Iowa Supreme Court Follows Roe v. Wade (by a 5-2 Vote) in Interpreting Iowa Constitution

The case is yesterday's Planned Parenthood v. Reynolds, which strikes down a 72-hour waiting period requirement; the court relies on the Iowa Constitution's Due Process Clause and also its Equal Protection Clause. Since this is a state court interpretation of the state constitution, with no federal claim being accepted or rejected, the U.S. Supreme Court won't review the case; but for the same reason, the decision could be overturned by a state constitutional amendment.

Comments

[Michael Ejercito]

I wonder if the Court woild consider a 72 hour waiting period on handgun purchases to be too long.

[Martinned]

Given the different hardships involved, I'm not sure why you'd think that that is a useful analogy.

[bernard11]

Because on this site there is nothing more important than guns. Nothing.

[Rev. Arthur L. Kirkland]

The comments indicate bigoted and authoritarian immigration policies take a back seat to no other issue.

[Michael Ejercito]

What are the different hardships?

[NToJ]

First, driving to the gun shop is cheap. Seeing a doctor on your follow-up visit after the 72 hour wait period is not.

Second, since there are about 65,000 gun stores in the US, for most people driving to a gun store a second time isn't going to be a serious burden. And since gun stores do well in rural regions, even people in remote America probably have easier access to a gun than an abortion. Nationwide there are roughly 2,000 abortion providers. The opinion outlines a perfect example: because of practical problems with scheduling a doctor's visit, women in Sioux City, Idaho have to travel to Des Moines for their second visit (400 mile round trip). Not an easy thing for most of us; especially difficult if you don't own a car, and/or you're working a few jobs and can't find time off. There's at least 7 gun stores in Sioux City.

[NToJ]

Third, the Idaho law prohibits abortions after 20 weeks. The waiting period can have the effect of delaying abortions for some women until after it's illegal, especially when you factor in the time it takes to schedule an appointment at a busy doctor's office. That's really problematic for women who don't discover until weeks 18-20 fetal anomalies that would have adverse affects on their child's future quality of life.

Fourth, some women would prefer to have medication abortions rather than procedural ones, for health reasons. The waiting period would push many women outside the medication period and necessitate a procedure. That's just not true of guns; you'll still get the gun you wanted, 72-hours later. I could go on. It's all in the opinion.

[TwelveInchPianist]

Idaho? I guess corn and potatoes are both starch.

If you get killed because you're unable to defend yourself during the waiting period, then you're dead. That's a hardship.

[JasonT20]

Right. Because criminals are extra likely to break into your home during a 3 day waiting period.

[susancol]

"Right. Because criminals are extra likely to break into your home during a 3 day waiting period."

No, you've got it backwards. A person *might well* be extra likely to want an effective means of defense against one's recently violent boyfriend or crazed stalker while you wait the loooonnngg minutes for the police to arrive. And, the known threat prompting the purchase might inconveniently arrive before the waiting period expires.

Yes, I *have* done pro bono with women who have been the victim of stalking, threats of violence and actual violence. Not once did the pieces of paper (judicial orders) stop a determined fist or weapon.

[NToJ]

Maybe anyone should be able to buy a gun anywhere and that will prevent people from breaking into your house and killing you.

I'm not advocating for wait lists on gun purchases, either. I don't really care if people want to buy guns.

[Dilan Esper]

The "unable to defend yourself" argument is still not analogous to abortion. Because a tiny, tiny percentage of gun purchases are made in situations where a first firearm is urgently needed to address exigent circumstances. Indeed, a fairly large percentage of firearm purchases are made by people who already own firearms.

In contrast, every single pregnancy operates on a counting time clock.

(For the record, if we had a Brady-style waiting period, I would support, as a matter of Second Amendment law, a constitutional right to obtain a weapon within the waiting period upon a proper showing of exigent circumstances. I suspect that only a very tiny number of gun purchases would fall within such a rule.)

[Bob from Ohio]

"Sioux City, Idaho "

Was it over when the Germans bombed Pearl Harbor?

[apedad]

HA! 🙂

[NToJ]

u got me fam

[ActualRightWingPatriot]

It's a useful analogy because it points out the flagrant intellectual dishonesty of the left. When it comes to abortions or gay marriages, any burden is a "burden on a fundamental human right." When it comes to guns, any burden is a "reasonable, common sense regulation" because after all, "the right is not unlimited."

[NToJ]

People can disagree that owning a gun is an important right, at all, much less more important a right as having access to abortion.

[DjDiverDan]

"People can disagree that owning a gun is an important right, at all, . . ."

Sure they can. Just as people can disagree as to whether the Earth is a sphere, or whether it orbits the Sun. Lucky for us here in the United States, the ability of those who disagree with the right to own a gun has been constrained by the Second Amendment. Now if only idiot judges and Justices would understand that the Constitution means precisely what it says, in easy to understand, unambiguous language - "the right of the PEOPLE [NOTE: it does NOT say "the right of State Militias" or "the right of the POLICE", but "the right of the PEOPLE"] to keep and bear arms shall not be infringed."

Whether or not the right of the people to obtain abortions is an important right can also be the subject of reasoned disagreement. Unfortunately for those who think that this is an important right, the Constitution as written and ratified by "We the People" says nothing at all about such a right. If you want that right incorporated in the Constitution, propose an Amendment, just like the Anti-Federalists proposed the Second Amendment. But stop trying to convince us that a rewriting of the Constitution by judicial fiat imposed by unelected Justices of the Supreme Court has any legitimacy whatsoever.

[JasonT20]

"Unfortunately for those who think that this is an important right, the Constitution as written and ratified by "We the People" says nothing at all about such a right. If you want that right incorporated in the Constitution, propose an Amendment..."

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

I suppose the 9th Amendment is just there for fluff. Or maybe it means exactly what it says and your argument is actually contradicted by the plain text of the Constitution.

[NToJ]

"Just as people can disagree as to whether the Earth is a sphere..."

