by publius
I haven’t read anything about it yet, but I saw (via LGM) that the Supreme Court upheld the partial-birth abortion ban. I’m swamped with work and other things, and will write about it when I can. But very quickly, I wanted to make one important point.
This case was not decided today. It was decided on November 2, 2004. Don’t blame the Court, blame the American people. They voted in a Republican President and the entirely-predictable consequence was increasing restrictions on abortions. In fact, Bush is one Justice Stevens illness away from overturning Roe entirely. And for what it’s worth, if any of the current Republican candidates win, Roe is over for at least a generation. Maybe you think that’s good, maybe you don’t. That’s not the point. The point is that voting for Republicans has consequences and this is one of them. And these things are worth thinking about when you base your vote on things like John Kerry’s windsurfing, or Bush’s probably-fun-to-drink-with-ness.
If Bush gets one more Justice, we will enter an entirely new age of constitutional law. (And if and when that happens, I think people will start coming around to my own process-theory skepticism of judicial power).
If something happens to one of the four remaining justices who don’t completely suck, I’m ready to petition the Senate to delay any replacement until after the 2008 presidential election. Delay, delay, delay.
Wel-ll, you wanted an activist court, and you got one.
The root of this rot is the 1938 decision eliminating English common law in the federal courts (considered a “reform” at the time) or the redistricting decision of 1961 (which made the US House into servants of the state legislatures rather than elected representatives).
The court would have moved against abortion right after 2001, but several sick justices stayed on, in pain and shame, after they went along with the decision on the Florida election. To their credit, they hung on until after the 2004 election. “W” put no one on the court during his first term.
Bush won fairly in 2004. More people with “heart” and “faith” actually voted for him. And the sick justices resigned. You now have the mobocratic, sentimental court that liberals always wanted. It’s just the price for not respecting the law of unintended consequences.
I think the best defense, now, is to make sure we get Presidents and Congressional majorities from different parties. An ambitious judge or law professor, anxious to be on the Supreme Court, needs to follow Souter’s career and offer no thoughts, give no speeches and write nothing about what he thinks.
Well, I guess Ms. 53 will be scheduling that tubal ligation after all.
The point is that voting for Republicans has consequences and this is one of them.
Oh come on. Coke and Pepsi. Gore would have appointed the same judges. I’m voting for Nader again…
You now have the mobocratic, sentimental court that liberals always wanted.
actually, i’ve always wanted a mesomorphic, semi-metal court.
My take on the ‘activist judiciary’ thesis is that our courts have been increasingly forced to resolved vague issues because our legislators do not have the courage to tackle them. The classic example here is the abortion controversy. Although the judiciary is justified in reaching into the penumbras of law to resolve difficult issues, they shouldn’t have to, and we shouldn’t rely on the courts to resolve penumbral issues. We need our legislators to tackle the issue and resolve it. I would prefer to see a Constitutional amendment declaring that life starts at point X in gestation, and let Congress hammer out an ugly compromise value for X that nobody likes and most people can live with. This is the lifeblood of a successful democracy: compromise. And courts make lousy compromises; legislatures are the place to carry out this work.
actually, i’ve always wanted a mesomorphic, semi-metal court.
Huh. I always wanted a meromorphic hard rock court, but with blues undertones.
“This case was not decided today. It was decided on November 2, 2004. Don’t blame the Court, blame the American people.”
Well on this issue, I’ll be THANKING the American people. I’m not sure why you would assume there is blame to be assigned. 😉
At least for me, and I know for lots of the evangelical set who otherwise lean sort-of-progressive, this is exactly why they are willing to hold their noses and vote Republican.
“(And if and when that happens, I think people will start coming around to my own process-theory skepticism of judicial power).”
You mean more Democrats. Republicans have had 33 years of realizing how important it is to make sure that your inputs get in place in the judiciary.
The free form ‘what I want out of the Constitution and forget the text’ jurisprudence is likely to fall out of favor in liberal circles now that their favored judges aren’t the ones getting what they want while forgetting the text. I just wish that conservatives wouldn’t adopt it as they gain power.
I have very little belief in that wish however. The lure of empowering the Supreme Court to ‘find’ what you want has been made vastly more appealing after the last few decades. There has been thirty years of intellectual cover given to it.
It never used to be thought that one of the most important part about electing a president was which justices he would appoint. I’m not sure we can easily turn back from that now.
I wish people would get out of the Roe vs Wade mindset. That’s how the right has distracted attention for the real purpose behind the push to get rightwing judges into place thoughout the judiciary.
The Supreme Court stopped making “liberal activist” rulings decades ago. The argument that new judges need to be appointed to counter liberal activism is intellectually dishonest.
This becomes clear with the discussion of particular so-called liberal activist cases.
For example,how many Americans want the Constitution to be interpeted to mean that there is no right to privacy? Most people would be outraged by that rightwing, activist authoritarin interpetation and yet one of the goals of those who say they want to end activist liberalism on the Court is to overthrow Griswold and return to the days when the state legislatures could tell married couples what birth control to use or not use.
Another agenda item for the rightwing activists is to reinterpete “takings” so as to rule environmental legislation unconstituional and to end the regulation of private businnesses on public land.
There is no movement to replace liberal activist judges. The movement is to install rightwing activist judges who represent an ideology that has very little support in the electorate. Since the right can’t get their way at the ballot box, they are going for the judicial system. Remember the wacky extremists Bush tried to get into the federal court system? All the Regent lawyers, working their way through thhe system, so that they can get appointments to judgeships at some point down the road?
This goes back a ways. James Watt and the Rocky Mountain Legal Foundation were near the beginning. It’s an effort that has nothing to do withh Constitutional law and everything to do with promoting a radical right ideology that is a fusion of extremist religion and oldtime Gilded Age Rober Baron values.
It is a much bigger issue than Roe vs Wade.
Mr. Holsclaw, I reject your claim that the judiciary has abandoned reliance on the law in rendering its decisions. The problem lies in the fact that the Court is asked to make decisions on matters in which the Constitution and case law are murky. That, after all, is why we have courts. But we are asking our judiciary to reach ever further into the penumbras of Constitutional law to decide matters. You may disagree with the decisions they make, but to use that disagreement as a basis for accusing the judiciary of ignoring the law is unfair and illogical.
publius: It was decided on November 2, 2004. Don’t blame the Court, blame the American people. They voted in a Republican President
Actually, there is considerable question whether they did vote in a Republican President…
…the rest of the discussion about the “ah, let ’em die, who cares” crowd just makes me too angry, and I’ve already had one fight with so-called “pro-lifers” on Obsidian Wings this month.
A simple majority of people in the US are pro-choice. And the practical reality is that women who need abortions will go have one, including women who want to (or claim they want to) force pregnancy on other woman. No woman wants pregnancy forced on herself.
I’d say that democracy ought to mean that no President would dare appoint a Supreme Court justice who’d overturn Roe vs. Wade, but until you have representative government in the US, why should that matter?
“A simple majority of people in the US are pro-choice.”
Not in the sense of the term that you use Jesurgislac. There is not a majority who believe in an unfettered abortion right extending all the way until birth. There is a clear majority for first trimester abortions, other than that, not so much.
A lawyer wrote: The free form ‘what I want out of the Constitution and forget the text’ jurisprudence is likely to fall out of favor in liberal circles now that their favored judges aren’t the ones getting what they want while forgetting the text. I just wish that conservatives wouldn’t adopt it as they gain power.
the foregoing quote is a strong argument for a more demanding California bar exam. It has, of course, precisely nothing to do with any theory of constitutional interpretation, liberal or conservative. (well, actually, some of Scalia’s Commerce Clause and 11th Amendment writings are pretty free-form, but he’d have to be boiled in oil before confessing that Roe influenced those writings)
“But we are asking our judiciary to reach ever further into the penumbras of Constitutional law to decide matters. You may disagree with the decisions they make, but to use that disagreement as a basis for accusing the judiciary of ignoring the law is unfair and illogical.”
When they reach a decision on a question that the Constitution does not give to them, they are ignoring the Constitution and their place in the Constitutional order if they decide on it. Just because something is asked of the Supreme Court does not mean that it has to answer. Not everything is a Constitutional issue.
It is so ironic that people will cheer this decision as an end to liberal activism and claim it as a return to the Constitution when, in fact, it is a perfect example of rightwing activism in medical decisionmaking.
Take, for example, a woman with Trisomy 13. Triisomy 13 is a genetic defect which causes the baby to die in the womb. If the baby is not aborted the woman will die. Often trisomy 13 isn’t identified until the pregnancy starts to go bad very late. Now, because of the ideoplogical driven mmicromanagement of the rightwingers on the Supreme Court, a woman with this problem will be unable to get treatment.
The baby will die either way.
Sebastian,
“When they reach a decision on a question that the Constitution does not give to them, they are ignoring the Constitution and their place in the Constitutional order if they decide on it. Just because something is asked of the Supreme Court does not mean that it has to answer. Not everything is a Constitutional issue.”
Umm, no. The Supreme Court decides, and is called upon to decide in fulfillment of its constitutional role whereby “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish” (Article III, Section 1) lots of cases which do not impact on the Constitution. Perhaps you should re-phrase?
Francis,
Precisely. Other examples would be the conservatives’ dissents in the flag-burning cases and the Kelo dissent.
“the foregoing quote is a strong argument for a more demanding California bar exam. It has, of course, precisely nothing to do with any theory of constitutional interpretation, liberal or conservative.”
How do you even know what my quote means? Shouldn’t you analyze the penumbras and emmanations of “free-form” before you reach judgment? If you employ Marshall or Brennan’s techniques you could easily find conclusions that are directly contrary to the ordinary reading of the text.
Why limit yourself to personal attacks when you disagree with me?
Why don’t you instead show me a good thumbnail of liberal jurisprudence that gives me a good hint of the purpose of bothering with an amendment process when apparently you kind find any possible type of right by peering deeply enough into the penumbras. And if you don’t believe that you can find any rights by peering deeply enough into the penumbras, it would be nice to know where that limit is, why you think it exists, and where in the Constitution it is grounded. Because until then, it looks pretty free-form.
I am waiting for someone to make a convincing case that Carhart means the sky is falling.
It seems pretty limited to affiming a ban on a little-used procedure that has perfectly good alternatives … a procedure that none of us would have heard of, except the Dobsonites picked it for a test issue.
I’m a bit concerned about whether there’s no longer a required health exception, but I think the limited nature of the holding leaves room for a health exception to be upheld on an as-applied basis.
In short, if THIS is the most burdensome restriction on abortion we’re going to get out of the present Court, then sing hallelujah, ye choirs of feminist angels.
Mr. Holsclaw writes, “When they reach a decision on a question that the Constitution does not give to them, they are ignoring the Constitution”
Indeed so. But the determination of what questions to consider is also theirs, and again, you may disagree with their decision, but your disagreement does not justify accusing them of ignoring the Constitution.
You have every right to voice your disagreement with Supreme Court decisions; there are some that I strongly disagree with. However, the jump from “I disagree” to “they’re ignoring the Constitution” is not logical.
Anderson: It seems pretty limited to affiming a ban on a little-used procedure that has perfectly good alternatives …
No, it doesn’t.
When intact D&X is used, it’s used because it’s the best procedure for the health (and future fertility) of the pregnant woman.
What the Supreme Court have just affirmed is that they don’t care. It sounds icky, so women shouldn’t be able to access it, and doctors should fear prosecution for doing the best for their patient.
Saying “there are plenty of perfectly good alternatives” is like saying there are plenty of perfectly good alternatives to an appendectomy. Sure there are, if you’re just having random surgery for the hell of it – but not if you have an inflamed appendix.
In short, if THIS is the most burdensome restriction on abortion we’re going to get out of the present Court, then sing hallelujah, ye choirs of feminist angels
Because only a few women will die as a result of today’s decision? Well, “a few” is certainly better than the thousands who will die if/when Roe vs Wade is overturned, but even a few people dying and more people suffering permanent damage to their health, all because a bunch of ignorant idiots hear about a necessary medical procedure and go “ooo, ick!” – that’s nothing for feminists, angels or otherwise, to sing over.
My mere disagreement is not what justifies “they’re ignoring the Constitution”. A jurisprudence (such as explicitly made by Brennan and Marshall) that the Constitution specifically forbids all forms of capital punsishment, when the Constitution clearly contemplates at least some possible captial punishment is. Justifying that by saying that the term “cruel and unusual” has evolved in our society to outlaw capital punishment while simultaneously trying to overrule the actual societal judgment is ignoring the Consititution to enact your personal preferences.
The fact the Marshall-style argument is considered even a half serious legal argument is a very strong indictment of the kind of legal education that Francis claims to be so worried about.
The procedure is little used because most pregnancies either proceed well or have significant problems earlier or are terminatedby abortion earlier. The idea that women wait to the last minute and then run out to get an impulsive abortion of viable fetus is a myth.
The weird thingis that if a person is sinerely “pro-life” the very late term abortions are the most justifiable since they are done in response to medical emergency. Mostly because the mother’s life inn in dager and also because the feus isn’t viable.
If thhere was a suitable alternative,I’m sure it would be used. However, when a woman ends up in the emergency room with a life-threanening pregnancy the standard of care, a late term abortion, is now illegal. That piece of sky might not fall on you,Anderson, but it will result in the death of someone’s loved one.
This ruling should put to rest any notions about conservative (meaning limited) Supreme Court rulings. This is a federal law that was upheld, one that micromanages the medical decisions made in hospitals nation wide. So the “conservatives” on the Supreme Court have decided that the state at the federal level can make a decision that would normally be made in the context of standard of care by a doctor. Statism. Big government interference. Am I going to hear cries of outrage about this from the NRO writers?
Sorry about all thhe sentence frags, spacing errors, etc. For some reason I can’t see them until I preview and thhen I can’t correct without losing the post and havinng to type it all over again!
When intact D&X is used, it’s used because it’s the best procedure for the health (and future fertility) of the pregnant woman.
See, this is what I’m wanting explained. How so?
However, when a woman ends up in the emergency room with a life-threanening pregnancy the standard of care, a late term abortion, is now illegal.
Well, no. The statute includes an exception for threats to the life of the woman, or so everything else I’ve read today has said. It didn’t say “life or health,” is the new twist.
Well, no. The statute includes an exception for threats to the life of the woman, or so everything else I’ve read today has said.
Why then does the New York Times say the following(link in post)?
The law is constitutional despite not containing an exception that would allow the procedure if needed to preserve a woman’s health, Kennedy said. ”The law need not give abortion doctors unfettered choice in the course of their medical practice,” he wrote in the majority opinion.
Mr. Holsclaw, how does interpreting the phrase “cruel and unusual” by modern norms differ from using the phrase “freedom of the press” to apply to media that are most certainly NOT printing presses?
Has anyone read the opinion in enough detail to know if they say anything about the life of the other twin?
DB&X is the treatment of choice where a woman is carrying twins and one of the twins dies (or is dying) in utero. Basically, it’s the best chance for getting the dead twin out while leaving the healthy twin in until it’s full-term.
I’m sure there’s no legal bar to doing it when it’s absolutely certain that the one twin is dead. But what about when it’s only mostly dead? What’s the standard of death for fetuses? (feti?) How long do you have to wait, risking the life of the healthy twin, until the dying twin is really 100% dead?
Rambuncle, if you will re-read my comment, I noted that the statute is said to provide an exception where the woman’s LIFE is in jeopardy, but not for her HEALTH.
That is why the NYT article you quote says what it does.
See, this is what I’m wanting explained. How so?
