An Unexpected NYT Op-Ed: "A Hard but Real Compromise Is Possible on Abortion"

Public support for Roe v. Wade is difficult to measure because people don't understand what Roe, and Casey actually held.

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Often, I see public polling that asks people whether they support Roe v. Wade. I find these surveys largely unhelpful, because people do not know what Roe, or Casey, actually held. Indeed, each year my students are surprised to learn how those two landmark decisions drew lines: Roe at the second trimester, Casey at the point of viability. I find far more meaningful those surveys that ask about restrictions at various stages of pregnancy: Six weeks? First trimester (12 weeks)? 15 weeks? Viability (~22 weeks)? Second trimester (24 weeks)? No restrictions at all? Generally, support for first trimester abortions is far greater than support for abortions after the first trimester.

Today, the New York Times published an op-ed (now called a "guest essay") that shines a light on these numbers, and offers a possible compromise on the issue.

First, the article explains that public polling on abortion has remained remarkably consistent over the past five decades, even as views on LGBT issues has shifted significantly:

The persistence of Roe's many foes is surprising if you see abortion as a culture-war issue, like L.G.B.T.Q. rights or sex education, where more Americans have embraced progressive views over time. If abortion was like these cultural issues, we would expect Americans to be far more in favor of abortion rights today than they were 50 years ago when rates of church attendance were higher and social attitudes were far more conservative, especially on issues related to gender and sex.

But that's not what happened. Although the Roman Catholic Church was key to propagating anti-abortion views in the early years of the abortion conflict, steep declines in church attendance have done little to depress pro-life sentiment. Surveys also show that Americans embraced more egalitarian gender attitudes over time without letting go of their opposition to abortion. Consequently, citizens on both sides of the issue are now far less divided by their position on gender roles than they were in the 1970s.

For these reasons, I don't find persuasive arguments that overruling Roe would lead to overruling Obergefell and Lawrence. Same-sex marriage has reached a broad level of consensus in a very short period of time. Indeed, even back in 2003, sodomy prosecutions were almost nonexistent. It was a strategic blunder for the Harris County District Attorney to even bring the case against Lawrence. Those cases are not going anywhere. Ditto for Loving and Griswold. Support for interracial marriage is at very high levels. And Estelle Griswold begged to be arrested in order to set up her test case six decades ago. The only substantive due process precedent on the chopping block would be Roe.

Second, many abortion providers decline to perform abortions after the first trimester:

While essentially all abortion providers outside Texas offer their services to women in the first 10 weeks of pregnancy, there is a sharp decline after that point. Roughly half of clinics don't offer abortion by Week 15, the limit set by Mississippi. At Week 24, fewer than 10 percent of clinics do so.

I've looked into how many clinics actually perform abortions in the ninth month, where legal. The number is very low, because those clinics do not always advertise such services.

Third, the article recounts the experience of one abortion provider who refused to perform abortions after the first trimester:

As a large body of research shows, providers usually dislike providing abortions at some point in the second trimester when the fetus becomes more recognizably human.

A good example is Dr. Susan Wicklund, a hero of the abortion-rights movement. In the face of death threats, she gained attention for going to work with a loaded revolver at the ready. Less noted was her decision to limit her practice to first-trimester abortions. Recalling her decision, Dr. Wicklund, who is now retired, wrote: ''Seeing an arm pulled through the vaginal canal was shocking. One of the nurses in the room escorted me out when the color left my face." She continued, "From that moment, I chose to limit my abortion practice to the first trimester: 14 weeks or less." In her willingness to face murderous abortion foes but not second- trimester abortions, Dr. Wicklund embodies our clashing impulses.

Roe drew the line at the second trimester. Casey drew the line at the point of viability. Perhaps Dobbs will move that line up to the first trimester.

I think it is entirely possible the Court finds that Mississippi's fifteen-week ban is valid, thus opening the door to prohibiting abortion after the first trimester. And, in the same term, the Court could find that Texas's six-week ban is unconstitutional. In many cases, women do not even know they are pregnant at that early juncture. The Court could find such an early line might even fail the rational basis test. But S.B. 8 would remain in effect for abortions after the first trimester. Still, this sort of compromise--don't say "split the baby"--would largely restore abortion laws to the democratic process.

NEXT: "Yale Law’s Bullying, Coercive Diversity Leaders"

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  1. Is public opinion polling really a good indicator of what the Supreme Court will decide?

    1. The basic problem with Roe is that the Supreme Court subsisted it's opinion for the legislatures. Had the court simply found for Roe without establishing any hard rules, then the legislatures of the various states could have crafted laws regulating abortion in a reasonable manner, without much of the hysterics that we have seen for so long.

      1. The basic problem with Roe is that the Supreme Court subsisted it’s opinion for the legislatures.

        How is that different from every other judicial review case?

        Had the court simply found for Roe without establishing any hard rules

        That's not how common law courts work. They explain their reasoning before they reach the conclusion. (Well, except Justice Kennedy. Lord knows what to call what he used to do.)

        without much of the hysterics that we have seen for so long.

        Hang on to that optimism!

        1. "How is that different from every other judicial review case?"

          Easy. "You can set a speed limit"? Judicial.

          "You can't set a speed limit"? Judicial

          "The speed limit will be set at 35mph"? Legislative.

          1. Brett,
            Okay. But what do you call the following:
            Judge: You can set a speed limit, but it would violate ___ right if it's under 30 mph.
            Legislature: "The speed limit will be set at 35 mph." Legislative, true. But what do you call the judicial branch's role? Surely not nothing, in this case, yes?

        2. That’s not how common law courts work. They explain their reasoning before they reach the conclusion. (Well, except Justice Kennedy. Lord knows what to call what he used to do.)

          I suggest "Calvinball."

    2. "No matter whether the Constitution follows the flag or not, the Supreme Court follows the election returns."

  2. The state does not have a rational basis to outlaw abortion? That would be as bad a legal decision as Roe. That sort of political compromise is not law, it is policy. While Robert's might do that under a false sense of preserving legitimacy, I don't see the five others going along. I find it much more likely that they strike Roe and then Roberts with Kavanaugh in tow finds a problem with the SB 8 enforcement mechanism (which could also be applied in blue states to gun sellers).

    1. The state does not have a rational basis to outlaw abortion?

      There's no rational basis for drawing the line at six weeks. There may be a rational basis for banning abortion, but if abortion is allowed, banning it before many know they're pregnant makes little sense.

      1. banning it before many know they’re pregnant makes little sense.

        I believe the Texas law solves this problem of ignorance by requiring the doc to check for a heartbeat. Presumably if he finds one, he can tell you that you're pregnant, even if he is surprisingly ignorant of the other ways docs can tell whether you're pregnant or not.