I don't agree with you that preferences of rights is the same thing as objective facts about the universe. I also think the text of the 2A creates a real ambiguity as to whether it was intended to protect an individual right.

"If you want that right incorporated in the Constitution..."

I don't need the Constitution to protect the right. Normal legislation will do. Several states had already legalized it pre-Roe.

"But stop trying to convince us that a rewriting of the Constitution..."

Who the fuck are you talking to? Where in the world did you see me advocate for reinterpretation of the Constitution re: abortion?

[ActualRightWingPatriot]

No, there's no real ambiguity. The founders unequivocally believed in an individual right to keep and bear rams and the 2nd Amendment, in context, makes that extremely clear.

Anyone who claims otherwise is either stupid or intellectually dishonest. There is no third option.

[Sarcastr0]

People disagree as to whether the Founders ideals control, they disagree as to what the Founders meant by arms, the disagree about the militia clause, they even disagree about the historical context, since certainly not everyone could or did bear arms.

That you insist everyone of those who differs from you is either lying or stupid says a lot more about you than it does about them.

NToJ is many things, but stupid or a liar are not one of them.

[James Pollock]

" people can disagree as to whether the Earth is a sphere, or whether it orbits the Sun."

Sure. But the Earth objectively is not a sphere, and it objectively does not orbit the Sun. (The Earth is an oblate spheroid with a rough surface, and the Earth and Sun orbit the common center-of-gravity of the Earth and Sun. These are things which can be checked.

On the other hand, the right of people to possess firearms has not the same absolute history that it's current advocates like to pretend. Consider, for example, Chief Justice Taney's written opinion on whether black men had any rights of any kind in Scot v. Sanderson.

[apedad]

Yeah, all those damn stinking commies in Iowa...

[damikesc]

One might kill another person.

The other absolutely will. Guaranteed.

[DjDiverDan]

Obviously, your right to buy guns is less important that the right to get an abortion. First, your right to buy a gun is actually mentioned in the Constitution, which the right to get an abortion is a right fabricated by Judges, so obviously entitled to greater protection. Second, if you buy a gun, there is only a small probability that any life will be lost, while if you get an abortion, the loss of life is certain, so abortions are obviously a higher priority.

[NToJ]

I don't think the importance of rights has anything to do with their being listed in some document, somewhere.

[NashTiger]

The gun rights don't emanate enough, huh? The penumbra isn't as bright

[Sarcastr0]

NToJ is a pretty serious originalist, or at least an anti-living Constitutionalist. I don't think you're barking up the right tree.

[NashTiger]

Dear Lord, how in the fuck could this headline be any dumber? they weren't "following Roe v Wade" if they went by the State Constitution. They were doing the very opposite

[santamonica811]

Nash,
I assume that it's shorthand for "The court was following the REASONING IN "Roe v Wade." At least, that's how I interpreted.

I take it you're not a lawyer, right? (It's pretty common legal shorthand, in my limited experience.)

[Scarecrow Repair & Chippering]

Don't need to be a lawyer to understand the shorthand. It's ordinary English. He must be pretending to be that ignorant.

[NashTiger]

I take you have no idea what you are talking about?

The case was decided on procedural grounds relying on the Due Process and Equal Protection clauses of the State Constitution, at least according to this blurb. Roe v Wade was not a procedural decision, neither did it rely on any plain text reading. It's "reasoning" involved unenumerated rights not mentioned anywhere

[Sarcastr0]

Substantive Due Process is indeed following Roe.

[NToJ]

The opinion adopts the Roe framework as part of its own state law. See page 54, for example.

[DjDiverDan]

Actually, Roe v. Wade was the very opposite of following the Federal Constitution.

[santamonica811]

Yes yes, we get it. "Blah blah blah . . . . 'Roe v Wade' was wrongly decided. Those stupid SCOTUS justices, who understand the law and the Constitution far less than I do. Blah blah blah. . . . Abortion rights bad; gun rights good. Etc etc etc."

Please let me know if I missed any subtlety in your argument.

[Eddy]

So which parts of the reasoning in Roe v. Wade were most persuasive for you?

[Krayt]

For me, the right to privacy. I wish the court would discover more unmentioned but existing rights The People possess.

Let it cut deep into both parties' desires.

[Eddy]

You mean like all the mentions of property rights in the Bill of Rights ought logically to create a "penumbra and emanation" of property rights just as surely as it creates a penumbra of privacy rights?

That would make a certain sort of sense, if, that is, Roe v. Wade was based on a reasoned and coherent argument.

[MatthewSlyfield]

"I wish the court would discover more unmentioned but existing rights."

Personally, I would find this sort of action by the courts more persuasive if they would quote 9A and stop rather than trying to attach their reasoning to the periphery of amendments 1-8.

[Joe_JP]

Planned Parenthood v. Casey cited the 9A.

"Neither the Bill of Rights nor the specific practices of States at the time of the adoption of the Fourteenth Amendment marks the outer limits of the substantive sphere of liberty which the Fourteenth Amendment protects. See U. S. Const., Amdt. 9. "

[nonzenze]

Let's see, first the part where the enumeration of certain rights does not diminish or disparage all other rights held by the people.

[ And while I do support the 2A/RKBA, I find it very distasteful that the most common refrain (over and over) is "the RKBA is enumerated but Roe isn't". The use of this rhetorical device by those that wish for us to take the text of the Constitution seriously is flabbergasting. ]

The presumption of liberty, the right to privacy. These are things conservatives might consider to their own benefit even though that liberty accrues to everyone.

[Eddy]

"Let's see, first the part where the enumeration of certain rights does not diminish or disparage all other rights held by the people."

It is true that the Roe opinion *mentioned* the 9th Amendment, but only briefly, and as part of a possible alternative rationale.

So I'm not really sure I'd call it part of the reasoning of Roe v. Wade.

Observe how the 9th Amendment refers to rights *retained* by the people. If they never enjoyed a "right" in the first place, it's not protected by the 9th Amendment.

And if conservatism meant legalizing abortion, conservatism would be wrong.

Abortion is no more "private" than men beating their girlfriends in the "privacy" of their home.

