Roe Roulette: Biden Administration Takes a Gamble with Emergency Appeal of Texas Abortion Law

Below is my column in the Hill on today’s argument in Whole Woman’s Health v. Jackson and United States v. Texas on the request for an emergency injunction in Texas to block the state’s controversial abortion law. The merits of the law are not at issue in the questions presented today but the decision to push for an injunction comes with some risks for the Biden Administration. [Update: Justice Brett Kavanaugh suggested in oral argument that he might be open to changing existing precedent to allow for injunctions of court clerks to block the Texas law].

Here is the column:

“Is there a way to win?” Those words from actress Jane Greer, the ultimate femme fatale in the 1947 film-noir classic, “Out of the Past,” could well have been written above the caption of the Biden administration’s brief this week before the Supreme Court, seeking to enjoin the Texas abortion law. The administration is returning to ask for an injunction from a court that just voted against such an injunction as legally unfounded.

Asking the same justices the same question would not seem a way to win. Indeed, as actor Robert Mitchum dryly responded to Greer in the film, this may not be the way to win, but at least “there’s a way to lose more slowly.”

For pro-choice advocates, the pending case of Dobbs v. Jackson Women’s Health Organization, out of Mississippi, is a more ominous threat to abortion rights with a newly constituted conservative majority on the court — including Justice Amy Coney Barrett who, as an academic before joining the court, was highly critical of Roe v. Wade. The Dobbs case is due to be argued in December.

However, the Court has been thrown early into the arena by the Biden administration’s emergency demand to seek an injunction of the Texas law, which imposes an even more stringent limit on abortion than the Mississippi law at issue in Dobbs.

As previously discussed, the attempted intervention of the Justice Department in the Texas case was not just legally unnecessary but unwise. I share the view that this law is unconstitutional, and I have long favored more liberal standing rules, but the Biden administration is risking a great deal to enjoin a law that was already declared unconstitutional in Texas. Indeed, the rushed hearing this week could lock in a majority on language impacting the much more important appeal in Dobbs.

The government’s lawsuit raises questions of both whether it can sue and whether a court can remedy constitutional violations at this time. The Texas brief attacks the very claim of an injury with the words “The federal government cannot get an abortion.” By intervening as an actual party, instead of in its traditional role as an amicus or “friend of the court,” the Biden administration unwisely introduced an additional legal controversy into the case. It is claiming the right to challenge any state law that is considered unconstitutional, and to enjoin any state judge or court from considering such cases. The Supreme Court has long been hostile to federal courts enjoining state courts.

To win, the Biden administration must get at least one of five justices to effectively reverse a position taken just weeks ago when they rejected the same injunction in Whole Woman’s Health v. Jackson. The problem is that, unlike other state limitations on abortion, the Texas law is directed at allowing private citizens to enforce a prohibition after six weeks of pregnancy. That prohibition is clearly unconstitutional under current Supreme Court precedent covering the “pre-viability” period of pregnancies. However, since it creates authority for private citizens to sue, there is no agency or government officers who enforce the rule. So, in the earlier case, pro-choice litigants randomly selected a judge and a clerk to enjoin from allowing such lawsuits.

The practical and procedural problems are obvious. First, you would have to enjoin every judge and clerk to stop this law from being used. Second, this is a not-so-subtle evasion of a long-standing rule that the court enjoins people, not laws. That is why five justices declined to issue an injunction despite acknowledging that “The applicants now before us have raised serious questions regarding the constitutionality of the Texas law at issue.” However, the justices ruled that “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 three liberal colleagues, admitted that 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.”

Nevertheless, the Biden administration again demanded the same injunction after losing before the United States Court of Appeals for the Fifth Circuit. Moreover, unlike the first attempt, a federal court has already declared the law to be unconstitutional. There is no court that has declared the law enforceable. In addition, the Fifth Circuit has fast tracked arguments on the merits and will hear the case in December.

While perhaps politically popular, the Biden administration’s move could create even more restrictive precedent on its ability to seek such relief. Worse yet, the procedural rule could have blowback on that big case pending on the docket: Dobbs v. Jackson Women’s Health Organization. The majority could note that there is an unlikelihood to prevail on the merits because the law contains an affirmative defense that it cannot be used to impose “an undue burden on a woman or group of women.” That is the current test under the controlling case of Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). (Opponents however argue this reference is part of a section on “limitations” on the use of the defense).

The Biden administration seems to overcome the obvious with the hyperbolic in making the same demand, in hopes of a different outcome: “If Texas is right, no decision of this court is safe.” The problem is that the Texas law was already declared unconstitutional and any person actually subject to its application could quickly secure an injunction. That is usually how such cases come before the court — a party with a cognizable injury seeks judicial relief. It can then move quickly through the system with an injunction in place.

With others challenging this law with direct injuries, there is even less reason for the Biden administration to gamble on this filing. Likewise, there is a second case brought by Whole Woman’s Health that is consolidated in the appeal. That is the same group that was just before the court in September and lost on the same demand.

Playing roulette with reproductive rights may pay off for the administration. Or it might not. But forcing this issue at this stage, and just weeks after the prior rejection in Jackson, does not seem to be “a way to win.” Again, this does not take away from the legitimate concerns of pro-choice advocates: Dobbs may indeed curtail or even set aside Roe v. Wade. Yet, even if there is no way to win entirely, there could be a way to lose more slowly.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.

235 thoughts on “Roe Roulette: Biden Administration Takes a Gamble with Emergency Appeal of Texas Abortion Law”

  1. How straightforward would it be to find that TX S.B.8 violated the Constitution in attempting to evade Federal Judicial Review combined with a state nullification of major portions of Casey?…..and then to rule the law unconstitutional and unenforceable on those grounds? There’s no need to enjoin anyone. If any citizen of TX then waged an SB8 lawsuit, the plaintiff could sue for imminent injury/damages.

    That would serve notice to all the State Legislatures that writing a State law in defiance of a SCOTUS Precedent so as to make its challenge difficult is a waste of time. The deterrence has to be levied on Legislators, not Clerks, and not Judges.

    This would dispatch Whole Women’s Health and the Biden lawsuit without any need to revisit Casey.

    Then, the Mississippi AGA could be heard as more germane to Casey.

  2. I find it most interesting–and incredibly frightening and sad–that only people who are religious are against abortion. So atheists are not disgusted by the torture of a pain-capable unborn child as it is ripped from the supposedly safest place it will be ever be? Atheists do not find infanticide as Hillary Clinton and others have advocated abhorrent. If there is no opposition to late term abortion practices, at a minimum, of people who do not believe in God, then we are truly lost. And it is proof than only through belief in God and faith can we have a truly compassionate and good society. If someone–religious or otherwise–is not sickened by late-term abortions and the sales of fetal tissue, then they are no better than the Nazis and Margaret Sanger.

  3. “. . . any person actually subject to its application could quickly secure an injunction.”

    They could? How? Pitman enjoined the Texas law. Then the 5th Circuit temporarily reversed him. By reference to what court ruling could “any person” “secure an injunction?”

  4. Are they really ‘Pro-Life’?

    For 12 years Republicans have tried to kill Obamacare. But no Republican has offered a viable alternative. One could say, quite factually, that expanding healthcare access is not a Republican priority.

    Why then is life so precious with regards to abortion? Should the life of an unborn child be more important than the life an adult with no health insurance?

    Every year ‘X’ number of adults die needlessly because they lack healthcare access. Consequently a serious health issue goes untreated too long. Republicans know this occurs. The problem is no secret.

    But Republicans feel expanding healthcare constitutes an unwise expansion of government. Therefore Republicans are willing to let ‘X’ number of adults die from ‘lack’ of healthcare. They calculate the loss of life is tolerable to keep government from growing.

    Therefore Republicans are not sincere about life with regards to abortion. Controlling women is the obvious thrust. Look who cares the most: ‘Christian Evangelicals’. That’s a tip-off there. They take The Bible seriously!

    If one takes The Bible seriously, men should be the dominant gender. Husbands and fathers have a responsibility to supervise their women.
    It’s basic Bible stuff embraced by The Vatican, in addition to Evangelicals.

    The Anti-Abortion movement is driven by religion. And one could surely label it a ‘Tryanny of a minority’. Most Americans are not Catholic nor Evangelical. Yet these religious sects play an outsize role in the abortion debate. If they just shut up the issue would cool dramatically.

    1. ATS- “The Anti-Abortion movement is driven by religion”.
      +++

      I think a fair number of people are simply disgusted with crushing skulls and ‘harvesting ‘ body parts to sell.

      One could make a pretty good Halloween horror movie out of little more than what some abortion factories do.

      1. The Left quashed Christianity to make their own religion, a god in their own image. It is always about their “dogmas”, their “truth”, their “way”, their “judgments”. Sacrificing the innocent, most defenseless life, the unborn baby, is part of their religious ritual. The Aztecs and Incas had nothing on them.

        Politics as Religion After George Floyd. This Isn’t an Orwellian Novel. This Is Your Country

        What are you really seeing as Americans kneel, hands raised in secular prayer, repeating political creeds on the TV news? And that secular foot-washing? You’re witness to neo-Marxist appropriation of Christian symbolism, in the aftermath of the horrifying Minneapolis police killing of George Floyd. And now, the priests of the secularist left separate the biblical sheep from the goats on the basis of skin color.

