How do you do pregnancy tests in your area? Here you can buy the test from a drug store or go to your doctor; all done anonymously without the need to “register” for anything or broadcasting anything to the world.
Oh yes, but what your statement sounded like was that women would have to have proof that they weren’t pregnant. And requiring that a sexually active woman take monthly tests, at her own expense, would be a huge invasion of privacy.
See, I’m so conservative, that like noted columnist James J, Kilpatrick I believe that government has no place meddling in the private lives of free people.
6 weeks? Home pregnancy tests often don’t show a positive for around 2 weeks. Even testing every month could result in pregnancies being missed for pretty much 6 weeks, especially for women with an irregular cycle who would find it much harder to work out the optimum test time.
(Side note: just googled a load of early pregnancy info to check the above. Am mid 30s female. Bets on how many internet ads for baby stuff I get shown this week?)
No, no. I’m talking about a law which bans abortion after six weeks of pregnancy versus an undue burden upon a woman’s “right” to have an abortion. Supposedly, so long as each month a sexually active woman of child bearing years took a pregnancy test or visited her doctor. She would be at ovulation + 2 weeks and be within the window of being able to have a legal abortion in her state if she found out she was pregnant.
If a state is allowed to prefer life instead of abortion, is that asking for a burden which is not due?
The state has no business telling a woman what she can, or can’t, have done to her body.
And your requirement that a woman take a monthly pregnancy test, that’s stupid. How would “the state” know whether she had actually done it?
My point is not that the state will verify that she has taken a pregnancy test or that it is a state requirement.
My only point was that if the law says that a woman cannot have an abortion after six weeks of pregnancy, then she can still avail herself of the ability to have an abortion by taking a pregnancy test each month. If she finds out she is pregnant, and decides to have an abortion, she will still be able to have one.
All rights (assuming for the purpose of debate that there is a right to an abortion) are subject to rational limits. I have a 2nd amendment right to own a gun, but I need an FBI background check to buy one. A woman has a right to an abortion, but under my plan, she only needs to be proactive and diligent in determining whether she is pregnant. I think the gun requirement is far more onerous than the six week law.
So it’s equally wrong that a sexually active man pays for condoms himself? And looking at Amazon UK I see you can buy 60 ultra early pregnancy test strips for £7.99. At that price you can do the test weekly. Note that this is about the same price per unit as a cheaper condom and much cheaper than a brand like Durex. You can buy an electric pregnancy tester for under a tenner, which I assume is reusable. And those aren’t the cheapest, just those that appear first. This is hardly a great expense.
Huh? You pee on a strip or whatever in private. Job done. No invasion of privacy at all.
Don’t you have these in America?
Yes, the test is done in private, BUT, if a woman had to prove she’d had the test, so she could have an abortion, how is that to be done?
No matter how it’s done, a mandatory test would be wrong.
Again, she does not have to prove that she took the test in order to have an abortion. The point is that by taking the test, the woman will know prior to week six that she is pregnant and could then determine if she wanted to have an abortion, and then legally have one if she chose.
Would you consider it an undue burden if you have to re-register as a gun owner every month? And I’m using re-register here to mean any type of action you had to take to still be a legal gun owner, even if you could do this at your local drug store.
Shooting from the hip here (ha!), I don’t think that the analogy is apt for a couple of reasons:
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Abortion is a unique right in that states can have a policy disfavoring it so long as it does not create an undue burden for the woman. Such a thing is unique in constitutional doctrine. A state may not, for example, have a public policy against free speech and pass laws restricting speech so long as a balancing test is met, or likewise be hostile towards gun ownership, but pass a balancing test. As an enumerated right, gun ownership, like free speech should be the subject of strict scrutiny, and I don’t see how such a re-registration scheme passes rational basis, let alone strict scrutiny.
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The law does not require a woman to take a monthly pregnancy test. That was an example of how a woman could, at all times, keep herself within the six week window. Given the state’s ability to disfavor abortion and restrict it, I fail to see how this regulation would be an “undue burden” when I gave simply one example of how it can be overcome.
But again, the Court has never satisfactorily defined what an “undue burden” is. It’s a cute little phrase that existed solely in the mind of Justice O’Connor and has no real meaning besides a subjective value judgment. Is an abortion tax of $1 an undue burden? $10? $100? $5000?
In contrast, if the government passed a 10 cent tax on religious books or said that you could only go to church once per 24 hour period, those laws would be struck down even though the burden is minimal. Abortion is unique in that it is the only right that a government can be actively hostile to for its own sake.
But using a reasonable definition of a burden that is undue, I don’t see how it qualifies. As mentioned above, a woman can get 50 ovulation strips and 20 pregnancy test strips off of Amazon for $15.99: https://www.amazon.com/Ovulation-Pregnancy-Predictor-Sensitivity-Accurate/dp/B078GV36ZG/ref=sr_1_3_sspa?ie=UTF8&qid=1528059019&sr=8-3-spons&keywords=home+pregnancy+test&psc=1
A 24 hour waiting period costs a woman more money than that and Casey held it not to be an undue burden. I fail to see how any reasonable understanding of “undue burden” would be a cost of $16 per year.
It is not considered an undue burden for a man to wear a condom.