Well, I can’t say since I am not a licensed medical doctor. Doing some clicking through, the American College of Obstetricians and Gynecologists says this:
The Act purports to ban so-called “partial-birth abortions;” however, “partial-birth abortion” is not a medical term and is not recognized in the field of medicine. The Act defines “partial-birth abortion” in a way that encompasses a variation of dilatation and evacuation (D&E), the most common method of second-trimester abortion, in which the fetus remains intact as it is removed from the woman’s uterus. The Act’s definition also encompasses some D&E procedures in which the fetus is not removed intact.
Over 95% of induced abortions in the second trimester are performed using the D&E method. The alternatives to D&E in the second trimester are abdominal surgery or induction abortion. Doctors rarely perform an abortion by abdominal surgery because doing so entails far greater risks to the woman. The induction method imposes serious risks to women with certain medical conditions and is entirely contraindicated for others.
The intact variant of D&E offers significant safety advantages over the non-intact method, including a reduced risk of catastrophic hemorrhage and life-threatening infection. These safety advantages are widely recognized by experts in the field of women’s health, authoritative medical texts, peer-reviewed studies, and the nation’s leading medical schools. ACOG has thus concluded that an intact D&E “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of the woman, and only the doctor in consultation with the patient, based on the woman’s particular circumstances can make that decision.” [ACOG Statement of Policy on Abortion (reaffirmed 2004)]
That’s no in-depth medical description of the different procedure options, and all the pros and cons. All it says is what some doctors think.
Thank you for thhe correction, Anderson. I didn’t read the NYT article carefully enough.
So I guess the federal government is now empowered to interfere in medical decisions to the detriment of a woman’s health ,but not enough to actully kill her.
But what about when it’s only mostly dead? What’s the standard of death for fetuses?
“Mostly dead”???
So I guess the federal government is now empowered to interfere in medical decisions to the detriment of a woman’s health, but not enough to actually kill her.
Welcome to the patriarchy? The exact level of detriment to health is what the Court evidently found to be an open question, which is why I’m blegging for it here.
Rambuncle provides the ACOG’s take, which is certainly interesting; I am curious what we know about the actual risk involved.
Rambuncle, if you will re-read my comment, I noted that the statute is said to provide an exception where the woman’s LIFE is in jeopardy, but not for her HEALTH.
Missed that. Apologies. Though I do wonder, where is the line drawn? How much health must be put at risk before it is life-threatening?
What’s the standard of death for fetuses? (feti?) How long do you have to wait, risking the life of the healthy twin, until the dying twin is really 100% dead?
I’ve only read the syllabus so far, but one very interesting point there that may answer your question is:
“if intact D&E is truly necessary [for health but not life of the mother] in some cases, a prior injection to kill the fetus allows a doctor to perform the procedure, given that the Act’s prohibition only applies to the delivery of “a living fetus.”
Also, it looks like the Court has not — quite — gotten rid of the “health of the mother” constitutional requirement. The Court deferred to Congress’s finding, given that there is medical dispute on this point, that this particular procedure is never actually necessary for the mother’s health.
That finding seems dubious to me, but IANAD.
It also suggests that so long as Congress can find a doctor somewhere who will say that x is not necessary for the mother’s health, that’s good enough. This is a little disturbing, especially since the Court also said that some of what Congress found on the subject has since been proven plain wrong, and apparently that didn’t matter so long as some of it was not disproven.
OTOH, I can’t really argue with the point that making policy decisions based on disputed evidence is more the job of Congress than the Court.
I don’t know why publius assumes Roe is threatened by this decision. Alito and Roberts both concurred with the majority opinion which explicitly reiterates support for Roe. Scalia and Thomas are the judges who declared their open hostility to Roe.
I find it hilariously ironic that the upshot of the Supreme Court’s decision will be for doctors to kill the fetus before performing the otherwise banned procedure. It’s not properly a Catch-22, but it certainly smacks of that kind of logic.
Standard IANAL disclaimer…
If I am reading Insty right, he is saying that (beyond he thinks it should have been struck down) that Thomas is saying they didn’t raise the right issue – bring it back and raise the Commerce Clause and we’ll see:
PARTIAL-BIRTH ABORTION BAN UPHELD. I believe that the ban should have been struck down on commerce clause grounds as outside Congress’s power to regulate interstate commerce. Interestingly, the opinion contains this observation from Justice Thomas:
“I also note that whether the Act constitutes a permissible exercise of Congress’s power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.”
The fact the Marshall-style argument is considered even a half serious legal argument is a very strong indictment of the kind of legal education that Francis claims to be so worried about.
why, it’s just ASTONISHING that Marshall could assemble majorities! What kind of legal education did those Justices have?
(sigh)
SH, you continue to blur the distinction between facial vs. as-applied challenges. You personally may take the view that the Sup Ct’s striking-down of the death penalty was a facial challenge, but you are in a tiny minority. Most lawyers and scholars find the statement about “tinkering with the machinery of death” to be pretty clear evidence that the Justice was appalled (and, based on the evidence, rightly so) with the way that States were applying the death penalty.
Put another way, my view is: it is NOT the case that the death penalty would always be unconstitutional. It WAS the case that a plurality of Justices thought that radically different procedures were necessary to ensure that imposition of the death penalty didn’t violate the 5th, 8th and 14th amendments.
you are free to hold a different opinion. but when you fail to disclose your personal, minority, view and instead launch an overall attack on the legitimacy of the Court, I think you deserve the attacks you get.
you harp on the tyranny of the Rule of 5. Yet somehow you never discuss the sins of the conservative wing. What possible textual basis exists for the current jurisprudence on the 11th Amendment? Why was the Court one vote away of finding the EPA’s failure to regulate CO2 emissions non-justiciable despite clear Congressional intent to the contrary?
How should the Court interpret the 9th amendment? How is it the case that forcing a woman to carry an unwanted pregnancy to term is not a violation of her 5th amendment liberty rights? Since women didn’t have the right to vote at the time of the Constitution, what weight should be assigned to original intent/meaning for laws that discriminate on the basis of sex?
sure there have been lousy decisions. But to deny the legitimacy of decisions one doesn’t like as being purely extra-Constitutional, without deeper analysis, is poor legal practice.
“Mostly dead”???
It’s a joke, son. A little.
For born people, “dead” is “brain dead”. Heart transplants are only possible because a *person* can be legally dead while their body is mostly alive.
So is a fetus “dead” when it’s brain dead? What about fetuses that don’t have brains yet? What about the fact that we can’t do brain scans on fetuses?
And again, how are the health and life of the second twin supposed to factor into these decisions?
What about fetuses that don’t have brains yet?
According to Wiki, there’s measurable EEG activity around the end of the 1st trimester, & the banned method is apparently used in later trimesters.
Agreed however that multiple births raise serious questions about the statute.
Interestig that they just skipped over the commerce clause issue, briefed/presented or not. Would they not strike down a statute that was obviously unconstitutional just becuase the parties did raise the issue?
did “not” raise the issue, that is.
Take, for example, a woman with Trisomy 13. Triisomy 13 is a genetic defect which causes the baby to die in the womb. If the baby is not aborted the woman will die. Often trisomy 13 isn’t identified until the pregnancy starts to go bad very late. Now, because of the ideoplogical driven mmicromanagement of the rightwingers on the Supreme Court, a woman with this problem will be unable to get treatment.
The baby will die either way.
I didn’t understand why the mother would die, so I looked it up. Appearantly not even all the kids die. Though I must admit that with the survival figures changes are small (and I would see it as a perfectly understandable reason to abort). I still don’t see why the mother would die though.
I think there are cases where D&E are appropriate. The partial birth abortus is a very specific kind though – banning it doesn’t mean you cannot have other ways to abort.
Dr. Science: I googled the twin pregnancy too, because I actually had a friend with a dead fetus in a twin pregnancy who decided (together with the doctor) that it was more risk to abort than to let the fetus stay. But appearantly that is very dependend on the stage of gestation and the genders of the twins. In some cases it *is* necessary to abort the dead fetus. But I don’t think they would need a partial birth abortion to do that savely; but ianad.
The risk for the life of the mother is seldom a valid argument imho, and it feels contreived. Most women were expecting to deliver a bigger baby later in pregnancy, so the life-threatening risc seems to exist only in very rare cases. But I do agree that for some women delivery *can* be a risc at getting handicapped. The risc of ending in a wheelchair might be taken for a life baby, but is not worth it for a dead one.
Whilst googling all these things I did come upon this really weird article about merging fetuses. I had no idea that it was possible for people to have two different sets of DNA.
All right, here is the perspective of a woman who is 40 years old and joyously 7 months pregnant. There are significant unintended consequences to this ruling that exacerbate risks to both fetus and woman, especially an older woman.
In my 19th week, I was pressured to get an amniocentsis. This is a procedure where fluid is extracted from the fetal sac to determine if there are chromosomal defects in the baby’s DNA. Most defects result in miscarriage but the older you get the more likely there will be a defect which results in a stillborn child.
According to my doctors, an amniocentsis is much safer if you wait until later in the pregnancy, but the procedure is offered early in the 2nd trimester so a woman still has the option to end an ill-fated pregnancy. Banning these late term procedures pushes the performance of an amniocentsis earlier in a woman’s pregnancy putting the woman and the fetus in greater risk from miscarriage.
Most of the men on the Supreme Court and in our administration don’t get it. Pregnancy is a risky time for women. We all want to end up with healthy happy babies but the story doesn’t always end well. When I had a miscarriage last year, the paramedics showed up within 4 minutes of my 911 call and then were delayed leaving my driveway for 15-20 minutes trying to find a hospital that would do a D&C just in case I needed one (I didn’t). When you are bleeding heavily, this seems like an awefully long time and, you know, it is. The paramedics needed to call 3 hospitals before they found one. Now imagine that I have just been in a car accident and I am bleeding out and the paramedics are trying to find a hospital that will perform an emergency D&E. Both the D&C and emergency D&E are legal under the federal ban but you know it probably just got real tough to find a hospital to do one.
Don’t remain blissfully ignorant of the consequences of these bans. They negatively affect the care of woman with both planned and unplanned pregnancies.
Be careful out there.
“SH, you continue to blur the distinction between facial vs. as-applied challenges. You personally may take the view that the Sup Ct’s striking-down of the death penalty was a facial challenge, but you are in a tiny minority.”
You’re the one who is blurring. I think the Supreme Court was wrong in Furman, but I’m criticizing Marshall and Brennan particularly in their death penalty ‘jurisprudence’. They are two of the more revered judges in the liberal understanding of how judges should operate, and their death penalty decisions show a callous disregard for the proper function of the judicial process. After expouding at length in Furman about how the moral acceptability of the death penalty had changed in the United States to transform “cruel and unusual” into barring the death penalty (something he had to do since the interaction of different areas of the actual text meant that it could not have been meant to be barred when originally written.) Marshall is forced into badly asserting in Coker that the death penalty is just wrong in his opinion, and that that is enough:
That is pure “I say so” jurisprudence. The fact that the death penalty had been allowed was of no consequence. The fact that text passed at the same time clearly showed that the 8th Amendment didn’t ban it at the time, was of no consequence. The fact that he had initially justified banning it by appealing to the changing mores of the American people, was of no consequence. He was left with nothing but his personal feeling that it was excessive. And that is not Constitutional law.
Brennan writes (after failing to admit that the evolving standards of decency didn’t actually evolve the way he wanted):
That doesn’t fit with the history of the Constitution or its text at all.
Neither of these opinions in Coker are grounded in Constitutional jurisprudence. Neither of them represent the legitimate functioning of judges. Both are regularly invoked with approval in debates about the Constitutionality of the death penalty. You can’t appeal to the evolving standards of decency of the US citizens, abandon that when the evolving standards have gone against your personal view, and be left with anything but the naked will and power of 5 votes on the Supreme Court. At which time you have undercut your ability to say anything other than “I do not currently have 5 votes”. That isn’t jursiprudence and that isn’t law.
Would they not strike down a statute that was obviously unconstitutional just becuase the parties did raise the issue?
They can certainly do so if they choose. You don’t argue it, you lose it, is the rule. A statute would have to be Very, Very Unconstitutional Indeed for the Court to reach out & strike it down like that.
As for Clevergirl’s good points about the actual effects of the ban, I just don’t see how the Court could reach those on a *facial* challenge. We’ll doubtless see such suits in the near future.
“Interestig that they just skipped over the commerce clause issue, briefed/presented or not. Would they not strike down a statute that was obviously unconstitutional just becuase the parties did raise the issue?”
With certain very limited exceptions (not having subject matter jurisdiction being the one I can most easily think of), the Court is not supposed to consdier arguments that aren’t raised because a full contested hearing of all the issues will not have been aired. The justification is the judges might miss something important which would have been raised if it had been directly addressed, and thus come to the wrong decision.
Anderson/Seb – I was thinking of a case of a law that prohibited criticizing public officials on pain of one year in prison that was challenged as “cruel and unusual punishment” rather than a violation of the 1st A. (or both) and the court deciding that “hey, prison is not cruel and unusual so case dismissed” and ignoring the whole free speech thing because the parties failed to raise it. Couldn’t it, for example, call for briefs and arguments on the commerce clause question?
A short tour of the right-o-sphere makes me believe this is mostly political fodder and not a step on the road to overturning Roe.
The lawyer types are indicating that the justices are practically inviting a challenge on the basis of either the commerce clause or “health of the mother”. In short – don’t get too happy right wingers as this is not likely to stand.
One good point I saw that would contradict publius’s main point: Casey was reaffirmed in 1992 when the court had 7 Republican appointees. So Republican appointee majority does not automatically equal bye-bye Roe. Certainly it will be presented that way over the next 18 months…
Ugh, I think that on your hypo the Court might reach the 1st Am. issue itself, or call for briefing; but it’s unlikely that the Commerce Clause issue is so clear-cut.
IMHO, Thomas’s op proffered a devil’s bargain — “come, friends, this regulation cannot be upheld under a narrow reading of the Commerce Clause” — that the left wing of the Court obviously wouldn’t accept.
No doubt in my mind that Thomas would happily accept abortion on demand in exchange for a pre-New Deal version of the Commerce Clause.
“Ladies and gentlemen of the jury, I’m just a caveman. I fell on some ice and was later thawed by some of your scientists. Your world frightens and confuses me! When I see my image on the security camera at the country club, I wonder, are they stealing my soul? I get so upset, I hop out of my Range Rover, and run across the fairway to the clubhouse, where I get Carlos to make me one of those martinis he’s so famous for, to soothe my primitive caveman brain.
Marbel: . The partial birth abortus is a very specific kind though – banning it doesn’t mean you cannot have other ways to abort.
Yes, and who cares if the other ways are more dangerous or more damaging, right? No reason that a woman’s health should ever be prioritised above the right of non-medical people to go “ooo, ick“.
At least for me, and I know for lots of the evangelical set who otherwise lean sort-of-progressive, this is exactly why they are willing to hold their noses and vote Republican.
Ha! This is too rich not to be commented upon. Just what part of the standard Republican platform is otherwise so stinky to these “sort-of-progressive” evangelicals? The anti-gay part, the anti-drug part, the pro-religion part, the anti-crime part, or the pro-tax-cut part?
As for you, given your apparent distaste for anything even remotely associated with the Democrats, I can’t imagine you have to hold your nose too tightly when you punch that “R” chad.
“Just what part of the standard Republican platform is otherwise so stinky to these “sort-of-progressive” evangelicals? The anti-gay part, the anti-drug part, the pro-religion part, the anti-crime part, or the pro-tax-cut part?”
Well it isn’t the anti-drug part, because that is held equally by the standard Democratic platform.
The anti-gay part and pro-religion part are largely a function of the Roe v. Wade energized Christian Right. That came later, not before.