        Real Clear Politics

          1. Religion is a behavioral protocol including morality in a universal frame, its relativistic sibling “ethics”, and its politically congruent cousin “law”.

            1. Our legal system does not treat the exercise of political beliefs as the exercise of religious beliefs. The latter have a 1st Amendment protection and the former don’t.

              1. Politics is a realization of religious beliefs. Our legal system recognizes this under the First Amendment and under the Twilight Amendment (i.e. “penumbras and emanations”) that established the Progressive Church, the Pro-Choice “ethical” religion (i.e. behavioral protocol) for purposes not limited to selective-child (i.e. elective abortion).

            2. Religion is a behavioral protocol including morality in a universal frame, its relativistic sibling “ethics”, and its politically congruent cousin “law”.

              The greatest tragedy within Christianity has been the divisions therein. The Bible was never taught prior to the 15th Century as sola scriptura. The Early Church Fathers were clear in their writings that Christian living depended on 2 pillars: Sacred Scripture and Sacred Tradition. One was not greater than the other. Since the Protestant Reformation, e.g. John Calvin, Christian splinter groups embraced Fundamentalism by using the Bible as their “sole text” for Christian living. Fast forward to the XXI Century, and we see most Americans have little to no understanding of what it means to having a personal, intimate relationship with God, one that is to be practiced daily with active prayer life, studying both the Bible and Sacred Tradition as found in the writings of the Early Church Fathers, and trying, trying, trying again. It’s not the Church leaders that we should emulate but rather the Christian principles. St. Augustine of Hippo comes to mind who taught that free will & choice were paramount in the life of a Christian. Centuries later, St Thomas Aquinas fervently agreed. This is to say that one has the freedom to reject God, reject the good, reject a holy life because that is the basic choice that God has given all of us.

              Juxtapose the above to the comment by “Sam” who has a long history of polemics against Christianity, precisely because he never read St. Augustine of Hippo, St John Chrysostom, Athanasius, Basil, Cyril of Alexandria, and so many others. He is in good company. Most Americans lack a basic understanding of Christianity.

              https://www.ccel.org/fathers.html

              George Washington, John Quincy Adams, Thomas Jefferson, and even Ben Franklin, down to Abraham Lincoln, knew that leading a “God fearing life” was paramount. Today, what is paramount is self-deification, thumping one’s chest, like Sam does, to proclaim “their truth”, “their voice”, “their rights”, as if somehow man truly has any insight into right living. In this light, the comment by Sam, erroneous, shallow, and intellectually bankrupt as it is, makes senses, to his and society’s poverty.

              America is going down because that was America’s choice.

              Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.
              – John Quincy Adams

              1. John Quincy Adams
                ************************
                Evena Jeffersonophile such as myself would have to admit that JQA was as close to a Jeffersonian mind as one could get.

              2. “. . . because [Sam] never read St. Augustine of Hippo, St John Chrysostom, Athanasius, Basil, Cyril of Alexandria, and so many others.”

                And you know that how? Revelation? Divine insight? Wishful thinking?

                Since you want to invoke the Founders to rationalize your belief in God (which is, of course, not an argument — but an appeal to authority), you might try this quote:

                “Fix reason firmly in her seat, and call to her tribunal every fact, every opinion. Question with boldness even the existence of a God; because, if there be one, he must more approve of the homage of reason, than that of blindfolded fear.” (Jefferson)

                “shallow” —

                I believe that the individual and reason are sovereign. I believe in the absolutism of *this* world. You take on faith that the sovereign is an unknowable, unprovable, mystical entity in another dimension. I accept the deep end of intellectual conviction, not a mirage.

                It is no accident that some on the religious Right are just as nasty and vitriolic as are some on the Left. When you reject reason, and thereby civilized debate, you degenerate into vengeful emotionalism.

              3. “. . . thumping one’s chest, like Sam does . . .”

                If the choice is that, or kneeling in submission, I’ll take that. Proudly.

        1. “. . . neo-Marxist appropriation of Christian symbolism . . .”

          Why does the religious Right think that religion is the cure for Marxism?

          The two ideologies have more in common, than not: Allegiance to a higher power, that is beyond reason and evidence. Absolute “truths” known only by that higher power. The individual must surrender his mind to that higher power. The individual must be sacrificed to whatever that higher power asserts is “good.” The state exists to compel individuals to obey the dictates of that higher power.

          1. Allegiance to God and religion is voluntary, while taking a knee to mortal gods (and goddesses) and religion is compelled through Choice and force. That said, whether a religion is based on morality, ethics, or law, judge a philosophy by its principles, not principals.

    2. “One could say, quite factually, that [socialized medicine] is not a Republican priority.”

      *Now* it’s a factual statement.

    3. The pro-life movement is driven by human and civil rights.

      Obamacares was opposed for sustaining the status quo (i.e. single/central/monopolistic practices), including progressive prices and availability, masked under a thinly veiled redistributive change scheme, and its anti-choice policy while funding Pro-Choice (i.e. planned parent/hood or elective abortion for social progress, clinical cannibalism, and climate mitigation). The pro-abortion movement is driven by the ethical (i.e. relativistic) Pro-Choice religion with secular “benefits”.

    4. Men should be the dominant sex? Men and women are equal in rights and complementary in Nature/nature. That said, in the course of normalizing the transgender spectrum, specifically homosexuals, the Progressive Church, corporation, clinic conflated sex: male and female, and gender: masculine and feminine, or sex-correlated physical and mental (e.g. sexual orientation) attributes. The Pro-Choice religious sects have conflated logical domains to deny women and men’s dignity and agency, and reduce human life to a negotiable asset. Obamacares sustains progressive prices and availability under a single/central/monopolistic regime and a thinly veiled redistributive change scheme that is anti-choice and Pro-Choice.

    5. Actually republicans have constantly offered alternatives.

      Merely returning to the status qui ante is a perfectly viable alternative.

      PPACA costs us almost 2T/decade.
      But its actual benefits are very near zero.

      It has had no measurable effect on cancer trends, or mortality rates.

      This should not surprise – health insurnace does not improve health.
      Fire insurance does not prevent fires. Auto insurance does not prevent car wrecks.

      The benefits of insurance are fiscal not health.

      So we are paying 200B/year to address a financial problem that is less than $1B in scope.

      Thebest alternative to PPACA is NO PPACA.

      1. Republicans held both chambers of Congress and the Presidency from Jan. 2017-2019, and they chose not to repeal the ACA.

        1. So ?

          When have I ever said I was a republican?

          Why would that even matter ?

          ACA was a stupid mistake that wastes money limits freedom and accomplishes nothing.

          That republicans failed to repeal it reflects badly on them.
          That democrats enacted it reflects worse on them..

        2. Republicans have a single redeeming feature, they are not as totalitarian as democrats.

          That is not something to be proud of.

    6. Democrats seek to end qualified immunity – a policy that I agree with.

      Are they obligated to provide an alternative ?

      Of course not.

      QI is a mistake. Just eliminate it and we will be better off.

      PPACA is a mistake – we will all be better off without it.

      But if you want an alternative – end the federal government role in healthcare completely.

      Real free markets decrease costs and decrease scarcity.
      The real cost of everything that is not regulated by government declines over time. Often dramatically.

    7. “Every year ‘X’ number of adults die needlessly because they lack healthcare access.”

      Where the evidence is that X = 0

      1. John, as you know, people make up these numbers so that others that know little of the subject can repeat them.

        Anonymous needs to question his hypothesis but doesn’t. I wonder if he knows the law. If a person is suffering the risk of morbidity or mortality hospitals must admit whether or not the sick individual pays the bill.

    8. “But Republicans feel expanding healthcare constitutes an unwise expansion of government”

      PPACA did not expand healthcare – it merely changed how health insurance was paid for – to a much less efficient form.

      PPACA was an expansion of government a quite expensive one – without demonstrable benefits.

      You claim PPACA had some benefit.

      So where is that benefit ?

      Approximately 3M people per year die in the US – and the trend is slight increases.

      That trend mirrors birth rates approximately 80 years ago – surprise surprise.

      There has been no change in that trend as a result of PPACA.
      In fact deaths have increased – because we are seeing the beginings of baby boomers dieing.

      Or you could pick something else – cancer, heart disease ?

      Is there a single health trend that has changed as a result of PPACA – NO!

    9. I am not interested in the speculation regarding the bible by someone who has not read it. And who has no meaningful understanding of either catholicism or evangelical christianity.

      23% of US population is catholic. according to Pew 25.4% of the population is evnagelical protestant.
      47% of americans call themselves pro-life.

      Most americans are not catholics or evenagelicals, but a plurality are.
      A plurality are also pro-life.

  5. This Turley post touches on administration competency.

    Now there is another thing reflecting on it.

    There is a rumor going about Rome [and now the world] that Biden had a toilet accident in his pants when he met the Pope. You can look up the accounts. Some people are now sniggering and calling Biden ‘President Poopy Pants’.

    I have no idea whether there is any truth to this, but the live feed to his meeting with the Pope was mysteriously shut off.

    It could be only a nasty joke but what is horrible for our country is that a joke like this can so quickly gain traction when it refers to Biden.

