The Right to an Abortion Isn't Going Away

While overturning Roe v. Wade would lead to new restrictions in many states, legal access to abortion would be unaffected in most of the country.


"They're taking away fundamental rights," Senate Minority Leader Chuck Schumer (D–N.Y.) declared during a pro-choice rally outside the Supreme Court last spring. Turning to point at the building behind him, an outraged Schumer delivered another warning: "I want to tell you, Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind, and you will pay the price! You won't know what hit you if you go forward with these awful decisions."

Schumer's vague threat against Justices Neil Gorsuch and Brett Kavanaugh, Donald Trump's first and second Supreme Court nominees, drew a rare public rebuke from Chief Justice John Roberts. "Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous," Roberts said in a written statement. "All members of the Court will continue to do their job, without fear or favor, from whatever quarter."

In addition to impinging on judicial independence, Schumer's comments proved to be both ineffectual and unfounded. The rally where he spoke coincided with oral arguments in June Medical Services v. Russo, a constitutional challenge to a Louisiana law requiring that doctors who perform abortions have admitting privileges at local hospitals. The Court handed down its decision four months later, and it was by no means what Schumer would consider "awful."

Gorsuch and Kavanaugh both voted to uphold Louisiana's law, undeterred by Schumer's threat. But five justices, including Roberts, concluded that the law was inconsistent with the Court's abortion precedents and therefore could not stand.

On the face of it, that conclusion was hardly surprising, because just four years earlier the Court had overturned a very similar Texas law in Whole Woman's Health v. Hellerstedt. But by the time Schumer warned that abortion rights were about to be extinguished, Justice Anthony Kennedy, who joined the majority in Whole Woman's Health, had been replaced by Kavanaugh. Since Roberts had dissented in the Texas case, Schumer perceived a new majority hostile to the Court's landmark 1973 decision in Roe v. Wade, which held that the Constitution protects a woman's right to obtain an abortion.

Schumer did not count on Roberts' respect for precedent. "I joined the dissent in Whole Woman's Health and continue to believe that the case was wrongly decided," Roberts wrote in his June Medical concurring opinion. "The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana's law cannot stand under our precedents."

The fact that Schumer's fears proved wrong, combined with many previous false prophecies of Roe's doom, suggests that we should be cautious in predicting the future of abortion rights now that the late Ruth Bader Ginsburg has been replaced by Justice Amy Coney Barrett, Trump's third nominee to the Court. While the addition of Barrett seemed to cement a conservative majority that takes a dim view of Roe, that development may result in a narrower reading of the 48-year-old precedent rather than its outright abandonment.

Whittling away at Roe, if it means upholding regulations like the ones the Court overturned in 2016 and 2020, would have a significant impact on access to abortion. But the effect would vary widely with geography and income, and it certainly would not amount to "taking away" abortion rights altogether. The same would be true of overturning Roe, which would have no practical impact in most of the country, although it could lead to severe restrictions in some places. Except in states whose constitutions have been interpreted as providing independent protection for abortion rights, those decisions would be left to state legislators, who represent the same wide range of views on abortion as their constituents.

What Roe Said

Roe's critics think that is the way it always should have been. As they see things, the Supreme Court in 1973 overrode the legitimate authority of state legislators by inventing a right to abortion with no basis in the Constitution's text or history. The result, according to this view, was decades of acrimony provoked by the lawless nationalization of abortion policy. Even some supporters of abortion rights, including Ginsburg, have argued that much of that anger could have been avoided if the Court had treaded more carefully.

Although it may be hard to believe in light of the bitter controversy it spawned, Roe was a lopsided decision. Seven justices agreed that a Texas law banning abortion except in cases where it was deemed necessary to save the mother's life violated a "right to privacy" protected by the 14th Amendment's Due Process Clause. But the majority opinion by Justice Harry Blackmun went further than that, laying out a set of complicated and technologically contingent rules for determining whether abortion laws pass constitutional muster.

"For the stage prior to approximately the end of the first trimester," Blackmun said, "the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician." After that, "the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health." Finally, "For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother."

In a 1992 lecture, Ginsburg, then a judge on the U.S. Court of Appeals for the District of Columbia Circuit, criticized Roe's reasoning as well as its breadth. Instead of grounding the right to abortion in a nebulous right to privacy guaranteed by the Due Process Clause, she argued, the Court should have deemed the Texas abortion law a kind of sex discrimination prohibited by the 14th Amendment's guarantee of equal protection. And instead of laying out rules that invalidated virtually all existing abortion statutes across the country, she suggested, the justices should have limited their decision to the sort of law at issue in the case.

"Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable," said Ginsburg, who would join the Supreme Court the following year as Bill Clinton's first nominee. "Suppose the Court had stopped [after] rightly declaring unconstitutional the most extreme brand of law in the nation, and had not gone on, as the Court did in Roe, to fashion a regime blanketing the subject, a set of rules that displaced virtually every state law then in force. Would there have been the 20-year controversy we have witnessed, reflected most recently in the Supreme Court's splintered decision in Planned Parenthood v. Casey? A less encompassing Roe, one that merely struck down the extreme Texas law and went no further on that day…might have served to reduce rather than to fuel controversy."

Casey, the 1992 decision that Ginsburg mentioned, was, as she suggested, a pretty confusing mess. The case—which generated five separate opinions, none of them fully endorsed by a majority—involved a Pennsylvania law that imposed various restrictions on abortion. The challenged provisions included record-keeping requirements, parental consent and spousal notification rules, and a requirement that doctors provide information about "the nature of the abortion procedure, the attendant health risks and those of childbirth, and the 'probable gestational age' of the fetus" at least 24 hours before an abortion.

Pro-choice activists worried that Justice Sandra Day O'Connor, a Reagan appointee, would join four of her conservative colleagues (Chief Justice William Rehnquist, plus Justices Byron White, Antonin Scalia, and Clarence Thomas) in using the opportunity to overturn Roe. But O'Connor instead joined Justices Kennedy and David Souter in a controlling opinion that affirmed the "central holding" of Roe while revising the test for whether abortion regulations are consistent with the Constitution.

