Abortion

Government Action and Constitutional Rights

When (1) states seek to protect abortion rights / gun rights / speech rights against private restriction, and (2) Congress seeks to encourage such private restrictions by preempting the state law protections, might such federal preemption violate the Constitution?

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Imagine the following hypothetical scenario:

  1. Property owners are, of course, generally entitled to decide whether to allow abortions to be performed on their property (just as they are generally entitled to decide what other conduct or speech can be performed on their property).
  2. A state legislature sees that there's a movement among property owners to refuse to rent or sell property to abortion clinics, to the point that it gets quite difficult for abortion providers to find space that's convenient for them and their clients. Perhaps some property owners are themselves anti-abortion, or perhaps they are reacting to pressure from their customers or their other tenants, or perhaps they just want to avoid anti-abortion protesters on the sidewalks outside their property.
  3. The legislature therefore provides that any landowner (or perhaps just any large corporate landowner) that rents or sells space to medical offices may not discriminate against abortion providers.
  4. Congress, in order to encourage ""'Good Samaritan' blocking of abortions," preempts these state statutes, and returns maximum discretion to property owners.

It seems clear to me that this federal statute doesn't make the property owners into government actors, subject to the constitutional abortion rights secured by Planned Parenthood v. Casey; the property owners are just getting back their traditional common-law property rights. But the federal statute clearly is itself government action.

Now say that:

  • An abortion clinic is refused space in a medical building.
  • It sues under the state antidiscrimination statute.
  • The building owner asserts the federal statute as a defense.
  • The clinic argues that the federal statute unconstitutionally burdens its patients' abortion rights, because it is intended to make it harder to get abortions and because it preempts state law protections for abortions, so as to get private entities to do what it can't do itself.
  • Therefore, the clinic argues, the state law isn't preempted, and continues to require the building owner to rent to the clinic.

Do you think this is a sound argument, taking as given the Court's precedents holding that the Constitution protects abortion rights? If you'd like, consider the same problem with gun stores or private schools instead of abortion clinics.

As you might gather, this is intended to illuminate the discussion about 47 U.S.C. § 230, which is structurally quite similar. (To be sure, § 230 was passed before states began to try to impose nondiscrimination rules on social media platforms; but it was indeed a deliberate attempt to encourage "'Good Samaritan' blocking and screening of offensive material," and anticipatorily preempted state statutes that might have protected such "offensive material.")

NEXT: Three Years of Commentary on California v. Texas

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  1. If the landlord owns 90% of the medical space in the nation, it has become a utility. Why is this so hard, lawyer dipshits?

    1. What exactly do Twitter and Facebook own?

      There are literally millions of web-based services, apps, and websites, and Twitter and Facebook don’t own any significant percentage of them.

      The only thing they do “own” a large fraction of is people’s attention span and customer loyalty (not mine personally, and I don’t understand why people use them, but nevertheless it’s a fact). So people’s attention and consumer loyalty is what you are demanding the government seize and redistribute “fairly”.

      In which case it becomes clear the answer is fuck off, slaver.

      1. What did Edison own? It was not even electrons, but the motion of electrons.

        1. The relevant thing he owned was a semi-exclusive government granted authority to right to run wires along public streets and (eventually) to place poles on private property against the will of the owners. That is power it would be appropriate for the government to regulate, including a non-discrimination clause.

          The proper analogy is to the fiber optic cables that carry the internet. I’m fine with saying that owner of cables laid in the public ROW or using eminent domain are common carriers.

          A server I attach to the Internet with some kind of social media app is not a common carrier, not even if it becomes popular.

          Which gets us back to fuck off, slaver.

          1. Let’s update a little. Poles on private property is now Section 230.

            1. You are defending agents of the Chinese Commie Party. Maybe you are one yourself. All agents of the Commie Party lose their assets, and even their freedom at some point.

          2. Well then I argue that every public entity that posts on Twatter or Farcebook has to also post on EdSpeak, that said public entity is making a content-based censorship decision in not doing so.

            Hence the LAPD’s lost pet data has to also be on EdSpeak, they have to hire someone to set up an EdSpeak account and populate it with all the data they send to Farcebook.

            Which is logistically impossible because every high school student is going to set up his own blog and make an equal demand that every public entity in the country post all its data with him.

            And back to the abortion analogy — imagine a private employer requiring all of its employees to submit their medical records and firing anyone who had an abortion.,,.,

        2. Rights of way and for the first few years complete control of the technology, No social media company has even one of those things

    2. Because lawyers mostly try to contain ourselves to actual facts and actual law, rather than “facts” that mentally ill people make up, or legal claims without any legal basis.

      1. You lawyer scumbags allowed billions of internet crimes. You allowed the tech billionairs $1.7 trillion enrichment from the lockdown fraud. You allowed our business to be plundered at will by malware from enemy territory. You stink, you traitor filth.

        1. Yawn. Get psychiatric help.

          1. You are the one who believes in mind reading, future forecasting, and a standard of conduct set by a fictitious character.

            1. As opposed to past forecasting?

              1. Every year you breathe, you destroy $5 million in economic activity. You are more toxic than a serial killer. Even lawyers hate your effluvia.

    3. Those two companies own almost none of the internet, they are just the most popular services, they pose no impediment to you going somewhere else. You seem to have failed to grasp what the internet is, how it works or how to use it

        1. lieraly millions of blogs and the other available social media site from reddit to a Parler

          1. “Omg he went to Parler. Get them cancelled off their ISP host service!”

            Which was done.

            I don’t support this common carrior stuff, but you do, in other contexts, most likely, about the ISPs w.r.t. promoting better speeds for their own video servicrs.

            Perhaps you, for various definitions of you, were ok with New York a few years ago saying, “Ya know, banks, you need to watch your reputation, and handling gunmaker accounts makes you look bad…”

            This is all so ironic. China has this social credit system to deny loans and whatnot to uppity people. Yet a tenet of marxsism is the upper class allows the middle class the trappings of wealth, like loans and checking accounts, which makes the bourgeoisie middle class contented, and thus unreliable if not outright hostile to overthrow.

            And here we are, the communists doing it to maintain their own power now.

            And it works. Hence attempts by unscrupulous politicians here to ape it.

            Run them out of town on a rail. Which won’t be done.