        1. Um, at that point it's too late, under the Texas law. That's the whole point: you can get an abortion only before you know you want/need an abortion.

          1. Huh? No. It's quite possible to be pregnant, and not have a detectable fetal heartbeat. In fact, if you're pregnant, and it's been a couple months, and there's no detectable fetal heartbeat, you probably really need one...

            1. Huh? No. It’s quite possible to be pregnant, and not have a detectable fetal heartbeat.

              Sure. For roughly six weeks. We're going in circles here.

              In fact, if you’re pregnant, and it’s been a couple months, and there’s no detectable fetal heartbeat, you probably really need one…

              Again with this bad faith argument. If there's no detectable fetal heartbeat after a few months, you're not pregnant and don't need an abortion.

              1. Sure. For roughly six weeks. We’re going in circles here.

                No, I think you're hopping fro one circle to another. This was your original circle :

                you can get an abortion only before you know you want/need an abortion

                Now you're accepting that you can be pregnant for six weeks before the fetal heartbeat can be detected.

                So I think the remaining question is - do you think the detection of a fetal heartbeat is the first detectable sign of pregnancy ?

                1. This is a very stupid line you're taking.

                  However you choose to pick the exact cutoff in question here, there may be some subset of women that knows they're pregnant in time.

                  But there is indisputably a much larger subset that will not. Indisputable if you know any women who have become pregnant.

                  That is the issue here, and what DMN is talking about. Quibbling about six weeks or heartbeat is trying to distract from the forest by quibbling about a tree.

                  1. "But there is indisputably a much larger subset that will not. Indisputable if you know any women who have become pregnant."

                    There are documented cases of women claiming they had no idea they were pregnant until they went into labor.

                    1. I'm not talking about edge cases, come one.

                  2. However you choose to pick the exact cutoff in question here, there may be some subset of women that knows they’re pregnant in time.

                    No. Entirely wrong. If you pick the exact cut off time as, say, fertilisation, no women at all will know they're pregnant, because under current technology, there's no way to detect fertilisation at the time it happens. If you pick the exact cut off time as 6 months after fertilisation all women know they're pregnant, so long as they're not in a coma.

                    The particular exact cut off time in this Texas Bill is pretty early, but it is still after the earliest time that a woman can know she's pregnant.

                    So the point of my returning to this bit of the discussion is simply to point out that DMN was :

                    (a) factually wrong to state that "you can get an abortion only before you know you want/need an abortion" and

                    (b) engaging in the usual hand waving when caught making a false statement that he doesn't want to concede is false. DMN by the way is one of this site's keenest pointer outers of other people's false statements (and often he is right) - but it looks like he's less good at acknowledging his own errors.

                    Moving on to the behavior of women generally, it is of course perfectly true that many women will only realise that they're pregnant after the Texas heartbeat deadline. That doesn't mean that they couldn't have found out in time, merely that they didn't.

                    Which brings us on to - so what ? There are lots of laws and rules with deadlines and thresholds that pass before the affected party finds out about them. For example there are regulations in most places about the tread depth of tires. Many people check these regularly, many people don't. And many people when they do get round to checking, find that the moment has passed already. If the penalty was a $25,000 fine, forfeiture of the vehicle and suspension of driving license for four years, probably there'd be a lot more and earlier checking.

                    And ditto with "early cut off" abortion laws. If the consequences of failing to notice are small or none, then lots of people won't be in a rush to check. But if the consequences are serious - eg that you've only got a short window of time before an abortion is going to become illegal, then if you've engaged in pregnancy-risking behavior, and you regard pregnancy as a highly undesirable state, then you're probably going to get checked within the deadline.

                    Probably, not definitely. But so it is with tires.

                    1. So the onus is on a woman to do something that may or may not accurately indicate if she is pregnant (because false negatives are quite frequent) in order to do something that is a Constitutional right? That is specifically not allowed to be restricted before viability? That is an awfully authoritarian and totalitarian approach to the law.

                    2. Now do gun licensing.

              2. " If there’s no detectable fetal heartbeat after a few months, you’re not pregnant and don’t need an abortion."

                My understanding is that it is possible for the fetus to die without getting naturally flushed out if the pregnancy is far enough along and that this represents a potentially life threatening condition for the mother.

                1. That was actually my point. There genuinely are cases where you're pregnant, and well beyond the point where a fetal heartbeat would normally be detectable, and there won't be one. Because, you know, not all pregnancies proceed normally.

                  They're medical emergencies, and abortion is legal in Texas at any stage of development if that situation arises.

                  Apparently the Texas legislature understands the biology of fetal development better than some of the commenters here.

                  1. Can we stop pretending it's a heartbeat? A heart doesn't exist until a month after this law says it does.

                2. My understanding is that it is possible for the fetus to die without getting naturally flushed out if the pregnancy is far enough along and that this represents a potentially life threatening condition for the mother.

                  That is indeed true. The procedure needed by a woman in such circumstances, however, is not an abortion.

          2. Planned Parenthood seems to think the home tests are pretty accurate as soon as a woman has a late/missed period.

            1. Not every woman has periods with clockwork regularity.

              1. Especially athletes. I had a friend in high school who only had two or three periods a year.

          3. The first indication that you may be pregnant is that you miss your period. At this point the chances of a false positive from an hCG pregnancy test is very low. Even if your period is irregular, pregnancy testing can reliably inform you whether you're pregnant well in advance of any fetal heartbeat.

            It is true that even though there is a reliable method of finding out - very early - whether or not you're pregnant , some women may not avail themselves of it, and so may remain in ignorance of their pregnancy.

            1. To quote the poster right above you: not every woman has periods with clockwork regularity.

              1. What part of :

                Even if your period is irregular, pregnancy testing can reliably inform you whether you’re pregnant well in advance of any fetal heartbeat.

                were you struggling with ?

                1. Which part of nobody — not "some" women, as you misleadingly state — takes a pregnancy test unless she thinks she might be pregnant do you not understand?

                  1. But the only such "nobodys" are those who were raped in their sleep and are unaware that they have recently had sexual intercourse.

                    Any other woman, between menarche and menopause, has reason to believe she might be pregnant if she has recently had sexual intercourse, regardless of whether she or her partner used contraception, and however irregular her periods may be.

                    The question is the probability. At present plenty of women who have had unprotected sex get pregnancy tests, precisely because they are concerned that they might be pregnant. Generally women who are competent users of contraceptives don't take pregnancy tests. But if the consequences of not checking become more onerous, then more women will check. A home test kit costs a couple of dollars, though you can buy a bulk pack. There are also outfits that will do it for free.

