SG Argues There Is No Middle Path in Dobbs

"Both of petitioners' alternatives would still require the Court reject the viability rule, which is 'the most central principle' of Roe and Casey.'"

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Today the Solicitor General filed a brief in Dobbs. The government argues that there is no middle path. According to the United States, there is no way to uphold the Mississippi law without overruling Roe and Casey.

Petitioners devote most of their brief to urging the Court to repudiate all constitutional protection for abortion. In their view, a woman's interest in deciding for herself whether to carry a pregnancy to term merits no greater constitutional protection than social and economic rights that trigger rational-basis review. But petitioners also briefly assert (Br. 45-49) that if this Court "is not prepared to reject heightened scrutiny" altogether, it should uphold the Act on one of two purportedly more modest "alternative[]" grounds.That modesty is illusory. Both of petitioners' alternatives would still require the Court reject the viability rule, which is "the most central principle" of Roe and Casey. June Medical, 140 S. Ct. at 2135 (Roberts, C.J., concurring in the judgment) (quoting Casey, 505 U.S. at 871 (plurality opinion)). Taking that step would carry all of the stare decisis harms identified in Casey.

This strategic choice is significant. Indeed, the SG seems to agree with Sherif Girgis that there is no half-loaf approach. The government is putting the Roberts Court to a choice: uphold the Mississippi law or uphold Roe and Casey; it can't do both.

On the merits, the United States also attempts to make something of a historical argument. Who knew that Blackstone and Thomas Jefferson provide support for a right to abortion!

First, this Court's decisions recognize a right to "bodily integrity." Casey, 505 U.S. at 857. At the Founding, a person's "uninterrupted enjoyment of his life, his limbs, his body, [and] his health," and "[t]he preservation of [his] health from such practices as may prejudice or annoy it," were considered to have been "vested in [him] by the immutable laws of nature"; "the principal aim of society" was to protect "individuals in the enjoyment of " these and other "absolute rights." 1 Blackstone 120, 125, 130. The "equal right of every citizen" to the "management" of "his person" thus was considered a "foundation of republican government." Letter from Thomas Jefferson to Samuel Kercheval (July 12, 1816).

These citations are not helpful. In the letter, Jefferson addresses a proposal for equal representation in the House and the Senate. Here is the full passage:

The true foundation of republican government is the equal right of every citizen, in his person and property, and in their management. Try by this, as a tally, every provision of our constitution, and see if it hangs directly on the will of the people. Reduce your legislature to a convenient number for full, but orderly discussion. Let every man who fights or pays, exercise his just and equal right in their election.

Jefferson said nothing at all about "bodily integrity." The SG spliced words completely out of context to create a false impression.

The Blackstone citation fares no better. Indeed, these references should be familiar. Justice Thomas cites these very pages in his Obergefell dissent that lambastes the notion of substantive due process:

After Magna Carta became subject to renewed interest in the 17th century, see, e.g., ibid., William Blackstone referred to this provision as protecting the "absolute rights of every Englishman." 1 Blackstone 123. And he formulated those absolute rights as "the right of personal secu-rity," which included the right to life; "the right of personal liberty"; and "the right of private property." Id., at 125. He defined "the right of personal liberty" as "the power of loco-motion, of changing situation, or removing one's person to whatsoever place one's own inclination may direct; without imprisonment or restraint, unless by due course of law." Id., at 125, 130.[2]

The key phrase, which is omitted from the SG's brief, is that a person could be restrained pursuant to the "due course of law." And, as argued by Blackstone, the due process of law concerned procedural rights, and not substantive rights.

Later in the brief, the SG writes:

The core holding of Roe and Casey follows naturally from these long-established principles.

What are these "long-established principles"? In the prior paragraph, the Court cites cases like ObergefellEisenstadtBaird, and Griswold! After nearly 50 years of Roe, the government could not come up with anything better. This attempt at originalism failed.

Finally, the SG sought leave to participate in oral argument. At present, the Acting SG is Brian Fletcher. I do not know if Elizabeth Prelogar will be confirmed as SG prior to the December 1 argument date. I suspect the Biden administration would prefer the optics of having a female argue this case.

