Abortion

Divided Sixth Circuit Upholds Kentucky Abortion Regulations

The Sixth Circuit joins the Eighth Circuit in recognizing the import of Chief Justice Roberts' controlling opinion in June Medical Services

|The Volokh Conspiracy |

On Friday, in EMW Women's Surgical Center, et al. v. Friedlander, a divided panel of the U.S. Court of Appeals for the Sixth Circuit vacated a permanent injunction against Kentucky's requirement that abortion provides have transfer agreements with local hospitals. The opinion, by Judge Joan Larsen joined by Judge Chad Readler, concluded the district court was wrong to conclude enforcement of the rules would leave Kentucky without a licensed abortion provider. In the majority's view, the plaintiffs could not show that Kentucky's requirements would impose an "undue burden" on the right of a woman to obtain an abortion Judge Eric Clay dissented.

Of particular interest is Judge Larsen's discussion of how to understand the "undue burden" standard in light of the Supreme Court's decision in June Medical Services v. Russo, in which the Court invalidated Louisiana's admitting privilege requirement for abortion providers, but without a controlling majority opinion. In June Medical Services, the Court split 4-1-4, with the Chief Justice providing the fifth vote to invalidate the Louisiana regulations while also rejecting the interpretation of "undue burden" adopted by the Court in Whole Women's Health v. Hellerstedt. 

Here is how Judge Larsen evaluated how lower courts should apply June Medical Services.

Because no opinion in June Medical Services garnered a majority, we, as a lower court, have the "vexing task" of deciding which opinion controls. . . . In this situation, the Supreme Court has instructed us to treat the "position taken by [the Justice or Justices] who concurred in the judgment[] on the narrowest grounds" as "the holding of the Court." Marks v. United States, 430 U.S. 188, 193 (1977). . . . We therefore "must follow the reasoning of the concurring opinion with the narrowest line of reasoning" that is "capable of supporting the Court's judgment in that case." Grutter v. Bollinger, 288 F.3d 732, 741 n.6 (6th Cir. 2002) (en banc), aff'd, 539 U.S. 306 (2003). "[T]he rationales supporting the Court's judgment need not overlap on essential points in order to provide a holding that binds lower courts. Indeed, if the Justices agreed on essential points, the Marks analysis would be unnecessary." Id. at 740. Instead, we are to look to the "results" that the rationales of the concurring opinions "will . . . produce" when applied in future cases. . . .

In a fractured decision where two opinions concur in the judgment, an opinion will be the narrowest under Marks if the instances in which it would reach the same result in future cases form "a logical subset" of the instances in which the other opinion would reach the same result. . . . This is so because in that subset of cases, a majority of the Court which issued the fractured decision would necessarily agree with the result. . . . In a fractured decision upholding the constitutionality of a law, that means the narrowest opinion is the one whose rationale would uphold the fewest laws going forward. . . .

Conversely, when a fractured decision strikes down a law as unconstitutional, the narrowest opinion is the one whose rationale would invalidate the fewest laws going forward. Memoirs v. Massachusetts, 383 U.S. 413 (1966), for instance, "revers[ed] the Massachusetts Supreme Court's holding that a book depicting a prostitute's life was suppressible obscenity." Grutter, 288 F.3d at 739. "Justices Brennan and Fortas and the Chief Justice found the book was not suppressible obscenity because it was not 'utterly without redeeming social value,'" whereas "Justices Black and Douglas did not reach the issue of whether the book was suppressible obscenity because they believed the First Amendment provides an absolute shield against government regulation of expression." Id. (citations omitted). Anytime Justice Brennan's opinion would conclude that a writing was not suppressible obscenity, Justices Black and Douglas would agree, but the reverse is not true. The Supreme Court thus held in Marks that Justice Brennan's opinion controlled because it "provided the most limited First Amendment protection." Id. at 739–40; see Marks, 430 U.S. at 194.