            1. Yet a tenet of marxsism is the upper class allows the middle class the trappings of wealth, like loans and checking accounts, which makes the bourgeoisie middle class contented, and thus unreliable if not outright hostile to overthrow.

              And here we are, the communists doing it to maintain their own power now.

              Jesus, not everything is sekret Marxism.

              1. That’s true. These days, quite a few Marxists are quite open about their ideology.

                1. When all you know how to do is smash the red-baiting button on everything you don’t like, that’s a sign your ideology has gone down the tubes, and you’re just the reactionary last gasp.

                  There are still some conservatives on here, but mostly it’s Constant Commie Crisis losers like you.

                  1. The purges of Commies begin in 2024.

      1. They dont own the internet, but the do own the server capacity.
        Amazon, Facebook, Google.

        Between servers and advertising, these three working in cohort together control who and what is allowed on the internent

        1. So you want net neutrality?

          1. I want public utility regulation, the whole thing, including limits on profits.

  2. One might ask where the US Congress gets the power to direct local landlord/tenant contracts in this example. Or where they get the power to prohibit state anti-discrimination laws relating to local landlord/tenant contracts.

    If the answer is a vague gesture toward protecting an enumerated right, that’s the very start of a justification. You’d have to imagine the courts would require a lot more than that. Maybe it wouldn’t be an impossible argument though.

    Additionally, there are millions of landlords. There are only a very few tech giants. So it’s a lot easier to prove that Twitter, for example, is acting a de facto government agent than to prove that an army of diverse landlords is.

    1. “US Congress gets the power to direct local landlord/tenant contracts”

      They don’t. Well I suppose someone somewhere can come up with a commerce clause argument, but it won’t be the best argument you could make.

      ” prohibit state anti-discrimination laws relating to local landlord/tenant contracts”

      Supremacy clause. Also 14th amendment. It is fairly established Congress can create private rights that pre-empt state laws.

      “Additionally, there are millions of landlords. There are only a very few tech giants. So it’s a lot easier to prove that Twitter, for example, is acting a de facto government agent than to prove that an army of diverse landlords is.”

      I really don’t understand this debate at all. I don’t understand why all the fury is directed at something like twitter, and not something like AWS.

      It seems obvious to me that the infrastructure of the internet, AWS, should be prohibited from discrimination. Again, they are the backbone cloud providers. They are actually “utility” like. It seems equally obvious to be that something like twitter, which does serve a publishing role, shouldn’t!

      But it seems no one has that view, and instead its all a political based argument. Conservative speech suppression? Anti-discrimination good. Liberals get to suppress speech? Anti-discrimination bad. These aren’t principled arguments.

      Whereas I think the obvious one is, if you provide an infrastructure service like AWS or Node or even payment processing, open source or closed source, discrimination is unacceptable. You might even extend that to search (that gets a little dicey). But twitter? Come on. And it sounds like a stupid argument too … I would much rather fight for the right to use basic infrastructure tools to do my job as a conservative than fight for the right to use twitter.

      1. Twitter is very ham handed. And it’s extremely easy to avoid using AWS. Also, it was just an example.

      2. “US Congress gets the power to direct local landlord/tenant contracts”

        They don’t. Well I suppose someone somewhere can come up with a commerce clause argument, but it won’t be the best argument you could make.

        What do you think the 1964 Civil Rights Act was? And the Commerce was one of the rationales.

        Are you saying that Robert Byrd, Al Gore, and Strom Thurmond were correct in their view that congress didn’t have that power? Let’s not try to reopen that debate, but if you wanted to Wickard would be a much better vehicle.

        1. Well, I understand that, but one can sidestep all of that just using the supremacy clause so I’m not sure why bother to reopen that can of worms.

          Congress probably could regulate it. However, there might be some limits as to how much. Idk.

          You are providing a provide right, not directly regulating the transaction anyway.

          1. Well, I understand that, but one can sidestep all of that just using the supremacy clause so I’m not sure why bother to reopen that can of worms.

            The Supremacy Clause is not a grant of power. The Supremacy Clause says that laws that are passed pursuant to a grant of power supersede state laws. You still need to find the underlying source of power, and that’s the commerce clause.

            1. Lawyer idiot. Tell the 600000 who died 150 years ago about the Supremacy Clause.

        2. I will absolutely say they don’t have that power under the commerce clause. Land is not interstate. Local rental contracts are not interstate commerce. It’s not even a hard question for honest people.

          1. They don’t have the authority under the commerce clause. They have the power under the “we’ve got the guns, bucko” clause.

  3. Let me punt on that 🙂

    Do you think this is a sound argument…

    Of course not!

    … taking as given the constant erosion of freedom of association and general government meddling in human affairs?

    Oh well then, of course, carry on!

  4. I know law professors can assume whatsoever they want in a hypothetical, but with his abortion hypothetical, the good professor (arbitrarily in my view) limits the very real issues which distinguish abortion restrictions with restrictions on social media platforms.

    If you’re going to bring up abortion, and want to discuss some new angle, why not discuss the John Finnis article on the unconstitutionality of abortion:

    https://www.firstthings.com/article/2021/04/abortion-is-unconstitutional

    I see Stephen Sachs, one of the Conspirators, taught an abortion class – in a link I’ll give after this post – “At the end of the class, a substantial number of [Duke Law] students, though not all, found “the personhood question” inescapable.”

    1. Yes. I am in favor of fairly broad abortion rights — almost unbounded deference to the (?un-?)birthing person in the first trimester, and significant deference until viability (at least 20 weeks, likely until 24). However, the pro-life argument is much simpler and cleaner; there are no weights to balance, no line of personhood to draw, and all the rest.

      But by similar token, the argument for platforms-not-publishers to simply be platforms is also simpler and cleaner than the alternative.

      1. “the pro-life argument is much simpler and cleaner; there are no weights to balance, no line of personhood to draw, and all the rest.”

        Well, wait a minute…

        The pro-life argument tends to draw the personhood line at the point a human life begins. That a different line from the “prochoice” (or whatever) line, to be sure, but the question is whose line is more in accord with the moral and scientific realities.

        1. Sure, but there are two simple places to draw the line of when a separate human life begins: conception (the usual pro-life place to draw that line), and live birth (which is so rare that we can almost ignore it as a serious position). The more practical question of when abortion is allowed should ideally align with that answer, but it doesn’t strictly need to.