I’m not at all sure the anti-crime part has an evangelical valence at all.
I’m very sure that the lower taxes part has very little evangelical valence.
So your point is too scattered for me to really respond to.
“As for you, given your apparent distaste for anything even remotely associated with the Democrats, I can’t imagine you have to hold your nose too tightly when you punch that “R” chad.”
My distate is very largely shaped by the Democratic Party response to Roe, so… I guess I don’t understand your objection to me noting that it is one of the large influences in why I have trouble voting for the Democratic Party.
So your point is too scattered for me to really respond to.
OK, Seb, I’m a dumb guy. Spell it out for me, explicitly: Which parts of the national GOP platform are so distasteful to evangelicals that they have to, in your words, “hold their noses” to vote Republican?
I think most evangelicals are much more open to certain types of welfare programs and public assistance programs than the Republican Party is. I also think that evangelicals have historically (until very recently) been much more isolationist than many recent Republicans. Furthermore I think that the anti-government stance taken by many evangelicals is a direct result of Roe and a related belief that government can’t be trusted on moral issues. (This of course became twisted and complicated as Republicans gained power with evangelical help).
Furthermore I think that the anti-government stance taken by many evangelicals is a direct result of Roe and a related belief that government can’t be trusted on moral issues.
Certainly the Bush administration has done its very best to prove that point, yes.
(Of course, it depends how you define “moral issues”.)
I think most evangelicals are much more open to certain types of welfare programs and public assistance programs than the Republican Party is.
Yes: some Christians do still believe that when Jesus said it was necessary for your salvation at the Day of Judgment that you feed the hungry and clothe the naked, he actually meant it. Whereas right-wing Christians tend to forget that bit and dive right into the lengthy passages where Jesus forbids gay marriage, rants against a woman’s right to choose abortion, and urges everyone to vote Republican.
OCS, I agree with the caution that this result may not stand. The Court rejected a facial challenge, and, more or less, invited an as applied challenge. That means that instead of a bunch of doctors and other experts sitting around talking hypothetically, there will have to be, and will be, an actual woman plaintiff, with an actual medical condition.
If that particular woman can show that forcing the doctor to use the approved procedure instead of the banned procedure would produce undue risk of harm in her particular circumstances, then the statute won’t apply.
It’s important to keep in mind the mechanics of this: the woman, her doctor, and her lawyer are going to pick the time and the court. They’re going to file a case seeking permission to use the banned procedure because the permitted procedures are too dangerous. They’ll ask for a ruling within, what 3 days? A week? If it’s denied, they’ll appeal, asking for a similar time line. The defendant is going to be the AG, I suppose. That means some US Attorney who’s got less of an understanding of abortion law than most law students (it not being part of a prosecutor’s regular job) is going to have to be up to speed, with adverse medical witnesses in a day or two.
I’m going to guess that plaintiffs win as applied challenges, if they’ve prepared their cases (and doctors who are likely to perform the banned procedure know who they are, and why they want to do it in any particular case).
* * *
The dog that really didn’t bark here is that the two new guys didn’t join the Thomas/Scalia concurrence. Maybe they’re being cagey, or maybe they think Casey is a correct application of the Constitution. The one thing we know for certain is that they were explicitly asked if they wanted to attach their names to a short statement saying that Casey is not required by the Constitution, and they said ‘no thanks.’
“Yes: some Christians do still believe that when Jesus said it was necessary for your salvation at the Day of Judgment that you feed the hungry and clothe the naked, he actually meant it. “
And perhaps they believe that means they should feed the hungry and clothe the naked, and that this obligation has nothing to do with forcing somebody else to pay for a government program?
SH, since you apparently believe that “cruel and unusual” should be interpreted by late 18th-century standards, Im interested to hear whether you think that the 2nd amendment should also be interpreted by the standards of the day. That is, everyone is free to own a musket. (Variation on a question above that you saw fit not to answer).
He was left with nothing but his personal feeling that it was excessive. And that is not Constitutional law.
He really should’ve referred to appendix B of the Bill Of Rights, wherein all of the terms used are defined clearly. Oh, wait, there isn’t an appendix B in my copy. Did anyone get appendix B?
Really, anyone with a passing familiarity with the Constitution and it’s origins should know that the authors intended (explicitly, via the 9th amendment, implicitly via the Hamiltonian view that the BOR was unnecessary as the rights of individuals already existed) for rights to be protected that were not specifically enumerated. That is, they *wanted* judges who would guard liberty jealously and without textual restraint.
It is the jurisprudence of Bork’s “inkblot” that lacks historical support, not the jurisprudence that would preserve the rights of the people above all else.
Brett: And perhaps they believe that means they should feed the hungry and clothe the naked, and that this obligation has nothing to do with forcing somebody else to pay for a government program?
I suppose it would depend whether they felt it was a moral requirement – that Jesus was saying it was always right to feed the hungry and clothe the naked – or whether they see it as a religious obligation without any particular point at all beyond “Wait, honey, did you remember to feed the hungry today?” – “Sure, dear, and I clothed the naked, now let’s head down to the mall.”
If it’s just simply the right thing to do, then doing it more effectively and thoroughly – as, for example, by passing laws that ensure the people collectively pay for and provide welfare programs – can only be a good thing.
If it’s a religious obligation without moral meaning, such as (for example) avoiding eating a cheeseburger or avoiding gay marriage, then obviously it would be wrong to use public money to pay for it.
Do you discharge an obligation to do something, by forcing somebody else to do it? “Wait, honey, did you remember to feed the hungry today?” “No need, we voted to raise Bill Gate’s tax rate, remember?”
Anyway, there’s this space between what people ought to do, and what they ought to be forced to do, between what they ought not do, and what they ought to be forced to refrain from.
It’s called “freedom”.
CharleyCarp: Thanks for the clarification. I was not thinking of this in terms of it would come down to one woman and her doctor, right timing, etc. (I did know that at some level, but…)
I guess I normally think of the law more as an abstraction than as individuals. I do know it is individual cases that make law, I just don’t often think of it that way. So it is helpful to be reminded of that.
Jes,
The part I do not understand regarding this specific form of abortion is how the mother is safer or healthier if the baby is killed after its head is already out of her. I just can’t see it. Can you tell me what I am missing?
Evangelicals are not all alike. Seb is right. Many are open to voting Democratic and, in deed, the Democrats are far closer tothe core values of many evangelicals(work for the common good, take care of each other) than the Republicans. The Republicans have been very successfull in dumbing down the notion of values so that it means nothing more than hating gays and opposinng abortion rights. Democrats have inadvertantly collaborated in this by always discussing issues as righhts issues, rather than moral or values issues, as if values and morality didn’t matter to them. This is changing, I hope. The more Democrats discuss tradition liberal positions and issues as expressions of morality and values, the more support we’ll start gettinng from evangelicals.
For example right now all of the leading Deomcrats have issued basically the same sttatement about how the Supremem Court is threatening a woman’s right to choose. It would be far more effective if they condemned the Supremem Court for giving the federal government the power to deprive a sick woman of a medical care option that she might need during a failed pregnancy. After all women don’t really choose to have late term abortions. They are forced by the circumstance of severe complications. Discussing it as a right to choose makes the situation seem far more trivial than it is.
jrudkis:
It is my understanding that the so-called “partial birth” procedure involves basically crushing the head and/or removing the brain, so as to get the fetus out of the uterus without dialating the cervix. This is why it is often used to get out one of a pair of twins: you don’t want to open the cervix more than you have to, the better to keep the other kid inside the uterus to grow some more.
And this is why it is much less stressful than inducing labor — dialating the cervix, even if not all the way, is most of the labor in labor. It is also especially stressful if the woman’s body hasn’t been getting ready ahead of time.
I should add that, though I am not a medical doctor, I have seen 18th & 19th century obstetric instruments and read detailed accounts of their use, and *no* modern medical procedure seems horrible by comparison.
Do you discharge an obligation to do something, by forcing somebody else to do it?
Well, we force medical professionals, teachers, and social workers to report signs of child abuse or molestation. It’s a select group of people, not the general population- but we put a standard on their behavior. Likewise, medical professionals are IIRC obligated to step in and offer assistance if they come upon someone needing assistance.
I suppose one could take your argument and twist it to say “Jesus said don’t hurt people, but we shouldn’t have laws against that- it’s called freedom.” I point this out because (unless you’re an anarchist) you think we need some laws and some constraints (and perhaps some taxes and government spending). If you do, then we’re merely arguing about degrees of restriction- but that in my experience never satisfies the libertarian yearning to be on the high horse.
Finally, Id point out that these hypothetical evangelicals don’t have to be libertarians- they might well decide that a government program was the most effective way of reaching their goal, or that Jesus’s command meant “by any means necessary”. In extreme cases, perhaps the *only* way to reach their goal (eg only a government-supported intervention has any real hope of stopping the atrocities in Darfur).
Doctor Science,
But it sounds like in this case, it excludes what you are talking about, and is only for when most of the baby is already outside the mother:
§1531(b)(1), as a procedure in which the doctor: “(A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the [mother’s] body … , or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the [mother’s] body … , for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus”; and “(B) performs the overt act, other than completion of delivery, that kills the fetus.”
Color me unimpressed, Sebastian, if the big pile of stink in the middle of the room that causes evangelicals to vote for Republicans only with nostrils pinched shut is that . . . Republicans don’t like welfare enough. Based on my own experiences in evangelical churches — including one where my wife’s stepfather is a pastor — this isn’t even close to correct. The evangelicals I know gladly embrace the GOP slate lock, stock and barrel.
It’s called “freedom”.
Ah yes. The freedom to allow other people to starve. A central religious right.
I’m not at all sure the anti-crime part has an evangelical valence at all.
I’m very sure that the lower taxes part has very little evangelical valence.
Evangelicals do exist — viz. Fred Clark of Slacktivist — but I don’t believe for a moment that they have any clout whatsoever.
“SH, since you apparently believe that “cruel and unusual” should be interpreted by late 18th-century standards, Im interested to hear whether you think that the 2nd amendment should also be interpreted by the standards of the day. That is, everyone is free to own a musket.”
Nice strawman. I believe that if you are going to adopt an evolving societal standard of decency, you don’t get to ignore what US society is actually saying on the topic. US society is noticeably for the death penalty, and has been since the founding. Support for the death penalty has tended to be in the 70%+ range. If you are invoking an evolving societal standard you don’t get to ignore things like that. Marshall and Brennan had to twist and turn to avoid that and get to their preferred resolution. That is fundamentally against how the rule of law is supposed to function, and yet their arguments are widely accepted as valid Constitutional anti-death penalty arguments on the left. That is ridiculous.
jrudkis: The part I do not understand regarding this specific form of abortion is how the [woman]* is safer or healthier if the [fetus dies] after its head is already out of her.
I edited your question to make it look like an actual serious question, rather than a pro-lifer jibe.
Intact D&X is a method of late-term abortion in which the fetus, intact, has its skull punctured so that it collapses while its head is still inside the uterus, before it passes the cervix. The skull is the largest part of the fetus, and it is much safer for the woman to get the fetus past the cervix – which is artificially dilated, but not as dilated as it would get if the woman was actually about to give birth – if the skull has been collapsed prior to removing the head. Requiring a doctor to have a fetus removed intact so that it can die outsider the uterus may mean damaging the woman’s cervix, perhaps permanently, which will mean she will be unable or it may be unsafe, for her to have more children later.
Understand now?
It’s not the only late-term abortion procedure. But I had rather legislators did not tell doctors “You can’t use that procedure because we think it’s icky!” They have no other valid reason to object to it.
*For example, she may be a mother already: most women who have abortions do already have at least one child. But you can’t assume she is, just because she needs a late-term abortion.
Brett: Do you discharge an obligation to do something, by forcing somebody else to do it? “Wait, honey, did you remember to feed the hungry today?” “No need, we voted to raise Bill Gate’s tax rate, remember?”
Everybody pays taxes, Brett. It’s one of those eternal truths. (Unless you’re rich enough to be able to afford a fantastic tax lawyer, and have some method of buying things so you don’t even pay sales tax.)
If you want to live in a country, you have the obligation to pay its taxes. If you don’t like the way that nation taxes you, you are free to find some other nation where there are no taxes. Of course, there won’t be any social infrastructure, either, but that’s what you pay your taxes for. Libertarians who call this “forcing” and get mad about it tend to be perfectly happy to live with benefits of being taxed – they’re just unhappy that they have to pay for what they get.
If you want to live in a country, you have the obligation to pay its taxes. If you don’t like the way that nation taxes you, you are free to find some other nation where there are no taxes. Of course, there won’t be any social infrastructure, either, but that’s what you pay your taxes for. Libertarians who call this “forcing” and get mad about it tend to be perfectly happy to live with benefits of being taxed – they’re just unhappy that they have to pay for what they get.
A libertarian’s ideology requires him to believe that there’s some way to individually opt-in to society, rather than have society be imposed upon one by fiat. Much of their theorizing is dedicated to finding some way to do this.
They’re still working on it, but in the meantime, they like to bitch and moan.
Brett- I want to congratulate you on some very well deployed rhetoric. I used to find those arguments very convincing. That was before the last 6+ years of Republican rule though.
The problem as I see it is that either I vote for the Democrats and they spend tax money to help the poor, or I vote for Republicans who then steal the tax money and increase spending to make their rich crony friends richer.
If you don’t like the way that nation taxes you, you are free to find some other nation where there are no taxes.
I’m fairly certain that in the country I live in, you have the right to petition the government to change the tax structure before you have to pack it all in and emigrate.
I’m fairly certain that in the country I live in, you have the right to petition the government to change the tax structure before you have to pack it all in and emigrate.
True. Or, just run for election and vote yourself and your family enormous tax rebates.
Or exercise some civil disobedience: Set your annual withholding to zero, don’t pay your taxes, then sit in jail as a test case and martyr. I’m sure millions will flock to the jails for support.
Jes,
That situation is not covered by this law. The baby’s head has to be out of the mother, or in the case of breach, the body past the navel. Is the problem that you have only in the case of a breach baby coming out, or is there some reason that once the head is already out, the baby has to be terminated for the health of the mother?
jrudkis: That situation is not covered by this law.
That situation is exactly what this law covers. What makes you think it isn’t?
§1531(b)(1), as a procedure in which the doctor: “(A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the [mother’s] body … , or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the [mother’s] body … , for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus”; and “(B) performs the overt act, other than completion of delivery, that kills the fetus.”
jrudkis: The [fetus]’s body past the navel
That is the procedure for ID&X, which is the procedure most commonly described by the non-medical term “partial-birth abortion”, when the doctor performs the abortion by removing the fetus intact, puncturing the skull while the fetus’s head is still inside the uterus, so that it can pass safely through the cervix without risking permanent damage to the woman’s body. That is the procedure which this law is intended to ban, so that a doctor will be compelled by law to choose a less safe procedure when a woman needs a late-term abortion.
Sorry, jrudkis, we just cross-posted, but effectively my comment answers yours anyway – this law is intended to ban a procedure which is often the safest method of late-term abortion, in order to force doctors to choose a less-safe method.
(And – sorry for the triple-comment) it’s a mystery why pro-lifers are rejoicing, if they want to be believed that they’re all for saving fetal lives. Banning ID&X will not prevent any late-term abortions: it will merely ensure that doctors who treat women who need late-term abortions are forced to use procedures that are less safe for the woman. Rejoicing over this ban is rejoicing that more women will suffer and be made sterile and a few women will die.
Jes, Kennedy’s op pretty expressly stated that the doctor could kill the, um, fetus first, and *then* vacuum its brains out or whatever.
