Fifth Circuit Reinstates Texas Ban That Banned "Non-Essential" Medical Procedures, Including Most Abortions

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


From yesterday's In re Abbott, Fifth Circuit Judge Stuart Kyle Duncan, joined by Judge Jennifer Walker Elrod:

To preserve critical medical resources during the escalating COVID-19 pandemic [especially "PPE," personal protective equipment], on March 22, 2020, the Governor of Texas issued executive order GA-09, which postpones non-essential surgeries and procedures until 11:59 p.m. on April 21, 2020…. [The order] applies to all licensed healthcare professionals and facilities in Texas and requires that they:

"postpone all surgeries and procedures that are not immediately medically necessary to correct a serious medical condition of, or to preserve the life of, a patient who without immediate performance of the surgery or procedure would be at risk for serious adverse medical consequences or death, as determined by the patient's physician."

Importantly, the order "shall not apply to any procedure that, if performed in accordance with the commonly accepted standard of clinical practice, would not deplete the hospital capacity or the personal protective equipment needed to cope with the COVID-19 disaster." Failure to comply with the order may result in administrative or criminal penalties …. The order automatically expires after 11:59 p.m. on April 21, 2020, but can be modified, amended, or superseded….

GA-09 applies to abortion providers (alongside providers of many other medical services), and the District Court issued a temporary restraining order against enforcing it. The Fifth Circuit majority essentially vacated the injunction, but left open—grudgingly or not, you decide—the possibility that GA-09 might be blocked as to those women for whom it essentially denies an abortion (because they are close to viability, past which abortions become illegal) rather than just delaying it:

We emphasize the limits of our decision, which is based only on the record before us. The district court has scheduled a telephonic preliminary injunction hearing for April 13, 2020, when all parties will presumably have the chance to present evidence on the validity of applying GA-09 in specific circumstances. The district court can then make targeted findings, based on competent evidence, about the effects of GA-09 on abortion access….

Respondents will have the opportunity to show at the upcoming preliminary injunction hearing that certain applications of GA-09 may constitute an undue burden under Casey, if they prove that, "beyond question," GA-09's burdens outweigh its benefits in those situations…. {[I]n their stay opposition, Respondents argue that GA-09 cannot apply to "patients whose pregnancies will, before the expiration of the stay, reach or exceed twenty-two weeks LMP ["last menstrual period"], the gestational point at which abortion may no longer be provided in Texas." As Petitioners point out, if competent evidence shows that a woman is in that position, nothing prevents her from seeking as-applied relief.}

We do not decide at this stage … whether an injunction narrowly tailored to particular circumstances would pass muster under the Jacobson framework [more on that framework below -EV]. These are issues that the parties may pursue at the preliminary injunction stage, where Respondents will bear the burden to prove, "by a clear showing," that they are entitled to relief. Cf. Ayotte v. Planned Parenthood (2006) (injunction should be tailored to "[o]nly [the] few applications" of challenged statute that "would present a constitutional problem")….

[UPDATE, Apr. 8, 2020, 10:36 pm Pacific: Josh Blackman reports that Planned Parenthood has already applied for such a restraining order.]

Before getting into the long excerpts from the long majority and dissenting opinions (and I'm not even including the complicated procedural debates), here's my quick view: I think that GA-09 should indeed be viewed as invalid as to women who are near viability, and thus would entirely lose their right to abortion if the abortion is delayed.

I don't read Jacobson v. Massachusetts (1905), the mandatory vaccination case about which you'll read much more below, as generally requiring broad deference in such a situation. Rather, in my view the key point in Jacobson, which the Court repeated often, was that vaccination had been broadly accepted as, practically speaking, not much of a practical burden on anyone—though the vaccine available at the time carried considerable risk for the person, it was much less than remaining unvaccinated (and of course the death rate from smallpox is vast, likely at least ten times more than that of coronavirus). Mandatory vaccination still burdened people's freedom, because the Court generally recognized a general right not to be subjected to medical procedures against one's will. But its practical burden on people's lives was limited.

It doesn't follow that Jacobson would call for equal deference to governmental judgments when the law denies a constitutional right in a way that has a deep practical effect on the rightsholder's life, as when postponing an abortion makes it illegal. That, I think, would be much more clearly "a plain, palpable invasion of rights secured by the fundamental law" (at least the fundamental law as the Court interpreted it in Casey)—especially when the risk created by recognizing the right would be much more attenuated.

In any event, back to what actual judges, rather than just law professors, think. Here's the majority's substantive analysis, which relied extensively on Jacobson:

{In Jacobson, the Supreme Court considered a claim that the state's compulsory vaccination law—enacted amidst a growing smallpox epidemic in Cambridge, Massachusetts—violated the defendant's Fourteenth Amendment right "to care for his own body and health in such way as to him seems best." The Court rejected this claim. Famously, it explained that the "liberty secured by the Constitution … does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint." Rather, "a community has the right to protect itself against an epidemic of disease which threatens the safety of its members." In describing a state's police power to combat an epidemic, the Court explained:

"[I]n every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand."

The Supreme Court has repeatedly acknowledged this principle. See, e.g., Lawton v. Steele (1894) (recognizing that "the state may interfere wherever the public interests demand it" and "discretion is necessarily vested in the legislature to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests"); Compagnie Francaise de Navigation a Vapeur v. La. State Bd. of Health (1902) (upholding Louisiana's right to quarantine passengers aboard vessel—even where all were healthy—against a Fourteenth Amendment challenge); Prince v. Massachusetts (1944) (noting that "[t]he right to practice religion freely does not include liberty to expose the community … to communicable disease"); United States v. Caltex (1952) (acknowledging that "in times of imminent peril—such as when fire threatened a whole community—the sovereign could, with immunity, destroy the property of a few that the property of many and the lives of many more could be saved").}

"[U]nder the pressure of great dangers," constitutional rights may be reasonably restricted "as the safety of the general public may demand." Jacobson. That settled rule allows the state to restrict, for example, one's right to peaceably assemble, to publicly worship, to travel, and even to leave one's home. The right to abortion is no exception. See Roe v. Wade (1973) (citing Jacobson); Planned Parenthood v. Casey (1992) (same); Gonzales v. Carhart (2007) (same). {Jacobson governs a state's emergency restriction of any individual right, not only the right to abortion. The same analysis would apply, for example, to an emergency restriction on gathering in large groups for public worship during an epidemic. See Prince v. Massachusetts (1944) ("The right to practice religion freely does not include liberty to expose the community … to communicable disease.").} … [And] "[i]t is no part of the function of a court" to decide which measures are "likely to be the most effective for the protection of the public against disease." Jacobson, 197 U.S. at 30….

To be sure, individual rights secured by the Constitution do not disappear during a public health crisis, but the Court plainly stated that rights could be reasonably restricted during those times. Importantly, the Court narrowly described the scope of judicial authority to review rights-claims under these circumstances: review is "only" available

"if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law."

Elsewhere, the Court similarly described this review as asking whether power had been exercised in an "arbitrary, unreasonable manner," or through "arbitrary and oppressive" regulations.

Jacobson did emphasize, however, that even an emergency mandate must include a medical exception for "[e]xtreme cases." Thus, the vaccination mandate could not have applied to an adult where vaccination would exacerbate a "particular condition of his health or body." In such a case, the judiciary would be "competent to interfere and protect the health and life of the individual concerned." At the same time, Jacobson disclaimed any judicial power to second-guess the state's policy choices in crafting emergency public health measures: "Smallpox being prevalent and increasing at Cambridge, the court would usurp the functions of another branch of government if it adjudged, as matter of law, that the mode adopted under the sanction of the state, to protect the people at large was arbitrary, and not justified by the necessities of the case." … "It is no part of the function of a court or a jury to determine which one of two modes was likely to be the most effective for the protection of the public against disease. That was for the legislative department to determine in the light of all the information it had or could obtain." ….

