Why Did Texas Enact S.B. 8?

Carter Snead: "Texas responded to this futile cycle by adopting a strategy developed by progressives to root out fraud against the government": citizen suits.

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After I completed my Newsweek column on S.B. 8, I started work on a follow-up piece to lead into Dobbs. In short, the fact that Texas enacted a law like S.B. 8 is proof that Casey's stare decisis analysis failed on its own terms: Roe in no way settled the never-ending debate about abortion. Roe did not, as the Casey plurality boasted, "call[] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution." Far from it.

Rather, Roe and its progeny have led states to resort to an never-ending array of abortion restrictions that have invariably been enjoined by district court judges with vast discretion, leading to even more circuitous restrictions that were also enjoined. S.B. 8 is a manifestation of what Justice Scalia described as "an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular." In my view, S.B. 8 was born of Pax Roeana, as Justice Scalia memorably put it. Much of the essay explained why Texas felt the need to enact such a clever, but frankly desperate law.

In the Washington Post, Carter Snead opines on this issue, and explains why Texas enacted S.B.8. He describes the familiar cycle in which conservative legislatures are stymied at every turn by pre-enforcement challenges.

Abortion rights advocates challenge every state regulation of abortion and routinely obtain injunctions against such laws by federal trial judges whose discretion is essentially unfettered by the vacuity of the law. Even laws nearly identical to those previously affirmed as constitutional have been recently nullified. Texas responded to this futile cycle by adopting a strategy developed by progressives to root out fraud against the government and to protect the environment — namely, through "citizen suits."

But Texas sought to break that "futile cycle":

The Texas strategy was ingenious in that it evaded the usual pre-enforcement injunction by a federal court, which only has the constitutional power to act when the parties before them are involved in a real dispute. Because neither the state officials nor the private citizen sued in the case were involved in the enforcement of the law, the Supreme Court lacked the power to intervene. . . .

Texas was fed up with the interminable cycle of crafting laws to protect the unborn, followed inexorably by injunctions and years of litigation before judges seeking to apply indeterminate standards stemming from a constitutionally unwarranted power grab by the Supreme Court. . . .

Snead concludes that the only "road back to normalcy" is for the Supreme Court to reverse that "constitutionally unwarranted power grab." The Wall Street Journal suggests that S.B. 8 would make the Court less likely to overrule Roe in Dobbs. I think Snead has the better argument, especially in light of the Chief's Citizens United concurrence.

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  1. Roe will obviously be overturned…I think the only issues are “rape and incest” AND how to treat reckless couples like the Santorums that have unprotected sex knowing the outcome will either be a quick death for the poor little embryo or a baby born with severe birth defects. I believe ACB and Kavanaugh will carve out an exception for rape and incest because they used their lawyerly talents to help Bush steal the 2000 election so he could slaughter brown babies in Iraq…so they are clearly fine with killing babies under certain circumstances. I think the Supreme Court will punt on what to do with psychopaths like the Santorums that apparently have a kink that involves making embryos that die a quick death…sick!

    1. You got in some good applause lines against Republicans, but I seem to have missed your analysis of when a living human being becomes a person with rights.

      1. I’m pro-life…but I don’t vote on the issue. Medically speaking life begins at implantation but if one believes life begins at conception then our society’s devil may care attitude to embryos is problematic because a significant % of embryos never achieve implantation…and then a significant number that are implanted die in miscarriages…those poor little cute embryos…so sadz.

        1. “I’m pro-life…but I don’t vote on the issue.…those poor little cute embryos…so sadz.”

          I’m guessing (if I may steal an old joke) that your prolife views are so private and personal, you won’t impose them on *yourself.*

          1. I personally am pro-life and I hope Roe is overturned. I just don’t care about the issue other than hoping Roe is overturned.

        2. “but if one believes life begins at conception then our society’s devil may care attitude to embryos is problematic because a significant % of embryos never achieve implantation…and then a significant number that are implanted die in miscarriages…those poor little cute embryos…”

          No, that’s not a problem at all. Death is a natural and in fact inevitable part of life.

          Death only becomes an issue for the law or moral concern when it results from human agency.

          1. We have manslaughter and child endangerment laws—so that’s why I bring up the Santorums because they were having unprotected sex over 46 years of age when the two outcomes are the embryo dies a quick death or the baby is born with severe birth defects.

            1. Neither manslaughter nor child endangerment work the way you seem to think they do.

              As to the Santorums, no those are not the only two possible outcomes at age 46. Older women than that have had healthy children.

              I suppose you think any woman who produces a disabled child should be forcibly sterilized.

              1. Wrong, the chances of an embryo implantation (medical definition of pregnancy) are approaching 0% without medical help over 44 years old. So an over 44 year old women that gets pregnant will almost always have donor eggs and medical help. So if it were just Rick sticking his dirty d into Karen’s old p with no doctors involved and Karen’s not in menopause then that means eggs were being fertilized and they were fine with the consequences—no different than a shit faced parent taking his kids to play on the NJ Turnpike at 5 pm on Friday.

                1. Sebastian, I really like this new, crazy version of you. It’s almost funny. To be sure, you’re no OBL, but maybe if you apply yourself, one day you can be as widely adored as Artie.

                  1. Oops, I misspelled “ignored.”

                    That should read “one day you can be as widely ignored as Artie.”

                    1. Once again, these are all easily verifiable facts. The Santorums are very open about how in Catholicism raw doggin’ it is fundamental to being a practicing Catholic.

      2. That is not a hard question. Prior to viability, around 24 weeks, the fetus is tissue that is part of the mother. Her body is protected by the Fourth Amendment. She may do as she pleases with her own body.

        After viability, the fetus looks like and is a fat baby. It is protected by Fifth Amendment Procedural Due Process Right, to not be executed without criminal charges and a trial.

        This analysis is self evident to the diner people. Thus the lawyer dumbass does not understand it.

        1. That’s an interesting take, but you assert the core point without argument. Why doesn’t the fetus count as an infant?

          David, you may be a jerk and a troll, but you aren’t a fool. You know that you need to convince people.

          1. If the fetus counts as an infant, then a woman who has an abortion must be treated as a first-degree murderer. Ditto for a stem-cell researcher or IVF clinic technician who destroys embryos. Those results strike me as absurd, but perhaps you disagree.

          2. The default isn’t that life starts at conception. If you want that to be the default, prove it first. This is the biggest (among many) problem of the anti-abortion forces. They want the people having their liberty stolen to prove that they deserve that liberty in the first place. Instead, we are supposed to accept as given something that has never, ever been generally accepted or proved: that life begins at conception.

            If you want to live your life based on that belief, have at it. No one can or should force you to have an abortion. If you want me to live my life based on your personal religious belief, it requires more than you saying, “life begins at conception” over and over.

            Here is a foundational limit of personal liberty: your right to swing your fist ends at my nose. In the context of the First Amendment, it means your right to push your religious beliefs ends at my nose.

            I had (and still have) the opportunity to adopt a coercive type of Christianity if I so desire. I do not so desire. And no one should be able to force me to live under religious tenets I have considered and rejected.

            1. If there was a simple, provable answer, this would be an easy discussion. At SOME point between conception and birth, a new person is created. That is literally the entire point of the process. There’s no definitive proof for ANY particular point, just various milestones we can identify like heartbeat, brain activity, “quickening,” viability, etc. These have been the basis of restrictions throughout history. If we reach a point where science can absolutely say life begins at X point, then I think all but the uber religious would be fine with saying abortions before that point are fine. But so far, we don’t have that. So people are just arguing which milestone is most significant to them. The people who say birth don’t have any more “proof” than the people who say conception.

              1. I agree with you right up to the end. I can’t imagine anyone would consider a live birth anything less than 100% life.

                1. You are both missing the point. It doesn’t matter what a fetus is. What matters is where it is.

                  Your right to conduct rescue missions stops at the barrier defined by my skin.

      3. “I seem to have missed your analysis of when a living human being becomes a person with rights.”

        Since 1868 this has been settled, American law. You are a person with rights when you are born on US soil.

        1. Born? You monster! You just said you think abortion the day before the delivery date is awesome! Why do you love abortion?

          The sad part is that that should be funny because it is so ridiculous, but instead it is frightening because it is the sort of hyperbole used by abortion opponents.

    2. Why an exception for incest? For rape the sexual was not consensual, but incest is consensual? I am of course talking about incest between adults.

      1. Good question. Expect that most child abuse is often not treated as rape.

        1. Most child abuse is not treated like rape because most child abuse is not like rape.

      2. I was thinking about that but I would characterize it as all incest in which a person seeks an abortion must include a rape charge. I guess it’s like people making Al Qaida out to be awful when the very fact they attacked us makes them our enemies regardless of how awful they…so if Mother Teresa attacked us on 9/11 we would kill her regardless of how good she was.

      3. Seems like pro lifers are trying to work with pro-abortion folks on the issue.

        1. What pro-abortion folks?

      4. An exception for rape punishes the fetus for its father’s crime. Since when is that moral?

        1. From a sociobiology standpoint it makes sense: It discourages rape by denying the rapist the reproductive opportunities they’re seeking.

          1. I don’t think that’s what’s been discouraging rape, Brett.

        2. So we punish the rape victim with 9 months of pregnancy instead?

          This is unfortunately one of those cases where we have to consider what is the lesser evil?

          1. Yeah, murder for one innocent, or 9 months of inconvenience for another. If only they weren’t so obviously equivalent…

            1. If only your argument was legitimate in either the raw medical sense or morality.

            2. Pregnancy carries significant medical risks, it’s more than just an inconvenience and a rape victim has already been traumatized.

              1. Brett cannot get pregnant. He only advocates for other people to lose the right to control their own body. 9 months isn’t too inconvenient for a woman, but 5 seconds for a mandated vaccine – no way, that’s fascism!

                1. Look, my position is that, if you’ve been raped, you know it. Short of somebody being held prisoner, rape victims are in a position to use something like plan B, there’s no reason they should ever be needing an abortion after the fetal heartbeat is detectable.

                  So, why should this law include an exception for rape?

                  1. Is this serious? Because you wouldn’t immediately know you were pregnant…

                    1. Are clingers genuinely going to revive the ‘legitimate rape’ argument?

                  2. “my position is that, if you’ve been raped, you know it.”

                    So, in your part of Virginia there’s no such thing as a roofie?

                    1. Not if Brett would rape you in his preferred position!

            3. “inconvenience”

              LOL

            4. Some intentional killings are justified (e.g., plug pulling, death penalty, regulatory action with known death risks, war). This would hardly be the first.

          2. Definitely. Even in religious circles, the rape exception is considered the least of a choice of evils by a strong majority.

            1. Christians support killing babies in war as long as the war is just and we take precautions to minimize civilian casualties…but many still supported Trump who ran on easing the rules of engagement in the Global War on Terror and in one of his first acts as CiC was to kill a little American girl in a drone strike.

              1. SC,
                Please!
                The drone disease started by Dick Cheney was raised to massive proportion by Barak Obama even to the extent of extra judicial killing of US citizens.
                If you want to discuss “collateral damage” be honest about it.

                1. Apparently Obama ordered the samurai sword missile to be developed specifically to reduce civilian casualties…and this last strike in Afghanistan still killed multiple children.

                  1. Well, designing a missile to reduce civilian casualties is kind of beside the point when you’re launching it at locations that have civilians based on the location of a cell phone you don’t even know is being carried by the target. That was the actual problem, not the nature of the missile.

                    1. The actual problem was that the targeted vehicle was full of explosives, which (shockingly enough) exploded when hit by the drone.

                    2. Maybe on one occasion. Certainly not that time they launched a Hellfire missile into a wedding party because somebody had borrowed the phone they used for targeting.

                      This whole practice of launching missiles at merely inferred targets, outside of war zones, was illegitimate. The specific nature of the munitions delivered was beside the point, it represented a totally casual attitude towards killing innocents.

          3. Battery victims are punished with pain. Robbery victims are punished with a lack of their possessions. An Auto Theft victim…. All victims are, by definition punished.

            1. And if you find your stolen car parked on the street outside the thief’s house, take it back. Self-help for the win.

    3. SC,
      “AND how to treat reckless couples like the Santorums that have unprotected sex ”
      These throwaway insults destroy any credibility that you may have.
      Then you repeat your false charge about the 2000 election. What is the point?

      1. I am not “insulting” the Santorums I am stating very easily verifiable facts about the Santorums.

        The pro-lifer must be consistent—either embryos are important or they are not. Our society doesn’t treat embryos like we treat newborns and it’s not even close!

        1. SC,
          Of course you are

          1. That is your characterization…apparently you don’t approve of Rick sticking his unprotected dirty d in Karen’s old p.

            1. I don’t care what Rick and Karen do. It’s not my business.
              Why do you care?

              1. Because their kink is killing embryos and endangering babies.

                1. Oh, nonsense.
                  C’mon, You don’t give a shit. Nor does anyone else.
                  Besides you actually don’t know whether any other pregnancy prevention measures have been taken. Or are you in a menage a trois with the Snatorums?