I don’t know what the issues are here — presumably any poison injected into the baby might enter the woman’s blood via the placenta — but it seems that enterprising physicians could come up with something.
To quote Dahlia Lithwick in Slate:
This isn’t about any concern for the woman’s health: this isn’t about ‘saving the fetuses’: this is purely and simply about a bunch of non-doctors listening to a detailed description of a necessary medical procedure and going ick. In legal language.
No, it is about a bunch of justices deciding whether a law passed by representatives of the people and signed by the president in unconstitutional.
It may be bad policy, but we have a lot of bad policies that are constitutional.
No, it is about a bunch of justices deciding whether a law passed by representatives of the people and signed by the president in unconstitutional.
You know, the one does not contradict the other.
A law that puts US Congress in between a doctor and the doctor’s patient, is unconstitutional: the patient has a legal right to privacy. Congress has no business there. The Court’s argument wasn’t based on any concern for the patient’s welfare or her privacy.
It’s also, of course, a profoundly unethical law, that forces doctors not to choose the safest method of late-term abortion for their patient.
jrudkis:
Jes is doing a better job of explaining the medical procedures than I am; this FAQ from Planned Parenthood is also informative.
What I want to know is, what do you think is going on in the minds of women and their doctors that necessitates legal intervention? Why isn’t it enough to say, “many medical procedures are both horrific and necessary, and decisions about using them must be left to the patients & their doctors.”
drat, here’s the actual link.
Preview is your friend.
Jes,
If any and all procedures were available between a Doctor and patient then I would think it is a strong argument. However, Congress and government can regulate procedures, and does ban many. My brother in law just had to fly to Germany for a procedure that is banned in the US. Does that violate his right to privacy?
Doctor Science,
I think parents do a lot of things to their children that are bad, and I do generally think that it is better for government to stay out of the way, despite the harm. However, when something appears to me to be infanticide, I generally think that is bad enough to be banned. If I can understand how this procedure, after the baby has already been pushed out most of the way, somehow saves the mother, I am sure I can put it in the “hope this doesn’t happen to me box,” but not ban it. But I still fail to see how the mom is helped by the eliminating of the child after the head is already out. I will read the link you supplied, thanks.
jrudkis: If I can understand how this procedure, after the [fetus] has already been pushed out most of the way, somehow saves the [woman], I am sure I can put it in the “hope this doesn’t happen to me box,” but not ban it.
First, er, duh! I thought you were male: not that it makes a difference, but there you go.
To explain how this procedure saves the woman, you need to consider the normal width of the human cervix, and the normal width of a human skull. During labor, contractions of the uterus dilate the cervix up to 4 inches in diameter to allow the infant to pass through. In late-term abortion, without the assistance of the long contractions of the uterus, the cervix is artificially dilated – and it never reaches the width of dilation it will reach in labor. The skull is always the largest part of the fetus, and the most difficult part to pass through the cervix, even in normal labor. (If you’ve ever seen a newborn baby, really newborn, its head will look narrow and long due to the pressure, I understand, of the passage through the cervix.)
An abortion performed when the fetus is still so small it can pass through a cervix no more dilated than is normal in menstruation, is outside the scope of this law: fortunately, since that includes over 90% of abortions performed in the US.
But a doctor performing a late-term abortion has effectively two choices: to dismember the fetus inside the uterus, and bring it out in pieces, or to bring the fetus out whole. The latter is in general safer for the woman. The safest process is to remove the fetus from the uterus feet first, and then before the skull can pass through the cervix, with a high chance of damaging it, the doctor can puncture the skull and it will collapse, letting the head of the fetus pass through the cervix without damage. This is the procedure now banned by law.
A doctor who needs to perform a late-term abortion will now need to use one of the less safe methods. Because the definition of “partial birth abortion” is political, not medical, doctors may be left uncertain what method they can use, and opt – for their own safety from prosecution – for a means less safe for their patient.
Is that clearer now?
However, when something appears to me to be infanticide, I generally think that is bad enough to be banned
I can understand your feeling that you’d like to be reassurred, but what makes you think that doctors (and mothers) will be doing something that is actual infanticide *unless they had to*?
I put that last bit in because of my knowledge of medical history. Before Caesarians were feasible (late 1800s back to the beginning of time) midwives & doctors would occasionally be confronted with a laboring woman where the baby just wasn’t going to come out. When that happened, they sometimes had to kill the baby and take it out in bits. (there’s technical language to describe the various procedures, but that’s what it boils down to.)
This was almost never called “infanticide”, even though it basically was. There were various mental & legal workarounds so people didn’t have to classify it as infanticide, but I think that most people with actual experience with birthin’ babies recognized that it happened. And it was necessary — as a rule in those situations, as in the present day when late-stage abortions are being considered, the baby was doomed anyway. The only practical question was, can we save the mother?
What makes you suppose that modern doctors & mothers do this except when they, too, think that their backs are to the wall? Why do you think that your feeling about whether something “appears” to be infanticide is more important than their knowledge of their actual life-and-death situation?
Jes —
Thank you for your very clear explanation. My personal experience (twice) is of full-term births, where the baby had already turned herself to go head-first (for those who haven’t done this themselves, this turning normally happens only in the last few weeks before birth and is a *big* issue during the countdown period).
If you’ve ever seen a newborn baby, really newborn, its head will look narrow and long due to the pressure, I understand, of the passage through the cervix.
Newborns who were delivered by C-section are much nicer-looking than vaginal deliveries for this reason — their soft little skulls can be squished in some pretty peculiar-looking ways, and vaginally-born newborns also tend to be red- or purple-faced from the pressure.
So then the issue is with the breach delivered babies, not those delivered head first? Had the law only banned the procedure on head first babies, would that eleviate the concerns?
Jrudkis, I’m uncertain why you are referring to “breach delivered babies” and “head first babies”. The issue is about fetuses, and a procedure that can begin to be the safest method for abortions after the 17th week of gestation – intact dilation and extraction.
I’m not at all clear that you’ve understood that the issue is not whether or not the fetus will survive: whether or not a late-term abortion will be carried out: but what procedure will be used for a late term abortion. But those are the facts.
Can you explain why you would feel better about a late term abortion if the fetus is dismembered inside the uterus and brought out in pieces?
jrud —
One point I was trying to make is that there *are* no head-first abortions. The fetus doesn’t turn to be head-down until it’s just about show time, well after viability. If the fetus (or baby, if you prefer) is head-down (=head-first), then pretty much by definition the choices will be C-section or vaginal delivery, unless the fetus has clearly died already.
What makes you suppose that modern doctors & mothers do this except when they, too, think that their backs are to the wall? Why do you think that your feeling about whether something “appears” to be infanticide is more important than their knowledge of their actual life-and-death situation?
Because some people are nuts? Or confused? Or in a temporary panick? Or under enormous pressure of their environment? BTW: The fact that the judges aren’t medically qualified and thus can’t judge the medical procedure and implications is true of the mother too.
I am actually against the ban because every procedure should be available just in case. I must admit that I find the procedure rather gruesome, because with 20-24 weeks the part of the babies body that is outside is kicking and moving (I still remember how suprised I was that the babies moved like crazy during the delivery of my post-term babies). The idea that they than kill it with a stab to the brain is pretty gruesome to be honest, even if it is the best solution in some cases. I can see that it sometimes has though, and as I stated in an earlier thread: I think the US should be more lenient than for instance my own country.
In the Netherlands they let the women choose the method – Normal delivery has the advantage that you can mourn a ‘normal’ baby, which is why many parents choose that. But we don’t abort past 21, 22 weeks.
I don’t know wether ceasearean babies have a really different head. Mine were rather big, so their shoulders were more of a problem than their heads. But this is 10 minuts after the ceasearean, 20 minuts past a normal birth and 10 minutes after a normal birth.
At 20-24 weeks mine were not really settled either: they had enough room to swim and change positions.
BTW: The fact that the judges aren’t medically qualified and thus can’t judge the medical procedure and implications is true of the mother too.
Again with the presumption that she must already have at least one child: it’s often true that a woman who needs an abortion is a mother, but not always true. This might be her first pregnancy.
The person on whom a medical procedure is to be performed may not be medically qualified (though of course, she may be – doctors and nurses need abortions too) but it’s her body: she is personally qualified to decide.
Jes, most people use ‘mother’ as shorthand for “women pregnant of the fetus we are talking about” since the latter is rather long. I don’t think that “pregnant women” creates a very different image than “mother” in these discussions.
Also, the insistance to call the baby fetus when we are talking about third trimester pregnancies is silly. No matter what the medical term is I can assure you that everybody arount normal pregnant women refer to “the baby” in than stage and than includes doctors and midwives. They may use ‘fetus’ in written communications, but not in day-to-day discussion. Hey, I’ve always been a “senile gravida” in my dossiers but nobody called me that in my face 😉
I do very strongly agree with the fact that anybody (and that includes pregnant women) should be the ultimate decider about what medical procedures are performed at them. We don’t differ in our view about women rights, we differ about the moment we feel the fetus/baby is entitled to rights and protection.
Welcome to Humpty-Dumpty Land, dutchmarbel, where a word means what Jes says it means — no more, no less.
Of course, the logical consequence of her definitions means that, in her world, there are literally millions of women walking around right now with unfathered concepti, which should be a stunning proof of the existence of a deity.
Marbel: Jes, most people use ‘mother’ as shorthand for “women pregnant of the fetus we are talking about” since the latter is rather long. I don’t think that “pregnant women” creates a very different image than “mother” in these discussions.
It may be rather long, but it lacks the pointed cruelty of referring to a woman who is about to undergo a late-term abortion as “mother”. She may be already a mother, with a child already. But she may not be, and I see no reason to be deliberately cruel about it. Why do you think it’s appropriate to be that cruel? Or do you just not want to think about the feelings of a woman who (like this woman) has just had to make the decision, quite literally, not to become a mother, but to have a late-term abortion.
You may disagree with her decision, and feel that you would never do it. But you need not be wantonly cruel to her, not even in a blog post which let’s hope she’d never read.
Also, the insistance to call the baby fetus when we are talking about third trimester pregnancies is silly. No matter what the medical term is I can assure you that everybody arount normal pregnant women refer to “the baby” in than stage and than includes doctors and midwives.
I would hope that everybody around a pregnant woman is polite enough to use the terminology she feels comfortable with, whatever that is. But, the neutral and correct word is fetus.
I do very strongly agree with the fact that anybody (and that includes pregnant women) should be the ultimate decider about what medical procedures are performed at them.
Good.
We don’t differ in our view about women rights, we differ about the moment we feel the fetus/baby is entitled to rights and protection.
Well, we do differ in our views about women’s rights, in that important respect: I believe those rights are inalienable, you believe they can and should be done away with.
Phil: Of course, the logical consequence of her definitions means that, in her world, there are literally millions of women walking around right now with unfathered concepti
*g* Well, it’s true that I do tend to think that a man should only get to call himself a father if he actually acts like a father – rather than just someone who supplied the sperm.
I don’t know about the UK, but in the Netherlands men can legally acknowledge their unborn child and are afterwards legally known as the father of the fetus/baby. When you are pregnant they usually ask you who the father is.
As from 24 weeks a fetus/baby falls under the official rules. After it leaves te body of the woman being pregnant with it, usually described as the mother, it needs to be burried/cremated in accordance with funeral rules, it needs to be written in the population registry, etc.
Marbel: I don’t know about the UK, but in the Netherlands men can legally acknowledge their unborn child and are afterwards legally known as the father of the fetus/baby.
In the UK, a husband is legally the father of any baby his wife bears if he had “marital access” to her, whether or not he is genetically the father: and an unmarried male cohabitee can be legally the father of any baby his partner bears, whether or not he is genetically the father.
Do you understand what I mean when I say acting like a father? I mean being around, being caring, being supportive, changing diapers, reading stories, cooking meals, being there for the child. If a man has casual sex with a woman, she gets pregnant, and she decided to keep the baby, the man may end up being liable for child support for 18 years because he’s genetically the father, but if he’s not going to be there for the kid, he’s not acting like a father.
So…what do you call a woman who abandons her child or puts it up for adoption?
jrudkis: So…what do you call a woman who abandons her child or puts it up for adoption?
The biological mother. What would you call her?
Or birth mother, I suppose. Either one.
I would call her the mother, but I would call the sperm donor the father.
Well, genetically he’s the father. But if he hasn’t acted like a father, why not just call him the sperm donor?
A woman who gives birth is a mother: if you need to distinguish between her and the mother who didn’t give birth, as in your example of a child given up for adoption, or the child of a same-sex couple, you can say the birth mother or the biological mother.
So what would you call the women who gives birth to a stillborn baby?
My point about the father was that he appearantly is the *father* before the baby is born. So what is he, when the child is aborted? Father? Man who deliverd the genetical material for the fetus that was removed from the womb of the women who was pregnant with that fetus? Or am I cruel calling the woman pregnant? And isn’t it rather silly to say that *he* is the father, but she isn’t the mother till after we’re sure the baby is born (hmm… would that make the pregnant women aborting the child mother the moment the baby/fetus leaves the body?). Your replacing the words in the replies is rather silly imho, and the fact that you change ‘mother’ into ‘woman’ and not ‘pregnant woman’ means that your replacing has nothing to do with wanting an accurate description.
So are our laws, where a child/fetus/baby is officially recognized as independent person as from 24 weeks gestation wrong? We have a lawcase where a man is accused of killing the unborn child of his wife because he willfully stabbed her belly when she was 38 weeks pregnant and told him he was not the father. Biological father if that suits you better. You feel he should just be prosecuted for injuring his wife?
Marbel: So what would you call the women who gives birth to a stillborn baby?
I’d go with whatever she wanted to be called – whatever was less painful for her.
My point about the father was that he appearantly is the *father* before the baby is born.
Well, perhaps we should get our terminology clear? Obviously, the fertilised egg has two contributors of genetic material, and we can call the sperm provider the father and the egg provider the mother, if you like, even if the egg was fertilised in vitro and implanted in another woman’s uterus and she’s married, so in fact there’s four parents – the genetic mother and father, the birth mother, and the legal father. And if the man divorces his wife and she remarries, the child could have three fathers – one genetic, one legal, one stepfather. And if the birth mother and the legal father and stepfather are all killed in a plane crash, and the child is adopted, the child then would have four fathers… or five, if adopted by a gay couple.
The man who contributed the sperm is the genetic father from the moment of conception. The man who is married to the woman is legally the father even if he’s not the genetic father. The man who counts as the child’s father, no qualifications, is – in my view – the man who’s going to be there for the child – to act as father. Or men, for that matter: I know a girl with two fathers, a gay couple, and while one of them is the genetic father, both of them are definitely her fathers: they act as fathers do.
Is this such an odd thing for me to think? A man, after all, can be the genetic father to a child and never have anything whatsoever to do with the child. Or not be the genetic father to the child, yet still father the child in all ways that matter. I honestly didn’t think this would be so controversial.
Your replacing the words in the replies is rather silly imho, and the fact that you change ‘mother’ into ‘woman’ and not ‘pregnant woman’ means that your replacing has nothing to do with wanting an accurate description.
Does it? If you feel that way, I’ll change “mother” into “pregnant woman” in future.
Do you have anything to say about the pointed cruelty of calling a woman who is about to have a late-term abortion of her first pregnancy “mother”? Or is that just something you prefer not to think about?
So are our laws, where a child/fetus/baby is officially recognized as independent person as from 24 weeks gestation wrong?
I’d say they’re biologically rather foolish: it’s not as if a woman can (or would) simply have an early delivery at 24 weeks and walk away. If the fetus is supposed to be an independent person at 24 weeks, logically speaking, that means the woman ought to be able to do that – but if she did, that premature baby would most likely die, or if s/he lived, would most likely live with permanent disability. But they’re your country’s laws, not mine.
