Federal Law Banning Abortion: Likely?

[SentientMeat]

@bandit

Personhood has always been an arbitrary grant from the mss of society to one another. This is no different.

Agreed, absolutely my point. Fortunately, to set that date at conception is utter simple-mindedness which the industrialised democratic world left behind decades ago. Can I “argue logically” against the assumption that two pairs of separate cells (sperm and egg versus daughter nuclei after meiosis) should be treated differently under law? I can only say “that is patently absurd superstitious claptrap equivalent to creationism”. And you couldn’t argue logically against that, either.

[Shodan]

@treis

However, abortions are clearly economic activity that in aggregate can substantially affect inter-state trade, satisfying Wickard.

The problem being, by this standard there is nothing whatever that isn’t “economic activity that in aggregate can substantially affect inter-state trade”.

And thus the Supreme Court declares itself exempt from the very notion of “limited government”.

Regards,
Shodan

[Loopydude]

My small contribution:

The COTUS says precisely zero about the personhood of an embryo/fetus, and provides no clear guide whatsoever on the subject of the rights of the unborn.

Interstate commerce is, to me, a truly weird angle to attack the abortion issue, either pro or con, and it’s unclear to me how the newly constituted SCOTUS (assuming Rehnquist will step down before too long, if he doesn’t die first) would regard the relevance of that clause to the issue, if the law is written intelligently. As Shodan suggests, what isn’t interstate commerce, under such conditions? Hell, the infrastructure around Death Rows could be affected, should the clause be applied broadly enough.

[Gfactor]

@Shodan

The problem being, by this standard there is nothing whatever that isn’t “economic activity that in aggregate can substantially affect inter-state trade”.

And thus the Supreme Court declares itself exempt from the very notion of “limited government”.

Regards,
Shodan

Well, itself . . . and Congress . . .

But I keep coming back to the same question. . .

Exactly where does one draw the line if the words say that Congress has the power “To make all Laws which shall be necessary and proper for carrying into Execution. . . . the power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”?

[Zakalwe]

@smiling bandit

I thik you overestimate the support for abortion.

I’d like you to clarify this statement. What do you mean by support?

Polls consistenly show that the majority of Americans are happy with the status quo - abortion is legal, but there are restrictions on it’s use. There is some disagreement on where the restriction line should be drawn. A vast majority oppose very late-term abortions, a somewhat smaller majority support a ban on partial-birth. Most people also feel that using abortion as a form of birth control is morally wrong, but should remain legal.

Cite

[Loopydude]

I think the problem is the Congress appears to be shifting, if anything, to the right of the general population. Political polarization appears to be driving this trend, and presently, the right pole has shown the clear upper hand as a political force. And they demand payback. Some potent legislative attack on abortion rights seems inevitable, in this climate, if not fully actionable; and if Roe v Wade no longer stands in the way, I’m not sure polls entirely reflect what the present Legislative and Executive officials are capable of. I tend to think taxation is a more mobilizing issue among the middle of the spectrum, so a social right wingnut can cover his or her ass to considerable extent by placating moderates with yet more tax cuts. The capacity of the American electorate to be seduced by such tactics seems nearly boundless, these days. I don’t rule anything out, at this point.

Constitutional Law is a whole 'nuther ballgame, though, and one I don’t have a terribly good handle on.

At any rate, it’s all worthily debatable.

[Shodan]

@Loopydude

I think the problem is the Congress appears to be shifting, if anything, to the right of the general population. Political polarization appears to be driving this trend, and presently, the right pole has shown the clear upper hand as a political force. And they demand payback. Some potent legislative attack on abortion rights seems inevitable, in this climate, if not fully actionable; and if Roe v Wade no longer stands in the way, I’m not sure polls entirely reflect what the present Legislative and Executive officials are capable of.

Well, possibly, but it might be kept in mind that Roe v. Wade did not “make abortion legal”. It said that abortion was guaranteed by the Constitution, and that states did not have the right to regulate abortion. It was said that abortion rights emanated from a right to privacy which was found in an aura of the Constitution, or something like that. Thus the states had to stay within the limits set by the SCOTUS.

I think this is understood, but the discussion seems to be trending towards taking a possible-but-unlikely scenario a little too much for granted.

