For many waking up yesterday, they must have thought that they had a real Rip Van Winkle of a snoozer for the last 50 years. Across the spectrum, legal experts were declaring the death of Roe v. Wade after the Supreme Court refused to enjoin a Texas anti-abortion law in an emergency filing. Rep. Alexandria Ocasio-Cortez announced that the Supreme Court just “overturned” Roe in the order. The mainstream coverage ranged from the outright death of Roe to its being rendered to a vegetative state. Even more reasoned analysis asked “Is this how Roe v. Wade dies?” The answer is no. This is how legal analysis dies.
Legal analysts once prized our role of transcending the political rhetoric and offering detached and honest appraisals of legal decisions and developments. However, in the age of echo journalism, legal experts are expected to drive ratings and readership with breathless, partisan takes on every story. Some of that analysis constitutes raw conspiracies theories dressed up as legal analysis like declaring that this order proves the “very real possibility in America right now that the federal courts are conspiring against us, against the rights of women, of people of color, of voters, of poor people.” Others cut to the chase and demanded that Congress immediately pack the Supreme Court with a liberal majority to guarantee results in such cases.
The trigger of this apocalyptic coverage was an unsigned, one paragraph order in Whole Woman’s Health v. Jackson. At issue is a Texas law that would effectively gut Roe v. Wade by prohibiting abortions after about six weeks of pregnancy. After Roe v. Wade and Planned Parenthood v. Casey, laws were routinely struck down if they barred abortions “viability” round 24 weeks of pregnancy. The Texas law is clearly meant to test the new majority on the Supreme Court in another attempt to overturn Roe. However, the Supreme Court is already set for such a fundamental challenge after it accepted Dobbs v. Jackson Women’s Health Organization.
The order actually addressed a serious flaw in the challenge brought by pro-choice advocates to the Texas law. The drafters of the law were creative in leaving enforcement of the law to private parties rather than state officials. It allows private individuals to bring lawsuits against anyone who either providers or “aids or abets” an unlawful abortion and allows for an award of $10,000 if successful in such a challenge.
Of course, such a lawsuit will not immediately end Roe v. Wade. It will be challenged on the very grounds cited by advocates. That includes the question of whether Texas is using private citizens to curtail a constitutional right. Those cases will also lead to judicial review. In the meantime, if any state official tries to curtail constitutionally protected rights, they can be enjoined pending any decision. Federals courts enjoin people, not laws, when there are actions that are being taken to violate the Constitution. This order concerns whether a court can enjoin the law before any final review on the merits. Any challenge to the law could be expedited on appeal.
The problem is that the challengers to the Texas law picked defendants (a state court judge and a court clerk) that do not enforce the law. Indeed, they appear virtually random. That is why five justices did not issue the emergency order. However, they expressly stated “The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue. But their application also presents complex and novel antecedent procedural questions on which they have not carried their burden.”
Even Chief Justice John Roberts who voted for an injunction with his liberal colleagues admitted that this is a serious procedural hurdle and it is unclear “whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit under Texas’s law.” One can honestly disagree with how insurmountable this issue is for the Court, but it is ridiculous to say that it was some manufactured excuse for a partisan ruling.
Nevertheless, liberal professors and commentators immediately pounced and declared that this was just a procedural trick or excuse. Many noted that this is why Amy Barrett was added to the Court. However, these same experts did not make similar objections when standing or procedural grounds were used to protect abortion or other rights. Indeed, the only case cited in the order is California v. Texas where the Court rejected a challenge to Affordable Care Act due to a lack of standing, including Barrett. That order noted that “federal courts enjoy the power to enjoin individuals tasked with enforcing laws, not the laws themselves.”
So the Court was not ruling on Roe and it was not ruling on this case, which is described as raising “serious questions regarding the constitutionality of the Texas law.” The actual ruling seemed immaterial to the coverage as people rushed to ride a wave of anger. It is not the first time that actual orders or decisions seemed immaterial to their coverage. The Washington Post’s Jennifer Rubin published legal analysis that actually got the rulings wrong in an effort to flog an anti-Trump narrative. NBC’s Chuck Todd previously misrepresented a ruling against Michigan Gov. Gretchen Whitmer as not citing a single case despite an opinion with dozens of such citations. The actual opinion was entirely immaterial to the reporting on the opinion.