    Does anyone think that a rumor like this about Putin, Boris or Macron would move it all? Of course not. The tragedy is that with Biden most of us suspect that it might just actually have happened. That’s how low his reputation, and the reputation of our country has sunk.

    Seen that way, it isn’t funny at all.

    1. What is deeply disturbing is not that whether this is funny.
      It is that millions of americans voted for someone clearly suffering from declining mental health.

      I do not like the Joe Biden that once was – but he is gone.
      It is hard to dislike this pathetic old man.

      But it is very easy to loath those who put him and his army of clueless children into office.

      Just think but for a lawless election and the idiots who voted for Biden we could all be enjoying an actual economic recovery, a secure border.

      It is probable Trump would have done no better than Biden on Covid. It is certain we would not have the same covid policy idiocy.
      It is also certain that the left would be telling us all that Covid would have been beaten had we elected Trump.

      We would not have the terrifying nonsense that is going on in congress – because even if Democrats controlled both houses – they still could not pass this idiocy.

      I suspect we would have some inflation – and Trump would be pummeled for that – but not inflation that is going to last for years.

        1. At the time I thought the election of Obama was the point of no return. If the American people were that gullible, the fall of America was ready to begin. The Republicans did not show respect for what America was all about. Too many were globalists as was Bush. The middle class was dying while the entitlement class growing and the elites satisfied living in their own world. Without the middle class the nation we love and admire is gone.

    2. Biden is Obama without the Obama charm, standing naked.

      Here is another laugh at the expense of this administration and Democrats as a whole.

      Biden’s 85-vehicle G20 motorcade gives conservatives fodder to claim climate hypocrisy

      Conservative Lisa Boothe also notes how John Kerry, special presidential envoy for climate, “exclusively flies private.”

      https://justthenews.com/politics-policy/environment/lisa-boothe-bidens-85-vehicle-g20-motorcade-shows-how-climate-change?utm_source=daily&utm_medium=email&utm_campaign=newsletter

  6. Life begins at conception.

    Roman Catholic Diocese of Albany v. Emami

    The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the Appellate Division, Supreme Court of New York, Third Judicial Department for further consideration in light of Fulton v. Philadelphia, on Nov. 1, 2021.

    Issues: (1) Whether New York’s regulation mandating that employer health insurance plans cover abortions, which burdens a subset of religious organizations by forcing them to cover abortions, is “neutral” and “generally applicable” under Employment Division v. Smith and Church of the Lukumi Babalu Aye Inc. v. City of Hialeah; (2) whether New York’s mandate interferes with the autonomy of religious entities, in violation of the religion clauses of the First Amendment; and (3) whether — if, under the rule announced in Smith, the free exercise clause of the First Amendment allows states to demand that religious entities opposing abortions subsidize them — Smith should be overruled.

    https://www.scotusblog.com/case-files/cases/roman-catholic-diocese-of-albany-v-lacewell/

  7. Actually, this is a win-win for the Biden Administration. The more times SCOTUS rules against them, the more momentum Democrats get for court packing. I suspect this is why the Administration mischaracterized the previous decision agains the injunction as having anything to do with the merits of the case.

    Roe v Wade would have to be overturned for the Texas law to hold, in my humble opinion as a lay person.

    Aside from the viability bright line in Roe, the 6 week gestation is so early that many women don’t know they’re pregnant until then, let alone have time to make an appointment to end the life growing inside them. Some women are irregular, and don’t even consider themselves late by then. Athletes like gymnasts are pretty commonly irregular. Then there are all the people who don’t mark their cycle on a calendar or app, and have no idea when the date of their last period is. It just seems like it’s been longer than normal for them to take a pregnancy test.

    I didn’t start tracking my cycle until later in adulthood.

    Having a 6 week gestational limit would effectively ban most abortions.

    Personally, I find most cases of abortion to be horrifying. A mother is supposed to fight tigers to protect her child. The strong feeling of love and protectiveness I felt the first time I saw my unborn child in an early ultrasound is difficult to express. There are strong arguments about the rights of mothers, the dangers of childbirth, medical reasons, and privacy. Most arguments for unfettered access to abortion fall under autonomy of decisions for whatever reason, including convenience, and eugenics. Cases of non viability are very rare; the majority of fetal abnormality abortions boil down to women simply not wanting an imperfect child they have never seen to get attached to. There is a very real ongoing genocide against unborn children with Down’s Syndrome.

    Most people think that abortion should be allowed in some cases, at the very least an ectopic pregnancy, and that they should not be allowed at some point. There comes a point in gestation when most Americans believe the child has the right not to be killed. There is overlap between Pro Life and Pro Choice. The very people who say it should be the woman’s right to choose might balk at the thought of aborting a full term, healthy 39 week old fetus. While TX might have been too restrictive under Roe v Wade, others argue NY is too lenient.

    The woman aborting a fetus is not removing her own tissue. She’s not having liposuction. She is removing the body of a completely different human being, someone who could not have a say. This is why it’s important for there to be a Pro Life movement, in order to speak on behalf of the voiceless. We need that tension between Pro Choice and Pro Life in order to have any hope of coming up with a balance between the rights of the mother and the fetus, and yes, I do think the fetus should have legal protection, at least at some point.

    As for the medically necessary argument, abortion means deliberately killing the child, over and above simply terminating the pregnancy. Delivery ends a pregnancy, for example. A late term abortion requires labor, and takes the added step of lethal injection to the child, waiting for the child to die, having the mother carry that dead child to return to the facility to check that it is no longer alive, finishing the job if the unborn is still alive, and then removing the baby in pieces. There are certainly medical reasons to end a pregnancy early, such as preeclampsia. If it’s before viability, then the fetus will die, such as the removal of an ectopic pregnancy in which the process of removal alone kills the hopeless fetus. But there is no medical necessity that benefits the mother to deliberately take the extra step of killing the child instead of just removing it. Arguments about fetal non viability, birth defects or other fetal abnormalities, are topics of euthanasia and eugenics, and should be debated as such.

    My own pregnancy became life threatening, and required early delivery. My son had his own team ready and waiting to ensure he was alright, which thankfully he was. He was a patient who received a high standard of care. Shouldn’t every baby be treated with such care and respect? The thought that babies of similar gestational age would be under threat in places like NY is chilling. Medical necessity is so poorly defined that a great many excuses could be made to kill late term unborn children “for the health of the mother”. How would having an abortion after 24 weeks over the course of 2 days save the life of the mother, instead of an emergency C-section or induction of labor, which would end the pregnancy quicker, as well as save the child? Third trimester abortions are risky and they do not spare the woman from dilation.

    Abortion has two components, for me at least. The moral side, and the legal one. Something can be immoral but still legal. I don’t know what a perfectly fair abortion law would look like. But I do hope our culture can improve its value of precious, unborn human life.

    Girls and women are given the impression that a fetus is just a ball of cells, like it’s magically held in the blastula stage until quickening. That’s not the case. That’s a baby in there, and I’ll bet if their womb were clear more women with unplanned pregnancies would feel compassion and attachment to that little life in there.

    Here is a link to an article about the famed photographer Lennart Nilsson, who published the first ever photos of unborn children in Life. All, except one, were dead, either miscarried or aborted. The deceased fetuses were placed in an aquarium, which is why they seemed to be floating serenely in space. They are beautiful, and create an emotional response. Nilsson himself was not political, and being Swedish, he had no idea for a while that his photos had become so popular with the Pro Life movement. Very little else can explain why people want to limit abortion better than images of what people look like during stages of gestation.

    https://www.theguardian.com/artanddesign/2019/nov/18/foetus-images-lennart-nilsson-photojournalist

    Here is a former abortionist describing a 2nd trimester abortion. Hearing the procedure will also help explain why people feel a need to limit abortion.

    https://youtu.be/j0tQZhEisaE

    1. “Aside from the viability bright line in Roe”

      You are confusing Roe and Casey. Although people continue to talk in terms of Roe, Casey is the current ruling precedent, not Roe. Roe set the “bright line” at the third trimester, not at viability. Casey shifted the line to viability.

      According to CDC data, less than 1% of abortions in the US occur after 21 weeks. Why do you think that you are in a better position to determine what is best for a specific woman’s health — given her individual medical conditions and what’s known about whether the fetus is actually viable — than her doctor?

      1. According to Guttmacher the actual impact of more restrictions on abortions is women choosing sooner – when the process is cheaper, easier and less brutal.

        This alone would actually favor the TX law.
        SB 8 did not outlaw the morning after pill.

        The left likes to claim the right to free speech is not limitless.
        That is more true regarding abortion.

        If women are entitled to choice – how long do they have to choose ? A day ? 6 weeks ? 9 months ? 2 years ?

        1. John B. Say,

          “According to Guttmacher the actual impact of more restrictions on abortions is women choosing sooner – when the process is cheaper, easier and less brutal.

          This alone would actually favor the TX law.
          SB 8 did not outlaw the morning after pill.

          The left likes to claim the right to free speech is not limitless.
          That is more true regarding abortion.”

          Alternatives such as the morning after pill are already being restricted by the Texas governor. It’s certainly not outlawed, but it is restricted and nothing stops Texas or any other state from making such options so limited so much so that it is not really an option available to everyone who needs it. What the Texas law is doing is forcing women to make more radical decisions in order to obtain a legal abortion such as traveling to another state or country or seek their own form of abortions in the privacy of their own homes.

      2. One of the reasons that pro-lifers want to delay this reaching the supreme court, and the reason that the pro-abortion crowd wants to get there as soon as possible is that as I noted in another post the data is that restrictions on abortion do not alter the numberof abortionsjust the timing.

        If SB 8 arrives at SCOTUS on the merits after enough time that it is clear the sky has not fallen, the court is far more inclined to leave it alone.

      3. Anonymous:

        Most Americans would restrict third trimester abortions of healthy fetuses. Essentially, a great many people feel that there is a line in which a mother may not kill her unborn child.

        Who are we to say a parent may not suffocate a newborn and throw her in a trash can?

        Everyone is free to have an opinion, including about others. For instance, you don’t have to be enslaved to object to the enslavement of others. That’s like saying who are you to interfere with a master’s treatment of his slave? The answer is that you’re a thinking person with an opinion on the ethics of a practice.

        A great many people were horrified at the actions of Dr Kermit Gosnell, who aborted many third trimester healthy fetuses. He also murdered those born alive. There are bad people and bad doctors out there, which means there are indeed circumstances in which the public would intervene. After all, this is not just the woman’s body that is in question, but rather the body of an entirely different person. There were plenty of women in their third trimester, with healthy fetuses, who employed Gosnell’s services. Their lives were not in danger until they walked in his door.

        Studies have shown that the reasons for later abortions tend to be the same as those for earlier abortions – no longer in a relationship, already have children, not ready for children, loss of job, etc.

        There are indeed medical reasons to end a pregnancy to save the life of the mother. If this occurs before viability, the baby would perish. However, I have never found a single instance where it was medically necessary to take the extra steps needed to kill a viable child in order to save the life of the mother. End the pregnancy and remove the fetus, yes, but not to deliberately kill the child. That takes longer than a C-section or induced labor and delivery. A lot longer. The only arguments that I have read for killing the child generally concerned a fatal abnormality. That’s euthanasia, and it has nothing to do with saving the life of the mother. I’ve spent some time researching, and have not yet found a single instance where it was medically required to kill a viable fetus in order to save the life of the mother. If the mother wanted that viable fetus alive, it would have been delivered early and given all the care it needed. Rather, the mother wanted to ensure the fetus was dead.

        I’ve found cases such as preeclampsia or cancer prior to viability, but cannot find a medical reason to kill a viable fetus rather than simply deliver it. My own child was delivered in less than an hour of my diagnosis. The process itself took minutes, and if the situation warranted, they could have wheeled me right into the operating room even sooner.

        It doesn’t matter how many abortions are over 21 weeks. That’s immaterial to a discussion on its ethics. Murder is also relatively rare, and yet that’s not an excuse to ignore it legislatively. Such rare occurrences matter very much to the victims themselves.

        This is the section of Roe v Wade I was thinking of in regards to viability:

        “For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life
        may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judg- ment, for the preservation of the life or health of the
        mother.”

        But upon your suggestion, I will compare this with Casey.

        1. Karen, I’m one of the Americans who believes that abortion should be illegal after viability unless the mother’s life or health are seriously endangered, and recognizing that in some cases the fetus may have a condition that is incompatible with life after birth, which means that the fetus never becomes viable.

          Thanks for correcting me about Roe. It’s still the case that Casey is the current precedent.

          “Studies have shown that the reasons for later abortions tend to be the same as those for earlier abortions – no longer in a relationship, already have children, not ready for children, loss of job, etc. ”

          You don’t say what you mean by “later.” The research that I’ve read is that the distribution of reasons that women have an abortion at 8 months, for example, is not the same as the distribution of reasons for abortions at 5 months.

          “It doesn’t matter how many abortions are over 21 weeks.”

          It does if you’re talking about the abortion of viable fetuses. None are viable prior to 21 weeks. Many aren’t viable even at 24 weeks. It’s hard to find statistics that distinguish between abortions at 21 weeks vs. 24 weeks; most often, they’re all grouped together “at or after 21 weeks.”

          “I’ve spent some time researching, and have not yet found a single instance where it was medically required to kill a viable fetus in order to save the life of the mother.”

          OK, but I don’t assume that you’ve tracked down every abortion after viability. Here’s an example of one doctor discussing abortions at or after 24 weeks: https://drjengunter.com/2019/01/29/abortions-at-or-after-24-weeks-are-sometimes-needed-medically-anyone-who-says-otherwise-is-wrong/

          Another doctor discussing the complex decisions for specific abortions:
          https://gop-waysandmeans.house.gov/UploadedFiles/Cassing_Hammond_Testimony_SRM316.pdf

          It seems like you don’t want to have an exception after viability for the mother’s life or health; instead, it sounds like you want to require delivery. You didn’t answer my question: why do you think that you are in a better position to determine what is best for a specific woman’s health — given her individual medical conditions and what’s known about whether the fetus is actually viable — than her doctor?

          1. I agree with you that the data often does not drill down week by week, but rather by trimester.

            When I say it doesn’t matter how many are performed, I mean that no matter how few are performed, there still needs to be an ethical standard. Although you did not make this argument, others have often said that third trimester abortions are so rare that when they are performed, there must have been a pressing medical reason. But this is not true, as Dr Kermit Gosnell’s case illustrated. There were plenty of women in their third trimester, with healthy pregnancies, who were too far along for a legal abortion, willing to enter his house of horrors to end their child. Assistants gave evidence that there was nothing wrong with these children other than being unwanted.

            I have separated out 2nd and 3rd trimester abortions of viable fetuses from unviable, because I feel they are two separate arguments.

            Any argument in favor of terminating an unviable fetus is euthanasia. That has nothing to do with the health of a mother. The argument is to kill a fetus earlier than it would perish naturally. In some cases, this is to spare the mother from delivering, holding, and seeing a doomed infant. The fetus would certainly still feel pain during that euthanasia process. That debate about euthanizing an unborn human who cannot have a say can certainly be talked about in the public sphere, but I think it should be done in terms of euthanasia, and separated out from “health of the mother” arguments.

            Thank you for including the testimony of the abortion doctor.

            His first example of placenta previa is similar to that of an ectopic pregnancy, a doomed fetus that is not viable, in a life threatening pregnancy. At 20 weeks, the fetus was unable to survive early delivery, at least not yet. The gestational date of viability has repeatedly been pushed earlier.

            2nd example – intrauterine infection. Once again, if this occurs prior to viability, the fetus perishes. The goal is to remove the pregnancy. There is no medical reason to deliberately kill the fetus. He said, himself, “If the infection occurs at term, we deliver the baby.”

            3rd example – diagnosed cancer prior to viability. I’m a little confused as to why they elected abortion since the discovery was one week prior to viability, and the cancer had already metastasized, and she had a poor prognosis. Would waiting a few more days for the fetus to be delivered alive have materially altered a poor prognosis? For the sake of argument, let’s say that she had 24 hours to completely cure her cancer, and unfortunately, that 24 hours fell one week prior to viability, then again, this was not a viable pregnancy.

            4th example – a molar pregnancy is not viable

            5th example – woman on liver transplant list conceived. Once again, although no gestation given, I assume it’s prior to viability

            6th ex – patient with leukemia – again fetus not viable

            7th ex – preeclampsia – once again this was referred to as prior to viability, as when it occurs after viability, the infant is delivered. I had preeclampsia myself and had an emergency C-section. The procedure itself was like being the car in a pit stop at NASCAR.

            I absolutely agree that there are cases of life threatening pregnancies, as I experienced it myself. If the fetus is viable, it may be saved. There are certainly medical reasons necessitating delivering or removing a fetus early, but I have yet to find any reason for deliberately harming that fetus that would benefit the health of the mother.

            You asked me a question:

            “It seems like you don’t want to have an exception after viability for the mother’s life or health; instead, it sounds like you want to require delivery. You didn’t answer my question: why do you think that you are in a better position to determine what is best for a specific woman’s health — given her individual medical conditions and what’s known about whether the fetus is actually viable — than her doctor?”

            My answer:

            As I have never been presented with any medical reason to harm a viable fetus that would benefit the health of the mother, then I consider this to be a form of infanticide. Of course I oppose infanticide, just as I would the smothering of a newborn because she was a girl, and the family only wanted a boy, or maybe the mother felt she wasn’t ready to have kids. The difference between the two acts is whether the infant could draw breath outside the woman’s body; that’s too fine a line.

            If a baby is viable, then what is being discussed is euthanasia and/or eugenics.

            There have been too many cases of healthy, viable fetuses terminated for there to be any assumption that there is always a fetal abnormality.

            Viable fetuses are aborted for only 2 reasons – being healthy but unwanted, or being abnormal but capable of surviving outside the womb. Thus the latter is also a case of being unwanted.

            I always find abortion to be horrifying, tragic, and very sad. At the very least, if a child reaches viability, then he or she should have the right not to be killed. If people want to argue for euthanasia or eugenics, then have that debate, but they should’t pretend it would save the life of the mother. Delivering a viable infant early saves the life of the mother. It’s certainly not in the Down’s Syndrome baby’s best interest to be killed before birth.

            If the only reason to terminate a viable fetus is that you just don’t want the child, then I don’t think a mother should be allowed to kill them. They’ve already progressed far enough into their pregnancy that they are going to deliver that baby one way or another. A third trimester abortion takes a couple of days, and delivers the baby in pieces. I don’t think she should get to do that if she just doesn’t want her kid. Arguments about imperfect but viable children are quite literally concerning eugenics. By all means, have that debate.