NEXT: Parsing The Second S.B. 8 Test Case

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  1. And, as argued by Blackstone, the due process of law concerned procedural rights, and not substantive rights.

    There was the beginnings of a push here a few years back to begin focusing on the due part of due process, rather than the process part, which is to say, the propriety of laws passed w.r.t. government insinuating itself into everything. That's my take on it anyway. Then came Trump and it got lost in the tsunami.

    1. Nothing fades as fast as an originalists' desire for originalism when it starts to look like the original isn't in their favor.

  2. Maybe the govt could remind the Sup Ct that abortion was widely available, and used, AND LEGALLY PERMISSIBLE, at the time of the founding fathers. Josh, would that be Originalist enough for you?

    1. Did they? The brief's Table of Contents doesn't mention anything of the sort. If the government didn't allege that, why not?

      1. Probably because they didn't relish facing the response to that whopper.

        Abortion was only legal until quickening in British colonies, not French or Portuguese. And, why quickening? It was the earliest point at which a pregnancy could actually be diagnosed with any reliability. Prior to that point you could hardly distinguish between abortion and birth control.

        And by the 1880s abortion was illegal in every state, with narrow exceptions.

        But, you know, social evolution only matters so long as it's in the 'right' direction...

        1. Since abortion went from being legal to illegal, does that mean that its proponents were on the wrong side of history?

        2. If you're going to rest your case on the premise that there isn't any long-standing principle of American law that supports a right to abortion, ignoring the 4th and 13th amendments isn't all THAT difficult, after all.

          1. If you support anti-discrimination laws, you can't really pretend to be a supporter of the 13th amendment.

            1. Your broad take on what counts as slavery is not shared by the Court, or most of the country.

              He doesn't really need to pretend anything.

              1. You're begging the question. He's stating that the 13th Amendment prohibits abortion bans, which is not shared by the court or by most of the country, which means we're not appealing to the law or popularity, but to philosophical values.

                1. Oh, so he's wrong about the 13th as part of the right to privacy (probably means 14th) and this is your roundabout way of pointing it out.

                  1. No, he doesn't mean 14th. He is implying that forcing a woman to carry her child to term is enslaving her.

                    1. Maybe, but I'm not sure that it's the only fair reading.

                    2. It's pretty accurate. If the government requires a woman to carry a pregnancy to term in its role of protecting the life of the fetus, against her intention to not do so, this is involuntary servitude. Texas isn't authorized by the Constitution to require involuntary servitude except as punishment for a crime because of the 13th amendment.

                  2. I said 13th because I meant 13th.

              2. Slavers and baby killers always find a way to protect themselves, huh?

                1. If you say so. I'm assuming you're choosing to speak up based on direct personal knowledge.

            2. "If you support anti-discrimination laws, you can’t really pretend to be a supporter of the 13th amendment."

              If you claim to have a functioning brain, you can't make claims like this.

    2. Probably they won't be reminding the court of that because it's not true.

      The standard for an "abortion" is a termination of a pregnancy after the fetus is viable - that is, capable of sustaining life outside the womb. At the time of the Founding, there was no such capability. Births even just a few weeks pre-term had very low chances of survival.

      "Life" was generally defined to start at birth. You weren't even "pregnant" until you felt the baby move. Under that standard, most of what we today would consider an "abortion" couldn't even happen.

      1. Did you miss the whole discussion of abandoning the viability rule in the article? Josh's argument depends on treating all pre-birth abortion as equivalent, so that's what he does.

        1. I didn't miss it but apparently santamonica did. My point (which you also seem to have missed) is that viability was an inherent constraint that shaped the legal standards at the time of the Founders.

          Medical technology has advanced to the point that viability is, at best, a problematic standard. I don't know what the right answer is. But I do know that santamonica's proposed argument won't fly.

          1. "Medical technology has advanced to the point that viability is, at best, a problematic standard."

