It is one thing to paint yourself as a reasonable person fighting against a mostly mythical extremist "39 week On-Demand Abortion!!", but if it is revealed that you are actually against any abortion, then it is you who looks to be an extremist.
So, what is your actual cut-off point when it comes to abortion?
Bullshit. If it was left to the “People”, the individual people would have the right to choose for themselves. That’s what actual freedom and individual rights looks like.
It’s the long recognized right to bodily integrity and medical decision-making that white, landowning males have enjoyed since the founding. Simply because the right belongs to a woman, who under the flawed, imaginary method of constitutional interpretation used as cover by the majority, it was not always recognized. Defining a right based on who enjoyed it in 1787 is a pure outcome-based rationalization by 6 politically motivated justices.
It’s a “legal fiction” created because courts have long ignored the clear language of the 9th Amendment, and had to create a rationale for protecting un-enumerated rights; which was what the Constitution required from the beginning.
This is a common argument, but it doesn’t really seem correct, or at least it needs some refinement. People don’t have total freedom over their medical decisions for many procedures, not just abortion. If I want to make a medical decision, I’m only allowed to do it if the medical community agrees with it. Like, I can freely donate a pint of blood every 8 weeks, but I can’t donate a pint every day or 4 pints every 8 weeks. Donating blood is an elective decision, but it’s not like I can decide how much and how often to donate. My actions are constrained by the state.
For abortion, it seems like it would be more correct to say that a person should be able to make decisions about their body which don’t have any serious or long-term health consequences to the person. For comparison, consider having moles removed. The procedure is both done for aesthetic and medical reasons. A person may want them removed because they’re unsightly or because of something like cancer risk. It doesn’t seem like the state should be able to restrict having them removed for aesthetic or elective reasons since there is no reason they should be involved in that decision. There is no significant health risk, so the state doesn’t need to step in to ensure the patient doesn’t harm themselves. Something like blood donation can have serious risks, so there the state is more justified in putting boundaries around the procedure to ensure it doesn’t harm the person.
Continuing a pregnancy is far more likely to have serious and/or long-term health consequences than ending it. Should the state be able to ban pregnancies, and require abortions, on those grounds?
I agree. No right, including the right to bodily integrity and medical decision-making (including abortion), is unlimited. As SCOTUS caselaw requires, the right in question would have to be weighed against the state interest in the legislation or action taken. While I prefer a much more sliding scale in weighing the fundamentalistness (yes, I get to make up words) of the right against the compellingness (see above parenthetical) of the state interest, the traditional 3 tiered weighing (strict scrutiny, intermediate scrutiny and rational basis) could be used.
So, the state’s interest in protecting potential human life would be weighed against a person’s right to bodily integrity. The right to an abortion would not be absolute. But neither would the state’s interest.
The problem with Dobbs is that it didn’t recognize a person’s right to bodily integrity, and thus the state’s interest will win out in 99% of the cases.
I don’t think this is necessarily applicable, as the state generally does not force procedures upon a person. The only cases I can think of are when there is a great risk of death if the procedure is not done, such as when parents block cancer treatment for their child who will likely die without it. But that’s when the state steps in to protect someone who is not of age to make their own medical decisions. It seems like the state will only force a procedure on an adult if they feel the person is not able to make a rational decision and the risk of not doing the procedure has severe consequences. An applicable comparison with abortion could be forcing abortion when the pregnancy has a high chance of causing death. Someone who feels the embryo is a living being may be willing to let nature take its course over themselves even if that means they may die. The state would be more justified intervening in that case rather than forcing an abortion of a healthy pregnancy or typical risk pregnancy just in case something could go wrong.
Cite? I went over the websites of a whole bunch of blood donation places, and while they all had plenty of rules and regulations, none of them were based on laws. Instead, they were rules and regulations based on medical and ethical guidelines, as determined by the FDA and their own medical review boards.
Certainly the state doesn’t have laws covering every procedure, but they do have laws against things like gross negligence. If a blood bank starts paying $$ for no-questions asked blood donations and people have health issues from over donating because they want to make money, the state will prosecute the blood bank. If a person wants to donate 4x per month in order to make rent, that’s their choice. But the state won’t let the person do that. I’m not sure what charges would be made against a person draining blood themselves at home, but doctors or blood banks who allowed risky donations would be prosecuted.