[nonzenze]

At the founding, abortion up to quickening (20 weeks) was legal. The first abortion laws weren't passed until the 19th century.

So the idea that the people never enjoyed that right in the first place is factually incorrect.

[Eddy]

As for the meaning of "quickening," here's a hint: "The quick and the dead."

And we know that after conception the child is alive ("quick") regardless of what medieval scientists said.

Is every arbitrary legal immunity in the common law (assuming early abortions were immune) to be regarded as a right retained by the people?

[Eddy]

And I'm curious which part of the common law in 1791 allowed a right to late-term abortions, which are also protected to a great extent by Roe v. Wade?

[Eddy]

Blackstone also informs us that stealing someone's dog is a civil wring against the owner, but not the crime of larceny.

But it does not follow that the 9th Amendment prohibits for all time any criminal punishment for stealing a dog.

[DavidTaylor]

I cannot comment on the legal definition or history of "quickening" but in the history of medicine it has referred to the beginning of fetal motion, which usually occurs after the 13th week of pregnancy. In religious terms, it was traditionally the point at which the fetus acquired a soul, and consequently abortion after "quickening" was banned -- though even Catholicism allowed for abortion prior to that point in gestation.

I would consider "alive" to be something of a red herring, since science has struggled with the concept for centuries -- spermatozoa are "alive" too, yet, as Monty Python reminded us, to consider every sperm sacred leads to trouble!

[Eddy]

See definition 3

https://www.merriam-webster.com/dictionary/quick

[DavidTaylor]

And? Popular dictionary definitions are irrelevant in professions such as medicine and law, in which terms typically have specialized meanings. Besides -- and I'm a cardiologist, not an obstetrician, so I qualify my observation with that -- I have never heard a physician use the term "quicken" or "quick" medically, and I believe it remains a rather antique term.

[Eddy]

Yes it's an antique meaning, but if you want to know the 18th century understanding, you may have to use antique words.

[Eddy]

Dr. Ben Carson was a brain surgeon:

"During slavery, a lot of the slave owners thought that they had the right to do whatever they wanted to that slave. And what if the abolitionist had said, you know, "I don't believe in slavery. I think it's wrong. But you guys do whatever you want to do"--Where would we be?"

Senator Rand Paul is an eye doctor

"The coarsening of our culture towards violent death has more consequences than war. Tragically, this same culture has led to the death of 50 million unborn children in the last 40 years. I don't think a civilization can long endure that does not have respect for all human life, born and not yet born. I believe there will come a time when we are all judged on whether or not we took a stand in defense of all life from the moment of conception until our last natural breath."

[Eddy]

The members of Physicians for Life have, I assume, all sorts of medical specialties

[Eddy]

"though even Catholicism allowed for abortion prior to that point in gestation."

Even if this were true (it's not), the Constitution is a *secular* document and not a church document, and does not speak of souls or quickening at all; it speaks of persons, as in no person may be deprived of life without due process of law.

[DavidTaylor]

From Wikipedia:

"While the Church has always condemned abortion, changing beliefs about the moment the embryo gains a human soul have led to changes in canon law in the classification of the sin of abortion.[28][29] In particular, several historians have written[30][31][32] that prior to the 19th century most Catholic authors did not regard as an abortion what we call "early abortion" -- abortion before "quickening" or "ensoulment."

As for "quickening" -- I did not bring up that concept; I simply commented on your use of it.

[Eddy]

"While the Church has always condemned abortion"

Like I said.

But the Constitution does not enact the canon law of any church, it's a secular document which doesn't refer to souls or quickening and provides that no person shall be deprived of life without due process of law.

Mr. nonzenze brought up the concept of quickening, and I mentioned the etymology of the word - it comes from an "archaic" word meaning "alive."

[Eddy]

I suspect that most physicians are not etymologists and aren't aware of the archaic usage of "quickening," because it was medieval science which gave us the idea that the fetus became alive ("quickened") at the time the mother felt it kicking.

Although it's truly a fascinating discussion, I repeat that the Constitution speaks of persons, not quickening or ensoulment, and it does not adopt the tenets (or Wikipedia's interpretation of the tenets) of any faith.

[Eddy]

And if Roe and Iowa's mini-Roe are the subject of discussion...

...would the U. S. and Iowa Supreme Courts agree, as a "reasonable compromise," to adopt Blackstone's statement of the law of abortion? Of course not!

"I. The right of personal security consists in a person's legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation.

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

"An infant in ventre sa mere, or in the mother's womb, is supposed in law to be born for many purposes. It is capable of having a legacy, or a surrender of a copyhold estate made to it. It may have a guardian assigned to it; and it is enabled to have an estate limited to its use, and to take afterwards by such limitation, as if it were then actually born. And in this point the civil law agrees with ours."

[James Pollock]

"I would consider 'alive' to be something of a red herring,"

If you ask a scientist, they'll tell you that conception involves the combination of the live spermatozoa with the live egg cell. If you ask a lawyer, they'll tell you that life begins at birth. That's the definition we had at Founding. It's the definition we have today. You're "alive" when your live body is withdrawn from your mother's, and you take your first breath.

[nonzenze]

You are substituting your own definition for the one present at the founding. Contemporary sources all define quickening as 'a stage in pregnancy when movements of the fetus can be felt'.

See, e.g. Blackstone's Commentaries.

And yes, the longstanding freedoms held at the founding were indeed retained by the people, and further enforced against the States by the 14A.

[Eddy]

At the founding, employers practice sex discrimination, and set dress codes based on sex for their employees (regardless of what sex they felt they were) and were able to decide whether to furnish their employees with birth control.

In any case, tying down the Constitution with medieval science, and treating a fetus as inert matter when scientific evidence proves it to be alive, is a parody of originalist reasoning.

[nonzenze]

Indeed. As noted above, slavery was practiced at the founding.

In any event, I don't disagree with any of that. I don't believe the Constitution is tied down to an original meaning or intent. That was never my argument or my shtick.

