Breaking: Motions Panel Grants Temporary Administrative Stay of S.B. 8 Ruling

United States directed to file response by Tuesday

This evening, a Fifth Circuit motions panel (Stewart, Haynes, and Ho) granted a temporary administrative stay of the S.B. 8 ruling. This ruling came a few hours after Texas filed the emergency motion with the court of appeals.

Now: Texas's 6-week abortion ban law, SB 8, is in effect again for now — the 5th Circuit has granted a temporary, administrative stay of this week's preliminary injunction (which halted enforcement of SB 8) to consider the state's request for a longer stay pending appeal pic.twitter.com/wdTIH5emjm

— Zoe Tillman (@ZoeTillman) October 9, 2021

The United States was directed to file a response by Tuesday, October 12 at 5 pm. Presumably, the temporary administrative stay will last at least that long, if not longer.

As of now, S.B. 8 is back in effect. Clinics that performed abortions over the past 48 hours may face liability in future suits.

Comments

[Gandydancer]

Pitman's decision was obvious self-discrediting nonsense, but SB8 is a nothingburger unless SCOTUS overturns Casey, which it won't. No, there is no ban in effect. As long as you're willing to undertake to respond to any suit against you any abortionist can follow Dr. Braid's example and announce it in the papers with no real fear of paying any damages or of being enjoined from performing the next one or, soon, even bothering to get competent representation. Just cut-and-paste.

[not guilty]

Gandydancer, you are a liar and the truth ain´t in you. SB8 purports to prohibit performance of an abortion in Texas when embryonic cardiac activity is detected, which occurs at about six weeks LMP. That is a ban.

Do you know what a chilling effect is?

[Gandydancer]

The only chilling effect of SB8 is that it has made abortionists acutely aware of something that is already true -- if Casey is overturned all the abortions they have already performed will be subject to prosecution, limited only by the statute of limitations. And that applies not only to the civil sanctions in SB8, but to all the criminal sanctions that are still black letter law in Texas. This educational effect is not subject to injunction.

And, SB8 does not penalize post heartbeat abortion unless Casey is overturned and that makes it legal for TX to do so. It says this explicitly. What is this, the fifteenth time I've said this to you? Yet you continue to pretend the law doesn't say that. Pathetic.

[not guilty]

I have asked before when and where you got your legal training, if any, and you very conspicuously refused to answer. I see that you are simply making shit up.

If Texas courts follow federal constitutional law, Casey and Roe afford a defense to damages liability under SB8. That does not prevent a provider from having to defend against multiple lawsuits, with the attendant stress and expenditure of resources. The legislature recognized and no doubt intended the in terrorem effect of its enactment.

Abortion providers have almost completely shut down in Texas. Don't tell me SB8 does not have a chilling effect.

[wreckinball]

Yes, laws prohibiting murder are supposed to have a chilling effect on murder. So prior to the baby actually being a living being with a heartbeat you still have the right to kill.

[David Nieporent]

if Casey is overturned all the abortions they have already performed will be subject to prosecution, limited only by the statute of limitations. And that applies not only to the civil sanctions in SB8, but to all the criminal sanctions that are still black letter law in Texas.

I repeat: that's not how due process works.

And, SB8 does not penalize post heartbeat abortion unless Casey is overturned and that makes it legal for TX to do so. It says this explicitly.

It does not. See 171.209(a), which limits the ability to assert Casey as a defense even if Casey remains in effect, and (c), which limits a state court's ability to apply Casey as a defense, even if Casey remains in effect.

[not guilty]

I suspect that you and I are each casting pearls before swine. I suppose it is worthwhile so that other readers are not mislead by Gandydancer's bullshit.

[Sarcastr0]

He's a pro-mute.

[Gandydancer]

I'm indifferent to individuals who adopt the ostrich defense against their own refutation.

[IPLawyer]

Pretty sure he's just David Behar

[Gandydancer]

I repeat: that’s not how due process works.

I don't actually recall your having made this vacuous assertion before, but if you did it was completely indeterminate in meaning then, too. I repeat, if SCOTUS overrides its own precedent in Casey then it will have declared that the Constitution does not require the scheme in Casey. From your empty declaration I can't even tell why you think I am wrong about what will ensue.

See 171.209(a), which limits the ability to assert Casey as a defense even if Casey remains in effect, and (c), which limits a state court’s ability to apply Casey as a defense, even if Casey remains in effect.

Again, your are making assertions whose meaning cannot even be determined. What See 171.209(a) actually says in relevant part is

(b) A defendant in an action brought under Section 171.208 may assert an affirmative defense to liability under this section if:
(1) the defendant has standing...; and
(2) the defendant demonstrates that the relief sought by the claimant will impose an undue burden on that woman or that group of women seeking an abortion.

Which limits what? What do you imagine that Casey denies that this does not also deny? As to,

...and (c), which limits a state court’s ability to apply Casey as a defense, even if Casey remains in effect

...what 171.209(c) says, in full, is

(c) A court may not find an undue burden under Subsection (b) unless the defendant introduces evidence proving that:
(1) an award of relief will prevent a woman or a group
of women from obtaining an abortion; or
(2) an award of relief will place a substantial
obstacle in the path of a woman or a group of women who are seeking an abortion.

Again, what does Casey demand that this does not allow?

[David Nieporent]

I repeat, if SCOTUS overrides its own precedent in Casey then it will have declared that the Constitution does not require the scheme in Casey. From your empty declaration I can’t even tell why you think I am wrong about what will ensue.

One cannot retroactively prosecute someone for doing something that the courts said was not a valid crime, even if the courts later change their mind and decide that it is a crime. The fiction that the law was always that way may be applied in a civil context, but not in a criminal one.

Again, your are making assertions whose meaning cannot even be determined. What See 171.209(a) actually says in relevant part is

…and then you proceed to inexplicably quote 209(b).

Again, what does Casey demand that this does not allow?

This was my error; I meant to cite (d), rather than (c), as the provision that limits a state court's ability to apply Casey. (To be sure, (c) also purports to limit a state court's discretion, but I'm not sure it says anything substantive enough to matter.)

[TwelveInchPianist]

"The fiction that the law was always that way may be applied in a civil context, but not in a criminal one."

This sounds a little like Blackman's writ of erasure fallacy. If courts say something isn't a valid crime, they can issue an injunction or a declaratory judgement, but that's only binding on the parties.

Other courts hearing cases may be bound by stare decisis, but if they're not, there's no doctrine providing protection to a defendant relying on stare decisis. Maybe there should be, buy there's not.

This is all because you guys in the legal profession haven't figured out whether or not judges make law or find existing law.

And why would Due Process, in this context, apply differently in civil vs. criminal contexts.

[ReaderY]

It’s what the Ex Post Facto clause says.

[Lee Moore]

I don't think it is. The Ex Post Facto clause applies explicitly to ex post facto statutes, not to changes in judicial interpretation that affect the validity of pre-existing statutes.

However I believe there's some case law (Bouie v Columbia) which magics up a Due Process Clause protection from the retrospective effect of "unforseeable" changes judicial opinion. Whether a change of judicial opinion on Roe is "unforseeable", depends I suppose upon your foresight.

[TwelveInchPianist]

"but to all the criminal sanctions that are still black letter law in Texas."

Texas is permanently enjoined from enforcing the prior laws, But SB8 could be enforced, and criminal sanctions can be enforced in other states.

Due process doesn't entrench precedent from previous cases.

Of course, these reliance interests can be an argument for not overturning Roe and Casey.

[ReaderY]

The whole point of the Ex Post Facto clause is to make sure that people cannot be prosecuted for conduct that was legal at the time.

When there is a major change in the law, the new boss cannot get revenge on the old boss for what the old boss did at the time.

That principle — no revenge for the past, changes in the law are only prospective — lies at the very heart of constitutional order.

It is essential to ensuring — indeed, permitting the possibility of — peaceful changes in regime.

If the current regime knows the new one will use the process of law to imprison or execute it for conduct it thinks should have been crimes, it will fight harder to remain in power.

