That said, I have to say I’m really far more against the law itself than any particular SC ruling one way or the other.
Thanks John Mace, while you are correct it is not a view I currently hold, I’ll field this.
OK, lets look at the Constitution, that clause you cite also prevents the government from interfering with free exercise of religion, which means that we are allowed to use our religious beliefs in determining our voting preferences. We can’t be thrown in jail for that - yet.
And lets look at the preamble itself, - just going from memory right now - secure the blessings of liberty for ourselves and our posterity , that’s right, in the preamble itself, ‘our posterity’ is right there, not to mention the word blessing which has a very strong religious connotation.
Two ways.
Firstly, this law is the first time a blanket ban on a specific abortion procedure has been upheld. This is big news for abortion law as a whole.
Secondly, the pro-life movement is, to a great extent, against abortion because of its purported similarities with infanticide. “Partial birth abortion”, according to abortion foes, is the abortion procedure that most closely mirrors infanticide generally, and thus it might be the procedure most hated.
Good point-- especially because I agree with it. 
Asking the SCOTUS to bail us out because we elect idiot legislators always strikes me as rather odd. Abortion jurisprudence is extremely complicated and only tenuously tied to the constitution, so expecting it always to come out the way we might want it to is hopelessly unrealistic.
ArchiveGuy got it. Regardless of the net effect this decision, by itself, will produce, it changes the playing field. Abortions are no longer the unfettered, inviolable choices they were the moment before the decision. This is absolutely a blow to those who believe that abortions should always be completely up to the mother, no restrictions, none whatsoever, a political stance held by many in the pro-choice camp.
It’s that simple. It makes the restriction of abortions seem more reasonable, more palatable. Those who cry that any restriction is a horrible injustice, the creation of an awful, evil circumstance, will be seen as crying wolf by many, since this change won’t seem to produce that effect. So the next time someone suggests a reasonable restriction, the cries of outrage will seem just a bit less credible (to many). And so on, and so on, as additional restrictions are suggested. It’s a great first step, in that sense. Seems obvious to me.
I think its a net loss for pro-life forces. They have expended huge amounts of energy and ammunition for what is a comparatively rare procedure. Were it not for the marketing genius of the term “partial birth abortion”, they wouldn’t even have gotten as far as they did, the horror carried by the term moved people who otherwise were not as committed as the pro-life movement would prefer. The true believers are always on board, but the rest fade away after the victory party.
The pro-life movement has the unenviable position of winning symbolic victories, but losing the war. Even if RvW were overturned, that would effectively turn the matter over to the several states. And they have no chance, none whatsoever, of winning that battle in each and every state.
“Abortion” used to carry the freight of horror that they packed onto “partial birth abortion”, but no longer. Without that extra outrage, what have they got to motivate anyone but those already committed? What new rallying cry can they offer?
A net loss? Doesn’t make sense. No rallying cry required, the approach suggested by this is to continue to chip away, a little at a time. Restrict abortion access for minors by requiring parental approval. Restrict the abortion of viable children, a restriction even Roe v Wade contemplated. Etc., etc.
C’mon, gang. If you’re pro-choice, this isn’t good news. This court has tipped its hand. Let’s see how the next restrictions fare.
I agree… but isn’t that last already restricted? The “viable children” one, which I think you mean “viable fetus”. And by “restricted” I mean at the state level, not necessarily at the federal level. Is there any state that allows abortion on demand of viable fetuses?
This will embloden the legislatures of many states to pass even more restrictions on abortion. They will try to place so many legal obstacles in the way that abortion will be de facto outlawed in many parts of the country. Since the forces of darkness can’t overturn Roe outright, they have taken the “death by a thousand cuts” approach.
I think this will largely backfire on Republicans. Their anti-abortion rhetoric may appeal to a huge block of voters, but I think when push comes to shove most people want abortion to remain an available option. Look what happened in South Dakota when the legislature tried to ban all abortion.
I keep hearing that the procedure is rare. What percentage of abortions are D&E?
From wikipedia:
That’s a small percentage, but I could still see that being hundreds of cases every year.
Unlike, say, freedom of speech, abortion rights aren’t something one can casually practice by oneself pretty much any time of day or night pretty much anywhere in the country. Getting a safe abortion requires the assistance of at least one medically-trained individual. Putting in this kind of restriction, and the inevitable niggling extra restrictions to follow that have been made possible by this precedent, has the effect of reducing the number of medical practitioners able and willing to continue. A doctor might perform a few hundred abortions a year and consider it a necessary public service. Now, one particular type of procedure, the net effect of which is no different from other procedures, can end the doctor’s career.