Turning now to June Medical Services, because the Court invalidated the Louisiana
statute at issue, the narrowest opinion concurring in the judgment is the one that would strike down the fewest laws regulating abortion in future cases. The Chief Justice read the rule laid down in the Court's precedents to say that laws not "reasonably related" to a "legitimate purpose" or that impose a "substantial obstacle" are unconstitutional. . . . All other laws regulating abortion, however, "are valid." . . . Like the Chief Justice, the plurality would invalidate any law with "the effect of placing a substantial obstacle in the path of a woman's choice" to obtain a previability abortion. . . . But the plurality would also invalidate any law where "the balance" between the law's benefits and its burdens "tipped against the statute's constitutionality." Presumably, this would include some laws that are reasonably related to a legitimate purpose and that do not impose a substantial obstacle, so long as the law's burdens sufficiently outweighed its benefits.

Because all laws invalid under the Chief Justice's rationale are invalid under the plurality's, but not all laws invalid under the plurality's rationale are invalid under the Chief Justice's, the Chief Justice's position is the narrowest under Marks. His concurrence therefore "constitutes [June Medical Services'] holding and provides the governing standard here." Grutter, 288 F.3d at 741; see also Hopkins v. Jegley, 968 F.3d 912, 916 (8th Cir. 2020) (per curiam) (holding that "Chief Justice Roberts's separate opinion in June Medical . . . is controlling"). "While 'there is some awkwardness in attributing precedential value to an opinion of one Supreme Court justice to which no other justice adhered, it is the usual practice when that is the determinative opinion.'" Triplett Grille, 40 F.3d at 134  . . .

Under the Chief Justice's controlling opinion, a law regulating abortion is valid if it satisfies two requirements. First, it must be "'reasonably related' to a legitimate state interest." June Med. Servs., 140 S. Ct. at 2135 (Roberts, C.J., concurring in the judgment) (quoting Casey, 505 U.S. at 878 (joint opinion)). Because we are to apply "the 'traditional rule'" of deference to the state's "medical and scientific" judgments, id. at 2136 (quoting Gonzales, 550 U.S. at 163), this requirement is met whenever a state has "a rational basis to . . . use its regulatory power," Gonzales, 550 U.S. at 158. Second, the law must not "ha[ve] the 'effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.'" June Med. Servs., 140 S. Ct. at 2138 (Roberts, C.J., concurring in the judgment) (quoting Casey, 505 U.S. at 877 (joint opinion)). Under the law of our circuit, a woman faces a substantial obstacle when she is "deterred from procuring an abortion as surely as if the [government] has outlawed abortion in all cases." Cincinnati Women's Servs., Inc. v. Taft, 468 F.3d 361, 370 (6th Cir. 2006) (alteration in original) (quoting Casey, 505 U.S. at 894). Even if a law regulating abortion is unconstitutional in some applications, the law remains facially valid so long as it does not impose an undue burden "in a large fraction of the cases in which [the regulation] is relevant." Casey, 505 U.S. at 895; accord Cincinnati Women's Servs., 468 F.3d at 369. . .

The dissent faults us for treating "the entirety of Chief Justice Roberts' concurring opinion" as authoritative and argues that we should instead look only to the reasoning that was "necessary to his vote to concur." Dissenting Op. at 46–47. If this were the Marks rule, applying Marks would be pointless. The way we distinguish the "narrower" concurring opinion in a fractured decision from the "broader" one is by identifying differences in their reasoning. But because the narrower and broader opinions both concur in the judgment, the narrower opinion's points of disagreement with the broader one—i.e. the very feature of the opinion that makes it "narrower"—are by definition not necessary to its ultimate conclusion that the judgment is correct. Thus, in any case where it matters which opinion has the narrower view, the dissent's approach would have us set aside the narrower opinion's points of disagreement as dictum, and the application of Marks would fail to provide a governing rule of law. Yet "[t]he principal objective of this Marks rule . . . requires that, whenever possible, there be a single legal standard for the lower courts to apply in similar cases." Triplett Grille, 40 F.3d at 133 (citation omitted). It comes as no surprise, then, that binding precedent forecloses the dissent's approach. . . .

Because the controlling opinion in June Medical Services clarified that the undue burden standard is not a balancing test, the district court erred in attempting to weigh the benefits of KRS § 216B.0435 and 902 KAR 20:360 § 10 against their burdens. In our review of the challenged provisions, we need only consider whether they are reasonably related to a legitimate state interest and whether they impose a substantial obstacle.