Jacobson remains good law. See, e.g., Kansas v. Hendricks (1997) (recognizing Fourteenth Amendment liberties may be restrained even in civil contexts, relying on Jacobson); Hickox v. Christie (D.N.J. 2016) (rejecting, based on Jacobson, a § 1983 lawsuit concerning 80-hour quarantine of nurse returning from treating Ebola patients in Sierra Leone). And, most importantly for the present case, nothing in the Supreme Court's abortion cases suggests that abortion rights are somehow exempt from the Jacobson framework. Quite the contrary, the Court has consistently cited Jacobson in its abortion decisions….

The majority then turned to applying Jacobson:

The first Jacobson inquiry asks whether GA-09 lacks a "real or substantial relation" to the crisis Texas faces…. GA-09 is supported by findings that (1) "a shortage of hospital capacity or personal protective equipment would hinder efforts to cope with the COVID-19 disaster," and (2) "hospital capacity and personal protective equipment are being depleted by surgeries and procedures that are not medically necessary to correct a serious medical condition or to preserve the life of a patient." The order also references, and reinforces, the Governor's prior executive order, GA-08, "aimed at slowing the spread of COVID-19." Accordingly, GA-09 instructs licensed health care professionals and facilities to postpone non-essential surgeries and procedures until 11:59 p.m. on April 21, 2020….

To be sure, GA-09 is a drastic measure, but that aligns it with the numerous drastic measures Petitioners and other states have been forced to take in response to the coronavirus pandemic. Faced with exponential growth of COVID-19 cases, states have closed schools, sealed off nursing homes, banned social gatherings, quarantined travelers, prohibited churches from holding public worship services, and locked down entire cities. These measures would be constitutionally intolerable in ordinary times, but are recognized as appropriate and even necessary responses to the present crisis. So, too, GA-09. As the state's infectious disease expert points out, "[g]iven the risk of transmission in health care settings" there is "a sound basis for limiting all surgeries except those that are immediately medically necessary so as to prevent the spread of COVID 19." …

{[As to the use of PPE in abortions,] Respondents' complaint states that clinicians use "gloves, a surgical mask, and protective eyewear" for surgical abortions. Their declarations similarly attest that surgical abortions consume sterile and non-sterile gloves, masks, gowns, and shoe covers. Second-trimester abortions require more extensive PPE, including face shields. After a surgical abortion, a provider examines the fetal tissue in a pathology laboratory, which requires a gown, face shield or goggles, shoe covers, and gloves…. Respondents assert PPE is not used in "providing the pills" for medication abortions, whereas Petitioners counter that, for medication abortions, Texas requires a physical examination, ultrasound, and follow-up visits—all of which consume PPE. Petitioners also point out that some number of medication abortions result in incomplete abortions that require hospitalization. The dissent appears to accept at face value Respondents' representations about how medication abortions consume PPE. We think that evidentiary determination is better left to the district court at the preliminary injunction stage.}

The second Jacobson inquiry asks whether GA-09 is "beyond question, in palpable conflict with the Constitution." … Properly understood, GA-09 merely postpones certain non-essential abortions, an emergency measure that does not plainly violate Casey in the context of an escalating public health crisis…. {Respondents imply that GA-09 is effectively indefinite in duration. For example, they claim that "[f]or many women, the denial of access to abortion will be permanent … given the uncertain duration of the emergency." But the district court did not temporarily restrain some indefinite regulation; it restrained GA-09, which by all accounts expires on April 21, 2020. If anything, Respondents' concern about the indefinite duration "of the emergency" serves to strengthen Petitioners' position that "extraordinary measures" must be taken now to mitigate the "'exponential increase' in COVID-19 cases … expected over the next few days and weeks."}

The order is a concededly valid public health measure that applies to "all surgeries and procedures," does not single out abortion, and merely has the effect of delaying certain non-essential abortions. Moreover, the order has an exemption for serious medical conditions, comporting with Jacobson's requirement that health measures "protect the health and life" of susceptible individuals. Indeed, the exemption in GA-09 goes well beyond the exceptions for "[e]xtreme cases" Jacobson discussed….

[Indeed, u]nder Casey, courts must ask whether an abortion restriction is "undue," which requires "consider[ing] the burdens a law imposes on abortion access together with the benefits those laws confer." The district court was required to do this analysis—that is, it should have asked whether GA-09 imposes burdens on abortion that "beyond question" exceed its benefits in combating the epidemic Texas now faces. But that analysis would have required careful parsing of the evidence…. (Casey "place[s] considerable weight upon evidence … presented in judicial proceedings" ….) Any consideration of the evidence, however, is entirely absent from the district court's order….

In sum, based on this record we conclude that GA-09—an emergency measure that postpones certain non-essential abortions during an epidemic—does not "beyond question" violate the constitutional right to abortion….

[A] court must at the very least weigh the potential injury to the public health when it considers enjoining state officers from enforcing emergency public health laws…. Instead of doing … this, the district court substituted its ipse dixit for the Governor's reasoned judgment, bluntly concluding that "[t]he benefits of a limited potential reduction in the use of some personal protective equipment by abortion providers is outweighed by the harm of eliminating abortion access in the midst of a pandemic that increases the risks of continuing an unwanted pregnancy." …

As Jacobson repeatedly instructs, however, if the choice is between two reasonable responses to a public crisis, the judgment must be left to the governing state authorities. "It is no part of the function of a court or a jury to determine which one of two modes [i]s likely to be the most effective for the protection of the public against disease." Such authority properly belongs to the legislative and executive branches of the governing authority. In light of the massive and rapidly-escalating threat posed by the COVID-19 pandemic, "the court would usurp the functions of another branch of government if it adjudged, as matter of law, that the mode adopted under the sanction of the state, to protect the people at large was arbitrary, and not justified by the necessities of the case." … We decline to engage in such "unwarranted judicial action."

To be sure, the judiciary is not completely sidelined in a public health crisis. We have already explained that Respondents may seek more targeted relief, if they can prove their entitlement to it, at the preliminary injunction stage. Additionally, a court may inquire whether Texas has exploited the present crisis as a pretext to target abortion providers sub silentio. Respondents make allegations to that effect, contending that Petitioners are using GA-09 "to exploit the COVID-19 pandemic to achieve their longtime goal of banning abortion in Texas." Nonetheless, on this record, we see no evidence that GA-09 was meant to exploit the pandemic in order to ban abortion or was crafted "as some kind of ruse to unreasonably delay … abortion[s] past the point where a safe abortion could occur."

To the contrary, GA-09 applies to a whole host of medical procedures and regulates abortions evenhandedly with those other procedures. The order itself does not even mention abortion—or any other particular procedure—at all. Instead, it refers broadly to "all surgeries or procedures" that meet its criteria…. [S]ome cosmetic, bariatric, orthopedic, and gynecologic procedures "are being suspended" alongside abortions…. [T]he Centers for Medicare & Medicaid Services have recommended postponing several other critical procedures, including endoscopies and colonoscopies, and even some oncological and cardiovascular procedures for low-risk patients. This evidence undermines Respondents' contention that GA-09 exploits the present crisis to ban abortion. Respondents will have the opportunity, of course, to present additional evidence in conjunction with the district court's preliminary injunction hearing scheduled for April 13, 2020. Our decision, however, must be limited to the record before us. Based on that record, we cannot say that GA-09 is a pretext for targeting abortion….