          As I said, I draw the second line somewhere around viability, but that’s not a bright-line event, and it is ultimately arbitrary: I haven’t seen any good moral argument that abortion suddenly becomes bad at viability; it is simply a convenient point. There are lots of other milestones that one could choose just as easily and self-consistently.

          1. I haven’t seen any good moral argument that abortion suddenly becomes bad at viability; it is simply a convenient point.

            One might suggest that after viability if the pregnant woman no longer wants to carry the independent life, then she could arrange to have birth induced. Once born, she would lose parental rights and responsibility and the state could take over the medical decisions and costs to keep the baby alive. (Or alternately, if the father or sperm donor wanted to retain parental rights, he could step forward and pay.) Adoption could be arranged.

            I doubt anyone really likes this solution, but it gives the pregnant woman control of her body and at least in principle saves those fetuses that really are viable.

            1. Sure — but in practice, viability is not so cut and dried. 30 weeks is extremely premature, and may lead to lifelong complications, but modern medicine makes it much more viable than it used to be. 24 weeks is much more dangerous, requires much more intensive care, and it starts to look like heroic measures. 20 weeks? I don’t know, but it’s only going to get more viable over time.

              Medical technology is pushing viability earlier and earlier, which seems like a poor basis to draw this kind of line. If we get entirely artificial wombs, does the right to an abortion go away (except maybe in cases of rape)? Who gets to decide whether a severely impaired child is brought to term? I’m not comfortable with saying that viability, rather than a fixed number of weeks, is the right time to put the decision in the hands of government rather than the pregnant woman.

              1. Of course it’s not cut and dried. That also holds for saying one can have an abortion up until viability but not after. The only change this would be is to say you can get an abortion before viability, but afterwards, the government replaces the mother’s caretaking.

                If we get entirely artificial wombs, does the right to an abortion go away (except maybe in cases of rape)?

                I think the word and right becomes irrelevant. The mother has the fetus transferred to the artificial womb. The government assumes parental rights and responsibilities. That’s not an abortion but the mother is no longer pregnant. I don’t see how rape would modify this. A pregnant woman could unburden herself whether raped or not.

                I’m not comfortable with saying that viability, rather than a fixed number of weeks, is the right time to put the decision in the hands of government rather than the pregnant woman.

                My impession is the fixed number of weeks tends to have been selected based on medical estimate of viability. But the option of allowing the woman to transfer to the fetus to an artificial womb could be based on number of weeks. Require it transferred if the fetus is further along and allow the abortion if it’s not so far along.
                (Number of weeks is often an estimate anyway.)

                Who gets to decide whether a severely impaired child is brought to term?

                If the mother wants to carry it, she is allowed. If she doesn’t, the government decides whether to put it in the artificial womb. Pro-life people would presumably be for putting it there. Pro-choice might differ, but in anycase, the mother has choice to carry or not carry.

          2. Believing in ensoulment is a fundamentally religious belief, as opposed to recognition of intelligence + consciousness as the important aspect of human life. These are often conflated.

            I point out, if my soul is not my consciousness, what do I care what happens to it after I die?

            It should matter if there is a limited consciousness there, being ripped apart, even if it has no memory to speak of capable of storing, however briefly, even that supremely painful moment.

            But that’s an argument about pain, not existence.

      2. It is only simpler and clearer to those who have already made up their minds in that direction.

        * Piss-poor vague and fuzzy definition of the start of life
        * If individual unfertilized eggs are so damned precious, then you’d best start defining every menstruating women as an abortionist, and you better start practicing equal rights and throw men in jail as masturbating mass killers.
        * How do you account for miscarriages? If those are not murder, then why is aborting a fetus murder when the doctors say the fetus will never grow into a self-supporting adult?
        * How do you punish attempted abortion — by throwing the mother in jail and depriving the child of a parent?
        * Societies celebrate birthdays, not conceptiondays; we don’t sing “Happy fuckday to you”.
        * Abortion before the quickening used to be a normal part of life, until the WASPs in the early 1800s started panicking at the thought of Papist immigrants outbreeding them, and began the push which made abortion illegal.
        * If life begins at conception, then society must equalize child care before and after birth. Start punishing pregnant women for smoking, drinking, doing drugs, hang gliding, surfing, etc, just as you would any mother forcing her children to smoke, drink, or do drugs, or hang gliding, or surfing while carrying her 1 month old baby in her arms.
        * If you make exceptions for rape, you are murdering the child for the sins of its father. Force that pregnancy to completion!
        * If you make exceptions for rape because the women did not intend to get pregnant, you must make exceptions if the condom broke or she forgot to take her monthly pill.
        * If you make exceptions for forcible rape, you must make exceptions for fraudulent consensual sex, where the man lied about things that the woman considered required for a father of her children.
        * If you make exceptions for incest, you are murdering the child for the sins of both its parents.
        * If incest is so bad because of genetic inbreeding, then you must also allow abortions if genetic screening shows undesirable traits.
        * If you allow no exceptions whatsoever, because God controls everything and ordained the rape or incest or genetic failures, then you must also allow abortions as being controlled and ordained by God.

        These are just some of the reasons why banning abortion is hypocritical and poorly thought out. I am sure there are many others. These have NOTHING to do with my personal feelings on abortion. They are ONLY reasons why anti-abortion laws are showcases for the typical sorry state of almost all government legislation and the buttinsky attitudes of all nanny scold statists.

        Fuck off, slaver.

        1. You forgot to point out all the people who claim “every sperm is sacred” in that parade of horribles.

          1. Nope, got that one too 🙂

            “and you better start practicing equal rights and throw men in jail as masturbating mass killers”

            1. Ah, but that ignores the putatively genocidal threat of nocturnal emissions!

        2. * How do you account for miscarriages? If those are not murder, then why is aborting a fetus murder when the doctors say the fetus will never grow into a self-supporting adult?

          What on earth are you talking about? Miscarriages aren’t murder for the same reason that heart attacks aren’t murder.

      3. However, the pro-life argument is much simpler and cleaner

        Really? How much simpler and clear do you want it than “Regardless of all this personhood nonsense, at common law there is no general obligation for one person to risk their life for another. As long as an abortion is safer for the mother than carrying the foetus to term, abortion has to be legal.”

        1. That’s not the rationale for many abortions here in the US. Usually it is just a decision that the pregnant person is not ready or willing to have a(nother) child then.