The Court rejected the "rigid trimester framework" built by Roe, saying the state's concern for maternal health and its "interest in potential life" are both valid reasons for regulating abortion "even in the earliest stages of pregnancy." It said the constitutional test should be whether a regulation imposes an "undue burden" on the right to abortion, meaning it "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus."

Applying that test, the Court upheld all of the challenged Pennsylvania regulations except for the requirement that a woman seeking an abortion sign a statement affirming that she has notified her husband. "We must not blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases," O'Connor et al. said. The spousal notification requirement, they added, "embodies a view of marriage consonant with the common-law status of married women but repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution. Women do not lose their constitutionally protected liberty when they marry."

Roe author Harry Blackmun wrote an opinion concurring in part and dissenting in part, saying abortion regulations should have to satisfy "strict scrutiny," meaning they must be narrowly tailored to serve a compelling state interest. Justice John Paul Stevens wrote his own partly agreeing, partly dissenting opinion, questioning the Court's decision to ditch the Roe framework and arguing that Pennsylvania's 24-hour waiting period and its requirement that women be "counseled" on alternatives to abortion should have been overturned even under the new standard.

Four partly dissenting justices would have upheld Pennsylvania's law in its entirety. "We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases," Rehnquist wrote in an opinion joined by White, Scalia, and Thomas. "The States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so," Scalia wrote in an opinion joined by the three other dissenters.

Which Burdens Are 'Undue'?

The "undue burden" standard set by Casey predictably led to much debate about what counts as a "substantial obstacle" to abortion. The results have been mixed.

In the 2000 case Stenberg v. Carhart, five justices, including O'Connor, concluded that Nebraska's ban on "partial birth" abortion defined the targeted procedure, also known as "dilation and extraction" (D&X), broadly enough to encompass the far more common "dilation and evacuation" (D&E) method. They ruled that the law, which made an exception only for abortions necessary to save the mother's life, imposed an undue burden because it did not also include a broader health exception.

Seven years later in Gonzales v. Carhart, by contrast, the Court upheld a federal D&X ban, finding that it was not vague enough to cover D&E abortions and, because of its narrow scope, did not impose an undue burden. Kennedy, who dissented in Stenberg, wrote the majority opinion, which was joined by Roberts, Scalia, Thomas, and Samuel Alito, who had replaced O'Connor that year.

The outcome in Whole Woman's Health, decided in 2016, showed that the "undue burden" standard still had teeth. In addition to demanding that a doctor who performs abortions have admitting privileges at a nearby hospital, Texas required that abortion clinics meet the same regulatory standards as ambulatory surgical centers. Those provisions were prohibitive for some clinics and therefore reduced access to abortion. But Texas argued that they were justified by the state's interest in protecting maternal health.

Five justices, including Kennedy, disagreed, finding that the law's medical benefits did not justify the burden it imposed on women seeking abortions. Although Roberts dissented in that case, last year he agreed that the same logic doomed Louisiana's abortion law.

Roberts' concurrence in the Louisiana case shows that a justice's opinion about the Court's abortion precedents is not always decisive in determining where he will come down in a new case. Casey illustrates the same point, since justices who were not necessarily fans of Roe nevertheless were loath to abandon its "central holding." The plurality's explanation emphasized longstanding reliance on the right protected by Roe while alluding to the sex-equality argument favored by Ginsburg.

"For two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail," the controlling opinion in Casey noted. "The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives….A decision to overrule Roe's essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court's legitimacy, and to the Nation's commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe's original decision."

Nearly three decades later, those arguments carry even more force, which suggests that predictions of Roe's imminent demise may turn out to be mistaken once again. But let's assume that most of the current justices are undeterred by the considerations cited in Casey. What would happen then?

Different States, Different Views

Since we're talking about decisions by elected legislators, the answer depends largely on what their constituents think about abortion. Voters' views, in turn, depend largely on where they live.

Nationwide, public opinion about abortion laws has not changed much since the mid-1970s. According to the latest Gallup poll, just 20 percent of Americans think abortion should be "illegal in all circumstances"—a position that is by no means universal among pro-life advocates, many of whom would allow exceptions in cases involving rape, incest, or a life-threatening danger to the mother. In 1975, 22 percent of Americans thought abortion should always be illegal. The popularity of that view reached a high of 23 percent in 2009 and a low of 12 percent in 1990 and 1995.

In 2020, per Gallup, 79 percent of Americans opposed a complete ban on abortion; 29 percent said it should be "legal under any circumstances," while 50 percent said it should be "legal only under certain circumstances." The latter view could cover a wide range of policies, including strict laws with just a few narrow exceptions and liberal laws that would allow abortions in nearly all cases.

Those national snapshots, however, obscure a great deal of interstate diversity. In 2014, according to polling by the Pew Research Center, the share of adults who thought abortion should be legal in all or most cases ranged from 35 percent in West Virginia to 74 percent in Massachusetts. Unsurprisingly, states where that view is unpopular tend to have stricter abortion laws, to the extent that courts allow them. Without Roe, those states could be expected to tighten their restrictions further.

According to a tally by the Center for Reproductive Rights (CRR), "abortion will remain legal" without Roe in 21 states where abortion rights are protected by statute or by judicial interpretations of state constitutions. Seven states lack such explicit legal protection but are not considered likely to enact bans in the absence of Roe. The CRR classifies 22 states as "hostile" to abortion rights, meaning legislators would be likely to severely restrict abortion, or at least try.

Ten of those states already have "trigger" laws designed to take effect if Roe is ever overturned. A Utah law enacted last year, for example, would allow abortion when it is necessary to save the mother's life or avoid "a serious risk of substantial and irreversible impairment of major bodily function." The law also includes exceptions for cases involving rape, incest, or a fetus with a "uniformly diagnosable" and "uniformly lethal" defect or a "severe brain abnormality" resulting in a "mentally vegetative state." Otherwise, abortion would be prohibited.

In a 2020 analysis, Middlebury College economist Caitlin Knowles Myers projected the practical impact of abortion laws that are apt to be enacted without Roe. While legal abortion access would be unaffected in most states, she concluded, it would be nearly eliminated in much of the South and the Midwest, especially for low-income women who can't afford to travel for the procedure.