            It used to be easier? I guess, in the sense that it's so hard to detect viability in a living organism. If it dies, it wasn't viable.

      2. "The standard for an “abortion” is a termination of a pregnancy after the fetus is viable"

        So, are all of the medical procedures that Mississippi attempts to outlaw between week 15 and week 24 not abortions then? It's unclear what you think the controversy in this case is even about by this definition since abortions after viability are incredibly uncommon.

  3. As Lincoln said, "stop misattributing views to famous people like Jefferson and Blackstone - or me for that matter."

    1. To be fair, this is perhaps the only time the Biden administration will argue that individual liberty is important, so some errors in the details are to be expected.

      1. Not true. Gay/Transgender rights are also up there in what they think is important.

        1. And, conversely, they aren't important at all to Biden's opponents.

          1. That's because they're not rights.

            1. Bigoted, disaffected, stomped-into-irrelevance right-wingers are among my favorite culture war casualties.

              And the core audience of the White, male Volokh Conspiracy.

              Carry on, clingers. So far as your betters permit.

              1. You can call it what you want, but the relationship you're in with your partner/husband/boyfriend is not a marriage.

                1. You can stamp your foot all you want, but your definition of marriage is not America's definition of marriage.

                  1. My definition of America is not the current form of this country.

                    1. Swell, GTFO.

                2. Are you as superstitious as you are bigoted and ignorant?

                  Those deficiencies tend to be associated.

                  1. That explains your obsession with not stepping on cracks in the sidewalk, eh?

                3. "You can call it what you want, but the relationship you’re in with your partner/husband/boyfriend is not a marriage."

                  Flaunting the fact that YOU have a partner/husband/boyfriend, are you?

                  I was married once, but I recovered fully.

                  The fact that I don't want a same-sex marriage in no way implies that I want to be told I can't have one.

            2. "That’s because they’re not rights."

              That's YOUR opinion, for anyone who cares.

              Want to guess whether I'm one of the ones who cares what your opinion is?

  4. "First, this Court's decisions recognize a right to "bodily integrity." Casey, 505 U.S. at 857. At the Founding, a person's "uninterrupted enjoyment of his life, his limbs, his body, [and] his health," and "[t]he preservation of [his] health from such practices as may prejudice or annoy it," were considered to have been "vested in [him] by the immutable laws of nature"; "the principal aim of society" was to protect "individuals in the enjoyment of " these and other "absolute rights.""

    What an interesting argument the SG makes against Vaccine Mandates.....

    1. Vaccines preserve health.

      As Washington knew when he mandated them for his troops.

      1. Sometimes they do. Sometimes, they don't. But it's quite the argument the SG makes for choice being allowed in vaccination.

        1. No, they just do. And your OP doesn't talk about choice at all.

          No, your OP just begs the question that vaccines are harmful to your health.

          Which you've already backpedaled from. But quite a telling starting argument. Shows how insane your worldview is.

          1. Oh Sarcastro...

            Does it hurt for you to strawman so much? Or to gaslight so much?

            If we're talking about "choice", what do you think I meant by

            "What an interesting argument the SG makes against Vaccine Mandates," eh?

            1. "what do you think I meant by
              'What an interesting argument the SG makes against Vaccine Mandates,' eh?"

              It seems you're babbling. Trying to link two things together that aren't related.

        2. "Sometimes they do. Sometimes, they don’t."

          Would you mind providing an example of the "sometimes they don't" side of that?

          1. One example would be if you are never exposed to the pathogen you're being vaccinated against. It would be pointless to be vaccinated against smallpox (the first vaccine ever made, incidentally) today, since it has been eradicated.

            Another example is that with the advent of mRNA vaccines, it would be quite possible to produce a vaccine against a protein that does not occur in nature. That would also not "preserve health" in any meaningful way.

            1. I don't think he was speaking of hypotheticals, but rather real-world examples.

              1. The smallpox vaccine is a real-world example. It was the smallpox vaccine that Washington ordered his troops to take. Back then, it made sense to do so, because smallpox was a major threat. Now that smallpox has been eradicated, the same vaccine would do nothing.

