Texas Abortion Case

Great Debates
41

Going to church and speaking out are things which are done with frequency. An abortion is done very infrequently and (hopefully) is a big deal when it happens. So having to travel hundreds of miles for a once in a lifetime procedure is different that travelling hundreds of miles for daily activities.

And yes, these laws are passed for the purpose of reducing abortions. Casey said that was a perfectly legitimate state objective.

So is travelling 200 miles an undue burden for a once in a lifetime abortion procedure? I wouldn’t think so.

42

Why does the frequency matter? Could requiring a 200 mile drive to church be considered not undue if we assume the person will only go once?

43

Well, we would have to define this hypothetical world where a person only goes to church once in his or her lifetime and how many of those people would not now take this one time trek because of the law that indirectly affect churches.

That’s another reason the standard is somewhat recursive. As Bricker noted, other areas of constitutional law use the phrase undue burden, but those are discussing laws of general applicability which otherwise indirectly infringe on the right itself.

Stealing again from Scalia, nobody would say that a 1 cent tax on religious books would survive constitutional scrutiny as it is meant to directly infringe the first amendment. A state sales tax which collect a 6 percent tax on all consumer products, including books, and therefore religious books, is judged on an undue basis standard. But one can easily see the difference. The question is whether a general law that applies to everything nevertheless imposes an undue burden on religion.

In the abortion context these laws are directed towards the right. Waiting periods, parental consent, informed consent laws, abortion medical standards laws, bans on partial birth abortion, etc. are all laws which directly speak to abortion. The Casey Court established a standard where the state can pass these types of laws only so long as the laws are woefully ineffective in their stated purpose.

Suppose the scientific evidence showed that 90% of women exercised their free choice to carry the fetus to term after reading a required pamphlet. A court would have to conclude that it imposed an undue burden on abortion rights. If, say, only 2% of women likewise changed their mind, then the law would survive. IOW, the state needs to draft a very poorly written pamphlet lest it be struck down. So we have a standard that collapses under itself. Some judges might put that number at 10% and others at 50%. Nobody knows what an undue burden is.

[QUOTE=Bricker]
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.
[/QUOTE]

So since the waiting period is ineffective, its purpose is to hamper? If it was strongly effective, would it then be a good law? It might be, but then it would impose an undue burden.

44

If abortion is murder, then isn’t it worth using disingenuous legal tactics to reduce the incidence of it?

45

The extreme anti abortion freaks have videos of it.

46

Except that’s not what happens in practice. Abortion simply becomes less safe. I’ve already posted multiple times about how it’s not terribly difficult to collapse the abortion rate and save a lot of money by subsidizing Long Acting Reversible Contraceptives (IUD’s and implants) and accurate sex education.

47

The trouble is that that’s one opinion, not shared by all.

PETA believes that meat is murder, and they would happily use extreme legal (and even criminal) tactics to reduce the incidence.

In a system governed by law, we don’t allow rights to be trampled by minority views of this nature.

In legal terms, very certainly, abortion is not murder. Murder is a crime…and abortion is legal.

If you want to change the law, there are means by which this can be accomplished. Going around the law is not a respected tactic.

There was a San Francisco DA who tried to shut down the porn movie industry by choosing to define it as “prostitution,” because people were being paid money to have sex. The courts threw it out, and chastised the DA for his “end run around the constitution.”

Forcing abortion clinics to jump through special hoops, designed only to make their work more difficult and expensive, is exactly that kind of end run.

48

Well, I’m not trying to argue the morality of abortion here, as per the OP’s request. I addressed my question to Bricker because he’s pro-life, and it was more a question about legal tactics rather than about abortion per se. Let me see if I can restate: for people who do accept the premise that abortion is homicide, wouldn’t it be reasonable to use somewhat disingenuous legal tactics, in order to further their goals a bit?

49

There was no standard for “excessive entanglement,” “due process,” “local community standards,” and many other legal phrases, either, until they were defined or narrowed by the courts. The time to define “undue burden” may be now.

50

So let’s say we (or a legislator) did so define, because of a perception that once in a lifetime should be enough for church visits. That legislator’s justification for believing so and basing law on that belief is no more justified than your calculation that “once in a lifetime” is not enough of a burden on someone seeking an abortion. Why do you care how often someone exercises a right?