            For me, interfering with legislation to stop a woman from killing a viable child is on par with our interfering with a woman from smothering a newborn. At some point, the child has a right not to be killed.

            Realistically, unborn children are the most vulnerable people on Earth. A woman might be legally prevented from killing her unborn, viable child, but she could still be a terrible person, and go out drinking, doing drugs, or otherwise be a threat to that unborn little life. Not all women are good people. See Casey Anthony or Jodi Arias. Some women are sociopaths or psychopaths. For many women, it’s simply out of sight, out of mind. It’s not a real person to them because they cannot see anything but their own stomach. Their baby is an abstraction. We can do our best to find perfectly fair abortion laws, and there can be a point where the unborn have a right to live, yet we cannot ensure that every pregnant woman is a good person towards the life inside her.

            I will always be grateful to the birth mother of my relative, regardless of whether she chose to give birth to him, or had not the option. She gave life to a wonderful person, and for playing that important role, she will always have my blessing.

            Abortion is an emotionally charged issue. I thank you for taking such pains to have this two way conversation with me, and admit I don’t know what the best legislation would look like. The only thing I’m certain of is that abortion is incredibly sad.

            1. Kermit Gosnell’s acts where abhorrent. But he is a convicted criminal. He repeatedly broke the law, and it makes no sense to look to him in assessing legal abortion.

              “Any argument in favor of terminating an unviable fetus is euthanasia. That has nothing to do with the health of a mother. The argument is to kill a fetus earlier than it would perish naturally.”

              I don’t understand what you mean here. A given fetus that is currently not viable may become viable later, but it may also be endangering the mother’s life prior to viability.

              Are you only talking about fetuses that have conditions that are incompatible with life after birth and that never become viable? If so, they can also endanger a woman’s life or health.

              Also, a woman may be pregnant with more than one fetus, where one is viable (or is expected to become viable later) and the other isn’t. An example was discussed in the second link above: “a twin gestation in which one of the embryos was a
              molar pregnancy.”

              I honestly don’t understand what you’re referring to when you say “Any argument in favor of terminating an unviable fetus is euthanasia. That has nothing to do with the health of a mother.” Please clarify what you’re trying to say.

              “The fetus would certainly still feel pain during that euthanasia process.”

              No, the capacity for pain perception arises fairly late. But again: it’s unclear to me what you’re trying to refer to by “Any argument in favor of terminating an unviable fetus is euthanasia. That has nothing to do with the health of a mother.” Please clarify, thanks.

              “3rd example … the discovery was one week prior to viability”

              There is zero way for you to determine when that specific fetus would have become viable, and you shouldn’t pretend that you can know based on nothing but the gestational age. The gestational age at which a specific fetus becomes viable varies based on all sorts of things about the specific pregnancy. Some never become viable.

              “4th example – a molar pregnancy is not viable”

              Again, it was “a twin gestation in which one of the embryos was a molar pregnancy. … this patient had one normal twin and one molar gestation” and was at “22 weeks gestation.” The molar twin would never have become viable, but the information doesn’t suggest that the normal twin couldn’t have become viable had the pregnancy not been endangering the woman. It’s even possible that the normal twin was just barely viable already.

              You chose not to address the other link. For example, “The only case I know of was a 12 year-old girl raped by her brother. She had to travel from another state and I believe she was about 32 weeks (I did not do her procedure). It was done that late because it took that long to get the court order. If the legal system were actually protecting her she could have had the procedure at 8 or 9 weeks. If her parents were actually protecting her should would not havebeen raped. If this is the case that is going to put you up in arms then you are a terrible person. No 12 year-old girl should be forced to give birth to her 17 year-old brother’s baby.”

              My impression is that you disagree: that at 32 weeks, you think the 12 y.o. should have been forced to give birth to her 17 year-old brother’s baby. Have I misunderstood your position on this?

              Did you read the discussion of the health considerations in that link? If not, why not (given that this is the discussion you said you’re looking for: why a woman would have a health-related abortion at or after 24 weeks rather than a C-section or delivery via induced labor)?

              “Viable fetuses are aborted for only 2 reasons”

              That’s false. The discussion by Dr. Gunter that you ignored addresses why else they occur. She also notes that “now you know why we “just can’t do a c-section” in these cases — or if we did why a c-section, [it] would STILL BE AN ABORTION” in some cases even after 24 weeks. She is disputing your contention that there is a difference between delivery of a non-viable fetus via C-section and an abortion.

              As best I understand your response, you’re saying that you, personally, are unaware of any medical reason not to deliver a viable fetus that is endangering a woman’s life or health, and you do not want the law to allow any doctor to use their medical judgement about it, and you also consider termination of a non-viable fetus after 24 weeks to be euthanasia even when done for medical reasons.

              “I always find abortion to be horrifying, tragic, and very sad.”

              Our views about that are somewhat different. I sometimes believe that about a specific abortion, and other times I don’t. As an example of the latter, if a girl or woman is raped, I find the rape “horrifying, tragic, and very sad,” but I don’t consider her choice to have an abortion to be horrifying, tragic, and very sad, especially if done early in the pregnancy.

              “Delivering a viable infant early saves the life of the mother.”

              Sometimes, but it could also kill her, as is clear in Dr. Gunter’s discussion. And as she notes, some fetuses will never become viable, and they can still endanger the pregnant woman’s life or health, so to the extent that you’re assuming “24 weeks = viable,” you shouldn’t.

              “Realistically, unborn children are the most vulnerable people on Earth.”

              I don’t agree with you that embryos are people. The majority of embryos do not survive, and in many cases, the pregnant woman isn’t even aware that an embryo failed to implant or that she had an early spontaneous abortion or that what started off as two embryos merged into one, so the two original “people” no longer exist as distinct “people.”

              “Abortion is an emotionally charged issue. I thank you for taking such pains to have this two way conversation with me …”

              I agree. And I think it’s important for people with different views to be able to have good faith discussions about it, so I thank you in return.

              1. Anonymous:

                I have a tendency for my posts to get way too long, so I’m going to try to break this up.

                1. Kermit Gosnell was an example of:
                a) there are women in their 3rd trimester with healthy pregnancies who would get an abortion, without there being fetal abnormality or another medical condition
                b) we are discussing possible laws regarding abortion. Gosnell broke the law BECAUSE there were various laws government when, how, and under what conditions abortion may be performed.

                2. “I don’t understand what you mean here. A given fetus that is currently not viable may become viable later, but it may also be endangering the mother’s life prior to viability.” Understandable, as my comment was poorly worded. If a fetus is viable, but abnormal, then euthanizing him or her prior to birth is a form of eugenics, which is the most uncomfortable topic of the abortion debate. It’s about imperfect children being unwanted. At what level would this be OK? Downs Syndrome people are some of the nicest on Earth, yet many of them are selectively aborted as imperfect. Then there are severe disabilities. The debate should be had, but it needs to be an honest one as to whether it is OK to kill the imperfect. As a kid, I knew someone who had a birth defect that affected the formation of one of his hands. He’s not perfect, but he was a great person and worthy of life. Should we intervene in eugenics decisions? If a fetus has an abnormality that will lead to him or her either dying prior to birth, or shortly after birth, then abortion is a form of euthanasia of a human who has a terminal illness or defect. There is certainly a debate to be had about whether or not to terminate a doomed fetus. My own friend had such a pregnancy. She couldn’t bear to end her daughter’s life a moment sooner than would happen anyway. She got to hold her newborn in her arms, and comforted her as she passed away with her husband by her side. Her family, with her other children, celebrate her daughter’s birth/angel day with balloons every year. It was incredibly painful to witness their grief when they learned this news during her pregnancy. I think this kind of euthanasia discussion is a separate, though important, issue, than the abortion of fetuses that are viable, and will survive birth, if that makes sense. I’m trying to separate out different reasons and circumstances given for abortion.

                1. I have a tendency for my posts to get way too long….

                  Yes they do but we love you anyways. Our reward is in Heaven. Blessed All Souls Day!

                  😇

                  https://bible.usccb.org/bible/readings/110221.cfm

                  The Commemoration of All the Faithful Departed
                  (All Souls)

                  Reading I
                  Book of Wisdom 3:1-9
                  The souls of the just are in the hand of God,
                  and no torment shall touch them.
                  They seemed, in the view of the foolish, to be dead;
                  and their passing away was thought an affliction
                  and their going forth from us, utter destruction.
                  But they are in peace.
                  For if before men, indeed, they be punished,
                  yet is their hope full of immortality;
                  chastised a little, they shall be greatly blessed,
                  because God tried them
                  and found them worthy of himself.
                  As gold in the furnace, he proved them,
                  and as sacrificial offerings he took them to himself.
                  In the time of their visitation they shall shine,
                  and shall dart about as sparks through stubble;
                  they shall judge nations and rule over peoples,
                  and the Lord shall be their King forever.
                  Those who trust in him shall understand truth,
                  and the faithful shall abide with him in love:
                  because grace and mercy are with his holy ones,
                  and his care is with his elect.