[kkoshkin]

Why would a clinic that performed an abortion while the restraining order was in effect possibly face liability?

[Gandydancer]

The restraining orders in effect against criminal prosecution, and any that might be somehow effected against bringing civil suit, don't affect the criminality of the act itself. With Casey overturned those restraining orders must follow and suit/prosecution can proceed, subject to the statutes of limitations. When SCOTUS overturns precedents you don't get to claim reliance, that I've noticed.

[not guilty]

Roe v.Wade enjoined enforcement of Texas criminal abortion statutes. Planned Parenthood v. Casey did nothing to disturb that state of affairs. If Roe and Casey are overruled, the ex post facto clause would bar prosecution of abortions performed while Roe and Casey remained in force.

[Gandydancer]

Ex post facto is most typically used to refer to a criminal statute that punishes actions retroactively, thereby criminalizing conduct that was legal when originally performed. Two clauses in the United States Constitution prohibit ex post facto laws:
Art 1, § 9
This prohibits Congress from passing any laws which apply ex post facto.
Art. 1 § 10.
This prohibits the states from passing any laws which apply ex post facto.

https://www.law.cornell.edu/wex/ex_post_facto

Asshole, your ipse dixit is once again a turd, not a pearl.

Neither TX's pre-'73 abortion laws nor SB8's provisions will apply to abortions that take place before their passage. Duh.

SCOTUS decisions don't erase laws. They can be used, while they remain good precedent, to stop enforcement, but the LAWS remain in force unless repealed. Any abortionist who performs an abortion now is under notice that what he is doing is illegal and subject to punishment and damages should the obstacles to proswecution and suit be removed. He exercises his current impunity at his own risk.

[jb]

Although it's a bit of the inverse, it's hard to square this view of the law with Edwards v. Vannoy. If people can be stuck in jail based on the state of the law at the time, it's hard to see how you'd be able to retroactively criminalize/prohibit behavior that was understood to be legal at the time.

[JasonT20]

You are right that courts do not "erase laws" from the books. But if a law has been declared unconstitutional and is enjoined from being enforced, then people are "under notice" that the behavior that it prohibits is legal. You are wrong that the laws remain "in force" when court decisions enjoin them from being enforced. Get it now?

[David Nieporent]

SCOTUS decisions don’t erase laws.

You've been reading far far too much Blackman. I reiterate that this just isn't how it works. Any abortion provider who performs an abortion now is under notice that what he is doing is legal. Roe/Casey are not mere "obstacles to prosecution." They are substantive rulings that performing the abortions in question isn't a crime.

A court cannot say, "Ha, ha, tricked you. We told you it wasn't a crime, but after you did it in reliance on that ruling, we changed our mind and now we can prosecute you."

[ReaderY]

Not so. The Ex Pist Facto clause may not aply to every judicial decision on details of procedure or rules of evidence.

But it definitely applies to the entire existence of a crime. If condict is not a crime at the time committed, it cannot be prosecuted.

So a judicial decision that restores an existing invalidated statute does not make it applicable to any conduct that occurred before that decision.

Otherwise Congress could just pack the court anytime they wanted to stick it to the previous regime.

I think the Supreme Court would not take away this benefit of law, for its own safety sake.

[TwelveInchPianist]

"If Roe and Casey are overruled, the ex post facto clause would bar prosecution of abortions performed while Roe and Casey remained in force."

The ex-post facto clause bars ex-post facto laws, not ex-post facto constitutional interpretation. All constitutional interpretation is ex-post facto.

[not guilty]

SB8 purports to remove reliance on any judicial decision, in force at the time of the abortion but subsequently overruled, as a defense to liability under the Act. That provision is of dubious legality.

[Gandydancer]

So you'd like to imagine. You are full of baseless imaginings, I've noticed.

It's not just SB8 that can be applied to newly-discovered-to-be unprotected by the Constitution abortions. The criminal statutes would also be awakened.

[not guilty]

It is essential to Due Process that a statute give fair warning of what conduct is prohibited. The current state of federal constitutional law is that pre-viability abortions are protected. An abortion provider cannot, consistent with Due Process, be required to speculate at his peril whether Roe and Casey will in the future be overruled.

[Krayt]

Any person should be able to go to the government and say, "I plan to perform this action. Is it legal or not?" and get a definitive answer.

This is also why I am opposed to laws where, when this is done, government says, "We'll see what the effect is and then decide."

[Gandydancer]

Any person should be able to go to the government and say, “I plan to perform this action. Is it legal or not?” and get a definitive answer.

TX has always been clear in its answer. SB8:

SECTION 2. The legislature finds that the State of Texas
never repealed, either expressly or by implication, the state
statutes enacted before the ruling in Roe v. Wade, 410 U.S. 113
(1973), that prohibit and criminalize abortion unless the mother's
life is in danger.

If SCOTUS has introduced uncertainty by overstepping its bounds then that is where you ought to direct your complaint.

[Lee Moore]

Any person should be able to go to the government and say, “I plan to perform this action. Is it legal or not?” and get a definitive answer.

It's a nice idea in theory, but in practice it kinda sucks.

First, who's "the government" ? Presumably you don't mean the Executive branch - "Hey Mr Trump, do you agree that it's legal for me to demolish the Facebook headquarters to build a new golf course ? And it's legit whatever any court may say in the future, evah ?"

So presumaby you're looking for an option to get a declatory judgement off the court on anything you might be thinking of doing. Well, first it's going to have to be SCOTUS cos you can't have lower court binding SCOTUS. SCOTUS has currenty got into the habit of hearing about three and a half cases a year, even on real active cases and controversies, and it shows a strong preference for punting even those. So good luck with that.

But even if you could kick SCOTUS out of its slumber and get them to put in a full working week on declatory judgements, who's going to be arguing the other side of the case ? Even now people drum up fake controversies so that they can come to a nice little court adjudicated settlement so that the can bind the government to something the government wanted to do anyway - so badly that it hunted down a pro forma plaintiff to sue it. Your going to get that on steroids with a scheme to "preclear" things with the courts.

A better - if only partial solution - would be to impeach all those judges who think its OK to pull stuff from their rear ends so as to arrive at the answer they prefer, citing "changing circumstances", "societal growth", "emerging consensuses" and "inherent purposes".
Replace them with a pile of totally anal textualists, whose hearts start fibrillating at the mere mention of "living constitutions."

That way at least the citizen (or the citizen's lawyers) have some way of predicting how the courts will eventually come down, rather than simply awaiting random thunderbolts from the Olympian Gods.

[Brett Bellmore]

I'm fairly pro-life, and certainly hope that Roe and it's offspring get overturned. But 'not guilty' has it right, by my understanding: That provision of SB8 is almost certainly going to be struck down.

Do you really imagine the federal courts are going to say that you can be legally liable for doing something the federal courts say is legal, while they're saying that? Don't tell us what you think those courts should rule, do you expect that they WILL rule that way?

[Gandydancer]

Go back to what I said at the top before inventing a strawman.

[Brett Bellmore]

What I'm saying is that there is basically no chance the federal courts will allow liability to attach to conduct performed during a time when they were saying the conduct was constitutionally protected, even if they later change their minds about that protection.

This isn't a statement about the law, either in this world or an ideal world. It's my prediction of what the courts will do.

[David Nieporent]

It’s not just SB8 that can be applied to newly-discovered-to-be unprotected by the Constitution abortions. The criminal statutes would also be awakened.

"Awakening" criminal statutes retroactively is unconstitutional.

[Rev. Arthur L. Kirkland]

Voting rights seems the issue most likely to end the filibuster, abortion the issue most likely to cause enlargement of the Supreme Court.

There are several other candidates in each context, though, so each precipitate is more uncertain than the result.

[IAdmitIAmCrazy]

Is it possible to link directly to original judicial documents instead of secondary sources?
At this moment we have a temporary stay of a temporary injunction which might be lifted in a few days time. Too many people will read too much substance into it. That might have been justified when SCOTUS punted the first time on Texas SB8 but without reading the two pages myself, I have no clue.