                  1. They are hard core Catholics…they are very open about raw doggin’ it.

    4. The purpose of stealing the 2000 election was to go to war in Iraq? Which was itself premised on events that took place nearly a year after the 2000 election? ACB and Kavanaugh must have been incredibly clairvoyant! Yet not clairvoyant enough to foresee the deranged leftist attacks on their nominations. Strange

      1. ACB and Kavanaugh stood by Bush after he started slaughtering brown babies.

        1. Sc,
          Arabs are not people of color. Neither are Persians. Get rid of your racist falsehoods.

      2. “The purpose of stealing the 2000 election was to go to war in Iraq? Which was itself premised on events that took place nearly a year after the 2000 election?”

        the premise for invading Iraq was that we hadn’t finished them off after kicking them out of Kuwait, an even that took place years before the 2000 election. Unless you’re conceding the alternative theory that the reason we attacked Iraq was because we couldn’t find bin Laden, but knew right where to find Saddam. the “we have to go find Saddam’s nukes” story unraveled decades ago.

        1. As usual I have a slightly different take. First off, Colin Powell has started talking about that period and invading Iraq was a non sequitur instigated by Bush…so Powell literally thought Bush was joking when he brought up Saddam because nobody thought Saddam had anything to do with 9/11. Now obviously we had invaded Iraq in 1991 and we had been enforcing the no fly zone so it wasn’t a total non sequitur to escalate military force but with respect to 9/11 it was a non sequitur. So Bush and his top advisers get 100% credit/blame for Iraq.

          So why did invading Iraq make sense?? Saddam was obviously a threat to regional stability (although he was weak and contained) and that region is very important to the global economy because of OIL!! So the Bush family and George W Bush motivating ideology is GLOBALISM and expanding the global middle class (a worthy goal) and guess what the global economy needs to expand?? OIL!! So we invaded Iraq to liberate Iraq’s oil because Saddam was squandering Iraq’s oil wealth and the global economy needed it to expand including America which is an energy intensive consumer spending economy that needs cheapish energy to properly function.

          So the reason the American economy was dysfunctional from 2001-2009 was because we were in an energy crisis with no good solution…so all of the issues people talk about like the Housing Bubble and Financial Meltdown were actually symptoms of an underlying energy crisis. And why did the American recovery center on Texas?? Because fracking pulled us out of the Great Recession and solved our energy issues.

          1. “so Powell literally thought Bush was joking when he brought up Saddam because nobody thought Saddam had anything to do with 9/11.”

            As I said at the time, my alarm clock has nothing to do with frying an egg, but one still follows the other. 9/11 was a wakeup call, which was followed by taking care of all sorts neglected business.

            Now, one can argue whether taking down Saddam was properly part of that business, (I’d personally say, “no”.) but “Saddam didn’t commit 9/11!” is a pretty weak argument.

            1. Taking out Saddam is one thing…nation building is an entirely different thing. Furthermore Saddam was weak and contained so it wasn’t like we were ignoring the problem. The problem is the world needed Iraq’s oil at that time and everyone knew the price of oil would go up and Saddam’s power was directly related to the price of oil. But once I tell you the oil producing region is Shia while Baghdad is Sunni then using force to take out Saddam becomes a very bad option.

    5. Actually read the text of Casey before you believe and assert that every jot and tittle of Roe is sacrosanct.

    6. “Roe will obviously be overturned”

      Republicans have been promising this since Reagan.

  2. Because someone told Americans once that the government was “by the people” and thereafter Americans couldn’t be persuaded that government should instead be by a politburo of justices declaring that the justices’ preferred policy is hidden in the Constitution.

    Shut up and do what we tell you isn’t as good an argument as leftists seem to think it is.

    1. “Shut up and do what we tell you isn’t as good an argument as leftists seem to think it is.”

      You’re a leftist now? LIsten, just because I don’t want an abortion doesn’t mean I want to be told I can’t have one.

  3. So anything that inflames unquenchable passion must be wrong, even though a majority support it? Certain Republicans have tried to apply that to the last presidential election. I guess Yeats was only a century too soon.

    1. A majority do NOT support unfettered abortion through 24 weeks. Any decent poll would have told you that.

      1. Your theory is that a majority support the notion that the government should be telling you whether or not to have a child?

        1. That’s what all the polls say, if you don’t insist on using a stupid formulation. Once you’re pregnant, and get beyond the first few months, a pretty solid majority are willing to legally demand you finish the pregnancy and deliver a live child, absent a really good excuse.

          1. These polls you are imagining. I don’t think they reflect the reality you currently inhabit.

          2. I Callahan says there’s no majority for unfettered abortion through 24 weeks. Well, given that covers almost all abortions, I guess that’s a lucky thing. Per the CDC, 91 percent of all abortions are performed in the first trimester and 98.7 percent of abortions are performed during the first 20 weeks.

            Brett always looks to keep his anti-abortion cred polished by focusing on late-term procedures, but ignores the fact that the 1.3% of abortions he rails over usually have the “really good excuse” he allows.

            Look, we get it : Focusing on a tiny little percent of abortions makes sense when the whole damn country is against you by solid & consistent margins otherwise. That’s a perfectly understandable bit of weaseling – but what good will it do you when the American Taliban finally gets their way?

            https://www.motherjones.com/kevin-drum/2019/04/raw-data-abortions-by-week-of-pregnancy/

  4. S.B.8 is best thought of as a hack, like hacking a computer. The Constitution is designed to stop the Government from taking the rights of the people. Texas has devised a Distributed Denial of Rights (DDoR) exploit to break the security of the constitutional system. Forget about abortion for the moment. If this can be done to destroy the constitutional right to get an abortion, what other constitutional rights could also be removed by the same hack?

    What if a Democratic state legislature created “spreading conspiracy theories” or “inciting racial or religious hatred” as causes of civil action by anyone who heard them? Not only would this directly infringe the First Amendment, it would also create a massive chilling effect on any speaker wishing to say anything about race or religion, fearing the cost of merely defending the possible flood of lawsuits that might follow. But if S.B.8 stands, so would that. The DDoR mechanism is just a hack: it doesn’t care who wields it.

    So much for the First, what about the Second? The PLCAA protects gun makers and dealers, but nobody else. What if carrying a firearm meant that you could be sued by everyone? Fancy bearing arms in public now? The Second Amendment could become a dead letter very quickly.

    When a computer system is hacked you don’t stop to ask if the people currently exploiting it are doing things you agree with, you concentrate on blocking the hole as fast as possible. Then in slower time you patch the source code to fix the root of the bug. Lawyers and judges are the constitutional equivalent of the system operators who are the first responders to a security breach. It is their job to figure out how to do this. And yes, this might mean getting creative with legal and constitutional principles. But the alternative is to watch Constitutional freedoms being shredded. Texas has already been plenty creative. More creativity may be the only solution, at least in the short term.

    1. Lawyers aren’t going to like the lawsuit-abuse reforms that you’re implying here. Businesses and everyone else who worries about legal expenses are going to be very happy with them though.

      1. Who do you think Lawyers work for but their clients who are the “Businesses and everyone else” that you describe? Go jack off with David Behar.

        1. “Who do you think Lawyers work for…”

          That’s just it. If people have a right to engage in life free of lawsuits, as implied by the SB8 commentary, then more lawyers are going to work for no one.

          1. That wasn’t the case two weeks ago so I can only assume you must have some sort of mental deficiency.

            1. There weren’t people arguing that people effectively have a constitutional right not to be sued two weeks ago. Now there are.

              1. That’s not what anyone is arguing, dumbass

                  1. Point to someone making that argument…

              2. “There weren’t people arguing that people effectively have a constitutional right not to be sued two weeks ago. Now there are.”

                You need to talk to more people. Sitting alone interacting with the Internet isn’t working out for you.

    2. Hate to break it to you, but liberals already did this over 4-5 years ago with the invention of “red flag” gun laws that permit law enforcement to seize firearms with as little as probable cause. All it takes to lose all your gun rights is an aggrieved party telling the local police that you own guns and they “think” you might use them on someone because of (insert irrational reasoning). Cops go to the local DA, get a midnight order, and then knock at your door taking all your guns. Or in some cases, private citizens can just do all that fun stuff without the cops, then get the cops (who are more than happy to execute the court order) to to the dirty work.

      Sure some of these laws give you “rights” like a hearing and eventually someone having to prove beyond a slightly higher evidence bar that your guns are a danger to yourself or others. But, in the meantime, you have been subjected to the process which is the punishment. And if you can get your guns back (good luck with that) no one is going to reimburse you the legal fees. I remember in one jurisdiction a guy spent six months finally getting his guns back only to find out the local police department destroyed them (because “guns are bad” or something) and the local courts just said “oh well….”

      America is done. It was a fun time while we had it though.

      1. All of which is trivial compared to being sued into perpetual bankruptcy by potentially everyone in the world.

      2. ” America is done. It was a fun time while we had it though. ”

        For racist, gay-bashing, misogynistic, xenophobic, Muslim-hating, superstitious goobers, sure . . . their America is gone. They still have the Volokh Conspiracy, Fox, RedState, Free Republic, Stormfront, and Newmax to cling to, but the America they preferred has been replaced. They will strive to carve out a few special privileges for vestigial superstition and bigotry in modern America, and they will lord over an increasingly small number of can’t-keep-up backwaters for a while, and they get to amuse themselves with ankle-biting (aimed at the mainstream) at White, male, blogs, but the conservatives have lost the culture war.

      3. “All it takes to lose all your gun rights is an aggrieved party telling the local police that you own guns and they “think” you might use them on someone because of (insert irrational reasoning). Cops go to the local DA, get a midnight order, and then knock at your door taking all your guns.”

        Dimwit, even in this sequence, you wouldn’t have lost all your rights. Starting with something called “due process of law”. You go to the courthouse, demand your hearing, and poof! you get your weapons back (assuming you weren’t stupid enough to tell people what you plan to do with them once you get ’em back. They don’t even take peoples’ cars away after their 8th or 9th DUI conviction.

    3. “Forget about abortion for the moment.”

      No, I don’t think so.

      “If this can be done to destroy the constitutional right to get an abortion, what other constitutional rights could also be removed by the same hack?”

      You want to forget about abortion, but at the same time assert there’s a constitutional right to get an abortion?

      “And yes, this might mean getting creative with legal and constitutional principles.”

      You can’t make an embryo omelette without killing a few fetuses. But don’t mention abortion, even though there’s a constitutional right to abortion.

      “What if a Democratic state legislature created “spreading conspiracy theories” or “inciting racial or religious hatred” as causes of civil action by anyone who heard them?”

      Set up a test case, get the clearly-unconstitutional law struck down? What am I missing?

      Are you simply invoking hypotheticals, or are you saying Democrats would indeed pass such a law if they could?

      If that’s their constitutional vision, then the longer they hold the Presidency and Senate, the more likely they will be to impose that constitutional vision on the country via Supreme Court appointments.

      So, in short, the remedy against bad Democratic laws is to vote against Democrats.

      1. Most of America believes the antidote to bad laws is to vote against Republicans. Check the most recent 10 or so national elections. Check the voting percentages in the most recent 10 or so House elections, or Senate elections. Check the trends — not only in voting, but also with respect to demographics.

        If you focus on the modern, productive, educated, marketably skilled states, the preference for Democrats is even more pronounced.

        1. To be fair, I’d rather vote against a Dem than for a Rep.

          And I think we both know the Dems don’t get all their support from astrophysicists and engineers.

          1. “To be fair, I’d rather vote against a Dem than for a Rep.”

            Don’t know if you know this, but you can do both. At the same time…
            I knew you were a Greens Party man!

        2. “Most of America believes the antidote to bad laws is to vote against Republicans.”

          Which is why Republicans don’t like it when people who aren’t Republicans are allowed, even encouraged, to vote.

      2. “‘Forget about abortion for the moment.’

        No, I don’t think so.”

        Are you currently pregnant? Currently being held in utero? If not then abortion isn’t an issue that concerns you.

        1. Are you Jewish?

          You see where I’m going with this, I presume.

        2. “Are you currently pregnant? Currently being held in utero? If not then abortion isn’t an issue that concerns you.” Are you currently … Such a fatuous response. Asinine, really. Were you dropped on your head often, as a child?

    4. Roe itself was the hack, malware installed into the law by a handful of black hat hackers with administrative privileges.

      SB-8 is more like trying a random exploit to reboot the computer, so that the antiviral software gets another crack at defeating the malware.

      1. It’ll be quite interesting to see your argument when liberals use this same bullshit to start gutting the rights you actually care about.

        1. They’ve already done it.

          1. But only to conspiracy theorists.

        2. Unfortunately, conservatives are unlikely to ever see liberals use the same techniques against rights they care about, because liberals are simply not fascists. They are not constantly looking for new ways to cement power and restrict the rights of those who disagree with them. Besides which, they can barely maintain coherence as a political party in the first place.

          1. “Besides which, they can barely maintain coherence as a political party in the first place.”

            The other guys have a coherence based on “whatever they’re for, we’re against”.

          2. Ah, yes, the old “too nice for our own good” argument.

      2. “Roe itself was the hack, malware installed into the law by a handful of black hat hackers with administrative privileges.”

        You got the terms right, but obviously misunderstood how they are used.

    5. “S.B.8 is best thought of as a hack, like hacking a computer.”

      I strongly suspect that you don’t know jack about hacking a computer.

      1. Well I do and he’s rigth

        1. I don’t believe that you do either, then.

  5. I doubt S.B. 8 will have any impact on Roe/Casey. But, the Court’s refusal to fully brief whether the pre-enforcement precedents need a fresh look in the face of an obviously unconstitutional law is a strong hint that Roe/Casey will be severely weakened.

