Yes, but that right is not absolute: it is balanced against the State’s legitimate interests from the outset of the pregnancy in protecting both the health of the woman AND “the life of the fetus that may become a child,” as the Supreme Court phrased its ruling in Casey v. Planned Parenthood.
Of course, one difference between each right you mention is that it’s a quote from the text of the Constitution. The right to an abortion that you’re comparing these to does not. As such, the Court is the one that created the words defining the right to an abortion, and the Court is the one defining the words of any competing rights or interest. And they have said that you do have a right to an abortion, but that this right is balanced against the State’s legitimate interests from the outset of the pregnancy in protecting both the health of the woman AND “the life of the fetus that may become a child,” as the Supreme Court phrased its ruling in Casey v. Planned Parenthood.
Bricker, please address the right of refusal.
Speaking of opinions and the washing of dishes, the Fifth Circuit upheld a Texas law with the same general ultrasound provisions as Wisconsin’s in Texas Medical Providers Performing Abortion Services v. Lakey, 667 F.3d 570 (5th Cir. 2012) – on the preliminary injunction question, no less. It’s if anything slightly more burdensome than the Wisconsin version, requiring the physician “who is to perform an abortion” to perform and display a sonogram of the fetus, play the heartbeat audibly so the woman can hear, explain to her the features of the sonogram, and then wait 24 hours between these disclosures and performing the abortion.
What caselaw were you relying on when you said it was unconstitutional?
Yes, because the procedure is medically necessary for the life of the fetus that may become a child," as the Supreme Court phrased its ruling in Casey v. Planned Parenthood.
This was discussed in post 81 of this thread:
Let me rephrase that. “Right of refusal” has some legal meanings I did not intend. “Right to refuse treatment” is more what I was getting at. I want you to explain how mandating this does not violate the right to refuse treatment. I just can’t stand behind an argument that consists of no more than “it’s in the state’s legitimate interest”.
This law is mandating an unnecessary medical procedure.
The law is much more medically necessary if you measure it from the point of view of the fetus. Your question assumes that the only medical interest is the mother’s.
And you are measuring the question by the “state’s interest”. I take exception to that.
Uh-huh… where in the text of Roe or Casey were mandatory ultrasounds mentioned? Funny that you’re claiming the right to an abortion is not supported by the text, and then support a requirement that is not only not supported by the text, but serves no medical purpose, either, and I don’t recall any text describing emotional manipulation as a legitimate state interest, as you admit is the intended purpose.
So, is abortion the only right not explicitly spelled out in the Constitution? Can any such right be subject to additional requirements meant to delay, harass and manipulate? Marriage is not mentioned in the constitution. Would it be fair to pass a law requiring couples seeking a marriage license to undergo some mandatory emotional manipulation? How about just gay couples? Mixed-race couples? Catholic couples? Those last ones can have their church ceremonies all they like, but their legal marriages are now suspended until they complete a day-long seminar on… I dunno, whatever Catholics feel is unwanted or unnecessary. Meat on Fridays or something, if Catholics still refrain from that. Don’t bother nitpicking it, I don’t care.
Of course, they’ll complain that their first and fourteenth amendment rights are being violated, but the text doesn’t say anything about marriage, so screw them. They have no right to a meat-free-Friday marriage.
If “medical necessity” is being interpreted so broadly as to mean anything that might change the mother’s mind, could it become medically necessary to send her a re-education camp for a week?
Civics 101.
A state has plenary power to make any law, except if that law conflicts with the state’s constitution or the federal constitution. So the state doesn’t need to be able to point to text granting it any power at all: it has sovereign power to enact any law it pleases. In contrast, the federal constitution has only the powers explicitly granted in the text (or those necessary and proper to allow the Feds to carry out the powers granted).
I have tried to be as indefatigable as you, but this question is … If you seriously don’t understand why such a rule is unconstitutional, I can of course explain.
But… Really?
Say yes, and I’ll do it.
Nope. I balance the minimal intrusion against the mother’s interest against that the ultrasound imposes against the life-and-death interests of the fetus.
It really is impressive how utterly twatly you are while cloaked in delusional morality.
Before I say this, I want to say I do not use this word lightly, but Bricker seems to be a fascist. He is arguing that the interests of the state supersede that of the individual. That’s pretty much the definition of fascism, isn’t it?
At this point, I’d be disinclined to trust your opinion on Arithmetic 101, but I’ll read it anyway.