{[T]he dissent contends that "[r]estricting contact between abortion providers and their patients cannot further the goals of GA-09 if the same order permits in-person contact between providers and patients in other settings." But this is true of all surgeries and procedures. Nonetheless, in part to "limit[] exposure of patients and staff to the virus that causes COVID-19," CMS recommends postponing "non-essential surgeries and other procedures." GA-09 notes that it follows recommendations from "the President's Coronavirus Task Force, the CDC, the U.S. Surgeon General, and the Centers for Medicare and Medicaid Services." And the state's infectious disease expert said that the risk of spreading the virus is real, "especially in the health care setting due to the proximity." We reiterate that Jacobson commands that it is not the court's role "to determine which one of two modes [i]s likely to be most effective for the protection of the public against disease."}

Judges James Dennis dissented; first, he framed Jacobson somewhat differently than the majority did:

The majority claims that "Jacobson disclaimed any judicial power to second-guess the policy choices made by the state in crafting emergency public health measures." But the Court did not conclude that an emergency situation deprives courts of their duty and power to uphold the constitution—quite the opposite, in fact.

The Court in Jacobson determined that the Massachusetts law should not be invalidated because "[s]mallpox being prevalent and increasing in Cambridge, the court would usurp the functions of another branch of government if it adjudged, as a matter of law, that the mode adopted under the sanction of the state, to protect the people at large was arbitrary, and not justified by the necessities of the case." The Court certainly did not disclaim any power to so rule, under appropriate circumstances, however, explaining:

"We say necessities of the case, because it might be that an acknowledged power of a local community to protect itself against an epidemic threatening the safety of all might be exercised in particular circumstances and in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons."

The Court in Jacobson also explained that it had previously "recognized the right of a state to pass sanitary laws, laws for the protection of life, liberty, [and] health … within its limits." Id. (citing Hannibal & St. J.R. Co. v. Husen (1877)). While states have the right to pass such laws, the Court explained, the courts have a "duty to hold … invalid" laws that "went beyond the necessity of the case, and, under the guise of exerting a police power, invaded the domain of Federal authority, and violated rights secured by the Constitution."

Thus, the Court clearly anticipated that courts would exercise judicial oversight over a state's decision to restrict personal liberties during emergencies. Jacobson merely acknowledged that what is reasonable during an emergency is different from what is reasonable under normal circumstances, and that courts must not act as super-executives in an emergency. Given the language of Jacobson, then, the Court was concerned with both what the majority focuses on—the state's ability to adequately protect its citizens during a public health crisis—and what the majority ignores—the courts' ability to protect citizens' constitutional rights when states attempt to unjustifiably seize and wield power in the name of the health and safety….

And he applied Jacobson thus:

This case is clearly distinguishable from Jacobson. There, the city required its citizens to get a smallpox vaccine to stop the spread of a smallpox outbreak. The measure adopted by the city related directly to the public health crisis—every citizen who did not receive the vaccine could actively spread the disease, and therefore mandatory vaccination actively curbed the disease's spread. The thread connecting GA-09 to combatting COVID-19 is more attenuated—premised not on the idea that abortion providers are spreading the virus, but that their continuing operation requires the use of resources that should be conserved and made available to healthcare workers fighting the outbreak. This reasoning requires the additional link that those PPE resources denied to abortion providers are indeed conserved, are significant in amount, and can realistically be reallocated to healthcare workers fighting COVID-19, a showing that Petitioners have not made….

The goals of GA-09 are furthered by restricting abortions, according to Petitioners, because abortions: (1) "reduce[] the scarce supply of PPE available to healthcare providers treating COVID-19 patients," (2) "result[] in the hospitalization of women," reducing hospital capacity for COVID-19 patients, and (3) "contribute[] to the spread of the COVID-19 virus."

Though GA-09 does not define PPE, Respondents explain that the term is generally understood to refer to N95 respirators, surgical masks, non-sterile and sterile gloves, and disposable protective eyewear, gowns, and hair and shoe covers. In response to Petitioners' argument that abortions will deplete PPE necessary for healthcare providers treating COVID-19 patients, Respondents contend that abortions utilize little or no PPE and that abortions are time-sensitive procedures.

Regarding the first point, whether an abortion takes no PPE or some PPE depends on the type of procedure. Procedural abortions in Texas are single-day procedures that, unlike surgeries, require no hospital bed, incision, general anesthesia, or sterile field. During the procedure, the providers use PPE such as gloves, a surgical mask, disposable protective eyewear, disposable or washable gowns, and hair and shoe covers. Most Respondents do not have N95 respirators, and those that do have only a small supply that they rarely, if ever, use. Medication abortions, which involve only taking medications by mouth, require no PPE to administer the medication, and may require the use of gloves only at pre- and post-procedure appointments, depending on the circumstances. Petitioners identify no other treatment through oral medication that would be affected by GA-09.

Moreover, Respondents point out that Petitioners' PPE conservation argument mistakenly assumes that a patient unable to obtain an abortion will not otherwise need medical care that requires the consumption of PPE. Pregnant patients who cannot access abortion require prenatal care and must often undergo unplanned hospital visits. And to the extent patients are prevented from obtaining abortions altogether, childbirth and delivery require exponentially more PPE than an abortion. Denying pregnant patients access to abortion now may simply change the purpose for which the PPE is used, without any surplus that is able to be reallocated to healthcare workers treating COVID-19 patients.

Other pregnant patients with the resources to do so may choose to seek abortions outside of Texas—a result clearly contrary to Texas's purported goal of avoiding the spread of the virus. GA-09 has already led patients to travel to other states to obtain abortion care in a pandemic, exposing patients and third parties to infection risks. One out-of-state physician stated that he treated 30 abortion patients from Texas in the week after the attorney general's statement.

Petitioners also argue that the abortion restrictions are necessary to preserve hospital capacity, while Respondents point out that legal abortions are safe and almost never require hospitalization, and abortion care is substantially less likely to lead to hospitalization than caring for a patient with respect to full term pregnancy, childbirth, and post-natal care.

Finally, Petitioners argue that GA-09 as understood to ban all abortions provides the benefit of restricting contact between patients, medical staff, and physicians to help prevent the spread of COVID-19. While this may be true, the language of GA-09 reveals that it was not adopted to serve this interest. GA-09 exempts "any procedure … that would not deplete the hospital capacity or the personal protective equipment needed to cope with the COVID-19 disaster." It excludes all forms of medical care save "surgeries and procedures," and therefore does not contemplate restricting any other type of medical care that results in contact between providers and patients. Restricting contact between abortion providers and their patients cannot further the goals of GA-09 if the same order permits in-person contact between providers and patients in other settings.

Petitioners suggest that, in addition to these reasons, "Plaintiffs have identified no substantial burdens that will result from delaying elective abortions in accordance with [GA-09]." The majority agrees, concluding that "the expiration date makes GA-09 a delay, not a ban." But it is painfully obvious that a delayed abortion procedure could easily amount to a total denial of that constitutional right: If currently scheduled abortions are postponed, many women will miss the small window of opportunity they have to access a legal abortion. Texas generally prohibits abortion after twenty-two weeks from the first day of the pregnant person's last menstrual period ("LMP"), and therefore GA-09 has the potential to deny a woman's constitutional right to an abortion where that right will lapse during the duration of GA-09. A woman has only a small window of opportunity to exercise her constitutional right to choose, and therefore Petitioners' action in further narrowing that window will present a burden in many cases….