                    1. Why does a woman need to satisfy your arbitrary requirements to access her rights?

            2. The women most in need of an abortion -- teenagers, alcoholics, drug abusers, the mentally ill -- are the ones who are least likely to figure out that they have missed a period, and least likely to take immediate steps to determine whether they are pregnant. They, and the unwanted children they are forced to have because they didn't act promptly, are the most likely victims of any law that sets a short time period for getting an abortion.

              1. Much to the surprise and disgust of the bien-pensanterie, a remarkable number of these, er, "victims" - aka people who were born to such unfortunate mothers as you describe, ungratefully refuse to regret their own existence, and fail to rue the ill chance that led to them not being iced during their first few months of existence.

                1. If you believe that, you haven't been around many child abuse and neglect cases.

                  But we all know that anti-abortionists choose to believe that every child that a mother is forced to bear ends up surrendered and adopted by a loving family, as opposed to the reality. Which often requires DCF and the foster care system.

                  The layers of delusion in an anti-abortionist trifle are both rancid and poisonous.

      2. There’s no rational basis for drawing the line at six weeks.

        Are you saying that the view that a human life exists at six weeks is irrational, or that even if it is a human life it is irrational to assert that the mother should not be permitted to end it?

        1. Swood,
          Neither of the 2 that you suggest. What is irrational (supporters would argue) is: Abortion is kept legal, but only within a narrow time-frame that excludes a huge number of pregnant women--women who had no notice that they were, in fact, pregnant before this narrow 6-week window closed . . . and it's irrational to develop a policy that keeps abortion legal while also denying abortions to many women who want to pick that option.

          1. You are saying that it is not irrational to believe that a human life exists at six weeks but nevertheless it is irrational to forbid the ending of that human life, since women often ignore a missed period and the mother doesn’t want the child. But it is not irrational to require more reason than this to end a child’s life, is it?

            1. Do you think drawing the line at 6 weeks makes any sense?

              1. I don't think it is irrational.

                1. What is the rationale?

                  1. Not my personal opinion on the matter, but the rational is:

                    Abortion ought to be illegal[full stop].

                    SCOTUS won't let us ban it outright, so lets find the earliest point they will sign off on for an abortion ban.

                    Unless SCOTUS decides to pick a bright line, they will keep trying at something between what SCOTUS has upheld and what they have overturned.

                    If SCOTUS Upholds a ban at 15 weeks and overturns one at 14 weeks, eventually some state will take a crack at 14 weeks, 3 days.

                    1. Fishing for the exact constitutional limit as the reason for the line you draw is not a rational basis.

                    2. Fishing for the exact constitutional limit as the reason for the line you draw is not a rational basis.

                      A person wants to get to point X but hindrances prevent him. He decides that he will get as close as he is able currently, and will keep trying in the hope that eventually he will overcome all the hindrances. You appear to be claiming that this approach is not rational.

                    3. Between Roe and Casey, they made a bright line. The zealots will never stop trying to muddy it with bullshit like a 6 week "heartbeat" or whatever other dishonest and untrue thing they can come up with.

                      People who want to ban abortion cannot accept that others might want to live their lives by less irrational and religiously fanatical moral beliefs.

                      Totalitarianism is an ugly thing. But self-delusion, self-righteousness, and arrogance allows the anti-abortionists to convince themselves that they aren't anti-liberty, anti-freedom, and pro-theocracy.

                      You keep your religion to yourself and I'll do the same. Deal?

                    4. People who want to ban abortion cannot accept that others might want to live their lives by less irrational and religiously fanatical moral beliefs

                      For many people this is a moral, not a religious question. There are people who believe that a newborn baby is not deserving of all the rights of an adult. Does your argument also permit a mother to end the existence of her newborn because she discovers that the child is blind and she feels that she can’t handle this? I mean, what’s the difference between an eight month fetus and a newborn baby? They can both live outside the womb by themselves. Isn’t it irrational to permit abortion in one case and not the other?

            2. This is the old classic joke.

              Donald Trump ask AOC, "would go to bed with me for $10 million". AOC thinking of all charitable causes she could fund said "of coarse". Trump the deal maker counters, "would you go to bed with me for $100"? AOC, shocked and offended, "Hell no, what do you think I am? Trump replies, "we have established what you are, now we are negotiating the price".

              So we have all agreed a human life starts at conception. The new Roe debate is just trying to find the limit at which you are allowed to kill the baby.

              1. It isn't all that old. Winston Churchill said it, supposedly. I assume not about AOC.

              2. Almost no one agrees that life begins at conception. The fact that you delude yourself that way proves you can't be trusted to think logically and protect people's right believe what they choose.

                1. This is... flat out contrafactual. Almost all biologists agree that life begins at conception.

                  The fact it makes your argument more distasteful to some does not invalidate that.

                  1. Biologically, the egg and sperm are both alive before they ever meet.

                    1. True, but "life begins at conception" is a claim about when the life of an organism begins. Nobody claims that sperm or egg are organisms, though they are certainly living cells.

          2. and it’s irrational to develop a policy that keeps abortion legal while also denying abortions to many women who want to pick that option

            Yes; that was my point. Banning abortion may be rational. Allowing it up until viability may be rational. Allowing it up until birth may be rational. But 6 weeks is not; it's arbitrary to begin with, and it has the effect of virtually banning abortions while pretending not to.

            1. But, the policy is not to allow it up to six weeks.

              It is to allow it up to detection of a fetal heartbeat.

              Six weeks is just about when such would be detectable in a normal pregnancy. But, not all pregnancies proceed normally. So the policy does hinge on a rational distinction.

              1. Brett, to the extent that you are pretending this law has something to do with abnormal pregnancies, you are being dishonest. To the extent that you think this law has something to do with abnormal pregnancies, you are being stupid.

              2. Except it isn't a heartbeat because there isn't a heart yet. And won't be for at four more weeks.

        2. Both. Although since it isn't a human life at 6 weeks, the second piece of preachy nonsense is irrelevant.

          1. So if it isn't a human life is it

            (a) not human or
            (b) not alive ?

    2. The Supreme Court explicitly found that it has a rational basis in Maher v. Roe, decided back in 1977.

      It’s very unlikely this court will reverse such a precedent.

  3. A compromise that I think could work:
    * Access to abortion in the first trimester (or maybe a bit sooner) no without limits.
    * Removal of the abortion specific restrictions on funding and regulations of clinics.
    * No abortion after first trimester (or maybe 10’weeks) except to prevent serious health risks of mother.
    * Accurate and comprehensive reproductive instruction in school.
    * Free and open access to all forms of birth control.
    * Social welfare programs to help low income mothers including child care.

    1. Good luck with that. Just about all the conservative concessions in that list can easily be undone in the future, so nobody would sign up to that even if the Supreme Court would let them.

      1. Nonetheless, Molly's list is not unreasonable and would be seem so by a majority of the US public

        1. Molly’s list is not unreasonable and would be seem so by a majority of the US public

          That's because the rubes have not seen this movie before.

          "No abortion after first trimester (or maybe 10’weeks) except to prevent serious health risks of mother."

          There was a similar provision in the UK law that legalised abortion - allowing abortion up to 28 weeks if there were serious health risks to the mother of continuing the pregnncy. It took the docs 0.0001 nanoseconds to conclude that requiring a woman to continue with a pregnancy she didn't want to continue with, ipso facto constituted a serious risk to the (mental) health of the mother.

          The courts did not feel it their place to disagree.

          Any kind of "but" clause is a large gate through which abortion docs and abortion judges would drive not a mere coach and horses, but entire armoured divisions.

          1. If you assume that everyone is just dying to have late-term abortions. And if you assume that people make these decisions easily, quickly, and logically.

            Neither is true.

    2. A compromise that I think could work

      Put it to the proper forum: the legislature.

    3. I can't help but notice how points 5 and 6 abruptly swing from "allowing people to do something the 'need'" to "and someone else pays for it".

      Why should any government pay for someone else's birth control? Or child care, for that matter. If the parents cannot take care of the child on their own, there are millions of families that can ready to adopt right this moment.

      1. Because that is the compromise, the government would be restricting the woman's ability to terminate her pregnancy, and in return she is given easier options to not get pregnant, and assistance if she keeps the kid. It is the combination of pro-life (restricting and finding alternatives to abortion), and pro-choice (giving the woman more options).

        1. This is logical if you first concede that we start from the thesis that a woman ought to be allowed to terminate her pregnancy at any point. Then she concedes a bit of ground and the government concedes a financial package in return for her conceding some ground. The quid is given for the quo.

          But that opening thesis belongs to side A in the debate and is rejected by side B. The side B thesis is that a woman has no right to terminate her pregnancy at any point (and it's not "her" pregnancy either - it's a joint venture.)

          From this starting point, the government concedes a bit of ground allowing her to abort for the first trimester. The quo is a concession by the government to the woman, not the other way around. Consequently the quid ought to flow in the opposite direction - if the woman avails herself of this first trimester option granted by the government, she should make an additional financial contribution to the government. (Though perhaps the impregnator might be required to cotribute too - there's more than one joint venture involved here.)

          Say an abortion tax of perhaps $10,000. Well under the costs of actually raising a child, but at $10,000 x say 800,000 abortions a year, it's a modest contribution to the costs of the government's expenditures on mothers who do choose to breed.

          Of course in reality, side B has no problem at all about government financial help to mothers, so the alternative financial compromise is never going to be proposed.

          I only propose it myself, in fun, to point out that logically Molly's argument for the financial compromise contains a hidden premise - that side A is right and side B is wrong.

          1. Side B isn't a side. And has no right to impose their decisions on anyone. Because they aren't a part of it.

            Side B is a small group of totalitarians trying to force everyone else to live by their beliefs.

            Side B needs to worry about themselves and leave the rest of us alone.

          2. All law involves imposing one's decisions on others.

    4. I would think that, if you wanted to place a logical and fact-based line, make it the earliest that a baby has ever been delivered and survived. As if now, I believe that's 20 weeks.

  4. "I find these surveys largely unhelpful"

    All issue polls are trash, without exception.

    1. Agree!

      And I like how Prof. Blackman goes from saying that to, " Surveys also show that Americans. . . ."

      As yes, there are technical differences between a survey and a poll, but it's still gathering info from the public.

      1. Note: That's not a Blackman quote but he did add it to his blog.

  5. Oh man, where to begin on this. Let's start with:

    1) Specific citations to the public opinion polls Blackman uses would be helpful.

    2) Compromise is possible, but according to whom? *I personally* wouldn't mind some splitting of the baby (pun intended) on exactly where a state government may at their option prohibit abortion. And perhaps the public agrees with me. But is the current legal and political system organized to result in this type of compromise? (No)

    3) It was a "strategic blunder" by Harris County to bring the sodomy case?? Exactly what is the strategy being executed here that was done so in error?

    1. Exactly what is the strategy being executed here that was done so in error?

      The goal was to inhibit homosexual conduct. The choice of this prosecution was a strategic blunder since it removed restrictions on homosexual conduct.

      1. But that actually the objective? This seems highly contestable.

        And was it clear - at the time of the arrest - it would backfire?

        1. But that actually the objective? This seems highly contestable.

          Why is it highly contestable to assume that the motive for prosecuting a person for violating a law that criminalizes sexual intimacy by same-sex couples is to discourage sexual intimacy by same-sex couples?

          And was it clear – at the time of the arrest – it would backfire?

          I guess the question here is whether to be a blunder an act must be the product of stupidity or carelessness.

      2. Why should anyone think they get to inhibit homosexual conduct?

        Oh, right. They are more moral than everyone else.

  6. For these reasons, I don't find persuasive arguments that overruling Roe would lead to overruling Obergefell and Lawrence. Same-sex marriage has reached a broad level of consensus in a very short period of time. Indeed, even back in 2003, sodomy prosecutions were almost nonexistent. It was a strategic blunder for the Harris County District Attorney to even bring the case against Lawrence. Those cases are not going anywhere. Ditto for Loving and Griswold. Support for interracial marriage is at very high levels. And Estelle Griswold begged to be arrested in order to set up her test case six decades ago. The only substantive due process precedent on the chopping block would be Roe.

    This is absolutely right. For political reasons, liberals have always been afraid to defend smashmortion ("Knocked Up" so perfectly mocked this attitude). Which is weird, because Roe is pretty popular.

    But one of the offshoots of the smashmortion strategy is that liberals think the ticket is to claim it will never stop with Roe. Griswold and Lawrence and Obergefell are perpetually on the chopping block, and you know what, they are going to interpret the 14th Amendment to ban abortion nationwide too!

    If you look at what the conservative movement is actually doing, you can see that's false. There was a small boomlet in Kim Davis-style cases on gay marriage, but that faded. The only cases left are Masterpiece Cakeshop type things that may nibble around the edges but do not directly challenge Obergefell. Same with contraception- Hobby Lobby was an abomination, but it was also pointedly NOT a challenge to Griswold. And nobody's reviving sodomy laws.

    And no way will any conservative judge ever hold that the 14th Amendment imposes a duty on the state to protect life. That is so obviously going to lead to liberal results in tons of other cases. There's a reason that conservative judges and scholars supported the result in DaShaney.

    Their project on substantive due process was to overturn Roe/Casey, and really, only Roe/Casey. And liberals have lost a lot of ground in this argument for not just sticking to the issue and talking about abortion rights.

