Abortion in the States

Michigan voters voted 56.7% to 43.3% (with >95% of votes in, see N.Y. Times) to enact a state constitutional right to reproductive freedom, which would cover abortion rights; California and Vermont voters supported the same, but those states already broadly allow abortions.

Voters in Kentucky (where abortion is generally illegal) appear to have rejected (52.4% to 47.6%, with 91% in) a constitutional amendment that would keep the Kentucky courts from interpreting the Kentucky Constitution as securing a constitutional right to abortion. Recall that in August Kansas voters declined to reverse a Kansas Supreme Court decision that had recognized a state constitutional right to abortion.

Dobbs returned decisions about abortion to the states, and this is what state voters are saying, at least in these states.

Comments

[Not Unreasonable]

Pro-life supporters of the Kentucky proposed amendment overreached. The text most likely would not have allowed an abortion in any case, including to save the life of the mother.

"To protect human life, nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion." https://apps.legislature.ky.gov/law/acts/21RS/documents/0174.pdf.

I consider myself pro-life, but I could not support such a broad ban.

[Noorondoor]

That's not what the amendment did. The amendment would have allowed the legislature to do that, sure, but it didn't do it on its own.

[Brett Bellmore]

This is life in a country where one end of the political spectrum controls almost all of the media. We need to either get used to it, or change that.

[bernard11]

Take off the tin hat, Brett.

Here's what CNN says about the proposed amendment:

Kentucky voters on Tuesday rejected a proposal to amend the state’s constitution to say that it does not “secure or protect a right” to abortion or the funding of abortion, CNN projects.

The ballot question voters faced read: “Are you in favor of amending the Constitution of Kentucky by creating a new Section of the Constitution to be numbered Section 26A to state as follows: To protect human life, nothing in this Constitution shall be construed to secure or protect a right to abortion or require the funding of abortion?”

NYT describes it as:

An amendment would state there is no right to abortion, or any requirement to fund abortion, in the State Constitution.

Where is the bias in those two descriptions.

[shawn_dude]

The liberals control FOX?! Since when?

[Brett Bellmore]

Even in 2016 Fox was attacking Trump as often as they supported him; They only looked pro-Trump by comparison to CNN.

[Brett Bellmore]

News Coverage of the 2016 General Election: How the Press Failed the Voters Shorenstein Center.

Figure 9, tone of Trump coverage by news outlet.

CBS: 89-11 negative
USA Today: 88-12 negative
WaPo: 87-13 negative
LA Times: 86-14 negative
NYT: 86-14 negative
NBC: 83-17 negative
ABC: 81-19 negative
CNN: 81-19 negative
WSJ: 80-20 negative
Fox: 73-27 negative.

As I said, Fox only looked pro-Trump compared to the rest of them, they were actually very negative in their coverage of him.

Let's look at the same numbers for Clinton.

CBS: 61-39 negative
USA Today: 70-30 negative
LA Times: 53-47 negative
NYT: 61-39 negative
NBC: 63-37 negative
ABC: 63-37 negative
CNN: 67-33 negative
WSJ: 63-37 negative
Fox: 81-19 negative.

Trump got his best coverage from Fox, and it was worse than Clinton got anywhere but Fox. But not much worse.

Or to put it another way: Every outlet but Fox gave Trump worse coverage than ANYBODY gave Clinton.

And this for a candidate who got nearly half the vote on election day, and was wildly popular with a major political party.

So, yeah, Fox IS a liberal outlet. Just not quite as liberal as the rest.

[SRG]

I imagine press coverage would also show a strong bias against John Gotti.

[Noorondoor]

Ahh, yes, any Republicans is by definition bad, so therefore, negative press is acceptable. You're a fucking idiot.

[zztop8970]

"one end of the political spectrum controls almost all of the media.. Try reading a little more carefully.

[Noorondoor]

The change will come when the economic system collapses. I'm hoping it comes in the form of AR-15s and gas chambers.

[Not Unreasonable]

The text of the amendment allows it, but you are correct that the legislature would have had to pass enabling legislation. This would be the same legislature that passed the sweeping amendment.