We have a lawcase where a man is accused of killing the unborn child of his wife because he willfully stabbed her belly when she was 38 weeks pregnant and told him he was not the father. Biological father if that suits you better. You feel he should just be prosecuted for injuring his wife?
I really don’t know. That’s a horrible story – as horrible as the story of a woman who was pregnant, didn’t want to be, couldn’t get an abortion (she lived in a rural part of Texas and could not afford to travel) and – shot herself in the uterus. It worked: the fetus was killed. She was prosecuted for murdering it. That is the other side of being pro-life. Should the man be prosecuted? I’m tempted to say “Hell yeah, throw the book at him, prosecute him for everything.” It certainly makes sense to have as a crime “forcing abortion” – abortion in the sense of either forcing a woman into a miscarriage or forcing a woman to a clinic.
The most common cause of death in pregnancy (I remember reading sonewhere, so take this with a spoonful of salt since I can’t link to the stats) is murder – men killing a pregnant woman because they don’t want her to be able to decide to have the baby. Which is of course the other side of being pro-choice – opposing anyone who thinks they have the right to control a woman’s body. Like this man who stabbed his wife: or the legislators who think that they ought to force a doctor to use a less-safe method of abortion because the safest method is too gruesome for them to deal with.
“Do you have anything to say about the pointed cruelty of calling a woman who is about to have a late-term abortion of her first pregnancy “mother”? Or is that just something you prefer not to think about?”
I don’t mind being cruel, if it’s a case of cruelly accurate. The fact that a woman intends to commit infanticide does not magically render her not a mother. It just makes her a bad mother.
Yes, well, Brett: you’ll just have to deal with the fact that women can decide not to be mothers: that you do not have the right to force women through pregnancy and childbirth against their will, however much you want to be able to do that. You get whatever perverse jollies you get out of abusing women, and I hope you are never in a position to enforce forced pregnancy/childbirth on any woman.
Ah, verbally abusing women, just to be clear: Brett has at least made clear he wants to subject women who need late-term abortions to verbal abuse, and while he has also made clear he would like to be able to abuse them physically by denying them the abortion they need, he is not legally able to do that, and the wish is not the deed.
Sebastian: At least for me, and I know for lots of the evangelical set who otherwise lean sort-of-progressive, this is exactly why they are willing to hold their noses and vote Republican.
Because HEALTH vs. LIFE: Trying to clear things up:
you think this woman would be better off dead?
Feh. It’s not abuse to refuse to accomidate somebody else’s wish that you not accurately identify their status.
I apologize, Sebastian.
I had literally just finished reading that blog post I linked to – not the first, nor the last, anguished piece of writing by a woman who had a late-term abortion, who knows by personal experience what the Supreme Court upholding this law will do to women, because it happened to her – except, she was fortunate, in a bizarre kind of way, to have that dreadful experience before the law changed. So her doctor was free to make the best decision possible for her health, not worrying that he would be prosecuted for that. (The PBA Act contains a clause to preserve the life of the pregnant woman, but not her health: which, as she points out, means that the doctor might have had to wait until the second fetus in her uterus was dead too, or risked giving her a stroke by inducing labor – which would still have been legal). And then I came back to this thread, and it reminded me of your comment which rejoices in this law – this law which has no outcome other than to destroy women’s health or have doctors risk prosecution for refusing to destroy it.
But, I do believe you just never think about the women so affected. Certainly I doubt you ever read blog posts like the one I linked to, and wish that woman dead. I think it never occurs to you to think about the women involved at all.
Because if you did think about them, I do assume you would change your mind. You would not support a law that has no purpose other than to harm women.
Convince me. Write a post explaining why you think this law is good. Use examples – you’ll find them all over the blogosphere just now – from women with experience of late-term abortions. Explain why you think it’s better that these women should have suffered or should have died. Don’t go for the lazy “Oh, I don’t approve of abortion” – these women all had serious health reasons why they had a late-term abortion. You want to argue that they shouldn’t have, and particularly why they shouldn’t have had an ID&X or a D&C? Tell us why you think it was better for them to suffer or die. Those were their choices. You think they should have have been forced not to abort: justify, giving real-life examples, why you think it would be right so to force them. You think it is right that doctors should be forced to use less-safe methods for late-term abortion: justify, giving real-life examples, why you think these women should have had damaged cervixes or strokes.
Just for once, you see, I’d like to see a committed pro-lifer write about the women whom his political beliefs condemn to suffering or death, rather than pretending – as all of them do – that these women do not exist.
In German the generally used term is “werdender Vater/werdende Mutter” i.e. “becoming father/mother” with ‘werden’ being the most neutral verb for indicating something in the future (the literal English would be ‘will-ing’ but that has a different meaning of its own and no ‘intention’ is implied in ‘werden’).
Hartmut: we would use ‘aanstaande’, which translates into ‘werdender’ – but it is rather long to use all the time so it often is shortened by leaving that away.
Jes: in a late abortion I must admit that *my* experience (anecdotal, but I doubt there’s a study about it) is that women like to be called mother and feel mother. But we have a tiny percentage of unwanted pregnancies, 98% of all abortions are in the first trimester, so late term abortions tend to be from a much wanted child. If I know the individual I call them whatever they want (usually their first name actually), but if I describe a general group I tend to use general terms.
I agree the Texas case is very sad. I think that we agree that if you really want to decrease (late term) abortions you’d have to start by decreasing the percentage of unwanted pregnancies and by making early abortions very easy and accessible. However the fact that people kill their children after their birth in desperate circumstances does not mean that that should be allowed (we’ve had some horrible tragedies the last few months, of people (attempting) suiciding with their kids).
My point is not that I don’t think the women has rights, my point is that there comes a moment in the pregnancy that the fetus is entitled to protection – and thus the rights of the persons involved should be weighted against each other.
If I recall correctly even Sebastian H. said that he would not protest a late term abortion if doctors agreed with the women it was necessary. The mother has more rights than the child, but for people who have difficulty with late term abortions the fetus/baby has rights too.
The weather is glorious, the admin taxing, the house in need of maintenance, the schedule rather full at the moment, so I’m not sure when I can continue the argument. I’m sure we will find a thread sometimes…
Marbel: Jes: in a late abortion I must admit that *my* experience (anecdotal, but I doubt there’s a study about it) is that women like to be called mother and feel mother.
Fair enough. I’m not aware of any general study, but absolutely, in each individual case, I would go with what the woman herself wanted.
My point is not that I don’t think the women has rights, my point is that there comes a moment in the pregnancy that the fetus is entitled to protection – and thus the rights of the persons involved should be weighted against each other.
I don’t believe it’s ever right to take away a human being’s basic rights by fiat, just because that person belongs to a specific group, not because you actually have reason to believe that person will misuse their rights. And as a fetus in the uterus cannot have rights unless a woman’s rights are taken away from her, I do not believe it’s ever right to argue for fetal rights: a fetus can’t have them unless you decide that “women more than five months pregnant” (whatever point you pick) cease to have the right to make decisions about their own bodies. Because divorced fathers sometimes murder their children and then commit suicide, we don’t deny divorced fathers by fiat the right to care for their children and have parenthood rights. (Virtually all the instances I can think of of parental murder/suicide were of fathers.) But we’ve gone over this, and I know we just disagree: you do think it right that women past a certain stage of pregnancy can’t be allowed to make their own decisions in case they make decisions you (and probably others) would think were bad decisions. I don’t and I can’t agree to that.
If I recall correctly even Sebastian H. said that he would not protest a late term abortion if doctors agreed with the women it was necessary.
If you check back for Sebastian’s first post on this thread, he thinks that a law which has no effect other than to force the doctor performing a late term abortion to choose a method which is not the safest, is a decision for which he is “THANKING the American people” (or at least, the small sub-section of it that rigged the 2004 election against Kerry), and he’s “not sure why you would assume there is blame to be assigned” when a legal decision is made to condemn women who need late-term abortions to permanent infertility and even more hazardous damage to their health. So, he may not protest a late-term abortion when a doctor agrees it’s necessary, but he certainly thinks that a woman who needs a late-term abortion ought to suffer for it.
Jes, to be fair, I’m not sure that SH has said that he thinks it would be a bad thing if a woman was to prevail in an ‘as applied’ challenge. That is, if the doctor can convince the judge that the banned procedure is actually necessary in a specific particular instance, then SH (I think) may well be willing to go along.
If you’re right about the need for the procedure, then someone ought to be able to win an as applied challenge.
That is, if the doctor can convince the judge that the banned procedure is actually necessary in a specific particular instance, then SH (I think) may well be willing to go along.
Under the terms of the Partial Birth Abortion Act, it would now be illegal for the judge to permit a doctor to carry out anything the judge thinks is a partial-birth abortion unless the doctor will actually be saving the woman’s life in doing so.
Permanent damage to the cervix will not kill a woman. It only prevents her from ever having any more children. It is therefore not legal for a doctor to justify an IDX on those grounds, or any grounds other than actually saving the woman’s life. Once pregnancy reaches a stage where late-term abortion is necessary to save the woman’s life, that Sebastian is willing to allow the necessary operation to be delayed another few hours so that a judge can agree the safest method possible can be used, will not be of any great comfort to the woman waiting for it to be carried out.
Under the terms of the Partial Birth Abortion Act, it would now be illegal for the judge to permit a doctor to carry out anything the judge thinks is a partial-birth abortion unless the doctor will actually be saving the woman’s life in doing so.
You’ve not understood me, or Justice Kennedy’s decision. The door is left open to a conclusion that in the particular circumstances of an actual woman present in the court, the banned procedure is actually necessary to preserve the health of the woman. A judge who so concludes can, consistent with the recent decision, rule that the new law is unconstitutional as applied to that woman, and then permit the doctor to proceed.
If doctors, patients, and lawyers are careful in case selction and thorough in case preparation, they should be able to win such cases.
For all those right-to-lifers commenting on the site who oppose late abortions under any circumstances: please indicate how many severely handicapped babies you personally are willing to care for. And also give us the dates from which you will be available to give such care. I would expect that to be within the next month at the latest. Please do not say that your personal circumstances do not currently allow you to care for a severely handicapped child: your personal circumstances are as irrelevant to me as the pregnant woman’s personal circumstances are to you. If you have voluntarily chosen to carry out an act (such as make these kind of policial statements), then you must abide by the consequences of these acts. If you feel unable to cope with such a prospect, try a little empathy for once.
” don’t believe it’s ever right to take away a human being’s basic rights by fiat, just because that person belongs to a specific group”
But, alas, sometimes that human being happens to be a post viability “fetus”. And so, we’re not presented with a choice of whether to take somebody’s rights away, but whose rights to infringe. To decide that it will always be the fetus’s is exactly to “take away a human being’s basic rights by fiat, just because that person belongs to a specific group”
You’re so fixated in your views that you can’t even tell when you’re arguing for the other side. 😉
To decide that it will always be the fetus’s is exactly to “take away a human being’s basic rights by fiat, just because that person belongs to a specific group”
Are you talking about that legislation that will mandate abortions?
CharleyCarp: The door is left open to a conclusion that in the particular circumstances of an actual woman present in the court, the banned procedure is actually necessary to preserve the health of the woman.
I thought that the Partial Birth Abortion Act permits exceptions only to preserve the life of the woman, not her health? I’m willing to assume you know more about it than me, but can you link me to the specific part of the Supreme Court’s decision that allows a doctor to appeal on the grounds that a woman’s health, but not her life, is in danger?
Brett: But, alas, sometimes that human being happens to be a post viability “fetus”. And so, we’re not presented with a choice of whether to take somebody’s rights away, but whose rights to infringe.
No; we are presented with a situation where either a pregnant woman can decide, in consultation with her doctor, what to do: or legislators can decide by fiat that the pregnant woman is not allowed to make such decisions. There is only one person who can make decisions with regard to the individual situation of herself and her fetus, and that’s the pregnant woman herself. To remove her right to make decisions is not only cruel, it’s stupid.
magistra: Please do not say that your personal circumstances do not currently allow you to care for a severely handicapped child: your personal circumstances are as irrelevant to me as the pregnant woman’s personal circumstances are to you.
True, but frankly not to the point. The present change in the law, as I am sure Sebastian and Brett are well aware – since it was discussed at length on an earlier thread – does not prevent any abortions, early or late. It merely requires doctors to choose another method than the safest one to carry out a late-term abortion. When Sebastian says he supports this law, it’s not part of his opposition to abortions, since this law will not prevent any abortions: he is specifically saying he supports a law that mandates permanent damage to a woman’s health if she needs a late-term abortion.
Jes, this is what the whole ‘facial’ vs. ‘as applied’ discussion is about. The statute has withstood a facial challenge. Kennedy said that the health issue has to come up on an ‘as applied’ basis. Read section V of the opinion.
Section V of the opinion:
Thanks.
So, if all goes as it should, the net result of this law is that over the next couple of years, several women who need late-term abortions will wait unnecessary time while doctors get a judge to agree that if the best option for her abortion is an IDX she should get to have one, and finally return to the status quo before the PBA was passed, where doctors just get to decide, on behalf of/in consulation with their patients, what the best way to perform a late-term abortin is?
Yep. If doctors/patients/lawyers go forward intelligently. This is why I think the biggest damn deal of the case is that Alito & Roberts signed on for this, and not for the Thomas/Scalia option.
It’s a dog that didn’t bark, and we can’t be sure what it really means until it gets to them again, but I think gnashing of teeth and rending of garments is premature.
but I think gnashing of teeth and rending of garments is premature
Well, hopefully yes. Unhopefully, though, it makes it more expensive and more risky for a woman who needs a late-term abortion to have one.
I don’t know whether it’s bad or good that so many pro-lifers came out as celebrating a bad law with no purpose other than to punish women. On the one hand, out in the open with no way to argue any more that it’s all about saving lives to them: on the other hand, maybe they think they no longer need to hide.
Thank you for clarifying the legal situation, anyway. I hope it all works out.
“and finally return to the status quo before the PBA was passed”
Nope, in all likelihood, (Or else the facial challenge would have succeeded!) the end result will be that the law is upheld under some circumstances, and not under others. The status quo is pretty much off the table now.
And I agree that, since this law was specific to the details of how the abortion is performed, and not to the circumstances of the mother and baby, that it would stop precious few abortions even if upheld in all circumstances. The importance of this ruling is that the Court has signaled that it’s finally ready to permit abortion to be regulated to some extent. Further legislation and litigation will be necessary to determine what that extent is.
The importance of this ruling is that the Court has signaled that it’s finally ready to permit abortion to be regulated to some extent.
I think this is way overstated. Casey, for example, upheld some restrictions, and rejected others.
And at 11:57 when I said intelligently, I meant, among many other things, without press releases.
Brett: Nope, in all likelihood, (Or else the facial challenge would have succeeded!) the end result will be that the law is upheld under some circumstances, and not under others. The status quo is pretty much off the table now.
So, you do think that the law will succeed in enforcing permanent damage on women who need late-term abortions? You’re optimistic about that – whereas CharleyCarp (whom I hope knows better than you) is optimistic that such enforcement will fail.
The importance of this ruling is that the Court has signaled that it’s finally ready to permit abortion to be regulated to some extent.
If that’s the case, it shows in what direction regulation under the present court will go: that calculated to damage women most.
“So, you do think that the law will succeed in enforcing permanent damage on women who need late-term abortions?”
I doubt it, but it might be effective at stopping those who have been using the ‘health’ exception frivolously. Since you believe that number is zero, that shouldn’t be a big deal.