Overturning Roe v. Wade would not outlaw abortion nation-wide. This is especially true if Roe v. Wade were overturned on “strict interpretation” grounds. Then regulation on abortion would revert to the several states, and would not naturally default to Congress.

Suppose that a majority of the Court were strict constructionists, and overturned Roe by saying, in essence, “get a grip - the Constitution doesn’t say anything about abortion, and the Tenth Amendment says that the locus of responsibility for establishing new rights lies with the states, or the people. So the feds have no business telling the states what they can legislate about abortion - the states can do whatever they want, from leaving it as is to outlawing partial birth abortion thru banning the procedure outright.”

The debate then reverts to fifty state legislatures and away from Washington. Which is, in my view, exactly what should happen. And then each state decides for itself what should be the status of abortion within its borders.

And the SCOTUS deals with all the invevitable federal lawsuits saying that abortion is a basic right/a fetus has a right to life by saying, “Nope, the Constitution doesn’t say anything about that. You will have to work it out with your own state legislature.” As is, AFAICT, exactly what they should have said in 1973.

But then again, I am a pro-choice, limited government, strict constructionist. I piss off everybody.

Regards,
Shodan

[Gfactor]

Even if, by some stretch of the imagination, SCOTUS decided that fetuses had a constitutional right not to be aborted, that right would only be valid against state and federal governements. In order for an activity to violate the 14th amendment, it must be found to arise from “state action.” http://caselaw.lp.findlaw.com/data/constitution/amendment14/39.html#1

So unless enacting a federal abortion ban is within one of Congress’s enumerated powers, a federal statute would be unconstitutional. State statutes, OTOH. . .

[Kimstu]

@Shodan

Well, possibly, but it might be kept in mind that Roe v. Wade did not “make abortion legal”. It said that abortion was guaranteed by the Constitution, and that states did not have the right to regulate abortion.

No no no—it said that states did not have the right to prohibit abortion entirely, not that they couldn’t place some restrictions on it. The “restrictability” of abortion, under this interpretation, shifts along with the progression of the pregnancy and the development of the fetus toward personhood. Early in pregnancy, the right of the pregnant woman to control her own body is considered to supersede the protection of the fetus, and late in pregnancy, vice versa.

Here’s an excerpt from the text of the decision:

As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life. At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute. In fact, it is not clear to us that the claim asserted by some amici that one has an unlimited right to do with one’s body as one pleases bears a close relationship to the right of privacy previously articulated in the Court’s decisions. The Court has refused to recognize an unlimited right of this kind in the past. […]

We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation. […]

All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word “person,” as used in the Fourteenth Amendment, does not include the unborn. […]

In areas other than criminal abortion, the law has been reluctant to endorse any theory that life, as we recognize it, begins before live birth or to accord legal rights to the unborn except in narrowly defined situations and except when the rights are contingent upon live birth. […]

In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake. We repeat, however, that the State does have an important and legitimate interest in preserving and protecting the health of the pregnant woman, whether she be a resident of the State or a nonresident who seeks medical consultation and treatment there, and that it has still another important and legitimate interest in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes “compelling.”

With respect to the State’s important and legitimate interest in the health of the mother, the “compelling” point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact, referred to above at 149, that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth. It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like.

This means, on the other hand, that, for the period of pregnancy prior to this “compelling” point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient’s pregnancy should be terminated. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.

With respect to the State’s important and legitimate interest in potential life, the “compelling” point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.

[Kimstu]

@Shodan

But then again, I am a pro-choice, limited government, strict constructionist.

Yeah? So you consider it constitutional to legally prohibit seditious speech?

Because that’s what a strict interpretation of the First Amendment would seem to imply, judging from early judicial acceptance of the 1798 Sedition Act:

In 1798, just seven years after the First Amendment and the rest of the Bill of Rights were added to the Constitution, a Federalist Congress passed —and a Federalist president, John Adams, signed into law—a Sedition Act that made it a crime to publish false criticism of the president. The statute was never considered by the Supreme Court before it expired in 1801. But members of that court, sitting on circuit as trial judges, enforced the act, presiding at trials of editors under it and sentencing them to fines and imprisonment.