[The Margrave of Azilia]

It sounds like it would have let the legislature adopt anti-abortion laws without being second-guessed by Kentucky courts.

But with this vote, the state courts may be emboldened to adopt some kind of Roe 2.0.

[jdgalt1]

California's measure does not just protect the status quo, though it was marketed as if it did. It extends legal abortion all the way to birth and 3 weeks beyond.

I would think that applying this to infanticide after birth would be subject to a 14th Amendment challenge. I wonder how long it will take for one to occur.

[Sarcastr0]

https://www.politifact.com/factchecks/2022/apr/06/facebook-posts/no-california-bill-wouldnt-allow-mothers-kill-thei/

Next time, check to see if you're going to post like an idiot if you post a thing you heard on toogoodtocheckrightwinginsanity.com

[Brett Bellmore]

Pretty typical "fact check", in that it basically confirms everything claimed, and then declares the claim to be false anyway.

For instance, "It would also prevent using a coroner’s statement on a certificate of fetal death to pursue a criminal or civil case."

Um, how exactly are you supposed to pursue such criminal cases if a coroner's statement that, say "The infant appears to have died of blunt force trauma after a live birth" would be inadmissible as a cause for prosecution?

And, ""Notwithstanding any other law, a person shall not be subject to civil or criminal liability or penalty, or otherwise deprived of their rights, based on their actions or omissions with respect to their pregnancy or actual, potential, or alleged pregnancy outcome, including miscarriage, stillbirth, or abortion, or perinatal death.""

"Perinatal" refers to the period around birth, not immediately prior to it. IOW, it extends several days past live birth. So, how exactly does this NOT permit killing your baby for a while after they were born alive?

Politifact then says, "These false claims appear to arise out of the ambiguity of the term "perinatal."" And goes on to cite several sources that actually AGREE that the term includes some period AFTER birth! And were only ambiguous about how long after.

So, Politifact relies on the author saying, essentially, "No, we didn't mean that." While the supposedly debunked claim relies on the actual text of what was enacted.

Yup, pretty typical "fact check", and why "fact checking" is so often total bs.

[Sarcastr0]

No, Brett. This is you substituting your suppositions to decide how the law would actually operate. The fact check is quite careful not to do that.

No, Brett, California is not going to legalize infanticide. FFS.

[zztop8970]

Everything Brett. wrote is correct. You think the law would operate one way, while others think it would operate a different way. The actual text of the law does not preclude post-birth infanticide, and even the bs “fact check” includes commentary from legal experts that say ‘It would be helpful for lawmakers to define” the terms they use.

[not guilty]

How would post-birth infanticide not be prosecutable under generally applicable homicide statutes?

[zztop8970]

Who says generally applicable homicide statutes take precedence over this law? Do generally applicable homicide statutes allow for the prosecution of people carrying out the death penalty?

[not guilty]

If a coroner's statement is inadmissible (it is hearsay, after all), the prosecutor calls a qualified medical examiner to testify and be cross-examined. (Many coroners are not physicians.)

[zztop8970]

These offices (coroner/medical examiner) are treated as interchangeable under CA law, and the idea that a coroner's statement based on his examination is 'hearsay' is laughable,

[Snorkle]

I'm really surprised that you can still afford to get online. I thought all the people stupid enough to believe retail Republican talking points were heavily invested in shitcoins.

[ReaderY]

I think that Professor Volokh is generally right that so far, there has been a general trend in favor of liberal abortion policy whenever this has been put to a ballot. I think arguments that voters are merely rejecting extremes have not been completely refuted. But the current round of ballot proposition results certainly isn’t evidence for this idea. The fact is, voters so far have consistently passed complete ratifications of Roe (i.e. mandating virtually complete legalization) whenever it has been brought before them, and have consistently rejected any amendment that even so much as permits restricting abortion. And this occurred even in otherwise conservative states like Kansas.

Perhaps more electorates and legislatures will settle on some sort of intermediate position when it’s presented to them. But so far, this hasn’t happened. Given the two choices that have been presented so far - abortion as a full right, or any restictions permitted - voters so far have supported abortion as a full right amendments, and have rejected any restrictions permitted amendments.