Well, using the Supreme Court to enforce unnecessary harassment on pregnant women who need late term abortions, in order to make such abortions more expensive and more difficult to obtain, may be “no big deal” to you, Sebastian: but for me, that looks like a big deal. (Though I hope CharleyCarp and you are right, and Brett is wrong, and that the Partial Birth Abortion Act will not in fact ever be used as it is intended, to force permanent damage on women as punishment for needing an abortion late.)
(Virtually all the instances I can think of of parental murder/suicide were of fathers.)
Yes, women rarely do perform the favor of saving the taxpayers a costly trial, that’s correct. They just murder the children.
“Well, using the Supreme Court to enforce unnecessary harassment on pregnant women who need late term abortions, in order to make such abortions more expensive and more difficult to obtain, may be “no big deal” to you, Sebastian: but for me, that looks like a big deal. (Though I hope CharleyCarp and you are right, and Brett is wrong, and that the Partial Birth Abortion Act will not in fact ever be used as it is intended, to force permanent damage on women as punishment for needing an abortion late.)”
And here we see how you attempt to win arguments. Well of course if the woman needs the abortion it would be wrong to deny it. The problem is that we have a fairly strong disagreement about what constitutes ‘needs’ and whether or not anyone else in the universe gets to take a second look at the definition of ‘needs’ being used.
We also have a rather unresolved issue of whether or not the fetus has any ‘needs’ or ‘rights’ even if it could be delivered fully intact and viable (yes I know you answer is ‘no’, and your ugly fight with dutchmarbel over it is not something I’m going to get into).
So yes, we’ve established that if you can frame the issue any way you want and ignore your opponents’ actual arguments, you can make them look bad to those who accept your view.
That is a lesson Bush illustrated pretty well when doing things like calling Democrats traitors for disagreeing with his idea of how to conduct a war, so I suppose you are in powerful company.
whom I hope knows better than you
No one knows what the future holds. I would expect, though, that in medical circumstances where the doctor/patient/lawyer don’t think they can convince a judge that the banned procedure is actually necessary, the case won’t be brought.
The circumstances pretty strongly favor the plaintiff side here, though. As I’ve noted before, the decision is going to have to be made very quickly. The judge is going to hear from a doctor and a patient who are very well prepared, and they’re going to be cross examined by an AUSA who hasn’t got much background. Maybe the AUSA can get an expert to testify on that short notice, but that expert is going to have to do so without having examined the actual patient.
These cases aren’t going to be slam dunks, but the timing, and lack of attention by advocacy groups, will also leave a very favorable record for review on appeal.
Although I may just be being slow here, but how do you bring the case? An action for a declaratory judgment that the abortion is about to be performed is not illegal?
If that doesn’t work, I don’t see how you get it into court other than a prosecution after the fact (I don’t actually know if the law in question has criminal penalties — I figure it probably does), in which case the prosecution is going to be prepped and pressure groups will be aware, or a colluding prosecutor getting a court order to stop a prospective abortion which the doctor and patient can then oppose.
I may be missing something obvious here, but I’m really not clear on how to get this one into court without help from the state.
I think the declaratory judgment route is exactly what Justice Kennedy was describing: The Government has acknowledged that preenforcement, as-applied challenges to the Act can be maintained. This is the proper manner to protect the health of the woman if it can be shown that in discrete and well-defined instances a particular condition has or is likely to occur in which the procedure prohibited by the Act must be used. [cite omitted].
Sebastian: Well of course if the woman needs the abortion it would be wrong to deny it.
Fantastic. My work here is done. Sebastian is no longer a member of the pro-life movement.
The problem is that we have a fairly strong disagreement about what constitutes ‘needs’
Well, no and yes. I think the pregnant woman and her physician are the best people to decide what she needs. You, apparently, think that anyone else but the pregnant woman is the right person – including 5 supreme court justices.
and whether or not anyone else in the universe gets to take a second look at the definition of ‘needs’ being used.
Why should anyone else in the universe but a pregnant woman and her physician get to decide what she needs?
We also have a rather unresolved issue of whether or not the fetus has any ‘needs’ or ‘rights’ even if it could be delivered fully intact and viable (yes I know you answer is ‘no’, and your ugly fight with dutchmarbel over it is not something I’m going to get into).
No, Marbel and I are having an argument over whether the pregnant woman has inalienable rights or whether she ought to have those rights removed so that someone else can override her judgement. Of course a fetus has needs: if it had no needs, viability wouldn’t be an issue. It cannot, pre-birth, have rights.
Charley: Yeah, after I wrote my last I looked upthread and saw your earlier comment explaining. It still seems medically kind of tricky; given that these are usually time-sensitive, do you moot the case by going ahead with the D&X if you don’t have an answer yet? And if that doesn’t moot it, on the “capable of repetition but evading review” standard, then what on earth is the distinction between the facial and as applied challenge? Evidence was put in of women who needed D&X’s on the as applied challenge; how is it suddenly different that for the facial challenge the case was brought in the days immediately before the D&X?
Whoops, switch ‘facial’ and ‘as applied’ in that last sentence.
Liz, I’m not sure I should be conversing with you. Rather than chasing you off the Internet. Out, Out, with you!
For the benefit of others, yes, it’s perfectly clear that the case is going to have to be on a very fast track. I’d imagine you’d file a motion to get a ruling in 2 or 3 days — depending on the medical circumstances. Maybe a week. If the district judge denies it, then you’d note an appeal that day, and ask for a ruling in 2 or 3 days or whatever. Courts routinely act that quickly, when circumstances truly require it.
I would imagine that were the ‘capable of repetition’ thing comes in is where the patient wins. If the government appeals, then it’s going to have to get a stay of the procedure. If it doesn’t get the stay, and this is going to be medically driven, I’d expect, then the question will be whether the procedure moots the case. Probably not — and the difference between this and a facial challenge is that the record is limited to the medical facts of a single plaintiff.
I’m frankly not sure the government would even resist a compelling medical case. As SH notes, if the need is established, that’s it. It’s just that he (and many others, I’m sure) want there to be objective review.
Liz, it doesn’t matter if you put ‘as applied’ evidence forward in a ‘facial’ case: they’re still going to apply the ‘facial’ standard. As they did here.
Liz, I’m not sure I should be conversing with you. Rather than chasing you off the Internet. Out, Out, with you!
No, I’m good — the papers I had banned myself for got served yesterday. I’m back on a normal procrastination schedule.
I’m frankly not sure the government would even resist a compelling medical case.
And to come back to publius’ original point, this is another reason why it’s a very big deal who is appointing US Attorneys in the future.
I know, it just seems particularly silly. “Because this is an ‘as applied’ case, these medical records showing that patient X was likely to suffer maiming, rather than death, as the result of being denied a D&X is convincing evidence that a health of the mother exception is necessary. Precisely similar records were insufficient evidence to support the same proposition on last year’s facial challenge.”
But no one ever said legal work was going to make sense.
Jes: I agree with you that medical decisions should be between a woman and her doctor. I think that a woman who tried to obtain an abortion of a healthy viable 35-week fetus would find it virtually impossible to find a doctor to conduct a PBA.
But let’s assume, just for argument, that California did only the following: any doctor proposing to conduct abortion after 30 weeks had to obtain a second opinion from a Board-certified ob/gyn that C-section and adoption of baby, if alive, would risk grave bodily harm to the woman.
(yes, that’s not what the PBA law does. I’m just curious if there is any law that you would find tolerable that restricts abortion.)
I don’t think it’s inconsistent Liz. It’s the difference between saying that a statute is void altogether, or void as to certain people and situations.
Francis: I’m just curious if there is any law that you would find tolerable that restricts abortion.
I’m just curious why you put it that way, rather than “Is there any law you would find tolerable that forbids women to make medical decisions for themselves?” since that is the point I stick on.
To which the answer is, in principle, no: people ought always to retain right of control over their own bodies, and not have what medical decisions they are allowed to make restricted by the state.
In practical terms, late in pregnancy, I am quite happy that a woman ought to have to seek medical advice on what procedure would be appropriate/best for her health, and, fairly obviously, no one can have a major medical procedure performed on them without the consent of the doctor who will be performing it. But the final decision, yes or no, has to be the patient’s.
In practice, laws forbidding abortion after 28 weeks (which, in practical terms, means 24-26 weeks, since doctors count gestation from the date of the woman’s last period) unless there’s a serious health risk to the woman, do no great harm.
Jes: no one can have a major medical procedure performed on them without the consent of the doctor who will be performing it
I recall seeing several articles last week to the effect that while demand for abortions is growing there are fewer and fewer doctors in the UK training to perform them.
Any thoughts on why that may be? Is there a social stigma there that fewer doctors want to be involved with it? Is it ethical or religious? If most doctors work for the NHS that would seem to equalize other factors, or is that not true?
Just curious on the local perspective…
I found this story about a husband facing an abortion decision due to his wife’s incapacity particularly compelling. (via Pharyngula.)
I read that story from the link at PZ’s too, Francis, and frankly found it impossible to believe, since we’ve been informed categorically and without question that the only two people capable of and permitted to make such a decision are a pregnant woman and her physician.
Of course a fetus has needs: if it had no needs, viability wouldn’t be an issue. It cannot, pre-birth, have rights.
You know, saying it over and over again does not, actually, oblige others to believe it, nor does it even make it true.
My impression was that it was one of those “crises” whipped up by the media. The British Pregnancy Advisory Service spokesperson said that in about seven years it might be a problem: and the Marie Stopes spokesperson said it would be good to train nurses to perform abortions. The DoH said there was nothing to worry about.
I notice that the Independent‘s article – which I missed when the story surfaced last week – noted that the issue seems to be that junior doctors finally had their hours cut two years ago, so they don’t any more train in all parts of the service – which means they have to pick the areas they want to work in. And apparently many of them (being, according to personal anecdote, in general right-wing: and statistically, generally male) “opt” not to get training in how to do abortions. This makes sense – but suggests that the teaching hospitals will have to be more organized about junior doctors covering essential services, and not skipping some of them because they’re dull.
The 1967 Abortion Act allowed for doctors or nurses to refuse to perform or assist at an abortion on religious grounds: no law, as I see it, requires a teaching hospital to allow junior doctors to avoid learning about essential medical services because the junior doctors think they’re boring. My guess is this is why the DoH says there’s nothing to worry about – if there’s a temporary glitch right now of what junior doctors are opting into or out of, it will get unglitched before it can become a long-term problem.
Phil: You know, saying it over and over again does not, actually, oblige others to believe it, nor does it even make it true.
And someday, perhaps, people who keep repeating that they think fetuses do have rights will take your sage advice.
All blogs should have permanent side threads on certain issues. These include abortion and Israel/Palestine.
Jes: Thanks.
If I recall correctly, training in abortion procedures was required curriculum here, and Congress passed a law saying that medical students could avoid taking the training for reasons of conscience. So I guess they have a very similar “opt out” here.
From a personal perspective, no matter my personal opinion on abortion, I think that an OB/Gyn needs to have the training. If they don’t want to routinely perform abortions that is their choice, but as a matter of certification I think they need to know how.
We’re continually told by the pro-choice movement that no women are obtaining frivolous post-viablity abortions. I want a show of hands here: Suppose that Jes found herself seven months pregnant, perfectly healthy, the “wad of tissue” perfectly healthy, no medical indications that an abortion was needed for health reasons. And she decided that she didn’t really want to be a mother. Does anyone think Jes would even hesitate to get an abortion if she could find somebody who’d do it? Does anybody think there aren’t abortionists who share Jes’s attitudes?
The world is full of Jeses. They’re a minority, but they’re not rare.
I certainly think she would hesitate. I think there is a big difference between advocating for choice under almost any circumstances and making that choice yourself under the circumstances you describe.
Frankly, given the amount of movement and kicking going on at 7 months I don’t believe any woman could just frivolously change her mind. You are at the point where I can’t see anyone thinking of it as a “wad of tissue”. I’ll go a step further and bet that Jes would even call it a baby and herself a mother at that point.
Brett-
Given unrestricted access to abortion and propoer medical counsel during the first trimester I see no reason why anyone would wait until such a late point to make the decision.
Do you have some plausible explanation why all these hypothetical women are waiting until the last moment to decide to abort or is this just a rhetorical position calculated to generate the most pathos for your side?
“Do you have some plausible explanation why all these hypothetical women are waiting until the last moment to decide to abort or is this just a rhetorical position calculated to generate the most pathos for your side?”
Their boyfriend/father of the fetus/baby broke up with them over the pregnancy.
People have, get this, actually been known to change their minds.
Based on her statements here, I doubt that Jes would be willing to call an 8 1/2 month fetus a “baby”, so long as it was undelivered.
Sebastian – as a hypothetical case for late abortion, that’s a lousy one. If the man involved didn’t want the woman to have a baby, he’d already have been pressurising her to have an abortion or broken up with her way before seven months. If a woman gets that far with a pregnancy in those circumstances, she is almost certainly committed to it whatever happens in her personal life.
OCSteve: Frankly, given the amount of movement and kicking going on at 7 months I don’t believe any woman could just frivolously change her mind.
Nor do I. Nor, indeed, have I ever heard of it happening. Nor, I think, can Sebastian point to any evidence of it happening, since he was already asked to do so on another thread and couldn’t. (And Brett doesn’t seem to know much about it.)
You are at the point where I can’t see anyone thinking of it as a “wad of tissue”. I’ll go a step further and bet that Jes would even call it a baby and herself a mother at that point.
Given that I’ve never been pregnant I would hate to predict what I would call it and myself at seven and a half months, but certainly all of the pregnant woman I’ve known, that far along in pregnancy (33 weeks is at the point where she’s getting ready for delivery, both physically and mentally) are very aware that it’s going to be a baby in short order, whatever name they’re using for it.
Sebastian: Their boyfriend/father of the fetus/baby broke up with them over the pregnancy.
You think that’s a plausible reason for an abortion at 7 and half months? How many pregnant women have you known?
Given how disturbing such situations can be, I would not vouch for “plausibility” as being the natural focus. That’s one of the points that in my view justify a mandatory waiting period and mandatory counselling before an abortion (at least at that late a stage) is performed. If one parent* is able to kill a born child to hurt the other (which does happen), a late term abortion for the same purpose is at least not completely beyond imagination (you may call it pre-natal infanticide).
I would agree that no woman in a clear state of mind and not threatened with grave harm would likely consider it but both conditions are not always met.
* of either sex
Hartmut, I was trying to respond to your comment properly, but there’s so much wrong with it that I can’t.
1. Late-term abortions are carried out, as far as anyone has ever been able to discover, because the woman is going to die otherwise and the fetus is beyond saving. The notion that it’s justified to require a woman in this state to have pre-abortion counselling and a mandatory waiting period goes beyond nonsensical right into Monty Python style black comedy. Exactly what is the counsellor supposed to say? “Are you sure you really want that dead fetus out of you? Have you considered letting it rot inside you until it kills you?”
Claims that women can have the fetus killed at 7.5 months to “get back” at their boyfriend for splitting up with them? Find an example. Just one.
Arguments that it’s only right to restrict the freedom of all women because it’s just possible that a woman late in pregnancy might be able to persuade a doctor that she needs a late-term abortion when in fact she just wants to make sure the fetus is dead before it’s born in order to get back at her boyfriend for dumping her – look, there are actual examples of women killing their babies in the first week of birth, and yet we don’t argue that it’s therefore wrong to permit a woman to be left alone with her baby in the first week of life. But that’s the argument that’s being made here.