        2. That’s probably the best argument, but is countered by a few arguments – (1) parents DO have to put special effort into protecting their children; (2) killing somebody is so ridiculously different than not helping somebody; and (3) nobody has the right to intentionally kill another person in self-defense unless they are in ACTUAL (not just subjective) risk of loss of life or great bodily harm. You can’t just go from “I don’t have to risk my life for somebody else” to “I can kill them”.

          1. (1) parents DO have to put special effort into protecting their children;

            Sure, once they voluntarily decide to have them.

            (2) killing somebody is so ridiculously different than not helping somebody

            What kills the feutus is the absence of a womb, of active help. So it’s basically still killing through inaction.

            (3) nobody has the right to intentionally kill another person in self-defense unless they are in ACTUAL (not just subjective) risk of loss of life or great bodily harm

            What’s subjective about the risk of dying in childbirth. (Which, for some mysterious reason, is much greater in the US than in comparable countries.)

            https://en.wikipedia.org/wiki/Maternal_mortality_in_the_United_States

    2. I take it you believe a woman who has an abortion should be punished as a first-degree murderer. Ditto for a stem cell researcher who destroys embryos and the owners/staff of IVF clinics who destroy unused embryos.

      1. You show incredible, detailed insight into the prolife position.

        /sarc

        1. It’s remarkable that former abortion workers – eg., Dr. Bernard Nathanson – have adopted the obviously-wrong prolife position. And the late Nat Hentoff, liberal journalist.

          Bitter clingers. They obviously were never exposed to your sophisticated arguments.

          1. And none the reverse? Shocking!

        2. If I’m wrong, please explain the logic that allows you to both believe personhood begins at conception and the things I mentioned are not examples of first-degree murder.

          1. So, which parts of the abortion laws which the Supreme Court struck down in 1973, do you find inadequate in their purpose of protecting the unborn?

            1. Firstly by that logic, if the law only punished the hired hitman when a tall person was the victim of a murder for hire, you would deem that adequate to protect tall people relative to the protection afforded to everyone else. I’m not persuaded.

              Secondly, your comment does not apply to the stem cell researcher or IVF clinic owner/staff. None of those victims you call persons are provided any protection by the law.

          2. If you *really* believe motorists are persons, how can you support the idea of misdemeanor vehicular homicide?

            1. Vehicular homicide is neither intentional nor preplanned.

    3. It’a easily escapable. The Supreme Court has long held that the word “person” as used in the Bill of rights lacks application to extraterritorial aliens, using language amd reasoning almost identical to what the Roe Court used to hold that the Bill of Rights lacks “prenatal application.”

      So if Roe v. Wade somehow establishes that a fetus isn’t a person, then the Court’s precedents are just as clear that an alien six inches away from the US border “isn’t a person” either. It’s the same inquiry, same answer.

      But nobody for a minute would suggest that the fact that an extraterritorial alien lacks the constitutional rights of persons somehow means government can’t restrict killing them, even when avoiding killing them can impinge on Americans’ liberty.

      So I don’t see how the “personhood” argument even has to be relevant, let alone essential.

      Of course, nobody would interpret what the Supreme Court said about extraterritorial aliens as in any way implying an extraterritorial alien “isn’t a person.” Rather, it means the Constitution doesn’t give the federal courts authority to extend constitutional protections to them.

      That’s a statement about the power of the federal courts, a legal statement, not some sort of philosophical statement about extraterritorial aliens’ innate nature. The Supreme Court is a court of law, not a philosophy tribunal.

      So why in the world shouldn’t Roe v. Wade be interpreted the same way? Roe v. Wade stands for the position that federal courts lack the power to extend constitutional protections to fetuses. That’s a statement about federal courts’ power, not a statement about what fetuses are at all. “A fetus not a person” is a really off-the-wall way to interpret the inquiry the Supreme Court made and the answer it foumd. Again, the same inquiry and answer was done for extraterritorial aliens. Interpreting it as meaning “an extraterritorial alien isn’t a person” is not merely unnecessary, it borders on the ludicrous.

      The same inquiry got the same answer with fetuses. Why shouldn’t it be interpreted the same way?

  5. “Do you think this is a sound argument, taking as given the Court’s precedents holding that the Constitution protects abortion rights”

    I thought the answer was quite obviously no. A number of reasons for this. I think Alito developed the “private right” argument in the sports gambling case, holding that the feds cannot commandeer public officials, but if congress wants to regulate state action it can do it through standard withholding money to coerce action or creating private rights.

    Unless the state is constitutional mandated to have the anti-discrimination provision, in which case it becomes very dicey, yes congress can pre-empt it. The standard after the law is constitutional. The standard before the law is constitutional. Nothing changed! Yes abortion rights were hurt but that does not matter.

    If the state repealed the law no issue would be raised. I fail to see why pre-emption is different. There aren’t any commandeering / federalism issues raised because of the private right framework so what exactly is the issue?

    Same holds if a state passed a law preventing banks from discriminating against gun stores, which some have, and congress moves to create a private right of action pre-empting it. It is even more clear, because you don’t have a constitutional right to own a gun store, abortion clinic, whatever.

  6. I think landlords already avoid renting to abortion providers, in the recent case involving an abortion provider in an office park that I am somewhat familiar with, I recall seeing the protestors on the street in front of the Office Park on occasion. I was always surprised the landlord rented to that tenant both because of what they do but also because the park is not particularly a medical destination.

    Another abortion provider I pass by frequently (they are around the corner from my Primary Physician) is located near a major hospital but in a free standing building not part of the hospital campus. I don’t know if the clinic is a tenant or owns the building. On some days there are protestors and escorts for the patients outside on the street and sidewalk.

    Some landlords I know are not particularly interested in renting to medical providers or social agencies of any type.

    Selling has a different dynamic, while some Owners may resist selling property to an abortion provider, most won’t care and others may well view it as positive.

    1. There’s a business opportunity — buy buildings and rent them to abortion clinics.

  7. Like others this hypo is giving me a headache. I’m having trouble imagining a situation where the state law here is constitutional, given that the state always has the option of buying property themselves if they’re worried about where abortions might be carried out. (Or where guns might be sold, etc.) So I’m not sure how you’d justify such a whopping state interference with property rights.