                The usefulness of vaccines is context-dependent. A vaccine exists for Ebola. But the Ebola virus is almost entirely localized to Africa and does not have an infection profile that makes it likely to encounter it outside of Africa. Hence, the Ebola vaccine would protect health if you live in Africa or travel to Africa, and would be highly unlikely to have any beneficial effect otherwise.

                1. But is anyone mandating smallpox vaccines in the general population?

                  Your comments are a solution in search of a problem.

                  1. You said vaccines "just do" preserve health. Now you are retreating to asking about vaccines that are mandated for the general population.

                    Are flu vaccines mandated for the general population? COVID-19 is not the flu, but in terms of vaccine efficacy and disease severity, to say nothing of infection and transmission pathways, the Covid vaccine is much more comparable to flu vaccines than MMR or tetanus vaccines.

                    1. Yeah. I'm comfortable saying vaccines just do preserve health.

                      And I'm fine with that no matter how many hypotheticals people throw around.

                      And making a distinction between which vaccines it's okay to mandate and which it's not will be a pretty difficult argument.

                    2. You might be comfortable with it, but wrongly.

                      Vaccines can preserve the public health, if given to somebody who's immunologically naive, but has a non-trivial chance of being exposed to the pathogen.

                      They do diddly squat to preserve it if given to somebody who's already immune, or has no significant chance of exposure.

                      At the same time, they carry a non-zero risk of adverse effects, and the individual who would get those effects is, after all, also a member of the public.

                      So, depending on circumstances, giving a vaccine to any given person can contribute to the public health, be a wash, or actually net damage the public health.

                    3. Yeah, edge cases exist. But your pedantry does not change the cores statement about public health.

                      They do diddly squat to preserve it if given to somebody who’s already immune
                      Unless immunity fades. Which it is looking increasingly like it does.

                      non-zero risk of adverse effects
                      Damn close to zero when compared to what they are warding off, and compared to what they ward off for those who cannot take the vaccine that you spoke of above.

                    4. You'd have a much better case for the vaccine if you'd drop this insane demand that people who've had Covid be treated the same as people who haven't. Biologically, it's nonsense, they're just pushing it for bureaucratic convenience and mainlining the power trip, not for medical reasons.

                    5. As a bunch of people have told you, the issue is evidentiary and administrative. It is easy to prove you got a vaccine on a systematic basis. It is not easy to prove you had covid on a systematic basis.

                    6. Dear Sarcastro,

                      If vaccines "just preserve health"....

                      Please explain the hundreds of cases of vaccine-derived Polio......

                    7. S_0,
                      For all people whose cases have been reported - that 43,000,000 Americans. Their proof of previous infection is clear and systematic. For the 2x or 3x who only had asymptomatic cases. There is no proof that they had COVID. But how can any sane Administration ignore 43,000,000 persons.

                    8. "the issue is evidentiary and administrative."
                      S_0,
                      You can't really believe that line. If EU countries can do it so can the US. Our government does not want to; that is the administrative reason, i.e., politics.

                    9. "As a bunch of people have told you, the issue is evidentiary and administrative."

                      That's what I said: Bureaucratic convenience, not medical necessity. It would cause them extra work to do the medically justified thing. It's not that it's impossible, it's just inconvenient, and their convenience is much more important than any medical issues.

                      That, and the power trip: They're telling people to jump, they don't want people quibbling about whether they really need to jump, you'll damn well jump even if you don't have any need to.

                    10. Don Nico - Why should S_0 start posting anything he really believes now?

                      He complained about people citing hypothetical situations, but his first example was a mandated vaccine for a disease that currently poses only hypothetical risks.

                      He used that example, and then complained that when I pointed out that Gen. Washington's mandate was for enlistees in an army rather than the general public, yet turned around and demanded that someone else ignore his example vaccine because nobody is mandating it for "the general population".

                      I think the only thing we can say for sure is that he has mastered doublethink in the service of upholding the leftist dogma of the day.