Finally, I suppose, the most ridiculous thing about the issue of legal restrictions on a woman’s right to make medical decisions late in pregnancy, justified as “protecting the fetus” – is that if a woman really did want to be rid of the fetus, she could do any one or multiple things that are likely to induce a miscarriage, that she will have been warned off doing if she took any pre-natal medical advice at all. (Eating a heavy curry meal, for example: there are known examples of women who made the mistake of over-indulging in a curry house late in pregnancy.)
“are very aware that it’s going to be a baby in short order”
See, told ya; She won’t call it a baby no matter how developed it is, until it’s delivered.
I am distinctly unpersuaded by the idea that there are no women who would seek a late term abortion for non-medical reasons. People kill all the time when it’s not necessary, we call it “murder”. Infanticide of delivered babies is scarcely unheard of, why shouldn’t it be even more common before delivery, when it’s easier to rationalize, and the legal consequences are lacking?
What impresses me is that the same people who say there aren’t non-necessary post viability abortions being done, are adamantly opposed to any mechanism which might make sure that this is really true. Tells me worlds about what they really believe.
Brett: Infanticide of delivered babies is scarcely unheard of, why shouldn’t it be even more common before delivery, when it’s easier to rationalize, and the legal consequences are lacking?
Infanticide by the mother is strongly associated with post-partum depression – a recognized medical condition. cite
Late-term abortion would have to get the active consent of a doctor to perform the operation, believing it to be in the best interests of the pregnant woman.
No one who claims that unnecessary post-viability abortions are being done is able to show any evidence that this is so, aside from what appears to be to be an evidenceless paranoia that pregnant women are evil and will do bad stuff if not actively prevented.
We know some mothers do commit infanticide. We do not therefore make it illegal for any woman to care for her newborn baby because she might do something awful to her or him.
We were talking about cases of medically not necessary abortions. Medical emergencies do override standard restrictions. You on the other hand claimed it completely implausible that a case equal to revenge-infanticide could occur during late-term pregnancy. I cannot link to a specific case but I remember cases where the knee-jerk reaction was “He goes? Then his (unborn) child will go to!”. The normal follow-up is that after a (ideally: assisted by someone trusted) cool-down that reaction has no consequences but it can also end in a “have that on your conscience!”-suicide or self-inflicted still-birth (or infanticide after giving birth).
And, yes, if any person is (from a certified/qualified medical/psychiatric practioner’s perspective) in a mental state that makes that person unfit to make rational decisions, that should limit that person’s range of choices and may (under very limited circumstances) justify that person to be put under observation or (in extreme cases) custody*.
In short: under extreme emotional stress people can (and do) make decisions that they should be stopped from carrying out until they are able to review it rationally. Again, we were not talking about medical emergencies but about a situation that can afford a period of deliberation. In these cases there should be imo
a) a mandatory hiatus period (24-72 hours being a standard)
b) a right to help/counsel.
The question, whether the action can or should be denied nonetheless is not touched by that. Btw, similar waiting periods are mandatory (in cases of non-emergency) for a number of other medical procedures too**.
*that of course has to cease the moment that the person can be seen as reasonably fit again.
** sterilization being a case where (at least over here) one has to wait (I have to look it up for how long) but the operation cannot be denied (certifiably insanes normally excluded). But about any major medical procedure legally mandates a counselling about the risks and can be refused, if no medical reason can be provided.
Hartmut: We were talking about cases of medically not necessary abortions.
Nope. We were talking about late-term abortions.
In these cases there should be imo
a) a mandatory hiatus period (24-72 hours being a standard)
b) a right to help/counsel.
But who gets to decide that this late-term abortion isn’t a medical emergency and the woman shouldn’t receive treatment immediately?
The rule that there’s a mandatory hiatus period between asking for an abortion and getting one is just fine – I mean, I’m not in favor of a woman being able to walk into a clinic, say “I want an abortion” and get one within the hour, except in circumstances when (as in some states in the US, or Third World countries, or I suppose the outback of Australia…) she’s had to travel for a day to get to the clinic, and mandating a hiatus of days will mean she needs to pay for somewhere to stay near the clinic during the hiatus. But in developed countries where a woman’s access to abortion is not limited: it seems common sense that she makes an initial appointment to tell the doctor she wants an abortion, and then an appointment to get the abortion, with a waiting period between.
Mandatory counselling is not fine – there’s really no point to counselling if you’re forced into it. But yes, if a woman wants to talk through her decision, good plan.
But about any major medical procedure legally mandates a counselling about the risks and can be refused, if no medical reason can be provided.
At what point does abortion become a major medical procedure?
Hartmut: I cannot link to a specific case but I remember cases where the knee-jerk reaction was “He goes? Then his (unborn) child will go to!”.
I have to say that in that case, I would guess the woman didn’t really want to be pregnant, and was pregnant primarily because her partner wanted it. In which case, if he’s dumped her, I can understand why she might well decide to abort: and that’s her decision, though I agree a cool-down period to think about it is probably in order.
I have a philosophical objection to waiting periods. We are (generally) talking about adults here. Requiring them to endure a waiting period to ‘think about it’ strikes me as contrary to the concept of adulthood. I find it quite difficult to believe that any woman is going to be walking through a mall, see a Planned Parenthood location, and decide to get an abortion in addition to whatever it was she was shopping for. Abortion is a difficult enough issue for women to deal with without people, however well-meaning, trying to weight it down further with their own personal hang-ups.
major medical procedure: in my book any medical action on the body that carries a non-negligible risk of causing lasting harm.
Rule of thumb, anything where you have to sign first that you have been informed about potential risks and that you are willing to undergo the procedure nonetheless.
Given that still many women die or are left sterile because of something going wrong during an abortion (and not always due to incompetence), I do consider it to be a major procedure of that kind. And that problem clearly increases the older the fruit of womb is.
Concerning mandatory counselling: I agree with you as far as it is used for chicanery or as just a tool to prevent a woman from getting the abortion. That was a hot topic over here too. As far as I know it the legal situation currently is that the state has to provide a neutral counsellor to you where you live, if noone else does and that the counsellor cannot refuse to testify that you attended even if you didn’t listen.
If these conditions are not met, I agree with dropping the “mandatory” (except for the pure medical risk info*).
*and I do not mean the “contraceptives cause cancer and homosexuality” propaganda.
G’Kar, unfortunately medical practitioners will tell you different (not just about abortion). There are enough people who want to have performed lots of things on them without really thinking about it. Hypochondriacs can be a real nuisance. And there are some (I hope extremly rare) cases of “vanity abortions”.
Clarification: Those are in my opinion not relevant enough to influence the written law.
But to get an abortion, a woman already has to convince a doctor to perform the procedure, right? How do additional laws or waiting periods aid in resolving this issue?
Hartmut: Given that still many women die or are left sterile because of something going wrong during an abortion (and not always due to incompetence), I do consider it to be a major procedure of that kind
Statistically, though, that’s still fewer than women who die or are made sterile because of something going wrong during pregnancy/childbirth. So, should women have to sign off on a consent form saying they understand pregnancy is dangerous to their health but they’re prepared to take that risk?
Practically speaking, abortion in the first trimester carries negligible risk, second trimester is slightly riskier but still (statistically) safer than having the baby, third trimester is riskiest – but then, a woman isn’t likely to be having an abortion in the third trimester unless something has gone fundamentally, awfully wrong.
Concerning mandatory counselling: I agree with you as far as it is used for chicanery or as just a tool to prevent a woman from getting the abortion. That was a hot topic over here too. As far as I know it the legal situation currently is that the state has to provide a neutral counsellor to you where you live, if noone else does and that the counsellor cannot refuse to testify that you attended even if you didn’t listen.
But that really is treating a woman like a child. It’s truly insulting. I mean, better than some methods of restricting abortion – I suppose a woman can spend whatever time she’d legally required to with the counsellor reading a letter of protest out loud, or reciting nursery rhymes – but insulting, none the less.
G’Kar; But to get an abortion, a woman already has to convince a doctor to perform the procedure, right? How do additional laws or waiting periods aid in resolving this issue?
Given that a mandatory waiting period is harmless (except in cases where access to abortion is artificially restricted and a woman needs to be able to have a same-day abortion because of the distance she had to travel to the clinic) I don’t object to it: make appointment with doctor to ask for abortion, and require the appointment to have the abortion be at least 48 hours after the first appointment unless it’s necessary for the woman’s physical or mental health to have it sooner. That doesn’t seem unreasonable.
Making the woman go see a counsellor before she’s allowed to have an abortion – that’s insulting.
Jes,
“So, should women have to sign off on a consent form saying they understand pregnancy is dangerous to their health but they’re prepared to take that risk?”
Do you plan to hand out such forms to every woman you find engaging in public displays of affection? Since becoming pregnant, unlike having an abortion, typically occurs outside of a doctor’s office, there are serious practical difficulties in requiring consent before becoming pregnant.
“Late-term abortions are carried out, as far as anyone has ever been able to discover, because the woman is going to die otherwise and the fetus is beyond saving.”
According to the Guttmacher Institute study I linked to in the last thread (link apparently broken and I don’t have time to fix it, but the Guttmacher Institute doesn’t have so many studies that it should be super-difficult to find if you care), at least 4% of late term abortions were performed late because the woman “waited for the relationship to change”. Now it defined ‘late’ as the beginning of the 5th month, so it is possible that this number could be lower later, but I see no reason to believe that no-one who was willing to wait until month 5 or 6 would therefore be willing to do it in month 7. It is completely NOT unthinkable.
Furthermore you bring up post-partum depression as a medical condition related to infanticide cases. I assume you don’t do so to suggest that infanticide ought to be legal? Since pre-partum depression is also possible see here for example I don’t see why you think it is impossible that it could lead to a late term abortion.
G’Kar: Requiring them to endure a waiting period to ‘think about it’ strikes me as contrary to the concept of adulthood.
Jes: Making the woman go see a counsellor before she’s allowed to have an abortion – that’s insulting.
When I decided to get ‘fixed’ some years ago, I had to be counseled. More – my wife had to be present for it. Then I had to wait a week. Then my wife and I both had to sign consent forms acknowledging that we had been counseled and both understood that the procedure was likely irreversible.
So I guess my body is less my own than any woman’s is her own. Is NOW going to step up and help men fight this “spousal consent” restriction?
Do you plan to hand out such forms to every woman you find engaging in public displays of affection? Since becoming pregnant, unlike having an abortion, typically occurs outside of a doctor’s office, there are serious practical difficulties in requiring consent before becoming pregnant
The point is, as far as I understand it, that giving birth is more dangerous to a woman’s health than an abortion at any stage of pregnancy. Requiring counselling about the risks of abortion, then, is a little nutty if that counselling does not make it clear that statistically abortion is always going to be safer for the woman than continuing the pregnancy.
You know, Sebastian, it takes a special kind of thinking to leap from “‘late’ as the beginning of the 5th month” – that is, 16-18 weeks into pregnancy – to “five or six months”….
I see no reason to believe that no-one who was willing to wait until month 5 or 6 would therefore be willing to do it in month 7.
Perhaps because, lacking either medical training or any interest in pregnancy or fetal development, you’ve never bothered to go find out the difference between 16-18 weeks pregnant and 33 weeks pregnant? Suggest you do so, and then you’ll find out what “reason” you have to believe there’s a difference.
Informing women that pregnancies and giving birth are potentially dangerous should be taken care of while they are still at school.
That’s only half-joking. I think it should be part of any (sex) education indeed, so a girl knows what she is in for and can make an informed decision**.
The forms to be signed before an operation are* of course partially a cover-your-ungulate procedure, so a patient can’t sue so easily.
*or have become
**btw, are “the horrors of pregnancy” a part of the abstinence propaganda or is there mainly the STD scare?
Hartmut: Informing women that pregnancies and giving birth are potentially dangerous should be taken care of while they are still at school.
True. But, if we’re going for “All women should be informed of the risks” – then any woman who buys a pregnancy test should have access to the information that, statistically, a decision to stay pregnant and give birth is riskier than having an early abortion.
OCSteve: When I decided to get ‘fixed’ some years ago, I had to be counseled. More – my wife had to be present for it. Then I had to wait a week. Then my wife and I both had to sign consent forms acknowledging that we had been counseled and both understood that the procedure was likely irreversible.
I certainly think that you ought not to have to get your wife’s consent to have a vasectomy – any more than she should have to get your consent to have her tubes tied!
The difference between a vasectomy and an abortion is that a vasectomy is likely to permanently prevent you from engendering children in future – while an abortion has no such effect on a woman’s ability to have future children. (And a woman who doesn’t understand that an abortion means this potential child is permanently never going to happen, has worse problems than being pregnant and not wanting to be.)
“Perhaps because, lacking either medical training or any interest in pregnancy or fetal development, you’ve never bothered to go find out the difference between 16-18 weeks pregnant and 33 weeks pregnant? Suggest you do so, and then you’ll find out what “reason” you have to believe there’s a difference.”
Thanks, but I already know, that is why I believe the fetus has rights late in the pregnancy. And I didn’t say there was no difference in the fetus–you’re the one who believes that differences in the fetus ought not to matter. Lots of people do lots of silly and frivolous things–including deciding not to have a child because her boyfriend broke up with her.
And there is the pre-partum depression thing…
SH:
I can’t find the Guttmacher study indicating that at least 4% of late term abortions were performed late because the woman “waited for the relationship to change”. What I *did* find was studies indicating that women usually have *multiple* reasons for getting abortions, and that the big factors pushing women to getting abortions in the 2nd trimester rather than the 1st are (a) economics (need for money & free time to get to clinics) and (b) ignorance (i.e. teenagers not realizing they might be pregnant).
The policies of the so-called “right to life movement” exacerbate both these factors. *Empirically*, these policies imply that it’s better to have abortions be demonstrably later, on the average, if there might (hypothetically) be fewer of them.
Do you agree, Sebastian, that 1st-trimester abortions are just as morally culpable as 2nd-trimester ones?
Sebastian: Thanks, but I already know
Then why did you claim that you didn’t? You used an argument that rests on the notion that there’s no difference between a pregnancy 16-18 weeks along and a pregnancy 33 weeks along – which anyone acquainted with the facts would know was nonsense!
Lots of people do lots of silly and frivolous things–including deciding not to have a child because her boyfriend broke up with her.
Deciding not to have a child because you can’t afford one because your partner has left you is not “silly and frivolous” – it’s really bloody tragic. Republicans, however, tend to support policies that ensure a low-income woman will find it difficult to impossible to support both herself and her child, which makes it difficult for a Republican to sensibly criticize a woman who makes the decision to abort on economic grounds. When you come out as supporting a national health service and federally-mandated paid maternity leave for all, then you can argue that a woman ought not to decide to have an abortion on economic grounds. While you oppose economic support for low-income parents, you can’t complain that a woman might decide not to be a low-income parent. Prioritize, Sebastian: which matters more to you?
(Right before the 2004 election, I read a fascinating essay by a Catholic, in response to all the pro-life attacks on Kerry, pointing out that he would define himself as pro-life, he votes Democratic because he wants economic policies that tend to lead to fewer abortions, not the Republican policies that tend to increase abortions.)
And there is the pre-partum depression thing…
meaning what?
I was on major antidepressants when I wanted to have a second child, and my MD talked me into delaying trying to get pregnant. After another 6 months we discussed it again, and he made sure I knew and agreed ahead of time that the *only* safe medical treatment for life-threatening depression in pregnant women is electroshock.
So before I got pregnant, I had given my informed consent for electroshock therapy if necessary — which, believe me, was *really* scary. But I would not insist that a woman who hadn’t known this was a possible complication of pregnancy undergo electroshock instead of having a 2nd-trimester abortion and taking antidepressants. I might try to persuade her to do it, but forced electroshock is much more like torture than a 2nd-trimester abortion is like murder.