The order this week was based on a fundamental barrier to emergency relief that was even recognized in dissent. What is most striking is that none of that takes away from the legitimate concerns over the future of Roe v. Wade. There was no need to inflate the meaning of the order when there is a massive threat just behind it on the docket. The Texas law is an existential threat to Roe. So is the Dobbs case now before the Court. However, the press today has little patience for nuance or delay when there is rage to feed.
Off topic. What percentage of unvaccinated Americans are dumb smokers?
These 8 States Allow Abortion Up To The Moment Of Birth
https://www.dailywire.com/news/these-8-states-allow-abortion-moment-birth-amanda-prestigiacomo
Am I the only one thinking of how this law effectively weaponizes karens/kierons, and how such power can be abused?
Thirty-six states are considering restrictions on abortion or outright bans under certain circumstances. Annual abortions are one half what they were in 1991. Here’s another Turley on the trend showing Texas is not weird but actually mainstream:
“Annual abortions are one half what they were in 1991.”
You can thank improved access to affordable and effective methods of birth control.
Mespo– it’s been awhile. In the abortion debate, proponents typically cast it as a woman’s right to “choose.” What is left out of the discussion is that there actually are two choices involved. The first choice, except in cases of rape and other rare instances, is to have unprotected sex. The second choice actually is a means by which a woman can avoid responsibility for the first choice. Unfortunately, there is no such thing as a constitutional responsibility.
honest:
Too long but no less welcome. Not constitutional responsibility to be sure but there is moral responsibility that all good law should strive to support.
Just out of curiosity of a few beers, unless the women was hauled across states line line for the purpose of prostitution & got pregnant , ie: under 18 USC, the Mann Act, why isn’t abortion strictly a State Issue only & not with the SCOTUS?
Because it involves a woman’s Constitutionally-protected right of privacy to make medical decisions involving her own body up to the age of fetal viability, when the state may regulate. Read Roe v. Wade. It answers all of these questions. The US Constitution prevails over state laws. Always has, up to now.
-HonestLawyerMostly,
Was listening to NPR yesterday on this topic.
Interesting to note unprotected sex is never mentioned.
The legally and logically flawed decision in Roe v. Wade was a boon for feminists but a disaster for woman — especially those unloved ones still in the womb. Texas is just rebalancing the scales.
Texas is just trying to re-create pre Roe when poor women couldn’t get safe abortions but women of means could.
eb
We’re making this way too complicated. The core value is to let the American people decide the abortion issue through the democratic process. Left to their own devices, the American people will come to a solution that reflects the emerging societal consensus – taking into account evolving values like the interests of the woman, the unborn child, the latest medical knowledge, and the interests of the community. The people of rural Utah may come to a different consensus than the people of midtown Manhattan. Or maybe not. But it is the people’s decision. The government serves the people, not the other way around.
Progressives are terrified – literally terrified – that the issue might be decided by the American people through the democratic process. They will do anything they can to keep that from happening. Their solution? Have the issue decided by the 5 unelected judges, enforced by the strong arm of the government. The current situation suits them and they are violently opposed to change. Ironic, no?
We’re a representative democracy in the form of a constitutional federal republic. The “democratic process” cannot simply enact unconstitutional laws. You have to amend the Constitution. The Constitution expressly gives the Supreme Court the power to settle issues of constitutionality. Don’t like it? Amend the Constitution.
“The “democratic process” cannot simply enact unconstitutional laws. You have to amend the Constitution.”
************************
Or just “amend ” the Court the way the Dims did with the Warren Court. Abortion prohibition was constitutional from 1776 until 1973. and only outlawed by one vote by one unelected judge. Let democracy rule the day not the whims of nine.
Life begins at conception.
Strip away everything else and you are left with determining when life begins. That’s what Kennedy decided. That life did not exist until sometime after the umbilical cord was severed.
Torture the language all you want but you still end up at the same place.
What I know about that debate, SCOTUS lacks direction from the constitution to form an opinion. Except for the explicitly clear Tenth Amendment.
“Life begins at conception.”
Nonsense. The unfertilized egg and sperm are alive. Conception cannot take place if the egg and sperm are not alive.
“Strip away everything else and you are left with determining when life begins. That’s what Kennedy decided.”
More nonsense. The court explicitly refused to address when life begins.
More nonsense. The court explicitly refused to address when life begins.
So why has SCOTUS struck down state laws that do legislate when life begins. You just agreed that SCOTUS has no power to make that determination, yet that’s exactly how they overturn States laws
“You just agreed that SCOTUS has no power to make that determination”
No, I did not. I said they refused to address it. Are you truly so confused that you don’t understand the difference?
