# Originalist Justices: What the heck are they thinking? **URL:** \ **Category:** Great Debates\ **Created:** [September 14, 2005, 9:01pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664 "2005-09-14T21:01:24Z")\ **Posts on this page:** 11\ **Page:** 11
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [September 27, 2005, 2:46pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/201 "2005-09-27T14:46:36Z")
According to the _Los Angeles Times,_ Department of Justice lawyers are asking the Supreme Court to reinstate a federal law banning [mid- or late-term abortions.](http://www.latimes.com/news/nationworld/nation/la-na-abort27sep27,1,1219025.story?coll=la-headlines-nation&ctrack=1&cset=true) > [@](#): > > Bush administration lawyers asked the Supreme Court on Monday to reinstate the first federal law banning a late-term abortion procedure, arguing that it should be outlawed because it is gruesome and is “never medically indicated” as a safer surgical procedure. If the lead in the story is accurate I guess the justices should start searching the Constitituion and precedents for some text or original intent that authorises the government to regulate “gruesomeness” and what is “medically indicated.” ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [September 27, 2005, 3:33pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/202 "2005-09-27T15:33:32Z")
> [@David Simmons](#): > > According to the _Los Angeles Times,_ Department of Justice lawyers are asking the Supreme Court to reinstate a federal law banning [mid- or late-term abortions.](http://www.latimes.com/news/nationworld/nation/la-na-abort27sep27,1,1219025.story?coll=la-headlines-nation&ctrack=1&cset=true) > > If the lead in the story is accurate I guess the justices should start searching the Constitituion and precedents for some text or original intent that authorises the government to regulate “gruesomeness” and what is “medically indicated.” Perhaps they should. But, are \*\*you \*\*now advocating Original Intent as the best method of interpreting the constitution in general, or only in this particular case (where the result could be something you’re opposed to)? 🙂 ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [September 27, 2005, 4:13pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/203 "2005-09-27T16:13:58Z")
> [@John Mace](#): > > Perhaps they should. But, are \*\*you \*\*now advocating Original Intent as the best method of interpreting the constitution in general, or only in this particular case (where the result could be something you’re opposed to)? 🙂 If it’s possible to find anything amusing in the subject, **I** think it’s amusing that an administration that insists on judges sticking strictly to the law would seriously argue “gruesomeness.” And my position is that we are allowed all rights unless there is sufficient reason to restrict one of them based on a threat to the general welfare if the right is exercised. And I think that requirement also applies to a state government restricting the rights of _its_ citizens. I think that early abortion is a private decision that doesn’t affect the general welfare. I’m not sure that I, or anyone else, can make a blanket statement pro or anti on all mid- or late-term abortions. Each such case needs to be judged on its own circumstances. Since I think a general position is not possible I don’t see how a law can be formulated that is both necessary and proper for all cases. If each case needs to be judged on its own then it’s probably better to leave the decision to the individual and her doctors. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [September 27, 2005, 4:36pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/204 "2005-09-27T16:36:14Z")
> [@David Simmons](#): > > If it’s possible to find anything amusing in the subject, **I** think it’s amusing that an administration that insists on judges sticking strictly to the law would seriously argue “gruesomeness.” Let’s be clear about something. Regardless of what they say, Bush, and many Republicans in Congress, aren’t “originalist textualists” in the Scalia mold. They are conservative judicial activists, disapointed when someone like Scalia strikes down flag buring laws. The fact that they do stumble upon supporting good, “orgignalist textualist” justices is fortuitous happenstance from my perspective. This is true especially of Bush, as I do think \*\*some \*\*Senators understand the difference, lending some credibility to that body (the Senate) as a whole. > [@](#): > > And my position is that we are allowed all rights unless there is sufficient reason to restrict one of them based on a threat to the general welfare if the right is exercised. And I think that requirement also applies to a state government restricting the rights of _its_ citizens. > > I think that early abortion is a private decision that doesn’t affect the general welfare. I’m not sure that I, or anyone else, can make a blanket statement pro or anti on all mid- or late-term abortions. Each such case needs to be judged on its own circumstances. Since I think a general position is not possible I don’t see how a law can be formulated that is both necessary and proper for all cases. If each case needs to be judged on its own then it’s probably better to leave the decision to the individual and her doctors. IIRC, the main problems the courts had with state laws banning so-called partial birth abortion is they didn’t make exemptions for cases where the health of the mother was in jeopardy. Presumably, if such laws took that into account, they would be upheld. I agree with you that federal laws banning abortion (of any sort) would be hard to support on constitutional grounds, unless one took an “activist” judicial position. ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [September 27, 2005, 9:32pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/205 "2005-09-27T21:32:28Z")
