penalty of a small fine, is a far cry from forcing a woman to carry an unwanted fetus against her will for weeks, much less all the way to term—and the challenge of reconciling century-old precedent with the Supreme Court's more recent constitutional jurisprudence. The bottom line is that, even accepting Jacobson at face value, it does not substantially alter our reasoning here. As of today, a woman's right to a pre-viability abortion is a part of "the fundamental law." And, for the reasons set forth above, EO-25, at least in some applications—most notably, those that would prevent a woman from exercising her right in-state altogether, or would require her to undergo a more invasive and costlier procedure that she otherwise would have—constitutes "beyond question, a plain, palpable invasion of rights secured by [that] fundamental law."

More still, although mandatory vaccination clearly had a "real" and "substantial" relation to the state's public health goals in Jacobson—indeed, as the Supreme Court emphasized, the importance of vaccination was widely accepted by the medical community—it is much harder to discern that relation here, given the paltry amount of PPE saved, and limited amount of in-person contact avoided, by halting procedural abortions for a three-week period (not to mention the lack of expert medical opinion in support of the State's position). And although the State cites language in Jacobson stating, "[i]t is no part of the function of a court or a jury to determine which one of two [responses] [is] likely to be most effective for the protection of the public against disease"—and suggests that this means we must defer uncritically to the State's ipse dixit that a three-week bar on procedural abortions is necessary to save critical PPE and preclude risky interpersonal contact—neither Jacobson in particular, nor Supreme Court abortion precedent in general, requires such abdication. See, e.g., Jacobson, 197 U.S. at 34–38 (discussing the voluminous medical evidence in support of vaccination); Hellerstedt, 136 S. Ct. at 2310 (noting that uncritical deference to a legislature's factual findings regarding abortion is inappropriate).

The dissent disagrees with us on this last point, arguing that the State's three-week bar on procedural abortions does have a "real and substantial relationship to the current pandemic," and, indeed, that, if we don't allow that bar to go into effect, "doctors, nurses, and first responders will die …." But the dissent roots these bold assertions in nothing more than the State's say-so. The Center for Disease Control and Prevention ("CDC") webpage the dissent cites certainly does not support the State's position. That webpage simply recommends that U.S. healthcare facilities preserve PPE and cancel "elective and non-urgent procedures/appointments"; it says absolutely nothing about abortion. And the State has never, at any point in this litigation, attempted to support its policy choice with expert or medical evidence. This is unsurprising because, as far as we can tell, every serious medical or public health organization to have considered the issue has said the opposite. So, in our view, the dissent's position is not so much deference as it is abdication.

Of course, we do not mean to suggest that abortion rights during a public health crisis are identical to abortion rights during normal times. If Jacobson teaches us anything, it is that context matters. And as noted in Section B, infra, we have tried to accommodate for that context here. What we will not countenance, however, is the notion that COVID-19 has somehow demoted Roe and Casey to second-class rights, enforceable against only the most extreme and outlandish violations. Such a notion is incompatible not only with Jacobson, but also with American constitutional law writ large….

[T]he State raises the specter of further COVID-19 contamination—and the accordant risk of yet more Tennesseans dying from the disease—saying that such harms are "certain to occur" if procedural abortions are allowed to take place. Defs.' Opp. Br. ("Every procedure that is postponed, and every item of PPE that is preserved, furthers the State's compelling interests in halting the spread of COVID-19 and ensuring our healthcare system is equipped to treat—and prevent the death of—those who are infected."). We cannot gainsay the threat posed by COVID-19; as we stated at the outset of the opinion, these are extraordinary times calling for extraordinary measures.

But, with respect to just those procedural abortions affected by the district court's injunction (as modified below), the State's proffered harm is purely speculative. As the district court noted, the State presented "no evidence that any appreciable amount of PPE would actually be preserved if EO-25 is applied to procedural abortions," and the State has not remedied that shortcoming on appeal.

In response, the State suggests that if we permit this one exemption, surely the joint-replacement surgeons, the cataract-removal specialists, and every other medical provider affected by EO-25's bar on elective procedures will follow, with similar "minimal impact" arguments in tow. But this contention fails to appreciate that abortion is fundamentally different than a hip replacement or a cataract removal: not only is abortion entitled to explicit constitutional protection, but also, as the district court appropriately recognized, it is a uniquely "time-sensitive procedure," both as a biological matter and a regulatory matter. After all, how many other elective procedures have mandatory 48-hour waiting periods beforehand, and are available in only four cities state-wide? So if there is a slippery slope here, we fail to see it….

