# Well that didn't take long. SD Senate votes 23-12 to ban nearly all abortions. **URL:** \ **Category:** Great Debates\ **Created:** [February 23, 2006, 12:47am UTC](https://boards.straightdope.com/t/well-that-didnt-take-long-sd-senate-votes-23-12-to-ban-nearly-all-abortions/345712 "2006-02-23T00:47:05Z")\ **Posts on this page:** 20\ **Page:** 5
**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:** [February 24, 2006, 12:48am UTC](https://boards.straightdope.com/t/well-that-didnt-take-long-sd-senate-votes-23-12-to-ban-nearly-all-abortions/345712/81 "2006-02-24T00:48:06Z")
> [@Gadarene](#): > > **John:** > > States can flat out _not_ pass laws that violate the federal constitution. Or, for that matter, laws that violate the Supreme Court’s interpretation of what the federal constitution says. See, for example, [here](http://en.wikipedia.org/wiki/Martin_v._Hunter's_Lessee). The Supremacy Clause ain’t just a bunch of words. Yes, but I interpreted the question as implying that entire constitution applied to the states. And **Miller** ’s subsequent post indicates I was correct in that assumption (although obviously not to the specific example \*\*Bricker \*\*used.) But I certainly didn’t mean that states can ignore the constitution where it explicitly puts limits on the states (or when the SCOTUS has ruled that the constitution applies to the states). Sorry if that was confusing. **Miller** : If you read the wiki link, it gives a good outline of how the various amendments have been applied to the states. And yes, lots of people would call that judicial activism. ---
**Author:** ![Guinastasia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/guinastasia/32/5751_2.png) [@Guinastasia](https://boards.straightdope.com/u/Guinastasia)\ **Post date:** [February 24, 2006, 12:56am UTC](https://boards.straightdope.com/t/well-that-didnt-take-long-sd-senate-votes-23-12-to-ban-nearly-all-abortions/345712/82 "2006-02-24T00:56:32Z")
Question-since an ectopic pregnancy is one that attaches outside the uterus, how would a hysterectomy do any good? ---
**Author:** ![alaricthegoth](https://avatars.discourse-cdn.com/v4/letter/a/4bbf92/32.png) [@alaricthegoth](https://boards.straightdope.com/u/alaricthegoth)\ **Post date:** [February 24, 2006, 12:57am UTC](https://boards.straightdope.com/t/well-that-didnt-take-long-sd-senate-votes-23-12-to-ban-nearly-all-abortions/345712/83 "2006-02-24T00:57:05Z")
> [@John Mace](#): > > Yes, but I interpreted the question as implying that entire constitution applied to the states. And **Miller** ’s subsequent post indicates I was correct in that assumption (although obviously not to the specific example \*\*Bricker \*\*used.) > > But I certainly didn’t mean that states can ignore the constitution where it explicitly puts limits on the states (or when the SCOTUS has ruled that the constitution applies to the states). Sorry if that was confusing. > > **Miller** : If you read the wiki link, it gives a good outline of how the various amendments have been applied to the states. And yes, lots of people would call that judicial activism. hijack/ yo, mace: > **[John Mace:Put your money where your big mouth is](https://boards.straightdope.com/sdmb/showthread.php?t=355395)** > > I was challenged by John Mace to a wager: “PAYBACK’S A BITCH” says grief-crazed prez–blows up wrong house, women, kids Views: 4,037 Posted By John Mace Wanna bet? I made a good faith effort to engage. ... my interpretation:day of bombing + 135;musharraf no longer incontrol of pakistan for any reason other than death by natural causes./hijack. ---
**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:** [February 24, 2006, 1:05am UTC](https://boards.straightdope.com/t/well-that-didnt-take-long-sd-senate-votes-23-12-to-ban-nearly-all-abortions/345712/84 "2006-02-24T01:05:39Z")
> [@alaricthegoth](#): > > hijack/ > > yo, mace: > > [http://boards.straightdope.com/sdmb/showthread.php?t=355395](http://boards.straightdope.com/sdmb/showthread.php?t=355395) > > my interpretation:day of bombing + 135;musharraf no longer incontrol of pakistan for any reason other than death by natural causes./hijack. Get thee to the Pit!! 🙂 ---