[not guilty]

There is a link to the Fifth Circuit order in the comments to the previous thread.

The appellate court granted a temporary administrative stay pending consideration of the state's motion for an emergency stay pending appeal of the trial court's preliminary injunction, and the court ordered a DOJ response to the state's motion by 5:00 p.m. on Tuesday, October 12.

That is all the appellate court ordered.

[Gandydancer]

What document(s) do you want?

Here's the one the turd mentions: https://reproductiverights.org/wp-content/uploads/2021/10/DOJ-TX-emergency-stay.pdf

Here's another:
http://cdn.cnn.com/cnn/2021/images/10/08/texas.pdf

Or put "US v Tx 21-50949" in your search engine and see what shows up.

[Commenter_XY]

A question that Professor Blackman hopefully sees and answers: In what other areas of life can the SB8 statutory construction be used? Somebody very carefully thought through each way the law could be challenged, and designed SB8 to thwart that remedy. The person who devised this is very, very smart. I don't ever remember a law being passed that rocketed up to SCoTUS so quickly, and a roundtrip through federal district and circuit courts the following week or two.

But my question to Professor Blackman is whether the statutory framework of SB8 will be replicated/modified to address other social/legal/political issues. In TX today, it is about abortion. But what social/legal/political question might it be in CA, NY, NJ? I ask the question because, as a citizen, I am extremely concerned how this SB8 statutory construction will be used going forward.

[Rev. Arthur L. Kirkland]

Not bad for a clinger. This is ‘top of the Delta pledge class’ thinking.

[Gandydancer]

It's not hard for a clinger to do better than you, you empty bag of wind. I can think of only one occasion on which you provided a real nugget of information, when you linked to a case where EV had argued for a client to remain anonymous. And I've now seen what seems like hundreds of your emptily-insulting declamatory posts.

[Brett Bellmore]

I have some concern in that area, too.

SB8, quite obviously, is nothing but a vehicle to reach the Supreme court. It's having a chilling effect on the exercise of this pseudo-right, but a similar statute could chill the exercise of real constitutional rights.

However, I don't expect that chilling effect to last long, because this case will, in fact, rocket straight to the Supreme court, and be resolved one way or the other fairly quickly. And I don't expect that resolution to be particularly friendly to this approach, even if the Court does roll back Roe.

[Currentsitguy]

Should SB8 stand, I'd love to see the approach used to go after those who are using the Heckler's Veto and Cancel Culture to silence those who engage in speech they don't like.

Try to silence/cancel a student, professor, or journalist who doesn't tow the woke line? Welcome to bankruptcy court.

[JasonT20]

What would stop the "cancel culture" crowd from using a law like this to silence people saying things they don't like? The whole problem with this approach is that it allows government to get around constitutional rights. Even if there are those that you would like to target with this kind of approach, that doesn't stop it from being used against you or people you agree with.

[Currentsitguy]

Considering how people are being silenced already, at least it would arm them with the ability to make it painful.

[John F. Carr]

Freedom of speech has a special status in constitutional law. You can raise a facial challenge to an overbroad law restricting speech when you would only be allowed an as-applied challenge to violation of another right. I think the analogy of an anti-gun version of SB8 is a better one.

[Commenter_XY]

Hmmmm....interesting = I think the analogy of an anti-gun version of SB8 is a better one

[Currentsitguy]

I'm not talking about restrictive laws. I'm talking about incidents like this:

https://jonathanturley.org/2021/10/09/chicago-journalist-cancels-appearance-with-blistering-response-to-depauls-student-editors-and-faculty-advisor/

and making these dangerous fool pay a heavy price for their shenanigans.

[Brett Bellmore]

"What would stop the “cancel culture” crowd from using a law like this to silence people saying things they don’t like?"

Well, for one thing, they'd need to get the law passed by the legislature, which could be pretty tough when a lot of what they're trying to silence is actually majority opinion.

[Rev. Arthur L. Kirkland]

Do you reside in the part of Pennsylvania that might as well be in Alabama or Oklahoma? Do you recognize that advanced states could, if this method works, use it in the contexts of guns, racism, religion, gay-bashing, and other conservative pastimes?

[Currentsitguy]

I really don't want to see anything, including SB8 stand, though the way it is crafted, I think it is going to be difficult to stop.

I suppose sarcasm doesn't show through well in text, but I just consider the 1st Amendment so sacrosanct that I think more aggressive measures are going to be required to defend it, so a little bit of "what comes around goes around" does not seem out of the Pale to me.

Bottom line is if, and that is a big IF, we are going to go down this path, might as well see it put to good use.

As for my location in PA it's the Pittsburgh region, though a quiet and peaceful spot on 20+ acres up near the Allegheny National Forest, with no neighbors and good, dark skies for Astronomy would be a dream. I'd love to not see anything when I look out any window but trees and wildlife and a trip to the nearest grocery store be an hour+ round drive.

[Rev. Arthur L. Kirkland]

Twenty or twenty-five miles from Pittsburgh in any direction is the worst part of '50s Appalachia, known as Pennsyltuckybama or Pennsyltennessippi. Those backwater communities have little or nothing to do with Pittsburgh.

[Currentsitguy]

The Ohio River valley is the heart of what makes Pittsburgh Pittsburgh. Steel may have left long ago but the character of the area is the same. Only fools and idiots live right in the heart of any city. Too many people, too noisy, too crowded, too packed together, too much crime and violence, too much traffic. Looking out my window right now at someone who has gone for a Saturday horse ride down below my Kiwi vines, Wild Andean Tomatoes, and cold tolerant Musa Basjoo bananas. Bunch of kids went by earlier in a hayride as part of the weekly antique tractor parade around the township.

Still it's too crowded for my liking. Seeing other houses when I look outside gives me the creeps. All these houses has been bringing bears in to rummage through people's garbage. Frankly I like my dog and cats better than most people. We've taken to carrying a shotgun loaded with pepper balls and bean bags when we go into the garden just to be safe. I don't want to have to kill one, but I won't hesitate to discourage them from coming too close. It's getting near time when I think it will be better for all concerned to head north, out into the wilderness. We can get Starlink Internet to conduct our business, and spent our time watching the world burn from a safe and quiet distance.

[wreckinball]

Roe v Wade explicitly allows states to put restrictions on abortions. The Texas law does not conflict with that ruling

[Jason Cavanaugh]

You're either being disingenuous or ignorant.

Which would you like to claim? It's Saturday morning, so you can use your 2-for-1 coupon if you'd like and say 'both' as long as you ask nicely.

[wreckinball]

WTF is your claim dumbass? You forgot that one.

[Jason Cavanaugh]

You're either pretending that arguments about Roe v. Wade are the only issues with S.B. 8, in which case you're being disingenuous, or you're actually claiming that a conflict with Roe is the only problem, in which case you're ignorant.

Pretending that you don't know what I'm talking about, or that you aren't doing either, is disingenuously ignorant.

[IPLawyer]

F-

[JasonT20]

Actually, no. Roe was fairly limiting in what restrictions would be allowed. It was Casey v Planned Parenthood that changed this by creating the "undue burden" language that states took advantage of and that the Supreme Court rarely challenged them on. That's how you ended up with so-called TRAP laws in so many states that made it harder to get an abortion with no real medical benefits. (TRAP = targeted restrictions on abortion providers) They do this by making it harder and more expensive for clinics to stay open.

There are also medically unnecessary laws meant to shame and otherwise discourage women from seeking an abortion as well. Waiting periods, ultrasounds (in some cases the woman has to look at it and listen to the heartbeat), scripts that doctors are forced to read to the patients. South Dakota even requires women to get "counseling" from anti-abortion "pregnancy crisis centers". Are states going start making people listen to anti-vaxxers saying that COVID vaccines have microchips in them before they can get vaccines that they want?

The Texas law absolutely conflicts with both Roe and Casey. A ban on abortions after 6 weeks with only the woman's life being at risk as an exception is more than an "undue burden".

[wreckinball]

Casey is built on Roe. And nothing you said refutes my point.