"A post-Roe United States isn't one in which abortion isn't legal at all," Myers told The New York Times. "It's one in which there's tremendous inequality in abortion access."

A 14 Percent Drop

Without Roe, Myers thinks, 22 states, including the 10 with trigger laws, probably would enact restrictions similar to Utah's. She estimates that the average distance to an abortion clinic for women of childbearing age would increase from 36 to 280 miles. The upshot, she says, would be about 14 percent fewer abortions—around 120,000 fewer annually, based on figures for 2017.

One reason the projected impact is smaller than you might expect: Abortions are already relatively rare in the states that are expected to ban elective abortions. In 2016, according to data from the pro-choice Guttmacher Institute, Texas had 9.4 abortions per 1,000 women between the ages of 15 and 44, compared to 17.3 in California and 27.4 in New York. The rates were even lower in several states: 8.3 per 1,000 in Alabama, 7.6 in West Virginia, 5.5 in Idaho, and 4.6 in Utah, for example. The 22 "hostile" states account for about 42 percent of the U.S. population but only 28 percent of abortions.

Another thing to keep in mind: Abortions are already falling in the United States. Between 2011 and 2017, the nationwide total fell by 19 percent, from more than 1 million to 862,000. During the same period, the number of abortions per 1,000 female 15-to-44-year-olds fell by 20 percent, from 16.9 to 13.5. "The declines are part of trends that go back decades," the Guttmacher Institute notes. Although the drop since 2011 "coincided with an unprecedented wave of new abortion restrictions," it says, those regulations "were not the main driver of the decline." Rather, "the decline in abortions appears to be related to declines in births and pregnancies overall."

The post-Roe legal environment imagined by Myers, while more restrictive than the one women face now, is still much more permissive than the regulatory landscape when the case was decided. At the time, Blackmun noted, most states had laws similar to the Texas statute challenged in Roe, which was even more restrictive than Utah's current trigger law. Those states included Connecticut, Illinois, Iowa, Maine, Massachusetts, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Pennsylvania, Rhode Island, Vermont, Wisconsin, and Wyoming. Today, all of those states either explicitly protect abortion rights or seem unlikely to enact bans if Roe is overturned.

Another consideration in weighing the impact of overturning Roe is the availability of legally approved abortion drugs, which were virtually unknown in 1973 but today account for two-fifths of all U.S. abortions. In other countries, drug-induced abortions, also known as medical abortions, represent an even bigger share of the national total—64 percent in France, 83 percent in Scotland, and 92 percent in Sweden, for example.

Medical abortions rely on the progesterone-blocking drug mifepristone (a.k.a. RU-486), which was first introduced in the 1980s but was not approved in the United States until 2000. The standard protocol currently involves a dose of mifepristone, which thins the lining of the uterus, followed one or two days later by a dose of misoprostol, which causes the uterus to contract. The Food and Drug Administration (FDA) has approved the use of that regimen up to 10 weeks into a pregnancy. In 2018, according to the Centers for Disease Control and Prevention, 78 percent of abortions were performed at nine weeks or earlier.

The FDA generally requires that mifepristone be dispensed in person by a medical provider. But an FDA-approved research project launched in 2016, the TelAbortion Study, aims to assess the safety and efficacy of prescribing the drug based on "a video evaluation over the internet." That project, which was expanded in response to the COVID-19 pandemic, included 17 states as of March.

"A TelAbortion uses the same evaluation procedures and administers the same abortion medications as an in-person medical abortion," the project's website notes. "Therefore, if you follow the instructions, we expect that it will be equally effective and safe."

Last July, a federal judge in Maryland blocked enforcement of the FDA's general requirement that women visit a medical facility to obtain mifepristone, saying it probably imposed an undue burden in light of the pandemic. After the U.S. Court of Appeals for the 4th Circuit declined to issue a stay against that preliminary injunction, the Supreme Court in January reinstated the FDA's requirement pending resolution of the agency's appeal. "Here as in related contexts concerning government responses to the pandemic," Roberts said in the only written explanation for that decision, "my view is that courts owe significant deference to the politically accountable entities with the 'background, competence, and expertise to assess public health.'"

Three justices—Stephen Breyer, Elena Kagan, and Sonia Sotomayor—dissented. In an opinion joined by Kagan, Sotomayor said the FDA rule "imposes an unnecessary, irrational and unjustifiable undue burden on women seeking to exercise their right to choose." She expressed the hope that "the government will reconsider and exhibit greater care and empathy for women seeking some measure of control over their health and reproductive lives in these unsettling times."

Loosening restrictions on mifepristone and expanding the telemedicine option would reduce the impact of overturning Roe. The ability to obtain the drug by mail or at a pharmacy without an in-person consultation would facilitate access for women in states where new regulations force some abortion clinics to close. It also could provide an easier workaround for women in states that ban elective abortions.

Back to the States

Whatever the Supreme Court decides, there is no going back to the widespread and severe abortion limits of the pre-Roe era. In most of the country, neither state legislators nor their constituents favor tight restrictions. Meanwhile, technological advances have given women abortion options that did not exist in the early 1970s.

Still, legislators in some states, if freed from Roe's constraints, are bound to enact new restrictions that will impose real hardships on many women without delivering anything like the victory that pro-life activists would like to see. While something like a 14 percent drop in abortions would be a welcome development for those who view the procedure as tantamount to infanticide, it is a far cry from the goal that has driven the pro-life movement since Roe.

Without Roe, political battles over abortion will continue, but they will mainly involve state-by-state legislative debates rather than arguments about constitutional law and the composition of the Supreme Court. While neither side will be happy with that situation, it will reduce the stakes of any given legislative or judicial decision and turn down the heat of a controversy that has frequently dominated national politics.

The national focus on abortion often drowns out other important issues, reinforcing blind party allegiance, distorting evaluations of judicial nominees, and clouding debates between candidates for federal office. It inspires the sort of passionate, single-minded, us-vs.-them attitude that Chuck Schumer displayed last year as he pointed a finger at the Supreme Court. If Roe were gone, politicians like Schumer would have to find something else to shout about.

NEXT: Brickbat: Wasteland

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130 responses to “The Right to an Abortion Isn't Going Away

  1. tl; dr.

    Shame the Court doesn't hold rights explicitly listed in the Constitution in the same regard they hold ones they made up out of thin air.

    1. And so another meeting of Libertarians For Statist Womb Management (joint meeting with Libertarians For Government Micromanagement Of Ladyparts Clinics is convened . . .

      Carry on, clingers . . . but only so far as your betters permit, as is customary.

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    2. @damilesc - Are you really trying to claim that the right of private individuals to murder other individuals is not supported by the Constitution? That's just absurd. The state can mind its own business and let God pass the final judgment, as He will in fact do.

    3. Ah, but as of Amendment 9, a right does not have to be enumerated in order to exist.

      1. But you'd think the ones that WERE expressly enumerated would be worthy of protection over ones that were not, no?

        1. Rights can’t be wrongs.

          If two perceived rights are in conflict, the perception of one or both is wrong.

        2. Actually, Amendment 9 was inserted precisely because the authors knew The Bill of Rights was not exhaustive and because they want all rights respected, regardless of enumeration.

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  2. "The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives….A decision to overrule Roe's essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court's legitimacy, and to the Nation's commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe's original decision."

    This argument is nonsense on stilts. It asserts that the Court's past decisions should be considered infallible, even if they are obviously wrong, merely because they have existed for some period of time. Apply that reasoning to decisions on qualified immunity, eminent domain, Wickard any other areas of law where the court has set a bad precedent and the tune by Sullum would change. Sullum accepts a living constitution but dead precedent merely because he likes the idea of unlimited access to abortion.

    1. The main advantage of stare decisis is the gain in sureness of legality when people arrange their future affairs. If people count on abortion's being legal and it turns out not to be, there's going to be trouble. If people count on abortion's not being legal and it turns out to be legal, that's not trouble for anybody. Embryos and fetuses don't plan for the future, so they have nothing to gain by stare decisis, but grown people do.

      1. You refer to embryos and fetuses as if they are things, not human beings. Since you're planning for the future, I assume that you are an atheist. Of course, if that belief turns out to be incorrect - which you will not know until after death, there's going to be trouble, no?

        1. One, you are assuming Roberta is an Atheist, an assumption not found in evidence from Roberta's statement.

          Two, what you are arguing is Pascal's Wager, what has to be the weakest argument for the existence of a God. Real or imputed bad consequences have nothing to do with the truth or falsehood of a proposition. And if you're going to argue otherwise, why not argue God's existence by flipping a coin, turing a card, or rolling the dice?

          And if this is a valid argument for the existence of a God, which God? Will you apply Pascal's Wager to not just the Abrahamic God, but to Greco-Roman Gods, Norse Gods, Vedic Gods from India, or Indigenous Gods throughout Asia, Africa, Australia, and the Americas?

          And even if a God existed, as Socrates asked,is a thing good because God commands it, or does God command a thing because it is good? If the former is true, then morality and ethics are arbitrary. But if the latter is true, then morality and ethics exist independent of a God's will and reference to that God's will is unnecessary.

          By Occam's Razor, dragging the Cosmic G-Thang into a debate about abortion is adding way more concepts than is necessary.

    2. Dred Scott was a 7-2 decision.

      1. Not supposed to be here.

    3. It also assumes the exceedingly absurd counterfactual notion that, without abortion, women don't singularly control their own reproductive lives but men somehow manage to both singularly control their reproductive lives as well as women. Like pregnancies just fall out of the sky onto working women while walking down the street and men not only show up afterwards to enforce the birth, but if a pregnancy falls out of the sky and lands on a man, they somehow get to choose whether to have the baby or not.

      1. As well as women's reproductive lives, that is.

  3. The overturn of Roe vs Wade would be fascinating at a number of levels.

    First it would mean overturning a 7 to 2 decision, which would be a big step for any Supreme Court. It may be unprecedented and could mean an end for stare decisis.

    Second it would mean an end to a right that women and couples have had for almost 50 years. Even those who have never accessed this right have assume it was there if needed. There could be real social implications here.

    There are states with, like Wisconsin, with existing laws against abortion that would go into effect. For many years lawmakers have avoided repealing the legislation on Wisconsin's book saying it was irrelevant. A real impact of repealing RvW would be to make states like Wisconsin battlegrounds and might shift the political power in the state.

    A repeal of Roe vs Wade would have little effect on upper and middle class women who would retain abortion rights. They can travel freely. The impact would be on poor women as it always has been. Before RvW poor women died from lack of access to safe abortion. This could well happen again. It is worth noting that it took only the death of one woman in Ireland to effect a change in abortion policy in that country. The same could be turn here.

    1. "abortion rights"
      There's no constitutional right to to murder somebody. In fact the only rights involved are the child's... which are being grossly violated.

      Before RvW poor women died from... abortion
      Good. I hope rich child-killers did too.

      1. So the woman has no property rights to her uterus?

        1. Do men have property rights to their sperm?

          1. Who's trying to steal them?

            1. Well, if the man does not want the child, the woman.

            2. In all fairness, there is such a thing as sperm-jacking, in which a woman inseminates herself from either a used condom or nocturnal ejaculation of the man. It is as equally wrong as forcing an unwanted pregnancy upon a woman.

          2. @damikesc Until a sperm combines with an egg to create a child, sperm is just another bodily fluid, like saliva. It has no inherent "rights", which are a unique attribute of human individuals.

        2. When you put a kid in there 99.9% of the time by your own actions, no.
          These women all know what the biological purpose of sex is. They made their choice.

    2. Access to abortion would be the least of the issues here.

      Overturning RvW means overturning the idea that you have more than the enumerated rights.

      Shadows and penumbra's.

      1. Oh, I strongly doubt it means that. Whether you believe such exist or not, Roe's an extremely bad example to argue that over!

        If you look at the main line of legal argument which led to Roe, it was via precedent regarding birth control, which basically stated that baby-making is fundamental to the US Constitution, because without babies there'd be no people, and without people there'd be no law or constitutions, therefore the right to do, or not do, anything related to making babies is more basic than anything in the US Constitution. I'm being glib but it doesn't take much boiling down of the argument to formulate it that way.

      2. What it means is overturning the idea that the Supreme court is entitled to turn things that are widely illegal into rights.

        The 9th amendment was intended for widely accepted rights that the government suddenly got it into its head to violate, not as a blank check for the judiciary to turn crimes into rights.

        But it seems RBG's only problem with Roe was that the Court didn't also ratify the ERA.

    3. "First it would mean overturning a 7 to 2 decision, which would be a big step for any Supreme Court. It may be unprecedented and could mean an end for stare decisis."

      Plessy v Ferguson was 7-1 and stare decisis is still quite alive.

    4. Dred Scott was 7-2. Guess we should have left it on the books?

      1. Dred Scott was never overturned. It was replaced by a Constitutional amendment.

        1. Probably meant Plessy. 7-1. Overturned. Bad decisions are bad decisions, regardless of their precedential value.

    5. As was relevant to the issue in controversy, Roe wasn't 7-2, it was 9-0. They all had some reason or other to strike down the portion of the statute that applied to her case.

      1. Huh? White and Rehnquist dissented. Rehnquist specifically indicated that there was no 14th Amendment issue.

    6. Second it would mean an end to a right that women and couples have had for almost 50 years. Even those who have never accessed this right have assume it was there if needed.

      This is bullshit. Unless by 'couples' you mean the degenerate 'couple of women', couples have never had this right. Men cannot compel abortions even if they didn't knowingly consent to the conception. And it's so far away from an assumption for them that, while we reward women who have buyer's remorse and punish their 'aggressors', we openly punish men who were knowingly deceived. Sometimes even men who were in no way responsible for the pregnancy to begin with.

      1. the degenerate ‘couple of women’

        And I mean 'degenerate' as in 'redundantly subordinate' not degenerate as in 'morally wrong'.

    7. There is also the example of Communist Romania under Nicholai Ceauşescu.

      Nicholai Ceauşescu thought he was a latter-day Alexander the Great and wanted a 200-million mn army of Macedonians.

      For this reason, Ceauşescu not only banned abortion and birth control, but mandated monthly OB-GYN exams to assure that women didn't go these routes or "accidentally" have falls to produce miscarriages.

      The end result? A generation of abandoned, unloved babies, many infected with HIV/AIDS as a result of poor hygiene, infected surgical tools, and broken autoclaves of Ceauşescu's socialized health-care system. Over 500,000 orphans in all suffered this fate and Romania still suffers the aftermath.

      The Romanian people, however, gave a wonderful gift to the world on Christmas Day 1989, when they rose up, gave Nicholai Ceauşescu and his bitch-wife Elena a speedy public trial, followed by a speedier public execution. I saw it live on CNN and cheered!

      Could it happen here? If the Supremes repeal Roe v.Wade and future Presidents,Congresscritters and Governors get delusions of grandeur, we might find out.

  4. "Second it would mean an end to a right that women and couples..."

    It is not a "right" couples have. The other person in the relationship has only the say in the decision the pregnant woman allows for. The other person in the relationship has absolutely no legal standing in regards to it even if they are married as established by Casey

    1. The fact is that in many cases decisions to end a pregnancy may be made as a couple. It is ultimately a woman's decision but that decision is not made in a vacuum. For woman in a relationship or married may well rely on their partner for help and support in a decision. This is likely to be especially important if there are medical issues in the pregnancy.
      This can be especially important where a couple is starting a family with known medical issues in their background. Currently the couple can rely on genetic counseling to assist them and can terminate a pregnancy if the fetus is affected. This option would not be available to them should RvW be overturned and they live in a state restricting abortion.
      As I noted there are profound social implications.

      1. What you're saying is irrelevant.

        Legally speaking the man only has the say granted to him by the woman.

        1. She's the one with the rights here - he only has privileges.

        2. Legally speaking the man only has the say granted to him by the woman.

          Not even that. If she decides to abort, there's nothing he can do. If she decides to keep the baby, he can't leave. Moreover, this is true in plenty of cases where men didn't knowingly consent to the pregnancy and even a number of cases where the men had nothing to do with the pregnancy. The man has no say in the issue. None. The idea that women have no control over their reproductive lives is an outright lie that should be pulled out at the root and have the earth it sprang from salted and scorched.

      2. "The fact is that in many cases decisions to end a pregnancy may be made as a couple."

        Untrue. If the man wants it and the woman does not, the decision will go the woman's every single time. The man has zero say.

        1. Try reading what I said again. You obliviously missed my point.

          1. And you are ignoring that the other person in the couple has no legally enforceable rights in regards to the decision on whether an abortion should happen or not. Therefore, the "couple" does not have rights, only one member does. The construction as written is incorrect.

          2. No he didn't. You lied and are pretending that, if you ignore the fact that you lied or take the view that you didn't lie, you have a point.

            It's every bit as much of a lie as if I'd said "I'll pay you a couple dollars." and only paid you one. Even if I backpedal and say "I'll pay you the second dollar once you spend the first." or "depending on how you spend the first." the initial statement is still between incorrect and a lie. The only distinction is whether you're stupidly malicious or maliciously stupid.

          3. You were still incorrect.

            The man has literally zero say. It is exclusively the woman's.

      3. "Currently the couple can rely on genetic counseling to assist them and can terminate a pregnancy if the fetus is affected. This option would not be available to them should RvW be overturned and they live in a state restricting abortion."

        Anyone with enough money for genetic counseling and testing a fetus has enough money to travel to where abortion is legal. If Roe v Wade is overturned, it's up to the state legislatures, and I see no chance that Washington or Massachusetts is going to ban it, and little chance of a ban in at least 20 states. Even if all 50 states banned abortion, Canada won't.

        So abortion bans are only going to affect the poor in some states - until charities are privately funded to pay for the travel as well as the procedures.