Whatever one thinks of the current state of abortion jurisprudence (or the Marks doctrine), it seems to me that Judge Larsen correctly applies Marks to June Medical Services. The U.S. Court of Appeals for the Eighth Circuit has adopted a similar interpretation of June Medical as well.

Given the composition of the Sixth Circuit, I doubt a petition for rehearing en banc will go anywhere. I also doubt they will seek certiorari, though time will tell.

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  1. Kavanaugh and ACB and Roberts are first and foremost political activists and the mantra that will guide them going forward in 2021 is—how do we decide cases in such a way that helps George P Bush the most. So with abortion those 3 will want to mitigate the downside of overturning Roe by protecting abortion in cases of rape and incest. So W Bush and now Trump have greatly damaged the Republican Party by turning off suburban moms…a fight in Texas and Florida and Georgia and NC over abortion in cases of rape and incest could potentially turn those states reliably blue. So these Republican justices will rule in such a way that takes that political powder keg off the table.

    1. There’s a generational shift between young women thinking about having an abortion themselves and older women thinking about their (often only) daughter aborting their grandchild. They so want to be grandmothers…

      A quarter century later, the “Soccer Moms” have gone through Menopause and abortion isn’t an issue anymore — except for the grandchildren they so desperately want…

      1. “There’s a generational shift between young women thinking about having an abortion themselves and older women thinking about their (often only) daughter aborting their grandchild. They so want to be grandmothers…”

        https://news.gallup.com/poll/246206/abortion-trends-age.aspx

      2. Outside of maybe ACB and Karen Santorum most women don’t was their grandchildren to be rape babies…how adorable, he has your rapist’s eyes!!!

      3. “A quarter century later, the “Soccer Moms” have gone through Menopause and abortion isn’t an issue anymore — except for the grandchildren they so desperately want…”

        . . . when a white, male, movement conservative blog that flatters old-timey superstition proposes to offer the insights of modern American women with respect to abortion . . .

  2. The anti-abortion rights faction should enjoy their successes while they can. Ultimately they will get the overturning of Roe, maybe even with this case, but it will be a self defeating victory. The backlash against overturning Roe will be huge and doom the right wing policy of controlling women’s bodies to the ash heap.

    And no, this ruling and other will make little difference in the number of abortions, as medical advances will allow women even in states that severely restrict abortion to obtain one. Talk about being on the wrong side of history . . . .

    1. While not all of the laws had yet taken effect, abortion was already legal in half the states in which 3/4 of the population lived when the Roe decision came down.

      Merely reversing Roe really isn’t going to affect abortion in this country.

      Now as to defining the fetus as a “person” under the auspices of the 14th Amendment, that’d be a different story.

      1. “Merely reversing Roe really isn’t going to affect abortion in this country.”

        That’s silly, like saying ‘merely reversing Heller and McDonald isn’t going to affect gun rights in this country.’

        1. 3/4 of women lived in a state where abortion was legal before Roe, and hence would be without it.

          And how many abortion doctors are there in the other states, and how good are they?

          Enough said?

          1. Since you missed or failed to comprehend it the first time, here’s the analogy again: How many localities had gun laws like Chicago and DC pre Heller and McDonald?

            ‘Nuff said?

            1. Did more than 1/4 of the population live in such a state?

              Yes they did — and Heller really should be compared to Griswold v. Connecticut, which was 9 years before Roe.

              “May issue” laws are the same as “may permit” an abortion — and SCOTUS didn’t hear that one.

              1. Dr Ed 2 is correct because TRAP laws have been so effective at undermining abortion rights. So overturning Roe can only be good politically for the Democrats because Republicans have done such a good job at eroding the right.

                1. Depends on the long-term framework. During the Lochner Era, the Supreme Court struck down all sorts of laws regarding time-and-wage rules. Do we have time-and-wage laws now?

                  1. The laws will be made at the state level, so NY changes nothing but Texas will have an abortion fight.

                    1. And then, after enough time passes, the notion that abortion should be illegal will fade away, and the technology will advance to the point that fetuses currently considered non-viable will survive, and people who claim to be in it for the fetus can put their money where their talk is, and pay to support extreme preemies in a warehouse somewhere.

                    2. “The laws will be made at the state level, so NY changes nothing but Texas will have an abortion fight.”