[T]he district court's order is just one sentence long: "Defendants are hereby immediately enjoined from enforcing EO-25 as applied to procedural abortions." …  [T]his perfunctory order is overbroad…. [B]ecause a preliminary injunction is an extraordinary remedy, a district court must be careful to "limit the solution to the problem." And, here, the undue burden problem identified by Plaintiffs encompassed three classes of patients, which Plaintiffs helpfully identified in their district court brief seeking injunctive relief:

[1] patients who, in the good faith professional judgment of the provider, will likely lose their ability to obtain an abortion in Tennessee if their procedures are delayed until after April 30, 2020 [the current scheduled termination date for EO-25];

[2] patients who, in the good faith professional judgment of the provider, will likely be forced to undergo a lengthier and more complex abortion procedure, which is only available at two clinics in Nashville and Memphis, if their procedures are delayed until after April 30, 2020; [and]

[3] patients who, in the good faith professional judgment of the provider, will likely be forced to undergo a two-day procedure—which is only available at two clinics in Nashville and Memphis, and which requires at least three separate visits to the provider—if their procedures are delayed until April 30, 2020.

Consequently, we direct the district court to modify its injunction so that it enjoins the State from enforcing EO-25 against Plaintiffs to the extent they provide procedural abortions to these three categories of patients. And, to be clear, this second category of patients includes women who, in the good faith professional judgment of the provider, will likely be forced to undergo a D&E procedure instead of an aspiration procedure if their procedures are delayed until after April 30, 2020.

Judge Amul Thapar dissented, reasoning, among other things,

[T]he basic principle of Jacobson[ is] that states may respond to emergencies in the face of substantive-due-process rights, so long as they act reasonably and don't single out specific rights or persons for disfavored treatment.

No one claims that the State of Tennessee has singled out specific rights or persons in its response to the current pandemic. The executive order in this case applies to all non-essential medical procedures. And again, the Governor has issued several other orders that apply to all persons and that affect every aspect of daily life across the state.

Nor have the plaintiffs shown that the State has acted unreasonably in requiring its residents to postpone non-essential medical procedures for a three-week period. Just contrast this case with the facts of Jacobson, where the Supreme Court upheld a state's authority to forcibly vaccinate individuals. If the State can physically invade a person's body in response to an emergency, then it surely may require people to delay certain medical procedures for the same purpose….

The majority also dismisses the State's interests on the ground that the executive order has no "real" and "substantial" relationship to the current pandemic. That claim is remarkable given that the order follows recommendations from our nation's leading public-health institution. See Centers for Disease Control and Prevention, Coronavirus Disease 2019 (COVID-19): Strategies to Optimize the Supply of PPE and Equipment (last visited Apr. 24, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/ppe-strategy/index.html (explaining that equipment "shortages are currently posing a tremendous challenge to the US healthcare system" and recommending the cancellation of "elective and non-urgent procedures/appointments").

Plus, Jacobson clearly tells us that it's "no part of the function of a court or a jury to determine which one of two modes [is] likely to be the most effective for the protection of the public against disease." The majority doesn't explain why our court is an exception to that rule. And the amicus briefs the majority cites to discredit the State's rationale for the executive order "are more formidable by their number than by their inherent value."

One need only open a newspaper to appreciate the importance of preserving medical equipment at this time. {The district court brushed off these concerns, saying the plaintiffs have already taken measures to reduce their use of medical equipment during surgical abortions. The district court apparently thought that the State would be harmed only if surgical abortions used an "appreciable amount" of medical equipment. (The Majority seems to think the same.) But neither the district court nor the Majority is in any position to second-guess the Governor's judgment as to the amount of equipment that is really necessary to keep healthcare workers alive.} So if nothing else, Jacobson forecloses the plaintiffs' claim.

Note that Judge Thapar concluded that there wasn't any evidence in the record of any particular women who were between the 17-week mark and 20-week mark in their pregnancies, and for whom delay would thus mean prohibition. He thus didn't opine whether, as to those women, the Governor's order would indeed need to be blocked.

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  1. Has TN, along with the other states trying to block abortions, had anything to say about “medical” or non-surgical abortions, that is ones that follow after the self-administration of the abortifacient RU 486. Most of those will require no surgical intervention or hospital visit, but some will. Since the justifications for these special prohibitions in the face of the current pandemic seem mostly pretextual, I expect they do as much as the monkeys who wrote them could think of to preclude abortions by whatever means and make it past judicial review.

    1. The Texas order barred medical abortions, I think, but the Tennessee one didn’t: “The parties agree that EO-25 has no effect on medication abortions, which may continue to be performed.”

  2. “And, to be clear, this second category of patients includes women who, in the good faith professional judgment of the provider, will likely be forced to undergo a D&E procedure instead of an aspiration procedure if their procedures are delayed until after April 30, 2020.”

    I quite like the clarity here. (A point that is entirely aside from the topic of abortion.) There are many times when I wish an opinion would make it clear where in the law the ruling applies (or does not apply). It’s my sense that many judges would have left out specifically identifying the D & E procedure, which would have forced an otherwise totally unnecessary round of litigation. Nice job on the opinion!