        1. You’re a fucking murderer.

          1. You're a fucking Holocaust denier, so you only care about murder when it's a small clump of cells rather than any living human who happens to be Jewish.

            1. Let me know when you’re no longer a clump of cells you psychopathic fuckwit.

  5. Murder, Jake, its spelt m-u-r-d-e-r.

    1. And "it's" is spelt I-t-'-s. Fuck touch screens.

      1. Also fuck the lack of edit button.

  6. Is this funny, yet?

  7. I'm done listening to or reading men's opinions on this. And not particularly interested in the opinions of old women who have the same chances of getting pregnant as men.

    1. Old women know well the concerns of a problem pregnancy and have a right to speaks up. They may have had the procedure or if not likely know someone who has.

      1. Everyone has a right to speak up. I retain my right to ignore those who don't have a personal stake in the issue. And, if those sorts do speak up, to point out that they have no personal stake in the issue.

        1. What about the child being killed, J(ew)Free? Will you listen to their opinion?
          There are two people involved in every abortion, but you ghouls only fret about one.

          1. Oh, Hell, we've got another Misek here...

            1. Someone else who has never been refuted here. I don’t think so.

              Something said that you can’t refute? A dime a dozen.

        2. Men have no personal stake in the issue?

          1. The nanosecond men ejaculate, personal stake ends for them. Maybe the sperm has some personal stake after that point - but ain't heard squat from them ever in this public argument. Maybe they're too busy swimming - and at any rate, their stake also ends the nanosecond the egg is fertilized.

            For that matter - I don't think women have a personal stake in the fetus either. Which is why the fetus is not their property. Only in the egg. BUT they do have a personal stake in the uterus. And they are the only ones who have a legal responsibility nine months later. All jmo. So its long past time for them to define the bounds of the public debate - and for men - like me - to STFU.

            1. "The nanosecond men ejaculate, personal stake ends for them."

              Seems odd that they have to pay child support and all. Given that they have no personal stake.

            2. Bullshit!

              Human life is a continuum.

              Both the man and the woman CHOSE to participate in the only activity that creates a new life.

              Both the mans sperm and the woman’s egg are living. Their living DNA contains their living genetic histories passed down from the beginning of life on earth.

              These combine at conception, still living, to create a new human individual who is the real continuation of both and ONLY both biological parents.

              That connection to the father is real and permanent.

              1. It's a gray area with no possibility of finding the "right" answer.

                So that tells me we should stop throwing around categories like they mean something and pick the policy situation that results in the most human freedom.

                Or we could just look at what Finland does and copy that.

                1. How doe murder promote freedom or liberty for the victim?

                  It denies them both in totality forever.

                  Would you like that for yourself?

            3. So no child support then huh. Their responsibilty ended in a nanosecond.

    2. I am done listening to people who don't pay income tax telling me how much tax I should pay and what should be done with it.

    3. Then would you cede to women's opinions, even if they decided against yours and made it the law of the land?

      If you say you can't have thoughts on something just because you aren't immediately affected, then no one has any business having thoughts on anything outside of their solypsistic realm.

      Bring your thoughts on, just make sure they pass muster with reason and reality.

  8. At the end of the day, these are two excellent smartphones for someone that has an $800 budget.

    Download Akpan and Oduma Comedy

  9. Abortion is the greatest genocide in earth’s history. It serves the murderous convenience of 750000 irresponsible women per year in the US alone.

    Science, not politics, determines when a new distinct human life exists. Logic affords every human being the right to life.

    DNA Fingerprinting science established in 1989 PROVES what everybody already knew but the murdering abortion advocates deny. That from conception a new living distinct human individual exists.

    It is about the right to choose not to participate in the ONLY activity that invites a living human inside a woman’s body. There is no right to choose murder.

    1. Blockquote>Science, not politics, determines when a new distinct human life exists. Logic affords every human being the right to life./blockquote>

      And how does science define 'human being'?

      1. Human life.

    2. If a fetus has full human rights what right does it have to force the woman to use her uterus to support its life? Isn't that slavery?

      1. The woman CHOSE to invite the distinct human life inside her uterus when she had intercourse. That’s how human life is created.

        That’s when she used her choice and it resulted in a new human being inside her uterus.

        There is no right to choose murder.

        1. Get out of here with that bullshit, it's tissue until there's real brain activity. You need to find a fucking time machine and go back to 1850 and enjoy your life. Now women can do what they fuck they want. Fuck people who claim to be libertarian and then want to take away other people's right because they're a different gender. You're going to fail. What a bunch of hypocrites.

          1. “Real brain activity”.

            Be careful what you wish for fuckwit, you won’t have a right to life.

            You’re the one trying to give away your inalienable rights along with the rights of others.

          2. It is interesting that a number of Libertarians see liberty as only applying to themselves and not others.

            1. I’ve always said that the recipe for a fascist is to take one liberal and add power.

              When your personal liberty is the ultimate goal, the liberty of others must be discarded.

          3. Fuck off, woman hater. The only reason men support abortion is to get sex with no consequences.

        2. 9 months of covid eviction moratorium.

    3. It is about the right to choose not to participate in the ONLY activity that invites a living human inside a woman’s body.

      WTF. You really believe living humans are 'invited' into a woman's body?

      1. Yes. The act has a pretty well-known result.

      2. That's their 1899 logic. They don't actually know how the human body works. Trump toadies and religiosos are trying to take over the comments, don't let them. We'll do what we fucking choose to do with our own bodies. Whether that's drink whiskey til my liver rots or my gf gets an abortion or the guy down the street runs a 100 mile marathon.

  10. Who are you and what have you done with Sullum?!

  11. "those decisions would be left to state legislators" -- not if a federal law then gets passed making abortion a federal crime. You think the current proponents of a state-by-state approach wouldn't push for such a law?

    1. Have they ever? Even once?

    2. They passed one some years ago outlawing partial-birth abortions by persons in or affecting interstate commerce, and it got struck down based, IIRC, on the lack of a Congressional power to regulate choice of medical procedures.

  12. Women have a right to do what they want with their bodies just like the rest of us. Roe struck a balance there that the states obviously couldn't. All you so-called libertarians who think women should fold to your fucking 19th century logic are a bunch of goddamn hipocrits. As a real libertarian if you want to snort coke til your goddamn explodes then do that. If women want to have an abortion then they should be able to do that (regardless of the state include those dumbass bible thumper states), if you want to do whatever you want to do and it doesn't hurt me then go ahead and do it. That's what libertarianism is, it's not telling me or women what to put or let come out of our bodies. Goddamn trump toadies.

    1. brain* explodes 🙂

      1. Relax, have some Sanka. 🙂 I'm a small 'l' libertarian and I'm all with you and we're not all hypocritical knuckle-draggers.

        And in justice, not all of the other side is all bad either, simply many are without understanding.

        Maybe a 100 percent effective Male version of The Pill and a 100 percent effective procedure of transoption (transplant of embryos from one womb to another) will satisfy reasonable people's concerns (The Vatican, Westboro Baptist, Nazis, and Communists being the obvious excluded parties here.)

    2. ...and the human she helped create? Their rights are immaterial?

  13. I disagree with the initial premise that abortion is a right; NAP.

  14. Don't worry, Roe will never go away. You can always count on a supposedly conservative justice to make a bid for "strange new respect".

    Given his ridiculous opinion in Bostock, my money is on Gorsuch.

  15. Abortion is one of the matters that should be left to the states.

    1. Wrong.

      The right to life is an inalienable right belonging to every living human in the US.

      Nobody, state or private can give or take away an inalienable right.

      1. "The United States federal government should force women to give birth against their will, even at the cost of their own health."

        --The individual freedom people

        1. The women chose to fuck which is making a contract with a new life that will mature for 9 months in their bodies then leave.

          An eye for an eye.

          1. You're not supposed to admit that this is entirely about policing women's social lives.

            1. An eye for an eye is about killing murderers.

              Police only need to bring them to justice.

        2. Tony thinks murder is justified as long as it doesn't inconvenience anyone.

          1. How many funerals have you attended for miscarriages?

            None? So you don't think it's actually a child dying, hypocrite.

    2. I grew up in the sixties and at that time number of states thought that segregation was also a state's right issue.

      1. I live just outside Chicago today and, apparently segregation is the CPS's right/choice.

      2. I remember from my history book that slaves weren’t considered humans deserving of rights.

      3. You just equated segregation to outright murder.

        1. "You just equated segregation to outright murder."

          When you understand why there are plenty of people that don't think that abortion is murder, outright or not, then you will understand why so many people are not opposed to abortion.

          Really, I don't see many with anti-abortion views that are really consistent with that.

          1) If abortion was murder, then there should certainly not be any exceptions for rape.
          2) If abortion was murder, then both the doctor and the woman seeking an abortion would be equally guilty of murder and should serve 25 to life.

          Yet we don't see "pro-life" politicians or even any but the most radical activists say anything like this. Trump suggests in a debate in 2016 that a woman that gets an abortion should receive some punishment, and what happened? Most of the anti-abortion crowd was quick to say that they didn't agree. And as much as they like to bring up Gosnell, none of them are proposing punishments for doctors of more than a few years in prison. Gosnell really did murder babies. The counts he was charged with were the several documented cases where the pregnancy was several months in, and he severed the spinal cord of a fetus delivered alive that could have lived. (Plus counts for endangering the women.) By not pushing for punishments that match those for murdering someone that has been born, they are at least implicitly acknowledging that an embryo or fetus well short of viability is not a person. If they really believed that killing a fetus that was not developed enough to survive on its own (let alone an embryo that doesn't even have human features yet) was the same as killing an infant, child, or adult person, then they would insist on the same punishment, and for both the doctor and the woman.

          How much support from the public would you get for a law that punished a woman that got an abortion with 25+ years in prison the way someone convicted of premeditated murder is punished now? Would you even get 20% of voters to say that was the right punishment?

          1. Justice isn’t a popularity contest.

            1. "Justice isn’t a popularity contest."

              In a democratic republic like ours, writing and passing laws is the job of people elected by popular vote. And the elected President can sign or veto those laws, and that President appoints judges that will then interpret how those laws apply to specific cases, with each judge's appointment subject to confirmation by Senators that are elected, and don't forget that the Constitution was originally ratified by legislatures or conventions of people chosen popularly by the people of each state. Sometimes a super-majority is required to enact law, such as in amending the Constitution and ratifying treaties with foreign nations, but that just means a higher percentage, not that popularity isn't the deciding factor.

              You can hold to a theological or philosophical position that there is absolute moral truth that doesn't depend on the number of people that believe in that truth. That is fine. But the power to force other people to live by those moral laws is derived from where all legitimate government power is derived: the consent of the governed as determined through free, fair, and open elections. If you want people to have to live by what you think is moral truth, then you need to convince at least a majority of the electorate to agree with you. It would take more than a simple majority if it would require amending the Constitution to impose your will.

              Do the work then. Convince enough people in this country that abortion is murder, and your side could get a constitutional amendment declaring it so passed and ratified. If you can't convince enough people that abortion is murder to get it outlawed, then it doesn't matter if you have "Truth" and "Justice" on your side, because you correctly would be denied the secular power to impose your beliefs on everyone else.

            2. Oh, and don't think that I missed that you only decided to take issue with my last questions, ignoring everything else that I said completely. I'll assume that means that you simply don't have a counter-argument to any of that.

              1. Laws that violate inalienable rights, like the right to life, may be popular in an unjust republic.

                That is what you advocate. Nothing more.

                1. "Laws that violate inalienable rights, like the right to life, may be popular in an unjust republic."

                  "That is what you advocate. Nothing more."

                  And you keep dodging my point. Convince me and a solid enough majority that abortion is denying a person a right to life, and then you'll get to impose your idea of what is just on the whole country. So far, all you've done is assert that it is so. Nothing more.

                  1. You and may others are bigots. You cannot be convinced because you refuse to consider the irrefutable scientific and logical counter arguments that prove a fetus is a living distinct human life, like all others, deserving the inalienable right to life.

                    You choose to be irrational by denying DNA fingerprinting science and the definition of life, and can’t be reasoned with or convinced to be rational.