You wrote

Observe how the 9th Amendment refers to rights *retained* by the people. If they never enjoyed a "right" in the first place, it's not protected by the 9th Amendment.

I noted that abortion was permitted at the founding, and hence is retained. That doesn't mean that there cannot be more rights and liberties increased throughout time.

Or maybe I'll say this -- liberty is a ratchet, always increasing.

[Eddy]

"I noted that abortion was permitted at the founding, and hence is retained."

And employer prerogatives (not just slavery) were permitted at the Founding, and by your reasoning are retained under your "non-originalist" interpretation of the 9th Amendment.

"liberty is a ratchet, always increasing"

Is or should be?

[Eddy]

You seem to suggesting that anything the law overlooked in 1791 was a 9th Amendment right. Which would suggest that the 9th Amendment prohibits the legislature from criminalizing the theft of a dog, since that wasn't a crime at common law.

I was suggesting that anything *recognized as a basic right* in 1791 should be presumed to be a 9th Amendment right.

In short, can you find a source from that era which says that early abortions are legal *because early abortions are a fundamental right?*

[nonzenze]

In short, can you find a source from that era which says that early abortions are legal *because early abortions are a fundamental right?*

This is so backwards, implying that anything that is not a fundamental right is somehow fair game for regulation. It inverts the presumption of liberty into a test where there is now a limited set of rights that stands as exceptions to the great sea of government power.

Why don't you show me a source from the era that suggests that it is within the proper scope of government power to regulate abortions?

[Eddy]

"Why don't you show me a source from the era that suggests that it is within the proper scope of government power to regulate abortions?"

I think both of us cited Blackstone. Adopting his position - abortion is legal before quickening, a "heinous misdemeanor" afterwards - would require overruling Roe and Iowa's mini-Roe would put "regulating abortion" within the scope of government power.

If we follow Blackstone and apply your logic, then abortion is a constitutional right before quickening and a heinous misdemeanor afterwards.

That would certainly be an improvement over the court decisions we have now, but naturally the prochoice side is not going to accept the idea of a post-quickening fetus possessing a God-given right to life which it's a crime to violate.

[nonzenze]

Both. We are freer than our parents, who were freer then their parents, all the way back for hundreds of years to the point (not too long ago!) where 99% of the world lived as serfs or slaves (or conscripts).

You are free to believe this is not a positive development, but then I really don't get what you are doing here.

[Eddy]

"You are free to believe this is not a positive development"

I regret to say you're living up to your name. This really has nothing to do with what I said.

[Sarcastr0]

Eddy: If we follow Blackstone and apply your logic, then abortion is a constitutional right before quickening and a heinous misdemeanor afterwards.

nonzenze: I don't believe the Constitution is tied down to an original meaning or intent. That was never my argument or my shtick.

Eddy, I don't think nonzenze is saying that you've decided he's saying...

[Eddy]

I can't speak for him, I can only respond to his invocation of the 9th Amendment.

eg, "yes, the longstanding freedoms held at the founding were indeed retained by the people, and further enforced against the States by the 14A."

So to quote a contemporaneous source:

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

He cited Blackstone to indicate that pre-quickening abortion is a constitutional right.

By the same logic, I can cite Blackstone to say that there is a God-given right to life which is violated by post-quickening abortion.

[Eddy]

I would think that by his logic, the right to life was "indeed retained by the people, and further enforced against the States by the 14A." Even if we define the right to life as only kicking in (ha!) at the time of quickening.

And in fact, the Fifth and Fourteenth Amendments say that due process is required before depriving a person of the right to life. This has historically applied to outlawry - declaring a person outside the protection of the law.

[Sarcastr0]

To take his argument up some (I can't speak for him either) I think his argument was more that there were other sources for rights than the Founders' writings, not that Blackstone was somehow determinative an any positivist way.

When it comes to abortion, so many things have changed about women in society and our relationship to womens' reproduction in the post-Pill world I, as a non-Originalist, wouldn't look solely to the 1700s for guidance regarding this philosophical/sociological issue.

Because the reductive 'life + human = full human rights' is not and has never been an actual thing, much less a static and assumed fact in our history.

[Eddy]

"yes, the longstanding freedoms held at the founding were indeed retained by the people, and further enforced against the States by the 14A."

I showed that, *if we take that premise,* then the right to life as articulated by Blackstone means no killing of a human being post-quickening.

But if the Constitution is allowed to evolve and change, then our greater understanding of embryology counts in favor of the prolife position, since we know the fetus is a living human being from the moment of conception, not just from the moment of "quickening" as the limited science of the funding period taught.

[Eddy]

"Because the reductive 'life + human = full human rights' is not and has never been an actual thing, much less a static and assumed fact in our history."

Of course not, some humans were considered property who had no rights.

[nonzenze]

Sarcastro is basically right on what I was implying, but Eddy is correct that we've covered a lot of ground and the woefully-lacking ability of this comment system to thread/discuss/quote has made it into a hash of an argument.

What's more, I think it's ridiculous to compare the expansion of liberty with its contraction as if they could be symmetric process. I've never accepted that liberties can be removed just as easily as they can be added.

IOW, the longstanding liberties at the founding are the minimum rights retained by the people. They can be added to, but never diminished.

[Eddy]

"IOW, the longstanding liberties at the founding are the minimum rights retained by the people. They can be added to, but never diminished."

Like the God-given right to life post-quickening, as described by Blackstone (whom you cited)?

[nonzenze]

You know, as a matter of political compromise, I would be fine with allowing only medically necessary abortions past 22 weeks, which is anyway on the cusp of viability and comprise less than 1% of all terminations anyway.

The main thing impeding this is that I don't quite trust that you are actually willing to make this deal. You obviously believe that a power beyond human reason requires by moral law to prohibit abortions from the moment of conception. You are entitled to that belief, but you do have to agree that it might diminish expectations that you will follow your end of the arrangement.

[Eddy]

"I don't quite trust that you are actually willing to make this deal"

I never offered any deal.

"You obviously believe that a power beyond human reason" etc.

You haven't looked very closely into the prolife argument, have you?