    I’d like to think that if I were a judge and I ruled about Law X, I might include in my opinion, “A, B, E, F, and G are non-exclusive examples of situations where Law X forbids them. C, D, and H-K are non-exclusive examples that are still permitted under Law X.”

    I get the issue about avoiding dicta. But there ought to be some balance between judicial economy and judicial restraint. (The above assumes, of course, that the court was fully briefed in regards to A-K, so both sides’ merits had been seen by the court before the ruling was issued.)

  3. “this contention fails to appreciate that abortion is fundamentally different than a hip replacement or a cataract removal; . . . abortion [is] entitled to explicit constitutional protection.”

    I must have missed that part of the Constitution that “explicitly” protects abortion.

    1. Great comment. Very incisive. This may be a comment section packed full of lawyers, but you taught us a lot. Thanks.

      1. “Pay no attention to that little boy, Your Majesty, what does he know about the art of tailoring? You’re wearing a fine suit of clothes!”

    2. I’d like to see the part of the Constitution that explicitly provides First Amendment to the Internet; last I looked, the word “Internet” appears nowhere in the Constitution. Or the part that says the President is the Commander in Chief of the Air Force; it mentions the Army and Navy but not the Air Force, so maybe the President has no jurisdiction over the Air Force.

      Illinois used to have a law, until the Supreme Court struck it down, that essentially held that unmarried fathers had no parental rights; I don’t see anywhere that the Constitution mentions unmarried fathers or, for that matter, parental rights. Was that case wrongly decided?

      The Constitution doesn’t mention the mentally retarded, but we have a Supreme Court decision that they may not be subject to state discrimination; was that case wrongly decided?

      I’m sorry, but the notion that unless a specific word appears in the Constitution, that the Constitution has nothing to say about that subject, is not a winning argument.

      1. That’s true. The 9th amendment even writes into the Constitution: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

        Which was not a blank check for judges to invent new rights, just a recognition that some existing rights would be left out of any finite list.

        None the less, “explicitly” does have a meaning, and abortion is not “explicitly” guaranteed by the Constitution.

        OTOH, I take the Rev’s point to be that the judge didn’t assert the ‘right’ to an abortion HAD explicit constitutional protection, but merely that it was, somehow, entitled to it. And, I suppose, being unjustly denied that explicit protection by the crude fact that the Constitution none the less didn’t mention it.

        1. I don’t think there’s been all that much invention of new rights, though there’s probably been some. As fundamental rights go, bodily integrity strikes me as pretty high on the list, and all the Roe court did was to apply that principle to the specific concept of terminating a pregnancy. The only way to argue that Roe was wrongly decided is to argue that bodily integrity isn’t a fundamental right, and I hate to think where that might end up.

        2. Fantastic. And since it was an existing right at the founding to terminate a pregnancy up to the point of “quickening” (~20wks) then that settles the matter.

          After all, laws restricting abortion didn’t really happen until the 19th century.

          1. Are you not perhaps confusing the concepts :

            (a) something you had an existing right to do at the founding, and
            (b) something that was not illegal at the time of founding ?

            If the two concepts are co-extensive, then any new criminal, or regulatory, law made since the founding is unconstitutional. Let us hope you are right on this point, even if it is bad business for the legal profession.

            1. While I understand the difference between the two concepts, since abortion has been a well known procedure since ancient times, and since it was not illegal anywhere that I know of at the time of the founding, I think a good case can be made that at the time of the founding, terminating a pregnancy before quickening was considered a right. Given the state of women’s legal status at the time it may have been the husband’s right, but definitely not something for the state to interfere with.

              I have a similar question for Bible-quoters who claim abortion is murder: Since abortion was a well known procedure at least as far back as ancient Egypt at the time of Hebrew slavery, and would therefore have been known to the authors of the Bible, why didn’t they include a passage that clearly and unambiguously says that abortion is murder? There is no such passage in the Bible. Since I’m not a Bible believer myself, it would make no difference to me if there were, but it seems to me that for those who are, if they’re going to tell us that it’s a sin, they should also tell us why their Holy Book doesn’t mention it by name.

              1. This account :

                https://www.nationalreview.com/2015/06/abortion-common-law/

                suggests that the English common law on abortion was perhaps a little more complicated than you suggest. This :

                Sir William Blackstone (1723–1780), affirmed the criminality of abortion from the time that medical practitioners could determine that a woman was pregnant with a living child

                implies that the criminality of abortion at any particular stage of the pregnancy is – under the common law – a function of the ability of doctors to detect pregnancy – something that obviously changes with time and technology.

                And this :

                The born-alive rule was implemented to distinguish natural causes from criminal causes for an infant’s death. The born-alive rule was implemented to distinguish natural causes from criminal causes for an infant’s death.

                also implies that the English common law line drawing had to do with evidentiary standards – not a woman’s natural right to have an abortion. Rather the woman’s right (and the right of any third party assisting) would simply be the normal common law right not to convicted of a crime on the basis of insufficient evidence.