                    Criminals like you only understand being coerced by threat of real punishment. In a just society laws and the justice system would do that.

                    People who value justice will continue to expose your corruption until laws and punishment “convince” you.

                    You are a murdering cunt.

                  2. Why don’t you demonstrate the feeble mental gymnastics you employ to convince yourself that a fetus doesn’t deserve the inalienable right to life?

                    One fuckwit suggested “real brain activity”. Demonstrate yours.

                    1. "Why don’t you demonstrate the feeble mental gymnastics you employ to convince yourself that a fetus doesn’t deserve the inalienable right to life?"

                      Enough trying to turn this onto me when you won't answer my questions. You replied to my comment, you can address what I am saying or I can ignore you as not being worth my time.

                      If abortion is the murder of an innocent, why do restrictive abortion bills proposed or passed in recent years make exceptions for rape and incest? Why don't they propose punishment at all for the women seeking the abortion or punishments proportional to that level of crime for the doctors? As another issue that anti-abortion activist won't answer: While they do say that they make exceptions for when the woman's life is at risk, why did that not save Savita Halappanavar in Ireland? Why was her fetus that the doctors agreed had no chance of survival prioritized over her life? Why wouldn't something similar happen in the U.S. in states that outlawed abortion?

                    2. The issue is abortion. If the fetus deserves the inalienable right to life, abortion is gone.

                      Every other issue becomes irrelevant compared to the baby’s right to life. Just as you would consider reasons to murder you as irrelevant.

                      I hope you deny that a fetus is a distinct living human being because nothing could better demonstrate your bigotry.

                      Still I have provided the evidence of science and logic that demonstrates a fetus is a distinct living human being like all the rest of us who enjoy the inalienable right to life.

                      You, not me are the one advocating initiating violence against the fetus. You are the advocate for denying the fetus the inalienable right to life.

                      So it is necessary that you demonstrate what has convinced you that the fetus doesn’t deserve the right to life.

                      Why won’t you?

                    3. "So it is necessary that you demonstrate what has convinced you that the fetus doesn’t deserve the right to life.

                      Why won’t you?"

                      Since you are still dodging, I'll lay it out for you and explain as clearly as I possibly can.

                      buckleup made a statement that refers to abortion as being "murder".

                      I did not contradict that with my own argument in my reply to him. My point wass that his side (and yours) do not even try and push for laws that actually reflect that belief. The strongest anti-abortion legislation that anyone has tried to pass in the U.S., let alone the laws against it that applied before Roe, still comes up well short of treating it equivalent to murder, with the lack of any punishment for the women seeking abortion being the most glaring evidence of this.

                      In all of your replies to me, you have only repeated this assertion that it is murder, and you have completely dodged this whole point I am trying to make. You are ignoring my argument in favor of saying only what you think is your best argument, and you are trying to force me to debate only on your terms. That isn't an intellectually honest way to discuss a contentious issue, and it doesn't give me any incentive to continue the conversation. I simply refuse to switch to your preferred terms of debate. I won't answer any of your challenges until you answer those basic questions that were in my first comment, and that I asked again clearly in that 1:52am post. Once you address that, then I may feel like continuing the conversation and tell you why I disagree with the assertion that abortion is murder.

                    4. The issue is abortion not your irrelevant questions.

                      I don’t answer irrelevant questions. That’s your answer.

                      You are dodging the only question relevant to abortion, the question whose feeble answer ends abortion.

                      What logic and science has convinced you that the fetus doesn’t deserve the inalienable right to life?

                      I’ll give you a hint, it’s got nothing to do with popularity.

                    5. If you’re answer is logically or scientifically irrefutable, then you will have demonstrated that the fetus in fact doesn’t deserve the inalienable right to life and I will no longer oppose abortion.

                      Why would you avoid answering the question?

                    6. "If you’re answer is logically or scientifically irrefutable, then you will have demonstrated that the fetus in fact doesn’t deserve the inalienable right to life and I will no longer oppose abortion."

                      Why would I ever believe that you'd be willing to change your position? You've clearly demonstrated that you will ignore anything I say that you don't want to consider. Case in point:

                      "I’ll give you a hint, it’s got nothing to do with popularity."

                      I already addressed this above. Popularity has nothing to do with whether something is logically or scientifically true, but it has everything to do with what laws you can pass. I might as well have been talking to the wind.

                      You are clearly uninterested in what I have to say. You just want the opportunity to call me a "murdering cunt" and otherwise insult me as you carry on with "owning" a lib. I've decided to stop even trying to convince you, and I won't sink to your level of insults, as much as I might want to, so, good day, sir.

                    7. You said that laws reflect popularity but laws are supposed to reflect justice.

                      Popularity is irrelevant to justice. Nowhere is justice defined by popularity.

                      By focussing on the popularity of abortion as you advocate for it you obviously don’t want to address the question of the justice of abortion.

                      The question “ What logic and science has convinced you that the fetus doesn’t deserve the inalienable right to life?” Is absolutely relevant in the debate about justice.

                      That’s why you won’t answer it.

  16. Libertarian journalist Sullum omitted one detail.
    The Libertarian Party Platform of June 17, 1972 said:
    “We further support the repeal of all laws restricting voluntary birth control or voluntary termination of pregnancies during their first hundred days.”
    LP Candidates were John Hospers and Tonie Nathan. Ours was the first viable party to field a lady candidate for vice-president and secure for her an electoral vote–12 years before the Dems finally followed our lead. The electoral votes were counted in December.
    On January 22, 1973, 45 days after the electoral votes were counted the Supreme Court decided in ROE v. WADE:
    “(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician. …” The Court basically copied the 1972-1976 LP plank.

    1. Two wrongs don’t make a right.

    2. I'm all with you on the pro-choice viewpont, Hank, but can you please direct me to the memo or amicus curaebrief from the Libertarian Party to the U.S. Supreme Court that would show that the Supremes copied the Libertarian Party? This I want to see...

  17. I don't really believe abortion should be legalized as the world will be empty if the Doctors that will do the abortion had been aborted when born. Thanks for sharing

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