    Imagine if New York allowed private citizens to sue people who own guns. Do you think the Court would have sat back and allowed such an obviously unconstitutional law to evade pre-enforcement challenges in the shadow docket?

    1. There is still plenty of room for SB* to be challenged in the Texas courts. Let it play out there.

      1. True dat. But, SCOTUS’s actions is nonetheless a tell.

        1. Maybe yes and maybe no
          But why does Roe deserve special procedures that other decisions do not?

          1. My premise is the Court would have instituted “special procedures” (at the very least full briefing and argument to reexamine pre-enforcement precedent for an obviously unconstitutional law designed to evade pre-enforcement) for my hypothetical New York law. If my premise is right, then Roe deserves the same “special procedures.”

            1. Not convincing, Josh. It is only your presumption.
              For now there is a TRO in Texas. So let it play out.

            2. That’s an interesting premise, but the history on gun law challenges has actually been that it’s like pulling teeth just to get cert.

              Like, remember when an administrative change interpreting the law starkly contrary to its actual text turned a few million gun owners into felons if they didn’t destroy uncompensated lawfully purchased bump stocks?

              Refused cert without explanation.

              So, you want the same treatment? Great!

          2. “But why does Roe deserve special procedures that other decisions do not?”

            A) who says it does?
            B) one thing that IS different is that glacial pace may work for some legal rulings but not for this kind. If a woman wants an abortion, it kind of has to come before the 9th month of pregnancy.

    2. “Imagine if New York allowed private citizens to sue people who own guns.”

      Imagine if New York imposed such severe restrictions on gun ownership as to practically eviscerate the Second Amendment. Or are we confining ourselves to purely hypothetical scenarios?

      1. Funny. I grew up in NYS, and I owned a gun. So did my brother. And most of the neighbors. As far as I know, legal as apple pie.

        Oh, you meant concealable handguns, not guns in general?

        1. Someone should do a Youtube video, “walking down the streets of New York City open-carrying a legal gun.”

          Shortest video in the history of Youtube. It could well end tragically.

          1. “Someone should do a Youtube video, ‘walking down the streets of New York City open-carrying a legal gun.’

            Shortest video in the history of Youtube.”

            Say, don’t the law-enforcement types in NYC all openly carry handguns?

            1. A devastating rebuttal!

              1. … is what you meant to write down, right?

                1. thunderous acclaim.

  6. If Prof. Blackman really believes this statement from his Newsweek column

    “And when the government plays no role at all in enforcing a statute—as with S.B. 8—courts cannot “block” that law from going into effect.”

    And if that statement is true, then it is the scariest sentence that has ever been written about the state and future of American democracy. Essentially, if a state government, or even the federal government can really enact a blatantly unconstitutional law which has civilian enforcement povisions and if there is nothing, absolutly nothing that can be done to suspend that law from going into effect then the legal protections we have had in place for over 200 years are nothing but dust, blowing in the win.

    Of course, that is not the case, it is merely a figment of conservative imagination in allowing a law ending abortion rights to become active. But then conservatives have never allowed logic, constitutionality or decency, to stand in their way of control of women and government control of a woman’s body.

    1. You do know that there is an innocent human life also involved in that transaction which you conveniently try to bill as just “control of a woman’s body” don’t you?

      1. “You do know that there is an innocent human life also involved in that transaction”

        there is also on potentially “innocent human life” involved, sometimes more than one at a time. Coincidentally, the same math applies to nearly all gun crimes, as well.

      2. No, there isn’t. No matter how much you say it, it doesn’t become any less false.

        1. If it is not human life what is it? Goldfish life? chimp life?
          Just because you don’t want to admit it to yourself does not make that life non-human.

          1. The problem is when Jimmy says “innocent human life,” he means “person.” That is, the fetus should be treated the same as a newborn, or you, or me. By invoking science as to what a human life is, and then conflating “human life” with “person”, the argument becomes disingenuous.

            1. Yes, I know that. And I was careful to say human life not any other word that connotes personhood.

              1. I’m a little confused now. Are you saying that personhood isn’t required for individual rights? Or that a bundle of undifferentiated cells that may or may not result in a human should, due to that potential, be given rights as if it is a living, breathing individual?

                1. “Are you saying that personhood isn’t required for individual rights?”

                  Depends on which rights you are talking about.

            2. Absolutely. It isn’t their most disingenuous, misleading, or untrue assertion, but it’s probably the most subtle.

    2. “the scariest sentence that has ever been written about the state and future of American democracy”

      There are other candidates, such as (to limit ourselves to the courts) Dred Scott, Buck v. Bell, and Roe v. Wade.

      “a blatantly unconstitutional law”

      Why is it unconstitutional? Because the Supreme Court said it was? What if the Supreme Court says it’s constitutional?

      “the legal protections we have had in place for over 200 years are nothing but dust”

      The legal protections you’re invoking are in Ex Parte Young

      https://www.law.cornell.edu/supremecourt/text/209/123

      which was an end run around the 11th Amendment. As it happens I disagree with the 11th Amendment, and I think someone threatened by a state law he thinks is unconstitutional should be able to get an injunction straight from the Supreme Court itself. (If the Court is overwhelmed with petitions they can appoint special masters to make factfinding and recommendations). A constitutional amendment would be needed, but it would meet the needs of the situation.

      Meanwhile, if Ex Parte Young doesn’t allow challenges to the Texas statute, and you can’t sue Texas for the law, blame the 11th Amendment. We’ve had it on the books for a while. Maybe the Ex Parte Young formula made the amendment more tolerable, but if it’s finally being enforced and you don’t like it. change the 11th Amendment.

      1. “Why is it unconstitutional? Because the Supreme Court said it was?”

        Yes, that is why it is unconstitutional. A law that directly contradicts current Supreme Court jurisprudence is unconstitutional, for better or worse. You may believe Roe and Casey were wrongly decided, but that doesn’t change the fact.

        1. And if it’s overturned, then “current” jurisprudence changes. Does it not?

          1. Yes. Although I’m not a ConLaw lawyer or professor, so if that isn’t the way it works I would love an explanation from someone who knows.

          2. “And if it’s overturned, then “current” jurisprudence changes. Does it not?”

            Yes, if. Has it been overturned, and they just didn’t tell anybody, like Korematsu?

        2. How many legs does a dog have if you call a tail a leg?

          Four.

          1. “How many legs does a dog have if you call a tail a leg?”

            Most have 4. I know someone with a dog with 3.

            How many chickens do you have, if you count all the eggs as chickens?

        3. This is what’s known as “legal positivism”. It’s worth remembering that not everybody is a legal positivist.

          1. Hmm, is that what you tell the judge when you get a speeding ticket?

            1. If I ever get one of those, I’ll be a total suck up, because that would be the prudent thing to do. But that doesn’t mean that if the judge up and tickets me for exceeding the speed of light in a residential area, I have to actually think he’s right.

              The alternative to legal positivism isn’t telling the judge he’s wrong to his face, when he can throw you in jail for contempt of court. It’s remembering that he’s capable of being wrong, his decisions don’t define “right”.

      2. “What if the Supreme Court says it’s constitutional?”

        If they do, then they did. At present they did not.

        The problem here is that you have some folks who want what they want RIGHT NOW and aren’t prepared to wait any more for something their political leaders promised them 4 or 5 decades ago.

        Traditionally, the way to overcome a Supreme Court decision that you don[t like is to get an amendment passed to overturn it. that’s how you get the 14th and 16th amendments, as examples. they exist specifically to overturn USSC rulings. But in the 70’s, Conservatives didn’t think they could get such an amendment to pass, so they decided what we needed was new justices to decide the issue. The other alternative, (hey, maybe we try to convince the people who get to decide whether or not an abortion should happen that they don’t want an abortion to happen) apparently a non-starter.

        There are actually very few people in the world who are pro-abortion.

        1. And Jefferson Davis wasn’t pro-slavery, either. He wound’t *force* anyone to own a slave.

          1. The government he led got a lot of people killed so that people could still own slaves.
            Ironically, if they hadn’t seceded, they’d have been able to keep the 13th amendment from being ratified, and the 14th and 15th as well.

          2. Hey, look at that. We are two people who don’t think they should get abortions. But only one of us thinks the government should decide who can have one.

          3. Should the government decide who owns slaves?

    3. Sidney,
      Right now Garland and company still have not figured out a way to upend SB8.
      The best chance is in the Texas courts

      1. Once you’ve got somebody suing, you’ve got an identifiable plaintiff for a counter-suit. If they win their suit against you, the state becomes involved the moment they try to enforce the judgement.

        So the law is perfectly subject to being reviewed, just not preemptively.

        1. And how many years and how much money does that take?

          As for the law being unconstitutional, well Drinkwater has my response exactly.

          1. I’d be a lot more upset about this, were it not for the lawsuits against firearms manufacturers, implicating a real constitutional right, that we needed a federal law to put a stop to.

            The left doesn’t object to this sort of abuse of private lawsuits. They just object to the shoe being on the other foot.

            1. This would be a parallel, if anyone on the left (or anyone else, really) was advocating the people who don’t want abortions should get one anyway.

              1. That’s incoherent, nobody on the right is demanding people who don’t want guns buy them anyway.

            2. “I’d be a lot more upset about this, were it not for the lawsuits against firearms manufacturers, implicating a real constitutional right, that we needed a federal law to put a stop to.”

              Brilliant! All we have to do is convince people that banning abortions means taking away firearms from people, and support for banning abortions will evaporate.

          2. Why would it take any more money or any more time (once the first suit is filed) than challenging the law preemptively?

            1. The law has been challenged preemptively. That is what the Supreme Court ruling is all about. Little time and not a lot of money. But maybe these people advocating going the trial route have never spent tens of thousands of dollars and multiple years pursuing a case.

              As for challenging the law once the a case has been brought, well if it is about an abortion then the case becomes moot before the response is even filed and heard and discovery takes place.

              In terms of the comment about suing gun manufacturers, not even close to relevant. Those cases are not about the right to have a gun, they are about gun manufacturers being held responsible for the violence and death their product produces and their lack of any effort to control misuse of their product.

              As for the comment that ‘there are very few people in the world who are pro abortion’ that is probably true but an exaggeration. But the relevant point is that there is a huge number of people who are pro abortion rights, even those whose religion rails against abortion rights.

              Finally, and this should end the abortion rights debate once and for all, the people who are against abortion rights are, for the most part, against contraception and family planning. If you are stridently against abortion rights and consider abortion a terrible thing and are not actively working for sex education, contraception and family planning then you are just another hypocrit and do no deserve an audience for your views. Planned Parenthood has probably prevented more abortions in the last decade then the opponents of abortion rights and their political allies have prevented in the last 50 years.

          3. As many as it takes. Just like almost everything else

  7. And when the government plays no role at all in enforcing a statute—as with S.B. 8—courts cannot “block” that law from going into effect.

    I suggest that gets it backward. I think when government plays no role at all in enforcing a statute, then that becomes the basis for overturning the law.

    Article IV of the U.S. Constitution guarantees a “Republican Form of Government” for all the states. In a republican-style government in America, law enforcement is an executive power.

    If instead, the legislature creates a system of private enforcement, by self-selected citizen enforcers, who lack even the standing which would qualify them as civil plaintiffs, that is a system of law enforcement with zero political accountability. Legislators are not enforcers, and the executive is barred from enforcing. Such a system can be no part of a republican system of government.

    State courts should take no cognizance of it. And the U.S. Supreme Court should overturn the law facially, as a violation of Article IV of the U.S. Constitution.

    1. The self-selected citizen enforcers are civil plaintiffs.

      1. Explain how that makes them politically accountable.

        1. Is a personal injury lawyer accountable or a person suing under civil RICO?

          1. RICO statutes aren’t unconstitutional so I don’t think you are engaging with his point

            1. His point, so far as I can follow it, is that the enforcement mechanism is unconstitutional, not the substance of what’s actually being enforced.

    2. What’s your authority that the “Republican form of government” has to have a tripartite separation of powers? A Westminster-style system, for instance, seems perfectly Republican to me.

    3. “Article IV of the U.S. Constitution guarantees a “Republican Form of Government” for all the states….the U.S. Supreme Court should overturn the law facially, as a violation of Article IV of the U.S. Constitution.”

      It would be kind of funny for the federal government, while allowing private enforcement of the laws against defrauding the U. S., to claim that the states can’t allow private enforcement of state laws.

      1. It wouldn’t be unprecedented; Remember, the Supreme court has already ruled it unconstitutional for states to simply replicate the federal government’s legislative structure.

      2. “It would be kind of funny for the federal government, while allowing private enforcement of the laws against defrauding the U. S., to claim that the states can’t allow private enforcement of state laws.”

        It would be more believable, if the law put the private enforcers on equal footing with the private defenders. Go ahead and go to court, but you’d better be sure you’re right.

        The parallel would be allowing private enforcement (but not public) of land-use laws.

        1. “It would be more believable, if the law put the private enforcers on equal footing with the private defenders. Go ahead and go to court, but you’d better be sure you’re right.”

          Don’t limit this to one particular law.

          Things would be more believable if the accuser was always on an equal footing with the accused. We know that’s not the case with the system Texas abandoned – prosecutors with immunity, no compensation to acquitted persons.

          And no loser-pays.