[Eddy]

In any case, you acknowledged that "the longstanding liberties at the founding are the minimum rights retained by the people. They can be added to, but never diminished."

You cited Blackstone on the very issue under discussion - abortion - and I showed how Blackstone said human beings have a God-given right to life which begins at quickening.

So this right to life, to put it in your terms, can be added to - by accepting the results of modern science and putting the commencement of fetal life back to conception - but the right to life can never be diminished.

[DjDiverDan]

1500 characters is hardly adequate space to lay out an argument why Roe v. Wade was not only wrongly decided, but an illegitimate exercise of raw political power by the Supreme Court which didn't even pretend to be rationally based on the Constitution. I refer you to John Hart Ely's excellent analysis of the decision, in which he concludes that Roe v. Wade:

"It is bad because it is bad constitutional law, or rather because it is NOT constitutional law, and gives almost no sense of an obligation to try to be."

John Hart Ely, "The Wages of Crying Wolf: A Comment on Roe v. Wade", Yale Law School Faculty Scholarship Series, January 1973.

[Sebastian Cremmington]

I agree and when the Supreme Court overturns Roe it will benefit the Democrats because Roe is an indefensible ruling. So Republicans in Texas are going to have to give their stamp of approval to the morning after pill or risk getting beat by Democrats. So we will end up with "liberal" pro-lifer and "conservative" pro-lifers and I guarantee you the vast majority will be liberal.

[Sarcastr0]

SC - you're correct only technically. Post-Roe jurisprudence has put it on better footing as an SDP case.

Politically, this is probably a wash, as the GOP can run on abortion illegal just like they do on keeping guns legal. They're masters at making even the most calcified status quo look like it's under imminent threat, imagine what they'll do with a fresh status quo. There will be only the weakest rhetorical split in either party over the issue - it'll be like guns.

And then there are the practical and moral issues that will effect real actual women in a way well beyond politics.

[Sarcastr0]

So it is indeed the usual reifying your opinion as fact. Because if Ely says it, it's basically more true than the Supreme Court.

Roe is likely not long for this world. I will disagree with the Supreme Court at that point. I will say the Court is wrong in my opinion.

What I will not do is say the Supreme Court is factually wrong because all my opinions are actually facts, and then cite some other opinion piece to show I'm super-correct.

[Joe_JP]

Just to toss it out there, Prof. Ely wrote that famous anti-Roe law article but later on supported upholding it as precedent. He also thought that the funding opinions were wrong on equal protection grounds.

[Sarcastr0]

Not context I knew.
A telling elision!

I don't think it's exactly bad faith, but the Pro Life crowd is certainly willing to spin facts harder than most advocates in service of their ideals.

[Eddy]

So Ely was prochoice, but acknowledged that a decision which reflected his policy preferences was not based on the constitution?

[Sarcastr0]

More telling responses!

Just because you think Roe should be upheld on precedent doesn't mean you're Pro Choice any more than thinking Roe is badly reasoned means you're Pro Life.

This may be overinterpreting a freudian slip, but your essentialize this law as outcome oriented for your opponents' side only says a lot about what your allowable methods are for your side.

[Eddy]

No, I happen to know that Ely was prochoice when he published that article.

"From his obituary:

"Professor Ely had said he supported the availability of abortion as a matter of policy. But he wrote that the Roe decision was untenable as a matter of intellectually honest jurisprudence."

So, to repeat what I said:

"So Ely was prochoice, but acknowledged that a decision which reflected his policy preferences was not based on the constitution?"

"

[Eddy]

Ely's article counts against your side - it hurts your side very much because he agreed with you about the right to an abortion.

[Eddy]

And of course, Ely isn't the only one to acknowledge that Roe was wrong.

Roe herself acknowledged it too.

So did the Doe of Doe v. Bolton.

[Eddy]

So did Dr. Bernard Nathanson, formerly a giant of the pro-abortion movement.

[Joe_JP]

"Roe" and "Doe" were but representatives of wider classes.

The idea that either one somehow over the decades would have changing views of the question is far from surprising. And, "Roe" at least had varying views on the question.

The basic message of the rulings is that a pregnant woman should decide for themselves, depending on her judgment at the specific time. Ely was not a big fan of Griswold v. Connecticut either. But, still, he later agreed with Planned Parenthood v. Casey that Roe should be accepted as precedent & that the abortion funding rulings were wrongly decided.

We can cite various people, including leading lights who think abortion is wrong personally (like Jimmy Carter), who think abortion should be protected.

[Eddy]

I was simply establishing that Ely was prochoice.

So his support for precedent in abortion cases is dog bites man.

His acknowledgement that Roe was bad law is man bites dog.

[Eddy]

And imagine Linda Brown and Thurgood Marshall coming forward and saying that they were wrong, school segregation is a great idea and they're sorry they were ever against it.

Of course, we can't even imagine such a scenario, can we?

How many instances can we think of where the protagonist of a Supreme Court case admits that the decision in their favor was wrong? Or if they lost the case, that they deserved to lose?

Can we imagine Dred Scott saying "now that I think about, I guess they're right, and that I have no rights the white man is bound to respect"?

Can we imagine Suzette Kelo saying "on second thoughts they had every right to take my house"?

[Eddy]

And Norma McCorvey was not always portrayed as a bit player who didn't deserve any screen time.

The pro-choicers pushed her memoir, and did a movie about her life, when she was on board with the prochoice cause.

Now it's all down the memory hall and they're doing the equivalent of removing her image from all those photos where she posed with the Party Chairman.

[BrotherMovesOn]

Pretty sure you didn't miss any subtlety in his, um, argument.

[BrotherMovesOn]

Pretty sure you didn't miss any subtlety in his, um, argument.

[BrotherMovesOn]

Pretty sure you didn't miss any subtlety in his, um, argument.

[BrotherMovesOn]

WTF

[Krayt]

Y u not follow your own name? 🙂

[perlchpr]

Holy shit bro, the squirrels went to town on you.

[BrotherMovesOn]

or mine.