                    11. "You’d have a much better case for the vaccine if you’d drop this insane demand that people who’ve had Covid be treated the same as people who haven’t."

                      You'd have a much better case if you had some kind of evidence that treating people who've had COVID-19 should be treated differently from people who haven't, beyond "I want things MY way!', which only counts as evidence for people who are you.

                2. "Now that smallpox has been eradicated, the same vaccine would do nothing."

                  Smallpox has been eradicated in the wild. It still exists in laboraatories.

            2. "One example would be if you are never exposed to the pathogen you’re being vaccinated against."

              How does that work against your health?

      2. When everyone in the country is enlisted in the army and compelled to live at close quarters, you might have a point. I pray we never fall to that arrangement.

        1. Close quarters is the discriminator you want? You mean like colleges and airplanes?

          1. People don't live on airplanes, you fascist.

            1. Agreeing with Washington that vaccines are good doesn't make me a fascist, but way to start with the empty name calling.

              Viruses don't care about where you're domiciled, they care about where you are. And people are on airplanes. And dorms. And at summer camp.

              You know, the places where vaccines for polio and mumps and the like are already required. Unless you're against those now as well?

              1. You are so wrong that it is not worth spending the time to rebut your errors. It would take too long and you have never shown any inclination to learn from being corrected.

                1. "You are so wrong that it is not worth spending the time to rebut your errors."

                  That's a pretty verbose way of saying that you have no rebuttal.

                  1. Your reading comprehension is as bad as any of your arguments -- shamefully bad.

                    1. Such a compelling list of examples you provided!

                    2. And yet you don't deny that I am right.

                      By your own argument, that's just a way of saying that you have no rebuttal.

                    3. "And yet you don’t deny that I am right."

                      An oversight. A person of normal intelligence would have figured out that you are not right.

                      "Your reading comprehension is as bad as any of your arguments — shamefully bad."

                      You are projecting your inadequacies onto other people, and it is extremely obvious that you're doing so. Hint: A tipoff is when you display poor reading skills, then follow it up with a complaint about mine.

              2. No, what makes you a fascist is treating the rights of soldiers during a war as a guide to the rights of ordinary citizens in peace time.

                1. If you think I believe 1700s policies, military or no, should be a guide for current jurisprudence, you don't know me at all.

                  But that precedent deflates originalist arguments unless you can point to something more than AL's random quotes about a 'right to health.'

                  Though a right to health gives me an idea....

                  1. "a right to health gives me an idea…."

                    If you cannot afford a healthy immune system, one will be appointed for you.

                  2. You're the one citing orders Washington issued to troops in the middle of a war, as evidence of what the government can demand of civilians in peace time. Not me.

                    Own it, it's your own argument.

                    1. You're confusing "what the government can demand" for "what the government can demand, and expect compliance" again.

            2. He didn't say that, you moron.

              1. He certainly implied that by giving it as a rebuttal to my argument that citing Washington's army is only persuasive in a similar living situation.

                1. You need to learn that what you inferred is not necessarily what was implied.

      3. "Vaccines preserve health... they just do."

        This is obviously a stupid assertion. Strong adverse reactions to vaccines are an indisputable fact, and the only question is how many deaths they cause, not whether they do.

        I don't actually pretend to know the answer to that question, but here is the first of a series of articles on the subject: https://roundingtheearth.substack.com/p/estimating-vaccine-induced-mortality

        1. That article is terrible. For example, citing the number of deaths reported in VAERS is a sign of someone who fundamentally misunderstands it. Doctors are required to report all adverse events after a vaccination, regardless of the cause of the event. Remember the arguments last year over "died with Covid" versus "died from Covid"? It's almost exactly the same thing, except the people claiming "died with Covid" then are now arguing "died from vaccine".

          If you look closely enough at VAERS data, you will find me as one of the de-identified cases of an infected arachnid bite after being vaccinated. I don't think the vaccine made me more attractive to that tick, or increased my risk of infection; there is no plausible mechanism for either, and I probably just got unlucky and got bitten this summer rather than before Covid. But the event is recorded in VAERS so that people who know how to do statistical analysis can figure out if there is some subtle trend. The article you linked to was not written by such a person.