SCOTUS has the power to strike down unconstitutional laws. Do you agree?
Liberals would not be terrified if it were actually decided by the people. 62% of Texans believe abortions should remain legal.
Stop spreading misinformation. Abortions are legal in the State of Texas. Under conditions prescribed by the people acting through their duly elected legislature. Not by public opinion polls, the progressive elite, or the courts. People are demanding change and their voices are being heard. And progressives are terrified.
The majority of the American people support a woman’s right to choose–but that’s not relevant to a right protected by the Constitution. There is no “emerging societal consensus” except for you people who watch Fox and other alt-right news, who keep feeding you lies about how you Republicans and Trumpsters represent the views of most Americans or that your radical views are acceptable to most Americans, which they aren’t. They’re just trying to justify the outrageous refusal of the SCOTUS to grant an injunction against a law that is clearly unconstitutional. The State of Texas cannot farm out enforcement of a law it is prohibited from enforcing because it is unconstitutional. The right to autonomy over one’s body is protected as a privacy right under the Constitution, up to the age of viability. “The people” have no say over a woman’s body until the fetus is of the age of viability.
Progressives are desperately clinging to the hope that 5 unelected judges in the Supreme Court will remain trapped in the past, substituting their judgment for the will of the American people. Natasha, your views are clear, and you can tell us what you think the American people believe, but you don’t represent their views. The people of Texas acting through the democratic process obviously feel differently and have adopted common sense restrictions on abortion. Progressives are terrified that they are losing their ability to enforce their will through the apparatus of the state. That is when they are the most dangerous.
“…A NEW INDIVIDUAL IS INITIATED.”
_____________________________
– A zygote is a human being.
– Homicide is the killing of a human being by another human being.
– Abortion is homicide; abortion is murder.
_________________________________
Fertilization
Fertilization is the fusing of the gametes, that is a sperm cell and an ovum (egg cell), to form a zygote. At this point, the zygote is genetically distinct from either of its parents.
– Wiki
_____
fertilization noun
fer·til·i·za·tion | \ ˌfər-tə-lə-ˈzā-shən
Definition of fertilization
b (2) : the process of union of two gametes whereby the somatic chromosome number is restored and the development of a new individual is initiated
– Merriam-Webster
_______________
homicide noun
ho·mi·cide | \ ˈhä-mə-ˌsīd
Definition of homicide
1 : a person who kills another
2 : a killing of one human being by another
– Merriam-Webster
See how easy that really is?
“echo journalism” …
I’m really not trying or wanting to be critical here Professor, but I can’t pretend to be blind either. Do you not see your own blog?
Show me the articles criticizing conservative misdoings from this week. None? Ok well then show me the ones from last week. Or how about the week before? Or any week since you started working for Fox news. If there is “one” then I must have missed it.
Please understand, I have zero problem with the complaints you’ve been lodging at the democrats over free speech and their newfound love for censorship, or the transgender indoctrination and brainwashing of our youth and the forced march towards condoning and even embracing it that they’re trying to push us all into.. These along with several others are all legitimate concerns, particularly the censorship that they are not only condoning but leveraging to silence any speech they don’t approve of. In fact I applaud you for it often and encourage it.
But I remember Jonathan Turley. I used to watch him on TV.
You know why? Why I watched him on TV I mean. Sure he was smart. Super smart, big fat brain smart even. But it wasn’t that. It was because he was so “balanced” and “reasonable”.
He took both sides to task regularly by focusing on the truth, and of course as any “reasonable individual” knows, the truth is usually somewhere in between. Sometimes its cut and dry.
But usually there’s fact and fiction on both sides of any division. As any reasonable individual will admit.
Which is why its so, “remarkable” to peruse your blog these days since striking your Faustian bargain with the Kings of Crapola, as it were, … to see nothing but right wing sided arguments attacking the liberals and the downright glaring omission of literally any articles discussing similar nonsense from republicans’ and conservatives.
Now no doubt the hard and right wing trolling community will declare their side free of error, and all problems stemming from the left side of the aisle. As will the left wing trolling community say in the opposite. But as I said I’m not talking to or about that sort. I’m talking about “reasonable individuals”, of whose ranks one Jonathan Turley used to frequent.
We’re not seeing him these days, he’s demonstrably absent, however apparently on official leave. I miss that guy. Wish he’d pop in once and a while. Would love to see him.