The undue burden test is not unlike the ability of the state to limit time and place for protests, even though we all have the right to protest. The fact that a state might have a policy to favor abortion doesn’t, in my mind, change things.
It does require it if a woman wants to preserve her right to have an abortion. I could say that you aren’t really required to register your gun every month. You just give up your right to keep the gun if you don’t.
Courts make these kind of subjective decisions all the time, though. Yeah, it’s not the best situation but it’s unavoidable as long as humans are involved.
I disagree. The state does not have time, place, and manner restricts on speech because it abhors free speech. Likewise, a state does not ban the discharge of firearms on the city streets because it is opposed to the Second Amendment.
These are merely understandings that just because free speech is good, I don’t want it 24/7 everywhere I go. I should be able to sleep at 3am without some guy with a bullhorn in my front yard yelling about how Hillary should be in jail.
Contrary to this is the abortion cases which hold that a state may fundamentally disfavor abortion. Compare the 24 hour waiting period in Casey along with the requirement that then provide women with pamphlets about adoption. Do you think a law saying, for example, that before going to church, you had to wait 24 hours and only after reading a government pamphlet outlining the rationale of atheism? Of course not. Abortion law is qualitatively different.
Well no. A woman could test or not test or come up with some other idea to be compliant in the 6 week period. If it turns out there is no other way, then yes, it would be fairly said that the pregnancy test was a requirement. However, it is not a requirement just to be a pain in the ass; it is a requirement, upheld in Casey, that the state believes that its interest in protecting unborn children/fetuses who have attained a heartbeat is justifiable given the de minimis nature of the intrusion on women.
Again, I respectfully disagree when it comes to deciding constitutional questions. A court that says that the 5th or 14th amendment says that an abortion tax of $25 is okay, but anymore is not, is seriously misunderstanding its role in our society. Was that what James Madison or Thaddeus Stevens meant when they drafted the 5th and 14th amendments, respectively? I think seriously not.
This is apparent when the courts look at real constitutional rights like the First Amendment. No tax at all on religious books would be upheld or any waiting periods to go to church. This invented right to abortion becomes so complicated because the Court piled an unsupportable made up test on top of other unsupportable made up tests to where the end result is absurd.
But just look at the Lemon Test when it comes to evaluating whether laws violate the Establishment Clause:
What is “excessive”?
Well, the Lemon Test has been criticized, but is a perfect example of these stupid tests that the Court comes up with and then has to make a subjective decision because of its own prior rulings.
The First Amendment (as related to religion) prohibits Congress (and the states through the Fourteenth) from:
- Passing a law “respecting an establishment of religion”; or
- Passing a law prohibiting the free exercise of religion.
So where does prong 1 get its support? Where does it say that Congress may pass no law with religion as its subject? That is a strained and unsupported reading.
Prong 2? Must not advance or inhibit religion? Where does it say that Congress may not advance religion?
Prong 3 is equally wrong? As you asked, what is “excessive entanglement”? The First Amendment only outlaws an established religion like the Church of England. There is nothing forbidden about being “entangled” (whatever that means) let alone “excessively.”
If the Court is stating that a law shall not be so vast and entangling church and state such that it might be said that there was a de facto national church, then I could agree, but that’s not what future Court rulings have stated.
These made up tests invite the sort of subjectivity in which judges have no more expertise in deciding than lay people.
I share your concern about these types of tests, but I was just trying to point out that the “undue burden” test is not unique. Still, though, at some point we’re talking about human judgement and not some computer run algorithm. And if a woman has a right to an abortion (accepting the current jurisprudence on that), then I’m not sure we can get around the idea that the courts will have to decide how much of a restriction can be placed on that right. Especially since many states are hell bent on putting up all sorts of restrictions to see what sticks.
I see your point, but it is unique in the sense that abortion is the only constitutional right (assuming it to be by precedent) where the state can be directly hostile to the right. That requires a different analysis than any other right.
But I agree that law is the type of thing that cannot be done by computer. But if we look at the text, history, and traditions, we get to a closer result of what the people actually voted for. If we look at purpose, intent, and evolving standards what we have are judges who are voting about how things ought to be, which is my main objection to these tests. They invite absolute subjectivity.
Whether or not you think an abortion regulation creates an “undue burden” necessarily involves how much the judge values the state interest in restricting abortion versus a woman right to have an abortion. If I am a judge and I think that Roe and Casey were wrongly decided, but I will follow them on stare decisis grounds, I will be far more likely to find a particular state regulation does not create an undue burden that I would if I were a judge who felt abortion laws were simply a way to control women and return us to a patriarchal society.
Further, one’s one life experiences dictate the level of burden. A 24 hour waiting period for most people seems reasonable. But what if you are a poor woman who could barely scrape together enough money for an abortion, but now you have to rent a hotel room or sleep in your car (if you can afford a car)? A judge who had previously worked for people in that situation might see an undue burden, but a judge who had a job earlier in life where he had to be out of town for weeks at a time wouldn’t see it as a burden at all.
My objection to all of this is that a Harvard law degree doesn’t give a person anymore insight into these questions than lay people. Ultravires and John Mace can make these value judgments just as well as John Roberts and Steven Breyer.
Updating this thread: