They’re only related in that some people have a tribal loyalty to the Republican or Democratic party and line up in lockstep behind the party platform. I agree the issues are in principle orthogonal.
Speaking myself, I’m (mostly) pro gun control and (mostly) anti-abortion rights, though I’d allow guns to be owned and used in designated areas for hunting, etc., and I’d allow abortions when there are serious threats to the mother’s health.
Well, thank you for not wanting to kill me, I guess.
Because there has been some “Texas MAY require” type comments in this thread, here are some facts about abortion restrictions in Texas:
Also some facts about the true reasons behind the restrictions:
You’re welcome.
How can you legislate follow-up? a lot of people skip follow-up, and in cases where there is more medical justification for it-- for example, some parents skip follow-up for their children, and don’t get arrested for child abuse. Some parents even skip things like follow-up physical therapy after a broken limb. Can women in Texas really be charged with a crime for failing to show up for a two-week follow-up appointment?
That’s an excellent question.
Anyway, jtgain, given the actual rules in Texas posted by Turek, and the need for four visits weeks apart, does that change your opinion about the level of burden?
Yeah, see, that’s the funny thing about this. It’s sort of like restricting anything - you can find some excuse.
“Why should patients in this state who want an abortion have to undergo ultrasound procedures 24 hours beforehand?”
“Uh… So that the doctor can make super duper sure that there’s nothing wrong! Yeah, that’s it!”
“And why should we require patients who simply need to take one pill to have that pill administered by a licensed medical doctor?”
“Safety of the patient! Any old nurse might just get the medication wrong!”
“And why should the patient be legally required to wait 24 hours between counselling and the procedure?”
“Because this is an important procedure, and they need to think it over!”
“And why should abortion clinics be required to have exacting specifications for their restrooms?”
“We wouldn’t want them to discriminate against the handicapped!”
“And why should abortion clinics have full ER staff on hand at all times?”
“In case something goes wrong!”
And so on, and so forth, until the legal right to an abortion still exists, but you have to go to fucking Canada to get one. It’s all very wink-wink-nudge-nudge - you know what we’re talking about, but the courts can’t prove it! It’s like a guy who constantly makes reference to murdering his wife to the people who would be glad to hear about it, but juuuust not far enough that the courts can use his words as evidence that he was the one who killed him. Where does it end? What can we do to step in and say, “Hang on, the entire purpose of this law - literally the entire purpose - is to stop people from having abortions”?
In my opinion, these laws are mostly – although probably not completely – fig-leaf excuses upon which to hang various impediments to legal abortion.
I oppose abortion.
I oppose even more this kind of tactic. I would like to see abortion made illegal, yes – but upfront and with a clear statement of purpose.
I did initially support the 24 hour waiting period, but as it happens, the rate of women changing their minds as a result is vanishingly small, so I have reluctantly concluded that the effect of this rule is simply to hamper. not allow for useful reflection.
Bricker, thanks for joining the thread. I was hoping you’d show up. What is your opinion about my questions in the OP? I’m just looking for speculation from people better versed in SCOTUS procedure, personalities, and precedent than I am.
I hesitate to speculate. But my sense is that under current precedent, these restrictions would not be an undue burden, although it’s a close question, and I think your second guess is right: 5-4 against the clinics.
Just to go further into speculative territory, do you think there’s a possibility that this case is used to overturn Roe and Casey? There have been some cases recently (the voting rights act case and Citizens United, come to mind, maybe Heller?) where it’s my impression that those decisions overturned long-term precedent.
I promise not to hold you to any predictions made here!
The waiting period works to restrict impulsive abortions. “I’ve nothing better to do today, think I’ll just nip over to the clinic for a quick abortion!”.
To accomplish this, we need to find substantial legal precedents that allow courts to rule, not on the explicit language of a law, but the (obvious) intent behind it; such intent being contrary to other rulings & laws.
While I’m sure Bricker could find concrete examples of this – especially if his orientation were different – I have a sinking feeling that such a principle might backfire and open the door to unwanted and unintended consequences.
No cites, no strong evidence, just a weird feeling and a cautionary stance.