You’d’ve liked him. He was a lot like the reasonable alternative to the echo-journalism you’re writing about here today.
Turley’s commentaries comprises nothing more than balloon juice and dog slobber!
That TURLEY is long gone and never coming back.
Jonathan TURLEY is a TOOL!
Jonathan TURLEY is a PHONY!
Jonathan TURLEY cares more about MONEY even to the extent of giving up time with his so called beloved family.
MONEY IS TURLEY motivator more than food sex or love it is all about money for him!
“Jonathan TURLEY is a PHONY!”
Get right down to the core debate! ad hominem attacks. great insight, thanks
Trolls, They’re like cockroaches.
You can try spraying, but they always come crawling back.
Personhood begins at birth.
As SCOTUS already stated, “The Constitution does not define “person” in so many words. Section 1 of the Fourteenth Amendment contains three references to “person.” The first, in defining “citizens,” speaks of “persons born or naturalized in the United States.” The word also appears both in the Due Process Clause and in the Equal Protection Clause. “Person” is used in other places in the Constitution… But in nearly all these instances, the use of the word is such that it has application only post-natally. None indicates, with any assurance, that it has any possible pre-natal application.”
“parents who aborted a baby six weeks after birth”
It is literally impossible to abort a baby after birth.
“When is personhood or ensoulment?”
Those are different questions. The Constitution answers the first (personhood) and the the second (ensoulment) is not a factual matter but is instead a matter of faith.
“nine lawyers in robes should NOT be permitted to make that decision for our society.”
They are charged with interpreting the Constitution and answering the question of personhood. Society has its say via constitutional amendment. If you wish personhood to begin before birth, you will have to amend the Constitution.
As SCOTUS already stated, “The Constitution does not define “person” in so many words.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The right to resolve constitutional issues is delegated to the United States by the Constitution. The right to privacy is reserved to the people.
The overwhelming majority of Americans believe that there should be some limits on abortion. Most people recoil from the thought of a full term, healthy baby being killed the day he or she would have been born full term.
Late term abortion does not spare the woman from childbirth. She still labors and delivers the baby, only there is the extra step of killing the child through lethal injection, dilating the cervix, and then dismembering and removing the baby in pieces. It is more risky than childbirth in which the baby was allowed to live.
If most Americans think it’s wrong to kill a healthy, full term baby, then at some point, they think that baby has a right to live. That it’s immoral to kill him or her. That means the baby had value as a human being. If a full term healthy baby has value as a human being, and should have the right not to be killed, then when does that right begin?
The abortion question centers around a human rights issue. When does a human being in America gain rights? At viability? After birth? When?
The people need to decide this issue, through their state legislature. Stop kicking the can down the road, hoping that judges will take this burden off our shoulders.
We have to have the difficult conversations and figure this out for ourselves.
“When does a human being in America gain rights?”
As SCOTUS already noted, personhood and the accompanying rights begin at birth. If you want that to change, you’ll have to amend the Constitution. The debate isn’t actually about when fetuses have rights, but about when elective abortion should be up to the woman to choose and when the state (not the fetus) has the right to exclude it.
Karen, news flash: ‘Nobody’s killing full term, healthy babies’. Most abortion providers will refuse cases like that. Late term abortions only concern cases with extraordinary circumstances.
“Nobody is killing full term healthy babies”
Strange then, Democrats go full lockstep to prevent legislation for assuring something that never happens can’t happen.
The overwhelming majority of Americans support a woman’s right to choose, consistent with the holding in Roe, which is up to the age of fetal viability. Third-term abortions are so rare as to be a non-issue. There is no “issue” for “the people” to decide. Roe v. Wade is settled law. No state can usurp a right guaranteed by the Constitution, at least up to now. So, for example, Texas cannot pass a law retroactively making black people slaves, or denying Jews a right to vote. These rights are guaranteed by the U.S. Constitution and protected against state interference. And, no one is “killing” full-term infants. More of the propaganda you’ve been fed, and which you believe. It has been “figured out” already. Whoever fed you the notion that there’s still some “issue” to be decided about abortion is lying to you.