By analogy, consider the actions of a legislature (and friendly supreme court) that wanted to effectively end gun ownership. It would be too huge a step to declare that citizens can’t own guns, but by heaping seemingly-reasonable regulation upon seemingly-reasonable regulation on those who manufacture guns, companies who now produce quality weapons can be driven out of the market, leaving shoddy dangerous merchandise in their place.
How hard would it really be to make gun manufacture so difficult that Smith and Wesson goes bankrupt? How hard would it really be for some states to drive abortion providers away? You’re about to find out.
Is that the procedure that one of the major providers admitted he had lied about?
So I would bet that accurate figures are going to be hard to come by.
Regards,
Shodan
Some people are surprised to find out that the trimester framework as a strict guideline from Roe v. Wade has long been thrown out, and was thrown out in Planned Parenthood v. Casey (a case many pro-choicers view as a victory for them, which may have been the single piece of case law which could some day bring an end to all abortions.)
The Casey decision makes clear that the State has a compelling interest in protecting pre-natal life at the point of viability, not strictly 28+ weeks as was decided in Roe. Furthermore Casey goes so far as to say viability has to be a medical determination (paraphrasing heavily, has been a long time since I’ve read the decision.) What this essentially means is, you could craft law that (after a medical inspection) could prohibit abortions of fetuses deemed “viable”, although the law under Casey would still require that the standard exceptions for health of the mother be made.
That’s probably the biggest single result of the decision today, if I’m not mistaken it is the first time the SCOTUS has ever upheld any type of abortion ban which doesn’t make exceptions for the health of the mother, going so far as to allow the ban even though banning the procedure could force a more dangerous one to be necessary in cases where late term abortions are actually required–however it should be noted that the National Coalition of Abortion Providers stated in 1997 in the New York Times that “in the vast majority of cases” the method is used on “a healthy mother with a healthy fetus that is 20 weeks along or more.” So I’m not sure the net effect is going to make things much more dangerous for a woman in medical stress, as according to the people who are performing the D&E procedures, it usually is done on a healthy mother.
The reason this procedure is often done on viable fetuses (some are viable at 22-23 weeks) is because most state laws still reflect Roe and continue to use the trimester arrangement (in fact I’m not sure if any have abandoned the trimester arrangement and moved to strict viability as they could have done following Casey–the reasons for not doing so I think are mostly practical ones at this time.)
Most states do prohibit third trimester abortions of any kind unless the health of the mother is at issue–several states require a State medical board (iirc) to verify that the woman actually has a legitimate health issue before allowing a third trimester abortion.
So to answer your original question, yes, some states would allow abortion on demand on viable fetuses, that is how most D&E procedures are done, in fact (assuming my data from 1997 is/was accurate.) The reason this is the case is there is a window between actual viability at 22-23 weeks, and “legal viability” as defined by most state abortion statutes at 28 weeks.
After 28 weeks the vast majority of states prohibit non-health related abortions.
Replace “D&E” in the above post with “IDX.” Unfortunately not being a medical expert I find it easy to get all of the different types of “dilation” and “extraction” confused.
Shodan, from what I’ve read here, IDX procedures are performed in approximately 15% of late-term abortions, a raw number around 2,500-3,000. But any hard statistics as you said, may be hard to come by.
Or to Congress. Where, I wonder, are the anti-Commerce Clause types who should be complaining to high heaven about Congress’ huge overreach into what by all rights ought to be (assuming IDX is not covered by the federal constitution) a matter reserved to the criminal laws of the several states?
Seems quite ironic that the last major Commerce Clause case from the Supreme Court was the one where they decided Congress had no authority to legislate on domestic violence, but nobody batted an eye at having Congress legislate women’s reproductive rights.
[Yes, I know the issue wasn’t in front of the Court. But still.]
Sure. But they have an excellent chance of winning it in a whole lot of states, including the second most populous state in the country. That should be a matter of some concern if you happen to believe that women’s uteruses are not, in fact, capable of
My understanding is that the decisions in *Lopez *and *Morrison *basically allowed laws that have a specific jurisdictional hook. This law only applies to doctors in interstate (and foreign) commerce.
More generally, I think the anti-commerce forces wanted to uphold the ban for political reasons, and the political opponents didn’t want to make the commerce argument because they generally like the broad interp. of the clause.
Congress made express interstate commerce findings in the VAWA (something that was missing in the Gun-Free Schools Act, which the Lopez majority pointed to as a significant omission), but the Morrison majority dismissed the Congressional findings as insufficient. More to the point on the present case, what the hell is a doctor in interstate commerce?
My point exactly.
Yeah, but it’s not a question of findings in this case. They actually built into the statute a jurisdictional hook to only apply the statute to interstate commerce as suggested by the *Lopez *concurrences.
Good question.
ETA: Re-reading the OP I see that you specifically didn’t want to talk about the decision in this thread, so I’ll duck out. Minty, if you want to discuss this further, I’ll be in the other thread.
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