                In the same way the “year and a day” rule for murder is not a right to kill someone so long as you do it slowly – it’s an evidentiary rule ruling out conviction when your action is too remote in time from the death to provide sufficient evidence of cause and effect.

                So, I’d hazard the suggestion that the “right” to have an abortion was historically more a matter of procedural due process than sustantive.

                We might compare with the right of a trader to choose his customers (ie to deal with X and not deal with Y, as he pleases) which has – with modest restraints like trading with the enemy in time of war – been a general right of long standing under common law. This plainly has nothing to do with evidence.

                But since the 1960s it has been subject to constraint by law. Whatever one thinks of the merits of such laws, is this really a breach of constitutional rights – simply because such constraints were unknown at the founding ? It’s a view, I suppose.

                I don’t plan to advance onto the religious field of battle, but I am not convinced, merely from a secular logic point of view, by your analysis.

                As I understand it, the Bible does say “Thou shalt not kill” (though I also understand that opinions differ on the correct translation, so “Thou shalt not murder” might be preferred by some Hebrew scholars.)

                But it certainly doesn’t say, explicitly, that thou shalt not kill Canadians, or left handers, or annoying children, or lawyers. The general rule sweeps in all the particular cases. Which lawyers will no doubt be pleased to hear.

                1. Lee, you’re confusing and conflating the concept of “being pregnant” with “being pregnant with a living child.” At common law, the fetus was considered a living child at the time of quickening, which usually takes place about 20 weeks into the pregnancy. Google “quickening” for more information.

                  1. No I’m not.

                    Let’s look at what Blackstone says in detail

                    “Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb. For if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb; or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the antient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemesnor.

                    Note that although the old evidential heuristic of “quickening” – the mother’s sensation of the child’s movement – follows easily enough from this statement, Blackstone does not actually mention the word “quickening” at all.

                    He says that the life of the individual begins in law “as soon as infant is able to stir in the mother’s womb” – note it is not the mother’s ability to sense the movement (ie quickening) but the infant’s ability to move, which he defines as the beginning of life.

                    He then adds “if a woman is quick with child” which uses “quick” in the original sense of “alive” – from which quickening is derived. But the principle is stated in terms of “quick” = “life”. Not “quickening” = mother’s ability to detect life (aka the child’s movement.)

                    The common law principle – per Blackstone – is whether there is a live child, and the existence of life is determined in law by the infant’s ability to move.

                    But of course for a criminal charge, there has to be evidence of movement, and so life, and hence quickening – the mother’s sensation of movement – is the natural evidential heuristic. Under pre 19th century medical technology.

                    Thus it is no surprise that in all the common law jurisdictions, during the 19th century with increasing medical understanding of the child’s development in utero, abortion laws got tighter. Not because 19th century patriarchs had suddenly become more patriarchal than 18th century ones, but because they had a better understanding of what was going on in utero.

                    Had statute law not intervened, there is no reason to expect that “quickening” would have set like concrete in the common law as the eternal evidential heuristic of the common law principle “living child.” Under current technology, the movement of the infant is detectable long before the mother can detect movement herself. The evidential heuristic can change without changing the common law principle that you may not kill a living child.

                    The old quickening heuristic does not represent a maternal right to abortion, it represents a maternal right to insist that she (or her doctor) be proved to have killed a living child. It’s a fair evidential standard, if your medical knowledge is 18th century.

                    1. I think you’re drawing a distinction between “quick” and “quickening” that doesn’t exist. Blackstone talks about a woman who is “quick with child”, which means that quickening has taken place. And that’s actually not a bad standard for when the fetus achieves personhood.

                      And if you want to talk about medical advances since the time of Blackstone, you will be hard pressed to find many biologists who believe a fetus is a person from the time of conception. “Life begins at conception” is mostly a religious view rather than a scientific one. I’m a biology major who had two semesters of fetal development; the idea that it’s a person from the time of conception just isn’t supported by the science. Most biologists go with either quickening or the attainment of consciousness, each of which happens at about the same time during the pregnancy.

                    2. There’s two separate questions: When is a fetus alive, and when is it a human person with human rights?

                      On the former question, a s

                    3. There’s two separate questions: When is a fetus alive, and when is it a human person with human rights?

                      On the former question, a survey of biologists found: “Overall, 95% of all biologists affirmed the biological view that a human’s life begins at fertilization (5212 out of 5502).”

                      https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3211703

                      On the personhood question, the issue is whether any living human beings are *not* persons with human rights, and that’s separate from the scientific, is-it-alive question.

                    4. Zygote/embryo/fetus etc.

                    5. And if you want to talk about medical advances since the time of Blackstone, you will be hard pressed to find many biologists who believe a fetus is a person from the time of conception.

                      Hardly surprising, because as Eddy explains “person” is not a biological concept.