[ReaderY]

Of interest is that the Iowa Supreme Court doesn't form any opinion about the status of a fetus. It just doesn't matter. It states that "abortion is a safe medical procedure for terminating a pregnancy."

But rape is a safe method for initiating a pregnancy. Is it a fundamental right under the Iowa State Constitution? Under the Iowa Supreme Court's reasoning, the fact that a woman is also involved in the procedure simply wouldn't matter to the analysis. The only parties that matter are the person claiming the right and the state.

[Drewski]

Well, I think that analysis should start by looking at the doctrine of seriously dude what the fuck is wrong with your head.

[Krayt]

He is sarcastically saying they didn't look at the rights, if any, of the baby.

Here is the correct answer: there is no evidence of consciousness, and ensoulment is a religious idea that can't serve as justification to pass a law.

[Krayt]

If ensoulment happens at conception, what about chimeras? When two fertilized eggs that would turn out to be fraternal twins intertwine for some reason and create a single patchwork baby of cells from two different DNAs, some here, some there, some organs one, some the other...

Where did the second soul go when they merged? Did God decline to ensoul one egg knowing its destiny? Or did he call one home? Or both and issue a 3rd? Or mosaic the soul, too?

73

There are 73 angels max who can dance on the head of a pin.

[MatthewSlyfield]

"If ensoulment happens at conception, what about chimeras?"

Who cares one way or the other?

The fetus is a genetically distinct organism of species homo sapiens from the moment of conception.

[NToJ]

"The fetus is a genetically distinct organism of species homo sapiens from the moment of conception."

And here I thought there was more to moral worth than just being "a genetically distinct organism of species homo sapien". Is there anybody who thinks it's wrong to terminate a blastula?

[Careless]

yes, a great many people think that. How could you not know that Catholics exist?

They're clearly not people, but if you believe in magical souls, it makes a sort of sense

[NToJ]

Do you believe in magical souls, or in the moral wrongness of terminating a blastula?

[MatthewSlyfield]

The fetus is a genetically distinct organism of species homo sapiens from the moment of conception.

Why should consciousness matter? Are you saying adults in comas have no rights?

[NToJ]

"Are you saying adults in comas have no rights?"

They certainly have less rights than conscious people, don't you think?

[ReaderY]

I'm not being sarcastic. If the Iowa Supreme Court had mentioned any of these arguments, we could discuss them. But it didn't. Not mentioning it certainly suggests it doesn't think it matters.

In Trump v. Hawaii, the Supreme Court at least discussed the question of whether foreigners had any right to object to having their entry to the US safely terminated before concluding they couldn't, much as it did (and for some of the same reasons it did) for fetuses in Roe v. Wade. Roe v. Wade's discussion didn't involve either of the above ideas. (And of course the idea that one should respect foreigners is equally a religious doctrine.) But it did conduct SOME discussion.

[Sarcastr0]

Not rehashing old arguments doesn't mean you don't agree with them. It's not a victory to pick a fight the other side assumes is done with and then declaring victory when they don't show up.

[nonzenze]

But rape is a safe method for initiating a pregnancy. Is it a fundamental right under the Iowa State Constitution?

I'm quite sure that under this ruling, Iowa can continue to criminalize non-consensual termination of a pregnancy.

[ReaderY]

Not so. The US Supreme Court struck down spousal consent laws for terms nation of a pregnancy.

Marital rape was legal in every state until very late, often well into the 20th century. A right to initiate a pregnancy without spousal consent is at least as much part of the nation's history and tradition of choice, at least as much part of the fabric of the whole cloth, as termination. Go through the same history that was done with abortion in Roe, and if you apply the same logic, you get the same result.

[nonzenze]

Yes. Clearly by 'consent', the meaning I was trying to evoke was the consent of third parties. /s

For instance, right now, I'm going to sign a consent form for ReaderY to participate in a pornographic film. And he will not object at all since apparently now consent can now come from anyone: spouses, parents, random internet commenters.

[AmosArch]

The thing that baffles me the most about the abortion debate is how modern society sees the mother as having no duty to the fetus but the father certainly seems to have one. If you're a guy you're basically locked into this nearly unbreakable 18 year contract from the moment of conception even in many cases if it happens through trickery and is at the mercy of the mother's whims. The mother holds all the cards has a generous period to mull things over and can even give away the baby after birth. I mean yeah, pregnancy and birth is painful I'll give you but I'm sure a lot of men might in certain situations not be averse to swap 9 months of bloating and maybe an agonizing day or two to avoid nearly 2 decades of servitude.

[Drewski]

The many other problems in this comment aside, are you under the impression that a woman can have a child adopted to a third party when the father wishes to raise it? Because nothing stops the father from raising the kid and collecting support from the mom, except the fact that you're a terrible - excuse me, "he" - that he is a terrible person.

[AmosArch]

Not really, depending upon the state laws the mother can cut the father out of the picture sometimes completely. There are some regulations to assert paternal rights but these are haphazard and intentionally buried and ignored. Basically no body gives two toots. At least not as much as they do for muh women's rights. Not to mention the she can refuse to see him and dump it at some firestation and no one would be the wiser.

See the top two answers here
http://www.quora.com/Can-a-single-mot.....rs-consent

[NToJ]

"I'm sure a lot of men might in certain situations not be averse to swap 9 months of bloating and maybe an agonizing day or two to avoid nearly 2 decades of servitude."

Strictly speaking this isn't a duty the father owes the child. It's a legal duty the father owes the State. If you think child support laws are a bad idea, just say so.

[AmosArch]

I'd love to watch a video of you to trying to turn that argument in the other direction in front of a crowd of leftwing college students.

"Strictly speaking, not killing that kid isn't a duty you girls owe the child. It's a legal duty you owe the State."

[nonzenze]

Terminating a pregnancy doesn't burden the State.

It literally makes no sense in "the other direction".

[AmosArch]

I guess the taxpayers hallucinated funding abortion services and PP then.

[nonzenze]

Reproductive health services cost a tiny fraction of what supporting a child for 18 years costs.