> [@John Mace](#): > > IIRC, the main problems the courts had with state laws banning so-called partial birth abortion is they didn’t make exemptions for cases where the health of the mother was in jeopardy. Presumably, if such laws took that into account, they would be upheld. This brings up side issue and maybe another thread would be called for except that this one seems to have about run its course. I simply do not understand why the default position is to save the mother at the expense of the baby. I can doubtless find many cases where a healthy baby with some potential to be useful to itself and society would be a much better choice than to save the mother. If a fetus is a human with the same rights as the mother I fail to see why the mother’s health automatically rules. ---
**Author:** ![Scott\_Plaid](https://avatars.discourse-cdn.com/v4/letter/s/258eb7/32.png) [@Scott\_Plaid](https://boards.straightdope.com/u/Scott_Plaid)\ **Post date:** [September 27, 2005, 9:46pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/206 "2005-09-27T21:46:14Z")
> [@David Simmons](#): > > I can doubtless find many cases where a healthy baby with some potential to be useful to itself and society would be a much better choice than to save the mother. Possibly, but we have no way of telling if that will happen, or if the kid will turn out to be the next Himmler, where as the mother is here right in front of us. No need to speculate on what may or may not be. ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [September 27, 2005, 9:51pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/207 "2005-09-27T21:51:14Z")
> [@Scott Plaid](#): > > Possibly, but we have no way of telling if that will happen, or if the kid will turn out to be the next Himmler, where as the mother is here right in front of us. No need to speculate on what may or may not be. That’s my point. With the kid there’s at least a chance. The mother is a known, worthless piece of crap. ---
**Author:** ![Scott\_Plaid](https://avatars.discourse-cdn.com/v4/letter/s/258eb7/32.png) [@Scott\_Plaid](https://boards.straightdope.com/u/Scott_Plaid)\ **Post date:** [September 27, 2005, 9:55pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/208 "2005-09-27T21:55:20Z")
Suppose the mother is in fact a piece of crap. You still can’t kill her, becuause that would be murder. ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [September 27, 2005, 10:10pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/209 "2005-09-27T22:10:25Z")
> [@Scott Plaid](#): > > Suppose the mother is in fact a piece of crap. You still can’t kill her, becuause that would be murder. Maybe you don’t have to kill her. Just do the best you can to save both. My point is that everyone rushes to say that we must automatically save the mother when I don’t think the question has really been thought out. Somehow I get the feeling that the “save the life, or health, of the mother” is put in there to make the anti-abortion law more palatable to more people. The word “mother” conjures up someone warm and fuzzy, but many mothers are actually quite horrible. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [September 27, 2005, 10:32pm UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/210 "2005-09-27T22:32:45Z")
> [@David Simmons](#): > > This brings up side issue and maybe another thread would be called for except that this one seems to have about run its course. > > I simply do not understand why the default position is to save the mother at the expense of the baby. I can doubtless find many cases where a healthy baby with some potential to be useful to itself and society would be a much better choice than to save the mother. If a fetus is a human with the same rights as the mother I fail to see why the mother’s health automatically rules. Well, that’s why some social conservatives are loathe to put in the “except in cases of threat to the health of the mother” clause in late term abortion limitation legislation. But we don’t make judgements in terms of medical care of who would be “useful to… society”. If you HAVE to choose, I believe the medically ethical thing to do is to choose the one who is more likely to survive, regardless of how you might feel about that person as an individual. ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [September 28, 2005, 1:13am UTC](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664/211 "2005-09-28T01:13:27Z")
> [@John Mace](#): > > Well, that’s why some social conservatives are loathe to put in the “except in cases of threat to the health of the mother” clause in late term abortion limitation legislation. > > But we don’t make judgements in terms of medical care of who would be “useful to… society”. If you HAVE to choose, I believe the medically ethical thing to do is to choose the one who is more likely to survive, regardless of how you might feel about that person as an individual. In every case is the mother the more likely to survive? Actually I don’t really see much of a useful debate here. I mentioned it as a sort of aside because it seems such an arbitrary thing. [Previous page](https://boards.straightdope.com/t/originalist-justices-what-the-heck-are-they-thinking/321664.md?page=10)