Yea, making it a little inconvenient to end of life is not a problem. Was that your point because you seem to be claiming the opposite?

[Brett Bellmore]

"There are also medically unnecessary laws meant to shame and otherwise discourage women from seeking an abortion as well. Waiting periods, ultrasounds (in some cases the woman has to look at it and listen to the heartbeat), scripts that doctors are forced to read to the patients."

So, now informed consent is actually a civil rights violation. Because a women might not get the abortion if she actually sees her baby on an ultrasound, listens to their heartbeat.

It's true: The widespread adoption of fetal ultrasound was a tremendous blow to the abortion industry, abortion was much easier for women to rationalize when they couldn't see what was growing inside them. Does this somehow make showing them a civil rights violation?

[Jason Cavanaugh]

You clearly misunderstand the concept of "informed consent."

Do you think that they are unaware of what an abortion is without the ultrasound?

Of course not. It's nothing more than an attempt to make a difficult choice more difficult by weaponizing emotion, with no legitimate medical need other than coercion and manipulation.

That bullshit doesn't fly around here, Brett.

[wreckinball]

Roe V Wade is also a horrible ruling where the court invented something out of thik air so it has that going for it too.

[Michael P]

Out of thik air? Because Griswold v. Connecticut previously established the idea that "not having children" was a right that emanated from the Constitution's penumbras?

[wreckinball]

You caught a typo. Hooray! Apparently you can't figure it out? "thin" was meant.

Not having children is quite a bit different than killing them.

[JasonT20]

And aborting a pregnancy is a bit different than killing children. But you obviously don't agree with that. And you won't concede anything to the point of view of people that do see a difference. People that do see a difference must just be monsters that want to murder babies, right?

[Lee Moore]

And aborting a pregnancy is a bit different than killing children.

Well it depends on your choice of euphemism. Although theoretically it might be possible to abort a pregnancy without killing the smaller of the two humans involved in the pregnancy, in practice this is never attempted, because the technology is not propitious. Indeed abortion techniques often aim deliberately at killing the smaller human in utero, as a preparatory step to removing it.

You could argue that a C section is an abortion of the pregnancy, which doesn't kill the smaller human, but it is never referred to in that way.

As to "child" - you can certainly, if you wish, restrict its use to refer only to offspring that have been born, but in practice the start and finish of childhood is not precisely defined in general usage. "Unborn child" is hardly a new coinage, so the idea that "child" is something that can properly be used to refer to the human in utero is hardly a revolutionary idea. And likewise, at the other end, "child" might usually be thought inappropriate for 18 year olds - indeed even 14 year olds have been known to object. But an 85 year old will happily refer to her 62 year old son as her "child" - it all depends on the context.

And while some pro-choicers get very hot under the collar at the idea that unborn humans are "babies", that is typically what mothers who are not reluctant about the pregnancy tend to call them.

So aborting a pregnancy is very similar to killing children - indeed it is exactly the same thing - for several perfectly reasonable values of "aborting" , "pregnancy" and "children."

[JasonT20]

Well it depends on your choice of euphemism.

Yes, context and the choices of the speaker determine whether the unborn are referred to as a "child" or "baby" vs. "embryo" or "fetus" or "fertilized egg". The emotions and thinking of the speaker matters for what words they will use to try and convey the meaning that they give to it.

Here is a medical definition of abortion. Referring to a C-section as abortion that doesn't kill the fetus (now infant) doesn't fit that definition. The point is that people can use words with some flexibility if they feel like it, but others don't have to agree to how they use those words.

If someone wants to say that a woman has a "baby" growing inside her when she just found out that she is pregnant 6 weeks after her last menstruation, they can do that. No one else has to agree that it is a baby if they don't want to, though. At that point, the "heartbeat" that they are talking about in S.B. 8 isn't really coming from a heart the way we view it. It won't have separate chambers for another week or two. The neural tube that will become the brain only closes between week 6 and 7. The fetal brain develops remarkably fast, adding an enormous number of neurons per day, but it just isn't going to be capable of anything resembling conscious awareness until at least after viability.

The whole point of the pro-choice position is that the opinions and views of the woman that will be taking on the risks and burdens of pregnancy has to matter more than what anyone else thinks. And especially that the emotional and religious views of people not involved should matter much less than what she wants.

[Lee Moore]

As for medical definitions, it's important to note that a lot of these medical definitions - eg "pregnancy", "abortion', "contraception" etc were changed by the (heavily pro-choice) medical bureaucracies in the 1960s specifically to prepare the battlefield for the abortion / contraception wars.

The vestigial residues of the original meanings still persist though - "spontaneous abortion" is still called "abortion" even by doctors, even though it has nothing to do with the pregnancy being unwanted. Likewise vets are entirely familiar with sheep and cows having "abortions", but nobody asks Mama Sheep for her views on her pregnancy.

Likewise the official meaning of "contraception" has now been adjusted to mean "that which prevents conception or implantation" - that was done so that chemicals or devices that aborted a pregnancy by preventing implantation could be described as contraceptives. At the same time "pregnancy" was adjusted to exclude the post conception, pre implantation period, so that a woman only became "pregnant" at implantation. Hence a chemical or device which killed the blastocyst by preventing implantation could avoid the description of "abortifacient."

I only mention all this to make the point that a "medical definition" in these areas is not an impartial "scientific" definition that is scientifically more correct than other defintions (eg the pre 1960s definitions.) It's politically crafted to help the proponents of one side of the argument to make their case and should not be accorded any more authority than "pro life" and "pro choice". It's just part of the rhetorical armory.

So you're right that different people use terms in different ways. IMHO it is more profitable to focus on actual substantial points of difference - ie what rights women should have over their own bodies and whether and why and how much those rights should or should not be curtailed when she has another human inside her; and whether and how much it matters at what stage of development that other human is; whether she volunteered for the pregnancy or not and whether that matters. And - if we are also worrying about laws rather than just morality - what legal rules are practically enforcable.

Thus "The whole point of the pro-choice position is that the opinions and views of the woman that will be taking on the risks and burdens of pregnancy has to matter more than what anyone else thinks" is a perfectly reasonable view. But not the only one. Because there's another human involved, and some people think that other human's interests are also relevant to what the woman should be allowed to do to it.

[JasonT20]

As for medical definitions, it’s important to note that a lot of these medical definitions – eg “pregnancy”, “abortion’, “contraception” etc were changed by the (heavily pro-choice) medical bureaucracies in the 1960s specifically to prepare the battlefield for the abortion / contraception wars.

I don't agree. The current definition that I cited makes sense. It makes sense to consider a woman to be pregnant after implantation, because that is what triggers her body to make changes to support the growing embryo. In the normal course of events, if implantation does not occur, then her menstrual cycle completes and everything starts over.

Blastocysts fail to implant as often as 50% of the time without any medical interventions to reduce the likelihood of implantation. (Estimates have a wide uncertainty due to the difficulty of studying this.) It seems to me that if definitions changed from what they were prior to the 60's, it was much more likely to be due to changes in scientific understanding than due to any political considerations.

(See the debate over Pluto. New information caused astronomers to want a more precise definition of "planet" in order to decide whether to consider all of the other objects they were discovering outside of Neptune's orbit planets or not. It was really the traditionalists that wanted to keep considering Pluto to be a planet that were being political about it.)

Likewise the official meaning of “contraception” has now been adjusted to mean “that which prevents conception or implantation” – that was done so that chemicals or devices that aborted a pregnancy by preventing implantation could be described as contraceptives.

I think it is mostly the pro-life side (and non-scientists at that) that think that any sort of birth control works by preventing implantation. Every time I have looked it up, the research seems to indicate that while it is possible that some of these interventions could prevent a blastocyst from implanting successfully, more likely is that they prevent ovulation in the first place. In the Hobby Lobby case, the issue was that the owner viewed those methods as being abortifacients, not that there was scientific evidence to back that up under any definition. If you have some scientific research contrary to this to cite, I'd correct my understanding.

Because there’s another human involved, and some people think that other human’s interests are also relevant to what the woman should be allowed to do to it.

