Such a law should simply be ignored. And ideally, the board punished for complying with it.
Are you asking me whether it’s against the rules for a doctor to perform a 2nd trimester abortion in Nebraska with no medical necessity? Yes, it is, and that doctor would get in trouble for violating that provision.
I’m saying that, since bodily autonomy is such an important right, it shouldn’t be decided by democracy. I’m glad that gay marriage wasn’t decided by democracy, I was glad when abortion rights weren’t decided that way either. I’m further saying that as a straight, white male, I have to think about what rights are obviously inviolable (because the majority agrees with me) vs. what rights are also inviolable, but not obvious because they don’t affect me directly.
Just like I don’t have to worry about a legislature requiring me to donate a kidney against my will, women shouldn’t have to worry about having to carry a fetus to term. And, even if a legislature passed forced kidney donation, I’m confident that SCOTUS would overturn it, because they all have kidneys they want to hang onto. If SCOTUS were composed of liberal women in their 20s, you can be sure they’d find a way to make sure abortion was constitutionally protected.
And I’m saying a judge shouldn’t reinstate Dr. A’s license because democracy is more important than Dr. A’s privilege of practicing medicine. See how we’re talking past each other?
I don’t agree with you that the law as it exists should be interpreted to protect the woman’s right to abortion. I admit that the law as interpreted substantially burdens access to abortions (like the regulation of physical printing presses you mentioned before). I agree with you that bodily autonomy is a natural right, but only in the moral sense, not the legal sense. I disagree with you as to the extent of bodily autonomy–I see it as a negative right, and I don’t think the abortion ban I just described violates any woman’s bodily autonomy (the law only operates on doctors).
Maybe the kidney donation line of thought makes a difference in your mind. It doesn’t in mine. If the law called for mandatory kidney procurement (or more realistically, mandatory blood procurement), the question is whether individuals would be morally obligated to comply. I set out a framework for when it is moral to disregard the law. My opinion is that you have to withdraw from the social compact entirely, otherwise you are morally obligated to accept and impose the consequences. Is it worth giving up all the moral rights and obligations as a member of society, over onerous taxes? mandatory vaccination? a mandatory blood drive? a mandatory kidney drive? conscription? an abortion ban? slavery? It’s a threshold problem that each person must determine for themselves: some injustices are tolerable within the system (our flawed “democracy”) itself; others destroy the benefit of the compact.
~Max
We’re not talking past each other – I agree that a judge operating within the laws of Nebraska shouldn’t reinstate the license.
I disagree that you have to withdraw from the social compact entirely if you disregard the law for moral reasons. Someone protesting a war by chaining herself to a tank or blocking traffic or whatever should still be entitled to protection of the law, due process, etc., even though she is disregarding the laws about what kinds of protests are allowed.
Don’t water down the kidney donation example with blood donation. What do you think pregnancy is? It’s the donation of a woman’s body (temporarily, barring complications) for the purpose of the fetus, not even a fully formed person with a job, children, relationships, etc. Sure, people can choose to do that, just like people would often choose kidney donation to save the life of a loved one.
But for the tree hugger, due process is a legal right. Legal rights and obligations exist regardless of any moral rights or obligations. A sovereign citizen who purports to have unilaterally withdrawn from the social compact is still subject to law, and judges and other officials are morally obligated to enforce said law against the sovereign citizen, if the sovereign calls upon them to do so.
There is a significant difference in that mandatory kidney procurement involves (1) an actor (2) intentionally (3) physically touching (4) the victim’s body (5) resulting in harm or offense (6) without the victim’s consent. In that situation, some actor violated the victim’s bodily autonomy. Even then, it is not necessarily morally prohibited. This is why I think a mandatory kidney drive is comparable to mandatory blood drive. Who touches the woman’s body in a pregnancy situation? Generally speaking, it’s not the state or its agents. This is not to say the woman has no moral right, just that it isn’t the natural right of bodily autonomy. Regardless, I apply the same framework for the kidney drive, the blood drive, and an abortion ban.