      4. Washington also denied his soldiers the right to choose their duties, the right to vote on their leaders, the ability to travel at will, to buy or sell their equipment, the right to free speech, or even the basic right to preserve their lives by avoiding dangerous situations.

        Try any of those things with the general populace, though, and you're just a tyrant. It's almost as if the military in the middle of a war give of some rights in the process. Who would have ever thought of that?

        1. He also denied them boots at Valley Forge.

    2. The state only has so many tools to battle a pandemic....that has broad public health implications. So, (1) public health threat, (2) zero economic burden, and (3) extremely low risk of serious side effects. Now contrast that with abortion restrictions: no public health crisis, significant economic burden placed on the woman alone, and a greater risk of health complications from taking a pregnancy to term than in aborting early. The intrusion on bodily autonomy should require a significant burden to be met by the state with a clear cost/benefit analysis. Complete restriction of abortion is not persuasive....

      1. You might see a pregnancy as largely an economic question, but many of those who disagree with you see it as a second life being involved.

        1. Just like the large number of natural miscarriages that occur before implantation and the number after....it's really none of your business. Have as many children as you want....offer to adopt.....help single women who do want to take a pregnancy to term.....you can't force another person to share your morality when it's not a public matter. You can't assume custody of the fetus....that attenuates your standing.

          1. Do you also think that Britney Spears's conservator could procure a 162nd-trimester abortion because that isn't the business of the general public?

            We don't criminalize accidents, although we might criminalize negligence that causes it risks an accident. We do criminalize intentional acts.

            The "viability" framework for analysis is fraught with problems. It is extremely dependent on what medical technology is available. (And how available does it have to be?) That changes over time. Science has developed functioning artificial wombs for lambs -- if that becomes possible for humans, do your objections evaporate?

            1. "Do you also think that Britney Spears’s conservator could procure a 162nd-trimester abortion because that isn’t the business of the general public?"

              Britney has an attorney. I would expect that attorney to contest the issue for her.. with no help needed from me (or you, or anyone else.)

              "The 'viability' framework for analysis is fraught with problems."

              Reality is like that.

              1. "Britney has an attorney."

                Would you be happy with a law that required that an abortion wait until an attorney represents the fetus and has the opportunity to argue the matter before a judge? If not, why is representation by a lawyer the important factor?

                1. "Would you be happy with a law that required that an abortion wait until an attorney represents the fetus and has the opportunity to argue the matter before a judge? If not, why is representation by a lawyer the important factor?"

                  No.

                  Why is representation by a lawyer the important factor?
                  Because it isn't.
                  Britney is an adult human being. She has the rights of an adult human being, except for the ones she does not have because she was placed under a conservatorship, which is a legal procedure. She needs a lawyer to navigate the law of conservatorship. Britney has earned and continues to earn a good amount of money. That's what one of the conservatorships she lives under is intended to conserve.

                  1. If representation by a lawyer isn't an important factor, why did you bring it up?

                    Are you next going to say that the rights of an adult human being are not the important thing, and that's why it is not okay to have a sixth-trimester abortion of a child right months old?

                    1. "If representation by a lawyer isn’t an important factor, why did you bring it up?"

                      I explained why in the comment where I brought it up. If you didn't get it, try adding some IQ points, and then read it again.

                      "Are you next going to say that the rights of an adult human being are not the important thing"

                      No, that would be the OPPOSITE of what I AM saying.

          2. Your logic applies equally to babies who have been born.

            1. A post-viability post-birth infant can be cared for by anybody who is willing to do it.

              A pre-viability, pre-birth fetus cannot.

              1. So then, you acknowledge that the argument for abortion disappears as technological advances make viability outside the womb earlier?