          So that’s not really a significant difference between the old law and the new. The difference is they’ve found a way to get enforcements out of the lower federal courts and into the state courts, preserving the option of U. S. Supreme Court review.

          1. “Things would be more believable if the accuser was always on an equal footing with the accused. We know that’s not the case with the system Texas abandoned – prosecutors with immunity, no compensation to acquitted persons.”

            That’s not the system Texas is abandoning. You can still file a lawsuit against anyone who violates your civil rights under color of law. Texas hasn’t the power to dispense with that.

    4. Do you take the position that federal Qui Tam actions are unconstitutional? Discrimination test cases where the testers doen’t actually intend to take the job or whatever? Environmental laws that permit environmental groups to sue polluters?

      There are a great many federal statutes that gave something close to citizen enforcement.

      Also, the Texas Supreme Court has interpreted the Texas cknstitution as imposing a standing requirement analogous to the federal one.

      1. I do think that some aspects of the law, like the fact that only one side can get attorneys fees and not the other, are problematic from an ordinary Due Process point of view separate from what one thinks about the constitutionality of abortion laws.

        However, I think that at a minimum, anyone who might have standing in a custody case – any reasonably close relative, for example – would have standing in a case like this. So if Roe gets overturned and a state can ban abortion, then this law would probably have a substantial set of constitutional application, based on ordinary due process considerations alone, if either party could get costs and fees if prevailing.

  8. Where did the idea come from that there MUST be a mechanism to STOP a law you don’t like from GOING INTO EFFECT? Have members of the anti-life community become so acustomed to the embrace of their opinions by the federal courts that they can’t tolerate due process of law? The Texas law will be challenged as unconstitutional, but only after it is applied. Some pregnant woman will ask some clinic in Texas to abort her unborn child (embryo, if you prefer), the clinic will do so, a Texas citizen will bring a suit under SB8, and the issue will go to court. If a law is passed in some other state authorizing a similar private right of action against gun owners, the process will be the same.

    Of course, there’s the difference that there’s a provision of the Constitution that protects the right to keep and bear arms, whereas the Constitutional provision protecting the right to abort your child (embryo) is harder to find.

    1. Eric VonSalzen, where the enforcement power is not monopolized by government, and the civil process requires no standing, there can be no due process.

      1. Of course there’s due process, just as much as in any other civil case.

      2. How, then, do you account for the ubiquity of private criminal prosecutions during the founding era?

        1. Don’t stop him, he’s on a roll.

    2. Josh, Eric, Noscitur, Cal, TwelveInch —The challenge I put before you is to explain how there can be a republican form of state government with zero political accountability for law enforcement. Until someone comes up with an answer to that, S.B. 8 will keep looking like a facial violation of Article 4.

      1. When a private party enforces the law, perhaps it suffices for a republican form of government that only those who enact the law (both legislative and executive branches) be held politically accountable.

        That being said, I think there are very good reasons for subjecting the Texas law to a pre-enforcement challenge. Those reasons at the very least justify full briefing and argument rather than a decision from the shadow docket.

        1. When a private party enforces the law, perhaps it suffices for a republican form of government that only those who enact the law (both legislative and executive branches) be held politically accountable.

          Nope. A republican form of government requires that the law enforcers themselves be held political accountable, continuously.

            1. Josh R. Could be. But I insist. And you have not come up with any example to show a republican form of state government without political accountability for law enforcement. I challenged you, and you have not even tried to meet the challenge.

              If you can’t find that kind of constitutive hocus locus anywhere, why would you be insisting it is really a thing?

              So far, it still looks reasonable to me for someone to go to court with a facial challenge to S.B. 8, based on an Article IV violation.

              1. I did come up with (another ipse dixit) example: it suffices for the accountability to be limited to the elected officials who enacted the law. And sure, someone could make your argument, but 1) there is no precedent I know of in support of it (most of the precedents relate to the federal government guaranteeing the states a republican form of government in the face of foreign invasion or internal insurrection), and thus 2) the burden falls on you to explain why your novel interpretation must be accepted. Seems like a long shot to me.

              2. If you can’t find that kind of constitutive hocus locus anywhere, why would you be insisting it is really a thing?

                To my knowledge, no U.S. state has ever instituted a Westminster-style parliamentary government (although some very early state governments looked a lot closer than we’re used to). Does that somehow imply that a parliamentary government isn’t republican in form?

                So far, it still looks reasonable to me for someone to go to court with a facial challenge to S.B. 8, based on an Article IV violation.

                Go to court by suing whom? How would this solve any of the problems that the original Whole Womens Health suit had?

      2. The challenge I put before you is to explain how there can be a republican form of state government with zero political accountability for law enforcement.

        And the challenge for you is to articulate how this is anything but a complete non-sequitur.

        Look, I think this bill is abysmal policy, both substantively and in the enforcement mechanism. But republics sometimes enact terrible policies; that doesn’t mean that they’re not republics any more.

        When you combine that with the significantly more aggressive private enforcement systems that were the norm during the founding era, I just don’t see how there’s a substantial argument that the form of government clause is even implicated, much less violated.

        1. Noscitur, are you aware of any founding era state governments which forbade law enforcement activity by their own governments, for any law? Unless the objective was to overturn the law, I doubt you can find any such examples.

          If you can find them, I would insist they are also Article IV violations. The republican government principle demands political accountability from government, including for law enforcement. S.B. 8 puts that aside. In fact, the point of S.B. 8 is to circumvent that accountability, so that even the courts can’t find anyone to hold accountable. That is why S.B. violates Article IV. The political accountability which a republican form of government demands is not there.

          More generally, this is not about bad policy. Policy decisions are about outcomes, not about constitutive government arrangements.

          1. When the constitution was ratified, every state allowed private persons to institute criminal prosecutions which could lead to corporal punishment, imprisonment or even execution: in many instances, those were indeed the exclusive forms of law enforcement. And I’m going to need to insist on something more than your say-so if you want me to believe that not there was not a single state that had a republican form of government when the constitution was ratified.

      3. Again, are qui tam actions, discrimination laws that allow testers who don’t actually want to take the jobs, buy the houses, etc. to claim they are harmed, environmental laws that allow environmental groups to sue, etc., constitutional?

        What’s sauce for the goose has to be sauce for the gander here.

        Private enforcement has long been used in a number of areas, including qui tam, civil rights, and environmental laws.

        1. ReaderY, do those examples you contemplate also bar law enforcement by state officials? If not, I don’t see how they are comparable to S.B 8.

          On the other hand, if there are such laws, which are comparable, it may be they should also get review on the same principle—that a, “Republican Form of Government,” requires political accountability for law enforcement.

    3. “Where did the idea come from that there MUST be a mechanism to STOP a law you don’t like from GOING INTO EFFECT?”

      Well, this idea goes back to the Declaration of Independence, and the Revolution which followed. The Founders were dissatisfied with tyranny created by a government unresponsive to the needs of the citizenry that they designed and built a government that had divided powers, with different parts of the government contending with others.

      1. OK, James, in the case you describe the “mechanism” for challenging a law was a revolution. I grant you that you could stop SB8 from going into effect by instigating (and winning) a revolution in Texas (or the whole US). One could, through the same mechanism, overturn Roe v. Wade, Casey, and their ilk through a successful revolution. But the entire discussion ignores my point: Why MUST there by a legal process to prevent a law that you don’t like from GOING INTO EFFECT, as distinct from a process for a person to whom the law is applied to challenge it? It seems to me that the latter approach is the way it’s usually been done.

        1. Why MUST there by a legal process to prevent a law that you don’t like from GOING INTO EFFECT, as distinct from a process for a person to whom the law is applied to challenge it?

          Eric, S.B. 8 examples an answer to your question. While the law is in effect, the law’s mere existence nullifies an alleged constitutional right—blocks it from vindication in nearly any conceivable case. The person-by-person remedy you hypothesize is not even imaginably a solution or remedy capable of restoring the right to notable effect. Enactment of the law has chilled the right out of existence, as it was meant to do.

          1. “While the law is in effect, the law’s mere existence nullifies an alleged constitutional right—blocks it from vindication in nearly any conceivable case.”

            Kicks in at about 6 weeks. Doesn’t apply to medical emergencies. Even abortion advocates say that at least 15% or so of abortions are permitted under this law. It’s not really helping your case to exaggerate.

          2. Steven, I bet you’re wrong. Case-by case litigation is as capable of protecting the right to abortion as it is capable of protecting the right to free speech, the right to bear arms, or most of our other cherished constitutional rights. In the not too distant future (the planning has been going on while this comment thread grows and grows), an abortion provider will openly violate SB8. When someone brings suit under SB8, the abortionist will defend on the ground that the law is unconstitutional (and the defense will be well-funded by the supporters of abortion). Perhaps the abortionist will ask a federal court to block the suit as violating the constitutional right to abortion, and perhaps the federal court will hold that SB8 violates the US Constitution. Whether in state court or in federal court, the suit will proceed to judgment and appeals. Ultimately, it will end up before SCOTUS. Assuming the Court hasn’t had second thoughts about the right to abortion, it will hold that SB8 is invalid. After that, other anti-abortion suits under SB8 should be promptly dismissed by the trial courts, and the plaintiffs could be sanctioned.
            Bet you a peppercorn that’s about how it will play out.

            1. Eric VonSalzen, you do not seem to be engaging with my objection. How does the process you describe impose political accountability for law enforcement on Texas officials?

        2. ” James, in the case you describe the “mechanism” for challenging a law was a revolution. I grant you that you could stop SB8 from going into effect by instigating (and winning) a revolution in Texas (or the whole US).”

          Is there a prize of some kind for missing the point? Because I think you should be first in line to claim it. The point you chose to overlook is that AFTER the Revolution, the Founders of our Constitutional government decided that maybe they’d better ensure that it was always possible to petition the government for a redress of grievances, so that it wouldn’t be necessary to have a Revolution to fix problems.

          Hell, at this point, the solution is probably to give Texas back to Mexico. Their Supreme Court just affirmed a right to abortion.

  9. The late Justice Scalia, in an interview, discussed how bad it was to decide important social change issues in courts instead of in the political arena. Perhaps even a constitutional amendment.

    Only by repeal of Roe and passing laws allowing/disallowing abortion can society be ready to move on. Otherwise, look forward to centuries of back and forth fights about abortion.

    1. Scalia was wrong. Under the Constitution, the 14th Amendment requires a ban on abortion.

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

      1. If a fetus is a Fourteenth Amendment person, then isn’t it the case that a woman who has an abortion is a first-degree murderer? Ditto for a stem-cell researcher or IVF clinic employee who destroys an embryo. Moreover, doesn’t the Fourteenth Amendment require they all be treated the same as someone who plans an intentional killing of another person.

        1. Don’t stop him, he’s on a roll.

      2. Sure thing Cal.

        While we’re at it, women who suffer a miscarriage are guilty of negligent homicide, or manslaughter at best.

        That sounds like a great world to live under!

        /s

        1. women who suffer a miscarriage are guilty of negligent homicide, or manslaughter at best

          However silly and overwrought you were trying to be here, it’s not clear why you think something like this should particularly shock the conscience after the last year plus of branding as [attempted] murderers those who choose to breathe freely at the wrong time in the wrong place and thus supposedly experience some theoretical elevated risk of spreading a respiratory virus they probably don’t even have.

      3. The text references what was, back then, called the quickening. That was when movement could be detected in the fetus.

        The article claims that the text instead supports the idea of life beginning at conception, which it clearly does not. Unless you believe that a bundle of cells can move in such a way that is detectable outside of the body, the article from your link was clearly and intentionally dishonest by misrepresenting the original text.

      4. “Under the Constitution, the 14th Amendment requires a ban on abortion.”

        Alternatively, the 14A is entirely silent on the topic of abortion. Point to the word “abortion” in the 14A text.

    2. “Only by repeal of Roe and passing laws allowing/disallowing abortion can society be ready to move on. Otherwise, look forward to centuries of back and forth fights about abortion.”

      If you look at it in the long-term view, fighting things out in the court is just a different way of settling things politically. Seeing as how the winners of the political branches pick the judges.

  10. Consider the situation of someone who is charged with violating a constitutionally-valid state law, even though the person is *factually innocent.*

    There’s no pre-prosecution relief from the federal courts except in the rarest of rare circumstances.

    So an American can face long-term imprisonment at the hands of the state courts, based on perjured witnesses or incompetent police work – imprisonment, not simply a statutory fine.

    And yet we have so many people saying that “whatever you think about abortion,” we must be delicate and sensitive with the abortionists?

    1. “There’s no pre-prosecution relief from the federal courts except in the rarest of rare circumstances.”

      Grand Jury. The prosecutor has to present their case to the Grand Jury pre-prosecution, and in theory the factually innocent escape charges at this point.

      1. Oh, you poor innocent country mouse…confusing ought with is.

        1. Confusing “exists” with “not exists” doesn’t put you in a stronger position to condescend.

  11. A question for the lawyers here: Outside of abortion and maybe a couple of other hot button areas, how open are the federal courts to pre-enforcement challenges?

    1. I’d also be interested in an answer from someone who studies these things for a living. A lawyer, a ConLaw professor, or someone else who actually works in the field.