[P]rohibiting abortions for patients whose pregnancies will, before the expiration of GA-09, reach or exceed twenty-two weeks, the gestational point at which abortion may no longer be provided in Texas, represents "a plain, palpable invasion of rights secured by the fundamental law." Even if such state action is successful in conserving the minimal PPE utilized in such procedures, as applied to this group of people, the state's action constitutes an outright ban on previability abortion, which is "beyond question, in palpable conflict with the Constitution." Jacobson (explaining that a state's police power "might be exercised … in reference to particular persons in such an arbitrary, unreasonable manner, or might go so far beyond what was reasonably required for the safety of the public, as to authorize or compel the courts to interfere for the protection of such persons"). Insofar as GA-09 applies to this group of women, then, the district court's result in allowing abortions to proceed was not patently erroneous.

Second, insofar as GA-09 bans procedural and medication abortions generally, this act "has no real or substantial relation to" Petitioners' stated goal of conserving PPE and maintaining access to hospital beds and therefore it goes "beyond the necessity of the case, and, under the guise of exerting a police power … violate[s] rights secured by the Constitution." In particular, abortions require minimal PPE (and medication abortions require no PPE to administer the medication), do not require the use of N95 respirator masks, and rarely require hospitalization. And as Respondents point out, the medical resources conserved by prohibiting abortions would simply be otherwise consumed through prenatal care by women forced to continue their pregnancies or incentivize women to travel out of state to obtain abortions, facilitating the spread of the virus. Finally, even assuming that delayed abortions in fact conserve PPE, Respondents have not demonstrated how the PPE could realistically be reallocated to healthcare workers fighting COVID-19….

NEXT: "Have a Taste of Wuhan! Let These Mouth-Watering Specialties in Wuhan Satisfy Your Stomach"

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  1. Why can’t these progressive women just satisfy their bloodlust on some puppies and kittens for the time being? Or go sacrifice some lambs?

    1. Sam Gompers: I realize there are plausible arguments for and against abortion rights (though in this post, I take it the existence of constitutional abortion rights as given, since that remains, at least for now, Supreme Court precedent).

      But whatever your substantive arguments against abortion might be, can you imagine why some women might want to get an abortion that aren’t quite “bloodlust”? Indeed, might your framing your argument in such terms actually undermine it more than advancing it?

      Just by way of analogy, imagine someone asked why conservative would-be gun buyers can’t just satisfy their bloodlust by playing video games, instead of trying to buy a gun. Might you think that’s a pretty shallow way of thinking about why many people actually want guns?

      1. Your last paragraph summarizes the issue nicely — and the larger issue of how these quite fascist edicts about what is and isn’t essential are inherently unjust.

        For example, in Massachusetts, women’s dress shops and florists are considered “unessential.” Well, what about funerals — it’s customary to buy an older woman a new dress to be buried in, and flowers for the funeral if you can’t personally attend. Etc….

        And the projected death rate is now down to 62,000 — what is to be expected in a bad Flu year….

        1. Dr. Ed : And the projected death rate is now down to 62,000 — what is to be expected in a bad Flu year….

          (1) When Trump said Covid-19 was no different than the flu, a sizable percent of his gullible base applauded, ignoring the efforts of countries around the world to control and limit the pandemic.

          (2) Then when Trump joined the rest of the world – agreeing unprecedented business closures and social distancing was necessary – a sizable percent of his gullible base went along grudgingly, reluctant to let any opportunity for another paranoid conspiracy theory pass by.

          (3) So much of the country has been totally shut down for weeks and it’s looking as if the emergency measures have suppressed the worse effects of the disease. So what do we see now? A sizable percent of Trump’s gullible base beginning to claim it was only seasonal flu after all.

          Why can’t Trump’s gullible base be less gullible?

          1. Did you know that the word “gullible” does not appear in any dictionary? If you doubt me, look it up.

            1. Not even the OED?

              (Oxford English Dictionary)

              1. Whoosh.

            2. Intelligent Mr Toad : “If you doubt me, look it up”

              gullible /ˈɡələb(ə)l/
              adjective : easily persuaded to believe something; credulous.


              1. grb, you silly goose. You took his bait! Gullible is in the dictionary, I know it, you know it, and Toad knew it.

                You just proved how gullible *you* are (the supposedly smart non Trump voter) by posting the defintion.

                Damn, that’s rich Toad. Well played sir, well played.

                1. Uh huh. It took me a minute to prove Toad an idiot, and I enjoyed the experience. Meanwhile, he’s an idiot, but supposedly on purpose. How much pleasure can you get from being purposely a fool? Less than my share, I’m sure….

                  1. RE: “How much pleasure can you get from being purposely a fool?”

                    “O uomini! o natura!
                    Vil scellerato mi faceste voi!
                    O rabbia! esser difforme, esser buffone!
                    Non dover, non poter altro che ridere!
                    Il retaggio d’ogni uom m’è tolto, il pianto.”

                  2. That was such a burn, grb, that I would be embarrassed to comment here for at least a month.

                    *laughs out loud*

                    Yes, all us GULLIBLE Trump voters. Falling for whatever Fox News shows.

                    *mirthful chuckle*

            3. Where on earth did you hear that anyway, Mr. Toad? Reaching to my shelves, I find “gullible” in my ancient Webster’s Ninth New Collegiate Dictionary, New Shorter Oxford English Dictionary, Roget’s International Thesaurus and even my German-English Dictionary – where the Deutsch-equivalent is “leichtglaubig” or “gutglaubig”.

              Admit it : Some one told you that factoid and you were gullible enuff to believe it……

              1. Oh, that’s even more rich, you don’t get it.

                Let me tell you about the first rule of holes dude…if you find yourself in one…stop digging.

          2. I haven’t been harmed by anything that The Donald has done.
            Now as to Das Baker, that’s another story….

        2. “And the projected death rate is now down to 62,000 — what is to be expected in a bad Flu year….”

          Maybe, but that is after all of the social distancing actions we’re taking. If we took all of these action for the normal flu, then the death rate would be much lower so your comparison is almost comically flawed.

          1. And also, that’s 62,000 on top of the flu.

            We didn’t say after 9/11 “that’s OK, it’s 3,000 people, that’s only a small fraction of the flu season death toll”.

            The risk of the flu is a risk we have collectively agreed to tolerate (and which we mitigate through vaccination and treatment). It’s background risk. That doesn’t mean any risk that kills thousands of additional Americans is OK.

          2. But (as I understand it) the REASON the projected likely death-count is down is that people have been following instructions, sheltering at home.

            1. Mitigation was built into all the models except the 1st one, 2.5million. The drop from 200k to 120k to 60k (the last one lasted two days) all included mitigation.
              The models are worse than guesses, they were politically motivated propaganda.

        3. Sixty-two thousand that have been identified. The actual toll is likely much higher. Not all those who are dying are being tested.

          We need to wait and see how many excess deaths there are before announcing a tally.

          1. One might note that worldometer claims that the uncounted deaths in NYC are ~175 per day. These are patients that die at home and are not tested post mortem

            1. How would worldometer divine that number? The same model that predicted 2.5 million deaths in the US?
              But the real answer is, by CDC order, deaths that lack a lab test, but “could be reasoned” to have been exposed to COVID the medical officer SHALL list covid as cause of death.
              In short, lots of deaths will be “with covid” by will be counted as “by covid”

              1. I think the real answer will be comparing the daily/weekly/monthly death rate from all causes during the pandemic to the daily/weekly/monthly death rate from all causes in normal times. Is it substantially different and how much so? Of course, the difference won’t be the deaths from Covid-19 because some lives will be saved by social distancing, etc., due to fewer vehicle accidents, fewer job-related accidents, etc.. But I think it’s reasonable to look at the difference as the general severity of the pandemic. This method will undercount specific Covid-19 deaths for obvious reasons, but will certainly meet all objections of “they would have died anyway due to their underlying condition.”

                In other words, the difference would be a floor to the Covid-19 deaths.