I saw an interview last evening with the Director of Whole Womens’ Health in Ft. Worth, Texas. I related what she said during that interview about patients swarming the clinic, that 70% of women don’t know for sure that they are pregnant for the first 6 weeks, that the last abortion was performed at 11:56 p.m,, and that losers like you invaded their parking lot with portable kleig lights to harass the staff and their patients at 12:00 p.m.. What I said pertained ONLY to Texas, which was the only state involved with the appeal. Try to pay attention to details. And, what I said about Turley is accurate–he’s paid to keep the disciples like you stirred up, to defend Republicans and their abuses of the rights of Americans, especially in red states, and he has to skew his writing to do so, like in this piece, defending the radical conservatives whose views don’t align with those of the majority of Americans. Another frequent topic is attacks against the WaPo, the NYT, MSNBC, and especially women of color.
Who is the “we” you purport to speak for? Like most Trumpsters and Republicans, you don’t speak for the majority of Americans. MOST Americans support a woman’s right to choose. What business is it of yours whether some woman decides to terminate her pregnancy? And, what right do you have to impose your belief that life begins at conception, which is not based on science, but religion? Everyone does not agree. What are these people “guilty of”, anyway–abiding with what is supposed to be “settled law” about a woman’s right to choose? Doesn’t it bother you that allegedly religious people like Covid-Barrett, Kavanaugh and Gorsuch lied or played word games with the facts when they told Sen. Collins that abortion was “settled law”, and then refused to enjoin this unconstitutional law, thus forcing women more than 6 weeks pregnant to either flee Texas or be forced to proceed with a pregnancy, even in cases of rape and incest?
You are the one who needs psych meds.
nastycha ; people like you support killing babies and turning their remains into medical experiments….YOU ARE THE “LOSERS”. Have a hard time swallowing that…Hope you do as it should be hard to accept you support mincing viable children with various sharp tools and vacuums because you feel you have the right to do such horror.
Phergus, you’re one of what’s known as ‘The American Taliban’; a greasy, bearded illiterate whose main concern is policing women.
Thank you Natahcha!
I think the Supreme Court overreached the legislature when it ruled on Roe v Wade.
Abortion is not a Constitutional Right. You can comb through the Constitution forwards and backwards, and never find a word about the unborn.
Abortion is the deliberate killing of a fetus. While it’s true that in modern day eugenics many fetuses with birth defects or genetic abnormalities, such as Downs Syndrome, are aborted, it’s also true that the reasons most often used for abortion of any gestation is convenience. The parents are no longer together, the mother doesn’t want to raise a child, they are too busy at work or school, etc.
Abortion is an ethical issue that should be decided by each state. In this way, abortion laws will reflect the view of the people in that state. If you don’t like your state’s abortion laws, you should be able to find a state that more closely aligns with your views. Abortion laws would also be able to evolve over time, one way or the other, or maybe even back and forth, reflecting changing times and attitudes.
People would feel like they have an actual say in this matter. Instead, it was forced upon everyone. Some people think abortion laws are too lenient, and others that they’re too strict. Everyone fights with everyone.
If abortion laws were able to naturally respond to the will of the people, then this issue might be less contentious.
Karen: The law on abortion is settled, and is based on the Constitutionally-protected right of privacy of the individual–the Fourth Amendment. Up to the age of fetal viability, it is a woman’s right to decide whether to terminate a pregnancy. After the age of viability, the state may have an interest in protecting a fetus. No one is “forcing” anything on you–whether some woman gets an abortion is none of your business up to the age of fetal viability, and you really can’t make any rational argument as to why you should have a voice over a woman’s decision whether to terminate a pregnancy. What is your stake in someone else’s pregnancy, and why should it prevail over the woman’s right to determine her own destiny? And, individual states cannot curtail a right guaranteed by the U.S. Constitution. It’s not a matter of “ethics”, either–everyone does not agree that life begins at conception. In fact, requiring a woman to live according to your beliefs is forcing your religion on them, which is unconstitutional.
You speak of the “will of the people”– well, you lose again because most Americans support a woman’s right to choose. You would really do well to actually read Roe v. Wade.
Natasha, if you look at people’s views, you’ll find a huge amount of variation in what you describe as “most Americans support a woman’s right to choose.” Most people think abortion should sometimes be legal and sometimes illegal, and different people would set the legal-versus-illegal limits in different places.
Most Americans agree with the holding in Roe: that up to the age of fetal viability, a woman has the right to decide for herself about her own body. The issue is settled law. At least, that’s what Gorsuch, Kavanaugh and Covid-Barrett told members of Congress when they were nominated. Stupid Susie Collins of Maine gave a 45-minute impassioned speech defending Kavanaugh and Gorsuch, exclaiming that they both considered abortion rights to be settled law. Of course, she was up for re-election at the time in a tight race. They rolled her like a drunken sailor. And, none of you Republican/Trumpsters seems bothered about 3 supposedly-religious candidates for the SCOTUS lying or playing word games just to get their asses onto the SCOTUS.