[AmosArch]

Alright two can play this game. Trump's wall and immigration policy will save us from having to pay the costs of a lot of abortions to begin with so theres no way you should be against this relative pittance.

[NToJ]

The pregnancy imposes the burden on the woman. Neither pregnancy nor having a child imposes a burden on the father (until the state steps in).

[Joe_JP]

The burden to the father is less but there is a burden on the father, especially given the human nature to love and feel an obligation to care for the child, especially after birth. If the state doesn't step in, in real life, there will be members of the community who are likely to put pressure on the father to, at least in various cases.

[AmosArch]

I have no idea what point you are trying to make, once conception occurs the father's fate generally is in the mother's hands legally speaking. I don't know what you mean or the relevance of 'the state stepping in'.

[NToJ]

"I have no idea..."

Whoa, what a change of pace.

"I don't know what you mean or the relevance of 'the state stepping in'."

So whatever you mean by "legally speaking" is what I had in mind with "the state stepping in". The burden the father suffers is imposed by laws. Pregnant women were burdened by the pregnancy even before the existence of any states.

[AmosArch]

A burden is a burden, the state has no business imposing a vastly unfair one on one side of the family just because the other one is biological just like I don't get to kick you in the shins 100 times because I have a naturally occurring mild leg cramp.

[Smooth Like a Rhapsody]

"Strictly speaking"...you are full of shit.
The child is the person to whom the duty to support is owed.
The mother can not waive it; neither can the state.

[NToJ]

Legal duty. I assumed that Amos was talking about child support. (Didn't you?) The "unbreakable 18 year contract" references child support laws. And he was talking about men's duties, not women's.

[Merlin's Beard]

This was a masterstroke by Iowa's Planned Parenthood affiliate and a colossal blunder by the state's Republicans in the legislature. Iowa's Supreme Court has been on a tear for several years now in interpreting the Iowa Constitution independently of the U.S. Constitution. PP read the tea leaves and realized they likely had a majority of votes on the Court to get abortion rights recognized as fundamental (and protected by strict scrutiny, no less!).

The worst part about it (from a pro-life perspective) is that Iowa's constitution is exceedingly difficult to amend. A proposed amendment has to pass both chambers of the Legislature by a majority vote in two consecutive sessions. (The next session starts in January, after the November elections. Assuming you get a proposed amendment through both the Iowa House and Senate, then it has to sit for another year until the NEXT session the following January.) If you accomplish that, then the proposed Amendment goes to the general electorate for approval by majority vote. (Which means you'll wait until the following November after the second session for the vote.)

[nonzenze]

You could call it a masterstroke, but my reading is that it's a rear-guard action after reading the tea leaves at SCOTUS.

Certainly no new ground has been claimed here.

[Merlin's Beard]

No new ground? Nonsense. Now, as far as Iowa is concerned, it doesn't matter what happens to Roe. I'd call that a step forward for abortion-rights advocates and a giant step backward for pro-lifers.

[nonzenze]

No new ground in the sense that this protects in Iowa what is protected federally by Roe.

Abortions rights have not been expanded, so it's not a "step forward" unless you consider holding your ground to be the equivalent of moving forwards.

[Merlin's Beard]

Haven't they? The Iowa Sup. Ct. decided to apply strict scrutiny. That's even better than the undue burden standard applied by SCOTUS. Further, the Court reached out to decide the case both under Art. I sec. 9 and Art. I sec. 6. As Justice Mansfield helpfully pointed out in his dissent, this appears to be a precursor to holding that Iowa Medicaid must FUND abortions.

[nonzenze]

Fair enough, I suppose, insofar as you want to point to future gains that might be realized due to this decision.

I was focusing on the direct effect, so indeed we were just arguing different things 🙂

[ActualRightWingPatriot]

That's why, if and when Roe is overturned, I'd like Congress to prohibit it federally using some BS "interstate commerce" argument. What's good for the goose is good for the gander. Time to show the left what unfettered federal power means and then get everything to be deconstructed.

[ReaderY]

I think Justice Roberts gave away the reasoning he will use to overturn Roe in Trump v. Hawaii. He clarified that longstanding precedents holding that foreigners lack constitutional rights and giving US officials essentially unfettered freedom of choice remain good law today. And that part of Roe - that a fetus is also not constitutionally a person with full constitutional rights - will therefore doubtless stand, enabling Justice Roberts to say that Roe's core decision is being reaffirmed and the rest is merely being modified.

But the fact that the due process clause lacks "prenatal application" doesn't make sentiments compassionate of foreigners mere religious ideas inimical to the what Constitution stands for. The idea that "We hold these truths to be self evident, that all men are created equal, and they are endowed by their Creator with certain unalienable rights..." remains a permissible though not an obligatory basis for legislation, and contrary to what some of Roe's successor decisions held, this idea and its surrounding history of natural-law concepts is neither barred by the First Amendment, not susceptible to being declared simply wrong by a judicial decision.

[ReaderY]

Sorry, extraterritorial application for foreigners (Eisentrager), prenatal application for fetuses (Roe).

[Joe_JP]

Various states have determining that funding of abortion as other health procedures are funded is required by state constitutions. The Iowa Supreme Court also recognized that same sex marriage was a protected form of marriage under its state constitution as well. Homosexual sexual relations was protected that route in various states, including places like Kentucky, before Lawrence v. Texas.

There is room for some development here up to a point. As far as possible, I prefer states to decide these questions under state constitutions. Some states follow federal precedent when applying cognate state constitutional provisions but sometimes not strict overlap text. Certain states also have express rights to privacy or some other such related concept.

Early on the opinion here speaks of "due process and equal protection." The text of the Iowa Constitution has language that protects the second in somewhat different ways than the U.S. version. I gather too that many here, this being a libertarian leaning blog, are suspicious of artificial limits on individual liberty like three day waiting periods that don't trust people to make decisions themselves on their own schedule. Added costs would also concern people akin to costly licensing rules in general.