[SMP0328]

These abortion-rights amendments are codifications of Roe v. Wade and Doe v. Bolton (both from 1973), but are rejections of Planned Parenthood v. Casey (1992), as all of these amendments apply the strict scrutiny standard (rather than "undue burden") to any abortion restriction. So, in these States the result of Dobbs is a much stronger abortion right.

[David Nieporent]

So, in these States the result of Dobbs is a much stronger abortion right.

I mean, presumably if a state's voters are willing to enact such a strong protection for abortion, the state wasn't going to enact restrictions on abortion anyway.

[SMP0328]

That's true now but can certainly change. In each of these States, to restrict abortion to any degree will now require repealing the just adopted amendment. So even if the Republicans gained control in such a State, they now can't immediately implement a pro-life agenda.

[Michael D]

I wonder if we end up seeing some states completely ban it and others allow it with no restrictions?

My guess, with little evidence to support this hypothesis either way, is that people probably do not want a constitutional ban on abortions but their fear of one leads them to instead vote for constitutional measures that do not allow bans.

Based on polling data over several years, I believe we have seen that most Americans would enact some level of restrictions after certain time periods but would not want laws that prevent abortions during an entire pregnancy.

This would also be in line with most European abortion restrictions which generally forbid abortions after 12-24 weeks depending upon the jurisdiction.

[ReaderY]

That’s currently exactly what we’re seeing. As others have pointed out, several states have just voted in fewer restrictions than Casey permitted (and several other states already had no restrictions), while complete bans are in effect in several states.

[SimonP]

Next up, let's return free speech, free exercise, the right to bear arms, and other fundamental questions about our liberties as free citizens to the states for popular votes. See what the people actually want their ordered liberty to look like.

Astonishingly facile, Eugene, but no longer surprising.

[ReaderY]

Don’t these things get an actual mention in the Constitution?

[not guilty]

Supporters of abortion rights can take heart from the various state referenda. In addition to those states mentioned by Professor Volokh, a "born alive" measure is trailing in Montana with 88 percent of the vote reported. https://www.nytimes.com/interactive/2022/11/08/us/elections/results-montana-legislative-referendum-131-born-alive-infants-regulation.html

How many of us, if asked for advice by a 15 year old relative facing an unwanted pregnancy, would cavalierly say, "I'm sorry, but you are not competent to make any decision regarding continuing the pregnancy to term, and I am not competent to advise you. Go ask the governor and do whatever he decides"?

[ReaderY]

I will at this point refrain from arguing my own view on abortion and bring up a point that could be applied to almost any social issue. Legitimacy promotes stability. And while the Trump era has gravely challenged this norm (and in my view caused. grave damage to the fabric of the country in doing so), it is still generally the case that the democratic process promotes stability.

The Supreme Court’s seizure of the issue , in 1972, like the Court’s seizure of the slavery issue in 1856, led in no small part to a destabilization of our politics.

Like the return of alcohol prohibition questions to the states following the 18th Amendment, returning the issue to the states may help facilitate stability, free the federal government to focus on issues of its proper concern, and permit acceptance of the local law, however much opponents disagree with it, as nonetheless legitimate. It may help keep the country from going the way it did on slavery.

Not much is said these days in favor of Northern abolitionists like Daniel Webster who voted in favor of compromises on slavery like the Compromise of 1850, on grounds that the preservation of the Union is the oath of office’s highest duty, and taking the oath seriously means that that duty must sometimes override the repugnance of even the most extreme moral outrage. But how to preserve the Union must again be something we think about if we are to preserve it. This means the local electorate gets to settle the matter locally, like it or not, until they can be persuaded otherwise.

[SMP0328]

Like the return of alcohol prohibition questions to the states following the 18th Amendment, returning the issue to the states may help facilitate stability, free the federal government to focus on issues of its proper concern, and permit acceptance of the local law, however much opponents disagree with it, as nonetheless legitimate. It may help keep the country from going the way it did on slavery.

The 21st Amendment returned alcohol regulation to the States by repealing the 18th Amendment. Like with Dobbs regarding Roe, the 21st Amendment was adopted based on the belief that the 18th Amendment was egregiously wrong from the start.