**Author:** ![Queen\_Bruin](https://avatars.discourse-cdn.com/v4/letter/q/e274bd/32.png) [@Queen\_Bruin](https://boards.straightdope.com/u/Queen_Bruin)\ **Post date:** [February 24, 2006, 1:21am UTC](https://boards.straightdope.com/t/well-that-didnt-take-long-sd-senate-votes-23-12-to-ban-nearly-all-abortions/345712/85 "2006-02-24T01:21:18Z")
> [@Guinastasia](#): > > Question-since an ectopic pregnancy is one that attaches outside the uterus, how would a hysterectomy do any good? I think a salpingectomy is the more common surgical solution (and I think many are also treated with medication), but “hysterectomy” is a more familiar term to most people. WAG, a hysterectomy may also be needed in severe cases. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 24, 2006, 1:24am UTC](https://boards.straightdope.com/t/well-that-didnt-take-long-sd-senate-votes-23-12-to-ban-nearly-all-abortions/345712/86 "2006-02-24T01:24:07Z")
> [@Miller](#): > > Yes. I didn’t see anything in there that answered my question. States may not pass a law forbidding expression of, say, a political viewpoint, right? That would be violating the 1st ammendment. They can pass a law forbidding the shouting of fire in a crowded theater, even though the Constitution makes no room for such allowances. How is that different from the judicial activisim you so bitterly oppose? Did you see that the discussion that led up to my post was not a commentary on how things actually are right now, but rather how things might work in a purely textual-analysis world? Your question appears to be asking me what states can do now. Or are you asking what states could do in a pure textualism world? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 24, 2006, 1:25am UTC](https://boards.straightdope.com/t/well-that-didnt-take-long-sd-senate-votes-23-12-to-ban-nearly-all-abortions/345712/87 "2006-02-24T01:25:50Z")
> [@Gadarene](#): > > **Bricker:** > Perhaps it _should_ be answered in the negative, but it unquestionably _is_ answered in the affirmative. Do you disagree? No, of course not. I’m merely pointing out that this is a state of affairs not carved in granite. It’s merely a matter of putting the question to a Court that has at least five members that agree with me. ---
**Author:** ![Queen\_Bruin](https://avatars.discourse-cdn.com/v4/letter/q/e274bd/32.png) [@Queen\_Bruin](https://boards.straightdope.com/u/Queen_Bruin)\ **Post date:** [February 24, 2006, 1:26am UTC](https://boards.straightdope.com/t/well-that-didnt-take-long-sd-senate-votes-23-12-to-ban-nearly-all-abortions/345712/88 "2006-02-24T01:26:35Z")
> [@The Sausage Creature](#): > > WAG, a hysterectomy may also be needed in severe cases. Yup, from [here](http://www.obgyn.net/displayarticle.asp?page=/english/pubs/features/mcgill-student-projects/ectopic-pregnancy). > [@](#): > > Most cervical pregnancies occur after a sharp uterine curettage. More than half of the women with a cervical pregnancy need treatment by hysterectomy. Even if hysterectomy is not performed, the prognosis for future fertility is poor. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 24, 2006, 1:35am UTC](https://boards.straightdope.com/t/well-that-didnt-take-long-sd-senate-votes-23-12-to-ban-nearly-all-abortions/345712/89 "2006-02-24T01:35:10Z")
> [@Der Trihs](#): > > Because if you do that, you might as well argue that a tumor has rights, or a diseased liver that needs to be replaced. You’re also talking about banning organ transplants, since you are effective claiming that a brain dead body isn’t dead. The claim that a 2 week ( for example ) fetus is a person leads to that kind of craziness because it’s a crazy claim to make. The tumor won’t grow into a person. A two-week old fetus will. That’s the distinction. > [@](#): > > Of course it’s a Constitutional level issue. The anti-abortion people are effectively claiming that the State owns/should own women’s bodies, and that any woman who gets pregnant is reduced to the status of an object; an incubator. But where does the Constitution forbid that? I mean, since _Roe_, that’s what the Constitution was held to mean, but that decision was not based on sound principles of legal reasoning. And as a result, it can be changed by five Supreme Court justices. If the Constitution really SAID what you claim, then it would take 2/3s of Congress and 3/4ths of the states to make a change. That’s the difference. It’s a Constitutional issue only by dint of the desire of the Roe court to write social policy. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [February 24, 2006, 1:35am UTC](https://boards.straightdope.com/t/well-that-didnt-take-long-sd-senate-votes-23-12-to-ban-nearly-all-abortions/345712/90 "2006-02-24T01:35:39Z")