Precisely my point: nobody is arguing that the state should require abortion even in cases in which continuing the pregnancy is a much greater than normal risk.
The states are not banning or attempting to ban based on the likelihood of serious and/or long term health consequences. If they were, they’d be requiring abortions, not forbidding them.
For malpractice, because they were endangering peoples’ health. Not for taking blood draws or for handling the blood for donation, because blood draws and blood donations are both legal.
There is really no basis to a claim that properly performing an abortion should be illegal because it risks the pregnant person’s health; because abortion is safer than even a low-risk pregnancy.
The analogy to accepting blood donations from the same person every week isn’t performing an abortion. It’s doing so in an unsafe manner that creates unnecessary risks to the aborting person’s health. And that of course does indeed come under normal malpractice laws, and has done so all through the existence of Roe v Wade.
Frankly this isn’t the chief problem of originalism as it exists in 2022. The problem with Alito-Thomas style Originalism is that it is based on the premise of “if we can find any thin veneer of argument to support our preferred political outcome in some meandering text from more than 50 years ago, we can assert original intent.”
The reality of original legislative intent is manifestly complicated and extremely vague in most circumstances. Whose original intent? The men who drafted the constitution? Or the various amendments? The vast majority never offered written opinions on any of them. They voted, but those votes do little to clarify subjective and vague wording. I suggest that finding a clearly established intent of a few legislators from long ago is not a good mechanism for the judiciary to divine broad legislative intent.
Textualism has a better basis in good governance than originalism–which holds that if the meaning of a text is clear from that text, that should control, and the ancillary being if the word usage in the text is different from modern word usage, but the archaic word usage is well documented and understood, that should control.
Originalism isn’t a terrible idea if the intent is discernible from broad, comprehensive sources–the best sources are when the legislature actually chose to document its intent in the draft of the law or constitutional provision, unfortunately that is more rare than it should be. Originalism where you start with a pre-conceived conclusion and then just pull up Westlaw to find a few citations to support it isn’t really originalism, it’s more akin to “argument by book report”, where you can construct a book report to justify virtually any conclusion you have already reached. That is a type of “originalism” which makes the Alito-Thomas school of thought as guilty of “judicial legislating” as they have ever claimed judicial “liberals” have been.
I’m afraid you lose me when you compare an abortion to having a mole removed. The decision whether to have an abortion is far more tied to the person’s long-term medical health than the mole. Plus, the state isn’t “stepping in” to protect the patient from their own choices; it’s to prevent the patient from being able to make choices about their own health.
Agreed. Plus, it’s not just the drafters of the provision whose intention counts, and the Congress which approved it; it’s also the state legislatures, because they too were involved in passing the provision. It’s impossible to derive original intent, because there was no hive-mind; never will be. (Until we’re all assimilated by the Borg, of course.)
Do you believe it is constitutional to criminalize a miscarriage?
For instance, if the drafters of an amendment put a preamble in, to explain why they are proposing the amendment. In an ideal world, for example, maybe a preamble about how a well-regulated militia is necessary for a free state, so that’s why people have the right to keep and bear arms, which in turn helps to explain the scope of the right?
Just blue-skying here. 
Or as it seems to be these days,
The proposed thing giveth and the definition section taketh away.
Wait. Why, exactly, are we assuming that medical decisions should be made by majority vote?
Surely we, as a society, recognize that medical knowledge is a highly complex field vital to our society. That’s why we require people to get M.D.s and licences in order to practise; that’s why the tools of the trade (drugs etc.) are so heavily regulated. I don’t recall any of that being up for a vote, nor enumerated in the constitution. We didn’t vote on it when people started implanting pig valves in elderly heart patients. We didn’t cry “but the Constitution!” when we began doing organ transplants.
Why on earth would abortion be an exception to literally every other surgical practice?
Because it involves a potential human life.
“a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life.”
Roe v. Wade
Keep on whistlin’ keep on whistlin’.
When they came for the wimmin I said nothing because I wasn’t a wimmin.
When they came for the faggots I said nothing because I wasn’t a fag.
When they came for the niggers I said nothing because I wasn’t even a greaser, never mind a nigger.
When they came for me, I said, “It’s alright. 'Cause it’s the People who are after me and it’s not in the Constitution.”
On that basis, they could criminalize masturbation, because every sperm is a potential human life. Conception is an arbitrary starting point.