  12. Casey stated that it retained ” the essence of Roe ” and then proceeded to establish the ” undue burden test. In Whole Women’s and June Medicaid, 4 Justices ( including deceased Justice Ginsberg. TRIED BUT FAILED to have a majority modify Casey to have ” a weighing of benefits against the burden on abortion ” as the legal test. Roberts would not go along with that revision to the test. Dobbs will bring the test/issue back. Casey will be reaffirmed but the emphasis will be on UNDUE burden. The 15 week restriction in Dobbs will be held to not be UNDUE. There is a possibility Bryer could be an additional vote with a search/ standard from international laws and regulations. EU is essentially abortion for almost any reason in first trimester. Very restricted in 2nd. None in 3rd unless life of the mother.

    The facts remain NY, CA, NA and IL account for 85% of all abortion. Even if the authority goes back to the states. 85% of the abortions will continue.

    1. “The facts remain NY, CA, NA and IL account for 85% of all abortion. Even if the authority goes back to the states. 85% of the abortions will continue.”

      Unless enough Conservatives win elections in NY, CA, or IL. In CA, they were able to get an unconstitutional restriction on marriage passed.

  13. Assuming for the nonce that this is a cunning plan designed to make federal judicial intervention in the space palatable to the placard-wielding hoi polloi (yes, ancient Greek sometimes repeats the article for the adjective), I still think that the emergent unspoken consensus that state qui tam provides some sort of a magical shield against federal judicial scrutiny is a very dangerous one. Mainly because, at a perilous time, the law of federalism is going to have to be streched a bit thin to explain (correctly) why it isn’t. Pandemics are one of the peculiarly dangerous times in which to force a republic to explain its powers from first principles.

    Mr. D.

  14. The only way this is ending is with a constitutional amendment one way or the other, and still, the losing side won’t be happy. However, it will make things democratic, and since everyone has their opinions heard and incorporated, the majority will consider the matter decided.

    1. The problem here is that, once the Supreme court ‘changes’ the Constitution via a ruling like Roe, the system designed to make changes hard becomes a system that makes restoring the status quo ante hard. Judicial ‘reinterpretation’ bypasses Article V, and then requires you to use Article V to undo the result.

      So suddenly a minority faction that never had a chance of getting their way by amendment, has had their victory handed to them on a silver platter, and all they need to do to keep it is obstruct an amendment, a much easier task.

      1. You do know that the “minority faction” on this issue is the anti-abortion faction, right?

        1. And that’s why the pro-choice movement needs continual protection by the courts, right? Because they’re the majority, and so control democratic outcomes. SB8 was, after all, passed by a minority of the Texas legislature, somehow.

          1. No, I assume when people are asked whether they think abortion should be banned, that they answer honestly. And since 1995, highest total of “illegal in most or all cases” was 44% and the lowest total for “legal in all or most cases” was 47%. And the total who believe it should be illegal in all cases (the “life begins at conception” position) never broke 15%.

            Your counter is that by measuring political representation, you get better data. But normal people vote on issues other than abortion. In fact, it is only a small percentage (larger for the anti-abortion than pro-choice folks, but both are tiny) that are single-issue voters on the abortion issue. Throw in that Texas is one of the most gerrymandered states in the country and it’s easy to see how Texas passed such a law.

            The issue keeps coming up in the courts because the anti-abortion people keep trying to force their minority opinion down everyone’s throats. While I understand, given their belief that life begins at conception, it doesn’t justify pretending like they are so morally superior that it’s OK to ignore the repeated and continuous rejection of their position.

            Much like the idea that life begins at conception, just because you keep saying something doesn’t make it so.

          2. ” that’s why the pro-choice movement needs continual protection by the courts, right? Because they’re the majority, and so control democratic outcomes.”

            Being a national majority in no way ensures control of every state legislature.
            Some states are majority Republican, and some are minority Republican but have election rules designed to keep non-Republicans from voting. This is why Republicans, despite having fewer than 50% of the voters, control 50% of the Senate, and keep whining about how they totally won the last Presidential election, despite the fact that their guy got fewer than 50% of the votes.

    2. “The only way this is ending is with a constitutional amendment one way or the other”

      Unless the religious folk have unlimited access to medical information about all fertile women, they won’t ever be able to be sure God is the one causing all those miscarriages. He keeps His own counsel on that subject.

    3. Anti-abortion folks will never accept it, period. Pass a Constitutional Amendment and the argument will become that it wasn’t part of the *original* Constitution so it isn’t valid.

      This is because, as misguided as I think they are, anti-abortion folks truly believe that they are purely, clearly, and absolutely right.

      This issue will never end because the anti-abortion position has never, and most likely will never, convinced a majority of people. Mostly because they have never tried to establish their premise, that life begins at conception, as a generally accepted truth. Let alone the idea that a bundle of cells is an individual entitled to individual rights.

      So the anti-abortion side is absolutely convinced of their own righteousness. The pro-choice side is absolutely convinced that they are defending against attacks on religious and personal liberties guaranteed in the Constitution. There is literally (using the word correctly) no middle ground possible.

      Tbis will

      1. Nelson,
        Human life either begins at conception or at implantation. There is no other biological choice. When legal personhood begins is the question that is being argued. When do you think that is? Just stae a number of days, or months or hours. No blah-blah.

        The fact that NY allows killing the child after birth for soe minutes is truly astounding, but it only says that NY has rules that a human must be independently alive for a certain number of minutes before it becomes a person. Tell me what determines that number of minutes?

        1. I won’t even begin to defend a post-birth killing. I don’t see any way that, after the first breath, anyone can argue that life hasn’t begun. When the *possibility* of being a living, breathing human becomes the *reality* of being a living, breathing person, murder is now on the table.

          As I have posted, I believe there is no middle ground possible between people who truly believe that after conception there are two people involved and those who believe that there is only one person, the mother, and her rights should not be infringed on by anyone else.

          However, if there were to be a “reasonable” definition of when life/personhood/individual rights begins, it would be when the fetus has all of the necessary biological structures and processes to survive. So, at a minimum, lungs, a heart, a stomach, a nervous system, a circulatory system, and brain activity.

          That is what I personally believe regarding life/personhood. It’s probably partially informed by my belief that brain death is death, but mostly by asking myself the same question I keep asking anti-abortionists: what positive arguments can you make to support your position?

          I ended up finding people (at least one is a neuroscientist) making the argument that without brain activity, there is no chance a fetus can survive outside the womb. And I found it very compelling. The human body cannot survive on its own without brain activity.

          If you gave me the respect of reading this whole post, thank you. I appreciate you listening, even if you reject my conclusions. All that said, I believe that personhood is defined by brain activity. Without it, life is impossible.

        2. And to close off any “the first sign of brain activity starts at X weeks” nitpicking, I am using “brain activity” to reference the brain activity needed to run and regulate the human body. The range for that is 26 to 30 weeks, making the average 28 weeks.

        3. Finally, since I don’t think there is any way to establish the requisite brain activity in the womb, having legislation (hypothetical, of course, because the truly held beliefs of the anti-abortionists wouldn’t allow for compromise) include an abortion “ban” (with the standard exceptions for rape/incest/mother’s health) at the gestational date when more than 50% of real-world premature births survive. An argument could even be made for the earliest date a preemie has *ever* survived, which I believe is about 20 weeks. But definitely not before that.

          1. Nelson, taking your arguments about brain activity as a whole, I find them pretty convincing. I had not given thought to that aspect previously, so thank you.

            Nevertheless, I suggest the best way to use your insight would not be to draw a hard line at 28 weeks, or even at 26. Those points in pregnancy are too far advanced for political practicality (I know, vain hope).

            Perhaps we could logically adopt your brain activity standard, hypothesize that we don’t know enough about the earliest development of that faculty, and set a date at about 22 weeks. We could say explicitly that it is an effort to err on the safe side. Then let the political process beat that down to something yet smaller, but still far above the nonsensically contested points we get from pro-life advocates.

            As we all know, that would not put the disputes to sleep, but it could be a means to force the disputes into a bit of a political pause. It would have the advantage, if it succeeded, in moving the grounds of dispute toward the first-principle analysis you insist upon.

            1. Law is full of arbitrary lines drawn less because they are placed in the correct place and more because they are easy to measure objectively.
              so, for example, you get age-of-consent laws that state categorically that no person under the age of 16 (or 18, YMMV) is competent to decide they want to have sex, and contract law that says that people under the age of majority are not competent to form contracts, etc.
              These laws exist because while it is, of course, possible that a 15-year-old somewhere might be fully competent to consent to sex, measuring actual competency is difficult, where as measuring age is easy (and considerably less intrusive) than measuring competency for consent.
              Personhood (and birthright citizenship) begin at birth because birth is easy to detect (do you have another person wrapped completely around you?)

        4. “Human life either begins at conception or at implantation. There is no other biological choice.”

          Hmmm. Biological life begins when something that is not alive becomes alive. Conception and implantation both involve something that is alive joining with something else that is alive. So it seems you need to work on your understanding of what “begins” means.

        5. “NY has rules that a human must be independently alive for a certain number of minutes before it becomes a person. Tell me what determines that number of minutes?”

          Never mind NY (unless, of course, your are bound by NY law by virtue of falling under NY jurisdiction)
          The dividing line is neither implantation nor conception, it is viability. Viability is the point at which the fetus stops being dependent on specifically the mother to remain alive. At birth, an infant can be cared for by anyone willing to do so. Earlier than that, when you start talking about preemie birth, it takes a substantial investment in time, effort, money and skill to keep that infant alive. However, for every human life, there is a point at which no amount of time, effort, money and skill is sufficient to keep that person alive. That is the point of viability. Before that time, the natural state of a fetus in isolation is “dead or dying” and there is no point in talking about the “right to life” of a dead person. After that point, it still may be true that withdrawing support will kill the infant, but there’s a difference between not supporting the infant and keeping other people from supporting the infant.
          For an infant, a reasonable alternative course is “OK, you don’t want to feed, clothe and house this infant. Fine, leave him at the fire station and they’ll find someone who wants to do it.” This is a reasonable alternative up to the point where the “infant” is capable of functioning as an adult, and providing for its own needs. Adoption is a well-understood concept with a long history, and religiously supported as well. (There’s a reason orphanages used to be run by churches.) Now, applying this principle back from infant to fetus, you reach a dividing line, where it’s possible for someone else to take over for the mother, and on the other side of the line, it’s not possible for soemone else to take over for the mother. On that far side of the line, where the fetus cannot survive even with assistance from others, abortion isn’t killing the fetus, the inability of the fetus to survive is killing the fetus. The same is also true of miscarriage or stillbirth.

      2. “So the anti-abortion side is absolutely convinced of their own righteousness. The pro-choice side is absolutely convinced that they are defending against attacks on religious and personal liberties guaranteed in the Constitution. There is literally (using the word correctly) no middle ground possible.”

        That fundamental problem is that neither side is actually arguing with the other side. You can tell by the fact that each side has staked out a name for their faction, with literally nobody claiming to be the opposite. One side is “pro-life” and there just isn’t anyone claiming to be “anti-life”, and the other side is “pro-choice” and nobody comes out claiming to be “anti-choice” (although they do actually take positions that are against free choice, because in their view nobody would choose other than what they would choose.)
        As a religious issue, a big problem is how tightly wound the anti-sex faction is in that community. That fundamental problem goes back to the days when motherhood was a clearly-established fact and fatherhood was a deeply-held opinion. The only way a man could be completely certain he was a father was if there were no other possible candidates. Today, however, we have Maury to tell him “Jack, you ARE the father”. Because of this, marriage is less important today than back in Biblical, shepherds-in-the-fields days. We can even tolerate marriages that AREN’T completely oriented about child-rearing… well, I mean to say that some of us can. The people what can’t can be safely left behind at the station while the Great Choo Choo Train of progress heads on down the tracks.

    4. This fight will never end.

  15. Any constitutional “scholar” who writes of Roe v. Wade like it issued, sua sponte, from the machinations of an activist Supreme Court, is not to be taken seriously.

    Roe is the culmination of freedom- and privacy-promoting interpretations of our Constitution that protect our rights to some of the most intimate aspects of our bodily autonomy. The Courtt will not be able to overrule Roe without calling that line of jurisprudence into question. As, I suspect, our Snead likely intuits, teaching as he does at a conservative, Catholic law school. That a reversal of Roe may lead to undermining contraception, IVF, and same-sex marriage is just part of the plan.

    And then we have Josh, over here, with his usual unprincipled apologia, and the peanut gallery with its typical insanity.

    1. “That a reversal of Roe may lead to undermining contraception, IVF, and same-sex marriage is just part of the plan.”

      How can you overrule Griswold unless some state bans contraception? Since there’s a widespread consensus that artificial contraception is totally awesome, how do you envision such a ban being passed?

      IVF as a substitute for adoption seems foolish, and wrong given the destruction of “excess” embryos. It’s not even a case of “my body my choice,” more “my laboratory, my choice.”

      Same-sex “marriage” used to be controversial, and hopefully it will become so again. The PC crowd is so powerful that I’m cynical about reversing their handiwork, but there’s still a possibility that they’ve overplayed their hand by legally harassing wedding planners, florists, cake-makers, etc. If same-sex marriage means doing the two-minute hate against these unoffending, sympathetic people, maybe the normies will figure that the old slogan of “how does my marriage affect you” was just a ruse – it seems that same-sex unions is one of these things where “you will be made to care.”

      1. ” Same-sex “marriage” used to be controversial, and hopefully it will become so again. ”

        After that, what’s next on the conservative wish list?