    1. Like all of the other "moral" issues you mentioned, cultural conservatives will lose the abortion issue. Granted, they are getting desperate and coming up with new and interesting ways to try to thwart the majority of people who think that abortion is a personal moral decision. But like with women's sufferage, Prohibition, lynching, interracial marriage, divorce, gay sex, and gay marriage from the past and abortion, drugs, and prostitution in the near future, cultural conservatives who want to impose their beliefs on the population at large will continue to lose.

      One of the most encouraging things about American history is not that we always get it right (because we don't), but that when we fix the mistakes of the past personal agency and liberty eventually wins out.

  7. "Guest essay" is not a new name for "op-ed".

    1. "(These essays were formerly known as Op-Eds because they appeared in print opposite the editorial page.) "

      https://help.nytimes.com/hc/en-us/articles/115014809107-How-to-submit-a-Guest-Essay-for-Opinion

      1. I assume the Captain is prepared to surrender the bridge.

        1. Regular columnists were also op-eds.

        2. "I assume the Captain is prepared to surrender the bridge."

          No, he is just ignoring the iceberg that hit his ship.

          Here's another [headline only, can't open link]

          Opinion | Why The New York Times Is Retiring the Term ‘Op-Ed’
          https://www.nytimes.com/2021/04/26/opinion/nyt-opinion-oped-redesign.html Apr 26, 2021

          1. https://www.nytimes.com/section/opinion/columnists

            Note that these usual suspects are called “Op-Ed Columnists”.

  8. A much simpler and more constitutionally justified "compromise" would simply be to rule what everybody on all sides already knows - that the Constitution has precisely squat to say about abortion and that therefore SCOTUS should have nothing to say about it either.

    That would throw the matter back to the States where in all probability most States would arrive at the sort of somewhere between 1st an 2nd trimester compromise proposed.

    No doubt some very blue places would still have the political concensus for OK-ing abortion all the way until the crittur is outside and has had its cord chopped. While some very red places would try a full ban, or a post heartbeat ban. But its doubtful if they could sustain them. GOP state legislatures would probably find themselves on the wrong end of some fairly unpleasant election results and would trim to something like the 1st trimester.

    1. Completely agree. I have always felt that SCoTUS is wrongly (and very unfairly) put into the untenable position of having to adjudicate questions that really ought to be decided by our elected representatives.

      The state legislatures can decide this.

      1. SCOTUS volunteered for this "unfair" treatment.

        1. They did indeed, Lee Moore. You are right about that.

    2. The Constitution says diddly squat about Covid 19 shutdowns, police use of excessive force, or child pornography either. So the Supreme Court should have nothing to say about any of those things either?

      Of course you'll come up with broad, general principles that apply. Just as the Court found broad, general principles that applied in Roe v. Wade.

      1. "Just as the Court found broad, general principles that applied in Roe v. Wade."

        No, the Court pretended to find such broad, general principles. I say pretended, because they never applied them generally, and how broad and general can a principle be if it only applies to a narrow category of cases?

        If those broad, general principles had been sincere, they would have worked a revolution on American law. That never happened.

        1. Furthermore, the Court never articulated what the principle is, according to which we know which "liberties" are constitutionally protected.

          1. But the founders did.

            9th Amendment: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." My translation: There are unenumerated individual rights, and the courts expressly have license to discover and protect them.

            10th Amendment: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." My translation: There can be *no* unenumerated federal powers, and strict construction is compulsory (so no relying on either the "necessary and proper" or "general welfare" clause by itself as granting any power). Federalist #44 supports this reading.

        2. I completely agree that the principles in Roe should have been applied far more expansively than they were. But that they weren't is not a reason not to apply them in Roe. Sometimes half a loaf really is the best you're going to get.

          1. Sometimes your claimed principles are just an empty excuse to arrive at a particular outcome. How do people tell that they are?

            You don't apply them to anything else.

            The Court's majority just wanted to legalize abortion, there wasn't anything more principled than that.

            1. But they do apply to other things: Gay marriage, sodomy statutes, birth control, anti-miscegenation laws. True, they should also apply to the war on drugs, but you can't plausibly claim that the court carved out an abortion exception that applies only to abortion.

              1. One of these things is not like the others.

                The anti-miscegenation laws were struck down due to a very real 14th amendment, and properly so: Courts immediately began striking them down after the 14th amendment was ratified, where states didn't repeal them, it was a widely debated consequence of the amendment. If not for the Supreme court setting out to render the amendment moot in the Slaughterhouse case, inter-racial marriage would have been constitutionally protected for a century by the time Virginia v US was heard.

                No, the principles appealed to in Roe are limited to sex, they never get you anywhere in other contexts. And they would, if the Court actually meant them.

                1. But finding a right to sexual freedom (whether the immediate issue is abortion, birth control or gay marriage) in the 14th Amendment is child's play. Though granted, that's not where the Court actually did find it.

                  Every law discriminates against somebody. Laws against murder discriminate against people who wish to commit murder. So the question is not whether a law is discriminatory -- the answer is yes -- but rather, whether it is discrimination of a type that doesn't conflict with basic notions of liberty. Discriminating against murderers is fine because not doing so would cause harm to the people they murder, and that harm is greater than the harm of telling murderers they can't. On the other hand, discrimination against people who wish to do family planning or marry someone of the same sex causes no real harm, except to the sensibilities of busybodies who need to get a life. So you're left with a law that discriminates with no real social value. Which is the essence of equal protection.

                  I would go so far as to say that the Fourteenth Amendment, especially read in tandem with the Ninth, essentially requires the maximum amount of liberty consistent with living in civil society.

                  Abortion is a tougher nut because of the claim that the fetus is itself a person, in which case you have rights in conflict. But it's still effectively an equal protection argument.

                  1. "I would go so far as to say that the Fourteenth Amendment, especially read in tandem with the Ninth, essentially requires the maximum amount of liberty consistent with living in civil society."

                    That would be a principled approach which is not the approach that led to Roe.

                    I'm not saying that no general principle could get you to Roe. I'm saying no general principle that got you to Roe would stop there, so it was not a general principle that actually gave us Roe.

                  2. But finding a right to sexual freedom (whether the immediate issue is abortion, birth control or gay marriage) in the 14th Amendment is child’s play.

                    But somehow at the time of the 14th amendment nobody thought it mandated the legalization of gay marriage. Are you arguing that whether they meant it to or not, the term “liberty” included the wish-list of the most expansive libertarian? Is the liberty to work for whatever pay one agrees to work for included, thus invalidating minimum wage laws? Where is the line drawn?

                    1. Understand that you're arguing abortion with someone who has repeatedly insisted that a fetus is guilty of trespass as a matter of law, and just today cited this description of "Trespass to the Person" (from https://tort.laws.com/intentional-interference/with-a-person/with-a-person) in support of that assertion:

                      "Intentional interference with a person is also known as Trespass to the Person. This is classified as any unwanted, offensive, or unjustified interference with a person's body, liberty or rights."