The “law” on abortion is only “settled” until SCOTUS decides to overturn its precedent. Not like it ain’t happened before.
As if Natch were of child bearing years and has had any success in raising children. Pity natural selection hasn’t rid us of such aberrations. It’s always the same motherhood reputing womyn claiming to be the moral guardians of civilization while denigrating their greatest gift – to bear life. Their ideas are like their uteruses: dried up and infecund.
And, by your writing and ad hominem attacks, you prove just what kind of person you are–you can’t even offer any relevant response without insulting someone you don’t even know. This is the stuff of Fox News, but it was started by Trump, your hero, who insulted anyone he couldn’t bully.
“You can comb through the Constitution forwards and backwards, and never find a word about the unborn.”
9th Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Constitution is itself explicit that not all rights held by people are enumerated.
Do you believe that you have any privacy rights? “Privacy” is not mentioned in the Constitution either.
“Abortion is an ethical issue that should be decided by each state.”
Do you also think that privacy is an ethical issue that should be wholly decided by each state, or do you believe that there are some unconstitutional restrictions on privacy that states cannot legally choose? States can already choose some things with respect to abortion, but it is not wholly their choice, because of the rights that are retained by the people.
“Some people think abortion laws are too lenient, and others that they’re too strict.”
What you propose is not going to change that. States have all sorts of laws that some people think are too lenient and others think are too strict.
KAREN WRITES:
“If abortion laws were able to naturally respond to the will of the people, then this issue might be less contentious”.
…………………………………………………..
Karen in all the years since Roe Vs Wade was passed, the percentage of Americans who want safe access to abortion has remained amazingly constant at about 55%. Less than 20% of all Americans want total bans with ‘no exceptions”.
“You can comb through the Constitution forwards and backwards, and never find a word about the unborn.”
Nor can you find a word about dating, blogging, or laughing.
That you are looking for such a word betrays a woeful ignorance about the nature and purpose of the U.S. Constitution.
“. . . abortion laws will reflect the view of the people in that state.”
So the law should reflect the will of the majority.
That is not the United States.
As classical liberals, we all must agree that all “persons” should be protected from being killed. Even the Constitution says that no person shall be deprived of life without due process of law. The question is: At what point does a fetus achieve “personhood”? If you are religious, at what point does God bless a fetus with a soul. These philosophical/religious questions of personhood and/or ensoulment are very weighty and have never been adequately address by pro-choice activists that end their analysis with, “it’s my body, my choice.” It is also easy to say, “it is a matter of personal conscience, and if you don’t want an abortion, don’t have one.” However, at some point the baby achieves personhood and is protected by the laws of the state, regardless of the convictions of the parents. For example, parents who aborted a baby six weeks after birth would, of course, be brought up on murder charges. So, we have to draw the line somewhere — conception, heartbeat, viability, birth, when the child finally master integral calculus. When is personhood or ensoulment? I don’t know the answer to that question. What I do know, however, is that nine lawyers in robes should NOT be permitted to make that decision for our society.
Roe settled this question: the state has an interest in protecting a fetus when it has achieved the age of viability. Prior to the age of viability, it is a matter of privacy between the woman and her doctor. Read the opinion.
The Dred Scott decision decided the question of how far slave owners’ rights over their slaves extended by saying that slaves had no rights. Just like fetuses today.
Roe is no longer the ruling caselaw. Planned Parenthood v. Casey is. Roe analyzed rights by trimester, whereas Casey analyzes them by viability.
Viability is a sliding scale that changes with circumstances and medical advancements. Does a fetus today acquire personhood earlier than a fetus in the 60’s just because a new ventilator was invented? That being said, I might agree with you that “viability” or some other similar definition might be the right place to draw that “personhood” line. That is something we can discuss, debate and ultimately vote on. However, I disagree that nine lawyers in robes had the right to make that weighty decision. They are not philosopher kings or oracles of God. Also, if the question of “personhood” is a Constitutional question, shouldn’t it be interpreted pursuant to the framers’ intent, because I’m pretty sure they frowned upon abortion? Or is this one of those “living” concepts that can change with the times according to the whims of the nine robed lawyers? If so, the whim of the current nine lawyers might not be to your liking. I guess your response will be that the concept was living and breathing, allowing it to change from the framers intent in 1973, but now that it changed to where you like it, it is frozen in amber and no longer subject to change due to precedent. So, much for a living Constitution, right?