                2. “If a fetus is viable, but abnormal, then euthanizing him or her prior to birth is a form of eugenics, which is the most uncomfortable topic of the abortion debate.”

                  Karen, thanks for clarifying. I don’t favor post-viability abortions being legal, unless the woman’s life or health are endangered, or the rare situation like the 12 y.o. raped by her brother who couldn’t get permission from the court for an abortion until she was 32 weeks along (I, personally, am not going to force a 12 y.o. rape victim to give birth because our judicial system f’d up in enabling her to get an abortion prior to viability).

                  “If a fetus has an abnormality that will lead to him or her either dying prior to birth, or shortly after birth, then abortion is a form of euthanasia of a human who has a terminal illness or defect.”

                  In this situation, the fetus isn’t viable, so it isn’t an example of “If a fetus is viable, but abnormal …” In this case, I believe that the decision should be left to the mother in consultation with those she wishes to consult (doctor, family, the baby’s father, …), just like other pre-viability cases where a woman might or might not choose to bring the pregnancy to term. I totally understand your friend’s choice. I also understand the choice of someone who decides to have an abortion rather than bring the pregnancy to term. These decisions depend on so many personal and varied factors, including mental health issues. I don’t think people make these decisions lightly.

                  1. Anonymous:

                    A lot of people agree with you, that they’d only favor post-viability abortion if the woman’s life or health were endangered. However, have you been able to come up with a case where aborting a viable fetus rather than delivering him or her would save the mother’s life or health? I used to accept this on face value until I read an article by an OB/GYN who wrote that delivering the viable baby saves the mother’s health or life in a dangerous pregnancy. He wrote there was no medical reason to kill a viable fetus that would have any impact on the mother’s health. It’s the removal of the pregnancy that addresses her health crisis.

                    Once I read that, it made me think.

                    I have read reams of articles, testimony, and papers, and the only justification for abortion after 24 weeks to save the mother’s life or health was quite specifically given for unviable fetuses, who were never going to be viable, given fatal fetal abnormalities…

                    All testimony given by doctors, including the two you linked, failed to give a single example of a need to abort a viable fetus for the health of the mother.

                    I have therefor concluded that the wording of abortion laws regarding the mother’s health are incorrect.

                    There is an argument that’s made to promote the abortion of fetuses after 24 weeks if the mother was the victim of rape, such as was provided in your second link. A great many people feel that they would never “force” a rape victim to deliver her rapist’s child. It’s certainly an understandable sentiment. The pregnancy itself can be experienced as a re-victimization of the victim.

                    However, an abortion after 24 weeks does not actually save the mother from delivering an infant. She’s still going to deliver a baby, in a sense, except it’s a dead baby. She will have to undergo the lethal injection of the baby. Then she will have to walk around with the dead baby inside her, return to have its death verified. If it’s still alive, they will repeat the procedure. She will probably feel the baby struggling or kicking as it’s head or body is injected. Then labor will be induced so she can deliver a stillborn. That’s really gruesome, and it’s an act of violence on a full term baby.

                    A rape victim after 24 weeks is going to give birth. There is no escaping that event. The difference is that the abortion produces a stillborn. A natural delivery will take a few minutes via C-Section, or perhaps a day for natural labor. An abortion after 24 weeks will take 3 to 4 days.

                    What I find very telling is that you can go to various abortion provider websites to read about a third trimester abortion. The process is summarized except for the part where the doctor gives the full term infant a lethal injection. You can read all about the laminaria used to dilate the cervix, how many days it takes, the ultrasound…then at the end the woman delivers a stillborn with absolutely no explanation as to why it’s stillborn. There is a reason why every single clinic website I’ve read skips over the actual killing of the baby. The attempt is to dehumanize the fetus and sterilize the actual killing. Because that’s what’s happening – killing a full term baby. If the baby has already died in the womb then it’s not an abortion.

                    You should research this for yourself. You’ll soon notice how very difficult it is to find a description of the killing of the full term child anywhere on provider of third trimester abortion.

                    Now, an abortion prior to I think 27 weeks is done surgically, where the doctor reaches in through the cervix with a clamp and crushes and pops off the head and limbs to remove one at a time. But abortions later than that are delivered as stillborns.

                    It should also be noted that the medical community has established that “late term abortions” after 22 weeks are associated with a higher risk of complications and even death.

                    Therefor, a rape victim over 20 weeks gestation will not be spared delivery, AND the process if it’s done over 22 weeks may result in complications up to and including death.

                    Regardless of the reason why she’s so far along before she gets an abortion, that rape victim at or above the 2nd trimester is going to deliver a baby one way or another, alive, stillborn, or in pieces. Therefor, the abortion at that gestation does not spare her the late pregnancy or the birth. If the baby is going to be born one way or another, why not let the innocent, viable infant be born alive and adopted?

                    1. Karen,

                      Re: “have you been able to come up with a case where aborting a viable fetus rather than delivering him or her would save the mother’s life or health?,” I haven’t invested time in looking, and I don’t assume that I’d find it online even if I did look, since doctors simply do not post descriptions online of most of their medical cases.

                      Other than the example of the 12 y.o. impregnated by her brother raping her, I don’t know of any legal abortions involving viable fetuses. I’m aware of legal abortions after 24 weeks involving fetuses that are not viable, but those aren’t what you’re talking about.

                      [break]

                      OK, I just went hunting. Here’s an example of an abortion of a possibly-viable fetus for health reasons, where the doctors determined that abortion was safer than delivery:

                      “Vanessa Cullins, Vice President for External Medical Affairs for Planned Parenthood Federation of America … says there also are cases after viability in which an abortion is safer than an induced childbirth or surgical delivery. Cecily Kellogg, 44, a writer who lives near Philadelphia, says that was the situation she faced when she was nearly six months pregnant with twin boys in 2004 and developed severe preeclampsia. One fetus had already died and “my liver had shut down, my kidneys had shut down and they were expecting me to start seizing at any minute,” she says. The doctors said they had to quickly dilate her cervix and perform an abortion to save her. “I fought it,” she says. “But they told me I would die — that it was either me and my son or just my son.” She says it was a “horrible experience,” but the right thing to do.”
                      https://www.usatoday.com/story/news/nation/2012/10/19/abortion-mother-life-walsh/1644839/

                      Maybe you think they were wrong and that they could have delivered the other fetus alive without Ms. Kellogg dying. But I can’t possibly make that judgment: the description doesn’t include all of the medical info that would be necessary to determine that, and even if it did, I don’t have the medical expertise necessary to assess it. I doubt that you have that medical expertise either.

                      What are your examples of legal abortions of viable fetuses to save the mother’s life or health, but where you’re certain that the fetus could have been delivered alive instead without increasing the odds of the mother dying or causing permanent serious health issues?

                      Re: “It should also be noted that the medical community has established that “late term abortions” after 22 weeks are associated with a higher risk of complications and even death,” the medical community doesn’t refer to “late term abortions” because for doctors, “late term” is used in the context of a “late term pregnancy,” which is a pregnancy that lasts beyond 41 weeks. The phrase doctors use is “abortion later in pregnancy.” Again, very few legal abortions occur after 22 weeks, and generally these are for fetuses that are not viable even though they’re at gestational age when a different fetus might be viable.

                      Re: “a rape victim over 20 weeks gestation will not be spared delivery, AND the process if it’s done over 22 weeks may result in complications up to and including death,” I doubt that there are many rape victims who wait that long to have an abortion. The only reason I can think of for most rape victims not getting an abortion soon after discovering that they’re pregnant is that it sometimes takes poor women time to save up enough money to get an abortion (and perhaps to travel to where she can get an abortion, if a state does not have many abortion providers). The situation with the 12 y.o. is not typical. I went in search of more info: https://www.washingtonpost.com/archive/politics/1998/07/25/michigan-judge-allows-incest-victim-to-seek-late-term-abortion/55ee7c18-58b8-4410-8839-5f7a34824226/

                      “If the baby is going to be born one way or another, why not let the innocent, viable infant be born alive and adopted?”

                      Can you give me another example of a rape victim not getting an abortion until after the fetus is viable? (You seem to be assuming that it happens. I don’t assume that.)

              2. 3. 3. I thought the molar pregnancy grape like cluster growths impacted the other twin, as well, rendering both unviable, but perhaps I didn’t read the situation correctly. Medicine boils down to save whom you can, and do no harm. Hypothetically, let’s say there was a twin pregnancy, or other multiple. One twin had an abnormality that doomed it to never become viable, and it was a threat to the other fetus(s). Under the save whom you can paradigm, the doomed fetus that could not survive, and was harming the other fetus, would be removed.

                4. Honestly, I hadn’t checked out the other link, which is why I hadn’t addressed it. I’ll read it, and when I have time in a bit I’ll return.