      2. Indeed, the idea of motive ought to be irrelevant, the intent to destroy a child in the womb ought to be the dealbreaker, whether (to take examples I know of personally) the motive is to avoid having a child when your boyfriend is deemed not dependable enough, or the interference with one’s life, or even the desire to get over a rape (and I’ve met people who were conceived in rape, or who had a relative who was).

        Motive and intent are supposed to be different concepts.

        Then there’s the post-abortive woman who said she didn’t have a choice (perhaps her angry boyfriend had something to do with this lack of choice?).

        Basically, despite the rhetoric, abortion is the option of many women who don’t think they have a choice.

        1. Eddy:
          You can’t destroy a child in the womb because there is no child in the womb. It’s a fetus.

          1. Definition of child (Entry 1 of 3)
            1a: an unborn or recently born person


            1. Forget it. He is just using language to dehumanize to salve his conscience about the killing.

              Like all supporters of mass murder.

              1. Eddy, and Bob, I can cite definitions of “child” and “person” that do not include fetusus, but that isn’t the point. The point is your assumption that if you just say “it’s a child,” that that resolves the issue.

                In the first place, there is far from being a consensus that it’s a child, at least for the first part of the pregnancy. You’re entitled to your opinion that it’s a child, but you’re not entitled to assume that there’s a consensus that agrees with you. Or that even if you’re right, that that resolves the issue.

                1. “your assumption that if you just say “it’s a child,” that that resolves the issue….

                  “you’re not entitled to assume that there’s a consensus that agrees with you”

                  Of course I’m open to alternate definitions.

                  The term I’d be particularly interested in defining is “living human being.” Who qualifies for that description and why?

                  And among those who are living human beings, which of them ought to be persons with human rights?

                  I won’t even venture my own definition because you’d say it was dogmatizing. Give me your best effort at a definition yourself.

                  1. Eddy, what is it that makes humans special (besides raw tribalism that makes us want humans to be special because we are of that tribe)? In other words, why is it permissible for me to kill and eat a chicken, but not to kill and eat you? What separates human persons from other living organisms and, for that matter, non-person human life like cancerous tumors?

                    The answer is that humans are special because of our capacity for consciousness, self-awareness, intelligence, sentience, and reasoning. Some other animals, like dolphins, have some of those things to a lesser degree, but humans are in a class all by ourselves by possessing those traits. So the essence of human personhood is possessing consciousness, self-awareness, intelligence, sentience and reasoning. None of which a fetus has until later in the pregnancy.

                    Some people lose those traits because of dementia or other disease, but we grandfather them in because they used to possess them. Some people, such as the retarded, have them in smaller quantities, but they do still have them. But if you’ve never had them at all, then you lack the essence of what it means to be human.

                    So, as a general proposition, I would say that personhood sets in when consciousness does, which is about the end of the first trimester. It’s not a bright line, and there will be close cases on both sides of the line. But it’s a line that makes sense to me.

                    1. OK, thank you for putting up with me long enough to answer my query. This would certainly make you more prolife than the established “abortion rights” crowd would care for, so that right there is nice.

                      “Some people lose those traits because of dementia or other disease, but we grandfather them in because they used to possess them.”

                      So my question is – why not grandfather in those who in the normal course of development would acquire “consciousness, self-awareness, intelligence, sentience and reasoning,” now that we’ve already grandfathered in those who used to possess those traits? In other words, why does the grandfathering work on one end but not the other?

                    2. Eddy, it only works at one end because at the other end, the fetus never had it. Taking away something that someone had is qualitatively different than not giving them something they never had.

                      And just so you know where I’m coming from, I agree with Roe’s bottom line that a flat ban on abortions is unconstitutional. At the same time, late term abortions make me really uncomfortable because the further along a pregnancy is, the harder it is to make the claim that it isn’t a person. On the other hand, I also have reservations about allowing one person to seize the body of another person for nine months without consent.

                      If I woke up tomorrow as supreme dictator, I would allow abortion on demand for the first trimester. I don’t see the fetus at that stage of development as a person, so I see no ethical issue in terminating the pregnancy. I would probably ban third trimester abortions unless there is a strong medical reason for it — the fetus is discovered to have a deformity or the mother’s health is compromised. The second trimester is a bit trickier because at that point, consciousness has set in, but on the other side of the ledger I really don’t like the idea of one human being able to seize the body of another.

                      Bottom line, I find the issue more complicated than do the dogmatists on either side. Which means Bob still thinks I’m a shill for mass murder, and NARAL thinks I’m a misogynist for even entertaining the possibility that the fetus has rights that factor in.

                    3. Well, I can’t claim to agree with you – I would think that the status of being human, with all the potentialities (past and future), is the bright-line distinction which sets apart those who have (to coin a phrase) human rights.

                      Still, I’m surprised the conversation got more civil, not less so, as we went on, so I’m focused on that.

                      Have a great day!

                    4. I’ve never found this argument convincing. Why should it matter if a fetus doesn’t have consciousness at conception? It will develop consciousness within a very short period of time. A chicken will never be a human no matter how you spin it.

                      We don’t need an over-rationalized defense of why we eat other animals and not each other. We’re apex predators, we eat what we want, and eating your own kind outside of freak survival circumstances means you’re a genetic aberration and should be eliminated from the gene pool ASAP. Most animals do not cannibalize, but in those non-human species that lack our conscience, they don’t do it as normal practice. It always has some sort of “benefit” in an animalistic sense, such as disposing of the stillborn, addressing a nutritional deficiency in the mother, scarcity, etc. It’s almost always motivated by survival. That’s why we aren’t cannibals and such people are genetic defects. You could argue that this survival instinct drives some humans to abort, but do we really want to go down that path about the percentage of humans who lack a conscience and inner voice?

          2. And the electronic data in a bank isn’t money, it’s digital data.
            So it’s not bank robbery to redirect a lot of it into my account?

            I’m sure the judge would agree….

            1. Actually, no, that would not be bank robbery. Robbery involves violence or the threat of violence, such as when someone shows the teller a gun and says “give me all the money in the drawer or I’ll kill you.”

              Redirecting electronic funds into your account, depending on the specific circumstances, might be wire fraud, or identity theft, or computer fraud, or any of several other crimes. You’ll still go to jail. But it’s not robbery.

              1. Good point — sloppy language.
                But wouldn’t the amount of money be a factor at sentencing?

      3. The Jewish abortionists use fetal blood from the fetuses of Christians who get abortions, as an ingredient in ceremonial matzoh for Jewish religious rites. (Didn’t you know?) Demand for Christian fetal blood for matzoh has been especially high at this particular time, when Passover is imminent.

        1. This abortion of a joke should never have been conceived.

          Jokes like this are why there are humorless people.

        2. “Jewish abortionists use fetal blood from the fetuses of Christians”

          Various versions of that “Blood Libel” have been floating around for centuries, and have been used to justify all sorts of atrocities — and it is the duty of every decent person to say it ain’t true.

          Besides, wouldn’t matzohs be required to be Kosher, and isn’t blood (of any sort) a violation of the Kosher laws? As I understand it, Blood Sausage is *not* Kosher, I believe for this very reason.

        3. You should be ashamed of yourself.

          1. From The Manchurian Candidate (1962):

            “You must try, Comrade Zilkov, to cultivate a sense of humor. There’s nothing like a good laugh now and then to lighten the burdens of the day.”

            From Beat the Devil (1953):

            “I like an associate of mine to have a sense of humor. A good laugh does more for the stomach muscles than five minutes sitting up exercises.”

            1. To sound so much like an antisemite that no one can tell the difference…that’s not really much of a joke.

              1. I consider it useful and important to have people express their opinions, reveal their sense of humor, and the like. It is always better, in my judgment, to know what and with whom you are dealing.