Judges then and for years after seemed to treat the First Amendment’s promises of free expression as admonitions rather than legally enforceable rules. Convictions of disfavored speakers were upheld if the speech could be said to have a “bad tendency”—which amounted to no protection at all. It was not until 1919 that our understanding of what the First Amendment means began to emerge. […]

In 1925 the Court intimated for the first time that it would apply the First Amendment’s restrictions on federal power (“Congress shall make no law”) to state abridgments of free expression. […]

Libel was always considered outside the protection of the First Amendment. During the amendment’s first 173 years no libel judgment was ever held unconstitutional. Then, in 1964, the Supreme Court, in New York Times Co. v. Sullivan, ended the exemption. […]In his opinion for the Court, Justice William J. Brennan Jr. said that “the central meaning of the First Amendment” was the right to criticize government officials; he said the Sedition Act of 1798, which punished criticism of the president, was unconstitutional.

It’s funny, but I never hear the self-proclaimed “strict constructionists” who oppose a prochoice application of the “right to privacy” complaining about those 20th-century activist judges who invented the right to seditious and libellous speech.

This is one of the reasons why, as I’ve said before, I’m always skeptical about claims for “strict constructionism” or “original intent”. Strict constructionism, ISTM, is a lot like Biblical literalism: it’s always strict on some points and loose on others, depending on the individual ideas of whoever happens to be professing it.

[smiling_bandit]

by SentientMeat
I can only say “that is patently absurd superstitious claptrap equivalent to creationism”. And you couldn’t argue logically against that, either.

Correct. It’s ultimately an article of faith for us both. Your pretension to rationality aside, you have no real reason other than you feel like it, too. If you would like to argue our respective arbitrary beliefs about the world, I’m sure we can have a very pointless thread.

Seriously, can we just leave aside the insults? I know you think I’m a wild-eyed insane fanatic and that I’m dumbass because I believe in God. I think you’re a bastard in reply. Unless you want to take it to the Pit and prove how much of a jerk you are, I’d prefer you comport yourself with politeness and the respect due me and others. You are acting like a pathetic child. Believe me, I well know you hold us all in utter contempt and I return the favor. Your constant reiterations add nothing.

by Zakalwe
Polls consistenly show that the majority of Americans are happy with the status quo - abortion is legal, but there are restrictions on it’s use.

I mean political and popular. It is true that Americans are willing to accept that. I don’t, however, think most believe strongly enough one way or the other to protest or cause significant political trouble one way or the other. This is not to say it would cause trouble. But I don’t think anyone has shown a serious grass-roots base with which to challenge abortion laws. Strength of belief often counts as much as “width.”

[Stephe96]

I’m pro-choice so let’s not anybody freak out over what I’m about to say, but: I’ve often wondered what the result would be in the US if all types of abortions were banned by federal law. I know the left loves to scream about women dying in butchered back-alley accidents, but does anyone take this seriously anymore? If there’s one thing I’ve noticed about people, it’s how quickly they can adapt to new situations. I imagine that a world without abortions would not result in hundreds of women dying everyday. Call me crazy, but I think most of us would accept the new situation and deal with it. (I know, I know…rape and incest and danger to the mother’s health…I’m not saying I want this to become reality…I’m just trying to realistically picture what it would be like…)
Does anyone know how many abortions are performed daily in the country? I have no clue. And how tough is it to not get accidentally pregnant at the dawn of the 21st century?

Final thought: as I said, I’m pro-choice. If a woman wants to have an abortion I have no problem with it. Seriously. But I’m also realistic about this…it is ending a human life. I don’t really see any way around this. And I’m also sickened by the PBAs or late-term or whatever they’re called these days. I’ve heard so many libs tell me that partial-birth abortions do not exist…but they’ll be damned if they’ll allow them to be banned!

[Stephe96]

Oh, and just to add a little balance to the above and to take a swipe at the whackjob right in this country: I also don’t believe for a second that the decriminalization of drugs in this country would result in heroin addicted children in every schoolyard, and cocaine abusing parents in every home.

As I said, I think most people would shrug and move on.

[Kimstu]

@smiling bandit

Seriously, can we just leave aside the insults? I know you think I’m a wild-eyed insane fanatic and that I’m dumbass because I believe in God. I think you’re a bastard in reply. Unless you want to take it to the Pit and prove how much of a jerk you are, I’d prefer you comport yourself with politeness and the respect due me and others. You are acting like a pathetic child. Believe me, I well know you hold us all in utter contempt and I return the favor.