Who are the "some people" that hold a different view, and why should their views matter as much as the woman's? Again, that is my point. The debate is over whether a blastocyst, embryo, or fetus should be considered as a human being with an equal right to life as the woman that gave it life, with her desire to not be pregnant deemed subordinate to that right. This is primarily an emotional and religious matter for people that don't have any personal stake in the issue. I just don't see anyone other than the woman and her medical providers as having a say on that basis. Objective evidence that a fetus had conscious awareness and would thus suffer from its death is what I would want to see in order to override the woman's wishes. Everything I've ever seen indicates that it is just not possible for that to exist until at least a few weeks after viability.

[Lee Moore]

It makes sense to consider a woman to be pregnant after implantation, because that is what triggers her body to make changes to support the growing embryo.

No, it's the other way round. And much more fascinating.

A woman's body makes changes to support the growing embryo every month by allowing the previous month's top layer of cells of the endometrium to die and be flushed out by menstruation, and then creating a new top layer (every month) - all this happens prior to ovulation, never mind prior to implantation. If a new top layer of endometrium didn't form prior to implantation, there'd be nothing to implant in.

The woman's body keeps on preparing for the embryo, controlled by the hormones from the corpus luteum - a structure grown from the egg folicle, which acts as chief hormonal conductor for the pregnancy. But the corpus luteum degenerates and decays within about ten days, unless.....

.....an egg is fertilised. If that happens the blastocyst releases hormones that keep the corpus luteum alive and kicking.

If the egg is not fertilised, or if it is fertilised but dies - eg by not being implanted - then the flow of embryonic hormones to the corpus luteum is stopped, the corpus luteum puts its baton down and the show stops, and the stagehands clear the stage. Till next month.

So the woman's body is always preparing for the embryo, and it's the embryo which - from fertiisation, not implantation - releases hormones telling her to keep going. It's only if there's no embryo, or if it dies, that Mom's body gives up. But even when Mom's body gives up, she's still preparing for an embryo - next month. Because that stale old last month's endometrium needs to be cleaned up, cleared away and a nice fresh one put on for next month.

Implantation has got squat to do with this - except that failure to implant is one of the many ways that an embryo can die.

[JasonT20]

…..an egg is fertilised. If that happens the blastocyst releases hormones that keep the corpus luteum alive and kicking.

Implantation has got squat to do with this – except that failure to implant is one of the many ways that an embryo can die.

Uh, it sounds to me like you just said that implantation is necessary for the woman's body to continue to the process. That was pretty much what I was saying. If there is no implantation, there is no pregnancy.

[Lee Moore]

Uh, it sounds to me like you just said that implantation is necessary for the woman’s body to continue to the process.

Yes.

That was pretty much what I was saying. If there is no implantation, there is no pregnancy.

Yes, in the sense that there is no pregnancy any more. Like when someone dies, there's no life any more.But as you correctly spotted with "continue the process" the process had already started. Implantation didnt start it. Failure to implant stopped it.

That doesn't prevent you from defining pregnancy as starting from implantation, implantation is in anybody's book an important step between fertilisaton and birth. But it's an entirely arbitrary definition and much less logical than fertilisation, because while the menstrual cycle itself is continuous - it's a cycle - the event that kicks the cycle into "Yay it's baby time" mode is not implantation but fertilisation.

[JasonT20]

That doesn’t prevent you from defining pregnancy as starting from implantation, implantation is in anybody’s book an important step between fertilisaton and birth. But it’s an entirely arbitrary definition and much less logical than fertilisation, because while the menstrual cycle itself is continuous – it’s a cycle – the event that kicks the cycle into “Yay it’s baby time” mode is not implantation but fertilisation.

No, no, no. That is not what is more logical. It isn't fertilization that prevents a woman's menstrual cycle from restarting, but implantation of a fertlized egg. The woman's body has no way of determining that there was a fertilized egg other than if it implants. I've already said, and I'm sure you've seen it yourself, but as many as half of all fertilized eggs never implant, and the woman would never know that they existed. How does it make sense to say that fertilization is the start of pregnancy if up to half of pregnancies would then never be known to the woman or even be detectable at all?

I had higher hopes for our discussion. But we've just gone in circles and you've left a lot of my points unaddressed. I'm not sure you are as neutral or dispassionate about this issue as you said earlier.

[Lee Moore]

I think it is mostly the pro-life side (and non-scientists at that) that think that any sort of birth control works by preventing implantation. Every time I have looked it up, the research seems to indicate that while it is possible that some of these interventions could prevent a blastocyst from implanting successfully, more likely is that they prevent ovulation in the first place.

My impression is that there have been some recent studies that argue that some "contraceptives" which had previously been thought to work either (and perhaps usually)

(a) by preventing fertilisation,

or (sometimes)

(b) by preventing implantation of a blastocyst,

did not in fact ever do (b). But that is not at all the same as saying that all "contraceptives" only do (a) and not (b.)

So here, from a not notably pro-life site (the UK NHS) is a summary on the IUD :

https://www.nhs.uk/conditions/contraception/iud-coil/

"The copper alters the cervical mucus, which makes it more difficult for sperm to reach an egg and survive. It can also stop a fertilised egg from being able to implant itself."

In any event the redefinitions took place in the 1960s, when doctors certainly thought everal types of "contraceptives" worked by preventing implantation. And were quite explicit about why they wanted the terminology changed :

In 1959, Dr. Bent Boving suggested that the word "conception" should be associated with the process of implantation instead of fertilization.[21] Some thought was given to possible societal consequences, as evidenced by Boving's statement that "the social advantage of being considered to prevent conception rather than to destroy an established pregnancy could depend on something so simple as a prudent habit of speech." In 1965, the American College of Obstetricians and Gynecologists (ACOG) adopted Boving’s definition: "conception is the implantation of a fertilized ovum."

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

I'm a little surprised nay astonished, that this quote has survived the wikipedia editors editing, so read it while you can.

[Lee Moore]

The debate is over whether a blastocyst, embryo, or fetus should be considered as a human being with an equal right to life as the woman that gave it life, with her desire to not be pregnant deemed subordinate to that right. This is primarily an emotional and religious matter for people that don’t have any personal stake in the issue.

Well, the contrary view is that the blastocyst, embryo or fetus has a personal stake but it is not in a position to state its case. Moreover - taking a leap in the dark here - I'm guessing that someone called Jason probably doesn't have a big personal stake in abortion rights - unless he's in the business. Should he therefore butt out of the debate ? Why so ? Should Northern whiteys have shut up about slavery because they didn't have a stake in it ? Or as Shakespeare put it , notwithstanding his lack of any personal stake -

Hath not a Jew eyes? Hath not a Jew hands, organs, dimensions, senses, affections, passions; fed with the same food, hurt with the same weapons, subject to the same diseases, heal'd by the same means, warm'd and cool'd by the same winter and summer, as a Christian is? If you prick us, do we not bleed? If you tickle us, do we not laugh? If you poison us, do we not die?

Even if winter and summer don't have much effect on a fetus, you can certainly poison one.

[JasonT20]

Hmm. You seem to be stopping and producing a counter argument before you finish dealing with the rest of what I wrote. A blastocyst/embryo/fetus can't have a "personal" stake unless it is a person. Anti-abortion advocates aren't bringing forth any reason to believe that a pre-viable human has any thoughts or feelings at all. Their position is based on what it could become, not what it is.

You're right that everyone has some stake in whether other people are granted their natural rights. That is why I care about this issue, despite not have any personal stake in it. But my position on the pro-choice is precisely because my stake is less than that of a woman that doesn't want to be pregnant. Anyone that wants to deny her the ability to end her pregnancy has a large bar to clear. To speak for the blastocyst/embryo/fetus as if it had equal rights to that woman, they would first have to show that it has the qualities of personhood that make us value human life above other living beings in the first place. Conscious thought and self-awareness are the minimum for that.

[Lee Moore]

I think it's a mistake to conflate viability and mental activity. First viability is a technologically movable feast, whereas the mental activity of the fetus isn't going to change much in less than evolutionary time.