    1. You don’t have much understanding of American law yet, keep working on that.

      States lamentably have wide latitude in making decisions about property use in Zoning, building asthetics, who an owner can rent to. And certainly rent control is a major restriction on property rights that still exists in some jurisdictions like NY and SF.

      Take for instance Seattle’s ordinance that a landlord can’t choose their tenants, they MUST rent to the first person that shows up that can meet income qualifications, even if the landlord knows it’s going to be a problem, and they’ve had convictions or evictions in the past.

    2. How about a law mandating that guns be sold in all abortion clinics?

      1. Or gun stores provide abortion services.

  8. In the abortion example I would say yes, the clinic’s argument is sound and the federal law should be overturned. (I’m going along with the assumption of a sound right to an abortion.)

    But I see problems with applying this to Internet platforms.

    (1) The Internet is not close to being limited by physical space as real estate allocation is. Facebook and Twitter can grow as large as they please without hampering the operation of Gab or Parler.

    Granted there are circumstances under which this would no longer be true. For example, Visa, Mastercard, and Discover use a blacklist controlled by Visa to exclude some businesses for political reasons, and Gab is on that list. I would not overturn, and would want to see, federal or state laws banning that type of discrimination because banking services are a necessity, and are so heavily regulated that enough competing banks to prevent this issue cannot exist.

    (2) Section 230 has so far been misinterpreted in ways that largely enable this problem. For example, it says that any determination to reject or limit the distribution of a message must be made “in good faith”, but the courts have not put any teeth in that phrase. Let them rule that every forum provider’s stated reason for an act of blocking must be honest and not libelous, must not violate the forum’s published or advertised rules for allowed content, and must be enforced even-handedly, and the vast majority of the major providers’ objectionable blocking actions would be prevented or punished.

    1. I don’t know whether the doctrine is sound but assuming it is for the sake for argument, Section 230 might be distinguishable.

      One argument is Section 230 withdraws customer speech protections provided for by state law in which case the analogy to abortion providers holds. On the other hand, it might be the case Section 230 enhances provider protections against compelled speech in which case the analogy fails.

      At first blush, which speech is deserving of constitutional protection depends on whether social media platforms are rightly viewed as common carriers. But that determination seems to drive much of the debate and perhaps is in effect begging the question.

      1. Josh R, your comment gets us closer to headache-inducing problems in EV’s analogy. If you take the view that the big internet “platforms,” are publishers, then their freedom to decide what to publish and what not to publish is 1A protected. On the abortion side, EV’s analogy does not seem to include an on-point comparison for that wrinkle.

        Another problem not noticed by the analogy is that publishing is a competitive business, in a way that abortion is not. In that competition, Section 230 has selectively advantaged one group of publishers at the expense of others, by giving the online publishers a legal protection that pure ink-on-paper publishers do not enjoy.

        That difference has dramatically affected the business postures on the two sides, enabling growth on the internet side to near-monopolistic control of the market for advertising sales. That growth has demonstrably come at the expense of ink-on-paper publishing, but apparently only because of Section 230, not because of any inherent efficiency in the internet model.

        Almost everyone agrees that absent Section 230, the internet giants could not operate at their gigantic scale, and maybe not function at all. Think about that. It is saying that if compelled to follow the same laws on libel which ink-on-paper publishers managed successfully—so long as those laws were applied alike to everyone—the internet giants could not keep up with the others.

        To me, that seems to rule out any argument that because it is inherently more efficient, the internet wins as a publishing medium. Instead, the internet wins because it has been singled out for a legal privilege denied to non-internet competitors. That legal privilege recognized one nearly-prohibitive inherent inefficiency characteristic of the online publishing business model, and selectively suspended the law to relieve the internet publishers of that disadvantage.

        That suspension of law came at enormous cost to the nation’s public life, with an explosion of libel and other publishing vices which previously had been held in check by private editing prior to publication. Arguably, those vices have destabilized the nation’s political life, or, arguably, they are not vices, but virtues that have rung in a new age of political freedom.

        Less pointedly, the legal suspension promoted freedom of expression by opening a route around private editing for a host of people who otherwise could not get published. Where in the abortion comparison is there any complication comparable to that one? Where in the history of the national public life is there any complication comparable to that one?

        1. That difference has dramatically affected the business postures on the two sides, enabling growth on the internet side to near-monopolistic control of the market for advertising sales. That growth has demonstrably come at the expense of ink-on-paper publishing, but apparently only because of Section 230, not because of any inherent efficiency in the internet model.

          This is completely full of category errors. Publishers publish their own content. Those who publish their own content are not protected whether on ink or on the Internet. The rules are the same. Facebook or Google or Twitter or Amazon, when acting as publishers, are fully liable. Facebook or Google or Twitter or Amazon, when distributing other people’s stuff, are not liable as publishers because they are not acting as publishers. They are acting as distributors.

          It’s weird how you keep saying “The internet is different and so the rules need to be different,” but then you whine that the rules are different, and ignore the ways in which the media are different. Of course it’s more efficient to put up a website and say to the general public, “Post what you want” than it is for an ink publication to say that to the general public.

          1. David, are you a lawyer? Your intelligence and ethics were destroyed in law school. Your remarks show that.

            1. This lawyer is not saying, distributors have liability for foreseeable injuries.

    2. Let’s go with a different example, in California it’s against the law for a private employer to fire an employee for exercising their free speech rights, like say firing an employee that goes to a school board meeting on their own time and complains about CRT.

      Can the Federal government pass a law that allows the company to fire employees for their speech on public issues, nullifying the state law?

      I think the courts might be skeptical. It’s already illegal for the federal government or state government to fire their employees for exercising their free speech rights on non-job related issues.

  9. I’m generally reluctant to play along with the pretense that abortion is a real constitutional right. But, fine.

    No, I don’t think states should generally be able to force private property owners to provide space for the exercise of constitutional rights, real OR imagined. Not gun shops, not abortion clinics. (And, yes, I think Pruneyard Shopping Center v. Robins was wrongly decided: Forcing a private property owner to permit conduct they don’t want on their property IS a taking.)

    There are several things that make this a bad analogy to online platform censorship.

    1) There’s some question of whether the platforms are engaging in this censorship on their own initiative, or are doing it as covert agents of a faction in government. (A similar issue arose with Project Choke Point.) If the latter, this may have to be treated as government censorship falling under the 1st amendment.