        Interracial marriage?

        State-conducted prayer in schools?

        Desegregated schools?

        Criminalization of homosexuality?

        The teaching of evolution in science classes?

        Contraception?

        Racially restrictive covenants?

        Carry on, clingers. So far as bigoted, obsolete, superstitious thinking could carry anyone in modern America . . . and just so long and so far as your betters permit.

        1. I’ve noticed that the folks obsessed with interracial marriage seem to be progressive types who repeatedly mention that Clarence Thomas married a white woman.

          Many advanced and progressive types were willing to go along with bans on interracial marriage because “science,” as with Virginia’s racial-purity law.

          Do I need to mention the responsibility of FDR in encouraging racially-segregated housing? Was he a conservative clinger, too?

          The public-school-education issues you mention are so last century. The thing now is “choice” (which this thread is supposedly about) – the choice to educate your kid in a school you select, not in a school assigned to you by the education establishment.

          Is your skull made of a metal so impermeable that logic can’t even dent it?

          1. I somewhat agree with Cal, which is making me feel a little uncomfortable. School choice is very, very important. One of the things that I love in Delaware is that it has school choice. If you live in northern Delaware, which is largely a suburb of Philadelphia and is more liberal, and you don’t want them in classrooms filled with “those people”, you can literally choose any other school you want in the state. We have charter schools and magnet schools. There are even a crapload of religious schools (particularly Catholic schools, due to the significant settlement of Delaware by Swedes), although if you want to go to private school you have to pay for it yourself.

            Your FDR reference highlights the fundemental problem for cultural conservatives. What was liberal in the 30s was moderate in the 50s and comservative in the 70s. Yes, he was socially liberal for the 30s, but socially conservative for today. Such is the march of history.

            America advances slowly towards the universal application of laws (an important element of the rule of law) because we are a center-right country with a legal and legislative system designed to change slowly.

            I’m going to guess that Cal thinks slow, constant change is bad and I think it’s good, but on his point about school choice we agree completely.

            1. Of course change is good, if it’s the right kind, a proposition which (stated at that level of abstraction) I would guess you’d agree with.

              1. I don’t think change is always the “right kind” or the “wrong kind”. Nothing in life is 100%.

                My concern would be who determines whether it is the “right kind” or the “wrong kind”.

                1. Well, obviously, Cal votes for Cal being the one who decides. Because he’s pro-choice, unless he isn’t the one doing the choosing.

            2. “Your FDR reference highlights the fundemental problem for cultural conservatives. What was liberal in the 30s was moderate in the 50s and comservative in the 70s. Yes, he was socially liberal for the 30s, but socially conservative for today. Such is the march of history.”

              The fundamental problem for the left, is that you’ve changed the visible manifestation of your nature, but haven’t changed the actual nature. You drove Jim Crow, today you demand racial quotas, and support segregated events.

              You got behind Margaret Sanger’s eugenics driven abortion crusade, today you defend abortion, and site the clinics in black neighborhoods.

              In Jim Crow you sought to disarm blacks, who you didn’t trust, and all that’s changed is that you basically don’t trust anyone today, so you try to disarm everyone.

              You wanted top down regulation of the economy in FDR’s days. How has that changed?

              Now, I’ll grant that I can’t find any explicit analogy to your modern obsession with enabling bizarre sexual deviance, and demanding everybody pretend it’s normal. You certainly weren’t arranging for cross dressers to read bedtime stories to children in libraries in the 50’s. But, as they say, history doesn’t repeat, it rhymes.

              1. I know the fad is to label the new guy as a “leftie”, but from “The fundamental problem” through “How has that changed”, I either disagree with the positikn that you are assigning to me, the logic you are assigning to me, or both.

                The “bizarre sexual deviance,” you reference *is* normal. It isn’t the majority, but being in the minority isn’t “deviant”. If it were, opposition to abortion would be deviant. Libertarianism would be deviant. Left-handedness would deviant. Blindness and deafness and being a paraplegic and natural blondes would be deviant.

                I’m not sure what problem you have with cross-dressers reading to children in libraries. I can only assume that the one that read to your child sucked at reading aloud and it upset you.

                I don’t memorize Bible verses, but I’m pretty sure there’s one about judging others. You may want to look it up. It’s an excellent ideal to live by.

              2. “The fundamental problem for the left, is that you’ve changed the visible manifestation of your nature”

                The fundamental problem for the left is that you define anybody willing to disagree with you as being “the left”, regardless of whether they actually are, in any way, actually left.

              3. “You wanted top down regulation of the economy in FDR’s days. How has that changed?”

                Besides the fact that I wasn’t born until long after FDR had shuffled off his mortal coil? Go ahead, tell me what I wanted during the Lincoln Administration next…

            3. “I somewhat agree with Cal, which is making me feel a little uncomfortable.”

              That is an appropriate response to that stimulus. It should make you feel uncomfortable.

              “School choice is very, very important.”

              It’s over-valued. What is very important is that the schools need to be good, but if they’re all good, then choosing between them isn’t that big a deal. Disclaimer: in my kid’s school district, they offered several magnet programs, and my kid applied for, and was taught at, the environmental science middle school option program. The big suburban high school had some alternatives, and one of them was disastrous for my kid, while another allowed her to do college classes to meet her high-school requirements. The big suburban school was chock-full of high-achievers, as measured by academic prizes like National Merit scholarships, and a runner up in the Intel National Science talent search.
              the single biggest factor in student achievement is parental involvement, by which I do NOT mean protesting the school board meetings if they teach (fill in outrage topic of the day… it was sex ed when I was in school, and apparently it’s critical race theory today.)

          2. “I’ve noticed that the folks obsessed with interracial marriage seem to be progressive types who repeatedly mention that Clarence Thomas married a white woman.”

            Where are you meeting all these people obsessed with Clarence Thomas’s marriage?
            Thus far, you seem to be the only person who’s mentioned this.

      2. “How can you overrule Griswold unless some state bans contraception?”

        Have all the states that banned contraception prior to Griswold actually bothered to remove their bans on contraception, or do they just sit there, dusty and unused?

        1. If they’re “unused,” then Poe v. Ullman would kick in.

          1. So you couldn’t sue over them in Connecticut?

  16. What are the implications of a rape allowance for abortion?

    The usage of the term has expanded greatly in the last few years. Will this not lead to a further expansion?

    1. If we’re going to kill anyone, kill the rapist (after due process). But, wait, executing rapists is cruel and unusual, says the Supreme Court!

      So I guess all that’s left to do is kill the rapist’s innocent child. I mean, *someone’s* gotta die, rigth?

      1. Once again, not a child. Not a person. If you want everyone to live by your beliefs, actually establish your foundational principle first.

        1. What have I been doing throughout this thread?

          1. “What have I been doing throughout this thread?”

            Emitting stupidity at a prodigious rate.

              1. What do you do when your bull leavings pile up higher than your head, leaving no source of air?

  17. To Cal Cetin and Ben of Houston (and perhaps Brett Bellmore):

    I replied to the two of you that your position on abortion (the fetus is a person) required (logically, morally and likely legally by the Fourteenth Amendment) that a woman who has an abortion be treated as a first-degree murderer. Ditto for a stem-cell researcher or IVF clinician that destroys an embryo. And yet in response to my argument, you have remained silent. I can’t figure out if your silence means 1) you agree but are embarrassed to acknowledge the consequences of your position, or 2) you disagree but can’t explain why denying the consequences doesn’t undermine your position. Please clarify.

    I include Brett because he said, “Yeah, murder for one innocent, or 9 months of inconvenience for another. If only they weren’t so obviously equivalent,” which strikes me as holding the belief that a fetus is a person.

    1. When there are so many categories of criminal homicide – capital murder, murder 1 (noncapital), second-degree murder, manslaughter, misdemeanor death by vehicle, and I’ve probably missed a few – it’s up to you to explain why a particular form of homicide OBVIOUSLY must fit a particular category.

      Your assertions don’t make things true.

      1. The woman preplanned the death of her child (assuming as you do, the fetus is a child) and hired a doctor as her hitman. I believe in every jurisdiction that’s murder one (capital or not).

        1. I’m still not sure what’s so constitutionally sacred about the legislative classification of murder, since the victim is dead whether it’s misdemeanor death by vehicle or 1st degree murder.

          I’m not saying there should *never* be 1st degree murder penalties for abortion – at least for *serial* abortionists – but of course the classification of murder is simply a legislative judgment about proper punishments. Punishment should be based on vindicating justice, deterring offenders, and rehabilitation. A prolife legislature would be free to make its own judgment, free from prochoice concern-trolling.

          The proof is that before *Roe* and the “abortion reform” movement which spawned it, the abortion laws (often dating back to the 14th Amendment) had varying degrees of punishment, with none of the 14th Amendment framers concern-trolling about the level of punishment (or questioning the constitutional of abortion bans either, for that matter).

          1. How does ” vindicating justice, deterring offenders, and rehabilitation” justify punishing a woman who hires a doctor to kill her 1 year-old child as a first-degree murderer while letting a woman who has an abortion (i.e., hires a doctor to kill [what you call] her unborn child) off scot free?

            The abortion laws you refer to are evidence that fetuses were not considered persons.

            1. “The abortion laws you refer to are evidence that fetuses were not considered persons.”

              Seriously? You’re going with that?

              1. Seriously, I am. It’s also why the overwhelming majority of the public does not support punishing a woman who has an abortion.

                1. I acknowledge the political reality that people’s human rights are decided by democratic voting. That doesn’t mean the majority is always right, they can frequently be misguided, and have been.

                  1. decided *in practice.* There is a higher law.

                    1. “There is a higher law.”

                      Perhaps there is, but it’s not up to you. In any way, shape, or manner.

                  2. Just because someone, at some point, was misguided doesn’t mean that that’s the case here. Start trying to establish your foundational principle with supporting evidence rather than saying, “people aren’t always right” and thinking that vindicates your position and invalidates your opponent’s.

                    1. I wonder what you think I’ve been doing all over this thread?

                    2. So what facts support the idea that a fertilized egg is, at that moment, an individual that must be granted individual rights?

                    3. Facts?

                      Is it dead or alive?

                      Is it human or nonhuman?

                      Once you’ve answered these questions we can see what conclusions to draw from these facts.

                      For example, if it’s a living human, then what principle applies in deciding who’s a person with rights?

                      Do we consider every living human to be a person with rights?

                      If there are living humans without personhood rights, identify them and explain how you came to your conclusions.

                    4. Cal, I just made a post further above to Don answering that question. I send it back to you. Don’t post binary questions to complex, nuanced issues. State what you believe, why you believe it and also, for clarity, whether you see a difference between a basic biological definition of life and personhood. If you think they are different, when does personhood occur in the developmental process?

                    5. You lobbed a question at me, I returned the serve, so now the ball is in your court.

                      I asked if a “fertilized egg” is an individual human being, or something else.

                      Then I asked if it’s alive.

                      That leads to my position – a living human being is a person with rights.

                      Throwing around the n-word (“nuanced”) doesn’t answer the question: If merely being a living human being isn’t enough to be a person with rights, what *additional* criteria does a human being have to meet to be a person? Who is excluded from the definition? Fetuses? People with dementia?

                    6. “I asked if a “fertilized egg” is an individual human being, or something else.”

                      It’s a “something else”. A small number of them will grow and develop into human beings. Some of them will grow and develop into turtles, and some will grow and develop into chickens.

                    7. “That leads to my position – a living human being is a person with rights.”

                      Having rights and having rights that are superior to any other person’s rights are not the same thing, though. Much of law consists of balancing one person’s right(s) with another person’s right(s). Pre-viability, a fetus’s right to life is entirely hypothetical. Remove the mother and her life-support system, and the pre-viable fetus will die. And fairly quickly. Human growth includes many stages, and full rights do not attach until majority. pre- and post-viability are just stages you have to get through on your way to birth and eventually, becoming an adult with full rights and privileges.

                    8. I’d like to hear more about those cases where a woman is pregnant, carries the pregnancy to term, and gives birth to a chicken.

                      Too bad the Weekly World News isn’t at my supermarket any more, they would have covered these cases.

                    9. Cal, I posted a response to Don Nico above that lays out, in detail, what I believe and why I believe it. As a bonus, I talk about what a hypothetical piece of compromise legislation might look like, while acknowledging that compromise will never happen.

                      I would like you to do the same thing. I’m not asking for some reductionist, Socratic response that is designed to be evasive.

                      I understand that you believe that life begins at conception. Why do you believe that? I understand that you believe individual rights (generally referred to as “personhood”) attach at conception. Why do you believe that?

                      I truly want to know. I believe that different people have different beliefs and that’s a good thing. I believe that your position is a sincerely held belief. This isn’t some sort of disingenuous “gotcha” setup. I disagree with you, but I don’t think you or your beliefs are irrational. I just don’t understand why you believe what you believe and, if it has a foundation outside of your religious beliefs, I would like to know. Or, if it is based on your religious beliefs, just say that. There is nothing wrong with a religious basis for beliefs on secular issues, regardless of what the lunatic left says.

                      I’m asking a simple question and am hoping for a simple answer. What logic do you use as the foundation to your belief that life begins at conception? What logic do you use as the foundation to your belief that conceptuon and personhood are equivalent? Would you be willing to answer those questions with statements, not questions?