A fetus can - and does - have mental activity pre viability - although people debate whether this mental activity can be called pain etc, the fact is, it's still mental activity. And shortly before birth its mental activity is much the same as its mental activity shortly after birth. But its mental activities develop over time both in utero and after birth. A new born does not think like a 9 month old baby and a 9 month old baby doesn't think like you. (Which is one of the reasons why Peter Singer argues that infanticide is OK.)

But I agree that one of the reasons that pro-lifers value the fetus's life is because they (reasonably) expect that the fetus will develop into something like you.

[JasonT20]

A fetus can – and does – have mental activity pre viability – although people debate whether this mental activity can be called pain etc, the fact is, it’s still mental activity.

Dogs have mental activity. So do cats, pigs, cows, birds, and even fish. Yet we experiment on animals, eat them, hunt them for sport, and kill millions of dogs and cats each year for no other reason than that there is no one willing to take care of them. The question is whether that mental activity is at the level that separates humans from other animals.

We value human life above animal life because of the degree of self awareness, conscious thought, and emotions and feelings that only humans can reach. Although, we are learning more and more about the emotional states of other animals, so maybe we shouldn't be so dismissive of other animals' rights, eh? If we think that a pre-viable fetus has enough mental activity to be valued, then certainly we shouldn't be eating mammals with more mental activity than that, doing experiments on them and disposing of them when we're done, and killing them when no one is willing to feed them and give them a home, right?

But I agree that one of the reasons that pro-lifers value the fetus’s life is because they (reasonably) expect that the fetus will develop into something like you.

Maybe it will, maybe it won't. Miscarriages happen. Genetic anomalies and birth defects can result in stillbirth or an infant that only survives days or weeks. Thinking about what it could become is still not justifying preventing a woman that does not want to be pregnant from ending the life as it is at that moment. My parents may have never met and I wouldn't exist. So, why is that so much different than if I had died at 24 weeks gestation instead of being born and living another 49 years after that? In either case, I never would have become a conscious being. I never would have had a mind capable of comprehending my own existence.

A new born does not think like a 9 month old baby and a 9 month old baby doesn’t think like you. (Which is one of the reasons why Peter Singer argues that infanticide is OK.)

Well, I certainly disagree with Peter Singer on that, if you are summarizing his position accurately. But infanticide is a red herring here anyway. Elective abortion is terminating a pregnancy when the woman doesn't want to be pregnant anymore. Killing an infant after it has been born has nothing to do with that.

[JasonT20]

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.

This was James Madison speaking in Congress during debates over the proposed Bill of Rights. He was referring to what would become the 9th Amendment.

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

The 9th Amendment doesn't itself contain any unenumerated rights, of course. But what it does do in very plain language is invalidate any argument that a right doesn't exist simply because it isn't listed in the Constitution. Abortion opponents never seem to acknowledge this and keep using that argument.

[Lee Moore]

Abortion opponents never seem to acknowledge this and keep using that argument.

Possibly, though I think more sophisticated ones tend to argue that in trying to puzzle out what rights are included in the 9th Amendment, the word "retained" is of some relevance - eg it would be hard to argue that the 9th encompassed a right for a slave in a slave State to be freed. Because there were actual laws in the slave States to the contrary. Such a right had to be created by the 13th Amendment, it could not be conjured from the 9th, given the plain evidence that there was no such right at the time of the 9th's adoption. The 9th only retains what already existed.

And as for abortion, though the laws against abortion changed quite a bit during the 19th century - in accordance mostly with increasing medical knowledge - the fact that abortion had long been criminal under the common law means that there's no 9th Amendment right to be retained.

Or rather, if there is a 9th Amendment right relating to abortion it cannot be so extensive as to include matters that were criminal in 1791.

[JasonT20]

And as for abortion, though the laws against abortion changed quite a bit during the 19th century – in accordance mostly with increasing medical knowledge – the fact that abortion had long been criminal under the common law means that there’s no 9th Amendment right to be retained.

What are the facts regarding the laws on abortion after the adoption of the Constitution? Which states had laws that made abortion criminal and at what point in pregnancy?

This also assumes originalist interpretations of the Constitution. Personally, I don't subscribe to that philosophy. That is because it is not a politically neutral judicial philosophy. There's just too many things about modern government and society that conservatives think are wrong compared to what they view as right about the past. They will usually look at history with rose-colored glasses and believe that things should work that way now as well.

Rights "retained" by the people don't have to have existed as a matter of law and practice in 1791. Rights aren't derived from government anyway. People have natural rights regardless of whether government recognizes them. Conservatives and libertarians are usually the ones saying that in the first place. If government eventually comes to recognize a right that they were previously denying, then that is not inventing a new right, the way that conservatives often claim.

[Lee Moore]

This also assumes originalist interpretations of the Constitution. Personally, I don’t subscribe to that philosophy. That is because it is not a politically neutral judicial philosophy.

I beg to differ. I grant you that some people may favor originalist interpretation because they think it will happen to produce answers more to their liking than other interpretative schemes, in the current episode of history. That doesn't make the method itself other than politically neutral.

Indeed, since the method is no more than a version of textualism - which is based on ignoring the "end" (who will be made happy by the judgement) in favor of the "means" (the process by which the answer is found) it is about as politically neutral as you can get.

The only twiddle that originalism makes to basic textualism is that it gives a rule for the circumstance in which the meaning of words changes between the time the legal rule was created, and the time that a judgement is required in court. The twiddle is eminently rational - stick with the original meaning as that keeps the rule stable over time, and is much more likely to accord with the scheme or mischief that the drafters had in mind, than an interpretation based on the random drift of word meaning.

And, as I have noted elsewhere, sometimes the drift is not random, but directed. You really don't want the compilers of medical dictionaries to acquire the power to change legal rules simply by putting their political preferences into their dictionaries. That would hardly be politically neutral.

[JasonT20]

I beg to differ. I grant you that some people may favor originalist interpretation because they think it will happen to produce answers more to their liking than other interpretative schemes, in the current episode of history. That doesn’t make the method itself other than politically neutral.

How it is used is what matters. If conservative judges aren't using it as a politically neutral tool of interpretation, then it is not politically neutral. If it was really politically neutral, then you'd think that judges from all kinds of political backgrounds would look to apply it, not just conservatives.

...stick with the original meaning as that keeps the rule stable over time, and is much more likely to accord with the scheme or mischief that the drafters had in mind, than an interpretation based on the random drift of word meaning.

If we' debate what words mean now, with it being obvious that people inject different meaning into words based on their biases, how could we possibly figure out the "original meaning" of words as they were used 200 years ago? At least, how could we do so in a politically neutral and reliable fashion? Our cognitive biases cause us to look for ways to believe what we want to believe too easily for me to think that judges are going to perform the historical, linguistic, and cultural analysis in a neutral way to determine what even a majority of people thought a constitutional provision meant 150-200 years ago.

This is especially true given how political the nomination and confirmation process has become. No President and no Senator in my lifetime has put finding individuals that will reason in a politically neutral way as a priority in deciding who should be a judge, let alone a Supreme Court justice. No politician seems to want neutral judges. They just want judges that can talk a good enough game about it during confirmation hearings. But they don't end up on short lists for appointments if they are truly neutral and rationally analytical in their legal philosophy. The whole thing has become a pure exercise in power politics.

[JasonT20]

For the last few years I have increasing seen the abortion debate in terms that I can't say that I've seen anyone else use, which I find strange.

S.B. 8 seems so draconian to pro-choice advocates because it only has an exception for when the woman's life is in danger. Well, it doesn't seem to define what level of risk would trigger an exception. Personally, I think that the baseline level of risk for all pregnancies is sufficient.

In the U.S., one woman dies from complications of pregnancy for about every 6000 live births. That's a relatively small risk for a woman that wants a baby, but we aren't talking about women that want a baby. I argue that this level of risk is more than high enough to warrant abortion rights. This is because I can't think of any other situation where a person is legally required to put themselves at any significant physical risk against their will in order to provide aid to another person, even if that is necessary to save that other person's life.