              3. 4 (continued) – OK, I read the blog post. The OB/GYN referenced abortions after 24 weeks on fetuses that had fatal abnormalities, not expected to survive. So not viable. This again goes to the euthanasia argument, ending the life of a terminally ill or fatally flawed unborn child. One example was an emergency delivery required due to extremely high blood pressure at 26 weeks gestation, except the condition retarded fetal growth so that it was still unviable at that gestation. The only other instance she mentioned was an underage victim of incest rape, who had to travel out of state and get a court order to abort her fetus, assumed viable, at 32 weeks. The guilty party was the rapist, and anyone else who allowed or enabled the rape to occur. The child is quite literally innocent, yet he or she suffered a form of death penalty, while the poor mother still had to undergo cervical dilation. I have never heard a cogent argument as to why a viable, third trimester unborn child should be put to death for the sins of his father. I don’t know the most fair legislation in such a case as rape, but killing an innocent unborn child for the crimes his father committed against his mother would seem unethical. This is especially true if most of the pregnancy has already passed. Again, for me, once an unborn child becomes viable, I think he or she should have the right not to be killed. For the same reason, I think newborns conceived from rape should not be killed, either. But remember, I have a personal feeling on this. As mentioned, one of my relatives was adopted as a newborn. I have absolutely no idea how he was conceived, but I for sure do not think he should have been killed if he were the product of an assault. I think it clarifies ones thinking if you know someone who was adopted, and realize how close they could have come to having been killed. It’s a bit sobering.

              4. Anonymous:

                5. You said that you do not find the choice of a rape victim to abort her baby to be horrifying, tragic, or sad. While I certainly understand why rape victims would make such a choice, I still find it extremely sad, because it’s punishing an innocent victim. Something violent is being done to that helpless victim, which perhaps some victims of such terrible abuse could identify with.

                6. “Delivering a viable infant early saves the life of the mother.”

                ‘Sometimes, but it could also kill her, as is clear in Dr. Gunter’s discussion. And as she notes, some fetuses will never become viable, and they can still endanger the pregnant woman’s life or health, so to the extent that you’re assuming “24 weeks = viable,” you shouldn’t.’ Answer – but I’m not using gestation as a hard line for viability. As mentioned, one of my friends gave birth to a non viable infant. She knew ahead of time that as soon as she was delivered, she would die. I’m defining fetal viability as the capacity of a baby to survive outside the womb. Therefore, I think my statement still stands, that delivering a viable infant early saves the life of the mother. There could certainly be a 40 week old fetus with a fatal defect who would not survive outside the womb. There are some pretty grim abnormalities. There is also the occasional miracle. For example, there was the boy, Noah Wall, whom doctors said would be born without a brain. His parents refused to abort. As it turns out, he was born with 2% of his brain. With the addition of a shunt, his brain grew to 80% of normal size by his 3rd birthday, and he’s now described as “bright as a button.” Tragically, too many parents don’t get that reprieve. Again, the termination of a non viable fetus would be euthanasia, and should be debated as such. it would be similar to euthanizing an elderly person incapable of consent but in the grips of a terminal illness.

                7. What is your definition of a “person”? Some consider a human to be defined genetically (i.e. it’s a human fetus, not a sea turtle fetus), and a person to be defined as having rights. However, pregnant women are congratulated on their baby, not their biologically human replicating embryo or non person. They’re asked, how’s he or she doing? If they fall or are injured, there is a flurry of concern for the baby. I think the dehumanizing rhetoric only comes in when unwanted pregnancies are discussed. A human embryo is biologically human. It is no other species. As for personhood, I don’t know when rights would be legislated, but my kiddo was definitely a person in my eyes, including when I carried him in pregnancy. The grief some women experience over miscarriage would explain more succinctly than any words that they felt that was a baby, a human being, and a person. I do grant you that many pregnancies fail to implant or self abort due to fetal abnormalities. Yet that little embryo existed, its genetic code unique, even if it just existed for a flash. Our entire lives are just flashes in geologic time. Even early miscarriages can be deeply grieved by the mother. But such feelings would be subjective. However, if a man punches a pregnant woman to force her to miscarry, I consider that murder. Which means she was pregnant with a person.

          2. “I’m one of the Americans who believes that abortion should be illegal after viability unless the mother’s life or health are seriously endangered”

            Anonymous, I believe what you say above, but that leads me to the question, why do you think abortion should be illegal after viability? You have denied personhood and a whole host of other arguments, so one has only viability to deal with. What makes viability into personhood?

            Is it dependence? Infants are dependent, but it is illegal to kill them.

            Science is pushing the viability date earlier and earlier, so you are becoming more entrapped into that specific date with morality not being addressed in your response.

            1. No, I’m not saying that a viable fetus is a person. Legal personhood begins at birth, and I am more comfortable with birth being the dividing line than with any other points that one might choose for the start of personhood (e.g., conception, implantation, viability). I believe that viability gives a pregnant woman or girl long enough to make a decision and obtain an abortion if that’s what she has chosen, and if a fetus is capable of living outside the womb, then I’m disinclined to say that abortion should be allowed unless the woman’s life or health are endangered, in which case I prioritize the woman over the fetus. I think those medical issues need to be assessed by a doctor, and I’m not going to second-guess them when I lack the medical expertise and cannot possibly know the specifics for each individual case. I don’t think women or doctors make these decisions lightly when the pregnancy is that far along.

              1. “No, I’m not saying that a viable fetus is a person. Legal personhood begins at birth”

                You can say what you want, but that doesn’t make it true. I note you inserted the word legal in front of personhood. Are you advocating that the powerful in control of a nation determine personhood? In Nazi Germany, laws were passed denying ‘personhood’ to Jews. You seem okay with that.

                Get back to personhood and away from Nazi-type culture. That leaves us with only one claim of yours; viability determines personhood. I think two individuals creating a similar third person who is different is a much better way of determining personhood.

                1. “I note you inserted the word legal in front of personhood.”

                  Yes. Isn’t that what we’re discussing? If you mean some other kind of personhood, what kind of personhood are you referring to?

                  For example, do you mean something llike “biological personhood”? If so, do you understand that there is no consensus among biologists about that? The developmental biologist Scott Gilbert has a good overview of why that question has no clear biological answer:
                  https://www.swarthmore.edu/news-events/when-does-personhood-begin

                  “In Nazi Germany, laws were passed denying ‘personhood’ to Jews. You seem okay with that.”

                  I’m not. You are once again lying about me.

                  “That leaves us with only one claim of yours; viability determines personhood”

                  I didn’t say that. In fact, I said “I’m not saying that a viable fetus is a person.”

                  “I think two individuals creating a similar third person who is different is a much better way of determining personhood.”

                  That’s circular reasoning. It doesn’t articulate how you determine that a “third person” exists.

                  You claimed that personhood begins at conception, despite the following facts:
                  * somewhere on the order of half of all fertilized eggs are biologically incapable of developing even to implantation
                  * a single fertilized egg can develop into 2 or even 3 people
                  * sometimes two fertilized eggs merge prior to implantation and develop into a single person.
                  Biology is very clear that there is no one-to-one correspondence between fertilized eggs and persons.

                  1. “Yes. Isn’t that what we’re discussing? If you mean some other kind of personhood, what kind of personhood are you referring to?”

                    The type of personhood I describe is a human, genuine individual who should not be treated like disposable trash. You have suddenly added the word legal, so I repeat, Nazi Germany passed laws removing the personhood of Jews and eventually finished the job by killing them. Was that okay with you? Don’t attempt to hide behind legal personhood that has been removed by the most despicable persons that ever walked the face of the earth; Hitler, Stalin, Mao and others.

                    “That’s circular reasoning. It doesn’t articulate how you determine that a “third person” exists. ”

                    Are you now extending cancel culture to not just limiting what people say but making them into non-persons? Once again, you utilize sophistry to make your point, but it fails and might make others look poorly on you. We know those two individuals are creating a third that will grow and be very much like them based on our current knowledge. You can’t deny that fact. Birth is merely a time-stamp and doesn’t define personhood. Skip the sophistry and use logic. Two genuine persons create a third person, and that creation starts with the fertilization of the egg.

                    “You claimed that personhood begins at conception, despite the following facts:
                    * somewhere on the order of half of all fertilized eggs are biologically incapable of developing even to implantation”

                    Around half the Jews of the world were killed by the Nazis, so your logic tells us Jews had no personhood. That isn’t true, but that is a logical conclusion based on what you are saying.

                    “* a single fertilized egg can develop into 2 or even 3 people”

                    So? All that changes is the number of people that now have personhood.

                    “* sometimes two fertilized eggs merge prior to implantation and develop into a single person.”

                    So? That leaves us with one individual that has personhood.

                    “Biology is very clear that there is no one-to-one correspondence between fertilized eggs and persons.”

                    I think you are overextending yourself to the point that what you say isn’t making sense. However, if you clear your mind, you can see the logic in two genuine individuals with personhood creating a third which logically has personhood at inception.

                    You tossed out viability, which changes with science, as a means of personhood, so what better logic than the logic I have provided?

                    1. Sorry, but I am not going to continue this exchange when you keep lying about my beliefs.

                      I will try to ignore you entirely from now on, in all your personas, and you have shown me time and again that you are not a good faith discussant.

                    2. “Sorry, but I am not going to continue this exchange when you keep lying about my beliefs.”

                      I didn’t lie about you.

                      I provided analogies that you could understand. You don’t like the analogy because it demonstrated that your claim was baseless and, if extended elsewhere, would lead to personhood being defined by repugnant individuals.

                      I didn’t say you were one of those individuals or that you believe what they do. I did say that your logic extended leads to the abuse we have seen from those individuals.

                      You don’t like where your logic takes us, and you cannot provide a response to show I am wrong. This demonstrates the difference between short-term thinking for immediate gain vs. long-term thinking for long-term gain and stability. Short-term thinking is the result of your ideology.