Neither the recent voting rights act case (Shelby v. Holder) or the Citizens United case can be fairly said to have overturned long-term precedent. Shelby’s rationale was that Congress robotically re-enacted the VRA by using a formula based on 40-year-old facts instead of using present-day data. Citizens United simply codified the long-standing principle that the First Amendment protects political speech and access thereto. It’s true both of these were new applications of law, but they didn’t really run counter to previous applications of law. For example, the Court did not ignore some prior case that held Congress had every right to work from 40-year-old facts.
I doubt strongly that the basic holding of Roe and Casey is in danger from the current Court.
Since Bricker’s here… (sorry to join in the legal question dogpile)
Is this accurate?
No. I’ve seen the phrase used in discussing employer accommodations for religious exercise, employer accommodations for disabilities, voter ID laws, compliance with affirmative action laws, and interstate commerce decisions.
It’s true that the way it’s applied to abortion laws is sui generis.
If the law actually requires four visits, each weeks apart, I would agree that it imposes an undue burden.
[QUOTE=Scalia dissent in Planned Parenthood v. Casey]
But what is remarkable about the joint opinion’s fact-intensive analysis is that it does not result in any measurable clarification of the “undue burden” standard. Rather, the approach of the joint opinion is, for the most part, simply to highlight certain facts in the record that apparently strike the three Justices as particularly significant in establishing (or refuting) the existence of an undue burden; after describing these facts, the opinion then simply announces that the provision either does or does not impose a “substantial obstacle” or an “undue burden.” See, e.g., ante, at 880, 884-885, 887, 893-894, 895, 901. We do not know whether the same conclusions could have been reached on a different record, or in what respects the record would have had to differ before an opposite conclusion would have been [505 U.S. 833, 992] appropriate. The inherently standardless nature of this inquiry invites the district judge to give effect to his personal preferences about abortion. By finding and relying upon the right facts, he can invalidate, it would seem, almost any abortion restriction that strikes him as “undue” - subject, of course, to the possibility of being reversed by a Court of Appeals or Supreme Court that is as unconstrained in reviewing his decision as he was in making it.
To the extent I can discern any meaningful content in the “undue burden” standard as applied in the joint opinion, it appears to be that a State may not regulate abortion in such a way as to reduce significantly its incidence. The joint opinion repeatedly emphasizes that an important factor in the “undue burden” analysis is whether the regulation “prevent[s] a significant number of women from obtaining an abortion,” ante, at 893; whether a “significant number of women . . . are likely to be deterred from procuring an abortion,” ibid.; and whether the regulation often “deters” women from seeking abortions, ante, at 894. We are not told, however, what forms of “deterrence” are impermissible or what degree of success in deterrence is too much to be tolerated. If, for example, a State required a woman to read a pamphlet describing, with illustrations, the facts of fetal development before she could obtain an abortion, the effect of such legislation might be to “deter” a “significant number of women” from procuring abortions, thereby seemingly allowing a district judge to invalidate it as an undue burden. Thus, despite flowery rhetoric about the State’s “substantial” and “profound” interest in “potential human life,” and criticism of Roe for undervaluing that interest, the joint opinion permits the State to pursue that interest only so long as it is not too successful. As JUSTICE BLACKMUN recognizes (with evident hope), ante, at 926, the “undue burden” standard may ultimately require the invalidation of each provision upheld today if it can be shown, on a better record, that the State is too effectively “express[ing] a preference [505 U.S. 833, 993] for childbirth over abortion,” ante, at 883. Reason finds no refuge in this jurisprudence of confusion.
[/QUOTE]
Scalia is spot on here. There is no standard to the undue burden standard.
To the extent that it’s a constitutional right (which it is, under current precedent), his statement here seems right:
That’s not a bad standard for laws that have the effect of restricting constitutional rights. These laws have been passed with the main goal of reducing the incidence of abortion.
Similarly, if a law was passed that made it so you were required to travel hundreds of miles in order to go to church or to speak out, that would be an undue burden on your First Amendment rights.
So, he says there’s no standard, and then he lays out a reasonable standard, from what I can tell.
I still question how enforceable follow-ups even are. “We’ll let you have this abortion today, if you promise to come back for a check-up in two weeks.” “Sure. Whatever. Where do I sign?”
Are sheriff’s deputies really going to show up at the front doors of women who missed their follow-up appointments?