              2. Well, I’d be a funny sort of antisemite. As the title character said in Monty Python’s Life of Brian:

                “I’m a Keyke! A Yid! A Hebe! A Hook-nose! I’m Kosher, Mum! I’m a Red Sea Pedestrian, and proud of it!”

                Also, I performed in this, earlier this year (just before the virus closed down the opera houses):


                1. The composer, Harry Bialor, is a bona fide Holocaust survivor. He didn’t go to the camps, but he had to hide in an abandoned barn for more than a year, going out only very late at night in order to steal food from neighboring barns, in order to avoid being sent to Auschwitz. He’s 90 years old now.

                  1. And what would he think of you, implying the Jewish people are to blame for the nation’s abortions? An anonymous internet doesn’t distinguish between comments coming from a man/woman, black/white, Jew/gentile, gay/straight, tall/short, beautiful/ugly, young/old, rich/poor, infected/non-infected, night/day, bat/pangolin, hot/cold, yes/no, in/out, up/down, wrong/right, uh, well, something like that.

                2. “Joke’s on you! I was only PRETENDING to be a bigot, by acting exactly like a bigot!!”

                  I mean, congrats on not actually being a bigot, but I don’t much think that’s a great humor to go for.

                  1. That guy needs to be careful. Pretending to be something, by acting exacting like that something, got Artie Ray banned by the Volokh Conspiracy Board of Censors.

      4. Sticking with EV’s stipulation that there really is a constitutional right to abortion, it’s interesting to compare the possible suspension of abortion rights, and the right to keep and bear arms during an emergency.

        The right to abortion is the right to bring your pregnancy to an end, ie remove the creature in your womb, which under currently employed techniques also involves killing it. It follows therefore that temporarily suspending that right until it is no longer possible to exercise it – ie to have an abortion – is tantamount to deleting that right. Not for ever, not for all time, since you might get pregnant again and will be able to get an abortion next time. But this time, one particular desired exercise of your right – the wish to end this particular pregnancy – has been eliminated.

        But temporarily suspending that right, while ensuring the suspension ends in time for the right to be exercised may be an infringement of your right – it restricts your choice of timing to some extent – but it does not prevent you exercising your right. You can still terminate your pregnancy.

        On the arms front though, it’s a bit different. What 2A guarantees is a right to keep and bear arms. It’s not a right to perform some one off act – like getting an abortion – it’s a habitual right that you have continuously. You can keep and bear arms at all times. So any temporarily suspension directly and immediately prevents you exercising your right for the period of the suspension, and you can never make good that loss.

        Moreover, the text explicitly forbids any infringment of your right. Mere treading on the fringes of your right to keep and bear arms is a constitutional no-no.

        So looking at it textually (stipulating per EV that the text may be presumed to contain a constitutional right to abortion) it looks like a temporary suspension or infringement of abortion rights in an emergency, so long as that does not prevent eventual exercise, is more justified than any suspension of the right to keep and bear arms.

        As a policy matter, of course, one might take a different view. But policy is not what judges are paid to decide.

        1. temporarily suspending that right, while ensuring the suspension ends in time for the right to be exercised may be an infringement of your right – it restricts your choice of timing to some extent – but it does not prevent you exercising your right. You can still terminate your pregnancy.

          Do…you know how biology works?

          1. It becomes more burdensome and dangerous the longer you wait.

        2. Lee, I respectfully disagree based on the different levels of generality that you are using. Most of the restrictions on 2A involve whether gun dealer is “essential.” That involves the one off act of purchasing a gun. You are not prohibited from keeping and bearing the arms you currently have. It is also unclear from the wording of Governor Abbott’s order whether the suspension of the right will continue to the point that it can’t be exercised legally. Hopefully this latest, more limited application will provide greater clarity on the subject.

          1. I agree that a gun dealer is not “essential” for those folk who already have guns, and for those who don’t but know how to make them themselves. And i suppose much the same thing could be said for abortionists – you don’t need one unless you’re pregnant, and there’s always DIY.

            In any event, I’m considering the principle not the detals of the particular restrctions that are being currently proposed. The abortion right is a right to do a particular one off thing, within a biologically specified period. The arms right is a continuous one – and one which is expressly stated to be uninfringeable.

            1. Why do I sense that you would advocate the ostensible temporary/continuous distinction in precisely the opposite manner if guns and abortions switched positions in that context?

            2. If you want to go that route, it is not the right to have an abortion. It is about the right of self-determination, the right to decide when and how big to have a family. That is a continuous one. Obtaining an abortion, like purchasing a gun is a one off act in the exercise of the larger act.

              1. Not really. The right to keep and bear arms is continuous. Any moment that it’s infringed is a clear and non remediable violation.

                Even restructured as you describe – which you must concede contains an awful lot of general handwaving* – the when and how big of family construction is a series of discrete events. Once you’re pregnant, the baby is not going to pop out for nine months or so. Nor, during those nine months, are you going to get any pregnanter. It’s digitial. And eliminating for pregnancy is digital too.

                * so much hand waving- “self determination” – that you could extract the right to keep and bear arms from it, just as well as you could extract the right to have an abortion

                1. Lee,

                  You are wrong, nystateofmind is right. But it’s not just when and how big of a family to have, it is a right to reproductive autonomy of which abortion (like the access to and use of contraceptives) is but one aspect, one discrete event that is a concrete exercise of that general right. Similarly, buying a gun is a discrete event that is subsumed under and necessary to the right to keep and bear arms. Lee, you make an unwarranted distinction by discussing the two rights using different frameworks for each. That’s just sophistry, not legal analysis.

                  “the when and how big of family construction is a series of discrete events”

                  I would revise this to the when and how to exercise your reproductive autonomy is a series of discrete events (whether, when, with whom, and how to have sex, whether to use contraceptives, which contraceptive to use, whether to get an abortion, when to get an abortion, whether to give birth vaginally or via caesarean are all well-recognized parts of that right).

                  Equally, the when and how to keep and bear arms is a series of discrete events, one of which is the choice of whether to buy a gun (and there are others such as what type, how many, what sort of ammunition to buy (or not), keep it at home, carry it in your car, on your person, concealed or not concealed). To be intellectually honest, you either analyze discrete events or you analyze the broader right.

                  “Once you’re pregnant, the baby is not going to pop out for nine months or so. Nor, during those nine months, are you going to get any pregnanter. It’s digital. And eliminating for [sic] pregnancy is digital too.”

                  Talk about hand-waving sophistry.

                  Either you have a gun or you don’t. It’s digital. If you are going to use that logic, then use that logic.

                  Alternatively, the right to buy a gun today is different than the right to buy a gun in two months and if I am denied the right today, then that is two months worth of infringement of my right to keep and bear arms during those two months. Well, getting an abortion today is far, far different than getting an abortion in two months for the health of the pregnant woman, the possible complications that will result due to a continued pregnancy, the changes to her body that will necessarily occur by continuing a pregnancy, and the increased risk to her health of an abortion two months later as compared to now. The right to bodily integrity and the right to manage your reproductive system is just as much a continuing right as the right to keep (digital, either you are keeping or aren’t) and bear (digital, you either are or aren’t bearing an arm at any given moment) arms.

                  The right to get an abortion is but a part of the right to bodily integrity and to manage your reproductive system (i.e., pregnancy), they are continuous. Any moment that the right to manage your reproductive system is infringed is a clear and non-remediable violation.

                  Your sophistry is weak, Lee. If you concede for purposes of argument (or recognition of SC precedent) that the right to reproductive autonomy (abortion, the right to keep and use contraceptives, etc.) is a constitutional right, then you can’t distinguish it from the right to keep and bear arms on the basis that one is “discrete” or “digital” and the other isn’t.