51

It would vary on how much they respect the legitimacy of the legal process.

If they value lives more than legitimacy, then, yeah, they’ll do stuff like this. Some of them will also murder abortion providers.

If they value the legitimacy of law over their personal moral beliefs, as most of us are pretty much forced to do, then, no, they would not descend to such distortions of the legal process.

What can I say? In 1860, I would probably violate the Fugitive Slave Act, because I hold that law to be more evil than an act of civil disobedience would be.

But, no, today, I would not fire-bomb an NRA meeting, even though I believe their policies are leading to tens of thousands of deaths in this country.

You take your stance where you see fit. Civil disobedience does have a role in decision-making, but so does putting civil disobedients into jail.

52

So a family member has to travel 200 miles round trip to see a medical specialist. She has to travel again a week or two later to get test results and see if treatment is working. If not she must adjust must come back after a week or two for re-evaluation.

This process is repeated every year.

Can she argue that the travel is an undue burden and thus the government must loosen the regulations on medical practitioners until a suitable speciaist is available closer to her home?

53

Are those regulations medically unnecessary, and serve no practical purpose except to make it harder for people to get medical care?

54

The primary regulations that drive such shortages are medically unnecessary, but rather wrapped up in the economics of health care. With the government setting reimbursement rates for Medicare and Medicaid at unsustainably low levels the market forces tend to reduce the number of providers.

The greater point being obvious… some health services are not available in close proximity to many people. Abortion supporters make a special pleading that distance from a provider is a special burden. Yet that same burden is encountered in other areas of health care all the time.

As to what regulations are reasonable for abortion providers, I think those regulations imposed on outpatient surgery centers where procedures of similar risk are performed would be reasonable. And regulation about equipment for emergencies is typically based on the worst care scenario, not the risk of the average patient. (ie if 95% of patient do not need general anesthesia and 5% do for a given procedure, then the regulations are based on the 5% who do)

States regulate and license health care providers in the interest of public safety. Abortion providers should not be singled out for harsher regulation, nor given a free pass.

55

I think appropriate regulations would be to look at the mounds of data available on complication rates, and implement only regulations that are actually associated with better outcomes. About a quarter of abortions are chemical, meaning nothing particularly medical is done.

3 in 10 women will have an abortion before the age of 40. This is not a rare procedure. I think it would be odd for most people to live hundreds of miles from such a common service.

56

No. Because the law is the shared creation of all society, and that approach is functionally identical to voting to convict a self-defense shooter because you don’t believe people should carry guns. It arrogates your own desires above the law.

57

OK, here’s an analogy. You live in a country whose legal code, embodied in the constitution, punishes a lot of crimes (including adultery and theft) with death. Do you just say “well, I can’t change the law, so we just have to resign ourselves to executing these people”. Or do you try to kill the (excessively broad) death penalty laws by hedging them around with various barriers, stringent regulations, and other things that eventually makes them inoperative?

58

I’m surprised the clinics closed, rather than gather and spend the money to upgrade their facilities. I was under the impression that abortion was a fairly lucrative industry for the clinics.

59

You have the wrong impression. This isn’t true, at all, and a moment’s thought (or a second’s google search) would tell you that. What other medical procedure do you access for $300 cash?

As to the “once in a lifetime” nonsense; I myself have had multiple abortions. I know a number of other women who would say the same thing, and I know an even greater number of women who’ve aborted once and would do so again if they became pregnant. It certainly isn’t that out of the ordinary. The idea that’s it’s a once in a lifetime thing is ludicrous. It’s just a way to shame women who need more than one in a lifetime; it’s transparent and stupid.

60

I am part of the movement that has seen to the latter – I’m an ACLU member – but not as a means of marginalizing the law. Instead, most of the reforms the ACLU and others have worked for have been emplaced to address specific failings in the death penalty.

The recent spate of botched executions is an example. You don’t have to accuse us of trying to force the cessation of all executions; we’re trying to force the cessation of botched executions.

The Texas Laws are not responses to actual cases of things going wrong. They’re made up contrivances, solely for the purpose of an undue burden. As noted, clinics perform dental surgery, including total anaesthesia, without “hospital admitting privileges.” Why the lack of concern for the protection of the health of dental patients? Solely because there isn’t a strong political ideology trying to deny dental care to millions of patients.