“Does a fetus today acquire personhood earlier than a fetus in the 60’s just because a new ventilator was invented?”
Personhood begins at birth, whenever that occurs. Some premature infants are now able to kept alive because of medical advancements, but that doesn’t change when they acquire personhood, because the existence of the ventilators doesn’t change when they’re born.
Viability is about the boundary in the tension of rights between the woman’s right to an abortion and the state’s right to ban abortion. It’s not the boundary for personhood.
“I’m pretty sure they frowned upon abortion”
No, as SCOTUS noted in Roe, “It is undisputed that, at common law, abortion performed before “quickening” — the first recognizable movement of the fetus in utero, appearing usually from the 16th to the 18th week of pregnancy — was not an indictable offense. … That their reliance on Coke on this aspect of the law was uncritical and, apparently in all the reported cases, dictum (due probably to the paucity of common law prosecutions for post-quickening abortion), makes it now appear doubtful that abortion was ever firmly established as a common law crime even with respect to the destruction of a quick fetus.”
“Viability is about the boundary in the tension of rights between the woman’s right to an abortion and the state’s right to ban abortion. It’s not the boundary for personhood.”
When is personhood?
Who decides?
Does location determine personhood?
Again: personhood begins at birth.
“at birth.”
What makes the baby anymore a person at birth then 1 second before?
The Constitution. I suggest that you read what it says about persons. If you need tutoring beyond that, hire a tutor.
I’m a graduate of Yale Law School, and I am unaware of any passage in the Constitution that explains what “person” means. The Supreme Court did interpret “person” in the Fourteenth Amendment not to include fetuses, but that’s just the Supreme Court, which since then has already modified Roe v. Wade in Casey.
Lysias,
You must be new here. I would not advertise the fact that you are a graduate of Yale because the Trumpists here dismiss graduates of the Ivy Leagues as liberal elites. A higher education is the kiss of death for Trumpists who pride themselves as low information voters. A word to the wise.
No, Jeff, Trump supporters dismiss people like you who have TDS. Maybe I should also add Turley Derangement Syndrome based on Jeff’s continuous repetition of ‘Turley complaints.’
SM
“The Constitution does not define “person” in so many words. Section 1 of the Fourteenth Amendment contains three references to “person.” The first, in defining “citizens,” speaks of “persons born or naturalized in the United States.” The word also appears both in the Due Process Clause and in the Equal Protection Clause. “Person” is used in other places in the Constitution… But in nearly all these instances, the use of the word is such that it has application only post-natally. None indicates, with any assurance, that it has any possible pre-natal application.”
Do you disagree?
This was meant as a response but became decoupled:
https://jonathanturley.org/2021/09/02/supreme-court-rejects-injunction-of-texas-abortion-law-media-erupts-with-roe-obituaries/comment-page-2/#comment-2119024
A woman and man have four choices: abstention, prevention, adoption, and compassion. And six weeks. Baby steps.
So, women and men have four choices: abstention, prevention, adoption, and conception… and six weeks. A baby step to a more rational and coherent society.
What’s going on is that the Texas legislature is avoiding the usual kabuki theater: Pass a law they know the federal circuit court will strike down, then shrug and say “we tried.”
From the shrieking and hollering, it seems that Texas may have come across a more productive procedure: Keep the cases in Texas state courts rather than in lower federal courts, with a right of appeal to the U. S. Supreme Court like in all other state-court cases.
Turley, the manure Fox pays you to peddle is beneath what you hold yourself out to be. First of all, the ruling was 5-4, so your spin on the correctness of the ruling because of allegedly technical flaws of the appeal is disingenuous–the justices who weren’t appointed by Republicans, (not including Chief Justice Roberts who joined the dissent), would have granted injunctive relief–but because you are so well-paid by Fox, you know better than they do. Secondly, when a law like the Texas one is clearly unconstitutional, the SCOTUS is supposed to enjoin the law until the merits can be addressed, so that the status quo is maintained, ESPECIALLY when a Constitutional right is implicated. Here, more than one Constitutional right is implicated–that of the woman seeking an abortion, but, as others have noted, the right to freedom of speech and freedom of assembly. Senators like gullible Susie Collins of Maine, actually believed Gorsuch, Kavanaugh and Covid-Barrett when they promised that abortion rights are “settled law”. Then, there’s the mysterious shadow docket, which you’ve indicated you oppose, and that’s how this little turd opinion came about.