~Max
The fetus is physically touching the woman’s body without her consent (if she wants an abortion).
And, I’m saying it’s easy to take that stance, secure in the knowledge that a legislature would never force kidney donation, and if it did, SCOTUS would never let it stand.
For women who need abortion care, they obviously can’t rely on a bunch of old men (and one religious nut) in SCOTUS, nor can they rely on the old men and religious nuts in their legislature.
ETA: This is really analagous to the rich man saying, “the law, in its majesty equally forbids the rich and poor to sleep under bridges.”
But the fetus isn’t an actor capable of manifesting intent. See the problem? You have to look back further, which is why I support rape exceptions.
~Max
I don’t see why it matters who is touching, or whatever, the woman. This is special pleading to justify why abortion is different from mandatory kidney donation.
I don’t really want to get into rape exceptions, because those are really incoherent to me and it would be a real hijack, or turn this into a general abortion discussion which has been done to death. Maybe you can explain, in the context of this thread about whether democracy should decide, why women should be able to get abortion care regardless of what the legislature decided, if she was raped, but not otherwise.
You appear to be blurring the distinction I try to make between law and morals, again. And you have not quite acknowledged (even if you disagree) the distinction I make between a moral right to bodily autonomy, the moral obligation of the woman to abide by an abortion ban, the moral obligation of a doctor to contravene an abortion ban, and the moral obligation of an official to enforce an abortion ban.
I argue from the starting point that the law is what it is. It could be just or unjust. If the law does not allow for rape exceptions, then it doesn’t allow for rape exceptions. If the law says abortion must be decided state-by-state, then that’s the law. The law influences but does not determine what people should actually do. I defended the dominant interpretation of the law as legally correct, and I admitted at the outset it is unjust and should be changed. But my main argument is that people should respect the rule of law and work within the system until the social compact is no longer worth keeping.
~Max
The law right now in many states bans abortions. Morally, I think that’s wrong. Legally, I also think that’s wrong because the constitution implies rights of bodily autonomy and rights of privacy. For five decades, that was correct, now it’s not.
People have a moral right to bodily autonomy, and up until recently, had the legal right, but then 5 old men and a religious nut decided that women don’t when it comes to abortion. I think that was wrongly decided, but that is certainly the law of the land.
Women will do what they must if they find themselves needing an abortion. That was always the case. I never said that a doctor has a moral obligation to contravene that ban - it’s too much to ask a doctor to sacrifice her career and freedom for that.
Officials have to enforce the law as it is, not as it should be, of course.
Is that clear enough?
This thread, though, is asking whether that particular right should, should, be decided by democratic means. I think bodily autonomy (and the right to marry, and many other rights) are too important to be decided by democratic means, these are fundamental rights that are, in my view, meant to be protected by the Constitution. The SCOTUS currently disagrees with me and before it agreed with me.
But I agree with you (in part) and the Supreme Court. I think bodily autonomy and many other rights are too important to be left to “democratic” means. Fundamental rights should be entrenched in and protected by the Constitution. But the Constitution as it exists presently should be interpreted to leave many fundamental rights unprotected; women should do what they must to survive; doctors should comply with state bans; officials should enforce the law as it is, not as it should be.
The result is systemic injustice, but I acknowledge that, and I think that is the first step to a solution.
~Max
But, you don’t agree with me. In this thread, the very reason for this thread, is that abortion should be left to the democratic process. However, having bodily autonomy implies a right to get an abortion (and access to abortion care) for people who can get pregnant.
What’s the next step? In much of the US, this systemic injustic is happening right now. I’m sure a woman being prosecuted for a miscarriage appreciates your acknowledgement, and that, plus $6 will buy a small coffee at Starbucks.