“You used an argument that rests on the notion that there’s no difference between a pregnancy 16-18 weeks along and a pregnancy 33 weeks along – which anyone acquainted with the facts would know was nonsense!”
Excuse me. I did no such thing. I got the best evidence available–which your side generally tries to keep very much unavailable. It showed that a noticeable fraction of women delayed making an abortion decision based on the status of their relationship and then had one because it had changed. It was a about 4%. There is no available evidence that is more specific than that, but since thousands of women make their choice on that basis, it is very likely that some of those who do make it quite late (especially because break-up situations don’t specifically follow the trimester plan).
Doctor Science, I’m not sure what you are trying to say. The conversational thread is spread out all over the place, but I think that this is approximately it:
1. No woman would ever have a late term abortion frivolously!
2. People do mysterious things all the time, some parents even kill their children.
3. Murder Suicide with children is usually men.
4. Yes, usually women who kill their children don’t commit suicide, but the sex of the majority of the killers has nothing to do with the fact that some women kill their already born children.
5. Infanticide by the mother is strongly associated with post-partum depression – a recognized medical condition.
6. That surely doesn’t excuse infanticide, and pre-partum depression also exists, so why couldn’t that explain a desire to get a late term abortion without excusing it?
The even numbered parts were by a few different people, but the odd numbered parts were Jesurgislac.
I’m not sure how your response is relevant to pre-partum depression in that context unless you’re merely observing that it certainly exists. And pre-partum depression isn’t only a 2nd trimester phenomenon, it can take place in the the 3rd trimester, with viable fetuses.
When I decided to get ‘fixed’ some years ago, I had to be counseled. More – my wife had to be present for it. Then I had to wait a week. Then my wife and I both had to sign consent forms acknowledging that we had been counseled and both understood that the procedure was likely irreversible.
I think it’s important to know whether these were legal requirements or simply the hospital’s own procedures.
I can understand why a hospital would want the spouse to be involved in the decision – among other things, it lowers the risk of having to deal with angry complaints later. But if the government were to say “you can’t get a vasectomy without your wife’s consent,” I’d consider that freakin’ insane.
I’d consider that freakin’ insane
Why? It seemed perfectly reasonable to me at the time. I was making a life altering decision that impacted my wife as much as me. Counseling seemed reasonable, and a week of reflection after counseling seemed perfectly reasonable. It also seemed reasonable that my wife acknowledge she was involved in the decision.
I didn’t research state law and it was years ago – I believe it was the surgeon’s requirements. Still, it did not strike me as insane or even unreasonable.
Turn it around though… Would the OB/Gyn be able to impose their personal requirements in that way?
Why? It seemed perfectly reasonable to me at the time.
The idea of involving my wife in the decision would not, of course, strike me as unusual in any way. It’s the concept of the government ordering me to check with my wife that I have a problem with. By the same token, I see nothing wrong with a family deciding to have only one or two kids, but I would have a big problem with the government telling you that you can only have one or two kids.
In most cases, a law mandating spousal consent will have no practical effect because most people involve their spouse in these sorts of important decisions regardless. The problem with such a law is that it leaves no room for the exceptional case. If a woman, hypothetically, insists on getting her tubes tied without telling her husband, it strikes me that there are issues in that marriage that go well beyond anything we can fix by passing a law.
OCSteve: Why? It seemed perfectly reasonable to me at the time. I was making a life altering decision that impacted my wife as much as me.
No, it really didn’t.
Seriously, I agree with Steve: I can see why a hospital would prefer that a spouse is aware of their partner’s decision to have a vasectomy/have their tubes tied, but the idea that a spouse should be able to veto a vasectomy or a tubal ligation for their partner is just… wrong.
Sebastian: 3. Murder Suicide with children is usually men.
I wasn’t able to find any DoJ stats about murder-suicide in response to Phil’s comment, but I did find a useful page of stats indicating that after the age of 1 week and until the age of 5, male and female parents are almost equally likely to murder their children. (Between birth and 1 week, mothers are overwhelmingly more likely.) Roughly speaking, the older a child is when murdered by a parent, the more likely it is that the parent who commits the murder is the child’s father.
“but the idea that a spouse should be able to veto a vasectomy or a tubal ligation for their partner is just… wrong.”
No more wrong than the idea that a spouse should be able to veto remortgaging the house, or any of a large number of other decisions. Marriage is a partnership, and the ability to procreate is one of the partnership’s assets, not to be unilaterally disposed of.
Sebastian: Excuse me. I did no such thing.
You argued that if 4% of women decide to have an abortion at 16-18 weeks because their partner has broken up with them, that means that they might equally well be willing to have an abortion at 33 weeks. To be precise, you said: I see no reason to believe that no-one who was willing to wait until month 5 or 6 would therefore be willing to do it in month 7. It is completely NOT unthinkable. That’s nonsense, unless you are entirely ignorant of the difference between a pregnancy 18 weeks along and a pregnancy 33 weeks along.
(Also, you confused “at the end of the fourth month” with “month 5 or 6″…)
Brett: No more wrong than the idea that a spouse should be able to veto remortgaging the house, or any of a large number of other decisions.
Er… no.
On two levels. One: a house (or a car, or a TV) is not the same as your spouse’s body. You own a house. You don’t own your spouse.
Two: the ability to procreate isn’t joint property. A woman whose husband has had a vasectomy still has the ability to have children: they just won’t be her husband’s children genetically. A man whose wife has had a tubal ligation, likewise.
“You argued that if 4% of women decide to have an abortion at 16-18 weeks because their partner has broken up with them, that means that they might equally well be willing to have an abortion at 33 weeks.”
I can’t get to the study right now, but I thought it was after the 4th month (which would put it in week 17+. And I didn’t say EQUALLY is said “AT ALL”. I don’t need 4% of later term abortions to be on that basis, I need merely a handful for it to be concerning. You say both that it NEVER happens (which frankly is a silly thing to say without evidence, all sorts of ‘unthinkable’ things happen on a regular basis when the numbers start getting in the thousands) and that it is unthinkable that it could happen.
It isn’t any more unthinkable than standard infanticide, which does in fact happen.
Jes, I’m explaining the basis of the policy. That you happen to disapprove of that basis doesn’t change it. The legal presumption is that married couples marry at least in part to have children, with each other, and they are thus precluded from unilaterally foreclosing this possiblity.
Marriage is a partnership, and the ability to procreate is one of the partnership’s assets, not to be unilaterally disposed of.
I confess, it never would have occurred to me in a million years to think of it this way.
The thing is, if we accept that neither spouse has the power to force the other to procreate (and we do accept that, right?), it’s hard to defend the position that neither party can surrender their ability to procreate permanently. It takes two willing parties to make a baby, so if one of them says “I’m not willing, and never will be,” what basis does the other spouse have to lodge an objection?
You’re free to marry someone who agrees never to give up the ability to procreate without your permission, and to refuse to marry anyone who doesn’t agree to that condition – but if, instead, you choose to marry someone who feels differently, I certainly wouldn’t go expecting the government to impose that condition for you!
You say both that it NEVER happens (which frankly is a silly thing to say without evidence
Oh, come OFF it, Sebastian. You’ve been repeatedly asked to show ANY evidence that anything like this happening, and you can’t. You can’t provide statistical data: you can’t provide anecdotal data: you can’t provide so much as a newsy paragraph about a woman who had an abortion at 33 weeks for any reason at all, good, bad, or indifferent!
All you’ve got is your assertion that you’re sure it does happen. So don’t you start throwing stones – your house is built of pure glass, and you can’t afford to.
Seriously, I agree with Steve: I can see why a hospital would prefer that a spouse is aware of their partner’s decision to have a vasectomy/have their tubes tied, but the idea that a spouse should be able to veto a vasectomy or a tubal ligation for their partner is just… wrong.
I agree with you both at some level. But forget the state. I believe this was a personal preference of the surgeon. And he refused to proceed without spousal consent. Was it an undue burden for me to sit through the counseling and wait a week? Would it have been an undue burden for me to find another surgeon? If it was and I sued, should the courts decide that no doctor could require counseling, a waiting period, or spousal consent for the procedure?
I’m totally fine with the doctor or the hospital imposing whatever rules they deem appropriate. I certainly wouldn’t want the government to force a doctor to perform any procedure he/she didn’t feel comfortable with. For example, I may be pro-choice, but that doesn’t mean I think the government ought to compel individual doctors to perform abortions.
If I were in your shoes, OCSteve, I suspect I would have found everything just as reasonable as you did.
OCSteve: I believe this was a personal preference of the surgeon. And he refused to proceed without spousal consent.
Oh, right. Well, fair enough.
I didn’t mean to sound in any way personally critical, and I’m sorry if I did. I think that ideally, yes, a couple sit down together and talk through a decision for one or both of them to get sterilised: I just would disagree with any legislation requiring that.
Was it an undue burden for me to sit through the counseling and wait a week?
Absolutely not. I’ve already said I agree with that.
Would it have been an undue burden for me to find another surgeon?
Well, hopefully not! The thing about a surgeon imposing the rules about what they feel comfortable with, rather than a hospital or a state legislature, is that you can go talk to the surgeon – explain personal circumstances, ask for exceptions in the surgeon’s general principle. (Even with a hospital, you can do that: I just think it would likely be easier with an individual.)
1. Late-term abortions are carried out, as far as anyone has ever been able to discover, because the woman is going to die otherwise and the fetus is beyond saving. The notion that it’s justified to require a woman in this state to have pre-abortion counselling and a mandatory waiting period goes beyond nonsensical right into Monty Python style black comedy. Exactly what is the counsellor supposed to say? “Are you sure you really want that dead fetus out of you? Have you considered letting it rot inside you until it kills you?”
Claims that women can have the fetus killed at 7.5 months to “get back” at their boyfriend for splitting up with them? Find an example. Just one.
Chiming in for a short comment.
I actually gave a link to the women who had an abortion when she suddenly found out she was pregnant. She aborted less than two weeks later, the baby/fetus (24 weeks) survived and she is now happy with her second son.
I also linked to the comments about UK abortions for cleft palate and clubfeet. They only talk about ‘late abortions’ which is later than 20 (or 25 in those years I think) weeks but doesn’t say how much later.
My husband actually was quite shocked when his ex (pregnant from her new guy) wrote him that she would happily abort it if he would take her back. Don’t know what month her pregnancy was in, but she had felt life iirc.
How about this case?
That clinic has quite a rep.
I’ve linked to my niece’s photopage; she was born at 27 weeks and I cannot understand how someone can say she had rights on day 1 and not on day -1.
(Eating a heavy curry meal, for example: there are known examples of women who made the mistake of over-indulging in a curry house late in pregnancy.)
I wish… but it’s all myth. I was a week overdue with all three, I had hugh babies and I’ve tried *all* recommendations to get labor starting. Weeks and weeks of trying…
Marbel: I also linked to the comments about UK abortions for cleft palate and clubfeet. They only talk about ‘late abortions’ which is later than 20 (or 25 in those years I think) weeks but doesn’t say how much later.
Abortion in the UK has never been legal after 28 weeks, and in practical terms, no doctor would abort after 24 weeks, because they count from the date of the woman’s last period. So, “late abortions” means, between 20-24 weeks, even before the law changed in the 1990s to restrict abortion after 24 weeks, which now means it’s practically impossible to get an abortion after 20 weeks.
Your link to the story about Saroj Adlakha and Shilpa Abrol seems to confirm what Sebastian denied: it really is impossible to keep this under wraps if it’s happening.
The code word “for social reasons” suggests that this is part of the horror story of women who end up having abortions – sometimes repeatedly – because their culture and their families only value sons. (There’s an excellent article here – India’s Missing Daughters.
I think it’s futile trying to attack individual women for this – what’s needed, desperately, is a change in the culture. To value daughters equally with sons.
I’ve linked to my niece’s photopage; she was born at 27 weeks and I cannot understand how someone can say she had rights on day 1 and not on day -1.
Because before she was born, she could only have rights by removing rights from her mother. And I can’t understand how you can say that your sister had rights before she was pregnant and after she was pregnant, but not during.
“Your link to the story about Saroj Adlakha and Shilpa Abrol seems to confirm what Sebastian denied: it really is impossible to keep this under wraps if it’s happening.”
Now there is turning on a dime. First the lack of news reports was proof that it never happened. Now dutchmarbel’s report is proof that it never happens because you couldn’t keep it under wraps?
“‘And I can’t understand how you can say that your sister had rights before she was pregnant and after she was pregnant, but not during.”
She had them at all times, but one person’s rights sometimes have to get balanced against another person’s rights. Especially when you are talking about the life or death of either party.
No, Sebastian: I concede that Marbel did what you couldn’t, and found an example of a woman having an abortion at 31.5 weeks.
My response was intended to give context to this happening – my guess – though the case is still before the court, and therefore there isn’t much comment in the newspapers about it – is that the abortion was part of the systematic culture of depreciating daughters, which still exists in large parts of India, and, unfortunately, in some communities in the UK. Attacking individual women for this is starting at the wrong end: what’s essential is that the culture changes.
And my other point was that you asserted that it didn’t matter that you couldn’t find any examples of such late abortions occurring, because – you claimed – there was a systematic cover-up, conspiracy of silence, surrounding these late-term abortions. Well, it doesn’t look as if this systematic cover-up/conspiracy of silence was very effective in Dr Adlakha’s case, does it?
She had them at all times
If she wasn’t permitted to make medical decisions for herself, then she didn’t.
“Well, it doesn’t look as if this systematic cover-up/conspiracy of silence was very effective in Dr Adlakha’s case, does it?”
Huh? According to the article, Ginemedex has a reputation for doing late term abortions. A reputation isn’t one.
And I gave you the example of the notorious US doctor in the previous thread, but you dismissed the testimony of his seceretary.
Roughly speaking, the older a child is when murdered by a parent, the more likely it is that the parent who commits the murder is the child’s father.
This is probably, among other reasons, because we don’t do enough to recognize the signs of and help women with postpartum depression, nor do we generally do real well with mental health care in this country. Not that that’s an excuse to kill your kids, but it’s certainly a factor.
Anyhoo, I’m curious, since you seem not to have heeded my advice that frustratedly restating something doesn’t oblige others to believe it: This formulation of yours that one cannot assert a right which necessarily entails the limiting of someone else’s rights — do you support that as a general principle, or only in the very, very specific case of abortion?
Because it sounds to me like it’s the latter, which makes it, well, dogma, and poorly-reasoned dogma, if you’d stop for a second to think about it.
Shouldn’t a woman have the right to not carry a female fetus to term?
I’ve been away,but . . .
I re-read Casey in the course of commenting above, and I think that Justices Blackmun and Stevens both discussed the counselling and consent regulations, among other points, coherently. Jes, you might really get something from re-reading both opinions.
On OCS’s spousal consent front, I had my procedure in DC. The doc asked a few questions of me about why and why now, and, satisfied that it was a rational choice, set about the work. No need to bring in the wife.
Phil: Anyhoo, I’m curious, since you seem not to have heeded my advice that frustratedly restating something doesn’t oblige others to believe it
Nor has anyone else on this thread, Phil. For some reason – you may not have noticed this – giving advice unasked tends to receive all the attention and respect it deserves, and I am paying you all the attention and respect I feel you deserve.
Oh, please — motes, beams, etc. etc. If I had a dime for every piece of unasked advice you’ve given Sebastian alone I could retire to Maui.
In any case, I will consider that, unless corrected, tacit admission that you do in fact consider the formulation dogma in the specific case of abortion and not a general statement of principle concerning rights. So thanks for confirming my suspicions.