                    10. “I’d like to hear more about those cases where a woman is pregnant, carries the pregnancy to term, and gives birth to a chicken.”

                      Sounds fascinating. Finish your story. Don’t stop in the middle.

                    11. “I understand that you believe that life begins at conception.”

                      This belief is easily disproven. Conception occurs when a live sperm cell enters a live egg cell.
                      Life begins when two things that are alive are in the same place? That’s not what “begins” means.

                    12. I beg your pardon if I took too long to look at your response to Don Nico.

                      “”However, if there were to be a “reasonable” definition of when life/personhood/individual rights begins, it would be when the fetus has all of the necessary biological structures and processes to survive. So, at a minimum, lungs, a heart, a stomach, a nervous system, a circulatory system, and brain activity….

                      “I believe that personhood is defined by brain activity. Without it, life is impossible.”

                      Are you using the brain-death argument? That life ends with brain death, so it begins with brain activity? (and the other organs?)

                      First off, bear in mind that modifying the law in accordance with your “compromise” will make *more* abortions illegal.

                      Once the brain develops, then I can stipulate that brain death = death.

                      If the brain hasn’t developed, looking for brain activity is meaningless.

                      (This is the time for the Pollock-bot to insert his insults)

                    13. I posted immediately after the main post a clarification because I figured someone would try to take the “you said brain activity and there is a tiny bit of brain activity before you said so you are wrong”. And guess what you did?

                      I’ll make it simple for you: if a fetus doesn’t have the requisite biological structures and neurological activity to sustain its life independent of the mother’s body, it isn’t a person.

                      I will ask again, for the third (maybe fourth) time: what do you believe and what is the logic supporting your position. It was easy for me to do, but you continue to avoid answering a simple question.

                      If your position is so clear and obvious, why can’t you lay it out?

                    14. I’ve repeatedly said that living human beings are persons.

                      I challenged you for an alternative definition of which living human beings are or are not “lives worthy of life.” You came up with your definition and I challenged it.

                      I set up my standard – living human beings are persons – you offered an inadequate alternative definition, which I replied to.

                      And there the approximately 60 comments I’ve made on this thread – wow, I’ve made a really productive use of my time! But in there somewhere you should be able to find a few hints as to my thinking.

                      And just to be clear, I decide for myself which questions to answer. You can’t compel me.

                      And if the existing 60 comments I made aren’t enough, I doubt very much that 60 more would satisfy you.

                    15. As I expected, you never gave a direct answer to my questions about that which is conceived in the womb.

                      “Is it dead or alive?

                      “Is it human or nonhuman?”

                      I’m not saying answer them, I’m saying be sure to set a good example answering others’ questions before expecting others to answer yours.

                    16. As for the logic of my position, you’ve provided it yourself.

                      I gave a definition of person as a living human being, and you haven’t been able to come up with a satisfactory alternative answer. The one you gave won’t do, and I presume you only came up with that one after applying all your intelligence to the matter.

                    17. “I’ve repeatedly said that living human beings are persons.”

                      I agree. And I believe that unless a fetus has the capacity to exist as an individual, it isn’t a living human being. Individual rights belong to individuals. Separate, independent, human organisms who have the necessary biological processes to exist.

                      I know you don’t believe as I do. I don’t expect you to. Stop trying to tell me why you think I’m wrong. Tell me why you think you’re right.

                    18. “Do we consider every living human to be a person with rights?

                      If there are living humans without personhood rights, identify them and explain how you came to your conclusions.”

                      We do not. Minors, for example, are not endowed by their creator with a full set of rights. They cannot drink, buy lottery tickets, or smoke, or buy porn and they cannot appear in porn, even if they make it themselves. The ones under 16 can’t drive on the freeways and roadways of America, or get in a boat without wearing a life-jacket. Besides this obvious example, there are some others.
                      Ask Britney Spears if he is a person with full personhood rights? Hint: No, she is under a dual conservatorship, and thus has incomplete property rights in her own money, and also incomplete rights regarding her own body.

                    19. “you haven’t been able to come up with a satisfactory alternative answer”

                      I have, it just isn’t satisfactory *to you*. You don’t get to make that decision for everyone else in America.

                      The one you gave won’t do”

                      Again, that’s not your call. You aren’t the arbiter of truth

                      And you haven’t even bothered to present a theory other than the gap-filled, self-referential reasoning that goes:
                      A) A fertilized egg is alive
                      B) It is a human being because one day there is a non-zero chance that it will be born and, if that occurs, it will be a human organism. (You keep skipping the part where you explain why a bundle of cells is equivalent to a fully-formed human being, probably because it doesn’t make any sense unless you start with the premise that a bundle of cells is equivalent to a fully-formed human being)
                      C) Because of A and B, a fertilized egg is a living human being.
                      D) Living human beings have individual rights

                      That’s not how it works. If your beliefs are so self-evident, why (in 2021) do over 85% of Americans reject the statement, “abortion should be illegal in all cases” and 62% percent reject the statement “abortion should be illegal in all or most cases?

                    20. So, you’ve stopped saying I haven’t provided the logic of my opinion, and now you’ve come up with your own version of what my logic is?

                      Your summary is not correct – maybe you should stop trying to summarize me and go back to your refrain of “you haven’t answered my question even though I keep asking!”

                      You haven’t answered whether an embryo is alive and whether it’s a human being.

                      Of course it’s a human being, not (as one commenter suggested) a chicken.

                      And it’s alive.

                      I guess I approach the matter from a different angle than you do – I look to the problems of carving out categories of living human beings who are “lives unworthy of life” or who possess no rights which other human beings are bound to respect.

                      So who are exceptions to the principle of human beings having human rights? Various exceptions have been proposed over the years – the unborn are simply the latest target.

                    21. “Of course it’s a human being, not (as one commenter suggested) a chicken.”

                      You forgot to mention that you are the one commenter suggesting this.

                    22. “(This is the time for the Pollock-bot to insert his insults)”

                      Or just point out that you keep saying stupid things.
                      Like, for example, when you offered this:

                      “I’d like to hear more about those cases where a woman is pregnant, carries the pregnancy to term, and gives birth to a chicken.”

                    23. “So who are exceptions to the principle of human beings having human rights?”

                      You’re framing the question wrong.

                      the question isn’t “who has no rights?” it’s “whose rights have lower priority than someone else’s rights?”

                      If you take the pre-viable fetus out of the uterus, it’s going to die. That’s what “pre-viable” means. the mother has a right to have an uninhabited uterus, if that’s what she wants. The fetus has a right to live, if it can survive without her. See, nobody in the whole story has a list of rights which can be summarized as “none”, except for the fetus after it is no longer alive. Corpses don’t have rights, and never have.

                    24. “First off, bear in mind that modifying the law in accordance with your “compromise” will make *more* abortions illegal.”

                      No it wouldn’t, as you went on to explain yourself.

                      There are several different avenues to make abortions less common, that don’t involve intrusion of the government into private decision-making by individuals. For example, you could start by making effective birth-control knowledge and resources available, and cheap. Limit the number of unintentional or unwanted pregnancy, and you limit the number of abortions.
                      Second, you could advance medical science to the point where viability is reached earlier. If fetuses weren’t completely dependent on the mother hosting them, then the fact that the mother doesn’t want to host them isn’t an issue. Of course, that produces a new problem… all those fetuses are still going to be dependent on somebody to care for them. Who will step forward to pick up the load? Third, you can find a persuasive-enough messenger to convince the would-be mothers that they do, in fact, want to keep that fetus living inside them. It seems likely that to complete this line of attack, you’ll need financial assistance for the costs of pregnancy and early childcare. This sounds a lot like socializing pregnancy, and a much more extensive welfare program, which is politically unpopular. But it would take one of the primary stresses off the mother-to-be as she decides what her best path forward would be.

                      Just attempting to strip the choice away from the womenfolk is the laziest approach, and it has a history of being ineffective. But I know which way you’ll pick.

                    25. First of all, thank you for engaging like this without calling me names, accusing me of murder, or otherwise demonizing me.

                      Telling me that I’m wrong or that you find my logic lacking is normal for debates. But being able to remain civil, especially on a topic as visceral as this, is something that the fringes on both sides constantly fail to do.

                      That said, I think you’re wrong and that your logic is lacking. I find the conflation of the basic biological definition of “life”, which has a significant chance of never becoming a living, breathing human (naturally, without any external action), with personhood unconvincing. I find the conflation of something that *could* develop into a living breathing human with something that *is* a living, breathing human a logical bridge-too-far. But all of that is why I, personally, find the anti-abortion position unconvincing.

                      The larger problem I have, as a libertarian, is using the power of the state to compel something that is overwhelmingly (full abortion ban) and/or decisively (abortion illegal in most or all cases) rejected by Americans.

                      As I have mentioned elsewhere, since 1995 support for a complete ban on abortion has never exceeded 15%. Support for a most/all abortions being illegal has never exceeded 44% and has never had more support than abortion being legal in most/all cases, which has never dropped below 47%. That kind of large-scale rejection is telling, especially since anti-abortion advocates have been running well-funded awareness/influence campaigns since the 70s.

                      Combine the large-scale rejection of abortion bans with the overwhelmingly religious nature of their support and such laws are terrifying to people like me who believe vehemently in Constitutional protections (especially the First Amendment) and personal liberty.

                    26. “Telling me that I’m wrong or that you find my logic lacking is normal for debates. But being able to remain civil, especially on a topic as visceral as this, is something that the fringes on both sides constantly fail to do.”

                      Easy for you to say. He’s literally dismissed me as some kind of non-human, for the crime of pointing out when he’s said something stupid.

                    27. James, I tend to make a distinction between “stupid” and “something I disagree with”.

                      I don’t find the anti-abortion position compelling, but that is because I place more significance on the ability of a fetus to survive on its own as a determinant of personhood than the minimal biological definition. I also place more value on religious freedom and personal moral choice than on Christian supremacy under the law.

                      The anti-abortion side reverses those priorities. That makes them different, not stupid. If I want the right to choose my own religious convictions, I can’t very well deny that to others, can I? Different priorities lead to different conclusions. Different, not stupid.

                    28. “James, I tend to make a distinction between “stupid” and “something I disagree with”.”

                      These two things aren’t mutually exclusive. Our new buddy Cal is both.

                    29. He’s also lazy, and a bit of a coward.

          2. I’m still not sure what’s so constitutionally sacred about the legislative classification of murder, since the victim is dead whether it’s misdemeanor death by vehicle or 1st degree murder.

            Your premise (I thought) was that because festuses are “persons”, the equal protection clause requires states to penalize harming them in the same way as it does people who have been born.

            Which seems difficult to reconcile with the position that the a legislature can make the severity of a crime depend on whether the victim is a fetus or a person who has been born.

            1. I also mentioned due process and outlawry.

            2. To be fair, it was my premise as an interpretation of their position that the fetus is a person. I merely asked Cal, Ben and Brett if they agreed.

              I think Cal has pretty much answered “yes” (abortions must be criminalized and the woman must face criminal punishment, ditto for researchers or clinicians that destroy embryos). He did however add the nuance that the punishment for the woman might not be as great (as if she hired a doctor to kill her 1-year old) because of “vindicating justice, deterring offenders, and rehabilitation.” That’s very vague, but perhaps there might be something in there that justifies a lesser punishment. It would be helpful if Cal fleshed out the argument complete with what he thinks the lesser punishment ought to be.

              1. Why not go with the punishments which applied under the pre-Roe laws, and anyone who wants to modify those punishments needs to have a good reason.

                  1. I think that’s enough to go on. It lets people know what penalties to expect if my ideas are followed, and it’s probably in line with what a lot of prolifers will try to achieve with their laws.

                    1. I wanted you to go on and tell us what those penalties were (I don’t know)?

                    2. All right, I looked up New York’s pre-Roe, pre-“reform” abortion law on Wikipedia, and it says “In 1872, New York state made it a penalty [sic] to perform an abortion, with a criminal sentence of between 4 and 20 years in prison.”

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

                    3. And the woman gets of scot free. Does this mean you are changing your mind and now think it is OK for the woman to get off scot free for hiring a doctor to kill her unborn baby?

                    4. Which of my views have I changed? This is what I said below:

                      Cal Cetín
                      September.7.2021 at 1:08 pm
                      Flag Comment Mute User
                      Now you’re getting to the prosecuting-women argument.

                      This is politically unfeasible, which I suppose is why pro-choicers bring it up.

                      Yes, if the political climate were more favorable, I’d like to see punishment for mothers who abort their children (and boyfriends/parents/husbands who pressure the into it). With the punishment set by a prolife legislature without prompting from prochoice concern trolls.

                      But the climate which prochoicers helped create has set (for the moment) a taboo against “OMG punishing *women*!”

                      I’m not going to second-guess prolifers who, to reduce abortions, go after the abortionists.

                    5. “if the political climate were more favorable, I’d like to see punishment for mothers who abort their children”

                      This could all be resolved if the people who push “pro-life” laws would step forward to volunteer to have the fetuses in question transplanted into their own bodies, to grow and nurture them until viability.

                    6. And all those humanitarians who say lynching alleged criminals is wrong should bring the criminals into their homes.

                      That’ll show ’em! Why don’t they come up with their own solutions to the crime problem, instead of messing with other people’s choices of how to deal with crime?

