n/m
Nope. This may be where we disagree. I don’t believe the state has a legitimate interest.
It the state was trying to prevent an actual public health threat, well then yes it’s got an interest. But here, nope.
Wait… Bricker… do you think abortion is a public health threat?
I’m not sure why my question here was passed over:
But since Bricker’s answer to everything else confirms what I pointed out, that’s it’s not only the constitution that limits legislation, but also judicial review, hence Bricker’s original comment really should have had at least one reference to SCOTUS or the Judiciary.
Yes, but as you point out, this is only true because marriage (and religion) has a much longer history of judicial review than abortion. It’s not relevant to say the* text of the constitution* doesn’t grant the right to a non-ultrasound abortion, any more than it is to say the text of the constitution doesn’t grant the right to a no-meat-on-Friday marriage. SCOTUS precedent rules out the latter, for now, but it is conceivable (and highly unlikely, I’m sure) for SCOTUS to use a religious-rights case to reverse many of its earlier rulings and establish a new precedent, dumping the Lemon test for something that would allow states to pass all kinds of new laws that could promote or inhibit certain religions. The Lemon test is also not in the text of the constitution, after all.
Anyway, will there be a SCOTUS ruling that an ultrasound requirement is unconstitutional? I hope so. I can certainly see the justification for it, and I have two bucks riding on it. But unless somebody starts putting serious muscles behind a new amendment (and certainly many have tried), abortion not being in the text of the constitution means squat.
An incidental note occurs to me regarding the wager. Can we call it a wash if sanity or Democrats (not synonymous, obviously) prevails in Wisconsin and the law is repealed before it gets near SCOTUS?
Well, the legislature can decide what its interests are, the executive can veto, the legislature can override, the judiciary can strike down, then the people can amend, or vote out the legislature.
It’s Ouroborossian.
I asked:
You answered, “Nope. This may be where we disagree. I don’t believe the state has a legitimate interest.”
Yes, I understand you disagree with the decision, as is your right. I asked if you acknowledge that the sentence I quoted is in fact precedent. I asked you the same question you asked me, when you thought Roe was the controlling precedent.
Well?
No.
Well, yes, I guess in a weird sense it is – but not in the sense you mean.
So they put their left hand in
and take their left hand out
They put their right hand in
They take their right hand out
and shake it all about
That’s what it’s all about… why it should go to SCOTUS.
It did: “…or those necessary and proper to allow the Feds to carry out the powers granted…”
The fit of claimed powers into the Necessary and Proper Clause is an area in which the judiciary weighs in.
Not “squat.” It means that the Court can continue to fiddle with the scope of the right, exactly as they did first with Roe, then Casey, then Carhart. I suppose they could also do that even with a textual amendment, but maybe the shame would at least temper their desire to meddle.
Absolutely. The key portion of the bet is that it gets overturned by final judicial ruling. If the Seventh Circuit overturns it and SCOTUS doesn’t grant cert, you win. If the Seventh Circuit upholds it and SCOTUS doesn’t grant cert, I win. But if the law gets repealed by legislative action, it’s a wash.
Heh. I have a suspicion you let your politics color your legal thinking.
Was “no” not the answer you were looking for?
Rearranged slightly, and using a soupçon of poetic license, that’s half a double dactyl. Not the best example of the genre, but here goes…
Higglety Pigglety,
Listening to Bricker is
Uber-ed’cational, but
Never banality.
Really impressive how
Utterly twatly he
Can be while cloaked in de-
Lusional morality.
No,
Well, yes.
Well, nine Supreme Court justices can’t be wrong.
Since **Bricker **is once again being accused of coloring the law for his political beliefs, I’ll take the opportunity to play “here’s what the pro-choice lawyer thinks the law as currently stated by the Supreme Court is.”
-
There is no unqualified right to terminate a pregnancy (even an early pregnancy) without interference from the state. There is a right to decide to terminate a pre-viability pregnancy without undue burdens.
-
Not all burdens on the right to decide whether to terminate a pregnancy are undue. An undue burden is a regulation that has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.
-
A regulation that seeks to hinder rather than inform a woman’s free choice is an undue burden and presents a substantial obstacle to her right to terminate the pregnancy.
-
A state measure designed to persuade a woman to choose childbirth over abortion is not a measure designed to hinder her choice, so long as the means chosen are reasonably related to that goal of persuasion.
So, at least as a matter of abortion law (ignoring free speech and other constitutional protections),* the question is whether a law designed to deliver an emotional argument to women seeks to hinder rather than inform a woman’s free choice. On the one hand, this is something more than just “information.” On the other hand, the fact that specific information has emotional content would pretty much eliminate entirely the state’s right to seek to persuade the woman not to have an abortion.
There is also the question of whether the law has the *purpose *or effect of limiting abortions because of the difficulty in obtaining the ultrasound cheaply and quickly.
-
- There are a number of other rights implicated of both the doctors and the patient that apply regardless of the fetus. For one, the fact that this regulation involves a mandatory medical procedure raises constitutional concerns wholly apart from whether it unduly burdens the decision to terminate pregnancy–the same concerns would be raised by a requirement that all men get prostate screenings. The state’s interest in the life of a fetus may well play a role in the analysis of those questions, but it would not be the Casey framework alone that governs the outcome.
Thanks for the commentary! As always, your input is appreciated, and I assume not to be dismissed based on your desire to rule the world as a Catholic Caliph.
No. I do expect another rousing chorus of “I wasn’t saying what the law is, only what it should be,” notwithstanding the preceding posts clearly talking about what the law is.
Just a wiseass crack, but considering how hard Walker’s County-paid employees worked for his election, I wouldn’t be surprised if some of the posters here were on his state paid staff. Seems to be SOP for him.
Are you? I wouldn’t know.
Am I on Walker’s staff?
No. I live in Virginia.
Which is just what someone on Walker’s staff would say!
I must admit, I am impressed at the dedication. Almost 14 years spent creating a false persona just for this occasion.
To say nothing of anticipating his eventual rise to governor when he was but a lowly state assemblyman. 