                  If you focus on the discrete events that make up a right, you do it for both. If you focus on the harm of temporarily interrupting one aspect of that right entails, then do it for both. (If you really want to keep trying to go down that road, the constitution doesn’t say anything about the right to buy arms. The right to buy arms emanates from the penumbra of the right to keep and bear arms, to borrow a phrase.)

      5. Bloodlust is certainly polemic, but the logic behind it is also understandable. Some people take life very seriously to the point that they would never consider an abortion under any circumstances, no matter how inconvenient or difficult a pregnancy may be for them. I have to admit that I’ve never had the opportunity to speak directly with a woman who had an abortion themselves, only people who support abortion rights, but the arguments tend to conclude in the same place; no matter the reason, by aborting, you are choosing yourself over the life of another. While I can understand that in the very rare context of a mother’s life being at risk (the idea of forcing her to risk dying for someone else is not very libertarian), I view these reasons as excuses and the entire debate as a false dilemma. Women can carry and deliver their children without forcing upon them the obligation of raising and caring for them. Whenever I present this idea, people start talking about how awful it would be to have even more orphans, but that disgusts me on a whole different level. People really shouldn’t debate what types and standards of life are acceptable. You’ll never find an abortion survivor who says “I wish they had killed me” because life is pretty awesome, even when it can be filled with hardship and anguish. It’s also a very uncomfortable subject for me because while the abortion supporter may not realize it, qualifying acceptable standards of life based on any factor is eugenics 101. Oh, we should abort the children because their mothers won’t want them and they’ll be a burden to society? Or because they’ll have down syndrome? Why stop there? Why not bring up some black crime statistics and abort other classes of “inconvenient” people?

        Perhaps there is an argument out there that will convince me to find abortion morally acceptable, but I’ve yet to find it.

        From a legal perspective I do not support abortion. I merely oppose restricting it. We should defund PP and not a penny should go towards anything abortion related. I realize abortion is not an easy choice and many people make mistakes. Even Roe herself feels she made a mistake. I think the most libertarian way out of this pickle is to let you make that choice for yourself and sort it out with God later. If the choice you made is as bad as I feel it is, you can sort that out during your own life and with your maker if it applies. But I’ll keep fighting the “culture war” side of this and call abortion the abhorrent practice that it is.

        1. “I have to admit that I’ve never had the opportunity to speak directly with a woman who had an abortion themselves”

          Even if written from Antarctica, that seems impossible. Have you even spoken directly with a woman who colors her hair, has breast implants, uses birth control pills, or is gay?

          1. Yes to all four, as well as men who color their hair and are gay.

            Maybe in hickland you don’t have to worry about this, but in case you didn’t notice, abortion is a thorny subject. Most people aren’t going to violate social norms and start asking women if they’ve aborted, nor do we go hunting people down trying to argue about a sensitive subject with every woman in our lives. For all I know, I may have argued with someone who did in fact have an abortion. The anonymity of internet discussions makes it impossible to tell in this theater.

            The person who makes an argument is meaningless from a logical perspective, but since I wanted to avoid sounding like I was arguing with a strawman, I made that caveat. I’m not going to generalize people like certain others are apt to because I really do want to find a better answer. It never bodes well with me telling people what to do and I usually find an answer I can feel comfortable with, but no matter where I search and no matter how much I argue, I have not found a good enough answer on this subject.

            1. “For all I know, I may have argued with someone who did in fact have an abortion.”

              That statement contravenes your original assertion. I continue to believe the chance that any American adult has never spoken with someone who had an abortion is infinitesimal. We seem to have reached, or approximated, agreement on that point. Thank you.

  2. Everything is an emergency to the person directly affected.

  3. “I think that GA-09 should indeed be viewed as invalid as to women who are near viability, and thus would entirely lose their right to abortion if the abortion is delayed.”

    Let’s think outside the box in looking for a solution to this problem

    Suppose a woman is prevented by this order from getting an early abortion, and a later abortion is not viable [ha!]. Then by way of compensation – because the delay wasn’t *her* fault – give her a window of a couple days after the child is born in which she can strangle it to death, provided that she then donates the dead baby’s flesh to a meat-processing plant to be turned into hamburger.

    Just a modest proposal.

    1. I’d like to see SCOTUS resolve this issue in the context of BOTH abortion and gun rights. Concurrently.

      1. The difference is that the Second Amendment is in the text, while the Abortion Amendment was added by judicial interpretation.

        1. Which, in a common law system (a system called for by the text of the Constitution), is meaningless.

          1. “Wow, man, look at the penumbras and emanations” isn’t really a common-law concept.

            1. Just to be clear, I believe in unenumerated rights, but I’m of the opinion that if abortion was one of these rights, that would have been noticed before the 1960s and 1970s, instead of being miraculously discovered under the sofa cushions after a couple centuries.

              1. Lewis Carroll actually addressed the issue of un-enumerated rights in a reply to a letter from a fan of “The Hunting of the Snark”:

                “… you know, words mean more than we mean to express when we use them, so a whole book ought to mean a great deal more than the writer meant.”

                1. Except that’s a hole that demagogues can crawl through. If the design principle is to stop the loss of freedom, that’s not a feature, it’s a bug.

                  Using it to increase personal freedom is consistent with freedom. Using it to grant the government expanded power is against it. It being the design to stop eventual loss of freedom through well-known historical manners.

                  1. Sorry you hate the 9th Amendment.

                    Also: Using it to increase personal freedom is consistent with freedom. Using it to grant the government expanded power is against it. is also a hole a demagogue can crawl through. For instance, personal freedom includes abortion or not depending on how you define person.

                    1. Personal freedom, as understood through the lens of natural rights, cannot include abortion, just as it cannot include any act that directly infringes upon the rights of others, whether they are persons or not.

                    2. awild, do you eat animals? They’re an ‘other.’

                      Natural rights lens is even more elastic and idiosyncratic than the lens of maximizing ‘freedom’

              2. “I believe in unenumerated rights, but I’m of the opinion that if abortion was one of these rights, that would have been noticed before the 1960s and 1970s, instead of being miraculously discovered under the sofa cushions after a couple centuries.”

                Now do Heller.

                (Who knew, back in the ’70s, that when John Wayne was collecting guns as sheriff — to be returned when the owners left town or slept off their visit to the saloon — he was a godless, commie gun-grabber. And that all of his fans were godless commies, too.)

                1. I presume you’re not referring to things he actually did, but to things his character did in the movies?

          2. Yeah, the Constitution contemplates both common and statutory law, but the Constitution itself falls into the latter category, not the former, this not being, you know, England.

    2. If I have ever encountered the argument that is going to reverse the lifelong tide of our culture war for conservatives, this is it.

      I’ll stand aside to permit resumption of this spirited meeting of Libertarians For Statist Womb Management and Libertarians For Big-Government Micromanagement Of Ladyparts Clinics.

      (Sorry . . . make that “Often Libertarians” For Statist Womb Management.)

      1. “Ladyparts Clinics”

        So you’re saying men can’t get pregnant? Better check your cis-privilege, cis-y.

    3. No no no, not donate it to a meat-processing plant, donate it to Planned Parenthood so they can secure their profits from selling little baby parts.

      1. RE: “…donate it to Planned Parenthood so they can secure their profits from selling little baby parts.”

        Fake news

  4. Anyway, to what extent was the Massachusetts *state* (actually Commonwealth) constitution relevant in the Jacobson case?
    Article XXX says:

    In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.

    Just wondering….

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

    Presumably gun stores could re-open because of the 2nd Amendment as last resort of The People to a government gone awry, stripping away liberties?

    At least as important as crossing the trimester lines.