> [@Bricker](#): > > Did you see that the discussion that led up to my post was not a commentary on how things actually are right now, but rather how things might work in a purely textual-analysis world? > > Your question appears to be asking me what states can do now. Or are you asking what states could do in a pure textualism world? Jumping Jehova’s Witnesses, this is not that complicated. Do you, or don’t you think that States can pass laws banning things like saying fire in a theatre. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 24, 2006, 1:36am UTC](https://boards.straightdope.com/t/well-that-didnt-take-long-sd-senate-votes-23-12-to-ban-nearly-all-abortions/345712/91 "2006-02-24T01:36:50Z")
> [@treis](#): > > Jumping Jehova’s Witnesses, this is not that complicated. Do you, or don’t you think that States can pass laws banning things like saying fire in a theatre. Right now? Of course not. ---
**Author:** ![Guinastasia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/guinastasia/32/5751_2.png) [@Guinastasia](https://boards.straightdope.com/u/Guinastasia)\ **Post date:** [February 24, 2006, 1:38am UTC](https://boards.straightdope.com/t/well-that-didnt-take-long-sd-senate-votes-23-12-to-ban-nearly-all-abortions/345712/92 "2006-02-24T01:38:43Z")
> [@The Sausage Creature](#): > > I think a salpingectomy is the more common surgical solution (and I think many are also treated with medication), but “hysterectomy” is a more familiar term to most people. WAG, a hysterectomy may also be needed in severe cases. Thank you. ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [February 24, 2006, 2:09am UTC](https://boards.straightdope.com/t/well-that-didnt-take-long-sd-senate-votes-23-12-to-ban-nearly-all-abortions/345712/93 "2006-02-24T02:09:04Z")
> [@Bricker](#): > > Did you see that the discussion that led up to my post was not a commentary on how things actually are right now, but rather how things might work in a purely textual-analysis world? > > Your question appears to be asking me what states can do now. Or are you asking what states could do in a pure textualism world? Man, I didn’t think my question was that hard to understand. Let’s try it as a series of simple yes or no questions, followed by one essay question: 1. Right now, in the real world, if a state made a law limiting political speech, that would be struck down as unconstitutional. Is this a correct understanding of current law? 2. Right now, in the real world, if a state made a law making it illegal to shout “fire” in a crowded theater, that would _not_ be considered unconstitutional. Is this a correct understanding of the current law? 3. Nowhere in the Constitution or any of its ammendments is there any explicit allowance for the above exception to freedom of speech. Is this correct? 4. Now, the essay question: how is the above _not_ judicial activism, when _Roe v. Wade_ _is_? On preview: > [@Bricker](#): > > > [@treis](#): > > > > Jumping Jehova’s Witnesses, this is not that complicated. Do you, or don’t you think that States can pass laws banning things like saying fire in a theatre. > > Right now? Of course not. Why do I suddenly feel like I’m in a scene from the movie _Clue_? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 24, 2006, 2:20am UTC](https://boards.straightdope.com/t/well-that-didnt-take-long-sd-senate-votes-23-12-to-ban-nearly-all-abortions/345712/94 "2006-02-24T02:20:53Z")
> [@Miller](#): > > Man, I didn’t think my question was that hard to understand. Let’s try it as a series of simple yes or no questions, followed by one essay question: > > 1. Right now, in the real world, if a state made a law limiting political speech, that would be struck down as unconstitutional. Is this a correct understanding of current law? Yes. > [@](#): > > 1. Right now, in the real world, if a state made a law making it illegal to shout “fire” in a crowded theater, that would _not_ be considered unconstitutional. Is this a correct understanding of the current law? Yes. > [@](#): > > 1. Nowhere in the Constitution or any of its ammendments is there any explicit allowance for the above exception to freedom of speech. Is this correct? Yes, but… you assume that “freedom of speech” means “absolutely no penalties attached to any speech”. > [@](#): > > 1. Now, the essay question: how is the above _not_ judicial activism, when _Roe v. Wade_ _is_? Because the only thing that’s going on is interpreting the text: “freedom of speech” and deciding what those words mean. Roe goes much further simply decidign what words in the Constitution mean. Roe takes as a given that there is a right of privacy, and then decides what THAT means. The right to privacy was created in turn by an earlier case, which in turn drew on an earlier case. It’s that “totem pole” approach I’m questioning. When you interpret the words, and assign them a reasonable meaning, that’s not judicial activism. When you build upon the words to create your own words, interpret THEM to add still more words, and then interpret THEM, then you’re walking down the judicial activism road. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [February 24, 2006, 2:37am UTC](https://boards.straightdope.com/t/well-that-didnt-take-long-sd-senate-votes-23-12-to-ban-nearly-all-abortions/345712/95 "2006-02-24T02:37:15Z")
> [@Bricker](#): > > Because the only thing that’s going on is interpreting the text: “freedom of speech” and deciding what those words mean. Roe goes much further simply decidign what words in the Constitution mean. Roe takes as a given that there is a right of privacy, and then decides what THAT means. The right to privacy was created in turn by an earlier case, which in turn drew on an earlier case. It’s that “totem pole” approach I’m questioning. That seems to be a petty concern, the so called right to privacy is derived directly from the liberty clause in the 14th amendment. Abortion is simply included in that catch-all phrase. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [February 24, 2006, 2:41am UTC](https://boards.straightdope.com/t/well-that-didnt-take-long-sd-senate-votes-23-12-to-ban-nearly-all-abortions/345712/96 "2006-02-24T02:41:37Z")
> [@Bricker](#): > > Because the only thing that’s going on is interpreting the text: “freedom of speech” and deciding what those words mean. Roe goes much further simply decidign what words in the Constitution mean. Roe takes as a given that there is a right of privacy, and then decides what THAT means. The right to privacy was created in turn by an earlier case, which in turn drew on an earlier case. It’s that “totem pole” approach I’m questioning. Although I seem to be talking only to myself, I’ll try again. Using your analogy, is there anyplace on the totem pole that you accept, or is the whole totem pole rotten? Legislatures, in your view, are constitutionally permitted to require mandatory sterilization, or to make conception illegal. There is no right to personal autonomy in your Constitution? To follow **Miller’s** step-by-step lead, do you agree with judicial review? Do **you believe** the judiciary has the power to find acts of the legislature unconstitutional? Do you believe that the judiciary is the final arbiter of the Constitution? Do you believe the 9th Amendment recognizes that there are rights that are not enumerated in the Constitution? Do you believe that, despite judicial review, the judiciary is foreclosed from interpreting what those unenumerated rights are? Show your work. ---
**Author:** ![Gadarene](https://avatars.discourse-cdn.com/v4/letter/g/e47c2d/32.png) [@Gadarene](https://boards.straightdope.com/u/Gadarene)\ **Post date:** [February 24, 2006, 2:51am UTC](https://boards.straightdope.com/t/well-that-didnt-take-long-sd-senate-votes-23-12-to-ban-nearly-all-abortions/345712/97 "2006-02-24T02:51:56Z")
> [@](#): > > When you interpret the words, and assign them a reasonable meaning, that’s not judicial activism. What about when you interpet the words and assign them a reasonable meaning, and someone else interprets the words and assigns them a reasonable meaning, and the two reasonable meanings lead to contradictory outcomes? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 24, 2006, 3:05pm UTC](https://boards.straightdope.com/t/well-that-didnt-take-long-sd-senate-votes-23-12-to-ban-nearly-all-abortions/345712/98 "2006-02-24T15:05:36Z")