                      “Life begins at conception” is mostly a religious view rather than a scientific one. I’m a biology major who had two semesters of fetal development;

                      Obviously you weren’t paying much attention. “Life begins at conception” is of course imprecise. Individual human cells are alive, until they die, but nobody thinks the “life” in the slogan “life begins at conception” refers to skin cells. It refers to the life of a new human creature, or “organism” in biology-speak. Living organisms and the living component cells of their bodies are both alive. Only the former is referred to by “life begins at conception.”

                      As Eddy explains that is not a controversial biological proposition. And the 290 biologists in Eddy’s survey who shied away from confirming the proposition that a human’s life begins at fertilisation would all have confirmed it, with a full eye roll at the questioner, if you substituted “dog” or “whale” or “badger” for “human” in the question.

                      There are no doubt fiddly questions about :

                      – precisely when fertilisation may be regarded as completed
                      – identical and absorbed twins

                      but nobody has ever claimed that science has no new puzzles to solve. Such quibbles aside, the time at which a new human organism begins its existence is not biologically controversial.

                      The moral jousting is over the moral status of the creature at various stages of its development, and the semantic jousting is over the use of expressions like “person” and “human being.”

                      The latter used to be an uncontroversial common man’s version of human organism, but one side of the abortion question decided that “human being” was a good semantic form to make the argument that the creature must at all time have moral worth, and the other side then decided to agree with the proposition that “human beings” must all have moral worth, and was consequently required to abandon the usage that human being” and “human organism” referred to the same thing. All good clean semantic fun.

                      But the biology is understood in the same way by both sides. What is in dispute is the moral value of the creature.

                      What we were discussing, however, was the basis for the old common law set out by Blackstone. And the line was drawn in hierarchical fashion :

                      (1) the child may not be killed if it is alive
                      (2) it is alive when it can move
                      (3) we know it can move when the mother can feel it move

                      Quickening is a third order derivative, used as a evidentiary heuristic to guess at the facts of (1)

                      As it happens, I do not agree with Blackstone’s proposition that “Life is the immediate gift of God” nor with modern pro-lifers that a zygote has moral worth equal to an adult. But that is irrelevant to both the biological facts, and the meaning of Blackstone’s statement of the common law.

                    6. I’ve already had this conversation here multiple times and I’m not going to rehash it again, so I will briefly make a few points and then go on to other things.

                      First, yes, the fetus is “alive” from the moment of conception, but then so were all the human cells I killed last time I scratched my nose. So the fact that it’s alive, and human, is not relevant to either biology or law. And it’s also not controversial.

                      Second, “personhood” is a biological concept (in addition to being a legal one) because only humans have personhood. That’s why I can ethically kill and eat a cow but I can’t ethically kill and eat another human. And it is determined by what it is that separates humans from other life forms.

                      Whatever it is that separates humans from other life forms, a zygote doesn’t have it. That comes later. Some biologists say it comes when the fetus has consciousness (a view I concur with); others say quickening, because that’s the point at which it is independent enough to begin volitionally acting on its own. As it happens, both of those happen at about the same time during the pregnancy.

                      Whatever Blackstone thought about biology is irrelevant because we know more than he did. He only entered into this conversation in the first place because I pointed out that abortion bans are of fairly recent vintage, and abortion was permitted until the time of quickening under the common law.

                      All right, that’s it for me on this conversation. See you on the next thread.

                    7. “the fact that it’s alive, and human”

                      The fact that it’s an individual living human being. Which individual nose cells are not.

                    8. The biologists in the survey said that “*a* human’s life begins at fertilization” [emphasis added].

                      Those of us who were conceived in the traditional way – our lives began at fertilization.

                    9. The fact that Krychek2 has left the building does not, of course, mean that the show is over. For Elvis is still here.

                      First, yes, the fetus is “alive” from the moment of conception, but then so were all the human cells I killed last time I scratched my nose.

                      Yes, I made the same point.

                      So the fact that it’s alive, and human, is not relevant to either biology or law. And it’s also not controversial.

                      I repeat the point you walked past, without noticing :

                      ……the slogan… “life begins at conception” ….refers to the life of a new human creature, or “organism” in biology-speak. Living organisms and the living component cells of their bodies are both alive. Only the former is referred to by “life begins at conception.”

                      Moving on :

                      Second, “personhood” is a biological concept (in addition to being a legal one) because only humans have personhood.

                      No, a freshman error. A “wicked man” is not a biological concept, since you cannot determine whether an item falls into this category from biological analysis alone. Certainly there is a biological component – “man” – but the concept “wicked man” is not biological. It contains a moral component. Consequently – except as to the component “man” – the opinion of biologists is of no expert value. And as it happens, 99% of the population is biologist enough to identify “man” with biological precision. So it turns out that the opinion of professional biologists is of no special value on any part of “wicked man.”

                      The same applies to “personhood.” In fiction, though, I don’t believe personhood requires membership of the human species. Chewbacca is a (fictional) person.