Ooooopsie. Get ready to duck.

@smiling bandit

Roe stretched the law so far even SCOTUS doesn’t know where to go. And I really hate the idea that I now have a privacy right which seems to help me with nothing more abortions, which I cannot have even if I wante one, which I don’t!

I don’t agree that SCOTUS “doesn’t know where to go” with the interpretation in Roe. IANAL, but it seems to me like a perfectly reasonable stance on the very complicated and imprecise question of how the state should strike a balance between protecting the rights and autonomy of a woman and protecting the “potentiality of life” in a fetus.

And you seem to be pretty much entirely mistaken in your notion that the concept of a constitutional right to privacy applies only to the issue of abortion. As the text of Roe that I linked to earlier shows, that was by no means the first time the Court had invoked such a concept:

In a line of decisions, however, going back perhaps as far as Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891), the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment, Stanley v. Georgia, 394 U.S. 557, 564 (1969); in the Fourth and Fifth Amendments, Terry v. Ohio, 392 U.S. 1, 8-9 (1968), Katz v. United States, 389 U.S. 347, 350 (1967), Boyd v. United States, 116 U.S. 616 (1886), see Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting); in the penumbras of the Bill of Rights, Griswold v. Connecticut, 381 U.S., at 484-485; in the Ninth Amendment, id., at 486 (Goldberg, J., concurring); or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment, see Meyer v. Nebraska, 262 U.S. 390, 399 (1923). These decisions make it clear that only personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325 (1937), are included in this guarantee of personal privacy. They also make it clear that the right has some extension to activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542 (1942); contraception, Eisenstadt v. Baird, 405 U.S., at 453-454; id., at 460, 463-465 (WHITE, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925), Meyer v. Nebraska, supra.

[Shodan]

@Kimstu

Yeah? So you consider it constitutional to legally prohibit seditious speech?

Because that’s what a strict interpretation of the First Amendment would seem to imply, judging from early judicial acceptance of the 1798 Sedition Act:

I’m not sure where you are getting this.

The First Amendment states fairly clearly that “Congress shall make no law regarding freedom of speech…”

Then you cite:

In 1798, just seven years after the First Amendment and the rest of the Bill of Rights were added to the Constitution, a Federalist Congress passed —and a Federalist president, John Adams, signed into law—a Sedition Act that made it a crime to publish false criticism of the president.

Emphasis added.

It seems to me that a strict interpretation of the First Amendment would have shot down the Sedition Act almost at once. You haven’t established, in other words, that the enforcement of the Sedition Act by federal judges was based on a strict interpretation of the First Amendment - just the opposite, in fact. It looks more like the justices of the time were interpreting the First Amendment as they now do the Second - interpreting “shall not” as “may”.

There is a gray area between interpreting the law and making it up, but your example does not, in my view, serve as a very good example of this.

Regards,
Shodan

[Kimstu]

@Stephe96

I know the left loves to scream about women dying in butchered back-alley accidents, but does anyone take this seriously anymore?

You mean, does it actually happen? Of course it does. Where legal and safe abortion is not accessible, many women turn to unsafe procedures that permanently injure or kill them. According to Population Reports,

Because abortions are illegal in most developing countries, many women seek them clandestinely and undergo unsafe procedures. Even in some places where abortion is legal, poor-quality services put women at risk.

An estimated 10 to 20 million illegal abortions are performed worldwide annually, and an estimated 100,000 to 200,000 women die as a result—about one in every 100. These deaths account for 20% to 40% of all maternal deaths. In some Latin American cities abortions account for over half of maternal deaths. […] Women who survive an unsafe abortion may suffer chronic pelvic pain, chronic pelvic inflammatory disease, and/or infertility. They face a greater risk of ectopic pregnancy, premature delivery, and other adverse health consequences in the future.

@Stephe96

If there’s one thing I’ve noticed about people, it’s how quickly they can adapt to new situations. I imagine that a world without abortions would not result in hundreds of women dying everyday. Call me crazy, but I think most of us would accept the new situation and deal with it. (I know, I know…rape and incest and danger to the mother’s health…I’m not saying I want this to become reality…I’m just trying to realistically picture what it would be like…)

Does anyone know how many abortions are performed daily in the country? I have no clue. And how tough is it to not get accidentally pregnant at the dawn of the 21st century?