Just the constitution, or does that include the various SCOTUS decisions interpreting the constitution? I’m assuming I’m allowed to inquire if I see things that appear to my layman’s eye as errors or omissions.
Maybe, but you pretty much lost it with that “You don’t a right to an ultrasound-free abortion”, which I suspect was dashed off in a moment of impatience, accounting for the missing verb.
Explain away. Abortion’s not in the constitution and neither is marriage. Illuminate us why one can be subjected to unnecessary requirements with the goal of emotional manipulation and the other cannot.
By all means, yes. Of course, I suspect ultimately it’ll just boil down to what SCOTUS decides, so if they say “ultrasounds okay, mandatory Catholic Friday-meat convincing not okay”, that’ll pretty much be the end of it.
Ad hominem.
Sorry I missed that. The thing is, legally, the “life-and-death interests of the fetus” has already been settled in Roe v Wade. You may disagree with the decision, as is your right, but you have to admit that it is precedent.
And because this procedure is Constitutional, and because there is a basic right to refuse care I honestly can’t understand where you are coming from.
Let’s assume for a second that the subject we are talking about is not abortion. Let’s look at the state and medicine more generally. I, personally, don’t think the state should be able to mandate a procedure that doctors deem unnecessary. Do you?
Every time I’ve asked you directly about the right to refuse treatment, you’ve talked about the fetus. Forget about the fetus. Forget about abortion. There IS a larger question hiding here. Can the state mandate medically unnecessary procedures if it’s in the interest of the state?
Ok.
Well…yes, in a sense.
Virtually every test, standard, rule, or interpretive method is something that ultimately the Supreme Court has endorsed. But there is a difference between declaring an outcome tailored to every specific case and declaring that a certain analytical method applies to a particular provision, and then using that method to resolve future disputes. Both are, in some sense, “…what SCOTUS decides,” but the difference is akin to a baseball umpire who simply awards a victory to one team as opposed to applying the rules of baseball and allowing their application to determine the victor. The rules are themselves arbitrary, but I hope the difference is obvious.
So why can’t a state law burden marriage for Catholics?
Because the Court has previously decided that the rule for Equal Protection includes examining any state law that creates a class based on religion as highly suspect. It’s not that marriage itself is mentioned or protected in this analysis, but any law whatsoever that purports to treat Catholics differently than people of other faiths.
Then can a state law burden marriage for everyone?
Sure, to some degree. As long as the law burdens everyone, the Equal Protection clause is no longer the tool to use.
But the justification for the burden must be strong. Why? “what SCOTUS decides,” is why. In Skinner v. Oklahoma, the Court said, “Marriage is one of the `basic civil rights of man,’ fundamental to our very existence and survival,” as it placed marriage under the Due Process Clause’s protections. Still, states can pass laws which burden marriage if those laws are narrowly tailored to achieve a substantial government interest.
In slight contrast, the Court has not granted quite the sweeping approval to abortion. You say, “Abortion’s not in the constitution and neither is marriage,” as though that places them on equal footing with respect to how they may be regulated. But the case law from the Court does not agree. In Casey, the Court noted: “On the other hand, ‘[r]egulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exercise of the right to choose.’”
The Court in Carhart quoted this language with approval when it upheld the congressional partial-birth abortion ban.
So that’s the difference between abortion and marriage: even though neither are mentioned by name in the Constitution, they are treated and analyzed differently.
No, no. Casey v. Planned Parenthood was decided after Roe and modified Roe. Casey is precedent for the proposition that the state has an interest in the fetus’s life. The language I used above was not accidental. I quoted Casey:
I don’t mean to be snarky, but Roe has been modified at least three times. Casey, Carhart – have you read those opinions? The claim that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child is not my invention: it’s the Supreme Court’s language!
Sure I do. The state can mandate a blood draw to reform a DNA test, even if the person being tested refuses and there is no medical imperative. The state can mandate anti-psychotic drugs be administered to a criminal defendant solely for the purposes of rending him competent to stand trial, a goal which has no independent medical purpose.
Yes. It’s not an unqualified yes; the state interest must be balanced against the intrusiveness of the procedure. But neither is it a “no:” if the state’s interests are sufficient, then sure. That’s not only my opinion: that’s the law.
So let’s see if this works in reverse. Now you have learned that the state has legitimate interests from the outset of the pregnancy in protecting both health of the woman AND the life of the fetus that may become a child. You may disagree with the decision, as is your right, but you have to admit that it is precedent.
Right?