    2) Section 230 extends to platforms a privilege, a shield from having content on the platform treated as the platform’s own for purposes of law. Then specifies this privilege will not be lost as a consequence of only a narrow sort of editorial control. That narrow carve-out was then blown wide open during subsequent ‘interpretation’ of the law, and is no longer really conditioned on anything.

    This protection is expressly a privilege, NOT protection of a right.

    3) Discussion usually revolves around either restoring the original narrow scope of the carve-out, or revoking the privilege. Neither action would deprive platforms of the power to censor. What they’d lose is the power to do it, and not have content treated as their own. They’d be recognized as the publishers they are acting as, not platforms, and still have the full 1st amendment rights of publishers.

    In order to make this a good analogy, suppose Congress had enacted a law extending tort protection to facilities engaged in “non-medical personal services”, and then added a carve-out for “ear piercings, chemical peels, and services of a similar nature”?

    “and services of a similar nature” ended up interpreted to mean “services of any nature whatsoever”, and facilities engaged in abortions were taking advantage of this carve-out on the basis that abortion had obvious cosmetic benefits: You abruptly lost weight!

    So states started enacting laws saying that abortion isn’t a non-medical personal service…

  10. The problem is that we are talking about the wrong property. How about viewing the woman’s body as her own property? Why don’t we require the government to have to justify why it has a right to deny a woman the right to determine what to do with her own body?

    Ok, the government wants to protect the fetus growing inside her body.

    But then don’t we need a balancing of rights?

    How about this, hypothetically, of course:

    The woman has a right to make decisions about her own body.
    She does not want a fetus growing inside her body (regardless of how it got there)?
    She should be able to remove it.
    However, she should not be able to kill it, if it can sustain its own life or its life can be sustained with currently-available medical intervention.
    Thus, the fetus must be removed from her body in a manner consistent with survival of a fetus which is viable according to current medical knowledge.
    If a live fetus is delivered, the mother is immediately stripped of all parental rights and the fetus becomes a ward of the state.

  11. This reminds me of challenges to California’s Proposition 209 and a similar non-discrimination initiative in Michigan, on the general theory that they singled out efforts to remedy discrimination. And more tangentially, Romer v. Evans.

  12. The Democrat party is literally colluding with Twitter to suppress opposing viewpoints. Whatever you may want to try to argue, the Democrats are using the threat of regulation to suppress what people say. This isn’t a property rights issue, it’s a first amendment issue.

    https://wiredailynews.com/2021/06/19/there-it-is-democrats-have-special-twitter-hotline-access-to-silence-your-speech-purge-at-will-lawsuit/

  13. EV, your analogy is lacking. But no worries, I have fixed it for you.

    1) Publishers are generally entitled to decide what speech can be shown on their property, including offensive material that is constitutionally protected.

    2) The federal government recognizes that the Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity. Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services. Moreover The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens. These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops. The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.

    3) Historically, American law has provided that Platforms may not screen content but are not liable for the content they carry. Publishers on the other hand may engage is whatever editorial actions they desire but are responsible for the content appearing on their property and are subject to libel and other civil actions as well as criminal penalties. See 47 U.S.C. § 230 and the Publisher/Distributor/Platform Distinction – Reason.com for excellent discussion on the distinction between publishers and platforms.

    4) Congress, in order to encourage “Good Samaritan” blocking of offensive material by ISPs without placing themselves at risk of being treated as publishers provides for such protection in Sec230.

    It is not reasonable to conclude that in passing sec230 Congress created super publishers who are free to commit libel. Instead the rather obvious objective was to allow ISPs to block offensive material without being treated as publishers so that they may continue to offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.

  14. A hypothetical actually related to sec230 :
    • An abortion rights proponent’s post is deleted from a right wing ISP.
    • They sue under a state anti-discrimination statute.
    • The right wing ISP asserts section 230 as a defense.
    • The abortion rights organization argues that sec230 does not provide carte blanch to screen any and all viewpoints which the ISP (a platform, not a publisher) does not wish to promulgate.
    • Therefore, the abortion proponent organization argues, the state non-discrimination law is not preempted. If it wishes to remain being treated as a platform rather than a publisher, the right wing ISP is not free to screen out abortion rights proponents.

    Another hypothetical actually related to sec230 :
    • An abortion rights proponent is slandered on a right wing ISP that has over a long period of time refused to carry posts from the abortion rights or other viewpoints that the right wing ISP does not itself agree with.
    • The abortion rights organization sues for libel.
    • The right wing ISP asserts section 230 as a defense.
    • The abortion rights organization argues that sec230 does not create super publishers that are free to defame others.
    • Therefore, the abortion proponent organization argues, the state libel laws are not preempted. If it wished to remain being treated as a platform rather than a publisher, the right wing ISP is not free to screen out viewpoints which are not aligned with its narrow aims.

    1. It’s hard to see how a hypothetical involving a pulled out of thin air term (“platform”) that does not appear in the statute could be said to be “actually related to” the statute.

      Also, it’s not clear why the abortion rights organizations in your hypotheticals are making frivolous legal arguments that show that they never read the statute.

      1. David,
        It is clear that you believe sec230 does create super publishers that are free to defame others.

        I guess we will have to wait until SCOTUS rules to find out if you are correct. But have you asked yourself -does Congress even have such power?

        1. It is clear that you believe sec230 does create super publishers that are free to defame others.

          In what way is that “clear”? Nobody is “free to defame others” under § 230. All § 230 does in relevant part is say that, online, one person is not liable for another’s content.

          I guess we will have to wait until SCOTUS rules to find out if you are correct.

          We really don’t have to wait at all. There are a few edge cases under § 230 (such as liability for product sales via Amazon), but the application of the statute to the mine run defamation claim is incredibly firmly established; there is no circuit split and the Supreme Court is not going to take such a case — let alone rule that all of the courts to have applied the statute have gotten it wrong.

          But have you asked yourself -does Congress even have such power?

          The power to enact § 230? Under the interpretation of the commerce clause that has been in effect for the last century, there is no doubt that it does.

          1. No, the power to remove protection from libel.

            1. No, the power to remove protection from libel.

              That’s not what § 230 did; it only limited the scope of who is liable for defamation. It in no way permits libel. But setting that aside, I reiterate: under the interpretation of the commerce clause that has been in effect for the last century, there is no doubt that it does possess that power.