                    7. Are you saying you support punishing the woman, but agree to her getting off scot free only because of the political reality?

                      Assuming I got that right, what should her punishment be if not for the political reality, and how do you justify that punishment not being the same as for a woman who hires a doctor to kill her 1-year old child?

                    8. I’ve already gone a great distance answering philosophical questions, but I am uncomfortable when you ask me what laws I would support if political reality didn’t exist.

                      I will defer to knowledgeable prolifers as to what penalties if any to impose on the woman, based on the political climate as it evolves from time to time.

                    9. Specifically, I will defer to those prolifers who have a track record getting legislation actually passed.

                    10. I am uncomfortable when you ask me what laws I would support if political reality didn’t exist

                      . So, it looks like “you agree (the fetus is a person … [and] a woman who has an abortion [must] be treated as a [criminal]”) but are embarrassed (too uncomfortable) to acknowledge the consequences of your position.”

                    11. A fetus has the potential to become a human being. Something something counting chickens before they hatch.

                    12. Say, Cal, do you mind explaining why your hypthetical fetus is a human being but a cancer tumor is not? Both are made of human cells and are alive, which fits your definition of “person”…

          3. “The proof is that before *Roe* and the “abortion reform” movement which spawned it, the abortion laws (often dating back to the 14th Amendment) had varying degrees of punishment, with none of the 14th Amendment framers concern-trolling about the level of punishment (or questioning the constitutional of abortion bans either, for that matter).”

            It was a form of insanity defense: It was widely considered that any woman who’d kill her own baby at any point of development must be insane, and so she was treated as having diminished capacity.

            1. ““The proof is that before *Roe* and the ‘abortion reform’ movement which spawned it, the abortion laws (often dating back to the 14th Amendment) had varying degrees of punishment, with none of the 14th Amendment framers concern-trolling about the level of punishment (or questioning the constitutional of abortion bans either, for that matter).”

              No, the 14A doesn’t mention abortion, and limits the discussion of ritghts granted to only the post-born. Almost as if that’s when the people of the day considered birth to be the start of life.

              Historically, early pregnancy was a mystery. They knew where it was coming from but they didn’t know how to detect it until the more visible symptoms developed. This meant that an early abortion would go undetected by others, and made it one of those things covered by privacy. Obviously, one method to detect an early pregnancy would be to rip open the belly and physically inspect the uterus, but pretty much nobody assuming this was a power the government, or anybody else, actually had.

        2. ” I believe in every jurisdiction that’s murder one”

          I won’t be coming to you for legal advice. That was the point you wanted to make, right?

    2. Even if one were to accept that a fetus is a Fourteenth Amendment “person” – a highly questionable assertion – that does very little to advance the argument that the constitution *requires* states to ban abortion. The Fourteenth Amendment prevents the states themselves from infringing on a person’s life, liberty, or property, but it has never been held to impose an affirmative duty upon states to protect those interests from infringement by private parties. Even in cases where the party is unquestionably a 14A “person” (DeShaney, Castle Rock, probably many others), conservative justices have held that the state has no duty to protect. Abortion is, of course, generally carried out by private parties, so under existing doctrine (for what that’s worth), the Fourteenth Amendment could not protect a fetus from abortion.

      1. The issue is laws legalizing abortion – a form of outlawry which raises due process and equal-protection issues.

        After all, killing an outlaw was generally a “private” act, yet the Magna Carta still banned arbitrary outlawry.

        If this raises doubts about the sanctity of the DeShaney case, and makes Blackmun’s ironic and paradoxical dissent closer to the true state of the law, so be it.

        1. Ironic and paradoxical because Blackmun defended the right of the mother of “poor Joshua” to kill him in the womb.

        2. If the concept is still unclear, consider the situation of pregnant minors in some states who can petition a court for permission to abort their ba – I mean fetus.

          A judicial decree that a private party can kill another private party is a decree of outlawry – while it preserves the judicial forms, it is arbitrary because the fetus is not old enough to be charged with a crime or have the opportunity to appear in court – and the precondition of outlawry is that a defendant doesn’t show up in court after being repeatedly summoned.

          If arbitrary *judicial* outlawry is a problem, the problem is made worse by having the legislature proclaim outlawry for a whole category of persons without even a simulacrum of due process.

          1. You keep babbling on about “outlawry” as if it had meaning.
            It does not.
            Miscarriage is not a crime. Even when it’s intentional.

        3. Well if conservatives want to kill the state action doctrine – making states into guarantors of people’s lives and liberty and protecting those interests from infringement by private parties – that sounds alright by me. But that would mean a radical restructuring not only of constitutional doctrine, but also of society writ large. Unless, of course, this reasoning would be good for one time only, a la Bush v. Gore.

          1. Arbitrary outlawry has always been wrong. If that principle means that social workers can’t put a child beyond the protection of the law, so be it.

            Just to be clear – I’m not talking about mere incompetence, lack of funding, or what I have, but arbitrary outlawry – deliberately placing a person outside legal protection without due process.

            If Blackmun (outside the context of abortion of course) could see this, more power to him.

            “a radical restructuring not only of constitutional doctrine, but also of society writ large”

            That “radical restructuring” goes back at least to 1215.

            1. “what I have” = “what have you”

      2. DeShaney was a due process case. In contrast, the abortion question is an equal protection case. Imagine if the law did not prosecute people who hired doctors to kill their under-the-age-of 5 children, but prosecuted them for doing likewise for 5-or-older children. I have little doubt the law would violate the Equal Protection clause.

        Or as Justice Blackmun said in Roe:

        The appellee and certain amici argue that the fetus is a “person” within the language and meaning of the Fourteenth Amendment. […] If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument.

        1. Now you’re getting to the prosecuting-women argument.

          This is politically unfeasible, which I suppose is why pro-choicers bring it up.

          Yes, if the political climate were more favorable, I’d like to see punishment for mothers who abort their children (and boyfriends/parents/husbands who pressure the into it). With the punishment set by a prolife legislature without prompting from prochoice concern trolls.

          But the climate which prochoicers helped create has set (for the moment) a taboo against “OMG punishing *women*!”

          I’m not going to second-guess prolifers who, to reduce abortions, go after the abortionists.

          1. One useful feature of limiting punishment of the woman is so she can have more incentive to help the cops locate the abortionist.

            1. That argument doesn’t work for a mother who hired a doctor to kill her 1-year old, and it doesn’t work here.

              That being said, at least you acknowledged the woman should be punished. And ditto for the stem-cell researcher and IVF clinician, right?

              1. Do I have to repeat that killing a human being ought to be a crime?

                The “IVF clinician” doesn’t have a fetus in its womb. So “my body, my choice” doesn’t even apply, it’s “my laboratory, my choice.”

                1. “Do I have to repeat that killing a human being ought to be a crime?”

                  Apparently you do, because you don’t even support it in your second paragraph, in which you argue that it doesn’t even apply.

                  1. Did you just put some words together at random?

                    1. No, I don’t work like you do.

                    2. You need a more sophisticated insult-generating AI, you must be using an outdated system which produces the lamest invective imaginable.

                    3. “You need a more sophisticated insult-generating AI, you must be using an outdated system which produces the lamest invective imaginable.”

                      I don’t want to accidentally use concepts too advanced for you to know that you’re being insulted for being stupid, so I have to dumb them down for you.

      3. ” under existing doctrine (for what that’s worth), the Fourteenth Amendment could not protect a fetus from abortion.”

        The core problem is that, absent the life-support system donated by the mother, a pre-viable fetus cannot survive anywhere.

    3. Fetal development is a continuous process, at one end a single cell with only the potential, at the other end the potential realized, and only a matter of a few inches between “fetus” and “baby”. Any imposition of a binary rule is going to be arbitrary, whether that binary rule is at conception, or at birth.

      Roe might have been a reasonable legislative compromise, if a legislature had arrived at it, rather than a court. And if Doe v Bolton hadn’t rendered the promise that states could regulate or ban later in pregnancy largely hollow.

      But, of course, it wasn’t a legislature, responsive to the voters, that arrived at it, and would have been capable of revisiting that decision at any time. It was a court, that engraved the decision in stone. And Doe did gut Roe’s concessions to state authority, rendering a net result that was much less reasonable than Roe alone.

      My statement had to do with the fetal heartbeat law here: A rape victim will know immediately that they’ve been raped, and has plenty of time to do something about the potential pregnancy before that law kicks in. There’s no good excuse that a rape victim should have any concern here, the least we can ask is that she not dawdle until the fetus is substantially developed.

      1. “A rape victim will know immediately that they’ve been raped, and has plenty of time to do something about the potential pregnancy before that law kicks in. There’s no good excuse that a rape victim should have any concern here, the least we can ask is that she not dawdle until the fetus is substantially developed.”

        So, if you make all the assumptions Brett wants to make, the answer is clear. All you people who are NOT making the same assumptions Brett wants to make are obviously wrong, because Brett said so.

    4. ” holding the belief that a fetus is a person.”

      That might be a belief, but it is not law. A fetus is a potential person, which is not at all the same thing. Haploid cells are also potential persons, but nobody counts up the number of sperm cells a murder victim has in his still-warm-but-rapidly-cooling body and charges mass-murder based on the total count.

      1. What is this, the Macy’s Parade of Clichés?

        We’ve had the first degree murder argument, the “forget about abortion for a moment” argument, and now the spermicide argument.

        1. And now we’ve had a “Cal is lazy and stupid” argument to seal the deal.

          1. Seriously, are you just a random-insult-spewing AI? How would you be different if you were?

            1. We already had the “Cal is lazy and stupid argument” No need to make another.

              1. Hint: What you actually need to do is convince the people who have uteruses of their very own, that, should that uterus become occupied by a live fetus, they should keep it there until it becomes viable. Convincing the legislature to tell them they have to do that is laziness of the highest order.
                That’s what happens when you assume those uterus-having people are capable of reasoning and moralizing all by themselves, without you having to tell them how. They make choices. Sometimes they make the choices you would have, and sometimes they don’t.

  18. The problem with Roe is and always has been it reads a lot more like a statute than decision and went too far in proscribing solutions to the “case or controversy” before the court.

    Contrast that with the Court’s death penalty cases where the Court has repeatedly narrowed the application of the death penalty without proscribing a universal application on how it should be handled, allowing States and Congress to fix the problems as identified.

    It has always seemed to me that the court should have decided Roe by ruling the stature was overly broad, intrusive or something and allowing the States to try to fix it.

    One of the real problems is that there was a fairly broad movement to loosen abortion restrictions legislatively which allowed a debate on the subject and a political resolution. That was aborted by the Court’s decision and resulted in the current stalemate, neither side feeling they have been heard.

    1. “there was a fairly broad movement to loosen abortion restrictions legislatively which allowed a debate on the subject and a political resolution”

      The problem was this movement wasn’t going as far or as fast as the “reformers” wanted. And there was always the possibility of backsliding.

      Of course, there’s a possibility of backsliding in the Supreme Court, too.

    2. “One of the real problems is that there was a fairly broad movement to loosen abortion restrictions legislatively”

      There was? Where?

      1. New York, Colorado, North Carolina – but look it up yourself, chucklehead.

        1. “look it up yourself, chucklehead.”

          I didn’t make the claim, so supporting the claim with evidence isn’t my job to do, laughing boy.

          1. I didn’t make the claim either, but rsteinmetz below proved it and in the process proved you to be a moron (if you’re not an insult-generating AI, but whichever you are, up yours).

            1. “up yours”

              No sale, sailor.

      2. From this Pro-Life article;
        https://time.com/4154084/anti-abortion-pre-roe/

        in the late 1960s, when a wave of sixteen states legalized at least some forms of abortion within a three-year period. But then the pro-lifers regrouped, changed their strategies, and figured out how to win legislative battles. In 1971, twenty-five states considered abortion legalization bills. Every one of them failed to pass.

        yes it would have taken a while to work through all of this but if the Court had helped it along by narrowing the terms of the debate I believe we would have reached equilibrium by now.
        I believe much of the opposition to abortion was provoked by the decision in Roe.

        1. Or perhaps if the Court had helped it along by letting the debate proceed without meddling.

          1. Darn those Justices! Flaunting their authority to settle current cases and controversies, even when Brett wanted something else to happen!

  19. “Why Did Texas Enact S.B. 8?”

    Because they want to ban abortions in Texas

    1. “’Why Did Texas Enact S.B. 8?’

      Because they want to ban abortions in Texas”

      More specifically, because they want(ed) to ban abortions in Texas and weren’t concerned with details like whether or not they are actually empowered to ban abortions in Texas.

      1. Well, that’s not entirely true. It seems like they are well aware they cannot ban abortions in Texas, so this very specific bill is the result of that fact.

      2. No, they actually think they ARE empowered to ban abortions in Texas, (Which is a perfectly plausible belief.) that the Supreme court has mistakenly denied it, and that if given a suitable opportunity might correct the mistake.

        1. “No, they actually think they ARE empowered to ban abortions in Texas, (Which is a perfectly plausible belief.)”

          Brett is aware that “plausible belief” and “obvious fact” are radically different things.

  20. In effect, Texas has drafted women to carry fetuses. So much for the 13th Amendment!

    Now that we’ve decided that states can ignore Constitutional amendments that get in the way of those states doing what they like, how long will the 2nd hold up? There’s some places where the 1A is not on firm ground, either.
    Great job, Texas Republicans.

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