> [@Gadarene](#): > > What about when you interpet the words and assign them a reasonable meaning, and someone else interprets the words and assigns them a reasonable meaning, and the two reasonable meanings lead to contradictory outcomes? That’s fine. That’s why we need judges, and not automatons. I don’t think the meaning of “unreasonable search” should include infrared monitoring. To me, it makes perfect sense that your house is radiating infrared for anyone to see; looking at it, even with special equipment, is not unreasonable. The Kyllo court disagrees with me. They think that set of facts IS an unreasonable search. Fair enough. Someone has to make the call. They did. As long as their METHOD is, “Read the text. Assign a reasonable meaning to the text, not overly strict nor overly expansive, but simply REASONABLE,” then I will not be heard to complain. Much. (That is, I may grouse about a decision I wish would go the other way; I won’t argue that the method used was suspect.) ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 24, 2006, 3:09pm UTC](https://boards.straightdope.com/t/well-that-didnt-take-long-sd-senate-votes-23-12-to-ban-nearly-all-abortions/345712/99 "2006-02-24T15:09:44Z")
> [@treis](#): > > That seems to be a petty concern, the so called right to privacy is derived directly from the liberty clause in the 14th amendment. Abortion is simply included in that catch-all phrase. But it’s that totem-pole approach I object to. Deriving a whole, expansive right - “privacy” from the vague phrasing in the Fourteenth Amendment is questionable enough. Then deciding that “privacy” AS THE CONSTITUTION REQUIRES means no government interference in the first trimester, but permits government regulation in the third trimester, is simply unsupported. If you took fifty people, all unfamilar with the history of Roe and abortion in this country, and said: “Read the text of the Fourteenth Amendment,” – how many of the fifty would reach the same conclusion that Roe did? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 24, 2006, 3:19pm UTC](https://boards.straightdope.com/t/well-that-didnt-take-long-sd-senate-votes-23-12-to-ban-nearly-all-abortions/345712/100 "2006-02-24T15:19:07Z")
> [@Hamlet](#): > > Although I seem to be talking only to myself, I’ll try again. Using your analogy, is there anyplace on the totem pole that you accept, or is the whole totem pole rotten? The base of the totem pole is soft wood. The higher you go, the more termites you find. At the top is _Lawrence_, filled with pockets of air. > [@](#): > > Legislatures, in your view, are constitutionally permitted to require mandatory sterilization, or to make conception illegal. There is no right to personal autonomy in your Constitution? There is not. There should be. And if the courts interpreted it correctly, then the need for actual amendments guaranteeing those rights would be clear, and we’d have them written in black letters in the Constitution by this time. > [@](#): > > To follow **Miller’s** step-by-step lead, do you agree with judicial review? Do **you believe** the judiciary has the power to find acts of the legislature unconstitutional? Do you believe that the judiciary is the final arbiter of the Constitution? Yes, and yes. [/quote] Do you believe the 9th Amendment recognizes that there are rights that are not enumerated in the Constitution? [/quote] Yes. > [@](#): > > Do you believe that, despite judicial review, the judiciary is foreclosed from interpreting what those unenumerated rights are? Show your work. The problem is that there is no principled boundry to simply saying, “The Ninth Amendment covers this right!” I say the Ninth Amendment covers the rights of unborn babies to live, the rights of felons to vote, and the rights of me to get oil rubdowns from Helen Hunt. Prove me wrong! The Ninth Amendment cannot be interpreted in that way; the result would be that it means whatever the current crop of judges want it to mean. You cannot interpret a law into an absurdity; we assume the drafters never intend an absurd result, or to give the judicial branch unfettered interpretive powers. What the Ninth Amendment must therefore protect is the class of rights necessary to directly implement the rights mentioned in the Constitution: you have a right to a free press, but the government has a right to prevent you from buying paper and ink. No – even though the right to buy paper and ink is not explicitly mentioned, the right to a free press implies it. But that’s as far as it goes. The farther we step away from the ennumerated rights, the skaier ground we’re on, judicially, and the stronger the need for a legislative, not a judicial, solution. [Previous page](https://boards.straightdope.com/t/well-that-didnt-take-long-sd-senate-votes-23-12-to-ban-nearly-all-abortions/345712.md?page=4) [Next page](https://boards.straightdope.com/t/well-that-didnt-take-long-sd-senate-votes-23-12-to-ban-nearly-all-abortions/345712.md?page=6)