              Congress changes liability regimes under its commerce clause powers all the time, from the National Vaccine Injury Compensation Program to the Protection of Lawful Commerce in Arms Act.

          2. “In what way is that “clear”? Nobody is “free to defame others” under § 230. All § 230 does in relevant part is say that, online, one person is not liable for another’s content.”

            Yes, when sec230 is read correctly, no one is free to defame others (except maybe anonymous posters who take potshots on open forums). Nor do I think it plausible that what Congress had in mind was to allow publishers to defame others. Suppose an ISP allows on its site only negative and often defamatory posts about certain persons, but does not itself speak about those persons. In your view the ISP can claim that sec230 allows them complete editorial discretion without liability for defamation because the defamatory posts originated from others. But if the ISP has chosen to present defamatory posts while blocking opposing views, they have taken on the role of publisher. Such an ISP would not merely be providing “good samaritan” blocking of offensive material, instead they would be curating the content of their site (as does a publisher rather than a platform) and as such would not entitled to the protection from libel claims afforded by sec230.

            If “good samaritan blocking” is to be read as synonymous with “complete editorial discretion” we have indeed created super publishers who are immune from charges of libel.

            1. Nor do I think it plausible that what Congress had in mind was to allow publishers to defame others.

              This is why statutes are properly judged by their actual text rather than by speculation about what a legislature might have had in mind regarding an extreme hypothetical.

              In your view the ISP can claim that sec230 allows them complete editorial discretion without liability for defamation because the defamatory posts originated from others.

              It is not “my view.” It is the text of the statute and the essentially unanimous interpretation of the courts.

              But if the ISP has chosen to present defamatory posts while blocking opposing views, they have taken on the role of publisher.

              You’re free to wish that this is what the law was, but the statute provides otherwise:

              No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

              That is not ambiguous and does not admit of exceptions. There’s no “Unless Mike Hansberry thinks that you’re acting too much like a publisher” clause. You shall not be treated as the publisher.

        1. Yes, that was not the VC’s finest hour.

          1. What’s wrong with the post?

            1. I have to agree with Josh’s question. There’s nothing wrong with EV’s post, other than perhaps overcharitably adopting the “platform” language used by the anti-§ 230 loons. (I mean, calling a sidewalk a “platform” is a bit odd.) It accurately states the law and does not support Hansberry’s claim.

              1. That’s my issue – there’s a whole right-wing enterprise around an incorrect understanding of 230, and EV sorta leans into it without engaging with it.

                It’s not as bad as some stuff, but as someone who finds this stuff a bit tricky, from my pov it has proven to add more heat than light to the policy and legal discussion on 230.

                1. I thought Eugene’s explanation was very helpful and shows that Mike’s interpretation is off base.

                  1. https://reason.com/volokh/2020/10/13/justice-thomas-writes-in-favor-of-a-narrow-reading-of-47-u-s-c-%C2%A7-230/?itm_source=parsely-api

                    When the issue is boiled down, a broad reading of sec230 results in super publisher status being conferred on ISPs. They are supposedly free to edit content on their site to the same extent as any publisher but are not liable for defaming others. Justice Thomas pointed this out (see link) and while EV thought his overall argument strong, EV nonetheless holds onto the broad reading without (unless I have missed it) addressing that specific point.

                    When the government answered that they could ban the publishing of books, they lost Citizens United. I think a similar result will occur with sec230 if proponents of a broad reading cannot come up with a limiting principle regarding to what extent ISPs may like publishers under sec230.

  15. Isn’t this argument essentially the one made in Roemer v. Evans, except that case involved a law prohibiting local discrimination at the state level rather than the federal level.

    And Roemer v. Evans answers the question in a very clear manner. If the Supreme Court likes what you are doing – if you are on its friends list – then it will indeed strike down the law restoring private property rights to what they were before as an unconstitutional infringement of the rights of the people seeking the ordinance. And if it doesn’t like you, it won’t.

    It doesn’t matter in the least whether the right involved is enumerated or not. The Supreme Court likes gay people. If doesn’t like smut. Previously, it liked abortion and didn’t like guns. But we may find that changes in the composition of the court may end up reversing those last two.

  16. From where I sit, it looks like a false “You are a liar” is libel per se, especially when used against someone speaking professionally and whose profession demands truth.
    This takes in a lot of the so-called “fact-checking” by the big social media. And many other takedowns are likewise libellious, imnho.
    There should be no immunity (from Federal or any other law) against such libel suits.

    1. From where I sit, it looks like a false “You are a liar” is libel per se, especially when used against someone speaking professionally and whose profession demands truth.

      I don’t think a naked “you are a liar” could be libel; everyone lies, and without context it just seems like rhetorical name calling. Of course, if you accuse one of lying about a specific thing, that could be libel. Though it could also just be non-actionable opinion.

      This takes in a lot of the so-called “fact-checking” by the big social media. And many other takedowns are likewise libellious, imnho.

      (1) Fact checking by “the big social media” does not generally involve calling someone a liar; it generally involves saying that the particular claims are disputed. Moreover, the fact checks to which those disclaimers generally link — aside from not being authored by the social media companies — are typically the classic example of opinions based on disclosed facts, and are not of and concerning the posters anyway.

      (2) Not clear how a “takedown” — if by that you mean a social media company deleting someone’s post(s) — could ever be libelous.

      There should be no immunity (from Federal or any other law) against such libel suits.

      Well, there is no “immunity” from a defamation claim for calling someone a liar. § 230 immunity kicks in only when trying to hold someone liable for someone else’s claims.

      To be sure, there is § 230 immunity for moderating/deleting a user’s content, but it’s not clear what cause of action such a person would have anyway, even in the absence of the law. In any case, if you don’t like it you’ll have to lobby Congress to change the law.

    2. I would argue that labels places on content by agents of the social media platform that make statemwnts about the content are completely exempt from Section 230 by its own terms. It’s not moderation of user content. It’s the social media platform’s own speech. Anything a social media platform itself says is subject to full libel liability. Section 230 doesn’t exempt it from anything.

      Section 230 only addresses a social media platform’s decision not to post content, not any labels, tags, replies, etc. of its own that it may impose upon it.

      1. I would argue that labels places on content by agents of the social media platform that make statemwnts about the content are completely exempt from Section 230 by its own terms.