                1. I don't think you appreciate the extraordinary technological advancement that will be required to provide the artificial development of lungs away from the mother. And let's not even get into pushing the boundary beyond that.....and what those costs might entail....and who exactly will be willing to spend it to "save" a fetus...especially one that might be battling other developmental hurdles. Right now...this is science fiction...call me in 75 years when we are closer...and I'll beam over and discuss,

                  1. No, you're the one who doesn't appreciate that they've already got it working in sheep. So, yeah, extraordinary technological development, but it's already pretty much a done deal, the Chinese could probably start the human experiments tomorrow, if they didn't last year.

                    1. "you’re the one who doesn’t appreciate that they’ve already got it working in sheep."

                      If it's good enough for sheep, it's good enough for Brett's (would-be) offspring.

                    2. First, how early of a premature sheep can be supported....and how does this correlate with humans? I'm guessing you know nothing about the physiology or the limitations. My guess is that this is targeting premature babies on the order of 22-23 weeks....and that we are no where near pushing beyond that in an attempt to harvest fetuses. Most abortions remain first trimester. Sheep wombs are irrelevant to >90% of cases.

                2. "you acknowledge that the argument for abortion disappears as technological advances make viability outside the womb earlier?"

                  In a word, duh.

                3. I think we all agree that the state's interest gets more pronounced at viability. If technology reduces that point, so be it. Still, I somewhat wonder where exactly this thought-exercise is going? There's a significant ethical question whether society should be going down a path of harvesting and incubating fetuses...with perhaps the bigger question of who will pay for what will undoubtedly be a hugely expensive enterprise. Heck, right now abortion opponents are hesitant to provide pregnant women with health care, child support, and day care....are they really willing to spend hundreds of thousands of dollars to extract premature babies? The science seems aimed at providing better odds for extreme premature babies now....meaning ones in the 22-23wk arena...not to try and save 18wk fetuses for instance.

                  1. "I think we all agree that the state’s interest gets more pronounced at viability."

                    In the sense that it doesn't change at all, sure. The state has an interest in preserving the life of its future citizens. But that interest doesn't change when the fetus is viable. It was there before, and it's there after. What has changed is the relative priority of the state's interest compared to the fetus' hostesss' interest in walking away from the fetus.

              2. Post viability, an abortion isn't necessary to end the pregnancy anymore. It can be ended by a live delivery, instead. At that point the purpose of the abortion ceases to be ending the pregnancy, and becomes ending the life of a viable infant.

                1. "Post viability, an abortion isn’t necessary to end the pregnancy anymore. It can be ended by a live delivery, instead"

                  No kidding? Really?

          3. Your assertion that abortion "[i]s not a public matter" has already been refuted. Stop pretending that you can just keep on asserting it as the basis for your sad excuse for an argument when it's merely an exercise in circularity.

            1. Was your ED a "public matter", as well?

        2. "You might see a pregnancy as largely an economic question, but many of those who disagree with you see it as a second life being involved."

          So cats get nine lives, and pregnant women get two? While the rest of us are still stuck with the one each that has been around since antiquity?

          1. You really are terrible at understanding anyone who disagrees with you. The perceived second life is the unborn child's, not the mother's.

            1. You really are bad at detecting sarcasm. Try adding some IQ points and starting over.

              1. Most sarcasm makes some kind of sense. Your comment, as usual, was essentially incoherent.

                1. The fact that you cannot make sense of something does not imply that i makes no sense. It implies that you are stupid. Implication confirmed.

          2. You know perfectly well that no one is asserting that fetus' life is a "second life of the mother". You are remarkably blasé about being witnessed saying idiocies.

            1. "You know perfectly well that no one is asserting that fetus’ life is a “second life of the mother”."

              Do you know that perfectly well, as well? "No one" includes me.

  5. I think the long established principles are that we don't allow the government to intrude in the home and make decisions about family planning and personal health care. The fetus is not a separate individual. The state cannot assume custody of the fetus absent the woman. A separated fetus will die prior to viability. The only way around this is to presume that the primary role of women is to carry pregnancies to term...trumping all concerns for mental, economic, physical, and social well being. This strikes at equal protection of controlling one's life. We no longer use quickening to justify anything, why should we use 18th century stereotypes about women to give the state more ability to intrude into hugely personal and impactful decisions....like becoming a mother? Society can always encourage an ideal....but it's poor at running people's lives...especially when it shows so little interest in the costs it's imposing.....