According to e-medicine Consumer Health,

Abortion is one of the most common medical procedures performed in the United States each year. More than 40% of all women will end a pregnancy by abortion at some time in their reproductive lives. […]

In spite of the introduction of newer, more effective, and more widely available birth control methods, more than half of the 6 million pregnancies occurring each year in the United States are considered unplanned by the women who are pregnant. Of these pregnancies, about half end in abortion.

So, according to those statistics, there are about 1–2 million abortions in the US every year. If abortion were re-criminalized, and 1 million pregnant women each year decided to seek out unsafe abortion procedures, and if the above-mentioned 1% mortality rate applied, then we’d have about ten thousand American women per year dying from unsafe illegal abortions, or several dozen per day.

I presume that due to America’s better healthcare and emergency medicine as compared to most developing countries, the mortality rate would actually be lower than that. Still, it seems reasonable to estimate that several hundred to several thousand women per year would likely die from unsafe abortions That’s about 1%–10% of the number of annual deaths from breast cancer. And, of course, that doesn’t take into account any of the non-fatal health consequences from unsafe abortions.

So let’s not kid ourselves that widespread unsafe abortion wouldn’t have significant public health consequences. It would. And I don’t think it’s very likely that women would simply stop seeking abortion services if they were re-criminalized, nor that illegal abortions would be reliably safe.

@Stephe96

But I’m also realistic about this…it is ending a human life. I don’t really see any way around this. And I’m also sickened by the PBAs or late-term or whatever they’re called these days. I’ve heard so many libs tell me that partial-birth abortions do not exist…but they’ll be damned if they’ll allow them to be banned!

In the first place, as pointed out above, to state that abortion is “ending a human life” implies a personal, individual decision about when human life can meaningfully be said to begin: there’s no biological or medical consensus on the matter.

Secondly, late-term abortions are already banned in every state (as they are constitutionally allowed to be, according to the reasoning in the Roe decision that I quoted above) except when abortion is necessary to protect the life or health of the mother. And yes, they are very rare, which everybody agrees is a good thing. What the “libs” don’t want is for them to be banned even when the life or health of the mother is at stake, which is what the ban proponents are advocating.

[MEBuckner]

@smiling bandit

Seriously, can we just leave aside the insults?

Good idea.

@smiling bandit

I think you’re a bastard in reply. Unless you want to take it to the Pit and prove how much of a jerk you are, I’d prefer you comport yourself with politeness and the respect due me and others. You are acting like a pathetic child. Believe me, I well know you hold us all in utter contempt and I return the favor. Your constant reiterations add nothing.

So, leave aside the insults in Great Debates.

This is not the first time you’ve been warned for this kind of thing in GD. You need to rein in your temper and tone it down.

[Kimstu]

@Shodan

It seems to me that a strict interpretation of the First Amendment would have shot down the Sedition Act almost at once. You haven’t established, in other words, that the enforcement of the Sedition Act by federal judges was based on a strict interpretation of the First Amendment - just the opposite, in fact.

Hmm. You seem to be asserting that federal judges at the end of the18th century somehow couldn’t comprehend the “strict” meaning of the First Amendment , recently adopted by their own near-contemporaries, as well as you’re able to do a whole two centuries later. That doesn’t sound terribly plausible.

So please tell me: What precisely is the objective, timeless, rigorous definition of “strict interpretation” that you’re appealing to here? Because this kind of sounds as though, as I said, “strict interpretation” can mean pretty much whatever one wants it to mean.

[Kimstu]

Oh, and the correct text of the First Amendment is as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

[alaricthegoth]

@Shodan

The problem being, by this standard there is nothing whatever that isn’t “economic activity that in aggregate can substantially affect inter-state trade”.

And thus the Supreme Court declares itself exempt from the very notion of “limited government”.

Regards,
Shodan

This is an utterly “result oriented” supreme court. They will define interstate commerce as necessary to reach the conclusion they were pointed at before the analysis even commenced.

I think Roe is dead. The battlefield to even retain state by state jurisdiction will be the senate. Probably the filibuster will have left the scene, kicking in its death throes, around the time the next anti choice judge comes up to replace a pro-choice one .(ie, AFTER Roberts, who by himself does not tilt the court enough to overturn Roe.)