                      And those who feel strongly — either way — about abortion will move to the state where their values are affirmed.

            2. That gun control measures Heller/McDonald invalidated were almost impossible to enforce. So in NY a Black man was convicted of a felony in a self-defense at home case because he didn’t register his gun and Sharpton got the guy a pardon. So even the most left wing gun control advocates don’t want to see individuals charged for not registering a gun they only keep in the home for self-defense. The underlying reasoning of Heller is absurd but the actual outcome is very responsible because it is so limited.

            3. There’s an additional item to consider.

              People can (and do) travel to get an abortion. It’s a one time thing. If abortion is legal in RI, but illegal in CT, a quick drive accessed the desired need.

              Gun ownership, on the other hand, requires you to live (or at least own property) in the area where you have the gun.

              1. Which is why so many places have imposed mandatory waiting times for abortion. You travel twice, or you pay for a hotel while you wait.

              2. Travel to another state for the purpose of evading the law can still land you in legal hot water when you return home without the fetus within you. [IANAL] I would expect this to be doubly true in states that try to identify a fetus as a legal “person.”

                1. Except we have medical privacy and there’s that little “burden of proof” thing — women do have miscarriages.

                  1. ” women do have miscarriages.”

                    AKA God’s abortions.

      2. Bingo, and once states start granting embryos all of the rights of the other people the first people I would like to see locked are irresponsible women like ACB and Karen Santorum that have little embryo guillotines between their legs. So women over 45 that keep spreading their legs for their husbands without using birth control are guilty of child endangerment and reckless manslaughter just like a parent that neglects their child that gets hit by a car.

        1. Save the zygotes. Surely, the rights of some zygotes are no more important than the right of other zygotes. Then, the crackpots will figure out that birth control methods often work by denying the zygote a home. Griswald becomes just another bad dream. Save the sperm will be along shortly.

          1. Life begins before there are any zygotes.

            Save the haploids!

      3. ” as to defining the fetus as a “person” under the auspices of the 14th Amendment, that’d be a different story.

        It’s clear constitutionally that not everything available to citizens must be made available to everybody who happens to be present in the country, and the 14th doesn’t grant citizenship until birth.

        1. True. But it’s equally clear that not everything available to persons under the 14th Amendment requires such persons to be citizens.

          Citizenship, and its attendant rights, applies to a subset of persons – ie those born or naturalised in the United States. Equal protection applies to a different (but intersecting) set of persons – those within the jurisdiction of the State in question.

          Thus citizenship is irrelevant to equal protection; while personhood is a necessary but not a sufficient condition for quaifying for equal protection.

    2. Fair point about reversing Roe being ultimately self-defeating, but one could argue the same about Roe in the first place — it basically inspired the anti-abortion (misnamed “pro-life”) movement. I think this is why RBG said that Roe went too far, too soon. As long as both sides insist on total victory (either abortion on demand, no questions asked, up to the moment of birth, or no abortions at all except maybe in cases of rape, incest, or medical necessity), this pendulum may just keep swinging from one side to the other. On the other hand, though, I’m not sure how a compromise position could work. Even the “only in cases of rape, incest, or medical necessity” policy seems hard to enforce — it just encourages women to lie if they want an abortion for a reason other than those allowed by law, and even if woman was raped, what would she have to provide to a clinic (or to a judge, even?) to substantiate her claim? Must there be a police report? What if it’s one of those “he said, she said” situations? Or is the mere claim sufficient by itself (which basically means, “Go head, lie to us, we don’t care”).

      The funny thing about democracy is that it stops working as soon as an issue arises where neither side is willing to accept defeat. I don’t think very many people in the US really believe in democracy anymore (if they ever did). Whenever they lose the vote, they want the Supreme Court to hand them the win anyway.

      1. The problem with rape or incest is that the baby is an innocent victim.

        1. Excellent point, that is why I would like to see George W Bush locked up for slaughtering innocent Iraqi babies. We are agreeing on a lot of things today!!

            1. In life sometimes innocent people die…if you don’t like innocent people dying don’t move ever again, because engaging in any activity will lead to innocent people dying. So rape babies are just as innocent as the Iraqi babies Bush slaughtered or the child (all the while Karan Santorum and ACB were giggling like school girls while Bush was doing shock and awe and killing Iraqi babies) that will inevitably die in a car accident today.