    Nah, just kidding. Just because history has many examples of emergency powers granted them by a legislature never being given up, don’t worry.

    Nah, George Lucas made that exact scenario the core of the prequels, what a load of BS!

    “So this is how liberty dies, with thunderous applause.” — A fictional character based on a fictional history with no real-world parallels except ancient Rome, ancient Greece, 1930s Germany, Venezuela 15 years ago…

  6. Granted that abortion cannot be prohibited, can it be prioritized? Suppose two patients arrive at the hospital at the same time, one for an elective abortion just before the point where State law would prohibit it, and the other with a severe case of COVID-19. Only one bed is available, only one team of nurses and specialists with their required PPE, etc. It is impractical to transfer either patient to another facility. Does the Constitution require the hospital to give priority to the abortion patient over the COVID-19 patient?

    1. My hypothetical is a judge visits a school, is badly beaten by students, and the staff leave as it is happening. The staff explains that they had heard one student called another names. The staff is personally liable if they don’t investigate a case of possible sexual harassment. They have no liability for neglecting mere assault. The law forces their hands.

      1. Sad thing is that this well could happen…

    2. the other with a severe case of COVID-19. Only one bed is available, only one team of nurses and specialists with their required PPE, etc.

      I don’t think abortions usually require teams of specialists.

      1. They usually don’t, I agree. Now, who gets the one bed, and why?

        1. Who needs a bed? Not an abortion patient.

    3. Choices are being made every day now at hospitals. My daughter’s hospital has suspended all cancer surgeries. Certainly some of these are emergent. I can’t tell you what other hopsitals in that state are doing, but one can predidict that a cancer patient who was expending a surgery next week will be, at minimum, extremely upset.

  7. Assuming the Roe framework, I still don’t see why extra-textual, judge-made rights should trump enumerated rights. If government can declare martial law and put you in a concentration camp if the situation is sufficiently dire, it can do this.

    It seems to that the only defense to the District Court’s approach is to argue that things aren’t really as dire as the state is making them out to be. Perhaps this is so. I do agree courts must scrutinize claims of emergency to see if it is really so, as the Supreme Court did regarding martial law in Hawaii. But if there really is an emergency, surely the near-dying shouldn’t be shoved off their ventilators so women can get abortions.

    1. Thankfully, abortions virtually never – even under the worst circumstances, require ventilators. But hey – why bother with a rational argument when you can throw out absurdities?

      1. That’s not really important compared to the core question of whether the emergency declared is actually an emergency. I discussed the same issue with Sarcastro in the Wisconsin voters case. The problem is that courts are extremely bad at vetting questions such as, “Is C-19 an emergency?” This is just like they are bad at evaluating what the best tax policy is for a state, what the dog catcher’s budget should be, whether an earthquake has damaged enough houses to be an emergency, and if it has what is the proper response.

        The best way for courts to muddle through such things is the conduct a breif inquiry into the sincerity of the emergency declaration otherwise wackadoos will annouce emergencies every flu season and every summer (aka murder season). Then look for authorization of the measures in the plain language of the emergency statutes. If there is authorization, you get to the point of constitutional analysis. I’m no fan of the 1905 Jacobson opinion, but its out there, but it is probably pretty close to accurate analysis of it here.

        1. courts are extremely bad at vetting questions such as, “Is C-19 an emergency?”

          I continue to dispute that. What counts as an emergency is not a purely policy question; courts have been handling it forever in torts and contracts.

          One thing courts don’t generally do is sincerity evaluations. It’s up to one of the parties to allege and then prove that the other party is lying.

          1. There is a test explicitly for sincerity. Its called rational basis. Now, rational basis is applied erratically, but if you take the average between what Kennedy called rational basis in the DOMA case (clearly rational basis +) and where some judges will make up basises that even the parties didn’t propose in the breifs (rational basis -) you get a sincerity test.

            Courts have handled emergencies in torts and contracts, and they certainly will with that, but the prescribed solutions in those cases are generally very limited.

  8. Even in times of pandemic liberals have to make sure the baby murdering industry is up and running….

    1. Sometimes I like to push back on self-validating stuff like this by pretending it’s an argument, and seeing them defend it, lest they admit they were just rhetorically masturbating.

      1. You mean like when liberals virtue signal ALL THE DAMN TIME?

        1. That’s it.

          Get it all out.

  9. I don’t understand why the Fifth Circuit’s plainly political agenda and decision-making hasn’t caused more of a scandal than it has. It’s almost breathtaking what they’re doing.

    A couple of years ago, they invalidated an Obama-era rule on spurious grounds, in so doing creating a split with other circuits, denied rehearing en banc, and then denied proposed intervenors when the Trump administration simply dropped their defense of the rule. But since their action amounted to a vacatur under the APA, it has had putatively national effect, despite the fact that other circuits disagreed and they have blocked any path to appellate review on the question. It borders on lawlessness.

    And that’s not even to mention the shenanigans they’re pulling on Obamacare.

    1. It’s probably because they’re just following the 9th’s well trodden path, albeit travelling in the opposite direction. If you have breath left to be taken, it must be because you have recently emerged from a decades long coma.

      1. Ah yeah…’this can’t be bad, look over there!’

        Bonus points for using the hoary and debunked 9th Circuit is crazy liberal, trope.

        1. Might as well cite The Root and Mother Jones while you’re at it.

          Vox and fact checkers hide the trees by telling you to look at the forest. They’re not factually wrong. All circuits have high reversal rates and the 9th isn’t special. It’s inherent to the nature of the cases that SCOTUS takes. Most circuits have disparate appointments by political party and it goes both ways, ex. 9/11 justices in 7th are nominated by Rs. But these stats, as true as they are, are 100% meaningless. Bias isn’t determined by stats, it’s determined by the content of the rulings, which is how the 9th got its reputation in the first place.

          1. Yeah, if you keep things subjective you can believe whatever you want.

            From the link, something a bit more quantitative:

            A more recent attempt to measure judicial ideology, covering data up to 2014, relied on campaign donations by law clerks; the earlier study used the ideology of home-state senators who approved the judges’ appointments.

            While most law clerks, even for conservative judges, tend to be liberals who donate to Democratic politicians, conservative judges are still likelier to hire conservatives, and liberal ones likelier to hire liberals, so average clerk ideology can give a sense of where the different courts stand relative to each other.

            Political scientists and legal scholars Adam Bonica, Adam Chilton, Jacob Goldin, Kyle Rozema, and Maya Sen found that the court with the most liberal clerks was not the Ninth Circuit, but the First Circuit, headquartered in Boston; the Second Circuit, based in New York City, also hired more liberal clerks than the Ninth Circuit

            1. Relevant to that point: Relatively few law students are conservatives. I have observed that conservatives seem to be over-represented in federal clerkships.

  10. Thank you for this. With regard to Jacobson v. Massachusetts, it appears that there were two dissenters – Brewer and Peckham, but they did not write or publish an opinion – is this correct?

    1. Vaclav Matthess: Yes, that’s right — Justices sometimes dissented without opinion that way back then (and even in more recent decades, though more rarely).

      1. Thank you!

  11. For what it is worth, much of the justification for the Governor’s declaration no longer exists. At the time, IHME and the CDC were greatly overestimating the impact of COVID-19 on the healthcare infrastructure of Texas. As of today, the prediction is that at the pandemic’s worst Texas will still have an excess of some 25,000 hospital beds. See https://covid19.healthdata.org/united-states-of-america/texas The Gov’s order and this whole opinion (based on the footnotes) is based on inaccurate assumptions. Much like LA’s ban on gun stores this is an overreach (regardless of one’s personal opinions on abortion itself). “Hard cases make bad law.”

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