Well no, ideally it wouldn’t be. But under the circumstances, i.e. the law as handed down to us in Dobbs, it should be. From the OP:
Again, in my mind, bodily autonomy is a moral right, not a legal one. Having a moral right does not imply a legal right, in my thinking. And even morally speaking, having a negative moral right does not imply a positive moral right. A person with the negative moral right to bodily autonomy does not imply any positive moral right to get anything from other people.
You have to convince people to vote for change or otherwise work within the system. Meanwhile, I argue the choice is between living with injustice and abandoning the social compact to break the law.
~Max
Having the hypothetical include a constitutional amendment shuts down almost all room for ambiguity on the subject. It guarantees not only that legal action short of a counter-amendment is futile, but indicates that an overwhelming supermajority of the representatives both federal (2/3) and state (3/4) approved such a ban, presumably without fearing repercussion from the voters. That’s not 50.0001% democracy, that’s a mandate from society itself. Heredity race-based slavery could be restored by a constitutional amendment!
Although I would quibble with the wording; in general the government is presumed to have authority in any matter it is not explicitly forbidden by either law, constitutional provision, or high court ruling.
Punished how? By legal process you mean? But following the letter of the law is universally held to be legal protection against retaliation; any authority attempting to punish them could themselves be punished for doing so. If you mean pro-choice vigilantes should assassinate them, please make that explicit.
I guess I misread your “should” in the OP. You were saying “given Dobbs, SCOTUS says that abortion should be decided state-by-state, and we shouldn’t, I don’t know, fight a civil war about it.” I thought you meant “should the Constitution be interpreted that way, or are some rights so important that the Constitution should be interpreted to already protect them.”
Sorry for the misunderstanding on my part.
RitterSport, I think you get it. I make both a conservative legal argument and a relatively liberal moral argument. And @Lumpy, passing an amendment does not necessarily mean there is a popular mandate. The reconstruction amendments were passed by force of arms, not by winning hearts and minds. If there were an amendment reimposing heredity race-based slavery, I think that would be worth fighting a civil war over.
~Max
Statements like this disturb me because the Supreme Court isn’t supposed to be aiming for an outcome; it’s supposed to be ruling on the coherency of laws with the letter of the relevant constitutions and court precedent. Part of the reason why Scott v. Sandford was so infamous was because the Taney majority went far beyond the scope of the case (it could easily have ruled against Dred Scott on any number of technical points) to hand down an overarching treatise on the entire subject of African-Americans’ place in pre-Civil War society. This was so obviously, blatantly prejudiced (in the literal legal sense of the term) and acknowledged as such by both abolitionists and slavery supporters that it became the Ur example of how the Supreme Court is not supposed to handle controversial topics.
And yet, for 225 years, there was no individual right to bear arms at the state level (the 2A wasn’t incorporated on the states), but get the right pro-gun folks at SCOTUS, and there you go.
Similarly, for 50 years, there was a right to privacy implying a right to abortion, but after two generations of working to get anti-abortion justices on there, bye bye Roe!
Oh absolutely guaranteed there would be a civil war; either to overthrow it or to kill everyone who by force of arms opposed it.
There were of course the states that did have protections in their state constitutions for gun ownership. And once the 14th Amendment was passed the Federal government tried to defend African-American’s equal right to keep and bear arms, before revanchist post-Reconstruction era court rulings gutted the 14th’s privileges and immunities clause.
What happened was that Washington DC, a non-state federal district passed a stringent anti-gun law; and therefore the issue couldn’t be punted as a states’ rights issue: the Second Amendment for perhaps the first time in constitutional history had to be looked square in the face. (Both Presser v. Illinois and Miller had found ways to pay lip service to the 2nd while hairsplitting the law enough to claim that the laws in question didn’t violate it). I like to say that Heller backed the court into a corner, where they simply couldn’t waffle on the question anymore: did the 2nd say what it meant and meant what it said, or was an article of the Bill of Rights a dead letter?
As far as the composition of the court is concerned, I think that the only real difference was that the case made it to the SC when there wasn’t a majority who wanted, for ideological reasons, to actively deny the 2nd.