                      That's right. He thinks that a fetus' presence in in its mother's womb is a result of its conscious intent to interfere with her body, and that it is committing a tort.

                    2. That’s right. He thinks that a fetus’ presence in in its mother’s womb is a result of its conscious intent to interfere with her body, and that it is committing a tort.

                      Oh my God. He's stark raving mad! Or do you think he's actually just having fun trolling people?

  9. You cannot compromise with an executioner.

    1. Go ahead, propose making abortion a crime with a hefty prison sentence and see where that gets you.

  10. One major problem: the "health exception" basically vitiates any laws against abortion, regardless of the viability of the fetus.

      1. Yes true. There is no downside to signing of on a medically unnecessary abortion.

        1. But that's not because of health exceptions. That's because of Doe v Bolton, decided later the same day as Roe v Wade.

          The authority to regulate that Roe extended, Doe snatched back, by declaring that a doctor's determination of 'medical necessity' was unreviewable. Since it was unreviewable, there were no professional downsides to making such declarations pretextually to permit elective abortions after the 1st term. A narrow exception for medical necessity swallowed the rule.

          1. Where in Doe v. Bolton does it say "a doctor's determination of 'medical necessity' [is] unreviewable"?

            Looking for cite to the opinion, because I don't see it.

            1. Asking Brett to support his bold assertions with actual authority is a waste of time.

              Preconceptions now.
              Preconceptions tomorrow.
              Preconceptions fo´evah!

            2. I linked to the opinion, you could have read it.

              "In addition to a requirement that the patient be a Georgia resident and certain other requirements, the statutory scheme poses three procedural conditions in § 26—1202(b): (1) that the abortion be performed in a hospital accredited by the Joint Commission on Accreditation of Hospitals (JCAH); (2) that the procedure be approved by the hospital staff abortion committee; and (3) that the performing physician's judgment be confirmed by independent examinations of the patient by two other licensed physicians."

              "The interposition of a hospital committee on abortion, a procedure not applicable as a matter of state criminal law to other surgical situations, is unduly restrictive of the patient's rights, which are already safeguarded by her personal physician."

              " Required acquiescence by two copractitioners also has no rational connection with a patient's needs and unduly infringes on her physician's right to practice."

              "Saying all this, however, does not settle the issue of the constitutional propriety of the committee requirement. Viewing the Georgia statute as a whole, we see no constitutionally justifiable pertinence in the structure for the advance approval by the abortion committee. With regard to the protection of potential life, the medical judgment is already completed prior to the committee stage, and review by a committee once removed from diagnosis is basically redundant. We are not cited to any other surgical procedure made subject to committee approval as a matter of state criminal law. The woman's right to receive medical care in accordance with her licensed physician's best judgment and the physician's right to administer it are substantially limited by this statutorily imposed overview."

              And here's the coup de grace:

              "We conclude that the interposition of the hospital abortion committee is unduly restrictive of the patient's rights and needs that, at this point, have already been medically delineated and substantiated by her personal physician. To ask more serves neither the hospital nor the State."

              The doctor's determination of medical necessity could not be reviewed, because to do so would be redundant.

              1. All the text you cite goes to whether the woman can be required to get a majority of three physicians to agree, instead of simply relying on the opinion of one physician. This is being treated as a requirement implemented simply to be obstructive. The question of criminal liability for failure of the physician use "his best clinical judgment" is a different question.

                Furthermore, according to the syllabus the physicians in question were not charged with abortion violations. So isn’t any statement that they were not guilty of abortion violations obiter dicta?

              2. That referred to problems with the Georgia requirement of review by a hospital committee. It had nothing to do with whether late term abortions can never be criminalized.

                When and where did you get your training as to how to parse a judicial opinion? If you can't run with the big dogs, stay on the porch.

                1. When and where did you get your training as to how to parse a judicial opinion?

                  From his engineering background. He does that all the time.

              3. You may wish to note that, before your reply, I separately replied to one of your comments below that:

                "While the S.Ct. held that the *specific* onerous GA requirements were unconstitutional (hospital only, even for 1st trimester; interposition of a hospital committee; 3 doctor panel) , it did not indicate that all possible rules relating to “medical judgment” were de jure unconstitutional. I think you’re reading too much into Doe."

                I did in fact read the opinion. I am looking for a cite that *all* medical determinations are unreviewable, both before and after the fact. You're making blanket statements that are not supported by the opinion, to suggest a legal landscape that is different than reality.

                1. They declared the process redundant, since the woman's physician had already made the determination. This reasoning would apply to ANY review process after that determination.

                  1. It’s true that Bolton expansively defined the term “health” to include “all factors - physical, emotional, psychological, familial, and the woman's age - relevant to the wellbeing of the patient. All these factors may relate to health.” And Justice Douglas in his concurrence included “such suffering, dislocations, misery, or tragedy as to make an early abortion the only civilized step to take.” Under these circumstances just about anything serves the purpose. But what if the state did not simply use the term “health” but defined it more specifically so as to exclude misery and inconvenience and to include only physical health? It seems that Bolton simply gave a definition of “health” with no other modifiers.

                  2. This reasoning would apply to ANY review process after that determination.

                    No, it would not. At most it would apply to any pre-abortion review process. It said nothing about prosecuting an abortion after the fact if the determination were false.

                    1. It said nothing about prosecuting an abortion after the fact if the determination were false.

                      Besides defining “health” so broadly as to include emotional wellbeing, the Court said:

                      If a physician is licensed by the State, he is recognized by the State as capable of exercising acceptable clinical judgment. If he fails in this, professional censure and deprivation of his license are available remedies.

                      This seems to imply that formal legal prosecution will not be an available remedy. However, the physician still has a legal duty to evaluate the health of the mother, and despite the fact that almost anything will qualify, what if it can be shown that the physician did not evaluate the health of the mother at all? Wouldn’t that be a prosecutable violation of his or her legal duty?

    1. Correct. "my students are surprised to learn how those two landmark decisions drew lines: Roe at the second trimester, Casey at the point of viability."

      Those students know more than the teacher. As Brett says, the court declared that a doctor’s determination of ‘medical necessity’ was unreviewable. That meant that abortion was allowed in all nine months. Attempts to ban late-term abortions were all found unconstitutional under Roe and Casey.

      1. What is your authority for claiming that a doctor´s determination is unreviewable? Post-viability abortions can be criminalized, subject to an exception for maternal health. Your contention that attempts to ban late-term abortions were all found unconstitutional under Roe and Casey is a falsehood.

        Where a statute prohibits post-viability abortion, that statute must include the maternal health, per Roe. A doctor who performs an abortion under such a statute risks criminal prosecution, and whether the exception applies would present a question for a properly instructed jury. Hardly unreviewable.