Never forget that 3 of the judges there were appointed by an invalid, fake twice-impeached POTUS who cheated his way into office despite losing the popular vote, AND that the main qualification for their nomination was their anti-abortion bias, all as vetted in advance by the Federalist Society. McConnell makes up the rules as he goes and violated the alleged prohibition against nominating SCOTUS justices when a presidential election is imminent. That rule only applies when a Democrat is in the White House.
Then, there’s the sneaky little way Texas is trying to prevent women from exercising their Constitutionally-protected right to an abortion: they KNOW Texas law enforcement or governmental authorities cannot prevent women from getting an abortion, so they incentivize anti-abortion zealots to do it instead–anyone is allowed to bring suit for damages up to $10,000 against anyone assisting or counseling a woman about getting an abortion. This could conceivably include the Uber driver who provides transportation to a clinic. someone who pays for a woman to travel out of state, any doctor, nurse or counselor involved in assisting a woman getting an abortion. It doesn’t matter that the whistleblower has no stake in the matter or wouldn’t suffer any actual damages. In fact, how could anyone other than a woman who doesn’t want to be pregnant have any “stake in the outcome” of her abortion? “Stake in the outcome” is the long-standing test for standing. As you’ve noted, this is a test case–no exceptions for rape or incest, either.
Last evening, women were swarming abortion clinics in Texas. At one in Fort Worth, the last abortion was performed at 11:56 p.m.. The anti-abortion zealots were in the parking lot of the facility, and at midnight, they turned on portable kleig lights and yelled at the clinic staff and their patients. Women are being turned away today because of this law, designed to drive clinics and health care providers out of business with the threat of litigation. In fact, according to Whole Womens’ Health, about 70% of women don’t know for sure that they are pregnant in the first 6 weeks–irregular menstrual periods explains this. And, all Turley has to comment about is the alleged technical flaws in those who brought suit.
Once again, you go after Jennifer Rubin–she must be a specific target of Fox.
Nastycha…we get it … you adore killing babies , making them into bits and are almost certainly down with repurposing their remains for medical experiments. That’s the bottom line with your pious crusade…”killing in the name of “….what name ..selfishness , hubris …or just because you can get away with it ?.
No, you don’t get it. Do you really think that the government should have a voice in an individual’s reproductive decisions? Since you apparently do, then consider this: if the government can ban abortions, it could also compel them. Don’t say that couldn’t ever happen. China used to compel abortions as a means of population control. Here in the U.S., there used to be eugenics laws which enabled judges to order “undesirable” people to be sterilized against their will. Undesirability included things like being a slow learner–i.e. “feebleminded”, being considered an alcoholic, being lazy–i.e. chronically unemployed, promiscuity (but only for women–it was OK for men), having a criminal record and other subjective reasons. The vasectomy procedure was invented in an Indiana prison–men convicted of felonies were sterilized without their consent.
The overarching issue is individual autonomy over reproduction, a right protected by the Constitution, until other rights are impacted, which is why Roe held that up to the age of fetal viability, a woman has the right to make medical decisions over her own destiny. Do you really want the government deciding these things for its citizens?
+100
eb
There is a glaring flaw in the Texas law. A state judge may not be able to preside over any lawsuits brought forth by private citizens suing abortion providers. State judges are state officers. They are expressly prohibited from enforcing the law.
You support the “rights” of *guilty* abortionists, yet you want us to believe you care deeply about the rights of people falsely accused of abortion – because that’s the situation in which loser-pays would come in.
You couldn’t care less about the rights of alleged abortionists unless they were actually guilty, where loser-pays wouldn’t be a concern for you and your ilk.
Florida Lawmakers Pledge to Pass Abortion Ban Following Texas’ Model
https://www.motherjones.com/politics/2021/09/florida-lawmakers-pledge-to-pass-abortion-ban-following-texas-model/
There is no mystery in sex and conception. Denying human evolution, denying human rights, manufacturing civil rights under a Twilight Amendment, establishing a religion that denies women and men’s dignity and agency, and reduces human life to a negotiable asset, has limited appeal. Elective abortion for causes other than self-defense is unconstitutional and stands against human and civil rights. That said, six weeks is a baby step, in the right direction. The goal is not retributive change, but equal and humane treatment throughout our life.