[Lee Moore]

See Army below. I looked it up. In WW2 there were about 300,000 US combat deaths and about 18 million in the armed forces. So that's a 1 in 60 risk of death, a hundred times higher than the risk of death from giving birth.

And about two thirds of the 18 million were conscripted.

[JasonT20]

Different times. Like I said, we can hope that conscription is never required again. It shouldn't be, short of an existential threat to the nation and its civilian population. If all civilians are at risk of death from an enemy strong enough that our standing military isn't sufficient, then a random selection of able-bodied men (and possibly women, depending on how the current debate in Congress comes out) to defend everyone, including themselves, is something different.

We have had an all-volunteer military for the last 45 years or so, right? What has been the overall risk of death for a service member in that time? A link I found (military.com) said that 2.5 million American service members were deployed in the War on Terror (Operations Enduring Freedom, Iraqi Freedom, and New Dawn) with total deaths (in action and non-combat deaths) of 8,498 for a death rate of 0.33% (about 1 in 300). 20 times higher than the risks of pregnancy, but again, in an all-volunteer military.

[Lee Moore]

Different times as you say, but also different technology. Since Vietnam, the US hasn't fought any big serious wars, it has been engaged in what a hundred years ago or so, would have been called colonial policing. And the US has chosen military technology and tactics aimed at minimising US casualties and to some extent minimising enemy casualties. Very commendable, but nothing like that could happen in a proper war.

Of course, even colonial policing can be dangerous and a death rate of 0.33% still means you need to be pretty brave to volunteer for it, and it still leaves bereaved parents and widows (and the occasional widower.)

However the real point is "all volunteer." Service folk do not - well not often - volunteer for death. They volunteer to engage in tasks that carry a modest, but real, risk of death (and a greater risk of injury.) That's important to remember - to be a volunteer is to volunteer to accept the risks.

Now think about pregnancy and volunteering. It is certainly true that some women become pregnant as a result of rape. These cannot be regarded as volunteers for pregnancy, and its risks. The proportion of abortions represented by rape victims is an unknown, though people have tried - some honestly, some less so - to estimate a figure. The Guttmacher Institute - a pro choice institution - estimated a figure of 1%. But whatever the exact number, the reality is that the overwhelming majority of women "volunteer" for prenancy and its risks.

Some welcome pregnancy, others find it less welcome. But excluding rape victims, they volunteered in the same way that soldiers in a volunteer army volunteer. They choose to take the risk.

That doesn't mean that the wicked hussies must be punished by the Lord for their sins. It just means that - rape victims aside - they volunteered.

[JasonT20]

But whatever the exact number, the reality is that the overwhelming majority of women “volunteer” for prenancy and its risks.

Perhaps, but since S.B. 8 doesn't make any exceptions for cases of rape, then it definitely is relevant even if it was just one woman, rather than 1% of women seeking abortion. In addition, there are women that were using birth control but it failed (whether due to not using it properly or otherwise), or they originally wanted a baby, but something has changed that increases the risks, etc.

If you have never heard of it, you can look at the case of Savita Halappanavar in Ireland for an example of what can happen when abortions are banned. She was at 17 weeks when she started to miscarry. Despite the prognosis that miscarriage was inevitable, and that her water broke several hours after arriving at the hospital, the hospital refused her request the next day to perform an abortion at that point to move things along and reduce her suffering and risk. They pointed to the law at the time and how Ireland was a "Catholic nation", that they wouldn't abort the fetus until no heartbeat could be detected or perhaps if her life was in immediate danger. Well, it turns out that her life was in immediate danger, as she became septic and died seven days after being admitted. I have also read of cases in the U.S. where women undergoing miscarriages were denied care at Catholic hospitals. They suffered unnecessarily because of religious dogma.

This is why I do care about the abortion debate. I don't like that some people's emotional and religious passions are affecting women negatively.

[Lee Moore]

Hard cases make bad law.

As I mentioned elsewhere, we have to make a distinction between the pure aether of morality, and the requirement that laws be practical.

That cuts both ways of course. It's plain that the framers of the Texas law did not think it was practical to threaten dire punishments to people swept up into it, even though from a moral point of view I suspect that those framers do think that aborting a fetus is morally equivalent to killing a toddler. They have gone for what they hope is a "chilling" move - to deter the providers by a monetary threat and a threat of the process is the punishment. Whereas if you ice a toddler, you're probably looking at a fairly long stretch.

On the other hand, if you're going to have a law banning abortion, then even if you think it's moral to exclude pregnancy arising from rape, you might think it's not practical to exclude it. Because you might then find that you have generated an entirely spurious rape epidemic.

If you're going to have only laws that never ever have an unfair application, you're not going to have any laws. And anarchy is much unfairer than the rule of law, even if the laws are square pegs trying to squeeze into round moral holes.

[JasonT20]

As I mentioned elsewhere, we have to make a distinction between the pure aether of morality, and the requirement that laws be practical.

There is a huge gap between the penalties imposed by S.B. 8 and what its proponents are claiming is the moral basis for it. If abortion is murdering a child, a fine just doesn't cut it. Not even close. The law at the time in Ireland, in the Savita Halappanavar case I mentioned, imposed a life sentence on any doctor that performed an abortion. That, at least, took seriously the position that abortion was killing a human being.

If Texas lawmakers won't put anyone in jail for performing or helping a woman obtain an abortion, with no penalty at all for the woman, then it is because they know that they don't actually have a majority supporting their belief that abortion is murder. This is the biggest flaw of all in this method.

Republicans have spent the decades since Casey trying to chip away at abortion rights because they know that they can't get a solid enough majority behind actually banning it outright with criminal penalties for everyone involved. Only the passionate pro-life advocates in their base really want that. Doing it this way has kept it going as a motivation for their base while not being a big deal to most people in the middle.

On the other hand, if Roe is actually overturned and red states start banning abortion and putting people in jail, they risk driving people to the polls to oppose them, given that only the GOP base would support that, and probably not even all of them. Surveys of voters on abortion are really complex, because the extremes drive the political debate in ways that leave out a large segment of people in the middle.

What would be "practical" on abortion would be to find a compromise that both sides could live with. But that would require the people on both extremes to admit that they don't represent a majority and never will.

[Lee Moore]

All very true. And I certainly agree that GOP politicos might not like the results in state elections of getting Roe overturned. On the other hand it's fairly clear that one of the political effects of Roe has been to move the Overton window in a pro-choice direction. Hence it wouldn't be surprising if some chipping away at Roe shifted the Overton window, over time, back a bit.

As for the search for reasonable compromise, I think that most Americans don't hold "extreme" pro-life or pro-choice opinions. Most people can see that very early on, the crittur doesn't seem very like a baby, whereas later on, it kinda does. And most people can see that insisting that a woman - even a volunteer - must carry a pregnancy to term is quite an imposition.

But there's more to life than reasonable compromise. Some people really really do believe that it's absolutely outrageous that a woman should be restricted in using her body precisely as she chooses. If that's extreme, get over it. And likewise some people really really do believe that killing a fetus and killing a toddler are much the same thing, and if that's extreme, get over it. I don't see that "reasonable compromise" should be expected to trump such strongly, and justifiably strongly, held views.

[JasonT20]

I don’t see that “reasonable compromise” should be expected to trump such strongly, and justifiably strongly, held views.

It isn't that the people that hold those extreme views must compromise, but that we can't make government decisions based on what a minority on one extreme believes. Sometimes, the extremists on one side are correct, in spite of their minority status. But they don't get to carry the day without enough people in the middle being willing to agree to that.

[Lee Moore]

This is because I can’t think of any other situation where a person is legally required to put themselves at any significant physical risk against their will in order to provide aid to another person, even if that is necessary to save that other person’s life.

You have heard of the Army, right ? Police ? Security guards ? Firefighters ?