                      Whatever it is that separates humans from other life forms, a zygote doesn’t have it. That comes later.

                      Er, no. Not even slightly. What separates humans from other life forms*, as a matter of biology, is membership of the human species. And so, mutatis mutandis, for dogs, whales and badgers.

                      (*another expression btw for human organism – see you can spot the difference between organisms and component body cells when you try.)

                      And the “whatever it is that separates humans from other life forms” happens immediately the human zygote is formed – for at that point it is already a human organism (or life form) and not a dog organism, whale organism or badger organism. We know this from genetics.

                      Whatever Blackstone thought about biology is irrelevant because we know more than he did. He only entered into this conversation in the first place because I pointed out that abortion bans are of fairly recent vintage, and abortion was permitted until the time of quickening under the common law.

                      Actually Blackstone entered the conversation as he is usually held to be the foremost 18th century expert on the common law. And as I explained, at tedious length, it is not his view of biology that establishes the common law principle, it is his summary of the common law rule that what distinguishes criminal from non criminal conduct is the killing of a live child.

                      Amusingly, it turns out to be you who is stuck on Blackstone’s biology, for it is you that insists that his evidentiary heuristic based on 18th century medicine must stand as the final word.

                2. Blackstone does not actually mention the word “quickening” at all.

                  Dancing right over the “if a woman is is quick with child” part that is a syntactic synonym for “quickening”.

                  also implies that the English common law line drawing had to do with evidentiary standards – not a woman’s natural right to have an abortion. Rather the woman’s right (and the right of any third party assisting) would simply be the normal common law right not to convicted of a crime on the basis of insufficient evidence.

                  Well of course there’s no caselaw about it, it wasn’t criminalized until much much later. This is deeply unfair, it’s saying that because none of these cases turn on a woman claiming a right to abortion in contravention of non-existent laws, there could not have been such a right.

                  Meanwhile, the lack of such laws at the founding leads to me the opposite conclusion — that this was a liberty long enshrined by our tradition.

                  1. Well of course there’s no caselaw about it, it wasn’t criminalized until much much later.

                    Eh ? There’s plenty of case law about abortion being criminal. That’s why Blackstone is summarising the common law, concluding :

                    this, though not murder, was by the antient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemesnor.

                    He’s not pulling this out of his rear end, he’s summarising the current state of the law as revealed in actual cases. (And mentioning in passing that the law has evolved.)

                    This is deeply unfair, it’s saying that because none of these cases turn on a woman claiming a right to abortion in contravention of non-existent laws, there could not have been such a right.

                    No. First, as explained, you have somehow gathered the wholly erroneous impression that abortion was not criminal under the common law at the time of the founding.

                    Second, no woman claimed a right to abortion, even in cases where she was actually charged. Her defense would rest, as Blackstone explains, on there being no evidence of her aborting a living child. Without quickening, the prosecution could not prove – in Blackstone’s time – that there was a living child to be aborted.

                    In any event, seeing as it’s you, even if we were to stipulate that “quickening” was at the founding a bright line between criminal and non criminal abortion (rather than, as I have explained, an evidentiary rule to identify whether a living child has been killed) – that would simply mean that aborting an infant prior to quickening was not a criminal offense. But as Krychek2 sensibly acknowledged, a “right” in the sense of an unenumerated constitutional right does not refer to the (infinite) list of any deeds that were not criminal offenses at the founding. It’s a small subset of that list.

                    The purpose of my pasting in Blackstone’s summary of the common law is to show that, from that list of non crimes, abortion is a particularly weak item to claim as a right. Because Blackstone’s explanation shows that a woman’s substantive right to abortion doesn’t even enter into the argument. There’s no mention of it, and nothing to hint that it played any role in formulation of the common law.

                    This is made even plainer by the fact that it is not just the woman who is protected by the limitation that the woman be “quick with child”

                    For if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb; or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the antient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemesnor.

                    Someone who beats the woman gets the same defense as the woman herself. A mugger’s right to choose ? Surely not.

                    The crime is killing a living infant. But neither the woman, nor anyone else , could be prosecuted for killing the child, without the evidence that the infant was alive. That’s the right here – the right to be convicted only on the basis of sufficient evidence.

                    1. “The crime is killing a living infant.”

                      If it is, then the judgment is easy. Not guilty. A fetus isn’t an infant, it is potentially an infant. So, too, are living spermatozoa and human egg cells. Are we now claiming that causing the death of these cells is a crime? And always has been?

            2. You could ask Blackstone what he thought on it.

          2. I should think the traditional Hippocratic oath would have some relevance here, as it ranked abortion (And euthanasia.) right along poisoning patients as a form of medical malpractice.

            This is not, of course legally definitive, but it should inform our discussion: What was the status of the Hippocratic oath at the time of the founding? It is, after all, only recently that the language about abortion was deleted from it.