        2. Well, there is a philosophical question (which cannot be decided by science, though science can provide some relevant data) as to at what point during pregnancy a person with rights comes into existence. I find that one of the most annoying things about the abortion controversy is that neither side is willing (or, apparently, able) to discuss this rationally.

          1. Everyone agrees that it is before the actual birth. And in practice everyone agrees that it is not at conception because quite a few embryos die very quickly and nobody cares whereas we as a society move heaven and earth to save babies born before 9 months. So if personhood begins at conception couples would have to have sex in a facility in which the embryo is constantly monitored just like we do with babies.

            1. Well, it does seem to be agreed more or less universally, at least implicitly, that birth makes a difference. A prematurely born infant (especially if it’s wanted, which may be the real distinction people are making) is not necessarily regarded the same as one still in the womb, even if they are at the same stage of development. To that extent, I think your assumption that the two cases are equal is not necessarily how other people see things. Whether those cases should be considered equal is another question.

              1. Nobody believes birth makes a difference in America. Personhood obviously begins before birth. That said if the mother will for some reason die by giving birth than I have no problem killing the baby…just like ACB had no problem killing babies in Iraq when Bush told Americans that Saddam was going to nuke us to smithereens and so we had to kill the women and children of Iraq to protect the homeland.

              2. ” A prematurely born infant (especially if it’s wanted, which may be the real distinction people are making) is not necessarily regarded the same as one still in the womb”

                A fully-developed and recently-emerged infant is entirely dependent on others for food and safety, just like the not-yet-fully developed recently emerged premature infant, the difference is that other people can substitute in for anyone caring for the infant. Pre-viable fetuses don’t have this feature. They are dependent on one specific individual. That’s why they get treated differently.

                1. You are leaving out the class of infants which NotAnExtremist referred to in his/her comparison, ie not yet fully developed infants still in utero, but at the same stage of development as other not-yet-fully developed, recently emerged, premature infants.

                  The former are just as “viable” as the latter, and just as capable of being cared for by folk other than the mother. They just need to be popped out and then they become identical to the comparator class.

                  But these in utero critturs are clearly treated as different from the ex utero ones, simply on the basis of their in-not-ex utero status. So NotAnExtremist is correct that people or at least some people, including the law, do not see these cases as equal.

                  1. the difference between full protection and not-full protection lies in whether or not the fetus can survive independent of the original host, not on whether it already is.

          2. “Well, there is a philosophical question (which cannot be decided by science, though science can provide some relevant data) as to at what point during pregnancy a person with rights comes into existence.”

            Since 1973, this question has been interesting to religious philosophy, but not to law. The REAL question is how the rights of this proto-person apply with regards to the other person’s rights. A fetus is potential. The surrounding host body, on the other hand, is actual, and can be consulted about her preferences.

            1. Since 1973, this question has been interesting to religious philosophy, but not to law.

              Any kind of philosophy.

              The REAL question is how the rights of this proto-person apply with regards to the other person’s rights. A fetus is potential. The surrounding host body, on the other hand, is actual, and can be consulted about her preferences.

              Assuming you are still claiming to be talking about law rather than philosophy, what rights do you suppose these “proto-persons” possess under law ?

              1. The ones recognized in Roe v. Wade, i.e., the crucial “right to life”. The fact that the fetus has such a right does not mean that the right cannot be affected by someone else exercising THEIR rights (as is true of born people, too. As a suspect in a crime, pulled over on the side of the road, you have a right to life UNLESS and UNTIL a poorly-trained cop sees you reach for your phone.

                In Florida, you have a right to life UNLESS and UNTIL a person starts a fight with you, and you start to win the fight but then it turns out the other person is armed with a firearm, at which point their right to protect themself from losing a fistfight beats your right to life.

        3. “The problem with rape or incest is that the baby is an innocent victim.”
          Yes, THAT’s the problem with rape.

  3. it seems to me that Judge Larsen correctly applies Marks to June Medical Services

    I don’t see how given the undue burden discussion in June Medical was dicta. The only logic used by Roberts in holding that the Texas law was unconstitutional was that it failed stare decisis. That logic is the only narrower logic demanded by Marks.