                      Read Bastiat on the known and the unknown. That might help you get a grasp on both what you believe and your emotions. Don’t blame me for your problems. I am only pointing out where your logic takes us.

        2. I hate to point out the complexities you’ve overlooked, but a woman develops bone cancer in her 6th month, and chemo and radiation must begin immediately to save her life. The fetus is healthy at this point. It is too immature to deliver, plus the family does not have the $2M to spend on the NICU even if it were in the 7th month.

          Your well-intentioned policy then forces the woman to refuse chemo and likely die perhaps even before a premature birth? She has other children depending on her.

          What are your cares for these children and their mother? Can you do a tradeoff of saving her life being more worth it than having to abort the fetus, and immediately begin the chemo?

          We can’t afford simpleton moralisms forced on situations that haven’t been considered by the moralizer(s).

          Real life demands common sense.

      4. Casey is the current ruling precedent, not Roe. Roe set the “bright line” at the third trimester, not at viability. Casey shifted the line to viability.

        You are the expert here. Can you link me to the Judges guidance at setting that “limit”. It’s not in the Constitution. Somehow the People are forbidden from setting their own limits. But how do judges, lacking statute or Constitution arrive at there legal ruling?

        1. The truth, Judges are writing legislation.
          Judges are refusing to allow the People to write the law they live under. Casey should have never been litigated. The legislature of Pennsylvania, the Peoples voice, wrote the rules the People wanted. The People got exactly what they voted for. No mistakes. It the People change their mind, in two years there will be another election. Elections are quicker than SCOTUS decisions.
          Laws will ebb and flow with the will of the people.
          That’s how a representative Republic works.

          1. iowan2 – yes, they are indeed.

            I felt that Roe v Wade was legislating from the bench. The abortion issue should have been left up to the states or even Congress. That way the people would have a say about it, and it could always be changed if they didn’t like current laws, just as you’ve said. I’ve read the Constitution many times and never read anything about abortion.

          2. “Laws will ebb and flow with the will of the people.
            “That’s how a representative Republic works.”

            No. That’s how a majority rule type of government operates.

            In a constitutional Republic, which is what America is supposed to be, laws are limited to those allowed by its constitution.

        2. If you want to know what guidance the Justices relied on, read their rulings. No, I am not going to link to them for you; look them up for yourself.

          As for “The legislature of Pennsylvania, the Peoples voice, wrote the rules the People wanted,” if legislatures pass unconstitutional laws, those with standing have the right to challenge them, and the Constitution created the judicial branch to rule on the challenges.

    2. Karen, you are very thoughtful about a very difficult problem. I will add two thoughts to yours in agreement.

      Physicians live by the rule, “do no harm”, while “abortion means deliberately killing the child.” That is harm. Morally it is reprehensible.

      “Girls and women are given the impression that a fetus is just a ball of cells”

      It is not ‘just a ball of cells’ it is an act between two consenting adults that choose to have intercourse. That results in a third being that has no ability to protect himself.

      1. S Meyer:

        Good points.

        The truly innocent person in all this is the baby.

        The baby had nothing to do with how it was conceived. It is unethical to punish an innocent person for the crimes or convenience of another.

        One of my relatives was adopted as a newborn. We have no idea if the two people who made him loved each other, barely knew each other, or worse. All we knew was him. A person separate from those who made him, whom we all loved very dearly. He was born before Roe v Wade. I wonder if he was conceived after, if his mother would have allowed him to live.

        Perhaps anyone who was adopted, or knows someone who was adopted, prior to 1973 would wonder the same thing.

        1. “The truly innocent person in all this is the baby.”

          Karen,

          I agree the baby is innocent from the second of conception, where personhood begins. That person is the offspring of two bonafide persons and from conception exists as a unique and individual person.

          People can attempt to stretch morality in all different directions to assuage their guilt for their part in a murder, but they need to accept that what they are doing is wrong and morally unjust. They cannot make a satisfactory argument justifying the fetus as a non-person, but that is nothing more than disregarding morality.

          1. Personhood does not begin at conception, nor is there a “second of conception.” Even after the sperm reach the egg, conception takes hours, as a sperm crosses the corona radiata, binds to and penetrates the egg’s zona pellucida, binds to and fuses with the egg plasma membrane, the egg’s membrane changes to prevent polyspermy, the sperm and egg pronuclei migrate towards each other within the egg’s cytoplasm and their membranes disintegrate, and the pronuclei fuse.

            Often a fertilized egg has no biological potential to develop into a person, as there are too many copy errors in the sperm and or egg DNA. Estimates of preimplantation human embryo death vary, but somewhere around half die before implanting. Sometimes a single egg develops into 2 or even 3 people. Sometimes two fertilized eggs merge prior to implantation and develop into a single person. Biology is very clear that there is no one-to-one correspondence between fertilized eggs and persons.

            1. “Personhood does not begin at conception, nor is there a “second of conception.”

              Anonymous, that is your opinion, but then again the Nazis didn’t think Jews deserved personhood either.

              You don’t believe the fetus has personhood. The fetus is the result of two individuals persons that produce a third individual who is living and growing and who will eventually (for most) have the capability of producing others and finally die like all humans do. It is only logical that the offspring of two genuine persons is a person. That you disagree is meaningless as you are unable to propose any better reasons for personhood.

              1. “Anonymous, that is your opinion”

                No, it’s a biological fact that there is no “second of conception.” Even after the sperm reach the egg, conception takes hours. I already listed for you some of the things that occur over the course of several hours in the process of conception.

                It’s also a biological fact that a single fertilized egg can develop into 2 or 3 people (identical twins or triplets) and a biological fact that two fertilized eggs can merge prior to implantation and develop into a single person.

                “The fetus is the result of two individuals persons that produce a third individual who is living and growing and who will eventually (for most) have the capability of producing others and finally die like all humans do.”

                The claim of yours that I responded to wasn’t about the fetus. You said “the second of conception, where personhood begins.” The germinal stage starts at conception and continues for 2 weeks, the embryonic stage is weeks 3-8, the fetal stage is weeks 9-40. Around half of all fertilized eggs die prior to implantation, during the germinal stage. When you referred to conception, that’s a zygote, not a fetus.

                “It is only logical that the offspring of two genuine persons is a person.”

                No, it’s logical that a zygote that forms from a human egg and human sperm is a human zygote. But “person” and “zygote” aren’t synonyms. Biology is complex. As I pointed out and you ignored, It’s a biological fact that a single fertilized egg can develop into 2 or 3 people (identical twins or triplets) and a biological fact that two fertilized eggs can merge prior to implantation and develop into a single person. It’s a biological fact that many eggs and sperm have too many copy errors in their DNA, so that even though a zygote forms, it has no biological capacity to continue developing past a few cells divisions and quickly dies in the germinal stage. If you want to focus on biology, then deal with the biological facts.

                1. Conception: M-W: “the process of becoming pregnant involving fertilization or implantation or both” You are clouding the issue with things I didn’t suggest. It is true you listed points that I demonstrated were meaningless. One of those points was 50% of fertilized eggs don’t make it or something like that. For that reason, you believe that the fertilized egg ( a now pregnant woman) has no personhood. If you continue to repeat such nonsense, then I have to say that when the Nazis killed perhaps 50% of Jews, that must mean that Jews had no personhood.

                  You are throwing a lot of textbook biology into the mix to add meaningless words to the discussion. You are hoping to distract from your inability to provide a more logical definition of personhood than two genuine persons with personhood creating a third who also has personhood. Like the Jews, just because ~50% might die doesn’t mean either of them does not have personhood.

  8. So basically the Fed gov -executive- wants to stop a state law from being applied…..in order to protect supreme court precedent. Even though soon there will be the proper parties and the “rules” will work out normally. And the merits judged. Is that the gist?

    If so, that’s a problem for all state’s legislation not just supreme court precedent. But I recall VP Harris when she was running wanted a “czar” unit in her possible administration to do just that……pass on all state abortion laws before they take affect….to ensure they are constitutional.

    The problem with this is the parade of horribles plus it usurpes the Supreme Court who may sometime from time to time abandoned their own precedents. Oh like they should in Jacobson….where with such medical advances and ability to super compute maybe we shouldnt have a 1905 “precedent” that causes too many people harm and emotional distress….with less and less rational everyday.

    Yet if any admin could intervene to protect precedent the court will never get a chance to get the merits right…. All time arguing if such n such should be a case the feds can roll.

  9. Elena Kagan and Sotomayor must recuse themselves from SB 8 hearing. They have compromised their standing on SCOTUS!

    “Justice Elena Kagan sarcastically called the state legislators who wrote the law “some geniuses” who intended to chill abortion and bypass the legal concept that “states are not to nullify federal constitutional rights” such as Roe v. Wade.”

    Fox News

      1. A strawman. It is already illegal to abort a baby for social progress, medical progress, and climate mitigation (i.e. selective-child) past a threshold of viability. Women have an equal right to terminate a human life in the case of self-defense.

        The Pro-Choice religion denies women and men’s dignity and agency, and reduces human life to a negotiable asset. The Twilight Amendment (i.e. “penumbras and emanations”) enabled aborting demos-cracy in darkness and other transhumane and mischievous policies.

        That said, a woman and man have four choices, and still six weeks.

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