    1. Jeez. That "The state cannot assume custody of the fetus absent the woman" does not logically imply that "The fetus is not a separate individual." And, no, deciding that the fetus is a separate individual does not remotely require one to "presume" that the primary role of women is to carry pregnancies to term. Why aren't you embarrassed to be seen saying such idiotic things?

      1. " That “The state cannot assume custody of the fetus absent the woman” does not logically imply that “The fetus is not a separate individual.” And, no, deciding that the fetus is a separate individual does not remotely require one to “presume” that the primary role of women is to carry pregnancies to term. Why aren’t you embarrassed to be seen saying such idiotic things?"

        Jeez, indeed. Such a shame that your debate opponents won't use exactly the stupid arguments that you're prepared to counter! No problem, just pretend that they did, and proceed accordingly.

        Start by resolving the question of how, exactly, the state is to know when any of its female citizens has become pregnant, if she chooses not to tell them? May they inspect her insides to check? Whoops, never mind that 4th amendment thingie, it's not really that important...

  6. In their view, a woman's interest in deciding for herself whether to carry a pregnancy to term merits no greater constitutional protection than social and economic rights that trigger rational-basis review.

    Or, social and economic rights have the same level as abortion because they should receive the strictest scrutiny before government atrod them.

    I think the left would give up abortion before giving up detailed economic controls. The former is just for votes to get elected; the latter is where the corruption profiteering lays, the reason politicians go into government worldwide and throughout history.

    1. I can't (and don't claim to) speak for the left but I'll point out that the same people who were against an eviction moratorium that came from the CDC are suddenly pro-eviction moratorium now that it's coming from the state of Texas.

        1. You need a source that Republicans are Republicans?

      1. I know you mean that sarcastically, but that could be an intellectually coherent position, since the federal government is one of delegated powers, and the state governments have, (Potentially, depending on the details of their own constitutions.) every power that was neither delegated to the federal government, nor denied the states.

        The two levels of government have different powers, and it is frequently the case that a state government can constitutionally do something the federal government could not.

        1. Regardless, I haven't seen any conservatives come out in favor of whatever Texas is doing, although I can't find any news source on it at all.

          1. Presumably the relevant connection is that abortion is like an eviction, and so this law is conceptually like an eviction moratorium in some ways. But that is a bad analogy, both for the sovereignty issues that Brett points out and because the CDC's eviction moratorium is widely recognized as not having a good basis in statutory law, whereas this is statutory law.

            1. "But that is a bad analogy, both for the sovereignty issues that Brett points out and because the CDC’s eviction moratorium is widely recognized as not having a good basis in statutory law, whereas this is statutory law."

              This is statutory law except for the technicality that unconstitutional statutes are void ab initio.

              1. Whatever point you think you are making does not redeem your terrible analogy at all. It just drives home The point that your arguments are as bad as your reading comprehension -- shamefully bad.

                1. Gosh, I'm really sorry you want to project your inadequacies on me, but, no thank you. You can keep them for yourself.

          2. "... I haven’t seen any conservatives come out in favor of whatever Texas is doing..."

            Your silo of information sources must be deeply restricted if you can't find any conservatives in favor of SB8.

            1. Republicans aren't conservative enough for you?

            2. You have to work on the idea that taking the side that government should be making important decisions for you is "conservative", admittedly.

        2. If only there were some part of the Constitution that said "say, you know that Bill of Rights, that limits the power of government? That applies against the States, too.

          Do you have an entire body of law in your mind that evolved after the 14th amendment was never ratified?

  7. " Indeed, the SG seems to agree with Sherif Girgis that there is no half-loaf approach. "

    I doubt the lawyers at that office have found, or should find, much common ground with Sherif Girgis (or anyone much like Sherif Girgis). It seems wrong to imply that might occur.

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