        1. That should be that statute must include the maternal health exception, per Roe.

          1. Right, and the doctor, per Doe, makes that determination, without anybody second guessing him. Because he's already made the determination, it would be redundant for anybody to review it.

            1. You missed my point entirely about the risk of criminal prosecution and review by a jury of whether any health exception is satisfied.

        2. Doctors also risk professional sanction for violations of law.

  11. So much for Josh "judges shouldn't just totally make up unenumerated rights out of nowhere" Blackman

  12. Much of the criticism of Roe v.Wade focuses on abortion rights not being included in the text of the Constitution. That cavil applies with equal force to other substantive due process rights. A right to marriage is nowhere enumerated in the Constitution, nor is a right to use birth control, nor is a right to sexual intimacy. Nevertheless, SCOTUS has substantially removed these subjects from the vicissitudes of state legislative politics.

    As early as 1923, the Supreme Court recognized that the liberty protected by the Due Process clause of the Fourteenth Amendment ¨denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.¨ Meyer v. Nebraska, 262 U.S. 390, 399 (1923). The concept of unenumerated rights is not of recent vintage.

    Many abortion opponents also object to birth control as well. If a state interest in interfering with the personal decision to bear a child is recognized, how long will it be before the coat hanger coalition threatens Griswold v.Connecticut and Eisenstadt v. Baird?

    1. Many abortion opponents also object to birth control as well. If a state interest in interfering with the personal decision to bear a child is recognized, how long will it be before the coat hanger coalition threatens Griswold v.Connecticut and Eisenstadt v. Baird?

      It's like you didn't bother to read either the post or the comments posted before yours before reciting your talking points. There is no slippery slope here. The constituency in favor of banning contraception is effectively nonexistent. (Yes, I know the Catholic Church officially forbids contraception, but they aren't campaigning to make it illegal and if they did would have no support even from their own members.)

      1. I think an outright ban of all birth control isn't currently in the works, but there certainly are attempts to ban some forms of contraception because of religious beliefs and misinformation.

        For example, the mistaken notion that Plan B emergency contraception (Levonorgestrel) is an abortificant: “contraception stops a woman from becoming pregnant. The Plan B pill kills a baby in the womb once a woman is already pregnant.” (Majorie Taylor Green; https://thehill.com/homenews/house/560161-house-passes-veterans-contraception-lgbtq-business-bills-previously-blocked-by) Which is ... not how Plan B actually works.

        1. But that's just a factual error, not conceptual (heh) support for a ban on contraception.

          1. And not necessarily a factual error. The facts seem to be murky. I recall reading something a while back that seemed to indicate that the debate had finally been settled and it was now clear that Plan B never had an abortifacient effect, but regoogling did not confirm that. The most interesting analysis I found was this one, which inter alia reviewed the "now clear never" paper :

            https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4313438/

            which concluded that Plan B may indeed have an abortifcaient effect, if taken prior to ovulation, though it is not possible at this stage to be clear one way or the other.

            But most interesting - and unexpected - was the conclusion that Plan B might sometimes have an "anti-abortionary" effect, if taken after ovulation. Again not clear but they seemed to think that taking Plan B pre-ovulation might destabiise the endometrium - with an abortifacient effect, but taking it post ovulation might stabilise it and making it marginally easier for implantation to occur. Not necessarily good sales publicity for Plan B, but a fascinating possibility and a possible quandary for pro-life moralists.

      2. David, I agree that at the moment there is no political support for banning contraception, but that doesn't mean that will still be the case twenty or fifty years from now. Public opinion can shift pretty quickly; nobody would have predicted gay marriage fifty years ago.

        And the problem with gutting Roe is that it's hard to then come up with a principled reason based on constitutional law to keep Griswold. You can argue that life begins at conception so abortion is different from birth control, but that's a legislative determination, not a constitutional one.

        1. There's no conceivable (again: heh) situation in which public opinion will shift the other way. (Well, I suppose dystopian sci-fi authors can come up with such situations.) Public opinion shifts in predictable ways; it's impossible to sustain strong opposition to things that don't actually affect other people, like gay marriage and contraception.

          As such, Griswold is irrelevant; even if SCOTUS overruled it, there are not going to be any legislatures criminalizing contraception. And how is SCOTUS going to overrule it? How is the issue going to get to the Court in the first place?

          Note that while Roe does depend on Griswold, Griswold doesn't depend on Roe. It's true that an anti-abortion Supreme Court ruling that there were no right to privacy of any sort would also vitiate Griswold, but (a) not even Clarence Thomas would issue such a decision in a case challenging Roe; and (b) that wouldn't be enough; lower courts are bound by Griswold unless SCOTUS expressly overturns it.

          And it's not hard to come up with a principled reason at all to draw a line between them: the government has a compelling interest in protecting the lives of unborn children that supersedes any right to privacy that people have. (I mean, Roe itself says that — it just draws the line at the third trimester rather than at conception.)

          1. "it’s impossible to sustain strong opposition to things that don’t actually affect other people"

            And yet, anti-abortionists have yet to let people make their own moral decisions. And someone else's abortion has exactly nothing to do with them.

        2. but that doesn’t mean that will still be the case twenty or fifty years from now.

          A: "B is a rapist!"

          B: "I've never raped anyone in my entire life."

          C: "But you might...20 or 50 years from now!"

    2. That cavil applies with equal force to other substantive due process rights.

      But certainly extending the notion of "liberty" to activities that never had a history of being accepted by the people as a natural liberty does cross a line that requires an explanation.

    3. Wow, all these arguments make me wonder, why these rights of bodily autonomy are thrust aside if the proper level of executive declares a health emergency.

      1. Because the government has a compelling interest in preventing mass death?

        That something is a fundamental right does not mean that the government can't overcome it.

  13. Ah, the old “gimme whatever i demand and we’re good” compromise. A classic.

  14. Many abortion providers do not provide abortion services after the first trimester because these are significantly more difficult procedures. Many early abortions can be induced medically and it could be argued do not even require a clinic. Surgical abortions do require a level of expertise and equipment that the average clinic does not have available.

    While it is easy to address later abortion where the patient has dragged there feet in making a decision, there are also many cases where the need for a later term relates to the health of the mother or the fetus and these must be addressed. I think the likelihood of this compromise working is little to none.

  15. "Generally, support for first trimester abortions is far greater than support for abortions are the first trimester."

    "After" the first trimester, I think you mean.

    Surprised you didn't mention Doe v Bolton. Decided the same day, it essentially gutted Roe's promise that the states could regulate abortion after the 1st trimester.