        Of course they are. Any such labels are indeed the speech of the social media platform. If Twitter slaps the disclaimer, “This poster is a crook who is trying to steal money from people by lying about vaccines” on a particular vaccine-related tweet, then Twitter is potentially subject to liability for defamation for that disclaimer. But the thing is, Twitter doesn’t slap disclaimers like that on posts, so the issue is moot. Twitter slaps a disclaimer like, “This post contains disputed information. For accurate information about vaccines, go to the CDC’s website.” And that’s just not defamatory.

  17. Eugene, you’ve been spending too much time around Josh. This is a strained, convoluted hypothetical, designed to pump intuitions a particular way about abstract arrangements when real-world examples are more readily available and comprehensible, all in support of developing a legal argument that would be absurdly self-inconsistent on its face, for the sole purpose of serving some political agenda. Classic Josh Blackman material.

    First – under existing jurisprudence, it’s hard to see why the federal law you’ve presented hypothetically would be constitutionally problematic. For abortion, the relevant question to ask would be whether the federal statute imposes an “undue burden” upon individuals’ access to abortion. So many TRAP laws have been blessed under this standard that it is easy to see how the federal law would also pass muster. If you can adopt a TRAP law that closes all but a handful of abortion clinics, and if you can require that abortion providers obtain “admitting privileges” in order to provide abortions – while doing nothing to compel any hospital to grant such privileges – then surely a law that merely provides that property owners can elect not to rent to abortion providers would similarly be upheld.

    The standard under the Second Amendment is less developed, but a more pertinent comparison than your abstruse hypothetical might be to federal regulation of firearms on airplanes and within airports. Federal law currently restricts firearms on airplanes and within airports quite strictly. This is a regulation of private property and has not yet been held to present any particular constitutional problem. So, to draw a relevant hypothetical, one might imagine a situation where a state (Georgia, say, which is home to a major Delta hub) were to require that airlines that transit the state must permit passengers to carry legally-acquired and licensed firearms on board (and airports, on their premises). In response, Congress passes a law making clear that airlines and airports are free to disregard these laws and reiterate the supremacy of federal regulation.

    In that hypothetical, absolutely nothing is different from the status quo – carrying of firearms on airplanes and airports remains prohibited as a matter of federal law. Yet you seem to want us to intuit that the back-and-forth interplay of state and federal law now makes that situation unconstitutional. How can that be right?

    Second – to even engage on abortion or gun rights is, to a certain extent, to fall for this red herring you’ve tossed. Because, of course, there are First Amendment cases on free speech rights using private property, which already provide a framework for analyzing the question and a series of cautionary tales about the difficulty of creating and regulating a right of “free speech” that extends to ostensibly public fora owned by private owners. These are the “mall cases,” and why you don’t even bother to start there, I don’t understand.

    Well, I do. You don’t start there because it wouldn’t help your argument. The Supreme Court has been clear about the First Amendment, there – there is no “free speech” right that extends to private property. That being the case, it’s hard to see why a federal law simply affirming that arrangement – in the face of state laws purporting to create a “super”-free speech right that does usurp private property rights – would be considered unconstitutional. And when, and how, could it be unconstitutional? Would it be unconstitutional just in those states that had purported to impose a “non-discrimination” requirement on private actors, while unconstitutional in others? How could Section 230 be constitutional before any state imposed a “non-discrimination” requirement, but suddenly be deemed to be unconstitutional just because some state sought to go further than required by the First Amendment?

    The puzzles abound. Again, it all stinks heavily of the arguments adduced to tear down Obamacare. Certain motivated scholars apparently will come up with ingeniously confusing arguments to reach their desired political outcomes.

    Third – part of the problem with the hypotheticals you’ve constructed, and part of why they’re misleading, is that they abstract away a core “free speech” issue in the Section 230 context. Your hypothetical weighs abortion rights, or gun rights, against private property rights. The constitutional analysis thus would implicitly or explicitly weigh one kind of affirmatively-protected constitutional right against due process rights – which have notoriously less protection under state and federal constitutional law.

    But state laws requiring social media platforms to carry speech they disagree with is not akin to requiring a landlord to rent their property out to an abortion provider. It is akin to compelling a billboard owner to rent their space to an anti-abortion activist, a newspaper to carry an op-ed with which the editorial board disagrees, a right-wing blog to publish comments from disagreeable commenters. We are not, in other words, just talking about usurping a private property owner’s rights to use their own property; we are talking about compelled speech.

    It is true that Section 230 is designed to protect ISPs from being treated as “publishers” notwithstanding their publishing-like activity, so as to enable them to function more like “common carriers” or “utilities.” But from a constitutional perspective that does not mean that they are not publishing. Thus, it is hard to see how state laws compelling them to publish content that they disagree with (or view as incompatible with their business interests, etc.) can be constitutionally defensible, or why a federal law seeking to protect ISPs from unconstitutional mandates by states would itself be constitutionally problematic.

    To put it another way, we can imagine a situation where some enterprising blue state seeks to impose an “equal time” requirement on local newspapers and broadcasters. Congress might conceivably pass a law specifying that, no, you can’t compel newspapers and broadcasters to provide “equal time.” That would protect newspapers when they choose not to run my letters to the editor – which they are perfectly free to do now, and have the right to do under the First Amendment. So how could the hypothetical federal law be constitutionally problematic?

    It’s all just rank nonsense. You’re relying on rhetoric and confusion to make your case, Eugene. You’re better than this.

  18. If we really honored the idea of separation of powers between federal and state, then we would not have a need for a supremacy clause because there would be no overlap.

    Many US citizens (probably more left than right but not all) believe that all laws should be uniform across all states. With that thinking, why tolerate having state governments at all? Obviously, that’s not something you can argue in court or in Congress. It would take a massive rewrite of the Constitution to eliminate states.

    1. If we really honored the idea of separation of powers between federal and state, then we would not have a need for a supremacy clause because there would be no overlap.

      Weird how the framers put the Supremacy Clause in there, then. Of course there’s overlap.

  19. It seems to me that the issue around abortion is viewed incorrectly. I don’t see how anyone has a (natural/positive) right to an abortion. (I don’t buy rights that impose a positive obligation on someone else.) If viewed as a negative right, it is the right NOT to have criminal penalties imposed by one who receives or provides an abortion. While this may not satisfy those whose moral code forbids an action and who also believe in using government force to impose their moral code, it does require them to justify that code based on commonly accepted natural rights.

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