Suppose you go rock climbing with a friend. At one point in a difficult descent, you anchor your friend with a rope as he hangs over a sheer drop. Suddenly there is a cascade of small rocks from above. Your expert climber's brain calculates - omigod, a rock could land on my head. Indeed I calculate there's a 1 in 6,000 chance of me dying, unless I immediately detach the rope from which my friend is hanging, and get myself under this overhang that'll protect me from the falling rocks.

You detach the rope and your friend falls to hs death. But you, under that overhang, survive.

Analyse your legal position.

[Lee Moore]

Further, if you find that someone else poses a 1 in 6,000 chance of death sized threat to you, you will usually have an excellent legal justification for trying to protect yourself from that risk. But not usually to the extent of killing that other person.

If a drugged up fellow stumbled toward you on the street, and there was no way of stepping out of the way or running away, and you shot him dead to protect yourself, imagine the scene in court if you truthfully reported under cross examination :

You : "I was afraid for my life. I estimated that there was one chance in six thousand that this guy would kill me......"
Judge : "did you say one chance in six thousand ?"
You "Yes, Sir"
Judge : "You're going with one chance in six thousand ?
You : "Yes Sir, I cannot tell a lie. One chance in six thousand."
Judge : "Er, OK carry on."

[JasonT20]

This doesn't work either. That is because it wasn't necessary to kill the other person in order to alleviate the risk. (Seriously, how could you not be able to step out of the way if you have time to pull out a gun and shoot?) Self defense specifically requires you use only the reasonable amount of force necessary to protect yourself. The only way to alleviate the risk of pregnancy is to not be pregnant anymore.

[Lee Moore]

Could have been a blind alley. You obviously haven't watched enough 1940s thrillers.

Self defense also requires you to face a risk exceeding the trivial. Whether a one in six thousand risk of death is sufficient is doubtful, though .

[JasonT20]

The Bureau of Labor Statistics shows fatalities among police officers as "13.7 per 100,000 full-time equivalent (FTE) workers in 2018". The rate of maternal mortality that same year was 17.4 per 100,000 live births. (Which is approximately 1 in 6000.) So, the risk of death in being a police officer is comparable to the risk of pregnancy. For all occupations, the fatality rate is 3.5 per 100,000 FTE. I would consider the risk for all occupations to be "trivial", given that most people need a job. That is a reasonable point of reference for the background risk. Whether the risk is "trivial" depends on what you compare it to.

[Brett Bellmore]

But, getting back to SB8, it first of all permits abortion if a fetal heartbeat isn't detected, which handles a significant fraction of pregnancies with elevated risk. And permits abortion to save the life of the mother. One presumes that eliminating pregnancies where an abortion is necessary to save the mother's life would lower the average risk of pregnancy substantially.

So, the prohibited abortions are not going to involve a maternal risk of 1 in 6000.

[JasonT20]

But, getting back to SB8, it first of all permits abortion if a fetal heartbeat isn’t detected, which handles a significant fraction of pregnancies with elevated risk. And permits abortion to save the life of the mother.

I'm not sure I follow this, nor do I know where you get those claims from. Besides, the ultrasound to detect a heartbeat at 6 weeks would most likely need to be a vaginal ultrasound, from what I've read. Those sources said that an abdominal ultrasound would be most likely to detect the heartbeat at 7-8 weeks. (These sources were prominent medical websites giving information to pregnant women what to expect, so I have no reason to doubt their accuracy.) That is certainly not a medically necessary procedure before performing an abortion. It's only purpose would be to try and detect a heartbeat, right? I don't see how that would affect the safety of continuing the pregnancy.

[Lee Moore]

The Bureau of Labor Statistics shows fatalities among police officers as “13.7 per 100,000 full-time equivalent (FTE) workers in 2018”. The rate of maternal mortality that same year was 17.4 per 100,000 live births. (Which is approximately 1 in 6000.) So, the risk of death in being a police officer is comparable to the risk of pregnancy.

Fair enough, but those are annual figures, which ignore the fact that police officers will run that risk - on average - every year for 25 years or so (on average.) Whereas a woman - on average - is only going to face the risks of a live birth two or three times in her life.

So the risk of dying as a result of volunteering to become a police officer is roughly (13.7 x 25) / (17.4 x 2.5) = 8 times as high as the risk of dying as a result of volunteering for pregnancy and giving birth.

[Lee Moore]

I should add, of course, that if we had been having this discussion a hundred years ago, the risks of death arising from pregnancy would have been much higher, both because contraceptives were less reliable and more expensive then, and because medical techniques in the obstetrics area (inc dealing with infections) have greatly improved in the last hundred years.

[JasonT20]

I see your point. Perhaps the risk of death from pregnancy isn't as compelling an argument as I believe. As I said, it all comes down to what you consider a trivial risk versus a significant added risk. Some people might consider 1 in 6000 to be a negligible risk, others might see that as unacceptably high. (Debates over the risks of vaccines versus the risks of COVID are themselves evidence that people tend to evaluate risk based on preferences and beliefs more than an objective analysis of the facts.)

Just a last note on that, though. As a nerd that plays Dungeons and Dragons, I deal with probability fairly regularly. Dice rolls to attack use a 20-sided die, with a 20 being a 'critical' hit. When that happens, you roll again, and another 20 would make it a "double critical", and again would be a "triple critical". The odds of rolling 20 three times out of three rolls is 1 in 8000. That actually happened for me a couple months ago.

[Lee Moore]

Yeah, probability is a weird business, and humans don't tend to get it very well.

Thus you (or anyone else) will remember the amazing 8,000-1 shot that came up, and think it's amazing. Because on its own, it is amazing. Only it's not on its own. In reality, we come across hundreds and thousands of 8,000-1 shots every day, without noticing them. We only tend to notice the ones that happen.

[JasonT20]

You have heard of the Army, right ? Police ? Security guards ? Firefighters ?

All of those people have chosen those roles knowing the risks. (We can hope that we never find ourselves needing a military draft ever again.)

You detach the rope and your friend falls to h[i]s death. But you, under that overhang, survive.

I don't know what the law would say about such a situation, to be honest. But I suspect that the surviving climber would not face legal liability. I'm skeptical that this thought experiment really works, anyway. The time it would take to recognize the danger, that releasing the partner would eliminate the risk, and act on that is probably longer than it takes rocks to fall. I don't know that climbing gear is designed to allow a quick release while the rope is taught anyway.

Another thought experiment along those lines is you and a friend are out swimming on the ocean. He becomes exhausted and starts struggling and flailing. He calls for help and even moves to try and hang onto you. His panicked flailing could end up pulling you down as well. Would you be legally required to risk that? Or would you be legally in the clear if you stayed away or even pushed him away if it looked dangerous to try and help him directly? I think the latter is likely correct. (Lifeguards specifically train to deal with panicked swimmers in distress, but you aren't a trained lifeguard that chose to take those risks and is a well above average swimmer.)

We can do thought experiments all day, but if you know of an actual case that is analogous, that would be more on point.

[JasonT20]

One thing I want to say. I want to thank you for approaching your disagreements with my arguments with what I consider civility and respect. That has been rare around here. I am trying to return the favor.

[Lee Moore]

That is because abortion is not a subject that I'm passionate about, on either side of the question. I can see points in favor of both sides, and in favor of middle positions. Most people arguing about abortion have very firm, and often passionate opinions, and on the whole I am willing to forgive people for getting excitable about things that are very important to them.

[Michael Ejercito]

Not surprising.

The remedy prescribed by the district court is very extraordinary.

Ordinarily, federal oversight of state courts involved judging appeals arising from the judgments and orders of state courts, which has been the case since at least Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816).

In some circumstances, a federal court can remove an existing case from a state court, which is already considered an extraordinary remedy.

The Supreme Court frowns upon enjoining state courts from ever hearing cases in the first instance.

The difference between the power to enjoin an individual from doing certain things and the power to enjoin courts from proceeding in their own way to exercise jurisdiction is plain, and no power to do the latter exists because of a power to do the former.

- Ex Parte Young, 209 U.S. 123, 163 (1908) The district court does not cite any Supreme Court case nor Fifth Circuit case affirming an injunction against a state court from hearing any type of case.