  4. Because we are to apply “the ‘traditional rule'” of deference to the state’s “medical and scientific” judgments,

    But what if the claimed medical and scientific basis for the law is transparently pretextual, as it is in June Medical?

    The ruling apparently lets the state make up any reason for an abortion restriction, as long as it can manufacture a “rational basis.”

    1. I think you are correct. However, that logic doesn’t mean rational-basis review applies to whether there is an undue burden on the ability of a woman to obtain an abortion. It only means, you can’t assess that burden by examining the legislature’s asserted benefits for enacting the restriction and weigh those benefits against the burden.

      1. Here’s a fun rule to try out. Don’t want an abortion? Me either. Let’s neither of us get one. But our decision has no bearing on that nice lady over there, so let’s let her make up her own mind.

        1. You don’t want to shoot your toddler in the head? Don’t, but don’t tell that nice lady over there she can’t.

          1. 2nd amendment guarantees the toddler the right to return fire.

    2. Like the two step “intermediate scrutiny” for Second Amendment cases? I doubt you have any issue there.

  5. “a woman faces a substantial obstacle when she is “deterred from procuring an abortion as surely as if the [government] has outlawed abortion in all cases.””

    That seems to make the adjective ‘substantial’ meaningless (and maybe even obstacle). Surely substantial burden to doing something has to mean something less than completely forbidden?

  6. How many heart bypass surgeries are conducted in Kentucky?
    How many routine brain surgeries are conducted in Kentucky?

    Every little town doesn’t have it’s own hospital anymore, and those that do often serve as “feeder” hospitals to larger ones elsewhere. Emergency medicine has gone from “scoop & run” to “stabilize and ship” — the ambulance of 2020 is often better equipped than the small hospital’s ER was circa 1970.

    Abortion is an elective surgery and most elective surgeries are now conducted in large regional hospitals which increasingly specialize in (and are known for) specific surgeries. Mass Eye & Ear in Boston for retina surgery. Dana-Farber for cancer, and that’s largely because of the Jimmy Fund and the Red Sox. Etc.

    It’s not just crossing a state line — people from all over the world fly into Boston for medical care. Often the local community hospitals will refuse to perform all but the simplest (or most urgent) surgeries — otherwise referring. A lot of health plans encourage this with lower co-pays if you go to a hospital with lower morbidity & mortality stats for the specific surgery.

    Reality is that people in rural areas (and states) routinely travel hundreds of miles for surgical care — why should abortion be any different?

    So what if you can’t get an abortion in Kentucky? I’d rather see that than another Kermit Gosnell’s “House of Horrors” or the much higher morbidity rate of a facility performing an infrequent procedure.

    A six hour drive, or 60 years of incontinence — which is the lesser evil???

    1. “Abortion is an elective surgery”

      Except when it’s taking a pill.

    2. *Wealthier* “people from all over the world fly into Boston for medical care.” People with insurance and the means to shop for the best surgeons travel long distances to reduce the risk of something going awry. But how many people do this for basic outpatient procedures? Do you fly to Boston to get a hangnail looked at? A 2″ cut on your hand stitched? To have a pharmacy fill a prescription for a pill?

      If your regional hospital is religiously affiliated, that 60 mile drive might turn into 120 or more miles as you have to travel even further to find a hospital willing to provide the procedure. Having crossed Texas twice by car myself, things could get even more expensive and difficult.

  7. It’s quite interesting that the right views asking a nun to sign a piece of paper expressing her order’s beliefs is a “substantial burden,” but these laws are not.

    1. What the right wants is neither interesting nor, in the medium to long term, particularly important.

    2. Hi Bernard, sign this paper saying you oppose actively committing genocide yourself. We, the government, need you to sign this this paper, because once you do, legally the government will be able to commence the genocide.

      You going to sign the paper?

  8. My bar for undue burden is every ‘common sense’ infringement on the second amendment.

    How about before an abortion the mother has to get a permit from the local sheriff, including a $200 application fee? Is that undue?
    How about before she can get the permit she has to pay for and take a class in fetal development? Is that undue?
    How about before she gets the permit she has to pay for and undergo a full background check including fingerprints? Is that undie?
    How about if the sheriff denies the application there is no appeal process? Is that undue?