            Maybe that tells us something of how abortion was actually viewed at the time.

            1. The status of the Hippocratic oath, then as now, is an irrelevancy. It binds Hippocrates, and nobody else. I suspect a prosecutor attempting to prosecute Hippocrates would be soon placed under a doctor’s care.

        3. I think there’s a difference between being explicitly in the Constitution and having explicit Constitutional protection. The protection has been explicitly spelled out in case law. I don’t necessarily think it was the best word choice, but I’ll defend it as a matter of grammar.

      2. “I’d like to see the part of the Constitution that explicitly provides First Amendment to the Internet”

        It’s that part where the Constitution says “Congress shall make no law…” Now, it may well be that Courts have long interpreted this text to mean “OK, Congress can make SOME laws…” but it says what it says.

        1. It says “Congress shall make no law about the Internet”? Interesting. My copy doesn’t have that.

          Yes, I know, your argument is that the Internet is speech and the press, and you’re right. My argument is that terminating a pregnancy is part of the right to bodily integrity, which is included within the privileges and immunities clause. We are both arguing that just because a specific context isn’t mentioned, that doesn’t mean there isn’t a right that includes it.

          1. terminating a pregnancy is part of the right to bodily integrity, which is included within the privileges and immunities clause

            Mr Pollock has the advantage over you that the prohibition on abridging the freedom of speech is actually mentioned in the constitution. The right to terminate a pregnancy is not. Nor indeed is its alleged Daddy, the right to bodily integrity.

            This btw is one reason why people often prefer to put contracts into writing.

          2. “It says ‘Congress shall make no law about the Internet’? Interesting. My copy doesn’t have that.”

            Does it say “Congress shall make no law, except for the Internet”? Or does it just have “shall make no law abridging…”? In the English I speak, “Congress shall make no law abridging…” contains no exceptions and applies wherever people are speaking or assembling or operating presses and therefore includes the Internet. This is a fairly straightforward application of language and therefore is beyond the rational capacity of very few, mostly elected, dimwits. I’m sorry you find yourself among them. Have you considered running for office?

    3. Get an education, Roger21. Start with standard English, focusing on sentence structure and comprehension.

      1. If I lack an understanding of standard English, I suppose I’ll just have to sue the stare in which I attended elementary school for depriving me of my fundamental rights.

        1. You may possess enough familiarity with standard English to handle much of mainstream American life but not enough to understand this document.

  4. Snowball would understand. Some elective procedures are more equal than others.

    1. Indeed; Maybe abortion gets more protection from judges than hip replacements or cataract surgery do, but by the reasoning judges purport to be using in giving it that protection, SHOULD other elective procedures be less protected? Not so far as I can see.

      1. OK, Brett.

        Since you’re not seeing very far, let me explain it. Not having cataract surgery tomorrow doesn’t deprive you of the right to have it nine months from now.

        Do you see now?

        1. Medically speaking, you’re wrong. I’ve had cataracts, (A side effect of chemotherapy.) and I needed the cataract surgery on a fairly urgent basis.

          The longer you delay the surgery, the worse the potential side effects get, up to and including permanent blindness. And that’s setting aside that delaying the surgery means spending more time effectively blind.

          Pregnancy is a condition that naturally resolves itself in about 9 months.

          1. Cataracts similarly resolve themselves naturally. You may end up with blindness, though.

            Keep trying to vindicate the wrong side of history, Brett. It seems to suit you.

          2. Brett,

            I’ve had cataract surgery also, as have many of my friends. While your case was urgent, most aren’t. I could have postponed mine. Some are scheduled months ahead of time. Common practice is to do one eye, wait to make sure it’s OK, and then do the other.

            So the fact that some surgeries are urgent doesn’t all, or even most are.

            1. The whole schedule on my case was accelerated, as a side effect of the chemo; I went from 20-16 corrected to legally blind in 3 months. So the point of the surgery being extra hazardous would have arrived sooner, too.

              But my mother delayed surgery for her more natural cataracts, and had trouble due to it. It just takes longer if the cataracts are natural, it still happens.

          3. Anyway, Brett. Let’s say cataracts are medically necessary.

            That’s a good argument for not considering them elective surgery. It’s no argument at all on the abortion issue. It has no relevance whatsoever to that.

            You’re just complaining about abortion being a Constitutional right. Fine. But cataracts have zip to do with that.

          4. “Pregnancy is a condition that naturally resolves itself in about 9 months.”

            For what should be considered a shocking number of cases, in America, it ends with the death of the pregnant person. Abortion is one of the only medical procedures that has an organized, energized population trying to outlaw it. There’s nobody outside the eye surgeon’s offices holding eyeballs in glass jars chanting that cataract surgery is an abomination, nor a political party making prohibition of eyeball surgery a plank of their platform. Nor did anyone claim to speak up for your eyeballs to prevent you from getting the surgery you and your surgeon agreed was in your best interests. Will nobody think of the eyeballs?