Finally, it appears the two judges in dissent look at things somewhat differently and at least one appears to be open to some right protected under the state constitution but thinks the law at issue constitutional.

[MonitorsMost]

I only skimmed the decision to see if Judge Sutton's 51 imperfect solutions was cited, it was not. I will have to give a Closer read later. In the skim it seems to try heavily on federal law. Interestingly, in the Brethren, Douglas argued vociferously that Roe vs Wade is not an SDP decision, because he opposed SDP as a new-dealer and therefore the right to privacy couldn't be considered a SDP based decision.

[Joe_JP]

He directly denied the right at issue in Roe was "substantive due process" in a footnote in the companion case, Doe v. Bolton. it was cited as some open-ended "vessel to be filled with one's personal choices of values, whether drawn from the laissez faire school, from the socialistic school, or from the technocrats." Basically, open season for judges to determine if a law was "reasonable."

People generally use "substantive due process" in a more open-ended way to mean those rights not specifically procedural (e.g., right to a warrant). The freedom of speech or right to a gun would be substantive due process if the Due Process Clause was used. "Substantive due process" for Douglas' generation, however, had a negative connotation, basically "Lochner."

But, if you read his dissent in Poe v. Ullman, the substantive aspect of due process is more openly accepted. "When the Framers wrote the Bill of Rights, they enshrined in the form of constitutional guarantees those rights -- in part substantive, in part procedural -- which experience indicated were indispensable to a free society. " I don't know if he was totally consistent about it.

[MonitorsMost]

Very interesting. Thank you for your comment.

[MonitorsMost]

Having looked at it a little more, I doubt Douglas had the chance to explicitly contradict himself on his asserted privacy/SDP distinction. Roe was decided in 1973 and Douglas retired in 1974, and he had a debilitating stroke in the interim where the rest of the court decided his vote didn't count. Douglas did cite two Lochner-era SDP cases in Griswold.

As far as I can tell, no one else has ever advocated that privacy and SDP are distinct. It also does not appear that anyone has ever bought the distinction, either now or back in the 1970s.

[Joe_JP]

Douglas' argument in Griswold is that privacy is necessary to fully protect enumerated rights.

This would in his eyes be different than some open-ended "substantive due process," at least as that term is sometimes used. But, again, reading his dissent in Poe etc., he doesn't seem to be totally consistent. This isn't that surprising -- Douglas can be criticized for not be a totally nuanced writer.

"Substantive due process" often is a trope -- it is a warning courts shouldn't have an open-ended power to judge legislation. If privacy is necessary to protect the 1st, 4th, 5th and maybe the 9th amendments, that wouldn't be the case here. But, I think this is largely an academic question except to the sense we use it to understand the use of certain tropes.

[Bob from Ohio]

"(CNN) -- Voters in Iowa chose to remove three high court justices who helped make Iowa the first Midwestern state to permit same-sex marriage. The vote marks the first time a member of the Iowa Supreme Court has been rejected by the voters under the current system that began in 1962.Nov 3, 2010"

I guess the Supreme Court justices in Iowa don't learn too good.

[Rev. Arthur L. Kirkland]

Maybe there are fewer gay-bashing, backward yahoos in Iowa today than there were in 2010.

There's plenty of dirt in Iowa. It was about time they stopped treating certain people like dirt.

[ActualRightWingPatriot]

No one is being treated like dirt if they're not allowed to marry someone of the same sex. It's not normal, and it's not a marriage.

[JasonT20]

Finally, someone that recognizes that only normal people get Constitutional rights!

[ActualRightWingPatriot]

No, everyone gets Constitutional rights. Prior to Obergefell, NO ONE had a right to marry someone of the same sex.

[apedad]

I would turn that around and say EVERYONE has a right to marry someone of the same sex and it was only when states tried to prevent that right, that they were RIGHTLY turned down.

[ActualRightWingPatriot]

When did this "right" arise? In 1868?

[Smooth Like a Rhapsody]

Indeed, apedad; please favor us.
When did this "right" to marry a person of the same sex arise?

[apedad]

Dec. 15, 1791

[ActualRightWingPatriot]

ROTFL! I'm sure gay marriage was really on the minds of the founding fathers.

[Smooth Like a Rhapsody]

Right.
Now that you mention it, I think Washington mentioned this in his 3rd inaugural.

[Sarcastr0]

Maybe don't engage this guy, Smooth. Especially when he's arguing that no Constitutional rights exist that the Founders didn't think of at the time.

It ignores the 14th, and makes things awkward for women, among other things.

[James Pollock]

"When did this 'right' to marry a person of the same sex arise?"

Marriage as a religious rite would be covered under "religion, free practice of" which has been around since the first amendment.

Now, if you meant "when did the right to have the state recognize your non-religious marriage", that's a tougher answer, since it varies from state to state.

[MonitorsMost]

Marriages being recognized by the State is an anachronism arising from religion and the intermingling of church and state in the first place. I'd be perfectly content to have no state recognition of marriage. But, if you're going to have state recognition of marriage, there is no governmental interest in treating to guys getting married differently than a girl and a guy.

[James Pollock]

" Prior to Obergefell, NO ONE had a right to marry someone of the same sex."

Factually incorrect.

[limerickey]

Gotta retool the arguments for the new and improved court. Don't argue for a right to abortion. Argue for a right to cut the umbilical cord at any time. If that fetus wants a life after you cut the cord, it gets to pull itself up by its own soggy little amniotic bootstraps. That should appeal to a modern right winger.

[Joe_JP]

Argue for a "right to self-defense" (including from embryos) and accept that this can mean both the protection of a right to a gun and an abortion. Eugene Volokh as I recall already referenced the connection.

[Rev. Arthur L. Kirkland]

Another spirited meeting of Libertarians For Authoritarian Womb Management (convening jointly with Libertarians For Government Micromanagement Of Certain Medical Facilities).

I know, I know . . . "Libertarianish."

This has been fun, but it's probably time to head toward another session of Libertarians For Bigoted, Cruel, Authoritarian Immigration Practices.

[BrotherMovesOn]

Good one Krayt.