    1. Is that undie?

      Undue, damnit. I knew that would happen, I caught two others of them.

    2. She also should have to demonstrate a “good and substantial reason,” and being too cheap and selfish to bring a baby to term doesn’t qualify.

      1. Back in the ’90’s, there was talk of a “Male Roe” case — if the father didn’t want to be “inconvenienced” by 22 years of child support, he could give the mother the cash price of an abortion and no longer be responsible.

        1. Makes sense. If women are to have the “choice,” they should bear the responsibility of it.

        2. And of course that idea went nowhere.

      2. “She also should have to demonstrate a “good and substantial reason,” and being too cheap and selfish to bring a baby to term doesn’t qualify.”

        Being unfit to be a parent sounds like an excellent reason to not be one. Best make sure the people doing the deciding are good stout, honest men.

        1. If being unfit to be a parent was the test, most liberals would be forced to get abortions.

          1. Now, if forcing people to get abortions is what this is about, with whom are you arguing?

            1. I support making abortion illegal for people whose genetics we want to propagate, and making abortion mandatory for undesirables. Undesirables includes liberals.

              1. Your opinion in this matter is fully as useful and interesting as in any other area.

              2. Aktenburg78 — read some of Margaret Sanger’s stuff.

                She intended to decrease the births of those she considered “undesirable.”

                1. She had a point, if it would have saved us from you.

    3. “My bar for undue burden is every ‘common sense’ infringement on the second amendment.”

      Carry liability insurance to protect others from your negligence in handling/keeping your chosen weapon?

      ha,ha, of course not, the politicians will just give you an exemption from liability.

  9. The fact that abortion is still even an issue demonstrates why women should never have been allowed to vote. Men realize things like self-determination, individualism, and liberty are the most important things in life. Women think killing babies, shooting off in other men’s butts, and “doing things for the children” are the most important.

    1. “The fact that abortion is still even an issue demonstrates why women should never have been allowed to vote.”

      No, what is shows is that women should never have been allowed to have consent to have sexual intercourse. Leave that decision in the hands of menfolk and all the problems will magically disappear.

  10. The Supreme Court has, collectively, made a mess of abortion jurisprudence as each Justice has sought to graft their own views into the case law. Rather than suppressing their own views for the sake of garnering consensus, the case law is filled with plurality decisions, concurrences, and fractured opinions.

    My own view is that appellate judges should just start sending every abortion case to the Supreme Court as a certified question. It is the Supreme Court’s responsibility to provide clarity to the law, as well as clear standards that can be neutrally applied in cases. If the individual Justices are going to continue acting like a “Court of One” on this issue, then appellate judges should just keep sending certified questions regarding the applicable law, putting pressure on the Court’s docket, and forcing the Justices to deal with their own mess.

    1. re: “It is the Supreme Court’s responsibility to provide clarity to the law”

      Actually, no. That’s the Legislature’s job. The Supreme Court does the best they can but when we have such an obvious “mess of abortion jurisprudence” (and I agree that we do), it should be the Legislature that steps in and clears the slate with a new and hopefully clearer rule.

      1. ” The Supreme Court does the best they can but when we have such an obvious “mess of abortion jurisprudence” (and I agree that we do)”

        It’s messy because the legislators (and their constituents) want it that way. the rule WAS simple (if the fetus is not yet viable outside the uterus it’s in, the owner of the uterus in question gets to make an eviction, on demand.)

  11. The solution to this dilemma is simple and obvious: regulate medical and surgical abortions differently. Allow sale of medical abortifacients over-the-counter, and then tightly regulate the surgeons willing to perform D and C procedures.

    1. “Allow sale of medical abortifacients over-the-counter”

      That would be very dangerous! These drugs have serious side effects even when prescribed appropriately, and to be taken without any medical advice or supervision would be problematic!

      1. “That would be very dangerous! These drugs have serious side effects even when prescribed appropriately, and to be taken without any medical advice or supervision would be problematic!”

        Then don’t take them.

  12. If Barrett gets on the Court, June Medical will likely become irrelevant very quickly.

  13. Thanks for the cluster, C.J. Roberts, more Federal cases means more legal work.

    Sorry, ladies. That’s what you get for lack of self-control.

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