            1. “For what should be considered a shocking number of cases, in America, it ends with the death of the pregnant person.”

              The maternal mortality rate in America is ~14/100K. This is comparable to just undergoing general anesthesia. You must consider a remarkable range of medicine “shocking”.

              1. “The maternal mortality rate in America is ~14/100K. This is comparable to just undergoing general anesthesia. You must consider a remarkable range of medicine “shocking”.”

                Compare maternal mortality here to places that actually have put some effort into decreasing it, a group which a substantial number of people assume the U.S. belongs. Dying in childbirth should not be a thing.

        2. Not having an abortion tomorrow doesn’t stop you having one in nine months time either ☺

          You don’t actually need to have an abortion to resolve the medical “problem” of having your life disrupted by carrying around a foreign object inside you. An “untreated pregnancy” almost always resolves itself naturally.

          Of course, in the short term, an untreated pregnancy will cause you a certain amount of inconvenience, discomfort and even danger until the condition is resolved.

          The same applies to an untreated cataract.

          1. “Not having an abortion tomorrow doesn’t stop you having one in nine months time either ”

            Au contraire! I can’t get one today, and for the same reason can’t get one in nine months’ time, either.

            1. It is not your inability to get an abortion tomorrow that prevents you from getting an abortion in nine months time.

              The former is not the cause of the latter. In your case they are both consequences of a different cause – your anatomy.

              Consequently and not for the first, or I suspect last, time; I am right and you are wrong 🙂

              1. “Consequently and not for the first, or I suspect last, time; I am right and you are wrong”

                The wishful thinking is strong in this one.

  5. When the US Constitution was written many more women died from labor & delivery than today, children were lucky to live to age 5, and diseases were believed to be caused by bad air and ‘swamp ethers.’
    In 2020 abortions are safer than labor & delivery. An abortion requires 2 staff members, each with personal protection equipment, and less than 30 minutes time. A high risk pregnancy [diabetic, hypertensive, psychiatric complications can result in labor & delivery of more than 8 hours, and 4 to 5 staff members who each have sufficient personal protection equipment. How do nurses, doctors and other staff feel about this issue? Registered Nurses, Medical Doctors and Respiratory Therapists are those who are the most threatened when personal protection equipment is rationed.

    1. “In 2020 abortions are safer than labor & delivery.”

      Safer for whom?

      1. Safer for the doctor.

        1. And also the doctor’s liability insurance carrier.

    2. “When the US Constitution was written many more women died from labor & delivery than today,”
      When the US Constitution was written, women were property. Treating them like people is one of those things that is implied from giving them the franchise in 1920.

      1. Treating them like property sounds like part of the “good old days” to which conservatives wish to return. They like to imagine a world without educated women, lippy blacks, visible gays, any Muslims, any Hispanics, militant agnostics . . .

      2. James Pollock: To be precise, women were not property. They lacked various important rights, such as the right to vote (except that sufficiently wealthy, unmarried women actually did have the right to vote in New Jersey from 1776 to 1807) and the right to own their own property once they were married (until they got that right starting with the mid-1800s). Also, shockingly, marital rape was not punishable as rape until the late 1900s, though I believe it could in principle be punished as battery (a much lesser offense, of course). But they had considerable rights, usually including the right to divorce in at least certain circumstances, something property generally did not.

        1. Also, shockingly, marital rape was not punishable as rape until the late 1900s

          Not that shockingly, surely. Rape is sex without consent. Up until not that long ago, the marriage contract entailed consent to sex.

          Entering into a contract for a boxing match entails consent to battery. If you withdraw your consent mid-fight, the fight is over, and you lost.

          Of course we are much more civilised now. Marriage is about mutual growth and sexually defined roles are passe and so on. But the traditional deal was a promise of goods and services in one direction in exchange for exclusive sexual access (in both directions.) Withdrawing either the former or the latter was breaking the deal.

          1. You figure marriage was a 24/7 guarantee of sexual availability (one way, at least)?

            No wonder your ideas are found in the ash heap aside American progress.

            Those conservative positions are wrapped in a Confederate flag, naturally.

          2. Jesus, Lee. Look into some cases about marital rape and see if you still think that.

  6. The fascists demand that we treat abortion just like every other medical procedure.

    Once reasonable restrictions are imposed on abortion – that are also imposed on similar medical procedures – the fascists cry that their religious sacrificial act is special and protected and cannot be treated like other medical procedures.

    1. I’m fine with this.

      No State may postpone or delay a medical procedure can be postponed or delayed beyond the point at which that same State’s statutes make it unlawful.

      Simple, clear, treats abortion like any other medical procedure.

    2. Fascists demand we pray to their god at their altar under penalty of law. Demand to control bodies they have no right to. Demand women bear support and keep children that they refuse to support or keep. Demand we shut up and agree

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