    1. Where in Doe v. Bolton do you get the idea that medical exceptions are effectively unreviewable?

      "Whether, in the words of the Georgia statute, "an abortion is necessary" is a professional judgment that the Georgia physician will be called upon to make routinely. We agree with the District Court, 319 F. Supp., at 1058, that the medical judgment may be exercised in the light of all factors - physical, emotional, psychological, familial, and the woman's age - relevant to the well-being of the patient. All these factors may relate to health"

      While the S.Ct. held that the *specific* onerous GA requirements were unconstitutional (hospital only, even for 1st trimester; interposition of a hospital committee; 3 doctor panel) , it did not indicate that all rules relating to "medical judgment" were de jure unconstitutional. I think you're reading too much into Doe.

      1. Yes, Doe said that not even the hospital could review the justification for the abortion. If the patient and the physician are in agreement that the factors justify the abortion, then no one else can have an opinion on the matter.

        1. Cite to the actual opinion, please?

        2. A state can criminalize post-viability abortions consistent with Roe and Casey, subject to an exception for maternal health as required by Roe. A doctor who performs a late term abortion not related to maternal health, where such a statute is in force, risks criminal prosecution. That is the ultimate reviewability.

          1. That is not meaningful reviewability so long as the doctor who performs a late term abortion is solely empowered to decide whether it was medically necessary.

            1. Uh, that is not the case. A state remains free to criminalize late term abortions, but not to choose the particular restrictions selected by the Georgia legislature in Bolton.

              Where a state criminalizes late term abortion, subject to the required maternal health exception, a properly instructed jury can consider whether the subject abortion was not necessary to preserving maternal health. Nothing in Bolton is to the contrary, no matter how much you yap and yammer. That the exception does not apply becomes an element of the offense requiring the ordinary standard of proof beyond a reasonable doubt.

              How many jury trials have you participated in?

  16. Instead of asking about ages the polls should show a picture (ultrasound). Would you allow aborting this? Since I'm in a scientific frame of mind now, there should be two polls. One has arrows calling out spots as belonging to a fetus. The other doesn't, and has some ultrasounds of non-pregant women mixed in, requiring viewers to figure out if there is a fetus there and if so how developed it is.

    1. I'm not sure who it would convince, but the data would be fascinating!

      The set of photos could also include ectopic pregnancies. And if you want to get more disturbing, deformed / non-viable fetuses....

  17. "Generally, support for first trimester abortions is far greater than support for abortions are the first trimester."

    This guy can't seem to write a blog post without one of these boners in it. That's three in the last week.

    No, not THAT kind of 'boner.'

  18. this sort of compromise [no restrictions on first trimester abortions] would largely restore abortion laws to the democratic process.

    I don't see how given that over 90% of abortions are performed in the first trimester and the pro-life movement isn't going to view this proposal as acceptable.

  19. Do people opposed to 2nd trimester abortions understand that most devastating birth defects aren’t revealed until the major ultrasound undertaken at 18-20 weeks? Things like fatal heart malformations and anencephaly, where the baby will live only hours or days after birth?

  20. It is the job of legislatures, not courts, to craft conpromises. Such compromises are essentially political and legislative in character.

    It is the job of legislatures, not courts, to look to public opinion and determine what approach will be most workable based on pragmatic considerations.

    If such compromises are to be made, courts should let legislatures make them.

    1. It's the job of the courts (or, ultimately, the Supreme Court) to protect the rights of citizens from overreach by legislatures and the executive. That's what checks and balances are for.

  21. As I've said, the people who justify abortion largely can only do so by denying the victims' humanity.

    1. Because it isn't a human yet. That makes it easy.

  22. I've got a better idea:

    How about we be honest, and agree that there's nothing about abortion in the US Constitution.

    And that, therefore, it should be decided by State legislators elected by the people of that State.

    That's how we find out what people actually want, instead of what left wing activists want.

    1. Except almost no one on America wants an abortion ban. But a politician pandering to a vocal and passionate minority in a gerrymandered red state? They will violate any rights to keep on their good side.

      1. If "almost no one" wants a ban, then politicians who support one will get voted out of office.

        And if your State votes to ban abortion, you can vote with your feet, and move someplace that doesn't.

        What you seem to actually be saying is that there's lots of people who want a full ban on abortion, and you don't want them to get their way, the Constitution be damned.

        1. Think in terms of abortion as a single issue. Say a proposition is put to voters that would ban all abortions (even saying that it will make exceptions to save the life of the woman has potential issues as this case from Ireland shows, where such a ban was in place at the time.)

          Which states do you think would get over 50% of voters to say yes to that, assuming turnout comparable to Presidential elections? I would doubt that you'd need two hands to count them.

          Nelson's point (though overstated) is that even among Republicans, a complete ban like that is not particularly popular. But it is among GOP politicians because the GOP has more and more relied on its most strident conservative voters among its base to win elections. In an alternate universe where most GOP elected officials would still work for it to be a center-right party, Missouri's 15 week limit would be as far as any GOP-led state would ever try and go. But being beholden to ~30% of the overall electorate in this country means that they try and implement things that are red meat to that minority.

          1. Well, gosh, let's trade:

            The left completely gives up on CRT, opposition to Photo ID requirements to vote, letting "trans" males into female spaces, and cancel culture.

            None of which could win at the ballot box in "two hands" of States.

            And then we'll talk about giving up complete bans on abortion.

            But, until then, we're still at the place that Roe and Casey were entirely illegitimate rulings, and there's nothing in the US Constitution that prohibits complete and total bans on abortion.

            1. You are dodging and trying to distract me with non sequiturs. Address how the GOP is using the passionate views of the ~30% of the U.S. population that is completely anti-abortion to make law and drive that base to polls without resorting to tu quoque arguments, or not.

              ...and there’s nothing in the US Constitution that prohibits complete and total bans on abortion.

              For bonus points, stop trying to dodge the 9th Amendment. I point out in my other reply that this argument is completely invalid, as a constitutional matter.

    2. How about we be honest, and agree that there’s nothing about abortion in the US Constitution.

      There's nothing about "executive privilege" in the Constitution either. Or "qualified immunity", and there are all kinds of other ways in which conservative Justices have read between the lines of the Constitution when it suited them.

      And since the Constitution explicitly says not to "deny or disparage" rights because they aren't specifically mentioned in its text, this argument is invalid on its face.

  23. This NYTimes article and Blackman's support for its premise is about trying to craft a political compromise, which should have little, if anything, to do with how courts rule on the issue. They also make some poor arguments even on that.

    Suppose I was a gun dealer, and I fully supported people's right to own hunting rifles, shotguns, and handguns. But I was personally appalled at how people with semi-automatic rifles and handguns with high-capacity magazines could murder large numbers of people in a short period of time before anyone could stop them. So I refuse to sell those. Is that an argument that no other gun dealer should be allowed to sell them either?

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